Whitin Machine Works

National Labor Relations Board - Board Decisions

Jul 21, 1952

100 N.L.R.B. 279 (N.L.R.B. 1952)

WHITIN MACHINE WORKS 279
Accordingly, we find that all production and maintenance em-
ployees at the Employer's South Mill No. 2 and North Mill No. 1,
Terre Haute, Indiana, including truck drivers and temporary straw-
stackers, but excluding inspectors, watchmen, storekeepers, office jani-
tor, office clerical employees, and all guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
WHITIN MACHINE WORKS and UNITED STEELWORKERS OF AMERICA,
CIO. Case No. 1-CA-09. July 21, 1952
Decision and Order
On December 28, 1951, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act, 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. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.,'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions , and recommendations. 19
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
' The Respondent 's request for oral argument is hereby denied , as the record and brief
adequately present the issues and positions of the parties.
n Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Houston and Murdock].
The Trial Examiner 's recommendation of dismissal of the allegations of the complaint
with respect to Cahill 's discharge, as well as his recommendation of a limited cease and
desist order, are hereby adopted in the absence of exceptions by the General Counsel.
100 NLRB No. 52.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, Whitin Machine Works,
Whitinsville, Massachusetts, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
CIO, or in any other labor organization of its employees, by discrimi-
natorily discharging or refusing to reinstate any of its employees or
in any other manner discriminating in regard to their hire or tenure
of employment, or any term or condition of employment.
(b) In any like or related 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 United Steelworkers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized 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 Raymond M. Tancrell immediate and full reinstate-
nient to his former or substantially equivalent position, without preju-•
dice to his seniority or other rights or privileges.
(b) Make whole Raymond Tancrell, in the manner set forth in
"The Remedy" section of the Intermediate Report, for any loss of
pay he may have suffered as a result of the discrimination against
him.
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and other records
necessary to determine the amount of back pay due and the right of
reinstatement under the terms of this Order.
(d) Post in its offices and place of business at Whitinsville, Massa-
chusetts, copies of the notice attached as Appendix to the Intermediate
Report.4 Copies of said notice, to be furnished by the Regional Di-
rector for the First Region, shall, after being duly signed by Re-
spondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for at least sixty (60) con-
secutive days thereafter in conspicuous places, including all places
' This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof , the words "A Decision and Order." 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."
WHITIN MACHINE WORKS 281
where notices to employees are customarily posted. Reasonable steps
shall be taken by 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 Re-
spondent has taken to comply herewith.
Ir:IS''FURTHER ORDERED that the complaint, except with respect to
the discharge of Raymond M. Tancrell, be, and it hereby is, dismissed.
Intermediate Report
STATEMENT OF TILE CASE
Upon an amended charge filed by the United Steelworkers of America, CIO,
hereinafter called the Union, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for the First Region (Boston, Massa-
chusetts), issued a complaint dated July 27, 1951, against Whitin Machine Works
hereinafter called Respondent, alleging that the latter had engaged and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act, as amended, 61 Stat. 136, 29 U. S. C., Supp. I, Sec 141, et aeq.,
hereigiifter referred to as the Act.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about April 18, 1951, and on or about April 26, 1951, Respondent
discharged Raymond M. Tancrell and Ethel Cahill, respectively, for the reason
that they joined or assisted the Union or engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection of
Respondent's employees. The complaint also alleged that on or about April
15, 1951, Respondent interrogated its employees concerning their union and
concerted activities.
By its answer duly, filed, Respondent denied the commission of any unfair
labor practices but admitted that it had discharged Tancrell on or about April
18, 1951. The answer specifically pleaded that Tancrell was a supervisory
employee of Respondent and that Mrs. Cahill had voluntarily resigned on or
about April 20, 1951.
Pursuant to notice, a hearing was held at Whitinsville, Massachusetts, on
and between September 5-11, 1951, before the undersigned Trial Examiner.
The General Counsel, Respondent, and the Union were represented by counsel.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertaining to the issues was, accorded all parties. Since
the close of the hearing, briefs have been received from the General Counsel
and Respondent and have been duly considered. -
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
1. THE BUSINESS AND ACTIVITIES OF RESPONDENT
Whita(,n Machine: Works is a Massachusetts corporation engaged at Whitins-
ville, Massachusetts, in the manufacture, sale, and distribution of textile ma-
chinery. It annually purchases raw materials, consisting principally of steel,
iron, and other metals, having a value in excess of $250,000, of which approxi-
mately 90 percent is shipped to Respondent at Whitinsville, Massachusetts, from
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
points outside the Commonwealth of Massachusetts. Its annual sales exceed
$250,000 in value, of which more than 90 percent is shipped to customers located
outside the Commonwealth of Massachusetts. It was conceded and I find that
Respondent is engaged in commerce within the meaning of the Act.
II. TIIE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization within'the mean-
ing of Section 2 (5) of the Act.
