Cello-Tak Co.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 295 (N.L.R.B. 1963)

CELLO-TAK COMPANY 295
Harvey Carlton , d/b/a Cello-Tak Company and Local 142, Alu-
minum , Metal Alloys , Aircraft Components and Allied Trades,
Coopers International Union of North America, AFL-CIO.
Cases Nos. °3-CA-8742, 2-CA-8743-2, and 2-CA-8742-3. June 28,
1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices as alleged in the
complaint. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
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, Farming, and Brown].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report and the entire record in the case, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.
1. We find, contrary to the Trial Examiner, that the Respondent
did not violate Section 8(a) (1) and (3) when he permitted employee
Cunningham to leave the plant on July 11, 1962. On that day, Cun-
ningham approached Carlton and told him that she had completed
certain work. However, she neglected to inform him that there would
be about 11/2 hours of remaining work for her to perform after a 15-
minute interval. Not knowing this fact, Carlton asked her if she
wished "to sit around all day" doing nothing. When she answered
negatively, he asked her if she would return the next day. Subse-
quently, she discussed this matter with the Union's representative who
told her that it would not be worthwhile for her to return for only
11/2 hours' work. As a result, Cunningham never returned to the
plant. Though finding that Cunningham was not entitled to back-
pay after July 11 because she decided of her own volition to stay away
from work starting July 12, the Trial Examiner awarded her back-
pay for a portion of July 11 as well as reinstatement. As noted above,
we do not agree. For all that appears in the record, Cunningham
would have been employed for the remainder of July 11, as well as
thereafter, had it not been for her failure to disclose to Carlton the
143 NLRB No. 56.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional work that remained for her to do. Accordingly, we find
that Cunningham, in effect, quit her employment on July 11 and,
contrary to the Trial Examiner, we find no violation of the Act with
respect to her.'
2. The Trial Examiner found that the Respondent participated in
an arrangement with employee Levine whereby the latter would re-
port to the Respondent information concerning a meeting conducted
by the Union on July 11. In so concluding, however, the Trial Ex-
aminer noted that it was Levine who broached the subject to Respond-
ent. The Trial Examiner did not mention additional evidence in the
record, indicating not only that the Respondent agreed with Levine
that he should attend the meeting, but also that Respondent suggested
that Levine bring a pencil and paper with him so as to be better pre-
pared to report to the Respondent the following morning. Conse-
quently, in view of this evidence, as well as that cited by the Trial
Examiner, we agree that Respondent engaged in surveillance violative
of Section 8 (a) (1) of the Act.2
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications 3
1. Paragraph 2(a) of the Recommended Order is amended so as to
delete the name of employee Louise Cunningham; paragraph 2(b) is
amended so as to delete the word "four."
2. The Appendix attached to the Intermediate Report is modified
by striking the name of Louise Cunningham from the last substantive
paragraph thereof, and by deleting the word "four."
'Accord, Pottsville Community Hotel Co , Inc (Necho -Allen Hotel), 140 NLRB 556
(employee Spotts ). In effect, our dissenting colleague would find that because of Re-
spondent 's union animus , Cunningham was an employee whom Respondent desired to be
rid of, and her eagerness to leave on July 11, and not return on July 12, was attributable
to Respondent rather than Cunningham . In support of 'this reasoning , Member Brown
also concludes that Respondent Carlton was somehow derelict because he failed to examine
Cunningham more fully concerning the exact status of her work on that day even after she
indicated to him that she had no more work to do.
Contrary to our dissenting colleague , it is not within the Board ' s province to indalge
in speculation concerning what the Respondent might have done had Cunningham demon-
strated a greater willingness to work on July 11, or had reported to the plant for duty the
following day. In sum, we are not willing to find that Respondent wrongfully laid off
Cunningham merely because there is evidence that Respondent may have been pleased
that a known union adherent absented 'herself from the premises.
2 See Murray Envelope Corporation of Mississippi , 130 NLRB 1574, 1576-1577
s The Appendix attached to the Intermediate Report is hereby amended by adding the
following immediately below the signature line at the bottom of the notice
NOTE.-we will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
CELLO-TAK COMPANY 297
MEMBER BROWN, dissenting in part :
I dissent from my colleagues' reversal of the Trial Examiner's find-
ing that Cunningham was laid off in violation of Section 8(a) (3).
