Chicago Perforating Co.

National Labor Relations Board - Board Decisions

Jun 22, 1964

147 N.L.R.B. 583 (N.L.R.B. 1964)

CHICAGO PERFORATING COMPANY 583
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.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City , Missouri , Telephone No. Balti-
more 1-7000, Extension 731, if they have any questions concerning this notice or
compliance with its provisions.
Chicago Perforating Company and Amalgamated Industrial
Union, Local No. 44. Case No. 13-CA-.5746. June 22, 1.961
DECISION AND ORDER
On March 6, 1964, Trial Examiner Stanley Gilbert issued his De-
cision i 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 attached Decision. He further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, both the Respondent and the
General Counsel filed exceptions to the Decision and supporting briefs.
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 McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Chicago
Perforating Company, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
and the complaint with respect to any alleged unfair labor practices
other than those found by the Trial Examiner is hereby dismissed.
1 In the listing of counsel appearing for the parties in the Trial Examiner' s Decision,
the Union is inadvertently designated as the "Respondent Union." The Union is, of
course, the Charging Party.
2In adopting the Trial Examiner 's finding that Respondent had knowledge of Hubbard's
organizational activities , Member Jenkins finds it unnecessary to, and he does not, rely
upon the relative smallness of Respondent ' s operations.
147 NLRB No. 75.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge filed July 17, 1963, as amended August 12, 1963, by the Amalgamated
Industrial Union, Local #44 (hereinafter referred to as the Union) the complaint
herein was issued September 10, 1963. The complaint alleges, in essence, that the
Chicago Perforating Company (hereinafter referred to as the Company or Respond-
ent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, by interrogating its employees concerning their union activities, by threaten-
ing employees with reprisals because of their union activities, by discharging Wil-
liam Hubbard because of his union activities, and by laying off James R. Jones,
Willie Williams, and Walter Sadowski because of their union activities., In its
answer Respondent denied said allegations.
Pursuant to due notice a hearing was held in this matter in Chicago, Illinois, on
August 30 and 31 and November 1, 1963, before Trial Examiner Stanley Gilbert.
At the close of the hearing, oral argument was waived. Within the time designated
therefor, briefs were submitted by General Counsel and Respondent.
Upon the entire record herein and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation with its principal office and place of business
in Chicago, Illinois, is engaged in the manufacture and sale of perforated screening.
During the calendar year 1962, a representative period, Respondent, in the course
and conduct of its business operations, manufactured, sold, and distributed products
valued in excess of $300,000, of which products valued in excess of $200,000 were
shipped from its aforesaid place of business directly to States of the United States
other than the State of Illinois.
As is conceded by Respondent, it is now, and has been at all material times herein,
an employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, the Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The findings of fact set forth hereinbelow are not in dispute except in those in-
stances which are indicated.
A. Background Information and- Sequence of Events
James H. Finlay, Sr., is president of Respondent and owner of stock in the Com-
pany. William Dryzyga 2 is secretary of Respondent and also owner of stock in
the Company. James H. Finlay, Jr., is Respondent's sales manager and Joseph
Malinowski is a foreman. All of the above are conceded by Respondent to be su-
pervisors within the meaning of the Act and agents of the Company.
On May 18, 1963, William Hubbard, then an employee of Respondent, contacted
Frank Jur, president of the Union, and stated to him that he and his fellow em-
ployees were dissatisfied with their working conditions and desired to be represented
by the Union. Jur gave him authorization cards and explained that it would be
necessary to determine the number of employees who felt they wanted union repre-
sentation by obtaining their signatures on the cards. Hubbard testified that the next
day he told some of the other employees that he had the cards and explained the
purpose thereof. He further testified that he distributed cards to six employees and
also gave cards to two employees for distribution. In all, he received 10 or 11 signed
1 The complaint was amended at the start of the -hearing to make minor changes in cer-
tain of the dates alleged in paragraphs Nos. 6 and 7 thereof.
2 There Is confusion in the record with respect to the correct spelling of this name.
This spelling will be used throughout the Decision. There will be, I am sure, no confusion
as to the person referred to, no matter what spelling appears in the record.
CHICAGO PERFORATING COMPANY 585
cards from the employees. He also testified that James Jones, one of the employees
to whom he gave cards for distribution, returned signed cards for himself and two
others.
On May 22, 1963, Jur met with 8 or 10 of the employees and on the following day
he distributed handbills and authorization cards in front of the plant. On May 27,
Jur called the plant and spoke to Dryzyga. He stated to Dryzyga that the Union
represented a majority of the employees in the plant and requested a meeting with
management. Dryzyga indicated that he did not know whether the claim of majority
representation was well-founded and that he would have to consult his attorney.
