Atlas Coil Spring Co.

National Labor Relations Board - Board Decisions

Feb 20, 1946

65 N.L.R.B. 1254 (N.L.R.B. 1946)

In the Matter of OSCAR CUTLER AND ELIZABETH LEDERMAN, D/B/A
ATLAS COIL SPRING COMPANY AND Lou-is J. KELTY, D/B/A KELTY
MACHINE WORKS and UNITED STEELWORKERS OF AMERICA (CIO)
Case No.1-C-0519.Decided February 20,1946
DECISION
AND
ORDER
On September 25, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. No exceptions to the Intermediate Report,
briefs, or requests for oral argument before the Board in Washington,
D._ C., were thereafter filed with the Board.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report
and the entire record in the case.,
As previously noted, the respondents have filed no exceptions to the
Intermediate Report. The Board, accordingly, adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
addition noted below.
THE REMEDY
We have found that the respondents violated the Act by: (1) in-
terrogating their employees concerning their union activities; (2) un-
lawfully seeking to induce their employees to give up their affiliation
with the United Steelworkers of America, CIO, or to transfer it to a
union of the respondents' own choosing, and threatening them with
economic reprisals if they refused; and (3) discriminating against
employees affiliated with the Steelworkers in their work assignments
and working conditions. We have further found that the respondents
discriminatorily discharged all the members of the Steelworkers in
its employ because of their union and concerted activity and sub-
sequently, after rehiring them, again discriminatorily discharged
65 N. L. R. B., No. 212.
1254
ATLAS COIL SPRING COMPANY 1255
employees Regnante and Marchesini because of their union activity.
Upon the entire record we infer and find that the respondents, by
their foregoing coercive course of conduct, and particularly by the
discharges, have displayed an attitude of flagrant opposition to the
purposes of the Act. Because of the respondents' unlawful conduct,
and the underlying purpose manifested thereby, we are convinced that
the unfair labor practices which they have committeed are per-
suasively related to the other unfair labor practices proscribed by
the Act, and that danger of the commission in the future of any or all
of the unfair labor practices listed in the Act is to be anticipated from
the respondents' conduct in the past. The preventive purposes of the
Act will be thwarted unless our order is coextensive with the threat.,
We shall therefore order the respondents to cease and desist not only
from the unfair labor practices herein found, but also from in any
other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. In
addition, we shall order the respondents to take the affirmative action
recommended by the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Oscar Cutler and Elizabeth
Lederman, doing business as the Atlas Coil Spring Company, and
Louis J. Kelty, individually, and doing business as Kelty Machine
Works, and their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating their employees concerning their union activities
and unlawfully seeking to induce their employees to give up or
to transfer their union affiliation and threatening them with economic
reprisals because of their union membership or activity ;
(b) Discouraging membership in United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, or any other
labor organization, by discharging any of its employees, or by dis-
criminating in regard to their work assignments and working con-
ditions, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of their
employment;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist United Steelworkers of
3 See N. L. R. R. v . Empress Publishing Company, 312 U S. 426; May Department Stores
Co. v. N. L. R. B., 66 S . Ct. 203.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, affiliated with the Congress of Industrial Organizations,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
.effectuate the policies of the Act :
(a) Offer to Georgina Regnante and Grace Callahan Marchesini
immediate and full reinstatement to their former positions as machine
operators or to substantially equivalent positions, without prejudice
to their seniority and other rights and .privileges ;
(b) Make whole Georgina Regnante and Grace Callahan Mar-
chesini for any loss of pay they may have suffered by reason of the
respondents' final discrimination against them, by payment to each
of them of a sum of money equal to the amount she normally would
have earned as wages from the date of the respondents' discrimination
against her to the date of the respondents' offer of reinstatement, less
her net earnings during such period;
(c) Post in the respondent Atlas' plant at Beverly, Massachusetts,
copies of the notice attached hereto, marked "Appendix A." Copies
,of said notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the respondents' representa-
tives, be posted by them immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter, in conspicu-
ous places; including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respond-
ents to insure that said notices are not altered, defaced, or covered
by any other material ;
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order what steps the re-
spondents have taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Leo J. Halloran , Esq., for the Board
Abraham Glovsky, Esq , of Beverly , Mass, for the Respondents.
