Astro-Space Laboratories, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 812 (N.L.R.B. 1965)

812 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
ing office clerical and plant clerical employees, color-chemist management
trainee, the laboratory part-time helper, guards, professional employees, and
all supervisors as defined in the Act.
REXALL CHEMICAL COMPANY, A DIVISION OF REXALL
DRUG AND CHEMICAL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 24
School Street, Boston, Massachusetts, Telephone No. 523-8100.
Astro-Space Laboratories , Inc. and International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO. Case No. 10-
CA-6013. November 15,1965
DECISION AND ORDER
On August 24, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices arid recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman
McCulloch and Members Brown and Zagori a] .
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings,' conchisions, and. recommendations of
the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'The testimony of Fugate, whom the Trial Examiner credited in cases of conflict with
Stricklin, establishes that Respondent was made aware of Fugate's union activity on
January 25, 1965, even if It be assumed that Respondent was not aware of such activity
prior to the discussions between Fugate and Stricklin.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The sole issue in this proceeding , heard before Trial Examiner Frederick U. Reel at
Huntsville , Alabama, on June 15, 1965, pursuant to a charge filed the preceding
March 3 and a complaint issued April 9, is whether Respondent , herein called the
155 NLRB No. 84.
ASTRO-SPACE LABORATORIES, INC. 813
Company, discharged one Earl Fugate on February 12, 1965, for producing too
much scrap (as contended by the Company) or for union activity (as contended by
General Counsel). Upon the entire record, and after due consideration of the brief
filed by the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that the Company, a New York corporation
engaged at Huntsville in manufacturing missile parts for the National Aeronautics
and Space Administration (Redstone Arsenal), annually receives goods valued at
more than $50,000 directly from outside the State and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The Charging Party, herein
called the Union, is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICE
A. Fugate's employment history and his union activity
Earl Fugate worked for the Company as a machinist from June 29, 1964, until his
discharge on February 12, 1965. He was hired at a rate of $3 per hour, and received
a 15-cent-per-hour wage increase about 1 month later. According to Fugate, at the
time he was hired, he asked General Foreman Stricklin 1 if the employees were
organized, to which Stricklin replied that the Company did not have a union, and he
did not want to hire anybody who wanted one. Stricklin denied that the question
of organization was discussed at the time Fugate was hired Originally hired for the
day shift, Fugate I week after transferred to the night shift, where he remained for
3 months before returning to the day shift. His work was apparently unexceptionable
until sometime in December when there occurred the first of the "scrapped work"
episodes, discussed below. Three other "scrap" jobs occurred in January 1965, and
one on February 12, the date of his discharge.
Fugate joined the Union on January 23 or 24, 1965, and was active in getting other
employees to join. Of the 36 men on the day shift in the machine shop, 18 signed
union cards at Fugate's urging. One such card signing occurred at noon on Monday,
January 25, when Fugate and employee Ed Owens were at Fugate's car, "parked in
front of the company door." Owens gave Fugate a "couple of other cards" in Fugate's
car, and signed his own card, standing outside and using the top of the car as a writing
surface. Fugate testified that his supervisor, Bob Watson, was standing in the door-
way approximately 60 feet away and was looking at Owens and Fugate while they
were in the car. Watson testified that he never saw Fugate soliciting membership or
carrying on any union activities outside the plant.
B. The abortive discharge of January 25
As just noted, Fugate obtained Owens' signature on a union card at noon on
January 25. That afternoon, according to Fugate, Watson and other supervisory
personnel met in the office of General Foreman Stricklin, and when Watson emerged,
he told Fugate he "was discharged for causing too much trouble." Fugate's version
is that he said nothing to Watson but went to Stricklin to request a written reason for
the discharge, that Stricklin said he would go to the office for one, and that an hour
later Stricklin returned, said he did not want to discharge Fugate, and suggested that
Fugate quit as he "was causing too much trouble in the shop." Fugate replied,
according to his testimony, that he did not want to quit, but "wanted to stay there
and get a Union in the Company ...."
