Duro Test Corp.

National Labor Relations Board - Board Decisions

Feb 24, 1949

81 N.L.R.B. 976 (N.L.R.B. 1949)

In the Matter of Dtmo TEST CORPORATION and UNITED ELECTRICAL,
RADIO AND MACHINE WORKERS OF AMERICA , LOCAL 448, CIO
Case Yo. 2-C-6509.-Decided February 24, 1949
DECISION
AND
ORDER
On September 11, 1947, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above -entitled proceeding, finding
that the Respondent ' had engaged in and was engaging in certain
1 The Power of the Board to issue a Decision and Order in a case such as this, where the
charging Union has not complied with the filing requirements specified in Section 9 (f), (g),
and (h ) of the amended Act, was decided by the Board in Matter of Marshall and Bruce
Company, 75 N. L . R. B. 90.
2 During the second day of the hearing, the Trial Examiner granted the Board's motion
to amend the complaint so as to include after the word "Respondent ," wherever it occurred
in the complaint , the words "by its officers , agents, supervisors , and/or by its wholly owned
subsidiaries , their officers, agents , and supervisors." The declared primary purpose of the
amendment was to include as party Respondent , Tungsten Products Corporation , herein
called Tungsten , the only operating subsidiary of several subsidiaries of the Respondent.
The Respondent objected to the amendment , claiming surprise and maintaining that each of
the subsidiaries should be separately served with the charge and complaint ; it also argued
that the Board had no jurisdiction over the subsidiaries under the amended complaint since
the charge was not coextensive with the allegations of the complaint . In response to the
Respondent 's claim of surprise, the Trial Examiner ruled that the Respondent and the
Association would be granted a recess of 48 hours at the close of the Board 's case-in-chief.
The Respondent and the Association announced their satisfaction with this arrangement
and subsequently availed themselves of the additional time to prepare their case in the
light of the amendment to the complaint. For the reasons hereinafter stated, we find that
the Trial Examiner ' s rulings were proper and hereby affirm them.
The record shows that the Respondent , a selling and distributing organization , wholly
owns Tungsten , its manufacturing subsidiary , that it purchases most of the products of
Tungsten , that both corporations have the same officers, personnel policy and department,
and occupy the same building The record further establishes that the Association admits
to membership and does in fact have members among the employees of both the Respondent
and Tungsten . In view of the control exercised over its wholly owned subsidiaries,
including Tungsten , by the Respondent , and the additional time afforded it at the hearing
to meet the identical issue with regard to Tungsten , we perceive no prejudice to the
Respondent or abuse of discretion by the Trial Examiner in allowing the amendment to the
complaint . The contention in this respect is therefore found to be lacking in merit.
Matter of Hills Brothers Company, 67 N. L. R. B. 1249 ; of. National Licorice Co. Y.
N. L. R. B., 309 U . S. 350 ; Consolidated Edison Company of New York , Inc. v. N. L. R. B., 305
U. S. 197, 225 . Nor do we find merit in the Respondent 's contention as to the charge.
Every element of the complaint need not be covered by the charge . Since the complaint,
and not the charge, frames the issues in any unfair labor practice proceeding , the Respondent
was not prejudiced by the failure of the charge to include an allegation as to the sub-
81 N. L. R. B., No. 151.
976
DURO TEST CORPORATION 977
unfair labor practices ,3 and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended
dismissal of these allegations. Thereafter, the Respondent and the
Association filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board 4 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.5 The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
sidiaries of the Respondent . Consumers Power Company v. N. L R. B , 113 F. (2d) 38
( C A. 6) ; Matter of Hills Brothers Company, supra.
Accordingly , the term Respondent when used in connection with the findings of fact and
conclusions of law herein embraces both Duro Test Corporation and Tungsten Products
Corporation . Like the Trial Examiner , however, we are directing our order to Duro Test
Corporation alone. We are constrained to do so only because counsel for the Board
requested at the hearing that the order be so limited . As the Board attorney indicated,
however, this is not to be taken to preclude the amendment of the order to include the
subsidiary by name, should Duro Test Corporation fail to carry out the disestablishment of
the Association as to Tungsten.
'Those provisions of Section 8 (1), (2), and ( 3) of the National Labor Relations Act
which the Trial Examiner found were violated are continued in Section 8 (a) (1), (2), and
(3) of the Act , as amended.
4 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members [ Chairman Herzog and Members
Houston and Murdock].
5 The Respondent at the hearing and in its brief moved to dismiss the complaint in whole
or in part because of alleged defects in the charge . It relied on the following grounds • (a)
while the charge recites the discharges of the eight employees , it fails specifically to allege
that the Respondent thereby discriminated with regard to hire and tenure within the mean-
ing of the Act; (b ) there is no showing that the Union was authorized to file a charge on
behalf of the complainants or that the attorney for the Union was authorized to execute
the charge . As to the first ground, we have repeatedly held that the language of the
charge need not contain the same particularity as the language of the complaint inasmuch
as it is the complaint and not the charge which frames the issues. It is sufficient that, as
here, the language of the charge afforded a proper basis for setting forth a violation of
Section 8 ( 3) in the complaint . National Licorice Company v . N. L. R B., 309 U. S. 350,
Consumers Power Company v. N. L. R B , 113 F. ( 2d) 38 ( C. A. 6) ; Matter of Sewell
Manufacturing Company, 72 N. L R B. 85; Matter of Shell Petroleum Corp ., 10 N. L R. B.
719. With regard to the other ground urged by the Respondent, it has long been established
that the relationship between the person or organization making the charge and the in-
dividuals involved in the acts complained of is not limited by the Act. Section 10 (b) of
the Act provides that the Board may issue a complaint "whenever it is charged that any
person has engaged" in unfair labor practices . The Board ' s Rules and Regulations, at the
time of this proceeding, provided that such a charge might be made by any person or
organization as set forth in Section 2 of the Act . In addition , no showing of authority
to file a charge is necessary Accordingly , we find no merit in the Respondent 's contentions,
and shall deny the motion to dismiss the complaint . N. L. R. B v. Indiana & Michigan
Electric Co., et al., 318 U. S. 9, 17-18; Matter of Pennsylvania Greyhound Lines, Inc., et al.,
1 N. L. R. B. if , 45, enf ' d. as mod , 303 U. S. 261; Matter of Wilson and Co., Inc., 31
N. L. R. B. 441 , enf'd ., 126 F. ( 2) 114 ( C. A. 7), cert. den , 316 U S 699 ; Matter of Blanton
Co., 16 N. L . R. B. 951.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the modifications and additions noted below :
1. The Trial Examiner found that the Respondent dominated and
interfered with the formation and administration of the Association
and contributed support to it, in violation of Section 8 (2) and 8 (1)
of the Act. We agree. Like the Trial Examiner, we find that the
conduct of the Respondent with respect to the Association before
August 30, 1946, consisting, among other things, of granting com-
pany time and property for Association meetings, of giving finan-
cial assistance, of active participation in the affairs of the Associa-
tion by Supervisor Kornblum as its financial secretary, and of par-
ticipation as members in the Association of supervisory personnel,
was illegal. We conclude also, as did the Trial Examiner that, while
a reorganization of the Association occurred on August 30, 1946, the
change was one of form rather than substance. Thus the change was
itself sponsored and promoted by Kornblum. It occurred without
any clear line of fracture between the "old" and the "new" Associa-
tion, and without any disavowal by the Respondent of its illegal con-
duct with respect to the "old" Association. In these circumstances,
no basis exists for differentiating between the illegal acts with respect
to the Association before August 30, 1946, and thereafter. Indeed,
the disabilities of the "old" Association attach to the "new"
Association.
In view of the foregoing and the findings made in the Intermediate
Report, it is clear that the Respondent's unfair labor practices with
regard to the Association have, by virtue of the active participation of
Supervisor Kornblum in the affairs of the Association and the partici-
pation as members of other supervisory personnel,6 exceeded the
bounds of interference and support so as to constitute domination of
the Association as well. We shall, therefore, in accordance with our
policy in such circumstances, order the Respondent to disestablish the
Association.7
2. The Trial Examiner found, and we agree that the Respondent
discriminatorily discharged Daniel Breen, Salvatore Mollica, Harry
6 The Association excepts to the admission in evidence by the Trial Examiner of applica-
tions for membership in the "new " Association by certain of the Respondent 's supervisors on
the ground that there was no showing as to where the applications originated , the authen-
ticity of the signatures , or the identity of the persons purported to have signed them. At
the time the cards were offered as evidence , it affirmatively appeared that the applications
were furnished Board counsel by counsel for the Association
In such circumstances , as the Trial Examiner ruled, there is a presumption of correctness.
We note further that the Association failed to undertake to rebut this presumption Ac-
cordingly , we find that the cards were properly admitted into evidence and we hereby
uphold the Trial Examiner 's ruling
7 Matter o f Carpenter Steel Co , 76 N. L. R. B. 670; Matter of Kresge Department Store,
77 N. L R. B . 212, cf. Matter of Hershey Metal Products Co., 76 N. L. R. B. 695.
DURO TEST CORPORATION 979
Salmon, and William Wagner, in violation of Section 8 (3) and 8 (1)
of the Act.