Grant & Angoff, by Mr. Samuel E. Angoff, of Boston, Mass , for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by United Steelworkers of America, CIO, herein called
the Steelworkers or the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the First Region (Boston, Massa-
chusetts), issued its complaint dated August 2, 1945. against Oscar Cutler and
Elizabeth Lederman, doing business as the Atlas Coil Spring Company, herein
ATLAS COIL SPRING COMPANY 1257
called the respondent Atlas, and Louis J. Kelly, doing business as the Kelty
Machine Works, herein called the respondent Kelty, alleging that the respond-
ents, and each of them, had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint accompanied by notice of hearing thereon, were
duly served upon the respondents and the Union. '
With respect to unfair labor practices, the complaint alleges in substance
that the respondents: (1) questioned their employees concerning their union
activities, disparaged and ridiculed the Union, threatened economic reprisals
to those engaging in activities on behalf of the Union, assigned employees to
hazardous and unhealthful work because of their union activities, segregated
known union members from other employees, and sought to persuade employees
to become members of a union of the respondents' choosing; (2) discharged
Georgina Regnante and Grace Callahan Marchesini because of their union affilia-
tion and activities ; and (3) by the foregoing conduct, interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act. The respondents filed no answer but during the course of the
hearing entered an oral denial that they had engaged in any of the alleged unfair
labor practices
Pursuant to notice, a hearing was held at Boston, Massachusetts, on August
13, 14, and 17, 1945, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. After the testimony had been taken, the undersigned granted
without objection a motion of the Board's attorney to conform the pleadings
to the proof The respondents, the Board, and the Union argued orally before
the undersigned All parties waived the filing of briefs with the undersigned.
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 T'HE"RESPONDENTS
The respondent Atlas is a partnership, having its office and principal place
of business at Beverly, Massachusetts, where it is engaged in the machining
or processing of castings for the U. S. Time Corporation, Waterbury, Connecticut,
and, since on or about March 1, 1945, the General Electric Company, Lynn,
Massachusetts' The castings are shipped to the Atlas plant from Waterbury,
Connecticut, and Lynn, Massachusetts, respectively, and when the respondent
Atlas has completed its work on the castings it returns them to the sources from
which they were received. The finished product is ultimately disposed of to the
Armed Forces of the United States. The approximate value of the processing
done by the respondent Atlas for the U. S. Time Corporation during the calendar
year 1944, was $200,000. The undersigned finds that the respondent Atlas is
engaged in commerce within the meaning of the Act.
The respondent Kelty is a sole proprietorship with its office and place of
business at the same address as that of the respondent Atlas. From on or about
November 1, 1943, until the present, Louis J. Kelly, sole proprietor of the Kelty
'The Board , in Matter of General Electric Company, 58 N. L R. B 12 , found that this
company was engaged in commerce within the meaning of the Act.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machine Works, has been employed by the respondent Atlas as its supervisor of
production. On or about October 20, 1944, an oral agreement was entered into
between the respondents Atlas and Kelty whereby the respondent Atlas sub-
contracted the processing of range housings, one of the three types of castings
which it processed in performance of its contract with the U. S. Time Corporation,
to the respondent Kelty Kelty performed this work in the respondent Atlas'
plant, furnished his own labor, and was compensated on a piece-work basis. This
agreement was terminated on or about January 2, 1945. Both during the life
of the agreement and subsequently to the present, Kelty has continued on the
respondent Atlas' pay roll as superintendent of Atlas production. The respond-
ents have at all times share the same office and carried on their operations in the
same shop, using the same facilities, and without segregation of their individual
operations or employees. Insofar as the respondent Kelty operated as a sub-
contractor, it is clear that he engaged in commerce within the meaning of the Act,
there being no essential difference with respect to commerce between the work he
performed as subcontractor and that performed during the same period by the
respondent Atlas. It is further found that Kelty has at all times material herein
acted as the respondent Atlas' duly authorized spokesman in matters relating
to personnel and 'has exercised unlimited authority in the control of Atlas as
well as Kelty personnel. Upon the entire record the undersigned finds that the
respondent Kelty is, and at all times material herein has been, an employer
within the meaning of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. The Atlas-Kelty operations
In the spring of 1944, the respondent Atlas subcontracted a portion of its-
processing of parts for the U S Time Corporation, to the Service Die Company
and North Shore Cutting Die Company of Lynn, Massachusetts. Louis J Kelty
supervised the work of the subcontractors for the respondent Atlas. Among those
employed by one or both of the subcontractors, and working under Kelty's su-
pervision, were Grace Callahan Marchesini, known to the employees and called
herein Grace Callahan, Frances Flynn, Alberta Trecartin, and Georgina Regnante.
In or about June 1944, Flynn, Trecartin, and Regnante were laid off by the
North Shore Cutting Die Company. Kelty arranged a meeting of these employees
with Oscar Cutler, one of the partners of the respondent Atlas, and, with Cutler's
approval, hired these employees to work for the respondent Atlas at its plant in
Beverly. The respondent Atlas paid these employees for the approximately one
week's time which elapsed between the termination of their prior employment and
the date when they first went to work for Atlas A few weeks later, Kelty em-
ployed Grace Callahan for Atlas. Callahan had previously worked under Kelty's
supervision at the Service Die Company in Lynn. Kelty as the respondent Atlas'
supervisor of production, was given a free hand in the hiring and discharge of em-
ployees, and it is clear that in hiring Flynn, Trecartin, Regnante and Callahan,
he was acting for the respondent Atlas and not as an independent contractor.
On or about October 20, 1944, the respondent Atlas entered into an agreement
2 Further details of the Atlas-Kelty operations are supplied in Section III (A) of this
Report.
