E. A. Laboratories, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1950

88 N.L.R.B. 673 (N.L.R.B. 1950)

In the Matter of E. A. LABORATORIES, INC. and UNITED CONSTRUCTION
WORKERS, UNITED MINE WORKERS OF AMERICA, AFL
Case No. 2-C-6856.Decided February 15, 1950
DECISION
AND
ORDER
On February 25, 1949, Trial Examiner Isadore Greenberg issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. He also found that the Respondent had not engaged in cer-
tain other unfair labor practices, and recommended that the complaint
be dismissed with respect to these allegations. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
On July 12, 1949, the Trial Examiner issued a Supplemental Inter-
mediate. Report, finding that the Respondent had not engaged in
certain other unfair labor practices and recommending that the com-
plaint be dismissed in that respect, as set forth in the copy of the
Supplemental Intermediate Report attached hereto. No exceptions
were filed to the Supplemental Intermediate Report.
Pursuant to the provisions of Section 3 (b) of -the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Reynolds].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate and Supple-
mental Intermediate Reports, the exceptions and briefs of the parties,
and the entire record in the case, and hereby adopts the findings and
recommendations of the Trial Examiner, except insofar as they are
inconsistent with this Decision and Order.
88 NLRB No. 140.
673
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner recommended that the complaint be dis-
missed insofar as it alleged that the Respondent discriminatorily dis-
charged and refused to reinstate Christopher Columbo. We agree
with this recommendation. In reaching this result, however, we do
iiot accept all of the reasoning of the Trial Examiner.
The record discloses, as the Trial Examiner has found, that
Columbo was lawfully laid off on January 6, 1947, because the work
he was performing was terminated. Thereafter, Columbo partici-
pated in the distribution of union literature at the plant entrance. He
was observed engaging in this activity by the Respondent's president,
J. M. Aufiero, and by its personnel director, Tyler M. Birch. On
several occasions, by his own admission perhaps as many as a dozen
times during January and February 1947, he called Aufiero a "Fascist"
or a "Fascist lover." True, on one occasion about a week after
Columbo began distributing union literature, Aufiero addressed
Columbo and another union representative as "parasites," and asked
why they did not get an honest job; but it does not appear that these
remarks, made only once, constituted the immediate provocation for
Columbo's numerous verbal attacks upon Aufiero. The Respondent
refused to reemploy Columbo because of these verbal attacks, as the
Trial Examiner found.
In the recent Bettcher case,'- the Board found that a discharge was
discriminatory where it was based upon an employee's statement
during a bargaining conference that his employer could juggle his
books to show a loss, thus implying that his employer was dishonest.
The General Counsel urges that the rule of that case should be applied
here to the discharge of Columbo. We cannot agree.
In the Bettcher case, the Board pointed out that genuine collective
bargaining would not be possible if an employer could discharge the
union's representative for remarks which might reasonably be ex-
pected in the give and take of a bargaining conference. However, the
Board also pointed out that its ruling did not mean that an employee
might never be lawfully discharged for what he said or did in a bar-
gaining conference. Instead, the Board held that a line must be drawn
between those cases in which an employee acts in a moment of "animal
exuberance" or in a manner "not activated by improper motives," and
those cases in which the conduct is so violent or so offensive as to
render the employee unfit for further service.
In the instant case Columbo's verbal attacks on Aufiero, although,
made while he was engaging in protected union activity, were not
made in a bargaining conference, or on a picket line where lower
I The Bettcher Manufacturing Corporation, 76 NLRB 526.
E. A. LABORATORIES, INC. 675
standards of etiquette generally prevail. Nor are we able to find from
the evidence adduced at the hearing that Columbo's personal attacks
on the Respondent's president were the result of any particular pro-
vocative acts on the Respondent's part. In these circumstances, and
despite the general provocation arising out of the Respondent's past
unlawful conduct, we conclude that it was not unjustified in failing to
recall Columbo when jobs again became available. We shall, there-
fore, dismiss the allegations in the complaint that the Respondent
discriminated against him in violation of Section 8 (3) of.the Act.
