H. N. Thayer Co.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1122 (N.L.R.B. 1952)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. N. THAYER COMPANY and NERVE J. BOURQUE, ET AL. and II. N.
THAYER'S WORKERS' COUNCIL
THAYER COMPANY and ROBERT A. SIDMAN, ET AL. and TIIA]:ER's
WORKERS' COUNCIL
UNITED FURNITURE WORKERS OF AMERICA , CIO, ET AL. and H. N.
THAYER COMPANY
UNITED FURNITURE WORKERS OF AMERICA, CIO, ET AL. and THAYER
COMPANY. Cases Nos. 1-CA341,1 1-CA-355,' 1-CB33,3 and 1-
CB-52. June 30,1952
Decision and Order
On May 15, 1951, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this consolidated case, finding that the Re-
spondent Companies and Respondent Union had engaged in and were
engaging in conduct violative of Section 8 (a) (1), (2), (3) and Sec-
tion 8 (b) (1) (A) of the Act, respectively, and recommending that
they cease and desist therefrom and take certain affirmative action, as
set -forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent Companies filed exceptions and supple-
mental exceptions to the Intermediate Report and briefs in support of
their exceptions; the UFWA and Viola Leger, a charging employee,
filed exceptions to the Intermediate Report, and the UFWA and the
charging employees filed a brief in support of such exceptions and of
other portions of the Intermediate Report. The Respondent Com-
panies were denied permission to file second supplemental exceptions
and a supporting brief on the ground that they were untimely.
On September 24, 1951, the Respondent Companies filed a "Motion
to Reopen Record, Adduce Additional Testimony," requesting the
opportunity to cross-examine various witnesses for the asserted pur-
poses of impeachment and contradiction on the basis of the affidavits
or statements such witnesses had given to Board agents during the
course of investigation and preparation for the trial of this case. The
Respondent Companies had requested, and been denied, permission
by the General Counsel to obtain these documents; the Respondent
Companies then sought to subpena the documents in question, but the
Trial Examiner quashed the subpena when, in answer thereto, the at-
torney representing the General Counsel at the hearing stated that
Section 203.90 of the Board's Rules and Regulations prohibited him
'The Respondent Company in this case is herein sometimes called Plant 2 and the
Council, Council 2.
2 The Respondent Company in this case is herein sometimes called Plant 1 and the
Council, Council 1.
1 The Respondent Union is herein sometimes called UFWA or the CIO.
99 NLRB No. 165.
H. N. THAYER COMPANY 1123
from producing the affidavits and statements' During the course of
the hearing, the attorney for the General Counsel had used some of
these affidavits to impeach the testimony of several witnesses. In
each instance the documents were offered for the use of the attorney
for the Respondent Companies, who, in each instance, declined to ex-
amine them.
The Respondent Companies now contend that they were sub-
stantially prejudiced by the action of the Trial Examiner in quashing
the subpenas and that the documents should now be made available
to them because they have reason to believe that affidavits would
show material statements inconsistent with material testimony of some
witnesses. The UFWA and the charging employees filed a memoran-
dum in opposition to the motion of Respondents to reopen the record,
arguing, inter alia, that the application, being based on mere belief,
was a "tour of investigation" in the hope that "they would find some-
thing which would aid them," 5 and failed to establish a prima facie
case for the production or inspection of the requested documents. The
Respondent Companies contend, however, that their request is essential
to a full, and, fair hearing, i. e., in accordance with due process, the
Federal Administrative Procedure Act, and Section 10 (b) of the Act.
As the record shows that they were accorded the privilege of inspect-
ing and using every document which the trial attorney used; the Re-
spondent Companies' contention amounts merely to an attack upon the
validity, udder the Federal Administrative Procedure Act and the
Rules of Civil Procedure, of the Board's rule prohibiting an unauthor-
ized disclosure by Board employees of files, documents, reports',
memoranda, or records of the Board. We find no merit to this con-
tention, whether , as is not clear, the Respondent Companies rely upon
4 Section 203.90 of Series 5, and Section 102.90 of Series 6, Board Rules and Regulations
read • "Board employees prohibited from producing files, records , etc., pursuant to subpena
duces tecum, prohibited from testifying in regard thereto ... without the written consent
of the Board or the chairman of the Board , if the official or document is subject to the
supervision or control of the Board ; or the general counsel if . . . subject to . . . the
general counsel . Whenever any subpena or subpena daces tecum , calling for records or
testimony as described hereinabove shall have been served upon any such persons . . .
he will , unless otherwise expressly directed by the Board or . . . the general counsel,
as the case may be , ap ear in answer thereto and respectfully decline [by ] reason of this
rule to produce or present such files , documents , reports, memoranda , or records of the
Board or give such testimony."
5 Quoting Arnstoin, et at. v . United States , 296 F. 946, 950 (C A. D. C.), cert. den.
264 U. S. 595 , sustaining the right of an assistant district attorney to claim that statements
made to him in his official capacity in the course of the investigation of that case were
privileged , and especially where, as theie, no proper foundation was laid for their intro-
duction by any offer of proof of the particular conflict alleged between the statements and
the testimony in chief.
U See Lemmon v. United States , 20 F. 2d 490 , 494 (C A. 8 ) ; Little v. United States, 93
F. 2d 401, 407 (C. A. 8) Such use of the documents is an obvious waiver of the privilege
otherwise invoked to exclude such documents
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 (b) or Section 7 (c) of the Administrative Procedure Act'
and upon Rule 48 (b) or 45 (b) of the Rules of Civil Procedure.'
When those acts are read together with Sections 6 and 11 (1) of the
LMRA, 1947,° and 5 U. S. C. A. Section 22,10 it seems reasonably clear
that the Board's rule in question is valid upon its face." As we find
no abuse in its application in this case, we hereby deny the Respondent
Companies' motion to reopen the record.
The request of the Respondent Companies for oral argument is
denied, because, in our opinion, the record and briefs adequately set
forth the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.12 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings,- conclu-
sions, and recommendations, with the following modifications.
1. We find, as did the Trial Examiner, that the Respondent Com-
panies violated Section 8 (a) (1) by various conduct, fully particular-
ized in the Intermediate Report, falling within the following general
7Although Section 7 (b) authorizes the officers presiding at hearings to issue subpenas
"authorized by law," their authority is expressly limited, being "subject to the published
rules of the agency and within its powers." The Board 's rules relating to the quashing
of subpenas , of which Section 203 90 is part , were judicially approved in N. L R. B. v.
International Typographical Union at al ., 76 F. Supp. 895 (D. C. N. Y.). And Section
7 (c) which grants every party "the right of reasonable cross examination " was not
intended " to eliminate the authority of agencies to confer sound discretion upon presiding
officers in the matter or its extent . The test is-as the section states-whether it is required
`for a full and true disclosure of the facts.' " H. Rept. No. 1980, on H. R. 5988, 79th
Cong-2nd Sess., p 37. See also N. L. R. B. v. Que8t-Shon Mark Brassiere Co., Inc., 185
F. 2d 285 (C. A. 2).
8 Both sections are inapplicable in situations involving privileged documents. See
United States V. Chadwick , 76 F. Supp. 919 (D. C. Ala.) ; Zimmerman v. Poindexter, 74 F.
Supp. 533 (D. C. Hawaii).
8 Section 6 authorizes the Board to make "such rules and regulations as may be necessary
to carry out the provisions of this Act" and Section 11 (1) authorizes the Board to revoke
subpenas "if in its opinion the evidence whose production is required does not relate to any
matter under investigation, or any matter in question in such proceedings , or if in its
opinion such subpena does not describe with sufficient particularity the evidence whose
production is required."
11 Section 22 authorizes executive departments to make rules relating to the custody,
use, and preservation of records , papers, and property affecting it. Such departments may
legally prohibit subordinates from producing such papers . Boske v. Comingore, 177 U. S.
459, Touhy v. Ragen, 340 U. S. 462, 463-468; cf . United States v. Andol8chek , 142 F. 2d,
30 LRRM 2171 , 503 (C. A. 2).
11 See N. L. R. B. V. General Armature and Manufacturing Company, 192 F. 2d 316
(C. A. 3), cert. den. 343 U. S. 957.
1i Our decision that the Trial Examiner 's rulings and his conduct of the hearing were
free from prejudicial error was reached after full consideration of the Respondent Com-
panies' contrary position . As his reasons , given during the course of the hearing or in
the Intermediate Report, for his rulings are sufficient , we find no need to cite the adds
tional authorities which sustain them.
is Although the Trial Examiner made several inadvertent misstatements in his Inter-
mediate Report, these mistakes were immaterial to his decision , and are to ours ; we
therefore find no need to enumerate them.
H. N. THAYER COMPANY 1125
categories : ( a) An attempt to interfere with the employees ' right to
self-organization by instructing foremen to survey the union activities
of employees; (b) threats of reprisal interfering with and restraining
employees in their right to self-organization , including threats to
shut down the plant ; ( c) threats of reprisal and promises of benefit to
restrain and coerce employees from bargaining except through repre-
sentatives of the Respondent Companies ' choosing , and not their own;
(d) the effectuation of such reprisals and benefits ; (e) threats of
reprisal to coerce employees into refraining from engaging in other
concerted activities for their mutual aid and protection against dis-
criminatory discharge ; and (f ) reprisals for certain assistance of the
labor organization and for engaging in concerted activities.
With respect to item ( a) the record shows that Plant 2 Superintend-
ent Tanner spoke to two supervisors , Dwyer and LeBlanc, expressing
an interest in determining which employees were "pro-CIO," and
instructing these supervisors to "keep [their] ears open" and to let
him know if they found out who such employees were.
Although the cases relied on by the Trial Examiner are not author-
ity for his finding that these instructions were violative of Section
8 (a) (1), a majority of the Board believes that such instructions are
unlawful whether or not they are accompanied by a direction that the
supervisors use unlawful means to obtain the information, and whether
or not the instructions are ever carried out. The instructions them-
selves suffer from two of the vices which stamp the interrogation by an
employer of an employee 's union activities as unlawful : (1) They
inject the employer into an area guaranteed by the Act to be the
exclusive concern of employees , and (2 ) they constitute an attempt to
obtain the kind of information which can be used by the employer
for no other purpose than to interfere with the employees ' right to
self-organization 14 As such they are violative of Section 8 (a)
(1)16
Included among the conduct we find violative of the Act under item
(c) and ( d), above, is that of the Respondent Companies in threaten-
ing to withhold a Christmas bonus from Plant 2 employees unless
they signed a council contract , and in actually withholding such bonus
because the contract was not signed by December 25 . In so holding
we recognize that in the past the payment of the bonus had been
31 See Standard-Coosa.-Thatcher Company, 85 NLRB 1358.
11 See Dixie Shirt Co., 79 NLRB 127, enfd. 176 F. 2d 969 ( C. A. 4). To the extent that
they are inconsistent with this holding, Atlantic Stages, 78 NLRB 553, and Empire Pencil
Company, 86 NLRB 1187 , are hereby overruled . Member Murdock dissents from this hold-
ing. He would find that such conduct did not violate the Act, because the supervisors
were in no way directed to use unlawful means to obtain this information , and it does
not appear that the instructions were intended to encompass the use of unlawful means.
215233-53-72
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required by the council contracts. We are satisfied, however, that the
clear import of the Respondent Companies' statements was that a
Council contract was a prerequisite to the bonus-not merely some
contractual obligation-and that the purpose of the statements and
action was to coerce the employees into accepting the Council as their
representative. We find, below, that the Councils were illegally domi-
nated. Hence the use of the bonus to compel allegiance to that union
violated Section 8 (a) (1).
Included under items (e) and (f), above, is the Respondents' notice
to all strikers that they would be hired after February 23, 1949, as
indeed they were, only as new employees, without seniority.',, Under
(f), we also note President Troendle's refusal to reinstate Cammile
Letellier because he made a speech on February 20, 1949, over the
Gardner radio station, in which he presented the UFWA's side of the
strike.
In addition, we find that the Respondent Companies interfered with
the employees' right to bargain through their representative by requir-
ing that the contracts, purportedly negotiated by the representative,
be circulated among the employees, for, their , individual ,approval and
signature Sr
The Respondent Companies argue generally that any and all find-
ings of independent violations of Section 8 (a) (1) are barred by Sec-
tion 10 (b) because the allegations in the complaint, on which they
are based, go beyond and are not inherent in or connected with the
original charges. We find no merit to this argument. While the
filing of a charge is a condition precedent to the Board's power to issue
a complaint, the charge does not serve the function of a pleading but
merely sets in motion the machinery of an inquiry by the Board.
"After such inquiry, the Board is entitled to issue a complaint alleging
such unfair labor practices as the Board believes to be susceptible of
proof," and may insert allegations of violations of sections of the
Act different from those charged.18
2. The Trial Examiner found, and we agree, that both Councils had
been conceived, created, and spgi ored by Respondent Companies,
that they had continuously thereafter enjoyed active support and
assistance, remaining subservient to the Respondent Companies' domi-
nating influence, and that the Respondent Companies thereby violated
1e Potlatch Forests, Inc., 87 NLRB 1193, set aside at 189 F. 2d 82 ( C. A. 9), on which
reversal the Respondent Companies rely, is inapposite, partially , because it involved strike
seniority rather than , as here, all seniority rights. See , however, The Wallingford Steel
Company, 53 NLRB 404.
17 Ewing-Thomas Corporation, 72 NLRB 1450 . See infra.
18N L. R. B. V. Samuel J. Kobritz, d /b/a Star Beef Company, 193 F. 2d 8 (C. A. 1),
enfg. 92 NLRB 1018.
H. N. THAYER* COMPANY 1127
Section 8 (a) (2) of the Act.'9 In concluding that both Councils were
illegally supported, and that this support and domination continued
into the 6-month period before the charge,- the Trial Examiner relied
on factors which, in the main, so persuasively establish the alleged
violations as to require no discussion here. However, we find merit in
the Respondent Companies' contention that their illegal support of the
Councils is not shown by their failure to resolve the representation
claim of the UFWA by filing a representation petition : as both the
UFWA and the Councils were not at that time in compliance with the
filing requirements of the Act, it would have been futile to invoke
Board processes.21 On the other hand, we,do And evidence of illegal
support of the Councils in Respondents' refusal to suggest, as re-
quested, some other method by which the UFWA could establish its
claimed majority.22 And, in addition to the factors relied upon by the
Trial Examiner, we find further evidence of domination of the Coun-
cils in the fact that the Respondent Companies so extensively inter-
fered with the Councils' administration as to make the Councils act
as their agents rather than permitting them to serve as independent
representatives. We find such interference in the requirement that
the Councils secure the signatures of individual employees on a con-
tract purportedly negotiated by their representative.23 Thus subju-
gated to the will and designs of the Respondent Companies, the
Councils did not, and in fact could not, function as a bargaining
representative in any realistic sense, as is shown partly by the fact
that the Respondents took unilateral action 'on bargainable matters
without protest from the Councils. At most, they served as a medium
for execution of a personnel policy unilaterally formulated by the
Respondents.24
19 In their brief, the Respondent Companies question the validity of the 8 (a) (2)
charges on the ground that the Trial Examiner failed to find that Robert Sidman, Robi-
chaud , or either of them , were acting for the UFWA when they filed the 8 (a) (2)
charges. As the record shows that the UFWA was in compliance when the complaint
issued, a complaint could legally have issued on'its charge , we see no possible "fronting"
question.
2O The Respondent Companies object to the admission of evidence of events antedating
the date of filing and service of the original charge. Such evidence is clearly admissible
as background evidence , as that sheds light on events within the 6-month period of limita-
tion. N. L. R. B . v. Frederica Clausen , d/b/a Luzerne Hide d Tallow Co., 188 F. 2d 439
( C. A. 3), enfg. 89 NLRB 989 ; Azelson Manufacturing Company, 88 NLRB 761.
21 See Herman Loewenstein, Inc., 75 NLRB 377.
22 See N. L. It . B. v. Harr18 -Woodson, 162 F. 2d 97, 99 (C. A 4).
23 Although such conduct violates Section 8 (a) (1) because it interferes with the em-
ployees' right to bargain collectively through representatives , it also violates Section 8
(a) (2) which proscribes conduct which interferes with the "administration of any labor
organization ." See Ewing-Thomas Corporation , supra.
24 The Western Union Telegraph Company, 17 NLRB 34, 104 if.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. For the reasons fully stated in the Intermediate Report,25 we find
that the 17 discharges made on January 10-11, 1949, were discrim-
inatory in violation of Section 8 (a) (3).26
4. Like the Trial Examiner, we find that the strike voted on Jan-
uary 25, and commenced on January 26 and 27, 1949, was an unfair
labor practice strike to protest these discriminatory discharges of
January 10-11. We further find that the strikers are entitled to re-
instatement, unless there is merit to any of the Respondent Companies
several contentions relating to the question of whether or not the strike
and the strike conduct constituted protected concerted activity.
The Respondent Companies contend (a) that the Board is bound by
the decisions of the Massachusetts courts which enjoined the picketing
on March 15, 1949, finding illegality both in the purpose and in the
conduct of the strike; (b) that, even if such decisions be completely
disregarded, the nature and type of picketing would, under the Board's
own standards, bar reinstatement; (c) that the strike was unprotected
because it constituted a breach of the no-strike clauses contained in
the Council contracts; (d) that the charging parties had lost all em-
ployee rights under the Act by striking in violation of Section 8 (d)
of the Act; (e) that the strike was illegal in that it involved secondary
activity violative of Section 8 (b) (4) (B) of the Act; and (f) that,
even if the strike was otherwise protected activity, certain strike in-
cidents warranted the refusal to reinstate the participants. We shall
consider these contentions seriatim.
a. The Massachusetts court decisions
On January 31, 1949, Plant 1 and Plant 2 separately petitioned
Commonwealth Courts in Equity, at Worcester and at Boston, to en-
join the strikes as illegal in purpose and method, alleging that the
strikes violated the no-strike clauses of the Council contracts then in
effect and involved mass picketing and coercion. One court dismissed
the petitions on the ground that the strikes were peacefully conducted;
the other granted the requested injunctions, holding that a union may
not legally strike for recognition during the term of contracts, valid
and binding upon their face, recognizing another union and containing
no-strike clauses, and finding further that unlawful acts had been com-
25 However , in view of the contract provision for layoffs in order of seniority, we do
not adopt the Trial Examiner 's inference that the retention of 9 of the 17 In its employ,
when others were laid off, refuted the claim that those later discharged were unsatisfactory
employees.
26 In its brief, the Respondent Companies take the position that , as all but one of these
employees participated in the picketing which accompanied the strike, these discriminatees
placed themselves in the same position as the strikers . Obviously this contention does
not affect the determination that these employees were discriminatorily discharged before
the strike , although it does affect he question of whether or not the Board will order
them reinstated.
H. N. THAYER COMPANY 1129
mitted "by reason of the combination of persons." The Union ap-
pealed the decisions to the Massachusetts Supreme Judicial Court on
the grounds that the controversy was moot, the findings unsupported
by the evidence, and the State court without jurisdiction over the dis-
pute because the companies were subject to the Federal Act. The
court affirmed the decrees, finding that the pendency of the present
charges showed that the controversy was not moot, that it could not
review the trial judge's findings of fact, but that there was no conflict
with the Federal Act because "policing of such conduct is left wholly
to the States." (27 LRRM 2133.)
The Massachusetts courts enjoined the picketing on the separable
grounds that the strike was for an illegal purpose and was conducted
in an illegal manner. The Respondent Companies contend that these
decisions are binding upon this Board and require dismissal of the
Section 8 (a) (3) allegations of the complaint. From the fact that
"'Congress designedly left open an area for state control' " in relation
to "coercive tactics in labor controversies," including illegal methods
of striking (International Union, U. A. W. iA. v. W. E. R. B., 336 U. S.
516), the Respondent Companies conclude that the Federal policy re-
quires accepting State determinations of illegality (N. L. R. B. v. Fan-
steel Mettalliurgical Co., 306 U. S. 240). The charging parties and
the UFWA construe the decrees as dependent upon the findings that
the strikes were for recognition and in contravention of the no-strike
clauses in the Council contracts. As the contracts were "part of a
systematized interference with the employees' rights to self-organi-
zation . . . themselves [Federal] unfair labor practices," they urge
that any State determination of the legality of the strike is irrelevant.
We hold that in deciding the issues before us in this case this Federal
Board is in no respect bound by the decisions of the courts of Massa-
chusetts, either as to the legality of the purpose of the strike or the
legality of the manner in which the strike was conducted. The Act
has preempted the field of peaceful strikes affecting commerce
(U. A. W. v. O'Brien, 339 U. S. 454; Amalgamated Ass'n v. W. E. R. B.,
340 U. S. 383). The objectives of such strikes may be judged under
the standards provided by the Federal Act alone, and judgment may
be made only by the agencies designated by Congress in the statute
to make them. Consequently the State court had no power to pro-
scribe the present strike on the ground that its objective failed to
accord with Massachusetts' labor relations policy. The legislative
history of the 1947 amendments to the Act shows that this Board,
too, was given regulatory power over the area of nonpeaceful means
employed in labor controversies. The Board was given this power
not only to determine, for example, whether violence on a picket line
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was of such character as to justify discharge of strikers,27 but also for
the purpose of deciding whether it coerced or restrained employees in
the exercise of their statutory rights and thus constituted an unfair
labor practice by a labor organization within the meaning of Section
8 (b) (1) (A).28
Plainly, the Board is not bound by a decision as to the objectives
of the strike which the State court had no power to make. Nor is it
bound by that court's ruling respecting the character of the means.
The Act vests the Board with "exclusive primary jurisdiction over all
phases of -the administration of the Act." California Ass'n v. Bldg.
d Const. Trades Council, 178 F. 2d 175, 177 (C. A. 9). Effectuation
of this objective necessarily requires that the Board's conclusions, as
to whether the purpose or means of the instant strike "illegalize" it
for purposes of the Act, should not turn upon "whatever different
standards the respective states may see fit to adopt." N. L. R. B. v.
Hearst Publications, 322 U. 5.111,123.
b. Tihe nature of the picketing
The Respondent Companies further contend that, even if the State
decisions be completely disregarded and the picketing evaluated solely
by standards laid down by Board decisions, the charging parties are
barred from reinstatement by reason of the nature and type of the
,picketing they engaged in or aided and abetted. Under the Board's
standards, an employer is justified in discharging or refusing to re-
instate employees who use force, violence, physical obstruction, or
threats thereof in an attempt to prevent employees desiring to do so
from entering or leaving the employer's premises 29 The question is
whether or not it may reasonably be inferred from the manner of
picketing that the "conduct was calculated or tended to bar employ-
ees' ingress and egress."
In this case, the largest number of pickets-between 25 and 60 at
Plant 2 and 20 and 160 at Plant 1-appeared at the times when the
employees normally came to or left the plants.30 Although the pickets
circled in front of the entrances to the plants, they obediently broke
their ranks to permit employees to enter or leave when the police,
who were present at all such times, asked them to do so. The record
shows that the pickets had been specifically instructed by their strike
27 See 1 Leg. Hist. 434 , 562-563.
28 2 Leg. -Hist. 1021 , 1196, 1207-1208.
°° Standard Oil Company of California ( El Segundo Refinery ), 91 NLRB 1540 ; The Intl
Nickel Company, Inc., 77 NLRB 289; Dearborn G lass Company, 78 NLRB 801, 808.
sn The cases which involve situations where "inimical superior forces . .. clearly con-
veyed the unspoken threat . . . of bodily harm ," are clearly distinguishable from a case
which involves merely a large number of employees. See Cory Corporation, 84 NLRB 972;
cf. Sunset Line and Twine Company, 79 NLRB 1487 , 1503; Bitner Fuel Company, 92
NLRB 953.
H. N. THAYER COMPANY 1131
leaders to permit nonstrikers to enter and leave the plant, and there
is no evidence that any employee was refused prompt entry. Under
these circumstances, the Trial Examiner found that the picketing was
conducted in a lawful manner and refused to speculate as to whether
it would have been so conducted had the police not been present. Like
the Trial Examiner, and for the reasons more fully stated in the
Intermediate Report, we find no basis for inferring that the pickets
intended or sought to prevent employees from entering or leaving the
plants. Accordingly, we find that the picketing was lawfully con-
ducted.
c. The no-strike clauses
As noted above, the State court found that the strike was illegal, in
part, on the ground that it constituted a breach of the no-strike clauses
then contained in the Council contracts which the court presumed to be
valid. It is not clear whether, or to what extent, the Respondent
Companies intend, by their reliance upon the State decisions and other
citations in tlieir'bfi'efs, to argue' here`that,tlie strikes constituted un-
protected concerted activity because they contravened no-strike
clauses. We have found in this case that the contracting Councils
were, and are, illegally supported and dominated organizations whose
continued recognition violates Section 8 (a) (2) and whose infirmities
warrant our invalidating any contract to which they are privy 31
Under these circumstances, it would be anomalous indeed to accord
the no-strike clauses any validity. We therefore find, as did the Trial
Examiner, that the strike was not barred by the no-strike clauses con-
tained in the illegal council contracts. 32
d. Section 8 (d)
The Respondent Companies also contend that the charging individ-
uals had lost their status as employees by engaging in a strike within
the 60-day period specified in Section 8, subsection (d). Section 8 (d)
provides certain procedures to be followed by a party to a collective bar-
gaining agreement who seeks to terminate or modify the contract. As
the Respondent Companies never recognized the UFWA as the repre-
81 The fact that the State court found the contracts valid on their face is, in view of
Sections 8 ( a) (2) and 10 ( c), immaterial . See supra, section a ; Sole Electrtc Co. v.
Jefferson Electric Co., 317 U . S. 173.
as See .,Julian Freirich Co.,- 86,,NLRB 342, footnote 17 ;,Rockaway ' News ,$upply Com-
pany, 95 NLRB 336. For the reasons stated in Board Member Houston 's dissent in Na-
tional Electric Products Corp ., 80 NLRB 995. Board Members Houston and Styles would
further find that the no-strike clauses were inapplicable because the strike was an unfair
labor practice strike, over matters not contemplated by the contract . In view of the
Board's present ruling, Chairman Herzog and Member Murdock do not find it necessary
here to reach or to pass upon this additional ground.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of their employees, it was not a party to a contract; 33 accord-
ingly, we find that Section 8 (d) was not applicable. Moreover,
Section 8 (d), by its terms, applies only to strikes to terminate or to
secure a modification or interpretation of a collective bargaining con-
tract 34 The finding that the present strike was an unfair labor prac-
tice strike to protest certain discriminatory discharges therefore takes
the strike itself outside the purview of Section 8 (d).
e. Section 8 (b) (l) (B)
Plant 1 and Plant 2 employees picketed on various occasions at
Plant 2 and Plant 1. The ranks of the picketers were augmented by
UFWA members from nearby companies. In one case, the outside
employees were warned by their Employer that they would forfeit a
day's work if they reported late, and a majority of them were so
penalized because they had earlier participated in the picketing at
Plants 1 or 2. The Respondent Companies contend that the strike
by the employees of Plants 1 and 2 was illegal in that it constituted,
or at least involved, activity violative of Section 8 (b) (4) (B) of
the Act. Section 8 (b) (4) (B) prohibits strikes and boycott activities
to force an employer, other than the employer of the strikers, to
recognize or bargain with a labor organization which has not been
certified by the Board as the representative of his employees. As we
have found that the purpose of the present strike was to protest dis-
criminatory discharges, we necessarily find Section 8 (b) (4) (B) in-
applicable. Moreover, it is clear that Congress did not intend to pro-
hibit recognition strikes against the primary employer ,- or otherwise
to prohibit "primary means which unions traditionally use to press
their demands on employers." 36 In view of our adoption of the Trial
Examiner 's finding that Plants 1 and 2 constituted a single integrated
employer, the activities of employees of Plants 1 and 2 amounted to a
as On October 26, 1948, the UFWA business agent, Binnall, wrote Director Carney ad-
vising him that Local 154, UFWA, represented a majority of the Thayer employees who
had voted on October 25 to have the current Council contracts , terminating December 15,
1948, administered by the UFWA . The letter requested negotiations and gave notice of
intent to terminate the Council contracts and of intent to strike , as required by Section
8 (d) of parties to the contract . On November 9, employees who were officers in the
Councils before October 25 sent a letter , drafted by Binnall, to Carney, confirming Binnall's
authority to give the strike notice contained in his letter of October 26 . The Council con-
tracts were reexecuted on December 15, 1948, and January 15 , 1949, after having been
signed individually by a majority of the employees in each plant . The UFWA employees
struck on January 26 and 27 , 1 949. On the basis of these facts, we find no merit to the
Respondent Companies ' contention that the U FWA is estopped , by its request and notice
of October 26, 1948, from asserting that it was not required to give notice under Section
8 (d). Obviously , a bare request that a union be substituted for the contracting union does
not suffice to effect such a substitution.
" In this connection , see Wilson & Company, Inc., 89 NLRB 310.
95 The Howland Dry Goods Company, et at, 85 NLRB 1037, enfd . 191 F. 2d 65 ( C. A. 2).
86 See the general discussions contained in The Pure Oil Company, 84 NLRB 315; Santa
Ana Lumber Company, 87 NLRB 937; and Western, Inc , 93 NLRB 336.
H. N. THAYER COMPANY 1133
primary strike at the primary situs and thus were lawful. Although
the Union enlisted the aid in picketing of individuals who were em-
ployees of other employers, there is no evidence that it induced such
employees to strike or otherwise refuse to work for their employers in
order to force the Respondent Companies to recognize the UFWA.
Accordingly, we need not here decide whether an employer would be
justified in discharging or refusing to reinstate employees who are
found to have engaged in conduct which violated Section 8 (b) (4).
f. The individual incidents
Apart from their contention that the strike was generally unpro-
tected, the Respondent Companies contend that many of the individual
strikers are not entitled to reinstatement because of their misconduct
on the picket line or in connection with other activities in support of
the strike. After careful consideration of the many incidents,37 fully
detailed in the Intermediate„Report, we-agree with the Trial Ex-
aminer's holdings that these incidents, many of which involve conduct
which we do not commend, are insufficient to justify the Respondent
Companies' refusal to reinstate the individuals involved or to warrant
our refusing to order them reinstated. Although we do not approve
her act, we do not agree with the Trial Examiner's finding that Viola
Leger forfeited her right to reinstatement by throwing one broken
bottle into a driveway.38 None of the individual incidents involved
actual restraint, violence, or coercion, or conduct which exceeded the
animal exuberance and mutual harassment characteristics of such
strike situations. Accordingly, we do not here reach the questions
which the Respondent Companies raise in relation to conduct which
would, if authorized, violate Section 8 (b) (1) (A).
5. The Trial Examiner found, and we agree, that the Respondent
Unions violated Section 8 (b) (1) (A) of the Act through the conduct
of Silverman, the agent of both the International and Local 154, in
kicking Ivan Brodeur and shoving Edward Magner. In the absence
of evidence of agency, we find it unnecessary to decide whether or not
visits by a superior force of strikers to the homes of nonstrikers
violated Section 8 (b) (1) (A).
6. For the reasons stated by the Trial Examiner, we find that the
Respondent Companies were not privileged to refuse to reinstate the
strikers at Plant 1 because of the asserted unwillingness of some of
37 The Respondent Companies except to the factors which the Examiner considered as
the background in passing upon the various incidents set out in the Intermediate Report.
We find merit in this exception. In reaching the same conclusions as the Trial Examiner
did, we have appraised each incident without regard to the length, nature, physical or
psychological setting of the strike.
88 See Kansas Milhng Co ., 86 NLRB 925, remanded as modified on other grounds in 185
F. 2d 413 (C. A. 10).
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the nonstrikers to work with those whom they had labeled "molesters."
7. We find no merit in the Respondent Companies' contention
that many of the charging employees are not entitled to reinstate-
ment because they failed to apply within a reasonable time. after the
picketing,39 or failed to apply for reinstatement or rehire at all.
The record shows, and we find, that all employees, with the exception
of Emile LeBlanc-who had been laid off in October and reapplied
before the strike, but not after-applied within a few weeks after
Business Agent Binnall instructed them to return to work. How-
ever, like the Trial Examiner, we find that, in any event, the strikers
were under no obligation to apply for reinstatement because the
Respondent Companies placed illegal conditions upon their rein-
statement by the announcement that those who did not return to work
by February 23, 1949, would be hired only as new employees, without
seniority. Accountant Sinding admitted that all strikers would have
had to return, if at all, as new employees with loss of pay and seniority,
an illegal condition which relieved such strikers as had, not applied
from any obligation to do so in order to perfect their right to rein-
statement49 We therefore find that the Respondent Companies refused
to reinstate all strikers, including Emile LeBlanc, from the date that
they were instructed by the UFWA to return to work. We shall
order that they be given back pay from March 15, 1949, when they
were instructed to return to work, until such time as they are un•
conditionally offered reinstatement with full seniority rights.41
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board- hereby orders that :
A. The Respondents Thayer Company and H. N. Thayer Company,
Gardner, Massachusetts, their officers, agents, successors , and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of
America, CIO, or in United Furniture Workers of America, CIO,
Local 154, or in any other labor organization, and from encouraging
membership in Thayer's Workers' Council and in H. N. Thayer's
8° In requesting the Board to find that any application more than 1 week after the ces-
sation of the picketing was unreasonably late, Respondent Companies rely on The Golden
Circle Corp ., 64 NLRB 817, and Julius Breckwoldt & Son, Inc., 9 NLRB 94, which are
inapposite . They involved economic strikes and applicants who had been replaced under
circumstances which established the good faith of the employer in replacing them within
a week after the termination of the strike . The Respondent Companies' request is
accordingly denied.
+° The Wallingford Steel Company, 53 NLRB 404.
41 In the case of Viola Leger , we toll the accumulation of back pay for the interim be-
tween the issuance of the Intermediate Report and this Decision.
H. N. THAYER COMPANY 1135
Workers' Council by discriminatorily discharging employees, by dis-
criminatorily denying reinstatement to strikers, or by in any other
manner discriminating with regard to hire and tenure of employment
or any terms or conditions of,employment.
(b) Dominating or interfering with the formation or administra-
tion of or contributing support to Thayer's Workers' Council and
R. N. Thayer's Workers' Council.
(c) Threatening to close down their plants, to weed out employees,
to withhold and actually withholding Christmas bonuses, and to dis-
charge employees for discussing the International or Local 154 or
for engaging in union activities, instructing supervisory employees
to engage in surveillance of the union activities of employees, or in
any manner interfering with, restraining, or coercing their employees
in the exercise of the right to self-organization, to form labor organ-
izations, to join or assist United Furniture Workers of America, CIO,
or United Furniture Workers • of America, CIO, Local 154, or any
other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will
effectuate the policies of the Act :
(a) Rescind forthwith their discriminatory policy of denying
seniority to all participants in the strike of January 26, 1949, who did
not return to work by February 23, 1949, as well as to all employees
}vho_ did not, work during the strike, and restore said, employees to the
seniority they would have enjoyed absent such discriminatory policy.
(b) Offer to Robert Sidman, Emile LeBlanc, and .the employees
whose names appear on Appendices C and D of the Intermediate Re-
port, including Viola Leger, but excluding Charles Morse and Edgar
Breau, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other
rights and privileges.
(c) Make whole the above-named individuals who are to be of-
fered reinstatement and the personal representative of Edgar Breau
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy" for any loss of pay they may have suffered by
reason of Respondent Companies' discrimination against them, and
make whole the employees of Plant 2 who were eligible to receive same,
for the loss of the Christmas bonus discriminatorily withheld in De-
cember 1948.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Withdraw and withhold recognition from Thayer's Workers'
Council and H. N. Thayer's Workers' Council, as the representatives
of any of the employees of Respondent Companies for the purpose
of dealing with Respondent Companies in matters of grievances, labor
disputes, rates of pay, wages, hours of employment, or other conditions
of employment, set aside all contracts with said labor organizations,
and completely disestablish them as such representatives.
(e) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under this
recommended order.
(f) Post at their plants in Gardner, Massachusetts, copies of the
notice attached to the Intermediate Report and marked "Appendix
E." 42 Copies of said notice, to be supplied by the Regional Director
for the First Region, shall, after being duly signed by representatives
of Thayer Company and H. N. Thayer Company be posted by
Respondent Companies immediately upon receipt thereof and be
maintained for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable precautions shall be taken by Thayer
Company and H. N. Thayer Company to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps Re-
spondent Companies have taken to comply herewith.
B. The Respondents United Furniture Workers of America, CIO,
United Furniture Workers of America, CIO, United Furniture
Workers of America, CIO, Local 154, their officers, representatives,
successors, assigns, and agents, including Saul Silverman, shall:
1. Cease and desist from :
(a) Restraining or coercing employees of Thayer Company and H.
N. Thayer Company, Gardner, Massachusetts, in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which, it is found, will
effectuate the policies of the Act :
(a) Post at the business office of Local 154 in Gardner, Massachu-
setts, copies of the notice attached to the Intermediate Report and
42 This notice, however, shall be, and it hereby is. amended by striking from line 3
thereof the words i'The Recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order," and adding the name of Viola Leger to the list
of employees . In the event that this Order is enforced by a decree of the United States
Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant To a Decree of the United States Court of Appeals , Enforcing
An Order."
H. N. THAYER- COMPANY 1137
marked "Appendix F."- Copies of said notice, to be supplied by the
Regional Director for the First Region shall, after being signed by
representatives of Local 154 and the International, be posted by them
immediately upon receipt thereof and be maintained by them for at
least sixty (60) consecutive days thereafter in conspicuous places in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by them to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Additional copies of such notice, to be furnished by the Re-
gional Director for the First Region, shall be signed by United Fur-
niture Workers of America, CIO, United Furniture Workers of
America, CIO, Local 154, and their agent, Saul Silverman, and forth-
with returned to the aforesaid Regional Director. These notices shall
be posted, Thayer Company and H. N. Thayer Company willing, on
their bulletin boards, where notices to employees are customarily
posted and shall remain posted for a period of sixty (60) consecutive
days thereafter.
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of Order what steps they have
taken to comply herewith.
IT IS HEREBY ORDERED that the complaints be, and they hereby are,
dismissed insofar as they allege that Respondent Companies have dis-
criminated with respect to the hire and tenure of employment of
Charles Morse and that the International and Local 154 by their
agents, Thomas Binnall, Lubert Taylor, and Toivo Friedlander, have
restrained and coerced the employees of Respondent Companies.
Member Peterson took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
STATEMENT OF THE O`ASE
Upon charges duly filed by the individuals named in Appendices A and B
attached hereto, the General Counsel of the National Labor Relations Board, by
the Regional Director for the First Region (Boston, Massachusetts), issued a
complaint dated April 14, 1950, against H. N. Thayer Company and Thayer Com-
pany, herein called Respondent Companies and also Plant 2 and Plant 1, respec-
tively, alleging that they had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2), and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. In addition, upon charges filed by Respond-
ent Companies, the aforesaid Regional Director issued a complaint dated April
14, 1950, against United Furniture Workers of America, CIO, herein called the
International, and United Furniture Workers of America, CIO, Local 154, herein
43 See footnote 42 (with the exception of the addition of the name of the employee).
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Local 154, and collectively referred to herein as the Unions and Respondent
Unions, and Saul Silverman, Thomas Binnall, Lubert Taylor, and Toivo Fried-
lander as agents of Respondent Unions, alleging that they had engaged in and
were engaging in unfair labor practices affecting commerce within the weaning
of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the Act. Copies of the
charges and complaint were duly served upon Respondent Companies and Re-
spondent Unions. The aforesaid Regional Director, on April 14, 1950, ordered
consolidation of the above-enumerated cases.
With respect to unfair labor practices, the complaint against Respondent Com-
panies, as amended, alleged that (1) Plants 1 and 2 constituted a single employer
within the meaning of the Act ; (2) Plant 2 had discharged and thereafter refused
to reinstate 1S employees whose names and dates of discharge appear in Appendix
C annexed hereto, and in December 1948 and January 1949 failed to pay its
employees a customary Christmas bonus and New Year's Day holiday pay, because
they joined and assisted the Unions and because they refused to join or assist
H. N. Thayer's Workers' Council, herein called Council 2; (3) Respondent Com-
panies had on or about July 15, 1948, and thereafter by certain enumerated con-
duct dominated and interfered with the administration of Thayer's Workers'
Council and H. N. Thayer's Workers' Council, herein called Council 1 and Coun-
cil 2, respectively, and had contributed support to them; (4) Respondent Com-
panies by certain enumerated conduct since July 15, 1948, had interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
by the Act ; `(5) - the employees"bf Plant '2 and Plant 1 had gone on strike on
January 26 and 27, 1949, respectively, because of the unfair labor practices by
Respondent Companies which thereafter denied reinstatement to those of them
listed in Appendix D attached hereto, on or about the dates indicated thereon ;
and (6) Plant 1 did discharge Robert A. Sidman and lay off Emile LeBlanc on
October 28, 1948, and on January 15, 1949, did refuse to reinstate LeBlanc because
they joined or assisted the Unions or because they refused to join or assist
Council 1.
With respect to unfair labor practices by Respondent Unions, the complaint
alleged that Respondent Unions had (1) threatened to inflict and did inflict
bodily injury upon nonstriking employees because they did not join the strike;
and (2) visited the homes of nonstriking employees by a numerically superior
number of striking employees. Answers filed by all Respondents and later
amended denied the commission of any unfair labor practices and raised certain
defenses which are treated hereinafter.
Pursuant to notice, a hearing was held between June 26 and December 12,
1950, at Gardner, Massachusetts, before the undersigned Trial Examiner, Martin
S. Bennett, duly designated by the Chief Trial Examiner. All parties were
represented by counsel and participated in the hearing, although in the latter
stages of the hearing counsel appearing for Council 1 and Council 2 withdrew
his appearance for the latter. Full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues was afforded all
parties. Numerous motions filed both prior to the hearing and during the
hearing were passed upon including the denial of motions by Respondent Com-
panies to limit and strike certain- allegations of the complaint as beyond the
scope of the charges (Cathey Lumber Company, 86 NLRB 157, enforced 185, F.
2d 102 (C. A. 5) and Southern Furniture Manufacturing Company, 91 NLRB
1159) ; to dismiss the allegations of the complaint against Respondent Com-
panies; to declare a mistrial because during the pendency of the hearing the
then General Counsel resigned and for a brief period until his successor was
appointed, the representative of the General Counsel allegedly had no authority
H. N. 'THAYER COMPANY 1139
to proceed with the trial ; and to amend the allegations of the CB complaints
(Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547).
On two occasions, at the request of counsel, views were taken of the premises of
Respondent Companies.
At the close of the hearing, the undersigned reserved ruling on several motions
which are disposed of by findings hereinafter made. At the conclusion of the
hearing, counsel waived the right to argue orally before the undersigned and
were afforded an opportunity to file briefs and/or proposed findings of fact and
conclusions of law. Thereafter the time for such filing was extended by the
Chief Trial Examiner on motions duly made. Briefs have been received from
the General Counsel, Respondent Companies, and from counsel for the claimants
and Respondent Unions.
Upon the entire record in these cases, and from his observation of the witnesses
and the premises of Respondent Companies, the undersigned makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANIES
H. N. Thayer Company, Plant 2, is a Pennsylvania corporation which has its
principal offices and place of business at Gardner, Massachusetts, where it is
engaged in the manufacture, sale,,,and distribution of baby carriages, baby
strollers, doll carts, and related products. It annually purchases large quanti-
ties of steel, fabrics, rubber, and wood valued in excess of $300,000, of which
approximately 90 percent is sold and shipped to its plant from points outside
the Commonwealth of Massachusetts, and annually sells finished products
valued in excess of $300,000, of which approximately 90 percent is shipped to
points outside the Commonwealth of Massachusetts.