Stricklin's and Watson's versions of the January 25 affair differ markedly from
Fugate's. According to Stricklin, Watson came to him on that day "and said
Fugate had just scrapped another job and that he had fired him." Stricklin testified
that he "could tell Watson was probably a little heated up over the incident," that he
told Watson "maybe he had been hasty," and that he (Stricklin) would review
Fugate's personnel file and decide the matter himself. Stricklin further testified that
at that time he found three scrap reports in Fugate's file, and in view of the need for
men of any competence he called Fugate in and said the Company would give him
another chance. According to Stricklin, Fugate insisted that he be fired but Stricklin
told him to go home, cool off, and return the next day . Stricklin testified that he told
I His name is misspelled " Strickland" throughout the transcript.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fugate "if he quit, I couldn't help that, but I needed him and would like for him to
stay." Stricklin denied that the Union was mentioned in that conversation. He also
testified on direct examination as follows:
Q. Did you at that time say that you would go to the front office and get a
written reason for his being discharged.
A. No. Mr. Fugate asked for a written reason, but I told him it had been a
Company policy never to give one.
Watson's testimony as to the January 25 affair is that when Fugate reported that
he had scrapped a certain job that day, Watson fired him on the spot, stating that this
was the last job Fugate was going to scrap for him. Watson testified that he then
reported his action to Stricklin.
C. The scrap reports of January 29 and Fugate's
discharge on February 12
The following day, January 26, Fugate was transferred from Watson's supervision
to that of Paul Gibbs. On January 29 Stricklin had separate memorandums typed
covering the four faulty jobs on which Fugate had worked for Watson, and gave the
memorandums to Gibbs for transmission to Fugate. Upon receiving them, Fugate
went to Stricklm's office to discuss the various jobs and Stricklin called in Watson to
assist in identifying the jobs and discussing them. The details of the scrapped jobs
are discussed below. According to Fugate, during his conversation with Stricklin on
January 29, whenever Fugate would point out self-exculpating factors, or suggest that
others were involved in the faulty work, Stricklin would reply that Fugate "was the
only one he wanted out of the company." Stricklin and Watson deny that Stricklin
made any such comment. In fact, Stricklin, when asked whether he asked Fugate
to quit on that occasion, testified: "No I needed him." Fugate also testified that on
this occasion he asked Stnckhn for a raise, to which Stricklin replied (to quote
Fugate's testimony), "if I started minding my own business and quit stirring up
trouble, I would get a pay raise within a couple of weeks, but if I didn't quiet down
and quit causing trouble, I was going to lose my job." Stricklin and Watson deny
that a pay raise or "quieting down" was mentioned at this time
Fugate testified that the warning notices he received on January 29 were the first
ever issued by the Company to any employee. Asked how he knew this fact, he
testified: "Because I asked all the men out there, and they had never seen them
before, and all the men wanted to see what they looked like." Stricklin testified that
the warning notice system came into effect in July 1964, but the Company introduced
no documents in support of this assertion.
On the morning of February 12 Fugate told his supervisor, Gibbs, that a certain
part had to be scrapped. Gibbs reported the matter to Stricklin. A few hours later,
about 3:30 p.m., Stricklin told Fugate he was discharged. Fugate testified that
Stricklin declined to give a reason, but Stricklin testified that he told Fugate it was for
producing too much scrap. Shortly after Fugate's discharge, Gibbs discovered that
the piece on which Fugate had been working that afternoon (a companion piece to
the scrapped job that morning) also had to be scrapped.
D. The scrap problems
1. The Company's experience with scrap
The Company makes parts for use in the missiles produced by the United States
at its Redstone Arsenal; the work understandably demands a high degree of precision.
