The Sandy Hill Iron & Brass Works

National Labor Relations Board - Board Decisions

Jun 26, 1944

56 N.L.R.B. 1654 (N.L.R.B. 1944)

In the Matter of, THE SANDY HILL IRON & BRASS WORKS, A CORPORATION
and GEORGE BILLETDoux
Case No. 2-C-5406.-Decided Jwne 26, 1944
DECISION
AND
ORDER
respondent participated. -
The Board has considered the rulings of the Trial Examiner, and
' finds,that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered, the Intermediate Report, the
respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings and conclusions of the Trial Examiner,
with the following additions and exceptions :
1. The Trial Examiner has found that the respondent's attitude
toward Billetdoux was colored by the fact that he had testified as a
Board witness in an earlier proceeding against the respondent and had
sponsored certain concerted or union activities among the employees,
particularly in view of the remarks addressed to Billetdoux by Juckett,
the respondent's president, and in view of General Superintendent
Foster's admission that he knew of Juckett's resentment against Billet=
doux because of his testimony. The Trial Examiner further found
that the respondent's discriminatory attitude was clearly evidenced by
the fact that Foster singled Billetdoux out and ordered him, alone of
all the respondent's employees to keep out of the shop at the main,
plant in Hudson Falls, and further by Foster's admission that Billet-
doux's transfer to the Thompson plant was disciplinary at least in
part. We agree with these findings.
56 N. L. R. B:, No. 297.,
'1654
On April 27, 1944; the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it ceade-and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to notice served on all parties, oral' argument was held before
the Board in Washington, D. C. on June 1, 1944, in which only the
THE SANDY HILL IRON & BRASS WORKS 1655
2. The Trial Examiner also found that the, respondent, by transfer-
ring Billetdoux to the Thompson plant, changed. his employment
status to a less permanent or less certain basis and to a type of labor
which was more arduous and less agreeable than formerly. He further
found that in making this transfer the respondent was Motivated by
the fact that Billetdoux had testified against the respondent in. the
prior hearing and had engaged in concerted activities. We do not
agree with these findings. The record shows that the respondent had
undertaken the task of removing certain machinery ,from the Thomp-
son plant; that for this purpose it required the services of some nine
employees, including several laborers (Billetdoux's classification) ;
that it accordingly transferred some employees from its main plant
at Hudson Falls to the Thompson plant; and that at the time of
hearing it had' already transferred some of these employees back to
the Hudson Falls plant. At the time of the hearing Billetdoux had
not been refused a transfer back to the Hudson Falls plant. Although
the respondent's alleged reasons for selecting Billetdoux for tempo-
rary transfer to the Thompson plant are shifting, inconsistent, and
'incredible, as'the Trial Examiner found, thus rendering its true mo-
tive highly suspicious, we' are not convinced that the respondent's
motive was discriminatory in view of its need for employees at the
Thompson plant and Billetdoux's availability for that purpose.
Under'all the circumstances, we are satisfied that Billetdoux's claim
of discrimination is premature, and that, if and when the respondent
takes action against him without proper cause, a claim of discrimina-
tion may then properly be m ide.
ORDER
Upon the basis of the foregoing findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor Rela-'
tions Act, the National Labor Relations Board hereby orders that the
complaint against the respondent, The Sandy Hill Iron & Brass Works,
a corporation, Hudson Falls, New York, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Cyril W. O'Gorman, for the Board
Mr. Walter C. Ross, of Springfield , Mass., for the respondent.
Mr. Wtlliant H. Brady, of Albany, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on January 25, 1944, by George Billetdoux, the Na-
tional Labor Relations Board, herein called the Board, by the Regional Director
for the Second Region (New York, New York ), issued its complaint , dated March
4, 1944, against The Sandy Hill Iron & Brass Works , a corporation , Hudson Falls,
New York, herein called the respondent , alleging that the respondent had engaged
1656 DECISIONS .OF NATIONAL LAB ORIRELATIONS BOARD
in and was engaging'i'n, unfair labor practices-affecting conimerce within'the
meaning'of.Section 8 (1), (3), and (4)^ and Section 2 (6) 'and (7) of'the National
Labor'Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint,
accompanied, by notice of `hearing thereon, were duly, served upon the respondent,
upon George Billetdoux, and upon International Association of Machinists,
affiliated with the American Federation of Labor, herein called the Union.
