Brown Survey Corp.

National Labor Relations Board - Board Decisions

Jan 6, 1958

119 N.L.R.B. 1240 (N.L.R.B. 1958)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been used for certain intraunion purposes. No evidence was offered
to confute this explanation. The Employer also argues that as its
employees aided in deleting the insurance benefit information from
the "Spotlight" there was distribution of the -erroneous material, at
least with respect to them. Such an argument is wholly unpersuasive
if for no other reason than that Petitioner's having the employees
delete the matter certainly operated as an effective retraction or cor-
rection of the erroneous information with respect to such employees.
Thus, we find that this objection is without merit. We further find
that certain of the Employer's objections relating to the "atmosphere
of violence" which were based on articles also deleted from the above
mentioned July 23 "Spotlight" are without merit, as there is no
showing that such articles were distributed among the employees.
We have, in agreement with the Regional Director, found all of
the Employer's objections to be without merit and they are hereby
overruled. As the Petitioner received a majority of the votes cast in
the election we shall certify the Petitioner as representative of the
employees in the appropriate unit.
[The Board certified International Union, United Automobile
Aircraft & Agricultural Implement Workers of America, (UAW),
AFL-CIO, as the designated collective-bargaining representative of
the employees in the appropriate unit at the Employer's Latrobe,
Kingston Station, and Chestnut Ridge, Pennsylvania, plants.]
Brown Survey Corporation and Isaac B. Holden. Case No. 2-CA-
5003. ' January 8,1958
DECISION AND ORDER
On August 2, 1957, Trial Examiner A. Norman Somers 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.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman Leedom and
Members Rodgers and Bean].
1The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, i;gceptions , and brief adequately present the issues and positions of the parties.
119 NLRB No. 143.
BROWN SURVEY CORPORATION 1241
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 .2 The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, except as hereinafter
noted.
1. The Respondent alleges bias and prejudice on the part of the
Trial Examiner. We have carefully scrutinized the entire record
and find no support for these allegations.
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by its interrogation of employee Williams
and violated Section 8 (a) (1) and (3) by its discriminatory dis-
charge of Holden, Moore, and Davis. However, we do not adopt his
conclusion that the Respondent's offer to take Holden back at the be-
ginner's rate was also a constructive discharge.
3. The Trial Examiner states that Holden may well have suggested
at the second meeting he had with the respondent's president on July
8 that he and Moore be discharged so that they could collect ullemploy-
ment compensation. Without indicating that there was conflicting
evidence on this point, the Trial Examiner apparently assumes,
arguendo, that the statement was made and then proceeds to explain
why it does not impair his prior finding that the Complainants were
in fact discharged at the first meeting. While the Trial Examiner's
rationale appears reasonable, we do not think it necessary to dispose
of this evidentiary point in such a circuitous manner. For at the
hearing Holden flatly denied ever making such a statement and as his
testimony was otherwise fully credited by the Trial Examiner, we
are satisfied on the record as a whole that Holden did not make the
statement.
ORDER
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, Brown Survey
Corporation, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the Employee Committee or in
any other labor organization of its employees by discriminating in
2 At the close of its case, the Respondent made a request of the Trial Examiner that
written statements obtained by the General Counsel from the Charging Party and other
witnesses for the General Counsel be made available to the Respondent for examination.
The Trial Examiner denied this request. In its brief the Respondent cites the case of
Jencks v. United States, 353 U. S. 657, as authority for its position that the Trial Ex-
aminer's ruling was erroneous. We agree with the Trial Examiner's ruling for the reasons
stated in the majority opinion in The Great Atlantic and Pacific Tea Company, National
Bakery Division, 118 NLRB 1280.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to their hire or tenure of employment or any term or condition
of employment.
(b) Interfering with, restraining, and coercing employees in the
exercise of their rights under Section 7 of the Act by :
(1) Discharging or otherwise discriminating in respect to the hire
and tenure of any employee for making a concerted demand or signing
a petition in regard to wages, hours, conditions of work, or other
conditions of employment.
(2) Interrogating, in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1), any employee concerning
whether he has participated in a concerted demand or signed a petition
in regard to wages, hours, conditions of work, or other conditions of
employment, or' whether he has affiliated with, joined, or assisted the
Employee Committee or any other labor organization.
(3) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist the Employee Committee or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition 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 Isaac B. Holden, William H. Moore, and James H.
Davis, Jr., immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or
other rights and privileges, and make each of them whole, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay suffered as a result of the discrimi-
nation against them.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Distribute to all of Respondent's employees and to Issac B.
Holden, William H. Moore, and James H. Davis, Jr., copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BROWN SURVEY CORPORATION 1243
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the president of Respondent, be mailed to
each of Respondent's employees at his current address, as indicated in
Respondent's records, and Holden, Moore, and Davis at the respective
addresses of the latter as given to Respondent by the Regional
Director.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES OF BROWN SURVEY CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
AVE WILL NOT discourage membership in the Employee Com-
mittee or any other labor organization, by discriminating in re-
gard to the hire or tenure of employment or any term or condition
of employment of any employee.
WE WILL NOT discharge or otherwise discriminate against any
employees for making a concerted demand or signing a petition
in regard to wages, hours, conditions of work, or other conditions
of employment, nor will we threaten any employee with dis-
charge or discrimination for doing so.
WE WILL NOT interrogate in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1), any em-
ployee concerning whether he has participated in a concerted
demand or signed a petition in regard to wages, hours, conditions
of work, or other conditions of employment, or whether he has
affiliated with, joined, or assisted the Employee Committee or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce any employees in their right to self-organization, to form,
join, or assist the Employee Committee or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Isaac B. Holden, William H. Moore, and
James H. Davis, Jr., of the New York office, immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and WE WILL make each of them whole for any losses
in pay suffered by them as a result of the discrimination against
them on July 8,1956.
BROWN SURVEY CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(E. H. WOLSON, President)
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
STATEMENT OF THE CASE
This proceeding was heard by the Trial Examiner in New York City, April 29
to May 2, 1957, inclusive, on complaint of the General Counsel issued on the charge
of Isaac B. Holden, an individual. The complaint alleged that Respondent, in vio-
lation of Section 8 (a) (3) and (1) of the National Labor Relations Act (61 Stat.
136), discharged Isaac B. Holden, William H. Moore, and James H. Davis, Jr.,
because of their participation in an alleged labor organization, described therein as
an employee committee, and because they engaged in other protected activities.
The answer, admitting only the jurisdictional allegations, denies that the committee
is a labor organization or that it was a factor in the termination of the employment
of the three. The answer asserts, instead, that Holden and Moore resigned and
that Davis was discharged for incompetence.
Full participation was accorded at the hearing to all the parties. Oral argument
was waived, but respective counsel for the General Counsel and for the Respondent
have submitted briefs, which have been duly considered. The Trial Examiner also
issued an order correcting the stenographic transcript of the hearing in certain
respects.