On July 10, the Union requested recognition of Respondent. This
request was followed by interrogation, threats, and surveillance by
Respondent and the layoff of two employees on July 11 and the ter-
mination of two others on July 13. All this conduct of Respondent
was found by the Trial Examiner to have been in violation of the
Act, and we are adopting those findings herein. The Trial Examiner
found further that a third employee, Cunningham, was also dis-
criminatorily laid off on July 11, and it is my colleagues' rejection of
this finding which prompts my dissent.
On the morning of July 11, the Respondent caused work to be with-
drawn from employees and issued instructions that the employees,
upon the completion of their remaining work, were to report to him.
Bradley soon reported, told Respondent that she had no more work
to do, and asked what she was to do. Respondent told her to go
home and to call in a couple of days or he would call her. Shortly
thereafter, Cunningham appeared. She told Respondent that she
had completed "the work that was dry." Respondent did not inquire
about the existence of wet work which might need processing. Nor
did he instruct Cunningham to perform any other work; in the past
when Cunningham was through with her regular work she was as-
signed miscellaneous duties; Respondent had never laid off an em-
ployee. Instead, on this occasion, Respondent asked Cunningham if
she wanted "to sit around all day" and, when Cunningham answered
"no," he asked if she could come back the next day .4 On the same or
the next day, Respondent told an employee that Bradley and Cun-
ningham (and the third employee referred to above) had been laid
off, 'and he gave as u reason therefor that "they signed for the Union,
this is what they wanted, this is the way the Union works, this is
what they get." Cunningham, like Bradley, was never recalled and
Respondent testified that Cunningham was not recalled because there
was insufficient work and she was an inefficient employee. But new
employees were hired after July 11 and the record does not support
the assertion that Cunningham was inefficient.
On such facts, I am unable to distinguish between the case of
Bradley, who, all are agreed, was discriminatorily laid off, and Cun-
ningham, who is found by my colleagues to have quit. In the first
place, I must reject the suggestion that Cunningham concealed or
withheld facts from Respondent. Cunningham told the Respondent
that she had completed the work "that was dry," which was so. Re-
spondent, who was surely familiar with the nature of his operation
' Respondent's version is that the conversation ended with him saying, "Do you want to
try at a later date, get in touch with me or I might get in touch with you.,,
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Cunningham's routine, manifested no interest in the obvious pos-
sibility that there might be wet work which would need processing,
and he did not assign Cunningham to other work as had been done
on prior occasions when Cunningham was no longer occupied with
her regular duties. Plainly, it was his desire that Cunningham leave
the plant and this fact was readily apparent to Cunningham. His
action was the fulfillment of a technique designed to rid himself of
Cunningham which he instituted earlier in the day when he withdrew
work from the employees. Considering, in addition, Respondent's
own statement that he laid off Cunningham because of the Union
and his testimony that he would not recall Cunningham for alleged
reasons which indicate the futility of Cunningham's applying for
further employment, I cannot subscribe to my colleagues' holding that
Respondent would have retained Cunningham on July 11 and there-
after had she told him about the wet work but that Cunningham
quit. To the contrary, I find substantial support for the Trial Ex-
aminer's finding that Cunningham was laid off in violation of Section
8(a) (3).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which charges were filed on July 11 , 16, and 27 and Septem-
ber 17, 1962, and in which the complaint was issued on September 26, 1962, in-
volves allegations that the Respondent , Harvey Carlton , an individual doing business
as Cello-Tak Company, violated Section 8(a) (1) and (3) of the National Labor
Relations Act, as amended, 29 U.S C., Sec. 151, et seq On October 29 to No-
vember 1, 1962, Trial Examiner A. Bruce Hunt conducted a hearing at New York,
New York, at which all parties were represented. On November 27, the General
Counsel filed a motion to correct the transcript , to which no objection has been
filed. The motion is granted . The Respondent filed a brief which has been con-
sidered. Upon the entire record, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE RESPONDENT
The Respondent , Harvey Carlton, is engaged in business as Cello-Tak Company
and maintains an office and plant at Island Park, New York, where he manufactures
and sells artists ' aids such as alphabet and color film and related products. The
Respondent annually ships products valued in excess of $50,000 directly to points
outside the State of New York. I conclude that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE UNION
Local 142, Aluminum, Metal Alloys , Aircraft Components and Allied Trades,
Coopers International Union of North America , AFL-CIO, is a labor organiza-
tion which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges in substance, and the Respondent denies, that during July
1962 the Respondent interrogated and threatened employees concerning their union
activities , promised and granted benefits to employees to induce them to refrain from
membership in the Union, engaged in surveillance of union meetings and activities,
and withheld an increase in salary from an employee because of her union activities.