III. TIIE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
Respondent is one of the largest textile machinery manufacturers in the coun-
try and, at the time of the hearing, engaged the services of approximately 5,600
employees. Of this number, about 3,200 production and maintenance employees
were represented for collective bargaining purposes by the United Steelworkers
of America, and approximately 50 by the Patternmakers Association. The mat-
ters with which we are here specifically concerned, however, involve only em-
ployees in Respondent's accounting department which normally employs ap-
proximately 150 persons, supervisory and clerical.
In February 1951,' a number of employees in the accounting department, in-
cluding Raymond Tancrell, signed and presented a petition to management re-
questing an increase in pay and asked that they be placed on a regular salary
rather than the existing hourly rate basis. Shortly thereafter, Tancrell was told
by Garcelon, his immediate supervisor, that Max Thompson, Respondent's con-
troller in charge of the entire accounting department, was "very much disap-
pointed" in Tancrell because he had signed the foregoing petition and "as far as
Mr. Thompson was concerned, [Tancrell] was all done."
The petition bringing no immediate results, a number of the employees, early
in March, determined to seek admission to and the aid of the Union. Tancrell
obtained 175 application cards for such union membership, personally dis-
tributed approximately 50 to that many individuals and received 30-40 signed
applications. The remaining 125 cards he delivered in quantities of 10 to 20
to those who assisted him in the drive. The fact that he was engaged in such
organizational work "came out" in a conversation he had shortly thereafter
with Garcelon.
On March 21 Thompson caused a memorandum to be distributed among the
employees in that department informing them that following the petition afore-
mentioned, he "had recommended increases for some individuals" and that
"top management . . . is giving . . . very sympathetic consideration . . . to
the question of salary pay vs: hourly pay." The memorandum expressed will-
ingness by Thompson to personally discuss the wage problem with any of the
employees in the department. Tancrell sought and obtained an interview with
Thompson on March 22, during the course of which Tancrell questioned Thomp-
son about the remark attributed to the latter by Garcelon that so far as Thompson
was concerned, Tancrell was "done." Thompson replied that "he was dis-
appointed because [Tancrell] signed the petition because he was an assistant
supervisor; . . . that [Tancrell] lacked character to stand on his own two feet
to get what he wanted, but rather saw the labor organization to- attain [his]
aims ; that [Tancrell] was 5,000 miles away in [his] thinking and attitude toward
the Company." Tancrell stated "that the Union in the shop had attained more
1 All references to dates herein are to the year 1951 , unless otherwise noted.
WHITIN MACHINE WORKS 283
for [the production] employees in the last year than the office employees had
ever attained." Thompson replied "that if [Tancrell] was not satisfied with
[his] position at Whitin Machine Works, then the best thing for [him] to do
was to go seek a position elsewhere." 2
On April 12, Tancrell, who was employed in the statement section of the
accounting department, met Ethel Cahill, a clerk-stenographer in the methods
department, and asked her to secure for him a list of the names and addresses
of the persons in her department. When she inquired as to the purpose for
his request, he told her that it was a personal reason. She persisted, however,
and he then told her it was to be used as a mailing list by the Union. Mrs.
Cahill agreed to secure the list and prepared a document on which she typed
"Please sign your name and address." She presented it to a number of em-
ployees, asked them to sign it, and in several instances requested that they pass
it on to others for the same purpose. When some of the employees asked her
why, or for whom, the list was being circulated, she gave varying answers.
Frank DeHass was told that the list was for the payroll department; William P.
Boyd, Edward C. McNamee, Joseph Smolinski, and Albert Charbonneau were
told it was for office records ; Alfred Arterton, that it was for "some office in-
formation"; Edward H. Newbegin that it was wanted by the office ; Jennie
Palek that it was for office or personnel use. When William Neulieb inquired
about its purpose, Mrs. Cahill pointed over her shoulder in the direction of the
offices occupied by supervisory personnel and management and said : "They
want it in there." She told Avis Hawkins that Tancrell was going to send
"some information to the Union" and Mary E. Anderson that it might be "for
the office or . . . for the Union" and that the list was being circulated for
Tancrell8 After securing 47 names and addresses, she turned the list over to
Tancrell on the following day, Friday, April 13. Mrs. Cahill was ill on Monday,
April 16, and never reported again for work at the office.
On April 16, Francis Mateer, Mrs. Cahill's supervisor in the methods depart-
ment, inquired of George B. Estes, industrial engineer in charge of that entire
department, whether the latter had requested or authorized the list which had
been circulated in his department the previous Thursday and Friday. Not
having done so, and being unable to contact Mrs. Cahill, Estes, on April 16 and
April 17, interviewed a large number of employees in his department concerning _
the circulation of the list. From them he learned that Mrs. Cahill had made
the representation as to its purpose, found above. He contacted Thompson
and ascertained that neither he nor his assistant supervisor, Garcelon, had au-
thorized the circulation of the list. From Mrs. Anderson and Mrs Hawkins he
ascertained, and satisfied himself, that the list "was connected in some manner
with union work" and that it was Tancrell "who asked [Mrs. Cahill] to get
the list." Estes reported to Thompson that a "fraud" had been perpetrated on
the men in the methods department and that Tancrell was "the fellow in back
of the list ... and the manner in which it had been passed out to the people."