Permissible "tolerances" or variations from the specifications are miniscule; for
example, one machined item referred to in the testimony carried a "tolerance" of
"minus zero, plus 1/5000," meaning that the part could not be any smaller than the
specification and be acceptable, but could be as much as one five-thousandth of an
inch larger (.0002) and still pass. An employee witness called by General Counsel,
one Lewis, who had over 25 nears' experience in machine shop work, testified that
in ordinary machine shops an allowable percentage of scrap would be 2 percent, but
that the amount of scrap work at the Company because of the degree of precision
required ran higher; he estimated it at 5 percent. Strickhn, a company witness and
supervisor of the machine shop, agreed with Lewis' estimate of 2 percent scrap in
nonprecision work; but estimated the amount of scrap at the Company as running
3 or 4 percent. Stricklin further testified- "Every man makes some scrap. This is
acceptable but, if he continues to make scrap, it is time to mention it to him, and warn
him to take more precautions." In the 4-year history of the Company only one
employee other than Fugate was discharged for excessive scrap; this was Otis Cash,
discharged June 8, 1964.
ASTRO-SPACE LABORATORIES, INC. 815
The fact that a job is scrap may be brought to light by the machinist himself in
the course of working on the part, or it may be unearthed by inspectors employed
by the Company. The latter prepare what is known as a "squawk sheet," which
identifies the part by order number, description, and customer, notes the defect or
reason for the "squawk" and the department responsible for the defect, and recom-
mends the appropriate action (e.g., "scrap" or "rework"). Not all "squawk" sheets
concern scrap. A copy of the "squawk sheet" is given to the supervisor or leadman
on the work involved; Watson, who was leadman on a crew of 15 to 20 men, testified
that he received an average of 1 per day, but only a small number were for scrap. In
the case of scrap the leadman or immediate supervisor will promptly send a penciled
memorandum to the general foreman, and the latter's secretary will type them as she
has time, "probably once a week, or maybe more often" according to Stricklin.
2. Fugate's scrap record
As noted above, Watson testified that when Fugate reported a scrap job on Janu-
ary 25, Watson fired him on the spot, stating that this was the last job Fugate would
scrap for him. Also as noted above, Stricklin testified that on this occasion he
reviewed Fugate's scrap record and decided not to discharge Fugate. Indeed, Strick-
lin testified as to both the January 25 and 29 episodes that he did not urge Fugate to
quit as he needed Fugate. But on February 12, the next time Fugate's work had to
be scrapped, he was promptly fired, this time by Stricklin.
The Company contends that Fugate's first "scrap" job occurred in mid-December,
and that he was subsequently involved in three other "scrap" episodes prior to this
final episode on February 12. The details and the conflicting testimony on each
of the jobs in question may be summarized as follows.
(a) The December job involved the manufacture of a number of bearing pins,
about one-quarter of an inch long and about one-eighth inch in diameter. According
to the "squawk sheet," the order was for 20 pins and 16 were defective. According
to the written memorandum which Fugate received on January 29 and discussed with
Stricklin and Watson that day, 14 pins were defective and the total lost time was
6 hours 2 Fugate testified that the order was for 40 pins, that at the time he had to
scrap 15, and that Watson told him at the time "that was a pretty good average "
Watson denied ever making that comment and did not believe that the order was of
that size.
(b) The second job on which the Company complained both to Fugate and in the
hearing did not involve scrap. This lob concerned a ring cut in a piece so that a
rubber ring could be inserted to make it airtight. Fugate cut the ring too deep and
some welding was necessary to make the part usable. The welding, which Fugate
did not do, was unsatisfactory and had to be redone; Watson himself testified that the
latter fault was not attributable to Fugate. The job was eventually accepted by the
arsenal.
(c) The third item with respect to which the Company charged Fugate with faulty
work concerned nine studs on which threads were deformed. The "squawk sheet"
on the job was marked "rework," rather than "scrap." The memorandum handed
Fugate recited that 9 work hours were lost on the job "due to scrap, on January 19,
1965." Fugate denied any responsibility for the deformed threads, claiming that he
worked on another part Watson testified that the thread deformity was caused by
Fugate's holding the part too tightly during his operation.
(d) The fourth questioned job was the one which, according to Watson, led to the
episode of January 25. On this occasion Fugate apparently misunderstood a drawing
Watson had made, and copied it exactly although Watson had indicated in the drawing
that he was showing only a part of the design and expected the machinist to make the
part symmetrical rather than one-sided, as Watson had sketched it. The work was
scrap, and the memorandum later handed Fugate showed that 3 hours were lost
because of his fault.