Additional issues involve the alleged invalid layoffs of three employees on July 11
and the discharges of two others on July 13.
CELLO-TAK COMPANY 299
B. The events
On July 9, 1962, several employees happened to meet a representative of the
Union, Lawrence Litman, in a restaurant near the plant. A conversation occurred,
and the employees signed union cards. One of the employees, Hilda Scott, received
additional cards from Litman. That afternoon she obtained the signatures of other
employees and returned the signed cards to Litman. The next day Litman called
at the plant, talked to the Respondent, Carlton, claimed majority status, and said
that he wanted to negotiate a contract. Litman declined to show the cards to Carlton,
but said that he would show them to Carlton's attorney or to a disinterested person.
Carlton asked for time, and the meeting ended.
Promptly upon Litman's departure from the plant, Carlton went among the
approximately 14 employees and talked with them. Several of the employees
testified as witnesses for the General Counsel, but much of their testimony need
not be recited in view of the testimony on behalf of the Respondent. Carlton testi-
fied that he "went to each employee to poll" the employee on the subject of whether
"the employee was acquainted with" the Union and had "signed anything regarding"
the Union. After several denials, according to Carlton, one employee admitted hav-
ing "signed a card," following which all employees but two "admitted that they
had signed a card."' Several witnesses for the General Counsel testified, and I
find, that Carlton inquired as to the identity of the employee or employees who were
leaders in the organizational activities, that he threatened to discharge the leaders,
that he was informed that Scott had brought the cards into the plant, and that he then
said that if anyone were to be laid off, Scott would be the "first to go." 2 Carlton
said also that the several employees who had worked long enough to earn vacations,
and whose vacations had been scheduled, would not receive them. He said too
that he could discontinue his practice of giving bonuses at Christmas?
On July 11, three employees, Grace Powell, Pinkie Bradley, and Louise Cunning-
ham were laid off. According to the General Counsel, the reason was that they
had signed union cards. On the other hand, the Respondent asserts that there was
no work for them. The record is clear that for some weeks the Respondent's ship-
ments of finished products had been decreasing and that during the week of July 9
they were unusually low. The record is also clear, however, that the Respondent
i The record is clear that two employees at first denied having signed authorization
cards, telling Carlton instead that they had signed cards which signified that they wished
to receive information about the Union, and Carlton denied having learned that the sig-
natures were to authorization cards. Carlton testified also that he became "very angry"
with Stanley Levine, and that he "let out a little wrath on Hilda [Scott] and Bill Lovett,"
because those employees had been so careless as to sign cards the nature of which they
did not know I cannot credit Carlton's testimony that he did not understand that the
employees had signed authorization cards. The facts surrounding Litman's conversation
with Carlton, and the testimony concerning Carlton's later inquiries of employees, leave
no doubt that Carlton was aware of the nature of the cards.
2 Carlton acknowledged that he asked the identity of "the leader," but be unconvinc-
ingly denied that anyone was identified to him as a leader He denied too that he
threatened to discharge anyone. On the other hand, another witness for the Respondent
was unable to support Carlton's denial Harvey Berkowitz, a certified accountant who
handles certain matters for the Respondent, happened to be in the plant upon the occasion
and to have overheard Litman's conversation with Carlton According to Berkowitz, he
became "intrigued" by that conversation and, when Carlton went into the plant to speak
with the employees, he followed Berkowitz testified also that he could not recall having
said anything as he listened to the conversations between Carlton and the employees
There is testimony by witnesses for the General Counsel, however, that Berkowitz spoke,
and Berkowitz was informed that there had been testimony that, in his presence, Carlton
had spoken of discharging a union leader and that Berkowitz had spoken to Carlton con-
cerning whether the latter "could or should discharge a union leader or leaders " Berko-
witz answered that he could not recall whether he had spoken on the subject
2 Carlton denied that he spoke to employees about the bonuses with respect to the
cancellation of vacations, Carlton denied that he mentioned the subject to employees on
July 10 He testified that on the night of July 10 he obtained advice from his attorney,
and that on the next day he told the employees that his attorney had advised him "to
eliminate vacations inasmuch as it might be looked upon as an act of coercion by the"
Board, or that the giving of vacations might "be misinterpreted " I cannot credit
Canton's testimony that on July 10 he did not cancel vacations and that his remarks to
employees on the subject were not made until after he had obtained legal advice Theie
is abundant evidence to the contrary and Carlton impressed me as an unreliable witness.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had never laid off an employee. Before I recite the events of July 11, it should
be noted that during that week Arnold Bauman, the Respondent's foreman who was
primarily responsible for the employees' work, was on vacation.4 During his
absence, other employees, including Scott, made work assignments. Carlton rarely
made such assignments because he was away from the plant about one-half of
each year.