Upon the entire record and his observation of the witnesses, the Trial Examiner
hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, incorporated in Delaware, has its principal office in Philadelphia,
Pennsylvania. It performs services for local transit lines there and in other cities
in the country, which are described, broadly, as "operational surveys." The group
of employees in New York City, here involved, were traffic inspectors, engaged
in observing the performance of the operators of the buses of the Fifth Avenue
Coach Line, with which Respondent has a contract. Respondent grosses more than
$50,000 annually for services performed outside the State of Pennsylvania. This
brings it within the Board's jurisdiction statutewise (N. L. R. B. v. Stoller, 207 F. 2d
305 (C. A. 9)) and under the minimal standards upon which the Board conditions
the assertion of its jurisdiction (Jonesboro Grain Drying Cooperative, 110 NLRB
481, 483-484).
II. THE ALLEGED LABOR ORGANIZATION INVOLVED
The "Employee Committee" is the designation given to a grouping or concert
of a few employees spontaneously evolved within several days before the termina-
tion of the Complainants' employment, under the initiative and leadership of Isaac
B. Holden. As stated at the outset, Respondent disputes that it is a labor organiza-
tion. Determination will await consideration of the facts as a whole, where the
matter can be viewed in the context of circumstance and purpose.
BROWN SURVEY CORPORATION 1245
III. THE UNFAIR LABOR PRACTICE
A. The situation preceding the genesis of the employee committee
All events here considered occurred in 1956. The three Complainants , Holden,
Moore, and Davis, were hired the early part of that year by Respondent at its office
in Philadelphia as traffic inspectors , whose duties have been described in the pre-
ceding section .' Each underwent his requisite period of training and preliminary
performance of services in Philadelphia , after which he was transferred to New
York City. Each began at the starter's rate of $8.50 a day, and was told raises
would be commensurate with performance . By July 8, when the termination oc-
curred, Holden received 3 raises of 25 cents a day each, bringing his daily wage to
$9.25, Moore 4 such , bringing it to $9.50, and Davis 1, bringing his daily rate
to $8.75.
The work consisted of taking a number of rides a day as ostensible passengers
on the buses of the Fifth Avenue Coach Line, Respondent 's client in New York,
and observing and reporting upon the performance of the bus operator for courtesy,
honesty, etc . The reports , prepared by the inspector within 24 hours after each
day's work, were required to be submitted to George Lansberry , crew leader or
supervisor of the New York agents, for correction as to content and grammar.2
After correction , if any, Lansberry would send one copy to the Coach Line and
another to Miss E. H. Wolson, president of Respondent in Philadelphia. The
agents would usually receive an advance for the week. Out of it they would defray
their bus fares, cost of stationery , telephone calls, etc., and the remainder would
be charged against their earnings.
The Complainants found their pay inadequate . The only person, it would seem,
with authority to do anything about it was Miss E. H. Wolson, and she was in New
York at most twice and sometimes only once a month . The respective raises they
received up to their last rate, previously described , followed bickering in which they
complained of their inadequate pay and in which Wolson stated they must prove
their capacities before she would pay more.
While the work itself rather appealed to the men-especially to Holden, who
equipped himself with beret, dark glasses, and a briefcase , to "cut a figure"-there
were other features besides low wages which , according to Complainants , made them
unhappy. The job was a 7-day-a-week affair. If an employee wanted time off, he
took it, but if he did so he lost a day 's pay for each day of work he missed , regard-
less of whether the time taken off was on a Sunday or a legal holiday, or of how
many consecutive days he had worked before this.3 Lacking also were other features
familiar to industrial employment ; there was no premium pay for work during holi-
days or for overtime , and no sick benefits. Additionally , what any employee received
was apparently not known to the others. Indeed , this very secrecy was a precipitating
factor in the crucial events here considered.
It should be preliminarily stated that the Complainants ' bickering with manage-
ment about their wages was the occasion for the latter 's making known its own
complaints against the employees . Davis, for example, had taken 3 successive days
off on June 16, 17, and 18 , apparently without reporting on it in advance to manage-
ment, had not shown up at some meetings, and was a bit inept in his reports , although
his performance on that score had lately improved . Moore, on occasions , had been
hard to locate; and Holden frequently tried the patience of the forebearing Lansberry
by brushing aside the latter's corrections of Holden's reports as the carpings of a
"grammarist ." Indeed, on June 27, Wolson came to New York and discharged
Holden but restored him 5 minutes afterwards upon Holden's apologizing to Lans-
berry and Lansberry 's recommending Holden's retention because of his undisputed
ability. June 27 served , in fact, as the occasion for Miss Wolson 's giving the entire
crew a general talk about the client 's complaints with the performance of the agents;
generally. On the next day she issued a general communication or memorandum to
all of the agents , reciting the client's complaint and setting forth the schedule the
I Holden was hired March 7; Moore, January 5 ; Davis, March 24.
2 Alternatively , it would be submitted to such other agent as Lansberry might designate-
to assist him.
3 For its relevance to another phase of the case , it is here mentioned that employees
were asked to anticipate the time they would not work by informing the crew leader, in.
advance, if practicable . But in any event , upon their return , they were to fill out a "did
not work" sheet , to make sure they were not paid for the time taken off.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents were to adhere to. Appended to the end of that communication was a com-
ment applicable to the particular agent. Those to the Complainants read as follows:
Holden: On July 1st, your rate will be increased to $9.25 per day. Your
work must conform.
Moore: On July 1st, your rate will be increased to $9.50 per day. Your
work must conform.
Davis: No increase will be granted until July 15. At that time if there is a
definite improvement in your work, I will discuss this with you.
So matters stood until the crucial events here considered. So far as appears, none
of the Complainants again gave offense, and Holden's and Moore's raises of 25 cents
a day each went through as promised. But, then on about July 3, along came Kay
Williams, who whispered into Holden's ear what she was getting per day. What the
rate in fact was is still a secret. What she told Holden is not. She said she was
receiving $10 a day, and she alone of all the agents was younger in service than
Holden, Moore, or Davis. Holden was burned up. He communicated what Williams
told him to Moore and Davis, and it lit a fire under them too. At Holden's sugges-
tion they decided to formulate their grievances.
B. Birth of the committee; preparation of the petition, and the action taken thereon
Holden sought to widen the base of support for the grievance formulation by
enlisting other employees besides Moore and Davis. They found an ally, oddly
enough, in Williams herself. On July 3, the three spoke to her at the street corner at
46th Street and 5th Avenue, near the building where Respondent has the use of a
law office to hold meetings of its agents. Holden assured her the object was not to
jeopardize her own rate of pay, but to bring all the new employees' pay to the same
$10 a day, and to mitigate some of the other grievances on the job. Williams said
she would go along with this.4
The next day, Wednesday, July 4, Holden and Moore, meeting in Central Park,
made a penciled draft of the demands, which Moore later typed up in his quarters.
On the evening of Friday, July 6, there was a regular daily meeting of the employees
in the building previously mentioned. Before entering the building, Holden and
Moore showed the petition at the adjacent street corner to three other agents, Fred
Saar, Charles Corbin, and John Wright, and asked them to read and sign it. Wright
begged off because of recent illness, and Saar demurred to reading or signing any-
thing at a street corner. The employees then entered the building.
