Cadre Industries Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1959

124 N.L.R.B. 278 (N.L.R.B. 1959)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cadre Industries Corporation and International Association of
Machinists, District Lodge No. 93, AFL-CIO. Case No. 20-CA-
1434. July 31, 1959
DECISION AND ORDER
On April 9, 1959, Trial Examiner William E. Spencer 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 Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of these allegations. There-
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report with supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,2 conclusions, and recommen-
dations of the Trial Examiner, with the additions and modifications
indicated below.
1. The Respondent has excepted to unfair labor practice findings
of the Trial Examiner, which we have adopted, on the ground that he
erred in his credibility resolutions. However, it is well established
that the Board will not overrule a Trial Examiner's resolution as to
credibility unless a clear preponderance of all the relevant evidence
convinces the Board that such resolution was incorrect.' No such
conclusion is warranted in this case. We have, therefore, adopted
the Trial Examiner's credibility findings.
2. The Trial Examiner found, and we agree, that the Respondent
engaged in independent violations of Section 8 (a) (1) of the Act. In
so finding, we rely on the following: Plant Superintendent Susco's
telephone conversation with employee Sferrazzo on June 18, 1958, in
which Susco, after telling Sferrazzo that he had heard rumors of
union organization activity, questioned Sferrazzo as to what was
going on, told Sferrazzo that, if the employees organized, they would
i 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 Bean and Jenkins].
2 In connection with our adoption of the Trial Examiner's finding that the Advisory
Council was a labor organization within the meaning of the Act, see recent opinion of the
Supreme Court in N.L.R.B. v. Cabot Carbon Company, 360 U.S. 203.
3Standard Dry Wall Products, Inc., 9 1 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3) ;
Baltimore Steam Packet Company , 120 NLRB 1521, 1524.
124 NLRB No. 33.
CADRE INDUSTRIES CORPORATION 279
really have to work for promotions and that Respondent could always
fill important jobs with men from its east coast operations, and men-
tioned to Sferrazzo that he knew the identity of those engaged in the
organizational effort; Susco's conversations with employees Scott and
Fontaine on June 19, during which he told Scott that he was aware
of the leadership of the organizational drive and of the place and
time of the organizational meeting; Susco's conversation with em-
ployee Hearn on June 19, during which he asked Hearn if he knew
of the activity that was going on, warned him that the talk could be
dangerous, and stated that the Respondent was expanding and that
there would be many openings for promotions but that the plant could
close and move East "due to this activity"; and Susco's harassment of
Sferrazzo during December 1958 and January 1959 for the purpose of
obtaining the latter's affidavit to the Board in connection with this
case .4
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We are also convinced that the unfair labor practices committed by
the Respondent are potentially related to other unfair labor practices
proscribed by the Act, and that the danger of their commission in the
future is to be anticipated from the Respondent's conduct in the past.
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, we shall order the Respondent to cease and desist
from in any manner infringing upon the rights of employees guaran-
teed by the Act.
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, Cadre Industries
Corporation, Los Gatos, California, its officers, agents, successors, and
assigns, shall :
4 Although Susco's interrogation of employees was not alleged by the complaint to
be a violation of Section 8(a) (1), as were his threats and warnings , the matter was fully
litigated at the hearing and constitutes a proper basis for an unfair labor practice find-
ing in this case, See Monroe Feed Store, 112 .NLRB 1336.
The issue of harassment of Sferrazzo was raised by an amendment to the complaint at
the hearing . Respondent 's conduct in this connection is manifestly related to that alleged
as unfair labor practices in the charge , such as its interrogation of and threats to em-
ployees , and the fact that it occurred subsequent to the filing of the charges does not,
as was recently made clear by the Supreme Court, preclude us from dealing with it in
the circumstances of this case . N.L.R.73. V. Pant Milling Company, 360 U.S. 301.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogating its employees concerning their union activities
in a manner constituting interference, restraint, or coercion and
threatening and warning them of loss or curtailment of job promotion,
and curtailment or cessation of operations at the Los Gatos plant, in
the event they become organized.
(b) Interrogating, intimidating, and harassing its employees with
respect to affidavits or statements furnished to agents of the Board.
(c) Forming, dominating, or contributing financial or other sup-
port to, the Advisory Council or any other labor organization.
(d) Recognizing the Advisory Council, or any successor thereto,
as the representative of any of its employees for the purpose of dealing
with Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Association
of Machinists, District Lodge No. 93, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, the Advisory Council, or any successor thereto, as the
representative of any of its employees for the purpose of dealing with
Respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
(b) Post at its plant in Los Gatos, California, copies of the notice
attached hereto marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, San
Francisco, California, shall, after being duly signed by its authorized
representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable measures shall be
5In 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."
CADRE INDUSTRIES CORPORATION 281
taken by the Respondent to insure that such notice is not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Twentieth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate any of our employees with respect to
their union affiliation and activities in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
WE WILL NOT threaten or warn any of our employees that affilia-
tion with International Association of Machinists, District Lodge
No. 93, AFL-CIO, or any other labor organization, will result in
loss of employment or of opportunities for promotion.
WE WILL NOT interrogate any of our employees with respect to
statements or affidavits given to Board agents, or demand the pro-
duction and submission of such statements or affidavits, or engage
in intimidation and harassment with respect to the production and
submission of such statements and affidavits.
WE WILL NOT interfere with, dominate, or contribute support
to, the Advisory Council or any other labor organization of our
employees.
WE hereby disestablish the Advisory Council as the representa-
tive of any of our employees for the purpose of dealing With us
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work, and WE WILL NOT recognize
the Advisory Council or any successor thereto for any of the fore-
going purposes.
WE WILL NOT in any other manner interfere with, restrain, or
coerce, our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join International Asso-
ciation of Machinists, District Lodge No. 93, AFL-CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act.
CADRE INDUSTRIES 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
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in San Jose, California, on January 14, 15, 16, 19, and 20, 1959, on
complaint of the General Counsel of the National Labor Relations Board, herein-
after called the Board, and answer of the Respondent, Cadre Industries Corporation.