Powell was the first employee to be laid off A day or two earlier a press which
she operated had broken down Carlton laid her off, giving the breakdown as
the reason, but Powell did not testify (her whereabouts at the time of the hearing
was unknown to the General Counsel) and we do not have her version of her
conversation with Carlton. The record establishes, however, that upon earlier oc-
casions when a press became inoperative, the operator was not laid off. It estab-
lishes too that when Powell's press was repaired she was reinstated.
With respect to the layoffs of Bradley and Cunningham, that morning Carlton
caused some work to be withdrawn from employees and told them to come to his
office upon completion of their remaining work.5 Soon Bradley went there. She
told Carlton that she had no more work to perform because he had withdrawn
work from her, and he asked what she was going to do. She replied that he was
"the boss" and that he should tell her what to do. He told her to go home, adding
that she should call him in a couple of days or he would call her.6 Within a short
while, Cunningham went into Carlton's office. She had completed certain tasks
but she still had work that would have required about 11 hours to perform after
allowing a 15-minute interval in which the work would dry. She told Carlton that
she had completed "the work that was dry," but did not tell him of the 11/2 hours'
work that would have been ready in 15 minutes. Carlton asked her whether she
wished "to sit around all day," and she answered in the negative. He asked if she
could return the next day, and she answered that she thought so. She left the plant.7
Later that day she talked with the Union's representative, Litman, and told him
that Carlton had asked her to return to work the next day, but that she had only
11/z hours' work remaining. Litman told her that it would not be worthwhile to return
for that small amount of work and she never returned. On the day of the layoffs
or the next day, Dolly Cooper, whose discharge is discussed hereinafter, talked with
Carlton. She asked him why Cunningham, Bradley, and Powell had been dis-
charged. He replied that they had not been discharged, that they had been laid off,
and that "they signed for the union, this is what they wanted, this is the way the
union works, this is what they get." 8
On the morning of July 11, employee Stanley Levine went to Carlton and vol-
unteered the information that there would be a meeting that evening at which
" Bauman's name is spelled In this report as it is spelled in the Respondent's answer, not
as it is spelled in the transcript.
5 To some extent this work was not needed Immediately because of the quantity of fin-
ished products on band.
8 The findings concerning Carlton's withdrawal of work from employees are based upon
the credible testimony of several witnesses for the General Counsel The findings con-
cerning the conversation between Carlton and Bradley when the latter was laid off are
based upon Bradley's testimony. On the other hand, Carlton denied that he directed that
any employee come to his office upon completion of particular work, and he testified that
there was a shortage of work for all employees. Carlton's version of the conversation
with Bradley is that she came into his office and asked for a work assignment, and that
he replied, "Why ask me? I am not distributing the work." He testified also that he
interrogated her about the possibility that she could find work in the plant, that she told
him that nothing was available, and that lie told her "in that case" to leave the plant and
that he would call her when work became available Finally, Carlton testified that, In the
absence of Foreman Bauman on vacation, it was Scott's duty to assign work to Bradley,
but that Carlton did not inquire of Bradley whether she had asked Scott for a work
assignment because he assumed that Bradley "had explored every avenue to find work to
do and [that] . . . she was at the end of the rope . "
The findings concerning this conversation are based upon Cunningham's testimony
Carlton (testified that Cunningham came to him and requested a work assignment, that he
said to her that he knew of none, that he asked if she could find anything to do to keep
busy, that she answered in the negative, and that he told her that if she would return the
next day he would try to find work or her.
8 The findings concerning the conversation between Cooper and Carlton are based upon
the former's testimony. Although Carlton did not specifically deny having had the con-
versation with Cooper , he denied having discriminated against any employee because of
union activities.
CELLO-TAK COMPANY 301
employees would discuss with a union representative "the unionization of the shop."