With respect to the unfair labor practices, the'complaint; as amended at the
hearing, alleged in substance that : (1) on or' about January 14, 1944,' the re-
spondent transferred George Billetdoux from sits Hudson Falls plant to its
Thompson .plant, assigned him to more arduous and less agreeable work, and,
paid him at a lower rate than that paid to,other employee`s doing similar work
at the Thompson plant because Billetdoux, on or about December 2, 1943, had
given testimony at a hearing held by the Board in a prior case and'h id joined
or assisted the Union or engaged in other concerted' activities for the purposes
of collective bargaining, or other mutual raid or,protection ; and (2) from' on or
,about, December 5, 1942, up to the date of,the ,complaint, the respondent : dis-
paraged and expressed disapproval of the Union ; interrogated its employees
concerning their union affiliations; urged, persuaded and warned its employees
to refrain from assisting, becoming members of or remaining member's of the
Union ; and kept under observation' the activities of the Union and the concerted
activities of its employees for the purpose of self-organization or improvement
of working conditions and for the purposes of, discouraging membership in or as-
sistance to the Union.
The respondent, by its answer verified on March 14, 1944, denied that it. had
committed the unfair labor practices alleged in the complaint.
'Pursuant to notice, a hearing was held on March 16, 1944, at Glens Falls, New
York, before David Karasick, the undersigned Trial. Examiner duly designated
by the Chief Trial Examiner. The Board and. the respondent were, represented
by counsel, and the Union by its international representative.' All partiespar-
ticipated in the hearing and were afforded full opportunity to be heard, to ex- -
amine and cross-examine witnesses, and tb introduce evidence bearuig on` the
issues m
At the opening of the hearing,the undersigned granted, without objection, mo-
tions of counsel for the Board to amend the complaint in certain minor parti-
culars.3 At the conclusion of the case, counsel for the Board moved to conform
the complaint to the proof insofar as formal matters were concerned. . The • moz
tion was granted without objection. A similar,motion on behalf of the, respond-
ent with respect to its answer was likewise granted without objection. , None
of the parties availed themselves of the opportunity, to present oral argument'
before the undersigned. ' The parties were afforded an opportunity to file briefs
with the undersigned. On April 1, 1944, the respondent filed a brief. No briefs
were filed on behalf of the Union or of the Board.
The undersigned granted , over objection by counsel for the respondent, a motion to
intervene filed on behalf of the Union Motion of the respondent to continue the hearing
for one week for the purpose of giving it additional time to prepare because of the appear-
ance filed by the Union in the proceedings was denied
i The Union filed an appearance but did not present witnesses on its own behalf or
examine of ci ose-examine any of the witnesses of the other parties , or otherwise participate
in the proceedings ` -
IThe motions so granted were to amend the complaint to'allege that: (1). the Regional
Director issuing the complaint had been designated as agent for the Board by virtue of the
Board ' s Rules and Regulations Seiies 3, rather than Series 2 , as amended ; and (2) that
the respondent ii as engaged in the manufacture , among other products , of automatic towing
winches, rather than automobile towing winches.
THE SANDY HILL IRON & BRASS WORKS 1657
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
i
1. THE BUSINESS OF THE RESPONDENT
The Sandy Hill Iron & Brass Works, a' New York corporation, with its prin-
cipal office and place of business in Hudson Falls, New York, is engaged in the
manufacture, sale, and distribution of paper mill machinery, deck machinery,
and automatic towing winches. The respondent also operates a plant located at
Thompson, New York.'. The principal raw materials used by the respondent in
its manufacturing operations are gray iron castings, steel castings, alloy steel
plates, and steel shaftings. During the year prior to March 1, 1944, the respond-
ent purchased raw materials valued in excess of ($250,000, of which approxi-
mately 90 percent was shipped to the respondent from places located outside the
State of New York. During the same period of time the respondent sold finished
products valued in excess of $500,000, of which approximately 90 percent was
shipped by the respondent to places located outside the State of New York.