Thayer Company, Plant 1, is a Massachusetts corporation which has its
principal offices and place of business at Gardner, Massachusetts, where it is
engaged in the manufacture, sale, and distribution of baby carriages, baby
strollers, doll carts, and related products. It also annually purchases large
quantities of steel, fabrics, rubber, and wood valued in excess of $300,000, of
which approximately 90 percent is sold and shipped to the plant from outside
the Commonwealth of Massachusetts, and annually sells finished products
valued in excess of $300,000, of which approximately 90 percent is shipped to
points outside the Commonwealth of Massachusetts. The undersigned find that
each of Respondent Companies is engaged in commerce within the meaning of the
Act.
Furthermore, the record is replete with evidence that Plants 1 and 2 constitute
parts of a single integrated enterprise under common ownership and control.
Thus, William Troendle is president, a director, and a stockholder of both Com-
panies. Philip Carney and Joseph Carney are directors of both concerns and,
in fact, the latter two, together with Troendle, comprise the directors of Plant
2. The larger part of the stock of both Companies is owned by members of the
Carney and Troendle families as well as by Wilder Industries, a Massachusetts
corporation whose stock is held by Joseph Carney and members of his family.
Not only do both concerns manufacture related products, but these products,
together with the products of other concerns in which Joseph Carney has a
substantial interest, are sold by the same sales organization. That organization
is Thayer, Inc., a Massachusetts corporation whose office is in Gardner, Mas-
sachusetts, and which is not directly involved in this proceeding ; all of the
voting stock of the latter is held by members of the Carney family, and its
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directors include Joseph Carney, Troendle, and members of the Carney family.
In fact, the products of all plants handled by the sales organization are related
products for children and it appears that the sales organization, Thayer, Inc.,
actually determines the amount of production for Plants 1 and 2, involved
herein.
A number of the manufacturing operations of Respondent Companies are
.closely similar or identical as the plants make related but different products
based upon the allotment of samples to each by the designers in the sample
room, which is located at Plant 1. There is considerable evidence of certain
parts being manufactured by one concern for the other, payment for which is
duly made by one to the other. They also have a common purchasing policy ;
thus, John Theis, who is purchasing agent at Plant 1, purchases merchandise
for both plants but is reimbursed for his services only by Plant 1, which ap-
parently is paid a fixed sum each month by Plant 2 for his services. A similar
situation exists with respect to payment for the services of Stephen Sinding,
whose office is at Plant 1, who prepares cost estimates and does personnel work
for both plants, and who in fact determines production costs for both plants.
in large measure, deliveries of merchandise are made to the respective Com-
panies, although steel purchases are shipped to the railroad siding at Plant 1
by railroad flat car and then delivered to Plant 2, approximately 1 mile distant,
by Plant 1 trucks or by those of outside truckers. It also appears that both
plants share the cost of developing samples at the sample room at Plant 1.
There is evidence, although the transaction is not completely explained by the
record, that during the 18-month period from July 1, 1947, through December
1948, Plant 2 was operated by Plant 1; according to Plant Superintendent Hugh
Tanner, the assets of Plant 2 were transferred to Plant 1 on July 1, 1947, but
were returned on January 1, 1949. During that period all employees of Plant 2
as well as Plant Superintendent Tanner were placed on the payroll of Plant 1,
although separate records were maintained. At least until January 1949, the
bookkeeping and payrolls for Plant 2 were handled at Plant 1, although since
that date Plant 2 has handled its own payroll. ,
Both concerns pursue a common labor policy as will appear hereinafter in
more detail. William Troendle, president of both Companies, maintains an
,office at Plant 1 and participates in negotiations of labor contracts at both Com-
panies. Joseph Carney and John Theis; neither` of whom maintains offices at
Plant 2, also participate, although to a lesser degree, in the negotiations of labor
,contracts at both Companies. As will appear below, Carney delivered parallel
speeches at both plants late in 1948 relating to the labor policy of the respective
Companies. In fact, President Troendle testified that he is responsible to Carney
at both plants, that he has always referred all labor matters to him, and that
Carney has final authority over labor matters at both Companies. Even the Massa-
,chusetts Supreme Judicial Court, in a decision concerning the strike herein,
recognized that Respondent Companies are "closely affiliated."
The undersigned finds, contrary to their contention, that Thayer Company and
H. N. Thayer Company constitute integral parts of a unitary enterprise and that
they are a single employer which is engaged in commerce within the meaning of
the Act. N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261; Hill Trans-
portation Co., et al., 75 NLRB 1203, enfd. w. o. opinion 12/7/48 (C. A. 1) ;
N. L. R. B. v. Condenser Corp., 128 F. 2d 67 (C. A. 3) ; N. L. R. B. v. Schmidt
Baking Co., 122 F. 2d 162 (C. A. 4) ; N. L. R. B. v. Federal Engineering Co., 153
F. 2d 233 (C. A. 6) ; N. L. R. B. v. Swift and Co., 127 F. 2d 30 (C. A. 6) ; N. L. R. B.
v. Aluminum Products Co., 120 F. 2d 567 (C. A. 7) ; N. L. R. B. v. Arnolt Motor Co.,
et al., 173 F. 2d 597 (C. A. 7) ; N. L. R. B. v. Lund, 103 F. 2d 815 (C. A. 8) ; Morgan
H. N. THAYER COMPANY 1141
Packing Company, Inc., 91 NLRB No. 104; H'uttig Sash & Door Co. of Texas,
Incorporated, 90 NLRB No. 241; Launderepuir Company, 90 NLRB 778; Gifford-
Hill & Company, Inc., et al., 90 NLRB 428; Commercial Automotive Corporation,
90 NLRB 1224; The McMahon Transportation Company, Inc., 89 NLRB 1652;
Island Photo-Engraving Company, 89 NLRB 971; Albany Novelty Corporation, 85
NLRB 1083; and Atlanta Brick and Tile Company, 83 NLRB 11541
II. THE ORGANIZATIONS INVOLVED
United Furniture Workers of America, CIO, United Furniture Workers of
America, CIO, Local 154, Thayer 's Workers' Council (Council 1), and H. N.
Thayer's Workers' Council (Council 2), are labor organizations admitting to
membership employees of Respondent Companies.
III. THE UNFAIR LABOR PRACTICES
The CA Cases
A. Sequence of events; interference , restraint , and coercion
1. The issues
The-basic issues in the CA cases are whether (1) Respondent Companies
dominated and interfered with the administration of the respective Councils
and have contributed support to them ; (2) Plant 2 on January 10 and 11, 1949,
discriminatorily discharged 18 employees because of their CIO activities and
hostility to and lack of support of Council 2; (3) Respondent Companies en-
gaged in various acts of interference, restraint, and coercion including withhold-
ing of the 1948 Christmas bonus and 1949 New Year's Day pay; (4) Plant 1 on
October 28, 1948, discriminatorily discharged Robert A. Sidman and discrimina-
torily laid off Emile -LeBlanc because of their concerted activities on behalf
of the CI0 and opposition to Council 1; and (5) Respondent Companies dis-
criminatorily denied reinstatement to a number of their employees who went
on strike on January 26 and 27, 1949, because of the Companies' alleged unfair
labor practices.
2. Bargaining relations with the Councils
Plant 1, which has been in operation since 1938, has enjoyed contractual rela-
tions with Council 1, an independent labor organization, since approximately
February 1940, when that organization was formed. Thereafter, annual con-
tracts have been signed effective on December 15 of each year and terminating
on the same date of the following year. The contracts in effect during the
period directly material herein were two, one of which expired on December
15, 1948, at which time another, expiring December 15, 1949, went into effect.
On the latter date, a contract expiring December 15, 1950, went into effect, and
at the conclusion of the instant hearing on December 12, 1950, Council 1 and
Plant 1 were completing negotiations for still another contract, apparently to
cover the period commencing December 15, 1950.
Plant 2, which is located about 1 mile from Plant 1, has been in operation
since approximately June 1944, and from December 1944 to December 1945 was
1 Proposed findings by Respondent Companies contrary to the above findings are rejected.
In form, they are interrelated and, as worded , nonspecific . Hence, severance and precise
resolution are not undertaken . A similar condition exists with respect to other proposed
findings in their brief relative to the alleged illegality and nontermination of the strike
described hereinafter , and they too are rejected.
215233-5373
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered under the Plant 1 contract with Council 1. It has enjoyed contractual
relations with Council 2 since December 15, 1945, at or about which time Council
2 was formed . The annual contracts since that time have covered substantially
the same periods as those at Plant 1; however , during the period directly material
herein, the December 1947 contract expired December 15, 1948, but unlike Plant
It, the new contract at Plant 2 did not go into effect until January 15, 1949, for a
term ending on December 15, 1949. It appears that on the latter date the con-
tract renewed itself for the period ending December 15, 1950 , and, as at Plant 1,
Plant 2 and Council 2 were completing negotiations at the conclusion of this
hearing on December 12, 1950 , for another contract to cover the period com-
mencing December 15, 1950.
3. The 10 percent cut proposal ; the meeting on October 19, 1948
During September and October of 1948, Respondent Companies conceived the
plan of manufacturing a carriage and a stroller at each plant which could be
marketed at a price 10 percent below that of competing carriages and strollers.
It was contemplated that this would be marketed as a package deal whereby
the merchandiser would be required, in order to purchase the cheaper item, to
purchase several more expensive items at regular rates, thus stimulating the
sales of Respondent Companies which had allegedly begun to slump. President
Troendle called in the stewards and officers of Council 1 and explained the plan
to them, pointing out that as part of the plan the employees would take a 10
percent cut in piece rates while working on parts for this particular carriage.
Troendle similarly explained the plan at a separate meeting to the stewards and
officers of Council 2, pointing out that at Plant 2 the same proposition of reduced
rates would apply to a particular stroller . Both sets of officers , while stating
no objections to the plan, indicated that the plan would have to be submitted to
their respective memberships for approval.
President Edward Magner of Council 1 arranged for a meeting of the em-
ployees of Plant 1 to be held on October 19, 1948, at a local hall known as the
Opera House, for the purpose of explaining the 10 percent cut . Prior thereto,
Edgar Arsenault, president of Council 2, who is also known as Doc Snow and
is referred to thusly in the transcript, contacted Magner and suggested that
inasmuch as the same problem existed at Plant 2, the employees of the latter
plant should also attend . This was agreed upon and, in fact, Magner adopted
Arsenault 's further suggestion that the employees at Plant 3 , another plant then
operated by the Carney and Troendle interests in Gardner but since closed in
December 1948 and not directly involved in this proceeding , also attend since
they too were confronted with the problem of the 10 percent wage cut for work
on a particular item. The meeting was held as scheduled with President Magner
presiding, after notices to that effect had been placed on the various bulletin
boards of Respondent Companies.
In the interim , news of this meeting had come to the attention of the officials
of Local 154 which for some time had been interested in organizing the em-
ployees of Respondent Companies. In fact, Local 154 had engaged in some
organizational activity in 1940 and had also attempted unsuccessfully, at the
time Council 1 was formed, to persuade the employees of Plant 1 to affiliate with
it ; furthermore at sometime during 1945 Local 154 had distributed 010 leaflets
at Plant 1. Accordingly, on October 19, 1948, the officials of Local 154 prepared
a leaflet urging the employees of Respondent Companies to reject the proposed
R. N. THAYER COMPANY ` 1143
'10 percent cut and distributed it at the doors of the"Opera House between 7
and S p. W.2
It is not entirely clear how many employees Respondent Companies had on
their payroll at the time. Stephen Sinding, a supervisory employee who main-
tains Respondents' cost records and was active in handling Respondent Com-
panies' labor relations during this period, testified that during the week ending
October 31, 1948, Plant 1 had 310 production and maintenance employees, Plant
2 had 126, and Plant 3 had 85. He later testified that as of December 15 there
were about 2.)0 production and maintenance employees at Plant 1, of whom 100 to
150 were working; howeN er, there is no evidence of discharges or of any substan-
tial peg niauent reduction in force during the interim period. President Troendle
testified that in December 1948 Plant 1 had 168 production and maintenance
employees. Troendle's version is closer to the fact for the respective plant rec-
ords show that during the first week of January 1949, Plants 1 and 2 had 141 and
54 help, respectively ; furthermore, at the time of the strike on January 26, they
had 164 and 67, respectively, In any event, the actual number of employees dur-
ing this period and the percentage of them, whether a majority or not, that
attended this as well as other meetings, is not material; the record makes clear
that a substantial number of them attended this and other meetings that fol-
lowed. As for the meeting on October 19, the record indicates that it was
attended by approximately 225 employees of all 3 plants.
President Magner of Council 1 opened the meeting by stating that he intended
to explain the provisions of the 10 percent cut proposal'as they had been ex-
plained to him by President Troendle He urged acceptance of the cut on the
ground that it would provide more work for the employees. Various employees,
including Robert Sidman and Edgar Arsenault, urged rejection of the 10 percent
cut. Arsenault, in urging rejection, pointed out that Respondent C ompanies had
shortly before discontinued a group insurance plan which had been in effect since
approximately 1945, that they were now proposing a wage cut, and that he was
concerned lest there be further loss of earnings and employee benefits. Both
Arsenault and Sidman urged that the workers affiliate with the CIO and thus
obtain effective bargaining representation. At this point Magner insisted that
the meeting had been called for the purpose of voting on the 10 percent cut and
proceeded to call for an immediate vote. The vote was taken and the cut was
unanimously rejected. Magner then announced that the meeting was adjuorned
and left the hall as Sidman intervened and told the assemblage that he would
call in the CIO representatives who were nearby. A majority by far of those
present remained while Sidman left and returned in a few minutes accompanied
by Business Agent Binnall and a local representative of the CIO Steel Workers
Union. Binnall congratulated the assemblage on rejecting the 10 percent cut and
pointed out that in other plants in the area employees were in fact receiving
wage increases. He asked them to consider adopting Local 154 as their bargain-
ing representative and distributed in excess of 80 membership cards. Approxi-
mately 48 of those present testified herein that they had signed cards on that
occasion or shortly thereafter.
1
2 These findings are based upon the testimony of Lubert Taylor, a representative of
Local 154, and Thomas Binnall, its business agent. They were forthright witnesses whose
demeanor while testifying favorably impressed the undersigned and their testimony is
credited herein.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The meeting broke up with Binnall announcing that another meeting would be
held shortly and that the representatives of Local 154 would keep in touch with
them. The officials of Respondent Companies admittedly learned on the follow-
ing day what occurred at the meeting and particularly that CIO cards had been
signed. And, as President Arsenault of Council 2 credibly testified, Plant Super-
intendent Tanner of Plant 2 questioned him on the following morning as to how
the meeting had gone. Arsenault replied that the employees were opposed to the
cut and Tanner instructed him to investigate further and ascertain what the
help proposed to do concerning the 10 percent cut 3
On the same day Superintendent Tanner, in a conversation with Foreman
Charles Dwyer, evidenced his true concern with the Opera House meeting.
Dwyer, who later lost his supervisory status, credibly testified that Tanner dis-
cussed the Opera House meeting with him and said that Arsenault had introduced
CIO representatives at the meeting and that "we can't'depend on him [Arsenault]
any more. He is definitely gone over to the other side." Tanner instructed
Dwyer to keep his "ears open in the shop" and see if he "could find out anybody
else that was pro-CIO." '
In addition, on October 20, President Magner posted on the three bulletin
boards at Plant 1 his written resignation as president of Council 1; however, he
reconsidered on the following day and removed these notices from the bulletin
boards. According to Magner, he resigned because he felt that he had been
rebuffed by the membership at the Opera House meeting. - Vice-President Emile
LeBlanc also resigned as vice president of Council 1 on October 20 or 21, an-
nougc^ng; to Magner that he was "going to the CIO." Respondent Companies
sought to show that LeBlanc had also resigned as steward of Council 1, which
LeBlanc denied, placing reliance on the testimony of Thomas Cazeault, secre-
tary-treasurer of Council 1, that the resignation letter of LeBlanc also an-
nounced his resignation as steward. According to Cazeault, this letter was
placed on the plant bulletin board but was then mysteriously removed. A copy
of the letter was not available and no one gave testimony to corroborate
Cazeault's version of the letter. Cazeault was an unimpressive witness who con-
tradicted 'himself repeatedly, whereas LeBlanc impressed the undersigned as
a more reliable witness. Accordingly, the testimony of LeBlanc is credited
herein ; moreover, in the view of the undersigned, the scope of LeBlanc's resig-
nation is immaterial to the issues herein.
,!
3 There is a distinct conflict between the testimony of Arsenault and Tanner throughout
this proceeding relative to Arsenault's activities in connection with the workers' Council at
Plant 2 and the CIO, as well as on this incident. As will appear hereinafter, the testi-
mony of Arsenault has in large measure been accepted. Not only did Tanner give highly
questionable testimony in connection with the discharges discussed hereinafter, but Arse-
nu`ul't was a clear and forthright witness whom the undersigned believes to he an honest
witness , moreover, his testimony is supported in substantial respect by that of other
credible witnesses.
d This testimony was also denied by Tanner, and Respondent Companies attempted to
impeach the credibility of Dwyer by introducing in evidence a number of convictions of
Dwyer in the Massachusetts courts. These were received and considered by the under-
signed However, these convictions for offenses in 1934, 1935, and 1940 together with
convictions in 1941 and 1950 for operating a motor vehicle without a license and tinder
the influence of alcohol do not impress the undersigned as being of sufficient weight to
offset Dwyer's testimony herein. Dwyer impressed the undersigned as telling the truth,
his testimony is corroborated by that of other credible witnesses, and, as stated above,
Tanner gave some incredible testimony in connection with the discharges discussed here-
inafter Accordingly, the undersigned has credited Dwyer
H. N. THAYER COMPANY 1145
4. The City Hall meeting of October 25
On October 22, 1948, an advertisement was inserted in The Gardner News, a
daily newspaper save Sundays, which is the only newspaper of general circula-
tion published in Gardner. It read as follows :
THAYER WORKERS MEETING
FOR ALL MEMBERS
Thayer's Workers Council from Plants No. 1-2-3
MON. OCT. 25 7:30 P. M. CITY HALL AUD.
Important questions will be discussed and decisions made.
Every Member Expected to Attend
Emile LeBlanc, V-Pres. Plant 1
Edgar Arsenault, Pres. Plant 2
Henry Mallozzi, Pres. Plant 3
Philip Charette, Steward
Robert A. Nelson, Steward
Hugh E" Ingram, Steward
Alcide E. Gallant, Steward
Herve J. Bourque, Steward
Bertha Anderson, Sec. Treas.
This advertisement was prepared at the office of Local 154 by its officials who
inserted the advertisement in the newspaper and paid for its publication. Each
of the respective signers authorized the use of his or her name. As stated,
Respondent Companies question the right of Emile LeBlanc to have signed by
his title of vice president inasmuch as he had resigned on October 20 or 21.
This is deemed insignificant herein, for the fact is that LeBlanc was recognized
as a leader of the Council, his resignation had not been acted upon at the time,
and he had not been replaced ; furthermore, as appears below, there was a sub-
stantial and uncoerced response to the advertisement.
The meeting was held as scheduled on October 25 at the Gardner City Hall
auditorium and attended by in excess of 300 employees from all 3 plants. Edgar
Arsenault, president of Council 2, presided and informed the assemblage that the
employees should take some rapid action because pressure was being exerted
upon him by Superintendent Tanner to procure acceptance of the 10 percent
cut. Arsenault reminded the assemblage that he feared further cuts and pointed
to the group insurance plan which Respondent Companies had recently can-
celed. At this point a vote was taken, concerning which there is considerable
testimony in the transcript. A preponderance of the testimony indicates that
it was actually a double-barreled vote, almost unanimously passed, (1) to have
Local 154 as bargaining representative for the employees of Respondent Com-
panies in lieu of the respective Councils, and (2) to have Local 154 take over and
administer the existing contracts with Councils 1 and 2 which were slated to
expire in less than 2 months on December 15, 1948.
At about this point, Taylor and Binnall, the representatives of Local 154,
entered the hall accompanied by Saul Silverman , who is business agent of another
local outside the area, but also at the time a member of the executive board of
the International ; Silverman later spent considerable time in Gardner, par-
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticularly during the strike which followed in January 1949 and is described
hereinafter. Taylor and Binnall were advised of the motions that had just car-
riediand congratulated the employees on their stand. A committee of stewards
and chairmen for the respective plants were elected and the union officials assured
them that the mass of employees as well as the union officials would stand in
back of them should there be any reprisals.
The union officials then circulated a petition, prepared by them earlier that
evening, which stated :
WE THE UNDERSIGNED MEMBERS OF "THAYER WORKERS COUNCIL" BEING
PRESENT AT THE WORKERS COUNCIL MEETING HELD OCT. 25TH 1948 AT THE
GARDNER CITY HALL AUDITORIUM (SIC) ARE IN FULL ACCORD WITH THE
ACTION TAKEN AT SAID MEETING.
The petition, introduced in evidence, bore 228 signatures of employees of all
3 plants, of whom a substantial number identified their signatures during this
proceeding. Business Agent Binnall informed the assemblage that his would
write to Respondent Companies on the following day, that he would request a
prompt meeting, and that the officials of the Local would keep in touch with the
employees. In fact, various meetings were held during the ensuing weeks at the
local union hall.
5. The request for recognition by Local 154
On October 26 the following letter on a Local 154 letterhead was sent by
Business Agent Binnall to Joseph Carney at Thayer Company :
This is to advise you that Local 154, United Furniture Workers of America.
CIO now represents a majority of your employees.
At a meeting of the Workers Council of the Thayer Co. held on October
25, 1948, it was decided that the presently subsisting contract between the
Thayer Co. and the Thayer's Workers Council for the term commencing
December 15, 1947 and terminating December 15, 1948 shall be administered
by Local 154, United Furniture Workers of America, CIO from this date until
the end of that contract.
We are desirous of commencing collective bargaining negotiations on
behalf of your employees to the end that, as we hope, the wages, hours, and
working conditions of the employees may be fixed and formalized in a regu-
lar agreement before the terminal date of the present agreement.
This letter will also constitute a notice, under and pursuant to the relevant
provisions of the Labor-Management Relations Act, 1947, to terminate the
before-mentioned contract between the Thayer Co. and the Workers Council,
and of our intention to exercise, should it become necessary, our right to
strike.
We are desirous of amicably reaching an agreement with you through the
processes of collective bargaining and trust that an early date for the first
conference may be immediately set.
Although in its caption only Plant 1 is mentioned, the letter is addressed to
Joseph Carney who is the controlling figure of both Respondent Companies ;
furthermore, conferences between the parties and the identities of the partici-
pating personnel made clear that the demand as well as ensuing discussions
related to both plants. The record specifically discloses that the officials of
Respondent Companies construed the organizational attempt to apply to both
plants, as in fact it did. Thus, on the morning after the City Hall meeting, ac-
H. N. THAYER COMPANY 1147
cording to the credited testimony of Council 2 President Edgar Arsenault, who
had been elected chairman of the CIO bargaining committee at the meeting,
Superintendent Tanner of Plant 2 approached him and asked how the meeting
had gone. Tanner stated that he was aware of the presence in the plant of CIO
sympathizers and proceeded to name some, including Herve Bourque whose dis-
charge is discussed hereinafter. Tanner added that if he caught anyone dis-
cussing the CIO in the plant he would discharge the offender on the spot and
that this applied to Arsenault as well. He again urged Arsenault to busy him-
self with procuring acceptance of the 10 percent wage cut.
In addition, employee Joe Theodore had a significant conversation with Tanner
on October 26. Theodore, who had been elected to the CIO bargaining committee
at the City Hall meeting as steward for the Plant 2 pressroom, spoke to Tanner
and informed him that the employees at the City Hall meeting had voted to dis-
continue the Council, to have the CIO as their bargaining representative, and to
have the newly elected committee represent them for the remainder of the con-
tract. Tanner replied that he had no authority to and would not recognize the
CIO, but that if the stewards signed a statement agreeing that they would not
hold themselves out as CIO stewards, he would then recognize them as stewards.
Tanner wrote out a heading on a sheet of paper to the effect that the new body
of stewards would be recognized to carry on the contract for the remainder of
the term, but not as CIO stewards. Theodore obtained the signatures of the
stewards including Frank Waskiewicz, Bertha Anderson, )Elerve Bourque, Vieno
Sinivuori, and Edgar Arsenault, and gave the paper to Tanner who retained it .5
6. Meetings at the Carney home
(a) Shortly after sending the October 26 request for recognition, Business
Agent Binnall spoke to President Troendle and arranged a meeting to be held
on or about October 28 at the home of Joseph Carney. The meeting was held and
attended by four people, Carney; William Loughlin, Mr. Carney's attorney, Bin-
nall. and Martin Raphael, representing Local 154.
Binnall explained that inasmuch as there was so much dissatisfaction with
the Councils among the employees of Respondent Companies, the employees
should be given an opportunity to vote for a bargaining representative of their
own choosing. Carney raised the-question whether the affidavits required by
Section 9 (h) of the Act had been filed, and was advised that they had not.
Raphael offered to have an election conducted by any organization, group, or
person of Carney's choice, but this offer was declined. Loughlin advised Carney
that it would be desirable to consult with a specialist in the labor relations field ;
Carney agreed to do just that and stated he would later communicate with
Binnall.
Some feeling developed between Raphael and Carney at the conclusion of the
meeting and Carney stated, as he testified, that if the Unions were threatening
him, which they were not, "My decision is that we do not accept any bargaining
with your organization." 6 According to Loughlin, Respondent Companies forth-
" Findings herein are based upon the testimony of Theodore, a clear and forthright wit-
ness whose testimony was corroborated by that of Waskiewicz and Bourque. Tanner
claimed that Theodore merely showed him the list, that he inspected it, and that he then
returned It; of the names on the list he allegedly recalled only that of Frank Waskiewicz.
However, Respondent Companies elsewhere conceded that Theodore had in fact given the
list to Tanner,
6 These findings are based upon the testimony of Loughlin who impressed the undersigned
favorably and whose testimony is in part supported by that of Binnall.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with retained Samuel Salny, who also represented them herein, and a conference
was held at his office attended by Troendle, Carney, Salny, and Tanner. Salny ad-
vised Carney that there was no obligation on the part of Respondent Companies to
do any business with a labor organization which had not complied with the provi-
sions of Section 9 (h) of the Act. Carney stated that if he was not required to do
business with a labor organization that had not complied, he would not do so.
Salny further advised Carney that it was his obligation to live up to the contracts
with the Councils, and stated that there might be some question as to the binding
effect of an election held by an agency other than the Board. He prepared for
Carney's signature the following letter which was sent on October 29 to Binnall,
copies of which were posted and remained on the bulletin boards of Respondent
Companies for some time thereafter :
In reply to your letter dated October 26th advising me that Local 154,
United Furniture Workers of America, C. I. O. now represents a majority
of the employees of the Thayer Co., this is to advise you that the Thayer
Co. will not recognize said Local 154 as the collective bargaining agent of
its employees unless and until it is certified as such collective bargaining
representative by the National Labor Relations Board.
This is further to advise you that this company has retained Attorney
Samuel M. Salny of Fitchburg, Massachusetts, to represent them in connec-
tion with this matter and we suggest that you take up any further matters
relative thereto directly with him.
As appears on its face, this letter related to Plant 1; however, Plant 2 was
very much in the picture and was considered as such in these negotiations, as
is demonstrated by the later conference at the Carney home, described below.
It may further be noted that the letter premises denial of recognition solely
upon the lack of certification of Local 154 and is silent on the compliance ques-
tion. No later communication on this topic was ever sent to Local 154 by Re-
spondent Companies.
(b) The written request for recognition as well as the first meeting at the
Carney home having failed to achieve the end of recognition, the CIO adherents
among the employees of Respondent Companies tried again. Joe Theodore, who
had been elected a CIO steward for Plant 2 on October 25, spoke to President
Troendle and asked to meet with Carney concerning grievances and difficulties
in the shop. He assured Troendle in advance there would be no discussion of
the CIO. A meeting was duly arranged and held at the home of Carney during
the first week of November. It was attended by Carney and Troendle, and by
members of the CIO committee including Theodore and Joseph LeBlanc of
Plant 2, and Ray Nugent, Camille Letellier, and Robert Sidman of Plant 1.
Theodore was the spokesman and pointed out to Carney that Respondent
Companies had not only taken away group insurance from the employees but
were now urging a 10 percent pay cut. Carney replied that Council 1 President
Magner, as presiding officer in the Opera House meeting on October 19, had not
properly explained the 10 percent pay cut proposal to the assemblage. At this
point, Theodore stated that the majority of the men desired the CIO as their
bargaining agent, whereupon Carney protested to Troendle that he had under-
stood there was to be no mention of the CIO at this meeting. Troendle agreed
with Carney, who then asked the men why they were so unhappy. When loss
of the group insurance plan was again mentioned , Carney replied that he had
granted it and therefore had the right to take it away. Carney told Troendle
to appoint a committee, hire a lawyer, and draw up a contract ; that he would
sign a contract matching any contract in the city ; but that he would not sign
H. N. THAYER COMPANY 1149
it with the CIO. Carney stated, as Respondent Companies contend, that he
would not recognize the CIO until it was registered with or certified by the
Board, but he added, as the General Counsel contends, that he definitely would
not have the CIO in the plants, that the plants were a hobby to him, and that he
could close them any time he chose if there was any trouble. The meeting ended
with Theodore announcing that he would return to the CIO hall and make a
report to the membership. Carney then stated that there was no need for Theo-
dore to go to the C10 hall and that he could make his report at the plant.
Theodore, however, did report the events of this meeting to the CIO membership!
7. The Carney speeches at Plants 1 and 2
a. Plant 1
The following communication was sent on November 9, 1948:
Mr. Joseph P. Carney
Thayer Company,
140 Cross St.,
Gardner, Mass.
GENTLEMEN : This is to inform you that the 60 day notice of termination
dated October 26, 1948, [set forth above] sent to you by Thomas H. Binnall
was sent with our knowledge and consent and pursuant to instructions of
our membership.
Eino Halonen
Fred Goguen
Robert A. Sidman
Edgar J. Arsenault
Emile LeBlanc
Frank J. Waskiewicz
THAYER 'S WORKERS COUNCIL.
By Joseph Theodore
Henry Mallozzi
Bertha Anderson
A. Philip Charette
Herve J. Bourque
Albert Richard
The record does not supply the exact date of the Carney speech at Plant 1, and
it is not clear whether this letter was received before or after the speech at that
plant. In any event, the letter was sent very close in point of time and was
received f rior to the speech at Plant 2. Of the signers, Sidman and LeBlanc, both
then in layoff status, were Plant 1 employees Waskiewicz, Arsenault, Theodore,
Bourque, and Anderson, the latter also in a layoff status, were Plant 2 help, and
the remainder were from Plant 3.
At about the time of receipt of the above letter and shortly after the employee
meeting at the Carney home, Joseph Carney delivered a speech to the employees at
Plant 1; it appears to have taken place early in November 1948. A number of
witnesses for Respondent Companies testified concerning the circumstances that
led to the making of the speech. Their testimony is utterly irreconcilable and,
as will appear below, a similar state of irreconcilability exists with respect to
the reasons for the making of a speech by Carney at Plant 2 on or about December
15, 1948.
Thus, President Magner of Council 1 related how he had allegedly set the chain
of events in action. He claimed that he spoke to President Troendle and in-
4 Findings herein are based upon the credited testimony of Theodore and Joseph LeBlanc
which Is supported by that of Sidman, Letellier, and Nugent. The testimony of Troendle
and Carney Concerning this meeting was inaccurate and of little value. For example, both
erroneously placed Edgar Arsenault at the meeting, and Troendle did not recall that
Theodore, who was the chief spokesman, had been present.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed him that rumors were prevelant in Plant 1 that the Company had many
unfilled order on its books but preferred to lay off its help and not fill the orders.
Troendle denied that such was the case and asked Magner to make a suggestion
for dealing with the situation. Magner claimed he then recommended that
Troendle or Carney inform the employees that the rumor was untrue ; that
Troendle promised to discuss the matter with Carney; and that after a few days
Troendle told him that Carney would address the employees on the topic.
Troendle testified, in accord with Magner, that Magner brought these rumors to
his attention, but claimed that Magner also told him that he, Magner, wanted
the Company to explain the proposed 10 percent pay cut to the employees ; as is
apparent, Troendle's testimony introduced a second reason as a basis for request-
ing the speech.
John Theis, the purchasing agent, gave several versions concerning the request
for the speech. He originally testified that Magner came to the plant office and
asked Troendle, in Theis' presence, to have Carney explain the proposed 10 per-
cent pay cut so as to clarify a rumor circulating in the plant that all wages would
be cut. Theis was then led by counsel for Respondent Companies, and added
that Magner also referred to the rumor that the Companies had orders they did
not wish to put into production. On cross-examination, however, Theis testified
that Magner wanted to have the 10 percent cut explained to the employees and
that Magner said nothing else. Again, on cross-examination, Theis testified that
he was present while Troendle telephoned Carney and that he heard, Troendle
tell Carney he, wanted him to explain the proposed 10 percent cut to the employees,
and that Troendle had nothing else to say in this conversation. Not only does
Theis' version, inherently inconsistent though it be, conflict with the testimony
of Magner and Troendle, but, furthermore, the version supplied by Carney is in
utter conflict with the testimony of all three, and in the view of the undersigned
is far closer to the truth, especially when consideration is given to what Carney
.ater said.
According to Carney, Troendle asked him to speak to the employees at Plant
1 ". . . about the position that the company took . . . with reference to thr
CIO Union," and Carney recalled no other reason for the speech. [Emphasis:
added.] He too was led by counsel and then recalled that Troendle made mention
of the proposed 10 percent pay cut Carney was again asked if he recalled
anything else that Troendle had said in this connection. He replied that Troendle
informed him that "some of them were afraid that we were going to give in to
the CIO Union and drop the recognition of the Workers' Council," and had
asked Carney to discuss this with the employees. Furthermore, almost all of
the witnesses for Respondent Companies who testified concerning the speech
attribute no statements to Carney concerning rumors of orders that the Company
was unwilling to place in production. The undersigned accordingly rejects the
testimony of Magner and Troendle herein and finds that Carney delivered this
speech primarily to give the views of the Company with respect to recognition
of Local 154, as a result of the expressed fear that the Company might drop
recognition of the Council and proceed to recognize Local 154:
The speech itself was delivered at approximately 4 p. in., at the close of the
workday, and was testified to by numerous witnesses. The findings below are
predicated upon the testimony of numerous credible witnesses for the General
Counsel and are supported in part by the testimony of some of the witnesses
for Respondent Companies including Julia Goguen, Herman Comee, Gordon
Comee, and Elizabeth Fregeau. It may further be noted that the undersigned
accepts Carney's version of what he said at Plant 1, but also finds, upon an over-
whelming preponderance of the testimony, that Carney 's speech went further
than his version.
H. N. THAYER COMPANY 1151
Thus, Carney admittedly discussed the two topics of the proposed 10 percent
cut and recognition of Local 154. He informed the employees that if they were
concerned about recognition of the CIO, the Company was unwilling to recognize
it as long as the non-Communist affidavits had not been filed. Significantly,
mention was not -made of the fact that Council 1 and, fol- that matter, V buncil
2, had similarly not filed these affidavits. Carney then explained the 10 per-
cent cut proposal to the assemblage, pointing out that business had been poor
and that on the basis of the proposed cut, the Company would have been willing
to manufacture goods to stock its warehouse in anticipation of the seasonal rise
in business in January and February.
In addition, and consistent with his stated purpose for making the speech,
Carney told the assemblage later in the speech that they had been a big
happy family in the plant and that he wished to keep it that way ; that he did
not see why they should be dissatisfied with Council 1 with which relations had
always been excellent ; and that if they could not continue as one happy group
there was no use in continuing business operations. He stated that people had
unsuccessfully been attempting to "get him" for 40 years; that no one would
tell him how to run his business for his plants were only a hobby ; that he would
not recognize the CIO ; and that he would close his plant doors rather than
recognize a CIO union. He added that the council contract was an excellent one
and that he would match any other contract in Gardner, but only if the CIO
were not a party to it 8
b. Plant 2
Both President Arsenault of Council 2 and Plant 2 Superintendent Hugh
Tanner agreed that Arsenault had suggested that Carney explain the proposed
10 percent cut to the employees of Plant 2. And even, President Troendle testi-
fied that a request had emanated from Arsenault for an address on this topic.
However, Carney testified that Troendle informed him that the employees at
Plant 2 were preparing a council contract proposal and that the men wanted to
know his position with reference "to the CIO Union" as well as his views con-
cerning a wage reduction. It should be noted that at .this time Superintendent
Tanner was exerting pressure on Arsenault, as appears elsewhere, to prepare
a new council contract to replace that which was to expire on December 15, 1948.
Furthermore, Tanner had expressly instructed Foreman Dwyer, as the latter
credibly testified, to keep an eye on CIO activities among the employees and had
,commented on the CIO activities of certain of them. It is unnecessary to de-
termine whether the idea for bringing up the CIO activities of the employees
emanated from Troendle or was Carney's own idea. It is sufficient that it was
in Carney's mind and was in fact brought up by him in ,the speech.
On or about December 15, Carney appeared at Plant 2 accompanied by Presi-
dent Troendle. According to Carney, he told the employees that the Company
would not bargain with the CIO as long as its officials had not signed the non-
Communist affidavits ; he also explained the proposed 10 percent cut, stating
that the employees did not have to accept it if they so chose. However, even
witnesses for Respondent Companies gave testimony supporting the considerable
testimony by credited witnesses for the General Counsel that the speech went
well beyond the tenor of the remarks appearing above.
8 In pausing it may be noted that the testimony of- Respondents ' witnesses Magner,
Cazeault, and Popoloski on this topic was of little value. Magner's testimony has been
rejected , as indicated above. Cazeault was a vague and unimpressive witness , and not only
was Popoloski substantially contradicted on several occasions by statements in a prior
affidavit given by her to the General Counsel , but she later , as appears below , gave question-
able testimony which indicated her lack of objectivity.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the record discloses that Carney was greatly interested in the nego-
tiation of a contract with Council 2, which was quite logical for a contract had
been negotiated at Plant 1, effective on or about that very day ; by contrast, none
had been consummated at Plant 2. As at Plant ], Carney informed the assemblage
that he would shut down the plants before he would recognize the CIO. He
stated that the employees should get busy on a new council contract, pointing
out that there had been harmony on prior contracts. At this point, employee
Paul Ballentine arose and complained that some employees had not received
their holiday pay for Thanksgiving Day and that rumors were circulating that
there was to be no Christmas bonus ; as appears elsewhere, some of these rumors
had emanated from Plant Superintendent Tanner himself. Troendle inter-
rupted and stated that as there was no council contract then in effect, there
would be no bonus and added that the Company would also weed out the em-
ployees they did not want and would keep the better ones.' Employee Herbert
Lamoureux then asked if that meant there was to be discrimination and Carney
interrupted and stated that such was not the case. Carney again raised the ques-
tion of a council contract, but when Lamoureux pointed,out that a majority of
the employees was not in attendance at the meeting, Carney.agreed to postpone
the discussion until after the Christmas holiday, and the meeting ended on this
note. On the following day, Superintendent Tanner commented to Foreman
Dwyer that the meeting had progressed smoothly until Lamoureux and Ballen-
tine had broken it up by their interruptions."
On the afternoon of December 15 the following telegram was sent and received:
JOSEPH P CARNEY
THAYER CO GARDNER
THIS IS TO CALL YOUR ATTENTION AGAIN THAT LOCAL 154
UNITED FURNITURE WORKERS OF AMERICA CIO IS THE REPRE-
SENTATIVE FOR COLLECTIVE BARGAINING PURPOSES OF YOUR
PRODUCTION EMPLOYEES OF THAYER CO. PLANTS 1 AND 2
HAVING BEEN DESIGNATED AND SELECTED BY YOUR SAID
EMPLOYEES AS THEIR COLLECTIVE BARGAINING REPRESENTA-
TIVE. WE HEREBY CAUTION YOU NOT TO RECOGNIZE, BARGAIN
WITH OR ENTER INTO ANY CONTRACT WITH ANY OTHER INDI-
VIDUAL GROUP OR ORGANIZATION OTHER THAN OUR UNION
LOCAL 154, UNITED FURNITURE WORKERS OF AMERICA CIO WE
SHALL HOLD YOU ACCOUNTABLE TO THE FULL EXTENT OF THE
LAW SHOULD YOU ACT CONTRARY TO THIS AS WELL AS THE
PRIOR GIVEN NOTICE TO YOU THAT WE ARE THE DULY CON-
STITUTED COLLECTIVE BARGAINING REPRESENTATIVE OF
YOUR EMPLOYEES-
EXPECT WORD FROM YOU THAT YOU WILL NOT ACT IN CONTRA-
VENTION OF OUR RIGHTS AS YOUR EMPLOYEES COLLECTIVE
BARGAINING REPRESENTATIVE-
9 Troendle testified he had informed Plant Superintendent Tanner prior to January, that
the time had come to "weed . . . out" undesirables in Plant 2.
10 Findings herein are based upon the testimony of witnesses for the General Counsel
including Arsenault, Ballentine, Lamoureux, Dominick Daddario, Frank Waskiewicz, Ralph
Morse, and Dwyer. Company witnesses who supported them in part or more were Maliska,
Edward Richards, and Cornelius Magner. In fact, Maliska testified that Carney asked the
assemblage if they were working on a new council contract. And Magner testified that
Carney informed the assemblage he would deal with the Council if they drew up a contract.
Even Troendle admitted that the question of a Christmas bonus was raised on this occasion.
H. N. THAYER COMPANY 1153
OBVIOUSLY ANY CONTRACT YOU MAY ENTER INTO WITH ANY
ONE OTHER THAN LOCAL 154 UFWA CIO' WILL BE A NULLITY
AND WILL BE SO REGARDED BY US-
UNITED FURNITURE WORKERS OF AMERICA LOCAL 154 CIO-
SIGNED THOMAS H. BINNALL BUSINESS AGT
It is not clear whether this telegram was received before or after the speech
at Plant 2. Respondent Companies contend that the Plant 1 contract was ac-
tually signed on December 13 or 14, ww luch would be prior to the receipt of the
wire. However, the exact date of receipt of the wire is deemed immaterial in
view of the prior correspondence and meetings between the parties. Apparently,
no reply was made to the wire, although, as appears below, Respondent Com-
panies took further steps to counteract the CIO campaign by discharging a
number of employees on January 10 and 11, 1949.
8. Conclusions
Although other conclusions will follow as to later conduct by Respondent Coin-
panies, it is apparent at this point that they have engaged in an illegal campaign
violative of the rights of their employees by engaging in the following conduct
which has interfered with, restrained, and coerced their employees in the exercise
of the rights guaranteed by Section 7 of the Act :
(1) The thinly veiled threat by Carney to the employees at his home in
November 1948 that his plants were a hobby, that he would not have theiClO
in them, and that he could close them down at any time.