Levine told Carlton also that he thought he should attend. There is a conflict in
the testimony of Levine, a witness for the General Counsel, and Carlton concern-
ing whether the latter requested that Levine report to Carlton the next day concern-
ing the meeting. Although I discredit Carlton's testimony at various points herein,
I am not satisfied that Levine did not offer to report on the meeting, and consequently
I do not find that Carlton solicited a report. In any event, Carlton did not deny,
and I find, that on the following morning, July 12, Levine reported to Carlton as
the two had arranged the preceding day.
On Friday, July 13, Bradley returned to the plant to receive her pay. Carlton
saw her, but turned his back, and they did not speak. She was paid and left the plant
Also on July 13, Scott and Cooper were discharged. The defense is that Scott
engaged in insubordination and misconduct, and that Cooper engaged in insub-
ordination. The factual recitation begins with events on July 11, the day that
Bradley and other employees were laid off. On that day numerous cartons, each
containing merchandise and weighing 12 pounds or less, were stationed temporarily
on cabinets or elsewhere pending the relocation of racks in which the cartons ordi-
narily were stored While the racks were being moved by male employees, one or
more of the racks collapsed. They were reassembled improperly, but this fact was
not noticed immediately. Late on July 11, Carlton directed Scott to put the cartons
in the reassembled racks. To some extent she complied. The improper reassembly
of the racks was discovered on that or the next day. Carlton ordered Scott to re-
move the cartons and, later, to replace them again From the time on July 11
v ben Carlton initially ordered Scott to put the cartons in the racks to the latter part
of the next day, Scott protested each order on the grounds that she had other duties,
that she never had been required to move cartons, that some of them were too
heavy and were to be placed too high from the floor, that the work was properly
for men, and that Carlton, in ordering her to store, remove, and restore the cartons,
was motivated by "spite" because she had signed a union card. On the other hand,
Carlton testified that he assigned the task to Scott because there was no other work
for her, that from "that point on, it was very difficult to understand what she said
or to control her" because "she went into a tantrum" and became "incoherent,"
that somewhat laten when it was determined that the racks had been reassembled
improperly and when Scott was very emotionally upset, Carlton told her that she
need not perform the task because he would assign it to someone else, but that
later when he noticed that she was doing other work he again told her to handle
the cartons At that moment if not earlier, Scott began to cry. A tear fell on a
sheet of acetate Carlton said that the tear would spoil the sheet She offered to
pay him $1 He said that such a price would represent a discount.
During the morning of July 12, when Cooper had become aware of the continu-
ing argument between Carlton and Scott, Carlton directed Cooper to proceed with
her work in a manner which was not customary and which would have caused her
to complete certain work so as to have an early lunch hour. She objected. and he
told her to go to lunch earlier than usual She replied that she preferred her usual
lunch hour in order not to become hungry during the afternoon. He directed her
to turn off the machine on which she was working. She did so, but turned it on
again and continued to work He again told her to turn it off. She declined. He
shook his finger in her face, to which she protested, and she asked him why he
was treating the employees differently. He replied that they had signed union
cards behind his back, thereby treating him unfairly, and that he need not treat
them fairly Again he directed her to turn the machine off, again she refused, and
he turned it off. She went to another machine and resumed work 9
The next morning, July 13, Scott worked only a short while before deciding that
she was too sick to continue She informed Carlton, who had prepared for her a
letter to the effect that she was to be discharged as of the end of that day because
her refusal to accept "directions on work assignments and . flying into a rage
constitutes insubordination. . Carlton discharged her. Scott noticed that a
similar letter had been prepared for Cooper, and, upon leaving Carlton's office, she
so informed Cooper. Thereupon, Cooper went to Carlton and asked if she was to
n These findings are based primarily upon Cooper's testimony which is corroborated in
part by that Hof other witnesses for the General Counsel On the other hand, Carlton testi-
fied that if Cooper had followed his direction she would have gone to lunch about noon
instead of earlier as she testified , and that when he gave her the direction "that's when
the violence started . She literally went into a tantrum . . . . Completely incoherent.
with arms waving, voice exceptionally loud . . . . 11 Thus, according to Carlton, both
Cooper and Scott reacted similarly to simple directions which he gave to them
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be discharged. He inquired what had prompted her question, and she answered
that Scott had told her so. Carlton avoided a direct reply to her question and she
returned to work. About noon Carlton discharged her. He testified that during
that morning he was told by Levine that a strike would occur that afternoon, and,
knowing that his products are of a "delicate nature" and that he should not risk
"possible sabotage," he therefore decided to advance the hour of Cooper's discharge
from the end of the workday to midday. Levine had informed Carlton correctly.