Before the agents' meeting started, Holden, in the outer room of the office, handed
copies of the petition to all agents then present, including also Crew Leader George
Lansberry and Associate Crew Leader Sam White. Holden stated that he knew
Lansberry and White "won't bother to sign it," but suggested they look at it anyway,
stressing their common interest in certain of its features.5 Holden, Moore, and Davis
signed the petition. So also did Williams, to whom Holden handed it as she was
leaving the office to keep a date. The other three employees, most vocally Fred Saar,
objected to the petition because of its "demanding" character and because on its face
it threatened a walkout if the terms were not granted.
After the meeting, Holden, Moore, and Davis met with Saar and Corbin on the
street corner. The latter two voiced the same objection to the petition as in the
office. Saar suggested that a wire first be sent to Respondent's President Wolson in
Philadelphia asking her to meet with them. Holden, although personally opposed
to the mitigating suggestion, agreed to go along with it if that was what the majority
of the five then congregated preferred. That being their preference, it was agreed
that Holden and Moore send the wire. The latter two did so the same night, but
* Williams , a reluctant witness, testifying under subpena , denied the above participation.
She signed the petition which was later drafted , and, as later appears, at the meeting on
July 8, retained her position after persuading Respondent 's officials she had not the slight-
est notion of what was in it. The denial of participation as given on the stand seemed
motivated by the necessity for being consistent with the position to which she had com-
mitted herself on July 8 in order to retain her job. There is no question of the re-
liability of Holden's, Moore 's, and Davis ' testimony concerning Williams' acquiescence in
the venture at the time.
5 The petition contained a proposed wage scale for the crew leader and associate crew
leader as well as the rank and file . Also, the provisions for days off , holidays with pay,
etc., pertained to conditions which the supervisors shared with the rank and file.
BROWN SURVEY CORPORATION 1247
the wire purported to be sent by Holden.6 The wire, a night letter dated July 6,
read as follows:
THE PRESIDENT AND BOARD OF DIRECTORS
BROWN SURVEY CORP 1913 WALNUT
ST. PHILA
IT IS IMPERATIVE THAT A COMPANY OFFICIAL MEET WITH US
AT OUR SUNDAY MEETING 2:00 PM REGULAR MEETING PLACE
FOR BROWN SURVEY AGENTS TO HEAR AND DISCUSS OUR
PROBLEMS
GROUP REPRESENTATIVE ISAAC
HOLDEN
The content of the message was relayed to Miss Wolson over the telephone the
morning of Sunday, July 8, from Respondent's office in Philadelphia to her summer
home near Atlantic City. But she had already decided to be at the meeting the
previous morning as a result of a telephone conversation with Crew Leader Lans-
berry. Lansberry, disturbed by the developments in the office on Friday evening, con-
sulted with Sam White, who was due to take over the full crew leadership on Sunday,
because Lansberry was being assigned to Buffalo. The two agreed the matter war-
ranted Miss Wolson's attention. Lansberry reached Miss Wolson at her summer
home on Saturday morning and in his own words:
I told her that there was confusion in the office. There was excitement among
the crew. There was general dissatisfaction among the crew members; that
there were a number of them upset, because a petition was being circulated,
because signatures were being asked for, and several of the people did not
sign or would not sign.
Lansberry explained to Wolson that the petition was, as he put it, one "of grievances
and general dissatisfactions," and he urged her to be at the regular meeting Sunday,
July 8 at 2 to "take care of it." Wolson indicated she would come and instructed
Lansberry to have word passed around among the agents that they should be there
at the appointed time. The next morning, as indicated, she was given the contents
of Holden's wire.
C. Management's interviews with the employees on July 8
Wolson came to New York on July 8, accompanied by Isidor Ostroff, who is
general counsel for Respondent, and Wolson's husband. The two arrived at the
office at about 2:15. Waiting then in the outer office were all of the agents except
Davis. He shortly thereafter telephoned in to Lansberry that he was-lost in Queens
and needed directions to get to the office. These were given him by White at
Lansberry's request, and White later communicated the contents of Davis' call to
Wolson.
First to be called into the inner office with Wolson and Ostroff was Lansberry.
Wolson, as she testified, asked Lansberry "what was going on," and he repeated
what he had said the preceding morning, that "there was a lot of excitement, Holden
gave him a paper, he didn't read it, he didn't know what it was all about, but the
entire crew was upset." Wolson told him to make his train to Buffalo and not to
"worry about this," as she would "take care of this." Wolson then called in White,
Corbin, and Saar.7 Wolson asked them, as she put it, "what goes?" or "what
gives?" White, according to Wolson, laughed the matter off, stating "they were all
crazy." Saar said that he had told Holden on Friday that "it is no way to do
things." 8
6 Moore and Davis agreed to share the expense with Holden.
7 White testified the three were called in together immediately after Lansberry and be-
fore Holden. Saar testified it was after Holden and Moore. It is not too crucial. All
other witnesses, including Holden and Moore, testified the three were called in after
Lansberry and before Holden. Corroborating White, Holden, and Moore, Wolson testified
she called in those three and also Wright. She was probably mistaken as to Wright to
whom she spoke alone later. But Saar to the contrary, the record leaves no question about
the sequence : White, Corbin, and Saar were called in immediately after Lansberry and
before Holden.
8 Saar, on the stand, insisted that Wolson never asked the three about the petition. He
had previously testified that it was the custom to call the various agents in individually
unless it was on a common problem. Asked , then, what matter in common between him,
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this point, we state first the sequence of the succeeding interviews before dis-
cussing their contents. Called in after this, in that order, were Holden, Moore, and
Kay Williams, individually. Holden and Moore emerged from their respective
interviews as ex-employees. Williams was retained. After this Wolson addressed
the entire crew (except the terminated Holden and Moore, the Buffalo-bound Lans-
berry, and the still-to-arrive Davis). When finished with the crew, Wolson spoke
individually to Davis, who had by this time arrived, and Davis, too, wound up as
an ex-employee.
There is not full agreement as to what happened in these interviews. We shall
accordingly relate the conversations first as testified to by the interviewees and second
as described by Wolson and Ostroff.
1. Interview with Holden
In a conversation which lasted about 20 minutes to a half hour, the following,
according to Holden, is what happened:
Wolson opened by asking what he'wanted to meet with her about and to explain
his self-description as "group representative." Holden stated he was representing
a group of employees, that they had originally planned to submit a list of demands
and to strike if they were not met, but that they had changed the procedure and
"called this meeting in order to negotiate and to discuss our grievances." Holden
handed Wolson an unsigned carbon copy of the petition, explaining that he had
intended to change the petition so as to soften the wording but had not had a chance
to do so.9
Holden related his own gripes and those of the crew as he saw them. He claimed
everyone was unhappy over wages and the lack of the normal benefits associated
with industrial employment, such as days off, overtime pay, and sick leave. He
illustrated his thesis by citing examples: Wright had recently gone through an illness
without sick pay; Davis was unhappy, and Holden attributed the latter's 3-day
absence in June to his impaired morale. The petition handed Wolson, as previously
noted (footnote 5), addressed itself to some of these matters: a minimum rate of
$10 for beginners with periodic increases up to $12 a day; 2 days off per month
with pay, and premium pay for work on holidays. Wolson, reading the petition,
said the demands were preposterous, and she asked Holden what he thought l
Respondent was receiving a day for an agent's work. Holden hesitated, but, when
pressed, speculated that it was $25 a day. Wolson was furious. According to
Holden, Wolson told him if he thought there was that kind of money in running
Respondent's operation, he could take himself and his "agents" and form his own
company. Holden said he was not interested in forming his own company but
in getting better terms for himself and the group he represented. Wolson, according
to Holden, thereupon told him to return his equipment to the office. At this point,
according to Holden, he told Wolson that he did not want any of the others for
whom be had spoken to suffer, that he would take full responsibility for his
action, and that if Respondent spared the jobs of the others, he would be willing
to resign. Wolson repeated her instruction to him to turn in his equipment. Holden
then entered the outer office and was about to tell Moore what had happened, when
Wolson said she would tell them, and she called in Moore.
