E. A. Laboratories, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1949

87 N.L.R.B. 233 (N.L.R.B. 1949)

III the Matter of E. A. LABORATORIES, INC. and FOREMAN'S ASSOCIATION
OF AMERICA, CHAPTER No. 104
Case No. 2-C-6259.-Decided November 23, 1949
DECISION
AND
ORDER
On September 7, 1948, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had unlawfully discriminated against six supervisory
employees named in the complaint, in violation of Section 8 (1) and
(3) of the Act and recommending that the Respondent offer them re-
instatement with back pay, as set forth in the copy of the Intermediate
Report attached hereto. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations.' The Re-
spondent thereafter filed exceptions to the Intermediate Report and
a supporting brief.
The Respondent asserted, inter alia, that the Trial Examiner erro-
neously rejected certain offers of proof by it concerning the purpose of
the foremen's strike. To avoid any possible prejudice to the Respond-
ent, the Board, on March 25, 1949, remanded the case to the Trial
Examiner to receive evidence from all parties as to the purpose of the
foremen's strike and to make findings with respect thereto.
A supplemental hearing was held on April 12, 1949, and on May 25,
1949, Trial Examiner Ruckel issued his Supplemental Intermediate
Report, a copy of which is attached hereto. The Trial Examiner,
after finding that the "purpose of the foremen's strike was to support
the strike of the production workers," reiterated his Conclusions of
Law and Recommendations contained in his original Intermediate
Report. Thereafter, the Respondent filed exceptions to the Supple-
mental' Intermediate Report with a supporting brief.
1 The complaint also included a number of other foremen who had been reinstated after
the events under consideration and who , the Trial Examiner found , were later either dis-
charged for cause or who voluntarily resigned . As to these foremen , the Trial Examiner
recommended dismissal of the complaint . Since no exceptions were filed , the complaint a,
to them will not be further considered.
87 NLRB No. 3S.
233
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner at both
hearings, and, except as noted above, finds that no prejudicial error
was committed. All other rulings are hereby affirmed. The Board
has considered the Original and Supplemental Intermediate Reports,
the exceptions and briefs of the parties and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except insofar as they are inconsistent
with the Decision and Order herein.
1. The Trial Examiner found that the discharge of the six foremen
named in the complaint was in violation of the Act. Solely for the
reasons appearing below, we agree.
It is conceded that the complainants, officers of the foremen's union,
were discharged because of their leadership in the foremen's strike.
The Respondent seeks to justify its action on the ground that the
foremen were not engaged in a strike protected by the Act. The legal
defense is based on the allegation that the purpose of the foremen's
strike was to support the strike of the production workers, as found
by the Trial Examiner in his Supplemental Intermediate Report.
The facts bearing on the factual issue raised by the Respondent's
defense, are as follows :
On Friday morning, September 22, 1944, the Respondent's produc-
tion workers 2 went on strike and immediately formed picket lines
around the plant. During the first week of the strike, the foremen
reported at the plant, crossed the rank and file picket lines and con-
tinued to work, which for the most part consisted of cleaning the
floors and benches, taking inventory and maintaining the machines.3
At the close of the week, on Friday evening, September 29, the Re-
spondent's president, Aufiero, assembled the foremen and stated that
thereafter they would have to do production work and that if they
did not want to do such work, they need not report for Work at all.
The foremen replied that they would have to think the matter over.
During that week-end, the foremen's union, to which the complain-
ants and other supervisors belonged, held one or more meetings, to
consider whether the foremen should do production work during the
pendency of the strike. The UAW strike leader, Newman, obtained
permission to address the foremen's meeting and urged the foremen
not to do production work. Whereupon Newman was told by Car-
fero, president of the foremen's union, "that we (the foremen) were
2 The production workers were represented by the United Automobile Workers, Local 844,
herein called the UAW.
2 Respondent ' s vice president testified that during the week following the strike, the
foremen, as a group, had not been asked specifically to do production work. The evidence
is also uncontradicted . that when during that week , one of the foremen refused to finish
some production work left undone by the' strikers , he was discharged.
E. A. LABORATORIES, INC. 235
in an independent association and we would do what we saw fit, but
we had no part of their (UAW) doings." Sometime thereafter the
foremen passed a resolution not to do production work.