(e) The final job which immediately preceded Fugate's discharge was a drive shaft,
about 4 inches long and about a pencil's width in diameter which, according to Gibbs,
who was Fugate's supervisor at the time (he is now general foreman, having replaced
Stricklm), bowed because of excessive pressure Fugate testified that the part was
bowed when he received it, that he so advised Gibbs, and that Gibbs told him to put
it on the grinder and do the best he could. Gibbs was not asked to and did not
directly deny this testimony, but a fair reading of Gibbs' testimony indicates that
he regarded Fugate as at fault in the matter. The company memorandum recites a
2 The exhibit, which reads 15 hours, is in error.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of 5 hours on the job. A second part, discovered after Fugate's discharge, was
likewise defective 3 An identical part was worked on the night before by one Lewis,
an experienced machinist; his work was also scrapped. Gibbs testified that apart
from the scrapped job on February 12, Fugate's work during his last 2 to 3 weeks
under Gibbs was "entirely satisfactory."
E. Concluding findings
The issue in the case is, of course, purely factual: did the Company discharge
Fugate for excessive scrap, as it contends, or did it "build a case" against him on the
scrap matter because it wanted to be rid of a union leader, as General Counsel con-
tends? If the company witnesses are credited, they were totally unaware of Fugate's
union activity. If Fugate is credited, not only did one supervisor observe his union
activity but anothei rather openly referred to it when giving him warning notices.
If the company witnesses are credited, Fugate's scrap record was excessive; if Fugate
is credited, he was blameless in most if not all the five episodes in which his work
was criticized. Certain basic principles of law operate in the Company's favor. In
the first place, General Counsel bears the burden of proof. Second, Fugate's union
activity affords him no shield against discharge for cause. Third, if the Company
was in fact motivated by Fugate's scrap record, it is not for me or the Board to
say that the Company erred in its judgment or acted too harshly or unwisely.
Operating somewhat in Fugate's favor is the coincidence in time, for the
attack on his work occurred immediately after he became active in the Union. But
this circumstance alone falls far short of establishing the proof needed to sustain
General Counsel's burden 4
Cases of this nature which ultimately turn on the credibility of the witnesses impose
a particularly heavy responsibility on the trier of fact, be he trial examiner, judge,
or jury, who observes the demeanor of the witnesses on the stand But in this case
as in many others I found nothing noteworthy in "demeanor." I was and am inclined
to discount somewhat Fugate's efforts to establish that he was rarely at fault, as the
natural tendency of a man under attack for his work is to be defensive and self-
exculpatory. But Fugate did not completely deny any fault (as company counsel
asserts in his brief); he was frank to state at one point, "So I put the `O' ring in, and
cut it too deep ...," and he admitted spoiling a number of pins in December. The
Company suggests tnat Fugate twice "embroidered" his testimony as to what Stricklin
allegedly said when Fugate was hired. But the first "embroidery," was simply a
repetition of an answer, part of which was lost in the hubbub of an objection and
argument, and the second "embroidery," as the record plainly shows, was the repe-
tition of a closing phrase which the court reporter stated on the record he could not
hear. I have discussed Fugate's demeanor and testimony at this length because they
are placed at issue (quite properly, of course) in the Company's brief. On the other
hand, I am not disposed to accept all of Stricklin's and Watson's testimony either,
for reasons noted below.
Approaching the case "backwards" and starting with the discharge itself, I believe
it is reasonably clear that by his last day of work Fugate was a marked man, whom
Stricklin was prepared to discharge for his next offense This seems clear because
Gibbs, the supervisor, immediately took the scrapped part to Stricklm, who immedi-
ately announced that he would fire Fugate. Yet Gibbs testified that scrap was not
unusual, and that Fugate's work for him up to that point had been entirely satisfactory.