The issues litigated were whether the Respondent violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, 61 Stat. 136, hereinafter called the
Act. The parties waived oral argument and the Respondent filed a brief.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, is a multistate enterprise with its principal
office located at Endwell, New York. At all times material herein it has been
engaged in the manufacture of electronic cable assemblies at its plant located at
Los Gatos, California, the only plant involved in these proceedings. During the
fiscal year ending June 30, 1958, it sold products valued in excess of $100,000 to
International Business Machines, hereinafter called IBM, which company is engaged
in commerce and in operations affecting commerce within the meaning of Section
2(6) and (7) of the Act. Respondent's Los Gatos plant is part of its multistate
enterprise, with total sales of the entire enterprise shipped directly outside the State
of origin during the said fiscal year, in excess of $250,000.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 93, AFL-CIO, here-
inafter called the Union, is a labor organization within the meaning of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Incidents and issues
In March 1957, the Respondent opened a new plant in Los Gatos, California. At
the Los Gatos plant Fred J. Du Bois, Respondent's vice president, was general
manager; Robert Randall, controller and administrative assistant to Du Bois; Riley
K. Lane, personnel director; Sam Susco, plant superintendent; Mike Quartararo,
foreman. Most of the statements and conduct alleged to have violated the Act
issued from, or directly involved, Susco. Robert Bruce Wolfe, an employee alleged
to have been unlawfully discharged on or about June 20, 1958, was employed by
Cadre in April 1957 and assigned Clock No. 3, indicating that he was the third
person hired.
There was very little union activity among Cadre employees prior to June 1958.
In March 1957, before the plant was in operation, Leland Nelson, the Union's busi-
ness representative, called on Du Bois but presumably nothing came of this meeting.
There appears to have been some discussion with respect to organizing between
Wolfe, Wayne Johnson, and perhaps a few other employees, in May 1958, and
Nelson testified that he talked to Wolfe and Johnson on two or three occasions
prior to June 1958. However, the first concrete steps toward organization occurred
on June 17, when Johnson requested Nelson to make contact with Wolfe. That
same evening Nelson saw Wolfe at the latter's home. Wolfe said some of the
CADRE INDUSTRIES CORPORATION 283
employees were interested in organizing and asked for Nelson's advice as to pro-
cedure. Nelson replied that it was advisable to have a small group of employees
meet and discuss the situation. Nelson and Wolfe then agreed that the latter would
arrange a meeting for some five employees and advise Nelson of the time and place.
On Wednesday evening, June 18, Wolfe called Nelson and told him that there
had been a meeting arranged for at the home of employee Fred H. Sferrazzo.
At the Cadre plant, on June 18, there had been a discussion of the proposed
meeting among a group of employees including Wolfe, Johnson, Sferrazzo, Kenneth
Sundt, and Richard R. Scott, the five who were to attend the meeting. Also par-
ticipating in the discussion relative to organization but not invited to attend the
meeting were employees Harold James Hearn, Joel Fontaine, Beckhardt, and others.
On the evening of June 18, Plant Superintendent Susco had a telephone conver-
sation with Sferrazzo.1 According to Susco, Sferrazzo had left word with Foreman
Quartararo that Susco was to call him, Sferrazzo. According to Sferrazzo, the call
originated with Susco. Sferrazzo testified that Susco told him in his telephone con-
versation that he had heard "rumors" of organizational activities and asked Sferrazzo,
in effect, what was going on. Sferrazzo confirmed that the employees were engaged
in organizing. Susco warned him against becoming involved in obtaining a mailing
list of employees for organizational purposes; and further observed that the IBM, a
principal purchaser of Cadre products, would not do business with Cadre in the
event the latter became organized; that if the employees organized, "fine and dandy,"
but as far as promotion was concerned they would really have to work for it and
Cadre could always bring men from its east coast operations to fill important jobs.
Further according to Sferrazzo, Susco said he knew the identity of the employees
engaged in the organizational effort, and Wolfe's name was mentioned.
Susco admitted having a telephone conversation with Sferrazzo on the evening
of June 18, and testified that while he had previously heard general talk about unions
among the employees, it was during this conversation that he first learned that
actual organizational steps had been taken. He admitted that an organizational
meeting was mentioned by Sferrazzo during the conversation, but denied that
Wolfe's name was mentioned. According to him, Sferrazzo said the employees were
ready to organize and wanted a payroll list for organizational purposes. Sundt's
name was mentioned in this connection. Susco told Sferrazzo that Sundt could not
obtain such a list and advised him not to become involved in obtaining one.
On June 19, a substantial number of employees were called into Susco's office and
advised that they had received wage increases. According to the Respondent, these
increases were granted according to plan and normal practice and were decided
on prior to June 19. The complaint alleges that they were granted for the purpose
of discouraging union activities.
Wolfe was absent from work on June 19, and on June 20, shortly after he reported
for work, he was called into Susco's office and discharged. It is the Respondent's
position that he was discharged for irregularity in attendance and poor work; the
General Counsel contends the discharge was because of Wolfe' union activities.
Wolfe's discharge, whatever its motivation, appears to have put an end to
organizational activity. The meeting scheduled to occur at Sferrazzo's house on
the evening of June 20 was not held and following Wolfe's discharge, as testified to
by employee Johnson, with respect to organization "everybody sort of dwindled
away."
On June 23, Lane posted a notice on the plant bulletin board advising Cadre
employees of the formation of an Advisory Council. The formation, organization,
and functioning of the Advisory Council were directed and controlled by the
Respondent. Its first meeting was held on September 4. A second meeting occurred
on October 13. On November 19, Respondent announced to Cadre employees
through its plant loudspeaker system that the Advisory Council was terminated.
There is no evidence that it survived, in any form, this announcement.. It is alleged that the Advisory Council was a company-dominated labor organi-
zation; the Respondent asserts that it was not a labor organization and, in any
event, that no remedial order is required inasmuch as it has been disestablished.