2. Moore
The meeting with Moore was as short as the one with Holden was long.
According to Moore, as soon as the door was closed behind him, Wolson said,
"Go and get your equipment and bring it to the office." Moore, saying "0. K.,"
Corbin, and White would have accounted for the three being called in together, he swore,
"I have no idea whatsoever." As to this he was contradicted earlier by White, who
testified Wolson did question the three about the petition and later by Wolson herself.
Scar's manner was far from disinterested, and it was apparent that the key to what he
remembered or forgot was whether he thought it would be helpful or hurtful to Respondent.
This factor bears on the reliability of his testimony, later considered, in which he
attributed to Holden at the close of the latter's interview the statement, "I resign," on
which Respondent relies to support its contention that Holden's employment was
self-terminated.
B The copy given to Wolson crossed out in pencil but did not obliterate the paragraph to
the effect that there would be a walkout if the demands were not met. In its place, in
pencil, was the statement, "We are determined to remain organized for the welfare and
benefit of the New York traffic inspectors, Group 1, and to bring about a better business
relation between Employees and Employer."
BROWN SURVEY CORPORATION 1249
started for the door. Wolson then asked, "Did you sign?" Moore said he had.
At this point Ostroff said, "Your friend, Mr. Holden, spoke up for you," to which
Moore replied, "Holden didn't speak for me. He spoke for the group." Wolson
then repeated to Moore her instructions to get his equipment and have it in the
office by 5 o'clock. Moore then left.
3. Kay Williams
Kay Williams was then called in. Under subpena served at the behest of the
General Counsel (see footnote 4) she testified with some reluctance. The following
is her account of what was said at the meeting.
On direct examination:
Q. Do you recall the conversation that took place on that occasion?-
A. Yes. It seemed to be about a document that was signed by me.
Q. Did you inform Miss Wolson you had signed the document?-A. Well I
did then because I mean it came up about it. I was being told that I had to
go because I signed the document, or a spokesman had spoken for me. I said
nobody speaks for me, I speak for myself. That was the truth. I hadn't seen
this document. I hadn't even read it. I didn't know what it contained or
anything like that. Therefore I couldn't be part of anything like that. I just
told her. I told the truth.
Q. Did any further conversation take place that you recall?-A. No, other
than Mr. Ostroff asked me, he said, "Are you sure you didn't read it?" I said,
"I certainly didn't." He says, "Why do you sign things when you don't read
it?" I said, "He was badgering me and I signed it to get rid of him." I said
that I signed it and this was the outcome and I was sorry I signed it.
Williams substantially repeated this version on cross-examination:
Q. Did Mr. Ostroff or Miss Wolson tell you on July 8 that you would have
to go because you signed a petition?-A. Well, when I walked into the office,
she said a spokesman-she didn't say because I signed it. She said a spokesman
had spoken for me.
Q. I don't think you understood my question. Did either of them ever say
to you that you are fired, that you are going to go because you signed the
petition, that you would lose your job?-A. No, she didn't say it like that. Can
I put it in my own words?
Q. Yes.-A. She didn't say it like that. She said to have my things there at
five o'clock, because my spokesman had spoken for me and I asked them
"My what had spoken for me?" She said didn't I sign this paper and she
showed it to me and I said I did not because I didn't know anything about it
and I didn't have any parts of it. It was all new to me.
Q. (By Mr. Trommer.) Are you quite sure she said for you to bring your
things in at 5 o'clock? Did she ever say anything like that to you?-A. I
thought that is what she said. [Emphasis supplied.]
At this point Williams was shown a statement she had made and signed
before a field examiner in the Regional Office the previous October. Neither
party saw fit to offer it in evidence, so its contents are not before us. But
having read it, she then gave the following testimony:
Q. (By Mr. Trommer.) Did Miss Wolson say anything to you about
turning in your equipment at the time you met with her on July 8 in the
the office?-A. No it doesn't. No she did not. [Emphasis supplied.]
The chair then inquired whether as a result of having read the statement,
she thought she was "wrong in saying that [Wolson] told you to bring your
equipment in by five o'clock," to which she replied, "Yes, I phrased by words
wrong." However, she confirmed her prior testimony that Wolson told her
"my spokeman had spoken for me," and "asked me did I sign the statement and
I said I had." She then testified:
TRIAL EXAMINER: Are you basing your present testimony on what is in
there or are you basing it now on how you actually recollect the occurrence.
Forgetting that paper for a moment and thinking about the occurrence yourself,
you now say that what you told Mr. DeSio about your being out of a job and
what you told Mr. Trommer about bringing in your equipment-
The WITNESS: I am basing it on what is in that statement because it is
quite evident my memory is kind of hazy.
476321--58-vol. 119-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL. EXAMINER: My understanding of you is a bit hazy, for this reason.
I am wondering why, if it didn't happen, that you should have told Mr. DeSio
that you were told you were out of a job and then told Mr. Trommer you
were out of a job, whereupon you proceeded to plead you didn't know what
you were signing. What made you testify that way? Did you remember
it that way at that time?
The WITNESS: I guess I had been listening to too many testimonies in here.
TRIAL. EXAMINER: That is why you testified as you did?
The WITNESS: It could be. [Emphasis supplied.]
While the recantation of Williams is solely in respect to whether she had
been told by Wolson at the outset of the interview to turn in her equipment,
there will be time enough to consider whether to credit it.
4. The agents as a group
When Wolson and Ostroff were through with Williams, the entire crew was
called in (save, as noted, Lansberry, Holden, and Moore and also Davis, who
had not yet arrived). In substance, Wolson briefed them about their work and
stated that for the remainder of the week at least, they were to meet with her
at a new meeting place to avoid Holden and Moore. Williams testified that Wolson
started the discussion by stating that "the troublemakers were gone," and White,
who at that stage took over as crew leader, testified, "Miss Wolson said. that she
had fired or got rid of Holden and Moore and that that was part of the trouble-
makers and that their work hadn't been too good." 10
5. Davis
Before Wolson finished talking with the crew, Davis arrived. He was told to
wait in the outer office. The crew then filed out." Davis was called in. According
to Davis, Wolson greeted him with, "As a member of Group 1,12 your services
are no longer needed." Davis said he did not understand her, and Wolson replied,
"You know what I'm talking about." When Davis still protested his ignorance,
Wolson told him to bring in his equipment as soon as he could, which Davis
said he would in about 15 or 30 minutes. Ostroff then stated that he did not
recall such an occurrence "in the 50 years with my company."