ATLAS COIL SPRING COMPANY 1259
with Kelty by which the latter, under the trade name of Kelty Machine Works,
undertook the processing of range housings on his own account. Cutler testified
that Kelty performed this work as a subcontractor and furnished his own labor,
and that the following employees from the date the agreement was entered into
until its termination on or about January 2, 1945, appeared on the Kelty as dis-
tinguished from the Atlas pay roll:
John Arnold Hazel Downing
Grace Callahan Tiliie Cordette
Frances Flynn Alberta Trecartin
It is clear, however, that these employees were originally employed by Atlas
and that their transfer from the Atlas to the Kelly pay roll was made without
their knowledge or approval. Upon the termination of the Atlas-Kelty agreement
most of them were automatically transferred back to the Atlas pay roll.' Op-
erations of both Atlas and Kelly were carried on in the same shop and the
employees all used the same facilities. At no time was there any physical segre-
gation of Kelty from Atlas employees and operations, and at all times Kelty ex-
ercised managerial control over all personnel. A total of some 10 to 12 women
and 4 or 5 men were employed in the joint Atlas-Kelty operations.
B. Interference, restraint, and coercion
In the latter part of October or early November 1944, all of the girls employed
in the Atlas plant, except one, became affiliated with the Steelworkers. Grace
Callahan was the leader in the organizational movement. None of the male em-
ployees at any time participated in the organizational activities.
On November 16, the Steelworkers addressed a letter to the respondent Atlas
advising it that a majority of the employees had affiliated with the Steelworkers
and requesting a bargaining conference. Cutler testified that when he received
the letter on November 17, he showed it to Kelty and Kelty said that he wanted
to find out if all the employees knew that the plant was being organized. Cutler
testified that he replied, "All right. I think that is all right." Kelty then called
the employees into the office which he shared with Cutler, and in Cutler's presence,
questioned them individually as to whether or not they had knowledge of the
letter. The undersigned finds that Kelty's real purpose in questioning the em-
ployees individually about the letter was to discover whether or not they were
affiliated with the Steelworkers, and that Cutler approved of this action.
Following these individual conferences, Kelty called Frances Flynn and Alberta
Trecartin, two of the girls he had employed for Atlas upon the termination of
their employment at the North Shore Cutting Die Company, to the office. He
told them that there was no need for a union in the plant and if there was going
to be a union he wanted the United Electrical Machine & Radio Workers of
America, called herein the UE. He then said that Grace Callahan was to blame
for bringing the Union into the plant, and that he would discharge her. The girls
denied that Callahan was responsible for bringing the Union into the plant, and
said that they were all in favor of the Union.4
Later this same day, a group of girls including Callahan, Trecartin, Regnante,
and Flynn, were called into the Cutler-Kelty office, and were advised by Kelty
that they were now on his pay roll. He called their attention to the fact that the
Steelworkers' communication was not directed to him individually. It is clear
3 Kelty thereafter, however, carried three employees on his own pay roll, these being
Arnold, Michael Kane, and A. Bresnahan.
* These findings are based on the mutually corroborative testimony of Flynn and Tre-
cartin whom the undersigned credits.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this was the first information that these employees had that they had been,
transferred from the Atlas to the Kelty pay roll. It further appears that Reg-
nante, one of those present, was at all times carried on the Atlas pay roll.
Still later during the day, all of the employees were summoned to the office
where Kelty advised them that thereafter the work week would be cut to 40 hours.
Previously, there had been a maximum work week of about 46 hours, although
all employees did not regularly work the maximum hours allowed In announcing
the cutback in hours, Kelty stated that it was not on account of the Union but for
lack of work.
Cutler testified that starting in July, the U. S Time Corporation failed to
supply sufficient castings to enable the respondents to operate on a full-time
schedule. Questioned by respondents' counsel, "Was there any difference in
your trouble about getting parts in the period before November and after Novem-
ber?" Cutler testified, "There was no difference" He further testified that he
and Kelty had discussed the cutback in hours some two or three weeks prior to
November 17, but admitted that the employees were not advised of the cutback
until November 17. he undersigned believes that business considerations may
very well have justified a cutback in hours, but is convinced that the announcement
of the cutback, made only a few hours after Cutler had received the letter from
the Steelworkers and Kelty had questioned the employees concerning their
knowledge of it, was timed with the intent that it should be associated in the
minds of the employees with their union activities and should discourage them
from persevering in the said activities The record affords no other explanation
of why the announcement should have been made at this particular time.
When Callahan returned to work on the following Monday, November 20,
she was met by Kelty as she was entering the plant and directed by him to
the office In the presence of Cutler, Kelty told her that she was discharged :
"First, for tardiness, and second, for disturbing the morale of the place" Cutler
had already made up her pay and handed it to her. She then left the plant. It
was Callahan's undisputed and credited 'testimony that it was some weeks
previous to this that she had been tardy on one occasion and had had her pay
reduced for the time lost. On November 16, she had been complimented by Kelty
on her work and promised a wage increase. The undersigned finds that Kelty
discharged her on this occasion because of her union activities
The other girls who had affiliated with the Steelworkers, when they dis-
covered that Callahan was absent, went in a group to see Kelty Kelty advised
them that he had discharged Callahan. The girls protested that Callahan had
been discharged for her union activities and demanded her reinstatement.