No inquiry was conducted into the cause of the scrap, although an identical job had
been scrapped by another man the night before. Even in the Company's eyes, the
episode of February 12 was merely the final straw, and our inquiry must therefore
be into whether the earlier "straws" consisted of scrap work or of union activity. The
3 The Company also introduced evidence of defective work on Fugate's pa^t which did
not come to light until the month after his discharge. The evidence as to Fugate's
responsibility for this job is meager, and in any event it played no role in his discharge
4 That coincidences do occur in life and that factual findings should not be based on a
mere disbelief in coincidence is demonstrated on this record Two years, almost to the
day, before the hearing in this case, I heard another case in the same city, involving a
similar claim (discrimination against one individual), defended by the same counsel. In
that case (which I dismissed for failure of proof and which was not appealed, Brov.ti
Engineering Co., 10-CA-5217), a settlement agreement was introduced in evidence involv-
ing still another alleged discriminatee The beneficiary of that agreement was none other
than Otis Cash, whose name appears in thi' record as the only employee prior to Fugate
whom this Company discharged for excessive scrap
ASTRO-SPACE LABORATORIES, INC. 817
key to the case, in short, is not what happened on February 12, but what happened
on January 25 and 29.
Fugate's version of those events is that he was seen engaging in union activity, that
he was thereafter fired, and that when he asked Stricklin for a reason, the latter went
to the main office and after a long absence returned and endeavored to persuade
Fugate to quit Then a few days later Fugate is given an unprecedented set of warn-
ing notices, plainly a prelude to the later discharge for which the Company had now
(in Fugate's view) "created" a "reason " The Company denies knowledge of the
union activities and denies that Stricklin wanted Fugate to quit. It attributes the
January 25 episode to an excess of scrap on Fugate's part and perhaps hastiness by
Watson, and it denies that Stricklin went to the office to get a written reason for the
discharge
The episode of January 29 in which Stricklin had four warning notices for Fugate
can be construed to support either version. As the Company sees it, Stricklin was
giving Fugate fair warning of his poor work. As Fugate sees it, this was a necessary
step to building a case against him when the first effort to get rid of him a few days
earlier had proved abortive for lack of documentation. I have little doubt that the
Company's action on January 29 in handing Fugate the warning notices was indeed
in preparation for his later discharge. The notices were unprecedented; I credit
Fugate's express testimony on this point, particularly in the light of his corroborative
detail that the other employees were curious to see what they looked like, and in the
light of the Company's failure to introduce in evidence any similar notices. Cf.
N.L.R.B. v. Sam Wallick, et al., d/h/a Wallick and Schwalm Company, et al., 198
F. 2d 477, 483 (C.A. 3), citing 2 Wigmore, Evidence, § 285. Stricklm's testimony on
this point is itself revealing. He stated that his secretary typed notices of this sort
"as she had time. Probably once a week, or maybe more often." Yet the notices to
Fugate were all typed on January 29, although one episode occurred 7 weeks before
that date. But the fact that the Company was "building a case" in the sense that it
was giving Fugate warning does not establish that the Company was motivated by
union activity, although it does to a minor degree bear out Fugate's theory that the
Company felt the need for documentation and hence to a minor degree supports his
story as to what occurred January 25.
The critical part of the case, however, centers on January 25. After that date,
Fugate was apparently marked for discharge for his next transgression. Did ne
occupy his unenviable position because of excessive scrap or because of union activity?
The testimony and events of January 25 impel me to the latter conclusion.
The testimony of Watson and Fugate is in sharp conflict as to what occurred on
January 25 Fugate's version is that when Watson left a meeting in Stricklin's
office, Watson told Fugate he was fired Watson's version is that when Fugate
reported scrapping a certain job, "this had happened quite a bit in the past month,
and I told him that this was the last job he was going to scrap for me, and I fired
him ...... Actually, Fugate had only "scrapped" one other job in the past month.
