Photoswitch, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1366 (N.L.R.B. 1952)

1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if an understanding is reached, embody such understanding in a signed
agreement :
All production and maintenance employees, including storeroom, billing,
and production clerks, the melters, the chief chemist, chemists, and chemist
trainees, but excluding the metallurgist, guards, clerical employees, and
supervisors as defined in the Act.
WE WILL offer to the following individuals immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against them :
Odes Laminack
T. L. Lockridge
Z. B. Jones
Ezekiel Rogers
W. C. Bogan
Garland Newsome
J. L. Pritchett
Burley French
Lois Gentry
James Carpenter
Rufus Denton
Vincent Guice
R. H. Jones
A. L. Christian
All of our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
the hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
EAST TEXAS STEEL CASTINGS COMPANY, INC.,
Employer.
By -----------------------------------------------
(Representative) (Title
Dated. --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
PIJOTOSWITCH, INCORPORATED and INTERNATIONAL UNION OF ELECTRI-
CAL, RADIO AND MACHINE WORKERS, C. I. O. Case No. 1-CA--850.
June 30,195
.Decision and Order
On July 26, 1951, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that, the
Respondent had engaged in and was engaging in certain.unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the "Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
I This document , although entitled "Respondent' s Bill of Exceptions to the Intermediate
Report and Recommended Order of the Trial Examiner ," is actually a combined statement
of exceptions and brief in support thereof.
99 NLRB No. 170.
PHOTOSWITCH, INCORPORATED 1367
On February 14, 1952, the, Board ordered that the record be re-
opened to receive additional evidence. A further hearing was ac-
cordingly held before the same Trial Examiner at Boston, Massa-
chusetts, on April 9, 1952. On April 25, 1952, the Trial Examiner
issued his Supplemental Intermediate Report, a copy of which is
also attached hereto, reaffirming the findings, conclusions, and recom-
mendations made in his Intermediate Report. Thereafter, the Re-
spondent filed exceptions to the Supplemental Intermediate Report.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearings, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Supplemental Intermediate Report, the Re=
spondent's exceptions, and the entire record in the case, and hereby
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions, with the additions and qualifications set forth below 3
1. Upon the facts stipulated by the parties with respect to the
Respondent's business, as set forth in the Intermediate Report, we
find that the Respondent is engaged in commerce within the meaning
of the Act. We further find that it will effectuate the purposes of the
Act to assert jurisdiction in this case, both because the Respondent's
annual shipment of goods outside the State amounts in value to more
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Murdock].
S The Respondent contends , in its exceptions to the Intermediate Report, that the Trial
Examiner was biased and prejudiced against it . We are convinced and find, on the record
as a whole , that these allegations are without merit. However , we note, and hereby correct,
the following inadvertent errors in the Intermediate Report :
(1) The statement that "the record discloses that Stabins was sentenced to seive
3 months in the 'House of Correction ' on conviction of 'breaking and entering.' " The
court record , copy of which was Introduced in evidence , shows that Stabins was convicted
of "stealing alcoholic beverages of the aggregate value of more than one hundred dollars
of the property of Elliott Wine Co."
(2) The statement that Marcy testified that "as a general rule the signatures of
employees severing their connection with the Respondent were not requested ." In fact,
Marcy's testimony was that the Respondent endeavors to obtain a signed form whenever
an employee resigns.
(3) The statement that Shaw refereed to a certain security order or agreement, intro-
duced in evidence at the hearing , as enforcing his silence as to what action the Respondent
was required to take in order to safeguard its plant and work. The Trial Examiner found
that this order in no way substantiated the Respondent 's contention . However, the record
shows that Shaw relied not on the security agreement-the document introduced in evi-
dence-but on an Air Force regulation which was read Into the record but was subsequently
stricken by the Trial Examiner as irrelevant.
(4) The statement that Shaw testified that "anybody in the organization can work on
any classification ." The transcript shows that his testimony was that "anybody In the
organization can work on any classification provided they have the clearance for that
classification."
(5) The statement that "Stabins made no attempt to conceal his police record." Admit-
tedly, at the time of his application for employment with the Respondent, lie indicated
on his application form that he had no police record.
In addition , we note that at one point the Trial Examiner incorrectly gives the address
of the Respondent as Boston, instead of Cambridge, Jlassaehu,etts, and at another point
states that Stabins was discharged on April 5, instead of February 5, 1951.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than $25,000,4 and because its operations substantially affect the na-
tional defense .5
2. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees, in violation of Section
8 (a) (1) of the Act. In so finding, however, we rely solely upon the
following : (1) The interrogation of employees with respect to union
matters by General Foreman Bragdon, Foreman Di Pietro, and Vice-
President Long; e (2) Bragdon's statement to employee Smith that
if the Union got in, wages would be cut and privileges would be
stopped; (3) President Metcalf's announcement, in his speech to the
employees on December 19, 1950, that the Respondent was arranging
to make low cost insurance available to them;' and (4) the discrimi-
natory discharge of employee Stabins, discussed below.
3. The Trial Examiner found that the Respondent discriminatorily
discharged John S. Stabins on February 5,1951, in violation of Section
8 (a) (3) of the Act. In so finding, he credited the testimony of
Stabins, and discredited that of Shaw, the Respondent's vice president,
.and Marcy, its controller. In its exceptions to the Intermediate Re-
port, the Respondent attacks these credibility findings.
The importance of observation of the demeanor of witnesses to any
finding as to their credibility is such that the Board will not overrule
a Trial Examiner's resolutions as to credibility, except when it is
convinced, on a clear preponderance of all the relevant evidence, that
the Trial Examiner's resolutions were incorrect .8 In our opinion,
no such conclusion is warranted in this case .9 We therefore adopt
the Trial Examiner's credibility findings.
4. The Respondent, in its exceptions to the Intermediate Report,
contends (1) that Stabins was not discharged, but voluntarily re-
signed, and (2) that its reason for terminating his employment was its
belief that an employee who had falsified his application to obtain
employment in the plant and who had such a serious criminal record,
involving theft and violation of his sworn duty as a police officer,
4 Stanislaus Implement and Hardware Co., Ltd ., 91 NLRB 618.
" Westport Moving and Storage Company, 91 NLRB 902.
6 Standard -Coosa-Thatcher Company, 85 NLRB 1358.
'Although the Respondent contends that the Insurance plan had been under study for
about a year , we are convinced , in view of the Respondent ' s other antiunion activities, that
the announcement of the plan while the Union's petition for certification was pending
before the Board was designed to induce the employees to abandon the Union.
8 Ozark Hardwood Company, 91 NLRB 1443 ; Standard Dry Wall Products , Inc, 91 NLRB
544, enforced 188 F. 2d 362 , ( C. A 3). See also N. L. R. B. v Universal Camera Corp,
190 F. 2d 429 (C. A. 2.).
9 The evidence at the reopened hearing lends additional support to the Trial Examiner's
finding that Shaw was an incredible witness. For although Shaw testified at the first hear-
ing that the Respondent had a long-standing rule against employing anyone with a record
of a serious criminal offense, Avery , the Respondent's treasurer , admitted at the later
hearing that the Respondent ' s records showed that in December 1948 it hired an employee
who had stated on his application for employment that he had been convicted of stealing
.a Government car in 1947.
PHOTOSWITCH, INCORPORATED 1369
was too grave a security risk to be employed in a plant handling
secret war material and developments.