Thereafter, Dryzyga, Finlay, Senior, and Finlay, Junior, interrogated employees as
to whether they had signed cards for the Union. The details with respect to the
interrogation are set forth hereinbelow.
Also on May 27, the Union filed a petition with the Board for an election. On
June 4 and 19, Jur held meetings both of which were attended by approximately
15 of Respondent's employees.3 On June 27, an election was held, at which 15 of
the 18 employees (in the unit which the Union sought to represent) voted for the
Union, and, on July 8, the Union was certified by the Board as the exclusive bar-
gaining representative for the said unit. The tally of votes, however, was announced
on the day of the election, June 27. Willie Williams and James Jones were laid off
on June 28, Hubbard was discharged on July 3, and Walter Sadowski was laid off
on July 5.
1. The Interrogation
Respondent admits that representatives of management did interrogate its em-
ployees as to whether they had signed union cards, but contends that it was solely
for the purpose of determining whether the Union's claim of majority representation
was found on fact, and that its conduct was lawful under the Blue Flash doctrine.4
The General Counsel contends that the interrogation conducted by Respondent did
not meet the criteria of the line of cases following the Blue Flash doctrine but, on
the contrary, was of a coercive character.
Five of the employees testified as to details of instances of interrogation; however,
the record indicates that a substantial proportion of the employees were interrogated
on or about May 27 or May 28.
Hubbard testified that Finlay, Senior, came to his work station and asked, "Did
you sign one of those union cards?" that he replied that he had not; that Finlay
asked him whether they had had a union where he had previously worked; that
he again replied in the negative, and that Finlay, Senior, stated, "Good for you."
Ettore Bartolomei testified that Finlay, Junior, came to his work station and asked
him if he had signed a union card and when he replied that he had, Finlay, Junior,
walked away. Willie Williams testified that Finlay, Junior, came to his work station
and asked him, "Did you sign up for the Union," and that he told him, "I never
worked for a union , so I wouldn't know the value of it." Finlay, Junior, asked
him if they had had a union at the place where he formerly worked and he responded
that he did not know. Lorris Robinson testified as follows as to a conversation with
Dryzyga at his (Robinson's) work station:
Well, he asked me if I did sign a card for the Union, and I told him yes, and
he asked me why, and-I can't remember exactly all the words that were used
at the particular time, but I remember telling him that the majority thought
they needed the Union so I went along with the majority.
And he did mention to me, he said that, "Well, if everybody else would jump
in the lake, would you jump in there with them?"
So, I repeated, "It depends upon what they jump in there for." And any
other conversation, I don't recall, any of the words I said after that I couldn't
recall.
Q. Do you remember anything that was said concerning a Union at any pre-
vious employer you may have worked at?
A. Oh, yes. I do remember that he asked me if we had a Union at the last
place I worked, and I told him, "No, but we did need one there," and I believe
he stated after that, "Well, we don't need one here."
s Malinowski, a foreman, also attended the meetings; however, it was without any
objection.
'In Blue Flash Empress, Inc., 109 NLRB 591, .the Board repudiated the doctrine that
interrogation per se is unlawful and held in effect that the test is "whether under all the
circumstances the interrogation reasonably tends to restrain or interfere with the em-
ployees in the exercise of rights guaranteed by the Act."
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sadowski testified as follows to conversation with Dryzyga and Finlay, Junior, at
his (Sadowski's) work station:
Q. Now, will you please tell the Trial Examiner what Mr. Dryzyga said to you.
A. Well, he came over to me and he asked me if I signed the card. I said
I did. He looked at me and he said, "Why?" I told him, "Bill, there's a few
reasons why I did sign the card. To begin with, I'm working here about a year
and a half, and I'm still getting $1.85 an hour. You hired some new men, and
they had no experience whatsoever in that line of work, and you paid them $2.00
an hour, to start them off at $2.00 an hour," and I said, "that's one reason."
I told him, and he looked at me and he said, "Well, if you was 30 years old
instead of 55, you would be getting $2.00 an hour."
I said, "In other words, my age is the only reason that is keeping me from
getting up in the two-dollar bracket?"
Well, he wouldn't answer that one. He walked away and then he came back
again and he asked me, he said, "What do you think the Union is going to do
for you?" I said, `Bill, that's up to me to find out what the Union will do for
me."
I said, "To begin with, I've been a union member for about 15 years."
I said, "The place was disorganized after the union came in, but after the
Union was in about a year or so, it's a wonderful place to work."
I said, "I only hope the same thing will happen in this plant."