With respect to all four employees, the Respondent contends that
there is no testimony as to their union membership or activities at
any time prior to their discharge. However, whether or not these
employees were members in or active on behalf of a specific union is not
here controlling. The record shows that these employees along with
others in the shipping department engaged in a work stoppage on
August 7,1946, and that Salmon and Mollica as well as employees Dun-
seath and Murphy represented the shipping department employees in
their efforts to obtain a wage increase.8 By this activity, the employees
in the group were acting in concert for their mutual aid or protection
with respect to conditions of work. The Respondent's discrimination
against Salmon, Mollica, Breen, and Wagner for their activity with
the group discouraged membership and activity therein, in violation
,of Section 8 (3) of the Act. Furthermore, as the work stoppage and
the presentation of the demand for a wage increase were concerted
activities for the purpose of mutual aid or protection, the Respondent,
by discriminating against Salmon, Mollica, Breen, and Wagner, inter-
fered with, restrained, and coerced its employees in the exercise of their
rights under Section 7 of the Act, thereby violating Section 8 (1) of
the Act.
With regard to employees Salmon and Mollica, the Respondent
argues further that the fact that it did not discharge Murphy and Dun-
seath, although they engaged in identical activities, demonstrates the
nondiscriminatory nature of these two discharges. We do not agree.
The disparate treatment of employees engaging in identical concerted
or union activity does not have such overriding significance. To hold
otherwise would afford an Employer a readily contrived device for
avoiding his obligations under the Act. Accordingly, we find no merit
in this contention.
As to Breen and Wagner, the Respondent maintains in addition that
the Board failed to sustain the burden of proof, as neither of these
employees appeared or testified at the hearing. Counsel for the Board
stated at the hearing that he did not consider it necessary to produce
Breen and Wagner, because they were members of the group of four
employees who were discharged at the same time from the shipping
department for their participation in the work stoppage of August 7,
and testimony on the part of Breen and Wagner would merely be
cumulative. Testimony as to the activities of Breen and Wagner was
'The Trial Examiner incorrectly adverts to such leadership on the part of Breen and
Wagner also However, the absence of such leadership in the case of Breen and Wagner
does not, in our opinion , affect the discriminatory nature of their discharge.
829595-50-vol 81-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adduced by witnesses for the Board and the Respondent; and the
Respondent, itself, admitted that Breen and Wagner, in common with
Salmon and Mollica, took part in the work stoppage of August 7. We
are therefore persuaded that the Board has sustained the burden of
proving the allegations of the complaint with respect to Breen and
Wagner.
The Respondent asserts that, after the discharge, it offered to take
back Mollica, Breen, and Wagner. However, we find, as the record
shows, that no specific offer of reinstatement to their former or sub-
stantially equivalent positions was made to any of the complainants.
We find further that the remedy of reinstatement and back pay is ap-
propriate and necessary to remedy the unfair labor practices involved
herein without regard to whether the discrimination against Salmon,
Mollica, Breen, and Wagner be deemed a violation of Section 8 (1)
or 8 (3) of the Act or of both.'
3. The Respondent excepts to the Trial Examiner's findings that it
discriminatorily laid off Baum for union activities. The Respondent
argues that, had it wanted to lay off Baum for union activities, it could
have done so several weeks before the actual lay-off, when Baum's job
was eliminated by the introduction of IBM machines. Instead, the
Respondent's argument continues, it retained Baum by finding other
work for him to do and did not lay him off until this work, too, was
taken over by IBM machines. We find no merit in this contention.
Andreacci, Baum's supervisor, testified that from about the first week
in August, when the IBM machines had eliminated Baum's job of com-
puting the daily balance of unfilled orders, to September 23, the date
of his lay-off, Baum was given work sorting and proving orders. Sig-
nificantly, the reason for discharge, i. e., technological change,10 which
was available to the Respondent early in August was utilized by the
Respondent only after Baum's outspoken advocacy of union organi-
zation in the Respondent's plant which took place from August 19 to
September 23. Accordingly, we find that his union activity rather
than the aforesaid technological change motivated the Respondent in
discharging Baum.
Moreover, assuming the existence of technological change as an
operative factor, the Respondent could have retained Baum had it so
desired. Andreacci testified that Baum was one of the most capable
men in his department who could handle almost any clerical job.
Andreacci also admitted that Baum had informed him that he had
ON. L. R B. v. Tovrea Packing Company , 111 F ( 2d) 626 , 629 (C A. 9), enforcing as
mod, 12 N. L R. B. 1063 , cert. den ., 311 U. S 688; Matter of Gibbs Corporation, 74
N. L R. B. 1182; Matter of General Motors Corporation , 67 N. L. R. B. 965.
10 we do not modify in any way the Trial Examiner 's finding that "the record remains
vague as to the exact manner in which the IBM machine affected the work Baum had
been doing."
DURO TEST CORPORATION 981
had some experience in operating IBM machines. In addition, the
Respondent's stated policy was to try to retain a satisfactory em-
ployee and, if necessary, to assist in training an employee to take over
a new and better job. As the Trial Examiner found, there is no evi-
dence in the record that the job of any other employee was eliminated
by the introduction of the IBM machines. Indeed the Respondent's
treasurer, Ross, testified that additional employees were hired to op-
erate the IBM machines. And, although Ross testified further that
it was the Respondent's policy to hire only female employees in its
offices and that male employees were not added to the IBM depart-
ment until some time after Baum's discharge, i. e., May 1947, it is evi-
dent that this policy was not a rigid one. Thus, Baum himself and
one other male worked as clerks in the shipping department office.
In view of all the foregoing circumstances, and the findings of the
Trial Examiner as set forth more fully in the Intermediate Report, we
find that Baum was discriminatorily laid off 11 for union activities in
violation of the Act.
The Respondent excepts to the finding of discrimination in the dis-
charge of Abbiate. Here again, as in the case of Salmon, Mollica,
Breen, and Wagner, it urges unsatisfactory work, incompetency, and
inattention to duty in justification of its action. However, like the
Trial Examiner, we reject these reasons as not being the true reasons.
And, for the grounds stated in the case of Salmon and Mollica, we
attach no overriding significance to the fact that the Respondent did
not discharge employee Alice Czander, who was a member of the Union
and of the organizing committee, as was Abbiate. We find, therefore,
as did the Trial Examiner, that the Respondent, as part of its campaign
against the Union, determined to discharge Abbiate, an active union
11 The Respondent contends that after Baum was informed that he was being laid off,
"he quit, handed in his badge, and refused to come back and see if there was any other
place where they could put him." The Trial Examiner found, and we agree, that Baum
did come back the next morning, September 24, as requested by the Respondent , but was
told that the Respondent had not been able to find anything for him. Baum has not yet
been called back to work The aforesaid is, in effect, Baum ' s version of the events, which
the Trial Examiner credited, as do we
Bayne's version , however, which is not adverted to by the Trial Examiner, was that he
told Baum that he had not received any job requisitions , but that if Baum "would come
back that afternoon , [ he] would check and see if any work was available ," whereupon Baum
laid down his badge and said , "I am through ," and (lid not come back again. Baum testi-
fied without contradiction that the surrendering of a badge was the practice at the Re-
spondent ' s plant under all circumstances of termination of employment . Assuming,
arguendo , the credibility of Bayne 's version of the conversation of the morning of the 24th
of September , it is clear that the Respondent had no good faith intention of finding
another job for Baum . Bayne admitted that he did not ask Andreacci whether there
was any other place for Baum , nor did Andreacci ask whether he could use Baum on
another job in the shipping department Bayne also admitted that he had not inquired
as to whether there was a place for Baum in the IBM department or in any other depart-
ment In view of the foregoing circumstances , we find , contrary to the Respondent's
contention , that Baum did not voluntarily sever his employment with the Respondent,
and that the Respondent 's lay -off of Baum was made without intention of rehiring him.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supporter, and that the mistakes made by Abbiate in typing letters
on the day of her discharge were a mere pretext. The discharge of
Abbiate was violative of the Act.
The Trial Examiner found, as do we, that the discharge of Vermeal
was also violative of the Act. Here again the Respondent's reason for
the discharge must be rejected as without foundation. Rather do we
conclude, as did the Trial Examiner, that Vermeal's discharge was part
of the Respondent's campaign against the Union and a manifestation
of its determination to discharge the Union's active supporters 12
4. The complaint alleges that the Respondent urged, persuaded, and
warned its employees to refrain from assisting, becoming members,
or remaining members of the Union. The Trial Examiner found,
as do we, that on September 6 or 7, 1946, Supervisor McCulley 13 in-
terrogated employee Abbiate with respect to whether Abbiate had
received "orders" from the Union and what was happening at the union
office. The Trial Examiner properly found further that McCulley
stated to Abbiate that the less she said about the Union, the better off
she would be, and requested Abbiate not to mention the Union to newly
employed girls who "didn't know any better," and would listen to those
"with the loudest mouth." However, the Trial Examiner failed to
conclude therefrom, apparently inadvertently, that the Respondent
thereby violated the Act.