As to the first contention, the record shows that on February 5,
1951, Shaw, after confronting Stabins with information he had re-
ceived that Stabins had a criminal record, offered him an opportunity
to resign as an alternative to being discharged. According to Shaw,
Stabins thereupon resigned; according to Stabins, he refused to do so
and was discharged. Like the Trial Examiner, we credit Stabins'
testimony and discredit that of Shaw. But even assuming that
Stabins resigned, it is clear that he did so only under threat of dis-
charge. Under such circumstances, the Respondent's action would,
in any event, constitute a constructive discharge.
As to the Respondent's second contention, the record shows that
in 1940, Stabins, while a member of the Boston police force, was
convicted of larceny, and that, in applying for employment with the
Respondent in 1951, he falsely stated that he had no police record. On
the record as a whole, however, we do not believe that the Respondent
honestly believed that Stabins was, on this account, a serious security
risk. In so finding, we rely on (1) the Trial Examiner's finding that
Shaw-the Respondent's only witness as to the stringent security re-
quirements at the plant-was not a credible witness; (2) the evidence
that Stabins was not himself employed on classified work, or in a
restricted area of the plant; and (3) the fact that Stabins' conviction
had taken place 10 years before he entered the Respondent's employ,
and that, in the meantime, he had been employed for 4 years, following
FBI investigation during World War II, at the United States Naval
Ordnance Depot at Hingham, Massachusetts. Futhermore, although
Shaw testified that the Respondent had a long-standing policy against
employing anyone with a record of a serious criminal offense, Treas-
urer Avery's testimony shows that this policy, if it existed, was not
strictly enforced.
We are therefore convinced that the reasons given by the Respond-
ent for Stabins' discharge, however appealing in the abstract, were
actually a mere pretext. Like the Trial Examiner, therefore, we
conclude from the Respondent's antiunion attitude, as shown by its
other unfair labor practices, from its knowledge of Stabins' vigorous
union activities, and from the timing of the discharge 9 days before
the impending election at the Respondent's plant, that Stabins' dis-
charge was in fact motivated by his union membership and activities.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the Board hereby orders that
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, Photoswitch, Incorporated, Cambridge, Massachu-
setts, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Electrical
Radio and Machine Workers, C. I. 0., or in any other labor organi-
zation of its employees, by discharging or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
their employment.
(b) Interrogating its employees regarding union matters.
(c) Threatening its employees with wage cuts or loss of privileges
for engaging in union activities.
(d) Offering benefits to its employees to induce them to refrain from
union activities.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Union of
Electrical, Radio and Machine Workers, C. I. 0., or any other, labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring 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 the Board finds will
effectuate the policies of the Act :
(a) Offer to John S. Stabins immediate and full reinstatement
to his former or a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges.
(b) Make whole John S. Stabins for any loss of pay he may have
suffered because of the discrimination against him, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy." 10
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay and the right
of reinstatement under the terms of this Order.
10 In the fourth sentence in footnote 8 of the Intermediate Report, the words "his net
earnings" have been inadvertently omitted. The sentence is hereby corrected to read as
follows : "Loss of pay shall be determined by deducting from a sum equal to that which he
would normally have earned for each quarter or portion thereof, his net earnings , if any,
in other employment during that period."
PHOTOSWITCH, INCORPORATED 1371
(d) Post at its plant at Cambridge, Massachusetts, copies of the
notice attached hereto and marked "Appendix •A." 11 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 INTERNATIONAL UNION
OF ELECTRICAL , RADIO AND MACHINE WORKERS, C. I. O., or in any
other labor organization of our employees , by discharging or re-
fusing to reinstate any of our employees , or by discriminating in
any other manner in regard to their hire or tenure of employment
or any term or condition of their employment.
WE WILL NOT interrogate our employees regarding union
matters.
WE WILL NOT threaten Olin employees with wage cuts or loss of
privileges for engaging in union activities.
WE WILL NOT offer benefits to our employees to induce them to
,,,x-e_frain from union activities.
WE WILL NOT in any other manner interfere with, restrain, or
corece our employees in the exercise of the right to self-organiza-
tion , to join or assist INTERNATIONAL ELECTRICAL , RADIO AND MA-
CHINE WORKERS, C. I. 0., or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to re-
frain from any or all of such activities , except to the extent that
u In the event that this Order is enforced by a decree of a 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."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as author-
ized in Section 8 (a) (3) of the Act.
WE WILL offer to John S. Stabins immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges previously
enjoyed , and we will make him whole for any loss of pay suffered
as a result of the discrimination against him.
PHOTOSWITCH , INCORPORATED,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a second amended charge duly filed May 15, 1951, by International > }pion
of Electrical, Radio and Machine Workers, C. I. 0, herein called the Union,' the
General Counsel of the National Labor Relations Board, herein called the Board,
by the Regional Director for its First Region (Boston, Massachusetts), as agent
for the Board, issued a complaint dated May 22, 1951, against Photoswitch, In-
corporated, Boston, Massachusetts, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat 136, herein called the Act.
Copies of the charge, the complaint, and a notice of hearing were duly served
upon the Respondent and the Union
With respect to the unfair labor practices the complaint alleged in substance
that on or about February 5, 1951, the Respondent discriminatorily discharged
employee John S. Stabins and has thereafter refused to reinstate him, in.viola-
tion of Section 8 (a) (3) of the Act, and has engaged in other conduct violative
of Section 8 (a) (1) of the Act.
On May 1 the Respondent filed an answer in which it admitted the jurisdiction
of the Board, denied that it had engaged in any unfair labor practices as alleged
in the complaint, and averred that Stabius resigned from the Respondent's
employ.
Pursuant to notice, a hearing was held at Boston, Massachusetts, June 4, 5,
and 6, 1951, before Louis Plost, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel, the Respondent, and the
Union were represented by counsel who are hereinafter referred to in the names
of their principals. The parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to produce evidence bearing on the
1 The original charge was filed January 8 , 1951. A copy thereof was served on the
Respondent on January 11, 1951.
The first amended charge was filed February 14, 1951 A copy was served on the
Respondent February 16, 1951
PHOTOSWITCH, INCORPORATED 1373
issues, to argue orally on the record , and to file briefs , proposed finding of fact,
and/or conclusions of law with the undersigned . The parties waived oral
argument . A date was fixed for the filing of briefs , proposed findings, and/or
conclusions . At the close of the hearing the undersigned granted an unopposed
motion by the General Counsel to conform all the pleadings to the proof with
respect to spelling , places, dates , and like matters . Briefs have been received
from the General Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the,undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated that the Respondent:
•Photoswitch Incorporated is a Massachusetts corporation with its main
plant and principal office located in Cambridge, Massachusetts. It is engaged
in the manufacture of electronic and photo-electronic controls. About fifty
percent of this work is related to engineering projects with the Air Force
and concerns national defense.
During the past year raw materials in excess of one hundred thousand
dollars consisting chiefly of aluminum, steel, wire and other metals were
purchased directly from states without the Commonwealth of Massachu-
setts; and during the same period finished products in excess of one hun-
dred thousand dollars were sold directly to states without the Commonwealth
of Massachusetts.
11. THE ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, C. I. 0., is
a labor organization within the meaning of Section 2 (5) of the Act, admitting
employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Inter)erenee, restraint, and coercion
Herman W. Carter, field 'representative of the Union, testified that sometime
in November 1950, John Gallant, then an employee of the Respondent, informed
him by phone that he had procured signatures of fellow employees to union
application cards and requested Carter's cooperation. Complying with the
request Carter called at Gallant's home at which time Gallant asked Carter to
"go and see with him a Mr. John Stabins who lived in South Boston." The two
men then called on Stabins, and the three then went over the cards and discussed
methods of organizing the employees. Carter selected Stabins to head the drive.