On Monday, October 2, a committee of the foremen's -union advised
Aufiero of this decision, whereupon Aufiero discharged the foremen.
The foremen thereafter picketed along with the' production workers,
but carried their own signs and kept to themselves in a separate group.
On' October 6, when the foremen came for their pay, Aufiero again
told them they were all suspended. On November 2, when the fore-
men were gathered in a group in front of the plant, Aufiero called
them in, informed them that the following week the plant would
resume operations and that all suspended foremen except the com-
plainants, the officers of the foremen's union, would be reinstated.
On the basis of the entire record, we are unable to accept the Trial
Examiner's finding and the Respondent's contention that the foremen
struck for the purpose of supporting the production workers. The
foremen were. members of an independent labor organization which
existed to serve their own mutual interests. The foremen crossed the
UAW picket lines and continued to work until the Respondent sought
to change their own working conditions by insisting that they do pro-
duction work. Picketing activity by the foremen did not occur until
after the Respondent had penalized them for their concerted refusal
to do production work. We are satisfied that the Respondent's action
gave rise to an independent labor dispute with the foremen involving
their own conditions of employment,' and that the foremen's con-
certed activity was primarily in furtherance of their own mutual aid
and protection and not that of the production workers.5
We accordingly find that under the conditions here present the
foremen's strike constituted protected concerted activity 6 and that
the Respondent's discharge of the six complainants for their partici-
pation and leadership in the strike was a violation of the Act.
2. As supervisory employees are no longer protected by the Act, we
shall, for reasons set forth in the Republic Steel case,-, omit our usual
cease and desist order and require the Respondent only to reinstate
the complainants with back pay. The Respondent contends that no
back pay should be awarded for the period antedating the filing of
the charges in April 1946, some 17 months after the alleged unfair la-
bor practices in November 1944. We find merit in this contention, as
. ' This finding is consistent with the testimony of certain strikers that they refused to do
production work because they did not want to be strikebreakers.
G In view of this finding, we deem it unnecessary to pass upon the question whether the
foremen ' s activity would have been unprotected if the purpose of their strike had been to
support the rank-and-file strike.
Cf. Carnegie-Illinois Steel Company, 84 NLRB 851.
' Republic Steel Corporation, 77 NLRB 1107.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there appears to be no explanation for the unreasonable delay in
filing charges. We shall therefore award back pay only from April'
1946 to the date of the offer of reinstatement.8
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, E. A. Labora-
tories, Inc., Brooklyn, New York, and its officers, agents, successors,
and assigns, shall take the following affirmative action :
(a) Offer Edward Carfero, William Deleo, Andrew Carvelli, Jo-
sephine Carbonaro, Salvatore Ingrisano, and Angelo Salerno, imme-
diate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights
and privileges;
(b) Make whole Edward Carfero, William Deleo, Andrew Car-
velli, Josephine Carbonaro, Salvatore Ingrisano, and Angelo Salerno,
for any loss of pay they may have suffered because of the Respond-
ent's discrimination against them, by payment to each of them of a
sum of money equal to the amount he or she normally would have
earned as wages during the period from April 9, 1946, to the date of
the Respondent's offer of reinstatement, Jess his or her net earnings
during said period ;
(c) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that In all other. respects the complaint
herein be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Sanfford D. Ten, for the General Counsel.
Messrs. Olvany, Eisner, and Donnelly , by Mr. Merwin Lewis, of New York,
New York, for the respondent.
STATEMENT OF THE CASE
Upon an amended charge filed May 28, 1946, by Foreman's Association of
America, Chapter No. 104, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Seventh Region
(New York, New York), issued a complaint dated June 7, 1946, against E. A.
Laboratories, Inc., herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the
s Phoenix; Mutual Life Insurance Co., 73 NLRB 1463; Red Arroio Freight Linea, Inc.,
77 NLRB 859.
E. A. LABORATORIES, INC. 237
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint accompaniedby notice of hearing were duly served upon the respondent
and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing,' alleged in substance that the respondent (1) from about June 1, 1944
to the date of the complaint, questioned its employees concerning their union
affiliations, threatened them with discharge if they joined the Union, and kept
their meeting place under surveillance; and (2) on various dates beginning on
September 29, 1944, discharged 10 named employees, and thereafter refused to
reinstate any of them, because of their union membership and activity.