The respondent concedes that it is engaged in commerce, within the meaning of
the Act'
II. THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated with the American Federa-
tion of Labor, is a labor organization which admits to membership employees
of the respondent.
M. THE UNFAIR LABOR PRACTICES
A. The discriminatory transfer of George Btlletdouo
George Billetdoux was first hired by the respondent in June 1941. Between
August and November 1942, he took an active part in attempting to induce the
employees of the respondent to organize. He was discharged on November 6,
1942. Up to that time he had been employed by the respondent as a laborer
and fire equipment inspector. He was reinstated on September 20, 1943; and was
assigned 'to work as office janitor at the Hudson Falls plant of the respondent.
On December 2, 3 and 4, 1943, the Board held a hearing in a complaint pro-
ceeding involving,the,respondent in the present case.° One of the issues in the
prior proceeding involved the question whether or not Billetdoux, the complain-
ant in this case, had been discriminatorily discharged. Billetdoux testified as a
witness for the Board in that proceeding. On December 29, 1943, the Trial Ex-
aminer issued, s Intermediate Report finding, among other things, that Billet-
doux had been discharged on November 6, 1942, in violation of the Act, and
that he had been reinstated by the respondent on September 20, 1943. Among
other matters, the Trial Examiner recommended that Billetdoux be awarded
back pay by the respondent for such losses as he had sustained. through unem-
ployment during the period of discrimination. On February 24, 1944; the'Board
"he Thompson plant, located a distance of some 8 or 10 miles from Hudson Falls, had
formerly been a, paper mill The plant was bought by another company and the respondent,
as agent of the purchaser, has been engaged in dismantling the equipment foi shipment to
another destination.
The foregoing findings of fact concerning the business operations of the respondent are
based upon a stipulation entered into between counsel for the Board and counsel for the
respondent. '
U Matter of The Sandy Hill Iron & Brasa..Works and ' International Association of
Machinists, A. F. of L., 55'N. L R. B. 1.
1658 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued its Decision and'Order ° affirming and adopting the findings, conclusions,
and recommendations contained in the Trial Examiner's Intermediate Report.
Billetdoux was absent,from work for 3 or 4 days prior to December 18, 1943,
because he was suffering from'a cold. He returned to work on that day. During
the course of the day, Frank A. Juckett, president of the respondent, met Billet-
doux and mentioned to him the fact that he had been away from work. Billet-
doux stated that he had been sick for 3 or 4 days, to which Juckett replied, "You
know, Billetdoux, you ought to, be sick, anybody going up there -and testifying
against Mr., Reilly s the day,you did, the I:ord is just punishing you for it."
Billetdoux testified that on January 14, 1943, Samuel Foster, production, manager
and general superintendent of the respondent, told him that he was going to be
,transferred to the Thompson plant 10 the following morning._ Foster also told
Billetdoux that the was not to enter the Hudson Falls plant, and warned him that
he would be discharged if he did so. This testimony of Billetdoux was corrobo-
rated by Foster. Foster issued instructions to the guards on duty the following
day at the Hudson Falls plant that Billetdoux 'was not to be permitted to enter the
'plant. A few hours after Foster had told Billetdoux that he was going to be
transferred, Billetdoux passed through the plant in order to carry a box of paper
to the boilerroom and was seen by President Juckett who said, "My God, what are
you doing down in the machine shop? Didn't you have orders to keep out of here
or else you would be fired?" Billetdoux replied that he must have misunder-
stood Foster's orders-which he thought were to go into effect on the following
'day.1' -
In accordance with Foster's instructions, Billetdoux went to work at the Thomp-
son plant on Saturday, January 15, and worked the following Monday and Tues-
day. His work consisted of carrying pipe, unloading machinery, and other duties
of a general laborer. His rate of pay was the same as it had been at the plant at
Hudson Falls. Billetdoux last worked for the respondent on, January 19.