Thereafter Stabins was active in the Union's behalf, serving on an organization
committee of three. With respect to Stabins' efforts, Carter testified:
He assisted in the preparation of leaflets He distributed leaflets at the
gates of the plant He attended conferences at the National Labor Rela-
tions Board . . . the hearings, and even to the last conference of setting
up the election
On November 27, 1950, the Union notified the Respondent that it represented
a majority of its production employees.
1374 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
On February 14, 1951, an election to determine a bargaining representative
was held among certain of the Respondent's employees by the Board's Regioal
Office. The employees voted the Union their representative 2 -
."I
Carter's testimony was corroborated by Arthur R Smith, who also testified
that of the 80 production and maintenance employees in the plant, "twenty-five
or thirty" signed application cards at the direct solicitation of Stabins and that
those active in organizing the Union were "all following Mr. Stabins." • •
Smith further testified, being corraborated by employee Edward Marsha I1, that
on December 19, 1950, the Respondent's employees were assembled in the plant
and addressed on the subject of the Union by A. G. B. Metcalf, the Respondent's
president.
On February 5, 1951, Stabins' employment with the Respondent was ter-
minated.
The above-cited testimony was in no way controverted and is credited by
the undersigned.
Arthur R. Smith further testified that at about 10 a. in. on a day "between
the thirtieth' [ of November 1950 ] and the fourth of December ," Guy W . Bragdon'
whom the Respondent stipulated was its "general foreman and a supervisor
within the meaning of the Act," interrogated him with respect to the Union.
Smith testified as follows :
Mr. Bragdon came up and asked me what I knew about the union trying
to get in the shop. So I told him ' if he `knows anything about it he knows
as much as I do. Then he says, "You 'know if the union jets in your wages
will be cut , your privileges will be s' toppe'd'" He' said the union wage;
didn't come up to the scale they had in Photoswitch . So I started talking
about something else and got off the subject, so he left me and went to
somebody else.
Smith further testified he was also quizzed by John Di Pietro, stipulated to
be a shop foreman and supervisor ; within the meaning of the Act , as follows
Well , John Di Pietro , a foreman in the machine shop. I was riding, •tc•
and from work with him at that time , and he asked me on different oc
casions how we were getting along, the union . I told him we were getting
along pretty good. He said he didn't think it would get in. I didn't wan'
to talk union with him, so I got off the subject.
On December 19, 1950, the Respondent 's president addressed the employees
Smith testified with respect to this address , his testimony being discussed at
another point herein.
On the night of December 19, a Christmas party of the employees was held
Smith testified to various conversations between himself and supervisory offi-
cials of the Respondent during the course of the party , the conversations all
being started by the supervisors and all relating to the Union and Smith's interest
in it.
Smith testified that during the evening William Bowman and Guy W . Bragdon,
both stipulated to be supervisors whose acts with respect to labor relations are
binding on the Respondent , "went into the bar " with him and while there
according to Smith ;
He (Bowman), told me I must be getting a pretty good rake -off from the
union to be sticking my neck out like I was, So I asked him if he was
kidding and turned my head away a little.
2 Under date of April 26, 1951 , the Union and the Respondent entered into a collective
bargaining contract covering the production and maintenance employees . The contract
was in effect at the time of the hearing.
PHOTOSWITCH, INCORPORATED 1375
Then Guy Bragdon asked me where I got the cards to sign, so I asked him
why he was pumping me. I told him they got the guy they were looking
for a couple of weeks before. He asked me who it was, and I told him it
,was John Gallant. I told them I didn't want to talk any more, I was there
to have a party, so I left.
Smith further testified that while in the dining room, Richard Grant, stipulated
to be the Respondent's auditor, engaged him in conversation as follows :
Well, he took me to the side and explained over the insurance plan with
me and told me with the company giving out an insurance plan like that,
and some other things, that he couldn't see why we needed a union there.
He says, "When the company is that good, give you things like that, you
don't need a union there." So I told him we wanted higher wages, that's
what we wanted the union for, not to get that other stuff. Then I told him
I didn't want to talk union, I wanted to have a party, that's what I was
there for.
Thereafter, according to Smith, he was approached by John Long, stipulated
by the Respondent to be its vice president, who queried him regarding the union
organizational effort of the employees :
He just asked me what we wanted a union there for, and I told him because
of low wages. And, I don't remember just the exact words he said there ; he
told me that wages were as, high as anywhere else, and we wouldn't get
any more, any higher wages. So I told him I didn't want to talk about it
any more, I just wanted to have a good time, and I left him.
Smith's testimony was in no way denied. Neither Bragdon, Di Pietro, Bow-
man, Grant, or Long were called by the Respondent. The undersigned therefore
credits the testimony of Arthur R. Smith with respect to the various statements
made by the Respondent's responsible officials to` him at the Christmas party on
December 19, 1950, all as hereinabove found.
Edward Marshall, employed by the Respondent as a drill press operator,
testified that sometime in early December 1950, Foreman Di Pietro engaged him
in a conversation at his machine under the following circumstances :
I set up my machine and Johnny [Di-Pietro], came up to me and shut it
down and was going to make a'check, and Johnny says to me, he says, "Did
you get a card to sign from a union?" . I says, "Yes." He says, "Who gave
it to you?" I says, "A little bird dropped it in my lap." Then I asked him
why he was asking me these questions. He said he was told by Mr. Bragdon
to go around the shop and ask them that had signed cards, if there was
anybody had signed cards.
Di Pietro was not called as a witness nor was Marshall's testimony otherwise
controverted. The undersigned credits Marshall.
Smith, Marshall, and John S. Stabins testified that the Respondent's presi-
dent, A. G. B. Metcalf, addressed the employees in the plant. They gave
a mutually corroborative account of a talk made by Metcalf. The testimony
with respect to meetings and talks, by Metcalf as adduced by the General
Counsel, was not denied by the Respondent. The undersigned credits the
testimony of Smith, Marshall, and Stabins with respect to Metcalf's talk to
the employees.
The record discloses that "just about noon" on December 19, 1950, all of,
Respondent's production and maintenance employees were called to the plant's
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembly room by supervisors, and President Metcalf spoke to them for a period
of "between forty-five minutes and an hour."'
Metcalf spoke of the growth of the Respondent Company, of the "big happy
family" of the employees ; stated that "they could join any organization if they
saw fit to do so"; that he couldn't understand the need of outside representation ;
that his "door was open" for employees at all times but if the Union "got in"
the employees would not be able to talk to him because some one else would
be talking for them and that thereafter "his door would be closed." Metcalf
tolfi"his employee audience that if they joined a union they would be "paying
fines, assessments all the time." He also stated that for those who were not
satisfied the door was wide open, "they could leave anytime they wanted to."
During his talk Metcalf announced that the Respondent had arranged to
make low cost insurance available to its employees ; that he was making this
announcement not as he had originally intended, but "due to the circumstances"
in advance of the planned "surprise."
Burton E. Shaw, the Respondent's vice president in charge of production
and engineering, testified that he issued instructions to all the Respondent's
supervisory personnel that "they should in no way coerce, cajole or indicate
to any of our employees what they should not do or how they should or should
not vote." However Shaw admitted that these instructions were issued after
December 14, 1950. Moreover, it is clear that the rank-and-file employees
were riot Jilfarme'd of these alleged instructions to the supervisors and, the
Respondent at no time disavowed any of the allegedly illegal conduct of its
supervisors.