2 Thompson 's version of the conversation did not differ substantially from that of
Tancrell, quoted in the text. According to Thompson, he made no reference to a "labor
organization ," but merely objected to Tancrell's participation, as a supervisor, in "group
activity." l
8 The findings concerning the circulation of the list are made on the credited
testimony of the persons named in the text, other than Mrs. Cahill. She testified on
direct examination that in response to inquiries concerning the purpose of the list she only
stated that she "did not know ." On cross-examination , however , she admitted she might
have told Boyd that somebody in the office wanted the list. I find it incredible to believe
that Mrs. Cahill , and those whom she asked to circulate the list, would have secured the
47 signatures that were finally obtained if she had feigned ignorance as to the use to be
made thereof. I
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 18, Thompson called Tancrell to his office and, without questioning
him as to his connection with the list circulated in the methods department, told
him "that he had made an error ... in hiring him [on January 10, 19471....
that he showed no talent as a supervisor and . . . that [he] had to let him
go." Tancrell asked Thompson whether he "discharge[d] all employees who do
not have supervisory ability" and Thompson replied that he did not, "only
supervisors." He then instructed Garcelon to escort Tancrell out of the plant.
On April 19 Mrs. Cahill returned to the plant and went to the office of
Mrs. Hutcheson, the women's employment director, for the purpose of securing
a leave of absence due to illness. She was directed to go to the office of Frank
N. Stone, Respondent's personnel director, where she was questioned by Stone
concerning her activity in circulating the list. She stated she did not know
why it was circulated but admitted it was not for company purposes. Stone
told her that her fellow employees were incensed with her over the false reasons
assigned for obtaining the list, that he did not believe it expedient to allow
her to return to the department to work, and suggested that she resign. She
agreed that "the atmosphere was not pleasant" but did not respond to the sug-
gestion that she resign . Stone then told her to consider herself suspended and
that she would subsequently hear from him. She left the office- immediately
thereafter.
On the following day, Mrs. Hutcheson called at Mrs. Cahill' s home with the
personal belongings that the latter had left at the office, and a prepared type-
written resignation which she asked her to sign. According to Mrs. Cahill's
own testimony, Mrs. Hutcheson merely asked if she cared to sign it and put no
"pressure" on her. She thought about the matter for a few minutes and
signed the resignation. The illness which prompted her to go to the office on
April 19 for the purpose of securing a leave of absence persisted to the time of
the hearing, at which latter time she was still unable to work.
B. Concluding Findings
1. Tancrell's discharge
The evidence establishes conclusively that Tancrell's connectt onowith the
circulation of the list for the Union was the precipitating 'cause for- his dis-
charge' Regardless of any impropriety or "fraud" that may have characterized
Mrs. Cahill's conduct in securing the names and addresses on the list, Tancrell's
activity in securing the information had for its purpose the grant of assistance
to the Union and was therefore an activity protected by Section 7 of the Act.'
There is not a scintilla of evidence that Tancrell participated with or prompted
Mrs. Cahill to make the misrepresentations in which she indulged. Neither
when Tancrell and Mrs. Cahill were discharged, nor at any other time, were they
questioned as to the means and methods which Mrs. Cahill was instructed by
Tancrell to employ in securing the list.' Indeed, the record discloses that Tan-
crell gave her no instructions at all as to the manner in which the list was to
be obtained. For all that was apparent to management, Tancrell might well
4 Thompson admitted that it "accelerated" the discharge. 4(
' in pertinent part, the section reads as follows : "Employees shall have the right to
self-organization, to form, Join , or assist labor organizations . . . and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection . . ."
e Thompson categorically denied he asked Tancrell what instruction he had given Mrs.
Cahill. He was not "interested in Mr . Tancrell's . . . explanations." He drew an "in-
ference" only that Tancrell had a part in the deception.
WHITIN MACHINE WORKS 285
have instructed Mrs. Cahill to secure the list without indulging in any impro-
priety. And, because the record establishes conclusively that management
entered no objection to numerous other solicitations and activities by employees
during the work period and not related to their work, I can only come to the
conclusion that Respondent deemed it sufficient ground to discharge Tancrell
on April 18 because he had caused Mrs. Cahill to circulate the list for union
purposes!
Respondent, however, contends that Tancrell was discharged for valid cause
and that, in any event, be was a supervisor and therefore not entitled to the
protection of the Act. I find no merit in either contention.
The only reason assigned by Thompson when he discharged Tancrell, ac-
cording to the former's own testimony, was that he "showed no talent as a
supervisor." 8 Why that fact should have resulted in Tancrell's precipitate dis-
charge on April 18, 1951, was not satisfactorily explained. Garcelon, Tancrell's
immediate supervisor and the man whom Thompson expected Tancrell would
ultimately succeed as supervisor, was a younger man and Thompson "had no
reason to believe that he would leave his position soon." Thompson testified that
since ,the'sunoner of 1948 he felt that Tancrell was not showing any progress in
development as a supervisor, but admitted that he never spoke directly to him
about it. Nor did Thompson discuss the discharge with Garcelon prior to making
it effective, and though Garcelon had daily and constant contact with Tancrell,
and was his immediate supervisor, he was not called as a witness!