In the Board's investigation of charges against Cadre, Sferrazzo, among others,
was interviewed by a Board agent and gave an affidavit. He was subpenaed to
testify, and did testify, in this proceeding. The General Counsel contends that
Sferrazzo was submitted to harassment and intimidation at the hands of Susco in
i Sferrazzo placed this conversation as occurring on the evening of June 19, but in this
he was mistaken. 'Susco recalled it as having occurred on June 18, and on June 19
Sferrazzo mentioned the telephone conversation to several employees at the Cadre plant,
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter's efforts to obtain a copy of the aforesaid affidavit and insistence on seeing
the subpena.
Thus we have before us the resolution of these issues: (1) Alleged restraint and
coercion through statements of Plant Superintendent Susco; (2) the alleged dis-
criminatory discharge of Wolfe; (3) the June 19 wage increases alleged to have
been granted for purposes of discouraging organizational activities; (4) an alleged
company-dominated union; and (5) the matter of Sferrazzo's affidavit and subpena.
B. Facts and conclusions
1. 8 (a)( I) statements
Susco's telephone conversation with Sferrazzo on the evening of June 18 has
been given in detail above. I accept, substantially, Sferrazzo's version of this con-
versation. I have no doubt that it originated with Susco. He testified that
Sferrazzo had left word with Foreman Quartararo for Susco to call him, but no
plausible reason is afforded for Sferrazzo to have solicited the call and Quartararo,
who, had Susco been testifying truthfully, might have corroborated him, was not
called to testify. I have given full consideration to the fact that shortly before
his employment by the Respondent Sferrazzo was convicted and given a suspended
sentence for embezzlement, and was and is now on probation; and to Sferrazzo's
admission that he had been convicted of a crime involving moral turpitude. Did
Sferrazzo's testimony stand alone, no matter how plausible, it might not command
full credence, but there are circumstances and testimony tending to corroborate it.
Employee Scott testified that he called Sferrazzo at the latter's house on the
evening of June 18, and Sferrazzo told him of Susco's call and said that Susco
knew all about the organizational activity. Sundt testified that Sferrazzo told him
that Susco had the names of the five employees who were to attend the organiza-
tional meeting, and that the meeting would not be held. When Wolfe reported to
work on June 20, Sferrazzo told him that Susco knew about the organizational
meeting, where it was to be held, and who was to attend it. When Scott was
called into Susco's office on June 19 and advised that he had been granted a wage
increase, Susco told him that he had received four phone calls the previous evening
and was informed as to who was leading the organizational drive and when and
where a meeting was to be held. Susco further told Scott that if the Union came
in Cadre might lose its contract with IBM and have to close up and move back
East. Employee Hearn testified that on being advised on a wage increase by Susco
in the latter's office on June 19, Susco, without mentioning the word "union," asked
him if he knew of the "activity" that was going on and said the "talk" could be
dangerous. Susco further told Hearn that Cadre was expanding and there would
be many future openings for promotion, but that the Los Gatos plant could close
and its operations be moved back East "due to this activity." Employee Fontaine
testified on the occasion of being advised of a wage increase by Susco in the latter's
office on June 19, he asked Susco if this was Cadre's method of combating the
Union. Susco replied that Cadre had more to offer than a union, such as future
benefits from increased production, expansion, and increased opportunity for promo-
tion. Susco told Fontaine that on June 18 he had received three or four phone
calls telling him of the prospective organizational meeting.
Susco specifically or in general denied the testimony of these employees, but their
testimony was mutually corroborative in certain particulars and, considered as a
whole, together with Sferrazzo's testimony of his telephone conversation with
Susco, establish a pattern of whose authenticity I am convinced. Their testimony
appeared to be neither exaggerated nor weighted with animus, and differed in detail
to a degree that it clearly was not the result of group rehearsal. On the other hand,
I found Susco neither forthright nor persuasive. The remarks attributed to him
appeared to me to be in "character."
I find that by Susco's inquiries into the union activities of employees, and by his
threats, implied and explicit, of denial of promotion opportunities to Cadre em-
ployees, and of moving the Los Gatos operations back East in the event of unioniza-
tion, the Respondent interfered with, restrained, and coerced its employees within
the meaning of Section 8(a) (1) of the Act.
2. The Wolfe discharge
This discharge presents the not unusual but difficult problem of an employee
whose performance of his work was of such character that except for its timing it
is doubtful that his discharge would have raised a question in anybody's mind,
including the dischargee's. Wolfe's production, his failure to make "bid time" on
CADRE INDUSTRIES CORPORATION 285
his various job assignments-the time managerially determined as required for the
completion of an operation-had been a matter of concern to his superiors for
months before there was any organizational activity , and in May he had been
called into Susco's office with respect to his low production and told by Susco that
considering the length of time he had been employed by Cadre, his work was not
satisfactory and he would be let go if it did not improve. It was Wolfe's own
testimony that he told Susco that he was tired of being called into Susco 's office and
that Susco could fire him if he wanted to. Susco replied , "You remember you said
it." Wolfe also admitted that something was said to the effect that he would have
30 days in which to demonstrate improvement . Respondent , in about March, had
also complained about Wolfe's absenteeism , and his refusal to work overtime during
a "crash program" covering the first 4 months of 1958. Wolfe's claim that he was
not physically fit for overtime work was doubtless regarded by management with
scepticism as to his physical unfitness and resentment because of his refusal to coop-
erate. I am convinced that there were reasonable grounds for Respondent con-
cluding, as it doubtless did, that Wolfe was something of a hypochondriac and that
his attitude toward his work was cavalier. However, there was no absenteeism of
note after March 1958, unless his absence on June 19 is counted , and it is not to
be counted if Susco's testimony that the decision to discharge him was made prior
to that date is credited.
We must also take into consideration other factors. Wolfe's production did
improve following his May interview with Susco, though up to the time of his
discharge he did not succeed in making "bid time." Wolfe, to Susco 's knowledge,
was one of the five employees active in initiating an organizational campaign.
