Boston and Lockport Block Co.

National Labor Relations Board - Board Decisions

Mar 17, 1952

98 N.L.R.B. 686 (N.L.R.B. 1952)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging employees or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their union activities
or views, threaten reprisal if a union is selected by our employees, promise
benefits to our employees if they discontinue their support of a union, engage,
directly or indirectly, in the surveillance of union meetings, or in any
manner interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or
assist the above-named union, or any labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collecive bargaining or other mutual
aid or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
WE WILL offer Harold Almond immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his senior-
ity and other rights and privileges, and make him whole for any loss of
pay suffered as a result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named union or any other labor organization
except as that right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act. We will not discriminate in regard to the hire or tenure
of employment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organization.
INTERNATIONAL FURNITURE COMPANY
Employer.
By ----------------------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
BOSTON AND LOCKPORT BLOCK COMPANY and LODGE 264 OF DISTRICT 38
OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F . L. Case
No. 1-CA-894. March 17,1952
Decision and Order
On September 28, 1951, Trial Examiner George Bokat issued his
Intermediate Report attached hereto, in the above-entitled proceed-
ing, finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
98 NLRB No. 114.
BOSTON AND LOCKPORT BLOCK COMPANY 687
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed .2 The Board has considered the Inter-
mediate Report, the brief and exceptions, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner .3
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint be dismissed in its entirety.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by the International Association of Machinists,
A. F. L., herein called the Union, and upon complaint and notice of hearing
issued and served by the General Counsel, and an answer having been filed,
a hearing upon due notice was held at Boston, Massachusetts, before the under-
signed Trial Examiner on July 18, 19, and 20 and August 20, 1951, involving
allegations of unfair labor practices in violation of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, by Boston and Lockport Block Company,
herein called the Respondent. The allegations in substance are that the Re-
spondent discharged Paul G. Gallo because of his union or concerted activities
in violation of Section 8 (a) (1) and (3) of the Act, and interrogated 'its em-
ployees concerning their union affiliations in violation of Section 8 (a) (1) of the
Act. All parties were represented by counsel and the Union by its representa-
tives, and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the issues, to argue the
issues orally upon the record, and to file briefs, proposed findings of fact, and
conclusions of law. The General Counsel and the Respondent filed briefs with
the undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation with its principal place of
business in East Boston, Massachusetts, where it is engaged in the manufacture,
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Murdock,
and Styles].
2 At the bearing, the Respondent moved that the complaint be dismissed on the ground
that the General Counsel had failed to adduce any proof that the charging Union had com-
plied with the requirements of Section 9 (f), (g), and (h) of the Act The Trial Examiner
denied this motion and we affirm his ruling. The Act does not require that the General
Counsel plead and prove as %part of his case the compliance of the charging Union.
N. L. R. B. v. Greensboro Coca-Cola Co., 180 F. 2d 840 (C. A. 4) ; N. L. R. B. v. Red Rock
Co., 187 F. 2d 76 (C. A 5) ; N L. R B v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6).
Moreover, we have administratively determined that the Union has satisfied the filing
requirements of Section 9 (f), (g), and (h) of the Act.
8 The Trial Examiner inadvertently gave Tuesday, March 7, 1951, as the date when
the Respondent held a safety meeting addressed by a representative of its insurance
company, The correct day was Tuesday, March 6, 1951.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale, and distribution of tackle blocks and related products . During the year
1950 the Respondent purchased raw materials valued in excess of $300,000, of
which approximately 75 percent was received from points outside the Common-
wealth of Massachusetts . During the same period the Respondent 's gross sales
exceeded $1,000,000 in value, of which approximately 95 percent was sold and
shipped to points outside the Commonwealth of Massachusetts.
The Respondent admits, and I find , that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , A. F. L., is a labor organization
within the meaning of the Act, admitting to membership employees of the
Respondent.
' III. THE ALLEGED UNFAIR LABOR PRACTICES
Summary of Events
Until August of 1950, the Respondent 's employees had never been organized
into a union although an attempt had been made some years previously. At
about this time and continuing until March 1951 , there was some -discussion
about unions generally among some of the employees which resulted in the
occasional chalking in some parts of the plant of expressions like "Let's Go
Union" or "Let's Go CIO ." On March 9, 1951 , Paul Gallo who had been hired
by the Respondent in 1950 and whose discharge on March 13, 1951, is the principal
issue herein , and who had actively participated in sympathetically discussing
unions with some of the workers, telephoned a representative of the Union. As
a result, a meeting took place in Gallo's home the following night, which fell
on a Saturday. It was attended by three of Gallo's fellow employees and by
two representatives of the Union. Another meeting of the group took place
at Gallo's home on Monday evening, March 12. There, Gallo and employee Fred
Gavin received union authorization cards which they planned to distribute the
next morning.
