Contract Battery Manufacturing Co.

National Labor Relations Board - Board Decisions

May 18, 1955

112 N.L.R.B. 765 (N.L.R.B. 1955)

CONTRACT BATTERY MANUFACTURING CO. 765
The instant case reflects as great a degree of common ownership as was
present in the Hot Shoppes case, in that one individual and his im-
mediate family own all of the 29 Orkin corporations, and a greater
degree of common control than was present in the Hot Shoppes case,
in that one individual is the president, treasurer, and a director of
each corporation, another individual is the secretary of each corpora-
tion, and four other individuals are vice-presidents and directors of
each corporation. Furthermore, there is additional evidence of inte-
gration of operations of the corporations, herein involved, which was
not present in the Hot Shoppes case. The record shows that one of
the 29 corporations Orkin Exterminating Company of Atlanta,
Georgia, is a purchasing and distribution company, which purchases
chemicals and other supplies, which it makes available to the other
"Orkin" corporations. Though the other corporations are free to pur-
chase supplies from other sources, it is evident that they rely on the
purchasing corporations for the economical purchase of supplies. The
Employer purchased over 55 percent of its supplies from the central
purchasing during 1954. The central purchasing corporation dis-
tributed over $194,000 worth of supplies to other "Orkin" corpora-
tions.
The lack of a common labor relations policy for all of the "Orkin"
corporations detracts no more from the integrated nature of their
operations than did a lack of a common labor relations policy detract
from the Board's conclusions in the Hot Shop pee case and in Youngs-
town Tent and Awning Company,' that the employers involved in
those cases together with their parent corporations constituted single
employers.
Accordingly, as the combined direct outflow of 29 "Orkin" corpora-
tions during 1954 was in excess of $250,000 I would assert jurisdic-
tion over the corporation herein involved.'
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
6 110 NLRB 835.
'Jonesboro Grain Drying Cooperative, supra.
Contract Battery Manufacturing Co. and International Union,
United Automobile , Aircraft & Agricultural Implement Work-
ers of America, CIO. Case No. 10-CA-2029. May 18,1955
DECISION AND ORDER
On December 9, 1954, the Trial Examiner Sidney Lindner issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent, Contract Battery Manufacturing Co., had en-
112 NLRB No. 109.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in and was engaging in certain unfair labor practices within
the meaning of Section 8 (a) (1) and ( 3) of the Act and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter , the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, ' the exceptions and brief , and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Contract Battery Manufacturing Co.,
Tampa, Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in surveillance of its employees regarding their
union activities or their meetings.
(b) Threatening its employees with discontinuance of Saturday
work or overtime work and with layoffs.
(c) Interrogating employees concerning their membership in, or
activities on behalf of, International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, CIO, or any
other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(d) Discouraging membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
CIO, or any other labor organization of its employees by discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment.
(e) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form,
join, or assist International Union, United Automobile, Aircraft &
Agricultural Implement Workers of America, CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
1 The Respondent has excepted to the credibility findings of the Trial Examiner. We
find no reason to overrule the Trial Examiner's resolutions of credibility, however, as the
clear preponderance of all the relevant evidence does not convince us that his resolutions
were incorrect American Snuff Company, 109 NLRB 885.
2 The Respondent ' s request for oral argument is hereby denied as the record , including
the exceptions and the brief , adequately presents the issues and the positions of the parties.
CONTRACT BATTERY MANUFACTURING CO. 767
from any and all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8
(a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Price Dry immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) 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 amount of back pay due under the terms of
this Order.
(c) Post at its plant in Tampa, Florida, copies of the notice at-
tached hereto and marked "Appendix."' Copies of the said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof and be maintained by it for sixty (60) consecutive
days thereafter in conspicuous places including all places where notices
are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other materials.
(d) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
3In the event that this Ordei is enforced by decree of a United States Couit of Appeals,
there shall be substituted for the words "Pursuant to it Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Entoicing an Order"
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
AVE WILL NOT interrogate our employees regarding their union
membership or activities, in a manner constituting interference,
restraint, or' coercion in violation of Section 8 (a) (1) of the
Act.
WE WILL NOT threaten our employees with reprisals for engag-
ing in union activities.
WE WILL NOT engage in surveillance of our employees of their
union meetings.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft & Agricultural Implement workers
of America, CIO, or in any other labor organization of our em-
ployees by discriminating against any employees with respect
to their hire or tenure of employment or any term or condition
of employment except to the extent permitted by Section 8 (a)
(3) of the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join the aforesaid labor organiza-
tion or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer Price Dry immediate and full reinstatement to
his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges and make him
whole for any loss of pay suffered as a result of the discrimina-
tion against him.
CONTRACT BATTERY MANUFACTURING CO.,
Employer.
Dated---------------- By-------------------------------------
V (Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by International Union, United Automobile, Aircraft &
Agricultural Implement Workers of America, CIO, herein referred to as the Union,
the General Counsel of the National Labor Relations Board by the Regional Di-
rector for the Tenth Region (Atlanta, Georgia), issued a complaint dated July 27,
1954, against Contract Battery Manufacturing Co., hereinafter called the Respond-
ent, alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, 29 USC Sub 1, Sec. 141, et seq hereinafter referred to as. the Act
With respect to the unfair labor practices the complaint alleged in substance: (1)
That Respondent discharged Price Dry on or about June 1, 1954, because of his
membership in and activity on behalf of the Union; and (2) that Respondent by cer-
tain named supervisors and foremen interrogated its employees concerning their
union affiliation and activities, threatened its employees with reduction of the
workweek if the Union was successful in its organizational campaign, and engaged
in surveillance to find out the "ringleader" in the union activities of the employees
and to determine the extent of such activity.
The Respondent 's answer duly filed admitted certain allegations of the complaint
but denied the commission of any unfair labor practices.
