Air Products, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1950

91 N.L.R.B. 1381 (N.L.R.B. 1950)

In the Matter of AIR PRODUCTS , INCORPORATED and JOSEPH N.
CORNELLIER
In the Matter Of MERCHANDISE DRIVERS LOCAL 641 , INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN & HELP-
ERS OF AMERICA , A. F. L. and JOSEPH N. CORNELLIER
Cases iVos. 4-CA-242 and 4-CB-410.-Decided October 31, 1950
DECISION AND ORDER
On August 11, 1950, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents, Air Products, Incorporated, herein called the Company,
and Merchandise Drivers Local 641, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
A. F. L., herein called the Union, had engaged in and were engaging
in certain unfair labor practices, and recommending that they cease
and desist therefrom and take certain affirmative action as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Company and the Union filed exceptions to the Intermediate Re-
port and supporting briefs.
The Board 1 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 briefs, and the entire record in
the cases,. and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner insofar as they are consistent with this
Decision and Order.
1. We find, as did the Trial. Examiner, that by discharging Joseph
N. Cornellier, Robert Birmingham, Tige Lyons, and Samuel Sidelo
on April 27, 1949, the Company violated Section 8 (a) (3) and 8 (a)
(1) of the Act; and that by causing the Company to do so, the Union
violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
As the Trial Examiner found, on April 25 and 26, 1949,, Birming-
ham and Lyons, assisted by Cornellier and Sidelo, circulated a peti-
Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Reynolds,
and Styles].
91 NLRB No. 212:
1381
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion among the employees in the plant which stated that the signers
were "dissatisfied with the way the shop steward was picked"' and
that they were "in favor of electing a shop steward of their own vote."
By April 26 all the employees except a few who were either absent
or unavailable had signed the petition.
On April 27, 1949, the employees of the Company were notified by
the shop steward, Hahn, that there would be a union meeting that
evening; Hahn did not, however, disclose the purpose for which the
meeting was called. Clarino , representative of the Union , opened
the meeting by asking where the petition was and who had circulated
it. Birmingham admitted that he had carried the petition, and Cor-
nellier, Lyons, and Sidelo admitted that they had helped him..
Clarino thereupon informed the four employees , "You, you , you, and
you are fired , you are done." Clarino also advised them at the time
that they would be brought before "a Union board" on charges "for
non-Union activities in regard to the petition." Then, at the sugges-
tion of someone at the meeting, Everson, the Company's district man-
ager, was invited to the meeting . Everson was aware of the meeting
and stayed later than usual at the plant because of it. He and Plant
Superintendent Say entered the room, and shortly thereafter Clarino,
stated to Everson, in the presence of those assembled there, that the
four employees were discharged. Upon Clarino making this state-
ment, Everson either nodded or replied in the affirmative . Cornellier
then asked Clarino to tell Everson the reason for the discharges, and.
Clarino stated that it was for "activities against the Union or harm-
ful to the Union." Thereupon, Cornellier asked Everson if Clarino's
statement was correct, and Everson again either nodded or replied in
the affirmative . Thereafter , at this same meeting, and while Everson
and Say were still present, employee Simonson questioned the fair-
ness of the discharges, and Clarino replied that they should not have
engaged in "this petition activity."
The Company contends , in substance , that the acquiescence in
Clarino's notification at the meeting of April 27 that the four em-
ployees in question were discharged merely reflected the fact that the
Company had already decided to discharge them for cause . However,
in our view , the record does not permit that inference.
In the first place, we cannot ignore the fact that at the April 27
meeting Everson agreed specifically not only with Clarino's assertion
that the men had been discharged, but also with Clarino's char-
acterization of the discharge as being based upon "activities against
the Union or harmful to the Union." On these facts an inference that
the Company thereby allied itself with the Union in effecting the
AIR PRODUCTS, INCORPORATED 1383
discharges for concerted activity-and not for cause-is almost
inescapable.
But even if we were to overlook this fact, the illegal character of
the Company's conduct is nonetheless clear. As the Trial Examiner
found, the record demonstrates that even if the Company had grounds
upon which it might have discharged these employees for cause, no
final decision to that effect had been made by the time of the Union
meeting of April 27. Even the letters which the Company sent to
the Union, and which it admits were not mailed until after the
April 27 meeting, speak of contemplated future action, rather than of
a fait accorzpli.2 And despite the fact that, according to the Com-
pany, the decision to discharge the men had been made on April 26,
they were not notified of their discharge at that time, or at any time
on April 27 before Everson's concurrence in Clarino's statement.
On these facts we are persuaded that even if the Company contem-
plated the possibility of discharging the charging parties for reasons
unrelated to their concerted activity, the discharges would not have
been effected but for the position taken by the Union at the meeting
of April 27. At that meeting the Company permitted the Union
to arrogate to itself the Company's control over employment, and to
use such control to accomplish discharges which were clearly dis-
criminatory. Under the circumstances, we have long held that such
conduct by an employer violates Section 8 (a) (3) and 8 (a) (1)
of the Act .-3 And as the Union caused the Company to effect the
discriminatory discharges, the conduct violated Section 8 (b) (2)
and 8 (b) (1) (A) of the Act.4
In view of our findings above, we find it unnecessary to pass upon
and therefore do not adopt the Trial Examiner's finding that, because
on April 26 the dischargees were engaged in presenting a grievance,
the decision to discharge them-if it had been made-would have
,constituted an independent violation of -Section 8 (a) (1) of the Act.
The Remedy
We have found, as did the Trial Examiner, that the Respondent
Company discriminated against Cornellier, Birmingham, Lyons, and
2 Thus for example the letter concerning Sidelo states :
We will have to have assurance from Mr. Sidelo that he will cooperate in all
respects with fellow employees and will produce his regular quota of work.
And the letter concerning Birmingham states :
Unless you can show just reason why this employee should not be discharged, this
will be put into effect on the above date.
See Randolph Corporation, 89 NLRB 1490 ; Pinkerton's National Detective Agency,
Inc., 90 NLRB 205 ; Fred P. Weissman Company, et al., 69 NLRB 1002 , enfd . 170 F. 2d
952 (C. A. 6).
4 Clara-Val Packing Company, 87 NLRB 703 ; Randolph Corporation , supra.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sidelo, and that the Respondent Union caused the Respondent Com-
pany to discriminate against them . Therefore , as recommended by
the Trial Examiner, we shall order the Respondent Company to offer
Cornellier , Birmingham , Lyons, and Sidelo immediate reinstatement
to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges.
