B. M. C. Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 19, 1955

113 N.L.R.B. 823 (N.L.R.B. 1955)

B. M, C. MANUFACTURING CORPORATION
THE REMEDY
823
Having found that Respondents have engaged in certain unfair labor practices in
violation of Section 8 (b) (1) (A) of the Act, I shall recommend that they cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the above findings of facts, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
2. Local 140 is a labor organization within the meaning of Section 2 (5) of the
Act.
3. Respondents Alvares and Sirota are agents of Local 140 within the meaning of
Section 8 (b) of the Act.
4. By restraining and coercing the employees of the Company in the exercise of
rights guaranteed in Section 7 of the Act, Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondents Alvares and Sirota have not engaged in the unfair labor practice,
as alleged in the complaint, of preventing ingress and egress of employees to the
company plant.
[Recommendations omitted from publication.]
B. M. C. Manufacturing Corporation and International Associ-
ation of Machinists , AFL. Case No. 3-CA-820. August 19,1955
DECISION AND ORDER
On April 18, 1955, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
i We find no merit in the Respondent's contention that the Trial Examiner denied the
Respondent a fair hearing by excluding from the hearing room for a period of 2 hours
,certain management representatives. The Trial Examiner resorted to this procedure
under an erroneous impression that these management representatives were under subpena
to testify in the proceeding When the true situation was called to his attention, the
Trial Examiner reversed his ruling Under the circumstances, we conclude that the Trial
Examiner's action did not constitute an abuse of his discretionary authority. In any
event, no prejudice to the Respondent has been shown.
113 NLRB No. 91.
379288-56--vol. 113-53
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner with the following additions, modifica-
tions , and exceptions:
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by threatening employees with reprisals
because of their union activities and by questioning them concerning
their union activities under circumstances which imparted a coercive
character to the interrogation.. In so concluding, we rely on the fol-
lowing :
(a) Working Foreman Bales' remarks (1) to employee Folejewski,
during June 1954,2 that if the new Company 3 ran into labor troubles it
would have to close the shop down and (2) to employee Carroro, in
July or early August, that Carroro was not supposed to talk to Fole-
jewski because Folejewski "was a union organizer."
(b) Working Foreman Elsky's remarks (1) to Folejewski, in Sep-
tember, that "Harold Irving got it . . . you're next,"' (2) to employee
Ferenczi, in April or May, that "if the Union got in, they would prob-
ably shut the shop down," and (3) in May or June, overheard by em-
ployee Divine, that "you better think twice before you join the Union."
(c) Working Foreman Fedder's remarks (1) to employee Gage, in
June or July, that the Respondent "could close down if the Union
wanted to move in. . . ." and (2) to employee Irving, in May or early
June, that the Company would probably close down "if the Union
got in."
(d) Chief of Quality Control Hill's remark to employee', Gantnier,
about May 1, that "he didn't want the boys to hurt themselves by join-
ing a union."
(e) Working Foreman Reap's statement to Folejewski, early in May,
in the presence of Supervisor Campbell, that Folejewski, a union
organizer, "was not to solicit or campaign on company grounds or
company time," and Campbell's comment that that "would be grounds
for immediate dismissal."
(f) - Fedder, Elsky, and Hill also questioned employees about union
matters. Thus, in May, Fedder asked employee -Barry what he
thought about the Union, while Elsky on one occasion inquired of Fole-
jewski as to how many authorization cards the Union had and as to
the identity of the employees who actively engaged in, organizing for
the Union. Hill, in April, asked employee Gantnier 'if he had heard
anything about a union being organized, and when Gantnier replied
7 All dates herein refer to the year 1054, unless otherwise specified. -
8 The American Machine and Foundry Corporation became the parent owner of the
Respondent early in 1954 -
*Irving, an active union member , was discharged on August 20 for, as found below,
his support of, and activities on behalf of, the Union
e This is an unlawful statement insofar as it restrains employees from engaging in
union activity on company premises during nonworking time. Delta Finishing Company,
et at., 111 NLRB 659.
-B. M. C. MANUFACTURING CORPORATION - 825
that he felt the boys had a right to organize, Hill then wanted to know
"what boys."
(g) In addition, Personnel Manager Hastings separately inter-
rogated employees Barry, Divine, Lewis, and Birtch as to what each
of them thought of the Union, and employee Irving as to whether he
'had heard any rumors of a union trying to organize the plant, whether
he knew who the organizers were, and which union it was.
Management questioning of employees is not per se illegal.' How-
ever, judged in the light of the totality of the conduct of the Employer,
including the threat to discontinue operating in reprisal for union
activity, we believe that the Respondent transgressed the limits of
permissible employer interrogation' and violated Section 8 (a) (1) of
the Act.'
We find no merit in the Respondent's contention that it is not re-
sponsible for any act of its working foremen. We hereby take of-
ficial notice of the Board's decision, issued on September 27, 1954, in
B. M. C. Manufacturing Corporation, 3-RC-1429 (not reported in
printed volumes of Board Decisions and Orders), in which the Board
found, on the basis of evidence adduced in that case, that these work-
ing foremen are supervisors within the meaning of the Act. In the
instant proceeding, the General Counsel offered in evidence a copy
of the Board's decision in 3-RC-1429; the Trial Examiner made the
decision in 3-RC-1429 a part of the record in the instant proceeding;
but, no other evidence was offered by any party in the instant proceed-
ing bearing upon the job duties of the working foremen. In'view of
the Respondent's failure to litigate further the matter of the status
of the working foremen, we regard our prior determination as con-
clusive.
2. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (3) and (1) of the Act by discharging Harold Irving, an
9 Blue Flash Express , Inc, 109 NLRB 591 ; A. L. Gilbert Company, 110 NLRB 2067.
7 Blue Flash Express, Inc., supra , also see N. L. R. B. v. Armco Drainage & Metal Prod-
ucts, Inc., 220 F. 2d 573 (C. A. 6).
"Ayres, the Respondent 's vice president, made a speech to the employees during May
In determining the propriety of the speech, under the Act, the Trial Examiner stated that
Ayres " took the risk of having some parts of his talk misinterpreted , and if employees
honestly believed that he threatened them with reprisals the Respondent must bear the
responsibility ." We do not adopt this statement of the Trial Examiner as a correct state-
ment of law, as it is well settled that the subjective state of mind of employees is of little
weight in determining whether an employer's statements are coercive Salant & Salant
Incorporated, 92 NLRB 343, 350; see, also The Pure Oil Company, 73 NLRB 1, 3, and
cases cited there In further considering Ayres' speech and certain interviews of em-
ployees by Ayres and Personnel Manager Hastings, the Trial Examiner concluded that,
even though the speech and interviews -constituted only expressions of view or argument,
they were , nonetheless , outside the protection of Section 8 (c) "because they became a
part of what appears to have been a determined effort to discourage membership in the
Union " We do not agree We do not find that the Respondent, with regard to said
interviews and speech , violated Section 8 (a) (1), for as the Board stated in Livingston
Shirt Corp, 107 NLRB 400 "a basic principle . . . is that Section 8 (c) of the Act spe-
-cifically prohibits us from finding that an uncoercive speech , whenever delivered by the
employer , constitutes an unfair labor practice ." See, also, Nutone, Incorporated, 112
NLRB 1153.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, on August 20, 1954. The Respondent contends that it dis-
charged Irving because, after he punched the time clock on August 16,
he left the company premises to purchase a pack of cigarettes and did
not begin work that morning until about 10 minutes after the normal
starting time.