6. Management's version of the interviews
This is the substance of the interviews as related by the employees. We now
come to the version given by management. As to Holden, the versions given
by Wolson and Ostroff on the one hand are not too far apart from that given
by Holden on the other. Holden is fully corroborated as to the stormy discussion
over the petition, and Holden's recounting his own unhappiness and that of the
men.13 He is also corroborated as to his guess, which touched off Wolson's anger,
that Respondent was receiving $25 a day for the agents' services, and as to Wolson's
countersuggestion that he and his agents form their own company if he thought
there was that kind of money in it. Wolson and Ostroff confirmed Holden's
testimony that he offered to resign if the other signers of the petition would go
unpunished. But they interjected one important fillip: they testified that Holden,
in justifying the proposed rate of $10 a day, said he could not make out with
less, and that unless he got it he resigned. At this point, according to the two,
they snapped up his offer with an acceptance, and so Holden's employment
10 On cross-examination White testified Wolson said that "they had been fired and we
didn't have troublemakers any more."
n As this happened Wolson apparently took a moment or two to ask Wright, who had
been ill, about his health. According to Wright, he told Wolson he had not seen Davis for
several days. The record as a whole, as well as Wright's later testimony, tends to negate
this last.
12 "Group 1" is the designation which the petition gives to the New York agents (supra,
footnote 9).
13 Wolson's version indicated that the scope of Holden's grievances went beyond the
subject matter of the petition, e. g., he did not think management had' properly handled
the shipment of an item of his clothing when he was transferred from Philadelphia to
New York, and he thought, also, that it should have staked him to the beret, dark glasses,
and briefcase Holden would seem to have regarded as the fitting accoutrements of his
calling.
BROWN SURVEY CORPORATION 1251
terminated. While acknowledging that Holden made the "grandstand" play of
offering to resign if the other signers would be let alone, they add that as Holden
opened the door, he said, "I resign." In respect to this last they are corroborated
by Saar but by none of the other agents who, with Saar, were in the outer office
as Holden opened the door and walked out.
As to Moore, Wolson and Ostroff corroborate him insofar as he testified that
Ostroff said that Holden "spoke for you." However, their version of the remainder
of the conversation is that: They told him that Holden "said he wanted ten
dollars a day"; Moore confirmed that this was his own demand; he was then
told he did not merit it, citing as one reason White's difficulty in locating him
on various occasions; Moore then stated "he had to have more money and if
he didn't get more money he was through," whereupon Wolson said, "That is
fine, bring in your supplies."
Wolson's version of the interview with Williams was substantially as Williams
related it, save only for that aspect of it which attributes to Wolson the order
to turn in her equipment. Wolson fully corroborated Williams' testimony that
she asked Williams whether she had signed the petition, that Williams disclaimed
knowledge of its contents, and she was then admonished by Ostroff, "You should
never sign anything you don't read." Wolson added that she told Williams that
Holden and Moore had quit or she may have said they were through. (Williams
had testified she did not remember either way.)
As to the talk with the crew, Wolson did not specifically deny the testimony of
White that she said they were fired or the testimony of White and Williams that she
had referred to them as the "troublemakers." Wolson also testified that during the
meeting White made some reference to Davis being lost and that she remarked he
would be late to his own funeral.
In regard to the meeting with Davis, Wolson testified that she told Davis that she
was "fed up" with his prior absences without notification, specifically calling atten-
tion to his absence from duty 3 successive days, from June 16 to 18, without re-
porting it in advance, his missing an agents' meeting on June 19, his coming late to
a meeting on June 27, and his being late now. According to Wolson, Davis pro-
tested he liked the work and wanted another chance, to which Wolson replied there
was no other chance and that he was to turn in his equipment.
D. The second interviews with Holden, Moore, and Davis later in the afternoon of
July 8 and events surrounding them
Thus far Respondent's version varies from that of Holden and Moore in that
instead of being fired, as the latter testified, they, as Wolson and Ostroff claim,
offered to resign if not given $10 a day, and that management accepted their resig-
nations, and, in respect to Davis, that instead of being told summarily to turn in
his equipment "as a member of Group 1" he was told, as Wolson claims, that his
coming late to the July 8 meeting was a climax to his past inadequacies, which
branded him as unsuited for the work. For further illumination, we turn to what
occurred when Holden, Moore, and Davis came back to the office a second time later
the same afternoon.
1. Holden and Moore
At the end of their first interviews on July 8, Holden and Moore met outside the
building. Moore, feeling it would take too long for him to go back home to Brook-
lyn for his equipment, decided he would hand over his equipment the next day to
Sam White, who lived not far from him.14 He then accompanied Holden to his
hotel and returned to the office with Holden, when the latter brought in his equip-
ment. They met Wolson alone in the outer office. Holden asked why he was fired,
and Wolson replied he had quit, which Holden denied, saying that his offer of
resignation was conditioned only on the other signers of the petition not being
punished. Wolson then offered to take him back at the beginner's rate of $8.50 a
day, whereupon Holden asked why he was worth $9.25 a day before and only
$8.50 a day now. Ostroff, who had gone out for some coffee after Davis' departure,
walked in at that point. According to Holden and Moore, Holden then said to
Ostroff that having been fired he would draw unemployment compensation, to which
Wolson replied, "I wish you would," but to which Ostroff replied that would be an
expense to the Company or the State; according to Wolson and Ostroff, Holden,
with a wide grin, said, "Why don't you be a good sport and fire us, so that we can
i* Wolson approved of that arrangement when Moore told her about it on returning to
the office with Holden.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get unemployment compensation," to which Ostroff, stating it would be a fraud
on the Government, responded he would not be a party to such an arrangement.
2. Davis
While Holden and Moore were in the outer office on this second visit, Wolson
answered a telephone call, and they heard her end of the conversation. Wolson
stated to the party at the other end, according to Moore, "He signed and he knew
what he was doing . . . tell him to turn his equipment over to you and to bring it
in." The record shows that the person at the other end of the wire was John Wright,
who was interceding for Davis. We recite the circumstances.
When Davis left the building following his discharge, he saw Saar and Wright.
Davis told them he had been fired, to which, according to Davis, Wright replied,
"I believe Holden and Moore got fired also," and said, "You should have done like
Kay Williams said, that you didn't know what you were signing." Wright and
Davis then boarded a bus together and again Wright asked why Davis had not
claimed ignorance of what he had signed. Davis answered he "didn't understand
how it all happened so fast." Wright then offered to call Wolson to try to persuade
her to take Davis back, and Davis meanwhile went for his equipment.
According to Wright, he called Wolson late that afternoon and told Wolson Davis
"was sorry for his wrongdoing, or whatever he had done wrong, and he was willing
to work." Wright, although a rank-and-file agent, supervised Davis' work at Lans-
berry's request. (See supra, footnote 2.) On direct examination, Wright testified
that in this conversation Wolson asked him about the quality of Davis' work and
that he, Wright, "didn't give any good credit for him," because he frequently had
trouble locating Davis. Wolson corroborated this last during her testimony. On
the other hand, Wright, on cross-examination, rather demolished the likelihood that.
this last occurred. He testified:
Q. Wasn't it a fact that you told him to apologize to Miss Wolson for his
wrong doings, meaning for having signed the list of demands?-A. Yes I did
say that, but I was meaning this. I was meaning this. Plus his absence and
if it was because of signing the list.