About that time, 'he was injured and 'qn the morning of,January 19 he secured
permission from the, respondent's office to consult a doctor. That afternoon he
met President Juckett on the street in Hudson Falls. Juckett asked Billetdoux
why he was not working and Billetdoux replied that he had been injured and ob-
tained permission from the respondent's office to see a doctor. Billetdoux testified
without contradiction as follows concerning Juckett's response:
He [Duckett] says, "My God, I tell you," he says, "Everybody'give testimony
like you give up there against Mr. Reilly, God is going to punish him for it."
He says, "I have no sympathy for you whatever."
On January 26, 1944, Billetdoux underwent an operation for hernia. He has not
returned to his job since that time because of instructions from his doctor to
remain away from work for 3 months following the operation.
-, 55 N. L. R. B. 1. ' 1
8 Billetdou)e had testified in the prior proceedings with respect to certain activities of
Phillip J Reilly, the respondent's treasurer, which were found by the Board in its'Decision
to have constituted unfair labor practices. -
0 The foregoing findings are based upon the undenied and credible testimony of Billetdoux.'
10 See footnote 4, supra. -
u Foster testified that he discussed the question of Billetdoux's transfer with Juckett
after it was done, and that he thought the discussion occurred the following day. Billet-'
doux's testimony concerning the statement made to him by Duckett on January 14 was not
denied. Since Billetdoux testified on the whole with convincing certainty as to the dates
upon which the various events in question occurred while Foster was often indefinite and
uncertain, as in this instance, as to specific dates and times, the undersigned finds that
Juckett made the foregoing statements to Billetdoux on January 14.
THE SANDY' HILL IRON & BRASS WORKS 1659
Concluding findings
The complaint alleges that the work to which Billetdoux was transferred at the
Thompson plant was more arduous and less agreeable than that which he had
performed at the Hudson-Falls plant." Prior to his discharge by the respondent
on November,6,1942, Billetdoux had worked as a laborer at the Hudson Falls plant.
The duties of laborers are to unload coal, coke, and pig iron, clean up the yard
at the plant, shovel snow, put salt on the sidewalks, mow the lawn, and do other
work of a similar nature to which they may be assigned. Because of Billetdoux's
experience as a cleaner, be was often used, however, to wash windows and to
clean about the plant. `'After Billetdoux was reinstated by the respondent on
September 20, 1943, he worked as office janitor at the Hudson Falls plant, and per-
formed the usual duties of a janitor. Upon being transferred to the Thompson
plant, Billetdoux's duties consisted of unloading machinery, carrying heavy pipe,
working with pick and shovel, and laying planks on a trestle at the plant where
coal was received so that trucks could be driven in. The Thompson plant is located
8 or 10 miles from Hudson Falls where Billetdoux lives Nine persons were em-
ployed at the Thompson plant at the time of Billetdoux's transfer, while approx-
imately 600 persons were employed at the plant at Hudson Falls. Work at the
Thompson plant is only temporary, while laborers are continually employed at the
Hudson Falls plant. Foster testified that he did not know what would-be done
with respect to Billetdoux- after the work at the Thompson plant had been com-
pleted. Thus, while Billetdoux was employed prior to his discriminatory dis-
charge on November 6, 1942, at work of a permanent nature, his status was
changed as a result of the transfer to that of an employee whose job was tempo-
rary and whose continued employment thereafter was uncertain. Upon the fore-
going facts and upon the basis of the entire record, the undersigned finds that the
work to which Billetdoux was transferred at the Thompson plant was of a tem-
porary nature and was more arduous and less agreeable than the work which he
had performed at the Hudson Falls plant,'and that his continued employment by
the respondent thereafter was uncertain.