After resolving conflicting testimony, the Trial Examiner found
that Irving did not leave the plant premises after punching in on
the morning in question but that, after punching in on time, Ir-
ving went to a corridor in the plant outside the workroom where he
continued smoking a cigarette for about 10 minutes until the lights
were turned on in the workroom. The Trial Examiner concluded
that the Respondent seized upon this incident to discharge Irving be-
cause of his union activities. We agree.
Irving was a union adherent. Along with Folejewski, he was one
of the most active employees in soliciting employees to join the Union.
Irving distributed circulars at the gate of the plant and engaged in
other union activities. It is admitted that Irving openly-wore a union
button. Shortly after union organization began, Personnel Man-
ager Hastings, who admitted at the hearing that he knew of Irving's
activity as a union organizer , warned Irving that he could not solicit
union membership on company premises or on company time. It
does not appear that Irving ever did so; nor does the Respondent con-
tend that it discharged Irving for engaging in union activity on com-
pany time or premises.
In May or June 1954, Working Foreman Fedder, after expressing
opposition to union organization, told Irving that "they could close
down without detriment to the Company, and they probably would do
so if the Union got in." Sometime prior to May 12, Hastings inter-
rogated Irving as to what he knew about current union organizational
activity, inquiring about the identity of the Union and the identity
of the union organizers. When, sometime in May or June, Folejewski
complained that he was "getting a hard time," referring to his treat-
ment by the Respondent, Supervisor Campbell replied, "We know
you are organizing this Union . . . they are just waiting to catch us
[sic] at it on company time." In the early part of September 1954,
shortly after Irving's discharge, Working Foreman Elsky told Fole-
jewski, "Your Harold Irving got it . . . you're next." The discharge
of Irving did not follow normal company procedure. Maintenance
Supervisor Soper credibly testified, without contradition, that the Re-
spondent's normal procedure was to reprimand an employee for the
first violation of any company rule' and not to discharge an offender
unless the offense was repeated. Thus, even under the Respondent's
view of the case, which we do' not share, Irving was discharged for his
first offense, since it does not appear that he committed any prior of-
fense.
B. M. C. MANUFACTURING CORPORATION 827
Based on the foregoing, coupled with the independent 8 (a) (1)
violations found above, we conclude, as did the Trial Examiner, that
the Respondent discharged Irving because of his union activities.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders'that the Respondent, B.' M. C. Man-
ufacturing Corporation, Binghamton, New York, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership' in International Association of
Machinists, AFL, or any other labor organization, by discharging any
employee, or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of employ-
ment.
(b) Threatening and interrogating employees concerning their
union affiliations' or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act and
banning union solicitation by employees on company property during
their nonworking time.
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist International Association of Machinists, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to' the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act. -
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Harold Irving immediate and full reinstatement to his
former, or substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make him whole for any
loss of pay that he may have suffered because of the discrimination,
against him by payment to him of a sum of money equal to the amount
that he normally would have earned as wages from August 20, 1954,
the date of his discharge, to the date of offer of reinstatement to him,
as set forth in section V of the Intermediate Report, entitled "The
Remedy."
(b) Preserve and make available to the Board and its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
828 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
necessary to analyze the amount of back pay due and the rights of
employment under the terms of this Order.
(c) Post at its plants at Binghamton, New York, copies of the
notice attached hereto and marked "Appendix." 9 Copies of said no-
tice, to be furnished by the Regional Director for the Third Region,
shall, after being duly signed by a representative of B. M. C. Manu-
facturing Corporation, be posted for a period of not less than sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent violated Section 8 (a) (3) of the Act by
transferring Harold Irving to less desirable work, and' 8 (a) (1) of
the Act, except as otherwise found herein.
CHAIRMAN FARMER took no part in the consideration of the above
Decision and Order.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of a United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Associa-
tion of Machinists , AFL, or discourage activity in support of that
organization , or any other labor organization , or discourage any
employee from exercising the right secured to him under the
National Labor Relations Act by means of discriminatory dis-
charge or discriminating in any manner in regard to hire, or
tenure of employment , or any term or condition of employment.
WE WILL NOT threaten or interrogate employees concerning their
union affiliations or activities in a manner constituting inter-
ference, restraint , or coercion in violation of Section 8 (a) (1)
of the Act, nor forbid union solicitation by employees on company
property during their nonworking time.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
, B. M. C. MANUFACTURING CORPORATION - 829
form labor organizations, to join or .assist International Associa-
tion of Machinists, AFL, or any other labor organization, to.bar-
gain collectively through representatives of-their choosing, and
to engage in collective bargaining or other mutual aid or pr'ote'c-
tion, or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of -employment,
as authorized in Section 8 (a) (3) of the Act, as guaranteed in
Section 7 thereof.
WE wiLL offer to Harold Irving immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to any rights or privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of his discharge
on August 20,1954.
B. M. C. MANUFACTURING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
- STATEMENT OF THE CASE
After a charge filed on August 31, 1954 , a first amended charge filed on September
2, 1954 , a second amended charge filed on October 4, 1954, and a third amended
charge filed on November 30, 1954 , each by the International Association of Ma=
chinists , AFL, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Third Region ( Buffalo , New York ), on December 9, 1954,
issued a complaint against B . M. C. Manufacturing Corporation , alleging that B. M. C.
Manufacturing Corporation had violated and is violating the provisions of Section 8
(a) (1) and ( 3) of the National Labor Relations Act, as amended (61 Stat. 136;,
29 U. S . C. Supp . I. Sec . 141, et seq.), by having engaged in certain unfair labor prac-
tices.1
The complaint alleges that the Respondent on or about May 5, 1954 , transferred
one Harold Irving, a person employed at its Binghamton plant , to less desirable work
than he formerly had enjoyed and did , on or about August 20, 1954, discharge Irving
from its employ and at all times since that date has failed and refused to and continues
to refuse to reinstate Irving to his former or substantially equivalent position or em-
ployment - and that the transfer to less desirable work and the discharge and refusal
or failure to reinstate Irving was and is for the reasons he joined or assisted the Union
or engaged in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection . The complaint alleges further that the Respondent,
from on or about May 1 , 1954 , to the date of the issuance of the complaint , through
its agents , supervisors , officers, and representatives interfered with , restrained, and
coerced , and is interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act, by, among other things , engaging
in interrogation of employees designed to elicit their union affiliations, sympathies,
'The General Counsel of the National Labor Relations Board or his counsel will be
referred to herein as the General Counsel ; the International Association of Machinists,
AFL, sometimes will be called the Union ; the B M. C Manufacturing Corporation some-
times will be called the Respondent or the Company ; and the Regional Director for the
Third Region will be called the Regional Director. The National Labor Relations Act, as
amended, will be called the Act.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and identity of union organizers; that during May 1954, by,its vice president in 6harge
of manufacturing, giving a speech on the Respondent's property before a group of
assembled employees "during which speech the employees were threatened with
economic reprisals in the event they chose the union as a collective bargaining repre-
sentative"; through a supervisor, on or about July 13, 1954, threatening employees
with economic reprisals if the Union were successful in its attempt to organize the
Respondent's plant; through a supervisor, during the month of May 1954, interro-
gating employees as to their union affiliations, sympathies, and as to the identity of
union organizers; through a supervisor, on or about May 12, 1954, threatening an
employee with discharge for engaging in activities protected in Section 7 of the Act;
through two supervisors, on or about May 15, 1954, threatening an employee with
discharge for engaging in activities protected in Section 7 of the Act; through a super-
visor, during April and May 1954, interrogating employees as to their union sympa-
thies and as to the identity of union organizers and threatening employees with eco-
nomic reprisals if the Union were successful in organizing the Respondent's plant;
and through a supervisor, during the month of April 1954, threatening an employee
with economic reprisals if the Union succeeded in organizing the Respondent' s plant.