And Wright's second version of the conversation with Wolson, given on cross-
examation, is as follows:
Q. Isn't it a fact that you told her Davis explained to you he was sorry he:
signed the list of demands?-A. I did.
Q. What did Miss Wolson say in response to that statement?-A. Miss Wol-
son said she would see Davis.
Q. She made no statement to you concerning the signing of the demands?-
A. No.
It is found that the expression "he signed and he knew what he was doing," uttered
by Wolson over the telephone in Holden's and Moore's presence, was in response to
Wright's statement over the telephone that Davis was sorry for his "wrongdoing."
Davis, the evening of July 8, finally turned up at the office with his equipment.
some time after Moore and Holden were gone. Present were Wolson and Ostroff.
Davis, as he put it, stated, "Miss Wolson, I would like to explain one thing to you,"'
and Wolson cut him off with "There is no need to explain. You knew all about it.
You knew what you were signing," and that as he was leaving the room, Ostroff said,.
"Don't forget that you three fellows resigned."
Wolson, at the hearing, testified that at this meeting all she talked about with
Davis was his work record and his unreliable attendance. Ostroff testified that at
this second visit Davis indeed acknowledged "he has done wrong," but the refer-
ence was to his slack performance in the past and his desire to come back, to which,
according to Ostroff, Wolson replied they had been lenient with him and now "You're.
through, you can't come back." Ostroff on July 26, 1956, had written the
Board's Regional Office that all three complainants "resigned." At the hearing, he:
explained that such was still his impression on July 26, and that he only learned
later from Wolson that she had discharged Davis, his testimony being that he was.
not in the office during Wolson's first talk with Davis, which the record rather negates,is
and that the second talk with Davis, as he described it, was, to his way of thinking,,
as consistent with a resignation as a discharge.
25 See footnote 17, infra.
BROWN SURVEY CORPORATION 1253
E. Resolution of conflicts and concluding findings
The foregoing does not exhaust all the evidence on the matter. Deferred for
treatment immediately after a preliminary analysis of the evidence thus far is a
statement signed by Wolson in October 1956. Its contents and her manner of ex-
plaining it simplify the resolution of the credibility issues.
But I would say that up to this point and apart from that statement, the sense
,of the record would add up to the following: Such patience as Wolson had With
the Complainants was worn pretty thin with Lansberry's revelation on Saturday
morning concerning the occurrences the afternoon of Friday, July 6. Holden's
reference to himself in the wire as "Group Representative" hardly endeared him to
her, and she brought it up at the outset of her talk with him on Sunday. Whether
or not she had made up her mind to get rid of Holden at that moment, it is hardly
debatable that she came to that decision in the course of the interview. His
,exaggerated notion of what Respondent was being paid by the client for the agent's
work infuriated her, she was "burned up" about it, as she put it, and the logic of the
-situation would indicate that it was at this point that she told Holden that if that
was what he thought Respondent was making he take himself and his "agents" out and
try to get it. This, in effect, was a notification that he and the other signers of the
petition, whom he purported to represent, were discharged. Otherwise, there would
be no point to his offer, deprecated by Wolson as a "grandstand speech," to take full
responsibility for the petition and to resign if necessary to save the jobs of the others.
Undoubtedly, Holden espoused the $10 rate as being one of minimum adequacy, but
that, as Wolson claims, Holden resigned when told he could not have it is rather
difficult to square with the probabilities. A fair synthesis of Wolson's testimony
and Holden's would be that Holden's espousal of the $10 minimum preceded Wolson's
insistent questioning of Holden concerning what he thought Respondent was re-
ceiving from the client. That, at least, would be the rational relation of the two sub-
jects, taken in connection with Holden's immediately offering to take full responsi-
bility for the petition if it would serve to spare the others. There would seem to be
little room for question but that the fair sense of what Wolson was stating to Holden
was that he and the three fellow signers of the petition were being discharged. That
this is so would appear from the summary announcement made to Moore and Wil-
liams that their "spokesman" had spoken for them. The reference to the "spokes-
man" would be meaningless unless to convey that their "spokesman" had disposed
of their jobs as well as his. I would therefore credit Moore's testimony that he was
summarily told to turn in his equipment, and Williams' testimony, despite her weak
recantation of it later, that she was told the same. The sense of the talk of Wolson
and Ostroff with Williams, even to the extent admitted by them, is that this girl was
not using all her resources of persuasion for the fun of doing so. She was manifestly
playing for high stakes-the retention of her job. And she succeeded in retaining it
only when she fully persuaded Respondent that she had no hand in the collective
action of which the petition was the embodiment.
That Holden and Moore were discharged was the fair impression the crew
acquired from Wolson's talk to them after they were gone. Her statement that Re-
spondent was rid of the "troublemakers" would so imply, and, indeed, White, a
member of the management hierarchy, specifically testified that Wolson said she had
fired them. That such was the crew's impression, howsoever Wolson phrased her
reference to Holden and Moore, is further confirmed by Wright's statement to Davis
on meeting him outside the building that he thought Holden and Moore too had been
fired. There would hardly be a question in anyone's mind that Respondent's action
centered around the petition, and the "wrongdoing" to which Wright alluded could
only pertain to that, as his testimony, taken in connection with Wolson's response to
him over the telephone, would indicate.
This brings us to Davis. An attempt has been made to pin Davis' admitted dis-
-charge to his prior absences climaxed by his lateness at the meeting on July 8. Such
derelictions as were relied on all occurred before Wolson issued her memorandum
of June 28. Yet on that very day she consented to review his request for a raise on
July 15. Manifestly, the lateness at the meeting of July 8 could hardly have been a
factor in his discharge. The absences and latenesses of which Respondent had com-
plained in the past were unaccounted ones. Here, Respondent heard from Davis at
the outset of the meeting.is It is hardly likely that Wolson would not, as a woman
is The only one who disputed that White, on being called in, communicated to Wolson
the reason for Davis' delay in arriving on July 8 was Ostroff. Here he is contradicted by
Wolson. He is also contradicted by White, who emphatically testified that he relayed the
contents of Davis' message to her in the course of the meeting.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of large business experience and perspective, have been satisfied with the explanation
that Davis was lost in the meshes of the complicated subway system of New York, to
which Davis was still a comparative stranger, were she not seething over the petition.