Notwithstanding Tancrell's alleged shortcomings, his salary was increased
from 85 cents an hour in January 1947 to the time of his discharge as follows :
March 31,1947--------------------------------------------------- $0.95
May 19, 1947---------------------------------------------------- 1.00
September 29,1947------------------------------------------------ 1.10
June 7, 1948----------------------------------------------------- 1.20
May 1,1050------------------------------------------------------ 1.30
November 20, 1950----------------------------------------------- 1.40
While five of these raises were general increases, the raise of May 1, 1950, from
.$1.2O to,$1.30, was a,merit increase approved by Thompson at Garcelon's request.
This, notwithstanding that Thompson had allegedly made up his mind in October
1949 that Tancrell was not supervisory material and did not have "the ability to
handle the fob." Though Thompson testified vaguely about certain "misconduct,"
and "leakage of confidential material and trade secrets" as part of his total case
against Tancrell, no credible testimony establishing such conduct was offered.
Not only did Thompson admit that he had no proof to support these accusations
but, according to his own testimony, when he interviewed Tancell toward the
end of March 1951, following the petition for an increase in salary, the only
complaint he voiced was Tancrell's resort to "group activity." w The latter's
'On April 17 Estes told Thompson that the list "probably was for union purposes."
On that day Thompson's course seemed "obvious ... [to him] immediately."
And in its brief, Respondent likewise states that "the actual cause of Tancrell's dis-
charge on April 18, 1951, was his failure to measure up to the standards and qualifications
of one holding a supervisory position."
• It is well settled that failure to bring forward available evidence creates a presumption
that, if produced, it would have exposed facts unfavorable to the party. N. L. R. B. v.
Remington-Rand, Inc., 94 F. 2d 862 (C. A. 2) ; N. L. R. B. v. Ohio Calcium Co., 133 F. 2d
721 (C. A. 6) ; 2 Wigmore Evidence, (3rd Ed.) Sec 285. Respondent's Exhibit 4, its
Organization Chart," dated August 1951, still shows Garcelon as supervisor.
m Thompson's criticism of Tancrell's connection with the petition was based on the
latter's alleged status as a supervisor, a status which it is hereafter found Tancrell did not
possess. It was shortly after that activity, however, that Garcelon Informed Tancrell
that "as far as Mr. Thompson was concerned, [Tancrell] was all done."
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that Thompson then told him that, other than his "attitude, . . . he
had been satisfied with [his] work," was undenied.11
According to Thompson, he had become so dissatisfied with Tancrell's progress
as an assistant supervisor by October 1949 that he came to the "realization, upon
reflection, . . . after adding up all things, that he couldn't trust him for the
job and that [he] -knew, as of then, he would either have to improve or be re-
placed." The record compels the conclusion, however, that Thompson in May
1950 must have satisfied himself that Tancrell had improved, for he then ap-
proved a merit increase of 10 cents an hour. And when Thompson was asked
to specify what occurred after October 1949 to make effective his determination
that Tancrell was incompetent to hold his position, he pointed only to an inci-
dent in 1950, the more exact time of which he was unable to fix, when Tancrell
"rubbed" his face against that of one or more girls in the office. Though Thomp-
son observed the incident "with [his] own eyes," it could not have been consid-
ered by him to be a serious impropriety, for no testimony was offered that he
criticized or even spoke to Tancrell about it. Other than that, Respondent offered
no testimony of misconduct by Tancrell until he was discharged on April 18,
1951.
Notwithstanding the finding just made, Thompson testified that in December
1950 he "finally and fully determined" that Tancrell should be replaced. When
asked what then caused him to arrive at that determination, he testified as
follows :
A. Well, I'd say re-valuation of the position that I was in, faced by a
man that wasn 't measuring up, and finally making my decision as to what
I was going to do about it. In other words I just brought it to a head in
my own thoughts.
Q. What brought it to a head?
A. I brought it to a head with my own thoughts on the matter.
It was in December 1950, according to Thompson's testimony, that he com-
menced, and continued until Tancrell was discharged, to give personal instruc-
tions to Shaw during "odd moments" so that the latter could replace Tancrell
and that he, Thompson, made use of the following 5 months to train Shaw as
such replacement. During this entire period, however, Tancrell was not ap-
prised or made aware of the fact that Shaw was being trained to replace him,
nor was Shaw called as a witness to testify as to what training he required" '
When Thompson hired Tancrell as an allbged assistant supervisor in 1947, the
latter was installed in that position without any training whatsoever and ap-
parently without the slightest knowledge of the operations of any of the divisions
of the accounting department. Why Shaw, who was already an experienced and
apparently satisfactory assistant supervisor in the budget section of the account-
ing department, could not have assumed Tancrell's position in 1949, or in
December 1950, when Thompson had not only definitely made up his mind
that Tancrell should be replaced, but was allegedly "suspected" of responsibility
"The only other specific complaint concerning Tancrell was Estes ' criticism and report
to Thompson , 3 or 4 months prior to April 1951, that he had discovered Tancrell eating
his lunch during a rest period while resting his feet on a desk and reading a newspaper.