He said, "Well, if the union gets in, we'll see if the union will get you a job."
I looked at him kind of funny and he didn't answer any more. He walked
away from the machine, Mr. Finlay, Jr. and Sr. came down and Bill talked to
them. He pointed me out and said, "There's one of the guys that signed the
card."
So, Finlay, Jr. came over with a pad and pencil to me and he asked me if
I signed the card, and I says, "I did."
The above testimony with respect to the incidents of interrogation was uncon-
tradicted. While it may have very well been true that Respondent by the interroga-
tion of its employees was seeking to determine whether the Union did in fact
represent a majority , nevertheless its interrogation did have a coercive effect , in view
of the statements made by the interrogators indicating hostility toward the Union
and in the context of other statements which I find hereinbelow to have constituted
threats of reprisal for union activity. The statement made to Hubbard by Finlay,
Senior ("good for you") indicating his approval of Hubbard's denial that he had
signed a union card, the questioning of several of the employees as to whether there
was a union in the shop in which they had previously worked, Dryzyga's statement
to Robinson about jumping in the lake, and his argument with Sadowski about the
value of a union , coupled with the statement , "Well, if the Union gets in , we'll see
if the Union gets you a job," not only indicated Respondent's hostility toward the
Union but exceeded the limits of lawful interrogation established by the Blue Flash
line of cases. Moreover , I am of the opinion that the above -quoted statement made
to Sadowski constituted a thinly veiled threat of loss of his job because of his ad-
herence to the Union, in further violation of Section 8(a)(1) of the Act.
2. Threats
In addition to the above threat made to Sadowski by Dryzyga, there is testimony
with respect to other statements made by him to Hubbard , Williams, James Knox,
and Jur . Hubbard testified that the day after the election , he came to work late
(having reported to Malinowski the previous day that he would be doing so) and
that Dryzyga stated to him:
You've been here long enough to know what time we start. We start at eight
o'clock in the morning , and I am not going to have any more of your effing off
over there in the corner, now that you got your damn union in.
It is my opinion that this statement implied that the Respondent intended to exact
reprisals against the employees because they had elected to have a union represent
them.
Willie Williams testified as follows to a conversation he had with Dryzyga a week
or so before the election:
Well, we talked about working conditions . I was asking him about the stand-
ing of my job-I mean , about having a regular job . What was my chances
CHICAGO PERFORATING COMPANY 587
for having a regular job, because I explained to him that I wanted a day job,
so he says, "Well, I can't make no promises until after I see what you guys are
going to do about this union," and he says, "But, if the union comes in, if the
guys want to put my back against the wall, then the hell'with them."
He also testified that the day following the election Dryzyga made the following state-
ment to him and a fellow employee, James Jones: "He says' that there would be no
standing around, he said `you guys are union men, and there is going to be some
changes made around here now.' " Both of said statements, to my mind, constituted
threats of reprisal for employees' adherence to the Union.
Sadowski testified that he overheard Dryzyga say to James Knox on or about
May 29, shortly after the above-mentioned interrogation of employees, "If the boys
get a nickel now with this union in, it will be over my dead body." By this statement
Dryzyga not only indicated that from its interrogation of employees Respondent had
ascertained that the Union's claim of majority representation was well-founded, but
also implied that the Respondent would withhold any further increase in economic
benefits to the employees because of their adherence to the Union.
I credit the above testimony with respect to the statements attributed to Dryzyga
based on my observation of the witnesses. It should be noted that, although Dryzyga
was not questioned specifically about the said various statements, he did testify that he
did not make any statements to employees indicating that there would be some con-
sequences resulting from their adherence to the Union. I found this denial far
from convincing.
There is testimony by Jur, the union president, with respect to a statement made
to him by Dryzyga after the results of the election had been announced ("You've
got yourself a dead horse"). However, I find the statement to be too ambiguous to
permit me to draw an inference as to what it was reasonably intended to mean.
Although General Counsel indicated in the course of the hearing that he believed
it constituted a threat, he did not argue in his brief that such a finding should be
made with respect thereto.
3. Hubbard's Discharge
Near the end of the workday on July 3, 1963, 1 week after the election, Hubbard
was notified of his discharge. He had been in Respondent's employ since Decem-
ber 1962. Dryzyga handed him a letter with his check in it and said, according
to Hubbard's testimony as to the incident (substantially corroborated by Dryzyga),
"Here, take this, take everything you have here so that you won't ever have to come
back, and get the hell out. We don't want the likes of you around here any more."