Of the three matters previous to January 25 with which he is charged, one was not
scrapped and one occurred over 6 weeks before. In a plant in which scrap was a
common enough occurrence, it seems unlikely that Watson would have fired Fugate
for spoiling a job that took only 3 hours to redo But here again the case is not clear,
for Stricklin's testimony is that he countermanded Watson's order. This would seein
to indicate that while Watson was overhasty, he was in fact motivated by his irritation
at Fugate's work. Again, however, we come to a sharp conflict in testimony, this time
between Fugate and Stricklin. The former testified that when he asked Stricklin on
January 25 for a written reason for this discharge, Stricklm "said he would go to the
front office and get one .... He was gone about an hour, and he come back, and
he told me, he said he didn't want to discharge me, why didn't I just go ahead and
quit, that I was causing too much trouble in the shop " Stricklin's testimony is that
he saw Watson was "a little heated up over the incident and I told him maybe he had
been hasty, that I would like to review Fugate's personnel file . . . and make a deci-
sion on it myself." Stricklin's testimony continues that after reviewing Fugate's file,
"I called him in and told him that I had changed the decision, and that we wanted to
give him another chance, and 1 would like for him to go ahead and see if he could
improve his work and stay with us " Finally, Stricklin testified that Fugate "insisted
that he be fired," but that Stricklin told him to cool off.
As to this interview I credit Fugate, and not Stricklin, for later in Stricklin's direct
examination the following occurs:
Q. Did you at that time say that you would go to the front office and get a
written reason for his being discharged?
A. No, Mr. Fugate asked for a written reason, but I told him it had been a
company policy never to give one.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This last quoted answer seems to me hopelessly at odds with the rest of Stricklin's
testimony , and confirmatory of Fugate's. If Stricklin told Fugate at the opening of
their talk that the discharge was revoked , and if Fugate urged that he be fired , Strick-
lin's last quoted answer would be responsive to nothing It would, however, fit well
into Fugate 's version of the events . I credit Fugate and find that he was discharged on
January 25 , that the discharge was revoked when he asked for a written reason, and
that the later events of January 29 and February 12 represent the Company's efforts
to supply a reason to cover the discharge it had decided upon on January 25 In this
connection , I also cannot credit Stricklin 's testimony that he needed Fugate and urged
him to stay on January 25 and 29, for the precipitate discharge on February 12 sug-
gests that the Company was ready to let Fugate go on his next transgression.
What I have said does not, perhaps , establish conclusively that Fugate 's union
activity and not his scrap caused his discharge But having credited Fugate as to his
January 25 conversation with Stricklin , I am impelled to the conclusion that Stricklin's
false testimony was designed to conceal the real reason for the Company 's action As
I view the matter , when Fugate pressed for a reason for his discharge Stricklin was
unable to supply a lawful one at the time , and the stage was then set ( including the
new warning notices never theretofore issued ) to give the cloak of legality to the
action.
This is not to say that Fugate's work was beyond reproach , for he did produce
several scrap jobs (not an uncommon occurrence in this precision work ), but on this
record I find that this was not the motivating cause for his discharge The events
of January 25, coming on the heels of his union activity, are attributable to that
activity and not to his work
Having thus concluded , it would be corroborative to find union animus on the part
of the Company as evidenced in Stricklin 's comment to Fugate when the latter was
hired. Stricklin denied the statements attributed to him, and General Counsel pro-
duced no other employee to testify as to similar statements to him. On the other
hand it is plain that either Stricklin or Fugate is testifying falsely as to this matter;
the discrepancy in their testimony is too great to be attributable to misunderstanding
or faulty recollection Faced with a choice between the two and having detected
Stricklin in other falsehoods on this record , I credit Fugate on the point
It may be objected that this case turns on a little thing-Strickl in 's admission that
Fugate asked for a written ieason on January 25, which I find consistent with Fugate's
version and inconsistent with Stricklm 's. But in a sense this is a "little " case-little
in terms of length and of overall significance , although important to the parties-and
short of a confession of guilt or of error , it must necessarily turn on a "little " thing.