The following morning , March 13, at 7 a. In., Gallo and Gavin stationed them-
selves at the main entrance to the plant used by the production and maintenance
workers and their supervisors for entrance into the plant . The working day
began at 8 a. in. and ended at 4: 30 p. in. Gallo and Gavin openly handed out
union authorization cards to the employees at the plant gate. At about 4: 25
p. in. of the same day, Assistant Foreman William Leonard handed Gallo his
pay and told him he was discharged because of his past record and because of
his bad accident record.
The General Counsel contends that the cause alleged for Gallo 's discharge is
a pretext and that he was fired for the union activities which he openly engaged
in the same morning of his discharge or because the Respondent believed prior
to March 13 that Gallo was interested in and sympathetic to unionization in
general.
The Respondent contends that Gallo was discharged because of the frequency
of his accidents in the plant and lack of interest in his work . The Respondent
further contends that it had no knowledge of Gallo's union activities or sym-
pathies and that, in fact, the decision to discharge Gallo was made on the
Thursday or Friday preceding his discharge , to wit, March 8 or 9. If in fact
the decision to discharge Gallo took place when the Respondent did not have
any knowledge of Gallo's union activities , or sympathy for unions in general,
BOSTON AND LOCKPORT BLOCK COMPANY 689
the General Counsel 's case must fail . In view thereof , I will first examine the
evidence adduced by the Respondent.
The key witness to Respondent 's defense is Wilfred Anderson , Respondent's
superintendent. Anderson testified that he wanted to discharge Gallo about a
month prior to March 8 or 9 because Gallo lacked interest in his work. This
stemmed , according to him , from an incident involving Gallo's girl friend, Jean
Maguire, who had been discharged by the Respondent without notice on January
12, 1951. While Gallo testified that he felt no resentment about her discharge,
it is obvious that he was put out about it : "I just felt it was a pretty bad way
of letting anyone go at 25 minutes after 4 on Friday, without notice." A rumor
got back to Superintendent Anderson that Gallo was thinking of quitting. An-
derson suggested to Gallo's foreman, Robert V. Campbell, that Gallo be dis-
charged because he was a disgruntled employee and seemed to lack interest in his
work but Campbell felt that Gallo would be all right when he got over the way
he was feeling. Anderson did not press for Gallo's discharge and the matter
was dropped.'
On Tuesday, March 7, 1951, A. Knight, safety engineer for the Liberty Mutual
Insurance Company, which insured the Respondent for industrial accidents,
addressed a meeting of the Respondent's supervisory personnel, warning them
that if the Respondent's accident frequency rate continued to increase the Re-
spondent's premium rate might be increased. Knight referred to the case his-
tories of accidents sustained by some of Respondent's employees without
naming them , and expressed some concern over the increase in eye injuries.
It happens that Gallo had an eye injury in the plant on September 7, 1950,
and visited the Insurance Company's eye doctor on several occasions for medi-
cal treatment. On October 26, 1950, Gallo sustained an injury to his foot for
which he received medical treatment and compensation On October 13, accord-
ing to Gallo, he had a reoccurrence of his eye difficulty and visited the eye doctor
for further treatment. According to the records of the Insurance Company,
however, the October 13 visit was reported as a new eye injury and not a reoc-
currence of the September 7 accident.
In any event, shortly following the safety meeting, the Respondent decided
to tighten up on its accident prevention measures. Accordingly, Campbell, as
foreman of the machine shop, made a survey of the employees in his department
the following morning to find out "the men who were wearing goggles and the
men who were not wearing goggles, and who were thought should wear goggles."