The Respondent filed timely answer to the complaint, denying the substantive allega-
tions of the complaint with respect to violations of Section 8 (a) (1) and 8'(a) (3)
of the Act.
Pursuant to notice, and on the issues raised by the complaint and the answer, this
matter came on to be heard before the duly designated Trial Examiner at Binghamton,
New York, on January 17, 1955. The hearing was closed the following day. On
January 17, the General Counsel over objection by the Respondent was allowed to
amend the complaint by alleging that through a supervisor, during April, May, June,
July, August, and September, 1954, the Respondent interrogated employees as' to
their union sympathies and as to the identity of union organizers and threatened em-
ployees with economic reprisals if the Union were successful in organizing the, Re-
spondent's plant; that through a supervisor, during the months of June, July, and
August, 1954, the Respondent threatened employees with economic reprisals if the
Union succeeded in organizing the Respondent's plant; and that through another
supervisor, on or about July 13, 1954, and on or about October 13, 1954, the Re-
spondent threatened employees with economic reprisals if the Union were success-
ful in its attempts to organize the Respondent's plant. The Respondent entered denial
to the additional and amended parts of the complaint. At the hearing the General
Counsel and the Respondent each was represented by counsel and the Union, the
Charging Party, was represented by a grand lodge representative. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence was,
afforded all parties. The General Counsel argued orally at the close of the hearing
in support of his case, and counsel for the Respondent submitted a brief after the
close of the hearing. Ruling was reserved on the motion of the Respondent to dis-
miss the complaint and is now decided according to the finding and conclusions set
forth below .2
Upon the entire record in the case, and from his observation of the witnesses and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, B. M. C. Manufacturing Corporation, is and has been at all times _
material hereto a corporation duly organized .under and existing by' virtue of the
laws of the State of New York, maintaining its principal office and place of business
at 5-9 Griswold Street, in the city of Binghamton and State of New York, where it
,'The Respondent asserts that the Trial Examiner committed reversible error and that
it therefore is entitled to a bearing de novo. At the opening of the hearing, the General
Counsel moved for the exclusion of certain witnesses , which the Trial Examiner under-
stood to be under subpena by the General Counsel. The motion was granted. Some of
these persons or all of them were engaged in a supervisory capacity by the Respondent,
and counsel for the Respondent vigorously objected to their exclusion. At a subsequent
time during the course -of the hearing on the opening day, the Trial Examiner was in-
formed that all of the persons requested to be excluded by the General Counsel were not
under subpena, and that the General Counsel had not definitely determined to call each
of them or definitely decided which one or how many of them he would call as witnesses.
The Trial Examiner thereupon reversed his prior ruling. The Respondent again claimed
error and moved for a trial de novo, which the Trial Examiner In his discretion denied,
there having been no prejudice shown.
B. M. C. MANUFACTURING CORPORATION - 831
now is and has been continuously engaged at its plant located in Binghamton in the
manufacture of toys and juvenile wheel goods. During the 12 calendar month's
preceding the opening of the hearing herein, a representative year, the Respondent, in
the course and conduct of its business operations, caused to be purchased materials
.valued in excess of $1,000,000, of which a substantial percentage was transported to
said Binghamton plant in interstate commerce from States of the United States other
than the State of New York. During the same calendar year, the Respondent, in
the course and conduct of its.business operations, caused to be sold or manufactured
at its Binghamton plant products consisting principally of toys and juvenile wheel
goods, valued in excess of $3,000,000, of which approximately 75 percent was
transported from said Binghamton plant in 'interstate commerce to States of the
United States other than the State of New York. '
The Respondent is engaged in commerce within the meaning of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The International Association of Machinists, affiliated with,the American Federa-
tion of Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary findings
Union organizing activities at the Respondent's Binghamton plant began in April
or early in the month of May 1954.3 After the filing of a petition by the Union for
certification of it as representative of the production and maintenance employees
employed-by the Respondent,4 it was active in soliciting membership between May
and August .5
B. Interference with concerted activities of employees
' During the month of May, Robert Hastings, personnel manager of the Company,
called some 7 or 8 employees into his office at different times and, as he said, dis-
cussed with them the "general aspects of conditions as they existed at that time" and
asked them to consider both the advantages and disadvantages which he felt would
be 'the result of their being "in the Union," pointing out to them that "things were
not at all bad, in some instances actual good had been accomplished. Therefore,
it was up to them to weigh both sides of it so they could make an intelligent deci-
sion ." 6 During this time Frank H. Ayres, vice president in charge of manufacturing,
also-talked to certain individual employees.
3 Unless specifically noted, all dates mentioned below are for the year 1954.
4 The Board's Decision and Direction of Election, Case No. 3-RC-1429 (not reported
In printed volumes of Board Decisions and Orders), issued September 27, 1954, found the
appropriate bargaining unit to be •
All production and maintenance employees employed at the Employer's three plants
- in Binghamton, New York, excluding office clerical employees, professional em-
ployees, guards, working foremen, plant superintendents, the chief inspector, the
supervisor of maintenance, the supervisor of tooling, and supervisors as defined in
the Act
The Board expressly decided that working foremen "are supervisors within the meaning
of the Act "
6 The plant was closed during the vacation period, July 23-August 9.
6In a statement given by Hastings to a field examiner of the Board dated October 13,
1954, which Hastings said was substantially correct as to fact, he said :
I talked to approximately seven or eight employees in my office during April and
May 1954. I tried to tell them what unions stand for, that they are not all bad, are
good things in some places, but that I thought that in this plant a union would not
be a good thing The principal reason I gave was that we might have difficulty In
shifting the men around under some kinds of union contracts. Our work is such
that it frequently requires our shifting people from one department to another rather
than sending them home if their own job runs out Thus I pointed out that if the
Union demanded the kind of contract that did not allow such shifting, the people
would often get a short day's work I said that there was no need for the people
to pay to have grievances handled ; that they could continue on an individual' basis
as in the past, and that I thought we could handle grievances on this basis satisfac-
torily. I pointed out that I had a loyalty to the Company, but that I was in the
middle between the employees and the management. I pointed out that if there
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Barry, an employee, said that Hastings called him into his office and
"asked me what I thought about the Union. I don't recall making any comment";
Guy Divine said that Hastings called him into his office and in the presence of
Ayres asked him what he thought of the Union, that he told them that he had
not made up his mind and "I didn't know one way or the other." James M. Lewis
testfied that some time in July, Hastings called him into his office and asked what
Lewis thought about the Union and Lewis replied that he thought it was a waste
of time for Hastings to call employees in to talk to them about the Union, because
the majority of employees were not going to commit themselves on their personal
feelings one way or the other; and Harold Birtch, another employee, testified that
when he was called into Hasting's office and asked what he thought of the Union,
he told Hastings that he thought it would be a good thing because the men who worked
in the paint shop had worked twice as hard as the other employees in the assembly
line where they made twice the money the painters did.