In any event, the Respondent cannot free itself from liability for the con-
duct of its supervisors with respect to employee labor relations through the
medium of an unpublicized notice to its supervisory personnel as an employer
is responsible for the unlawful conduct of its supervisory staff even though it
may have instructed such staff not to interfere with the self-organizational
activities of its employees, if such instructions were not published to the rank
and file.'
The record discloses that the Respondent's attorney was present during
Metcalf 's talk to the Respondent's employees, being introduced to the gathering
by Metcalf. The undersigned therefore infers that at the time Metcalf's talk
was made the Respondent was advised of, and relied on, Section 8 (c) of the
Act, as well as the constitutional guarantee of free speech, to refute any charge
that the talk was violative of employee rights. In its brief to the undersigned
the Respondent ignores this phase of the evidence, the omission serves to fur-
ther strengthen the undersigned's belief that the Respondent believes Metcalf's
conduct to be unassailable.
Section 8 (c) of the Act reads:
The expressing of any views, . . . or opinion, or the dissemination thereof,
whether in written, printed, graphic, ... form, shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this Act,
if such expression contains no threat of reprisal or force or promise of
benefit.
However, the undersigned being mindful of N. L. R. B. v. Kropp Forge Company
(178 F. 2d 822, certiorari denied Oct. 9, 1950), is of the opinion that the Re-
spondent's conduct, with respect to Metcalf's speech as herein found, must be
8 Metcalf also addressed the employees on February 13 ; however , the testimony makes it
clear that the statements herein referred to were made during the December 19 talk.
See N. L. R. B. v Byrd Machine Co., 161 F. 2d 589 (C. A. 1).
PHOTOSWITCH , INCORPORATED 1377
considered somewhat differently than as a mere exercise in declamation. In
the Kropp Forge case the court remarked :
It also seems clear to us that in considering whether such statements or
expressions are protected by Section 8 (c) of the Act , they cannot be con-
sidered as isolated words cut off from the relevant circumstances and
background in which they are spoken . A statement considered only as to
the words it contains might seem a perfectly innocent statement , including
neither a threat nor a promise. But, when the same statement is made
by an employer to his employees , and we consider the relation of the parties,
the surrounding circumstances , related statements and events and the back-
ground of the employer 's actions , we may find that the statement is a part
of a general pattern which discloses action by the employer so coercive as
to entirely destroy his employees ' freedom of choice and action. To permit-
statements or expressions to be so used on the theory that they are pro-
tected either by the First Amendment or by Section 8 (c) of the Act,
would be in violation of Section 7 and contrary to the expressed purpose of-
the Act . Therefore in determining whether such statements and expres-
sions constitute, or are evidence of unfair labor practice , they must be con-
sidered in connection with the positions of the parties , with the background
and circumstances under which they are made , and with the general conduct
of the parties . If, when so considered , such statements form a part of a
general pattern or course of conduct which constitutes coercion and deprives
the employees of their free choice guaranteed by Section 7, such statements
must still be considered as a basis for a finding of unfair labor practice To
hold otherwise would nullify the guaranty of employees ' freedom of action
and choice which Section 7 of the Act expressly provides . Congress, in
enacting Section 8 ( c), could not have intended that result.
Viewed in the light of the court 's opinion , Metcalf's remarks to the effect that
his door, which had "been open " to all employees at all times would be closed
if the Union "got in" ; his statement that as union members the Respondent's
employees would be paying fines and assessments "all the time" ; and his an-
nouncement that "dissatisfied " employees could leave any time they wanted to,
the door being "wide open" ; were clearly coercive and clearly intended to be so
Likewise , in the opinion of the undersigned , Metcalf's premature announcement
of the low cost insurance to be made available to employees by the Respondent,
was nothing more than an effort to influence their thinking with respect to the
Union, and as such was merely coercion by allurement , especially so when it
is remembered the announcement was made on December 19 and that the first
conference between the Respondent and the Union as a result of the Union's
petition for an election to select a bargaining representative had been held on
December 14.
Upon the entire record in the case, considered as a whole , and by the following
acts and conduct of Respondent as hereinabove found :
General Foreman Bragdon's inquiry of employee Arthur R. Smith regarding
the latter 's knowledge of the Union ; by Bragdon 's statement to Smith that
wages would be cut and privileges lost in the event of union organization by the
Respondent 's employees ; by Shop Foreman Di Pietro 's inquiry of Smith regarding
the Union; by Supervisors Bowman's and Bragdon's interrogation of Smith
regarding the Union , their inquiry of Smith regarding his distribution of union
application cards, and their interrogation of Smith regarding the reason for
his interest in the Union ; by Auditor Grant 's statement to Smith that the
Union was not needed , as well as Grant's statement to the effect that "you
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
don't need a union" (in a company which gave its employees an insurance plan) ;
by Viee-President Long's query of Smith regarding the employees' reasons for
seeking to organize the Union and by his statement to Smith that higher wages
could not be obtained through unionization; by Di Pietro's inquiries regarding
the union organizational effort to the employees as made to employee Edward
Marshall ; and by the talk made to the Respondent's employees by President
Metcalf on December 19, 1950; it having been well established that such and sim-
ilar conduct is inherently coercive, the undersigned finds that the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, more particularly has violated Section 8 (a)
(1) thereof.
B. The discriminatory discharge of John S. Stabins
John S. Stabins was first employed by the Respondent on June 5, 1950, as a
drill press operator and continued in this employment until his termination
on February 5, 1951. There is no question of Stabins' competency. Vice-
President Burton E. Shaw testified that "long after we severed with Mr. Stabins
there was a check made to see whether or not his work had been completely
satisfactory" and "my understanding at the time of severing with Mr. Stabins
'was that his work was satisfactory."
As has been found Stabins became active on behalf of the Union in November
1950. The record is clear that he was among the most prominent union pro-
ponents. The record is equally clear that by reason of Stabins' union activities,
including his attendance at conferences between the union representatives and
the Respondent as well as his giving testimony at a Board hearing which resulted
in an election to select a bargaining representative being conducted by the
Board on February 14, 1951, the Respondent was fully aware of Stabins' activities
and prominence in the self-organizational efforts of its employees.
Stabins testified that at about 11 a. in. February 5, Foreman Di Pietro told
him that Vice-President Shaw wished to see Stabins in his office, and
So I went in and I sat there for a few minutes, and in comes Mr. Shaw
through an inner door with some papers in his hand. "Well," he said, "Mr.
Stabins," he said , "We've got a lot of war contracts last month for the Air
Force, United States Air Force." And he said, "We're going to go in war
work pretty soon," he said ; and he said, "Anybody that's been arrested
any time for any crime, arrested and convicted for any crime can't work
for this firm."
'So I turned around and said, "Everybody makes a mistake in life." I
said, "I was arrested for a misdemeanor and I paid dearly for it. I don't
see why you want to let me go now."
He said, "It's m'y orders from the president of the firm," he said, "I've
got to let you go." So he said, "You've got a chance to resign, or else be
,discharged." "Well," I said, "I have no choice in the matter." He said,
"No, you haven't." He said, "If you don't resign, you'll be discharged just
the same."
Stabins further testified that he refused to resign and said to Shaw "why do
you want to discharge me now? I worked for the government, . . . during the
war, and I worked on secret work, on secret parts of different bombs and shells,
and everything like that."
PHOTOSWITCH, INCORPORATED 1379
.According to Stabins , Shaw replied "Well my instructions are to get rid of
you" Stabins testified :
So he directed me to an office there to get my check . I got there and
there was a girl there, she said, "Sign this card here." A little card.