On July 29, 1946, the respondent filed a request for a bill of particulars, which
was granted in part. On July 2, 1948, the respondent filed an answer admitting
some of the allegations of the complaint with respect to the nature of its business,
but denying that it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held on July 6, 7, and 9, 1.948, at New York,
New York, before Horace A. Ruckel, the undersigned Trial Examiner duly
appointed by the Chief Trial Examiner. The General Counsel and the respond-
ent were represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues, was afforded all parties.
At the close of the hearing the Trial Examiner granted a motion by counsel
for the General Counsel to conform the pleadings to the proof in formal matters,
and reserved ruling upon a motion by counsel for the respondent to dismiss the
complaint. This motion is disposed of by the recommendations hereinafter
made.
The undersigned advised the parties that they might argue orally before him,
and might file briefs with him by July 24, 1948. Subsequently this time was
extended to August 12. No oral argument was had and no briefs were filed.
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 with its principal office and place
of business in New York City where it is engaged in the manufacture, sale,
and distribution of automotive, aircraft, marine accessories, and related prod-
ucts. The respondent, at the time of the events herein complained of, annually
caused to be purchased and delivered to its New York plant, brass, steel, alumi-
num and other materials in excess of $1,000,000, of which approximately 75
percent was transported to its plant from States of the United States other than
the State of New York.
During the same period the Respondent annually manufactured at its New
York plant products valued in excess of $1,000,000, of which approximately 90
percent was transported from the plant to States of the United States other than
the State of New York.
The respondent admits that it is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
' The Trial Examiner granted a motion by counsel for the General Counsel to dismiss
the allegations of the complaint alleging that the respondent had refused to bargain
collectively with the Union.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
Jr. THE ORGANIZATION INVOLVED
Prior to August 23, 1947, the effective date of the Tait-Hartley Act, and at
the time of the events herein complained of, Foreman's Association of America,
Chapter 104, was a labor organization within the meaning of Section 2 (5) of the
Act, and admitted to.membership supervisory employees of the' respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharges; other interference , restraint , and coercion
1. Background
In 1937 the respondent's production employees were organized into the Inter-
national Union, United Automobile, Aircraft, and Agricultural Implement Work-
ers of America (UAW), Local 844, affiliated with the Congress of Industrial
Organizations, herein called Local 844. In July 1944, the Union began organi-
zation of the supervisory employees, most, if not all, of whom became members.
Edward Carfero was chosen president ; William DeLeo, vice president ; Josephine
Carbonaro, corresponding secretary ; Andrew Cervelli, director of membership ;
and Michael Collello, sergeant-at-arms. DeLeo, Angelo Salerno, and Peter Ter-
ruso were chosen members of the Executive Board. Salvatore Ingrisano was
also elected to an office, although the record does not disclose which one. All
these employees, with the exception of Terruso, are among those named in the
complaint as having subsequently been discharged because of their union
activity.'
The organization of the foremen was conducted openly. Benjamin Edelman,
the respondent's vice president, and the only witness whom it called, testified
that most of the above-named employees discussed the formation of the Union
with him; that they told him, and that he believed, that all of the foremen had
joined it; and that he knew who the officers were. The respondent's reaction
to the organization of its foremen was violent, to judge by the diatribes en-
gaged in from time to time by J. Al. Aufiero, the respondent's president and
general manager, when discussing the Union with individual supervisors.'
Meetings of the Union were held in a private home on the opposite side and
a block down the street from the respondent's office. Edelman and other officials
could, and Edelman testified that on more than one occasion he did, see mem-
bers of the Union congregating outside the meeting place. There is no sub-
stantial, credible evidence, however, that any of these officials went out of their
way to observe these events, and it is hereinafter recommended that the allega-
tion of surveillance be dismissed.
2. The strike ; the discharge of six foremen
On Friday, September 22, 1.944, at 9 o'clock in the morning, all the respondent's
approximately 500 production workers went on a strike which lasted until the
middle of December.' During the first week of the strike, from September 22 to
September 29, the foremen with a few individual exceptions continued to report
2 Terruso ' s name was included in the amended charge, but not in the complaint.
3 Several undenied instances of threats of discharge and physical violence are hereafter
related in connection with the discharges.
* As will be seen, however , -production eras .resumed about November 13; when most of
the foremen were called back to work.