As we have found that both Respondents are responsible for the
discrimination suffered by Cornellier , Birmingham , Lyons, and
Sidelo, in ' accordance with the Trial Examiner's recommendation, we
shall order the Respondents jointly and severally to make Cornellier,
Birmingham , Lyons, and Sidelo whole for the loss of pay that they
may have suffered by reason of the discrimination against them .5
We note that since the issuance of the Intermediate Report the
Respondent Union notified the Respondent Company in writing that
it has no objection to the. immediate reinstatement of Cornellier,
Birmingham , Lyons, and Sidelo to their former positions without
prejudice to their seniority and other rights and privileges. Ac-
cordingly , as the Board has recently held ', that a union may relieve
itself from further back-pay liability by notifying the employer in
writing that it has no objection to the reinstatement . of discrimina-
torily discharged employees , we shall provide that the Respondent
Union shall not be liable for any back pay accruing after 5 days from
the giving of such notice.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations.
Board hereby orders that :
1. The Respondent Company, Air Products, Incorporated, Iselin,.
New Jersey , its officers , agents, successors , and assigns , shall:
(a) Cease and desist from:
(1) Encouraging membership in Merchandise Drivers Local 641,.
International Brotherhood of Teamsters , Chauffeurs, Warehousemen
Helpers of America , A. F. L., or in any other labor organization of
its employees, or discouraging membership in any labor organization
of its employees, by discriminating in regard to their hire or tenure of
employment or any term or condition of their employment, except
to the extent permitted by the proviso to Section 8 (a) (3) of the Act;.
(2) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,,
6 Acme Mattress Company, 91 NLRB 1010 . As recommended by the Trial Examiner,
the method of computing the back pay due shall be in conformity with the method set.
forth in F . W. Woolworth Company, 90 NLRB 289.
9 Pinkerton's National Detective Agency, Inc., supra.
AIR PRODUCTS, INCORPORATED 1385
to form labor organizations, to join or assist any labor organization,,
to bargain collectively through representatives of their own choosing,,
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Offer to Joseph N. Cornellier, Robert Birmingham, Tige Lyons,
and Samuel Sidelo immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their senior-
ity or other rights and privileges;
(2) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order;
(3) Post at its plant at Iselin, New Jersey, copies of the notice
attached hereto and marked Appendix A 7 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by it immediately upon receipt thereof and be maintained by
it for a period of at least sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Company to insure that such notices are not altered, defaced,.
or covered by any other material;
(4) Notify the Regional Director for the Fourth Region in writing,.
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
2. The Respondent Union, Merchandise Drivers Local 641, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, A. F. L., its officers, representatives, agents, and
trustees, shall:
(a) Cease and desist from:
(1) In any manner causing or attempting to cause Air Products,
Incorporated, its officers, agents, successors, and assigns, to discrimi-
nate against its employees in violation of Section 8 (a) (3) of the Act;
7 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order," the words "A Decree of
the United States Court of Appeals Enforcing."
1386. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Restraining or coercing employees of Air Products, Incor-
porated, its successors or assigns, in the exercise of their rights to self-
organization, to form labor organizations, to join or assist any labor
organization, to, bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a. condition of employment as authorized in Section 8 (a) (3) of
the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(1) Post in conspicuous places in its business office, and wherever
notices to its members are customarily posted, copies of the notice
attached hereto and marked Appendix B.8 Copies of said notice, to
be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by an official representative of the Respondent
Union, be posted by it immediately upon receipt thereof and main-
tained by it for a period of at least sixty (60) days thereafter. Rea-
sonable steps shall be taken by the Respondent Union to insure that
said notices are not altered, defaced, or covered by any other material;
(2) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto and marked Appendix B, for
posting, if the Respondent Company is willing, at the Iselin, New
Jersey, plant of the Respondent Company, in places where notices to
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Fourth Region, shall, after
being signed as provided in the preceding paragraph of this Order,
be forthwith returned to the Regional Director for posting;
(3) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
3. The Respondents, Air Products, Incorporated, its officers, agents,
successors, and assigns, and Merchandise Drivers Local 641, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen S
Helpers of America, A. F. L., its officers, representatives, agents; and
trustees, shall jointly and severally make whole Joseph N. Cornellier,
Robert Birmingham, Tige Lyons, and Samuel Sidelo for any loss of
pay they may have suffered because of the discrimination against them
in the manner set forth in the section entitled The Remedy.
8 Ibi d.
AIR PRODUCTS , INCORPORATED
APPENDIX A
NOTICE TO ALL EMPLOYEES
1387
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT encourage membership in MERCHANDISE DRIVERS
LOCAL 641, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. L., or in any
other labor organization of our employees, or discourage member-
ship in any labor organization of our employees, by discriminat-
ing in regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Joseph N. Cornellier, Robert Birmingham, Tige
Lyons, and Samuel Sidelo immediate and full reinstatement to
their former or substantially equivalent positions, and will make
them whole for any loss of pay suffered as a result of the dis-
crimination against them.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members 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
Act.
AIR PRODUCTS INCORPORATED,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other-material.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF MERCHANDISE DRIVERS LOCAL 641, IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, A. F. L.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relation 's Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause AIR PRODUCTS, INCOR-
PORATED, its officers, agents, successors, or assigns, to discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT, restrain or coerce employees of AIR PRODUCTS,
INCORPORATED, its successors or assigns, in the exercise of their
right to self-organization, to form labor organizations, to join or
assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL make Joseph N. Cornellier, Robert Birmingham, Tige
Lyons, and Samuel Sidelo whole for any loss of pay suffered be-
cause of the discrimination against them.
MERCHANDISE DRIVERS LOCAL 641, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA, A. F. L.,
Labor Organization.
Dated ---------- By -------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or'covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. John H. Wood, Jr., for the General Counsel.
Mr. Harvey H. Steckel , of Allentown , Pa., for Respondent Company.
Mr. Irving Barist, of Jersey City , N. J., for Respondent Union.
STATEMENT OF THE CASE
Upon charges duly filed by Joseph N. Cornellier , an individual , the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Fourth Region ( Philadelphia , Pennsylvania), issued his consolidated complaint
AIR PRODUCTS, INCORPORATED 1389
,dated April 10, 1950, against Air Products , Incorporated , herein called Re-
spondent Company, and , against Merchandise Drivers Local 641, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America,
A. F. L., herein called Respondent Union, jointly referred to herein as Re-
spondents , alleging that Respondents had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3), Section 8 (b) (1) (A ) and (2 ), and Section 2 (6) and ( 7) of the National
Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies
,of the complaint , charges, and notice of hearing thereon were duly served upon
Respondents.