About this time Ayres assembled employees in groups at different times and-talked
to them in connection with their right to join the Union or to be active in the Union.
Ayres testified from the original notes which he had in his hand at the times he made
his several talks:
Q. (By Mr. Anderson.) Will you give us your talk over again, putting it in
the same words, same inflection, same tones, same manner you made, any
gestures, include those in, just as if talking to the plant again.
A. (By Mr. Ayres.) 0. K. We assembled in plant No. 1, in the comer of
the assembly department. Picked that out as the quietest place and the less
congested. I started off with these words, everybody good natured, and told
them that we were aware of the fact that the people were being solicited to
organize, and by the law you have a perfect right to do that, but, as mem-
bers of management we feel we should present each and everyone with some
facts that you might not be aware of. We operate very informally. You,
as individuals, are welcome to meet with any members of management and
individual problems are often solved this way. In most organized plants this
informality does not exist, but the person generally has to approach manage-
ment through a committee or some other individual rather than direct. 'In-
stead, we have a very liberal plan and we would hate to have you, lose it.. I
explained from the bonus sheet some of the percentages that different workers
had been able to make above their hourly rate of pay. In organized plants,
an incentive plan is not always flexible. Merit increases to deserving people
could be hard to grant, and I believe is seldom done. We have six paid holi-
days and a vacation plan; a group insurance plan, which cost has already been
reduced and benefits increased due to our being affiliated with the American
Machine and Foundry; greatly decreased prices on employee's purchases of
our products and other products in A. M. F. plants. This was pretty soon
after American Machine and Foundry had taken B. M. C. over as a subsidiary.
Prior to that time, there had been allowed 331/3 percent reduction. From that
time on, not only in our plant, but in all the A. M. F. new products groups,
they were allowed to purchase anything that was manufactured at the lowest
discount, at the lowest distributors discount. I mentioned a bonus that had
been paid over a period of years by B. M. C. Increases in rates, with some of
the fellows I had hired back myself personally for 75 or 80 cents an hour were
making well over a dollar. Some at high as $1.50 and higher. I cited some
-of the benefits that we had, set up the training center across the street. I
personally taught blueprint classes over there in order to make the people
more valuable, not only to us but to other people if they should want to leave.
We had established a nice place and furnished free coffee for all the employees
across the street, made them a nice place to go and to have their lunch. I ex-
plained that the coffee and cafeteria amounted to about $3,000 a year to the
should be any strikes, the employees would be without any income . I said that the'
person I was talking to might find himself out of work because of someone else's prob-
lem. I believe that there is no question but that the employees I spoke to understood
that the management of the Company was against having a union in the plant. We
had originally planned to talk to every employee in the plant, but I decided that it
was advantageous to us, so I stopped. Vice-President Ayres also talked to some of
the employees and on some of these occasions I was in his office also. . . . I also
told the employees that it was my personal opinion that the Union would not be
a good thing for them. -
B. M. C. MANUFACTURING CORPORATION 833
Company. I cited that rates in different cities vary, also cost of living in some
areas is much higher. I had had this experience and several times in the fac-
tory where someone would read in-Buffalo where a man got, so much wages,
and in Cleveland. I used to be interested in those things myself but when you
investigate, sometimes you found out. . . I also stated that we could now
move people from one department to another so as to give them as much work
as possible, to a worker who might be in a department where work is slack. I
spoke of the history of the strike•we had in the fall of 1946. The workers were
out 7 weeks, orders were lost, and our employment thereafter went down to 35
people and did not recover until the fall of 1947. I advised the employees to
talk with some of the older workers in the plant as to what happened then.
I mentioned the production. Now, we have nearly 42,000 units in warehouses.
We pay,rent - and cost of moving _ back and forth,, and prior to the first of
May, we had been working plant No. 1 on a four-day schedule. I explained
that we went on a five-day schedule, not because we needed more production at
the present -time, but to provide more work for you people. This proves that
management is interested in your welfare. We are very sorry if any of you
feel we have not taken care of your problems as we should. Mr. Hastings and
I are going immediately to talk with you individually to see if any of you feel
we failed to do what is right. Please feel free to discuss anything you wish with
us. In this way, maybe we can learn to do our jobs better. How far any good
foreman or supervisor or manager succeeds depends very much on the success
of the workers whom he supervises. Therefore, he must be interested in people;
otherwise he would fail and we will also. We have tried to do what we be-
lieve is right. I thank you.
At the times Ayres talked to the employees,' it was during working hours. Produc-
tion was then shut down.
Several employees testified as to their recollection as to what Ayres said:
Barry said that the only thing he could recall was that Ayres said they had quite
a few units on hand and if they did have to shut down they could ; that he believed
Ayres also said "something about counting the things you had on one hand, counting
the things you might have." Joseph Massar said that "the thing that stuck in my
mind, the most, was the fact that he said, we have 43,000 units in the warehouse at
the present time and are right now negotiating for the rental of another warehouse.
I am sure that none of you employees would want to take an enforced vacation.
We can get along with the production we have on hand without any production for
the time being." Massar said he assumed that Ayres' reference to "enforced vaca-
tion" was in connection with the possibility that the Union would come into the
plant. Lewis said that he did not hear all of Ayres' speech, that he did recall him
mentioning the number of units on hand in warehouses and "that the present time
they didn't have too much needed production and if the Union came in, why, they
could close down." It appears on cross-examination, however, that Lewis read into
Ayres' speech the reference to the Union taking over: "There was no threat made
as far as the Union taking over. I just merely stated that it was in Mr. Ayres' speech,
he was quoting the amount of units that we had in the warehouses, and that it wasn't
absolutely necessary to stay in production at that particular time." Birtch testified
in substance that he heard all the speech but- that all he could remember Mr. Ayres
saying was something to the effect that "they tried it before and we closed up and
can do it again." William Lutonsky said that "he [Ayres] stated about the advantages
of a union and the advantages of working for the Company, and about the units he
had stored in the warehouse, that he could shut down if the union got in, that is
about all. I think he stated that they can't pay the wages that the big factories pay
in the small B. M. C. plants." Lutonsky said he took this to be an implied threat.
The Trial Examiner gained the distinct impression that each of the witnesses who
testified concerning Ayres' talks to the employees were at the time of or after a talk
was made, concerned over the implied threats which they said they gained from
Ayres' words. Not one of them remembered very much about the speech, which
consumed from 15 to 20 minutes' time, and their unanimity of memory on the few
parts recalled is obvious. The Trial Examiner is inclined to credit the testimony of
Ayres, and does so. He was a direct and straightforward witness; he testified from
the notes he had used and held in his hand when he addressed employees. However,
he took the risk of having some parts of his talk misinterpreted, and if employees
honestly believed that. he threatened them with reprisals "if the Union came in," the
Respondent must bear the responsibility.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The'General Counsel presented several witnesses who testified regarding conversa-
tions between them and certain supervisors and working foremen?
Statements attributed to Campbell and Hill and the several working foremen are
claimed to have been in the form of interrogation, threats of reprisal, and so on,
made in May, June, July, August, and September, and all of these statements were
said to have been made to the several employees while they were at work.