(2) The speech at Plant 1, admittedly to give his position concerning the
CIO, when Carney stated, mater alga, that there had been a happy family in the
plant under the Council; that his plants were a hobby ; that he would not
recognize the CIO and would close down his plants first ; that the council contract
was an excellent one ; and that he would match any contract in Gardner but not
with the CIO as a party to it.
(3) The speech at Plant 2 , admittedly to give his views on the CIO, where
Carney stated , -inter alia , that he would close down his plants before he would
recognize the CIO and told the employees to get busy on a new contract with
the Council as their representative.
(4) The statement on the latter occasion by President Troendle that employees
would be weeded out and that there would be no Christmas bonus because a new
contract with the Council had not been signed.
(5) The threat to Arsenault by Tanner that he would discharge anyone he
found discussing the CIO in the plant.
B. The discharges
1. Introduction; general discussion
At the close of business on December 16, 1948, Plants 1 and 2 were shut down
over the holiday season until on or about January 3 , 1949, when they reopened ;
this was a practice which had been followed for years in both plants . Plant 2
reopened with approximately 54 employees and in the following week, that
ending January 16, had 63 on its payroll. It was during the latter week that
17 employees at Plant 2 were discharged on January 10 and 11; these are the
discharges alleged herein to be discriminatory . There was an eighteenth dis-
charge on January 7, Charles Morse, whose case is also discussed hereinafter.
1154 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
Firstly, it should be noted that aside from the January 7 discharge the 17
dischargees on January 10 and 11 fall into 2 groups. There were 9 who were
actually working at the time and 8, laid off on various dates during the previous
October and November, and in one case on December 16, who were still in a
layoff status when discharged. The witnesses for Respondent Companies did
not disclose why it was deemed necessary to discharge the latter group while in
a layoff status.
As for the purported reasons for the discharges, Respondent Companies con-
tend that it was decided to reduce the force of employees at Plant 2 after Presi-
dent Troendle returned to Gardner on January 5 or 6, 1949, from the furniture
shows. Troendle, however, gave several versions of the circumstances leading
to the discharges. -He originally testified that the idea for effecting the dis-
charges was that of Plant Superintendent Hugh Tanner ; that Tanner "was
more or less responsible for that"; and that Tanner wished to discharge some
of his "incompetent" employees. He later changed his testimony, stating that
the idea was his, Troendle's ; that because of poor orders at the furniture shows
he, Troendle, decided that it was necessary to reduce the working force ; that he
advised Tanner to this effect; and that Troendle was responsible for the deci-
sion to discharge the incompetent employees, although Tanner had previously
brought to his attention that there were some incompetent employees on the
staff. Both he and Tanner agreed that Tanner alone selected those to be dis-
charged. Tanner alleged that he decided on January 10, 1949, to discharge the
employees, after discussing with Troendle, on or about January 8 the fact that
orders written at the furniture shows were small and that "some of .the:,less
dhsirable;;less competent workers" should be weeded out. The nine then working
were notified by their respective foremen of their discharges with the lion's
share falling to Gilbert Nutting, foreman of the assembly department, who dis-
charged six. Each of the eight then in a layoff status was sent a letter, signed
by Tanner, which read as follows :
This is to notify you that, due to curtailment of production schedules, you
will not be recalled to our employ and your relations with this Company are
hereby terminated.
There are, however, a number of factors, endemic to the group of discharges,
which place a totally different light on the reasons advanced by Respondent
Companies for the discharges. The undersigned accordingly is setting them
forth at this point and will later proceed to an analysis of the individual cases :
(1) Both plants manufacture closely related products and are subject to the
same business cycle. As President Troendle testified, both customarily close
down each year on December 15 or 16, as they did in 1948, and both resume oper-
ations early in January. In the instant case orders were allegedly so poor that
they warranted an immediate reduction of help at Plant 2 without any advance
notice to those affected who constituted a substantial percentage of the entire
complement, namely 17 of the 63 employees on the Plant 2 payroll. However,
although Plant 1 had many more employees and was subject to the same alleged
lack of orders in the business cycle, there is no evidence of any need for a reduc-
tion in force at that plant. On the contrary, Plant 1 was actually increasing
its personnel at the time, as shown by its personnel statistics. The only differ-
ence between conditions at the two plants was obviously in their labor relations.
At the time of the discharges, Plant 1 had already negotiated its contract with
Council 1, whereas Plant 2 had not yet consummated a contract with Council
2. The undersigned has previously set forth some of the evidence which indi-
H. N. THAYER COMPANY 1155
cates the eagerness on the part of Plant 2 officials to consummate this contract
with Council 2, and, as will appear below, there is even a• more direct connection
between these discharges at Plant 2 and the subsequent signing of the contract
with Council 2.
(2) In addition to the alleged lack of orders being refuted by conditions at
Plant 1, the record further reveals that business at Respondent Companies cus-
tomarily picked up in the latter part of January and that it did so in this instance
in 1949. For example, in mid-January, Foreman Erickson told George Shaler
that he would be recalled very shortly as orders were then coming in. The record
discloses the names of at least 5 employees, then in a layoff status, who were
called in to work at Plant 2 on various dates between January 12 and 25, namely,
Legere, Bourgeois, Savoie, Shaler, and Orre. It follows then that the 17 em-
ployees herein involved were discharged at a time when Plant 2 was about to
recall employees then in a layoff status, thus further refuting the claim that there
was economic need for this reduction in force. Significantly, 4 of the 5 recalled
had less seniority than the great majority of those terminated on January 10
and 11.
(3) But there is even more direct evidence as to the true state of business at
Plant 2. The personnel statistics reveal that during the week ending January'
9, 1949, the employees were 54 in number and that during the following week,
that ending January 16, they totaled 63. In other words, at the very moment
that orders were allegedly so poor that Plant 2 had to discharge employees, the
complement of personnel had increased by 9. And although the 17 named
herein were discharged on January 10 and 11 for allegedly economic reasons,
on the following week, that ending January 23, the total complement of personnel
was down only to 58, a decrease of but 5, demonstrating that a majority of those
released were actually replaced. Any further doubts are dispelled by the figures
for the following week, that ending January 30; in that week, and presumably
before the start of the strike which commenced on January 26, the complement
of'pei'so nel">'ose'to a total of 67: Thee undersigned believes that this demon-
strates the lack of substance 'and in fact the falseness of the claim that the
discharges at Plant 2 were brought about by economic factors.
(4) Plant 2, as well as Plant 1, had laid off employees on various dates between
October and December 1948 and the '5 employees named above who were recalled
in January were among them. The record indicates no absence of competence
on the part of these 5 and presumably they were competent employees. Never-
theless, these 5 employees had previously been laid off at Plant 2 at a time when
management saw fit to retain in its employ at least 9 of the 17 involved herein.
This requires no further comment than to note that management does not nor-
mally retain in its employ workers as allegedly incompetent as these 9 and yet
lay off competent employees. This too raises considerable doubt as to the
bona fides of the reasons assigned for the discharge of this group of employees.
(5) Corollary to the above reason is the fact that the nine dischargees who
were working at the time of their discharge possessed tenure dating back to
1945 and 1946, and that of the eight in a layoff status, three had been employees
since 1945, three since 1946, and two since February 1948. They were almost
entirely seasoned employees of long tenure whose faults, if any, would have
manifested themselves long before January 1949. Even assuming the existence
of such faults, which the undersigned in very large measure does not believe
to be the fact, it is apparent that they were tolerated for years ; that is, they
were tolerated until there was interest in the CIO and disinterest in a new
contract with Council 2, as appears below.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(6) That the discharges were motivated by-ether than economic reasons is
further established by the fact that three of those discharged were reinstated ;
they were Sinivuori, working at the time of her discharge, and Alyre Gallant
and Adelard Poirier who were in a layoff status. They were recalled to work
on or about January 18, 20, and 25, respectively. In fact, there was a fourth
dischargee on January 10 or 11, Simkewicz, who was recalled at or about the
time of the strike, which took place thereafter on January 26.' According to
Tanner, he reviewed the discharges after 1 week and decided that errors had
been made in some cases ; among those were the cases of the three above-named
employees who were reinstated on the indicated dates.
Sinivuori and Gallant had been employees since 1945, and Poirier since July
1947. The undersigned is at a complete loss to understand how Respondent
could have erred at the time of their discharge concerning their ability. Tan-
ner and his foreman either knew by January 1949 that these employees were
able, or else they knew the contrary. This is particularly true because Tanner
claimed that he carefully discussed the cases of those selected for discharge
with their respective foremen. Moreover, even assuming that a mistake had
been made in the selection of these few, and that it was subsequently rectified,
others were not selected for discharge in their place. Stated otherwise, if some
of those discharged were recalled because a mistake had been made in their
selection, surely they would have been replaced on the discharge list by an
equal number of personnel if, in fact, the need did exist for the discharge of so
great a number of employees. Obviously the need did not.
(7) Tanner at one point testified that he conferred with his foremen on
January 10; told them that it was necessary to select their less competent em-
ployees for discharge ; solicited their advice and opinions on selections which
were duly supplied ; and decided on the selection of the 17 after conferring with
the foremen. Foreman Bagley testified, however, that he did not know why
Sinivuori was discharged ; that Tanner instructed him to discharge her along
with Sinkewicz ; and that this was the first he-knew of it. It is believed that
Bagley played no part in selecting Sinivuori as an allegedly incompetent worker
under his supervision. _
(8) The record makes clear that in this seasonal business layoffs of em-
ployees took place regularly twice, a year, rdughly, in the late fall and in June.
It was the practice to lay off employees on these occasions on a seniority basis.
In fact, according to Foreman Erickson, discharges were rare in the plant and
he, save for two instances, had never discharged employees but rather had laid
them off.
By contrast, in the present instance, not only did Plant 2 see fit to discharge
nine employees then working but also to send letters of termination to eight then
in a layoff status. The undersigned is unable to discern any legitimate reason for
sending the letters 'of termination to these eight ; although Tanner' contended they
were sent to less competent employees, the form letters are conspicuously silent
as to any claim that they were unsatisfactory employees. They speak only of a
curtailment of production schedules and state that the employees would not be
recalled. That lack of ability was in fact not the reason for their selection is
demonstrated by the fact that two of the three dischargees later recalled to work,
Alyre Gallant and Adelard Poirier, were among these eight. In fact, it is con-
ceded, and the undersigned finds, that they should not have been discharged for
11 Simkewicz did not testify herein and the allegation of the complaint relating to her
discharge was dismissed at the hearing on motion by the General Counsel who stated that
she did not desire to participate in this proceeding
H. N. THAYER COMPANY 1157
lack of ability . Consequently , the'undersigned is°impelled 'to conclude that the-
management of Plant 2 was desirous of preventing these competent employees
from being recalled to work at the end of January when other employees were
in fact recalled ; it is believed , contrary to their contention , that Respondent
Companies actually discharged competent employees then in a layoff status lest
they be reached on the seniority list for recall.
(9) This group of 17 employees included some who were highly active in the
CIO. Theodore, Anderson, Waskiewicz, Sinivuori, and Herve Bourque were
among the CIO stewards elected at the City Hall meeting, and moreover, as
found above, their representative capacities were known to Tanner. Theodore,
Anderson , Waskiewicz , and Bourque had been signatories to the November 9
letter to Carney which reaffirmed; the original demand. for recognition of the
CIO submitted to the Company on October 26; the names of Bourque, Anderson,
and Alcide Gallant appeared on the newspaper advertisement in the Gardner
News concerning the City Hall meeting ; and all 17 had signed CIO cards.
(10) Not only were these employees discharged abruptly during the workweek
without any notice, but management sought to have them sign , when collecting
their pay several days later, slips which stated that the respective individuals
were being discharged because of curtailment of production schedules . No men-
tion is made of the statement later made to some that management could obtain
more competent workers. This indicates to the undersigned the basic lack of
substance to the various contentions of nonfeasance and misfeasance raised
concerning some of those discharged.
(11) But there is even more direct evidence how these discharges were brought
about. As will appear hereinafter in more detail, Plant 2 was attempting to push
through a contract with Council 2 at that very moment. Carney had addressed
Plant 2 on or about December 15, had urged employees to, get busy on a new council
contract, and had stated that he would close the plant before he would recognize
the CIO . Troendle , on the same occasion , had announced that because there was
no council contract then in effect, there would be no Christmas bonus, and that
Plant 2 would weed out the employees it did not want.
Furthermore , as far back as the Opera House meeting on October 19 , Superin-
tendent Tanner had instructed Foreman Dwyer to find out who was pro-CIO in
the plant. About 1 week later, after the City Hall meeting on October 25,
Tanner informed Council 2 President Arsenault that he was aware of the presence
in the plant of CIO sympathizers and had named some of them , including Herve
Borque. After that meeting and through December 1948, Tanner had a number
of conversations with Foreman Dwyer, as the latter credibly testified, concerning
the CIO activities of certain employees. He had informed Dwyer that Theodore
was the predominant figure in the CIO activity in the plant, as was the fact,
and also commented on the CIO activity of Daddario.
Tanner also informed Dwyer that Plant 2 would go through a reorganization
around January 1, 1949, and at that time any people engaged in the 010 activity,
and particularly Joe Theodore , would be eliminated from the plant. He in-
structed Dwyer to keep his eye on Theodore and the group that congregated at
the latter's workbench ; this too was in accord with the facts, for a group of
CIO sympathizers did regularly congregate during recess and lunch periods at
Theodore's bench. Tanner also informed Foreman Ray LeBlanc , as the latter
credibly testified , sometime after the Opera House meeting, that there were a few
employees in the plant who were "quite CIO-minded" and instructed LeBlanc to
watch the situation and report what he might learn ; he also made a similar state-
ment to LeBlanc after the City Hall meeting. Moreover , on the very day of the
215233-53-74
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharges, Tanner told LeBlanc that Waskiewicz had been one of the group
active in behalf of the CIO and despite LeBlanc's protest that Waskiewicz was
a competent workman, Tanner stated that there would be "quite a few more
going."
As will appear below in more detail, Superintendent Tanner instructed
Council 2 President Arsenault on or about January 8 to procure the signatures
of the employees to the new contract at Plant 2.12 However, on or about January
10, Tanner instructed Arsenault to refrain from procuring the signatures until
further advice from Tanner because some employees who were in the way were
to be discharged ; Tanner stated that he would eliminate them and then advise
Arsenault that he could proceed to obtain the contract signatures of the rank-
and-file employees. Tanner added that he knew the identities of 8 to 10 men
who were in favor of the CIO and specifically mentioned Daddario and Herve
Bourque. Consistent with the above expression of policy, Tanner instructed
Arsenault, several days later T and' after the discharges, that he might proceed
with the procurement of the signatures, which Arsenault did.11
2. The individual discharges
The undersigned will now turn to a consideration of the individual cases of
those selected for discharge. Although the factors pointed out above are gener-
ally applicable to all, an analysis of the reasons advanced in the respective cases
will shed additional and revealing light on the entire picture.
Joseph Theodore entered the employ of Plant 2 in August 1945 as a riveter
and at the time of his discharge was the top man in seniority of that depart-
ment.]' He was actually the leader of the CIO movement at Plant 2 and a
most outspoken opponent of Council 2. Theodore had been selected as a CIO
steward, was elected to the CIO bargaining committee at the City Hall meeting
on October 25, as set forth above, and wore a CIO button. He had spoken
to Plant 1 Superintendent Tanner and unsuccessfully sought recognition of the
CIO stewards as the representatives of the employees. In fact, it was- he who
furnished Tanner with the names of the' CIO stewards elected at the meeting.
His workbench had become the meeting place during rest and lunch periods of
the CIO adherents in the plant. Even then Assistant Foreman Erickson, a
supervisory employee, admitted that he was usually present at these gatherings,
that the CIO was discussed, and that some of the men present wore CIO buttons.
Tanner as well was aware of the popularity of this location as a meeting place.
And it will be recalled that it was Theodore who was the spokesman of the
CIO group when they unsuccessfully sought recognition of the CIO at the
12 The contract had at that point been put in final form but was not consummated. It
has been the custom at both plants for rank-and-file employees as well as council officials
to sign the contracts.
19 As elsewhere, the testimony of Arsenault, LeBlanc, and Dwyer has been credited. Not
only were they impressive and the more credible witnesses, but their versions are corrobo-
rated by the lack of substance to Respondent Companies' contentions as pointed out above,
and, as appears below in a discussion of the individual cases, by the flimsy reasons advanced
for the selection of many of the discharges.
Other elements in the over-all picture are of a cumulative nature and are not set forth
herein, for the undersigned is of the belief that the above factors preponderate heavily in
support of the conclusions which follow.
14 It should be noted that seniority was valued very highly in the plants of Respondent
Companies becau,4e it determined who would be laid off in the cyclical layoffs apparently
characteristic of their business.
H. N'. THAYER COMPANY 1159
meeting held at the Carney home." Theodore was discharged on January 10
by Foreman Erickson 16 who • informed him that -he •was . discharged and that
the discharge did not emanate from him but rather from Tanner. Theodore
immediately went to Tanner's office and asked the reason for the discharge.
Tanner replied that he could obtain better workers than Theodore. At this
point Mallet Robichaud appeared on the scene, asked why he had been dis-
charged, and Tanner made a similar reply. Significantly, nothing was said
about the purported need to retrench ; such a reference, of course, would perforce
have brought up Theodore's top seniority as a riveter.
According to Superintendent Tanner, Theodore was selected for discharge
because he frequently wandered away from his work and devoted a lot of time
to talking with other employees ; he claimed that he frequently observed this
during the 2- to 3-month period 'prior to December 15, 1948,-and that then Fore-
man Dwyer 'complained to Tanner at least once a ,wee'k,'for'-a 3-month period
concerning Theodore's absences from his bench. Elsewhere Tanner testified
that Dwyer had mentioned the matter approximately three times and that he,
Tanner, had detected such absences on a number of occasions during the period
between October and December 1948. Foreman Erickson, who was assistant
foreman in 1948, alleged that Foreman Dwyer had told him, Erickson, on two
or three occasions that Theodore frequently left his workbench. Paradoxically,
Erickson did not personally witness these alleged absences , although Respondent
Companies contended vigorously that it was Erickson who actually ran the
pressroom during 1948 and that, Dwyer busied himself elsewhere with the repair
of dies. '
Dwyer, on the other hand, credibly testified that he never registered any com-
plaints concerning the ability of Theodore and had never reported him for
absences. His testimony is supported by that of Francis Kasper who was called
as a witness by Respondent Companies. Kasper, who is still in the employ of
Plant 2 and is found to be a straightforward and honest witness, testified that
he worked near Theodore and that Theodore remained at his machine ""Just
the same as. anyone else wouldThe undersigned''hccordingly rejects this
contention by Respondent Companies.
Dwyer claimed that Theodore was the ablest riveter in the employ of Plant 2,
pointing out that he had been assigned to handle out-of-town repairs on mer-
chandise already in the hands of customers of the Company. His testimony'is
supported by the fact that Theodore actually was assigned to such out-of-town
duties. Either in 1947 or 1948, according to the testimony of Theodore and as
Tanner admitted, Theodore was sent to the warehouses of two large department
stores in the Ness York City area to repair merchandise that had been sent out
from the plant improperly assembled. Tanner claimed that Theodore was
selected because be had formerly li^ed neat New York City, was familiar with
the area, and could be spared from the ri' eting department In view of the
fact that Theodore was assigned to work at the' warehouses themselves for a
"There is considerable testimony concerning the motivation behind an earlier layoff of
Theodore on December 15, 1948 However, the undersigned believes that an inspection
and analysis of Theodore's January 1949 discharge,moieJhan warrants the findings which
follow and that a consideration of the earlier layoff would only be cumulative to the con-
clusions arrived at hereinafter.
1b Erickson had been foreman prior to 1948. but was demoted to assistant foreman when
Dwyer was made foreman in January 1948 Dwyer was demoted to the rank-and-file job of
machinist on January 1, 1949, and was replaced by Erickson who was restored to his former
position.
1160 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
2-week period, the undersigned is unable -to accept this explanation. Moreo er,
the explanation on its face defies credence because it is obvious that only a
skilled mechanic would be sent to repair damage of this type in order to satisfy
potentially large purchasers of the Company's products.
In addition, it is undenied that Theodore for several years had been assigned
to the making of samples which were sent to the various furniture shows for
display. After the making of original samples in the sample room of Plants 1
and 2, the original was turned over to Theodore who then made the majority
of samples for display at the shows. Concededly, because of the purpose for
which the model was to be used, this was an important task which was assigned
only to someone thoroughly familiar with the work
Respondent Companies also specifically offered,as a basis for Theodore's selec-
tion for discharge the reason that he, together with Dominick Daddario, was
caught smoking in the plant during working hours. The fact is, however, that
this took place during the summer of 1948 and the two employees were at the
time given a 3-day layoff. Obviously, this was an old offense, of a relatively
minor nature for which punishment then deemed appropriate was handed out;
and there is no evidence that it was ever repeated. In addition to the lack of
substance to Respondent Companies' contentions herein, there is the additional
fact that Tanner had informed then Foreman Dwyer that he considered Theo-
dore to be the leader in the CIO "agitation" and said that Theodore would no
longer be with Plant 2 around the first of the year (1949). On the entire picture,
the undersigned, finds that the.: reasons advanced for the selection of Theodore
for discharge are not the true reasons.
Herve Bourque entered the employ of Plant 2 in May 1946 and was assigned
to the packing room under Foreman Nutting. He too signed a CIO card at the
Opera House meeting, signed the petition at the City Hall meeting, openly wore
a 010 button, and was among the group of CIO supporters that congregated at
Theodore's workbench. He was one of the CIO stewards elected at the City Hall
meeting whose names were furnished to Tanner by Theodore ; moreover, his
name was one of those listed` in the advertisement in the Gardner News on
October 22 which urged employees to attend the latter meeting. Bourque was
discharged without notice on January 11 by Foreman Nutting who informed
him that he was being permanently laid off and would not be recalled.
Respondent Companies contend that Bourque was selected for discharge for
two reasons: (1) Excessive absenteeism; and (2) his failure to do certain work
other than his regular work when the latter temporarily ran out. As for the
first reason, both Nutting and Tanner alleged that Bourque had regularly been
absent on Monday mornings for some period of time and, according to Nutting,
this condition had existed for 1 year prior to the discharge. Nutting claimed
that Tanner often complained to him about Bourque's absences, and similarly
Tanner claimed that Nutting complained regularly to him about Bourque's
absences . Significantly, neither ever saw fit to give Bourque a warning con-
cerning his purported absences. Although Nutting at one point claimed that he
had spoken to Bourque about his absences on three or four occasions during the
latter part of 1948, he later testified that he had never warned Bourque about
them. In fact, after one absence by Bourque, Nutting allegedly asked him the
reason and Bourque replied that he had been ill. Nutting asked if Bourque had
obtained a certificate from a doctor and Bourque replied that he had not. Nut-
ting admittedly dropped the matter at this point ; moreover, there is no evidence
that such a certificate was required by rule or custom. Tanner never mentioned
these purported absences to Bourque.
Furthermore, the record does not support these contentions concerning his
absences. During the cross-examination of Bourque, it appeared that he had
H. N. THAYER COMPANY 1161
been absent 1 day during the week of August 22, on a Monday during the week
of October 3, and on a Wednesday during the week of October 10. Bourque
denied that there had been any other absences during that period and no evidence
was introduced of any. Respondent ;Companies introduced a record of Bourque's
earnings during -1948 which discldse•a drop inhours• worked and weekly earnings
during the last quarter of 1948. The exhibit does not however reflect days
worked or the additional fact that business had been dropping off during the
last quarter of 1948, resulting in layoffs and the working of a 4-day week for
approximately 1 month prior to December 16; it is obvious that there was a
general shortage of work for the employees who were largely pieceworkers.
Finally, as to the general claim that the discharge was brought about basically
by the economic need to eliminate employees, it appears, according to the testi-
mony of Nutting, that Bourque was actually replaced by an employee of less
seniority, Prevost, who had previously done work of a different nature.
It was also contended that Bourque had willfully refused to perform certain
work. There was a practice in the plant that when piecework ran out, the
worker would either be sent home or be reimbursed while standing by at an
hourly rate,,based upon his average earnings. It is claimed that at one point
Bourque raised the question whether he should perform other duties-while
waiting for his regular work to resume. Nutting testified that Bourque took
this position on two occasions during the fall of 1948; that on the later occasion
he and Bourque went to see the president of Council 2 and took up the matter
with him ; that the council president decided that Bourque would have to do this
other work ; and that Bourque thereafter complied with the decision. There is
no evidence of any further difficulty of this nature.
As is apparent, this minor incident was considered precisely that by Nutting
and Tanner . There was no reprimand of Bourque at the time ; the issue was
decided against Bourque and he complied with the decision . Furthermore, for
some months thereafter until the occasion of his discharge , there is no evidence
of any difficulty on that score. The raising of this issue as a cause for the dis-
charge impresses the undersigned as an afterthought, particularly where it has
been raised in the face of cogent evidence,.set forth above, revealing other rea-
sons for the discharge ; for example, there is direct evidence that on two occasions,
following the City Hall meeting,a,nd again on or about January ,10,1949, Tanner
described>Bourque, to Council;2dpresident-Arsenault as, a CIO man. In sum, the
lack of substance to the first instance and the trivial nature of the second, which
was a relatively ancient incident , are apparent.
Edgar Gallant entered the employ of Plant 2 in April 1946 as a packer under
the supervision of Foreman Nutting. He signed a CIO card at the Opera House
meeting, wore a CIO button, and also signed the petition at the City Hall
meeting. He was considered an active CIO supporter by Tanner, as is demon-
strated by the fact that Tanner, while commenting to Dwyer late in 1948
concerning those employees he considered to be active in the CIO movement,
referred to Gallant as a "rabble rouser." Although he was top man in seniority
in his department, he was discharged by Foreman Nutting on January 10.
Tanner initially claimed that Gallant was selected for discharge because he
had been warned,, repeatedly concerning the improper marking of cartons he had
packed ; he variously testified that he, Tanner, warned him twice, that he
warned him a number of times during the 6-month period prior to his discharge,
and again that he warned him twice. Furthermore, Respondent Companies,
while cross-examining Gallant, raised the contention that Gallant had been
excessively absent. The latter claim is not supported by the testimony of
Tanner or Foreman Nutting, both of whom predicated Gallant's selection solely
on his errors as a packer. Obviously, it is an afterthought raised at the hearing
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the first time and not a part of the true factual picture. Southern Furniture
Manufacturing Coni any, 91 NLRB 1159.
Turning to the contentions that Gallant made a number of errors in his work,
there is no evidence that his work was anything but satisfactory during 1946
and 1947. It is contended by Nutting that he spoke to Gallant on four or five
occasions during the year 1948 because of his errors; nevertheless, although
Gallant was laid off when the plant was shut down on December 16 until
approximately January 3, he was considered competent enough to be recalled on
th ,t date. Clearly these errors in packing, if committed, were not considered
serious enough to warrant his discharge during the entire year of their alleged
commission, 1948, and did not interfere with his recall in January 1949. Con-
sequently,-even on the basis of the testimony of the witnesses for Respondent
Companies, the undersigned believes this reason not to be the true reason for
Gallant's selection. This is buttressed by the unsupported contention, raised at
the hearing, of excessive absences. The fact is, as Gallant uncontrovertedly
testified, that he was absent on a number of occasions and received permission
on each of them.
Furthermore, as previously stated, Gallant was apparently accepted as a
competent packer for the first 2 years of his employment. In fact, at the time
of his discharge, all the other packers had already been laid off and he was the
last one remaining. Foreman Nutting admitted that another packer, Pameleau,
committed errors in packing and that he, Nutting, . made •a general complaint to
all three packers who were working during the latter part of 1948. Nutting also
admitted that all the packers made errors which he had called to their attention.
His further testimony that Gallant made more errors than the others is rejected
in view of the fact that the other packers had been laid off and Gallant retained.
Accordingly, the undersigned credits the testimony of Gallant that Nutting, in
discharging him, stated that his work had been satisfactory, but that the order
for his discharge had come from the office, as Nutting had stated to other dis-
chargees on January 10 and 11. -
Lauric Gallant entered the employ of Plant 2 in September 1945 and at the
time of his discharge on January 11 was employed on the assembly line under
Foreman Nutting. He wore a CIO button in the plant, signed a CIO card at
the Opera House meeting, and also signed the petition at the City Hall meeting.
Apparently Gallant had gotten wind of his impending discharge and at noon on
January 11 suggested to Nutting that as he was to be discharged that evening,
it would be more equitable to tell him then and there. Nutting,replied that he
did not have Gallant's name in his book.17 Gallant, however. was correct in his
understanding and was discharged that afternoon by Nutting who told him that
it was none of his doings and that he had received his orders from the office.
Gallant immediately asked Tanner the reason for the discharge, and Tanner
replied that work was scarce, help was plentiful, and in addition, that "you
give me too mllch bull."
Tanner claimed that Gallant was selected because he had become lazy during
the month prior to his discharge and that, in addition, shortly before his dis-
charge, he, Tanner, learned that Gallant had been overheard referring to officials
of the Company as a "cheap bunch of bastards " According to Nutting, he
overheard this statement by Gallant as he, Nutting, passed by, and immediately
reported it to Tanner. Here, as elsewhere, there were discrepancies in the
versions of the Companies' representatives. Tanner claimed that he was pres-
ent on occasions when Nutting reprimanded Gallant for laziness, but he else-
where testified that he was not present on any of these occasions. Tanner testi-
17 Nutting's denial of this conversation is not credited, as is his denial of various other
statements made to the dischargees on January 10 and 11.
H. N. THAYER COMPANY 1163
fled that Nutting had discussed Gallant's poor performance with him, but
Nutting, on the other hand, testified that he never discussed Gallant's work with
Tanner and, for that matter, that Tanner had not discussed it with him. With
this is to be considered the fact that Nutting claimed Tanner merely notified him
of Gallant's selection for discharge and said nothing further.
Gallant denied using the language, set forth above, attributed to him by Nut-
ting on the occasion approximately 1 week before his discharge. However, even
assuming that he did use this language in a conversation with another employee,
Nutting forthwith reported it to Tanner and, as is apparent, no action was taken.
Neither Tanner nor Nutting spoke to Gallant about it and, while the reference,
if made, was an uncomplimentary one, it is obvious that it was not considered
sufficient to even warrant a ,reprimand at, the time. The undersigned believes
that this language, if used by Gallant, was recognized as the language of the
factory, was considered as trivial, and in fact was condoned at the time. In
contrast with these flimsy reasons, notice must be taken of the fact that Gallant,
as was Theodore , had been assigned to work on samples for the furniture shows.
There is in addition the credited testimony of Dwyer that Tanner had referred
to Gallant as being too active in the CIO movement. Accordingly, the under-
signed rejects Respondent Companies ' contentions herein and finds that the
assigned reasons are not the true reasons for the selection of Laurie Gallant for
discharge.
Fred,Kirby entered the employ of Plant 2 in,Qctober,1945 as a riveter under
Foreman Nutting. He was top man in seniority in his department at the time
of his discharge on January 11, 1949. On that occasion, Foreman Nutting in-
formed him of his discharge and when Kirby asked the reason , Nutting replied
"no reason ." Nutting's testimony that he did not make this reply is rejected.
Kirby wore a CIO button, had signed a CIO card at the Opera House meeting.
and had also signed the petition at the City Hall meeting.
It is contended that Kirby was selected for discharge because of repeated
violations of washup and rest periods in that he left his place of work prior to
the sound of the buzzer which announced the commencement of the respective
periods. Nutting alleged that this took place regularly throughout Kirby's em-
ployment and that he had warned Kirby about it on several occasions ; inas-
much as Kirby had been in the employ of Plant 2 for over 3 years, the under-
signed is unable to credit this testimony by Nutting. Assuming the condition
did exist, it is apparent on the face of Nutting's testimony that it was tolerated
and overlooked for a period in excess of 3 years and in fact was ancient history
in January 1949. The undersigned deems it highly unlikely that this condition,
if it did exist and was not approved of, would have been permitted to continue
for so long a period.
Nutting further alleged that he took this matter up with Council Steward
Alcide Gallant in October 1948. Not only was Gallant's testimony specifically
to the contrary , but in addition , Nutting conceded that Kirby's departures
after October 1948 were entirely satisfactory . Moreover , as Foreman Dwyer
credibly testified , Superintendent Tanner in his discussions of the CIO activities
of employees , told Dwyer that Kirby was active in the movement ; that Kirby's
CIO activities were not to be tolerated ; that he learned Kirby had been wash-
ing up early ; and that if he, Dwyer, observed -Kirby walking through Dwyer's
.department to the washroom ahead of time, which was the customary route, he
was to report this to Tanner. Dwyer never saw Kirby pass through the depart-
ment ahead of time and made no report of this nature to Tanner . Kirby credibly
testified that he had been spoken to by Nutting in August 1948 about washing
up ahead of time, that he did not do it again , and that Nutting did not mention
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ii again. Under all the circumstances outlined above, the undersigned credits
Kirby's testimony and rejects the reason advanced by Respondent Companies as
trivial, an afterthought, and not the true reason.
Mallet Robichaud entered the employ of Plant 2 in August 1945 and after
I month was assigned to the assembly room under Foreman Nutting. There is
no evidence of his work being anything but entirely satisfactory during the years
that followed until his discharge on January 10, 1949. On that date he was
discharged by Nutting who stated that he had to let him go. When pressed for
a reason, Nutting added that he was satisfied with Robichaud's work but that
"sometimes you can't think the way you want to." Joe Theodore had been
discharged at about the same time and was on the scene as Tanner passed by
and told Robichaud, as he did Theodore, that the Company could obtain better
workers. Robichaud had'signed a CIO card at the Opera House, had signed the
petition at the City Hall meeting, and also wore a CIO button. In fact, Nutting
admitted that he had observed Robichaud wearing a CIO button.
Tanner contended that Robichaud was discharged for the same reason as
Kirby, namely, abuse of wash periods ; according to Tanner, this was called
to his attention by Nutting on but one occasion approximately in October 1948.
-Nevertheless, it is-urged that Robichaud was selected for discharge on the basis
of this information. The undersigned credits Robichaud's testimony that he had
not abused the wash periods and that he had not been warned about it. It is
believed that the cause advanced did not exist in fact and, moreover, even assum-
ing that there was one warning to Robichaud, it is obvious that this was ancient
history, was long condoned, and was not repeated. Tanner's statement, when
pressed for a reason for the discharge, that the Company wanted better men
is peculiar in view of the fact that this was primarily supposed to be an
economic reduction in force. Thus the discharge slips merely referred to a
curtailment in production. Hence, it is found that the assigned reason was not
the true reason for the discharge 1°
Frank Waskiewicz entered the employ of Plant 2 in February 1946. After a
period of time in the stroller department, he was assigned to the baby walker
department and at least during 1948 worked there under the supervision of then
Foreman Ray LeBlanc. On or about January 1, LeBlanc was demoted, and for
approximately 1 week prior to his discharge, Waskiewicz was technically under
the supervision of Foreman Nutting. He signed a CIO card at the Opera House
as well as the petition at the City Hall meeting. Moreover, he was elected a
CIO steward at the latter meeting and his name was one of those furnished
to Superintendent Tanner by Joe Theodore as a CIO steward. He was dis-
charged on or about January 10 by Nutting who proceeded to ask Waskiewicz
if he knew the reason. Waskiewicz stated that he believed it was to be for union
activities and Nutting replied in the affirmative, adding that he had been satis-
fied with Waskiewicz' work and that the order came from the office. Waskiewicz
went to see Tanner, asked the reason for the discharge, and was informed that
the Company wanted better men. The record establishes, however, that Waskie-
wicz was a skilled and competent workman as is demonstrated by the fact that
on one occasion he was assigned as a trouble-shooter for a period of 3 months
to a plant in a nearby city which was subcontracting certain operations for
Plant 2.
Tanner alleged that Waskiewicz was discharged for spending too much-time
talking to other employees, thereby slowing up production. He claimed that he
18 Nutting 's testimony that he spoke to Robichaud three or four times during the latter
part of 1948 concerning this alleged abuse is not credited.
H. N. THAYER COMPANY 1165
had mentioned this to Waskiewicz on one occasion, approximately in September
1948, after then Foreman LeBlanc brought the matter to his attention. On the
other hand, Tanner elsewhere testified that although he had noticed this lack
of attention to duty on a number of occasions, he had never mentioned it to
Waskiewicz. Tanner further claimed that Foreman LeBlanc had brought this
matter to his attention on three occasions, approximately in September, October,
and November, 1948, respectively. Waskiewicz denied that he had ever been
reprimanded or criticized by management.
The testimony of Waskiewicz is supported by the credited testimony of then
Foreman LeBlanc which is in direct conflict with that of Tanner. According
to LeBlanc, Waskiewicz worked under him for 1 year, was an excellent worker,
and was one of the best producers in the department: Moreover,- he was reliable
and remained at his workbench. He was so dependable that whenever LeBlanc
needed extra production he would request it of Waskiewicz. LeBlanc specifically
denied that Waskiewicz had neglected his work by talking to other employees
or that he, LeBlanc, had ever complained to Waskiewicz about his work. In fact,
immediately after Waskiewicz' discharge, Tanner came to LeBlanc with a sheet
bearing reasons for the discharge and asked LeBlanc if he had anything to add
to it. LeBlanc on that occasion told Tanner that Waskiewicz was one of his
best workers and had no time to spend away from his bench.
That Tanner suspected Waskiewicz of being a CIO supporter is shown by
the fact that shortly before Christmas,. Tanner told- LeBlanc, that he thought
Waskiewicz was one of those in LeBlanc's department who was keeping the CIO'
activity moving. Moreover, as Foreman Dwyer testified, Tanner inquired
whether Waskiewicz had been in his department when he was supposed to be
working elsewhere, and Dwyer informed him, as was the fact, that he had never
observed Waskiewicz there on such occasions. Under all the circumstances
present herein, the undersigned finds that there is no substance to the reasons
advanced for the selection of Waskiewicz for discharge 1B
Dominick J. Daddario, Jr., entered the employ of Plant 2 in January 1946 and
shortly thereafter was transferred to the pressroom under the supervision of
Foreman Erickson. He wore a CIO button, signed a CIO card at the Opera
House meeting, and also signed the petition circulated at the City Hall meeting.
He was discharged on the afternoon of January 11 by Erickson who told him
that the decision was not Erickson's but rather that of top management. Tanner
claimed that Daddario had broken dies through carelessness, that he had pre-
viously been disciplined for smoking, together with Joe Theodore, and that he
did not turn out sufficient production to make the pay he should. Erickson
supported Tanner by stating that Tanner had furnished these reasons to him,
Erickson, at the time of the discharge.
With respect to the smoking, it is readily apparent that as in the case of Theo-
dore, this was a relatively ancient incident during the summer of 1948 for which
the two had been disciplined. It was never repeated and was apparently long
forgotten until it was resurrected in January 1949. As a second ground. Erick-
son contended that Daddario failed to make his production quota on an average
of twice a month, and that this condition had existed for 2 years. Assuming this
to be so, the fact is it was permitted to exist for 2 years; this indicates how
little it troubled management, over so long a period:' '=Moreover, Erickson im-
10 Findings herein are based upon the credited testimony of Waskiewicz, LeBlanc, and
Dwyer. Waskiewicz and LeBlanc were forthright witnesses who impressed the under-
signed favorably . As elsewhere and for reasons appearing above, the Inconsistent and
unsupported testimony of Tanner is not accepted.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peached himself in his testimony ; he testified at one point that Tanner had dis-
cussed this aspect of Daddario's work with him about every week during this
period, but he elsewhere testified that Tanner did not discuss this with him while
he, Erickson , was assistant foreman. Significantly , and shattering Erickson's
testimony herein, he was assistant foreman for the entire year of 1948, which
renders his prior version incredible.
As for the third reason, the fact is, as Daddario admitted, that he did spoil a
die. This was also the testimony of his foreman, Dwyer, who further testified
that Daddario had some trouble with his work. However, according to Dwyer,
there was always some trouble with dies in the pressroom and he told of one
occasion when employee Kasper caused more serious damage to a die than that
inflicted by Daddario; on that occasion, although Tanner was present and knew
of it, Kasper was not disciplined. Moreover, as found above, immediately prior
to the discharges, Tanner had instructed Council 2 President Arsenault to put
off circulating the council contract until he, Tanner, discharged some employees,
and on that occasion had added that he believed Daddario to be a CIO man. In
view of the above and the lack of substance to the reasons advanced by Re-
spondent Companies, together with the expressed malice by Tanner toward
Daddario for CIO activities, the undersigned concludes that the reasons advanced
herein are not the true reasons.20
Vieno Sinivuori entered the employ of Plant 2 in October 1945 and was assigned
to the upholstering and stitching department under the supervision of Foreman
.Bagley. She signed a CIO card at the Opera House, signed the petition at the
City Hall meeting, and wore a CIO button. She was one of the CIO stewards
elected at the City Hall meeting whose names were furnished to Plant Superin-
tendent Tanner by Joe Theodore. Sinivuori was discharged on January 11 by
Foreman Bagley who told her that her services were no longer required.
Bagley claimed that he did not know the reason for the discharge and that he
merely received a notice from Tanner calling for the discharge of Sinivuori as
well as Simkewicz. As found above, this squarely refutes the testimony of
Tanner that he consulted with the foremen concerning these discharges so as to
select the least competent help. Furthermore, there is absolutely no evidence of
Sinivuori being anything but a competent employee for the period that she was
employed by Plant 2, which was in excess of 3 years. This is in effect conceded
by Respondent Companies for`they, on January 17, 1949, sent her,a letter recall-
ing her to work and pointing out that she had been terminated through an error
on the part of the Companies. She was reinstated with full seniority on or about
January 18 and worked until the strike commenced on January 26, at which time
she joined the strikers.
Respondent Companies do not attempt to explain the process by which Sinivu-
ori. was selected for discharge or, for that matter, just how the alleged error
was made. It is inconceivable that, even in error, she might have been selected as
an incompetent employee for surely her ability, after so long a time in the employ
of Plant 2, was well known to both her foreman and Tanner. The fact that (1)
Bagley was not consulted, (2) no affirmative explanation was advanced as to
how she was selected, and (3) Tanner's version of the discharge is unimpressive
and incredible, impels the finding upon a preponderance of the evidence that she
was selected for discharge because of her CIO activities and membership which
were known to Tanner. Just how and why Tanner later changed his.mind is not
20 Findings herein are based upon the credited testimony of Daddario and Dwyer. As
demonstrated , Erickson gave inconsistent testimony and as a result his denial of the state,
ments attributed to him by Daddario at the time of his discharge is not credited.
H. N. THAYER COMPANY 1167
explained except for his conclusion that an error was made. But that in any
event is immaterial because it is clear on a preponderance of the evidence that
she was selected for discharge for discriminatory reasons.
, The undersigned will now take up the cases of the eight employees who, while
in a layoff status, were discharged, on January 10 and 11 together with the nine
whose cases have been discussed above.
Alyyre Gallant was another long-term employee who had entered the employ
of Plant 2 in November 1945 at which time he was assigned to the assembly de-
partment under Foreman Nutting. Gallant, who had signed a CIO card at the
Opera House and the petition at the City Hall meeting , was laid off on or about
October 26, the day following the City Hall meeting, and remained in that status
until the time of his discharge On January 11 he received a form letter from
Tanner stating that he was terminated because of a curtailment of production
schedules and would not be recalled to the employ of the Company. Paradoxi-
cally, Gallant had visited the plant on the previous day and asked Foreman Nut-
ting when he was to be recalled; Nutting had replied that he would be recalled
that week or the following week. As stated, Gallant received his discharge notice
on the following day. His case is similar to that of Sinivuori, discussed above, in
that Tanner telephoned him on January 20 and offered to reinstate-him; Gallant
accepted, returned on the following day, and worked until the strike.