CONTRACT BATTERY MANUFACTURING CO. 769
Pursuant to notice, a hearing was held in Tampa, Florida, on September 9 and
10, 1954, before the duly designated Trial Examiner. The General Counsel and
the Respondent were represented by counsel, the Union by its representative. All
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The parties were given
the opportunity to present oral argument before the Trial Examiner and to file
briefs, proposed findings of fact, and conclusions of law. A brief together with
proposed findings of fact and conclusions of law has been received from counsel
for the Respondent and has been duly considered.
Upon the entire record in the case, and from his observation of the demeanor of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that Contract Battery Manufacturing
Co. is a Florida corporation engaged at its place of business at Tampa, Florida, in
the manufacture of electric storage batteries. In the conduct of its business opera-
tions during the past year, which period is representative of all times material herein,
the Respondent sold and shipped finished products valued in excess of $100,000 to
customers outside the State of Florida. I find that the Respondent is engaged in
commerce within the definition of the Act.
It. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, is a labor organization admitting to membership em-
ployees of the Respondent.
III. THE UNFAIR PRACTICES
A. The inception of union organization; interference, restraint, and coercion
In May 1954 the Union sent letters espousing its cause together with membership
application cards to the Respondent's employees in an attempt to generate interest in
its organization.
Among the employees who returned signed membership application cards to the
Atlanta, Georgia, office of the Union was Price Dry, whose alleged discriminatory
discharge will be taken up in detail hereinafter.
Shortly after receipt of the above-noted union letters, the Respondent started to
make inquiry among the employees regarding them. Thus, employee Elbert Win-
gard testified that "along when [they] first started getting letters" he was approached
by Foreman Elijah Gray, while working on the assembly line, and asked if he re-
ceived "a Union letter." Upon Wingard's negative reply, Gray asked what he thought
of the Union. Wingard said he thought "It was a pretty good thing." Gray com-
mented that he did not think it was worth "a damn."
Pleasie Hinson, an employee of Respondent for 5 years, testified that on the morn-
ing that Gray interrogated Wingard about the union letter, Gray also asked him if he
received a letter. Hinson replied that he did, even though he was unaware what let-
ter Gray was referring to at the time. Nothing further was said until the afternoon,
when Gray again came to the assembly line and mentioned that most of the em-
ployees had already received letters. Hinson asked Gray what letter he was inquir-
ing about and Gray said "A Union letter."
Bernard Wallace was in the Respondent's employ for a short time in 1953, laid off,
and recalled in May 1954. He testified that while working on the assembly line about
11/2 weeks after his recall, Gray inquired of the men on the assembly line, including
himself, if they had received letters and cards from the Union. Wallace told Gray that
he had been recently recalled to work and had not received one Gray inquired what
Wallace thought of the Union, remarking that he (Gray) would not work in a union
shop. Wallace told Gray that he did not "go too much on a union" because they
caused strikes and trouble.
Gray categorically denied that he at any time discussed union activities or a union
with any of the employees around the plant The Respondent's answer, however,
admits that Gray engaged in casual conversation with employees regarding the Union's
membership solicitation. Gray did not impress me as a reliable witness. I do not
credit his denial and find that he engaged in the conversations and interrogation as
testified to by Wingard, Hinson, and Wallace.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace testified that several days after the above-noted conversation with Gray,
he was instructed by Clifford Carswell, foreman of Respondent's pasting department,
to report on the 3 p. in. to 11 p. m. shift to work on the grid machine. Upon report-
ing on the late shift, Wallace stated he was interviewed by Ralph Cherington, plant
superintendent, who asked for a history of his employment for the past 10 years
Cherington inquired if the places he had worked in were union shops. Wallace replied
they all were. Cherington told Wallace that he wanted him to work in the back end
of the plant to see whether he could find out which employees working there were
the ringleaders of the Union, mentioning the names of employees Smith, Whitehead,
and Dry. Cherington also said he did not want a union in the plant and would dis-
charge the ringleader.
Carswell assigned Wallace to the job of breaking plates for 2 hours each day where
he would work with Dry and Whitehead and be in a position to observe them during
this time. Several days later Carswell told Wallace that he saw Dry and Whitehead
with "their heads together and talking" and nearly discharged Dry because he had his
mind more on the Union, than on his job.
Cherington denied that he assigned any employee the duty of keeping an eye on
Dry. He testified that to his knowledge Wallace never had the job of breaking
plates. Wallace's testimony regaiding his assignment by Carswell to break plates
and to observe Dry and Whitehead iemains uncontradicted in the record Chering-
ton's denial was not convincing. Although Cherington admitted that he expressed
his opinion to Wallace that the Union would help neither the Respondent nor the
employees,' he failed to elaborate as to the nature of these conversations His
testimony was inconsistent in several instances From his demeanor on the witness
stand Cherington impressed me as an unreliable witness. Wallace's testimony was
straightforward and supported by convincing detail. I do not credit Cherington's
denial and find that the above-noted conversations between Wallace and Cherington
and Carswell took place substantially as testified by Wallace.
In addition to his regular production job, Dry, on Saturdays, cared for the lawn
and flowers around the plant grounds, for which he was paid $10 per day. On May
29 Dry reported at the plant for this work, but because it was raining David Caley,
secretary-treasurer of Yocam Batteries, Inc.2 told Dry he did not have to work
that day Charles Graves, acting general manager for Respondent, then entered
into the conversation and according to Dry said that if the Union was successful in
organizing the employees, Respondent would not be able to give Dry Saturday work
because it would have to pay him overtime. Graves also said that Respondent
would have to lay off some men Caley inquired of Dry if union men had talked
with him in the restroom. Dry told Caley that the union letter was his only contact
with that organization.3 Dry testified further that he told Graves unions were not
new to him in view of his past membership in the Brotherhood of Locomotive Fire-
men and Enginemen and suggested that Graves call a meeting of the production
and maintenance employees to enable them to express themselves about union
organization
On cross-examination Dry denied he told Graves he was against the Union. He
admitted he said he did not think a union "would work" because the labor turnover
at Respondent's plant was so high that in his opinion the Union would not be able
to maintain a permanent membership. He denied that he could have misunderstood
or that he failed to hear Graves mention the Wage and Hour Administration rather
than the Union.