The discharge occurred in the middle of the pay period. The letter, a copy of which
was sent to the Union, recited the reasons for the discharge action, in essence, un-
-satisfactory work performance, excessive absenteeism, and spoilage of material.5
The General Counsel contends that Hubbard was discharged in retaliation for his
prominent role in bringing the Union into the plant. It appears reasonable to infer
that Respondent had knowledge of Hubbard's efforts in behalf of the Union. This is
predicated on the smallness of the plant (18 employees in the unit) and the fact that
there was no apparent attempt to conceal union activities and adherence, as indicated
by employees' willingness to admit that they had signed union cards when inter-
rogated (except for Hubbard and. probably Williams). Moreover, Respondent's
knowledge was indicated by a statement Dryzyga made to Jur on the day of the elec-
5 The letter which was signed by Finlay, Senior, read as follows:
I have just received a very serious complaint from one of our most valued customers
on unsatisfactory work done by you on stainless steel sheets involving a substantial
sum of money. I have reviewed your performance record and find that on your ma-
chine there has been excessive scrap and sub-standard performance over a considerable
period of time. I also And that you were once discharged for unsatisfactory perform-
ance on this machine, but as a result of your promises to Improve your work, you
were taken back and given another chance. Complaints have also come to me about
your irregular hours and excessive absenteeism which you have been guilty of In the
past. In addition to this, on my return to the plant yesterday, I found you had
ruined another plate of stainless steel as a result of sub -standard work.
Under the circumstances I have no alternative but to discharge you from this
company, effective 4:30 PM July 3, 1963.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Jur testified, without contradiction, that, just prior to the holding of the elec-
tion , he submitted Hubbard' s name as an observer for the Union, whereupon, Dryzyga
remarked, "You sure picked the right guy."
Respondent contends that Hubbard's discharge was for cause and was not discrimi-
natorily motivated. Finlay, Senior, and Dryzyga testified that they arrived at the
decision to discharge Hubbard after holding a series of discussions about him. In
testifying as to the reasons for the decision to discharge Hubbard, they indicated that
essentially it was based upon his substandard work performance, his excessive absen-
teeism, and his attitude.
Hubbard's job was that of a railroad press operator, there being three railroad
presses in the plant . A number of job tickets were introduced into evidence for
the purpose of showing that Hubbard took more time than did other operators for
the same job. These jobs ranged in length of time from about 2 to 26 hours. I am
not satisfied that an analysis of these job tickets would serve a substantial purpose.
I am of the opinion that similar comparisons could be made for the other railroad
press operators disclosing that each of them had taken more time on various jobs
than the others did for identical jobs. This appears to be more than just a mere
probability in view of the testimony of Malinowski, the foreman. He testified that
at various times Finlay, Senior, would come to him and question him as to why
so much time was spent on a particular job in comparison with the time for the same
job on another ticket. Upon questioning by the Trial Examiner, he testified that
in the period between March and June, Finlay spoke to him with regard to such
matters about a dozen times and that of the dozen times only two concerned work
done by Hubbard. Consequently, I am not satisfied that the job tickets are a
reliable basis for determining the speed of Hubbard's work. Dryzyga testified that
on April 19, he discharged Hubbard "because he wasn't giving us our work"; 6 that
Hubbard pleaded with him to have another chance because he had a new car and
"a baby that is sick"; and that he replied, "The machine is in the corner and I
have got to have that machine running and it is up to you." The following workday
Hubbard reported for work and there is no evidence that Dryzyga said anything fur-
ther to him. On rebuttal, Hubbard was questioned with respect to the incident, and,
while he denied that Dryzyga discharged him, he did testify that Dryzyga com-
plained that he was not producing enough work. His testimony continues:
I said Mr. Dryzyga, I am trying to give you quality work-before that, he
said you only got 4 plates in this whole evening. I said Mr. Dryzyga I am
trying to give you quality work, I am trying to give you the best I can with what
I have to work with.
And I said furthermore, you promised me a raise and you didn't give me that
either. When did I look forward to seeing it on my check. He said to me,
"Well, if I were you, I would look for me another job."
I said , "I am always looking for me another job, trying to better myself, be-
cause I am not satisfied with the way you are treating me." And he walked
away.
Therefore, it would appear that Respondent had complained about Hubbard's rate
of production. However, this was several months prior to his discharge. Further-
more, it is noted that the job tickets submitted to demonstrate the slowness of Hub-
bard's production with respect to jobs he did after the date of the incident do not
disclose substantial variations between Hubbard's time and that of other operators
doing identical jobs, and there is no evidence of complaints made to Hubbard sub-
sequent to April 19 about his rate of production.