E. A. LABORATORIES, INC. 239
for work. This consisted for the most part of cleaning the floors and benches,
taking inventory, and maintaining the machines. Some of this work was cus-
tomarily clone by the production workers, and some by the foremen ; but none of
it was clearly production work.
On the afternoon of September 29, Aufiero called a meeting of foremen at
which he told them that he was running out of other work and that thereafter
they would have to do production work. That week end the Union held a meet-
ing at" which it was decided that the foremen should not do production work
during the pendency of the strike, and a committee of five was delegated to
inform Auflero. This was done on Monday morning, October 2. Aufiero told
the committee that in view of their refusal all the foremen were "suspended"
until further notice. The credible testimony of Cervelli and of other members
of the committee is that Aufiero added that only those foremen whom lie wanted
would be called back to work after the strike.
Following the refusal of the foremen to do production work-a refusal which
in effect rendered them strikers-various foremen marched as a group in the
picket line of the production workers and carried picket signs, furnished by
Local 844, which announced their solidarity with them. It is evident that the
respondent viewed these activities of its supervisory employees with emotions
amounting to something less than enthusiasm, and when they reported to tile
office on October 6 for their pay for the week of September 22-29, Aufiero in-
formed them, as he had the committee a few days before, that they were "sus-
pended", and took up their badges.
On -November 13, as a preliminary to resuming production„the respondent
called all its foremen back to work with the exception of Carfero, DeLeo, Salerno,
Ingrisano, Carbonaro, and Cervelli. These six men were never reemployed.
The respondent's failure to recall these employees was tantamount to their dis-
charge, and the undersigned so finds 5
Conclusions as to the discharges .
Edelman gave as the respondent's reason for not recalling these six employees
upon resuming production that, as officers of the Union, they were responsible
for the strike of the foremen, which in the respondent's view was in aid and
support of the strike of Local 844. The latter strike, the respondent contended,
was "unlawful" as well as in violation of its contract with Local 844.°
The issue presented is thus clearly drawn. It is whether an employer, during
a strike, may discharge or refuse to reemploy foremen who themselves have
quit work rather than perform production work customarily done by the strikers.
As found in the section entitled "The remedy", the discharge is dated from November
13. the (late of the failure to recall, rather than from September 29, the last day that work
was performed, or October 2, when the striking foremen were "suspended". This suspension,
in light of the subsequent recall of most of the foremen, the undersigned regards as merely
tactical and as it reply to the action of the foremen in striking.
° The respondent offered to prove on cross-examination of Carfero, and on the direct
examination of Edelman, that Local 844 went on strike "in violation of the war Labor
Disputes Act and in violation of the contract between United Automobile, Aircraft and
Agricultural Implement Workers of America, C. I. 0., Local 844, thereof, and respondent,
dated November 7, 1943," and that with knowledge of these facts, the supervisory employees
entered upon a course of conduct in support of the strike. Tile undersigned rejected this
offer of proof. The contract referred to as existing between the Union and the respondent
was not offered in evidence, and there was no showing that Carfero, the president of the
foremen's Union, or Edelman, the respondent's vice president, had, or could have had, any
knowledge of the reasons which motivated the production workers in calling their strike.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has answered this question in the negative. In the Pinaud case'
the Board held with reference to a discharged forelady : "The respondent was
not required . . . to permit Rosen to remain on the job and at the same
time to refuse to do its lawful bidding. Under the circumstances presented
. . . the respondent was privileged, as an incident of an employer's right to
replace economic strikers, to give Rosen an election either to work as in-
structed or not to work and leave the premises. However, it was not permitted
to discharge or otherwise to discriminate against her for her participation in
the strike."
The undersigned finds that the respondent on November 13, 1944, discharged
and refused to reemploy Edward Carfero, William DeFeo, Andrew Cervelli,
Josephine Carbonaro, Salvotore Ingrisano, and Angelo Salerno, because they
engaged in concerted activities for the purpose of collective bargaining and
other mutual aid and protection. Thereby the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
3. The discharge of Collello, Orvin, Leone, and Vecchio
Michael Collello: Collello first came to work for the respondent about 192(1.
During the past several years of his employment lie was general foreman over the
fifth floor.