There is also employee Johnson's testimony that when he. protested to Foreman
Quartararo about being accused of being a union "ringleader," Quartararo replied,
"We know Wolfe's behind it." There is other testimony tending to show that
Susco regarded Wolfe as the leader in organizational activities, but this testimony
is somewhat tenuous and inconclusive . Actually, employee Johnson was as instru-
mental as Wolfe in starting an organizational movement, and Wolfe was no more
a "ringleader" in it than others. Susco 's animus with respect to the Union was
demonstrated in the statements he made to employees, reviewed above , and it was
Susco who made the decision to discharge Wolfe, although he made it after con-
sultation with his superior , Du Bois. Finally , I regard with scepticism the testimony
of Respondent 's witnesses that the decisions to discharge Wolfe, to grant merit
wage increases , and to launch the formation of the Advisory Council were all made
prior to any knowledge on Respondent 's part that employees were engaging in
organizational activities . There is such a thing as stretching coincidence too far.
Taking all these factors into consideration , however, I am unable to conclude
that the evidence preponderates to support the General Counsel's position. The
warning of discharge , Wolfe's cavalier attitude about it, the background of poor
production and a generally noncooperative attitude , and his failure up to the date
of his discharge to make bid time on his job , to be overcome would require some-
thing more positive and affirmative as to unlawful motivation than is found here,
and even the timing of the discharge lacks what otherwise would be of decisive
significance because of the fact that the discharge occurred some 30 days from the
date of the warning and at the end of a 30-day probationary period. In short, the
timing finds an explanation as reasonable in terms of the Respondent 's case against
Wolfe as in terms of the General Counsel 's case against the Respondent. I must
recommend dismissal of the complaint with respect to Wolfe's discharge.
3. The wage increases
Merit wage increases are initiated by Plant Superintendent Susco or Foreman
Quartararo. If initiated by the latter , they are "checked" by Susco before being
acted on. In initiating increases , Susco or Quartararo , as the case may be, uses a
printed request form in which the employee 's name and the name of the supervisor
requesting the raise is noted. The form then goes to Personnel Director Lane
who completes it by recording production , attendance , and other record data on the
employee for whom the raise is requested . From Lane the request form goes to
Du Bois who either approves or disapproves the request . Where the request is
approved , it is normal procedure for Susco or Quartararo to inform the employee
involved and discussion of his work usually follows . Where the request is denied,
on occasion the employee is so advised and his work record is reviewed.
In 1957, Respondent also granted general wage increases . None was granted
in 1958.
On June 19, 1958, Respondent authorized the granting of merit increases to 25 of
its some 59 production employees , to become effective on June 21 . The requests for
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these increases were dated June 17, with the exception of one dated June 16. The
increased granted in 17 cases was 10 cents an hour, and in 8 cases, 5 cents an hour.
Certain employees granted an increase were called to Susco's office on June 19 where
they were informed of the increase. Statements found above to have violated
Section 8(a)(1) of the Act were made by Susco during some of these interviews.
It was not unusual, however, for Susco to discuss production and general plant prob-
lems with employees on occasions when he informed them of merit wage increases,
and no adverse inference is drawn from the mere fact that he had these interviews
at this time.
According to Susco's testimony, he first learned of the organizational activity on
the evening of June 18 when he talked by phone to Sferrazzo. I have found credible
the testimony of General Counsel's witnesses that on June 19 he said that he had
been informed of the activity by several phone calls and also at the plant on June 18.
This is a comparatively small plant and while attendance of the scheduled organiza-
tional meeting was to be limited to five employees, the discussions occurring at the
plant on June 18 were not limited to these five. Nevertheless, there is no direct
evidence establishing that Susco had knowledge of union activity prior to June 18,
and the wage requests signed by him and Quartararo predated June 18. Final action
on such requests, according to Lane, may vary from 1 day to several weeks. Here
action on all the requests came speedily. The record does not tell us whether prior
requests of similar magnitude were acted on so speedily, and therefore there is no
basis for comparison on the point. We do find, however, that in addition to general
wage increases granted in 1957, there have been merit increases from time to time,
some almost every month, and that in March 1958, 21 of a total of 50 employees
received merit increases. There were also a substantial number of increases in
April and May. For the combined months of March, April, and May, 51 merit in-
creases were given and the total number of production employees never exceeded 57.
There is also Susco's testimony that the work records of Cadre employees were
periodically reviewed, at least once every 3 months, for determining whether or not
an increase was justified. In the granting of the June increases, for a substantial
number of the employees so favored, obviously there had been no 3-month interval
since their last merit increase. In fact, there is hardly an accounting in the testimony
of Respondent's witnesses for the circumstances that gave rise to the granting of 25
merit increases out of a total of 59 employees on June 19, when in the preceding 3
months 51 merit increases had been granted. Neither is there any prior period of
similar duration in the existence of the Cadre plant in Los Altos, in which merit
increases of like number were given.
Here, then, we have a situation which is bound to give rise to suspicion and con-
jecture, and I am by no means certain that there does not exist in these facts a basis
for justifiable inference that the speedily approved merit increases announced to Cadre
employees on June 19 were granted in part, as least, to discourage the organizational
activities of Cadre employees. Bearing in mind, however, that the Cadre plant is a
comparatively new one and therefore there is very little basis for comparison of
present and past practices; that the requests were dated prior to June 18 and com-
pany knowledge of union activities prior to the date is not firmly established; and
that the Respondent was as free following the start of union activities as it was before
to adjust the wage level of its employees according to normal practices, I do not draw
that inference but with an expression of doubt in the matter, find that there is no
predominance of evidence supporting the General Counsel's position.
4. The Advisory Council
There being no question that Respondent caused the Advisory Council, hereinafter
Council, to be organized, participated in its organization, contributed support to and
dominated it, this discussion deals principally with the issue of whether the Council
was, or at any time functioned as, a labor organization.
It is noted that the Council was patterned after an organization existing in Re-
spondent's east coast plant, and that a manual including instructions for setting up
such an organization was first sent to the Los Gatos plant on or about July 1957.
The Council was not actually launched, however, util June 23, 1958, the week follow-
ing the abortive effects of a few employees to organize the plant.
In the week following June 19, Du Bois addressed Cadre employees, and, accord-
ing to employee Scott, a credible witness, told them that: Respondent had a success-
ful system in the East for taking care of employee problems called the Advisory
Council, and that the Council was to be put into effect at the Los Gatos plant; the
existing Recreation Association would designate a nominating committee and em-
ployees would be nominated from each of the several distinct operations at the Los
CADRE INDUSTRIES CORPORATION 287
Gatos plant; and the Council would provide a channel of communication between
management and employees, and would adjust grievances and problems which would
not normally came to managerial attention.