Although all of those selected for discharge were allegedly selected because
of their lack of ability, this is one of the cases where Respondent Companies,
admitted that they had erred. Just how an error could be made as to the ability
of an employee of over 3 years' tenure is unexplained. Moreover, there is no
direct evidence that Gallant was anything but a competent workman at any'
time. Tanner claimed that Nutting, in discussing the, ability of men on January
10, suggested that Gallant be selected for discharge. Although there is no di-
rect evidence of this nature from Nutting, Tanner contended that Nutting had
complained that Gallant always wanted to select the tasks he was to work on.
This, of course, is contradicted by the fact that (1) Nutting on January 10 told
Gallant he was to be recalled , ( 2) there is no evidence of warnings or reprimands;
of any sort to Gallant , and (3 ) it is conceded that Gallant should not have been
selected for discharge as an undesirable employee . Moreover , he was selected for
discharge out of seniority as is shown by the fact that Edwin Orre, whose seniority
dated back , only to July 1947 , was recalled to work- on January 11 or 12:
As in the case of Sinivuori , there is actually no explanation for the selection
of Alyre Gallant for discharge out of seniority . Under all the circumstances,
the undersigned finds on a preponderance of the evidence that he was selected
because of his union activity and membership and because Respondent Com-
panies believed him to be a CIO supporter . The fact that he was later recalled
does not dissolve the original discrimination ; it is solely an element at such time
as the remedy concerning Gallant is under consideration.
Adelard Pairier entered the employ of Plant 2 in July 1947 and was assigned
after a period of time to the assembly department under Foreman Nutting.
He signed a CIO card at the Opera House as well as the petition at the City
Hall meeting . There is no affirmative evidence of his work being anything but
satisfactory up to, the time of his layoff on or about October 26, 1948, the day
after the City Hall meeting. While in this layoff status - he- was sent the form
letter by Tanner on January 10, announcing that he was discharged because of
a curtailment of production and would not be recalled. However , he was re-
called by Tanner on or about January 25 and did return to work that day.
As in the case of Alyre Gallant, Respondent Companies conceded that an error
had been made , although Tanner at one point claimed that Poirier was dis-
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged for his unwillingness to work. These two positions the undersigned
is unable to reconcile. In the absence of any credible evidence concerning his
purported derelictions, the undersigned is impelled to conclude that Poirier was
terminated because of his suspected CIO activity and membership in order to
avoid recalling him to work. That he was recalled after he was originally
discriminated against is immaterial ; the contentions of Respondent Companies
herein are rejected for lack of substance.
Serve LeBlanc entered the employ of Plant 2 in April 1947 and was assigned
to the baby walker department under Foreman Ray LeBlanc, apparently no
relation. He signed a CIO card at the Opera House meeting, signed the peti-
tion at the City Hall meeting, and wore a CIO button. There is no evidence of
any complaints having been made to him concerning his ability or the per-
formance of his duties. He was laid off on or about November 11, and on January
11 received the form letter sent to those in a layoff status announcing that his
employment was terminated because of a curtailment of production schedules and
that he would not be recalled.
Tanner claimed that LeBlanc was selected for discharge on the basis of com-
plaints made by Foreman Ray LeBlanc that he constantly engaged in exhibitions
of shadow-boxing in the department in order to entertain his coworkers, thereby
neglecting his own work. Tanner alleged that he had personally observed these
exhibitions on several occasions and moreover that they happened weekly "about
all the time he [LeBlanc] worked, there." Foreman LeBlanc was, not questioned
concerning this employee and to that extent, Tanner's statement is unsupported.
Cf. Ohio Associated Telephone Co., 91 NLRB 932. Much later in his testimony,
Tanner alleged that LeBlanc had been doing a "lot of talking" at work ; this too
was unsupported by particularization and was denied by LeBlanc.
Not only did LeBlanc deny engaging in this conduct, but even assuming Tan-
ner's version to be in accord with the facts, it immediately places Respondent
Companies in the position of having permitted this condition to exist for over 1
year without a reprimand of any sort to the offender and then suddenly decide
that the condition merited discharge. Furthermore, Respondent Companies
sought to show, during the cross-examination of LeBlanc and apparently as a
cause for discharge, that his earnings had dropped during September and No-
vember 1948. No evidence was adduced of any drop in earnings peculiar to the
case of LeBlanc. In view of the above, the inherent lack of substance to the
contention raised herein concerning LeBlanc's failure to attend to work, as well
as the raising of another reason which is totally unsupported by the, record, the
undersigned finds that the reasons advanced by Respondent Companies for the
discharge of LeBlanc are not the true reasons.
Robert Minns, Jr., entered the employ of Plant 2 in February 1948 and was
assigned to inspection under the supervision of Foreman Nutting. He signed a
CIO card at the Opera House meeting as well as the petition at the City Hall
meeting. Sometime after the latter meeting, as the result of an unexplained dis-
agreement with Foreman Nutting, Minns told Nutting that he, Nutting, would be
unable to act similarly if the CIO organized the plant. Plant 2 shut down on or
about December 16 until January 3. Prior thereto, work had been slack and,
in order to avoid laying off Minns, Nutting arranged, 1 or 2 weeks before Decem-
ber 16, to transfer him temporarily to the shipping department under Foreman
Boucher. The transfer was carried out and Minns was laid off with all the
employees on December 16 and instructed to return on January 3. On that date
Tanner decided, because production was still low, that Boucher and his assistant
could handle the job which Minns had been filling temporarily and accordingly
r
H. N. THAYER COMPANY 1169
Minus was laid off on that date by Boucher who told him that there was no work
for him. On or about January 10, Minns received the form letter which stated
that he was discharged because of a curtailment of production schedules and that
he would not be recalled.
Tanner originally claimed that Minns was discharged for laziness and un-
willingness to work. There is no claim on the part of Foreman Nutting that
Minus was an unsatisfactory worker prior to his transfer to the shipping depart-
ment 1 or 2 weeks before December 16, 1948. And inasmuch as management saw
fit to transfer Minns to another job in order to avoid laying him off on that occa-
sion, it follows that he was not then considered an undesirable and unsatisfactory
employee. Respondent Companies' claim must then be that his undesirable fea-
tures manifested themselves during the brief 1- to 2-week period prior to Decem-
ber 16. In support thereof, there is testimony that Minns' duties were to pick up
packages sent down a chute from the packing departriient to the shipping depart-
ment ; that while packages were not coming down he was instructed to bag cer-
tain small hardware ; and that he was reprimanded for neglect of duty. Nutting
claimed that on two occasions when he, Nutting, required bagged hardware he
found Minns absent from his post and instructed him to return. Boucher claimed
that on one occasion, at the request of Nutting, he instructed Minns to remain
at his post. Minns admitted that he had been told by Nutting and Boucher not
to wander away from his place of work.
The above incidents on the whole'impress the undersigned as rather trivial.
Minns, a capable and satisfactory employee, was transferred to a temporary
operation for 1 or 2 weeks so as to give him some additional work before the
general layoff. Not only was he inexperienced at the task, but it is contended,
on the basis of one or two minor aberrations during this 1- to 2-week period,
that he was an unsatisfactory employee who was not to be reinstated to his
regular job which he had satisfactorily filled. Moreover, the fact that he was
instructed to return to work on January 3 together with a majority of the em-
ployees constitutes proof that his conduct on the temporary job was not con-
sidered reprehensible or as meriting any censure other than that already given.
Under these circumstances, the undersigned finds that there is little substance to
the reasons advanced by Respondent Companies for the discharge of Minns.
When this is coupled with the general criteria set forth at the introduction of
this section, together with the evidence of the knowledge by Nutting, contrary to
his testimony, of the CIO sympathies of Minns, the undersigned concludes that
the reasons advanced by Respondent Companies are not the true reasons.
Alcide Gallant entered the employ of Plant 2 in 1945 and was assigned to daub-
ing and later riveting under the supervision of Foreman Nutting. He was laid
off shortly after October 22, but apparently before the City Hall meeting on
October 25. He signed a CIO card at the Opera House on October 19 and his
name also appeared on the newspaper advertisement placed in the Gardner
News on October 22 which urged employees to attend the City Hall meeting.
While in a layoff status he received the form letter from Tanner on or about
January 10 which stated that he would not be recalled due to curtailment of
production.
According to Tanner, Gallant was terminated on January 10 because he con-
tinually caused trouble among the employees in his department. Tanner ad-
mittedly never observed this but claimed that it had been called to his attention
by Foreman Nutting. However, Nutting was not questioned concerning this
discharge and here, as elsewhere, Tanner's testimony stands unsupported
07iio Associated Telephone Co., supra. Tanner elsewhere raised the contention
1170 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
that Gallant had beenan aggressive steward in pressing Workers' Council griev-
ances. In fact, immediately after the October layoff of Adelard Poirier, whose
discharge has been discussed above, Gallant protested to Tanner that Poirier had
been laid off out of seniority. On that occasion Tanner accused him of trying to
foment trouble. Moreover, Foreman Dwyer credibly testified that Tanner re-
ferred to Alcide Gallant, while in a layoff status, as an "instigator" and a "rabble
rouser" ; stated that Dwyer was not to admit him to the factory ; and that Dwyer
should notify Tanner if Gallant ever presented himself at the plant?' The fact
that Gallant was allegedly an "instigator" did not, however, cause Respondent
Companies to consider discharging him until such time as Tanner was attempting
to eliminate the CIO supporters from Plant 2 at a time when the new contract
with Council 2 was about to be circulated. Under all the circumstances present
herein, the undersigned finds that the reasons advanced by Respondent Com-
panies for the discharge of Gallant are not the true reasons.
Albert Gallant entered the employ of Plant 2 in March 1947 and was assigned
to the pressroom under the supervision of Foreman Erickson. He signed a
CIO card at the Opera House and also the petition at the City Hall meeting.
He was laid off early in November 1948, but was recalled after several days
and worked for several weeks until Thanksgiving at which time he was again
laid off. He remained in a layoff status until he received the form letter on
or about January 10 notifying him that he would not be recalled to work due
to a curtailment of production.
It is apparently the contention of Respondent Companies that Gallant was
selected for discharge because he complained that the operations to which he was
assigned were incorrectly priced and that as a result he did not earn the wages
he should. Tanner and Erickson contended that Gallant was transferred to
various jobs in the pressroom because of his complaints that he was not earning
adequate wages on the operations he was then doing. There is no evidence
that the quality of his work was anything but. satisfactory or that Gallant was
ever warned or reprimanded concerning the extent of his output.
While Erickson contended that Gallant did not make his production quota,
he also testified that he did not observe his work during 1948. Tanner recalled
discussing with Gallant whether or not the job he was assigned to was properly
timed and, according to Tanner, he retimed it on one occasion during the summer
or fall of 1948. It is apparent that this was a relatively ancient complaint by
the employee with no evidence of any additional complaint for some months
prior to his discharge. Erickson personally knew nothing of Gallant's work
during 1948 and his testimony that Foreman Dwyer had 'commented that
Gallant's work was not satisfactory is not supported by any testimony from
Dwyer. Moreover, Gallant was laid off during the early part of November 1948,
but was considered satisfactory enough an employee to merit recall for several
additional weeks of work until business again deteriorated. This, to the under-
signed, is indicative of the lack of substance to the reason advanced by Re-
spondent Companies. Accordingly, it is found that the assigned reason is not
the true reason for Gallant's selection for discharge.
Bertha Anderson entered the employ of Plant 2 as far back as "November
1945 and was assigned to the upholstering department under the supervision
of Foreman Bagley. She wore a CIO button, signed a CIO card at the Opera
House, signed the petition at the City Hall meeting, and was elected a CIO
steward at the latter meeting. Her name was among those furnished as CIO
0 Tanner 's denial of the above conversation with Dwyer is not credited.
11. N. THAYER COMPANY 1171
stewards to Plant Superintendent Tanner by Joe Theodore and her name also
appeared on the advertisement which was inserted in the Gardner News on
October 22, urging employees to attend the City Hall meeting. She was laid
off by Bagley in the latter part of October, after the Opera House meeting;
the record is not clear whether or not her layoff preceded the City Hall meeting
on October 25. She too received the form letter on or about January 10 stating
that her employment was terminated due to a curtailment of production and
that she would not be recalled.
Tanner alleged that Anderson was selected for discharge because of absences
from her place of work. This is also assigned as a reason for her layoff in
October. It is conceded that Anderson was a satisfactory employee and Bagley
in fact described her as a highly competent worker. ' He testified at several
places in the transcript that despite her purported absences from her machine,
her earnings did not drop, thus indicating her skill and rapidity as an operator.
There is no evidence that any complaints were ever addressed to Anderson by
either Bagley or Tanner. According to Tanner, Bagley complained that An-
derson's absences from her bench rendered it difficult to get out production.
Bagley predicated her layoff in October solely on the fact that he disapproved
of her absences from her bench and did not mention any effect on production.
Moreover, Anderson had been in the employ of Plant 2 for approximately 3
years at the time of her layoff and had never been disciplined. In any event,
all this took place prior to her layoff in October and, assuming the bona fides
of that layoff, it is apparent that her conduct at that time was not considered
serious enough to merit the severe penalty of discharge.
The record discloses, however, that Anderson was selected for discharge
in January 1949 by Tanner and, according to Bagley who controverts Tanner's
testimony on the point, this discharge was not discussed with him by Tanner.
Not only is the reason advanced by Tanner unimpressive but it becomes all
the more so when consideration is given to the highly active part Anderson
was playing both before and after her layoff in the CIO organizational activities.
This activity, the undersigned concludes, played a part in the decision to convert
her layoff into a discharge, rather than the reason advanced by Respondent
Companies.
Louis Poicecka entered the employ of Plant 2 in February 1948 and was as-
signed to the pressroom under the supervision of Foreman Dwyer. He was
laid off on or about November 1, 1948, and received the form letter on or about
January 10, 1949, notifying him of his discharge because of a curtailment of
production schedules. He signed a CIO card shortly before his discharge, but
did not attend the Opera House and City Hall meetings.
The reason assigned herein for his discharge was that he was lazy, unwilling
to work, and had been found asleep during working hours. According to the
uncontroverted testimony of then Assistant Foreman Erickson, he found Poicecka
asleep on one occasion during the fall of 1948. Foreman Dwyer, according to
Erickson, wished to discharge Poicecka on that occasion but relented when
informed by Erickson that Poicecka had pleaded for leniency. Tanner and
Erickson were mutually corroborative concerning complaints by Erickson relative
to Poicecka, although Tanner also claimed that Dwyer had registered com-
plaints concerning Poicecka ; this Dwyer denied.
22There was testimony by Anderson concerning statements made prior to her layoff by
Bagley to the effect that she was unwise to engage in CIO activity ; this was denied by
Bagley. The undersigned deems it unnecessary to resolve this conflict because it relates
primarily to the bona fides of her October layoff which is not here in issue, although a
resolution could conceivably shed light on her later discharge, the undersigned believes that
it would be cumulative to the facts detailed in this section of the Report.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears that Poicecka was not one of the better workers on the staff, but
the fact is that he was not discharged because of these offenses. On the con-
trary, he was retained in the employ of Plant 2 until November 1 when he was
laid off for economic reasons, as were others during the fall and winter of 1948.
True, his union activities were not outstanding and tile case of Poicecka, when
considered separately, is not as compelling as those discussed hereinabove. But
when his case is considered in its proper aspect with Poicecka as one of the
group selected for discharge on January 10 and 11, against the background of
Respondent Companies' over-all illegal motivation with respect to this group,
and in the light of the numerous reasons advanced for the respective discharges
which simply do not hold water or are trivial, the undersigned is constrained
to reject the contention that Poicecka was discharged for cause but believes
rather that he was selected for other reasons. N L. R. B. v. Vail Manufacturing
Company, 158 F. 2d 664 (C. A. 7), cert. denied.331 U. S 835. While conceivably
legitimate reasons may have played some part in his selection, it is impossible
to disentangle the legal from the illegal motive. N. L. R B. v. Remington. Rand,
Inc., 94 F. 2d 862 (C. A. 2), cert. denied 304 U. S 576; N. L. R. B v. American
White Cross Laboratories, 160 F. 2d 75 (C. A. 2) ; and N. L. R. B. v. Arcade-
Sunshine Co., 118 F. 2d 49 (C. A. D. C.), cert. denied 313 U. S. 567.
3. Conclusions
To escape from the cogent inference of discrimination inevitably drawn from
the general circumstances of these discharges and particularly from the 11
factors enumerated above, Respondent Companies have raised certain charges
of misfeasance and nonfeasance of duty by those selected for discharge. These
charges in large measure have either fallen of their own weight, have been
resurrected ancient history, or have been most trivial. Some have been shown
not to exist and others were unconvincing. Furthermore, the discharge notices
are completely silent as to the lack of ability of any of these employees, thus
further refuting the claim that these employees were selected because of mis-
feasance or nonfeasance of duty. In short, the reasons assigned by Respondent
Companies for the selection of these 17 employees for discharge simply do not
stand under scrutiny.
When consideration is given to the framework against which these discharges
took place, certain conclusions are inescapable. Reference is made to the fol-
lowing: (1) The absence of discharges at Plant 1 where the contract had already
been signed with Council 1, coupled with the fact that Plant 2 was desirous of
consummating a contract with Council 2; (2) these employees'were discharged
at a time when Plant 2 was about to recall other employees from a layoff status,
thus refuting the claim that the discharges were motivated by economic reasons ;
(3) the number of personnel was actually increasing at the very moment of the
discharges; (4) the retention of 9 of the 17 employees in its employ while other
employees were previously laid off, thus refuting the claim that those later dis-
charged were unsatisfactory employees; (5) the tenure and established ability
of the great majority of those selected for discharge;- (6) the fact that 3 of those
discharged as allegedly unsatisfactory workers were recalled and the explanation
furnished that an error had been made, despite the fact that they were not new
employees and that there had been alleged consultation with foremen by Plant
Superintendent Tanner prior to their selection; (7) the discrepancies in the
testimony of Tanner as well as between his testimony and that of the foremen ;
(8) the fact that Plant 2 went to the trouble of discharging employees in a
layoff status so as to prevent their being reached on the seniority list for recall
H. N. THAYER COMPANY 1173
to work; z3 (9) the CIO membership of all, the CIO activity of almost all, and
the outstanding support given to the CIO by some of those selected for discharge,
see F. W. Woolworth Company v. N. L. R. B., 121 F. 2d 658 (C. A. 2), and Mont-
Bomery-Ward & Co. v. N. L. R. B., 107 F. 2d 555 (C. A. 7) ; (10) the abrupt ter-
mination of the group without warning or notice during the workweek; and (11)
the expressions of hostility to the CIO by Carney during the meetings at his
home and in his speeches to the employees, the expressed intent by President
Troendle to weed out employees, and the statements by Plant Superintendent
Tanner to Foreman Dwyer, Council 2 President Arsenault, and Foreman Ray
LeBlanc, set forth hereinabove, clearly demonstrate that it was management's
purpose to frustrate the CIO campaign by the elimination of CIO adherents.
In fact, Tanner expressly stated to Arsenault, as appears below, that employees
favorable to the CIO were to be eliminated from the plant before the proposed
contract with Council 2 could be circulated. With this must be considered
Tanner's familiarity with the CIO campaign in the plant together with his knowl-
edge of the identities of the CIO stewards and of many of the CIO supporters
who were among those selected for discharge.
The evidence heavily preponderates and the undersigned finds that Respondent
Companies have discharged those employees named in Appendix C attached
hereto, save Charles Morse, because of their CIO membership and activity or
their suspected 010 membership and activity, thereby discouraging membership
therein, or because of their demonstrated or suspected hostility to Council 2, in
order to encourage membership therein, thereby discriminating with respect to
their hire or tenure of employment and interfering with , restraining ,,and coerc-
ing the employees of Respondent Companies in the exercise of the rights guar-
anteed by Section 7 of the Act. N. L. R. B. v. Bird Machine Co., 161 F. 2d-589
(C. A 1) ; N. L. R. B. v. Gonzales Padin Co., 161 F. 2d 353 (C. A. 1) ; N. L. R. B. v.
Hill Transportation Co., et at., supra; N. L. R. B. v. Brezner Tanning Co., 141
F. 2d 62 (C. A. 1) ; N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438 (C. A. 1) ;
N. L. R. B. v. Vermont American Furniture Corp., 182 F. 2d 842 (C. A. 2) ; N. L.
R. B. v. Condenser Corp., 128 F. 2d 67 (C. A. 3) ; Hickory Chair Manufacturing
Co. v. N. L. It. B., 131 F. 2d 849 (C. A. 4) ; N. L. it. B. v. Entwistle Manufacturing
Co., 120 F. 2d 532 (C. A. 4) ; N. L. it. B. v. Kentucky Fire Brick Co., 99 F. 2d 89
(C. A. 6) ; Victor Manufacturing & Gasket Co. v. N. L. it. B., 174 F. 2d 867 (C. A.
7) ; and N. L. it. B. v. Eclipse Moulded Products Co., 126 F. 2d 576 (C. A. 7).
It is further found that by instructing Foremen Dwyer and LeBlanc to engage
in surveillance of the employees ' union activities , Respondent Companies have
engaged in conduct violative of Section 8 (a) (1) of the Act. Eastman Cotton
Mills, 90 NLRB 31, and Dixie Shirt Co., 79 NLRB 12, enforced 176 F. 2d 969
(C. A. 4).
4. Charles Morse
Charles Morse was the watchman at Plant 2 and was discharged, according to
the complaint, on or about January 7, 1949. He did not testify herein and the
record supplies no other facts relative to his tenure at Plant 2 or concerning his
union activities or lack thereof. The findings that follow are based upon the
testimony of Joseph Carney with which the testimony of Troendle and Tanner
29 These laid-off employees , as regularly laid -off employees in a business marked by a
general practice of layoff and recall of laid-off employees , retained their status as employees
under the Act. Marlin-Rockwell Corp. v. N. L R. B., 116 F. 2d 586 ( C. A. 2), cert denied
313 U. S. 594 ; North Whittier Heights Citrus Ass'n. v. N. L. R B . 109 F. 2d 76 (C. A. 9).
cert. denied 310 U. S. 632; and Atlas Imperial Engine Co. (Second Supplemental Decision),
93 NLRB 268. Cf. N. L. R. B. v. Waterman Steamship Corp, 309 U S 206.
215233-53-75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Is in substantial agreement. Carney testified that he observed unauthorized
strangers at Plant 2 on a Sunday in December and reported the matter to Presi-
dent Troendle. The complaint traveled down the line of authority to Tanner
who warned the employee against a repetition of this incident. This infraction
of rules was repeated several weeks later, again observed by Carney, and again
passed along to Troendle and thence to Tanner. Tanner alleged that he dis-
charged Morse for these reasons, and according to the complaint, this took place
on January 7. Although it appears that one of the members of the unauthorized
group of visitors was Foreman Dwyer, there is no direct evidence in support of
the claim by the General Counsel that Morse was discriminatorily discharged.
Moreover, his discharge does not appear to be related to the group discharged
thereafter on January 10 and 11, and discussed above. Accordingly, it is recom-
mended that the case of Charles Morse be dismissed.
C. Domination, interference, and support
1. Plant 2A
a. Formation and history of Council 2
The complaint alleges that Respondent Companies have dominated and inter-
fered with the administration of the respective Councils and have contributed
Support to them by engaging in substantially similar courses of conduct at each.
Plant 2 opened under the direction of Plant Superintendent Tanner in May 1944
with less than 10 production workers and the number gradually expanded to
approximately 15 in January 1945. Council 2 first came into existence late in
1945, probably in October, but prior thereto significant activity on the part of
management had taken place with respect to the employees of Plant 2.
Plant 1 had enjoyed contractual relations with Council 1 since February 1940
and yearly contracts were entered into on December 15, 1940, and annually there-
after on that anniversary. The December 15, 1944, contract at Plant 1, however,
lists both Plants 1 and 2 as the contracting employer. Tanner admitted that the
Plant 2 help were included under that contract, but alleged that he did not know
bow that came about. All he recalled of the matter was that employee repre-
sentatives from Plant 2 attended the meetings of Council 1 with Plant 1 manage-
ment representatives. There is no evidence of any activity in behalf of Council -1
at Plant 2 and there is likewise no evidence of membership in Council 1 by Plant
2 employees during this period. The plain fact is that from December 1944 to
December 1945, Respondent Companies placed the Plant 2 employees under the
Plant 1 contract with Council 1 absent any demand for such coverage or proof of
Council 1 membership on their part. Furthermore, as Tanner admitted, the con-
tract was actually applied to Plant 2 employees. The undersigned believes Tan-
ner's testimony that he did not know how this arrangement came about to be
Highly improbable and it is not credited.
Late in 1945, Respondent Companies apparently decided that this dual arrange-
ment under one contract was unsatisfactory and steps were taken by the manage-
ment of Plant 2 to arrange other representation for the employees of Plant 2,
who had by then increased further to an undisclosed number. Employee Joseph
LeBlanc, a long-term employee of Plant 1 where he had worked since 1939, was
selected as the vehicle to accomplish this plan. After returning from military
service in 1945 he applied for his former position ; however, on the request of
91 Findings herein are based primarily on the testimony of Joseph LeBlanc, Arsenault,
Theodore, and Dwyer, all credible witnesses, supported in part by that of Francis Kasper.
H. N. THAYER COMPANY 1175
Tanner for whom LeBlanc had previously worked when' Tanner was a foreman
at Plant 1, LeBlanc was given employment in the riveting department of Plant 2
sometime during the fall of 1945.
Shortly thereafter, Tanner approached him at work and asked him "to contact
the boys and try to get up a workers' council just as they had in No. 1 plant . . ."
and LeBlanc agreed . LeBlanc spoke to a number of the employees and informed
them of Tanner's proposal that a workers' council be formed at Plant 2; his
efforts in this direction were met by a marked lack of enthusiasm and he imme-
diately dropped the matter. However, after several weeks, Tanner again ap-
proached LeBlanc while he was at work and asked whether he had contacted the
men ; LeBlanc reported the lack of enthusiasm which had been displayed, but
Tanner told him to try again. LeBlanc did so and encountered the same resist-
ance to the plan. A short time later, Tanner approached LeBlanc for the third
time, but, on this occasion, he banded LeBlanc a contract. Tanner stated that
President Troendle wanted a council to be established at Plant 2, and instructed
LeBlanc to circulate the contract around the shop and procure the signatures of
the employees 26 LeBlanc personally solicited and obtained the signatures of
employees to the contract and also gave the contract to employee Joe Theodore.
He told Theodore of Tanner' s instructions ; Theodore agreed to obtain additional
signatures and did so. Both employees carried on this activity during working
hours and while the various foremen were in their respective departments. The
'contract, signed by 39 employees; was then turned over to Tanner by LeBlanc. At
that point it was not signed by any officials of Council 2 who, as appears below,
were yet to be selebted . Unlike the position taken with the CIO when it com-
'menced to organize, Respondent Companies have never taken the position that
,Council 2 or Council 1 had to be certified by the Board. Nor was there, on this
occasion in 1945, any reliable demonstration of majority membership in Council
2 for the,Council in fact was not in ea-stence at the time it was recognized.
'An inspection 'of the contract, which has been introduced in evidence, dis-
closes that but for the difference in names of the contracting parties it is
identical in format and content with the contract which went into effect at
-Plant 1 with Council 1 on the same day, namely, December 15, 1945. No cred-
ible explanation concerning this duplication has been advanced, and in the
view of the undersigned it is more than a coincidence. It is apparent that
separate collective bargaining in separate plants by separate labor organizations,
which Respondent Companies contend to be the fact herein, does not result in
identical contracts. Tanner's testimony that this contract was first produced
-by LeBlanc is, not credited. In sum, the undersigned finds that Tanner gave
'the Plant 1 contract to-LeBlane,instructed him to obtain the signatures of the
employees of Plant 2, and that LeBlanc and others, pursuant to Tanner's
instructions, proceeded to obtain such signatures.
Several days after this signed contract had been turned over to Tanner, he
-proceeded to take other action. He told LeBlanc that the time had come to
elect officers and stewards for Council 2. LeBlanc agreed to proceed with this
election and again enlisted the support of Joe Theodore as well as a third
employee, Joe -Collette. Blank ballots were prepared and distributed through-
out the plant ; they were duly marked and collected during working hours.
Elected to office were LeBlanc as president, Theodore as vice president, and
,Collette as secretary-treasurer , together with various stewards.
f
E" At Plant 1 it had been the custom since 1940 to have rank-and-file employees actually
sign the contracts which had been negotiated with Council 1. As is apparent, a similar
'policy was,adopted nt Plant 2.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days later, the newly elected officers and stewards of Council 2 met
with President Troendle and Tanner and the contract was officially signed by
Troendle for management and by LeBlanc and Collette for Council 2. Troendle
congratulated the employees on their decision. He told them, however, that
although they now had a council and officers , a further matter needed to be
attended to, namely, the inauguration of a dues collection system. He pointed
out that other plants had such systems in order to have funds for hall rentals
and administrative expenses and that Council 1 had a desirable system which
had been functioning well. Troendle proposed that dues be 25 cents monthly and
that Council 2 meet monthly with management, as was the system at Plant
1. His proposal was adopted in its entirety. It may be noted that Council 1
was then operating at Plant 1 precisely in the fashion described by Troendle.
There is substantial credible evidence that these dues were thereafter collected
during working hours at the respective workbenches of the employees. Some-
time during 1947, however, a checkoff system was inaugurated and dues were
thereafter deducted from the pay envelopes each month ; this checkoff is still
followed at Plant 2. The personal dues collection system continued at Plant 1
until early 1949 when a checkoff was inaugurated there. Council 2 was and
is permitted to use the plant bulletin boards and hold meetings in the plant after
working hours. Other than for the monthly meetings with management con-
cerning whatever grievances may arise, Council 2 has held no meetings other
than an annual business meeting at which a contract for the following year
is considered and new officers elected.
Edgar Arsenault was elected president of Council 2 late in 1946 for the year
1947, and again late in 1947 for the year 1948. In December of 1946, another
contract was entered into between Council 2 and Plant 2 under circumstances
closely resembling those of the prior year. Tanner again supplied the contract
for the December 1946-47 term and instructed the representatives of Council
2 to get it signed. It appears that the employees of Plant 2 were under the
impression that they had the right to make some changes in the contract'given
them by Tanner and proceeded to make several changes in it. Council 2 rep-
resentatives then met with Troendle who inspected this proposal as revised, re-
jected it, and forthwith gave them another contract, stating that the latter
contract was in existence at Plant 1 and ". . . that is the one we want over
here. . . . We couldn't have a contract with one thing in one and a contract
at the other plant with something else. . . ." This contract was signed and
turned out to be a duplicate of the contract originally supplied by Tanner. A
comparison of the signed contract with the parallel contract at Plant 1 for the
1946-47 term discloses that they are identical in format and content, save for
the difference in the names of the parties.
There is evidence that the procedure followed in the fall of 1947 was about the
same, with Tanner again submitting the contract to Council 2 and no changes
being made in it by the Council. Here, as well, the December 1947-December
1948 contracts at the respective plants are identical. In fact, each contains a
clause that the employees of Plants 1 and 2 will, operate under one contract,
precisely the antithesis of separate collective bargaining. The December 1946
and December 1947 contracts at Plant 2 were circulated for signature through-
out the plant during working hours in the same fashion as the original Decem-
ber 1945 contract. During these years, stewards and officers were elected in the
plant; indicative of the nature of employer control of Council 2, is the fact that
the office girl, with Tanner' s permission , typed the ballots for the Council and
that the ballots when cast were placed by the respective voters in a locked bog,
the key of which was retained by the pressroom foreman . In fact, President
H. N. THAYER COMPANY 1177
Arsenault of Council 2 did not learn the results of the balloting until a notice
was placed on the bulletin board announcing them. It may be noted that during
these initial years the employees received a Christmas bonus and , in 1948, pay
for the New Year's Day holiday, and that the contracts so provided. As will
appear below , a change took place in December 1948 and January 1949.
b. Events in 1948 and the new contract
As hereinabove found, the 1948 contract at Plant 2 expired on December 15,
1948. Unlike Plant 1, a new contract was not signed until on or about January
15, 1949. The course of conduct leading up to the adoption of that contract is
set forth below.
Considerable dissatisfaction with the respective Councils had developed in
Plants 1 and 2, culminating during October 1948 in the joining of and transfer
of allegiance to Local 154 by many in both plants. This transfer of allegiance,
the extent of the CIO campaign, and the identity of the CIO supporters were
the subject of inquiry on the part of Superintendent Tanner and admittedly
came to the attention of the management of both plants . On October 26, 1948,
Local 154 notified Respondent Companies that the employees had' voted to have
the existing contracts , which were close to expiration , administered by Local
154; Local 154 also requested the commencement of collective bargaining nego-
tiations. Shortly thereafter, Joseph Carney refused to bargain with Local 154,
and on October 29 sent it a letter predicating the refusal to bargain upon the
lack of certification by the Board . Carney reiterated his opposition to the CIO
to the employee committee that visited his home early in November , and threat-
ened to close the plants rather than have the CIO represent the employees.
At this point Respondent Companies exerted other pressure on their employees
in order to procure new contracts with the respective Councils. At Plant 2,
Superintendent Tanner spoke to Council 2 President Arsenault on several occa-
sions during November. He pointed out that the current contract was about to
expire and urged that a new one be drawn up. Arsenault agreed to speak to the
employees about the matter, and did so.
Tanner also used another technique , namely, threatening to withhold economic
benefits. The employees of Plant 2 had been paid Christmas bonuses at Christmas
in 1945, 1946, and 1947 , as well as a New Year ' s Day bonus for New Year's Day
1948; the respective Plant 2 contracts had regularly made such provision for the
former benefit and these were usually paid after the commencement of the new
contract on December 15 of each year. It is apparent that the Christmas bonus
at least had become a regular aspect of the annual wage and was regarded as
such by the employees. The Christmas bonus was not paid in December 1948
and Council 2 President Arsenault asked Tanner if it was to be paid. Tanner
replied, "No workers' council contract, no bonus," and added that this was his
final position ; Arsenault relayed Tanner 's position to the employees . Moreover,
just before Christmas, Arsenault met President Troendle and asked him about
the bonus . Troendle replied in the same vein as Tanner , stating, "No contract,
no bonus . . . We had better sign up, get the workers' council going . . . sign
up something and everybody would be happy" ; Arsenault also relayed this
statement to the employees.
A similar view was expressed to Foreman Dwyer by Superintendent Tanner
shortly before the expiration of the Plant 2 contract on December 15, 1948. He
told Dwyer that there would be no bonus if a contract was not in effect by Christ-
mas, but that if a contract were submitted and approved things would be as they
always had been. Tanner told Dwyer not to say this openly to the help, but
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
added that "it could be known around." Dwyer followed Tanner's instructions
and did pass this information along to a number of the employees, telling them
if a council contract were drafted and approved the Christmas bonus would be
paid. This was done both during working hours and rest periods.
In addition, there was a direct expression to the assembled employees at Plant
2 by Joseph Carney who testified that he addressed them on or about December 15
so as to give them his views on "the CIO union" as well as, the proposed 10 per-
cent cut. Carney told the employees that he would close the plants before he
would recognize the CIO and that they should get busy on a new council contract.
It was on this occasion that President Troendle told the assemblage that if there
was no council contract there would be no bonus and that Plant 2 would weed
out employees it did not want. As found above, Plant 2 did precisely that on
January 10 and 11. On or about December 15, Local 154 sent Carney a wire,
again claiming to be the bargaining representative of the employees of Plants
1 and 2 and cautioning Respondent Companies against entering into any con-
tracts with any other labor organization. A reply was requested but none was
received and as is apparent, action of a totally different nature was taken,
namely, the consummation of a contract at Plant 2 with Council 2 and the dis-
charge of suspected CIO sympathizers prior to circulation of the contract for
signature.
There is evidence that the employees of Plant 2 responded to- the statements
of Tanner and Carney about drawing up a new council contract by taking those
very steps. During the Christmas shutdown, a group met with Arsenault and
prepared a new contract. Arsenault had obtained copies of contracts from other
plants-in the Gardner area and a large number of desired extracts from those
contracts was inserted in the contract and a draft prepared. On or about
January 8, the Council 2 representatives met with company representatives,
including Troendle, Tanner, Theis, and Carney. Troendle looked at the contract,
which had apparently been submitted to him prior to the meeting by Arsenault,
tossed it aside, and told Theis to read the employees a "good" contract. Theis
then read a contract proposal which was discussed by the-group. It.was during.
this meeting that Carney had occasion to ask Arsenault whether he was on the
Council 2 or CIO side of the fence, 'but the meeting proceeded after Arsenault
assured Carney that he had been active in behalf of the Council. That Troendle
did discard the Council's proposal and substitute a contract at this meeting is
demonstrated by the testimony of Tanner. According to Tanner, Troendle had
read the contract proposal submitted by Arsenault several days earlier and had
commented that "it didn't offer the workers much protection." As will appear
below, it was apparently felt that the Plant 1 contract did 2s
The council representatives agreed to the Company's proposal at the end of
this meeting, and it was decided that a formal contract should be prepared.
This was later done by Sinding and it was turned over to Arsenault, who was to
circulate it in the plant for signature by the employees. However, as found above,
Tanner told. Arsenault on or about January 10 to hold up on circulation of the
26 There is a great variance in the testimony of the respective witnesses concerning the
meetings on the Plant 2 contract . The testimony of the company representatives varied
greatly as to the number of meetings as well as concerning what took place. The above
findings are based upon a composite of the testimony of Arsenault and various other wit-
nesses. Some of the company witnesses appeared to be unaware of the fact that Theis read
a company counterproposal ; however, inasmuch as the council representatives commented
on the various clauses read by Theis, the undersigned believes that a company counter-
proposal was in fact read, as testified by Theis and Sinding. Obviously, if this was a
council proposal there would have been no need for the council representatives to attempt to
change certain clauses, as they did in vain.
H. N. THAYER COMPANY 1179
contract until receipt of further word. Tanner stated that he intended to dis-
charge some men who were in the way of the contract and that he would then
tell Arsenault to proceed with its circulation. On January 10 and 11 Tanner dis-
charged 17 employees of Plant 2 because of their CIO support and Council hos-
tility, actual or suspected, and Tanner then instructed Arsenault to proceed with
the circulation of the contract. A meeting was held at Plant 2 later that day and
Arsenault read the contract. On the following morning it was circulated in the
plant during the working day for signature and was turned over to Tanner that
afternoon.
As in the case of the prior contracts in both plants, a comparison of the Plant
1 and Plant 2 contracts of December 15, 1948, and January 15, 1949, respectively,
is most instructive. Despite all the preparation of the new agreement by Arse-
nault and the Council 2 group during the Christmas vacation, and despite the
fact that the December 1948 contract at Plant 1 was substantially changed from
the previous Plant 1 contract, the January 1949 contract at Plant 2 ended up
almost identical with the new contract at Plant 1, thus supporting Arsenault's
testimony that Troendle had provided the new contract. In fact, both contracts
have a greatly revised format and more articles than those of the prior year.
Moreover, the substantive provisions are substantially identical. Thus, articles
1 to 11, 13 to 2:2, and 24 to 35 are identical. Article 12 of the Plant 2 contract
lacks three subsections found in that article of the Plant 1 contract; article 36
has a subsection added which provides that seniority at Plant 2 will not carry
over to Plant 1; and the Plant 2 contract is silent concerning another article
found in the Plant 1 contract. The remaining articles and the working rules of
the respective contracts are identical 27 In sum, they are identical, despite their
length, save in several minor respects.
Sinding claimed that in preparing the final draft of the contract he found that
"most of the clauses that had been agreed upon had the same meaning as . . .
the Thayer Company [Plant 1] contract" already executed, and that he reworded
some of the clauses accordingly. This, of course, demonstrates the control that
Respondent Companies exerted over those proceedings. Moreover, in view of the
extensive preparation of a new contract by Council 2, and, as will be seen below,
the extensive and separate preparation of a new contract by Council 1, the under-
signed deems it far beyond the realm of coincidence that the Plant 2 contract
for all practical purposes was, as in the past, the Plant 1 contract. Sinding's
explanation is accordingly not accepted. The undersigned finds that the January
meetings at Plant 2 served only to peremptorily foist upon Council 2 and the
Plant 2 employees the contract previously signed at Plant 1, despite the decision
of the employees to have a substantially different contract; it is also found that
this was the contract which Tanner directed Arsenault to circulate among the
employees for signature only after the CIO supporters and Council 2 opponents
had been discharged in order to eliminate opposition to the contract.
Soon after the contract was signed in January 1949, Plant Superintendent
Tanner told Arsenault that it was time to elect new officers and stewards.
Arsenault protested that he had had enough of this activity and Tanner replied
that Arsenault had to get the election organized. Accordingly, Arsenault obtained
Tanner's permission to have the office girl type ballots and these were distributed
in the plant and cast during working hours. The ballots were cast in the time
slip box to which only newly selected Foreman Erickson had the key. Ironically,
S" Article 23 of the Plant 2 contract has a subsection (b) which through oversight,
according to representatives of Respondent Companies , was omitted from the Plant 1
contract and is hence not a variance.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arsenault had no knowledge who counted the ballots, but there is other testi-
mony that the office girl did ; the results were then posted on the plant bulletin
board.
There is no evidence of Council 2 ever having a constitution and bylaws. In
fact, during the fall of 1948 Arsenault asked President Troendle if he had them.
Troendle promised to deliver them, but never did. However, after officers were
elected at Plant 2 in 1949, Troendle informed Council 2 that they should adopt
the Council 1 constitution and bylaws so as to avoid drawing up another ; this
proposal was accepted by Council 2. Moreover, as appears below in more detail,
Troendle had obtained, shortly before this time, a copy of the Plant 1 constitu-
tion and bylaws.
c. Conclusions
The record in this case cogently demonstrates that Council 2 was conceived,
created, and sponsored by Respondent Companies, that it continuously thereafter
enjoyed their active support and assistance , and that it remained subject to
their dominating influence. In fact, Council 2 was created under the sponsor-
ship of Respondent Companies only after the Plant 1 contract had been foisted
upon the Plant 2 employees, apparehtly in order to have a separate signer for
the Plant 2 contract. The active support during the years prior to 1949 is
demonstrated by the activities carried on in the plant during working hours.
That Council 2 remained the creature of Respondent Companies and subject to
their domination is demonstrated by the fashion in which labor contracts selected
by management were dictated to the employees. In the view of the undersigned,
this demonstrates that Council 2 is clearly supported, controlled, and dominated
by management . N. L; R. B. v. Brown Paper Mill Co., 108 F. 2d 867 (C. A. 5),
cert. denied 310 U. S. 651. In fact, the vigorous opposition to Local 154 constitutes
evidence of illegal conduct for "a company union may equally be prompted,
albeit, more subtly, by opposition to a competitive union than by direct pro-
motion ." N. L. R. B. v. Mt. Clemens Pottery Company, 147 F. 2d 262 (C. A. 6).