Previously, the machine shop employees were not required to wear safety glasses
while working on the polishing machines. Campbell testified that he informed
Gallo the morning following the safety meeting "that it would be necessary for
him to wear goggles" while working on the polishing machine, particularly in
view of his previous eye injury. Gallo "remonstrated" that it was unnecessary
to wear glasses on this machine but Campbell retorted that the Company would
make that decision. It is evident that Gallo received this direction because he
1 While Campbell corroborated Anderson 's testimony that the latter wanted to discharge
Gallo on this earlier occasion , Campbell supplied a specific incident which he said gave
rise to Anderson 's desire to get rid of Gallo . Campbell testified that in February 1951
Gallo had left the plant during working hours, contrary to shop rules, to speak to a woman
outside the plant. As a result Anderson thought it best to discharge Gallo. Campbell,
however, spoke to Gallo, saying "If you want the job and you will turn over a new leaf,
and you will tend to business and let the women folks alone, I will go up and talk to Mr
Anderson ." Campbell then spoke to Anderson and they decided to give Gallo another
chance
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he asked Campbell whether he had to wear safety glasses even while
painting sheaves. Campbell said "I did" testified Gallo. "I thought it kind of
funny, even when I painted ."' According to Anderson , he learned from Campbell
that Gallo was not following instructions about wearing the safety glasses.' "It
made me decide right then and there we'd discharge him" testified Anderson, and
he so notified Campbell and Personnel Manager Willis . This was on Thursday or
Friday, March 8 or 9. The Respondent 's workweek ends on a Tuesday although
the employees are paid on the Friday following . Willis suggested that Gallo be
permitted to finish the workweek and that he be given notice of his discharge on
that day which would be Tuesday, March 13. Anderson agreed. This pro-
cedure while not customary was not unusual . Gallo was not given notice of his
impending discharge.
To corroborate the testimony of Anderson that the decision to discharge Gallo
was made on March 8 or 9 to become effective on March 13, the Respondent pre-
sented the testimony of Personnel Manager Willis , Foreman Campbell , and Pay-
master Richard Gilliland . Pertinent parts of the testimony of Willis and
Campbell have already been discussed . Gilliland testified that on Monday,
March 12, 1951 , Willis told him to make up Gallo's pay effective quitting time on
the following day. On Tuesday morning, March 13, Willis reminded Gilliland
to have Gallo 's pay ready . On the same day at 3: 30 p. m., Gilliland handed
Gallo's pay envelope to Willis . The latter called in Leonard, assistant foreman
in Gallo's department , since Foreman Campbell was home sick and instructed
Leonard to inform Gallo of his discharge . As mentioned above, Leonard carried
out these instructions.
There is another incident that occurred on the afternoon of Gallo 's discharge
worthy of mention . Employee Fred Gavin, who, it will be remembered , assisted
Gallo in distributing union authorization cards on the morning of March 13,
worked in a department other than Gallo ' s. Gavin noticed Superintendent
Anderson , Willis, and his foreman conversing in his department for about 5
minutes on the afternoon of Gallo's discharge . During this conversation Gavin
went to sharpen a tool and this task took him within a few feet of the trio. Gavin
testified he overheard Anderson say "Get rid of him " and heard nothing more.
Even if I credited Gavin's testimony I could not give it any probative value
because it refers to a fragmentary bit of conversation taken out of context,
without reference to any specific individual , even though as it turned out Gallo
wag the only employee discharged that day. I am therefore unable to infer
from Gavin's testimony that Superintendent Anderson necessarily referred to
Gallo when he allegedly said "Get rid of him." Gavin , it must be remembered,
2 According to Campbell, he did not instruct Gallo to wear glasses while painting the
sheaves Anderson testified that following the safety meeting "we decided [Gallo] should
wear glasses on any machine he was on "
3 Gallo testified that he followed the instructions to wear his goggles Campbell testified
that Gallo "was very stubborn" about wearing the glasses Gallo "I don't think, had them,
on for the balance of the week at any time" while on the polishing machine, testified
Campbell. The Respondent's personnel manager, Andrew Willis, also testified that he
personally observed that Gallo did not obey the instructions to wear his safety glasses.
I am satisfied that Gallo did not wear his safety glasses at all times while on the
polishing machine within the next day or two after receiving such advice from Campbell.
In any event, his reluctance to wear them which he made known did not sit too well with
Campbell I am satisfied that at the very least, Campbell reported Gallo's reluctance to
wear safety glasses on the polishing machine to Anderson. The latter, who several weeks
before wanted to discharge Gallo, now definitely made up his mind to do so. This time,
according to Campbell, he made no effort to Intercede In Gallo's behalf. "I put up with
quite a lot from Mr. Gallo" due to the labor shortage testified Campbell . "I told Mr.
Willis and Mr. Anderson If they wanted to let him go, It was all right with me."
BOSTON AND LOCKPORT BLOCK COMPANY 691
was just as likely a victim for potential discrimination as Gallo, since Gavin had
also openly distributed union cards that morning.