The question remains, however, whether the respondent transferred Billetdoux
for a lawful reason-or whether it did so because it wished to discriminate against-
him Samuel Foster, production manager and general superintendent, of the
respondent, testified that Billetdoux was assigned the duties of office janitor, at the
time he was reinstated on September, 20, 1943, because the regular office janitor
was ill, and that Billetdoux was transferred to the Thompson plant after the reg-
ular janitor had returned to his job and had recovered sufficiently to'perform his
work. `
Hughes, the regular office janitor, was suffering from a serious heart ailment
and had been absent from work 3 or 4 months prior to the time Billetdoux was
reinstated. Hughes returned to work about October 4, 1943, and both he and
Billetdoux worked together until Billetdoux was transferred. Although Foster
testified that he ordered Billetdoux to go to work at the Thompson plant after
Foster saw that Hughes had regained his strength sufficiently to perform his
duties unaided, he admitted that he had not spoken to Hughes or asked him if
he was physically able to do his work without Billetdoux's aid before the latter
was transferred: Foster's,conclusion'as to Hughes' physical condition, according
to Foster's testimony, was based upon his observation of Hughes' appearance.
12 The complaint also alleges that Billetdoux's wages were lower than those pald,tol other
employees doing similar work at the Thompson plant. The evidence does not support this
allegation. '
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foster explained in this connection that: "You can tell by looking at a man
whether he is gaining or failing." He admitted that in the regular course of
his duties it was necessary for the office janitor to walk considerable distances
and to climb quite a few flights ,of stairs while carrying buckets'of water and
baskets of. waste paper. Foster admitted, that Billetdoux would not have been
sent to the Thompson plant "quite so quickly"'if he had not been in the habit of
talking to the other employees in the plant.
. 'In view of Foster's admissions that he had made no attempt to ascertain
whether Hughes 'was physically able to perform his work without the aid of
Billetdoux prior to the latter's transfer other than i by reason of his general
observation of Hughes' appearance, that-the duties of the office janitor required
climbing flights of stairs and walking considerable distances while carrying
baskets of waste paper and buckets'of water which would -be difficult of per-
formance by a person suffering from a serious heart ailment, and'. that Billet-
doux's transfer would not,have occurred "quite so quickly" if he had not engaged
in conversations with employeesr in ,the plant,,the undersigned is convinced and
finds that the reason• for Billetdoux's'transfer was not because Hughes had
recovered sufficiently to perform his work alone.
,Foster testified that one of the reasons for Billetdoux's transfer was that he
made a practice of, talking to -other employees in, the shop and thus interfered
with their work. The respondent has no-rule which prohibits the employees from
talking to one another. , The uncontradicted testimony of Billetdoux shows
that while working as a janitor it was necessary for him, to bring waste paper
to the boilerroom from two to four times a day, that in going from the office to
the boilerroom it was necessary to pass through the shop, that he also went
through the.shop to obtain cloths and soap powder from the stockroom, and that
on, one occasion he went to the shop for the .purpose of having a mop repaired.
Foster could not state definitely how many times he saw Billetdoux talking
to. other employees in the shop, but testified that he saw him so engaged on "sev-
eral" occasions, and admitted that he, did not know to whom Billetdoux was
talking or what he was talking about on any of these occasions. The first time
Billetdoux was ever told to keep out of the shop was when he received such
instructions, from Foster on January 14, 1944; and Foster admitted that this was
the first time.that he had ever issued an order to the guards to keep an employee
out of the shop, and,further admitted that no other employee was so restricted.
. The, fact, that Billetdoux in the normal course of his work was required to go
to the.shop at various times during the,day, that Foster did' not know to which
employees, Billetdoux talked or what'heitalked about, that no•employee testified
that Billetdoux engaged him in conversation and thereby interfered with his
work, that Billetdoux had, never been told to keep out,of the shop prior to the
time he was told •he, would be transferred, and that the-respondent has no rule
against talking, lead the undersigned'•to the conclusion that Billetdoux was not
transferred because he was in the habit of interfering, with the work of other
employees by talking to them in the shop. •
According, to Foster, the reason Billetdoux was assigned to the Thompson
plant rather than to another department, in the plant, at Hudson Falls was be- ,
cause ' Billetdoux had once been, convicted, of arson, that the plant protection
service of the military forces had- cautioned Foster several times to -be careful
of arsonists, and that, Foster feared that Billetdoux •might,•again attempt to.
commit arson. The fact that Billetdoux had been convicted of arson was known
to,the respondent at the time he was•first'employed in June 1941.• In April 1942,
Billetdoux as well-as all other persons theh' employed 'by the"respondent were'
THE SANDY HILL IRON & BRASS WORKS. 1661
required to, fill out written applications for employment, at the request of the
United States Army. The details as to Billetdoux's conviction were set forth
in that application, but neither the War Department or any other government
agency then or later objected to his continued employment by the respondent.