Kelty refused and all of the girls, except Walsh, left the plant. Walsh who
prior to Novembr 17 had agreed to sign a union card, refused to join in the
walkout and when requested .to do so by Regnante, told the latter that she
would not now sign a union card inasmuch as she wanted to protect her job.
Callahan and the girls who had walked out, on ,November 20, remained out
until on or about November 20 when, following conferences between the re-
spondents, the Steelworkers, and a Conciliation Commissioner of the U S Labor
Department, they reported back for work.
On reporting back, they found the shop cold and, though previously they had
been supplied with uniforms, they were now advised that there were none avail-
able for them. Kelty told them that they could go to the union organizer,
Mike Ryan, for their uniforms in the future. They were not immediately as-
signed to work and Kelty told them, "Sit around, girls, for a while, until I see
what I am going to do with you" . He then instructed John Arnold, foreman, to
"Get Callahan, Trecartin and Flynn some old rags and let them wash the
ATLAS COIL SPRING COMPANY 1261
windows for a while." All of the girls were machine operators and none of
them had been assigned to wash windows previous to this. The girls assigned
to wash windows were given soiled uniforms which the male employees had
been wearing while the latter were supplied with clean ones While the three
employees were engaged in washing windows Kelty asked them how they liked
working for union wages Later in the morning, Kelty told the group of
employees who had walked out to leave the plant and come back after lunch
when their machines would be ready for them.
When the girls returned after lunch, Kelty called them into the office. He
had teen drinking. He told the girls, "It looks like we are going to have the
Steelworkers, and we will all get along fine We will try to adjust the things
that are not going along smoothly." He asked Callahan to go out for some
beer. She refused Kelty then declared that he would not have the Steel-
workers and said that he and Cutler would take a vacation before they would
deal with this union. He then suggested that if the girls wanted a union, he
was well acquainted with the UE ; that the City of Beverly had never had the
Steelworkers and did not want it, and he did not want it either ; that if the
girls would agree, lie would have a UE organizer in the plant within a half
hour. He then asked Callahan if she would agree to this Ciallahan replied
that she would remain with the Steelworkers Kelty retorted that he would
burn the place down before he would deal with that union. He then spoke
abuse ugly to Callahan and told her that she was discharged. A moment later
he told the remainder of the group, "All of you get out. You are fired."
Cutler, who was present throughout this meeting, which lasted for several
hours, remained silent except to reprove Kelty when the latter spoke abusingly
to Callahan He made no protest when Kelty discharged the entire group of
girls who had affiliated with the Union although several of them admittedly
were on the Atlas pay roll. Following the discharge, Walsh, who after November
17 had refused to sign a union card because she wanted to protect her job, was
the sole female employee left in the plant. On the following day, Jankowski,
who had signed a union card and was among the group discharged, asked for
her job back and was reinstated. She was not thereafter identified with the
group of union employees.
Following further conferences between the respondents, the Steelworkers, and
a Commissioner of the U. S Labor Department, the group of union employees
were again reinstated on or about December 5. Kelly suggested that they appoint
a committee to meet with him. Pursuant thereto, Callahan. Flynn, and Mary
Rosette were designated as a committee to represent the union group This
committee met with Cutler, and Keltyy. Kelty again suggested that they affiliate
with the UE and offered to call a representative of that labor organization to the
plant. Later, he engaged Callahan in private conversation Callahan testified
credibly and without contradiction that on this occasion Kelty told her: "It is
rather humiliating to me to have the Steelworkers come in here now after all
I have said about them ... If you want a union and insist on having a union,
I know that you can convince the girls to have the U E come in here Now,
you go out and talk to the girls, and I will wait here, and then after that we
will all go out and celebrate it " Callahan again refused to give up her affiliation
with the Steelworkers or to induce the other employees to do so. On this, or
another occasion, Kelty told her that if she insisted on having the Steelworkers
in the plant he would "get rid" of her and have her "blacklisted in every factory
in Lynn " ,
5 These findings are based on Callahan's undisputed and credited testimony.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9
Frances Flynn testified credibly and without contradiction that on numerous
occasions Kelty asked her individually to give up her affiliation with the Steel-
workers, and told her that he would give her a "pep talk" every day until he
convinced her that she was "being led astray" and should not join the Steel-
workers. On or about December 21, Kelty warned Flynn not to state that he
had discharged the group of union girls.