And I read part of it there, on top there. I said , "What is this?" So she
said, "Everybody that leaves the employ of this firm signs one of these
cards," she said . "You sign this while I make out your check." So I
signed one and I signed on the wrong line. I signed on the supervisor's
line.
So she give me my check , and pretty soon a man comes down from the
office there after me and said , "They want you up in the office again.
Hurry up."
He led me up in the office and they give me another one. They said, "You
signed this in the wrong space. Will you sign another one." So I signed
,it again. And the reason for my leaving I put down , "Unknown ." There was
questions there. I didn't know what I was getting through for.
Q. Did you resign?
A. I did not. I didn 't have no chance to resign.
The "separation form" which bears Stabins ' signature was introduced in
evidence . It is attached hereto as exhibit A. This document is admittedly the
second document signed by Stabins. Stabins testified that at' the time he signed
both the first document and the second document neither bore the typewritten
statement appearing on the bottom of the exhibit and which reads, "I hereby
tender my resignation from the employ of Photoswitch Incorporated ," but that
he did make the cross after the word "unknown" to show the reason for his
termination as disclosed to him.
The Respondent 's contentions re Stabins ' discharge
In its answer the Respondent denies that Stabins was discharged and avers
that he resigned.
Burton E. Shaw , who, with the exception of another official of Respondent
called to corroborate Shaw in one particular , was the Respondent 's sole witness,
testified that Stabins ' resignation was "voluntary" and entirely "without pres-
sure." , Shaw testified that the Respondent sought the termination of Stabins'
employment because Stabins ' presence in the plant was in violation of security
measures required by the Armed Services.
At the hearing, and in its brief , the Respondent also contended that Stabins
made certain misstatements in his application for employment and these mis-
statements , or as the Respondent called them "falsifications ," were sufficient rea-
son for Stabins ' termination . However, as the Respondent contends that it did
not discharge Stabins and as the record is clear that the sole reason the Respond-
ent advanced for its desire to rid itself of Stabins was his being an alleged "poor"
security risk," the undersigned finds that any statements made by Stabins on
his application for employment , other than statements relating to the reason
for his discharge from the Boston Police Department , did not enter into the
Respondent 's alleged request or suggestion that Stabins resign , as a reason
therefor.
Shaw testified that on February 5 he called Stabins to his office and "con-
fronted" him with information he had to the effect that Stabins had been con-
victed of a crime while a member of the police department and had been dis-
charged from his position as a patrolman by reason thereof.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To this point Stabins and Shaw are in agreement as to what occurred ; how-
ever, Shaw testified that after he told Stabins that the Respondent "did not
employ and never intended to employ and would discharge" any person convicted
of "serious crime," 6 he then offered Stabins the opportunity of resigning which
was accepted. Shaw testified :
Mr. Stabins said, well, he thought the best thing for him to do then was
to get his pay and leave the employ of the company.
Mr. Stabins went down to the employment office, I having advised them
to give him all back pay, without in any way advising the employment
office as to the reasons, and Mr. Stabins would terminate his service
voluntarily.
Mr. Stabins signed, not a card, as has been testified, but a sheet of
paper, and as has been testified, he signed in the wrong space. He signed
over the word, "Supervisor," rather than over the word, "Employee."
He also x'd in one of the various boxes provided under voluntary separa-
tion. We believe he x'd in, in the first paper the word "Unknown "
As soon as we found, discovered, that Mr. Stabins had signed the paper
incorrectly, we called him, dispatched one of our personnel to have him
return to the employment office to sign the paper correctly. He then signed
another paper, which is Exhibit R-4, in the proper box for "employee," and
he x'd, again, Voluntary separation, "Unknown."
When that paper was signed, under "Detailed Statement-Explain Above
Reason or Reasons," there was typed in a statement : "I hereby tender my
resignation from the employ of Photoswitch, Incorporated."
Shaw admitted that he did not see the document signed by Stabins until after
it was signed ; and that he did not see it signed. On cross-examination he also
testified :
Q. (By Mr. Fuchs) Mr. Shaw, you don't known of your own personal
knowledge that the typewritten matter regarding resignation was on that
paper at the time Mr. Stabins signed it?
A. No, I simply issued orders to have that done.
Shaw testified that after Stabins told him he would resign, he then instructed
Stabins to go to the employment office for his pay check and that he "would
sign his termination paper" there. Shaw further testified that he then in-
structed his secretary to prepare the resignation document, which she then
prepared and handed to Mr. Marcy, the Respondent's controller. Shaw testified
further:
I told Mr. Marcy that the resignation paper would be handed to him by
my Secretary, Mrs. Adams, and that it would have typed thereon the
statement which we have already put in the testimony.
G. Louis Marcy testified that on February 5, 1951, he received a blank form
from Mrs. Adams to be signed by Stabins ; that this form was signed by Stabins ;
that at the time it was signed the resignation clause was typed on it ; that he
indicated to Stabins where he was to sign and that Stabins signed without
comment; that Stabins also placed an "x" after the word "unknown" listing
causes for resignation and that after the document had been signed by Stabins
it was put in the Respondent's files.
'The record discloses that Stabins was sentenced to serve 3 months in the "House of
Correction" on conviction of "breaking and entering." He was at the time a patrolman
the Boston Police Force. This occurred in 1940 and was freely admitted by Stabins.
PHOTOSWJTCH, INCORPORATED 1381
On cross-examination Marcy testified that as a general rule the signatures of
employees severing their connection with the Respondent were not requested
but that Stabins' signature was wanted because he had "special instructions from
Mr. Shaw" that a special form was to be sent from Shaw's office for Stabins'
signature; that Stabins signed only this form (which was the second document
signed) in his office; that he was "not positive" that Stabins marked the "x"
after the word "unknown" appearing on the form ; that he was "not sure"
whether or not Shaw's signature was on the document when Stabins signed it ;
that he had not been told, before Stabins signed the second document, of Stabins
affixing his signature to the wrong line but that he found it out just before
Stabins came in because he asked a clerk if Stabins had already signed, where-
upon she showed him the document Stabins had signed ; that this document was
signed in the wrong place and this form did not have the resignation clause typed
on it. Marcy testified :
She said that she had this form, which she had in her hand and presented
to me. She had had Mr. Stabins sign this form, which is a very similar
form, and when I saw it, I noticed that it had not been the form submitted
by Mr. Shaw. And, in addition, it had not been signed in the proper place.
Q. How did you know it was not the form that had been submitted by
Mr. Shaw?
A. Because Mr. Shaw advised me that it would have a statement of
resignation on it.
Q. What did you do after you saw that it was the wrong form and had
been signed in the wrong place?
A. I obtained from Mrs. Adams, Mr. Shaw's secretary, the form which is
in front of me and asked Mr. Stabins, or had Mr. Stabins come back and
sign this form in the proper place, and I am sure that I mentioned that it
was his resignation form.
Marcy testified that after Stabins signed the second form both signed forms
remained with Marcy ; he then noted that the first form Stabins signed did
not have the resignation clause typed on it.
Considering the glaring inconsistencies in Marcy's testimony, as well as his
demeanor on the stand, and the entire record as a whole, the undersigned does
not credit Marcy's testimony regarding the actual contents of the final docu-
ment signed by Stabins. Considering the contradicitions in Marcy's testimony
that the first document did not have the "resignation" typed on it, together with
his testimony that Stabins signed the final paper without any conversation or
comment, the undersigned is persuaded that neither of the documents signed
by Stabins bore thereon the "resignation clause" at the time he signed them.
The undersigned so finds.