One of Billetdoux's duties after that time and until he was discharged on Novem-
ber,6, 1942,. was to inspect hose and hydrants used as fire protection equipment
at the Hudson Falls plant to see that it was ready for use. On cross-examina-
tion by counsel for the Board, Foster admitted that in his capacity as trustee
of a church in Hudson Falls he had asked Billetdoux to perform janitorial serv-
ices in connection with the church at about the time that he had ordered Billet-
doux transferred to the Thompson plant, that Billetdoux accepted the job, and
that he continued at such employment until he sustained the ,injury above noted.
Foster, explained that his fears that Billetdoux might commit arson extended to
the Hudson Falls plant but not to the church because "he might feel some resent-
ment" toward the respondent which he would not feel toward the church.
-Neither Foster nor any other witness testified as to any word or act on the part
of Billetdoux which would indicate in any way that he harbored resentment
against the respondent.
The undersigned is not unmindful of the fact that a wide measure of latitude
is to be accorded an employer in taking such steps as he feels are reasonably
necessary in protecting his property. But the test to be applied in such a case
as this is whether the reason assigned by the employer is the motivating force
which; impelled it to act as it did, or is, instead, but a pretext which is used to
conceal the true reason for its action. On the basis of this record, the under-
signed is convinced and finds that the latter is the case, and not the former.
The record shows that there were other jobs at the Hudson Falls plant of the
kind which Billetdoux could have performed,, and at which he was actually
employed prior to his discharge on November 6, 1942, and long after the respond-
ent had knowledge of his conviction for arson. At the time of his discharge, it
will be recalled, Billetdoux was employed as a laborer at the Hudson Falls plant.
Since Billetdoux was reinstated, the respondent has employed at all times from
20 to 60 laborers at the Hudson Falls plant., Some of these laborers were hired
after Billetdoux was reinstated and up to as late a period of time as 2 or 3 days
prior to the hearing.13
,In light of the fact that no steps were taken by the respondent to transfer
Billetdoux prior to January 14, 1944, although the respondent had full knowl-
edge of Billetdoux's conviction for arson from the time he was first employed
in June 1941 and such fact had been known to the military- authorities since
April 1942 and no action had been taken by them with respect thereto, that the
respondent had enough confidence in, Bill etdoux's reliability to. assign him the
task, among others, of inspecting fire protection equipment,. that Foster requested
Billetdoux to perform janitorial services at the church at, the very time Foster
professed that he feared Billetdoux might again attempt to commit arson, and
that new employees have been hired since; Billetdoux• was reinstated for the
same kind of work which Billetdoux had satisfactorily performed prior to his
discharge on November 6, 1942, convince the undersigned, and he'so' finds, that
the -reason Billetdoux was transferred to the Thompson plant rather than to
another department in the plant at Hudson Falls was not because the respondent
feared that he might engage in acts of arson.
11 The respondent does not follow a strict rule of seniority, but it does give preference in
employment to older employees if their abilities are equal to those of other employees.
Foster admitted that Billetdoux had satisfactorily performed the duties of a laborer.
587T84-4h-vol. 56-106
1662 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
In its Decision in the prior case 14 the Board found that Billetdoux was dis-
charged by the respondent on November 6, 1942, because he had been active in
attempting to promote self-organization among the employees. The`uncontra-
dicted' testimony in the record in the present case shows that approximately 2
weeks after Billetdoux had testified as a witness for the Board in the prior case,
President Juckett stated that he felt that Billetdoux's testimony about Treasurer
Reilly had not been true' and expressed his resentment by telling Billetdoux
"... you ought to be sick ... the Lord is just punishing you for it." A few
days after Billetdoux had been transferred, Juckett in substance reiterated these
statements. Foster admitted that he had been told by Juckett that Billetdoux's
testimony about Reilly had been false.