Whereas prior to November 17, the union girls had worked almost exclusively
as machine operators, subsequent to that date they were given very little machine
work but were assigned to various menial tasks including the scrubbing of parts
in a chemical solution which gave off nauseous fumes. Cutler testified that
insufficient castings were received to keep all the employees engaged in machine
work exclusively or to afford them with regular full-time work. It is clear,
however, from his testimony, that this condition had existed since Tuly 1944.
It further appears that whereas prior to November 17 the machine work was
distributed impartially among all the employees, subsequent to that date the
bulk of the disagreeable common labor jobs were assigned to the union employees,
whereas the non-union employees were assigned most of the machine work.
Cutler's testimony that the machine work was impartially distributed among all
employees subsequent to November 17, is not credited.
Concluding findings
The foregoing findings of fact, except where otherwise noted, are based on the
mutually corroborative testimony of Board witnesses Flynn, Regnante, Trecartin,
and Callahan, whom the undersigned has credited. Kelty did not testify and
therefore the testimony of these witnesses concerning the Kelty statements is un-
contradicted except where the statements were made in the presence of Cutler.
Cutler admitted that he was present on several occasions when Kelly talked to
the group of union employees but denied that he had ever heard Kelly make
statements antagonistic to the Steelworkers According to Cutler, Kelty's state-
ments were directed not against the Union but against Mike Ryan, organizer for
Steelworkers. He admitted that on one occasion Kelty told the employees that
"in so far as he was concerned he could always make a livelihood and he did not
have to work in Beverly, and if he had to do business with Ryan he would rather
close the shop up." In justification of Kelty's derogatory statements concerning
the union organizer, Cutler testified that following receipt of the Steelworkers'
letter on November 17, an appointment was made to meet with Ryan on the fol-
lowing Monday afternoon, and at this conference Ryan was intoxicated and
made threatening and abusive remarks.
While admittedly Kelty made frequent uncomplimentary references to the
Steelworkers' organizer, it is clear from uncontradicted testimony of Board wit-
nesses whom the undersigned has credited, as well as Kelty's action in twice dis-
charging employees for resisting his demands that they give up their union af-
filiation, that his statements and conduct were not limited to disapproval of the
union organizer. He had in fact already expressed his opposition to the Steel-
workers before the conference was had with Ryan. In any event, no amount of
personal antagonism toward the organizer for any reason at all, would afford
legal justification for the abuse, both in word and action, which Kelty inflicted
upon those employees who refused to give up their union affiliation. Their
affiliation, which Kelty sought to undermine, was not with Ryan, the organizer,
but with the Steelworkers union.
The undersigned finds no merit in the respondent Atlas' apparent position that
it was not implicated in Kelty's anti-union conduct. Cutler was present on oc-
casions when Kelty had employees of both Atlas and Kelty summoned to the
ATLAS COIL SPRING COMPANY 1263
office for the purpose of inducing them to give up their union affiliation, and on
none of these occasions or thereafter did he repudiate or disavow Kelty's state-
ments and conduct. Kelty ostensibly spoke and acted both for himself and the
respondent Atlas, and the latter, if it did not wish to be bound, was under a duty
to repudiate Kelty and to afford its employees protection from his abusive and dis-
criminatory conduct. This it never did.
On the basis of the foregoing findings of fact and the entire record, the under-
signed finds that the respondents Atlas and Kelty, jointly and severally: (1)
interrogated their employees concerning their union activities; (2) by coercive
statements and conduct sought to induce their employees to give up their affilia-
tion with the Steelworkers or to transfer it to a union of the respondents' own
choosing , and threatened them with economic reprisals if they refused; (3)
discriminated against employees affiliated with the Steelworkers in their work
assignments and working conditions ; (4) on November 20, 1944, discharged Grace
Callahan because of her union activities, and on November 29 discharged all
union members because of their union and concerted activities; (5) because of the
foregoing conduct, interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C Discrimination-the discharge of Georgina Regnante and Grace Callahan
As has been previously stated, Regnante and Callahan worked under Kelty's
supervision prior to being employed by the respondent Atlas, and it was upon
Kelty's recommendation that they were employed at the Atlas plant in Beverly
in the summer of 1944. Upon being employed by Atlas they were given a 5 cents
an hour wage increase over the wages they had received in their prior em-
ployment Admittedly, prior to November 17, 1944, when the respondents were
first advised of the affiliation of their employees with the Steelworkers, their
work was considered satisfactory by the respondents. Kelty had frequently
praised them for their work and had referred to the group of girls who had
worked under his supervision before coming to Atlas, as "the cream of the crop."
As has been set forth in prior sections of this Report, Callahan was the leader
of the group of girls who affiliated with the Steelworkers, and Regnante also
was prominently identified with the union group. Because of their union affili-
ation' they were submitted to abusive and discriminatory treatment by Kelty,
beginning with the respondent Atlas' receipt of the Steelworkers' letter on
November 17. Their employment after December 1944, was irregular and subject
to frequent lay-offs, and by February 5, 1945, the date of Regnante's final dis-
charge, only Flynn, Regnante, Callahan, and Virginia Cordette, of the group
of girls who had affiliated with the Steelworkers, remained in the respondents'
employ.