It is manifest that the differentiation of Davis' case from that of Holden and
Moore was an afterthought, and that it came after Respondent had evolved the
original theory that all the signers of the petition had "resigned" in consequence
of what transpired at the interview with Holden, their "spokesman." This "resigna-
tion" theory was apparently a gimmick contributed by Ostroff, as would appear from
his statement, at the end of the second interview with Davis, "Don't forget that
you three fellows resigned." Even as late as July 26, according to Ostroff's own
admission, Respondent blanketed all three Complainants in the "resignation"
theory. OstrQff's explanation that this was because he did not yet, on July 25,
know that Respondent considered that it had discharged Davis for incompetence
persuasively indicates that Respondent up to then had not taken the position that
it had done so. It surpasses belief that Ostroff would be ignorant of such a position
on July 26, if it existed, regardless of whether he was out of the office during Wolson's
first interview with Davis on July 8, as Ostroff claimed he was, or was present, as
the record fairly shows he was.17
The fair inference, then, is that it was some time after July 26 that Respondent
hit upon its present position that, as opposed to Holden and Moore, who assertedly
resigned, Davis was discharged because his late arrival of July 8 climaxed a series
of delinquencies, which persuaded Respondent he was unsuited for the job. High-
lighting the belated genesis of this position is Wright's testimony that Wolson did not
tell him about the reasons now asserted for the discharge of Davis until immediately
preceding the hearing-an interval of about 10 months after the event.
Fully exposing its character as an afterthought and indicating that it was not
Davis' work performance on which Respondent was relying on July 8, is Wolson
herself. In October 1956 she gave an affidavit to a field examiner in the Board's
Regional Office in which she stated the following concerning Davis' second visit
on July 8:
When Davis came back, I seem to recall that it was about 6:30 p. m. and he
turned in his supplies. Davis explained to me that he had discussed the situa-
tion with Wright and he had not read the demands, and after his discussion with
Wright, he thought they were silly. When Davis said that the demands were
silly, I explained to him that I had just gotten through speaking to Holden
and that was not the story Holden had given me. Davis called Holden a liar.
No good purpose would be served in recounting in detail the witness' performance,
spread over many pages of testimony, in an effort to explain the statement away.
It is enough to note that after a prolonged sequence of unresponsive answers, she
finally admitted that she recalled that Davis spoke to her in the manner she ascribed
to him in the affidavit. However, when she was specifically asked whether she replied
to Davis in the manner which she attributed to herself in that document, after a
recess declared prior to reply in order to afford the witness an opportunity to compose
herself, she drew a distinction between what was in her statement and what she
in fact remembered. In abrupt turnabout from what she admitted immediately before
the recess, she insisted that her statement did not reflect the actual event. In repudi-
ating its contents, it was difficult to tell whether she was impeaching her recollection in
October, on the basis of which she made the statement, or challenging the document
as a faithful transcription of what she told the field examiner. It rather appeared
at first that she was merely doing the former, for she insisted that she did not have
17 Davis testified to Ostroff's presence during his first interview. He so testified before
there was any indication that this would be a matter in controversy. Also, his testimony
has greater support in probability. It will be recalled that Ostroff returned to the office
during Holden's and Moore's second visit, after going out to eat. The time for such
departure would expectably be during the interval after Davis left, when all interviews
were concluded, and before Holden's and Moore's return. It is rather improbable that in
this critical situation, Ostroff would have abruptly absented himself before the conclusion
of all of the interviews. Had he done so he would presumably have met members of the
remainder of the staff, who were leaving the building when Davis was called in. Wolson,
in describing the setting for the second visit of Holden and Moore, which she placed at
about 5: 45, prefaced it with the statement, "Iz had gone out to eat." The interview
with Davis began, as she put it, "between 4 and 4: 15." It is unlikely that Ostroff would,
in the situation here considered, have for that purpose absented himself for nearly 2 hours,
while Wolson was still in the office. The circumstances, taken together, point persuasively
to Ostroff's being present at the first interview with Davis, and the latter's testimony to
that effect accordingly warrants being credited.
BROWN SURVEY CORPORATION 1255
her notes with her when she made the statement while admitting that she made it.
However, she also testified that despite the avowal in the document as signed by
her that she had read it and that she vouched for its accuracy, 18 and despite her
initialing every page of it, she had not in fact read it. Neither prong of this ambiv-
alent explanation seems to hold up. Received over objection of counsel for the
General Counsel were Wolson's handwritten notes of the July 8 events, assertedly
made by her shortly afterwards, and to the absence of which she largely attributes
the statement she gave the field examiner. They disclose nothing which alters
her statement to the field examiner.19 As for the assertion that she had not read
the statement before she signed it, it comes rather surprisingly from the chief execu-
tive of a firm specializing in advising other companies concerning sound business
practices, who, according to her own testimony, had, along with her husband, berated
an employee for signing a paper without reading it.
The witness manifestly made no showing which would warrant giving to her
admission of October 1956 other than its full effect. While, for the reasons already
discussed, the end result would have been the same on the basis of the probabilities,
the consequence of the statement, taken in connection with the unedifying manner
in which she sought to explain it away and the infirmities in Ostroff's testimony in
the respects already indicated, is to dispel such penumbras of doubt as might other-
wise have lingered. Accordingly, the testimony of Holden that he was told to take
his "agents" and turn in his equipment is credited, and the version of Wolson and
Ostroff that Holden resigned when refused •$10 a day is not 20 The testimony of
Moore that he was summarily told Holden had "spoken" for him and that he should
turn in his equipment is credited, and the testimony of Wolson and Ostroff that
Moore said that unless he received $10 a day he was through is not . Also credited
is Williams' testimony that upon being told that her "spokesman" had spoken for her,
she was ordered to turn in her equipment, and that the order was countermanded
only when she persuaded Wolson and Ostroff that she had no idea of what she had
signed. Credited also is the testimony of Davis that in his first interview he was
summarily told that as a "member of Group 1" he was to turn in his equipment,
and not credited is the testimony that he was told at the time that he was being
discharged because of his poor performance. Likewise credited is the testimony
that when Wright telephoned to intercede for Davis, Wolson stated, "He signed and
he knew what he was doing"; and credited also is Wolson's version of her second
conversation with Davis as given in her affidavit, to the effect that Davis then sought
to disclaim knowledge of the contents of the petition and branded them as "silly,"
and that Wolson rejected his disclaimer by stating that it did not square with what
Holden had told her. Not credited also is the testimony of Wolson and Ostroff
that at that time Wolson referred to Davis' past performance as an employee, or that
this last was a factor in the decision to discharge Davis.21
What this comes down to, in effect, is that Holden, Moore, and Davis were dis-
charged for making a concerted demand. This, of course, is an act of interference,
restraint, and coercion in violation of Section 8 (a) (1). Gullett Gin Company,
Inc. v. N. L. R. B., 179 F. 2d 499 (C. A. 5), reversed as to a matter not here
involved, 340 U. S. 361. Whether it was also an act of discouragement of a labor
organization in violation of Section 8 (a) (3) depends upon whether the Employee
Committee, so called, was a labor organization. The matter is not crucial in view
of the finding that what occurred here was in any event a violation of Section
8 (a) (1). Gullett Gin Company, Inc. v. N. L. R. B., supra. But it should be
noted that the term "labor organization" as used in the Act has a broad conno-
tation, and its meaning is not limited to a labor union in the conventional sense.
Northeastern Engineering, Inc., 112 NLRB 743, 751-754. Any concert of em-
ployees for the purpose of taking up working conditions collectively with the
11 The final sentence reads :
I have read this statement consisting of 13 typewritten pages and it is accurate to
the best of my knowledge and belief.