Collello :joined the Union in July 1944. Shortly thereafter, J. M. Aufiero called
Collello to a conference in the show room. Collello's testimony is to the effect that
together with J. Al. Aufiero were Rocco Aufiero, assistant plant superintendent,
Louis DeFeo, and one other supervisor. Collello's uncontradicted testimony
is to the effect that when he arrived in the show room Rocco Aufiero placed a 3S
caliber gun on the table in front of him and kept it there while President Aufiero,
directing his remarks to the foreman, charged that they were attempting to get
other foremen to join the Union, and declared that he (lid not intend to have a
union in the plant, and that if he found out that the organizing was continuing
he would "see to it." The foremen with the exception of Collello were then ex-
cused, and J. M. Aufiero continued the conversation with Collello in the presence
of Rocco Auflero. President A.uflero asked Collello to look him "square in the
eye," saying that he, Aufiero, was a "Mussolini moan" and that he could "take
Collello's head" and "put it out the window" and Collello would .never know what
had happened. He went on to state that there were fifty millionaires like himself
in the United States who were "Mussolini Mafia", that he understood that Collello
was the leader of the Union, and that he wanted it broken up within a week.
Collello's further testimony is that thereafter one Al Ocuto, who according to
Collello was "a very bad actor" and a "stooge" for Aufiero, was assigned to Col-
lello's department as his assistant, to check up on him.
In August, Collelli was elected sergeant-at-arms in the Union and shortly there-
after, J. M. Auflero called him to the office. This time, again according to Col-
lello, Aufiero said that it had come to his knowledge that he had been made
"bouncer" for the Union, and that lie would like to take Collello's head and
a Pinaud., Incorporated and Mary Rosen , 51 NLRB 235 . In further defining the status
of a supervisor in such a situation , the Board said : "By her refusal to perform the work of
a striker , Rosen in that respect , joined the strike , becoming in effect a partial striker. A
strike, or a partial strike , is a form of concerted activity that is protected under the Act,
The discharge of Rosen for engaging in such activity constituted a violation of Section S
(3)." (Citing cases.)
E. A. LABORATORIES, INC. 241
"bounce it through that window." Collello admitted. that lie had been elected
sergeant-at-arms, and the conversation terminated like the one previously re-
lated, by Auflero's telling Collello that he wanted the Union broken up.
Collello's testimony, although uncontradicted in any respect, since the respond-
ent called only Edelman as a witness, revealed Collello's memory to be faulty in
several instances with respect to important dates,' and lie admitted that he had
been hospitalized for a short time because of a nervous disorder. Furthermore,
as will be seen, Collello's testimony concerning the reason given him for his
discharge differed in at least one important respect from testimony previously
given by him. For these reasons the undersigned receives Collello's testimony
with caution. For example, he does not accept his uncorroborated statement that
Ocuto was assigned to check up on him after his talk with Auflero. Neverthe-
less, the undersigned believes that Collello's testimony as to Aufiero's statements
to him as related above, must be accepted as substantially accurate. It was
subject to contradiction by at least two, and possibly three witnesses, and it
remained uncontroverted. Moreover, the declarations which he attributed to
Aufiero are consistent with other statements attributed to him by other witnesses
whom the undersigned found reliable.
On April 20, 1945, Helies, plant superintendent, called Collello to his office and
told him that his services were no longer required. Collello, according to his
own testimony, protested that lie was being let go because of his connection with
the Union, and Helies acknowledged this and said that the Union had "ruined"
Collello.
Collello admitted that he had failed to mention this latter statement while
testifying in a previous hearing.' His explanation was simply that he had
forgotten it, but that his memory had since been refreshed. The undersigned
does not credit this part of Collello's testimbny.
Edelman's testimony is to the effect that during the early part of April 1945,
he called Collello to his office where he told him that Helies had complained that
his Work was unsatisfactory, his attendance poor, and that he had been coming
in late. According to Edelman, Collello excused himself by saying that he
was having trouble with his wife. Edelman told Collello that he would have
to improve or he would be discharged. At the time of Collello's discharge, ac
cording to Edelman, Helies told Edelman that Collello was "wacked up" and
Edelman gave Helies permission to discharge him.