On January 30, Regnante was operating a drilling machine and was engaged
in drilling range housings. On January 31, she together with several other girls
affiliated with the Steelworkers, including Callahan, attended a public hearing
which was conducted by the Board pursuant to a petition filed by the Steel-
workers for certification as bargaining representative of Atlas and Kelty em-
ployees.' On the following day, February 1, when Regnante reported for work
she found three spoiled castings in her work box. She called this to the attention
of Foreman John Arnold, and according to her undisputed and credited testimony,
Arnold said, "I am surprised to see these. I wonder how many more Red
spoiled." Arnold's reference was to Red Heath, a machine operator, who sub-
e The Steelworkers subsequently withdrew its petition and therefore no Decision and
Direction of Election was issued in the case.
679100-46-vol 65-81
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stituted when one of the regular machine operators was absent. Regnante
worked as usual on the following day, which was a Friday, and nothing further
was said to her about the spoiled work. February 3, being a Saturday, she
did not work. On Monday, February 5, soon after she had reported for- work,
she was called to the office shared by Cutler and Kelly. Both Cutler and Kelty
were present. Kelty had a number of range housings on his desk which he
accused her of having spoiled . Regnante denied that she was responsible for
the spoilage and asked Kelty if he had any proof that she was responsible. She
told Kelty that on the previous Thursday she had shown the spoiled pieces she
had found on that occasion in her work box to Foreman Arnold. Kelty replied,
"I am not interested in John Arnold. I am the superintendent here If I say
you spoiled them, you did spoil them." After further argument, during which
Regnante continued to deny that she was responsible for the spoiled pieces, Kelty
discharged her and Cutler, at Kelty's direction, gave her her final pay.
Cutler testified that prior to calling Regnante into the office, Kelly had talked
to Arnold and Arnold had advised him that he had taken several spoiled cast-
ings out of Regnante's work box. The castings had a value of about 10 cents
each. Cutler further testified that Kelty did not call Regnante into the office
with the intention of discharging her but merely to warn her to be careful, and
the discharge resulted only after Regnante had become angry and had accused
Kelty of "planting" the spoiled castings in her box. Admittedly, Arnold was
not called into the conference to verify Kelty's accusations. Neither Arnold,
Heath, nor Kelly testified.
The undersigned credits Regnante's testimony that she was not responsible for
the spoilage of which she was accused on the date of her discharge, and believes
that the entire incident was a pretext fabricated by Kelly to lend plausibility to
the discharge of one of the few union employees remaining on the Atlas pay roll.
It is impossible to reconcile Kelly's arbitrary and overbearing handling of the
incident with the praise which he had heaped on Regnante and the other girls
prior to their affiliation with the Steelworkers, on any grounds other than his
deep-seated antipathy toward the Union and determination to drive it from the
plant. The undersigned finds that the respondents discharged Regnante because
of her union activities and thereby interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
After having been laid off for a period, Callahan was called back to work and
reported on February 23, a Friday. She was the last of the girls who had af-
filiated with the Union then remaining on the Atlas pay roll except Jankowski who
previously had withdrawn from the union group. During the time Callahan had
been laid off, the closing time for her work shift had been changed from 5 to 5: 3Q
o'clock p. in. She worked that day and from 8 a. m. till noon on the following
day, Saturday. Cutler testified that on Monday, February 26, Kelty told him that
on the previous Friday Callahan had asked to leave at 5, since she had not been
advised of the change in closing time, and that he had granted her request.
Cutler approved Kelty's action. Cutler further testified that on Monday, Callahan
again asked to leave at 5 o'clock, giving as her reason that she could not get the
5: 38 train to Lynn, where she lived, if she worked until 5: 30. According to
Cutler, he told her, "You know our hours are 8 to 12 and 12: 30 to 5: 30." That
afternoon, Cutler and Kelty were absent from the plant and when they returned
Arnold advised them that Callahan had asked to be excused in the middle of the
afternoon because she was not feeling well.
On the following day, February 27, Callahan reported for work at the usual
time. Kelly told her that lie hoped she was feeling better, and when she replied
that she was, he said , "That is nice." During the noon period she talked to three
ATLAS COIL SPRING COMPANY 1265
or four employees newly hired as machine operators and asked them if they would
be interested in joining the Steelworkers. When she returned to her work follow-
ing the lunch hour, she was called to the office Callahan testified credibly and
without contradiction that after reproving her for being a few minutes late in
returning to her work after the lunch hour, Kelty asked her, "Did you try to sign
some people up for the Union this noontime, some of my men?" Callahan re-
plied that she did, and Kelty then said, "Well, I am going to fire you for trying
to sign them up." Callahan protested that she had carried on this activity on
her own time and that there were no notices posted in the plant prohibiting such
activity. Kelty replied, "Well, I don't know if you are right. I don't think you
are. I am going to look into that now. If I can fire you, you are getting through
here. The quicker I can do that the better. Go ahead out there."