In October 1948, at a time when Local 154 was pressing for recognition as the
representative of their employees, Respondent Companies announced that they
would not recognize the CIO until it was certified by the Board and also, else-
where, not until they complied with Section 9 (h) of the Act. In addition, they
threatened to close down their plants before they would recognize the CIO
and urged the employees to prepare and sign a new contract with Council 2 under
penalty of losing their Christmas bonus. This was done at a time when a sub-
stantial number of employees had transferred their allegiance and membership to
the CIO, at an appropriate date near the end of the contract term, and Respond-
ent Companies were aware of it. Contrary to the position taken with Local
154, Respondent Companies promptly turned around and signed a contract with
Council 2 despite the identical lack of certification on the part of Council 2 and
its identical lack of compliance with Section 9 (h). Moreover, just as in the
past, these were patently company-selected contracts. Obviously these conten-
tions were not raised in good faith with Local 154 as the basis for the denial of
recognition. Particularly is this true because the CIO majority was never
questioned by Respondent Companies.
There is the fact, as in prior years, that the January 15, 1949, contract was
selected by management and forcefully presented to Council 2; it proved to be
substantially identical with the recently signed Plant 1 contract. And, in order
to effectively push through this contract, Respondent Companies proceeded to
threaten loss of the Christmas bonus for failure to sign it, did withhold the
bonus , and on January 10 and 11 eliminated those employees who were felt
H. N. THAYER COMPANY 1181
to be CIO sympathizers, or who would most likely resist a new council contract.
Even the ballot box used in electing new officers in January 1949, at the suggestion
again of management, remained under the lock and key of a foreman, and the
ballots were tabulated by the office clerical. The very structure of Council 2.
and the conduct of its affairs point up its support by management. As for
the dues of 25 cents monthly, "in itself insignificant, this sum is not wholly
without significance, if maintenance of union organizing or payment of possible
benefits be contemplated." N. L. R. B. v. Baldwin Locomotive Works, 128 F. 2d
39 (C. A. 3) ; see Titan Metal Manufacturing Co. v. N. L. R. B., 106 F. 2d 254
(C. A. 3), cert. denied 308 U. S. 615. Significantly, the amount of dues was
precisely the amount suggested by President Troendle and was continued through-
out the years until increased at a much later date.
The alleged dissatisfaction of the employees with Council 2 had to Respondent
Companies' knowledge resulted in attempts of the employees to change their
bargaining representative at an appropriate time. Had Respondent Companies
a bona fide doubt concerning the representative status of Local 154 or the con-
tinued representative status of Council 2, they could readily have invoked the
processes of the Act. Their failure to do so indicates that their raising of the
lack of certification as well as the lack of compliance of Local 154, but not rais-
ing these factors with respect to the Council, which in fact had never been certi-
fied, was not done in good faith but in an attempt to continue to deal with the
labor organization of their creation which they controlled. Toolcraft Corpora-
tion, 92 NLRB 655 and U. S. Gypsum Co., 90 NLRB 964.
Contrary.to the position taken by Respondent Companies, there was no duty
to extend recognition of Council 2 by a new contract, because it is clear that it
was an illegal union. And even were it not an illegal union, there was no obli-
gation to enter into a new contract. Significant herein is the fact that at no
time did Respondent Companies question the majority as such of Local 154 at
either plant ; the signing of the new contracts was based solely on the claimed
advice from counsel that there was a duty to continue recognition of Councils
1 and 2
This was done despite the fact that there was at the very least a serious ques-
tion whether or not there had been a schism in Councils 1 and 2 during October
1948, at a time when the contracts were about to expire, and when Respondent
Companies were on notice of the CIO activity. American Radiator and Stand-
ard Sanitary Corporation (Stamping Plant), 93 NLRB 7; The Bassick Company,
89 NLRB 1143; and Boston Machine Works Company, 89 NLRB 59. Moreover,
they recognized that there was a question concerning representation in October
1948 and thereafter as well as the existence of an issue whether Council 2 rep-
resented a majority of the Plant 2 employees ; this is particularly so because of
their knowledge of the vote to replace the Councils with Local 154. Signatures
of employees to the January 1949 contract at Plant 2 which followed on the
heels of the anti-CIO campaign, the expressions of hostility to the CIO, the
threats to close the plant before the CIO would be recognized, the announce-
ments that the Christmas bonus would be withheld because a new council con-
tract had not been signed, the actual withholding of said bonus, and the dis-
charges of CIO supporters in order to eliminate anticouncil sentiment cannot be
considered as a legitimate expression of support for Council 2 but rather as a
tainted and coerced expression on their part. It is well established that. Re-
spondent Companies may not thus avail themselves of the fruits'of their own
unfair labor practices. Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678.
Under all the circumstances detailed above, occurring after the advent of the
CIO in October 1948, including the 17 discharges on January 10 and 11, 1949,
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undersigned finds that Respondent Companies have dominated and inter-
fered with the formation and administration of Council 2 and have also con-
tributed support thereto. N. L. R. B. v. Link-Belt Co., 311 U. S. 584; N. L. R. B.
v. Falk Corporation, 308 U. S. 453; International Association of Machinists v.
N. L. R. B., 311 U. S. 72; N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7),
cert. denied 340 U. S. 810; N. L. R. B. v. American Potash and Chemical Corp.,
98 F. 2d 488 (C. A. 9), cert. denied 306 U. S. 643; Hamilton-Brown Shoe Co. v.
N. L. R. B., 104 F. 2d 49 (C. A. 8) ; Madin Asphalt Roofing Corp., 85 NLRB 26;
Pratt, Read & Co., Incorporated, 90 NLRB 1499; and Fogel Refrigerator Com-
pany, 82 NLRB 1302. It is further found that by the above conduct as well as
by the threats of Foreman Dwyer of loss of a Christmas bonus if a new council
contract were not signed, the similar threat to Arsenault by Tanner, and the
actual withholding of said bonus, Respondent Companies have interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
by Section 7 of the Act "
2. Plant 1
a. Formation and history of Council I
There was no labor organization representing the employees at Plant 1 prior
to the formation of Council 1 early in 1940, although there had been a social
club in existence since 1938 or 1939. As its name implies, the social club was
just that and did not function as a labor organization.
In February 1940, the CIO started one of its earlier attempts to organize the
employees of Plant 1; this took place at a time after there had been a futile
attempt on the part of the employees, through a committee, to obtain a 5-cent
per hour wage increase. As a result, some of the employees visited the offices
of Local 154 and representatives of Local 154 distributed CIO cards near the
plant. The campaign proved to be unsuccessful because shortly thereafter
President Troendle called a meeting of the employees which he addressed. He
began by saying that they were all a big happy family, that they had a social
club, and that they had been getting along well. Troendle then stated that
although the business was not operating profitably he would grant the 5-cent
per hour wage increase ; he added that they would not need outsiders to tell them
what to do and that the employees should form their own workers' council?°
Several days later steps were taken to form Council 1. The main figure was
one Joe Camden, a rank-and-file employee, and he apparently did considerable
of the initial work on the matter. Camden approached Carl Sundstrom shortly
after Troendle had suggested the formation of a council and asked Sundstrom
to lead a meeting of workers who were getting together to form their own labor
organization. Sundstrom accepted and Camden, who had already set a date for
the meeting, instructed Sundstrom to rent a hall for that date. This was done
and a meeting was held on or about February 27, 1940; it was attended by sub-
stantially all of the rank-and-file employees who then numbered approximately
50 or 60. During the meeting the CIO representatives appeared, were granted
permission to address the employees, and proceeded to urge them to select an
28 The earliest charge in the instant proceeding was filed less than 6 months after the
commencement of organizational activities by Local 154 in October 1948. Findings of
unfair labor practices are restricted to the period commencing on that date. Bxelson
Manufacturing Co., 88 NLRB 761, and Florida Telephone Co., 88 NLRB 1429.
° Findings herein are based upon the credited testimony of Joseph LeBlanc, Edgar
Richard , and Edward Richard.
H. N. THAYER COMPANY 1183
affiliated labor organization . The employees however voted to form an inde-
pendent labor organization. Representatives of various departments were elected
and assigned to the preparation of a contract.
A contract was shortly thereafter passed around the plant during working
hours and signed by the employees ; it became the initial contract between
Plant 1 and Council 1. Although Troendle at one point claimed that he com-
pared the signatures on the contract with those in the payroll department, he
elsewhere testified that he did not check these signatures. Neither then or-at any
time thereafter did Respondent Companies demand that the Council be certified
or prove their majority as a prerequisite to collective bargaining. Nor, after
the amendments to the Act, have they raised the issue of noncompliance by the
Councils with Section 9 (h).
From, the , inceptionof Council 1 until approximately January 1949, dues of
25 cents were collected monthly in the plant. Collections were made at various
times, both during working hours and during recess periods. In January 1949,
checkoff cards were passed around the plant by the Council and thereafter dues
were checked off each month. Council 1 has been permitted to use the plant
bulletin board as well as on occasion to hold meetings on company property during
nonworking hours. Similar to the practice of Council 2, Council 1 has held a
membership meeting but once a year, when the topic of a new contract was raised
and new officers elected for the coming year. Monthly meetings of stewards and
management representatives were scheduled for the purpose of handling griev-
ances, although it appears that they were not always held.
As found above, Plant 2 employees were included under the December 1944-
December 1945 Plant 1 contract, although there is no evidence that they ever
voted for such a move. The respective December 1947-December 1948 contracts
contained a clause that Plants 1 and 2 would operate under the same contract and
these contracts were identical, as were those of prior years and those that
followed, despite the contention that the respective Councils are entirely separate
and they engage in independent collective bargaining.
b. The 1948 contract
There was no activity on the part of Council 1 for a new contract until after the
Opera House meeting of October 19, 1948, when thq 10 percent cut was voted
down and the employees demonstrated their disaffection for Council 1 by signing
CIO membership cards. Almost immediately, a group including Council 1 Presi-
dent Magner, Secretary Cazeault, and Steward Popoloski took steps to arrange
for a new contract to replace that expiring on December 15. They retained the
services of a Gardner attorney who met with them several times and assisted in
the preparation of a contract proposal. This contract was prepared and sub-
mitted to Respondent Companies sometime in November. In the interim, how-
ever, CIO sentiment among the employees had solidified, as demonstrated by the
City Hall meeting on October 25, the vote to transfer to Local 154, and the demand
of October 26 for recognition.
There were several meetings late in November and early in December between
Council 1 and management representatives, but an analysis of the testimony
of the various witnesses reveals several versions which conflict in a number of
respects. A consideration of this testimony leads the undersigned to find as
follows, in accordance with the testimony of Sinding and Theis.
At the first -meeting Magner read the contract proposed by the Council and
the group proceeded to discuss it clause by clause. There were quite a few points
on which there was disagreement and a second meeting was arranged at which
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Companies presented a counterproposal. This was discussed during the
second meeting and it is not entirely clear whether a contract was agreed upon
at this or at a third meeting. It was during these meetings, according to
Carney, that he was asked by Council 1 President Magner not to give in to the
CIO and not to enter into any contract with the CIO. Carney allegedly replied
that he would not do so as long as they continued their communistic activities.'°
Shortly before the agreement on a contract, the committee of CIO sympathizers
among the employees had called upon Carney and were informed by him that
his plants were merely a hobby, that he would not have the CIO in the plants,
that he would not sign an agreement with the CIO, and that he could close down
his plants any time he chose. And, soon afterwards, he made a speech to the
employees of Plant 1 because President Troendle had asked him to clarify the
Companies' position concerning the CIO, in view of the alleged fears by em-
ployees that Respondent Companies might give in to the CIO and drop recogni-
tion of Council 1. On that occasion, Carney informed the assemblage that
Respondent Companies would not recognize the CIO so long as they had not
filed non-Communist affidavits. He informed them that relations had always
been excellent with Council 1; that they had been a big happy family in the
plant ; and that if they could not continue thusly, there was no purpose in re-
maining in business. He added that he would not recognize the CIO and would
close down his plants before he would do so.
After the contract was agreed to, President Troendle told Steward Popoloski in
the presence of Beatrice Bourque, according to the latter's credited testimony,
that it was a good contract and that Popoloski should get it signed by the em-
ployees. The record shows that Popoloski as well as President Magner and
Secretary Cazeault took steps to procure the signatures of employees within the
next few days. There was testimony which the undersigned credits that several
employees were told by Foremen Williams and Tourigny they would be well
advised to sign the contract and avoid trouble. It appears that on December
13 or 14, after the signatures were obtained, the representatives of Council 1
met with the Companies and then executed the formal agreement.
At no time did Respondent Companies raise the objection with Council 1 that
they did with the CIO, namely, lack of Board certification or noncompliance .with
Section 9 (h), both of which conditions applied equally to Council 1. Nor at
any time did Respondent Companies ascertain that Council 1 actually represented
a majority of the employees or challenge the majority of Local 154. In the face
of the demand by Local 154 and evidence of a subsequent defection from Council
1 to Local 154, a new contract was entered into with Council 1. As stated
above in the discussion of Plant 2, although Respondent Companies were on
notice of the defection from Council 1 to Local 154 and the vote to replace
Council 1 with Local 154, they did not file a petition to resolve the question
concerning representation. On the contrary, they took the position that they
were under an obligation to continue recognition of Council 1 and, as stated,
took actual steps to implement that position and wipe out CIO support.
At this point, attention is directed to a curious situation that developed late
in 1948 at Plant 1. Troendle asked Secretary Cazeault of Council 1 to furnish
him with a copy of its constitution and bylaws. Troendle did not recall the
reason for the request, although he did remember that Sinding had read them
3° Magner 's testimony concerning these contract meetings is radically different from that
of the company representatives and is rejected . He is silent concerning any counter-
proposal and in fact claimed that at the second meeting Council 1 simply fired back its
original demands, embodied in a new draft, and insisted upon them.
H. N. THAYER COMPANY 1185
in his presence : according to Sinding , he wanted to see them for some forgotten
reason. The reason is still unexplained by the record although the timing does
fit in with the urging by Troendle that Council 2 adopt the Council 1 constitution
and bylaws Moreover , there is testimony by Cazeault that places a different
light on the episode . Cazeault originally testified that several pages of the by-
laws had been missing for some time and that he found them before he turned
them over to Troendle . He later changed his testimony and testified that one
or two pages were still missing when he gave them to Troendle but that the full
eight pages were intact when Troendle returned them. Although Cazeault was
not too impressive a witness and contradicted himself repeatedly , the under-
signed believes that in this instance Respondent Companies prepared the missing
bylaws pages . This is buttressed by the fact that shortly thereafter they took
steps to foist the Council 1 bylaws on Council 2.
c. Conclusions
In large measure , the factors set forth above in the discussion of Council 2 are
applicable here, including the same pattern of hostility to Local 154, the cam-
paign against the CIO , and the rushing through of a new contract with Council
1 in the face of the demand by Local 154 ; present here , too, are the threats to
shut down the plant rather than deal with the CIO , the raising of specious
reasons for not dealing with the CIO despite the fact that the identical factual
picture existed with respect to Council 1.
For the reasons appearing above in the discussion of Plant 2 , Respondent
Companies may not plead the fact that the employees approved the December 15,
1948, contract . Following upon the heels of the anti-CIO campaign , the threats
to. close the plant before the CIO would be recognized , and the assistance ren-
dered to Council 1, such an expression on the part of the employees is perforce
predicated upon the unfair labor practices of Respondent Companies and is
therefore tainted by said illegal conduct. Medo Photo Supply Corp. v. N. L. R. B.,
supra. Relying only on such conduct by Respondent Companies that took place
subsequent to the advent of the CIO in October 1948, the undersigned finds that
Respondent Companies have dominated and interfered with as well as con-
tributed support to Council 1. It is found that these contracts with Councils 1
and 2, being contracts with illegally controlled labor organizations , were invalid
and that any subsequent contracts entered into with said Councils fall for the
same reason . It is further found that by the above conduct Respondent Com-
panies , have interfered with, restrained , and coerced their employees in_ the
exercise of the rights guaranteed by Section 7 of the Act.
d. The strike
1. The meeting of January 25, 1949, and the vote to strike
As hereinabove found , Respondent Companies vigorously resisted the CIO
organizational campaign . They commenced a counteroffensive violative of the
Act during which they discharged 17 employees on January 10 and 11, 1949,
because of their CIO activities and support together with their lack of support
for Council 2. These discharges , including among them the very leaders of the
CIO movement, apparently resulted in the creation of considerable unrest among
the employees of both plants and the matter came to a head at a union meeting
held at'the CIO Will. on the evening of January 25.
Business Agent Binnall of Local 154 presided over the meeting which; was
attended by a number of employees from Plants 1 and 2. Vat ious estimates,
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
small and large, were given concerning the number that attended and the
undersigned finds that the number varied between 125 and 160. Among those
present were Assistant Business Agent Taylor, President Pizer of the'Interna-
tional, and Harry Weinstock, counsel for the latter. Binnall gave a brief report
on the organizational campaign, the inability to work out recognition of Local
154, the fact that new contracts with the respective Councils had been rapidly
put across by Respondent Companies, and that CIO supporters had been dis-
charged. A number of those present promptly urged that strike action be taken
against Respondent Companies. Pizer spoke up at this point and stated that
he was opposed to any strike because the time was not ripe. Dominick Daddario,
whose discharge 2 weeks earlier at Plant 2 has been found to be discriminatory,
immediately intervened. He pointed out that the employees had elected CIO
stewards at the City Hall meeting and had promised to back them up, that CIO
stewards and supporters were being discharged because of their CIO activities,
and that the time had come to back up their prior pledge by taking vigorous
action in support of their fellow workers. He moved for an immediate strike
vote and a vote was taken by secret ballot, with a majority voting in'favor of a
strike. A number of those present did not vote and the testimony of Ola Legere
and Bertha LeBlanc indicates that the vote was approximately 60 to 4 In favor
of the strike, although the vote was placed somewhat higher by another witness.
At this point, President Pizer arose and stated that since the employees had
voted to strike, the International would support them. Attorney Weinstock was
asked for an opinion as to the legality of the recently concluded contracts with
the respective Councils. He advised the assemblage that the contracts, as the
undersigned has found above, were illegal. It was decided to strike Plant 2
the following morning, January 26, and Plant 1 on January 27. Binnall in-
structed the group to be orderly, to avoid any disturbances, to keep moving
several feet apart, and to molest no one.
Although there was some mention at the outset of the January 25 meeting
of the failure to recognize Local 154 as well as the expression of resentment
at the new and illegal contracts with the respective Councils, it is clear and the
undersigned finds on an overwhelming preponderance of the evidence that the
primary cause of the strike was the indignation and resentment created among
the employees by the discharges at Plant 2. Although Pizer advised the group
not to strike, Daddario intervened and heatedly referred to the discharges. He
thus brought the matter to a head and the employees voted to strike in accord-
ance with the prior pledge to support the CIO stewards. The undersigned accord-
ingly finds that the strike voted on January 25 and commenced on January 26
and 27, 1949, against Respondent Companies by the CIO adherents in the plants
then being jointly organized was an unfair labor practice strike caused by the
unfair labor practices of Respondent Companies in discriminatorily discharging
17 employees on January 10 and 11. Augusta Chemical Co., 83 NLRB 52, enfd.
2/13/51 (C. A. 5), 27 LRRM 2350.'3
Respondent Companies have raised the contention that the strike was caused
by an attempt of Local 154 to obtain recognition. Thus, attention is directed
to the findings by the State judge issuing the injunctions against the strike
that the strike was one for recognition. This is apparently based on a state-
ment made on the record in those cases by an attorney then representing. the
CIO and Local 154 that one of the purposes of the strike was recognition. This
ex post facto opinion, by one not present at the January 25 meeting, while
perhaps entitled to some weight, does not constitute the best evidence which is
31 Findings herein are based upon the testimony of Binnall ,' Taylor, Daddario, Legere,
Roger Cantin, Emile LeBlanc, and Bertha LeBlanc.
H. N. THAYER COMPANY 1187
rather the objective facts as to what took place on the night of January 25,
1949. And with all due respect to the aforesaid judge, these findings are not
binding upon the Board which was not a party to the proceeding. Medo Photo
Supply Corp. V. N. L. R. B., 321 U. S. 678, and Standard Oil Company of Cali-
fornia, 91 NLRB 783. Moreover, those findings are contrary to the overwhelm-
ing preponderance of the evidence adduced before the undersigned in a hearing
of far greater duration and obviously more complete in the scope of the testi-
mony taken.
While it appears that in the midst of an attempt by State authorities to
mediate the strike, a representative of the International Union insisted that
recognition of Local 154 would have to be a part of any strike settlement, this
does not in any way alter the facts concerning the origin of the strike. And,
as Sinding testified in the State court proceeding, the CIO settlement proposition
did include, inter alia, the question of reinstatement of the discharged employees.
Furthermore, Respondent Companies in effect conceded, in an advertisement
placed in the Gardner News during the strike, that the strike had been caused,
in part at least, by the discharges at Plant 2.
The real causes of a strike are to be found "in the whole sequence of events"
preceding it, N. L. R. B. v. The Barrett Company, 135 F. 2d 959 (C. A. 7), and
the motivation behind it is logically to be determined in the light of the unfair
labor practices by Respondent Companies. Great Southern Trucking Co. v.
N. L. R. B., 127 F. 2d 180 (C. A. 4), cert. denied 317 U. S. 652. In sum, the
undersigned finds the strike to have been caused by the unfair labor practices
of Respondent Companies in discriminatorily discharging 17 employees. More-
over, even if the strike were caused only in part by these unfair labor practices,
it would not lose its character as an unfair labor practice strike because economic
reasons may also have brought it about. For that matter, resentment at the
illegal support to the Councils was just as much in the picture as the recognition
issue. It is well established that it is the obligation of the ". . . tortfeasor[s]
to disentangle the consequences for which [they were] chargeable from those
from which [they were] immune." N. L. R. B. v. Remington Rand, Inc., 94 F.
2d 862 (C. A. 2), cert. denied 304 U. S. 576. See also N. L. R. B. v. Stackpole
Carbon Co., 105 F. 2d 167 (C. A. 3), cert. denied 308 U. S. 605; N. L. R. B. v.
American White Cross Laboratories, supra; N. L. R. B. v. Cupples Co. Mf'rs.,
106 F. 2d 100 (C. A. 8) ; N. L. R. B. v. Arcade-Sunshine Co., supra; Sapp Brothers
Company, Inc., 90 NLRB 1513; Bradley Washfountain Co., 89 NLRB 1662;
Deena Artware, Incorporated, 86 NLRB 732; Julian Freirich Co., 86 NLRB 542;
Dalton Telephone Company, 82 NLRB 1001; and Brown Radio Service and
Laboratory, 70 NLRB 476.
2. Description of the respective premises
a. Plant 1
Plant 1, as in the case of Plant 2 , is located in the city of Gardner in the
neighborhood of several other industrial plants. It has three entrances on
Sanborn Street as well as two other means of entrance on Cross Street on the
opposite side of the plant. The Cross Street entrances together with one of the
Sanborn Street entrances are for pedestrians only, and the two remaining San-
born Street entrances are used by automobiles entering the plant parking area.
The premises as they face Sanborn Street actually consist of three buildings
joined by overhead passages. They are uniformly set back 11/2 feet from the
inner edge of a narrow sidewalk . Proceeding from left to right, as one faces
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the front of the building, the three entrances are situated as follows: 32 The first
entrance, referred to herein as entrance A, consists of an alleyway between the
building immediately adjacent to Plant 1, owned by Simplex Time Recorder
Company, herein called Simplex, and the first of the three buildings of Plant
1, which is actually the factory. This alley is 16 feet 5 inches wide and contains
through its center a spur railroad track approximately 5 feet wide which crosses
Sanborn Street at right angles. The entire alley is on Simplex property save for
a strip approximately 1 foot 6 inches wide along the side of the Plant 1 factory
building. As one enters the alley from Sanborn Street, there is a door located
a short distance inside, on the side of the Plant 1 factory, which is used by shop
employees, to enter the plant.
There is a concrete walk beside the Plant 1 building which proceeds from
the street to this door ; the walk is somewhat wider than the 11_-foot strip of
land. Although this apparently puts part of the walk on Simplex property,
the record does not explain this anomaly. Entrance A is used by employees
approaching from School Street to the right or east of the Plant 1 premises as
well as by employees approaching from South Lincoln Street to the left and
west ; in the latter event they proceed by the Simplex premises, turn into the
alley, cross the railroad spur and enter the Plant 1 factory building. It appears
that it was the custom of the majority of the employees to approach from the
Simplex side rather than from the other side of Plant 1. As is apparent, em-
ployees in entering were required to walk on Simplex property.
Entrance B is located 152 feet to the right or east and consists of an auto-
mobile driveway between the factory building and the first or lower warehouse;
this entrance is used by employees who drive to work in their automobiles. It
is 20 feet wide at its mouth, although approximately 6 feet farther in it nar-
rows abruptly to 10 feet because of a shipping platform. Employees who drive
to work use this entrance and drive into the yard which is used as a parking
area for their automobiles. The lower warehouse varies from 24 to 34 feet in
width and is located between driveway B and the upper driveway, which is
identified herein as driveway C. The latter is located between the lower and
upper warehouses, is 20 feet wide, and is used in the same fashion as B, although
not as frequently. The upper warehouse beyond driveway C has a frontage of
approximately 129 feet.
On the other side of the plant, approach is had to the plant premises via Cross
Street which is somewhat higher in elevation than Sanborn Street. As a result,
there is a fence running along the Cross Street sidewalk with an opening whence
a wooden stairway descends to the parking area described above. Close by, there
is another stairway which is normally used by employees of Thayer, Inc., the
parent sales organization, and which is apparently located on the latter's prop-
erty. This stairway, which is concrete, also descends to the side of the parking
area and on occasion is used by employees of Plant 1. However, the bulk of the
activity referred to hereinafter took place on Sanborn Street.
b. Plant 2
Strike activity at Plant 2 took place mainly on the Summer Street side of the
plant where there is a plant parking area immediately adjacent to the street
e2 Numerous pictures were introduced in evidence which substantially reflect the dimen-
sions and contours of the plant entrances, as well as the nature of certain incidents that
took place at these entrances.
H. N. THAYER COMPANY 1189
and separated from the street in most places by bushes or gullies at the side of
the road. It is entered by either of two driveways, each 24 feet wide, through
a break in the shrubbery and an approach across the shoulder of the road. The
driveways, which are approximately 99 feet apart, lead into the general parking
area whence approach is had to the plant proper.
The receiving platform is located on the opposite side of the plant which abuts
on South Union Street. The shoulder of the road on South Main Street is flush
with the pavement so that trucks can turn onto the shoulder and drive to the
receiving platform and load or unload directly at the raised platform which is set
back approximately 13 feet from the edge of the pavement. Some of the em-
ployees were accustomed to park their automobiles on this strip of road but
beyond the Plant 2 property line on land not owned by Respondent Companies.
However , the bulk of the activity referred to hereinafter took place at the Sum-
mer Street entrances to the plant.
3. Composition of the claimants herein
The employment figures of Respondent Companies disclose that of a com-
plement of 164 working at Plant 1 during the week ending January 30, only 77
worked on the following week. During the same period, the complement of per-
sonnel at Plant 2 dropped from 67 to 1. Those not reporting for work included
56 employees of Plant 1 and 29 from Plant 2 whose names appear on Appendix D,
although one of the 56 is Sinivuori, listed also on Appendix C, whose discharge
has previously been found to be discriminatory. As unfair labor practice strik-
ers, this group of 85 employees was entitled to reinstatement at the end of the
strike. The record discloses no contraction in the number of personnel or jobs at
the end of the strike ; in fact, on March 12 Plant 1 advertised that it had 100 posi-
tions open and on March 14 Plant 2 advertised that it had 60 positions available.
These numbers were in excess of the number of strikers involved herein. As
stated, the strike terminated on :March 15 and the strikers commenced to apply
for reinstatement on that date ; there was hiring for some weeks thereafter.
Certain of the strikers in both plants, named in Appendix D and included in the
above totals, were in a layoff status at the time of the strike. These included 12
at Plant 1 and 6 at Plant 2. Of these 18, 6 at Plant 1 and 5 at Plant 2, a total of
11, received the following letter by registered mail on or about February 1, 1949,
from the respective plant superintendents, Selim Fred and Hugh Tanner:
Pursuant to Section 8 of the Contract between the THAYER COMPANY
and THAYER'S WORKERS' COUNCIL, dated December 15, 1948, you are
hereby notified that you are being recalled to work immediately, but not
later than Monday, February 7, 1949. In order to facilitate planning, please
notify your foreman when you intend to report '
43 The cases of Alyre Gallant and Adelard Poiriei are on a par with that of Sinivuori
although they, unlike Sinivuori , are listed only on Appendix C which contains the names
of the January 10 and 11 discharges , hereinabove found to be discriminatory . They, as
Sinivuori , were reinstated prior to the strike and thereafter joined the strikers . However,
their participation in the strike was litigated together with other aspects of their employ-
ment history.
39 The letter quoted above is the Plant 1 letter. The Plant 2 letter, signed by Tanner,
is identical save for the difference in the names of the parties and the initial date of the
contract The same is true of the other letter , appearing below, sent on the, same date to
other employees of Respondent Companies
215233-C3-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remainder of those in a layoff status, 6 at Plant 1, including Robert Sidman
and Emile LeBlanc," and 1 at Plant 2, received the following letter on or about
February 1, 1949, from the respective plant superintendents :
This company has some openings of jobs for which you appear to be qualified.
You are requested, therefore, to contact the writer so that the possibility of
re-employing you may be discussed.
Apparently the former letter to the 11 employees was sent to those who had
been in a layoff status for less than 90 days and the latter letter, to the 7 em-
ployees, was sent to those who had been in a layoff status for more than 90 days.
An inspection of the cases in both groups reveals that of those in the latter group
all save one were laid off during the prior October, with one allegedly in No-
vember, indicating at the most a layoff slightly in excess of 90 days. The dis-
tinction between the 2 groups is predicated apparently upon the contract clauses
in the respective contracts which provided that laid-off employees retained their
seniority only for 90 days. However, these contracts have been found to be
illegal and it is noteworthy that later contracts between Respondent Companies
and the respective Councils provided for the retention of seniority by laid-off
employees for a period of 1 year.
In any event, the determinative factor whether both groups were employees
in a laid-off status is not what an illegal contract provides on the subject. The
conclusions to be drawn are drawn from the actual facts and whether or not
those employees in a layoff status had a reasonable expectation of recall. Ac-
tually, there is no difference of any substance between the two groups because
the layoffs were at the most a month apart. The fact is that they were all
employees in a laid-off status in a business afflicted with seasonal slumps ; all
were employees with a reasonable expectation of recall, whose ability was known
in each case to Respondent Companies ; and all were accordingly called back to
work. Martin-Rockwell Corp. v. N. L. R. B., supra; North Whittier Heights
Citrus Ass'n. v. N. L. R. B., supra; N. L. R. B. v. Waterman Steamship Corp.,
supra; N. L. R. B. v. American Creosoting Co., 139 F. 2d 193 (C. A. 6), enforcing
46 NLRB 240, cert. denied 321 U. S. 797; N. L. R. B. v. J. G. Boswell Co., 136 F.
2d 585 (C. A. 9) ; N. L. R. B. v. Somerset Shoe Co., 111 F. 2d 681 (C. A. 1) ; Whiting
Corporation (Supplemental Decision and Direction) , 92 NLRB 1851; Penn-Hadley
Mills, Inc., 85 NLRB 570; Fajardo Development Company, 76 NLRB 956; Green
Colonial Furnace Company, 52 NLRB 161; and Northern Indiana Brass Co., 36
NLRB 581.
Significant herein is the fact that the strike at both plants was then 1 week
old and that picket lines had been established at each. In the face of this strike
activity and established picket lines, which the undersigned has found to have
been caused by the flagrant unfair labor practices by Respondent Companies,
the latter recalled 18 employees to work. It could reasonably have been antici-
pated that some or all of this group would be unwilling to cross the respective
picket lines, would respect them, or might even see fit to join the picketing strikers
in joint protest of the unfair labor practices committed by their mutual employers.
ac The complaint alleged that Sidman and LeBlanc were discriminatorily discharged and
laid off respectively on October 28, 1948. The record discloses that Sidman was actually
laid off on that date. As their cases are treated hereinafter together with those of the
other strikers, it is deemed unnecessary to pass upon the issue whether there was a
discrimination on the earlier date. The complaint, alleging a failure to reinstate them
at all times after their layoffs, is broad enough to support their consideration together with
those strikers not reinstated on and after March 15, 1949. Moreover, their cases were
litigated on the latter as well as the former basis.
H. N. THAYER COMPANY 1191
And that is precisely what did happen. Of this group some joined in the picket-
ing and some did not. All, however, took this action only after receiving the
•6al1 to return to work. On reporting to the plant they encountered the picket
lines and then either joined the pickets or returned home. They accordingly
assumed the status of strikers and were therefore subject to the protection of
Section 7 of the Act. Cinch Manufacturing Corporation, et al., 91 NLRB 371, and
Cyril de Cordova and Bro., 91 NLRB 1121.
In sum, the claimants break down as follows. There are of course, the 17
•dischargees whose discriminatory discharges have been treated above and who
are named in Appendix C ; of these all but 1, Daddario, participated in the picket-
ing. There are then the 85 claimants named in Appendix D. Of those, all but
10 engaged in the picketing with varying degrees of frequency. These 10 include
2 who worked at the CIO hall during the strike serving sandwiches and coffee
to the strikers, 4 who desired to help the strikers by remaining away from work,
and 4 who were unwilling to cross a picket line. All are clearly on a plane with
those who engaged in the actual picketing and are subject to the same protection
of the Act. Illinois Bell Telephone Company, 88 NLRB 1171, and Cyril de Cordova
and Bro., supra. Added to the above totals are also Robert Sidman and Emile
LeBlanc, named separately in the complaint, who joined in the strike and made
common cause with the strikers.
4. Police protection
Respondent Companies apparently learned of the impending strike before it
actually commenced,- because they arranged for radio time on the 5: 30 a. in.
news broadcast on January 26 over the Gardner radio station. The announce-
ment referred to allegedly illegal pickets at Plant 2 and directed all employees
to continue to report for work consistent with their contractual obligations under
the contract (with Council 2). The radio audience was advised that police would
be present to insure that workers would not be interfered with in their right to
enter the plant.
President Troendle telephoned Chief of Police Cyrille LeBlanc sometime during
the evening of January 25 or early morning of January 26 and at that time re-
quested this police protection which LeBlanc then agreed to furnish. Further-
more, in the morning of January 26, a notice was posted on the bulletin board
at Plant I announcing that there would be police protection for employees desir-
ing admission to Plant 1. Police were present at the entrances to Plant 2 on
January 26 as well as at the entrances to Plant 1 on January 27. They remained
on duty at both plants for the duration of the strike.
5. Duration of the strike ; the injunctions
The strike lasted and picket lines were maintained until March 15, 1949. Dur-
ing that period Respondent Companies made two attempts in the Massachusetts
courts to enjoin its continuation. They presented testimony to the Superior Court
for Suffolk County, sitting at Boston, for several hearing days, at the conclusion
of which the injunction was denied on or about February 24, 1949. A later at-
tempt was made and testimony presented to the Superior Court for Worcester
County, sitting at Worcester, before a different judge. The latter on March 10,
1949, issued an interlocutory decree against Local 154, Taylor, Binnall, four
named members of Local 154 who bad worked at Plant 1, and the officers and
.agents of Local 154; this restricted the numbers and nature of picketing at Plant
-1. A similar decree was issued on March 11 against Local 154, Taylor, Binnall,
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four employees who had worked at Plant 2, and the officers and agents of LocaL
154; this restricted the numbers and nature of picketing at Plant 2. On March
15, the same judge issued a final decree enjoining inter alia all picketing at the-
premises of Plants 1 and 2, striking to compel Respondent Companies to recognize
Local 154, and attempting to break the respective council contracts."
It may be noted at this point that the record does not warrant a finding that-
there was any substantial change in the strike pattern after the denial of the
prior injunction in Boston. In fact, more people were working in both plants
when the later applications for injunctions were made. Management officials
and supervisors worked throughout the strike in both plants. Some production
workers reported throughout the strike at Plant 1, where the pickets were more
numerous, whereas Plant 2 was just about shut down during the month of
February.
The strikers in both plants complied with the respective interlocutory decrees
of March 10 and 11 and when the final decree was handed down on March 15,
all picketing was terminated at both plants. At a union meeting held on the
night of March 15, Business Agent Binnall instructed the employees of both
plants that they were to stop picketing under the decree of the Superior Court,
but that Local 154 would endeavor to get the decision reversed. He instructed
the workers to report back for work and, if not hired, to apply for unemployment
compensation. He also stated that Local 154 "would continue the strike from
any angles we possibly could." However, there is absolutely no evidence of any
overt activity of any type by Local 154 or the CIO after March 15 which can re-
motely be considered indicative of strike action. The undersigned finds that
when the strikers were instructed on March 15 to unconditionally apply for their
jobs, and as appears below they did just that in large numbers, this constituted
an unconditional cessation of overt strike activity on their part ; it also con-
stituted an abandonment of picketing and an abandonment of the concerted
withholding of employment from Respondent Companies. As will appear, they
unconditionally proceeded to apply for work.
Respondent Companies place reliance upon the fact that the Massachusetts
Supreme Court, in upholding the injunctions on November 16, 1950, while the
instant hearing was in progress, found that the Unions had not written off the
strike as lost but had proceeded to press appeals to that body, hence indicating
that the controversy still existed. However, while it is true that appeals were
undertaken, that is not germane to the issues before the undersigned. The pure
and simple fact is that on March 15, 1949, Business Agent Binnall told the em-
ployees of both plants that they could no longer picket and that they should apply
for their jobs. In large numbers, to the knowledge of Respondent Companies,
they immediately proceeded to unconditionally do precisely that. Insofar as the
strikers were concerned, and those who respected the picket lines and did not
work during the strike are in the same category, (Cinch Manufacturing Co., supra,
and Illinois Bell Telephone Company, supra) the undersigned finds that they
unconditionally abandoned the strike in order to return to work. Obviously, a
continuation of the overt strike activity would have been contemptuous of the
State court injunctions. There is no evidence of the institution of any contempt
action by Respondent Companies, who were the complainants in those cases.
Moreover, there is not a single iota of affirmative evidence that anyone continued
to withhold his employment from Respondent Companies because of strike activ-
ity in any fashion, individually or in concert, thus further negating any inference
to the contrary.
9e The decree involving Plant 1 erroneously referred to the premises of Plant 2.
H. N. THAYER COMPANY 1193
6. Policy to strikers
Shortly after commencement of this unfair labor practice strike, Respondent
-Companies took the position that the strike was illegal and that the strikers
had lost their status as employees by engaging in the strike , it being within the
discretion of Respondent Companies to enforce this policy . It was then decided
to give the strikers an opportunity to return to work before a certain date under
penalty of loss of seniority for failing to return . This policy had been under
discussion by Respondent Companies and their counsel since the outset of the
strike and the decision was based upon the factor that existing contracts with
the respective Councils provided for loss of seniority rights in the event of an
unexcused absence for more than 3 days. Of course , the brief answer is firstly
that the contracts were illegal and not controlling , and secondly , that in any
event a clause thus phrased can in no way interfere with the right to engage in
concerted activities.
The policy toward strikers was put into effect solely for these alleged reasons
and independently of any other aspects of the strike which may have developed
later and which are raised independently as defenses to reinstatement of the
strikers . It was publicized in the community and the following advertisement
was inserted in the Gardner News on February 21:
NOTICE TO ALL WORKERS OF THE THAYER CO. AND THE H. N. THAYER Co.
You are hereby notified that the plants of both companies are open and
operating. If you were working at the Thayer Co. plant on January 26 or at
the H. N. Thayer Co . plant on January 25, [the days prior to the commence-
ment of the strike at the respective plants] you must report for work at your
regular place of work on Wednesday , February 23. If you fail to do so, you
wcll lose all seniority rights. [Emphasis added.]
If you had been laid off on these date [s] [January 25 or 26, respectively]
but still have seniority rights, [apparently referring to the 3 -month clause]
you must report to your foreman for work on Wednesday February 23, in
order to maintain these seniority rights. [Emphasis added.]
If you have actively threatened or molested other employees , or other
persons who have or had dealings with the companies , or if you have dam-
aged or participated in damaging their property or that of the company, you
need not report since you will not be reemployed.
THAYER CO.
H. N. THAYER Co.
To make certain that employees living outside the city limits of Gardner
learned of this policy , copies of the advertisement were mailed to employees of all
departments living outside the city limits with one exception ; they were not
mailed to employees of the stitching department as there was no need for them
at that time . This policy was actively and uniformly enforced in all cases with
respect to anyone who did not return to work by the deadline of February 23.
The record makes clear that anyone who did not return to work by that date as a
matter of fact lost all seniority. Moreover , this loss of seniority was suffered by
nonpicketers who merely respected the picket line for the duration of the strike.
In sum, anyone who was taken back by Respondent Companies after February 23,
as well as after March 15 when the strike ended, commenced work as a new
employee . In fact, as Sinding testified , no striker was "reinstated"; some of
them were not taken back for various reasons, but those who were taken back
were "rehired" as new employees and as.stranger applicants.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That this policy is on its face illegal and discriminatory is apparent. Seniority„
in accordance with the general plant practices of Respondent Companies, affectedi
the tenure of employment of individual workers. And, in this case it did precisely
that for, as Sinding further testified, it "affected the order of layoff." Moreover,
it affected earnings in that employees selected for layoff could on occasion avoid
it by accepting a lower paid job ; had seniority not been reduced that employee
would not have been reached for layoff.
It is true that the Act does not create seniority rights or guarantee them to,
employees and that these rights are usually created by contract between the.
employer and the bargaining representative. Aeronautical Industrial District
Lodge 727 v. Campbell, 337 U. S. 521. The fact is, however, that if an employer
does grant seniority rights he may not discriminate against employees in confer-
ring those rights upon the basis of whether or not the employees have engaged'
in a strike or concerted activities protected by the Act. N. L. R. B. v. Walt Disney
Productions, 146 F. 2d 44 (C. A. 9), cert. denied, 324 U. S. 877; N. L. R. B. v. Star
Publishing Co., 97 F. 2d 465 (C. A. 9) ; N. L. R. B. v. Sandy Hill Iron and Brass
Works, 165 F. 2d 660 (C. A. 2) ; and Polish National Alliance v. N. L. R. B., 136,
F. 2d 175 (C. A. 7), affirmed, 322 U. S. 643. The discrimination against which
Section 8 (a) (3) protects employees embraces all elements of the employment.
relationship which customarily attend employment. N. L. R. B. v. Waterman,
Steamship Corp., supra. Furthermore, striking employees upon reinstatement are
entitled to be "treated in all matters involving seniority and continuity of employ-
ment as though they had not been absent from work." N. L. R. B. v. Republic-
Steel Corp., 114 F. 2d 820 (C. A. 3). The undersigned finds that the elimination
of the seniority of the striking employees in the instant case was brought about
because of their strike activity. This constitutes a discrimination against em-
ployees for engaging in concerted activities, which is therefore illegal and viola-
tive of Section 8 (a) (1) and (3) of the Act. General Electric Company, 80,
NLRB 510, and Illinois Bell Telephone Company, supra. Moreover, these were
unfair labor practice strikers who could not be replaced and, in any event, had not
been permanently replaced at the time this discriminatory condition was promul-
gated and put into effect , as is disclosed by the employment records of Respondent
Companies. N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333.