2. The Trial Examiner recommended that the complaint be dis-
missed insofar as it alleged that the Respondent discriminatorily dis-
charged Connie Spallone (Mrs. Connie Bizup). We agree. How-
ever, as in the case of Columbo, we do not accept all of the Trial
Examiner's reasoning in reaching his conclusion.
At the hearing the General Counsel secured a stipulation that if
Spallone had been present as a witness she would have testified that
on January 17, 1947, Personnel Director Birch questioned her about
her union sympathies, told her that she had been seen talking to union
organizers, and warned her, "If you want to work here, stick to our
team, and forget the Union." It was further stipulated that she did
not report for work as usual on Saturday, January 18, 1947, and that
when she reported the following Monday, she was discharged. Fur-
ther, according to the stipulation, Birch told her that she was being
discharged because "she did not show up on Saturday for work," and
when she complained that Saturday work was optional, he told her
she was discharged for "absenteeism, constant lateness, and
insubordination."
At the hearing, Birch denied that he had questioned or warned
Spallone about the Union. He further testified, as is more fully set
out in the Intermediate Report, that Spallone made many errors in
computing piecework earnings during the 2-week period preceding
her discharge, that she had promised to work on the Saturday in
question but failed to do so, and that he told her that she was being
discharged for incompetence and her failure to report for work as she
had promised. As Spallone was not available as a witness at the
time of the hearing, Birch's testimony concerning her discharge stands
virtually undenied. On the record as it now stands, we have uncon-
tradicted testimony that during the 2-week period immediately pre-
ceding her discharge, Spallone made many errors in undercomputing
and overcomputing the earnings of various employees, that she broke
her promise to report on the Saturday in question, and that she was
discharged for these reasons. Further, the testimony of both Birch
and Spallone is in agreement that Birch told Spallone that she was
882191-51-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being discharged for failure to report the preceding Saturday. The
Trial Examiner speculated that if Spallone had been able to testify
in person, her testimony might have rebutted that given by Birch.
However, as there was no other testimony refuting that of Birch, we
must conclude on the record before us that Spallone was discharged
for the reasons advanced by Birch. 4ccordingly, we shall dismiss
the allegation in the complaint that she was discriminatorily dis-
charged in violation of Section 8 (3) of the Act.
3. In view of our disposition of the allegations relating to Columbo
and Spallone, we need not, and therefore do not, pass upon the Trial
Examiner's conclusion concerning the meaning of the "discharge for
cause" proviso to Section 10 (c) of the amended Act.
4: In all other respects we adopt the findings and recommendations
of the Trial Examiner.
THE REMEDY
The Respondent, by its illegal acts, has violated Section 8 (1) and
(3) of the Act. We are of the opinion, upon the entire record in the
case, that the commission in the future of other unfair labor practices
may be anticipated from the Respondent's conduct in the past.' We
shall, therefore, also order that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed to its employees
in Section 7 of the Act.3
ORDER
Upon the entire record in this 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 :
1. Cease and desist from :
(a) Engaging in surveillance of its employees' self-organizational
activities ;
` (b) Interrogating its employees concerning their union membership
or activities;
s See also P. A. Laboratories, Inc., 80 NLRB 625;.E. A. Laboratories , Inc., 87 NLRB 233.
3 The Respondent has taken exception to the Trial Examiner 's failure to find that rein-
statement was offered in April 1947 to those employees who were found to have been dis-
criminatorily discharged . We find no merit in this exception . The record indicates that
during a proceeding before the New York Supreme Court in April 1947, on a petition by
the Respondent for an injunction against the Union, there was some discussion of proposals
for the settlement of the strike which began on March 17 , 1947. However , we are unable
to find on the record herein that the Respondent then, or at any other time, made an
unconditional offer of reinstatement to any of the employees who were discriminatorily
discharged.