Further testimony with respect to the substandard work performance of Hubbard
related to the spoilage of materials. The record demonstrates that it is not un-
common for a railroad press operator to make mistakes, and there is not a sufficient
basis disclosed in the record to draw an inference that Hubbard's mistakes were
substantially greater in number or seriousness than those of the other operators.
The discharge letter indicates that the discharge was precipitated by Hubbard's
mistakes . Although the Trial Examiner questioned both Finlay, Senior, and Dryzyga
at length to determine what precipitated the discharge action, neither clearly in-
9 Finlay, Senior, testified that Dryzyga reported this action to him, but placed it some-
time in June.
CHICAGO PERFORATING COMPANY 589
dicated this was so. Finlay, Senior, indicated that it was precipitated essentially by
Hubbard's absenteeism,7 and Dryzyga indicated it was Hubbard's low production .8
In order to show excessive absenteeism, Respondent introduced the payroll record
of William Hubbard which indicated a substantial amount of absenteeism and ir-
regularity in hours. There is no showing, however, of how Hubbard's record
7The pertinent testimony reads as follows:
Q. And then when did you arrive at a decision, actually arrive at the final decision
to discharge him?
A. I believe the second of July, sir.
Q. The second of July?
A. Yes, sir.
Q. Do you have any explanation of why you had this discussion and arrived at that
decision, at that particular time, instead of sometime earlier?
A. Well, we talked about It and then we looked up the foreman's records and his -
absenteeism.
Q. Well, why did you happen to start talking about it at that time? Was there
any particular reason why you started this discussion two or three days before his
discharge?
A. Well, customers' complaints.
Q. Well, what was-was there a particular customer's complaint that precipitated
this series of discussions?
A. Well, not with [without] repeating the complaints and the absenteeism and
spoiled material.
Q. No, what I'm asking, Mr. Finlay, is this:
Apparently somewhere around about June 30 or July 1, you started to discuss with
Mr. Dryzyga the question about Mr. Hubbard's retention In your employ. I'm asking
you how-do you have any explanation of why you started it at that time?
A. Yes, sir, because we, being a small shop and If we don't have operators on our
machines all the time, we can't stay in business. Those machines have got to be
going up and down.
Q. Well, that was true a month before that, too, wasn't it?
A. Yes, It was.
Q. Well, was there anything that occurred between-let's say, the end of May and
the end-or later, say, the beginning of June and the end of June, which might have-
which caused you to start discussing-
A. Well, it had been discussed before. It had been discussed long before. He was
fired once before, and he came back.
He was fired once before?
He was, sir.
And when was that, please?
Sometime in the early part of June, I believe.
And who made the decision to fire him at that time?
Mr. Dryzyga.
Did he consult you about it?
No, sir.
Well, how did you happen to know about it?
He told me.
Dryzyga told you?
Yes.
After he fired him, that he was going to fire him, or what?
After he fired him.
Q. And how long was he out of your employ?
A. He came back the following Monday, sir. That was on a Friday, and he came
back the following Monday.
Q. Who decided to reinstate him?.
A. Mr. Dryzyga.
Q. Did he consult you about that?
A. No, sir.
8 The following was Dryzyga's testimony in response to the question of what was said by
him and what was said by Finlay, Senior, in discussing Hubbard's discharge: "I am sure
I told Mr. Finely [Finlay] we would be better off without this man because he Is not doing
the Company any good. He is losing too much time on us and he is not turning out the
work that should be out of the machine. That is a big machine and it has to keep going."
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compared with that of the other operators . Moie important , the record discloses
that Hubbard followed the practice of obtaining permission from Malinowski for
his absences and that he was never warned with regard thereto until the day after
the election.
Further testimony with respect to the reason for his discharge referred to his
"attitude ." There was reference to an incident when Hubbard wrote in chalk on
his machine a demand of a raise which writing was later erased by Dryzyga. How-
ever, this incident occurred 4 or 5 months prior to the discharge and, considering
the remoteness in time and that it does not appear that he was censured or warned
about this conduct the incident could not reasonably have been a significant factor
in the decision to take discharge action. There was also reference in the testimony
to his singing and whistling as indicative of Hubbard 's poor attitude . According to
the testimony of Finlay, Senior, other employees engaged in such conduct but "not
to the extent that he did." I am convinced that neither the chalk-writing incident
nor Hubbard 's whistling and singing was of any significance in causing his discharge.
Moreover , there was no reference to his "attitude " in the letter notifying him thereof.