Clement Folejewski, an employee, said that in early May, when he was in
Campbell's office at a time when Reap was present, Folejewski told them that he
"was under the impression that I was just getting a hard time from them due to my
labor union activities, they weren't putting me back on heat treat for that simple
reason , and I expressed my opinion to both Mr . Reap and Mr . Campbell, and
Mr. Reap made the statement that I was not to solicit or campaign on company
grounds or company time, and Mr. Campbell says it would be grounds for immedi-
ate dismissal . I then answered , `Well then, if somebody from the plant , an employee
or a working foreman, or anybody will come to me, I will not ignore them; I will
give them an answer at anything they ask me pertaining to the Union,' " and that
after some general talk Campbell then said,"'Well, Clem, they make the snowballs,
I have to throw them." Sometime later, in late May or early June, Folejewski had
complained to Hastings that he thought he was entitled to a certain job that was
open in the shop and that Hastings told him he would try to get it straightened out;
that about 2 o'clock in the afternoon Campbell came to his department and ex-
plained to him that the job was open but it was not a permanent job, only temporary,
,and Folejewski again expressed his view that he was "getting a hard time from
them" and that Campbell then said, "Well, we know you are organizing this Union,"
and then told Folejewski that "they are just waiting to catch us at it on company
time." Folejewski testified that in early May, Elsky, approached him when he was
smoking in the men's lavatory, warned him, and then looked at him and' said, "Hi,
you racketeer." Folejewski said he then asked, "Stan, what do you mean by that
.expression? He says, `Well, you are, aren't you, working for the Union?' I says,
.'I don't receive no monies for it , or any kind of pay.' I says, `the only reason I am
in is to get better working conditions and seniority ,' I then told him then and there
that by calling me a union racketeer that it was grounds for a discrimination charge.
He says, `Well, I was looking for information."' Another time, in June, Elsky came
to him while he was at work and asked him "who else was in this deal beside me
and Harold Irving, I said, `Several fellows in the shop.' He then asked me-he said,
"Well, who are these fellows?' I said , 'I can 't tell you . it is a secret now but
it won't be in the near future."' In late June or early July, Elsky asked him how
many authorization cards had been signed. About July 15, Elsky approached him
as he and other employees were going out to lunch and said, "Polak, if I don't get
my vacation money this year, I am going to beat you -up," which Folejewski says he
interpreted to mean that Elsky thought he might lose his vacation because of union
organizational efforts in the plant; and that in the early part of September, Elsky
approached him in the shop and said to him, "'Your Harold Irving got it,' he says,
`you're next.' " At a time during the month of June, Folejewski said Bales approached
him when he was distributing circulars at the main entrance of the building and
that "he hollered at me, `Clement, it was nice knowing you. I'll be seeing you.' 11
He also said that in the latter part of April at the time he was at work Reap came
over and began to assist him and said , "'You know, Clem, I understand there is a
movement on here in the shop to get an organization going.' I said, `There is' and
he say, `Yes?' He says, 'It will be a bad time to start anything like that with the
new company just having taken over the B. M. C. Corporation and if the new
company were to run into labor troubles they would have to close the shop down."' 8
Folejewski was 1 of the 2 most active employees in support of union activities.
He signed a union authorization card before many employees had'signed , distributed
and solicited signatures to authorization cards, distributed circulars and handbills at
the gate of the plant , and wore a union button demonstrating his membership in the
Union.
a At the hearing it was stipulated between the parties that Frank Ayres, Robert Hast-
ings, Charles Hill, and Donald Campbell are all supervisors within the meaning of the
Act. Leslie Soper, maintenance supervisor , Howard Bales , a working foreman, Charles
Fedder , a working foreman, Stanley Elsky, a working foreman, and Charles Reap, another
working foreman,. appear, from the evidence contained in the record herein, also to be
supervisors within'the meaning of the Act. (See footnote 4, above.)
8 The testimony shows that prior to April 1954, American Machine and Foundry Cor-
poration became the parent owner of B. M. C. Manufacturing Corporation
B. M. C. MANUFACTURING CORPORATION 835
Francis Gantnier testified to two conversations he had with Hill concerning the
Union . About the middle of April , he said, Hill asked him if he had heard any-
thing about the Union being organized and he told him , "Yes, I think the boys had
a right to organize if they wanted to" and Hill asked , "What boys?" and that he told
Hill "he didn 't know who the boys were." About 2 weeks later , he said Hill told
him "he didn 't want the boys to hurt themselves by joining a union . I told him
that the average foreman did not think anymore of the help than he did of a bunch
of boxes that was laying over there," and that Hill then said something about waiting
for American Machine and Foundry "to do something."
Joseph Carroro related a conversation he had in July or early August while he was
at work and after Bales had approached him: "Mr . Bales came over to me and says,
`You are not supposed to talk to any body in the other department .' I says, We
were just talking about different languages because Clem wanted to know-I can
talk three or four different languages . I told him I just picked it up from hanging
around foreign people . That is all there was to it.' He says, `You are not supposed
to talk to him because he was a union organizer .' I said `We wasn 't talking about
the Union.' "
Floid Gage testified that sometime during June or July he heard Fedder talking to
a group of employees . He said he stopped to hear what was being said by Fedder
and at that Fedder said something about working conditions -"that the factory
could close down , with the production being in stock , which had already been put
away in stock , that it could take and close down if the Union wanted to move in,
they could close the factory down."
Barry testified that shortly after Ayres had talked to the employees his foreman,
Fedder , asked him what he thought about the Union . William Barnfather testified
that in May or early June , Hill talked to him while he was at work, told him that
as far as he could see the employees were just as well off without a union , and that
he could not see where a union could better Barnfather , and told him that a certain
percentage of the American Machine and Foundry plants were not organized . Daniel
Ferenczi related that in April or May he heard Elsky talking to some of the em-
ployees "about the Union": "Actually he didn 't say nothing to me. They were
talking there about the Union when I walked in , and he asked me after a while, I
stood there and listened , and he asked me what I thought about it. I told him what
I thought about it . It was my business and I wouldn 't tell nobody , and I was
neutral . He said, `Well, if the Union got in , they would probably shut the shop
down.' Well, it shut down sometimes anyways, so what is the difference, and I
walked off and went back to work."
Divine testified that in May or June, while he was at work , he overheard Elsky
say, "You better think twice before you join the Union."
Although Fedder appeared as a witness , he was not questioned on direct examina-
tion concerning the statements and remarks attributed to him . The question directed
to him and his answers on cross-examination are not at all helpful in determining
whether or not he admitted or denied making some of the statements he is asserted
to have made . Hill testified that he had heard rumors that some employees had been
threatened and that they had been told they would not have a job if they did not
join the Union ; he emphatically denied that he at any time promised any employee
a reward if he did not join the Union or that he ever told any employee directly or
indirectly that they would be discriminated against if they did join the Union.
Campbell unequivocally denied ever threatening Folejewski or any other employee
with reprisals or loss of employment if he joined the Union , or that he ever held out
promises of reward for not joining the Union . He said that different employees did,
from time to time, come to him and ask questions about union organization , but all
that ever occurred was a casual conversation on a friendly basis with any employee
who had approached him. He denied absolutely ever talking to Folejewski about the
Union ; the only employee whose name he could recall as having discussed the Union
with him was Ted Malachowski. Bales denied absolutely the statements attributed
to him and testified that he at no time promised any employee a reward if he would
not join the Union , or attempted to induce any employee not to join a union, or
threatened any employee with any reprisal or punishment in case he joined the Union.