With respect to the unfair labor practices , the consolidated complaint alleged
that Respondent Union on or about April 27, 1949, had caused Respondent
Company to discharge Joseph N. Cornellier , Robert Birmingham ,. Tige Lyons,
.and Samuel Sidelo because they had engaged in-concerted activities protected
by Section 7 of the Act , and that this conduct on the part of Respondent Com-
pany and Respondent Union was violative of Section 8 (a) (1) and (3) and
Section 8 ( b) (1) (A) and ( 2), respectively , of the Act . Respondent Company
filed an answer wherein it denied the commission of any unfair labor practices,
denied that Respondent Union had caused the discharge of the four above-
named employees , and alleged affirmatively that these employees had been
discharged for cause . Respondent Union filed an answer wherein it denied
the commission of any unfair labor practices and that it had caused Respondent
Company to discharge the above -named employees.
Pursuant to notice , a hearing was held at New Brunswick , New Jersey, on May
16,17, 22, and 23, 1950, before the undersigned Trial Examiner , Martin S. Bennett,
-duly designated by the Chief Trial Examiner . All parties were represented by
counsel who participated in the hearing and were afforded full opportunity to
examine and cross-examine witnesses and introduce evidence hearing on the
issues. At the outset of and during the hearing the undersigned denied motions
by Respondent Union to strike paragraph 13 of the complaint , alleging a violation
-of Section 8 (b) (1) (A ) of the Act, on the ground that the charge filed against
Respondent Union did not specify a violation of that subsection of the Act.
Cathey Lumber Conmpanzy , 86 NLRB 157 , and Clara-Val Packing Company, 87
NLRB 703. Motions were also filed by Respondent Union. after the General
Counsel rested, to dismiss the complaint on the ground that the conduct attributed
to Respondent Union by witnesses for the General Counsel could not be found
violative of Section 8 (b) (2) of the Act because the alleged resulting action by
Respondent Company did not encourage or discourage union membership and on
the further ground that there was no proof that Joseph Clarino , to whom certain
-conduct was attributed by witnesses for the General Counsel, was an agent of
Respondent Union. Respondent Company moved at the same time to dismiss the
-complaint on the ground that the evidence did not support the allegations of the
complaint . These motions were denied with leave to renew at the conclusion
-of the hearing ; they were duly renewed , ruling was reserved, and they are hereby
denied. At the conclusion of the hearing , a further motion was submitted by
Respondent Union to dismiss the complaint on the ground that Respondents had
no knowledge of the alleged concerted activities engaged in by the individuals
-named in the complaint , Ruling was reserved and this motion is also denied.
The parties waived the opportunity to argue orally at the close of the hearing,
but were granted time to submit briefs and/or proposed findings of fact and
conclusions of law. Briefs have been received from the General Counsel and
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents ; Respondent Company' s proposed findings and conclusions are
rejected.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Air Products, Incorporated, is a Michigan corporation which maintains its
principal office and plant at Emmaus, Pennsylvania. It is engaged in the manu-
facture of oxygen and acetylene gas at various plants including a plant at Iselin,
New Jersey, with which this proceeding is directly concerned. In the course
and conduct of its business at the Iselin, New Jersey, plant, Respondent Company
annually purchases raw materials valued in excess of $200,000, of which more
than 25 percent is received from points outside the State of New Jersey. It
annually sells oxygen and acetylene gas valued in excess of $400,000, of which
over 33 percent is shipped to points outside the State of New Jersey.
The undersigned finds that Respondent Company, as it concedes, is engaged
in commerce within the meaning of the Act.
1T. THE ORGANIZATION INVOLVED
Merchandise Drivers Local 641, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, A. F. L., is a labor organiza-
tion admitting to membership employees of Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
1. The issue
The sole issue for consideration and disposition herein is whether or not
Respondent Union caused Respondent Company to discharge the four above-
named employees on or about April 27, 1949, because they had engaged in the
concerted activity of circulating a petition advocating the election of their shop
steward rather than his appointment by Respondent Union, as provided by a
collective bargaining agreement.
2. Background and bargaining history
Respondent Company's facilities at Iselin include an oxygen plant and an
acetylene plant. These are separate buildings with approximately six employees
assigned to each, who are engaged in the production of acetylene gas and oxygen.
In addition, there are five truck drivers with duties primarily in the delivery
field. The instant proceeding is concerned solely with the acetylene plant and
the discharge of four employees assigned thereto.
The employees of Respondent Company were not collectively represented at
the Iselin plant by a labor organization for some time prior to January 1948,
when the Company granted recognition to Respondent Union as the collective
bargaining representative of all its production workers.' On this occasion, a
2-year contract was signed ; it was reopened in January 1949, apparently by
mutual consent, and a new agreement was signed on January 18 or 19, 1949.
'The unit also included employees engaged-in maintenance work in the plant.
AIR PRODUCTS, INCORPORATED 1391
This agreement, whose expiration date was January 18, 1950, substantially in-
corporated the provisions of the old contract save for changes with respect to.
wages, holidays, and vacation benefits. Insofar as this proceeding is concerned,
the germane aspects of the contract are that it contained no union-security
provisions and that it provided for appointment by the Union of a shop steward
who was to be the last employee laid off in slack seasons.
At the present time Respondent Union does not represent the production em-
ployees 'of Respondent Company. In fact, an independent labor organization,
"Independent Compressed Gas Workers Association," petitioned for an election
on January 17, 1950, in Case No. 4-RC-461, in a unit embracing these employees ;
an election was held on or about May 9, 1950, and the petitioning labor organiza-
tion received a majority of the ballots cast. Respondent Union still represents
the truck drivers employed by Respondent Company, as it did in 1949 during
the period herein material, although the precise contractual relationship and its
history are not disclosed by the record.
3. Agents and representatives of Respondents.
George F. Pool is vice president of Respondent Company, and devotes his time
primarily to Respondent's plant at Emmaus, Pennsylvania. Roy C. Everson,
who has since left the Company's employ, was district manager of the Iselin
plant during the time herein material ; next in line of authority was William
Say, plant superintendent of the Iselin Plant.
Walter Gibney was at the time material herein secretary-treasurer and busi-
ness agent of Respondent Union and Joseph Clarino was conductor of the Union,
a position similar to that of sergeant-at-arms. Respondent Union contends,
however, that Clarino was not its agent within the meaning of Section 8 (b) of
the Act. Inasmuch as Clarino plays a significant role in the events to be de-
scribed below, the undersigned will at this point treat with the question of
whether Clarino was an agent of the Union in its dealings with Respondent
Company.
Respondent Union in April 1949 enjoyed a membership averaging 2,000 in
number and was a party to approximately 1.00 collective bargaining agreements
with employers. Its executive board included a president, vice president, record-
ing secretary, secretary-treasurer (Gibney), 3 trustees, warden, conductor
(Clarino), and an extra business agent; of these but 7 were given a vote in
executive matters, the president, vice president, recording secretary, secretary-
treasurer, and the 3 trustees. The president, secretary-treasurer, and extra
business agent were normally the sole full-time employees of the Union; how-
ever, the extra business agent had passed away on April 11, 1949, after a brief
illness. In sum, only 3 employees devoted their full time to a local of this size
with so large a number of contracts, and moreover, at the time of the discharge
of the 4 above-named employees, this number, had been reduced to 2.