From my observation of their demeanor in testifying and from the content of their
testimony, I am convinced that the reasons described by Finlay, Senior, and Dryzyga
for their discharge of Hubbard were of a pretextual nature. This conclusion is
buttressed by the timing of the discharge a week after the election and in the middle
of a pay period, and by the bitterness exhibited by Dryzyga when notifying Hubbard
of his discharge . Dryzyga, himself, testified as follows when questioned as to why
he discharged Hubbard in the middle of the pay period : "I wanted him to get out of
the plant and didn't want to see him any more. I told him to that effect `take your
stuff and go, I don't want to see you any more .' " Such animosity is more consistent
with a discharge in retaliation for union activity than a discharge of an employee
with whose .performance management was dissatisfied . Furthermore , Hubbard testi-
fied without contradiction that his foreman , Malinowski , had on several occasions
complimented him on his work, and there is a singular paucity of testimony as to
warnings or complaints made to Hubbard by management.
Therefore , I conclude that Hubbard was discharged in retaliation for his activities
on behalf of the Union.
4. The Layoffs
Williams and Jones were laid off on June 28, the day after the election, and
Sadowski was laid off on July 5. General Counsel contends that they were laid off
because "of their union activities or such activities by other employees."
Williams' activity on behalf of the Union was limited to the attendance of a union
meeting, also attended by about 14 other employees. He was employed on May 23,
1963, apparently as a roller press man but worked only as a general laborer prior
to his layoff. Testimony on behalf of Respondent was to the effect that he had
been hired on a temporary basis for use during the 2-week vacation period start-
ing the last week in July. Although Williams denied that there was anything said
at the time of hiring that his job was to be of a temporary nature, he did testify
that about a week before the election he asked Dryzyga what his chances were for
having "a regular job." Williams had another job (at night) at the time. Williams
was recalled on July 22 and quit Respondent's employment on September 1.9 It is
noted that Williams was recalled 'approximately 3 weeks before the charge with
regard to him was filed in this proceeding.10 The issue with respect to Williams is
whether he was laid -off during the period from June 28 to July 22 for discriminatory
reasons. Dryzya testified with respect to the layoff of Williams that "Mr. Mavrovik
[an employee of many years who had been on sick leave for an extensive period]
was coming in the following week and I felt I didn't need him [Williams] for a week
or two and I could rehire him at any time." It appears that Mavrovik could not
have appropriately been utilized for the same job which Williams performed or was
capable of performing. Mavrovik was a railroad press man which required consid-
erably more skill than that of a roller press man, and it further appears that Williams
was at the time utilized only as a laborer rather than as a press man. Nevertheless,
I am not satisfied that it can be concluded that General Counsel has provided by a
6 He testified that he quit •because Dryzyga "stayed on his back" and was "needling
him." However , no testimony was elicited from him as to the details of such conduct on
Dryzyga's part and General Counsel stated that he did not consider that Williams' quitting
,was an issue in this case . There was no allegation in the complaint relating thereto and
I do not consider it was an issue litigated before me.
io The charge originally filed on July 17 was subsequently amended on August 12, 1963,
to include references to the layoffs of Jones, Williams , and Sadowski.
CHICAGO PERFORATING COMPANY 591
preponderance of the evidence that the reason for the layoff was a discriminatory
one. There is no showing why Williams should have been singled out for his
adherence to the Union. Fifteen of the eighteen employees had voted for the Union.
Furthermore , not only is .there no showing that Williams engaged in activity on
behalf of the Union , but, there is nothing to indicate that management suspected
him of more than voting for the Union . This, added to the fact that he was recalled
prior to the filing of a charge with respect to him , convinces me that the record
does not sustain General Counsel 's contention with respect to Williams' layoff.
Jones was hired as a laborer on September 21, 1962, and , according to Dryzyga,
engaged in the work of "painting machines and cleaning up the place." Dryzyga
explained his layoff as follows: "We were all through cleaning up the plant and
painted the last machine so we laid him off Friday, he was through , probably, a
couple of days before." There is no showing that this condition did not exist.
Jones was killed on October 4, 1963, while still on layoff status . Hubbard testified
that Jones aided him in distributing union authorization cards , that he received
from Jones signed cards of two other employees . I am not satisfied that there is a
sufficient basis demonstrated in the record to conclude that Respondent was aware
of any union activity on the part of Jones. Although I did infer knowledge on
the part of Respondent with respect to Hubbard's activity , it was far more extensive
than that of Jones, and there was evidence indicating that Respondent did have
knowledge of Hubbard 's activity (Dryzyga's statement to Jur that in selecting Hub-
bard as the union observer for the election , the "right guy" was named). Gen-
eral Counsel contends that the pretextual nature of Respondent 's reason for Jones'
layoff was demonstrated by the subsequent hiring of several new employees. It
appears, however, that none of the new employees was hired in the capacity of
laborer, but that they were all pressmen . Therefore , it is concluded that General
Counsel has not sustained the burden of proof as to the allegation of the discrimina-
tory layoff of Jones.