Reap denied making the statements attributed to him by Folejewski and testified
that he at no time promised any employee any reward if he did not join the Union,
or threatened any employee with punishment or economic reprisals in the event that
he joined the Union . The testimony of Elsky was to the same effect. Elsky said
that on - several occasions he approached a group of employees in the paint depart-
ment and told them , "Well, boys , I don 't know - what kind of meetings you have got
here , but you have got to break it up ." At one time , he said, they were discussing
,836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and he told them that "we weren't in favor of it but that production had
to go . . . that we weren't in favor of holding union meetings on Company time
and I had to break it up."
It is argued by the Respondent that the Trial Examiner should realize that Elsky
was given to "kidding" the employees and that nothing Elsky said had any effect upon
any employee. The Trial Examiner does not believe Elsky was speaking in jest nor
does he attach much credit to Elsky's testimony. The Trial Examiner does not
credit the testimony of Bales and Reap.
The Company, on May 24; had posted a notice warning that no employee, unless
authorized by his foreman, could visit any department other than his own, upon
pain of discharge, and requesting the cooperation of its employees so that "actual
enforcement" of the rule would not be necessary.
Hastings, like Ayres, was a credible witness. It seems clear enough that each
of them, when questioning employees concerning union activities, felt he was within
right in so doing. Ayres, when he made his remarks to groups of employees, prob-
ably thought he was not in any way impinging upon their right to concerted union
activity as guaranteed under Section 7 of the Act. That each of them clearly was
mistaken, however, is shown by the reaction of the employees to their inferrogatiori
and expression of view after Fedder, Hill, and other 'supervisory employees had
let their feelings against the Union be known in the plant. Each one of these super-
visors stood in the place of management when discussing union organization and ac-
tivity with employees, either singly or in groups. The witnesses who testified con-
,cerning comment made to 'them by supervisors were, without exception, credible
witnesses. With the union organization in full swing, particularly through May until
August, the Company would have been well advised to instruct its representatives to
refrain from expressing their views concerning the Union to employees during work-
ing hours. Such expression of view, preceded and accompanied by interrogation of
employees by Hastings and Ayres, and Ayres' talks to groups of employees, accom-
plished an easily foreseeable result-the discouragement of membership in the Union.
The Trial Examiner finds that substantial evidence on the record considered as a
whole supports the contention of the General Counsel that the Respondent violated
the provisions of Section 8 (a) (1) of the Act by interrogation of employees and its
efforts to dissuade them from adhering to or supporting the Union. The several
statements attributed to Fedder, which are-undenied on the record, certainly should
be regarded as coercive. In the light of all the questioning of employees, the speech
of Ayres as related by him only aggravated, and did not abate, the feeling of some
if not all of the employees that the Company was prepared to engage in reprisals
against some employees if the Union should be successful in its organizing campaign.
The Trial Examiner rejects the argument advanced in behalf of the Respondent that
the expressions of opinion by representatives of the Company, in the circumstances
of this case, were permissible under the provisions of Section 8 (c) of the Act .9
The talks given by Ayres, if isolated, and the interviews of employees by Hastings and
Ayres, standing alone, might possibly be taken as expressions of view or as argument
only. However, when these actions were followed by the extreme interest displayed
by the Company's foremen, they became a part of what appears to have been a
determined effort to discourage membership in the Union. The Trial Examiner does
not consider that Section 8 (c) of the Act affords defense or comfort to the Re-
spondent. The combination of questioning and threat disclosed'on the record re-
futes- the- assertion 'of • the Respondent that it, through its representatives, engaged
only in such expressions of view as are protected under Section 8 (c).
In concluding that the Respondent has contravened the provisions of Section 8
(a) (1) of the Act, the Trial Examiner relies upon N. L. R. B. v. Syracuse Color'
Press, Inc., 209 F. 2d 596 (C. A. 2), cert. denied 347 U. S. 966, Graber Manufactur-
ing Company, Inc., Ill NLRB 167, and A. L. Gilbert Co., 110 NLRB 231. No
principle is more clearly established than the one implicit in these cases: that an
employer may not interrogate employees concerning union membership to the point
where any one employee' feels that his job is jeopardized because of his sympathy
for, or activities on behalf of, union organization. Here, the questioning of em-
ployees together with the threatening statements reported above, impels the Trial
Examiner to find that the Respondent had engaged in illegal interference with em-
,
Section 8 (c) provides:
. The expressing of any views, argument, or opinion or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expressionLcontains no threat of reprisal or force or promise of benefit..
B. M. C. MANUFACTURING CORPORATION 837
ployees' rights, in contravention of Section 8 (a) (1) of the Act. See General
Motors Corporation , Cadillac Motor Car Division , 109 NLRB 1429.
C. The discharge of Harold Irving
'r Irving was first employed by B. M. C. Manufacturing Corporation in September
1948 and was continuously employed until the day of his discharge, August 20, 1954.
During the time of his employment, Irving was a parts inspector.'0 After the death
of one Herbert Teebell, a product inspector, in midsummer of 1953, Irving was
transferred from the job of process inspector to that of product inspector. It is
contended on behalf of Irving that the transfer was made to prevent him from having
access to other parts of the plant which he had as process inspector. Actually, it
appears that he did not, except on very few occasions while he was a process inspector,
have occasion to visit other parts of the Respondent's establishment. Hastings said
that the transfer was not wholly impelled by the death of Teebell, but also because
Hill, the chief inspector, felt that Irving could do a better job as a product inspector.
Witnesses for the Respondent expressly denied that the transfer was made so Hill
could keep Irving under his direct observation at all times.
Irving, with Folejewski, was an employee most active in soliciting membership in
the Union and engaging in organizing activities on its behalf. He was one of the
first to sign a union authorization card; he distributed authorization cards and solicited
signatures from employees; he distributed circulars at the gate of the plant; and
otherwise engaged in activities on behalf of the Union. Shortly after the union
organizational campaign began, Hastings warned Irving that he could not solicit
union membership on company premises or on company time. It does not appear
that Irving, at any time, ever did so.
Irving testified to a conversation between himself and Fedder which occurred
during working hours about 9:30 in the morning sometime in the latter part of
May or the first week in June. According to Irving:
Well, Mr. Fedder started out by saying that these union boys were not interested
in the workers, they were interested only in soft jobs for themselves, that he,
Fedder, had worked in places where they had unions and he knew what he was
talking about-anyone who joined a union should have his head examined. He
further said that the inventory situation of the Company was extremely favorable
and they could close down without detriment to the Company, and they prob-
ably would do so if the Union got in.
He also testified to a conversation between himself and Hastings prior to May 12:
He said the two talked for some time about the business of an activities club and
then, he said, Hastings asked him if he had heard any rumors of a union trying to
organize the plant; that he replied that he had and Hastings asked him if he knew
who the organizers were and he replied that he did not and would not divulge the
information if he did know; that Hastings then asked him if he knew which union
it was and he replied, "Yes," he did, but he did not feel at liberty to divulge that
information." After the change in assignment of jobs, Irving discussed the matter
with Hill,, who told Irving he was going to put him on the tractor line and for him
to consider himself a product inspector and be guided by their rules, and not to leave
TO Irving's job, just prior to his discharge, was described by Fedder as follows :
In that particular spot we had several parts that go into the packing case and with
each one of the parts is usually inspected prior to handing the car for packing pur-
poses.