Graves, testifying regarding his version of the conversation with Dry, stated that
he told Dry that he was not sure, but it looked like Respondent would have to dis-
continue Dry's Saturday garden work because Respondent was then being investi-
1 Cherington stated that such opinion was given to several employees when they asked
what lie thought of the Union
2Yocani Hattci ics, Inc, a separate corpoi ation, was it sales organization it owned the
land on which the manufacturing plant of Respondent and the smelter plant of Southeastern
Lead Company was located Several years piior to the hearing, Yocam Batteries, Inc, did
manufacturing under its own name and all the production and maintenance employees
worked for Yocam Upon the formation of Respondent Corporation, which was organized
to nianuf.ictnic batteries for Yocam, the production and maintenance employees were trans-
feired to Respondent's payroll While the theee corporations have interlocking directorates,
Caley is in otlicm only of Yocam Batteries, Inc
5 Caley denied that lie had at any time interrogated Respondent's employees pith regard
to their union nnenibeiship and activity I find it unnecessary to resolve this conflict in
view of the fact that the General Counsel offered no proof that Caley was an officer of
Respondent
CONTRACT BATTERY MANUFACTURING CO. 771
gated by the Wage and Hour Administration and even though Dry worked for
Yocam on Saturdays rather than Respondent, it would still have to pay him over-
time. Graves testified further that Dry "without any hesitation" then spoke up and
said he could not understand why the employees were attempting to organize a union,
that he had been a member of a railroad union and that Respondent's plant was
"just too small for a union."
It is clear from the versions of both Dry and Graves that the Union was discussed
during the course of their conversation. Resolving the credibility of witnesses is
usually a difficult and trying task. In arriving at my resolution in this instance 1
have attached great weight to the impressions and reactions which I received from
a careful and searching scrutiny of the witnesses while testifying on the stand Dry
testified in a calm, assured, and specific manner. He openly admitted that he did
not think the Union would succeed at Respondent's plant because of the labor turn-
over. Under all the circumstances I credit the testimony of Dry and find that
the conversation between Graves and Dry on May 29 took place substantially as
testified to by Dry.
On the basis of the facts hereinabove found, and the record as a whole, it is con-
cluded and found that by the following enumerated acts Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8 (a) (1) thereof: (a) Foreman
Gray's interrogation of the employee regarding the union letter; (b) Superintendent
Cherington's and Foreman Carswell's directions to Wallace to find out if employees
Smith, Whitehead, and Dry were the ringleaders of the Union (see George Norman
Company, 101 NLRB 1127); and (c) Plant Manager Graves' threats to discontinue
Saturday work to Dry and lay off some employees if the Union was successful.
B The discriminatory discharge of Price Dry
Price Dry commenced his employment with Yocam Batteries, Inc.,4 on September
27, 1950, as a janitor He continued in this work for approximately 2 years, receiv-
ing an hourly wage of 80 cents He was thereafter promoted to the parts department
where he hand molded small parts at an hourly rate of $1.25 In February or March
1954, Dry asked Cherington for an increase in his hourly rate 5 Cherington's im-
mediate response was that Dry could not get more money for the parts department
job. Dry thereupon told Cherington that he would finish out the week and then
resign. He also asked that he be paid off in full on Friday.
The following day Cherington told Diy that he did not want to see him leave the
Respondent's employ, that he had a bonus coming to him, that as a result of his long
period of employment he had built up a senioiity standing, that he was as conscien-
tious and honest an employee as there was in the plant, and implored him to remain
with the Respondent.
Dry testified that Cherington then offered him a job in the filling and charging de-
partment (also referred to as the forming department) held by employee Roberts
which he refused, explaining to Cherington that he did not understand the work, and
further he did not want to take over the job of another man who had a family to
support. Dry suggested a transfer to the job of mud mixer in the pasting depart-
ment because he understood the work and since occasionally in the past he had been
assigned to this job,6 he had thus gained experience and knew how to perform the
job It appears that the mud mixing job was open at the time and Dry was trans-
ferred to it with a raise in pay to $1 50 per hour.
Cherington testified that it was in the latter part of December 1953 that Dry
spoke to him about a raise in pay and told him he would resign from the Respondent's
employ if he did not receive it Cherington admitted that he tried to prevail on Dry
that he not give up his job. He stated that Dry then asked for the job held by
employee Roberts in the forming department, which he was willing to give Dry,
4 As previously noted, prior to the organization of Respondent Corporation, Yocam con-
ducted the manufacturing of batteries in its own name Upon the organization of Respond-
ent corporation which succeeded to the manufacturing operations of Yocain, the pioduction
and inaurlemuice employees on Yocain's payroll were transferred to the payroll of
Respondent
5 This finding is based upon the testimony of Dry which I credit He stated that the
conversation took place about 3 months before his discharge in June 1954, and after he
had been working in the parts department for 18 months
6 Dui ing the pei nod that Dry worked is a janitor and at other tines he did the mud
mixing job Mien the regular employees wete absent or sick
367028- 56- -vol 112 a0
'772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
providing the Respondent could find another job for Roberts and obtain approval
from Roberts' foreman. Cheiington said he spoke to the foreman, he also found
another spot for Roberts and then offered the forming department job to Dry which
he took. Cherington then testified rather confusedly that Dry after working in this
job for several days came to him on the Friday of that week and said that he would
not take the job because his physical stature was such that he did not feel he could
handle the work. At the same time, Dry, according to Cherington, asked for the
mud mixing job and since it was open Cherington did not consult with the foreman
but told Dry that he could have the job. The mud mixing job paid more than either
the parts or forming department jobs. At another point in his testimony Cherington
stated that when Dry found out he could not obtain a higher wage in the parts de-
partment job he said he would resign, but then asked for Roberts' job in the forming
department. Since this entire episode revolved around Dry's obtaining an increase
in wages, it appears to me most unlikely that Dry would have entered on Roberts'
job before ascertaining the rate As heretofore found Cherington did not impress
me as a reliable witness. On several material matters he failed to testify in a forth-
right manner and was evasive and inconsistent. I do not credit his testimony.