The above criteria apply equally, and the undersigned so finds, to those em-
ployees who did not engage in the picketing. Whether they sympathetically re-
frained from crossing the picket lines or, on the other hand, simply refrained
from engaging in concerted activities is immaterial. The Act guarantees them the
right to do either. Just as an employer may not penalize his employees for
engaging in concerted activities, he may likewise not penalize them for exercising
the right to refrain from engaging therein. But, as found above, whether con-
sidered as strikers, sympathetic strikers, or employees refraining from engaging
in the strike activity, all are subject to the protection of Section 7 of the Act a'
E. Respondent Companies ' defenses
At the conclusion of the strike Respondent Companies refused to reinstate the
group of strikers listed in Appendix "D" of the complaint together with three in
Appendix "C," Robert Sidman and Emile LeBlanc, who, as unfair labor practice
37 Inasmuch as this strike was an unfair labor practice strike at its inception, it is
unnecessary to decide whether this discrimination as to seniority served to prolong the
strike. By the same token , it is unnecessary to pass upon the contention of Respondent
Companies that the strike was prolonged by the position taken by a representative of the
International Union during a mediation meeting that the strike could not be settled If
recognition of the CIO was not a part of the settlement.
H. N. THAYER COMPANY 1195
strikers, were automatically entitled to reinstatement upon termination of their
strike. Various defenses to such refusal to reinstate have been very ably raised,
both of a special nature involving only certain individuals, as well as some of a
general nature. The latter group will be taken up first.
1. The council contracts
' The primary contention has already been disposed of, it having been found
that the council contracts in existence at the time of the strike were illegal and
hence no bar to a strike. These contracts being illegal and with illegally sup-
ported labor organizations, no problem arose, as contended by Respondent Com-
panies; of compl'ing with the provisions of Section 8 (d) of the Act.
2. Mass picketing
It is urged th it Local 154, aided and abetted by the International, engaged in
mass picketing as part of their efforts to win the strike, thus rendering the
strike unprotected. Of course, force of numbers in a picket line is not in and
of itself coercive. Bitner Fuel Company, 92 NLRB 953. Accordingly, the under-
signed will proceed to a consideration of the nature and method of the picketing.
Business Agent Binnall appeared at the Plant 1 picket lines each morning,
particularly on Sanborn Street. Taylor was in charge of Summer Street pickets
at Plant 2; he also appeared daily at the Cross Street line at Plant 1. Silverman,
sent by the International; appeared on the picket , lines. from time to time, usually
a Plant 1. Initially it should be noted that a host of witnesses gave testimony
concerning the pattern and nature of picketing at both plants. These descrip-
tions of the approximately 7-week long strike range from a portrayal of a polite
tea party or social gathering , which is contrary to the fact, to a picture of a
veritable Donnybrook, which is far from the fact. The undersigned has given
lengthy consideration to the matter, after carefully reading the entire transcript,
and has concluded that the testimony of five members of the Gardner Police
Deparment, including the chief of police, reflects in substance what took place.
Not only is their testimony supported in large part by that of many witnesses for
the General Counsel, but in addition these five witnesses, who were called as
witnesses for Respondent Companies and whose testimony is cited in their brief,
impressed the undersigned favorably with their demeanor and testimony con-
cerning their observations at various stages of the strike. This is particularly
true in the case of Chief Cyrille LeBlanc who was present at Plant 1 on cer-
tain days when the strikers were augmented by employees from other plants in
Gardner. These are the days on which Respondent Companies place particular
reliance in this contention concerning the nature of the picketing. It may also
be,noted that in an advertisement placed by Respondent Companies in the
Gardner News on March 16, 1949, the day after the strike was enjoined in its
entirety, they expressed their wish, inter alia, to "pay tribute to Chief Cyrille
LeBlanc and the Gardner police force for their skillful and impartial
handling . . ." of the strike. With this characterization the undersigned in
large measure concurs.
a. Plant 2
The following findings are based upon the testimony of Police Sergeant Jo-
seph Renes and Officer Anthony Ptasienski, who were present at Plant 2 from
mid-February -until the end of the strike. Weight has been given to the testi-
mony of Officer Stanley Yablonski who was at Plant 2 on one occasion during
the latter part of the strike between March 10 and March 15, when it is contended
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that picketing at Plant 2 was heavier than it had been theretofore. Reliance
has also been given to the testimony of Superintendent Tanner concerning con-
duct during the early part of the strike.
The presentation of this defense was confined largely to Summer Street and
Respondents apparently raise no serious contention with respect to the area
around the receiving platform on the South Main Street side of the plant where
there was but 1 policeman on duty. Thus, according to Tanner, the number of
pickets in the morning before 7 a. in. on the Summer Street side of the plant,
which was used by the majority of the employees, varied from 20 to 30 during
the month of February. This was the hour that the plant opened and when
the pickets were present in their largest numbers. The number would drop to
6 or 8 between 7 and 12 o'clock and increase to a number comparable to the
morning number at lunchtime when some of the help left the plant. It dropped
to the smaller figure after work resumed, and increased again to the larger num-
ber prior to 4 p. in. when the employees left for the day. As stated, police were
in attendance, commencing on the first day of the strike, January 26, throughout
the strike. It was their custom to drive to the plant in a police cruiser before
the employees were due to report. Shortly before the arrival of the latter, the
police would station themselves at the 2 automobile entrances on Summer Street,
actually taking these positions before the cars carrying the workers began to
arrive.
The number of pickets increased somewhat during March. Sergeant Renes
estimated the morning number as varying between 26 and 60. Ptasienski placed
the morning number as high as 60. And on one occasion at the end of the strike
when Yablonski was on duty, and when Respondent Companies contended that
the numbers were largest, he estimated the number of pickets as 50. All of
these groups at Plant 2 consisted of Plant 2 employees save on occasion when
Plant 1 help participated. Tanner's testimony placed the number of pickets
during March between 25 and 45 with a still larger number on the last day of the
strike. The undersigned believes and finds that the number of Plant 2 pickets
varied between 25 and 60 during the morning and evening hours, and that the
larger number was present primarily during the last few days of the strike. It
should be noted that only 1 or 2 employees reported for work at Plant 2 during
the month of February and that the officers were present at the plant during
March when the bulk of the action complained of by Respondent Companies
took place.
The typical procedure was as follows. At approximately 6: 45 a. in. cars
would start arriving at the driveways on Summer Street. The officers, who were
usually 4 in number, had taken charge of the situation and had previously sta-
tioned themselves at a particular driveway ; 2 would proceed to each side of the
driveway and stop, facing the driveway. As they stopped they would step into
the moving line of pickets which was then passing across the mouth of the drive-
way. The police then instructed the pickets to move out of the way so that cars
might enter. The authority of the police was recognized and these instructions
were uniformly obeyed ; those pickets who were beyond the width of the drive-
way as the officers stepped into the line, stopped behind the policemen, and those
who were between the policemen continued across the driveway. They did not
turn, however, but merely joined their associates behind the officers and the cars
would then proceed to enter the plant parking area. The number of pickets at
the mouth of each driveway when this took place ranged from 10 or 15 up to 30.
Sometimes several cars arrived together and they would enter in that fashion.
On other occasions, after an individual car entered, the officers stepped out of
H. N. THAYER COMPANY 1197
line and the picketing resumed. When another car approached, the police would
again step in and repeat the previous procedure.
None of the police on duty at the plant heard obscene language which some
of Respondent Companies' witnesses claimed had been used, although they did
hear the name "scab" as well as similar strike terminology in the form of
shouting when cars came and went. There is evidence that on one occasion
roofing nails and tacks were found in the driveway itself and a goodly amount
collected. There is, however, no evidence as to how they got there. According
to Renes, pickets would on occasion attempt to get in front of cars entering
the driveway, but desisted from doing so when instructed by the police to stop.
These instructions were uniformly obeyed. In the afternoon there was a repeti-
tion of the morning picture in reverse as the cars left. At sometime during the
strike a system was inaugurated whereby the cars did not leave until an officer
at the mouth of the driveway gave a signal. The procedure then was for the
police to step into the line before the cars departed and station themselves at
the side of the driveway as in the morning. The pickets then accumulated
behind them as they had done in the morning and the police gave a signal after
which the cars left together.
There is no evidence from the police of any physical assaults by any of the
pickets except on one instance when an automobile driven by one Ivan Brodeur
entered. On this occasion there was some difficulty involving Saul Silverman,
who did not testify in the hearing herein. Brodeur's car, on entering, almost
ran Silverman down, and the latter then ran into the parking lot. He approached
Brodeur, after the latter had alighted from his car and was.about to enter
the building, and kicked him in the posterior. Silverman was arrested, charged
with assault, and later paid a $15 fine. This incident took place on March 8,
during the sixth week of the strike and 1 week before it ended. Superintendent
Tanner, in commenting on the conduct of the strike, also recalled one morning
when the pickets shouted at a vehicle proceeding along the street in the direc-
tion of the driveway, ran alongside the car, and pounded on the window as the
car was about to turn into the driveway.
Insofar as the record indicates, the police were uniformly obeyed by the
pickets and there is no evidence of the police taking any action other than that
described hereinabove. There is also no evidence of any warnings being given
to the pickets concerning their conduct other than as hereinabove stated. The
police were on duty from the very outset of the strike on January 26 and uni-
formly conducted themselves in the fashion described above from that date
through the end of the strike on March 15, taking the initiative in all instances
of arrivals and departures of vehicles in the morning and evening, respectively.
b. Plant 1
The number of police at Plant 1 during the early part of the strike varied
from 1 to 8 at the Sanborn Street entrances, according to Sergeant Renes who
was on duty for several mornings late in January. On 2 of those occasions,
the number of pickets along the approximately 345-foot Sanborn Street frontage
was 40 and on 1 occasion the number was 100. Renes, who was stationed at the
pedestrian entrance, driveway A, testified that the picket line extended up to
the spur track in the middle of the alley between Plant 1 and the Simplex
building. The only action taken by him or the police on the occasions when the
employees were about to enter the plant was to-step from the street into the
driveway. Then the pickets would stand behind the officers and holler at the
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees as they entered. No other action was taken by the police on these
occasions.
Policeman Ptasienski was on duty at Sanborn Street somewhat later in the
strike, namely on 2 occasions late in February. He was present on 1 morning
and on 2 afternoons. On the morning occasion there were about 60 pickets
extending the length of the plant. As cars approached, about 30 pickets con-
gregated in front of driveway B. The police immediately stepped forth and
asked the pickets to move back. Ptasienski specifically testified that the pickets
obeyed the instructions and that 20 cars proceeded to enter the plant " On the
2 occasions that Ptasienski was on duty at the 4 p. m. hour, a procedure similar
to that at Plant 2 was followed ; the police stepped into the picket line, the
pickets proceeded to group behind them, and the police then signaled the workers
to drive out from the parking area, which they did. Ptasienski heard repeated
use of the word "scab" and on occasion heard the word "bastard" directed at
workers by strikers.
Sergeant Hugo Uppgard was assigned to duty late in January and remained
on duty for the duration of the strike during the entire workday. At times,
including the noon hour, the picket line was not particularly long. At other
times, especially at the ingress and egress hours in the morning and afternoon,
the line extended from the spur track at driveway A along the entire length of
the plant up to driveway C, a distance of over 300 feet.
At the outset of the strike, the line at driveway A extended beyond the spur
track up to the Simplex building. Two weeks later, Sergeant Uppgard told
Business Agent•Binnall that the pickets should be careful not to go near the
Simplex building .- This suggestion or direction , as the case may be , was obeyed
by Binnall and thereafter the line extended only up to the spur track. Accord-
ing to Uppgard, it was generally unnecessary for him to instruct the pickets at
driveway A to open up and make room for the cars as they entered. On one
occasion , however, just prior to the above conversation with Binnall, two female
employees were unable to pass pickets in their path near the Simplex building.
Uppgard told Officer Anderson to open up a way and on this occasion Anderson,
who did not testify herein, pushed out his hand, made way, and the two women
entered after,this, at best, momentary restraint. After this incident, the pickets
stayed on the Thayer, or east side, of the spur track and the help entered regu-
larly at driveway A without any apparent difficulty. In the afternoon, the
pedestrian employees left at A in a fashion similar to that followed by the auto-
mobiles at B. They would watch from the plant until the officers came over and
told the pickets at A to open up. The pickets then proceeded to open up and the
workers would leave the plant without any incident other than name calling.
Most of the picketing was done by Plant 1 employees. Occasionally Plant 2
employees participated and, as will appear below, on a number of occasions CIO
members from other plants in Gardner participated. The number of pickets
along the front of the plant varied from 20 to 80 and increased as high as 160 on
the days when the pickets were augmented by outside assistance. The average
number in the morning, when just Plant 1 employees participated, varied from
29 to 60.
On occasion, at the ingress and egress hours, the employees came and left
before the police took any action. On all other occasions priod to mid-February,
as It appears that sometime after the strike started the employees who drove to work,
began to arrive simultaneously. The cars gathered at the Gardner Police Station and
waited for the police cruiser, containing police who were on duty at the plant, to depart.
After a few minutes, giving the police time to station themselves at their places of duty,.
the cars bearing the workers would leave together for the plant.
H. N. THAYER COMPANY 1199
save two, the police intervened in the same fashion as at Plant 2, namely, by
stepping in the line before the cars arrived and having the driveway clear itself at
such,time as the cars approached. On one occasion while Uppgard was standing
at the side of the line, he was pushed forward by surging pickets from the rear.
He turned and told the pickets to step back, which they promptly did. The other
occasion Uppgard did not observe ; he merely heard another officer, who did not
testify herein, accuse a picket of shoving. On these occasions when the police
intervened and stationed themselves at the driveway, Uppgard estimated that
there would be about 15 pickets between them who would then proceed to move
behind the officers.
According to Uppgard, the picketing eased up somewhat between the middle
of February and the end of the strike, approximately 1 month later. During
this period he on occasion merely blew his whistle as a signal for the pickets to
break. Apparently, on these occasions, the officers did not step into the picket
line when cars came and went and the whistle signals were uniformly obeyed.
Uppgard noticed some swearing and name calling as well as singing of songs by
the strikers ; other testimony indicates that these songs were of a ribald nature.
Uppgard never heard any threats uttered by pickets to workers and no com-
plaints were ever made to him. On three occasions during February and March
he found nails in the driveway but, as at Plant 2, there was no evidence how
they got there. Save on one occasion, there was no contact of a vehicle by a
striker while Uppgard was on duty. On that one instance he saw an unidentified
picket take hold of the door handle of an entering truck ; the door was apparently
locked, and the truck merely continued on its way.
Policeman Yablonski was on duty at Sanborn Street during the morning in-
gress hour from the first or second day of the strike until its termination. His
testimony for the most part is substantially corroborative of that of Uppgard.
Although he testified that the pickets did not always move when the police di-
rected them to, he later stated that this happened only once and on his first day
of duty. On that occasion, as an automobile entered, two unidentified pickets
pushed against the front of the entering car. Yablonski instructed the driver
to run them down and the pickets got out of the way as the car entered. Other
than this one instance, the strikers during the remainder of the 7-week strike
uniformly recognized the authority of the police and moved out of the way of
entering automobiles when the police were at the picket line as On occasion,
employees entered the plant, as Yablonski observed, without the police taking
any action. He too heard the words "scab" and "rat" directed at the workers
and, as did Uppgard, heard yelling directed at the strikers from the workers in
the plant. On one instance, he observed a stone come flying through the air from
the direction of the strikers and strike the hood of a car. He never detected
who threw it and there is no other evidence of stone throwing.
. Yablonski was asked to describe just how the police intervened when cars
desired to enter the plant. He stated that the police waited near the driveway
for the cars to come near and, when they saw them approach, immediately went
over to the picket line . The police would then ".. . walk in front of the
line; of course there was a . man proceeding one way, and then the other, we'd
stand in front of the first individual we'd come to, and then, as the line kept
on going, that would open then, and then the other officer would step in front of
39 Employees Alex Hamel and Herman Comee testified that pickets on the first or second
day of the strike pushed the car of Edgar Breau back into the street when Breau attempted
to drive in. The undersigned credits Breau's testimony that he stopped when requested
by the pickets and voluntarily backed up and departed after being asked to support the
.strikers.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him and so he wouldn't come back, and the other officer stood there, and they
broke themselves." Yablonski added that the pickets responded "fairly well"
to this action by the police, after which the cars continued into the plant. As
in the case of the other officers, Yablonski was on hand waiting for the automo-
biles to arrive and he took action when he saw the automobiles proceeding down
Sanborn Street in the direction of the driveway.
There were certain days during the strike when Respondent Companies allege
that the picketing was aggravated ; the various officers gave testimony concerning
these occasions when workers from other plants appeared on the picket line.
It appears that this happened at least seven times during the strike. Chief
Cyrille LeBlanc, who was aware of this strike technique, was present on five
of those occasions and the undersigned believes that his testimony, which is in
more detail than that of other witnesses, accurately reflects what took place.
On February 17 Chief LeBlanc arrived at Sanborn Street at 6: 30 a. in. and
remained until after 7, having been advised that employees of Hedstrom Union
Company would participate in the picketing that day, as they did. He contented
himself with observing the scene and did not participate directly in any fashion.
LeBlanc observed a moving picket line of more than 145 people extending the
entire length of the plant, over 300 feet ; the pickets were approximately a man's
reach apart and appeared to be doubling back in an elongated circle. At that
point 5 or 6 automobiles bearing workers approached the plant. As these cars
neared the driveway, a group of police took the initative and 4 policemen.
stationed themselves on each side of driveway B. The pickets, as at Plant 2,
passed behind the police, leaving the driveway open and gathered behind the
police. The cars proceeded to enter and apparently did not come to a stop
during this procedure. LeBlanc also observed a taxicab pull up at driveway A.
Two workers alighted and walked in through that entrance as police, who were
nearby, merely stood by. These 2 workers were called "scabs" by the pickets
who also said "Don't take our jobs." Approximately 100 of the pickets that
morning were from Hedstrom Union plant, then located in Gardner. This
group of 100 departed at approximately 6: 50 a. m., leaving about 45 pickets who
were employees of Plant 1, and this number shrank to 40 when Chief LeBlanc
left shortly after 7 a. in. with the plant in operation.
On February 21 Chief LeBlanc was present at the same hour and observed
a total of approximately 160 pickets along the frontage of the plant. The picket-
ing was conducted in similar fashion to that of February 17 with pickets in a
continuous circle and an arm's length apart. At times it was difficult for
someone to pass on the sidewalk, and at times there was no difficulty . The same
procedure as on February 17 was followed with respect to cars desiring entrance
to the plant, with police taking the initiative before the cars arrived at the drive-
way. LeBlanc was asked specifically if the police on this day did anything
more than signal to the pickets to make way for the cars. He replied that the
police did not and that they "just stood there." He again left shortly after
7 a. m. but prior thereto, as on February 17, saw approximately 120 pickets,
largely employees of the Heywood-Wakefield Company, depart. Approximately
40 pickets who were employees of Plant 1 remained.
LeBlanc was present at the plant on February 22 during the morning ingress
hour and observed 120 to 130 pickets. After the cars had entered the plant,
he observed approximately 80 of the pickets, whom he recognized as employees
of Seibert Company, depart, leaving 40 to 50 Plant 1 employees behind as pickets.
Automobiles entered the plant in about the same fashion as on the other
H. N. THAYRR COMPANY 1201
mornings LaBlanc was on duty" On February 28 LeBlanc counted 100 to 110
pickets. After the plant commenced operations he saw 60 employees of the
Heywood-Wakefield Company depart, leaving 40 to 50 pickets, employees of
Plant 1, on the picket line. On March 1 LeBlanc counted 70 to 75 pickets of
whom 30, employees of Seibert Company, departed at approximately 7 o'clock.
Forty or forty'-five Plant 1 employees remained on picket duty. This was the
last time that LeBlanc was present at Plant 1.
According to LeBlanc, he assigned 6 or 8 police to duty at the plant during
the morning until February 17. when the number was increased to 12 or 14. This
larger number of police was present on the occasions that LeBlanc testified
about, set forth above. The number was greatly reduced during the noon
working hours and in fact, between 7 a. in. and 12 noon, there was only 1 police-
man on duty on Sanborn Street. No arrests were ever made at Plant 1 and,
as stated, the only arrest during the entire strike was that of Silverman at
Plant 2. In describing the picketing, as he observed it on an over-all basis,
LeBlanc stated that the pickets were picketing only on the sidewalk. When
cars came in sight the police took immediate action, namely, " . . . as the cars
approached the officers stepped aside [to the driveway] and whatever pickets
were caught in between the officers went in back of the officers." On occasions
some of the pickets in the rear of the officers extended into the street, but
generally they remained on the sidewalk to the rear. LeBlanc heard little
or no comment by the police as they stepped into the picket line.
c. Conclusions
The frontage of Plant 1 on Sanborn Street is an extensive one of approxi-
mately 345 feet and the strikers and their supporters gathered there in large
numbers. The strikers, as is apparent, were completely responsive to the bidding
and instructions of the policemen who took charge of the situation and actually
intervened when the automobiles and pedestrians were still some distance from
the respective -driveways It would be pure conjecture to consider what the
situation might have been had the policemen not been present. The simple
fact is that despite the numbers involved, the strong feeling on the part of the
strikers against the flagrant unfair labor practices by Respondent Companies
and toward the workers, many of whom were supporters of the illegally assisted
Councils, the undersigned does not believe on this record that there has been
a demonstration on the part of the strikers of a "fixed determination to bar
ingress to plant property" or that this picket line conduct constituted attempts
or efforts to bar ingress to the plant. This is all the more apparent at Plant 2
where the numbers of pickets were smaller and where there was no outside
participation. Standard Oil Company of California, 91 NLRB 783. There is no
evidence that the gathering at the entrances to the plants was part of any
plan to obstruct entry in an illegal manner, and, in fact, the strike instructions
to pickets by Binnall were precisely to the contrary. And, as the record shows,
many cars and persons entered and left the plants without incident despite
the presence of the pickets.
When consideration is given to the length of the strike, the numbers involved,
and the passions engendered prior to and during the strike, it is apparent that
40 On January 28 Heywood-Wakefield employees were also present and it appears that
Hedstrom Union employees were present on February 24. LeBlanc was not at the plant
on either of those occasions There is nothing to indicate that the pattern on those days
differed from that on the clays LeBlanc was on duty.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the whole the strikers were an obedient group rather than the unruly mob that
Respondent Companies would have one believe. This view is supported by
numerous pictures, which were introduced in evidence, all taken by Respondent
Companies. They disclose groups of strikers at the picket lines or along the
sidewalk at the time that cars are entering or leaving the premises of Plant 1.
Men are revealed, apparently in the act of obeying the police who are standing
at the sides of the driveways as cars enter and leave. There are absolutely no
indications of the use of physical force by the police or of recalcitrant strikers.
Under all the circumstances, the undersigned rejects this contention by
Respondent Companies.
3. The Massachusetts decisions
The Massachusetts Supreme Court found that the conduct and methods of
this strike were illegal under Massachusetts law and it is urged that these findings
are binding upon the Board. As previously stated, findings by a State court are
not binding on the Board which has not been a party to the State proceedings.
Standard Oil Company of California, supra. There is also the fact that the
instant hearings were of far greater length and of broader scope than those
before the State tribunal.
Moreover, while it is true that a State under its police power may regulate
picketing which happens to be contrary to State public policy, Hughes v. Superior
Court of California, 339 U. S. 460, it does not follow that the picketing becomes
illegal under Federal law. In the instant case, the State Supreme Court com-
pletely disregarded the fact that the contracts at the time of the strike with the
respective Councils were illegal under Federal law and hence no bar to a strike
by the employees of companies engaged in interstate commerce. A decision
herein as to whether the strike was illegal cannot be based upon criteria set up
by the State ; such a result would freeze a labor relations pattern in that State
despite th efact that the Federal Act has left the matter fluid for decision by the
Board and the Federal courts. LaCrosse Telephone Corp. v. Wisconsin Employ-
ment Relations Board, 336 U. S. 18.
State policy which derogates from the labor rights established by the Act is
unconstitutional. Hill v. Florida, 325 U. S. 988. Although conflicting laws may
still be applied to interstate industries, this may be done only where the National
Labor Relations Act was intended to permit contrary State action. Algoma
Plywood and Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S.
301. Thus, State laws may not be applied where they directly or potentially
conflict with the practices and procedures of the National Labor Relations Act
in representation cases. LaCrosse Telephone Corp. v. Wisconsin Employment
Relations Board, supra, and Bethlehem Steel Co. v. New York State Labor
Relations Board, 330 U. S. 767.
Furthermore, the Supreme Court has decided that the same rule of Federal
supremacy applies in unfair labor practice cases as well as in representation
cases. Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338
U. S. 953. It was there recognized that in areas of conflict in unfair labor
practices, which is the case here, the State policy must bow. This policy has
recently been reaffirmed in Electric Railway Employees V. Wisconsin Employ=
ment Relations Board, 340 U. S. 383. Even assuming that the State was free to
regulate and enjoin the picketing herein, it does not follow that this decision
by a State court automatically usurps and disposes of the issues posed for
decision herein. It is felt rather that the State action is contrary to the compre-
hensive Federal policy and program for dealing with these problems and must.
H. N. THAYER COMPANY 1203
therefore fall. See Federalism and Labor Relations, Cox and Seidman, 64
Harvard Law Review No. 2 (Dec. 1950).
if the Federal Board is prohibited under Section 10 (a) of the Act from ceding
jurisdiction to the labor relations agency of a State where the applicable State
statute is inconsistent with the Federal Act, a fortiori, the character of a con-
certed activity permitted and authorized by Federal law cannot be entrusted to
the determination of the courts of that State. Cf. Sears Roebuck & Company,
91 NLRB 1411, where it was held that the Massachusetts statutes on labor rela-
tions were inconsistent with the Federal statutes , thus preventing the cession of
jurisdiction to the State labor relations commission.41 Moreover, there is some
question whether the States have any authority whatsoever in an industry affect-
ing interstate commerce. See Pocahontas Terminal Corporation v. Portland
Building and Construction Trades Council, 93 F. Supp. 217 (D C. Maine) and
Norris Grain Co. v. Nordaas (Minn ), decided 9/9/50, 26 LRRM 2597, petition
for rehearing denied 2/29/51, 27 LRRM 2323.
This is not to say, however, that a State may not exercise its police power here.
The undersigned finds only that the exercise of said power is not determinative
of the issues before the undersigned. It is paradoxical that the Massachusetts
Supreme Court held that the findings by the superior court judge were inadequate
under State law to support the issuance of the injunction but nevertheless pro-
ceeded independently to term the methods of the strike illegal. And, in fact,
the superior court judge found that the strike was not a labor dispute under
Massachusetts.] aw. This serves only to further highlight the views advanced
hereinabove. Accordingly, this contention is rejected.
4. Alleged secondary activity
Respondent Companies argue that the strike by the employees of Plants 1 and
2 was illegal in that it constituted a secondary strike activity violative of Sec-
tion 8 (b) (4) (B) of the Act. This is a twofold contention. Respondent Com-
panies contend that (1) Plants 1 and 2 are separate employers and that the
picketing by Plant 1 strikers at Plant 2, and vice versa, as was in fact done, con-
stituted strike activity directed at another employer, and (2) picketing at Plant
1 by members of Local 154 employed by other concerns constituted similar illegal
activity. The first contention, however, has been disposed of by the prior findings
that Respondent Companies constitute an integrated employer. As to the second,
assuming such conduct by these nonemployees to be illegal,'it does not follow
that the admittedly primary aspects of the strike became tainted by its secondary
aspects involving employees of other employers. An, adequate remedy exists for
-handling such secondary activity.
Moreover, Respondent Companies' contention is supported neither in fact nor
law. Some testimony was taken, and other testimony' excluded,'Y concerning
the efforts of Local 154 to have its members working for other, employers in
Gardner assist in picketing on occasion at Plant 1,only: These: employees of
other employers came to Plant 1 on approximately seven occasions during the
41 As noted above, one State judge refused to enjoin the instant strike and another at
a later date saw fit to do so, although there was no significant change in the strike pattern.
This only highlights the havoc which would follow were the decisions and findings of the
State tribunal to be binding on the Federal Board
42 The undersigned quashed a subpena directed to Toivo Friedlander , president of
Local 154 , insofar as it sought testimony , according to the offer of proof, relative to the
',alleged mass picketing and secondary aspects of the strike . The offer did not specify
. Friedlander ' s participation in or authorization of the incidents treated hereinafter in
subsection (e).
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike prior to 7 a. in., and joined the picket line on Sanborn Street, appearing
on different days which were selected for each concern's employees to participate.
It appears that they left at 7 a. m. or shortly thereafter and returned to their
respective plants nearby. Ultimately, some disciplinary action was taken by
one of these employers and this support was abandoned. It is also true that
Local 154 endeavored to have at least one of these other employers advance
its starting hour to 8 a in. from 7 a. in. so as to permit the employees of that
employer to picket without any loss of earnings. And, on at least one occasion
representatives of Local 154 stationed themselves at the premises of one of these
other concerns in order to ascertain whether Local 154 members, contrary to
instructions, were reporting for work prior to 7 a. m. rather than at the Sanborn
Street picket line.
Obviously, none of this activity involved a strike at the premises of secondary
employers for any objective whatsoever ; nor did this activity or inducement
have the object of compelling the cessation of business between the primary
employers herein and secondary employers or any other secondary purpose.
Moreover, in view of the findings hereinabove that the strike was caused by the
unfair labor practices of Respondent Companies, this is not a strike against one
employer in order to force another employer to recognize an uncertified labor
organization. It is established that Section 8 (b) (4) does not outlaw any
of the primary means which unions traditionally use to press their demands on
employers . Even inducement at places other than the picket line is permitted
so long as the inducement invites action only at the premises of the primary
employer whose employees are on strike. Santa Ana Lumber Company, 87 NLRB
937, and Conway's Express (Montgomery Ward Co.), 87 NLRB 972. All induce-
ment in the instant case was designed solely to secure assistance on a number of
mornings at the primary picket line established at the premises of Respondent
Companies. Accordingly, this contention is also rejected. Interborough News
Company, 90 NLRB 2135; Schultz Refrigerated Service, Inc., 87 NLRB 502; Rijan
Construction Corp., 85 NLRB 417; and The Pure Oil Company, 84 NLRB 315
5. Incidents
a. The facts
Respondent Companies have raised the contention , as a defense to the rein-
statement of some of the strikers , that they engaged in conduct not protected
by the Act . Specifically , both in cross-examination of the complainants herein
as well as in the examination of their own witnesses , Respondent Companies
adduced evidence concerning participation , or as appears in some instances,
nonparticipation of some of the strikers in certain incidents . Some of this
examination related to incidents that just did not take place and some to inci-
dents too trivial to merit repetition ; examples of the latter will be set forth.
Still other incidents that did take place will also follow . It should be noted
that a number of the complainants listed in Appendix D were not involved on
these occasions and further, that many of these incidents were not raised with
the returning strikers . In fact very few of the returning strikers were given
an opportunity to give their versions of what took place on those occasions and
then only when they appealed the denial of reinstatement.
These occurrences are of course to be considered against the following back-
ground : ( 1) This was a strike of 7 weeks duration involving the employees of
two plants ; ( 2) the strike resulted from the flagrant unfair labor practices of
Respondent Companies ; (3) the picketing at both plants took place in midwinter
in the midst of attempts by Respondent Companies to enlist additional employees
H. N. THAYER COMPANY 1205
to replace these strikers who as a matter of law were entitled to reinstatement;
(4) relatively early during this strike Respondent Companies further discrimi-
nated against the strikers by removing their seniority; and (5) these occurrences
involved employees of both plants in incidents both at and away from the respec-
tive plants.
The home of George Andrews in the neighboring town of Winchendon was
visited sometime during the strike by a group of strikers. This took place on
a Saturday which was a non-workday. The strikers arrived in five cars, each
carrying a number of passengers . The cars stopped in front of the Andrews
residence with some of the passengers remaining in the cars, and others alight-
ing and standing on the sidewalk. Joseph Theodore, as he testified, walked up to
the front door and was met by Andrews who was carrying an iron pipe in his
band. Andrews asked what the group wanted and Theodore replied that he
wanted to show him the group which was assembled there ; that this group was
respecting the picket line ; that they would not work on the following Monday ; and
that he was asking Andrews to do likewise. Andrews replied that he had already
decided not to report to work on the following Monday, and the group left.
Andrews' testimony did not conflict with that of Theodore, set forth above, as
to the conversation, although he alleged that an unidentified person in the
group in front of the house threatened to break his head and stated that there
would be broken arms and legs if the Winchendon workers (Andrews and
several others) returned to work. Theodore has heretofore been found to be
an honest and reliable witness and his testimony is credited herein. Moreover,
his testimony is supported by that of others who were present, whereas Andrews
was an excitable individual with a tendency to exaggerate. Furthermore, the
alleged threats, even if uttered, are attributed to unidentified persons and the
undersigned finds even on that posture that the conduct of Theodore did not
go beyond the protection of the Act. It may be noted that participation in
this incident, inter alia, has also been raised by Respondent Companies as a
basis for the denial of reinstatement to strikers Arthur Ares, Amos Fontaine,
and Laurie Gallant. They, however, credibly testified that they were not present
on that occasion and there is absolutely no evidence to the contrary. See Ohio
Associated Telephone Company, supra.
Foreman Carl Sandstrom identified an employee named Ares as one he had
observed in the following conduct. Ares allegedly ran from the sidewalk about
1 block from the plant, momentarily grasped the door handle of an automobile
carrying workers that had just left the plant, and then released it and ran back
to the sidewalk. Although in this respect Sundstrom impressed the undersigned
as an honest witness, it is not clear whether he was making reference to Arthur
Ares, who was later denied reinstatement. Employee Herman Comee testified
that he saw a similar incident on the part of Ares some 800 feet from the plant.
Not only is Comee elsewhere found to be an unreliable witness, but in addition,
even if this incident did take place, the undersigned finds that Ares did not
engage in unprotected concerted activities.
Toward the end of the strike Annie Popoloski was being driven home from
Plant 1 by her husband, a nonemployee. Several blocks from the plant the car
stopped at an intersection and a car proceeding toward it from the opposite
direction also stopped. The driver, Arthur Ares, then swore at Popoloski's
husband, at which point the Popoloski car moved away. Not only was Mr. Popo-
loski not an employee, but the undersigned further finds that this did not
constitute an illegal unprotected activity.
Herman Comee testified in Boston as part of the unsuccessful attempt by
Respondent Companies to obtain an injunction in this proceeding. Shortly
215233-53-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter Comee had occasion to look out the plant window. Striker William
Au coin was standing in the street at the time although the record does not
show whether or not he was on the picket line. Aucoin then yelled at Comee
that he would "get" Comee for mentioning his name at the Boston hearings. The
undersigned does not believe this incident to be one of flagrant misconduct but
rather deems it more of "a moment of animal exuberance." N. L. R. B. v.
Illinois Tool Works, 153 F. 2d 811 (C. A. 7). Accordingly, it is not found to
constitute illegal conduct. See N. L. R. B. v. Reed and Prince Manufacturing Co.,
118 F. 2d 874 (C. A. 1), cert. denied 313 U. S. 595.
George Andrews claimed that as he left the plant one day employee Pat Henry
was standing on the road, although apparently not on the picket line, and pro-
ceeded to shake his fist at Andrews and state "If I didn't stay home he'd fix me."
During rebuttal, it was stipulated, apparently by inadvertence, that Hector
Henry, Pat Henry's brother, would deny making this statement. In either event,
regardless of the identity of the spokesman, the undersigned finds that the
utterer of the statement did not engage in an unprotected concerted activity.
According to the testimony of Ivan Brodeur, he walked home from work one
day and found four cars parked in front of his house ; these bore six or eight
pickets including Serve Bourque, Pat Henry, Francis Arsenault, George
Bourgeois, Laurie Gallant, and Albert Gallant. Albert Gallant, Bourgeois, and
Bourque alighted from one car and approached Brodeur who was standing on
the sidewalk. Albert Gallant then said "We want to talk to you." Brodeur
replied that he wanted nothing to do with them and walked into the house. No
statements were attributed to the others present on this occasion. The under-
signed finds that this did not constitute illegal conduct.
Several days later Ivan Brodeur was again visited. On this occasion, Brodeur
left his home in the morning and observed Albert Gallant and Pat Henry seated
in a car parked in front of the house. According to Brodeur, Henry stated that
Brodeur was not going to work that morning and when Brodeur replied that he
was, Henry said "The only time you'd stop working is when we squeeze blood
out of you." Brodeur together with his brother George and Rosaire LeVesque,
his passengers, then departed for work. Brodeur's testimony was supported by
that of LeVesque. However, both Brodeur and LeVesque demonstrated a lack
of candor in their testimony herein. Thus, it was shown that Brodeur testified
at the injunction hearing in Worcester that it was he, not Henry, who had said
"The only time I'll stop working is when they squeeze blood out of me."
LeVesque admitted that he did not know the name of the speaker on this
occasion until Brodeur told him who he was. Here too the parties inadvertently
stipulated that Hector Henry (rather than Pat Henry) would testify that he
denied making the statement attributed to Pat Henry by Brodeur. However, in
the present state of the record the undersigned is unable to attach any credence
to the testimony of Brodeur and LeVesque on this episode and it is found that
Gallant and Pat Henry did not engage in an unprotected concerted activity on this
occasion.
Ivan Brodeur also claimed that one night during the strike an automobile
bearing Alfred Prevost followed him home and that as he, Brodeur, got out of
his car Prevost stated that if Brodeur did not stop working "they were going to
beat . . . [him] up." This was denied by Prevost whose testimony the under-
signed credits.
One morning during the early part of the strike Thomas Cazeault, his son, and
two other persons, were sitting in a car parked in Gardner Square awaiting
another passenger before leaving for work. Another car pulled up and parked
in front of them, according to Cazeault, and Ernest Martin, Paul Hamel, and
H. N. THAYER COMPANY 1207
Herman Hamel alighted. They walked around the car containing Cazeault, and
Martin greeted Cazeault' s son ; he asked the latter if he was going to work and
the reply was in the affirmative. The three men returned to their car and drove
away , at which point the Cazeault vehicle started to follow the car carrying the
strikers. As they followed the car, striker Ray Columbus was allegedly seen by
Cazeault to extend his fist out of the car window and shake it in the direction
of the Cazeault car. This conduct was denied by Columbus, but the undersigned
deems it unnecessary to resolve the conflict for even on the face of the Cazeault
testimony, it is apparent that there is no evidence of illegal or unprotected con-
duct. It is noteworthy that Arthur Leger was also denied reinstatement be-
cause, inter alia, he was allegedly in the car carrying the three strikers. This
Leger denied and there is no evidence that he was in the vehicle.
During the first few days of the strike the driving of the Plant 2 truck was
taken over by Foreman Boucher. On one occasion, according to the testimony
of Foremen Boucher and Erickson, Boucher was accompanied on a trip by
Erickson. On their return to the plant a group of pickets near the entrance told
them to stop. This group included Herve Bourque, whose discharge on January
11, 1949, has been found to be discriminatory, and Herbert Lamoureuw; it appears
that there was a third, Pat Henry, as well as a fourth, Herbert Savoie. Bourque
alone spoke and stated that the men did not want Boucher to drive the truck.
The latter asked what would happen if he did take it out, and the reply was it
would be too bad. Boucher asked whether it would be too bad for him or the
truck, and Bourque replied "both." Bourque denied the latter part of the
statement quoted above. It is deemed unnecessary to resolve this conflict. Not
only were Boucher and Erickson supervisory employees, but even in his own testi-
mony Boucher in effect solicited the replies allegedly made by Bourque on this
occasion. This too impresses the undersigned as a moment, at best, of "animal
exuberance" particularly in view of Borque's status as one who had been victim-
ized by unfair labor practices. The undersigned finds that Bourque as well as
the others present who did not speak have not engaged in unprotected concerted
activities which rendered them unfit for further employment. Kansas Milling
Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10).
During the second week of the strike Thomas Cazeault was walking to work
one morning together with his son and, while at least 1 block from the plant,
was met by Arthur Ares, Ernest Roy, and Amos Fontaine, who proceeded to
follow them in the direction of the plant. Ares then stated, according to
Cazeault, "Tom, this is the last time we are telling you, keep the hell away
from there." Roy asked Cazeault what his views were on the Taft-Hartley
law and, as the group neared the plant, one or more of the strikers loudly
informed the pickets that scabs were approaching. The Cazeaults entered the
plant without incident. The undersigned finds that the above-named strikers
did not on this occasion engage in illegal conduct. Cf. Standard Oil Company of
California, supra.
Joseph Cormier was in a layoff status at the time of the strike. He received
the letter of February 1 inviting him to contact Superintendent Fred for reem-
ployment for which he was qualified. He did not return, however, and also
did not engage in any of the picketing. Several days before the end of the
strike the following took place, according to Cormier whom the undersigned finds
to be a reliable and honest witness. Cormier was strolling in downtown
Gardner on a Saturday evening and chanced to look inside a parked car. One
Ladeau jumped out, apparently incensed, and proceeded to provoke a fight.
Although Ladeau was apparently a worker during the strike, the fight evolved
about a personal issue, namely, Ladeau's resentment at Cormier for peering
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Into his car. During the fight Cormier slipped and fell, injuring his ankle.
When Cormier applied for work after the issuance of the injunction, Superintend-
ent Fred informed him that he was on the blacklist and indicated that he had
heard of the altercation with Ladeau. It is apparent that Superintendent Fred
considered Cormier in the light of a striker who had engaged in an altercation
with a worker and the undersigned finds that Fred proceeded to deny reinstate-
ment to Cormier because of this altercation. Under all the circumstances the
undersigned finds that Cormier was denied reinstatement because he was
believed to have engaged in concerted activities, and it further found that his
conduct on this occasion was not unprotected. Moreover, even if Cormier re-
frained from engaging in concerted activities during the strike, he would be
entitled to reinstatement at the conclusion of the strike for he had engaged In
no improper conduct. The undersigned does not believe it to be his province
to stand censor over the minutiae of personal behavior so long as the conduct
does not do violence to the public policy of the Act.
Worker Maurice Cote claimed that six strikers had visited his home sometime
during the strike. The record reveals that six people appeared in the street
in front of the Cote home and invited him out to fight; that Cote refused;
and that he knew none of them then or now. In fact, he had never seen any of
them. On a similar vein, Cote contended that as he left the plant one night
a picket cracked a window of his car. He further testified that he heard an
impact ; that he did not see what hit the window ; and that he did not know
whether the window had been previously cracked or not. No further comment
Is necessary.
Maurice Cote was assaulted one night while at a barroom in Winchendon.