We have containers there where these parts are and they are all painted. That
is usually done before we start packing . . . depending on the models we handle,
certain parts are assembled to the body ; other parts, small sub-assemblies , are pre-
pared and shipped with these boxes to the customers to make up on their own ac-
count For instance, we may have a front end assembly, and the rear end assembly,
packed separately in the container so as to reduce the size of the boxes, and the cus-
tomer builds the model up himself
Irving's job was to inspect those parts before they were packed. The difference
between a process inspector and it product inspector is that the former Inspects parts
after processing, and the latter inspects finished products before packing
ii Irving said that up to the time of the conversation with Hastings in early May he
had been performing the duties of a process inspector and also that of a product inspector,
and that It was after the conversation In which the activities club was discussed that he
was "removed froin.rny present job and placed in as inspector in what we know as the
junior tractor line, departmental inspector.", - - -
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the department without permission. Irving said that his job of process inspector
required him to be around plant No. 1 and in other buildings on occasion, because
there were operations in all three buildings requiring that sort of inspection. Actu-
ally, it appears that he was sent to buildings other than the one in which he was
regularly employed only on few occasions. He testified that he protested the change
of job to Hastings and asked him why he had received "this treatment, this demotion"
and that Hastings told him in effect that he was acting at the request of Hill, and
Hill, Hastings assumed , was acting on the information or advice of Ayres, and that
Hastings further told him that he, Hastings, "had received a telephone call at his
home saying that I was a union organizer, that Mr. Ayres had received a similar call,
and they assumed that was the reason for my transfer." The change in jobs did not
affect Irving's rate of pay, nor did it require the exercise of more or less judgment
or responsibility. The change in assignments was a "demotion" in Irving's mind,
apparently, because it confined him to one particular place in the plant. Also, it
is contended on behalf of Irving that the transfer was made so that he would be
stationed at this one place and thus be able to be kept under surveillance by Hill and
Fedder at all times . The strongest testimony in this respect was given by Sophie
Wood, who in answer to a question as to whether she had observed anything con-
cerning Hill and Fedder after Irving was transferred to this job, answered that she
observed them watching Irving through a window in a door to an office used by
Hill and other foremen, located some 50 or 60 feet away from Irving's station. She
did not recall whether they did this frequently or infrequently. The Trial Examiner
believes, and finds, that Irving was subject to no more surveillance than ordinary
supervision while he was at work.
On Monday, August 16, at 7:10 a. in., Irving testified that he met a passenger,
Frank Gantnier, and drove Gantnier in his automobile to the plant . He arrived at
approximately 7:20 a. in. at a gate leading to the employee's entrance where Harold
Garner, James Lewis, Donald Barry, and Clement Folejewski were engaged in con-
versation. Folejewski followed him into the plant and engaged him in a short con-
versation, estimated at not to exceed 1 minute. Irving discovered he had no ciga-
rettes, so he walked through the plant gate and then diagonally across the street to
the Windsor Court Inn, a total estimated distance of 115 feet from the employees'
entrance to the plant. Finding he had no change, he borrowed 25 cents from the
proprietor, purchased cigarettes from a vending machine, and returned immediately
to the plant . He estimated the time consumed not to exceed 2 minutes. He then
went inside to the time clock, punched in, and then went outside where the other,
men were grouped. He then entered into a conversation with Gardner, Lewis, and
Barry and was talking with them when the 7:30 a. in. buzzer, a signal to start work,
sounded, and he at once entered the plant. He estimates this to have taken about
45 seconds. He walked to his department where he met Fedder. The lights were
not on, and he remarked to Fedder that it "doesn't look as if there will be any work
for awhile," to which Fedder replied "No." Irving said "Well then, Charlie, if there
is nothing to do here for a few minutes, half hour, I guess I'll go out back to the
personnel office and finish my smoke." Fedder made no comment . Irving said
he did go out to the personnel office and lighted his cigarette and that as soon as he
saw the lights go on, at about 7:40 a. in., he returned to his department and began
work.
The testimony of Fedder is substantially as follows: Fedder drove to the plant,
parked his automobile, and as he was crossing the street, he heard the 7:25 a. in.
warning buzzer sound and at the same time noticed a group of employees at the
plant gate. He then entered the factory. As he entered he noticed the group break
up and start toward the employee entrance, some 40 to 50 feet where they had been
gathered. Fedder entered the plant through the office door, and because of the
"unusual excitement outside" he decided to see what was going on, so he walked
some 25 feet down the corridor towards the entrance door, saw the group engaged
in some discussion , and then saw them break up about that time. Irving punched
the time clock and then "walked back out again and some of the boys came into the
plant." In less than a minute after that, the 7:30 work buzzer sounded . He said he
"wondered where Irving was going at that time, after punching his card, so I went
back to the office and looked through the door there to see where he was going."
He saw Irving cross the street after waiting for an automobile to pass and enter the
Windsor Court Inn, and then, he turned around to take off his hat and coat. His
testimony with respect to what then happened follows:
Our office is approximately 125 or 130 feet from the office door and I took
my hat and coat off, put my blue shop coat on, during this time 3 or 4 minutes
expired, and on returning to check further on the time that Irving came back, I
B. M. C. MANUFACTURING CORPORATION 839
noticed him coming back across the street. I didn't see him enter the plant.
I saw him coming back across the street.
Q. Can you give us some idea as to how long it was between the time you
saw him leave the plant at 7:30 and the time you saw him coming back?
A. I would say, well, 4 or 5 minutes.
Q. And then what next occurred?
A. I went down in front of the corridor where our job clock is, and waited
there for Irving to come in.
Q. And did you notice the time he came in?
A. Yes, I did.
The incident was reported to Irving's foreman and to Hastings, and Hastings under-
took to investigate Irving's absence from work between 7:30 and approximately 7:42
a. in. At his request, Fedder furnished him a statement, dated August 19, 1954, in
which Fedder stated:
On Monday morning, August 16, 1954, I saw Harold Irving enter the factory
and punch the time clock at 7:29 a. in. Immediately after ringing his time card,
he left the factory and went across the street and did not return until 7:42 a. in.
at which time he hung up his hat and coat and went to work.
Hastings took several days between Monday, the 16th, and Friday, the 26th, to
investigate the report of Irving's absence from work on Monday morning. He dis-
covered, he said, that Irving had been away from his work on the preceding day that
week (Thursday) and according to reports made to Hastings by certain foremen,
Irving had been absent from the job on other occasions., When Hastings and Hill
talked to Irving in Hastings' office on Friday morning, Irving asserted that he was
on company property at 7:30 and "I remembered that occasion very well, that I had
left the plant before 7:30 and I had gotten this package of cigarettes, returned, and
was in the plant at 7:30 at the time the buzzer sounded, that I was at no time off
the company property subsequent to 7:30." He also asserted at that time that it
was a common practice among some of the employees, especially one Ralph Atwater,
to drive his car in front of the plant, leave the motor running, run in, ring his time-
card, take off for breakfast, and then return "sometimes" at 7:50 or 8 o'clock. The
import of his argument was, apparently, that even if it were assumed that he was,
away from company property on that Monday morning, it should be condoned be-
cause other employees were in the habit of doing the same thing.12
It seems to be undisputed that on Monday mornings, or some Monday mornings,
some of the employees in the department where Irving was employed line up to
receive clean aprons, distributed by a woman employee either shortly before or after
the 7:30 a. in. buzzer sounds. On August 16, Folejewski was waiting in line to re-
ceive his apron and saw Irving come into the department, he said, a minute or two
after the buzzer sounded, in the company of Barry. Lewis, on the other hand, re-
membered that Irving was in the group by the door when the 7:30 a. in. buzzer was
heard, but could not say whether Irving crossed the street after that, or not.