In the light of the above allegations, and because the foregoing state-
ments established affirmatively the truth of such allegations, we find,
under all the circumstances of the case, that by such conduct the Re-
spondent interfered with, restrained, and coerced, its employees in
violation of Sectidn 8 (1) of the Act .14
12 The Intermediate Report contains certain misstatements of fact and inadvertences, none
of which affects the Trial Examiner's ultimate conclusions or our concurrence in such con-
clusions. Accordingly, we make the following corrections: (1) The Trial Examiner
Inadvertently referred to the Union as having been given the privilege of signing up mem-
bers during working hours, when, as the record shows, it was the Association only which
was accorded this privilege. (2) The corrected spelling of the name of the office repre-
sentative in the Association Is Bargna. (3) The Trial Examiner erroneously finds that
at the September 4 meeting with the Association, Simson deplored the absence of Baum
and Abbiate, representatives of the shipping department. The record Indicates that while
Simson stated several times that the shipping department should be represented, he made
no mention of Baum or Abbiate. We note further that Abbiate represented the sales office
employees and not those in the shipping department. (4) In finding that Andreacci
stated that the work stoppage was a factor in the discharge of Salmon, Mollica, Breen,
and Wagner, the Trial Examiner inadvertently referred to "these three employees."
13 The Respondent excepts to the Trial Examiner's finding that Helen McCulley was
Abbiate's supervisor In the Respondent's sales department on the ground that McCulley
was "nothing more or less than a fellow employee . . The record fails to support this
contention. Abbiate testified that McCulley hired her, assigned her to a work station, and
later transferred her to the job of tracing lost correspondence. In addition, she stated
that McCulley authorized employees to take time off to attent meetings and several times
instructed employees to attend office staff meetings. The Respondent did not call McCulley
as a witness In view of the foregoing, we find that McCulley exercised supervisory
authority within the meaning of the Act.
14 Matter of Morrison Turning Go., Inc., 77 N. L. it. B. 670.
DURO TEST CORPORATION
ORDER
983
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Duro Test Corporation,
North Bergen, New Jersey, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Dominating and interfering with the administration of Duro
Test Employees Association, or the formation or administration of any
other labor organization of its employees, and from contributing finan-
cial or other support to Duro Test Employees Association, or any other
labor organization of its employees;
(b) Recognizing the Association as the representative of any of its
employees for the purposes of collective bargaining with respect to
grievances, labor, disputes, wages, rates of pay, hours of work, or other
conditions of employment;
(c) Discouraging membership in any labor organization, or en-
couraging membership in Duro Test Employees Association, by dis-
charging or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner in regard to their hire and tenure of
employment, or any term or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all of such activities except to the extent that such right may be af-
fected 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 by Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from, and completely disestablish,
Duro Test Employees Association, or any successor thereof, as the
representative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment;
(b) Offer Daniel Breen, Salvatore Mollica, Harry Salmon, William
Wagner, Mary Abbiate, Thomas Vermeal, and Maxwell Baum im-
mediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights
and privileges;
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole Daniel Breen, Salvatore Mollica, Harry Salmon,
William Wagner, Mary Abbiate, Thomas Vermeal, and Maxwell Baum
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them, by payment to each of them of a
sum of money equal to the amount which he or she normally would
have earned as wages during the period from the date of his or her
discharge to the date of the Respondent's offer of reinstatement, less
his or her net earnings during said period;
(d) Post at its plant in North Bergen, New Jersey, copies of the
notice attached hereto, marked "Appendix A." 15 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(e) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discharged Muriel Pieroni in violation of Section
8 (3) of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE HEREBY DISESTABLISH DURO TEST EMPLOYEES ASSOCIATION
as the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, and we will not recognize it or any successor thereto
for any of the above purposes.
WE WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
16 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice before the words , "A DECISION AND ORDER " the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
DURO TEST CORPORATION 985
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights or
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of discrimination.
Mary Abbiate Salvatore Mollica
Maxwell Baum Harry Salmon
Daniel Breen Thomas Vermeal
William Wagner
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 or assist any labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any and all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act, as guaranteed by
Section 7 thereof.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any labor organization.
DURo TEST CORPORATION,
Employer.
By------------------------------
(Representative ) ( Title)
Dated--------------------
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
Mr. Sidney Reitman , for the Board.
Burke, Sheridan and Hourtgan , by Mr. John H. Sheridan , of Union City, N. J..
for the respondent.
Mr. Joseph V. Callum, of Union City, N. J., for the Association.
Mr. Morton Stevis, of Newark, N. J., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed on March 14, 1947, by United Electrical,
Radio and Machine Workers of America, Local 448, CIO, herein called the Union,
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Second Region (New York, New York), issued a complaint dated
April 7, 1947, against Duro Test Corporation, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
With respect to the unfair labor practices the complaint alleged, in substance,
that the respondent (1) about March 1942, initiated, formed, and sponsored Duro
Test Employees' Association, herein called the Association, and has subsequently
assisted it and contributed to its support; (2) on August 9, 1946, discharged Dan-
iel Breen, Salvatore Mollica, Harry S ilmon, and William Wagner; on August 12
discharged Muriel Pieroni ; on September 18 discharged Mary Abbiate ; on Sep-
tember 25 discharged Thomas Vermeal ; and on September 23 laid off Maxwell
Baum , for the reason that they joined and assisted the Union or engaged in other
concerted activities for the purposes of collective bargaining; and (3) from about
September 1946, to the date of the complaint, has urged and warned its employees
to refrain from assisting or becoming members of the Union, and to assist and
join the Association.
Copies of the complaint, accompanied by notice of hearing, were duly served
upon the respondent and the Association. On May 5, 1946, the respondent filed an
answer in which it admitted certain allegations of the complaint with respect
to the nature of its business, but denied that it had engaged in any unfair labor
practices . On April 28, the Association filed an answer admitting certain
allegations in the complaint, professed ignorance as to other allegations, and
denied that it was formed or assisted by the respondent in violation of the Act.
Pursuant to notice, a hearing was convened at New York, New York, on May 12,
1947, before George Bokat, a Trial Examiner duly appointed by the Chief Trial
Examiner. On May 15, the undersigned Trial Examiner was designated by the
Chief Trial Examiner to serve in lieu and instead of George Bokat, and conducted
the hearing until its close on June 3, 1947. The Board, the respondent, the Union,
and the Association were represented by counsel and participated in the hearing.
All parties were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
On May 13, counsel for the Board moved to amend the complaint so as to
include the subsidiaries of the respondent, together with their agents and officers,
as persons additionally responsible for the commission of the alleged unfair labor
practices.' The Trial Examiner granted this motion?
Upon the conclusion of the Board's case counsel for the respondent moved to
dismiss the complaint. This motion was denied by the Trial Examiner. Counsel
renewed this motion at the conclusion of the hearing, and ruling thereon was
reserved. It is disposed of by the recommendations hereinafter made. The
undersigned allowed a motion by counsel for the Board to conform the pleadings
to the proof in formal matters. The parties were informed that they might argue
orally before the Trial Examiner and that they might file briefs and/or proposed
findings of fact and conclusions of law with him by June 17. Subsequently this
I The amendment inserted after the word "respondent," wherever it occurred in the
complaint, the words : "by its officers, agents, supervisors, and/or by its wholly owned
subsidiaries , their officers , agents, and supervisors "
2 The respondent claimed surprise as the result of the motion, and the Trial Examiner
stated that at the conclusion of the Board's case the respondent might have 48 hours in
which to prepare its defense. Counsel for the respondent announced his satisfaction with
this condition , and subsequently availed himself of the interval promised.
DURO TEST CORPORATION 987
time was extended by the Chief Trial Examiner to July 3. None of the parties
argued orally. On July 3, 1947, the respondent filed a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation, having its principal office and place
of business at North Bergen, New Jersey, where it is engaged in the sale and dis-
tribution of incandescent and fluorescent lamps, fixtures, and related electrical
products.
The respondent wholly owns five or six subsidiary corporations. Only one
of these, Tungsten Products Corporation, is functioning. Tungsten Products
Corporation is engaged in the manufacture of incandescent and fluorescent
lamps, most of which are sold to the respondent. During the fiscal year ending
July 31, 1946, Tungsten Products Corporation purchased raw materials to the
amount of approximately $227,000, about 50 percent of which was shipped to
its plant or place of business at North Bergen from points outside the State
of New Jersey. During the same period of time Tungsten Products Corporation
sold finished products in the amount of over $800,000, most of which were pur-
chased by the respondent.
The officers of Tungsten Products Corporation are all officers of the respond-
ent. The respondent is a selling and distributing organization, while Tungsten
Products Corporation is a manufacturing corporation. The two corporations
occupy adjoining floors in the same building. Applicants for employment are
cleared through the same personnel office and the two organizations have the
same personnel policy.