As for Clarino, he received, as a member of the executive board, a $25 stipend
paid quarterly to all officers of the Union, plus free dues and occasional ex-
penses. He was employed full time as a truck driver by a business concern
under contract with the Union and was shop steward under that contract. He
frequently worked nights in this employment and, when so engaged, would spend
2 or 3 days a week at the union office, according to Gibney. Although Respond-
ent Union contends that Clarino was no more than a general messenger and
utility man in the office of the Union and that he had no authority to conduct
meetings except when requested to do so by Business Agent Gibney, it elsewhere
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that Clarino "on occasion" did perform work for- the Union. And the
record does demonstrate affirmatively that Clarino was actively engaged in per-
forming work for the Union . According to various employees of the Company,
Clarino appeared at the plant on numerous occasions for the purpose of handling
grievances with management and actually did conduct negotiations on these
matters. He participated in the negotiations of the 1948 and 1949 contracts and
conducted meetings of the Union held at the plant, to which on occasion he was
accompanied by Gibney. He was active in organizational activities and'in fact:
had organized the employees of Respondent Company. Moreover, it was Clarino
who selected and appointed the shop stewards under the contract with Respond-
ent Company. Even Business Agent Gibney admitted that lie frequently re-
quested Clarino to handle union matters.
Particularly demonstrative of his status is the fact that Clarino represented
the Union at the vital meeting held on April 27, 1949, discussed below. It is
also clear that on numerous occasions when officials of Respondent Company
placed telephone calls to the Union and asked to speak with Gibney, the calls
were transferred to Clarino who proceeded to handle the matter in 'question.
On other occasions, when Respondent Company telephoned with respect to
various problems, Gibney specifically instructed Clarino to handle the matters.
The record indicates that the relationship between Clarino and the Company
representatives, as demonstrated in various meetings, was a close one. '
-There is a.confii.et between Clarino and Gibney as to whether Clarino reported
the results of his activities in behalf of the Union to Gibney. Clarino testified
that be always reported these results to Gibney, whereas the latter claimed that
although he assigned Clarino to various missions, a full report was never
made to him. A resolution of the conflict is unnecesarry because in either event
it is clear that Gibney and other officials of the Union assigned Clarino to handle
matters under the contract with Respondent Company and there is no evidence
that Clarino's work in this connection was ever disapproved or rejected. In
fact, there is no evidence of any limitation being placed upon Clarino in his
work for the Union or of any such restriction being called to the attention of
the public or management of Respondent Company with whom Clarino did busi-
ness. It is clear, therefore, and the undersigned so finds, that Clarino was clad
by responsible officials of Respondent Union with apparent authority to represent
the Union in matters involving the employees of Respondent Company and that
at no time did Business Agent Gibney or any responsible official of the Union
convey any contrary advice to Respondent Company. The undersigned ac-
cordingly finds that Clarino was an agent of Respondent Union and that Respond-
ent Union is responsible for his acts and conduct under the contract with
Respondent Company pursuant to the apparent authority conferred upon him_
even though the acts in question herein may not have been specifically authorized
by Business Agent Gibney. Sm/ith Cabinet Manufacturing Company, Inc., 81
NLRB 886, and Alaska Salmon Industry, Inc., 89 NLRB 1379.2
2 There is some evidence that Clarino was ambitious to rise in the union hierarchy to
the position occupied by Gibney and that at least some of his activities were unknown to
Gibney . It may be noted that in September 1949 all officials of the Union , including
Clarino and Gibney , were suspended and the Union placed under trusteeship by its parent
International for reasons not precisely disclosed by the record . Nevertheless , during the
period material herein , Clarino was held out by the Union as its agent and the Union is
bound by his acts under such apparent authority.
AIR PRODUCTS, INCORPORATED 1393
B. The discharges
1. Circulation of the petition
As stated above, both the 1948 and 1949 contracts provided that the shop
steward was to be appointed by the Union, and Clarino had appointed the then
shop steward, George Hahn, as well as his predecessor. In April of 1949, some
sentiment developed among the men in favor of the election of the steward in
lieu of the existing method. This sentiment, in part at least, was motivated
by objections to Hahn personally, although it was also based upon the view
that appointment of the steward was an undemocratic method of selection. As
a result, the four employees alleged herein to have been discriminated against
decided on or about April 25, 1949, to prepare a petition which would reflect
the views of the employees on this topic and present it to Business Agent Gibney
for his consideration. A petition bearing the date April 25, 1949, was prepared
on or about that date. It stated:
All the undersigned names are dissatisfied with the way the shop steward
was picked and are in favor of electing a shop steward of their own vote.
The petition was circulated on April 25 and 26, primarily by Robert Birming-
ham and Tige Lyons, 2 of the 4 discharged on April 27, assisted by Joseph Cor-
nellier and Samuel Sidelo, the remaining 2. By April 26, 14 employees had
affixed their signatures to the petition, this group constituting all the employees
save a few who were either absent or unavailable on the days in question. An
effort was made to keep the petition secret from both officials of the Union and
the Company, but, as will appear below, Clarino learned of its existence on or
before April 27 and the 4 employees were discharged on that date.
2. The discharges on April 27
The sole issue herein involves the motivation behind the discharge of the 4
named employees on April 27, 1949. Turning to the events of that date, the
undersigned finds that Shop Steward Hahn notified the members of the Union
in the employ of the Company that a 'meeting was to be held that afternoon.
A meeting was held and attended by approximately 15 employees, presided over
by Clarino. At this point, however, the versions of the 3 parties as to what took
place thereafter differ substantially ; indeed, the testimony of Union Agent
Clarino contains divers versions of what took place which are, to say the least,
highly inconsistent.
The findings below are based upon the testimony of six witnesses who testi-
fied on behalf of the General Counsel. Reliance has been placed primarily upon
the testimony of Richard Simonsen, who is still in Respondent's employ, and who
impressed the undersigned favorably with his demeanor and candid and forth-
right testimony. This testimony was substantially corroborated by that of John
Schultz and that of the four alleged discriminatees. On the other hand, the
testimony of Union Agent Clarino was varied, highly inconsistent, and in some
respects marked by mendacity ; no reliance has therefore been attached to it.
The only testimony adduced by Respondent Company concerning events on April
27 was that of Plant Superintendent William Say and his superior, District Man-
ager Roy Everson, although a substantial number of employees in the plant had
attended the meeting and were presumably available to testify. The testimony
of these two supervisory employees as to the events on April 27 is not accepted
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of a number of inconsistencies in their versions of the causes and han-
dling of the discharges during the period from April 25 to April 28, 1949, as set
forth below in more detail.