The mud mixing job consists of wheeling a 600-pound drum of lead oxide into a
mixing room. Three hundred pounds of the lead oxide is then dipped into a cylin-
drical metal tub by means of a shovel. The tub is then pushed onto a mixing
machine platform which revolves. Overhead is a mixing contraption which con-
sists of 4 iron rods or paddles at right angles to each other and 1 longer paddle.
When lowered this contraption, called the mixer, fits into the mixture at the bot-
tom of the tub and mixes the ingredients. The longer paddle is supposed to
scrape against the sides of the tub as it revolves. After lowering the paddles
into the tub, the mud mixer adds a measured amount of water to the lead oxide
and the mixers are started electrically. A measured amount of dilute sulphuric
acid is siphoned into the revolving tub as the mixing operation goes on for 12 to
15 minutes. The mixers are then stopped and lifted out of the tub. Any paste
adhering to the paddles is scraped off into the tub, and the tub is pulled off the
mixing machine platform to a point near the hopper of the pasting machine. The
mud mixer then shovels the resultant paste from the tub into the hopper. Dry
performed this work for approximately 3 months
Dry became a union member on May 21, 1954. While he made no attempts to
enlist other employees into joining the Union, he talked with the other employees
about the benefits union organization would afford them As heretofore found,
practically simultaneously with the Union's mail solicitation of the employees, the
Respondent became aware of the organization drive and commenced a campaign
of interrogation, threats, and surveillance of employees it suspected of being the
Union's ringleaders. Dry was one of the employees suspected by the Respondent.
On the morning of June 1, Dry took a shovelful of paste from the mass in the
bottom of the tub, before he scraped the accumulation from the sides of the tub,
and placed it in the hopper. It appears that Foreman Carswell was observing him
at the moment, jumped in, and scraped down the sides of the tub before Dry could
do it. Without inquiring of Dry his reasons for not scraping the sides of the tub
into the mass of paste at the bottom before using any of the mass,7 even though
there is uncontradicted testimony by Dry that he was under instructions from Ken-
neth Whitehead, the pasting machine operator, to get some paste into the hopper
immediately after the mixers were stopped, Carswell told Dry to go with him to
Cherington's office.
Dry testified that in Cherington's office, Carswell spoke up and said, "Ralph
[Cherington], I don't know what we are going to do with Dry. He won't scrape
the side of the tub down. He won't cooperate with me . . . He makes too much
dust " 8 Cherington, according to Dry, after a few moments said, "Well, I'm not
concerned with scraping the tub down as I am about making dust " With that
Cherington ordered the timekeeper to figure out Dry's pay and he was discharged.
Carswell testified he told Cherington that Dry lacked cooperation. In addition he
testified he told Cherington when asked what he wanted to do about Dry, that he
had "gone the limit" and saw no need to continue. Carswell did not deny that he
' Cherington testified that this was a sti let iule which all mud mixers had to follow.
These is a conflict in the record which will be discussed hereinafter as to whether the mud
mixers were instructed that such procedure had to be followed strictly and secondly whether
the mud nix ers followed the rule in practice
8 in shoveling the lead oxide powder from the dium into the tub, it is inevitable that a
certain amount of dust rises and is carved into the plant. Because the dust contains lead
which may cause lead poisoning or lead colic, it must be handled with a degree of care
CONTRACT BATTERY MANUFACTURING CO. 773
stated that Dry created too much dust, nor did he deny Dry's testimony about Chering-
ton's interest in the dust situation and lack of concern in the scraping of the tub's
sides.
Cherington's version of the incident was inconsistent and not given in a straight-
forward manner. At one point he stated that he might have spoken of "dust"
when he discharged Dry and that he probably did, because Dry had been warned
on numerous occasions about that. When asked again if at the time of discharge
he told Dry that "dust" was the reason, he answered, "No, sir, because Mr. Dry
had already been discharged when he came to my office for his pay check" He
testified also that he assumed that Carswell had already given Dry the reasons for
his discharge and that he discussed with Dry reasons why he probably should have
been discharged before that date He emphatically denied making the statement,
"it is not the scraping the sides I am worried about, it is the stirring up of dust,"
in spite of his earlier recollection set forth above 9 To culminate the inconsistence
in his testimony Cherington admitted that he had no personal knowledge of the
cause of Drys discharge, that all he knew when Carswell and Dry came to his
office was that Dry had already been discharged and Dry was brought there only
for the purpose of obtaining his final paycheck. I credit Dry's version of the incident
in Cherington's office as set forth above.
C. Conclusions regarding Dry's discharge
Although Respondent's answer denies only that Dry was discharged because of his
membership in and activity on behalf of the Union, at the hearing and in its brief
the Respondent came forth with six specific reasons in addition to an overall com-
plaint that Dry was generally incompetent and failed to cooperate with management
as the cause for discharge. It further contended that the "straw that broke the
camel's back" was Dry's failure to scrape down the sides of the mixing tub after
having been repeatedly warned by his foreman and the plant superintendent to do so.
The six specific reasons are the following: Allowing the lead pot to overheat
while working in the small parts department, abusing and treating machinery roughly
in the small parts department, recklessly making lead oxide dust in the mixing room;
not keeping his breathing mask clean; keeping the door to the mixing room open in
disregard to his foreman's instructions, and working as a mud mixer without his
mask on.
It is worthy of note however before discussing the evidence adduced with respect
to the specific causes for Dry's discharge, that on the occasion of discharging Dry,
Superintendent Cherington was concerned only with one of the specific reasons,
namely, making lead oxide dust in the mixing room.
It will be recalled that Diy had been in the Respondent's employ 2 years when he
was promoted to the small parts department and given an increase in pay. He re-
mained as a hand molder in the small parts department for about 18 months until
he asked for more money, at which time he was transferred to the mud mixing job,
again with a substantial increase in his hourly rate.