The respondent admits that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio and Machine Workers of America, Local 448, and
Duro Test Employees Association, are labor organizations admitting to mem-
bership employees of the respondent. The former is affiliated with the Congress
of Industrial Organizations. The latter is unaffiliated.
III. THE UNFAIR LABOR PRACTICES
A. The Association
Duro Test Employees Association came into existence about 1934 under cir-
cumstances not fully revealed by the record. The respondent insists that prior
to August 1946, when the Association was reorganized in the manner herein-
after set forth, it was primarily a social organization. However, Walter Simson,
who became president of the respondent in 1942, having previously been general
sales manager, testified that prior to 1942 the respondent dealt with the Asso-
ciation concerning wages, hours, and other working conditions, and that shortly
after he became president when a work stoppage occurred at the plant, the re-
spondent negotiated with a committee of the Association a settlement of the
dispute. Simson's pertinent testimony on the point was as follows :
Q. After you became president of the Duro Test Corporation, you do know
that the management recognized the Duro Test Employees Association as
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees for the purpose of dealing with them con-
cerning wages, hours and working conditions, and, in fact, did so deal with
them?
A. That is substantially correct.
Q. Since the 1942 stoppage, and that experience which resulted satis-
factory in the termination of this stoppage, the Duro Test Corporation
has recognized the Association as the representative of the employees and
has so dealt with them, is that correct?
A. Yes.
* * * * * * *
Q. And you have bargained over the period of years since that time con-
cerning wages, hours and working conditions?
A. That is right.
The Association customarily held both its regular and special meetings in the
plant cafeteria, during working hours, and members were paid their wages
while in attendance. Association elections, similarly, were conducted in the
plant. Nor is it disputed that prior to 1946 officers and other representatives
of the Association customarily signed up members and collected dues in the plant
during working hours.
Ellen Pfieffer, president of the Association just prior to August 1946, testified
that all employees of the respondent and Tungsten Products Corporation, in-
cluding supervisors, were eligible for membership in the Association. Higher
executives of the respondent, however, were only "honorary members" who were
exempted from the payment of dues.
The respondent from time to time during the life of the Association has con-
tributed financially to it. For example, in October 1943, it purchased tickets to
dances sponsored by the Association, to the amount of $75. In April 1945, it
contributed $200 for the purchase of uniforms for the Association's baseball
team. In July 1946, apparently for the first time, proceeds of the annual boat
ride, amounting to $105, were turned over to the Association by Eli Kornblum,
its financial secretary. This was during a period when the Union was attempt-
ing to organize the respondent's employees and when Kornblum and other Asso-
ciation officers, according to the former's testimony, were taking steps to counter-
act it. Vending machines were regularly maintained in the plant, the proceeds
of which went to the Association.
Since 1938 Kornblum has been the respondent's credit man. As such, he
directs the work of five or six clerical and stenographic employees in the general
office. He is responsible directly to Vice President Bayne, and draws an annual
salary of $6,000. Kornblum is generally regarded by the employees as part of
management, and the undersigned finds that since 1938 he has been a super-
visory employee whose acts are properly attributable to management.
Kornblum testified that he was present at a meeting where the Association
was first organized, although his recollection was vague as to the attending
circumstances. In 1940, after he became credit man, he was appointed 8 finan-
cial secretary of the Association, a position which he retained, without submit-
ting to the vicissitudes of an election, until the Association was reorganized in
1946. This reorganization came about as the result of a meeting of the officers
and grievance committee of the Association in the respondent's front office,
3 Kornblum testified that he was appointed by the other officers of the Association.
DURO TEST CORPORATION 989
about August 15. Kornblum testified that the purpose of the meeting was to
discuss the "formalizing" and "legalizing" of the Association in view of the
Union's campaign for members . It was decided to consult counsel, and shortly
following the meeting Kornblum along with Pfeffer and Angie Sneath, the latter
the Association 's shop steward , called upon Joseph Cullum. After one or more
conferences with Cullum , held during working hours without loss of pay, a
general meeting of employees was convened in the cafeteria on August 19,
during working hours. The employees attended without loss of pay. Korn-
blum, introduced by Pfieffer as an old and trusted employee who would be glad
to answer any questions those present might ask , addressed the group. He
reminded them that the CIO was organizing the plant and complained that
production was being adversely affected. He suggested that in order to "avoid
any active controversies" the Association should be "formalized ." Thomas
Vermeal , whose subsequent discharge is hereinafter discussed , read from a cir-
cular which the Union was distributing in the plant saying : "Local 448 repre-
sents us, and here is what it has to offer." Maxwell Baum, whose subsequent
lay-off is also alleged to have been discriminatory , protested that the grievance
committee of the Association was "pro-company ." As a result of the discussion
it was determined to form a new committee to meet with management which
would represent all the employees , rather than only Association members.
The committee thus selected included Max Baum as chairman , and as mem-
bers, Mary Abbiate, another employee who subsequently became interested
in the Union, and who is named in the complaint , and a larger group, including
Sneath, whose loyalty remained with the Association. The committee met with
Simson and other officers of the respondent on August 23, with Baum as spokes-
man. Baum presented a list of demands to Simson, who promised to consult
with his fellow officers to determine whether the respondent could negotiate
with the committee . Jack Ross , the respondent ' s treasurer , read to the com-
mittee the Union's demand concerning vacations , and said : "I don't know why
you people want the C . I. 0.," adding that the employees already had a better
vacation plan than that proposed by the Union.
Following this meeting , sentiment in the plant crystallized into pro-Union
and pro-Association factions, and the all-employee committee formed at the
meeting on August 19 never again met with the respondent 's representatives.
At a meeting of the Association which it is stipulated took place between
August 19 and 30, and which was attended by several hundred employees,
Cullum, the Association's counsel, distributed ballots providing for a choice of
"inside" or "outside" union. A majority of the ballots were cast for an "inside"
union.
On August 30 a meeting of the Association took place at which Pfieffer and
Kornblum resigned as officers, and new officers were elected. Violet Samler,
secretary for the previous year, resigned and was reelected . Other officers
chosen were Joe Wares, president, and Joe Bonavito, vice president. Kornblum
turned over the accumulated funds in the Association's treasury to his successor
in office. The meeting, which lasted approximately an hour and a half, was
addressed by Cullum who presented a new set of bylaws, which were adopted.
With one or two exceptions the new bylaws did not differ substantially from
the old bylaws, many of whose provisions were followed verbatim. Whereas,
however, the former bylaws had defined the purpose of the organization as
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
social , the amended bylaws included dealing with the respondent concerning
wages as a principal function.4
The bylaws, as amended, excluded from membership those with "power of
supervision of employment or discharge or who is a supervisor, foreman, super-
intendent, manager, executive officer, stockholder or representative of the cor-
poration." Actually, however, various supervisory employees who had been
members of the Association, continued their membership by signing new appli-
cation cards along with the other members' Association meetings continued
to be held on the last Monday of each month, at the same hour and in the
same place as previously, namely, "the Office and Factory of the Duro-Test
Corporation."
A new grievance committee was formed as the result of the reorganization of
August 30, composed of representatives of all departments excepting the shipping
department where the Union was particularly active. This committee met with
Simson and other respondent representatives at 4: 30 p. in. on September 4,
and demanded that the Association continue to be recognized as bargaining
representative of the employees. Simson asked Joe Wares, newly elected presi-
dent of the Association, to sign an affidavit that a majority of the employees
belonged to the Association, and Wares did so. Simson then declared that the
respondent recognized the Association as representing all departments excepting
the shipping department the absence of whose representatives, Baum and Abbiate,
who had been present at the meeting on August 23, he deplored.' Discussion
was had and agreement reached on the terms of a contract.
At 3:30 p. m. on September 4, an hour before receiving the committee of
the Association, Simson, Ross, and William Bayne, vice president and personnel
officer, had received a committee of seven employees, five of whom, including
Baum and Abbiate, had been members of the all-employee committee which met
with the respondent on August 23. These seven representatives were a faction
of the all-employee committee which was sympathetic to the Union. They were
largely employed in the shipping department. Simson refused to continue the
discussion of August 23. The minutes of the meeting, kept by the respondent,
reveal that the respondent had determined to negotiate only with the grievance
committee of the Association :
Mr. SIMS0N. The Committee was asked last week whether they represented
the Association and they advised they did not. I asked that question because
we had prior to that time recognized the Employees' Association. . . . We
will bargain with any group that can fairly represent the employees. What-
* The purpose clause of the new bylaws reads as follows : "The purpose of this Associa-
tion is to practice, promote and maintain the principles of a social organization among the
employees of the Duro-Test Corporation, to establish and maintain an equitable scale of
wages, to afford the protection against sudden unreasonable fluctuations in the rate of
compensation for labor, to encourage the principles and practice of conciliation in the
settlement of differences between employer and employee and generally to elevate the
position and maintain and protect the interest of employees."
The old bylaws declared that the purpose of the Association was "to practice, promote
and maintain the principles of a social organization."