The undersigned sees added support for this finding in the following :
Shaw testified that during the course of his interview of Stabins on February
5, he told Stabins that if he elected to resign he would not mention Stabins'
police record to anyone including the Respondent's attorney, but when questioned
on cross-examination he testified that although he did discuss the details of
Stabins' police record with the Respondent's attorney, he did not mention Sta-
bins' name and presented the facts as a hypothetical case.
Although the Respondent contends that Stabins resigned, the undersigned is
mindful that in his testimony with respect to his final interview with Stabins,
Vice-President Shaw quotes Stabins as leaving with the statement that "he
thought the best thing for him to do then was to get his pay and leave the
employ of the company." On the day following his testimony to this effect Shaw
215233-53-88
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was asked a question by the Respondent's attorney, which though leading was
not objected to, and the only purpose of which could have been an attempt to
give different meaning to the question as already answered.
The question and answer were:
Q. (By Mr. Blake) In connection with the resignation of Mr. Stabins,
did Mr. Stabins tell you that he wanted to resign, that he would resign?
A. Mr. Stabins said he would resign.
Conclusion
On the entire record, and for reasons more particularly detailed at a later
point herein, the undersigned does not credit the testimony of Vice-President
Shaw with respect to his interview with Stabins on February 5. Stabins im-
pressed the undersigned as a truthful witness, who made no attempt to conceal
the most damaging facts in his personal record. The undersigned credits his
testimony with respect to his interview with Shaw and his signing of the'separa-
tion documents, and finds that Stabins' account of these events represents the
accurate version thereof.
The undersigned therefore finds that Stabins did not resign from the Re-
spondent's employ on February 5, 1951, but was discharged by the Respondent
on that day.
The Respondents Contentions as to the Reasons for Stabins' Termination
Shaw testified that for the past 10 years, as a regular part of its business, the
Respondent has engaged in the manufacture of certain war products for the
U. S Armed Forces and that after the beginning of hostilities in Korea, in June
1950, it had been required to more stringently enforce security regulations put in
force by the armed services.
Shaw testified :
We've been verbally requested by the Intelligence group, and verbally' re-
quested by FBI. We have several letters in writing from Intelligence,
specifically with respect to the possibility of someone crawling under the
fence, and elements of that sort, which have all been cleared, fixed up. 11
Shaw testified that he was forbidden by army regulations on security measures
to disclose in detail what action the Respondent was required to take in order
to safeguard its plant and the work it did, however -he referred to a certain
security order as enforcing his silence. This order, or agreement, was intro-
duced in evidence without objection by any party. In the opinion of the under-
signed the order in no way substantiates the Respondent's contention. The
General Counsel stated on the record that it was not his desire to force the
Respondent to divulge confidential information or security directives and volun-
tarily refrained from questioning Shaw's claim of privilege.
Shaw also testified that because of security regulations he was unable to
divulge the War Department classification of the Respondent's plant.
The record discloses, from Shaw's testimony, that the Respondent's plant con-
sists of three buildings, surrounded by a woven wire fence 7 feet high. The
fence is not actually burglar proof The entrance gate is manned by an un-
armed, nonuniformed guard . Employees wear no badges, do not carry passes, are
not fingerprinted, and neither the security forces of the armed services nor the
F. B. I. have any control over them. During the time material herein,, meaning
up to Stabins' discharge, there was not always a day guard on duty and the night
PHOTOSWITCH, INCORPORATED 1383
guard also acted as a plant sweeper. Apparently this condition obtained during
the period of World War II.
Siihwv testified that the guards were required to open and check all packages
carried out of the plant by employees ; on cross-examination however, he ad-
mitted that the order to this effect had been issued only 30 days prior to the
hearing; he then testified that such orders had been in effect for the past 5 years
by reason of certain "loose instructions" requiring that periodic checks be made
by guards, but admitted he "could not say" he issued the orders and after testi-
fying that the orders were posted, admitted on cross-examination that he did not
cause such orders to be written or posted. It is clear that Shaw has charge of
personnel, and all shop rules come from him.
Shaw testified that approximately one-half of the Respondent's employees
were scientific technicians engaged in research. These employees all work in
a single building, a laboratory entered through a door marked "Private." The
actual production work is done in all buildings of the plant of which there are
three. Shaw further testified that certain of the articles the Respondent pro-
duced for the armed services were designated as "classified," meaning that they
must be carefully guarded ; however, not all the elements of an article intended
for the armed services were "classified." The machine work is done by pro-
duction employees, not laboratory technicians.
Shaw testified that "classified" material "is operated on in a seperate location
wherein all of the personnel have special clearance." [Emphasis supplied.]
He further testified that "anybody in the organization can work on any classi-
fication." [Emphasis supplied.]
Shaw testified that "classified" work was confined to the laboratory but at a
later point he also testified that the work for the armed services is done in all
the buildings, but according to Shaw an "uncleared" employee, meaning an em-
ployee not certified by the armed services as being permitted to work on a,
"classified" job, could not walk over to a machine on which "classified" work
was being done and observe the work because such work is done "cn a separate
section where everyone is cleared," [emphasis supplied] and then admitted on
cross-examination that "no clearance is required of (production) employees other
than the company's scrutiny." [Emphasis supplied.]
Shaw confused his testimony further by stating that not all of those working
in the restricted laboratory were "cleared."
Shaw testified that the Respondent "took a number of security steps" which
he was not permitted to divulge-other than that it "checked references on appli-
cation forms and all material on application forms."
According to Shaw, as a result of this recheck of Stabins' original application
it was discovered that Stabins had been discharged from the Boston Police
Department in 1941, after approximately .20 years service as a patrolman, and
it was further noted that Stabins claimed to have no police record. These two
statements in Stabins' application, according to Shaw, caused him to make
inquiries of the police department and thereby he learned Stabins' police record.
On cross-examination, however, Shaw testified that the information relating
to Stabins' police record did not come to him originally as a result of the re-
checking of the employment applications but came from certain officials of the
United States security forces, whose identity he was not at liberty to disclose
because of security regulations.
On direct examination Shaw was asked with what agencies of the Government
he consulted regarding security measures to be taken "in the case of a type of
-employee like Mr. Stabins." [Emphasis supplied.] Shaw testified, in answer
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the question , that he had consulted with a certain Mr. Jameson of the Provost
Marshal 's office at the Boston Army base . He then testified that he had "fre-
quent" conversations with Jameson on the "over-all subject" but as-to the
Stabins' case testified :
I had a conversation with Mr. Jameson on May 23, 1951.
Stabins was discharged by the Respondent , as herein found, on April 5, 1951.
Shaw admitted that although Stabins' application was checked at the time
he was hired , not all his previous employers were contacted and although the
information that Stabins was discharged from the police department appeared
on his application the department was not asked for any information , nor were
the security offices of the Armed Forces asked to "clear" Stabins then or at any
time during his employment , because,
... Intelligence called me and asked me to please not to attempt to get the
SQ's on all personnel.
According to Shaw, checks of employees are still being made . Apparently,
however, Stabins was the only employee severed by the Respondent as a result
of the alleged recheck.
Stabins' work consisted of drilling and tapping metal . He bored holes in
blocks of aluminum , and had no way of knowing if the block he worked on was
intended for commercial or Government use. He never saw the finished article
of which the block became a part. Stabins worked in a different building than
the one in which the laboratory and the technical men were housed. Fifteen
other men worked in the same room with Stabins , apparently at similar jobs.
None of these men was "cleared."