According to Simonsen, Shop Steward Hahn 3 notified the various employees
on April 27 that a meeting was to be held late that afternoon at the plant and
that a union representative would be present.
The men arrived at the appointed hour and awaited the arrival of the
representative. Early in the evening, Clarino arrived on the scene and an-
nounced that the meeting was in session. He looked about the room and asked,
"Where is the petition?" This query was met with silence and Clarino re-
peated it. At this point Robert Birmingham stated that he had carried the
petition but had since torn it up. Clarino asked Birmingham who had as-
sisted him in circulating the petition and Samuel Sidelo, Tige Lyons, and Joseph
Cornellier spoke up ; each stated that he had assisted Birmingham in the cir-
culation of the petitiofi, as in fact each of them had. Clarino asked if anyone
else had participated in this activity, but this query was met with silence.
Clarino then pointed to each of the four and said, "You, you, you, and you are
fired, you are done." Clarino also informed the four that they would be brought
before a union board "to meet charges for nonunion activities in regard to the
petition." Lyons then asked Clarino if he considered himself to be "Mussolini"
(referring to the late dictator) and considerable wrangling broke out.
It was suggested that District Manager Everson be summoned to the meeting.
Clarino sent one of the attendants to summon Everson, and shortly thereafter
Everson and his subordinate, Say, appeared at the meeting. As will appear
below in more detail, they were aware of the meeting and had waited at the
plant after the close of working hours for the day shift. Clarino turned to
Everson, upon the latter's entry, and stated that the four men were discharged
and that "they would no longer work there." To this, Everson either nodded
.or replied affirmatively. Cornellier then requested that Clarino inform Everson
why, the four men were discharged, and Clarino stated that the reason was
"activities against the union or harmful to the union."' Cornellier immedi-
ately asked Everson if Clarino's statement was correct, and Everson again either
nodded or replied in the affirmative. The four dischargees then left the room.
The meeting continued for a short time with Everson and Say present but
saying nothing further. Various minor grievances and union affairs were dis-
cussed but there was no further discussion of the four discharges except that
Simonsen protested the unfairness of discharging the four men with such short
notice. Clarino replied that they should not have engaged in "this petition
activity." Simonsen asked why Birmingham had been discharged and Clarino
replied that Birmingham had fallen into poor company and that the innocent
had to suffer with the guilty. On this note the meeting ended.'
3 Hahn, who is no longer in Respondent's employ, did not testify herein although he
resides in the vicinity of the plant.
' Simonsen elsewhere testified that Clarino "referred to the fact that these men had
worked against the union with their petition."
5 Clarino and the witnesses for the Company in effect corroborated the witnesses for the
General Counsel as to the order of events on April 27, namely, the calling of the meeting
to order by Clarino and the later appearance of Everson and Say on the scene. Everson
and Say admitted that Clarino announced to Everson at the meeting that the four men no
longer worked for the Company, that Everson was then asked if this were so, that Everson
stated such was the fact, and that the four dischargees then left the romp. Clarino's
testimony as to what took place is varied, as found above, although it may be noted that
it differs from the versions of Say and Everson who claimed that they proceeded to explain
AIR PRODUCTS, INCORPORATED 1395
3. Contentions of Respondents
Respondent Company does not dispute the fact that the four men were noti-
fied of their discharge on April 27, although its version of the events on that
date is in part at variance with the findings above. The Company contends
that it decided to discharge these men on the previous day, April 26, and that
notification to these men on April 27 of their discharge was actually announce-
ment of a fait accompli. It is alleged that the Company decided on April 26
to discharge the men for cause and so notified the Union. The causes assigned
herein are, in essence, that at a meeting held at the plant on April 26 Cornellier
and Sidelo refused to commit themselves to eliminate a slowdown in their work
and to cooperate in the future, and that Lyons and Birmingham refused to view
seriously requests to eliminate horseplay in the plant. As for Respondent Union,
Clarino testified that he was aware Everson had decided to discharge the men
for the assigned reasons whereas Gibney testified that he knew nothing of the
discharges until the following month.
The undersigned will now turn to an evaluation of the employment history
of the four dischargees, the reasons assigned by Respondent Company, and the
method of carrying out its alleged decision.
4. Duties of the dischargees
Cornellier and Sidelo entered the Company's employ in March and February
1948, respectively. Cornellier, who had started as a rackman, was promoted
to the position of assistant operator and finally, in January 1949, to that of
operator. His duties were to operate equipment for weighing acetylene gas
cylinders, to prepare the cylinders for loading, and to fill them with acetylene
gas ; he was assisted therein by his rackman, Sidelo. At the time material herein,
Respondent had in its employ another work team similarly engaged, consisting
of George Hahn, operator and also shop steward, and the latter's rackman, Ed
Blessing. The acetylene plant had operated on two shifts since mid-March
1949, and the custom was for the two work teams to alternate shifts by working
one week on the day shift and the following week on the night shift commencing
at 2p.m.
Lyons performed work similar to that of Cornellier and Hahn. He handled,
as operator, the filling of certain large tanks with acetylene gas for use by the
Coast Guard. When not so engaged, he assisted in the plant and did some paint-
ing. Birmingham was a repair man assigned only to the day shift, who, when
through with his repair duties, assisted the operator in filling tanks and also did
some painting.
5. Sequence of events
As stated, the team of Cornellier and Sidelo had alternated on weekly shifts
with the Hahn-Blessing team since approximately mid-March when Respondent
reduced its working force from three to two shifts. There is no evidence of any
complaints having been made to Cornellier or Sidelo concerning the volume of
their output at any time prior to their discharge. They admitted at the hearing
that for several weeks prior to April 27 they had stopped extending themselves
at the plant to perform work which the Hahn-Blessing team had not performed
on its shift ; however, it does not appear that their production was below that
to the assemblage, after the four men left, the cause of the discharges. As stated above,
the conflicting versions of Clarino and of the company representative have not been
credited herein.
917572-51-vol. 91-89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Hahn -Blessing team during this period .' Although the original records of
the Company have been destroyed in the course of business , a field examiner of
the Board identified herein certain copies he had made of Respondent 's original
production records which indicate that although daily production varied during
the period preceding' April 27, there was little if any difference between the
respective outputs of the two teams. As for Birmingham and Lyons, they ad-
mitted that they had engaged in horseplay in the plant on one occasion 1 or 2
weeks earlier which consisted of squirting acetone at each other and the skidding
of a wrench by one at the other. This was observed at the time by Everson and
on April 21, a notice was placed on the bulletin board calling attention to the fact
that horseplay had been observed and was forbidden, and that any similar con-
duct in the future would result in immediate discharge of the offender. There
were no further incidents of this type, nor, for that matter, is there evidence of
any derelictions on the part of Lyons and Birmingham after the posting of this
notice on April 21.