6 These included Rose Lutz, Helen McCrea, Mildred Kahlert, and Anna McIlveen, all of
whom are carfied on the pay roll as, and whom the undersigned finds to be, supervisors.
Lutz was forelady over 70 to SO employees, including Pfiefer and Sneath
9 The phraseology is from the new bylaws which quoted the old bylaws verbatum in this
respect
4 The minutes of the meeting , in evidence , relate that : "All departments are recognized
with the exception of the shipping department . . . . Mr. Simpson mentioned several times
that the shipping department should be represented."
DURO TEST CORPORATION 991
ever course is taken by the employees it should be for the benefit of all
employees so that they remain undivided rather than divided. We have for
years recognized the Association as a bargaining agent. If we recognize the
Association we would not be doing anything other than what we have done
for years.
MAX (BAUM). Do you think it is fair for us who engage in union activity
to be restricted to non-working hours where the Association is allowed to go
around during working hours to do the same things that we would like to do.
Mr. Ross. The Association is recognized here. If AFL or CIO were in
here and requested time we would have to grant it.
MARY (ABBIATE). A new Association was formed, a lawyer was brought in
and a new contract drawn without advising the non-members . Pledges were
sent around to be signed without non-members knowing new contract had been
drawn.
Mr. SIMSON. This is something I cannot interfere with. It has to be handled-
by the employees themselves.
On September 6, however, before the agreement arrived at between the respond-
ent and the Association on September 4 was reduced to writing, the respondent
received a letter from the Union claiming to represent a majority of the em-
ployees. In view of this development the respondent wrote the Association
on September 9 enclosing a copy of the Union's letter, and advising it that it
would not be able to sign a contract with the Association until the question
of representation which had arisen had been decided by an election.
Conclusions as to the Association
The respondent contends that the Association, before August 30, 1946, was
"primarily" a social organization , and that the reorganization on that date re-
sulted in a labor organization entirely separate and distinguishable from the
Association and free from any stigma of respondent domination or interference.
The record does not support either of these contentions. Simson freely admitted
having dealt continuously with the Association since 1942 as the bargaining repre-
sentative of the respondent's employees, and all the other evidence in the record
supports this admission . The Association, before August 30, 1946, had almost
every characteristic of an organization favored and supported by an employer,
including meetings on company time and property, financial assistance, and the
active participation of supervisory employees. Its leading spirit and financial
secretary, from 1940 to 1946, was a trusted supervisory employee who held office
without the formality of election, and apparently principally by virtue of his
relationship to management.
The change which took place on August 30, 1946, was one of form rather than
substance. The name of the Association was unchanged ; the place of meeting
remained the same and the reqirement that it be on the respondent' s property
was written into the constitution ; the amended bylaws were in large part copied
verbatim from the previous bylaws ; the "new" Association was formed at the
final meeting of the "old" Association, and the funds which had accumulated
over a number of years in the treasury of the "old" Association were turned over
by Kornblum to the financial secretary of the "new" Association. No break
of any kind with the organization as it formerly existed is discernable to the
undersigned, nor does the undersigned believe that any employee in the respond-
ent's plant could have noted any substantial difference between the Association
as it was before August 30, 1946, and as it became after that date. Although
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the Association was thereafter barred by the bylaws to certain
higher supervisory employees, various other supervisors continued their previous
membership in the Association by signing new application cards.
The respondent continued its recognition of the Association after August 30,
Simson stating to the anti-Association and pro-Union committee which called
at his office on September 4, that in doing so the respondent "would not be
doing anything other than we have done for years." The respondent thus
obviously regarded the Association as the same as that with which it had
previously dealt. On the same day Simson denied the request of the anti-Associa-
tion and pro-Union faction, put forth by Baum, that it be given the privilege of
signing up members during working hours, a privilege which the respondent
freely accorded the Union.
The undersigned concludes and finds that the respondent has dominated, pro-
moted, and interfered with the Association, and has contributed financial and
other support to it, thereby interfering with, restraining and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges
1. The discharges on August 9, 1946
Daniel Breen, Salvatore Mollica, Harry Salmon, and William Wagner came
to work for the respondent during the early part of 1946, as packers and helpers
in the shipping department. Their foreman was James Andreacci.
In July 1946, the shipping department, then located in Union City, New Jersey,
was moved to North Bergen, New Jersey. There was little or no packing to be
done during the moving, and the women packers were laid off for 2 weeks. The
men packers dismantled the packing room, loaded the stock of lamps and fixtures
on trucks, and assisted in setting up the equipment in the new location. When
called upon to load certain lumber, however, Breen, Salmon, and Wagner s refused,
asserting that they were employed as packers, not as movers. Andreacci ad-
mitted while testifying that these employees had never previously refused to
do any work assigned them, and stated that he did not discipline them on this
occasion because, as he put it, "Maybe they were right. They weren't hired to
deliver lumber." The lumber was finally moved by an outside trucking concern.
Breen, Mollica, Salmon, and Wagner participated in setting up the shipping
room at the new location. But Salmon, at least, and apparently the others as
well, expressed reluctance when it came to sorting electric bulbs and lamps,
work which was ordinarily done by the stock clerk Although Andreacci first
testified that Salmon refused to perform this task, he later stated that he did so
half heartedly and made a number of mistakes. Asked why be did not discharge
Salmon at this time, Andreacci replied that he could not remember, but that it
could have been because he felt that Salmon's reluctance was justified. Although
Andreacci's testimony was less clear with respect to Breen, Mollica, and Wagner,
it is implicit in his testimony that he imputed to these employees the reluctance
which he attributed to Salmon. His testimony concerning Breen, for example,
was in part as follows :
Q. Let me ask you this: Did you notice Breen wasting his time sketching
before the moving of the lumber incident arose?
A. I don't know exactly what day it was.
e Mollica was driving a truck during the moving and was not involved in the refusal
to move the lumber.
DURO TEST CORPORATION 993
Q. What is that, you do not remember whether it was before that or
after?
A. No. I know he was sketching during the move.
Q. Did his refusal to move the lumber have anything to do with his dis-
charge?
A. I don't think so.
Q. It had nothing to do with the discharge. Well, he did refuse to move
the lumber?
A. Yes.
Q. What was Breen's job?
A. Packing.
Q. (By Trial Examiner RUCKEL.) Who moved this lumber finally?
A. A trucking concern, sir.
Q. What was it that Breen should have been doing if he wasn't moving the
lumber instead of sketching?
A. He could have come down to the plant and helped us sort out the stock.
Q. What do you mean, coming down to what plant?
A. They was up at 43rd Street.
Q. And he was doing sketching up at 43rd Street?
A. I don't know exactly what day it was, at 43rd Street or the other plant.
The men were moving from building to building.
Q. When he was at 43rd Street you say he could have come down and
helped in the other plant. What work was there to do at the other plant?
A. Sorting stock out and unloading trucks.
Q. Was that his regular work?
A. He was a packer.
Q. Did you direct him to do so?
A. Yes.
Q. Did he refuse to come down with these other people?
A. He didn't refuse to come with the other people.
Q. When lie was sketching up there you did not direct him to come down to
the plant and do something else?
A. All the men refused to move the lumber.
Q. Did you ask him to go down to the other plant?
A. All the men.
Q. So he did come down to the other plant?
A. That is right.
Q. What did he do when he came down to the other plant?
A. I imagine he did work like someone else did.
Q. Did he refuse to do any work except moving lumber?
A. I think it was the same principle with Breen. They were all supposed
to be sorting at the time.
Q. (By Trial Examiner RUCKEL). He did not refuse to do work?
A. No, lie didn't exactly refuse and say, "I don't want to do it." He did do
it but he didn't do it correctly.
The setting up of the shipping room was completed before the end of July, and
the four employees were engaged in their usual work of packing for a week or
10 days prior to August 7, when the events occurred which immediately culmin-
ated in their discharge.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been found above, there had been for some time considerable discontent
in the plant centering principally in the shipping department. This department,
alone among the various departments of the plant, was not represented at the
meeting on September 4 between representatives of the respondent and the Asso-
ciation. Simson's concern at this fact, and the packers' interest in the Union and
their lack of enthusiasm for the Association, have been noted.
But neither Breen, Mollica, Salmon, or Wagner, although oriented in the di-
rection of the Union, had as yet joined that organization when at 8: 30 a. m.
on August 7, upon reporting for work, the employees in the packing room 9 ad-
vised their immediate supervisor, Charles Ginhoefer, that they were not going to
start until they received an increase in wages. Ginhoefer summoned Andreacci,
who summoned Simson. Simson , after a brief discussion with the packers, ad-
vised them to choose a committee to come up to his offhce and discuss the matter.