Implementing Du Bois' address, on June 23 a bulletin was posted giving details
for the election of departmental representatives, four in number, and containing the
following description of the nature and modus operandi of the Council:
Policy: To provide a channel of communications whereby the company and
their employees thru their elected representatives may discuss policies, standards
and mutual problems.
Procedure: Each year Employees will elect representatives to the council.
This council shall include the President of Cadre Industries Corp. or his Designee
and the Secretary of the Corporation. At a monthly meeting all problems,
policies and situations that arise during the month and need clarification, correc-
tion or adjustment may be taken up by the council for discussion and action.
Each member of the council shall be allowed to discuss council business with
those he is representing on company time.
Each council member shall work closely with the Supervisor(s) of those he
represents.
The election of employee representatives to the Council was supervised by Per-
sonnel Director Lane and these representatives having been elected, a first meeting
was held at a local restaurant on September 4. Employee and management repre-
sentatives, the latter including Du Bois and Lane, had a steak dinner at the expense of
management, after which Lane read from Respondent's manual on the operation of
the Council. According to Lane, Du Bois, who presided, stated at the outset of this
meeting that the Council was not to function as a grievance or "gripe" committee.
Scott, an employee representative who attended the meeting, testified that he did not
hear Du Bois make such a statement and that either Lane or Du Bois said that the
Council would provide a channel of communication to take care of problems, griev-
ances, complaints, and "keep everything running smooth." Lane kept minutes of
the meeting and they best illustrate and authenticate the nature of the business trans-
acted at this meeting:
The following items were presented to the group for their consideration.
1. Machine Maintenance Man I. Florendo.
Lack of interest in this work, would like to get off this job.
F. Du Bois: Will check.
2. Telephone Calls M. Lewis.
Some calls are not being relayed to the shop.
F. Du Bois: We will use Memo pads.
3. Incentive Pay R. Scott.
If, When and how it works.
F. Du Bois: Yes we will have it. Cost reduction in progress now. Can't
give exact date it will begin.
4. Machine crimping I. Florendo.
Need assistance & info. on what is a good crimp.
F. Du Bois: Discussed troubles we are having with machines. Will give
you help in understanding this phase of the work.
5. Having trouble with round cord R. Scott.
Men dissatisfied with it.
F. Du Bois: Many cables will be changed to flat braid.
6. Bid Times R. Scott.
Many too high.
F. Du Bois: Cost reduction in progress. Bid time will be adjusted.
7. Lights in #10 Mr. Lewis.
Girls complaining about poor light.
F. Du Bois: We will install Dazor lights.
8. Advisory council R. Scott.
Employees don't understand its function and operation. Council mem-
bers are not getting questions.
R. Lane: Have a meeting of all the plant personnel giving the required
info., encourage employee participation, no retaliation etc.
9. Higher Stools M. Lewis.
M. Vodden and E. Vanderburg need higher stools.
F. Du Bois: We will take care of that.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. Policy F. Du Bois.
A. No husband and wife employment for the present unless both em-
ployed in plant prior to marriage.
B. Pregnancy: May remain with the company through the 6th month.
11. Growth of the Company F. Du Bois.
Discussion as to present and future growth, prospects etc.
Employees should not be discouraged. Great opportunities.
12. Schools R. Scott.
How about schools?
F. Du Bois: Blue print reading to begin shortly, sign up next week.
Introduction to Supervision to begin this fall.
13. Girls buying own tools M. Lewis.
State law against.
R. Lane: We will check and get a clarification on this subject.
14. Lead length on cables Op. 5 R. Scott.
Some employees are cutting against the pins instead of on the line.
F. Du Bois: We will check on this.
Meeting adjourned at 9:40 p.m.
A few days following the September 4 meeting, according to Lane, Du Bois
addressed the employees, as was his practice from time to time, and during his
address explained the objectives of the Council and reported on what had occurred
at the first meeting. Du Bois told the employees that he wanted them to take a
part in the Council, "to be in it, and be free to ask questions, and if they needed
more information on certain things, to be sure and let the Council members know."
Further according to Lane, Du Bois also said, "This council is not to be a
grievance or a gripe Committee."
A second meeting of the Council was held at a local hotel on October 13, and
again employee representatives were the dinner guests of management. At this
meeting, according to Lane, it was again pointed out "that this was not a gripe or
a grievance council." Also at this meeting, a statement of policy received by Re-
spondent from its east coast office was handed to each of the employee representa-
tives. It had been received by Respondent subsequent to the first meeting of the
Council and subsequent to Du Bois' address referred to in the paragraph above.
The statement, after reviewing how the Respondent avails itself of "advisory
groups," speaks of the Council as a part of "this large Advisory Group."
"It is the prime purpose of management in forming this group," the document
reads, "to be able to utilize your ideas, suggestions, and guidance in helping to work
out the hundreds of problems involved in employing a group of people such as we
presently have. We feel that this group will effectively improve the communications
to the employee group and that through this group we will be able to maintain an
efficient system of cooperative management. Your primary function as a member of
the Council will be to maintain contact with the group of employees who have
appointed you to this Council. You are to be their spokesman in helping to solve
problems and in bringing to light situations that would be impossible for the manage-
ment group to be aware of. Your second function will be to bring these problems
to the Advisory Council meeting, which will be held approximately the first week
of each month. At the monthly meetings these questions and problems will be
thrown out on the table before the council and it is desired that by discussion and
suggestion an effective solution to the question or problem might be had. There
will be times when you will not only be solving employee problems, but you will
be requested to express your opinion in matters of Company interest and manage-
ment. This group has not been formed to serve the purpose of a Grievance or
Gripe committee. Its purpose is to come to this meeting with problems and ideas
for the solution of problems. It is not expected that the group will handle situations
that are the Company Supervisor's responsibility but that the group will refer these
situations to the Department Supervisor."