Plant Superintendent Say testified that he spoke to Shop Steward Hahn on
the evening of April 25 and questioned him concerning the causes of a slowdown
in production and horseplay among the men; that Hahn confirmed his belief of
the existence of a slowdown, but was indefinite on the subject ; and that he, Say,
then determined to ascertain who was responsible therefor and discharge that
person.' On the morning of April 26, Say had a conversation with Cornellier,
the details of which are in conflict. Cornellier testified he had been informed
that Hahn had stated that he, Cornellier, would be in difficulty if he did not speak
to Say, that he accordingly approached Say, that he asked for a meeting in order
to have a showdown concerning friction in the plant, and that Say agreed. His
testimony was corroborated by that of Sidelo who heard part of the conversation.
According to Say, he confronted Cornellier on the morning of April 26 with the
facts concerning the slowdown and Cornellier allegedly admitted that there had
been one, went into a discussion of his dislike for Shop Steward Hahn, and
claimed that Hahn was not performing his share of the work. Say claimed the
talk ended on this note and' that he later conferred with Everson, as a result of
which a meeting was called for that afternoon. The undersigned credits the
testimony of Cornellier herein.'
6. The April 26 meeting and later events
The meeting that afternoon was attended by the four dischargees, Hahn, and
Blessing, who constituted the entire acetylene 'plant force ; Everson and Say
were present for management. Everson urged the men to speak freely and say
what .they chose, and promised that no grudge would be carried as a result of
6 The loading of these cylinders required a varying number of hours , thus frequently
necessitating completion by one shift of work the other shift had commenced . For example,
completed work not removed by one shift had to be removed by the following shift, not-
withstanding the other work done by that shift.
R The undersigned is unable to discern why it was necessary to make an investigation
concerning the cause of the alleged slowdown in production . Respondent 's production
records disclosed the precise number of cylinders handled and the quantity of acetone used
by each shift.
8 As stated, Hahn, although available , was not called as a witness . Inasmuch as the
versions of Say and Everson concerning the meeting that afternoon and later events are,
not accepted below, the undersigned is of the belief that the testimony of Cornellier and
Sidelo , although open to some question on this particular incident , more accurately reflects
what took place on .April 26.
8 Findings herein are based upon the testimony of the four dischargees which is in
substantial agreement.
AIR PRODUCTS, INCORPORATED 1397
the meeting. He asked the men what the "gripe" was and Cornellier spoke up
and stated that Hahn was not doing his part of the work. Sidelo, Birmingham,
and Lyons were also asked for their views and they too criticized Hahn,
stating that he spent too much time in the plant office or was absent for coffee.
Everson replied to this by stating that if the men disapproved of the way things
were run they knew what they could do. Hahn took offense at Birmingham's
contention that he was shirking his duties and threatened him with discharge
if lie were not more careful.
Everson and Say spoke to. the men concerning the dangers of horseplay in
a plant of this type and urged upon them the necessity of refraining from
horseplay. Everson asked all to return to work and to agree to cooperate.
Lyons, Birmingham, and Sidelo agreed unconditionally. Cornellier stated that
he would agree to return to work and cooperate but that his attitude toward
Hahn would remain unchanged. The meeting ended on a pleasant note with
Everson shaking hands with one or more of the four.
The testimony of Everson and Say was that they had asked for expressions
of cooperation from the men; that Hahn and Blessing had pledged their co-
operation on production ; that Cornellier admitted a slowdown and stated that
he was uncertain whether he would cooperate and that his opinion of Hahn
was unchanged ; that Sidelo remained silent ; and that Birmingham and Lyons
snickered, laughed, and made no reply. Everson and Say claimed that they left
the meeting in anger and then decided to -discharge the men because of their
failure to commit themselves to abandon the slowdown and horseplay.
Inasmuch as the horseplay incident had been an isolated one, as a result
of which a warning had been duly posted 5 days earlier, and no new incident
had taken place or appeared imminent, the undersigned is not impressed by
the testimony of Everson and Say that Birmingham and Lyons refused to take
the incident seriously.- Furthermore, Cornellier impressed the undersigned by
his candor, obstinate though he was, in testifying that although he had stated
his continued dislike for Hahn, he had promised to cooperate in the future. Of
course, Cornellier's attitude toward Hahn is indicative of his obdurate nature,
but the production records do support his testimony that in the period im-
mediately preceding April 26 and 27, the Cornellier and Sidelo team had per-
formed its proportionate share of the work. Furthermore, inasmuch as Ever-
son was allegedly satisfied with the production of Hahn and Blessing, there
appears to be no valid reason for him to solicit their promises to cooperate on
production. Accordingly, the testimony of Everson and Say has not been
accepted herein.
According to Everson, he telephoned the union office late on the afternoon
of April 26 and informed Clarino that he intended to discharge the four men
because of their failure to commit themselves to cooperation in the future con-
cerning production and the abandonment of horseplay. He was asked by Clarino
to "sit tight and wait until the following day" when he, Clarino, would come
to the plant. In fact, according to Vice-President Pool of the Company, Ever-
son telephoned him on April 26 and stated that Clarino had asked for a meeting
on the following day "to discuss the matter further before the men were actually
and finally terminated." As found above, Clarino did appear at the plant on
April 27. He did not discuss the matter further with Everson but immediately
determined who had circulated the petition, and discharged the four employees
after they revealed their part in its circulation. And Everson, after being called
into the meeting, confirmed Clarino's statement that the men were discharged for
union activities.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Everson testified that Clarino on April 26 asked that the Company send the
Union letters stating why the men were to be discharged, and copies of letters
from Everson to Clarino dated April 26, one for each case, were introduced in
evidence. They were, however, not sent until April 28, according to Everson,
because of the absence of a stenographer on April 26, and because on April 27
he was otherwise engaged. The four letters are substantially similar and two
of them are set forth below :
Merchandise Drivers Local Union #641
Room #202
779 Bergen Avenue
Jersey City, New Jersey
(Attention: Mr. Joe Clarino.)
APRIL 26, 1949.
GENTLEMEN :
There has been a general slow down of work in our acetylene plant; and
upon investigating, we find it revolved particularly around one shift. At a
meeting called this afternoon it was openly admitted by the operator of the
particular shift and also his rackman, Samuel Sidelo, that they purposely
slowed down their work for personal reasons.
Mr. Sidelo agreed with his operator to this fact, and we could not secure
from him a satisfactory agreement that he would cooperate in the future
and produce his given amount of work. Under these conditions, we are
going to discharge Mr. Sidelo as of April 27, unless you can show a just
reason why we should not.