Sadowski had been hired as a laborer on January 6, 1962. In July 1962, he was
promoted to the classification of roller press man and at that time he received a raise.
In November 1962, he received another raise . ii Sadowski testified that at the time
of his layoff he operated a press "about 100 percent of the time ." On the other
hand, Dryzyga testified that Sadowski worked on the roller press only about 2 months.
This was corroborated by another employee, James Knox, who further testified that
Sadowski worked as a learner on the press next to his and did not succeed in learn-
ing to operate the machine . Dryzyga explained that the reason for the layoff of
Sadowski was because "we didn 't have anything for him to do."
Sadowski had not engaged in any union activity . However, there is uncon-
tradicted testimony as to a conversation he had with Dryzyga in which he explained
why he favored having a union and indicated that he had been a union man for
15 years. In the course of his conversation , it appears that Dryzyga said to him,
"Well if the Union gets in, we'll see if the Union will get you a job." Despite this
threat by Dryzyga and his knowledge of the many years that Sadowski had been'
a union man , I am not satisfied that it can be concluded that Sadowski was laid off
for discriminatory reasons. Although Sadowski did testify that he was working
as a press man 100 percent of the time at the time of his layoff, there is no corrobora-
tive evidence of this. On the other hand , Dryzyga's testimony that Sadowski was
not qualified as a press man was corroborated by Knox, who had been in a position
to observe Sadowski 's work on the press . No testimony was elicited to rebut this
testimony by Knox. Therefore , although he was classified as a pressman, I am
of the opinion that Sadowski was utilized by Respondent , in the main, as a laborer.
None of the new employees hired subsequent to the layoff was in the category of
laborer. I am not convinced that Respondent 's reason was merely pretextual in
nature. The record will not support a finding that Respondent did have a need
for Sadowski 's services at the time of or subsequent to the layoff . Therefore, I
conclude that the General Counsel has not established by a preponderance of the
evidence his contention that Sadowski was laid off for a discriminatory reason.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with . flhe operations . of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce, among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
ll At the time of his layoff his rate of pay was still within the range of wages paid to
laborers.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. In view of its violation
of Section 8(a) (3) of the Act, it would appear that the issuance of a broad order
is warranted.
Having found that Respondent discriminatorily discharged William Hubbard, I
shall recommend that it offer to him immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges.
It will be further recommended that Respondent make said Hubbard whole for any
loss of pay suffered by reason of the discrimination against him by payment to him
of a sum of money equal to that amount of wages he would have earned, but for said
discrimination , from the date to which he was paid after his discharge to the date
he is offered reinstatement, together with interest thereon , as provided below.
Isis Plumbing & Heating Co., 138 NLRB 716. The loss of pay shall be computed
in accordance with the formula and method prescribed by the Board in F . W. Wool-
worth Company , 90 NLRB 289 . The interest payable shall be computed at the rate
of 6 percent per annum on the amount due in each instance for each calendar
quarter (under the Woolworth formula ) beginning with the end of the first calendar
quarter and continuing for each succeeding calendar quarter until payment of such
amount is properly made.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent discharged William Hubbard , in violation of Section 8(a)(3) and
( 1) of the Act, because of his union activities.
4. By interrogating its employees as to their union adherence and threatening them
with economic reprisals because of it Respondent engaged in conduct constituting
interference , restraint, and coercion within the meaning of Section 8(a)(1) of the
Act.
5. The General Counsel has not proved by a preponderance of the evidence the
allegations of the discriminatory layoffs of Willie Williams , James Jones, and Walter
Sadowski.
RECOMMENDED ORDER
Upon the entire record in the case , and pursuant to Section 10(c) of the Act, as
amended , it is hereby ordered that Respondent, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging activities on behalf of , or membership in, the Union, or any
other labor organization , by discharging any of its employees , or in any other man-
ner discriminating against any employees or -applicant for employment in regard
to their hire or tenure of employment , or any term or condition thereof, because of
their union affiliation or activities.
(b) Unlawfully interrogating its employees as to their interest in, or activities on
behalf of, the Union , or any other labor organization.
(c) Threatening employees with economic reprisals because of their adherence to,
or activities on behalf of, the Union , or any other labor organization.
(d) In other manner interfering with , restraining , or coercing employees or ap-
plicants for employment in the exercise of their right to self -organization , to join
or assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing , to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer William Hubbard immediate and full reinstatement to his former or
substantially equivalent , position without prejudice to his seniority or other rights
and privileges.