The undersigned found Edelman to be a credible witness and accepts hig
account of the reason for Collello's discharge, and the circumstances surround-
ing it, in preference to Collello's. Moreover, it is not apparent why the respondent,
if it discharged Collello because of his union activity, did not do so in Novem-
ber 1044, when it admittedly let six other foremen go because of their part in
the strike of the production employees. There is no evidence that Collello's
activity in the Union increased thereafter. The undersigned believes and finds
that the respondent discharged Collello because of his general unsatisfactoriness.
as an employee, and because of his emotional instability and not because of his.
activity in connection with the Union.
8 For example , he testified that he did not return to work after the strike until January,
1945, whereas the credible evidence is that he was called back on November 13, 1944, along
with most of the other foremen , and that he was discharged in May 1945 , whereas he was
discharged in April.
8 E. A. Laboratories and United Automobile, Aircraft and Agrieulttiral Implement Workers,
of America, C. I. 0., Local 8i1I, 80 NLRB 625. Collello's testimony is 54 page 4421 of the
record.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Orvin: Orvin first came to work for the respondent in August 1942.
She was employed continuously until her discharge on June 22, 1945. Her work
was that of an inspector and assistant forelady in the gun sight division of the
optical department. She joined the Union in August 1944, but so far as the
record discloses did not become particularly active in its affairs.
On one occasion, according to Orvin's credible testimony, Aufiero declared
to her that members of the Union were "rats lower than some of the rats that
crawl in the gutter," and that he would never deal with the Union. Orvin's
further testimony is to the effect that on June 15, when she was leaving the
union's meeting place near the plant in the company of Alfonse Leone, they were
followed by Aufiero and Ocuto and that later, when Aufiero had parked his
car in front of the plant, he "just looked at" Orvin and Leone as they walked
toward the subway. The undersigned credits Orvin's testimony, supported by
that of Leone, that the two were observed by Auflero, but regards the evidence
as insufficient for a finding of espionage, and without particular significance inas-
much as their activity in the Union was already known to the respondent's
officials.
On June 22, Relies called Orvin to the office and gave her a release, saying
that her department was closed and that there was no more work for her. Orvin
asked Relies, according to her testimony, if she could do production work, and
i=lelies replied that she would not want such work after having worked as a
supervisor.
Orvin admitted that the contract for gun sights on which she had been work-
ing had been completed, and that there was no more work in that department.
This is consistent with Edelman's testimony that in February 1945, all the
respondent's Government contracts were terminated and the production of gun
sights ceased, and that Orvin's job in that department from then until her dis-
charge consisted of preparing termination inventories for the purpose of filing
claims with the Government. This work of conversion to peacetime produc-
tion was completed in June. Edelman testified credibly that, assuming that
Orvin requested Relies to be allowed to do production work in some other depart-
ment, the respondent would have had to deny the request because under its
contract with Local 844 she would have been a new employee and would have
been placed at the end of the seniority list for hiring.
The undersigned finds that Orvin was legitimately discharged because her
job was terminated, and not because of her activity in the Union.
Alfonse Leone: Leone first came to work for the respondent in 1935. At the
time of his discharge along with Orvin, in June 1945, he was an assistant foreman
in the polishing department. He joined the Union in July 1944. Sometime in
August or September lie had what seems to have been the customary conversa-
tion with Aufiero concerning his union membership, during which Aufiero told
him and other members of the Union who were present that they were a "bunch
of racketeers and blackhands" and that he wanted none such in the plant.
A day or so after he had been observed by Aufiero leaving the union hall,
Aufiero held a conference with several supervisory employees, including Leone,
where, according to Leone, Aufiero asked him why he had been at the union hall.
When Leone replied that he had the keys to the hall and opened the door for the
men at their meetings, Aufiero said that if Leone was interested in "some other
purposes apart from" his work, he should quit. The undersigned accepts this
testimony of Leone's as being in accord with the facts.
Leone was one of the supervisors called back to work on November 13, 1945.
On June 22, Leone, like Orvin, was told by Relies that he was being let go
E. A. LABORATORIES, INC. 243
because there was no more work for him to do. Like Orvin, Leone asked to be
given some other work in the plant and was refused . Edelman ' s credible testi-
mony was to the effect that in view of the expiration of war contracts, there
was no more work for Leone to do as assistant supervisor . The reasons which
he gave for the respondent 's not giving Orvin nonsupervisory work are simi-
larly applicable to Leone , and the undersigned finds them to be valid . He finds
that the respondent laid off Leone because his job had been terminated , and not
because of his activity in behalf of the Union.