With respect to its defense regarding Dry's alleged deficiencies while employed
in the small parts department, the Respondent called Jerry Sheppard, the plant
maintenance man, as its witness Sheppard testified that on several occasions he ob-
served Dry slam open the molds and use a screwdriver to eject scrap lead stuck
in the molds, with the result that it became necessary to send the machine out for re-
pairs. Sheppard testified also that Dry overheated the lead pots used in this work.
He testified that he called these matters to Dry's attention and also let Carswell and
Cherington know of his observations. He was unable to state with any preciseness
when these incidents occur red, indicating that it may have been as much as 6 months
before Dry's discharge.
Dry testified that neither Carswell nor Cherington complained to him about his
performance in the hand molder job. He explained that when he first took over the
hand molding job he pointed out to Cherington that the mold had been scarred be-
cause someone had used a screwdriver or other metal instrument on it. He stated
that he fashioned a tool by sharpening the wooden handle of an old paint brush to fit
a hole in the mold and used that when necessary. He demonstrated the use of the
wooden handle to Cherington and showed that it did not damage the mold. It was
9In this regard Wingaid testified credibly without denial that about a week after Dry's
discharge he was called to Clierington ' s office, where the latter asked what he thought
about his firing of Dry During the conversation , Cherington told Wingard that lie was
not concerned about the sci aping of the tub , he was concerned about the dust . Cherington
also inquired if R'ingard had received a union letter
774 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
undenied that the molds were never removed for repairs while Dry was in the small
parts department
Dry admitted that Sheppard once told him that the lead pot was too hot While
there is testimony in the record to the effect that an experienced hand molder can
tell from the color of the lead whether it was being overheated, the Respondent found
it necessary about a month before Dry was transferred from the hand molding job,
to install a thermometer so that the temperature of the lead could be determined
with some degree of accurateness. In fact, Julian Baggett, an employee for 10
years, testifying as a Respondent witness, admitted that prior to the installation of
the thermometer it was possible to overheat the lead pot.
J. A. Howard, employed by the Respondent for d years, and at one time foreman
of the parts department while Dry worked there, testified that since Respondent
did not have a thermometer on the lead pot at that time "sometimes you would
naturally have your lead overheated." Howard further testified credibly that Dry did
a good job and heated the lead so that he could make the parts When questioned
if Dry had a habit of heating lead too much, Howard answered, "Well, l wouldn't
think anybody could hardly get out of overheating it sometimes, if he didn't have
a regulator on it."
It is worthy of note that other than the instance when Sheppard told Dry he was
overheating the lead, no foreman or supervisor gave Dry any indication, let alone
warning, during the 18 months he was in the small parts department, that his work
was not satisfactory Indeed, the fact that Cherington dissuaded Dry from resign-
ing while he was still in the small parts department and at a time subsequent to Dry's
alleged deficiencies, pointing out to him that he was as honest and conscientious
a worker as Respondent had in its plant and thereafter giving him another job with
more pay, tends to belie Respondent's assertions made at the hearing and in its
brief regarding his work as a hand molder.'°
We turn next to Dry's performance in the mud mixing job. As heretofore found,
prior to his permanent transfer to this work, Dry was assigned there from time to
time and thus gained experience in the job
In support of the Respondent's contentions regarding the specific causes for Diy's
discharge set forth above. Cherington testified generally that Dry "just" failed to
carry out to any degree the handling of lead oxide, and the keeping of his mask
clean Cherington stated that in spite of the fact that it was common knowledge
around the plant, particularly among the mud mixers, that the stirring up of too
much dust in the handling of lead oxide might lead to lead poisoning or lead colic,"
that Dry deliberately mishandled the shoveling of lead oxide in order to stir up more
dust.
Tandy Johnson, foreman of the shipping department, testified that several times
he saw Dry wearing a dirty mask while mixing mud. Describing Dry's shoveling of
lead oxide, Johnson stated that Dry actually threw the oxide into the drum thus creat-
ing a considerable amount of dust and with some of it going onto the floor. He ob-
served Dry mishandle the lead oxide over a period of 4 or 5 weeks prior to his dis-
charge 12 and claimed that he reported his observations to Cherington and Carswell
Carswell testified that he instructed Dry "to be just as careful as he possibly could"
in dipping the lead oxide out of the drum and putting it into the tub. He fuither
testified that in spite of the instructions, Dry made "a lot more" dust than other mud
mixers because after picking the lead oxide up on the shovel from the drum, he did
not turn the shovel carefully and let it drop into the tub, but threw it into the tub
Carswell testified also that he observed Dry with a dirty mask, that he told Dry it
was important to keep it clean, but that it always remained muddy and dusty.
He testified further that Dry hung his mask in the mixing room rather than outside,
but admitted that after he spoke to Dry he hung the mask outside of the mixing room
Dry denied that he ever disregarded any instructions given him by Carswell or
any other supervisor. He testified that he washed his mask thoroughly with alcohol
every morning before he started to work, and if during the day, lead oxide got into
the straining disc he would take time out to wash it. Dry testified also that he al-
ways washed his hands before removing the mask, after completing the mixing of
a batch of lead oxide So far as the stirring up of dust, while shoveling lead oxide
from the drum to the tub is concerned, Dry stated that he always did his best to hold
10 In this regard, I have given considei ation to Chermgton's testimony that it is Respond-
cut's policy to teach and help nis employees in every way possible until it becomes apparent
that the employee Cannot mahe good that he is discharged
it It was i evealed that 2 of 3 mud niisei s and other employees not engaged in mull mixing
had contracted lead poiaoniiig
is Johnson was unable to state however alien Dry was discharged
CONTRACT BATTERY MANUFACTURING CO. 775
the amount of dust to a minimum. He stated, rather significantly, that it was to his
best interest not to stir up much dust because he was aware of the physical injury
to himself that might result if he were not careful.13
Carswell admitted that while Dry was working as a mud mixer the output on the
plate machine was increased so that it was necessary to use more than twice as
many drums of lead oxide as previously, and that the mud mixer had to shovel
faster with the result that more dust was stirred up
Whitehead, the pasting machine operator during the period Dry worked as a
mud mixer, who worked close to Dry corroborated his testimony regarding the
washing of the mask and Dry's efforts to keep it clean. He testified further that
he knew of other mud mixers who never washed their masks but were not disciplined.