The employees elected a committee consisting of Salmon as chairman, and Mol-
lica and Lillian Dunseath. This committee met in Simson's office from about
10 to 11: 30 o'clock. The other packers resumed work when the committee left
to see Simson . The meeting was described as follows by Salmon, whom the under-
signed found to be a credible witness, and whose testimony is not in dispute on
this point :
Q. What was the substance of the conference?
A. He wanted to know why we were not working in the shipping department
and we told him we were not getting enough money. We told him we wanted
an increase up to 95 cents an hour. He said he could not give us any kind of
increase unless he saw the rest of the members of the firm, Mr. Bayne and
Mr. Ross. He said he would have to talk it over, so he called Mr. Bayne and
Mr. Ross into the office and Angie Sneath, and he told us Angie Sneath was
the chairman of the grievance committee. We asked him, "What grievance
committee"' We had not heard anything about a grievance committee.
Q. What happened then?
A. Well, he told us how the organization down in the plant was working.
He said , "I guess we have neglected you from being up on 43rd Street".
Q. What organization did he mention?
A. The Duro Test Employees Association.
Q. Did this come to any conclusion after your conference with Mr. Simson?
A. No. He said he would give us his answer at 4 o'clock that afternoon.
Q. When you were up talking to Mr. Simson, did the people go back to
work?
A. Yes.
Simson appeared in the shipping department at 5 o'clock that afternoon. Sal-
mon's further testimony as to what transpired, similarly uncontradicted in the
record, was as follows :
Q. What was his ( Simson's ) reply?
A. He told us that he could not afford to give us 95 cents an hour, but
they would consent to give everybody in the shipping department a nickel an
hour more. He said that when he investigated he found we were getting
paid lower than the rest of the plant.
Q. Did he address the committee when he came down at five o'clock, or did
he talk to all of the employees?
A. Everybody working in the shipping department.
9 The shipping department included the packing room and the shipping department office.
DT3RO TEST CORPORATION 995
Q. Did the employees make any reply?
A. We told him that we would let him know the next morning.
Q. Who said that?
A. The committee told him. I told him. I said we could not decide right
then and there. Everybody would have to say something about it in the
department.
An appointment with Simson was made for 10 o'clock the next morning,
August 8. Salmon continued his description of events as follows :
Q. (By Mr. REITMAN.) What happened in Mr. Simson's office at ten
o'clock?
A. Well, we told him we did not think a nickel an hour was enough for a
raise, so he told us that the company could not afford to give us any more
than a nickel an hour, and we told him we didn't want to go back to work
unless we got more than 5 cents an hour.1° We argued pro and con a good
part of the morning, and he suggested that the chairman of the committee
get together with Mr. James Andreacci and try to work out a scale of
merit increases up to $1 an hour.
The events of the next day, Friday, August 9, were credibly related by Salmon
as follows :
Q. Getting back to Friday, August 9, did you work a full day that day?
A. Yes.
Q. Did anything happen at the close of that day?
A. About five minutes to five, one of the office girls told us we were wanted
up in the office.
Q. Who was wanted?
A. Myself, Mollica, Daniel Breen, and Wagner.
Q. What did Mr. Harborth n say to you, and what did you say to him?
A. I can't remember exactly, but he said something about conditions being
unsatisfactory in the shipping department and this would be our last check
from Duro Test, and he asked us if we had our badges with us.
He said to turn them in and we would get a dollar for them.
Q. Did you answer him, did you say anything to Mr. Harborth?
A. Yes.
Q. What did you say to him?
A. I told him the place was a sweat shop and we were going to try and
unionize it.
Breen, Mollica, Salmon , and Wagner joined the Union that night.
Andreacci, who was in Harborth's office, and who had himself made the de-
cision to discharge these four employees , admitted that they were not given
any reason other than as testified to by Salmon, and related above. At the
hearing, however, Andreacci advanced the reasons that Breen, Salmon, and
Wagner had not cooperated well in the moving, and that he had heard from
10 Salmon means by this that the men did not want to continue work permanently on that
basis. Actually, as has been found, the department had already resumed work, pending the
outcome of the negotiations with Simson, and the committee members themselves continued
with their work when not in conference with Simson.
11 Harborth was a supervisory employee who had been placed in charge of the moving as an
"expediter."
829595-50-vol. 51-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harborth that Mollica had driven his truck into the side of a building." The
foundation for Andreacci's complaint as to Breen, Salmon, and Wagner has been
discussed above. As to the complaint against Mollica, Andreacci admitted that
he had never discussed it with him, and that he had made no investigation to
determine its truth. Mollica denied that he had ever driven his truck into the
side of a building. Harborth was not called as a witness. The undersigned
,credits Mollica's denial as against the hearsay testimony of Andreacci 13
On cross-examination Andreacci admitted that the participation of these
three employees in the work stoppage on August 7 was a factor in his decision
to discharge them.
It is clear from the record that any complaints which the respondent might
have bad at one time or another against these employees served only to ration-
alize the discharges on August 9. They took place one day after the respondent
had raised their wages 5 cents an hour. Between this event and their discharge
on the following day, nothing is alleged to have transpired in connection with
their work which precipitated, or in any wise affected, the discharges. The
conclusion is inescapable that, upon thinking over the work stoppage of August
7, the respondent came to the determination to get rid of the individuals who
were leaders of the shipping department employees in their attempts to bargain
collectively.
2. The other discharges
Max Baum. Baum first came to work for the respondent in June 1946, and
was assigned to the shipping department office, where he did stock accounting,
proofread orders, and operated an adding machine. He joined the Union on
August 20, and along with Abbiate, Vermeal, and others, became a member of
its organizing committee. His chairmanship of the all-employee grievance com-
mittee, which met with the respondent on August 23, has been mentioned, as has
his subsequent alignment with the faction of that committee which favored the
Union, and his chairmanship of the pro-Union grievance committee which came
about as the result of the split in the all-employee committee. At the meeting
of the pro-Union committee with management on September 4, Baum, as has
been observed, voiced his protest at the privileges accorded the anti-Union fac-
tion and refused, as he contended, to the pro-Union group.
On September 23, at the end of the day's work, Andreacci instructed Baum
to report to Bayne's office where Bayne told him that the respondent's chief
auditor, Slayne, had recommended that his job be eliminated and that the
work which he had been doing be turned over to the IBM department. At the
time, Baum had been for two weeks checking new orders for errors, and just
prior thereto had been keeping* a record of sales on the adding machine. Baum
replied to Bayne that he believed that he was being laid off because of his activi-
ties on behalf of the Union. Bayne denied that was the case, and told him to
report to him the next morning and he would let him know if there was any-
thing else in the plant which he could do. On the following day Bayne in-
formed Baum that he had not been able to find anything for him, and Baum
has not yet been called back to work.
3' As to Wagner, Andreacci testified that he was "not capable of being any help to the
shipping department," without going into detail
13 Hearsay, that is, so far as the alleged accident itself is concerned Whether or not
Andreacci believed that Mollica had had such an accident the undersigned does not believe
it necessary to find, inasmuch as it is hereinafter found that Dlollica was discharged for his
concerted activities with other employees.
DURO TEST CORPORATION 997
Bayne testified that the decision to eliminate Baum's job in accordance with
Slayne's recommendation was made in June or July, but that he could not recall
why the change was not made until the latter part of September, although he
stated that he thought that the respondent was awaiting a certain piece of
IBM equipment. There is no evidence that the job of any other employee was
eliminated as the result of the auditor's recommendation. Bayne admitted that
Baum was a good worker and that there was work in his department which Baum
might have done, but which he did not offer him. Baum testified that he had
had some experience on IBM machines, and that he had so informed Andreacci.
Andreacci did not deny Baum's testimony in this respect. Slayne was not
called as a witness, and the record remains vague as to the exact manner in
which the IBM machine affected the work Baum had been doing.
Baum testified credibly and without contradiction that one evening about
August 29 Baum had supper with Andreacci, that they discussed the rival labor
organizations in the plant, and that Baum told Andreacci that he was a member
of the Union. Andreacci, according to Baum, told him that he was "a smart
fellow," and that if he would leave the Union alone he, Andreacci, could push
him ahead, but that with a union in the plant Baum would be "a nobody."
The testimony concerning the reason for laying off Baum is unsatisfactory
and unconvincing. It is not clear why he could not have been transferred to the
IBM department, particularly in view of the fact that the respondent knew that
he had had some previous experience with IBM machines, and the further fact
that Baum was an admittedly good worker. The undersigned is of the opinion,
and concludes, that the reason for Baum's lay-off is to be found in his outstanding
activities on behalf of the Union, hereinabove related.
Mary Abbiate. Abbiate was first employed by the respondent in June 1946,
as a stenographer and clerk in the sales department. Her immediate super-
visor was Helen McCulley. She joined the Union on August 20, 1946, the day
after the meeting called to discuss the reorganization of the Association, and
became a member of the Union's organizing committee. Later, as has been
seen, Abbiate, together with Max Baum and a few other employees, allied them-
selves openly with the pro-Union faction of the all-employee grievance com-
mittee which called on Simson on the afternoon of September 4, just previous
to a similar visit by the grievance committee of the Association. The respond-
ent's reaction to this meeting has already been described. On this occasion
Abbiate, like Baum, registered her criticism of the Association.