Estes , who had no jurisdiction over Tancrell , reported this to Thompson as unbecoming
conduct . Though Tancrell had never before been criticized for such conduct, he abstained
therefrom thereafter.. While Estes had observed other employees similarly, he could not
recall ever reporting any other person. And though he drew a distinction between the
propriety and impropriety of such conduct depending on the offender 's status as supervisor
or employee , he did not know Tancrell 's status at the time.
ss See footnote 9, supra. Respondent's Exhibit 4 shows Shaw as assistant supervisor
of statements in August 1951.
WHIT1N- MACHINE- WORKS 287
for leakage of "confidential material and trade secrets," was not satisfactorily
explained. On the entire record I am unable to credit Thompson's testimony
that he fully determined in December 1950, or at any time thereafter until April
17, 1951, " to discharge Tancrell, or that he commenced training Shaw as a re-
placement in December 1950.
In sum, therefore, if Tancrell's termination was effectuated for the reasons
now urged by Respondent, no satisfactory explanation was offered why it was
not made effective earlier when all the alleged causes upon which Respondent
now relies came into existence. Apparently not any one, or even the aggregate,
of Tancrell's alleged shortcomings were deemed sufficient cause for discharge. It
was only after Garcelon was apprised of Tancrell's organization work in behalf
of tie Union and when Thompson satisfied himself that Tancrell was responsible
for the circulation of the list in behalf of the Union, that he was summarily dis-
charged in the middle of a pay period.
- Nor is it without significance that Tancrell's discharge was discussed with
J. V. Bolton, Sr., president of the corporation, during a conference attended by
Bolton, Thompson, and Stone at about the time of Tancrell's discharge. Accord-
ing to Stone, "Mr. Thompson merely reported that he felt obligated to let Mr.
Tancrell go. He indicated that he was very much dissatisfied with [Tancrell's]
services, that he was not acting as a supervisor should and felt that he should
be dismissed." I find it difficult to believe that the routine dismissal of an
alleged assistant supervisor, earning $1.40 per hour in a division employing a
permanent complement of only 4 persons, should be discussed with the president
of a corporation employing approximately 5,600 people if the only reason for
discussing the discharge was as testified by Stone."
In any event, and even if it be assumed that on April 18 some justifiable
ground for Tancrell's discharge existed, it would constitute no defense unless it
was the moving cause. Wells, Inc. v. N. L. R. B., 162 F. 2d (C. A. 9) ; N. L. R. B.
v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3). Here, I am convinced
that Tancrell would not have been discharged on April 18 were it not for his
connection with the circulation of the list for the Union. Indeed, Thompson
admitted that it "accelerated" the discharge" "Accordingly, it is immaterial
that [Tancrell's shortcomings] may have been an added consideration which
may have contributed to the Respondent's decision to discharge [him]."
Supreme Bedding c Furniture Co., Inc., 93 NLRB 1616, footnote 17 and cases
cited therein.
Similarly if it be assumed, as Respondent urges the record has established,
that it was not motivated by union animus in discharging Tancrell, would that
factor alter the conclusion that Respondent violated the Act in discharging
Tancrell for the assistance he granted the Union, or because he had engaged in
other concerted activities protected by the statute. The right to engage in
concerted and union activities guaranted in Section 7 of the Act, when exercised
within legal bounds, does not depend upon the subjective frame of mind of the
employer. Any other condition would make illusory the rights expressly guar-
anteed by the Act. Once it is established, as it has been here, "that an employee's
statutorily protected rights have been trenched upon by his discharge, it is
is Thompson testified he made up his mind to discharge Tancrell on April 17, but decided
to "sleep on it" overnight.
i' Stone was not certain who brought up the subject of Tanerell at the conference with
Bolton. He testified it "may have been" Bolton, who might "have . . . been informed of
Mr. Tancrell and the situation as to him," and that he (Stone) "had occasion to discuss
it with him."
25 In its brief, Respondent similarly concedes that "Tancrell's participation in the circula-
tion of the list . . . merely accelerated [his] discharge by perhaps a few weeks."
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immaterial to a finding that the law has been violated that the discharge was
not motivated by union hostility or ill intentions." Cyril De Cordova & Bro., 91
NLRB 1121.'o Indeed, under such circumstances, neither the Board nor the
courts may "inquire into [the employer's] motives." f7
I further find that Tancrell was an "employee" and entitled to the protection
of the Act, and not a "supervisor" as pleaded by Respondent. Certainly, neither-
because he was'designated as an assistant supervisor on Respondent's records, nor
the fact that he may have been told when he was first hired that he was to be
an assistant supervisor, is relief foreclosed herein. Determination of status
under the Act is based, not on titles bestowed by an employer, but on "the actual
duties and functions of the persons alleged to be supervisors, taking into account
all relevant factors, including such matters as type of work done, responsibility
exercised and . . . the relative number of employees and supervisors." Silver-
wood's, 92 NLRB 1114.