I do not credit the testimony of Cherington, Carswell, and Johnson regarding
the condition of Dry's mask. I find based on Dry's testimony, corroborated by
Whitehead, that he kept the mask as clean as possible under the prevailing conditions.
With regard to the reckless stirring up of oxide dust by Dry, in view of his knowl-
edge of the dangers inherent in negligently handling lead oxide and the further fact
that he was aware that some of his predecessors in that job had contracted lead
poisoning, unless as so aptly expressed by the General Counsel "Dry was out to
commit suicide" it is inconceivable that he would have deliberately thrown the lead
oxide as Respondent's witnesses would have me believe, and thereby endanger not
only his own life but the lives of his fellow employees. I find that Dry did not
deliberately or negligently stir up dust as claimed by the Respondent.
With regard to Dry's keeping the door to the mixing room open in disregard of
his foreman's instructions as a cause for discharge, I am not convinced from the
testimony of either Johnson or Carswell that the door was kept open deliberately
by Dry or due to his negligence. Rather I am persuaded as Dry testified that he
always tried to keep the door closed. However, there were times when it was blown
open by the wind and he could not always get to close it immediately because he
was busily doing other things away from the door.
It was the Respondent's contention raised in its brief that whereas there were
a number of reasons for Dry's discharge which I have dealt with above, "the straw
that broke the camel's back" was his failure to scrape down the sides of the mixing
tub after having been repeatedly warned by Carswell and Cherington to do so.
At the hearing, Cherington admitted that he never personally warned Dry he
would be discharged if he failed to carry out instructions or do certain things.
Carswell's testimony regarding warnings to Dry is as follows:
Q. (By Mr. Emmanuel.) Do you know whether Mr. Dry had any warning
from either you or Mr. Cherintgon prior to the time he was fired, that if he
didn't straighten himself out he would be fired?
A. I believe he was well aware of it, that .
Q. (By Trial Examiner.) No, answer the question, Mr. Witness. Did he
have any warnings from you?
A. Well, what I just told you, that we had to scrape the mud down, it had
to be done; and as far as that, I wouldn't recall what you are speaking about.
Q. (By Mr. Emmanuel.) Had he been warned that he would be fired unless
he improved his work?
A. Well, I didn't tell him he would be fired, but I did tell him he would
have to scrape it down.
Q. (By Trial Examiner.) Did you at any time, Mr. Witness, while he was
under your supervision, tell him that if he didn't do certain things, such as
scraping the mud down or anything else that you might have told him, that if
he didn't comply with your orders he would be fired?
A. I didn't never tell him he would be fired.
Dry testified that about a week before his discharge, Carswell mentioned that he
should keep the sides of the mixing tub scraped down. Dry denied that Carswell
or anyone else in the plant told him that the sides of the tub had to be scraped down
immediately after the mixing operation was completed, or that he was instructed as
to the time when the side scraping had to be done.
Carswell testified that he told Dry "quite a few times" to scrape down the mud
from the sides of the tub before he used it or left the tub to work on something
else. Carswell claimed that on several occasions he went back to the mixing room
13 It is interesting to note that several mud mixers who preceded Dry in the mud mixing
job, including Foreman Carswell, contracted lead poisoning or lead colic, a fact of 'which
Dry was aware Dry never suffered any ill results while in the job nor did he have any
symptoms of the disease.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to scrape the sides himself and did not say anything to Dry because he felt that
perhaps Dry "forgot it." Carswell recalled that he told Dry several days before the
latter's discharge "we just had to scrape the mud down," whereupon Dry asked if
Carswell wanted it scraped down under the mixer or after the tub was pulled out
from the mixer. Carswell stated he advised Dry to do it either way, but cautioned
him to scrape the sides down before using any of the mud or before leaving the tub
to mix another batch.
Considerable evidence was adduced on the question of when the sides of the
tub had to be scraped down and whether or not mud mixers were instructed with
respect to this matter. Wallace testified that while he was mud mixing during his
last period of employment (this was during August 1954 subsequent to Dry's dis-
charge) he did not always scrape the tubs immediately after completing the mixing
operation and before shoveling some of the mud from this mix into the hopper.
There were occasions when he pulled the tub off the mixer, started to work on
another tub in order to keep the process moving, and then went back to the first
tub to scrape down the sides. Wallace testified further that during this period, Cars-
well, in addition to his foreman duties was operating the pasting machine and was
in a position to readily observe his work on the mixing tub, but registered no com-
plaints regarding his work.
Whitehead testified that as a mud mixer he occasionally overlooked the scraping
down of the tub sides immediately after the completion of the mixing operation He
gave as a reason the fact that the mud mixer might be rushed, and leave a completed
mix to work on another batch, with a view to coming back later to do the scraping.
He stated he also saw Chesser and Wallace do the same thing but none of them were
ever reprimanded.
David Hornsby, an employee for 2 years, testified that he was instructed in the mud
mixing operation by Whitehead. He was never told by either Whitehead or any
supervisor that the mud had to be scraped from the sides before any of it was shoveled
into the hopper. There were times when he did not scrape the sides of the tub
after the mixing was completed but he never received complaints about his work.