. The Respondent vigorously contends that Irving could have started to work at
7:30 a. in. without regard to the need of some other employees to obtain an apron-
that his work was there waiting for him and that if the foreman had not turned on
the lights, he could have done so and could have begun work. Counsel for the Re-
spondent argues that Irving, by not being at his post at 7:30 a. in. just as surely
robbed the Company of money as if he had robbed the till.13 Management is, of
course, entitled to enforce rules governing employees in connection with performance
of work expected from them during working hours. Here, at the outset of union
activities in May, the Company made it plain that it would not condone union activity
on company premises and company time. There is no question but that Irving was
not on his job at 7:30 a. m. on August 16, but there is a question as to his right to
be absent at the time he was. If he was the victim of discharge because the company
representative seized upon the incident to get rid of him because of his adherence
to the Union is one thing-if the Company acted properly in the enforcement of plant
discipline is another. Before his discharge, he had been properly warned not to en-
gage in union activities on company time or property. Company representatives
>s Hastings subsequently investigated the claim that Atwater had been away from work,
but was unable to verify that fact through the foremen.
13 Two employees previously had been discharged when it was discovered that their
timecards had been punched-by' othe"r's to show that they had reported in for work, when
actually they had not.
379288-66-vol. 113-54
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were well aware that he was active in furthering concerted activities of employees.
Whether Irving walked across the street to the Windsor Inn and purchased cigarettes
and then punched in, as he said he did, or whether he punched in and then went across
the street and took his position on the job, as the testimony of Fedder shows, presents
a sharp question of credibility. The Trial Examiner credits the testimony of Irving
against that of Fedder.
The testimony of Folejewski,-Barry, and Lewis is not too helpful for Irving in
support of his story. Admittedly, he did not undertake to start work until some
10 to 12 minutes after he was due to be at his station. The General Counsel, in ad-
vancing a theory of disparity of treatment between Irving and other employees, and
Atwater in particular, did not seem to be prepared to show discrimination against
Irving as compared to other employees in any similar situation. The Respondent
showed affirmatively that two other employees had been discharged for "stealing
time" from the Company.
. The Trial Examiner finds that Irving, although he was not actually at work for 10
or more minutes after 7:30 a. in. on that morning, had good reason to believe he need
not start work until production was begun in his department.
Company management, of course, has the responsibility and the prerogative to en-
force discipline. The question of whether in Irving's case company representatives
fortuitously took advantage of his breach of its rules, assuming a breach to have
been made, to rid the Company of him because of his union activities, probably should
be decided here. Irving had been warned several months before his discharge to
stay on his job and not to engage in union activities on company property or on com-
pany time. There is no substantial showing on the record herein that Irving violated
these admonishments prior to August 16. The only testimony on this point is that
of Hastings, who related reports made to him by other persons, none of whom were
called to testify.
In the absence of testimony to the contrary, Irving's performance at his job, gen-
,erally speaking, must be assumed to have been satisfactory to his employer. Not-
withstanding the doubt in his mind as to where Irving actually was between 7:29 a. in.
and 7:42 a. in. on August 16, the Trial Examiner finds that Irving ostensibly was dis-
charged because he was not on the job when he was supposed to have been there,
and the reason for his discharge was pretext only. The real reason for his discharge
was because of his adherence to the Union and his activities in support of the Union.
In so deciding, the Trial Examiner does not in any respect imply that he would con-
done breaches of proper plant rules intended to govern working conditions within any
manufacturing establishment.
Concluding Findings
The Trial Examiner finds that the Respondent, by taking direct action in interro-
gating employees concerning union membership and activities and through its agents
and representatives giving warning of possible loss of benefits should these employees
adhere to the Union and otherwise indicating strong opposition to the Union to the
possible detriment of employees, violated Section 8 (a) (1) of the Act. The talks by
Ayres, taken alone, would not have constituted a violation of the Act. The interro-
Agation, of employees by Hastings and Ayres verged close upon interference with'the
rights of employees to engage in concerted activities. When their activities were con-
nected with and followed up by the antiunion comments of foremen, for a period of
at least 3 months, the conclusion is inescapable that the Company exerted illegal pres-
sures to discourage membership in the Union. The discharge of Irving, at the height
of the organizing campaign, necessarily must have had the effect of discouraging
membership in the Union and interrupting the concerted activities of employees guar-
anteed them in Section 7 of the Act. The Trial Examiner finds, as contended by the
General Counsel, that through its activities set forth above the Respondent violated
the provisions of Section 8 (a) (1) of the Act, and that in the circumstances sur-
rounding the discharge of Irving, it violated the provisions of Section 8 (a) (1) and
B (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close , intimate , and substantial relation to trade , traffic , and commerce among
the several States, and tend to lead to labor disputes -burdening and obstructing com-
merce and the free flow of commerce.
MARLO OFFSET PRINTING CORPORATION 841
V. THE REMEDY
Having found that the Respondent is engaged in unfair labor practices the Trial
Examiner will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of Harold Irving on August 20, 1954, by discriminatorily dis-
charging him. The Trial Examiner therefore recommends that the Respondent offer
to Harold Irving immediate and full reinstatement to his former or substantially
equivalent position, and make him whole for any loss of pay he may have suffered by
reason of such discrimination by payment to him of a sum of money equal to that
which he would have earned as wages or salary from the date of his discriminatory
discharge on August 20, 1954, to the date of the offer of reinstatement less his net
earnings during such period in accordance with the formula set out in F. W. Wool-
worth Company, 90 NLRB 289.
It has also been found that the Respondent by the discharge of Harold Irving and
various other acts has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by the Act. It will therefore be recommended
that the Respondent cease and desist therefrom.
Upon a consideration of the record as a whole, the Trial Examiner is convinced
that the Respondent's conduct in committing the unfair labor practices herein found
so acted in order to prevent the unionization of its employees and indicates an at-
titude of opposition to the purposes of the Act generally. In order therefore,'to make
effective the interdependent guarantees of Section 7 of the Act, thereby minimizing
industrial strife which burdens and obstructs commerce, and thus effectuate the
policies of the Act, it will be recommended that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact , and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of Harold
Irving the Respondent, B. M. C. Manufacturing Corporation, has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and'
(1) of the Act.
3. By interrogating , threatening , and otherwise interfering with the rights of its
employees to engage in concerted activities B. M. C. Manufacturing Corporation,
the Respondent, has interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed to them and each of them in Section 7 of the Act,
in that it has interfered with the rights of employees to engage in concerted activity
for the purpose of collective bargaining or other mutual aid or protection in con-
travention of Section 7 of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce.'withiritthe meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Mario Offset Printing Corporation and Advertisers Production
Services , Inc., Harris Advertisers Service , Inc., Harris Pocasset
Press Corporation ; and John J . Harris and Amalgamated
Lithographers of America, CIO, Local No. 1. Case No. s-CA-
3474. August 19,1955
DECISION AND ORDER
On March 31, 1955, Trial'Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
113 NLRB No. 93.