Coming now to the actual business transacted at the October meeting, we again
rely principally upon minutes of that meeting taken by Lane. Scott did not attend
the meeting and none of the three employee representatives who did attend testified.
Referring to these minutes, we find that one employee representative raised the
question of absenteeism occasioned by the need to care for sick children; another
introduced the subject of a "suggestion system"; another "wanted to know more
about the Incentive Plan and how it operates"; one brought up the subject of having
music piped in through the public address system; the cleaning of restrooms,
company policy regarding raises, performance rating and how it works, and a stock
purchase plan, were other topics broached and discussed at the meeting.
CADRE INDUSTRIES CORPORATION 289
An amended charge alleging the Council to be a company-dominated labor
organization was filed on October 6. After a conference in the Board's Regional
Office on or about October 14, Respondent decided to refer the matter to its home
office and await instructions . By letter dated November 17, the home office advised
Respondent to disband the Council. On receipt of this letter on or about November
19, and pursuant to Du Bois' instructions, Lane announced to Cadre employees over
Respondent's public address system that on orders of the home office the Council
was disbanded. There is no evidence that it has functioned in any capacity since
that date.
With the statutory definition in mind,2 we come to a resolution of our central
problem: was the Council a labor organization or a mere vehicle for the presenta-
tion of grievances permissible under Section 9(a) of the Act? Lane testified that
at the first meeting in September, in Du Bois' address to the employees following
that meeting, and at the outset of the October meeting, the employees were informed
that the Council was not a "grievance or gripe" committee. Actually, this term
appears in the policy statement that was distributed at the October meeting, was
recorded as having been stated to the employees by the minutes taken at that meeting,
and I am convinced that at no time prior to the October meeting were Cadre em-
ployees informed that the Council was not to be a "grievance or gripe" committee.
No such language appears in the policy statement taken from Respondent's manual
and posted on the bulletin board on or about June 23; no mention of such a state-
ment appears in the minutes of the first meeting; and I think it unlikely that Du Bois
or Lane would have used the precise phrasing which appeared in the policy state-
ment distributed at the October meeting, prior to seeing that statement. Actually,
the statement posted on June 23, which purports to be a policy and procedure state-
ment, has language general enough to embrace almost any topic that normally
would constitute the subject matter of collective bargaining. "At a monthly meet-
ing," the statement reads, inter alia, "all problems, policies and situations that arise
during the month and need clarification, correction, or adjustment may be taken
up by the council for discussion and action." [Emphasis supplied.] That this
embraced problems and situations affecting the working conditions of employees
and looked toward their discussion and adjustment is made clear by the functions
assigned to employee representatives on the Council, who were permitted, on com-
pany time, to approach and interview the employees of their respective departments
for the purpose of preparing data on problems affecting the department and the
individual employees, preparatory to presentation before the Council. The minutes
of the September meeting reveal, beyond question, that the principal business of
that meeting was the reception and consideration of problems, presented by employee
representatives, affecting conditions of employment. This was somewhat less
marked in the October meeting, held after a charge had been filed alleging the Council
to be a company-dominated labor organization, but, nevertheless, despite the admo-
nition at that meeting that the Council was not a "grievance or gripe" committee,
matters affecting the wages and working conditions of employees, individually or
collectively, were chief among those discussed, and in some instances promises of
remedial action were given.
Clearly, the Council was not and never functioned as a mere channel of communi-
cation by which employees were kept abreast of company plans and policies, and
in which discussion was general and unrelated to specific problems affecting the
wages and working conditions of employees. True, the Council had but slight
formal organization , no constitution , no dues requirements , no treasury, and no
officers. Such factors do not, however, serve to distinguish it from the representa-
tion plans which flourished prior to the Wagner Act and were found unlawful under
it, and it is noted that the Act's definition of "labor organization," including the
term "employee representation committee or plan," was not changed with the
enactment of Taft-Hartley. Obviously, a formal organization is not required to
satisfy the statutory definition and, in any event, for all practical purposes, the
employee representatives elected from their respective departments by secret ballot-
ing constituted the employees' "bargaining committee," or a reasonable facsimile
thereof. Both in its organization as a continuous body, plantwide in scope, with
2 Section 2(5) of the Act:
The term "labor organization" means any organization of any kind , or any agency
or employee representation committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages , rates of pay, hours of employment, or
conditions of work.
525543-60-vol. 124-20
:29.0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.elected representatives, and in its functioning, the Council must be distinguished, I
.think, from the mere presentation of grievances by individuals or employee groups
pursuant to Section 9(a) of the Act. It negotiated no contracts, but real collective
bargaining on a contract between a company-dominated organization and an
,employer would involve a contradiction in terms, and it is not expected that there
will be encountered an aggressive and coordinated program presented and prosecuted
by employee representatives of such an organization. What we may expect, and
.about all that we may expect, of a company-dominated organization is that the
.employee representatives will present, for managerial consideration and adjustment,
,problems affecting the wages and working conditions of individual employees and
of the employees generally. That the employee representatives of the Council
"dealt" with management concerning such problems is self-evident from a reading of
the minutes of the two meetings; i.e., they presented problems, proposed solutions,
the problems were explored in joint discussion, and, in several instances, remedial
action was taken or promised. This is about as far as a company-dominated organi-
zation can go in its simulation of true collective bargaining. In my opinion, both
its organization and its functioning distinguish the Council from the situation in
Avildsen Tools and Machines, 112 NLRB 1021 where the Board found that periodic
.assemblages of employees en masse for discussing and registering employee opinions
on management proposals did not constitute a labor organization. A closer analogy
is found in Cabot Carbon Company, at al., 117 NLRB 1633, and while this decision
,was reversed in 256 F. 2d 281 (C.A. 5), and is now pending on certiorari before
the Supreme Court [cert. granted 358 U.S. 863], I am bound by the Board's decision.
While I have carefully weighed the explanations given by Respondent's witnesses
for having delayed the formation of the Council from July 1957 to June 1958, I am
unable to regard the launching of this organization quick on the heels of Respond-
ent's first knowledge that its employees were attempting to organize, as merely
coincidental. On the contrary, I am convinced that it was offered to the employees
at that time for the purpose of diverting their attention from union affiliation by
providing them with a substitute for bona fide collective bargaining.