That afternoon picketing began, and about one-half of the remaining employees
ceased work. The picketing ended on July 16, however, and, insofar as appears,
all employees who had ceased work because of the picketing then returned to work.
C. Interference, restraint, and coercion
I find that the Respondent violated Section 8(a)(1) by interrogating employees
concerning whether they had signed union cards; by inquiring as to the identity of
the leader or leaders of the organizational activity; by threatening to discharge the
leaders, including Scott specifically; by canceling employees' vacations; by threaten-
ing to cancel Christmas bonuses; and by arranging with Levine that the latter report
to the Respondent on a union meeting. On the other hand, I dispose of in foot-
notes, adversely to the General Counsel. his contentions concerning the Respond-
ent's having given a vacation to Daniel Scorsolini 10 and the Respondent's withhold-
ing of a pay increase due to Leila Gantt."
D. Conclusions concerning the layoffs of July 11
I conclude that Bradley, Cunningham, and Powell were laid off in violation of
Section 8(a)(3) and (1). My reasons are: First, Carlton's hostility to the union
activities, summarized in subsection C above. Second, my finding that Carlton
withdrew work from employees, thereby creating a pretext for the layoffs. In this
connection, although I have fonud that Carlton's shipments of finished products were
unusually low at the time, there had been no earlier layoffs under any circumstances.
Third, when business improved, as it did shortly, Bradley and Cunningham were
not recalled, but new employees were hired.12 Fourth, all of Carlton's employees,
when hired, were inexperienced in his types of work They obtained their experi-
10 We have seen that on July 10 the Respondent said that he would not give vacations to
employees who were entitled to them The General Counsel alleges that Scorsohni was not
entitled to a vacation but that Carlton gave one to him in order to induce him to abandon
his union activity. Scorsolini appears to have signed a union card, but he did not cease
work during the picketing He had been hired during December 1961 His name was not
included on the list, posted before union activity began, of employees who were entitled to
vacations. On or about July 16, Carlton said that he would give vacations to those per-
sons named on the list who still were at work Carlton also gave a 3-day vacation to
Scorsolini The General Counsel called Scorsolini as it witness to establish this alleged
unfair labor practice The testimony need not be detailed It suffices to say that Scorsolini
repudiated portions of an affidavit which he had given to the General Counsel, that
Scorsolini testified that upon being hired he had been told by Foreman Bauman that he
would receive a vacation after 6 months' employment, that Scorsolini testified also that
he did not discuss with Carlton the subject of a vacation for himself, and that other wit-
nesses for the Geneial Counsel testified that employees were not required to work as long
as a year in order to receive vacations Under the circumstances, I find that this allega-
tion of the complaint is not supported by the evidence.
11 Gantt testified for the General Counsel, without contradiction, that after her initial
6 months' employment she received a wage increase on January 1, 1962, that a second in-
crease was due her on July 1, 1962, that she did not receive it during that month, that
after Foi eman Bauman returned from his vacation on July 16 he volunteered to her, with-
out any elaboration, that he had not forgotten her and that she would receive an increase
"as soon as everything was over with," and that she received the increase during August.
I conclude that this testimony will not support the allegation. If Gantt was due an in-
crease on July 1, it surely was not withheld from her on that date because of the union
activity That activity did not begin until July 9. Moreover, I cannot read into
Bauman's words, " as soon as everything was over with," a meaning that the increase,
already having been withheld for unknown reasons, was being withheld longer because of
the union activities.
hi The Respondent's contention that he sought to recall Bradley is discussed below in
The Remedy His contention that he did not recall Cunningham because she was in-
efficient is not supported by an affidavit which he gave to the General Counsel As dis-
cussed in The Remedy, Cunningham is entitled to little backpay
CELLO-TAK COMPANY 303
ence in his plant. Bradley was experienced at various tasks and, as Carlton acknowl-
edged, she was capable. But two employees of less seniority and experience than
Bradley, Veronica (surname undisclosed) and Annie Brown, the only two employees
who had not signed union cards, were retained in preference to Bradley.13 Fifth,
with particular reference to Powell, who was laid off temporarily after her press
became inoperative, there had been no earlier layoff of a press operator whose press
broke down, and the Respondent told Cooper that Powell, Bradley, and Cunning-
ham "signed for the union ... [and] this is what they get."