We will have to have assurance from Mir. Sidelo that he will cooperate in
all respects with fellow employees and will produce his regular quota of
work. Unless Mr. Sidelo will agree to this, he will be discharged on April
27.
Yours very truly,
AIR PRODUCTS, INCORPORATED,
R. C. EvERSON
District Manager.
APRIL 26, 1949.
Merchandise Drivers Local Union #641
Room #202
779 Bergen Avenue
Jersey City, New Jersey
(Attention: Mr. Joe Clarino.)
GENTLEMEN :
Mr. Robert Birmingham openly admitted that he and one of his fellow
employees were engaged in "horseplay" in our acetylene plant and openly
laughed when reprimanded for this act.
As this is in direct violation of our shop rules and could cause serious
bodily injury to fellow employees by the act of throwing equipment at each
other and also squirting acetone, we find it necessary to terminate Mr. Bir-
mingham's employment with our company as of April 27.
AIR PRODUCTS, INCORPORATED. 1399
Unless you can show just reason why this employee should not be dis-
charged, this will be put into effect on the above date.
Yours very truly, ,
AIR PRODUCTS, INCORPORATED,
R. C. EVERSON,
District Manager.
On April 28 Respondent also prepared notices of separation for the four men.
Those of Lyons and Birmingham read: "Disobeyance of shop rules. Throwing
of wrenches and spraying chemicals at other employees." 10 The notices to Cor-
nellier and Sidelo read, "Slow down in work and refusal to cooperate. Direct ad-
mission by employee-personal reasons given."
As is apparent, the four letters, although discussing the prospective discharge
of these employees, were sent on April 28 and after their actual discharge on
April 27. Everson testified that they had been dated as of April 26 in order to
conform to the date of his discussion with Clarino concerning the discharge of the
men and the request of Clarino for such letters. Significant too is the fact that
the discharge notices of Lyons and Birmingham assign as a primary cause for
discharge their horseplay in the plant, which had, in effect, been condoned,
whereas Respondent's sole reason herein for the discharges is that the two em-
ployees refused to consider seriously a request for abstention from further
horseplay. Furthermore, and contrary to the language of the discharge notices,
Sidelo on April 26 did not admit that he had engaged in a slowdown.
Thus, although Respondent allegedly decided to discharge the four men on
April 26, it did not notify them thereof on April 26 or even on April 27, but
merely, on April 27, when so requested, confirmed the announcement by the union
agent to the men that they were discharged. The men received no discharge
notices until they called on Friday, April 29, the regular payday, for their pay-
checks, and at that time two checks were distributed to each, the regular pay-
check for the preceding workweek and an extra one representing the work per-
formed through April 27, together with a discharge notice. As is apparent, the
men were peremptorily discharged in the middle of the workweek without warn-
ing that such a move was imminent."
On April 29, Cornellier called on Vice-President Pool at the Emmaus plant in
connection with his discharge. There is a conflict as to whether Pool indicated
on this occasion that he knew of the petition which the men had circulated or
whether he was initially advised thereof by Cornellier. A resolution of this
conflict is deemed unnecessary to the issues herein.
7. Conclusions
As found above, the petition prepared and circulated by the 4 dischargees,
signifying disapproval by is 14 signers of the existing method of appointment of
shop stewards, was intended for submission to Business Agent Gibney for his
consideration. As it was not a minority action in derogation of the collective
contract, its preparation and distribution constituted a protected concerted
activity for the mutual aid and protection of the employees within the meaning
of Section 7 of the Act. Cf. N. L. R. B. v. Kcnnainetal, Inc., 182 F. 2d 817 (C. A.
10 Respondent ' s posted shop rules , inter alia, forbade horseplay in or about plant buildings.
11 On April 27 the Company decided to discharge another employee, Schultz, and did so
on that (late. His discharge is presently under arbitration by Respondents. Unlike the
four cases discussed herein , Schultz was notified of his discharge by the Company and not
by Clarino.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3), and N. L. R. B. v. Tovrea Packing Co ., 111 F . 2d 626 ( C. A. 9), cert. den. 311
U. S. 668. It is apparent that this petition , if viewed favorably by Business
Agent Gibney, would have ultimately resulted in the,loss by Clarino of his pa-
tronage .as well as some prestige because it was he who selected . and appointed
the shop stewards under the contract with the Company.
.Turning to a consideration of the Company 's conduct , the Company suddenly
decided to discharge these men in the middle of the workweek and with no warn-
ing that disciplinary action was imminent . True, the men had been warned on
April 21 concerning horseplay , but there had been no repetition of that offense
and in any event, by permitting the event to pass marked only by a warning,
it is obvious that this one incident of violation of plant rules was not considered
a ground for discharge by the Company . As for the production ' of Cornellier
and Sidelo , the production records reflect , generally speaking, no less output on
their part than by Hahn and Blessing . And although Respondent Company con-
tended that unsatisfied demand by customers was the cause of its interest in
output, the record indicates that, shortly before, the Company had abandoned
its third shift in favor of a two-shift operation with less employees . This is
not indicative , in the view of the undersigned , of a situation where production
was not keeping up with demand.
Furthermore , the discharge notices themselves do not accurately reflect the
causes assigned herein by Respondent . In the cases of Lyons and Birmingham,
the notices dated . April 28 refer solely to the offense for which they had been
warned on April 21 , which was not repeated and which , in effect, was condoned.
Moreover , assuming even the existence of some cause for discharge , the coinci-
dence which results is a strange one. Respondent Company allegedly decided
to discharge four employees on April 26 , and by coincidence they turned out to
be the same four persons who were selected for discharge by Union Agent
Clarino only after they had disclosed their identities on April 27.
Even the April 26 letters sent on April 28 to the Union by Everson , assuming
the truth of the reasons stated therein , did not constitute a report to the Union
by the Company that it had discharged four men for reasons assigned therein.
The letters disclosed an intent to discharge the employees in question , but, in
effect, informed the Union that if proper assurances were forthcoming the plan
to discharge the men would be abandoned . Firstly, taking the letters at face
value with their date of April 26 , they did not constitute an outright decision
to discharge the men ; secondly , this procedure amounted to a turning over to
the Union of the decision whether or not the men were to remain in the Com-
pany's employ . This is evidenced by the report made on April 26 by Everson
to Vice-President Pool that he had acceded to a request by the Union to discuss
matters further before the men were terminated on April 27, and significantly,
there is no evidence of any further conversations between Everson and Clarino
until after the discharges of the men had been announced.
In sum, then , Everson left it to the Union to decide whether ov not these
men were to be discharged , and, as stated above, the record discloses no further
communication between Clarino and Everson after the alleged telephone conver-
sation on April 26 until April 27, when Clarino informed Everson that the men
were discharged for union activities , and Everson approved . The fact is the
four employees were never told by the Company that they were discharged,
although the decision had allegedly been made on April 26, until after Union
Agent Clarino discharged them at a hastily convened meeting.