Upon the entire evidence in the matter, I find that the Council, throughout its
existence, was a labor organization within the meaning of the Act, formed, domi-
nated, and supported by the Respondent in violation of Section 8(a) (2) and,
,derivatively, 8 (a)( 1 ) of the Act.
5. Sferrazzo's affidavit and subpena
Sferrazzo testified that on December 30, he was called to Susco's office where
Susco told him that he, Susco, wanted a copy of the affidavit Sferrazzo gave a Board _
field examiner during the latter's investigation of charges against the Respondent,
and asked Sferrazzo to sign a letter prepared by Susco and addressed to the Board''
Regional Office, bearing the following text:
Please send me a copy of the statement which I gave to you in connection with
Cadre Industries Corporation Case #20-CA-1434.
Sferrazzo did not recall whether he signed the statement he gave to the Board and
to satisfy Susco called his wife from the plant to determine whether she recalled if
he signed such a statement. She did not recall. That same day, following Sferrazzo's
call to his wife, Susco came to him where he was working, and when Sferrazzo told
him that neither he nor his wife recalled whether he signed the statement, Susco
said , "Well, supposing the statement does appear in court. Do you want me to
feel sorry for you?"
About January 8, 1959, Foreman Quartararo directed Sferrazzo to see Susco in
Respondent's main office and there Susco produced the letter previously referred
to and again asked Sferrazzo to sign it. Thereupon Sferrazzo signed the letter
prepared by Susco, and the Respondent caused it to be mailed to the Board's
Regional Office. On this same occasion, on January 8, Susco asked Sferrazzo if he
had received a subpena to testify at the hearing in this proceeding, and on Sferrazzo's
affirmative answer, asked to see it. When told by Sferrazzo that he had left it at
home, Susco sent Sferrazzo to the latter's home for the subpena. Sferrazzo returned
with it and gave it to Susco who returned it to him the same day.
Sferrazzo was absent from his work on the afternoon of January 12. On January
13, he was called to Susco's office where his absence of the previous afternoon was
discussed. When Quartararo came into the office, Susco told him, "See that this
fellow puts out double the amount of work because he won't be here for a while."
During this same conference Susco wanted to know if Sferrazzo had received a
copy of his affidavit from the Board, and when Sferrazzo said no, Susco said he had
CADRE INDUSTRIES CORPORATION 291
called Sferrazzo's wife the previous afternoon and was told that the mail delivery
was in the forenoon. He then asked Sferrazzo to call the latter's home to find out if
the statement had come, saying, "I've got to have that statement from you one way
or the other." Sferrazzo called his house twice that day but the statement had not
arrived and when he so informed Susco, the latter complained because he had not
signed the letter requesting the affidavit sooner. On cross-examination, Sferrazzo
testified with respect to the January 13 conference with Susco that, while insisting
that he call home to find out if his Board statement had come in the mail, Susco
had a stick in his hand and waved it about in a threatening manner.
It was on the basis of matter covered in this testimony that the General Counsel,
on the first day of the hearing herein, amended the complaint to allege 8(a)(1)
violations, in that Susco:
(1) On or about December 30, 1958, and at various times thereafter, de-
manded that Fred Sferrazzo give him a copy of the statement he submitted to
the National Labor Relations Board, and threatened him with loss of his job if
he failed to produce said statement. (2) On or about January 9, 1959, de-
manded that Fred Sferrazzo obtain for him at the plant and give to him the
subpoena which had been served upon said Fred Sferrazzo in this matter.3
Susco admitted that the letter to the Board requesting a copy of Sferrazzo's
affidavit, signed by Sferrazzo, was prepared and mailed by the Respondent. He
also admitted that he first talked to Sferrazzo about the letter on December 30, that
the letter was prepared and offered for Sferrazzo's signature on that date, and that
the letter was not signed by Sferrazzo until some 2 weeks later. According to him
he called Sferrazzo to his office on January 30 because the latter appeared to be
disturbed and that Sferrazzo during the conversation mentioned several personal
matters that were causing him anxiety, including his apprehension that he might be
called as a witness at the hearing in this proceeding. Susco asked him if he had
signed a statement for the Board, and told him if he had he could get it back; that
he, Susco, had signed a statement and had obtained a copy of it by writing to the
Board. Sferrazzo said he did not remember whether he signed the statement but
that he would like to have it back. He then asked Susco to prepare a letter
requesting a copy of the statement and the letter, accordingly, was prepared in
Respondent's office for Sferrazzo's signature.
Further according to Susco, Sferrazzo did not immediately sign the letter because
he wanted first to check with his wife and see if she recalled whether he, Sferrazzo,
had signed the Board statement, and on making the call, learned that his wife did
not recall either. Susco admitted that he had a "few" conversations with Sferrazzo
about the letter before it was signed and mailed because he, Susco, had the letter
in his desk and wanted to know what to do with it. He also admitted that
following the mailing of the letter, he questioned Sferrazzo whether the latter had
received a copy of his Board statement but denied that he did this several times,
or that he called Sferrazzo's home with respect to the matter. He had no recollection
of brandishing a stick at any time during a conversation with Sferrazzo.
With respect to the subpena, Susco testified that on January 8 Sferrazzo volun-
teered that he had received a subpena to testify in this proceeding, whereupon he
told Sferrazzo that he, Susco, would like to see it. He admitted that on the following
day he sent Sferrazzo home to get the subpena and that he showed it to Du Bois
before returning it to Sferrazzo. According to Susco, he merely wanted to ascertain
whether Sferrazzo's absence from his job to testify was required.
It is my opinion that the Respondent had a legitimate interest in seeing the
subpena, and I am not convinced that there was unseemly harassment of Sferrazzo
with respect to it. Because of Sferrazzo's conviction for embezzlement,4 of which
Respondent doubtless had knowledge, and his failure to disclose this on his applica-
tion form, it may reasonably have required something more than Sferrazzo's word
that his presence at the hearing was necessary. No doubt the absence of an
employee from his job requires managerial attention and it is reasonable to suppose
that a substitute, or some rearrangements of schedules, might be required. Accord-
ingly, I shall recommend dismissal of the complaint with respect to the subpena.