There is only one other item of evidence that might indicate an antiunon bias
on the part of the Respondent. On March 14, 1951, the day following Gallo's
discharge, the Union wrote to the Respondent requesting recognition as the bar-
gaining, representative of the employees. On May 18, a Board-conducted election
took place. Sometime in April 1951, before the election, Willis asked employee
Frank Pecora, according to the latter's testimony, whether he was "the leader
of the Forge shop." Later in the day Willis told Pecora "It was just a mistake" ;
that it was Pecora's brother "they were talking about." Pecora was confused
and contradictory as to whether the word "union" was used by Willis but there
appears to be no question but that Pecora reasonably interpreted Willis' question
regardless of the exact terminology used, as an inquiry, so intended, about the
Union This is the only evidence adduced by the General Counsel in support
of his allegation that the Respondent independently violated Section 8 (a) (1)
of the Act.
Concluding Findings
The General Counsel makes out a fairly strong prima facie case based primarily
on circumstantial evidence. On the issue of whether Respondent had knowledge
of Gallo's union activities on the morning of March 13, the day of his discharge,
I am constrained to find that it did have such knowledge despite the Respondent's
denial. In a plant relatively small, employing about 150 employees, with the
production and maintenance workers as well as the supervisory force using the
same entrance to the plant where Gallo openly handed out union authorization
cards, it would be flying in the face of all practical experience and expertise to
find that knowledge of Gallo's activity that morning was unknown to Respondent.
On the other hand, contrary to the contention of the General Counsel, I am
unable to find sufficient proof in the record to warrant the inference that prior
to March 10, 1951, Respondent had knowledge of Gallo's sympathy for unions
generally. From the various prounion signs chalked throughout the plant it is
clear that the Respondent knew that some of its employees were in favor of
unionization. Before communicating with the Union, Gallo participated in
discussions with some of his fellow workers about unions in general . There is
no proof in the record that Gallo's activity in this respect came to the attention
of management nor proof of any circumstances that would justify such an
inference.
On the issue of whether Respondent came to a decision to discharge Gallo
before March 13, I am constrained to find that based on a, preponderance of the
credible evidence that the Respondent did decide to discharge Gallo on Thursday
or Friday, March 8 or 9, before it became aware of or suspected Gallo's union
sympathy or activity. While there are some variances between the testimony
of Anderson, Willis, and Campbell on this issue, the main thread of their testi-
mony that a decision to discharge Gallo was made prior to March 13 hangs
together, and is in my opinion, on the whole credible. By so finding I do not
mean to imply that I fully credit the testimony of these three witnesses. I am
persuaded, however, that on an earlier occasion Anderson did want to discharge
Gallo and decided to do so on March 8 or 9 when Campbell reported Gallo's
reluctance and failure to wear safety glasses, as found above.
Some of the other reasons asserted by Respondent for Gallo's discharge, such
as the frequency of his accidents in the plant I do not credit . The shifting
nature of Respondent's reasons for discharging Gallo has, of course, given me
pause for thought. It is possible , of course , that Gallo was discharged because
'692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his union activity or sympathy , but given the quite adequate basis presented
by the Respondent that it had decided to discharge Gallo for a reason I believe
to be credible and before the Respondent had reason to believe or suspect that
Gallo was active on behalf of the Union or sympathetic to unions generally, is
there a sufficient basis, based upon the record as a whole , upon which a dispas-
sionate mind can ripen this possibility into a finding ? I believe not. - Or put
another way-if the state of the record is such that it permits nothing better
than a suspicion of discrimination , the General Counsel has not sustained his
burden of proof-there is not substantial evidence sufficient to sustain a finding
of discrimination . I therefore find, on the basis of the entire record , that the
General Counsel has not persuaded me by a preponderance of the substantial
evidence that the Respondent discharged Gallo for his union activity or sympathy.
On the remaining issue of whether the Respondent violated Section 8 (a) (1)
of the Act by Personnel Manager Willis ' interrogation of Pecora which I find
to be that type of inquiry normally found by the Board to be per se violative
of the Act, I do not think it would effectuate the policies of the Act to recom-
mend that a cease and desist order issue against the Respondent for a single,
isolated incident of the kind described . I will therefore recommend that the
complaint be dismissed in its entirety.
Upon the basis of the above findings of fact and upon the entire record of
the case, I make the following :
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2
( 6) and (7) of the Act.
2. International Association of Machinists , A. F. L., is a labor organization
within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in any of the unfair labor practices al-
leged in the complaint.
[Recommendations omitted from publication in this volume.]
AMERICAN SUPPLIERS, INCORPORATED and TRUCK DRIVERS UNION LOCAL
No. 89, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, PETITIONER . Case No.
9-RC-11,04. March 17, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Lloyd R. Fraker,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
98 NLRB No. 108.