Callahan further testified, without contradiction, that after she had returned
to her machine, Kelty again approached her and said, "Well, you tried to get
the Union in here, but so far you haven't got it. We got rid of your gang from
Lynn,' and you are to be next." In a loud voice, he added, "If there is any in-
formation to be passed out in this factory about Unions, I will be the one that
will do it, not you, Callahan." Callahan requested Kelly not to shout at her,
and told him that if he had anything to say to her she would go into the office
where he could talk to her. Kelty replied, "I will holler at you all I please." He
also told Callahan, "I never wanted to take you back anyway, but you are here
now, and you are going to do just what I tell you to do. It you want a congenial
atmosphere, you are going to get it like you never got it before " 5
Later in the afternoon, Callahan asked Kelty to let her leave the plant at 5: 10
in order to catch an early train home. Kelty refused and when she reminded
him that other employees worked irregular hours, he replied, "My employees
come and go at my discretion." When Callahan insisted on leaving early, he
asked her, "Do you want me to fire you now?" She replied, "No, I don't. I came
over here to work, and I want to work." Kelty said, "You want to get fired,"
and repeated this several times?
While Kelty and Callahan were thus engaged in conversation, Cutler came up
and Kelly told him, "Well, Cutler, Grace wants to get paid off now. Why don't
you pay her off and get through with her?" Callahan testified that Cutler
replied, "Yes, yes, right away," but that a few moments later, after talking
privately with Kelty, he told her, "On second thought you are working until 5: 30."
Callahan testified that though she was upset and not feeling well she continued
to work until 5 o'clock at which time she changed to her street clothes. She
informed Cutler and Kelty that she was not feeling well and was going home
but would report back for work on the following day.1° Kelty replied, "Oh, no,
you won't be in tomorrow. You are never coming in again." He refused, how-
ever, in response to her questioning, to state in so many words that he was
discharging her. She was told to come back for her final pay on the following
Friday.
It is clear from the date the respondents first learned of the organizational
activities of their employees, Callahan was singled out for particularly harsh and
T Most of the girls affiliated with the Union lived in Lynn and commuted to and from
their work in Beverly.
O These findings are based on Callahan's undisputed and credible testimony
9 These findings are based on Callahan's undisputed and credible testimony.
1° Cutler testified that Callahan requested that she be permitted to leave every day at
5 instead of 5 : 30, the regular closing time. The undersigned finds that the true purport
of her statement appears in her own testimony which follows : "I told them it was too
many hours to work under such pressure , because Mr . Kelty, every chance he got, would
rave up and down in back of me , and he used to make me quite nervous."
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory treatment. On November 16, the day before the respondents
received the Steelworkers' letter, Kelty praised her for her work and told her
that he intended to increase her pay. Subsequently, he blamed her for bringing
the Union into the plant and accused her of being a paid organizer. Twice in the
fall of 1944, he discharged her because she refused to give up her union affiliation,
and from November 17, 1944, to the date of her final separation from the Atlas
pay roll, although she was a machine operator of unquestioned efficiency, she was
given no machine work but was assigned to such unskilled labor as window
washing and the scrubbing and scraping of parts. On the last day that she
worked, Kelty subjected her to an abusive tirade because she had solicited, on her
own time, some newly hired employees to affiliate with the Steelworkers. Cutler,
as her employer," was under a duty to protect her from such illegal and abusive
treatment at the hands of his subordinate, Kelty. Cutler, however, as has been
seen, at all times acquiesced in Kelty's badgering of the group of union employees.
Callahan testified credibly and without contradiction that many of the employees
worked irregular hours and specifically named several, including Walsh, who
were not required to adhere to a strict time schedule. Furthermore, she was
not then engaged in machine work, and Cutler testified that the respondents were
unable to operate on a full-time schedule due to difficulties in obtaining sufficient
castings. There is no showing that her work on this occasion was of any par-
ticular urgency. In view of the entire circumstances, there was nothing unseemly
or novel in her request to leave the plant early. But were this not the case, in
view of the abusive tirade to which she had been subjected by Kelly, she was
justified in leaving the plant early on this occasion and no valid discharge could
be predicated thereon since the incident was precipitated by the respondents'
illegal conduct. Kelty's instructions that if she left before the closing hour, she
would not be permitted to work thereafter, was tantamount to a discharge though
he declined to state in so many words that she was discharged. Obviously, by this
equivocal course of conduct, the respondents were then laying the foundation for
their present contention that Callahan was not discharged but voluntarily left
their employment. The undersigned finds no merit in the contention.
It is found that the respondents discharged Grace Callahan on February 27,
1945, because of her union activities and thereby interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act..
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, occurring in connection
with the operations of the respondents described in Section I, have a close;
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondents Atlas and Kelty have engaged iri
certain unfair labor practices, the undersigned will recommend that they cease
and desist therefrom and take certain affirmative action to effectuate the policies,
of the Act.