3 The complaint was amended over Respondent's objection. It claimed, and claims, that
the amendments are jurisdictionally defective because not set forth in any charge filed
by the Board. N.L.R.B. v. Waterfront Employers, et at., 211 F. 2d 946 (C.A. 9).
4 The record does not disclose the amount that was embezzled but does disclose
that Sferrazzo made restitution. The record does not disclose the nature of the crime
involving moral turpitude for whit!h he was convicted.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the affidavit, however, I am convinced that Sferrazzo was sub-
jected to demands and harassment amounting to intimidation. I do not find an
explicit threat of discharge. Assuming that Susco said to Sferrazzo, as testified to by
the latter, "Well, supposing the statement does appear in court. Do you want me
to feel sorry for you?", such a statement is subject to different interpretations; and
Susco's later alleged statement to Foreman Quartararo with respect to Sferrazzo,
"See that this fellow puts out double the amount of work because he won't be here
for a while," may very well have had reference to the fact that Sferrazzo had just
told him of his efforts to enlist in the Armed Forces. But that Susco exerted pressure
on Sferrazzo to sign a letter which he, Susco, had had prepared, requesting the Board
to furnish a copy of Sferrazzo's affidavit, and that he engaged in subsequent
harassment by repeated inquiry with respect to Sferrazzo's receipt of a copy of the
affidavit, 1 do not doubt.
That Sferrazzo, the recipient of a telephone call from Susco on June 18 with
respect to organizational activities, would go to him and volunteer that he had given
the Board an affidavit, I consider highly improbable. I find it equally improbable
that he would solicit Susco's aid in having a copy of the affidavit sent him by the
Board and then refuse to sign the letter prepared for him by Susco because neither
he nor his wife could recall if Sferrazzo had signed the affidavit. The probabilities
altogether are that Sferrazzo would not want Susco to see the affidavit in advance
of the hearing, and that when Susco presented him with the letter he "stalled" in
signing it on the ground that he did not remember if he actually executed an affi-
davit for the Board. It also seems obvious that had Susco been disinterested in the
matter, as his testimony would indicate, when Sferrazzo first refused to sign the
letter, he would either have destroyed it or given it to Sferrazzo. Instead, be kept
it and admittedly it was on his reminder some 2 weeks later that Sferrazzo actually
signed the letter. Susco's real interest in the matter is further disclosed by what I
find to be his repeated questioning of Sferrazzo concerning the latter's receipt of a
copy of the affidavit, and his insistence on seeing it.
Sferrazzo having been convicted of crimes involving moral turpitude, his testi-
mony requires close scrutiny and may be of dubious probative value unless it finds
corroborative support either in the testimony of others or in circumstances that give
it the stamp of verisimilitude. It must be borne in mind, however, that Susco
was himself an unreliable witness, and has been found not to have testified truthfully
with respect to statements on organizational activities made to employees other than
Sferrazzo on June 19. With respect to the affidavit, the probabilities preponderate
heavily in support of Sferrazzo's testimony, corroborated to a degree by Susco's
admissions, while on the other hand I found Susco's rationalizations of his conduct
with respect to Sferrazzo's affidavit entirely illogical and improbable.
It is found that in Susco's harassment of Sferrazzo for the purpose of obtaining
the affidavit the latter gave a Board agent in the investigation of this case, the
Respondent interfered with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
In reaching this conclusion, I have accorded no weight to Sferrazzo's testimony
that on one occasion when Susco was questioning him about his receipt of a copy
of the affidavit, Susco waved a stick in a threatening manner. Respondent was well
aware that Sferrazzo, on probation under conviction of a crime, was extremely
vulnerable to management suggestion. There would have been no occasion, in my
opinion, for Susco to threaten Sferrazzo with physical harm. Why brandish a
stick when a feather would have done as well? Susco was one given to elaborate
gesturing as an accompaniment to speech, and if he happened to have something in
his hands when talking to Sferrazzo, a stick or any other object, he doubtless waved
it about a bit but not, I think, for the purpose of threatening physical harm.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in
connection with its operations 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 commerce and the free
flow thereof.
V. THE REMEDY
Pursuant to findings above that the Respondent has engaged in unfair labor
practices violative of Section 8(a)(1) and (2) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. °
FOREMOST DAIRIES, INC. 293
Having found that the Respondent formed, dominated, and contributed support
to, the Advisory Council, I shall recommend that it completely disestablish the
Advisory Council as the representative of any of its employees for the purpose of
dealing with their employer concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of employment; and that the Respondent
refrain from recognizing the said Advisory Council, or any successor thereto, for
any of the purposes defined in Section 2(5) of the Act.5
Upon the basis of the above findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge No. 93, AFL-CIO, and
the Advisory Council are, respectively, labor organizations within the meaning of
Section 2(5) of the Act.
2. By forming, dominating, and contributing support to, the Advisory Council,
the Respondent has engaged in and is engaging in unfair labor practices in violation
of Section 8(a) (2) of the Act.
3. By the aforesaid action, and by interrogating its employees concerning their
union activities and threatening and warning them of the consequences of organiza-
tion; and by interrogating, intimidating, and harassing its employee, Sferrazzo, with
respect to the Board affidavit, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
thereby violating Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices by its discharge of
its employee, Wolfe, or by the granting of wage increases.
[Recommendations omitted from publication.]
6I have found that following the filing of a charge alleging the Advisory Council
to be a company-dominated labor organization, and on instructions from the east coast
office, the Respondent publicly announced to its employees that the said Advisory Council
was disbanded, and that there is no evidence that it has survived this voluntary dis-
establishment. Nevertheless I am recommending the customary disestablishment order.
Such an order is necessary to insure against a reestablishment of the Council or the
formation and recognition of a successor thereto.
Foremost Dairies, Inc. and Truck Drivers, Warehousemen &
Helpers Local Union No. 512, Jacksonville , Florida, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, Petitioner. Case No.
10-RC-585. July 31, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Norman A. Cole, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
124 NLRB No. 38.