Earl Chesser, presently a pasting machine operator who previously mixed mud,
testifying as a witness for the Respondent, stated, "1 can't say I was ever told to
scrape down the sides of the mud tub." When questioned whether the scraping was
supposed to be done before or after the mud was put in the hopper, Chesser
answered, "Well, according to what I have been told since I started, it is supposed
to be done before the mud is put in the hopper I did it, that is the way I chose to do
it [Emphasis supplied.] Chesser also admitted on cross-examination that
during the time Dry was a mud mixer and he (Chesser) operated the pasting ma-
chine, he never had occasion to tell Dry to scrape down the sides of the tub before
he fed mud to the hopper, nor did he complain to either Carswell or Cherington
that Dry was not scraping down the sides of the tub
Carswell and Johnson, foremen, respectively, of the pasting and shipping depart-
ments, testified that when they started out as mud mixers, Whitehead instructed them
to scrape down the sides of the tub immediately upon pulling it out from under
the mixing machine so that a uniform mix would be obtained.14 In his further testi-
mony however Johnson stated that the uniform mix of the mud is obtained as it
goes through the hopper.15 Johnson testified further that if a uniform mix of the
mud is not obtained, the result would be bad plates and therefore bad batteries
While it may be that the failure to scrape down the tub sides immediately after
mixing results in an inferior plate, as Johnson testified, the Respondent did not offer
any evidence to support this general and conclusionary testimony It did not show
that it had received complaints during the period of Dry's incumbency as a mud
mixer, that batteries were bad or that there were rejections of batteries because of
bad plates. It is undisputed that Carswell never complained about Wallace's work
as a mud mixer although in a position to observe Wallace who admittedly did not
always scrape the tub sides immediately after completing the mixing operations and
before shoveling mud from the mix into the hopper.
It was revealed at the hearing that once the mixing operation is completed, the tub is
not replaced under the mixing machine for more mixing after the sides are scraped down.
15 With respect to the issue of the time when the sides of the tub had to be scraped down
and the uniformity of the inix, it is interesting to note that as the mud goes through the
pasting machine and on to the lead plates, any excess mud is mechanically scraped off the
plate and collects in a pan underneath the pasting machine. This mud is shoveled up and
again used, sometimes aftei it has accumulated in the pan for as long as an hour. If the
pasting machine operator finds that these accumulations aie too stiff and not spreading
over the lead grids properly as it goes through the machine, he adds water
CONTRACT BATTERY MANUFACTURING CO. 777
I am convinced based on the testimony of Dry, Wallace, Whitehead, Hornsby,
and Chesser, which I credit and which testimony preponderates in the record, that
mud mixers were not instructed by management that the tub sides had to be scraped
down immediately after the tub was pulled out from under the mixing machine and
that no paste could be shoveled into the hopper before scraping down the sides.
Dry admitted that on the morning of his discharge he shoveled paste into the
hopper before scraping the tub sides, at which point Carswell who had been observ-
ing him, jumped in, scraped down the sides, and told Dry to go with him to Chering-
ton's office.
Dry testified that Whitehead was operating the pasting machine that morning.
Dry stated that he had just pulled the mud tub out from under the mixer when
Whitehead informed him that the hopper was practically empty and to get some
paste in as quickly as possible. Diy, following Whitehead's instructions, grabbed
his shovel and speedily fed the hopper.is Dry stated it was his intention to scrape
the tub sides as soon as he finished feeding the hopper and as a matter of fact had
the putty knife handy to use for scraping when Carswell jumped in and completed
the scraping.
As heretofore found, it was not unusual for mud mixers to shovel mud into the
hopper before scraping down the tub sides and on this record I do not believe that
this was "the straw that broke the camel's back" as Respondent argued
As the First Circuit Court of Appeads stated in N L R. B. v. Whiten Machine
Works, 204 F. 2d 883.
In order to supply a basis for inferring discrimination, it is necessary to show
that one reason for the discharge is that the employee was engaging in protected
activity. It need not be the only ieason, but it is sufficient if it is a substantial or
motivating reason, despite the fact that other reasons may exist. [citing cases]
Although the discharge of an inefficient or insubordinate union member or
organizer is lawful, it may become discriminatory if other circumstances reason-
ably indicate that the union activity weighed more heavily in the decision to fire
him than did dissatisfaction with his performance.
In this case the Respondent would have us believe that Dry was discharged for
unsatisfactory work performance over a protracted period, after nearly 4 years of
service with the Respondent. According to the Respondent, Dry had been an un-
satisfactory employee for at least 20 months before his discharge. Nevertheless,
it had put up with his shortcomings throughout that period, only to find his serv-
ices no longer tolerable just about the time it commenced its mteriogations of the
employees regarding the Union's organizational efforts, and at the time it suspected
that Dry was the ringleader in the union activities. Its suspicions regarding Dry's
ringleadership in the Union's organizational campaign were aroused to such a
degree, that as heretofore found, it directed employee Wallace to engage in surveil-
lance of Dry's movements during working hours and specifically mentioned that it
did not want a union in the plant and would discharge the union ringleaders. On
this record there can be little doubt that Respondent was disturbed by the Union's
organizational campaign and the possible establishment of a bargaining representa-
tive for its employees. The findings made above in the section of this Intermediate
Report that deal with the Respondent's independent acts of interference, restraint,
and coercion at about the time of Dry's discharge and the findings hereinafter to
be made with respect to its surveillance of a union meeting subsequent to Dry's
discharge, generally support that proposition. This, together with Respondent's
explanations for effecting Dry's discharge at that particular time, which I have here-
tofore found not to be valid, convince me that whatever the Respondent's opinion
of Dry's work performance may have been, "the [suspicion of Dry's] union activity
weighed more heavily in the decision to fire him than did dissatisfaction with his
performance" and it was that factor rather than any other that broke the straw.
Upon the entire record, and on the basis of what I am convinced is a fair preponder-
ance of credible evidence, I do not accept the reasons given by Respondent for Dry's
discharge, and conclude that Respondent's underlying motivation for the discharge
was its suspicion of Dry's ringleadership in the union activities and his membership
therein, and find that by discharging Dry on June 1, 1954, and thereafter refusing
to reinstate him Respondent discriminated in regard to his hire and tenure of em-
ployment, thereby discouraging membership in the Union, and interfering with,
restraining, and coercing employees in the exercise of the rights guaranteed in See-
11 The record reveals that it was the custom for the mud mixers to follow the instructions
of the pasting machine operator with whom he was working. Thus, Johnson testified that
as a mud mixer he accepted Whitehead's oiders and carried them out
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 7 of the Act. See Jackson Chair Company , Inc , 110 NLRB 651; Kibler-Camp
Phosphate Enterprise , 107 NLRB 1068 , enfd. 216 F . 2d 113 (C A. 5).