After the second meeting on the afternoon of September 4, at which the re-
spondent announced that it would continue to recognize only the Association as
representative of its employees, the Association lost no time in bettering its
position in the plant. Wares and other officers of the Association went through
the plant addressing groups of employees and obtaining new membership appli-
cations. Late in the afternoon of September 4, for example, the entire office
force including Helen McCulley, Abbiate's supervisor, and Helen Steiner, secre-
tary to James Sommers, the respondent's sales manager, was called into a meet-
ing in the file room where Association application cards were distributed.
Wares, according to Abbiate's uncontradicted and credible testimony, told the
members of the group that if they wished to continue their employment with
the respondent they would have to join the Association. On the following day,
Abbiate, on McCulley's advice, attended a meeting in Simson's office where the
respondent's officers and supervisory employees, including McCulley, were pres-
ent. Simson on this occasion stated that "outside forces" were leading to 6'dis-
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turbance and confusion" in the office, and gave them an account of the respond-
ent's history. At the conclusion of his address Simson asked the employees
if they had any complaints, particularly addressing his question to Abbiate. Ab-
biate related several. A day or so later Bragna, representative of the office
employees in the Association, engaged in a conversation with Abbiate which
was observed, if not overheard, by McCulley. During the conversation Bragna
told Abbiate that she was too "thick headed" in her support of the Union. After
Bragna had left, McCulley sat down next to Abbiate and asked her why she
was continually talking about the Union. A discussion followed concerning the
relative merits of that organization and the Association, and McCulley told
Abbiate that the less she said about the Union the better off she would be.
In particular she requested Abbiate not to mention the Union to newly employed
girls who "didn't know any better," and would listen to those "with the loudest
mouth." McCulley also asked Abbiate if she had received "orders" from the
Union, and what was happening at the Union's office. Abbiate challenged Mc-
Culley's right to make such an inquiry, and McCulley brought the conversation
to an end by stating that she did not believe there was "much that could be
done" with Abbiate. Abbiate testified without contradiction that this conversa-
tion lasted for over an hour. McCulley was not called as a witness, and Ab-
biate's description of the conversation remains without contradiction in the
record.
On September 6, Abbiate was assigned for the first time to tracing misplaced
correspondence, and was transferred to a desk in the rear of the office where
she was told that she was not to talk to the other employees. Abbiate testified
credibly, still without contradiction, that thereafter every time she went to
the filing room or to the women's rest room McCulley followed her and stayed
with her until Abbiate left. On September 12, Abbiate was transferred to the
sales department to work under Steiner, Sommer's secretary.
About 3 o'clock on the afternoon of September 18, Sommers called Abbiate to
his office and dictated a number of letters to her, which Abbiate was told must
be ready by quitting time at 5: 30 p. in. At that time Sommers called her
attention to several mistakes in the letters she had just completed, and reminded
her of a mistake she had made sometime before while working in the general
office under Bayne, as the result of which a salesman had been over paid $56
on a commission . On Sommers' instructions Abbiate reported back to Bayne,
who told her that she was discharged.
Sommers, called as a witness , was unable to recall the exact nature of the
errors which Abbiate made. Bayne testified that he had come to the conclusion
that Abbiate was not a satisfactory stenographer about 2 weeks after she was
hired, or in August 1946. He continued her at stenographic work, however,
alternating it with clerical work. He admitted that he could not remember ever
having spoken to her about her work, and he particularly could not recall men-
tioning the $56 mistake in a salesman 's commission , which was the only error
which he specifically recalled while testifying. He stated that he sent her over
to Sommers' office because Sommers had requested additional stenographic help
and he believed that she might do better under his supervision than under his own.
Bayne was not an impressive witness. He testified that he did not know that
Abbiate was interested in the Union, although he was present in Simson's office
on August 23, and again on September 4, when Abbiate was present as a rep-
resentative of the pro-Union employees. He further stated that he was unable
to recall anything that had happened at either of these meetings. Moreover,
Bayne, when asked how he knew that clerical work which he described as
DURO TEST CORPORATION 999
unsatisfactory was actually done by Abbiate , replied that the work "might
have been" initialed by the clerk who did it. Although he stated at first that
he did not know whether each clerk put her initials on the orders which she typed,
lie later stated that he thought that she did, although he was not sure , and still
later that they were "always" initialed "as far as I know." Neither could Bayne
recall what the conversation was when he discharged Abbiate, except that he
"imagined" that he told her that her work was unsatisfactory.
McCulley, Abbiate's supervisor while she was working under Bayne , and Steiner,
who gave her directions while she was working for Sommers , would have been
witnesses most likely to throw some light upon Abbiate's efficiency . Neither, how-
ever , was called as a witness . So far as Abbiate 's qualifications are concerned
the undersigned , therefore , must rely upon her own testimony , which is sufficiently
concrete , and the more general testimony of Bayne and Sommers. Although he
believes that Abbiate was only fairly satisfactory as a stenographer and clerk,
there is nothing in the record from which to draw a conclusion that she was
less competent than other employees doing similar work . It is noteworthy that
Bayne, under whom Abbiate worked during most of her term of employment,
was unable to recall any specific mistakes excepting the one pertaining to a
salesman 's commission , and he could not recall having spoken to her about this.
Neither is there any evidence in the record that McCulley ever spoke to Abbiate
about any mistakes she may have made . On the other hand , Abbiate was, along
with Baum , the outstanding proponent of the Union in the plant . She was on
its organizing committee, and it is apparent from the record that her activity was
enthusiastic and outspoken . As has been found , both Wares , the president of
the Association , and McCulley , Abbiate 's own supervisor , attempted to persuade
her to support the Association and criticized her for being too active in the
Union.
The record in this case is one where the employer is revealed as actively sup-
porting a company union in order to defeat outside organization . The under-
signed believes and finds that the respondent , as part of its campaign against the
Union, determined to discharge not only Baum and Abbiate but others of the
Union 's active supporters.
Thomas Vermeal . Vermeal first came to work for the respondent in February
1946, as a packer in the shipping department under the foremanship of Andreacci.
He was subsequently promoted to order filling , although he occasionally packed
when there was a rush . He attended the meeting in the cafeteria on August 19,
and when Kornblum advised the employees to "formalize " the Association as a
means of combating the Union , Vermeal accused Kornblum of representing the
respondent and asked if it would be permissible to bring an organizer for the
Union into the plant to speak to the employees . Upon Kornblum's replying that
the employees were capable of speaking for themselves , Vermeal read a series
of demands upon the respondent , then being circulated by the Union, and
discussion ensued.
Vermeal joined the Association in June 1946, and the Union the following
August. Like Baum and Abbiate he became a member of the Union 's organizing
committee . On September 5 Wares approached Vermeal as he had Baum, and as
Bagna had Abbiate, and asked Vermeal to sign a new membership card in the
Association stating, however, that he could not become a member of the As-
sociation unless he gave up his membership in the Union.
Vermeal 's transfer to order filling was brought about by Andreacci about a
month after Vermeal was hired , because Vermeal disliked packing and Andreacci,
according to his own testimony , wanted to obviate his complaints . About 2
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks before he was discharged , Ginhoefer , Vermeal's immediate supervisor,
temporarily assigned him to packing because of a shortage of packers . Vermeal
protested to Andreacci , stating that he believed that he was being assigned to
duty which he did not like because the respondent knew that he was active in
the Union and wanted to force his resignation . Andreacci denied that was the
reason, and Vermeal , under protest , performed the packing assigned him by
Ginhoefer . Later that day Simson called Vermeal to his office and told him that
he should not assume that the four packers who were discharged the month
previous were let go because of their union activity . Simson characterized
Vermeal as "headstrong", and advised him to apologize to Andreacci.
Vermeal worked at packing for about a week on this occasion , and about
September 16 resumed his regular work of order filling. On September 23,
Vermeal asked for the following day off, and Andreacci granted it . When Ver-
meal returned to the plant on September 25 he was stopped at the plant gate
and referred to Bayne. Bayne told him that his final pay check had been mailed
to him the day before to save him the trouble of reporting for work that morning,
and that he was discharged because of reports that his work was unsatisfactory.
Andreacci testified , and Vermeal admitted , that the latter usually complained
when temporarily assigned to packing. It does not appear , however, that Vermeal
made any more complaints than usual when last assigned to packing , 2 weeks
before his discharge . Moreover , neither Andreacci nor any one else, on behalf
of the respondent , testified to any dissatisfaction with Vermeal's order filling,
either in general or during the period immediately preceding his discharge.
The undersigned does not find credible the respondent 's defense that Vermeal
was discharged because of his complaints about packing , in view of the fact that
the respondent had promoted him to order filling for the express purpose of
providing him work which would be more congenial. Thereafter, Vermeal's
regular job was order filling. He expressed no dissatisfaction with this work,
nor did the respondent complain as to his performance of it.
The undersigned concludes and finds that Vermeal was discharged on Septem-
ber 23, 1946, because of his membership in and activity on behalf of the
Union.