And one cannot overlook Judge Learned Hand 's repeated quoting of Cromwell's "I
beseech ye ... think that ye may be mistaken ," 5 for our legal literature is too full of
error ( notably in criminal cases where subsequent events have shown that verdicts
of guilty were erroneously rendered ) 6 for any mere Trial Examiner to be overly con-
fident of his result in a case such as this Nevertheless , upon my analysis of the record,
I make the findings set forth above.
III. THE REMEDY
I shall recommend that the Company cease and desist from its unfair labor prac-
tices, that it reinstate Fugate with backpay computed in accordance with the formulas
set forth in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co , 138 NLRB 716, and that it post appropriate notices. The instant case is like
N L R B v. Entwistle Mfg. Co , 120 F 2d 532, 536 (C A. 4), in that it concerns a
discriminatory discharge For reasons there stated by the court, I am recommending
the issuance of a broad cease-and-desist order.
CONCLUSION OF LAW
By discharging Earl Fugate because of his union activity the Company engaged in
an unfair labor practice affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
ORDER
Upon the foregoing findings of fact and conclusions of law, upon the entire record
in this case, and pursuant to Section 10(c) of the Act, it is recommended that
c See Hand, "The Spirit of Liberty," pp 229-230 (also p XXIV), Knopf, 1952
See Jerome and Barbara Frank, "Not Guilty," Doubleday, 1957, Borchard, "Convicting
the Innocent," Yale Univ. Press, 1932.
ASTRO-SPACE LABORATORIES, INC. 819
Respondent, Astro-Space Laboratories, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any employee because of
membership or activity in the International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization.
(b) In any other manner interfering with, restraining, or coercing any employee in
the exercise of his right to join or assist the above-named or any other labor
organization.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer to reinstate Earl Fugate to his former or a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges, and make him
whole in the manner described in the portion of the Trial Examiner's Decision entitled
"The Remedy" for any loss of earnings suffered by reason of the discrimination
against him.
(b) Notify Earl Fugate if he is serving in the Armed Forces of the United States
of his right to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, 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
amount of backpay due under the terms hereof.
(d) Post at its plant at Huntsville, Alabama, copies of the attached notice marked
"Appendix." 7 Copies of such notice, to be furnished by the Regional Director for
Region 10, shall. after being duly signed by an authorized representative of the
Respondent, he posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 10, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.8
7In the event that this Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for "a Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
8In the event that this Order is adopted by the Board, this provision shall be modified
to read , "Notify said Regional Director , In writing, within 10 days from the date of this
Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Earl Fugate his former job and pay him for wages he lost
since February 12, 1965.
All our employees have the right to join or assist International Union of
Electrical, Radio and Machine Workers, AFL-CIO, or any other union. They
also have the right not to join or assist any union.
WE WILL NOT take any action against them for engaging in union activity, or
in any other manner interfere with , restrain , or coerce them in their exercise
of those rights.
ASTRO-SPACE LABORATORIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
212-809-6 6-vol. 155-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee , if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta , Georgia, Telephone No.
Trinity 6-3311, Extension 5357.
Vacuum Plating Corporation and Amalgamated Jewelry Work-
ers Union , Local 18, AFL-CIO. Cases Nos. 1-CA-4858 and
1-CA-4941. November 15,1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner Robert Cohn issued his Decision
in the above-entitled proceeding , finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision . He also found that
Respondent had not engaged in other unfair labor practices alleged,
and recommended dismissal of those allegations . Thereafter, the
Respondent filed exceptions to the Trial Examiner 's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board 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 Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
The Trial Examiner found, and we agree, that Respondent violated
Section 8(a) (1) of the Act by General Manager Petrucci's interroga-
tion of employee Berger as to employees' attitude toward the Union
and by his threat to her that the plant would be closed if everybody
signed union cards; by Marie Petrucci's interrogation of employees
Berger, Pierce, Meideros, and Scott as to whether they had signed
union cards; and by Floorlady Corriea's questioning of employees
Lomba, Lopez. and Raleigh as to their union affiliation. However,
in the absence of direct testimony as to the content of conversations
which Corriea had with other employees. and in view of the fact that
additional findings of violations of Section 8(a) (1) would not affect
155 NLRB No. 73.