Although Shaw had testified that "uncleared " employees could not observe
the work being done on confidential "classified" Government work he also
testified ( a) that Stabins had access to the military laboratory and could
observe the "classified" work in this research laboratory ; ( b) that Stabins would
be a trespasser if he did so but that "personnel from the model and machine
shop occasionally have a job which takes them into the restricted area"; (c)
that Arthur Smith , an employee without "clearance," had access to the labora-
tory "by permission"; (d) that strangers serving vending machines were ad-
mitted to all the buildings and not watched while they were in the buildings
on their business ; and (e ) finally Shaw testified:
Trial Examiner PLOST. Do you know if Stabins had a job that took him
into that ( restricted) area.
The WITNESS . I do not know if he had such a job.
Conclusion as to Shaw's , Testimony
The undersigned could multiply examples of inconsistencies , attempts to evade,
and contradictions appearing in Shaw's testimony , however, this would do
no more than lengthen this Report to no purpose , as practically every statement
made by Shaw on direct examination was contradicted , repudiated , or incon-
sistently evaded during his cross -examination.
Reading Shaw 's testimony would lead one to believe that he was either
frightened , browbeaten , trapped, or misled during the cross-examination. This
was not so . Shaw was quietly and properly questioned by the General Counsel
and was at all times protected by counsel . He was not at all strenuously
cross-examined It may well be that the very gentle manner of the General
Counsel served to mislead Shaw, or it may be that having determined to slant
PHOTOSWITCH, INCORPORATED 1385
or distort certain facts into something other than their real meaning Shaw
was not sufficiently skilled in prevarication to keep all the alleged "facts" in
mind.
Considering Shaw's testimony on matters to which he was subject to cross-
examination, which the undersigned does not credit, the undersigned cannot
credit his testimony on which he placed himself beyond the scrutiny of cross-
examination by his claim of privilege under "National Security Regulations,"
despite the fact that the General Counsel refrained from questioning the testi-
mony,,Shasf: claimed privileged, and it stands as uncontroverted.
Shaw was evasive ; his testimony was contradictory and inconsistent ; the
undersigned therefore does not credit his testimony with respect to the reasons ad-
vanced by the Repondent as being the causes of Stabins' termination.
The undersigned has found that Stabins did not resign from the Respondent's
employ but that Stabins was discharged by the Respondent ; the undersigned
further finds on all the evidence that the reasons advanced by the Respondent
for Stabins' discharge are not the real reasons therefor but are a mere pretext,
and that Stabins was discharged for reasons not disclosed by the Respondent.
There remain therefore to be considered only the reasons for Stabins' discharge
as set forth in the complaint, namely his membership in and activity on behalf
of the Union.
Shaw testified :
I told Mr. -Stabi 'ns' that it had been the policy of the Company not to
employ any one who had been convicted of a serious crime.
However, it is clear that Shaw was not using Stabins' police record as the
reason for discharging him, because he immediately pointed out that the Respond-
ent was doing work for the armed services and he used Stabins' police record
to put him into a category of bad security risks. In fact no other reason was
ever in reality advanced for the separation.
Stabins made no attempt to conceal his police record. The fact that he was
discharged from the Boston Police Department appears on his application for
employment with the Respondent . During the February 5 interview Stabins
pointed out to Shaw that he ( Stabins ) had worked at the United States Naval
Depot, on "secret" work during 1941-45, which was a war period . This em-
ployment was listed on Stabins ' application . Shaw admitted it was not checked.
The record discloses that Stabins was employed by the United States Arsenal
at Watertown , Massachusetts , after his discharge by the Respondent , and that
before being placed in the naval depot job or the arsenal job he was first
investiga'edlby -the-F. -B. I.
An election to choose or reject the Union as their bargaining agent was sched-
uled to be held among the Respondent 's employees by the Board on February 14.
The Respondent 's hostility toward the Union is disclosed by the record.
Stabins' leadership in the Union was known to the Respondent.
It is entirely logical to infer that by discharging a union leader 9 days prior
to a "Union election ," the Respondent had in mind the effect of such an example
on the electorate rather than the safety of the United States of America as
threatened by the 10-year-old police record of a drill press operator who was
shown by the Respondent 's records to have been employed by the United States
in a naval depot , in time of war after this police record was made.
The undersigned therefore finds on the entire record in the case, considered as
a whole and including his observation of the witnesses, that the Respondent on
February 5, 1951, discharged John S Stabins because of his membership in and
activities on behalf of the Union.
1386 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Conclusion
The undersigned finds that by the conduct of President Metcalf, Vice-President
Long, Auditor Grant, General ,Foreman Bragdon, and Foremen Di Pietro and
Bowman, as set forth and found in Section III, A, above, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section '7 of the Act, more particularly Section 8 (a) (1) thereof.
The undersigned further finds that by the discharge of John S. Stabins, on
February 5, 1951, as herein found, the Respondent had discriminated and is
discriminating with respect to his, hire and tenure of employment, thereby dis-
couraging membership in a labor, organization and thereby interfering with,
restraining , and coercing its employees in the exercise of rights guaranteed-in
Section 7 of the Act, more particularly. Section 8 (a) (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, ,above, occurring in
connection with the operations of the Respondent 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 ob-
structing commerce and the free flow of commerce.
V. TI#E REMEDY'
The undersigned has found that the Respondent violated the Act by certain
conduct and by discriminatorily discharging, John 'S. 'Stabins, the undersigned
will therefore recommend that the Respondent cease and' desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire
and tenure of employment of John S. Stabins by,discharging him because of his
union membership and activities, it will therefore., be, recommended that the
Respondent offer him immediate and full reinstateent to his former or sub-
stantially equivalent position, without prejudice,to his seniority and other rights
and privileges,,and make hint whole for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him 6
In view of the Respondent's discriminatory discharge of Stabins and its other
acts of interference, restraint, and coercion, there is danger that the commission
of unfair labor practices generally is to be anticipated from the Respondent's
unlawful conduct in 'the past. The undersigned will therefore recommend that
the Respondent not,only , cease and desist from the unfair labor practices found,
B In accordance with the ' Board's consistent interpretation of the term , the expression
"former or ` substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no, longer in existence , then to a , substantially equivalent
position ." ( See The Chase National Bank of the City of New York, San Juan , Puerto Rico,
Branch, 65 NLRB 827.) Consistent with the Board ' s policy in the method of computing
back pay, it will be recommended that the loss of pay be computed on the basis of each
separate calendar quarter , or portion thereof , during the period from the discriminatory
action to the date of a proper offer of reinstatement . The quarterly periods, hereinafter
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 he would normally
have earned for each quarter , or portion thereof, if any, in other employment during that
period . ( Crossett Lumber Company, 8 NLRB 440 .) Earnings in one particular quarter
shall have no effect upon the back -pay liability for any other quarter . It will also be
recommended that the Respondent make available to the Board , upon request , payroll and
other records to facilitate the checking of the back pay due . ( F. W. Woolworth Company,
90 NLRB 289.)
PHOTOSWITCH, INCORPORATED 1387
but also cease 'and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act.°
Upon the basis of the foregoing findings of fact and upon the entire record in
the ease, the undersigned makes the following:
CONCLUSIONS OF LAw
1. Tlie operations of Photoswitch, Incorporated, constitute trade, traffic, and
coulmerce' among the several States within the meaning of Section 2 (6) and
(7) of the Act.
2. International Union of Electrical, Radio and Machine Workers, C I. 0.,
is a labor organization within the meaning•of Section 2 (5) of the Act.
3. By-interfering with, restraining, and coercing its-employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a), (1) of the Act.
4. By, discriminating in regard to the hire and tenure of employment of John
S. Stabins, thereby discouraging membership in, a labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act..
5. The aforesaid unfair labor practices are unfair labor practices affecting
commeiee within the meaning of Section 2 (6) and (7) of the Act.