Vera Vecchio: Vecchio was first employed in 1936 as a packer in the horn
department . Subsequently , she became an assistant forelady in the gun sight
division . She joined the Union in July 1944 . During October or November,
while the strike was still in progress , Vecchio , according to her own testimony,
attempted to procure a release from Mike Stango , assistant superintendent, so
that she could obtain a job elsewhere , and Stango refused to give it because
she belonged to the Union . Vecchio did not subsequently return to work for the
respondent , but there is no evidence to indicate that she was discharged or re-
fused employment , and the undersigned concludes and finds that she resigned
voluntarily.
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
Since it has been found that the respondent has engaged in certain unfair labor
practices, it will be recommended that it take certain affirmative action designed
to effectuate the policies of the Act 10
It has been found that the respondent discharged Edward Carfero, William
DeLeo, Andrew Cervelli, Josephine Carbonaro, Salvatore Ingrisano, and An-
gelo Salerno, because they engaged in concerted activity for the purposes of col-
lective bargaining or other mutual aid and protection. It will therefore be
recommended that the respondent offer these employees immediate and full re-
instatement to their former or substantially equivalent positions without preju-
dice to their seniority and other rights and privileges. It will be further recom-
mended that the respondent make them whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them, by payment
to each of them of a sumy of money equal to the amount lie normally would have
earned as wages from November 13, 1944, the date of the respondent's dis-
criminatory refusal to reemploy them" to the date of offer of reinstatement less
his net earnings'' during said period.
10 In failing to recommend the usual cease and desist order, and in recommending rein-
statement and back pay, the undersigned follows the Board's rationale in Republic Steel
Corporation (Upson Division) and Foreman's Association of America, 77 NLRB 1107.
11 The complaint alleges that these six discharges took effect as of September 29, 1944.
This was the date on which the foremen were told that they had to do production work. At
the same time, or on the following Monday, October 2, or both, the foremen told the
respondent that they would not do the work of the strikers, and Aufiero told them that in
that case they were "suspended." It has been found that the foremen's refusal constituted
877359 -50-vol. 87-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned will recommend that the complaint be dismissed, insofar as
it alleges that Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio
were discharged because of their activity in behalf of the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following : .
CONMUSIONS OF LAW
1. Foreman's Association of America, Chapter No. 104. was. at the time of the
events herein related and up to August 23, 1947, a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Carbonaro, Salva-
tore Ingrisano, and Angelo Salerno, the respondent has engaged in and is engaging
In unfair labor practices within the meaning of Section 8 (3) of the Act.
3. 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
unfair labor practices within the meaning of Section 8 (1) of the Act.
4. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent did not engage in unfair labor practices by discharging
Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, E. A. Laboratories, Inc., its officers,
agents , successors , and assigns , shall :
(a) Offer Edward Carfero, William DeLeo, Andrew Cervelli, Josephine Car-
bonaro, Salvatore Ingrisano, and Angelo Salerno, immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges ;
(b) Make whole Edward Carfero, William DeLeo, Andrew Cervelli, Josephine
Carbonaro, Salvatore Ingrisano, and Angelo Salerno, for any loss of pay they may
have suffered because of the respondent's discrimination against them by pay-
ment to each of them of a sum of money equal to the amount he normally would
have earned as wages during the period from November 13, 1944, to the date of
the respondent's offer of reinstatement, less his net earnings during said period ;
(c) Notify the Regional Director for the Second Region in writing within ten
(10) days from the (late of 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 this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is recommended that the complaint be dismissed, insofar as it alleges that
Michael Collello, Marion Orvin, Alfonse Leone, and Vera Vecchio were dis-
a partial strike. That being the case, and the "suspension " being at the most a tactical
maneuver, it is recommended that back pay accrue beginning with November 13, the date
of the respondent's failure to reinstate these foremen along with their fellows.
12 See Crossett Lumber Company , 8 NLRB 440 , 497-498.
E. A. LABORATORIES, INC. 245
charged in violation of the Act, and insofar as it alleges that the respondent
engaged in espionage.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, 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 Interme-
diate 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 filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
parties. Statements of exceptions and briefs shall designate by precise citation
the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. 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 thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 7th day of September 1948.
HORACE A. RUCKEL,
Trial Examiner.