CHICAGO PERFORATING COMPANY 593
(b) Make said Hubbard whole for losses suffered as a.result of the Respondent's
discrimination against him , together with interest thereon at 6 percent per annum,
as provided in "The Remedy ." It shall also, preserve and make available to the
Board or its agents, upon request , all payroll and other records relevant to a deter-
mination of the amount of backpay due under the terms of this Recommended Order.
(c) Post in conspicuous places at its plant in Chicago , Illinois, including all places
where notices to employees and applicants for employment are customarily posted,
copies of the attached notice as an Appendix . 12 Copies of said notice , to be furnished
by the Regional Director for the Thirteenth Region , shall, after being duly signed by
Respondent's representative , be posted by it immediately upon receipt thereof, and be
maintained by it for at least 60 consecutive days thereafter . Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(d) Notify said Regional Director in writing within 20 days from receipt of this
Decision what steps Respondent has taken to comply herewith.I3
The complaint is dismissed insofar as it relates to the layoffs of Willie Williams,
James Jones, and Walter Sadowski.
12 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
is In the event that this Recommended Order 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
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activity on behalf of , Amalga-
mated Industrial Union , Local #44, or any other labor organization, by
discriminating against our employees in regard to their hire or tenure of employ-
ment , or any term or condition of employment.
WE WILL NOT unlawfully interrogate our employees with respect to their in-
terests in, or activities on behalf of , said union , or any other labor organization.
WE WILL NOT threaten our employees with economic reprisals . because of
their adherence to, or activities on behalf of, said union , or any other' labor
organization.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist the above -named union or any other labor organization,
to bargain collectively through representatives of their own choosing , to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities.
WE WILL offer to William Hubbard reinstatement to his former, or substan-
tially equivalent , position , without prejudice to his seniority or other rights and
privileges , and we will make him whole for any loss of pay suffered as a result
of our discrimination against him.
All our employees are free to become or remain members of Amalgamated In-
dustrial Union , Local #44 , or of any other labor organization , or to refrain there-
from except to the extent such right may be affected by an agreement authorized
by Section 8(a) (3) of the National Labor Relations Act of 1947 , as amended.
CHICAGO PERFORATING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
756-236-65-vol. 147-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee , if presently serving in the-
Armed Forces of the United States, of his -right to full reinstatement upon applica -
tion 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.
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.
Employees may communicate directly with the Board 's Regional Office, Midland'
Building, 176 West Adams Street , Chicago , Illinois, Telephone No. Central 6-9660,.
if they have any question concerning this notice or compliance with its provisions.
Henry I. Siegel Co., Inc . and Amalgamated Clothing Workers
of America, AFL-CIO . Case No. 26-CA-1179. June 22, 1964
SUPPLEMENTAL DECISION AND ORDER
On February 18, 1963, the Board issued its Decision and Order in
this proceeding, 140 NLRB 1292, holding that the Respondent was not
required to include in its written contract with the Charging Union,,
herein called the Amalgamated, a provision setting out an understand-
ing that the enumerated piece rates for its pressers and stitchers and
incorporated a 121/2 percent incentive factor, and reciting the parties"
agreement that all piece rates for new or changed operations would
also incorporate the same factor. The Board found that the bar-
gaining contract between the Respondent and the Amalgamated, al-
though making no specific reference to the 121/2 percent factor, did
embody in article V and schedule A thereof, the understanding of the
parties that the factor had been and would continue to be used in
setting piece rates. The Board therefore dismissed the complaint,
rejecting the findings and conclusions of the Trial Examiner that the
Respondent had violated Section 8 (a) (5) and (1) by refusing to in-
clude an explicit reference to the incentive factor in the contract.
Thereafter, the Amalgamated petitioned the Court of Appeals for*
the Second Circuit for review of our Order, and on November 6, 1963,
the court held 1 that the reasons given in our Decision did not justify
dismissal of the complaint, and remanded the matter for further con-
sideration of two points : (1) whether the Amalgamated, by executing
a written contract which did not contain a provision as to the incen-
tive factor had waived its right to insist upon such a provision now,
and (2) what weight should be given to the fact that the 1961 con-
tract, over which the dispute arose, has now expired and has been re-
placed by another which also contains no explicit reference to the
inclusion of the incentive factor in determining piece rates. The Re-
spondent and the Amalgamated subsequently filed briefs with the
Board on the issues presented by the court's remand , and these have
been fully considered in our determination.
1 Amalgamated Clothing Workers of America , AFL-CIO v. N.L.R.B., 324 F. 2d 228.
147 NLRB No. 78.