E. Conclusions concerning the discharges of July 13
I find that Scott and Cooper were discharged in violation of Section 8(a)(3) and
(1). First, both Scott and Cooper were capable employees. In fact, Scott was
versatile in a number of the plant's operations and her abilities were recognized by
Carlton. About the first of 1962 she had resigned because of her pregnancy. About
April, following the birth, Carlton asked her to return to work. As he testified,
when she was rehired she "took charge of the distribution of work to the various
waxing machines and the silk screen, and also did part of the work in picking orders
[to be filled], checking, shipping, and so forth." Second, Carlton strongly opposed
the union activities and on July 10 he threatened to lay off Scott when he learned
that she had brought union cards into the plant and had obtained employees' signa-
tures thereto. Third, I cannot credit Carlton's version of the conduct of either
of the employees when he engaged in disputes with them on July 12, nor do I be-
lieve his testimony that he assigned Scott to handle the cartons because there was
no other work for her to do. Fourth, I am impressed by Cooper's testimony that
Carlton said to her that he was treating employees differently because they had signed
union cards, and I am satisfied that Carlton sought to provoke incidents with
Cooper and Scott which would furnish him excuses to discharge them. Fifth, of
the approximately 14 production employees, all but 2, Veronica and Brown, signed
union cards. Those two did not strike during the picketing, nor did three who
signed cards, Levine, Lovett, and Scorsolini.14 Of the remaining approximately
nine employees who did not abandon their adherence to the Union, three were laid
off and two were discharged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the
operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that he cease and desist therefrom and that he take certain
affirmative action designed to effectuate the policies of the Act. With respect to
the layoffs of Powell, Cunningham, and Bradley on July 11, we have seen that
Powell was reinstated shortly thereafter when her press had been repaired. Con-
sequently, I shall not recommend that she be offered reinstatement, and the period
of her backpay shall be the few days between July 11 and the date of her reinstate-
ment. We have seen too that Cunningham had been told by Carlton to return to
work on July 12, but that she did not do so. I shall recommend that she be offered
reinstatement, but that her backpay be only for the portion of July 11 which she
did not work. Turning to Bradley, the Respondent asserts that he should not be
required to give her backpay because he sought to reinstate her. On July 23, the
Respondent hired Bradley's sister, Magnolia Davis. On two occasions shortly
thereafter Carlton asked Davis the whereabouts of Bradley, saying that he would
like to reemploy her. Bradley had left town, however, and Davis was unable to
tell Carlton her whereabouts. About August 1, Foreman Bauman telephoned the
employment agency which had referred both Bradley and Davis, inquiring as to
Bradley's whereabouts and saying that the Respondent would reemploy her. Bau-
man was told that Bradley was out of town. By August 6, however, Bradley had
returned and had learned from her sister of Carlton's remarks. Bradley telephoned
"At the time of the layoffs, Veronica had worked only about 1 month. Cunningham
had more seniority than Veronica but less than Brown.
11 On July 12 the Respondent hired Clifton Brown as a porter. It does not appear that
Brown signed a union card. He did not cease work during the picketing.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant and talked with Bauman, explaining that Carlton had spoken to her sister
about putting her back to work, but Bauman replied that "work was still slow"
and that he would call her whenever her services might be needed. Under these cir-
cumstances, Bradley has not been offered reinstatement and she is entitled to full
backpay.
With respect to the two dischargees, Scott and Cooper, on August 9 Carlton wrote
to each of them as follows:
Since your termination for insubordination, I have been requested to re-
consider my decision. In the light of the request made in your behalf, I have
decided to offer you probationary reinstatement and ask you to report to work
on Monday, August 13, 1962.
It is understood that any further repetition of your conduct will be viewed
with the most serious concern.