Juckett's resentment toward Billetdoux because he had testified in a manner
which Juckett considered to be untrue, togetlier with the fact that Billetdoux
was transferred a short'time after he had testified, that the reasons assigned
by the respondent for the transfer are not convincing, and that jobs of the kind
which Billetdoux satisfactorily performed prior to his discharge have been avail-
able since he was reinstated convince the undersigned that-the reason for Billet-
doux's transfer was because he testified in the prior case. Whatever opinion
the respondent may have entertained as to the truth or falsity of Billetdoux's
testimony, it was not justified, for that reason, in taking unfavorable' action
against him with respect to the hire, tenure, terms, or conditions ' of his
employment.16
Nor can the undersigned overlook the fact that Billetdoux, as the Trial Ex-
aminer and the ' Board found in the prior case, was foremost among the re-
spondent's employees who were active in, their attempts to form a union and to
secure self-organization in the plant.' On cross-examination by counsel for the
Board, Foster admitted that he "may have" told an agent of the Board with
whom he discussed the matter 'of Billetdoux's transfer that there was only a
handful of employees at the Thompson plant, to whom Billetdoux could talk.
The record shows that approximately 600 persons are employed at the plant at
Hudson Falls while 9 persons were employed at the Thompson plant at the time
Billetdoux was transferred. As noted above, the record does not support the
respondent's contention that one of the reasons for Billetdoux's transfer was that
he talked to other employees at the Hudson Falls plant and thereby interfered
with their work. In this connection, the record does show, however, that the
order which Foster issued on the day of the transfer, prohibiting Billetdoux from
entering the Hudson Falls plant, applied only to Billetdoux among all the em-
ployees of the respondent and no such order had ever been issued before with
,respect to any other employee. In light of these facts and on the basis of the
entire record, the undersigned finds that the respondent transferred Billetdoux,
not only because he testified under the Act, but for the additional reason that
it knew he was an active sponsor and adherent of the union and therefore
wished to isolate him from the main body of the-respondent's employees.
The undersigned accordingly finds that the respondent transferred George
Billetdoux from the Hudson Falls plant to a temporary job at the Thompson
plant which was more arduous and less agreeable and which changed the status
of Billetdoux from' that of a permanent employee to that of a person whose
continued employment thereafter was uncertain because he gave testimony under
the Act and because of his concerted and union activities. The undersigned
1455N L R. B. 1.
0 Cf. Matter of The Kramer Company, 29 N. L. R B. 921.
THE SANDY HILL IRON & BRASS WORKS 1663
further finds that by so transferring Billetdoux, the respondent discriminated
against him in regard to the hire, tenure, terms, and conditions of his employ-
ment, thereby discouraging membership in a labor organization and interfering
with; restraining, and coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
No'evidence was adduced by counsel for the Board in support of those allega-
tions of the complaint which alleged that the respondent had disparaged and
expressed disapproval of the Union ; interrogated its employees concerning their
union affiliations ; urged, persuaded, and warned its employees to refrain from
assisting, becoming members of or remaining members of the Union; and kept
under observation the activities of the Union and the concerted activities of its
employees. The undersigned will therefore recommend that the complaint be
dismissed insofar as such allegations are concerned.
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. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and' desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the, respondent discriminatorily transferred George
Billetdoux because he gave testimony under the Act and because of his concerted
and union activities. Billetdoux underwent a surgical operation on January 26,
1944, and was instructed by his doctor not to return to work for 3 months after
the operation was performed. In order to effectuate the policies of the Act, the
undersigned will recommend that the respondent upon application by Billetdoux
at such time as he is physically able to return to work, offer Billetdoux full re-
instatement to his former or a substantially equivalent position at the Hudson
Falls plant, without prejudice to his seniority and other rights and privileges.