Tancrell was employed in Respondent's statement division, one of the smallest
of six or seven divisions in the accounting department. Its entire staff con-
sisted of Garcelon as supervisor, Tancrell, and two female clerks. The pro-
cedures and practices of the division were prescribed by an Ernst & Ernst
accounting manual, and Tancrell's work, as well as that of the two female
clerks, was, for the most part, routine. What specific instructions he and the
girls received were generally given by Garcelon, although on occasion they came
from Thompson. During Garcelon's absence from the division during the work-
day, while he was ill or on vacation, and during a 2-month period in 1948 when
he was engaged on a project not connected with his division, Tancrell was in
charge. While Thompson testified that all "supervisory personnel in the depart-
ment generally," in which category he included Tancrell,18 had authority to
hire, fire, and transfer personnel, no testimony was offered that he was ever told
that he had such authority. On the other hand, Thompson corroborated Tan-
crell's testimony that the latter had never exercised such authority or made
any recommendations in that field. Indeed, the evidence is undisputed that
he was never consulted on the hiring or disciplining of any employees in his
division. Though Tancrell on occasions gave instructions to the two clerks,
he merely did so as a conduit for Thompson or Garcelon, and while he occasionally
assisted these girls when they required help, this assistance was only of the
type that any more experienced employee would give to a junior employee. Nor
am I persuaded that the work of the two female clerks, neither one of whom
was called to testify, was so difficult or technical as to require a supervisor for
each of them.
On all of the testimony I find that Tancrell was a mere employee and that the
occasional and sporadic exercise of supervisory duties during Garcelon's absence,
is not sufficient to establish his status as a supervisor within the meaning of the
Act. Diamond Bros. Company, 96 NLRB 1420; Ball Brothers Company, Inc.,
96 NLRB 265; Republic Steel Corporation, 94 NLRB 1294; Quincy Steel Castings
Co., Inc., 93 NLRB No. 174; Automatic Electric Co., 78 NLRB 1057.
On the entire record I conclude, and find, that Respondent discharged Tancrell
on April 18, 1951, because he had engaged in activities protected by the Act, and
1e See also N. L. R. B. v. Le Tourneau Company, 324 U. S. 793 ; American Shuffleboard Co.
v. N. L. R. B., 190 F. 2d 898 (C. A. 8) ; Republic Aviation Corp. v. N. L. R. B., 142 F. 2d
193, affd. 324 U. S. 793; N. L. R. B. v. Gluck Brewing Co., 144 F. 2d 847, 853 (C. A. 8) ;
The Office Towel Supply Co. , Incorporated, 97 NLRB 449.
17 N. L. R. B. v. Gluck Brewing Co., supra.
11 Also included in this group was one Gendron, an alleged assistant supervisor of budget,
who, though he held that title, was occupied solely in feeding documents to a microfilm
camera.
WfIITIN MACHINE WORKS 289
that by such discharge, Respondent violated Section 8 (a) (3) thereof. By that
discharge Respondent also interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in Section 7 of the Act and thereby
violated Section 8 (a) (1) thereof.
2. The alleged unlawful discharge of Mrs. Cahill
Two issues are presented by this phase of the case, first, did Mrs. Cahill
voluntarily resign as alleged by Respondent, or was she discharged as pleaded
by the General Counsel, and second, if she was discharged, was that termination
effectuated because she had engaged in activities protected by the Act.
While the evidence is undisputed, and it is accordingly found, that Mrs.
Cahill executed a written resignation at her home on April 20, and that Mrs.
Huheson exerted no "pressure" on her at the time, those facts are not determi-
native of the first issue. It is only if the foregoing findings were to be con-
sidered in isolation that such a disposition could be made. The record, however,
discloses other undisputed facts occurring on and prior to April 20, facts in-
extricably interwoven with the actual termination and which must be con-
sidered before final resolution of the issue can be made. Thus, and without
regard as to the reason therefor, the record is conclusive that Respondent on
April 19 was desirous of terminating Mrs. Cahill's services. Stone himself
testified that he "suggested" to her on that day that she resign 19 Not receiving
a favorable reply, he then told her to consider herself suspended and that she
would subsequently hear from him. The message which she was told to expect
and the next event which sheds light on the issue, was the appearance of the
women's employment director within 24 hours, at the home of Mrs. Cahill, with
another demand for her resignation and the delivery of her personal belongings.
I do not perceive how the sum total of the events just found can lead to any
other conclusion than that Mrs. Cahill was to consider herself discharged. The
additional signed resignation perhaps enabled Respondent to so characterize
the termination on its records, but in legal contemplation it was a nullity-Mrs.
Cahill had already been discharged. No other significance can be attached to
the delivery of her personal belongings accompanied by the repeated demands
for her resignation.
The disposition I have made of the signed resignation was dictated in sub-
stantial part by the impression made upon me by Mrs. Cahill as a witness.
Advanced in years, her bearing and demeanor at the hearing disclosed her to
be of an extremely timid nature. I am convinced that she recognized Stone's
determination to discharge her and realized that if she did not sign the resigna-
tion her employment record would be marred by her immediate discharge. As
she herself expressed it, though she "wasn't going to [sign] it as first," she
then concluded : "Well, what's the use, I might as well." I find that Respondent
discharged Mrs. Cahill on April 20.