[Recoihlriendatimis omitted from publication in this volume.]
Eichibit A
TERMINATION OF SERVICES
Name`: Jrohn ,Stabins.
Address : 534 E. Sixth St., 'S. Boston.'
Work qualified fort Machine operator.
Company name: Photoswitch Incorpo-
,-rated.
Date : February 5, 1951.
Social Security No.: 024-18-7146.
Last day worked : February 5, 1951
(12 nooli).'
Volunt(try Separation
Has another job___ ___-__-____ -
Work unsuitable________________
Family reasons_________________
To return to school-------------- -
To return to exempt employment-- -
To return to self-employment____
, Leaving, city---------------------
To get another job______________
Uknown------------------------ X
Pay-----------------------------
Gave notice of - day_______ -
Involuntary Separation
Incompetence --_________________ -
Attendance____-________________
Competence --------------------
Discipline ----------------------
Refused transfer________________ ---
Misconduct-_-__________________ -
Sick----------------------------
Continued absence______________
Damaged tools__________________
Excess scrap____________________
Labor dispute__________________ -
Act of God, fire, etc______________ -
Other---------------------------
Lack of work___________________ -
Discontinued function --------_-_
T May Department Stores, 326 U. S. 376.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Detailed statement explaining above reason or reasons: I hereby tender my
resignation from the employ of Photoswitch Incorporated.
Summary of general ability and qualifications for recommendation for other
employment.
(Signed) (S) BURTON E. SHAW,
Supervisor.
(Signed ) ( S) JOHN S. STABINS,
Employee.
(Only in case of voluntary separation.)
Supplemental Intermediate Report
The undersigned having heard the above-entitled matter, and issued his
Intermediate Report wherein he found that the Respondent had discrimina-
torily discharged one John S. Stabins and recommended that the Respondent
offer Stabins reinstatement and make him whole for any loss incurred by reason
of the discrimination, and also made the other and usual recommendations
customarily required in such cases in order to effectuate the policies of the
Act, thereafter the Board issued the following :
Order Reopening Record
Oh, July 26, 1951, the Trial Examiner issued his Intermediate Report'fin
the above-entitled proceeding, and on the same day the case was transferred
to the Board. Thereafter, on August 30, 1951, the Respondent filed excep-
tions to the Intermediate Report. The Board having duly considered the
matter, and deeming it necessary to receive certain additional evidence in the
record,
IT IS HEREBY ORDERED that the record herein be, and it hereby is, reopened
and that a further hearing be held before a duly designated Trial Examiner
for the purpose of receiving evidence with respect to :
(1) Whether or not the Respondent has employed or retained in its
employ any individuals having criminal records.
(2) The circumstances surrounding Stabins' conviction and discharge
from the Boston police force in 1940, as known to the Respondent at
the time of his discharge on February 6, 1951.'
IT Is FURTHER ORDERED that this proceeding be remanded to the
Regional Director for the First Region for the purpose of arranging such
furth&• hearing,- and, that the' said Regional Director be;,. and he' here .is,•
authorized to issue notice thereof.
Dated, Washington, D. C., February 14, 1952.
Pursuant to the Board's order, and on due notice, the record was reopened
for the purpose of taking the additional evidence, at Boston, Massachusetts,
April 9, 1952, before the undersigned. The parties were all present and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
to produce evidence bearing on the issues, to argue orally on the record, and
3 The Board's order states that Stabins was discharged February 6. 1951, this is appar-
ently an inadvertent error as Stabins was discharged February 5, 1951.
PHOTOSWITCH, INCORPORATED 1389
to file briefs, proposed findings of fact, and/or conclusions of law with the un-
dersigned. The parties waived oral argument A date was-fixed for the filing
of briefs, etc No briefs have been received.
Upon the record so made, the undersigned makes the following :
Supplementary Findings and Conclusions
With respect to :
(1) Whether or not the Respondent has employed or retained in its employ
any individuals having criminal records.
Alf,;,ed„II._Lver•y,.the.Respondent's treasurer, admitted that an application taken
from the Respondent's files showed that one individual 2 who had stated on his
application for employment that he (the applicant) had been convicted of theft
of a Government car on January 23, 1947, sentenced to 22 months, released on
July 10, and time finished November 22, 1947, was employed by the Respondent,
on this application, on December 27, 1948.
The record does not disclose if this individual is now in the Respondent's
employ or was in such employ at the time Stabins was discharged.
With respect to :
(2) The circumstances surrounding Stabins' conviction and discharge from
the Boston police force in 1940, as known to the Respondent at the
time,of his discharge on February 6, 1951 z
Burton E. Slaw testified :
I wrote Commissioner Sullivan a letter, which has been introduced here
in the trial today, and received no reply. I then called Commissioner
Sullivan on the telephone and told him who I was, and he knew of our
plant and activities, apparently.
I pointed out that I was anxious to obtain information with respect to
Mr. Stabins, relative to why he was discharged from the Police Department,
and Mr. Sullivan said that normally they didn't give out such information,
and he seemed to be a little hesitant and said, "Wait a while. Wait a
moment or two," and then began to give me pieces of information with
respect to Mr. Stabins' case. And he said Mr. Stabins had been in the
employ of the Police Department from sometime in 1919 to sometime in '41,
when he was dishonorably discharged because he had been convicted of
breaking and entering in the nighttime, apparently, as I recall, on his beat
with, as I also recall, a fellow member of the Police Department, and some
liquor had been stolen ; and Mr. Stabins, as I say, was convicted on this
r%arge,, and Mr. Salliban said that Mr. ' Stabins had appealed his case, but
the conviction had been upheld ; and Mr. Stabins had served time in the
House of Correction and that his relationship with the Police Department
had then been severed.
Q, (By Trial Examiner PLOST) Is that all you remember now?
A. That's about all I remember.
2 The undersigned did not permit the name of this individual to be placed in the record.
3 See footnote 1, supra.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did he tell you anything else about Mr. Stabins other than these-
any other derelictions of Mr. Stabins other than the fact that he was con-
victed of breaking and entering somewhere on his beat and taking liquor?
A. I remember him saying that he was on duty at the time and in uniform
when he was caught. I think that covers it, sir.
Apparently the above conversation took place prior to Stabins' discharge.
As set forth in the Intermediate Report, of the previous hearing :
Shaw -testified that on February 5, he called Stabins to his office and
"confronted" him with information he had to the effect that Stabins had
been convicted of a crime while a member of the police department and
had been discharged from his position as a patrolman by reason thereof.
Shaw had testified that he obtained the facts with which he "confronted"
Stabins from the Boston Police Department.
Conclusion
In his Intermediate Report the undersigned concluded that :
It is entirely logical to infer that by discharging a union leader 9 days
prio'r' to a "Union election," the Respondent had in ,mind the effect of such
an example on the electorate rather than the safety of the United States
of America as threatened by the 10-year-old police record of a drill press
operator who was shown by the Respondent's records to have been employed
by the United States in a naval depot, in time of war after this police record
was made.
In the Report the undersigned states:
The undersigned has found that Stabins did not resign from the Respond-
ent's employ but that Stabins • was discharged by the Respondent ; the
undersigned further finds on all the evidence that the reasons advanced by
the Respondent for Stabins' discharge are not the real reasons therefore
but are a mere pretext, and that Stabins was discharged for reasons not
disclosed by the Respondent. -
The undersigned finds no reason to modify or change the findings, conclusions,
and recommendations made in his Intermediate Report.