Even if Respondent Company was unaware of the circulation of the petition,
it nevertheless approved Clarino's decision to discharge the men. That Clarino
AIR PRODUCTS, INCORPORATED - 1401
was discriminatorily motivated in so doing is evidenced by his statements at the
meeting on April 27 concerning the petition and the causes of the discharges.
This is clearly causation by the Union of the discharge of the men, which was
ratified by the Employer. Such conduct runs afoul of the Act which permits
the application of union-security provisions only under conditions not here
present. And assuming that the Company had some cause to discharge the four
men, the events on April 27 make clear that the men were not discharged for
cause- but. for discriminatory reasons at the behest of Union Agent Clarino.
See N. L. R. B. v. Kennametal, supra; N. L. R. B. v. Electric City Dyeing Co.,
178 F. 2d 980 (C. A. 3) ; N. L. R. B. v. Vermont American Furniture Corp., 182 F.
2d 8412 (C. A. 2) ; and Ray Smith Transport Company, 89 NLRB 1045.12
In view of the foregoing, the undersigned rejects the contentions of Respond-
ents herein and finds that the Company permitted and ratified the discharge
of the four employees by Clarino because of their concerted activities, as is
shown by Clarino's selection of the four for discharge on April 27 only after they
had disclosed their part in the circulation of the petition, together with Everson's
approval of Clarino's statement that they were fired for union activities. And
even if the Company was unaware of Clarino's motive, the fact still remains that
it improperly delegated to the Union the decision whether the, men were to be
fired. See Randolph Corporation, 89 NLRB 1490. It is accordingly found that
the Company has violated Section 8 (a) (1) and (3) and that the conduct of
the Union in causing said discharges is violative of Section 8 (b) (2) and 8 (b)
(1) (A) of the Act. Clara-Val Packing Company, 87 NLRB 703, and Union.
Starch & Refining Company, 87 NLRB 779.
The conduct by Respondent Company, taken at face value, is violative of the
Act in another respect. It has been found above that the men sought an oppor-
tunity to present grievances to management on April 26 and did so after manage-
ment urged them to speak freely. After they disclosed their displeasure with
the output of Hahn, Everson decided to discharge them for reasons which have
not been credited. Consequently, as they were engaged in presenting a grievance,
a protected concerted activity for their mutual aid and protection, it is found that
the alleged decision to discharge them is equally violative of Section 8 (a) (1)
of the Act. N. L. R. B. v. Kennametal, supra; N. L. R. B. v. Tovrea Packing Co.,
supra, Gullett Gin Co. v. N. L. R. B., 179 F. 2d 499 (C. A. 5) ; and Carter Car-
buretor Corp. v. N. L. R. B., 140 F. 2d 714 (C, A. 8).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in con-
nection with the operations of Respondent Company, set forth 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.
12 Assuming a finding that the four men were discharged for the causes assigned by the
Company, this would, in the view of the undersigned, impel a further finding that Clarino
was qualified for employment as a Shakespearean actor, because then the only explanation
for his statements and conduct on April 27 would be that he, on discovering the nondis-
criminatory intent of the Company to discharge the four, immediately decided to utilize
the occasion for his own purposes by stamping out the revolt against his patronage of
appointing plant stewards. Clarino did not impress the undersigned as possessing so
fine a hand.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondents, and each of them, have engaged in unfair
labor practices, it will be recommended that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that Respondent Company has discriminated with
regard to the hire and tenure. of employment of Joseph N. Cornellier, Robert
Birmingham, Tige Lyons, and Samuel Sidelo, and has interfered with, restrained,
and coerced them in the exercise of the rights guaranteed by Section 7. of the
Act. It will be recommended that Respondent Company offer them immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges.
The undersigned has further found that Respondent Union has caused Re-
spondent Company to discriminate ^t+ith regard to the hire and tenure of employ-
ment of the four above-named employees. Accordingly, it will be recommended
that Respondent Union notify the Company in writing that it has no objection
to their employment, and that it request the Company to offer them immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges.
It will further be recommended that Respondents jointly and severally make
whole the four above-named employees for any loss of pay they may have suffered
by reason of the discrimination against them by the payment to each of them
of a sum of money equal to the amount each would normally have earned as
wages from the date of the discrimination against them to the dates of the
offers of reinstatement less the net earnings of each during such period. Said
loss of pay shall be computed on the basis of each separate calendar quarter or
portion thereof during the period from the date of Respondents' discriminatory
action to the date of a proper offer of reinstatement. F. W. Woolworth Company,
90 NLRB 289, and Cen-Tennial Cotton Gin Company, 90 NLRB 345.
As it would be inequitable to Respondent Union to permit the amount of its
liability to increase despite the possibility of its willingness to cease past dis-
crimination, in the event Respondent Company should fail to offer reinstate-
ment to those entitled to it under the recommended order, the undersigned will
provide that Respondent Union may terminate its liability for further accrual
of back pay by notifying Respondent Company in writing that it has no objection
to the reinstatement of the four above-named employees, as provided herein-
above, and it is recommended, in that event, that Respondent Union shall not
thereafter be liable for any back pay accruing after 5 days from the giving of
such notice. Absent such notification, it is recommended that Respondent Union
shall remain jointly and severally liable with Respondent Company for all back
pay that may accrue. Pinkerton's National Detective, Agency, Inc., et al.,
90 NLRB 205.
In order to insure expeditious compliance with the recommended back-pay
and reinstatement order, it is likewise recommended that Respondent Company
be ordered, upon reasonable request, to make all pertinent records available
to the Board or its agents. F. W. Woolworth Company, supra.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Respondent Union, Merchandise Drivers Local 641, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F. L.,
is a labor organization within the meaning of Section •2 (5) of the Act.
AIR PRODUCTS , INCORPORATED 1403
2. By discriminating with respect to the hire and tenure of employment of
Joseph N. Cornellier , Robert Birmingham , Tige Lyons, and Samuel Sidelo,
thereby encouraging membership in Respondent Union, Respondent Company,
Air Products , Incorporated , has engaged and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , Respondent Company has en-
gaged and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By causing Respondent Company to discriminate in regard to the hire and
tenure of employment of Joseph N. Cornellier , Robert Birmingham , Tige Lyons,
and Samuel Sidelo, in violation of Section 8 (a) (3) of the Act, Respondent
Union has engaged and is engaging in unfair . labor practices within the meaning
of Section 8 (b) (2) of the Act.
5. By restraining and coercing employees of Respondent Company in the
exercise of the rights guaranteed by Section 7 of the Act , Respondent Union has
engaged and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A ) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]