The second question posed by Mrs. Cahill's discharge is whether it was im-
posed because she had participated in activities protected by the Act. The
record is conclusive that the only union or concerted activity in which she par-
ticipated was the circulation of the list at Tancrell's request. She had never
made application to join the Union and, so far as the record discloses, was not
otherwise active or interested in its affairs. Nevertheless, the actual circula-
tion of the list was an act of assistance to the Union and, if properly exercised,
was an activity protected by Section 7 of the Act. If, therefore, Mrs. Cahill's
1014s. Cahill testified Stone told her that if she did not sign the resignation, he would
have to fire her.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services were terminated because she had been so engaged, her discharge would
be violative of Section 8 (a) (3) of the Act.
Respondent, however, contends that her employment was terminated because
of the deception under which she circulated the list and the effect that deception
had on those who had been deceived. In support of that defense, Frank DeHaas,
Wm. P. Boyd, Wm. Neulieb, Alfred Arterton, Edward C. McNamee, Everett -New-
begin, Joseph Smolinski, and Paul Wheeler, all of whom signed the list, testified
convincingly as to their strong resentment against the manner in which their
signatures were obtained. All of them also testified that they were either un-
willing, or extremely reluctant, after the event in question, to trust Mrs.•Cahill
with their dictation or other work which they would normally assign to her.-'
In approaching a solution of the problem, I am not unmindful that in the
administration of the Act, the Board must constantly make certain that the
freedom to, engage in protected activities be not defeated by subterfuge or,
unsubstantial matters screening reality. On the other hand, the Board must,
,with equal zeal, protect the rights of an employer to discharge his employees
for any valid cause, or indeed without cause, so long as the termination is not
brought about because the employee has engaged in an activity protected by
the statute." The Act imposes no duty on an employer to retain the services of
an employee who has lied to him about an activity carried on during working
hours on the employer's premises, or who has so conducted herself as to become
persona non grata to her fellow workers. N. L. R. B. v. Wytheville Knitting Mills,
175 F. 2d 238 (C. A. 3). And in arriving at a resolution of the issue presently
posed, it must be remembered that the burden of proof rests on the General
Counsel to establish by a preponderance of the evidence that Mrs. Cahill was
discharged because she had been of assistance to the Union. If the scales are
evenly balanced between such proof and that offered in support of Respondent's
contention, the allegation of discriminatory discharge has not been sustained and
must be dismissed.
Applying the foregoing principles, I find that the General Counsel has
not sustained the burden resting on him as above described. On the contrary,
the entire record and my observation "of the witnesses convinces me, and I
accordingly find, that Mrs. Cahill was discharged because of the deception she
practiced on management and her fellow employees, and the latter's resultant
refusal or reluctance to have her do any further work for them. The testi-
mony and demeanor of the group of eight witnesses named in the second preced-
ing paragraph convince me that their resentment was genuinely motivated by
the deception that had been practiced on them, and not otherwise. Nor am I
convinced that the testimony of Mrs. Cahill, Estes, Stone, or any other witness,
standing alone or collectively, establishes other than that Mrs. Cahill was dis-
charged because she had lied to management concerning what she had told
prospective signers of the list, and because of the deception she had practiced
on her fellow employees together with the consequent mistrust engendered in
their minds. And, though a suspicion of illegal discrimination may be aroused
because the deception of which she has been found guilty was connected with a
protected activity, the entire record does not convince me that Mrs. Cahill was
20 Though the record discloses that, to the time of Mrs. Cahill's discharge, only Neuliea,
Arterton, and Newbegin told Estes of their objection to the assignment of further work
to Mrs. Cahill, a failure of proof in this respect as to the remainder is without controlling
significance.
u Associated Press v. N. L. R. B., 301 U. S. 103.
WHITIN MACHINE WORKS 291
discharged because she had been of assistance to the Union 2' Accordingly, it
will be recommended that the allegations of the complaint charging that Re-
spondent discharged Mrs. Cahill in violation of Section 8 (a) (3) of the Act
be dismissed.