19 All they contain concerning Davis' second interview is :
6: 30-6 : 45 Davis called, at his house, bringing in supplies. Back at 7:15. Asked
for chance, same rate, no go, supplies left.
20 The same applies to their testimony corroborated only by the discredited Saar (supra,
footnote 8) that Holden, on opening the door at the end of his first interview, said,
"I resign."
21 In this connection, weight is also given to Crew Leader Lansberry's testimony that
he did not consider that the performance of any of the three Complainants up to July 8
was such as to merit discharge.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer satisfies the definition . Ibid. Here Holden and the group who signed
the petition , as the latter document shows, were seeking to treat with the Employer
concerning working conditions on a collective basis. As such the committee con-
stituted a labor organization , and the discharge of the Complainants for making
the group demand embodied in the petition discouraged membership in the com-
mittee, and , in consequence , was a violation of Section 8 (a) (3). See Rugcrofters
of Puerto Rico, Inc. , 107 NLRB 256, 262, enfd . 213 F. 2d 537 (C. A. 1); Smith
Victory Corporation , 90 NLRB 2089 , enfd. 190 F. 2d 56 (C. A. 2); N. L. R. B. v.
Kennametal , Inc., 182 F. 2d 817, 818 (C. A. 3).
It is further found that Wolson 's inquiring of the various employees , including
Williams , concerning whether they had signed the petition was an act of interro-
gation, which , in the circumstances , was a violation of Section 8 (a) (1); and so
also was the threat of discharge of Williams for having signed it.
A word should here be said about the significance of Wolson's offer to Holden
to return at a beginner 's rate . It rather fortifies the conclusion , first, that Respondent
knew Holden had no intention of resigning and, second , that he was in fact being
penalized for purporting to act as "group representative ." This last was itself a
constructive discharge , since it placed a discriminatory condition upon Holden's
retention . Russell Manufacturing Co., 82 NLRB 1081 ; Macon Textiles , Inc., 80
NLRB 1525.22 Holden may well have suggested on that occasion that he and
Moore be discharged so that they could collect unemployment compensation. But
this occurred after the offer to demote them to a trainee status. Holden , in refusing
for himself and Moore to be retained on that basis , was in no position to appraise
his legal status, and his suggestion , fairly interpreted , was simply intended to remove
any legal impediment which the proposed demotion , though discriminatory, might
present to their eligibility to receive unemployment compensation as terminated
employees . It has no significance , as I appraise the record , as an admission that
he and Moore did not regard themselves as having been discharged ; the contrary
is manifest from Holden 's inquiry at the outset of the second interview as to the
reason for the discharge.
N. THE REMEDY
The standard remedial measures are here called for: Respondent should cease
and desist from the unfair labor practice committed . Affirmatively , it should offer
Isaac B. Holden, William H. Moore , and James H. Davis , Jr., immediate and full
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority and other rights and privileges . 23 They should also be made whole
for any losses in pay sustained by them in consequence of the discrimination against
them, in the standard manner within the principles of F. W. Woolworth Co., 90
NLRB 289, and Crossett Lumber Co ., 8 NLRB 440.
Since the unfair labor practices here found are a basic attack upon the employees'
right to take concerted action in regard to their working conditions , they are
pervasive enough to warrant , as an appropriate preventive measure, a broad
injunctilon against invasion of any of the employees ' rights under the Act. See
N. L. R. B . v. Cheney California Lumber Company , 327 U . S. 385.
Normally, an employer is required to post at its place of business the standard
notices conveying to the employees the requisite assurance that their right to self-
organization and to engage in concerted activities , as guaranteed them under the
Act, will be respected. Respondent 's operations are centrally handled out of Phila-
delphia and , as the record shows , there is interchange of employees among the
various offices . The inhibiting effects of the conduct here found upon the exercise
22 Wolson 's explanation for the proposed demotion , as given at the hearing, was that
Holden and Moore had to be "retrained " in Philadelphia , in view of their attitude. But
all of this was covered in the interview of June 27 , which culminated in Holden's and
Moore's being given a raise effective July 1. The explanation is further at war with her
admission that Holden and Moore were fully competent to do the work. The only new
factor since June 27 was the concerted action represented by the petition . The demotion
to a trainee status was thus the direct outcome of the action in question.
2A note of caution to the Complainants may here be in order . Nothing in this report
is intended to endorse their performance preceding June 27 , when Respondent cautioned
all its employees they must conform with its requirements . This recommendation gives
Complainants no exemption from the necessity , which they share with the rest of the
employees , of performing a job which meets Respondent 's standards . Like the rest of the
employees , they are protected under the Act against discriminatory treatment for exercis-
ing their statutory right of engaging in concerted activity . They are not immune from the
right of Respondent to demand of all of its employees satisfactory performance on the job.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY 1257
by the employees of their rights under the Act would thus not be confined to the
New York operation but would normally pervade the entire working force of
Respondent . Effectuation of the purposes of the Act would thus make it appropriate
that all of Respondent's employees be so notified.
It would appear that the posting of notices is not practicable in this case. The
record shows that Respondent does not have an office of its own in New York City,
but is merely permitted the use of the premises of a New York attorney as a meeting
place for its agents. The lessor might understandably object to the posting of
such a notice in his law office . Similar impediments to posting of notices are pre-
sumably present in the other cities outside of Philadelphia. Respondent's normal
mode of communicating with employees would appear to be the distribution of a
memorandum, such as was issued on June 27. The posting of a notice will thus be
dispensed with, and it will be recommended that Respondent , instead, mail copies
of the requisite notice to its employees individually, including also the Complainants
Isaac B. Holden, William H. Moore, and James H. Davis, Jr.
Upon the findings above and the whole record there are hereby made the
following:
CONCLUSIONS OF LAW
1. The Employee Committee is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of Isaac B. Holden, William
H. Moore, and James H. Davis, Jr., on July 8, 1956, Respondent discouraged
membership in the Employee Committee, thereby engaging in an unfair labor
practice within the meaning of Section 8 (a) (3) of the Act.
3. By discharging Holden, Moore, and Davis because they had participated in a
collective or concerted demand in respect to working terms; by threatening Williams
with discharge for having thus participated; and by interrogating Williams and
other employees as to whether they had participated in such demand or signed the
petition embodying the same, Respondent interfered with, restrained, and coerced
its employees in the exercise of their rights as guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The said unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
The Great Atlantic and Pacific Tea Company and Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-
CIO,* Petitioner
The Great Atlantic and Pacific Tea Company and Retail Clerks
International Association, AFL-CIO, Petitioner . Cases Nos.
11-RC-1050 and 11-RC-1051. January 6, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, the parties stipulated to a record which
was submitted to the Board in lieu of a hearing. The stipulation is
hereby accepted.
*By order dated February 11, 1958, the Board severed Cases Nos. 11-RC-1050 and
11-RC-1051, and granted the request of the Petitioner to withdraw its petition for certi-
fication of representatives in Case No. 11-RC-1050, with prejudice to its filing a new
petition for a period of 6 months from the date of this order, unless good cause is shown
why the Board should entertain a new petition filed prior to the expiration of such period.
119 NLRB No. 149.