He claimed that upon entering he observed Charles Dwyer at the bar. Dwyer,
who after January 1, 1949, had been retained in Plant 2 as a rank-and-file
employee, greeted Cote and then left. Shortly thereafter, Cote started to leave
and was allegedly assaulted by 12 or 13 people; this was almost immediately
broken up by police who were called by the bartender. The record also reveals
that present in the barroom that night but at unspecified times were Hector
Henry and Francis Arsenault. Dwyer admitted being in the barroom but denied
even knowing Cote. Moreover, as Cote testified, Dwyer had left the scene at
the time. In addition to Dwyer, whom Cote did not place on the scene at the
time of the actual incident, Cote also named Humphrey Gallant and one "Balloon"
Ares as among his assailants who tried to drag him away from the doorway of
the barroom. The former is not a claimant herein. Respondent Companies ap-
parently contend that the latter is Arthur Ares because several of their witnesses
claimed that Ares was known by the nickname of "Balloon." Ares denied any
participation in the incident. In sum, the only claimant identified as partici-
pating in the seizure of Cote is one, Ares, and it is not clear to the satisfaction
of the undersigned that he is the same person who is the claimant herein.
Ohio Associated Telephone Company, supra. It is accordingly found that
neither Dwyer nor Arthur Ares engaged in improper conduct on this occasion.
One day during the strike Herman Comee parked his car across the street
from a diner in Gardner (apparently Burns Diner) and then entered together
with his brother Gordon. Soon afterwards, he observed three men bending
down on the far side of the car, although the car substantially obstructed his
view. Both Comees immediately ran out of the restaurant, whereupon the three
fled. Comee noted that one tire was deflated, the valve having been removed,
and, that the other on that side was partly deflated. The Comees recognized
one of the three as a Ziggy or Zizzi Gallant, whose correct name the record
does not supply with any accuracy. Moreover, the record does not disclose that
H. N. THAYER COMPANY 1209
these three inflicted the injury to the tire or, if they did so, which of the three
participated. Furthermore, the name Gallant is legion among the employees of
Respondent Companies (and also apparently in Gardner) and therefore there is
a question which Gallant it was. The undersigned finds that no person named
Gallant among those named in Appendices C or D herein engaged in unprotected
conduct on this occasion.
Ernest Roy and Joseph LeBlanc were allegedly denied reinstatement, inter alia,
because of a visit paid to the home of one Czekatowsk8, a worker, during the
strike. The record indicates only that the two men, as they testified, visited
the home of Czekatowski who was a personal friend of both. They discussed
hunting and fishing, apparently a mutual interest, as well as Czekatowski's dog.
LeBlanc asked Czekatowski to join the strikers and remain away from work.
Czekatowski replied that he needed the work and would continue to report.
They chatted pleasantly for a while and the two strikers left. Czekatowski was
not called as a witness here. Needless to say' Roy and LeBlanc did not engage
in any unprotected conduct on this occasion.
During the strike Charles Dwyer visited the Tourigny Tool and Die Company,
in the nearby town of Templeton ; this concern at the time repaired and made
new dies for Respondent Companies Dwyer was a personal and social friend
of Leo Tourigny, the son of the proprietor. He spoke to the younger Tourigny,
who was then in charge of operations, and asked whether they were making
dies for Respondent Companies. Tourigny replied in the affirmative. There
is some confusion in the testimony of Tourigny and Dwyer as to what followed,
but the undersigned finds that Dwyer asked Tourigny not to do work for Respond-
ent Companies. The conversation turned to the progress of the strike and
Dwyer mentioned that windows had been broken in Gardner. The interview
ended and Dwyer left. Not only was Tourigny not an employee within the
meaning of the Act, but the undersigned further finds that the conduct of Dwyer
on this occasion was not of such a character as to constitute an unprotected
activity or render him unsuited for further employment.
One afternoon during the strike, striker Amos Fontaine met a group of workers
some distance from the plant and called them scabs. One of them, Abigail
Mank, asked an officer to identify Fontaine, which the officer proceeded to do.
On the following day, as Mank left the plant, she saw Fontaine who stated, ac-
cording to Mank, "You got me last night. I'll get you yet." It is not clear
whether Fontaine was on the picket line at the time or standing nearby.
Fontaine denied making the statement, but the undersigned credits Mank who
was a straightforward and truthful witness. It is found , however, that this
statement was not sufficiently serious to constitute an illegal unprotected
activity.
Ivan Brodeur testified that as he left Plant 2 one night he was accosted by
Albert Gallant and Edwin Orre, one of whom grabbed him by the arm. Gallant
then allegedly said "We are going to beat you up, but we won't do it ; we'll have
somebody else do it." Both Gallant and Orre denied that the incident took
place. Not only has Brodeur been previously found to be an unreliable witness,
but he further impeached himself herein. Thus he testified at the Worcester
hearing that he had never been grabbed. He also testified in the present hearing
that he thought it was Gallant who had grabbed him. Under all the circum-
stances, the undersigned credits Gallant and Orre herein and finds that they did
not engage in an improper concerted activity on this occasion.
Three automobiles carrying Winchendon workers were proceeding from
Gardner to Winchendon at the close of a workday during the strike when Charles
Dwyer allegedly engaged in conduct for which he was denied reinstatement.
/4
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dwyer , with several passengers in his car , had been waiting for the three cars
in an effort to see the group of workers . The passengers in his car included
Hector Henry, Ray LeBlanc, and Herbert Savoie . While driving toward Gard-
ner, Dwyer spotted the three cars as they approached , slowed down , and was
about to turn his car ; the three cars passed , however. According to various
persons in the three cars, the Dwyer car gradually crossed over the center line
of the two-lane highway and compelled the three cars to move close to the curb
as they passed the Dwyer car. It appears that the last of the three cars came
very close to plowed snow piled up at the side of the road. The three cars then
proceeded to Winchendon without further incident. It is the contention of
Respondent Companies that Dwyer tried to run these cars off the road. The
undersigned deems the evidence by Respondent Companies ' witnesses, which
contained numerous discrepancies , to be insufficient to support the finding
urged herein by Respondent Companies . It is found that Dwyer and his passen-
gers did not engage in unprotected activities on this occasion.
In the early part of the strike the home of worker Alma G-uevin was visited
by three ladies among the strikers, Lucy Leger, Alice Boucher, and Beatrice
Bourque. On the previous day Guevin had urged Leger to abandon the strike
so as to avoid losing her seniority of 12 years which, of course, was the policy
Respondent Companies had adopted . The three strikers visited the Guevin
home on the following day and at sometime during the visit, which was other-
wise of an entirely social nature among friends of long standing , one of the
three, according to the credited testimony of Leger, but not Leger, stated "if the
CIO gets in it would be just too bad for you." At the end of the strike this
comment was specifically repeated to Leger by President Troendle who told
her, despite her claim that she had not uttered the statement , that she was as
guilty as the one who had. Neither Boucher nor Bourque recalled such a state-
ment, and Guevin did not testify. Firstly, the record does not show who made
the statement, and the undersigned finds that Leger did not ; secondly, the fact
that Leger was present when the statement was made does not place her in an
unprotected status ; and thirdly, if the statement was uttered under these circum-
stances, it did not constitute unprotected concerted activity.
During the strike Charles Dwyer visited the home of Erwin Smith, a worker,
and asked the latter to join the CIO. Smith declined and Dwyer replied , accord-
ing to Smith, "You have heard the unpleasant things that have happened to some
of the fellows that wouldn't join, and wouldn't want anything like that to happen
to you." Smith persisted in his refusal to join the CIO, and Dwyer left. He
denied any participation in this incident. Smith also testified that he first
brought this incident to the attention of Respondent Companies on the morning
of his testimony herein, and it is apparent that they had no prior knowledge
of it. Hence, if uttered , it played no part in the decision not to reinstate
Dwyer. The undersigned deems it unnecessary to resolve the conflict for, if
the statement was made, the conduct was not of such a nature so as to render
Dwyer unfit for further employment. N. L. R. B. v. Kansas Milling Company,
supra.
One evening employee Alex Hamel left the plant and drove to Gardner Square,
the window beside the driver 's seat being open . While proceeding through the
Square , a car coming from the opposite direction passed and as it did , Arthur
Ares extended his head through a rear window and spat. The spittle struck
Hamel on the face. Although Ares denied the incident , it is unnecessary to
resolve the conflict . If this incident took place , it does not follow that Ares,
while the vehicles in motion were passing, spat with the intent to strike Hamel.
H. N. THAYER COMPANY 1211
Moreover , under all the circumstances , the undersigned finds that this did not con-
stitute illegal and unprotected conduct.
Alex Hamel was allegedly addressed on two occasions by striker Milton Dill.
On the first, Dill allegedly stated that the same thing that befell Polydore
Guevin's car would happen to Hamel's car . The record indicates that Guevin's
car had been turned on its side one evening by persons unknown . Dill claimed
that he merely asked Hamel if he remembered the Guevin car incident. On
another occasion , while ' Hamel was working in the factory , Dill looked in the
window and said , according to Hamel, "We'll get you yet" This Dill denied
and the undersigned credits the denial in view of Hamel's vagueness and un-
certainty when questioned further concerning the episode. As for the first
episode, the undersigned finds that Dill did not thereby lose the protection of
the Act.
Cornelius Magner, a brother of Council 1 President Edward Magner, was
visited at his home by strikers on 2 occasions . On the first , 2 or 3 cars pulled
up, bearing 7 to 10 people including Bertha Anderson , Vieno Sinivuori, and
Agnes Simkewicz . The cars stopped near a car in which Magner was sitting
with another worker ; Magner was apparently about to leave for work at the
time. Some of the group wanted to know why Magner was going to work and
left after calling him names.
On another occasion at the same hour , several cars with strikers including
Joseph LeBlanc, Alfred Prevost , and Herbert Lamoureux , came to Magner's
home. LeBlanc asked why he was going in and Magner said that he had a right
to, claiming that there was a contract in effect with Council 1. LeBlanc pointed
out that the contract was illegal and Lamoureux stated that Magner would get
into trouble if he continued going into work. Magner then drove off. It is found
that none of the strikers who visited Magner on these two occasions engaged in
unprotected concerted activities.
The home of worker James Thompson was visited by a group of five ears car-
rying strikers . Some of them alighted and walked along the street while Joseph
Theodore went to the door. Thompson invited Theodore in and Theodore en-
tered, after which Theodore asked Thompson if he was reporting for work on
the following week . Thompson replied that he was not and Theodore said, ac-
cording to Thompson, "Well, I'd advise you to keep away." Theodore testified
that in all home visits he told the worker visited only that he had brought the
group in order to show the worker some of the people who were staying out.
The undersigned credits the testimony of Theodore herein, but in any event, even
on the basis of Thompson 's testimony , it is found that Theodore did not engage
in illegal and unprotected conduct.
Alex Hamel testified that one afternoon , just after returning home from work,
a car bearing Arthur Ares, Norman Leger, and a noncomplainant herein, Philias
Barrieau , drove up. They allegedly directed some names at Hamel and invited
him to join them in the street and fight them one at a time ; the invitation was
speedily declined by Hamel. Leger and Ares contradicted this version , claim-
ing that they drove up and told Hamel to stay out of work and help the strikers.
They claimed that he said he would work as long as he could ; that they called
him a "rat" and a "scab"; and that they then left. The undersigned accepts
the latter version of the incident and in any event , even on the basis of Hamel's
version, finds that Ares and Leger did not engage in illegal activities.
Frances Collette was approached by striker Harry Hosley one evening as
Collette left the plant. Hosley asked her to be fair, to stay home, and to "better
get on the right side." On another occasion , when she was in a group , Hosley
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said "When we get in you won't have a job, you'll be out." The record does not
reveal the composition of this group or whether all of its members were employees
before the strike. The undersigned finds that Hosley by the above statements
did not engage in unprotected activity.
Elizabeth Fregeau testified that strikers Ray Columbus and Henry Jaxllet
had made obscene gestures at her (described more fully in the record) as she
passed by them on her way to work, and that they at the same time addressed
an obscene comment to her. This was denied by both strikers. The under-
signed credits the testimony of Fregeau herein . It is found, however, that this
conduct by the two strikers did not convert their strike activity into an illegal
unprotected activity.
Abigail Mank, a credited witness, testified and the undersigned finds that on
one occasion when she was about one-half block from the plant on her way home,
Henry Jaillet pointed at her and said, "Your house tonight." Mank promptly
replied "Come on down." The visit was never made and Jaillet's denial of the
statement attributed to him is not credited. Here too the undersigned finds
that the conduct complained of is too minor to constitute a basis for the denial
of reinstatement.43
Hazel LaFlamme testified that striker Viola Leger, while picketing near one of
the automobile driveways at Plant 1, threw broken glass into the driveway.
The record indicates that Leger walked by the mouth of the driveway while
carrying broken glass in her hand and quickly threw it into the driveway.
The glass ended up some short distance in the driveway between the middle and
the side thereof. This was denied by Leger as well as by her husband who
was also on the picket line at the time. Although LaFlamme in her testimony
displayed some animosity toward Leger, the undersigned is of the belief and finds
that LaFlamme was telling the truth concerning what she observed. The
undersigned further finds that this conduct by Leger was illegal and unprotected
and that Respondent Companies did not violate the Act when they later denied
her reinstatement.
Camille Letellier made a speech on February 20 over the Gardner radio
station in the course of which he presented the Local 154 side of the strike.
The speech was factual, substantially accurate, and contained nothing of a
coercive and threatening nature. When he sought reinstatement on or about
March 16, President Troendle and John Theis told him that he should not have
made the speech. It is unnecessary to resolve whether, as Respondent Com-
panies contend, Letellier admitted he was paid for making the speech or whether
he was not. The fact is that Letellier was a striker who was denied reinstate-
ment for making the speech and exercising his right to free speech. The under-
signed is at a loss to understand how this can remotely constitute a cause for
the denial of reinstatement. This is not only discriminatory per se but in
addition constitutes independent interference, restraint, and coercion of em-
ployees in the rights guaranteed by Section 7 of the Act.
43 This last incident is illustrative of a number of similar minor episodes of give and take
characteristic of a strike which the undersigned deems unnecessary to set forth. There
are also some occasions of house visits with no evidence of what took place, although rein-
statement was allegedly denied on the basis thereof. For example, Ernest Roy was
accused of visiting the home of one Breau, and Edgar Roy was accused of visiting the
Ladeau home. There was no evidence of what occurred on either occasion. There is also
evidence, largely conclusory in nature, of alleged obscene name calling, most of which
boiled down on close analysis to the use of the words " scab" or "rat." There is also an
incident of two workers being jabbed in the posterior by a pointed instrument wielded by
persons unknown. This the undersigned believes unnecessary to detail in an already long
report.
H. N. THAYER COMPANY 1213
One evening an automobile bearing a group of Winchendon workers left Plant
2 for Winchendon. It was driven by one Horton who on this occasion gave
Cornelius Magner a lift, the latter being desirous of not crossing the picket line
on foot. The plan was to drop him at his Gardner residence. The car was
followed by a car driven by Francis Arsenault and containing other unidentified
passengers . According to Arsenault, he decided to talk with the Winchendon
group in an effort to get them to change their minds about working during the
strike. The record indicates, however, that Arsenault and his group were more
interested in Cornelius Magner who had been the recipient of considerable
attention from the strikers. The Arsenault car followed the car and as a result
it was decided, not to drop Magner at his Gardner residence but rather to proceed
on to Winchendon. This was done and the Arsenault car followed. In Winchen-
don, the Horton car stopped at the police station and the Arsenault car pulled
up behind it. At this point James Thompson alighted from the Horton car,
entered the police station, and asked for protection. He returned to the car
which proceeded to the Thompson residence where Magner and Thompson
alighted from the car. As the car stopped, the Arsenault car pulled up and a
police car driven by Officer Murphy of the Winchendon police did likewise.
Murphy observed Magner entering the Thompson home, and saw Thompson
arguing with a group in the Arsenault car who, according to Murphy whose
testimony the undersigned credits, were calling Thompson a "scab" and denounc-
ing him for shielding a person (presumably Magner) who was worse than a scab.
Murphy directed Thompson to enter his home and recorded the license and
registration data of Arsenault, but did not take the names of the other passen-
gers in the car. Thompson and Magner claimed that as they entered the house,
they heard an unidentified voice in the Arsenault car threaten to "get" Magner.
Murphy, however, did not hear this alleged statement. The Arsenault car
then left.
Although the undersigned is disposed to accept Officer Murphy's version of the
incident, it is unnecessary to decide whether the additional statement to "get"
Magner was made. The record does not disclose which of the six passengers
in the car was the spokesman, and five of them are unidentified. The under-
signed finds that Francis Arsenault did not on this occasion engage in an illegal
and unprotected concerted activity. It may be further noted that one of the
causes advanced for the denial of reinstatement to Edwin Orre is that he was
a member of this group. This was denied and there is no evidence that he
was in the Arsenault car.
Cornelius Magner was again singled out for attention. After leaving Plant 2
one afternoon, he walked 200 ,ards in the direction of Gardner when a group
of 17 or 18 people from the vicinity of the Summer Street picket line ran after
him. An unidentified member of the group, apparently unseen by Magner,
struck him a blow in the lower rear and the others called him a scab and a
traitor. Another unidentified person stated that Magner would be injured if
he went to work again. Magner identified 5 of the group, Paul Ballentine,
Albert Gallant, Mallet Robichaud, Neri Gallant, and Delbert Perry (the last 2
not claimants herein). He was unable to name any of those who spoke to him
or addressed him save for one query by Ballentine whether Magner was going
into work. While the blow to Magner is the type of conduct which is not
to be condoned, and for which the undersigned would normally be disposed to
deny reinstatement, the fact is that the identity of the transgressor is unknown
as is the identity of those who made the statements except as indicated above.
There is nothing to indicate whether the one who struck the blow was a striker
or even an employee of Respondent Companies. Hence, the undersigned finds
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the participation in this incident including striker Paul Ballentine as well
as Mal Robichaud and Albert Gallant, previously discriminated against, did not
engage in illegal and unprotected concerted activity.
On the second day of the strike Council 1 President Edward Magner started
to enter entrance A and found two men in his path, one being Milton Dill. He
retraced his footsteps, approached the driveway from another angle, and
encountered a circling group of pickets, all unidentified. One of the pickets
stood aside and Magner passed through one side of the circle and found the far
side closed. Immediately Saul Silverman came over, cursed Magner, and shoved
him with his shoulder into the street. An officer then directed the men to
make room for Magner, who forthwith entered. The undersigned finds that
Dill's conduct on this occasion was insignificant and at the very most a momen-
tary restraint. Moreover, it does not appear that he was in the circle of pickets
and it is therefore found that he did not engage in illegal conduct. The conduct
by Silverman is patently different, and the undersigned finds that it constituted
restraint and coercion by Silverman, a union agent.
Edward Magner testified that on the third or fourth day of the strike he ap-
proached entrance A at Plant 1 whereupon Edward Richard asked where he was
going. Apparently both agreed that Magner was going to work. Magner claimed
that Richard then said Magner's brother had been beaten up on the prior night
and that the same would happen if Magner did not stay away from the plant.
Magner immediately entered the plant without further incident ; in fact, his
brother had not been injured or attacked on the prior evening. Richard testified
that he had spoken to Magner on this occasion and asked him if he was going in.
Magner replied that he was just going in to look around, and Richard told him
that he should stay at home ; however, Magner entered. Magner demonstrated
elsewhere in his testimony a tendency to exaggerate and the undersigned credits
Richard's version of the incident. It is found that he did not engage in improper
conduct on this occasion "
Peter Maithe, a truck driver for a container manufacturing concern which sells
containers to Respondent Companies, stopped his truck at Plant 2 one day in order
to deliver a load of cartons. He parked 10 feet from the receiving platform on
South Main Street. Eight to ten unidentified people came over, informed him
that a strike was on, and asked him not to go in. The men stood near the truck
-whereupon Plant Superintendent Tanner instructed Maithe to back up his truck
to the platform which Maithe did without incident. On another occasion, later
in the strike, Maithe made two deliveries at Plant 1. On the first occasion he
was motioned in by the policeman on duty and drove in to the accompaniment
of names from unidentified pickets.
Maithe again called at Plant 1, parked on Sanborn Street, and entered the plant
to find out where he was to deliver his load. He was instructed to deliver it to
a warehouse in Gardner, and returned to his truck to find 25 or 30 unidentified
pickets around it. He started up his motor but because of icy streets was unable
to obtain traction for his wheels. The pickets immediately pitched in and as-
sisted Maithe in getting his truck moving. These 3 earlier incidents involving
Maithe require no further comment.
Maithe testified that on another occasion he drove into the Plant 2 parking
area via the Summer Street entrance. Unidentified pickets cursed him and
44 In testifying concerning the picketing Magner stated that he could see parts of the
sidewalk and what took place from a certain window known in the case as the spy depart-
ment . However, on the basis of a view taken by the undersigned , it was impossible to see
locations described by Magner.
H. N. THAYER. COMPANY 1215
threatened to come in and fracture his skull . He claimed that three or four men
walked in shortly thereafter , asked to talk to him, and criticized him for de-
livering merchandise to the plant . They then threatened to split his skull in
order to make an example of him, and said that this was the last warning. The
record does not disclose with any degree of accuracy the identities of the three
or four men. It does appear that on one occasion when Maithe drove into the
yard , two strikers , Joe LeBlanc and Joseph Theodore , entered the yard and asked
Maithe to respect the picket line. Both denied the use of any language similar
to that attributed to the three or four unidentified men by Maithe. Maithe was
unimpressive as a witness . He first testified that he told the judge in Boston
after the incident that no one had ever threatened to hit him ; he later decided
that this incident took place after his Boston testimony . In any event , there is
nothing to establish that LeBlanc and Theodore were among the three or four
pickets who spoke to Maithe in the fashion described by him.
On one occasion during the strike, Laurie Gallant called at the home of Zigmund
Maliska. He informed Maliska that he was unwilling to owe him money and
paid up a debt of 50 cents. There was no evidence of anything else happening
on this occasion . Obviously Gallant did not engage in conduct even remotely
improper.
Eino Maki claimed that as he left the plant one day he observed an automobile
driven by John Rosinski to be following him. Instead of proceeding home, he
drove to his mother 's house and drove his car into the yard. He then allegedly
noticed a car with Rosinski , Joseph Diotalevi , and Robert Desolier parked in
front of the house. Diotalevi , the only one who spoke , urged Maki to come to
the CIO hall, ascertain the true , issues of the strike , and find out what benefits
they would give him as a striker . Maki refused , stating that he could not exist
on strike benefits. Diotalevi then said , "Well, if you-if the boys keep going in
there somebody is going to get hurt," at which point the group drove away. Ac-
cording to the testimony of Rosinski , he and Diotalevi once stopped at Maki's
house and spoke to Maki. Rosinski claimed that he asked Maki why he was
working and Maki claimed that he needed the money , but also agreed to visit the
CIO hall the next day ; this Maki did not do. Rosinski denied that anything
was said about anyone getting hurt. The testimony of Diotalevi is substantially
similar to that of Rosinski and the undersigned credits their version rather
than that of Maki , a reluctant and less impressive witness. Moreover, even on
the basis of Maki 's testimony , the undersigned finds that the afore-mentioned
strikers did not engage in illegal and unprotected activity.
Joseph LeBlanc and Ernest Roy were denied reinstatement inter alia because
of a conversation with Edward Minns . This took place at the Deer Club, appar-
ently a social club located in Gardner. On the day in question LeBlanc and Roy
went to the club and asked to see Minns , who came out and invited them in for a
glass of beer. After several rounds of beer Roy asked Minns to join the strike.
Minns replied that his brother , Roy Minns , was a foreman at Plant 1, as a result
of which he dared not join the strike , plus the fact that he needed the work.
The conversation also dealt with the general topic of fishing . Just how this
constitutes illegal and unprotected strike conduct the undersigned is unable to
discern.
On January 29, a Saturday , Zigmund Maliska was visited twice at his home.
In the morning 5 cars containing 25 to 30 strikers pulled up at Maliska's home
in Winchendon . The majority of them got out of their cars and Joe Theodore,
followed by Edgar Gallant and Ray LeBlanc, went up to the door just as Maliska
came out to meet them . Theodore informed Maliska that he understood the
Winchendon workers were undecided what to do, that he had brought some
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers with him to show Maliska who was staying out, and that they all wanted
Maliska to join them. Maliska replied that he would not run the risk of going
in and having his car turned over. Theodore stated that he was not there to
threaten him and that things of that nature had happenied during strikes, but
that he was not there for that purpose. Maliska replied that he had already
decided to stay out of work on the following Monday. On this note the group
left. That afternoon Maliska was visited by another group of strikers including
Albert Gallant and Mallet Robichaud who asked him to stay out of work. He
informed them of the morning visit and stated that he had already decided to
stay out. The undersigned finds that Theodore, LeBlanc, Edgar Gallant, Albert
Gallant, and Mallet Robichaud did not engage in illegal conduct on this occasion.
It may be noted that Respondent Companies further contend that Fred Kirby
and Robert Desolier engaged in illegal conduct by going on this visit. There is
no evidence that either of the two went on these visits and the undersigned
credits their testimony that they did not S6
It is contended that near the end of the strike Bertha Anderson and Maxine
Savoie engaged in illegal conduct by threatening Annie Popoloski. Popoloski
claimed that as she walked home from work one day a car bearing the two girls
pulled up beside her. The girls asked her to get in, stating that they would give
her a lift home. Popoloski ignored the offer and kept on walking as the car
followed along for a short distance with the girls alternating in saying, "Come
on . . . are you afraid we are going to hurt you?" Popoloski then walked into
a friend's home nearby. Presumably as evidence of the purported criminal
intent of the two girls, Respondent Companies offered other testimony by Popo-
loski. Thus the latter claimed that Savoie, as she offered her the ride, was
"drooling" and that "there was saliva coming from her mouth." The under-
signed finds it difficult to believe that this testimony concerning a propensity
toward excessive salivation on the part of Savoie is offered seriously, but as-
suming such to be the case it is deemed frivolous and unworthy of belief. It also
demonstrates the lark of objectivity on the part of Popoloski in reporting this as
well as other incidents herein. The undersigned finds that Anderson and Savoie
did not engage in illegal conduct on this occasion.
Respondent Companies apparently contend that Edgar Richard engaged in
illegal conduct by visiting Eddie Popoloski, a nonemployee , and the husband
of Annie Popoloski referred to above. The record indicates only that Richard,
William Aucoin, and two others, not claimants herein, visited Popoloski at his
filling station 1 or 2 weeks after the strike started. Richard, who had known
Popoloski for a considerable period of time, asked him to help the strikers by
keeping his wife away from the plant. Popoloski replied that it was his wife's
business whether or not she wanted to work, and Richard stated that were Mrs.
Popoloski his wife he would "show her his shoe" (apparently meaning that he
would kick her). On this note the group left. Mr. Popoloski, although pre-
sumably available to testify, was not called as a witness and of course was not
an employee of Respondent Companies. The undersigned finds that Richard
and Aucoin did not engage in illegal conduct on this occasion.
It is claimed that a group of strikers engaged in illegal conduct not protected
by the Act when they visited the home of Annie Popoloski. Apparently sometime
ie Findings as to the morning visit are based upon the testimony of Theodore , heretofore
credited , whose testimony had a ring of sincerity and was supported by that of others who
were present . Maliska's testimony that on the morning visit Theodore mentioned that
people got hurt and cars were tipped over is not credited. Maliska not only changed his
testimony herein, but , in addition , was vague concerning the groups that visited him on
that day and uncertain as to who was there in the morning and afternoon , respectively.
H. N. THAYER COMPANY 1217
after the visit to the Popoloski filling station, 3 cars containing strikers pulled
up at the Popoloski house. Included among them were Robert Sidman, AdeLcn
Desroche, Bertha Anderson, Arthur Leger, and Viola Leger . Sidman alighted
from a car, walked up to the house , and placed a leaflet in the door. This was
a leaflet containing the well-known "Portrait of a Scab" by Jack London. Mr.
Popoloski went to the door and, as Sidman was returning to his car, asked
what the group wanted. Sidman stated that they had left something for Pop-
oloski 's wife to read and asked him to use his influence to keep her out of work.
Destoche , who was standing near Sidman , added that if Mrs. Popoloski were his
wife he would "break her neck." Popoloski replied that he was unable to exer-
cise any influence over his wife. Sidman and Desroche rejoined the others in
the group , totaling about 7, who were standing on the sidewalk as this took
place. They entered their cars and drove away. The undersigned finds that
the strikers named above did not engage in illegal conduct on this occasion.
Respondent Companies also advanced as a specific ground for denial of reinstate-
ment the fact that 11 other strikers were present on this occasion . Their names
are Ernest Roy, Robert Desolier , Amos Fontaine , Olavi Wauhkonen, Paul Ballen-
tine, Edgar Gallant, Laurie Gallant, Vieno Sinivuori , Alcide Gallant, Edwin Orre,
and Robert Minns, Jr. All of those named credibly denied that they were present
and there is no evidence that they were there . Obviously this contention is an
afterthought and is rejected.48
It appears that Alfred Prevost on several occasions banged on the windows
of automobiles entering the entrance at Plant 2 . On one occasion he attempted
to grasp the door handle of an entering car but it appears that he was unsuc-
cessful . The undersigned finds that this was not illegal activity . Standard
Oil Contpaay of California , supra.
Theodore Raffa gave considerable testimony concerning an occasion on Cross
Street at Plant 1 on the second day of the strike when he approached the
staircase entrance to the parking area. He claimed that 8 or 10 pickets per-
mitted his wife to pass through but prevented his passage and that 4 or 5 of
them threw him into the road. He named a number of those who allegedly were
present, but did not know the identity of those who grabbed him and threw him
into the road save for Arthur Ares and one Dieniewiez , not a claimant herein.
Raffa also placed Silverman on the scene and attributed a statement to the latter
that Raffa was not going through Ares denied taking hold of Raffa on this
occasion , and Emile LeBlanc, placed on the scene by Raffa, denied that he was
present.
Raffa was an unimpressive witness who demonstrated a marked hostility
toward the claimants herein. Moreover , he gave inconsistent testimony con-
cerning this episode. Although he claimed that the strikers had taken the
initiative by taking hold of him and shoving him into the street, he informed
the superior court judge in Boston that he, Raffa , had first established contact
by pushing a picket to one side. He also demonstrated his unreliability as a
witness in another respect . His original testimony herein was quite specific,
particularly with respect to the pickets taking the initiative . He was then
confronted with his prior testimony at the Boston hearing. He then admitted
that he had so testified at the Boston hearing, but added that about 1 year prior
to the instant hearing he had questioned Diemewicz as to whether he, Raffa,
46 Findings herein are based upon the credited testimony of Sidman and Desroche. Here
too PQpoloski did not testify . Mrs. Popoloski has elsewhere been found to be an unreliable
witness'and her present testimony that Desroche told her husband that he, Desroche, would
"break her neck" if he caught her in the street is not credited.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had in fact pushed him. The basis for this query was his alleged lack of
certainty as to whether he, Raffa, had pushed first. Under the circumstances the
undersigned is unwilling to base any finding concerning this incident on the
testimony or recollection of Raffa and rejects his testimony herein.
A visit to the home of George Mason resulted in the refusal to reinstate
certain strikers and dischargees. Mason testified that one Saturday morning
during the strike he was visited by eight employees who called at his home and
wanted to know why he was not picketing. He told the eight, who included
Albert Gallant, Alcide Gallant, Alyre Gallant, Mallet Robichaud, and Pat Henry,
that his wife was expecting a baby, that he would not picket, and that he
wished them to stay away from his home. Nothing further was said and the
group immediately departed. It also appears that Albert Gallant visited Mason
on several other occasions, but these, according to Mason who testified for the
Respondent Companies, were entirely friendly and sociable. Obviously the
above-named strikers have not engaged in unprotected concerted activities.
According to Gordon Comee, he looked out the plant window one noontime and
was seen by Ernest Roy who said, "You know you got to get home tonight." While
it appears that there was snow on the ground at the time, the undersigned
finds that in any event Roy did not engage in unprotected conduct on this
occasion.
On one occasion when the strike was 2 or 3 weeks old, Theodore Raffa was
visited by some strikers. At approximately 6: 30 that morning, Raffa was walk-
ing down the street on an errand before leaving for work and a car with five
passengers including Rene Hamel, Paul Hamel, Ernest Martin, and Arthur Leger
pulled up. They told Raffa not to go to work and called him a scab and a rat.
On returning to his home after several minutes he found the car parked in
front. Paul Hamel and Martin alighted from the car, called Raffa a scab and
a rat, and again urged him and his wife, an employee who was waiting on the
piazza, to join the strikers, after which the group left. Neither Mrs. Raffa nor
Josephine Rucki, who was also standing on the piazza about to go to work,
testified herein. It appears that the group went to Raffia's home because they
heard that Rucki had evidenced some intent to join the strikers ; however, she
did report for work that day together with the Raffas. The undersigned finds
that Paul Hamel and Ernest Martin as well as the others with them on this
occasion did not engage in illegal and unprotected conduct.47 Rene Hamel was
denied reinstatement by Troendle because he had been in the car, although
Raffa informed Troendle that Hamel had said nothing on this occasion. Raffa
nevertheless insisted that Hamel was a "molester" and Troendle accordingly
denied Hamel reinstatement. As found above, Hamel engaged in no improper
conduct on this occasion.
Alex Hamel testified that on one occasion a car driven by John Rosinski fol-
lowed him through Gardner via a roundabout route for over 1 mile until the
traffic policeman chanced to stop the line of traffic following Hamel's car.
Rosinski denied that this had taken place. It is unnecessary to resolve this
because the undersigned finds that even on the basis of Hamel's testimony
Rosinski did not engage in improper illegal conduct on this occasion.
47 Here as elsewhere Raffa proved to be an unreliable witness. He claimed that Paul
Hamel and Martin alighted from the car and that both told him not to go into work if he
knew what was good for him ; this was denied by both. However, he told the judge in
Worcester that only one striker alighted from the car, and admitted herein that his wife
had informed him that two strikers had actually gotten out of the car. He also testified
that someone else, presumably Rucki, had informed him of this fact and that he had
accordingly changed his testimony. The undersigned therefore rejects this testimony by
Raga.
H. N. THAYER COMPANY 1219
On one occasion during mid-February, striker William Thompson paid a
visit to a lunch counter operated by Helen Raffa, a nonemployee of Respondent
Companies ; two of her sons, including Theodore Raffa, were working during
the strike. Thompson entered and told Mrs. Raffa that she would have to tell
her sons to stay out of work during the strike or else her place of business
would be picketed. Mrs. Raffa promptly told him that her sons were of age,
that they did as they pleased , and that Thompson could tell them himself.
Thompson apologized, asking her not to be angry with him, stated that the bead
of the Union had sent him, and then left. It actually was the fact that Saul
Silverman, who had been sent by the International to participate in the con-
duct of the strike, had sent Thompson to see Mrs. Raffa. While the undersigned
deems this to be a demonstration of poor judgment by Silverman, on this as
well as other occasions, it is found that Thompson did not on this occasion engage
in improper conduct which rendered him unfit for further employment or subject
to discharge by Respondent Companies .48
Alice Pine, Viola Leger, Rose Baillet, and Yvonne Drewski were denied
reinstatement because they visited the home of Josephine Rucki during the
strike. The record indicates only that they urged Rucki, who had formerly
belonged to the CIO, to rejoin, and that Rucki declined to do so. Obviously
none of those named engaged in illegal conduct on this occasion.
One evening Imelda Cazeault and Julia Goguen left work and were walking
along the street some distance from the plant. John Rosinski and Robert Desolier
followed them for a short distance in their automobile and one or the other
directed some vile language at the women. Desolier, according to Goguen,
definitely used the language but she was uncertain as to what Rosinski said.
Cazeault was uncertain as to just what each of the two had said . While the
language in question is somewhat of a departure from ordinary strike parlance,
the undersigned finds that it was not serious enough to constitute illegal conduct.
Kansas Milling Company v. N. L. R. B., supra, and N. L. R. B. v. Reed and Prince
Manufacturing Co., supra.
Herman Comee and Gordon Comee testified that on one occasion when there
was snow on the ground they observed Henty Robichaud burying a stick contain-
ing a protruding nail in the tire tracks at the street gutter. His son, Norman
Robichaud, allegedly watched him and helped him kick snow over it. Both
Robichauds denied the incident. Gordon Comee further contended that from a
distance of about 20 to 25 feet he watched the two men cover the stick with
snow and observed that the stick was buried with the nail pointing upwards.
The latter aspect of his testimony, under the circumstances, impressed the
undersigned as being somewhat speculative and is not accepted. It is deemed
unnecessary to resolve the conflict for even assuming that the stick was buried
in the indicated place, the evidence although not entirely free from doubt is
insufficient to warrant a conclusion that the strikers thereby engaged in illegal
conduct.
William Thompson, Edward Laliberte, Albert Erickson, and Alice Maillet
were denied reinstatement because of a visit to the home of one Sunbloom.
Together with Ernest Nordman, a noncomplainant, they visited Sunbloom's
home one morning during the strike. Thompson remained outside and the others
lagged behind as Laliberte and Nordman went to the door. When they reached
the door they asked Mrs. Sunbloom if they might see her husband. She in turn
48 Mrs Raffa, a highly excitable woman, testified that Thompson added, after indicating
that a picket line might be placed at the store, "or something else." The undersigned
credits Thompson's denial that he used that phrase. Moreover, even if this vague and
unexplained phrase had been used, the undersigned would find as appears above.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became angry, shouted at them, and told them to leave, which they promptly
did. Neither Sunbloom nor his wife testified herein. It is also noteworthy that
Albert Erickson, when seeking reinstatement, was asked by Superintendent Fred
if he had gone on this visit. Erickson admitted having done so but pointed out
that he had said nothing. Although Sunbloom, as Fred told Erickson, was
willing to forget the incident, Fred required Erickson to clear with Troendle and
the latter refused him reinstatement. Troendle claimed that Erickson was as
guilty as the bank robber who remained in the car while the holdup was taking
place. The undersigned finds that none of those named above engaged in illegal
conduct on this occasion.
Ernest Barrieault was picketing one afternoon and worker Joseph Thibodeau
looked out the window, pointed at the strikers, and laughed at them, apparently
in a derisive manner. Barrieault immediately looked up at Thibodeau and
addressed an obscene remark to him. The undersigned finds under the circum-
stances that this did not constitute illegal conduct by Barrieault.
William Aucoin was denied reinstatement because he and Edgar Roy visited
the home of Thibodeau. Discovering that Thibodeau was absent, they asked
his wife to help out by keeping her husband away from the plant. She declined
and said that her husband would do as he pleased. This obviously did not
constitute illegal conduct.
It appears that Robert Desolier was denied reinstatement because on one
occasion he remained in the car while two unidentified strikers visited the home
of one Tireau. The record does not indicate what happened on this occasion,
and no further comment is net-zssary.
One afternoon after work, Herman and Gordon Comee, who had been subjected
to considerable attention by the strikers, drove to downtown Gardner and
attempted to park in front of the Sears and Roebuck store. They were followed
by two cars driven by William Aucoin and John Rosinski, with Edgar Richard in
the latter and Ernest Roy in the former. Some byplay took place as the Comees
attempted to park their car and it appears that Rosinski and Aucoin took turns in
preventing them from parking by pulling up behind them so that they could not
back up. After several trips around the block, the Comees managed to park
their car and Herman Comee entered Sears store where he purchased a rifle.
Ernest Roy then entered, according to Comee, called him names and said that
the men would "get" him "good," after which Roy departed. According to Roy,
he asked Comee to join the strikers and Comee replied that the strikers should
mind their own business and stay away from his property, otherwise he would
blow a hole through Roy. The undersigned credits Roy's testimony. While this
took place, the car containing Edgar Gallant was parked outside near the Cob ee
car. Gallant proceded to tell Gordon Comee that if he did not close the window
he would punch him in the nose ; Comee closed the window. The undersigned
finds that the above-named strikers did not engage in illegal conduct on this
occasion.
Strikers Amos Fontaine, Robert Desolier, Robert Sidman, Arthur Ares, and
Edgar Gallant together with Joseph Theodore were denied reinstatement because
of two visits to the home of Joe Tatra, the truck driver at Plant 1. Laurie
Gallant was also denied reinstatement for the same reason, although he did not
accompany them on this trip. On the first visit three cars pulled up ; Theodore
spoke to Tatro and asked him to help the strikers and to stop driving the truck.
Tatro agreed and the group left, the visit having lasted but several minutes.
A second trip was made a few weeks later. On this occasion Tatro's wife
opened the door and said that Tatro, who had apparently continued to work,
did not want to see them. Officer Murphy of the Winchendon police was called
H. N. THAYER COMPANY 1221
to the scene but found when he arrived that the group had departed. Tatro,
although presumably available, was not called as a witness. The undersigned
finds that no illegal conduct was engaged in on this occasion by any of the
strikers named above.
b. Conclusions
As stated, the claimants listed in Appendix D struck in protest of Respondent
Companies' unfair labor practices. The various incidents described above were
advanced herein as a basis for the denial of reinstatement to the strikers,
although in almost every instance the strikers were not given an opportunity to
contradict the charges against them. And it became clear at the hearing that
in many instances Respondent Companies had no evidence to link designated
strikers with specific acts of alleged misconduct While it is true that Respond-
ent Companies and their counsel investigated these various incidents, it was
perforce a partial probe. Sinding testified that although the Companies believed
the workers ( nonstrikers ) to be biased, they nevertheless never gave thought
to obtaining the versions of the strikers concerning these alleged incidents, thus
further demonstrating their anti-CIO bias.
As for the incidents themselves, the Board has followed the policy that where
employees are legitimately on strike their employment status is not automati-
cally forfeited by their subsequent participation in "violence of a type as common
to labor disputes as a fist fight upon a picket line." N. L. R B. v. Stackpole
Carbon Co., 105 F. 2d 167 (C. A. 3), cert. denied 308 U. S. 605. The Board's
position is in essence embodied in the following statement of the court in
N. L. R. B. V. Illinois Tool Works, 153 F. 2d 811 (C. A. 7) :
... courts have recognized that a distinction is to be drawn between cases
where employees engaged in concerted activities exceed the bounds of law-
ful conduct in "a moment of animal exuberance" (Milk Wagon Drivers
Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, 293), or in a manner not
activated by improper motives, and those flagrant cases in which the mis-
conduct is so violent or of such serious character as to render the employee
unfit for further Service, cf. N. L. R. B. v. Fansteel Metallurgical Corp., supra
[306 U. S. 240] and Southern Steamship Co. v. N. L. R. B., 316 U. S. 31.
. . . In such cases it is the function of the Board to weigh the conflicts
which arise from time to time out of the exercise of those rights and to de-
termine in each case whether the interest of the employees or the interest
of the employers should be held paramount.
Moreover, in Kansas Milling Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10),
the court ordered the reinstatement of strikers, notwithstanding that one had
been fined $50 by a local court for deliberately ramming and damaging a non-
striker ; another had thrown a rock at a company truck ; another. had indulged
in vile language ; and another had engaged in fisticuffs. As stated in Frankfurter
and Greene , The Labor Injunction, 1390, p. 35, picket line controversies, when
before a court, "make a heavy demand upon intellectual detachment and require
a sturdy hold upon reality. They call for understanding and imagination rather
out of the current of judicial experience. It is the rare judge who sees that
`men become earnest and excited and vigorous at such times . . . The fervor of
argument is upon them . . . They forget etiquette and grammar . . . Insti-
gated by emotion and impelled by deep conviction men always employ strong
words... The nomenclature of the strike is not the language of the parlor...: "
Cf. Cohen v. U. S., 295 Fed. 633 (C. A. 6), wherein the characterization of strike-
breakers as "dirty scabs," "scavengers," " snakes," and "traitors" was held not
215233-53-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to violate a decree against "jeering at or insulting the employees of plaintiff or
molesting them." See also N. L. R. B. v. Reed and Prince Manufacturing Co.,
118 F. 2d 874 (C. A. 1), cert. denied 313 U. S. 595; Republic Steel Corp. v.
N. L. R. B., 107 F. 2d 472 (C. A. 3), cert. denied on this point 309 U. S. 684;
N. L. R. B. v. Elkland Leather Co., 114 F. 2d 221 (C. A. 3), cert. denied 311 U. S.
705, and N. L. R. B. v. Kiddie Hover Manufacturing Co., 105 F. 2d 179 (C. A. 6).