3. Interrogation of employees
The General Counsel contends that by questioning its employees whether "they
had signed the list and if [they] knew the purpose for which the list was circu-
lated ," Respondent interfered with the rights of employees to engage in concerted
activities in violation of Section 8 (a) (1) of the Act. I do not agree. Inasmuch
as the circulation of the list took place during working hours on company prop-
erty, and was represented by Mrs. Cahill as being requested by management,
Respondent had a right to investigate the facts and determine whether any of its
employees were guilty of a breach of trust;' or deception. I, therefore, find that
Respondent did not violate the Act by interrogating its employees for the purpose
just described. Pure Oil Company, 75 NLRB 539; Association of Motion Pictures
Producers, Inc., 79 NLRB 466, 496. Nor do I find any credible evidence estab-
lishing that Respondent "on or about April 15, 1951, [otherwise] interrogated its
employees concerning their union and concerted activities" as alleged in the com-
lilaint. I will, therefore, recommend that that entire allegation be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and
tenure of employment of Raymond M. Tancrell, I will recommend that, in order
to effectuate the purposes and policies of the Act, Respondent offer him immediate
and full reinstatement to his former or to a substantially equivalent position,
without prejudice to his seniority and other rights and privileges. It will also
be recommended that Respondent make Tancrell whole for any loss of pay he
may have suffered by reason of Respondent's discrimination against him, by pay-
ment to him of a sum of money equal to the amount he would normally have
In Even if it be assumed, arguendo, that the discharge was imposed because Mrs. Cahill
had been of assistance to the Union , a serious question would arise as to whether or not her
deception in connection with that activity deprived her of the protection which Section 7
of the Act otherwise provides. The guarantees found in that section are not absolute
Cf. N. L. it. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240; Scullin Steel Company,
65 NLRB 1294 , 1317, enfd . in 161 F . 2d 143 (C. A. 8) ; Jefferson Standard Broadcasting
Company, 94 NLRB 1507. See also American Shuffleboard Co., 92 NLRB 1272, enfd. 190
F. 2d 898 (C. A. 3), and Westinghouse Electric Corporation, Ansonia Plant, 77 NLRB 1058,
enforcement denied on other grounds, 179 F. 2d 507 (C. A. 6). In both of the latter cases,
while the Board found the employees involved to have been discriminatorily discharged
notwithstanding that they had falsely reported to fellow employees statements mode by
management at conferences between the two groups, the Board pointed out in the Shuffle-
board case that the statements were not "deliberately or maliciously false," and in the
Westinghouse case that there was no "deliberate intention to falsify ." In the case of Mrs.
Cahill, no such finding could be made.
23 Mrs. Cahill had on earlier occasions circulated similar lists the circulation of which
had, however, been authorized or approved by management
22,7260--53-vol. 100--20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earned as wages from the date of his discharge, to the date of Respondent's offer
of reinstatement, less his net earnings during that period" Loss of pay shall be
computed on the basis of each separate calendar quarter or portion thereof during
the period from the Respondent 's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, herein called quarters,, shall-begin
with the first, day of January, April, July, and October. 'Loss oft pay shalt be
determined by deducting from the sum equal to that which Tancrell would nor-
mally have earned for each such quarter or portion thereof, his net earnings, if
any, in other employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. It will
also be recommended that Respondent , upon reasonable request , make available
to the Board and its agents all payroll and other records pertinent to an analysis
of the amounts due as back pay. , ,
Since I have found that Respondent did not discharge Ethel Cahill'becapse
she had engaged in any activity protected by the Act, and that it did not on or
about April 15, 1951, interrogate its employees in violation of Section 8 (a) (1)
of the Act, it will be recommended that the allegations of the complaint per-
taining to both these matters be dismissed.
Though a discriminatory discharge for engaging in union activities is one
of the most serious violations of the Act and has frequently been regarded by the
Board as sufficient to justify a broad cease and desist order, I am not "per-
suaded, upon this record, that Respondent has demonstrated a general intent
to defeat self-organization and an attitude of opposition to the purposes of the
Act. [I am] particularly mindful in this regard of the Respondent's past amica-
ble relations with [the Union] and the fact that [it] had been dealing with the
Union [as representative of over 3,000 of its production and maintenance em-
ployees] under a collective bargaining agreement. Under all the circumstances
I believe that the policies of the Act will be adequately effectuated by ordering
the Respondent to cease and desist from the unfair labor practices found and
from any like or related conduct." Leadbetter Logging d Lumber Co., 89 NLRB
576.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS oB' LAw
1. United Steelworkers of America, CIO, is a labor organization within the
meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Ray-
mond M. Tancrell, Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent did not violate Section 8 (a) (3) of the Act by discharging
Ethel Cahill.
6. Respondent did not violate Section 8 (a) (1) of the Act by interrogating its
employees on or about April 15, 1951, as alleged in the complaint.
[Recommendations omitted from publication in this volume:]
u See Crossett Lumber Co., 8 NLRB 440.
21 F. W. Woolworth Company, 90 NLRB 289.
SCRIPPS-HOWARD RADIO, INC. 293
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED STEELWORKERS OF AMERICA,
CIO, or in any other labor organization of our employees, by discharging or
refusing to reinstate any of our employees or 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 in any like manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
,Organizations, to join or assist UNITED STEELWOIttIcERS OF AMERICA, CIO,
ors any other labor organization, or to engage in 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 membership in a labor
organization as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Raymond M. Tancrell immediate and full reinstatement
to his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members in good standing of the above-named union or any other
labor organization except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the National Labor Relations
Act.
WHITIN MACHINE WORKS,
Employer.
Dated------------------------------ By-----------------------------------
(Representative) (Title)
This notice must remain posted 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
SCRIPPS-HOWARD RADIO , INC. and TELEVISION AUTHORITY, PETITIONER."
Case No. 8-RC-1510. July 21,1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Carroll Martin, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
"The American Federation of Radio Artists intervened in this case and joined with the
Petitioner in seeking an election. The intervention is based on their proposed merger
into one organization, to be called American Federation of Television and Radio Artists,
which was to become effective on or about July 1, 1952.
100 NLRB No. 53.