The undersigned will further recommend that the respondent make Billetdoux
whole for any loss-of pay he may suffer by payment to him of a sum of money
equal to the amount which he normally would have earned as wages during the
period from a date five (5) days after his application for reinstatement to the
date of the respondent's offer of reinstatement, less his net -earnings'..' during
such period"
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
2613y "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred. but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal , State, county, municipal, or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
11 Cf. Matter of J. W. Greer Company, 52 N. L. R. B.,1341.
A
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
(1) International Association of Machinists, affiliated with the American
Federation of Labor, is a labor organization,' within the meaning of Section 2 (5)
of the Act
2. By discriminating against George Billetdoux because he gave testimony
under the Act, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of'Section 8 (4) of the Act. '
3. By discriminating in regard to the hire and tenure of employment and the
terms and ' conditions of employment of George Billetdoux and' thereby dis-
couraging membership in a labor organization, the respondent has engaged in'and
is engaging in unfair labor practices, within the meaning of'Section 8 (3) of
the Act.
4. 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 (1) of the Act.
5. The aforesaid labor -practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent, has not' engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act by disparaging and expressing disapproval
of the Union ; by interrogating its employees concerning their union affiliations ;
by urging, persuading, and warning its employees to refrain from assisting,
becoming members of or remaining members of the Union ; or by keeping under
observation the activities 'of the Union and the concerted activities of its
employees.
RECOMMENDATIONS
Upon the basis of the above findings, of fact and conclusions of law, the
undersigned recommends that the respondent, The Sandy Hill Iron & Brass
Works, a corporation, its officers, agents, successors, and assigns shall:
1. Cease and desist from : '
(a)' Transferring or otherwise discriminating against any of its employees
because they have given testimony under the'Act :
(b) Discouraging membership in international Association 'of Machinists,
affiliated with the American Federation of Labor,'or id any other labor organi-
zation of its employees, by transferring such employees or in any'other manner
discriminating in regard' to their hire and tenure of employment or any terms
or conditions of their 'employment because' of membership in, or activity in
connection with, International Association of Machinists, 'affiliated' with the
American Federation of Labor : -
(c) In any other manner interfering with, restraining, 'or coercing its em-
ployees in the exercise of their right to self-organization, 'to form, join, or
assist labor organizations, to bargain collectively, through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2 Take the following affirmative action which the undersigned' finds will
effectuate the policies of the Act: "
('a) ' Upon application by George Billetdoux at such time as he is physically
able to return to work, offer him full reinstatement to'his former or substantially
equivalent position at the Hudson Falls plant, without prejudice to 'his -seniority
and other rights and privileges.
THE SANDY HILL IRON Sc BRASS WORKS 1665
(b) Make whole George Billetdoux for any loss of pay the may suffer, as set
forth in Section V, above.
(c) Post immediately in conspicuous places throughout the plants located
at Hudson Falls, New York, and at Thompson, New York, and maintain for a
period of at least sixty (60) consecutive days from the date of posting notices
to`the employees stating: (1) that the respondent will not engage in the conduct
from which it is recommended that it cease and desist in paragraph 1 (a), (b),
and (c) of these recommendations; and (2) that the respondent" will take the
affirmative action set forth in paragraph 2, (a) and (b) of these recommenda-
tions ; and (3) that the respondent's employees are free to become or remain
members of International Association of Machinists, affiliated with the Amer-
ican Federation of Labor, and that the respondent will not discriminate against
any of its employees because of membership in or activity on behalf of that
labor organization;
(d) File with the Regional Director for the Second Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the'respondent
has complied 'with the foregoing recommendations.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent has engaged in unfair labor practices by disparaging and
expressing disapproval of the Union; by interrogating, its employees concern-
ing their union affiliations ; by urging, persuading, and warning its employees
to refrain from assisting, becoming members of or remaining members of
the Union: or by keeping tinder observation the activities of the Union and
the concerted activities of its employees.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that he has complied with the foregoing recommendations, the
National Labor Relations ,Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of'Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations,' file with- the Board, Rochambeau
Building, Washington,,D.,C., an original and four copies of a statement in writ-
ing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or ob-
jections) as he relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing within ten (10) days from the date of the order transferring the case
to the Board.
,
DAVID KARASICK,
Trial Examiner.
Dated April 27, 1944.
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