SUPPLEMENTAL INTERMEDIATE REPORT
Mr. San fjord D. Ten, for the General Counsel.
Messrs. Alvany, Eisner, and Donnelly, by Mr. Merwin Lewis, of New York,
N. Y., for the Respondent.
On September 7, 1948, Horace A. Ruckel, the undersigned Trial Examiner,
issued his Intermediate Report in the above-entitled matter, finding that the
Respondent had unlawfully discriminated against the six supervisory employees
named in the complaint, and recommending that the Respondent offer them rein-
statement with back pay. The Respondent thereafter filed its Exceptions to the
Intermediate Report and a supporting brief in which it asserted that certain
evidentiary rulings by the Trial Examiner precluded it from establishing its
defense to the alleged discrimination against the complaining union herein.
On March 25, 1949, the Board issued an order remanding the case to the
Trial Examiner and directing him (1) to reopen the record for the limited pur-
pose of receiving evidence from all parties as to the purpose of the supervisors'
strike, and (2) upon the introduction of such evidence in the record, to prepare
and issue a Supplemental Intermediate Report, setting forth his finding with
respect to this issue.
Pursuant to notice, a hearing was held on April 12, 1949, at New York, New
York. The General Counsel and the Respondent were represented by counsel
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and participated in the hearing. Full opportunity to be heard, and to examine
and cross-examine witnesses, was afforded all parties. At the close of the hear-
ing the parties were advised that they might argue orally before the Trial
Examiner, and might file briefs with him by April 27, 1949. On that date the
Respondent filed a supplemental brief.
SUPPLEMENTAL FINDINGS OF FACT
The Trial Examiner found in his Intermediate Report that on September 22,
1944, the 'Respondent's production workers, affiliated with United Automobile
Workers of America, herein called the U. A. W., went on strike ; that the fore-
men refused to do production work during the strike ; that Foreman's Association
,of America, Chapter No. 104, comprising the Respondent's foremen, and herein
called the Union, held a meeting at which they decided to go on strike ; and that
thereafter they went on strike and marched as a group in the picket line of the
production workers, carrying picket signs announcing their solidarity with them.
'There has been, and is, no controversy as to the correctness of these facts.
The only further evidence on this point adduced at the hearing on April 12
had to do with the means of obtaining the support of the foremen for the strike
of the production workers. Paul Newman, international representative for the
U. A. W., not previously called as a witness, testified that 'during the week
beginning September 25, 1948, he called at the meeting hall of the Union, ad-
dressed the assembled foremen, and asked them to come out on strike in support
of the production workers. His testimony was supported by that of Edward
Carfero, president of the Union, who did not previously testify on this point,'
and there was no testimony to the contrary.
The undersigned finds that the support of the foremen for the production
workers' strike was obtained in the manner described by Newman and Carfero,
and that the purpose of the foremen's strike was to support the strike of the'
production workers.
Conclusion
The new evidence adduced at the hearing on April 12 only substantiates the
findings of fact contained in the Intermediate Report of September 7, 1944,
and the Trial Examiner accordingly reiterates the conclusions of law and rec-
ommendations contained therein.
As provided in Section 203.40 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case the Board, pursuant to Section 203.45 of said Rules and Regulations, file
i The Board 's order remanding the case for the limited purpose of taking testimony as to
the purpose of the foremen 's strike, states that the Trial Examiner 's rulings at the prior
hearing included the rejection of proof by the Respondent on this point. At the hearing
on April 12 , counsel for the Respondent stated :
As I recall the testimony, you permitted evidence in the last hearing on the question
of the purpose of the supervisors ' strike. There is affirmative evidence in the record'
on that issue. If the case is opened, it seems to inc that it should be opened for the
purpose of permitting evidence that you didn't permit us to put in, not evidence that
you did permit us to put in.
The Trial Examiner again denied the Respondent 's motion to permit evidence as to the
purpose of the production workers' strike. The Board, in its remanding order, stated that
it saw no necessity for considering this question until the purpose of the supervisors ' strike
had been established.
E. A. LABORATORIES, INC. 247
with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order 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 and Recommended Order. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs
shall designate by precise citation the portions of the record relied upon and shall
be legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 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, con-
clusions , and order , and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 7th day of May 1949.
HORACE A. RUCKEL,
Trial Examiner.