Neither Scott nor Cooper accepted the offer of reinstatement. In my opinion, the
letters did not constitute unconditional offers of full reinstatement to which the dis-
chargees were entitled, and those employees, by rejecting the offers, did not forfeit
their rights to a Board Order requiring the Respondent to make to them proper
offers of reinstatement and backpay. In summary, I shall recommend that the
Respondent offer Scott, Cooper, Bradley, and Cunningham immediate and full
reinstatement to their former or substantially equivalent positions (The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827), without prejudice to their seniority or other rights or privileges,15 and that
the Respondent make whole each of those four employees and Powell for any loss
of pay she may have suffered as a result of the discrimination against her, by pay-
ment to her of a sum of money equal to that which she normally would have
earned from the date of the discrimination against her to the date of a proper offer
of reinstatement, 16 less her net earnings (Crossett Lumber Co., 8 NLRB 440, 497-
498) during said period, the payment to be computed on a quarterly basis in the
manner established in N L R.B v. Seven-Up Bottling Company of Miami, Inc,
344 U.S. 344, with interest at 6 percent per annum to be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I shall recommend also
that the Respondent preserve and, upon request, make available to the Board. or its
agents, 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 backpay and the rights to reinstatement under the terms
of these Recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section N.L R B v. Express Pub-
lishing Co.. 312 U S. 426; N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
3. The allegations of the complaint that the Respondent engaged in unfair labor
practices by granting a vacation to Daniel Scorsolini and by withholding a pay
increase from Leila Gantt have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
15 Scott and Cooper were entitled to vacations in 1962. Their names were on the vaca-
tion list which was posted before union activity began
10 As recited, Cunningham's backpay shall be confined to the portion of July 11 on which
she did not work , Powell's backpay shall terminate as of the date she was reinstated
CELLO-TAK COMPANY 305
Harvey Carlton, d/b/a Cello-Tak Company, his agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local 142, Aluminum, Metal Alloys, Aircraft
Components and Allied Trades, Coopers International Union of North America,
AFL-CIO, or any other labor organization of his employees, by laying off or dis-
charging any of his employees because of their union or concerted activities, or in
any other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Interrogating and threatening employees concerning union activities.
(c) Canceling employees' benefits because they engage in union activities.
(d) Participating in any arrangement with an employee whereby the latter would
report to the Respondent concerning a union meeting.
(e) In any other manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer Hilda Scott, Dolly Cooper, Pinkie Bradley, and Louise Cunningham
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights or privileges.
(b) Make whole Grace Powell and the four employees named immediately above,
in the manner set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll and other records as set forth in the section of
the Intermediate Report entitled "The Remedy."
(d) Post at its place of business at Island Park, New York, copies of the attached
notice marked "Appendix." 17 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the Respondent,
be posted by him immediately upon receipt thereof, and be maintained by him
for at least 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply
herewith.18
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondent engaged in unfair labor practices by granting a vacation to
Daniel Scorsolini and by withholding a pay increase from Leila Gantt.
17 If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals,
the words "A Decree of a United States Court of Appeals, Enforcing an Order of" shall
be inserted immediately following "As Ordered ,by."
is If this Recommended Order should be adopted by the Board, this provision shall be
modified to read* "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL NOT lay off or discharge any of our employees because they engage
in union activities.
WE WILL NOT question you or threaten you about your union membership
or activities.
WE WILL NOT cancel any benefits of employees because they engage in union
activities.
WE WILL NOT arrange with any employee for the employee to report to
us about your union meetings.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in
union activities, or not to join a union and not to engage in such activities.
WE WILL offer Hilda Scott, Dolly Cooper, Pinkie Bradley, and Louise Cun-
ningham reinstatement to their former jobs without loss of any rights, and we
will give backpay to those four employees and to Grace Powell to cover the
pay they lost when we discharged them or laid them off.
HARVEY CARLTON, D/B/A
CELLO-TAK COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(HARVEY CARLTON)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Labor
Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New
York, New York, 10022, Telephone No. Plaza 1-5500.
Hurd Corporation and Baltimore Building and Construction
Trades Council, AFL-CIO
William Puncke , George Loedisch , and John Connolley , Partners,
t/a Maryland City Fabricators and Suppliers and Baltimore
Building and Construction Trades Council , AFL-CIO
Maryland City Corporation and Baltimore Building and Con-
struction Trades Council , AFL-CIO
Krupnik Brothers , Inc. and Baltimore Building and Construc-
tion Trades Council , AFL-CIO. Cases Nos. 5-CA-2158, 5-CA-
2159, 5-CA-2186, and 5-CA-2187. Jwae 28, 1963
DECISION AND ORDER
On April 4, 1963, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter Respondents filed exceptions to the In-
termediate Report and a supporting brief.
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 [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
143 NLRB No. 29.