D. Surveillance of union meeting
After working hours on June 24, as Respondent's employees approached the road-
way in front of the plant, they were handed a union leaflet signed by one Garvin
Crawford, a union representative. The leaflet advised Respondent's employees of
a meeting to be held that night at 8 p. in. in Tampa and contained the following
inscription:
Whether you have signed a card or not, you are invited to attend. Here you
can improve your wages and working conditions. Ask any questions you
want to.
Wallace testified that he was in the union hall that evening when three employees
came in and told him they saw Foremen Gray and Carswell at the street corner
Wallace went outside of the hall to tell Crawford of the presence of Gray and
Carswell near the union hall when he saw Foreman Gray sitting in an automobile
which was double parked in front of the hall. Wallace stated that while he was
talking to Crawford, Gray called from his car and spoke to him.
Employee Wingard testified that the following morning Foreman Gray told him
he was down at the union hall 17
Gray and Carswell admitted that they were in their cars on the street in front
of the union hall. They offered the following explanation for their presence there.
They stated they were handed leaflets as they left the plant on June 24. They con-
strued the leaflet as an invitation to attend the union meeting. In fact Carswell
testified that the person who handed him the leaflet said "I'll see you tonight." They
drove down to the vicinity of the union hall in their respective cars with the inten-
tion of attending the meeting They parked their cars about a block from the hall.
Carswell then came over to Gray's car and they talked for about 15 or 20 minutes.
Gray testified that they decided that since they were wearing their work clothes and
were not properly dressed, they wouldn't go into the meeting. Gray stated that
as he drove past the meeting hall on his way home, Wallace called to him from
the doorway of the building and he waved back to Wallace. Carswell testified
regarding an additional reason for not attending the union meeting. He stated that
while he and Gray were parked "we got to talking and thinking we were foremen,
maybe we shouldn't go at all." Carswell admitted seeing employee Hays Spicer on
the street near the union hall.
The leaflet referred to above, advising of the union meeting, was clear on its face.
It was addressed to Respondent's employees and even by the furthest stretch of the
imagination could it be interpreted as an invitation to management representatives.
The fact remains that upon sober reflection Foremen Gray and Carswell realized
that as foremen ". . . maybe we shouldn't go at all." The Board has held that
absent express invitations management representatives may not lawfully attend
union meetings even in the situation where such meetings were open. See W. C.
Carter and Brother, et al, 90 NLRB 2020. Additionally the Board has held that
parking a car in the vicinity of a union meeting and observing employees going into
the meeting, constituted unlawful surveillance. See Greenville Cabinet Co., Inc.,
102 NLRB 1677. Nor is an employer absolved of a violation of the Act where
surveillance is done "in full view" and not "in secret" since the mere presence of
management representatives has a restrictive effect on employees' union activity.
See R. & J. Underwear Co., Inc., 101 NLRB 299.
I find that by the acts of Foremen Gray and Carswell on the night of June 24 in
the vicinity of the union meeting Respondent violated Section 8 (a) (1) of the Act.
Counsel for the Respondent submitted proposed findings of facts and conclusions
of law along with his brief. Proposed findings of facts Nos. 1, 2, 3, 4, and 7 are
accepted; 5, 6, 8, 9, 10, It, and 12 are rejected on the ground they are either am-
biguous or not supported by credible evidence in the record. I accept proposed
conclusion of law No. I and reject the others on the ground they are not sustained
by the facts or the law
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section Ili, above, occurring in connec-
tion with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
17 Gray's denial is not credited
UNITED TELEPHONE COMPANY OF THE WEST 779
several States, and tend to lead to labor disputes burdening and obstructing commerce
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 the Respondent be ordered to cease and desist therefrom and
take certain affirmative action in older to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Price Dry, I shall recommend that Respondent offer him
immediate and full reinstatement to his former or a substantially equivalent position 18
without prejudice to his seniority or other rights and privileges and make him whole
for any loss of pay suffered by him as a result of the discrimination, by payment to
him of a sum of money equal to the amount he would have earned from June 1,
1954, the date of his discriminatory discharge to the date of the offer of his rein-
statement less his net earnings 19 to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.
Earnings in one particular quarter shall have no effect upon the back-pay liabilities
for any other such period. It will also be recommended that Respondent make
available to the Board, upon request, payroll and other records to facilitate the
checking of back pay due.
As the unfair labor practices committed by Respondent were of a character striking
at the roots of employees' rights safeguarded by the Act and disclose a propensity
on the part of Respondent to continue, although not necessarily by the same means,
to defeat self-organization of its employees, it will also be recommended that Re-
spondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of facts, and upon the entire record in
the case, I make the following
CONCLUSIONS OF LAW
1. The Respondent has engaged in and is engaging
meaning of Section 8 ( a) (1) and (3) of the Act.
in unfair practices within the
2. The aforesaid unfair labor practices are unfair labor practices
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
affecting com-
1The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
"Crossett Lumber Company, 8 NLRB 440, 447-498; Republic Steel Corp. v. N L. R. B,
311 U S 7
United Telephone Company of the West and United Utilities, In-
corporated and International Brotherhood of Electrical Work-
ers, Local No. 843, AFL. Case No. 30-C21-381. May 18,1955
DECISION AND ORDER
On January 28, 1955, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents 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 copy of the Inter
mediate Report attached hereto. Thereafter the Respondents and the
General Counsel 1 filed exceptions to the Intermediate Report and sup-
porting briefs.
1 The General Counsel agreed with the Trial Examiner's conclusion that the Respondents,
by changing the overtime schedule of one of their departments, had violated Section 8 (a)
(5) and (1) of the Act, but excepted to the failure to find that certain other aspects of
the same action constituted additional violations as alleged in the complaint.
112 NLRB No. 103.