Muriel Pieroni . Pieroni came to work for the respondent in March 1946,
as a clerical worker in the shipping department , under the foremanship of
Andreacci .. She was discharged on August 12. She did not participate in the
work stoppage on August 7, as a result of which the undersigned has found that
four employees in the shipping department were discharged , although she was
advised by Salmon that there was going to be a stoppage . On the afternoon
of August 7, she had a brief conversation during the noon hour with Salmon,
which she stated she believed to have been unobserved , and on the next day she
was in conversation with him on one occasion when Andreacci passed by. She
testified that later the same day Andreacci again saw her talking with Salmon.
This time, according to her testimony , Andreacci reproved her for being away
from her work . On the next morning, Friday, August 9, she had another and
final conversation with Salmon , which she stated that Andreacci could observe,
although he said nothing to her. Pieroni did not work on Saturday , August 10,
a regular work day, because she was not feeling well. She admitted that she
did not obtain permission to be absent . When Pieronireported to the plant on
Monday, August 12, she was called to the office where Harborth told her that she
was discharged because her work was unsatisfactory.
On August 5, a week prior to her discharge , Pieroni decided that she was not
being paid enough , and accordingly told Andreacci that she was quitting because
DURO TEST CORPORATION 1001
she had been promised a wage increase when she first came to work and she had
not received it. It it admitted that Andreacci on this occasion raised her wages
four dollars a week to the sum which she had been promised. She had received
one pay which reflected this increase, prior to her discharge.
Andreacci testified that Pieroni was discharged because she talked too much
and neglected her work. He explained the wage increase given Pieroni as being
a final effort on his part to get Pieroni to do better. He further stated that,
as he recalled it, her unexcused absence on the Saturday before her discharge
was a factor in his decision to let Pieroni go.
The undersigned does not find it necessary to discuss more fully the validity
of the reasons assigned by the respondent for Pieroni's discharge, for Pieroni
neither joined the Union prior to her discharge nor engaged in any other form
of concerted activity, not excepting the work stoppage on August 7. The theory
of the Board seems to be that Andreacci suspected that Pieroni and Salmon were
discussing either the work stoppage or the Union, and concluded from this that
Pieroni was a member of the Union. The difficulty with this theory is the fact
that Salmon himself was not a member of the Union at the time the conversa-
tions took place, and it is hardly likely that Andreacci determined to discharge
Pieroni because he believed that she was talking about a work stoppage in which
she had not participated.
The undersigned concludes and finds that Pieroni was discharged for legitimate
business reasons and not for her concerted activity with other employees.
The undersigned finds that the respondent discharged Daniel Breen, Salvatore
Mollica, Harry Salmon, William Wagner, Mary Abbiate, and Thomas Vermeal,
and laid off Maxwell Baum, because of their concerted activities for the purposes
of collective bargaining and other mutual aid or protection, and that thereby
the respondent discriminated in regard to their hire and tenure of employment,
discouraged membership in the Union and interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and 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 unfair labor practices within
the meaning of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent dominated and interfered with the
formation and administration of, and contributed support to, the Association.
Its continued existence is a consequent violation of the Act, thwarting the pur-
poses of the Act, and would render ineffective a mere order to cease the unfair
labor practices. In order to effectuate the policies of the Act and free the em-
ployees from such domination and interference and the effects thereof which
constitute a continuing obstacle to the exercise by the employees of the rights
guaranteed them by the Act, it will be recommended that the respondent refrain
from recognizing the Association as the representative of its employees for the
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment,
and disestablish the Association as such representative.
It has been found that the respondent discriminatorily discharged Daniel
Breen , Salvatore Mollica, Harry Salmon, William Wagner, Mary Abbiate and
Thomas Vermeal, and discriminatorily laid off Maxwell Baum, thereby discour-
aging concerted activities by its employees. In order to effectuate the policies
of the Act, it will be recommended that the respondent offer these employees
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges,
and that the respondent make them whole for any loss of pay they may have
suffered by reason of the discrimination against them by payment to each of
them of a sum of money equal to that which he normally would have earned as
wages from the date of his discriminatory discharge or layoff to the date of the
respondent's offer of reinstatement, less his net earnings " during said period.
Finally, because of its widespread hostility to the efforts of its employees to
organize as demonstrated by this record, indicating an intent to interfere
generally with the rights of the employees as guaranteed by the Act, the under-
signed will recommend that the respondent cease and desist from in any other
manner interfering with, restraining or coercing its employees in their right to
self-organization 13
Upon the basis of the foregoing findings of fact, and upon the entire record of
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio, and Machine Workers of America, Local 448,
affiliated with the Congress of Industrial Organizations, and Duro Test Employ-
ees Association, unaffiliated, are labor organizations within the meaning of
Section 2 (5) of the Act;
2. By dominating and interfering with the formation and administration of
Duro Test Employees Association, and by contributing support to it, the respond-
ent has engaged in unfair labor practices within the meaning of Section 8 (2) of
the Act ;
3. By discriminating in regard to the hire and tenure of employment of Daniel
Breen, Salvatore Mollica, Harry Salmon, William Wagner, Mary Abbiate, Thomas
Vermeal and Maxwell Baum, thereby encouraging membership in Duro Test
Employees Association and discouraging membership in United Electrical, Radio,
and Machine Workers of America, Local 448, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (3) of the
Act ;
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of the
Act ;
5. The aforesaid labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act;
6. The respondent has not violated the Act by discharging Muriel Pieroni.
14 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498.
1i See May Department Stores v. N. L. R. B ., 326 U . S. 376, affirming , as modified, 146 F.
(2d) 66 (C. C. A. 8) enforcing 53 N. L . R. B. 1366.
DURO TEST CORPORATION 1003
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Duro Test Corporation, its officers,
agents, successors and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Duro Test Employ-
ees Association or with the formation or administration of any other labor organ-
ization of its employees, and from contributing financial or other support thereto ;
(b) Recognizing Duro Test Employees Association, or any successor thereto, as
the representative of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment ;
(c) Discouraging membership in United Electrical, Radio, and Machine
Workers of America, Local 448, affiliated with the Congress of Industrial Organi-
zations, or encouraging membership in Duro Test Employees Association, by
discriminatorily discharging and refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment ;
(d) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the rights to self-organization, to form labor organi-
zations, to join or assist United Electrical, Radio, and Machine Workers of
America, Local 448, affiliated with the Congress of Industrial Organizations, or
any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Duro Test Employees Association as the
representative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and completely disestablish
Duro Test Employees Association as such representatives ;
(b) Offer to Daniel Breen, Salvatore Mollica, Harry Salmon, William Wag-
ner, Mary Abbiate, Thomas Vermeal, and Maxwell Baum immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges;
(c) Make whole Daniel Breen, Salvatore Mollica, Harry Salmon, William
Wagner, Mary Abbiate, Thomas Vermeal, and Maxwell Baum for any loss
of earnings they may have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to the amount which
he would normally have earned as wages but for the discrimination against him,
in the manner set forth in the section entitled "The remedy" ;
(d) Post at its plant copies of the notice attached hereto, marked "Appendix
A." Copies of said notice, to be furnished by the Regional Director for the
Second Region, after being duly signed by the respondent's representative, shall
be posted by the respondent immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondent to insure that said notices are not altered,
defaced or covered by other material;
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Second Region in writing, within
ten (10 ) days from the receipt of this, Intermediate Report, what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the
date of the receipt of the Intermediate Report the respondent shall notify said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent discriminatorily discharged Muriel Pieroni.
As provided in Section 203.46 of the Rules and Regulations of the National
,Labor Relations Board, Series 5, effective August 22, 1947, any party may,
within twenty ( 20) days from the date of service of the order transferring
the case to the Board , pursuant to Section 203 45 of said Rules and Regulations,
file with the Board, Rochambeau Building , Washington 25, D. C, an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding ( including
rulings upon all motions or objections ) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period , file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the tiling the same shall serve a copy
thereof upon each of the other parties . Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203 S5. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten ( 10) days from the date of service of the
order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions
and order , and all objections and exceptions thereto shall be deemed waived
for all purposes.
HORACE A. RuoKEL,
Trial Examiner.
Dated September 11, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations 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 HEREBY DISESTABLISH DuRO TEST EMPLOYEES ASSOCIATION as the repre-
sentative of any of our employees for the purpose of dealing with us con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and we will not recognize it or any suc-
cessor thereto for any of the above purposes.
WE WILL NOT dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.
DURO TEST CORPORATION 1005
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights or privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Mary Abbiate Salvatore Mollica
Maxwell Baum Harry Salmon
Daniel Breen Thomas Verlneal
William Wagner
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 or assist UNITED ELECTRICAL, RADIO, AND MACHINE
WORKERS OF AMERICA, LOCAL 448, C I. 0, 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. All our employees are free to become or
remain members of this union, or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership in
or activity on behalf of any such labor organization.
DuRo TEST CORPORATION,
Employer.
Dated--------------------- By -----------------------------(Representative) (Title)
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.