The undersigned has found that the respondents discharged Georgina Regnante
and Grace Callahan Marchesini because of their union and concerted activities.
While as of the date of the discharge these two employees were carried on the
"Admittedly Regnante was at all times an Atlas employee , and from January 2. until
her employment was terminated , Callahan also was carried on the Atlas pay roll
ATLAS COIL SPRING COMPANY 1267
Atlas pay roll, due to the close interrelationship existing between the operations
of the respondent Atlas and the respondent Kelty, the shifting at will of em-
ployees from the pay roll of one to the other, without the employees' knowledge or
consent, and Deity's unlimited exercise of the prerogatives of management in rela-
tion to Atlas as well as Kelty employees, the undersigned believes it necessary in
order to effectuate the policies of the Act that the respondents Atlas and Kelty be
joined in the remedial order.' Accordingly, it is recommended that the respondents
offer Georgina Regnante and Grace Callahan Marchesini immediate reinstatement
to their former positions as machine operators or equivalent positions,' without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered because of the respondents' discrimi-
nation against them by payment to each of them of a sum of money equal to that
which each normally would have earned as wages from the date of her discrimi-
natory discharge to the date of the offer of reinstatement, less her net earnings
during the said period"
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
L United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. Louis J. Kelty, individually, and doing business as Kelty Machine Works,
is an employer within the meaning of Section 2 (2) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of
Georgina Regnante and Grace Callahan Marchesini and thereby discouraging
membership in a labor organization, the respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
1S Matter of Federal Engineering Company, et at, 60 N. L . R. B. 592 ; Matter of Dental
Laboratory, at at, 41 N . L R. B. 263.
13 Marchesini testified credibly and without contradiction that as of the date of her dis-
charge on February 27, 1945, the respondent Atlas had employed several new employees
as machine operators Cutler admitted that new employees were added to respondent
Atlas' pay roll on or since March 1, 1945. He also admitted that the type of machine
work performed by Atlas under its contract with the General Electric Company, which
currently constitutes 85 percent of the respondent Atlas' total production , was of the
same general character as that performed by Atlas under its contract with the U. S. Time
Corporation . Both Regnante and Marchesini are general machine operators and as such
are qualified to fill the positions which the respondent Atlas has assigned to new em-
ployees or employees of lesser seniority . It is recommended that the respondent lay o8 or
discharge employees of lesser seniority if this is necessary in order to provide for the
reinstatement of Regnante and Marchesini.
14 By "net earnings" Is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter of
Grosset Lumber Company, et at, 8 N. L . R. B. 440 Monies received for work performed
upon Federal , State, county , municipal , or other work-relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOArD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the respondents,
Oscar Cutler and Elizabeth Lederman doing business as the Atlas Coil Spring
Company, and Louis J. Kelty, individually, and doing business as Kelty Ma-
chine Works , and their agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers Union of America,
affiliated with the Congress of Industrial Organizations , or in any other labor
organization of their employees , by laying off, discharging , or refusing to rein-
state any of their employees, or by discriminating in any other manner in regard
to their hire and tenure of employment , or any term or condition of their
employment ;
(b) In any other manner interfering with, restraining , or coercing their em-
ployees in the exercise of the right to self -organization , to form labor organiza-
tions, to join or assist United Steelworkers of America , affiliated with the
Congress of Industrial Organizations , or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities, for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a)' Offer to Georgina Regnante and Grace Callahan Marchesin! immediate
and full reinstatement to their former positions as machine operators or their
equivalent , without prejudice to their seniority and other rights and privileges ;
(b) Make whole Georgina Regnante and Grace Callahan Marchesini for any
loss of pay they may have suffered by reason of the respondents ' final discrimina-
tion against them , by payment to each of them of a sum of money equal to the
amount she normally would have earned as wages from the date of the respond-
ents' discrimination against her to the date of the respondents ' offer of reinstate-
ment, less her net earnings during such period ;
(c) Post in the respondent Atlas' plant at Beverly, Massachusetts , copies of
the notice attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the First Region , shall, after being duly
signed by the respondents ' representatives , be posted by them immediately upon
receipt thereof and maintained by them for sixty ( 60) consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the respondents to
insure that said notices are not altered , defaced, or covered by any other ma-
terial;
(d) Notify the Regional Director for the First Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the respondents have taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondents notify said Regional Director,
in writing, that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid. .
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
ATLAS COIL SPRING COMPANY 1269
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board.
WILLIAM E SPENCER,
NA Trial Examiner.
Dated September 25, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any maner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist United Steelworkers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organization, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Grace Callahan Marchesini
Georgiana Regnante
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
OSCAR CUTLER AND ELIZABETH LEDERMAN, D/B/A
ATLAS COIL SPRING COMPANY AND Louis J.
KELTY, INDIVIDUALLY AND D/B/A KELTY A IA-
CHINE WORKS, Employer.
Dated------------------ B.------------------------------------------------
(Representative) (Title)
NoTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
0