Accordingly, Respondent Companies' contentions herein have been rejected.
It may be noted that in the case of striker Emma Ashland, Respondent Com-
panies predicate their denial of reinstatement, in part at least, on the ground
that she was an undesirable employee because of her tardiness record. Firstly,
the record indicates that her record of tardiness went back some period of time,
had been condoned, and that she had not been tardy for a period of several
months preceding the strike. Secondly, the simple answer is that even if she
had been tardy this was not considered serious enough to warrant her discharge
before the strike, and it therefore cannot be raised at this point.
6. The reinstatement issue
Respondent Companies claim that approximately 30 of the claimants herein
.did not apply for reinstatement upon termination of the strike. Firstly, there
is considerable testimony concerning a slipshod and heterogenous accumulation
of slips of paper on which strikers were allegedly required to place their names
when applying for jobs or on which their names were placed by office clericals.
'These slips were not numbered, listed in any fashion, or filed in any orderly
manner, and they were kept on different office desks at various times. They are
not an impressive source of information when contrasted with the testimony of
the respective strikers concerning how they applied for their jobs. Thus, each of
the claimants herein, save Emile LeBlanc who was not asked, testified how he
or she had applied for reinstatement in person or by telephone ; and in the latter
case, Respondent Companies' records, although hereinafter found to be incom-
plete, indicate that LeBlanc applied for reinstatement and their brief so concedes.
It will be recalled that 3 of the 17 found to have been discriminatorily discharged
on January 10 and 11 were reinstated prior to the commencement of the strike
on January 26. Even they, Poirer, Sinivuori, and Alyre Gallant, credibly testified
concerning their applications for reinstatement at the end of the strike.
At Plant 1, Plant Nurse Rita Tucker doubled as receptionist. She testified
that she made no written records of the job applicants, recalled none of the
names, and that she "usually referred them over to Mr. Fred." She did recall
that on one occasion a few of the applicants had signed their names on a slip
,of paper which she later supplied to Fred. The latter testified that most of the
applicants contacted their respective foremen and that some had signed slips for
the nurse. He was uncertain whether all these slips had come to his attention
and admittedly all of the formal applications made by strikers were not seen by
hitn.
It also appears that the two office clericals, at least at Plant 2, stopped taking
applications sometime after termination of the strike on direction by management
because it was felt that additional help was not needed. Ronald Daigle testified
that he stopped taking names 2 or 3 weeks after the injunction of March 15 and
elsewhere indicated that the cutoff date might have been 1 or 2 weeks later.
Evelyn Soderlund testified that she took daily applications from March 21 until
the latter part of March or the early part of April, at which time Plant Super-
intendent Tanner told her to stop taking them ; elsewhere she testified that she
took applications until early May. Paradoxically, the slips identified by Soder-
H. N. THAYER COMPANY 1223
fund as being in her handwriting commence with those dated April 4, save for
two exceptions apparently included by error which are March 14 applications.
In any event, the office clericals at Plant 2 stopped taking applications both in
person and by telephone not long after termination of the strike.'9
Furthermore, there is other evidence supporting the testimony of these 30
that they did apply for reinstatement. Thus, it was stipulated at the hearing
that Poliks, Erickson, and Rene Hamel, who are among them, had applied. Vir-
ginia Perry was reinstated, at a lower wage, some weeks later, thus corroborating
her testimony. And the testimony of a number of the others was mutually cor-
roborative on this point. In sum, these records are not accepted as reliable
indicia of the identities of the applicants.
Secondly, controlling herein is the fact that Respondent Companies, as they
contend, formulated a policy at the outset of the strike that the strike was
illegal and that all strikers had lost their status as employees. They also un-
-conditionally and without reservation took the position that all strikers who did
not return to work by February 23 would then lose all seniority rights. This
policy was made public by advertisement in the Gardner News and moreover,
copies of the advertisement were mailed to employees living outside the city
limits. This proclaimed policy was actually implemented and put into effect and
every striker or picket line respecter who did not return to work by February 23
did in fact lose all accumulated seniority, irrespective of whether or not he had
actually engaged in picketing. Everyone who was taken back after February 23
began work as a new employee and in fact was uniformly "rehired" rather than
"reinstated." Uniformly, the seniority of each dated from the date of "rehire,"
clearly a discrimination against the strikers, the pickets, and respecters of the
picket lines.
Thus, these unfair labor practice strikers, as found above, were discriminated
against because of their protected, concerted activity. If reinstatement was to
be sought, it could be done only under patently discriminatory conditions viola-
tive of the Act. The undersigned finds that the strikers were under no obligation
to apply for reinstatement under such conditions. Rather, it was incumbent
upon Respondent Companies from the moment that they imposed this discrimina-
tory condition to rescind it before the strikers incurred any obligation to seek
reinstatement. The Board will not require an employee to tolerate a discrimina-
tion in his employment because of his concerted activities. N. L. R. B. v. Walt
Disney Productions, supra; N. L. R. B. v. Sandy Hill Iron and Brass Works, supra;
N. L. R. B. v. Illinois Steel Corp., supra; Quest-Shoe Mark Brassiere Co., Inc., 80
NLRB 1149, enforced 185 F. 2d 285 (C. A. 2) ; N. L. R. B. v. Cowell Portland Cement
Co., 148 F. 2d 237 (C. A. 9) ; Thermoid Co., 90 NLRB 614; Precast Slab and Tile
Co., 88 NLRB 1237; Spencer Auto Electric Co., 73 NLRB 1416; and Wright-
Hibbard Industrial Electric Truck Co., Inc., 67 NLRB 897.
In sum, Respondent Companies imposed this discriminatory policy as a result
of which the burden shifted to them to rescind it before the employees were re-
49 Two of the claimants herein, Edward Fontaine and Edward Nasiatka, did not apply
for reinstatement until June 29 and August 1, respectively. Fontaine was working on
temporary night work at the conclusion of the strike. Nasiatka had been in a line of
strikers seeking reinstatement on March 16, but when he heard, via hearsay from the
other applicants, that the Companies were not reinstating strikers, he left the line and
sought employment elsewhere. He ultimately did apply on August 1, as stated. A third,
Ada Barrieau, asked on March 23 to speak to Foreman Strott about her job, but was
informed by an office clerical, who apparently contacted Strott, that Strott was too busy
to talk to her. In any event, the criteria set forth hereinafter apply to these three.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired to apply for reinstatement ; the strikers are not to be expected to perform
a nugatory act. The strike was terminated on March 15 , 1949, all picketing
stopped on that date , and Respondent Companies were on notice that the strike
was over ; thereafter strikers in large numbers began to apply for their positions.
It then became incumbent upon Respondent Companies to rescind their discrimi-
natory reinstatement policy but this they were unwilling to do and, for that
matter, are still unwilling to do. Eagle-Picher Mining and Smelting Co. v.
N. L. R. B., 119 F. 2d 903, 914 ( C. A. 8). It may be noted that Respondent Com-
panies could readily have inserted a newspaper advertisement to this effect in
the Gardner News, thus utilizing the same form it had made use of in promul-
gating and publicizing its discriminatory reinstatement policy.
In Kallaher and Mee , Inc., 87 NLRB 410, it was pointed out that strikers were
entitled to back pay only after they had abandoned their strike and indicated a
willingness to return to work "on the terms existing when the dispute arose."
In Massey Gin and Machine Works , Inc., 78 NLRB 189, it was similarly found
that strikers were required to apply for work on the terms existing when the
dispute arose . In the instant case Respondent Companies rendered it flatly
impossible for the strikers to do that , hence it is found that they were under no
obligation to apply for reinstatement under those conditions . Eagle-Picher
Mining and Smelting Co . v. N. L. R. B., supra , and N. L. R B. v. Sunshine Mining
Co., 110 F. 2d 780 (C. A 9), cert. denied 312 U. S. 678 . The undersigned believes
however that the date from which back pay is to be tolled should not be
February 23, the date that the discriminatory condition was put into effect,
but rather March 15, the date that the strike was enjoined, called off, and the
strikers instructed to reapply for their jobs, which they proceeded to do in
substantial numbers.
The question of the tolling of the amount of back pay is a matter that can be
worked out at the compliance stage of the proceeding , but only after Respondent
Companies have rescinded their discriminatory policy and have unconditionally
offered nondiscriminatory reinstatement , where it is to be offered , to Emile
LeBlanc, Robert Sidman , and to those named in Appendices "C" and "D" of the
complaint , save Charles Morse and Viola Leger. Only then can it be found as a
matter of law that the duty to apply for reinstatement has arisen . As efforts
are made at that stage of the proceeding to resolve the amounts of willful losses,
if any, as well as other earnings during the entire poststrike period, this matter
can also be handled at that point.
The undersigned will recommend that those claimants named in Appendix D
hereof, excluding Viola Leger, together with Robert Sidman, Emile LeBlanc,
and the three claimants named in Appendix C who were reinstated and then
joined the strike, be made whole for the period from the time that the strike was
called off to such date that Respondent Companies rescind their discriminatory
policy of loss of seniority and proceed to offer the above-named claimants
unconditional reinstatement . Those claimants named in Appendix C, who were
not reinstated , are of course entitled to automatic reinstatement and reimburse-
ment from date of discharge subject to the normal deductions for wages earned
and willful losses. With respect to those strikers who have been reinstated, the
discriminatory seniority policy is likewise to be rescinded and they, as well as
nonclaimants , are to be restored to the positions they would have held absent
the discriminatory policy and also to be made whole for any loss of pay suffered
by reason of layoff or reduced earnings because of the discriminatory loss of
seniority:.
H. N. THAYER COMPANY 1225
7. Objections to reinstatement
Respondent Companies contend that those employees who worked during the
strike raised objections to the reinstatement of at least some of the strikers
because of animosities engendered during the strike, and- that yielding to such
pressures was not violative of the Act. N. L. R. B. v. Wytheville Knitting Mills,
175 F. 2d 238 (C. A. 3) ; N. L. R. B. v. Edinburg Citrus Asso., 147 F. 2d 353
(C. A. 5). But the safeguards afforded by the Act to the right to participate in
concerted activities are no less available when third persons object to the
manner in which the concerted activities are engaged in than when the employer
himself objects. The courts have consistently held that employers must resist
attempts by employees and others to force them to engage in conduct prohibited
by the Act. The failure to reinstate employees because other employees have
ejected them from the plant and refused to work with them because of their
activities on behalf of unions is discriminatory, and an employer must resist
domination of its right and power to employ. N. L. R. B. v. Goodyear Tire and
Rubber Co., 129 F. 2d 661 (C. A. 5), enforcing 21 NLRB 306; N. L. R. B. v.
American Car and Foundry Co., 161 F. 2d 501 (C. A. 7), enforcing 66 NLRB 1031;
N. L. R. B v. Hudson. Motor Car Co., 128 F. 2d 528 (C. A. 6) ; and N. L. R. B. v.
Fred P. Weissman Co., 170 F. 2d 952 (C. A. 6), cert. denied 336 U. S. 972,
enforcing 69 NLRB 1002, and 71 NLRB 147.
This is particularly true where the refusal to work with certain employees is a
condition which resulted, from the protected concerted activities of the latter.
Wilson & Co., Inc. v. N. L. R. B., 123 F. 2d 411 (C. A. 8), enforcing 26 NLRB 297,
and N. L. R. B. v. General Motors Corp, 116 F. 2d 306 (C. A. 7). The fact that
Respondent Companies may have feared the interruption of their operations if
they did not comply with the wishes of the protesting employees did not justify
their yielding to them their power to employ. Respondent Companies are not
relieved of responsibility for their discrimination because the exigencies of the
moment make expedient a violation of the Act. N. L. R. B. v. Star Publishing Co.,
97 F. 2d 465 (C. A. 9) ; McQuay-Norris Manufacturing Co. v. N. L. R. B., 116 F. 2d
748 (C. A. 7), cert denied 313 U. S. 565; N. L. R. B. v. Gluck Brewing Co., 144 F.
2d 847 (C. A. 8) ; N. L. R. B v John Englehorn & Sons, 134 F. 2d 553 (C. A. 3) ;
and N. L. R. B. v. National Broadcasting Co., 150 F. 2d 895 (C. A. 2).
Moreover, the record indicates that the procedure followed by Respondent
Companies was substantially one of their own making in that they actively and
vigorously solicited the stories concerning these alleged incidents ; there versions
were obtained only from nonstriking workers although management admittedly
considered these workers to be biased. This is not the factual situation of an
employer yielding to the entreaties of its employees but rather of an employer
stirring and aligning them in order to establish a record of hostility to the
strikers . Hence, even the authorities relied upon by Respondent Companies,
which are contrary to the demonstrated weight of authority, are distinguishable
and not in point.
The typical procedure was as follows. Secretary Cazeault of Council 1, as
he testified, was called to the company office where President Troendle, Sinding,
and Foreman Ray Minns were present. Troendle had a list of names of the
strikers and instructed Cazeault to pick out any one onthe list who had allegedly
"molested" him or others. When Cazeault remembered anything that a partic-
ular striker had done, Troendle proceeded to check that striker as a molester.
This was done whether this was an instance that Cazeault had personally seen
or whether it was a hearsay statement that had come to his attention . In this
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular instance, it may be noted that Cazeault had never complained to
management about the conduct of any striker and that when called in on this
occasion it was his first contact with management. The testimony of Council 1
President Edward Magner is substantially similar. He was called to the com-
pany office on two or three occasions and was present while the respective
stewards of Council 1 convened with Troendle, Sinding, and Theis. Magner
also was asked if anyone on the list had molested him and he apparently sup-
plied some names.
Under the above circumstances, this contention is further distinguishable
on the facts ; while pressure from employees may have played a part, it is also,
the fact that Respondent Companies took it upon themselves to deny reinstate-
ment to the strikers, relying in part on hearsay testimony and not giving the
strikers an opportunity to present their side of the case. It is clear that Respond-
ent Companies at no time made any effort to exercise their normal managerial,
authority to compel the nonstriking workers to work with the strikers, thus
demonstrating that an antiunion bias was an operative factor in their refusal,
to reinstate the strikers. They in effect collaborated with the anti-CIO faction
among the employees by effecting punishment for carrying on pro-CIO concerted
activity, thereby rendering further assistance to the Councils. Cf. N. L. R. B._
v. Weirton Steel Co., 135 F. 2d 494 (C. A. 3) ; Clover Fork Coal Co. v. N. L. R. B.,
97 F. 2d 331 (C. A. 6). Accordingly, this contention is rejected60
The CB Cases
It is the contention of the General Counsel that the conduct herein by Saul
Silverman, an agent of both the International and Local 154, is violative of
Section 8 (b) (1) (A) of the Act. With this view the undersigned concurs,
and the motion by Respondent Union to dismiss this allegation of the complaint
is to this extent denied. It is found that the International and Local 154 have
restrained and coerced the employees of Respondent Companies by the following
incidents described hereinabove which are violative of Section 8 (b) (1) (A)
of the Act: (1) The kicking of Ivan Brodeur by Silverman at Plant 2, and
(2) the shoving of Edward Magner into the street at Plant 1 by Silverman.
The General Counsel apparently further contended at the hearing that the
following incident is also violative of the Act. Employee Gladys Oja together
with her brother engaged in a conversation with Silverman in the lobby of the
Colonial Hotel in Gardner. The conversation turned to why Oja was working
and Oja explained that she needed the work. Silverman asked what she thought
about the strikers and Oja replied that the latter group had had their chance
to return to work. Silverman then said, "You wouldn't care if you got hurt?"
and Oja replied that she would report for work even if she had to crawl in. The
undersigned believes that this incident is somewhat speculative on its facts
and predicates no adverse finding thereon.
It is not clear what the General Counsel contends with respect to the other
incidents developed hereinabove, but it seems that his contention is that they
do not constitute restraint and coercion. The undersigned believes and finds,
under the circumstances of this case, that the conduct detailed hereinabove is
either not the type to constitute restraint and coercion or that there has been
a failure to establish that the acts were those of the International or Local
"o The record indicates that a small number of strikers were given work at various later
dates. They were not, however, reinstated when they would have been, absent their
loss of seniority ; they were also laid off at later dates as a result of said loss of seniority.
This matter as well can be worked out at the compliance stage of the case.
H. N. THAYER COMPANY 1227
154 or of their agents. Cf. Irwin-Lyons Lumber Co., 87 NLRB 54. As is appar-
ent, union membership as such does not render the member an agent of the union
and the mere fact that the member does something on his own behalf that inci-
dentally may contribute to the advancement of the union's cause can no more
transform the member into an agent of the union than the antiunion action of
a nonmember can convert the latter into an agent of the employer. It may not
be contended that an employer is guilty of an unfair labor practice if a rank-
and-file employee spontaneously threatens his fellow workers or tells them
that union organization will result in economic discrimination or discharge.
The employer is responsible only for acts which are committed by persons whom
the employee reasonably believes to be acting with authority. Statements or
conduct by employees which benefit a union cannot be deemed to bind the union
unless the speakers may reasonably be believed to be acting in the authority
of the union and, as stated, mere membership in a union or participation in a
strike is not sufficient to create a reasonable basis for such belief.
Moreover, it may be noted that there is a remedy for violations of Section &
(b) (1) (A) of the Act just as there is for violations of the various sections of
Section 8 (a) of the Act. Although the matter is not presented for decision,
even assuming that a number of these incidents involving strikers did consti-
tute violations of Section 8 (b) (1) (A), it does not necessarily follow that
reinstatement of the strikers should be withheld. In balancing the equities
on the one hand of a protest by strikers against obviously flagrant unfair labor
practices, as found above, and on the other hand minor incidents characteristic
of most strikes, the undersigned believes that the equities of the former group
should prevail.
One further matter remains for decision. Counsel for Respondent Unions
moved for the dismissal of the allegation in the complaint that the Unions had
engaged in conduct violative of the Act by "visiting the homes of nonstriking
Company employees by a numerically superior number of striking employees" ;
the undersigned reserved ruling on this motion at the hearing. It is contended
that this particular count. did not, standing alone, set forth a cause of action.
The undersigned finds that this contention has merit and the motion is hereby
granted. Thomas v. Collins, 321 U. S. 530, and N. L. R. B. v. Lake Superior
Lumber Corp., 167 F. 2d 147 (C. A. 6).
IV. THE EFFECT OF THE 'UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Companies set forth in Section III, above, occur-
ring in connection with their operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent Companies have engaged in certain unfair labor
practices affecting commerce, the undersigned will recommend that they cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that Respondent Companies have discriminatorily discharged
the employees named in Appendix 0 attached hereto, save Charles Morse, on
January 10 and 11, 1949. It has also been found that Respondent Companies
have actively and constructively denied reinstatement to Robert Sidman, Emile
LeBlanc, and the employees named in Appendix D, save Viola Leger, because they
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have engaged in concerted activities protected by the Act and that during said
activities Respondent Companies have inflicted on these strikers as well as
others the discriminatory penalty of loss of seniority ; the same findings have
been made with respect to three of those named in Appendix C who were rein-
stated prior to the strike and then joined the strikers.
It will be recommended that Respondent Companies forthwith rescind their
discriminatory seniority policy and unconditionally offer to Sidman, LeBlanc,
and those named in Appendices C and D, save Morse and Leger, immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to seniority and other rights and privileges." It is recommended
that Respondent Companies make whole the 17 employees discharged on Janu-
ary 10 and 11 and referred to above for any loss of pay they may have suffered
by reason of the discrimination against them by payment to each of a sum of
money equal to the amount which he or she would have earned as wages from
the date of discharge to the date of the offer of reinstatement less his or her
net earnings during that period 52 This period will not include the time that any
of them were on strike. Kallaher and Mee, Inc., supra, and Massey Gin and
Machine Works, Inc., supra. That portion of this section which follows herein-
after and relates to those strikers not reinstated will of course apply to those
3 of the 17 employees discharged on January 10 and 11 who were reinstated
prior to the commencement of the strike and then joined it.
The above loss of pay shall be computed upon the basis of each separate
calendar quarter or portion thereof during the period from Respondent Com-
panies' discriminatory action to the date of Respondent Companies' uncondi-
tional and nondiscriminatory offer of reinstatement. The quarterly periods,
herein called "quarters," shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a sum equal
to that which the employee would normally have earned for each quarter or
portion thereof his net earnings, if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. F. W. Woolworth, Company, 90 NLRB 289. It
will also be recommended that Respondent Companies be ordered to make
available to the Board upon request payroll and other records in order to
facilitate the checking of the amount of back pay due. F. W. Woolworth
Company, supra.
As for the strikers named in Appendix D, save Viola Leger, plus Emile LeBlanc,
Robert Sidman, and the three employees discharged on January 10 and 11, who
were later reinstated and joined the strike, it has been found that Respondent
Companies have discriminated against them for engaging in a protected strike;
51 On March 9, 1951, the parties submitted a joint stipulation , which the undersigned
hereby receives In evidence as Trial Examiner 's Exhibit No. 6, that Edgar Breau, a
Claimant herein, died on December 23, 1950. His name is accordingly excluded from the
foregoing recommendation The recommendation that follows , concerning the making
whole of those named in Appendix D, is modified in his case to the making whole of his
personal representative for a period terminating on the date of his decease N. L. R. B.
Y. Revlon Products Corp., 144 F. 2d 88 (C. A. 2) ; N. L. R. B. v. Hearst, 102 F. 2d 658
(C. A. 9) ; and Nevada Consolidated Copper Corporation , 26 NLRB 1182 , enforced 316
U. S. 105.
ea The phrase "net earnings" means earnings less expenses, such as for transportation,
room, and board incurred by an employee in connection with obtaining work and working
elsewhere , which would not have been incurred but for the unlawful discrimination and
the consequent necessity of seeking employment elsewhere . Crossett Lumber Company,
S NLRB 440. Monies received for work performed upon Federal, State, county , municipal,
or other work -relief projects shall be considered as earnings . Republic Steel Corporation v.
N. L. R B., 311 U. S. 7.
H. N. THAYER COMPANY 1229
that a bar was erected to their reinstatement under nondiscriminatory condi-
tions; and that Respondent Companies in fact applied their policy, publicized
in the press and in the community, that strikers reinstated after February 23,
1949, would return to work only as new employees devoid of accrued seniority.
Although this discriminatory policy was put into effect on February 23, it has
been found that at least from March 15 on, when the strike was terminated
and when strikers in large numbers applied for reinstatement, it became incum-
bent upon Respondent Companies to remove these discriminatory conditions
before a duty arose on the part of the strikers to apply for reinstatement. This
has not yet been done by Respondent Companies. At such time as it is done,
the duty to apply for reinstatement will arise.
The undersigned recommends that these strikers be made whole for any loss
they may have suffered, in the same manner as those in Appendix C who are
discussed hereinabove, from the date that the strike was terminated until such
time as a bona fide offer of unconditional reinstatement is forthcoming from
Respondent Companies. Of course, net earnings are to be deducted, as herein-
above indicated, from the aforedescribed loss of pay and, as is customary, this
is a matter which may be worked out at the compliance stage of the proceeding."
It has been found that Respondent Companies have dominated, interfered
with, and contributed support to Councils 1 and 2. The evidence as to Council 2
is relatively strong and the undersigned will recommend that Respondent Com-
panies withhold recognition from Council 2 as the representative of their em-
ployees,and set aside any contracts presently existing with it. Because of the
conduct by Respondent Companies, Council 2 is incapable of serving the em-
ployees as a genuinely independent bargaining agency. It has been utilized by
Respondent Companies to frustrate self-organization and to defeat the efforts of
employees to be represented by an agency untainted by employer influence.
Disestablishment of Council 2 is necessary, therefore, in order that the employees
may free themselves from Respondent Companies' unlawful domination and be
enabled to select a labor organization, if they so desire, capable of independent
existence.
The evidence as to Council 1, in the view of the undersigned, reflects on its
face a lesser degree of domination, interference, and support. Cf. Carpenter
Steel Co., 76 NLRB 670, and Hershey Metal Products Co., 76 NLRB 695. But
under the particular facts herein present, the undersigned is of the belief that
the remedy of disestablishment should follow as well with respect to Council 1.
The pattern of employee representation has been similar. Plants 1 and 2
were under the Council 1 contract from December 1944 to December 1945. The
respective contracts from December 1947 to December 1948 contained a clause
that both plants were being operated under one contract. There have been
parallel courses of action in both plants and in fact, as found, it is the Plant 1
contract which has uniformly been foisted upon Plant 2. There has obviously
been a parallel labor policy in the two plants which are in reality but units of
a single employer operating on a multiplant basis.
The record demonstrates that samples are prepared in their common sample
room and various of these allotted to one plant or the other for production. It
is thus apparent that work may well be transferred from one plant to the other
and that the purposes of the Act may be circumvented absent a total eradication
of the illegal conduct at both plants. Cf. Somerset Classics, 90 NLRB 1676. In
sa As found above, the strikers in any event applied for and were denied reinstatement,
but this application in the face of the publicized discriminatory policy constituted a nuga-
tory act. Respondent Companies may not avail themselves of the fruits of their unfair
labor practices. Medo Photo Supply Corp. v. N. L. R. B, supra.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a not dissimilar situation the Court of Appeals for the Eighth Circuit noted that
"if Lund may deal with the employees of the two plants as separate units
it is believed that collective bargaining would be a farce and that Lund, because
of his hostility to the Union, would evade the purposes. and intent of the law
by transferring business from one plant to the other as his interest dictated
according to the unit with which he could make the most favorable bargain...."
N. L. R. B. V. Lund, 103 F. 2d 815 (C. A. 8). In view of the foregoing, together
with the integrated structure of Respondent Companies, the undersigned will
recommend the same remedy for Council 1 as for Council 2.
It will further be recommended that all employees of Plant 2 who were eligible
to receive same be made whole for the loss of the Christmas bonus discrimina-
torily withheld in December 1948.
The unfair labor practices found herein demonstrate on the part of Respondent
Companies such a fundamental antipathy to the objectives of the Act as to
compel an inference that the commission of other unfair labor practices may be
anticipated in the future. Respondent Companies, inter alia, by their discharge
of Plant 2 employees and discrimination against the strikers have resorted to
the most effective means at their disposal to reject what the Supreme Court
has termed the "principal purposes of the Act," namely, its guarantee to
employees of "full freedom of association and self-organization." Wallace Corp.
v. N. L. R. B., 323 U. S. 248. Accordingly, it will be recommended that Respondent
Companies be ordered to cease and desist from in any manner interfering with
restraining, and coercing their employees in the exercise of the rights guaranteed
by the Act.
Having found that Local 154 and the International by their agent, Saul
Silverman, have engaged in certain unfair labor practices, it will be recommended
that they cease and desist from restraining and coercing employees of Respond-
ent Companies in the exercise of the rights guaranteed by the Act and that
they take certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that the allegations that Respondent Companies have
discriminated with respect to the hire and tenure of employment of Charles
Morse and have discriminatorily denied reinstatement to Viola Leger be dis-
missed. A similar recommendation will be made with respect to the allegation
that Local 154 and the International through other agents have restrained and
coerced the employees of Respondent Companies.
Upon the basis of the foregoing findings of fact and upon the entire record
in these cases, the undersigned makes the following :
CONcLusIONs OF LAW
1. United Furniture Workers of America, CIO; United Furniture Workers of
America, CIO, Local 154; Thayer's Workers' Council (Council 1) ; and H. N.
Thayer's Workers' Council (Council 2) are labor organizations within the
meaning of Section 2 (5) of the Act.
2. Respondent Companies, Thayer Company and H. N. Thayer Company, con-
stitute a single employer within the meaning of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Robert Sidman, Emile LeBlanc, the employees named in Appendix D attached
hereto, excluding Viola Leger, and the employees named in Appendix C attached
hereto, excluding Charles Morse, in order to discourage membership in United
Furniture Workers of America, CIO, or United Furniture Workers of America,
CIO, Local 154, and to encourage membership in Thayer's Workers' Council and
H. N. Thayer's Workers' Council, Respondent Companies have engaged in and
H. N. THAYER COMPANY 1231
are engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
4. By dominating and interfering with the formation and administration of
Thayer's Workers' Council and H. N. Thayer's Workers' Council and by contrib-
uting support to them , Respondent Companies have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
5. By the above acts, by threatening to shut their plants before they would
recognize United Furniture Workers of America, CIO, and United Furniture
Workers of America, CIO, Local 154, by threatening to weed out employees, to
withhold and actually withholding a Christmas bonus because a new contract
with H. N. Thayer's Workers' Council had not been signed, by threatening to
discharge anyone discussing the International or Local 154, and by instructing
supervisory employees to engage in surveillance of the union activities of em-
ployees, Respondent Companies have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. United Furniture Workers of America, CIO, and United Furniture Workers
of America, CIO, Local 154, by their agent, Saul Silverman, have engaged in un-
fair labor practices by restraining and coercing employees within the meaning of
Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
8. Thayer Company and H. N. Thayer Company have not engaged in unfair
labor practices by discharging Charles Morse and denying reinstatement to
Viola Leger.
9. Thomas Binnall, Lubert Taylor, and Toivo Friedlander have not engaged
in unfair labor practices as agents of United Furniture Workers of America,
CIO, and United Furniture Workers of America, CIO, Local 154.
[Recommendations omitted from publication in this volume.]
Appendix A
COMPLAINANTS AT PLANT 2
Herve J. Bourque
Edgar J. Gallant
Laurie Gallant
Fred Kirby
Mallet J . Robichaud
Joseph M. Theodore
Frank J. Waskiewicz
Alcide E. Gallant
Bertha A. Anderson
Dominick J. Daddario, Jr.
Albert J. Gallant
Alyre J. Gallant
.Nerve G. LeBlanc
Robert E. Minns, Jr.
Louis F. Poicecka
Adelard J. Poirier
Agnes Simkewicz
Vieno Sinivuori
Charles Morse
Francis Arsenault
Charles J. Dwyer
Hector Henry
Joseph O. LeBlanc
Ola Legere
John Yurewicz
George J. Bourgeois
John Henry
Bertha LeBlanc
Thaddee LeBlanc
Edward McDonald
Ralph C. Morse
Jeannette M. Poulin
Edward J. Poirier
Knute Sundin
Edgar J. Arsenault
Alfred J. Prevost
Herbert Lamoureux
Rachel M. Morse ( Kendall)
Eva Ballentine
Roger Paul Cantin
Edris J. Poirier
Yvonne Drewski
Herbert P. Savoie
Paul H. Ballentine
Edwin E. Orre
Harriet Mallozzi
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
COMPLAINANTS AT PLANT 1
Robert A. Sidman
Harry B. Hosley
Norman A. Leger
Ronald Richard
Henry J. Robichaud
Ernest R. Roy
Olavi Wauhkonen
Ernest Martin
Anthony C. Poliks
Alice Pine
Edgar J. Richard
John P. Rosinski
Arthur Joseph Ares
Alice Boucher
Edgar J. Breau
Joseph A. Diotalevi
Amos Fontaine
Lucy Leger
Raymond Nugent
Virginia Perry
Edward Richard
Roger P. Richard
William Thompson
William A. Aucoin
Ernest J. Barrieault
Adelin J. Desroche
Albert Erickson
Henry Jaillet
Edmond Laliberte
Ernest R. LeBlanc
Arthur E. Leger
Norman H. Robichaud
Viola Leger
Milton V. Dill
Donald Kartunen
Camille A. Letellier
Alice L. Maillet
Beatrice Bourque
Emma Ashland
Premilia LeBlanc
Charles Girouard
Ernest J. Lajole
Emile LeBlanc
Edgar A. Roy
Paul N. Hamel
Adolph Robichaud
Ada Barrieau
Raymond Columbus
Edward E. Fontaine
Joseph E. Cormier
Rene J. Hamel
Richard C. Robinson
Alphege Desmarais
Robert Desolier
Camille J. LeBlanc
Edward C. Nasiatka
George A. Nyman, Jr.
Henry J. Camden
Herman G. Hamel
Roger I. Belliveau
Appendix C
DISCHARGES AT PLANT 2
Date of
discharge
Herve J. Bourque____________ 1/11/49
Edgar J. Gallant____________ 1/11/49
Laurie Gallant_______________ 1/11/49
Fred Kirby__________________ 1/11/49
Mallet J. Robichaud---------- 1/10/49
Joseph M. Theodore---------- 1/10/49
Frank J. Waskiewicz________ 1/10/49
Alcide E. Gallant____________ 1/10/49
Bertha A. Anderson---------- 1/10/49
Date of
discharge
Dominick J Daddario, Jr----- 1/11/49
Albert J. Gallant____________ 1/10/49
Alyre J. Gallant_____________ 1/10/49
Herve G. LeBlanc____________ 1/10/49
Robert E. Minns, Jr---------- 1/10/49
Louis F. Poicecka____________ 1/10/49
Adelard J. Poirier___________ 1/10/49
Vieno Sioivuori______________ 1/11/49
Charles Morse_______________ 1/ 7/49
H. N. THAYER COMPANY 1233
Appendix D
PLANT 2
Date of Date of
application application
and refusal and refusal
to reinstate to reinstate
Francis Arsenault____________ 3/25/49 Alfred J. Prevost____________ 4/28/49
Charles J. Dwyer____________ 3/15/49 Herbert Lamoreux___________ 3/16/49
Hector Henry---------------- 3/25/49 Rachel M. Morse____________ 3/16/49
Joseph O. LeBlanc____________ 3/23/49 Eva Ballentine______________ 3/16/49
Ola Legere__________________ 3/16/49 Roger Paul Cantin___________ 3/16/49
John Yurewicz______________ 3/15/49 Edris J. Poirier______________ 3/22/49
George J. Bourgeois---------- 3/16/49
Yvonne Drewski_____________ 3/19/49
John Henry----------------- 3/28/49
Herbert P. Savoie____________ 3/16/49
Bertha LeBlanc______________ 3/21/49
Thaddee LeBlanc------------ 3/30/49 Paul H. Ballentine___________ 3/30/49
Edward McDonald___________ 3/30/49 Edwin E. Orre_______________ 3/16/49
Ralph C. Morse______________ 3/16/49 Vieno Sinivuori______________ 3/21/49
Jeannette M. Poulin__________ 3/30/49 Leo Charest_________________ 3/30/49
Edward J. Poirier___________ 3/30/49 Harriet B. Mallozzi__________ 3/28/49
Edgar J. Arsenault---------- 3/21/49 Knute Sundin_______________ 3/21/49
PLANT 1
Date of Date of
application application
and refusal and refusal
to rein state to reinstate
Harry B. Hosley_____________ 3/23/49 Roger P. Richard____________ 3/21/49
Norman A. Leger____________ 3/18/49 William Thompson---------- 3/24/49
Ronald Richard______________ 3/21/49 William A. Aucoin___________ 3/21/49
Henry J. Robichaud---------- 3/25/49 Ernest J. Barrieault__________ 3/21/49
Ernest R. Roy_______________ 3/25/49 Adelin J. Desroche___________ 3/23/49
Olavi Wauhkonen____________ 3/21/49 Albert Erickson______________ 3/21/49
T. Ernest Martin____________ 3/23/49 Henry Jaillet________________ 3/22/49
Anthony C. Poliks____________ 3/21/49 Edmond Laliberte____________ 3/25/49
Norman H. Robichaud-------- 3/21/49 Ernest R. LeBlanc___________ 3/23/49
Viola Leger__________________ 3/21/49 Arthur B. Leger______________ 3/21/49
Milton V. Dill_______________ 3/16/49 Premilia LeBlanc____________ 3/16/49
Donald Karlrunen____________ 3/16/49 Charles Girouard____________ 3/15/49
Camille A. Letellier__________ 3/16/49 Ernest J. Lajoie_____________ 3/21/49
Alice Maillet_________________ 3/21/49 Edgar A. Roy________________ 3/21/49
Beatrice Bourque____________ 3/22/49 Paul N. Hamel_______________ 3/21/49
Emma Ashland______________ 3/16/49 Adolph Robichaud___________ 3/21/49
Alice Pine___________________ 3/25/49 Ada Barrieau_______________ 3/23/49
Edgar J. Richard_____________ 3/19/49 Raymond Columbus---------- 3/24/49
John P . Rosinski____________ 3/19/49 Edward E. Fontaine---------- 6/29/49
Arthur Joseph Ares__________ 3/22/49 Joseph E. Cormier----------- 3/21/49
Alice Boucher_______________ 3/22/49 Rene J. Hamel_______________ 3/23/49
Edgar J. Breau______________ 3/21/49 Richard C. Robinson---------- 3/16/49
Joseph A. Diotalevi__________ 3/21/49 Alphege Desmarais---------- 3/16/49
Amos Fontaine______________ 3/25/49 Robert Desolier______________ 3/21/49
Lucy Leger__________________ 3/22/49 Edward C. Nasiatka__________ 8/ 1 /49
Raymond Nugent____________ 3/25/49 George A. Nyman, Jr--------- 3/19/49
Virginia Perry______________ 3/22/49 Henry J. Camden____________ 3/21/49
Edward Richard_____________ 3/21/49 Herman G. Hamel___________ 3/21/49
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix E
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED FURNITURE WORKERS OF
AMERICA, C10, or UNITED FURNITURE WORKERS OF AMERICA, CIO, LOCAL 154,
or any other labor organization of our employees, by discharging or refusing
to reinstate any of our employees or by discriminating in any other manner
in regard to their hire and tenure of employment, or any term or condition
of employment.
WE WILL disestablish THAYER'S WORKERS' COUNCIL and H . N. THAYER'S
WORKERS' COUNCIL, and set aside all contracts with them, as the representa-
tives of our employees for the purpose of dealing with us in matters of
grievances, labor disputes, rates of pay, wages, hours of employment, or
other conditions of employment, and we will not recognize them or any
successors thereto for any of the above purposes.
WE WILL make whole the personal representative of Edgar. J. Breau for
any loss suffered as a result of the discrimination against him.
WE WILL offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed , and make
them whole for any loss of pay suffered as a result of the discrimination
against them.
Robert Sidman John Henry
Emile LeBlanc Bertha LeBlanc
Herve J. Bourque Viola Leger
Edgar J. Gallant Milton V. Dill
Laurie Gallant Donald Kartunen
Fred Kirby Camille A. Letellier
Mallet J. Robichaud Alice Maillet
Joseph M. Theodore Beatrice Bourque
Frank J. Waskiewicz Emma Ashland
Alcide E. Gallant Alice Pine
Bertha A. Anderson Edgar J. Richard
Dominick J. Daddario, Jr. John P. Rosinski
Albert J. Gallant Arthur Joseph Ares
Alyre J. Gallant Alice Boucher
Herve G. LeBlanc Joseph A. Diotalevi
Robert E. Minns, Jr. Amos Fountaine
Louis F. Poicecka Lucy Leger
Adelard J. Poirier
Vieno Sinivuori
Raymond Nugent
Francis Arsenault
Virginia Perry
Charles J. Dwyer Edward Richard
Hector Henry Roger P. Richard
Joseph 0. LeBlanc William Thompson
Ola Legere William A. Aucoin
John Yurewicz Ernest J. Barrieault
George J. Bourgeois Adelin J. Desroche
H. N. THAYER COMPANY
Thaddee LeBlanc
Edward McDonald
Ralph C. Morse
Jeannette M. Poulin
Edward J. Poirier
Knute Sundin
Edgar J. Arsenault
Alfred J. Prevost
Herbert Lamoureux
Rachel M. Morse (Kendall)
Eva Ballentine
Roger Paul Cantin
Edris J. Poirier
Yvonne Drewski
Herbert P. Savoie
Paul H. Ballentine
Edwin E. Orre
Leo Charest
Harriet B. Mallozzi
Harry B. Hosley
Norman A. Leger
Ronald Richard
Henry J. Robichaud
Ernest R. Roy
Olavi Wauhkonen
T. Ernest Martin
Anthony C . Poliks
Norman H . Robichaud
Albert Erickson
Henry Jaillet
Edmond Laliberte
Ernest R. LeBlanc
Arthur E. Leger
Premilia LeBlanc
Charles Girouard
Ernest J. I.ajoie
Edgar A. Roy
Paul N. Hamel
Adolph Robichaud
Ada Barrieau
Raymond Columbus
Edward E. Fontaine
Joseph E. Cormier
Rene J. Hamel
Richard C. Robinson
Alphege Desmarais
Robert Desolier
Edward C. Nasiatka
George A. Nyman, Jr.
Henry J. Camden
Herman G. Hamel
1235
WE WILL NOT (1) threaten to close down our plants , to weed out our
employees , to withhold Christmas bonuses, to discharge employees for
discussing UNITED FURNITURE WORKERS OF AMERICA, CIO, or UNITED FURNI-
TURE WORKERS OF AMERICA, CIO, LOCAL 154 or for engaging in union activi-
ties; (2) instruct our supervisory employees to engage in surveillance of
the union activities of employees; or (3) in any manner interfere with,
restrain, or coerce our employees in the exercise of their right to self-
organization , to form, join or assist UNITED FURNITURE WORKERS OF AMER-
ICA, CIO, or UNITED FURNITURE WORKERS OF AMERICA, CIO, LOCAL 154, or
any other labor organization , to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any and all 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 authorized in Section 8 (a) (3) of the Act.
WE WILL rescind our policy of denying seniority to all participants in the
strike of January 26, 1949, who did not return to work by February 23, 1949,
and restore to all employees, whether strikers or not, the seniority they
would have had but for such policy. We will also make all employees whole
for any loss of earnings suffered as the result of this policy.
WE MILL make whole all employees of H. N. Thayer Co. for any loss they
may have suffered by withholding the Christmas bonus of December 1948.
All our employees are free to become or remain members of UNITED FURNITURE,
WORKERS OF AMERICA, CIO, or UNITED FURNITURE WORKERS OF AMERICA, CIO,
LOCAL 154, or any other labor organization. We will not discriminate in regard
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hire or tenure of employment against any employees because of membership
in or activity on behalf of any such labor organization.
THAYER COMPANY,
Dated--------------------
Employer.
By -----------------------------
(Representative) (Title)
H. N. THAYER COMPANY,
Employer.
By -----------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
Appendix F
NOTICE TO ALL MEMBERS OF UNITED FURNITURE WORKERS of AMERICA, CIO,
UNITED FURNITURE WORKERS OF AMERICA, CIO, LOCAL 154, AND TO ALL
EMPLOYEES OF THAYER COMPANY AND H. N. THAYER COMPANY, GARDNER,
MASSACHUSETTS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees of THAYER COMPANY and H. N.
THAYER COMPANY, in the exercise of their right to self-organization, to
bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any or all
of such activities, as guaranteed them by Section 7 of the Act.
UNITED FURNITURE WORKERS OF AMERICA, CIO,
Labor Organization.
By -------------------------------------------------
(Representative) (Title)
UNITED FURNITURE WORKERS OF AMERICA, CIO,
LOCAL 154,
Labor Organization.
By -------------------------------------------------
(Representative ) (Title)
SAUL SILVERMAN.
Dated-------------------