E. A. LABORATORIES, INC. 677
(c) Discouraging membership in any labor organization of its em-
ployees,by discharging or threatening to discharge employees or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment;
(d) Offering wage increases or more desirable positions to its em-
ployees in order to induce them to abandon their union membership or
activities ;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any and all such activity except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Frank G. Arpino, Marie Gaglia, James De Sabato,
Charles Caponigro, Charles J. Firzell, Emily Milani, Alfred Snike,
and Andrew Donneruno , immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges;
(b) Make whole the individuals named in the preceding paragraph
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 that which he normally would have earned as
wages from the date of the Respondent's discrimination to the date
of the offer of reinstatement, less his net earnings during that period;
(c) Post at its plant at Brooklyn, New York, copies of the notice
attached hereto and marked Appendix A. Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and maintained by it for sixty ( 60) consecutive
days thereafter , in conspicuous places , including all places where no-
tices 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 any other material;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the'date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be,:'aiid it hereby is, dis-
missed, insofar as it alleges that the Respondent discriminatorily clis-
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Christopher Columbo, Connie Spallone (Mrs. Connie Bizup),
Joseph De Rienzo, Michael Montemurro, Antonia Agueci, Frank
Laregio, Frank Nicolazzi, and James Sena.
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 WILL NOT engage in surveillance of our employees' self-
organizational activities;
WE WILL NOT interrogate our employees in any manner as to
their union membership or activities;
WE WILL NOT discourage membership in any labor organization
of our employees by discharging or threatening to discharge them
or by discriminating in any other manner with regard to their
hire and tenure of employment, or any term or condition of
employment;
WE WILL NOT offer wage increases or more desirable positions
to our employees in order to induce them to abandon their union
membership or activities;
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination :
Frank G. Arpino Charles J. Frizell
Marie Gaglia Emily Milani
James De Sabato Alfred Snike
Charles Caponigro Andrew Donneruno
E. A. LABORATORIES, INC. 679
All our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization, ex-
cept to the extent that this right may be affected by an"agreement
as authorized in Section 8 (a) (3) of the Act, as amended.
E. A. LABORATORIES, INC.,
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.
SUPPLE, MENTAL INTERMEDIATE REPORT
On February 25, 1949, the undersigned Trial Examiner issued his Intermediate
Report in the above-entitled matter. In the said Intermediate Report, the un-
dersigned reversed his previous ruling made at the opening of the hearing, over
objection by the Respondent, granting a motion of the General Counsel to amend
the complaint by adding an allegation that employee James Sena was discrimina-
torily discharged by the Respondent on March 14, 1947. Pursuant to that ruling,
all evidence in the record relating to the alleged discriminatory discharge of Sena
was ordered stricken. The aforesaid rulings were based upon the findings of
the undersigned that the record failed to show service upon the Respondent of a
copy of an appropriate charge within the period required by Section 10 (b) of
the Act.
On April 21, 1949, upon motion of the General Counsel, the Board issued an
order remanding the case to the Division of Trial Examiners with directions to
reopen the record for the limited purpose of receiving proof of service of a charge
pertaining to the discharge of Sena (which the General Counsel apparently
alleged before the Board was then available), of reconsidering the motion to
amend, of restoring the stricken evidence, and of issuing an appropriate Supple-
mental Intermediate Report.
Pursuant to the order of the Board, the undersigned, on May 13, 1949, ordered
the hearing reopened for the purposes aforesaid . The reopened hearing was
subsequently indefinitely postponed in view of the agreement of counsel for the
Respondent and the General Counsel to stipulate with respect to the evidence
which was to have been offered at the reopened hearing. Thereafter, counsel
for the Respondent stipulated with the General Counsel that on June 27, 1947,
copies of the First, Second, and Third Amended Charges filed in the herein
proceeding, were mailed to, and thereafter received by, the Respondent.' The
aforesaid stipulation, dated June 16, 1949 was thereafter filed with the under-
signed. Subsequently, counsel for the Respondent also filed with the undersigned
a Supplemental Brief dealing with the merits of the Respondent's discharge of
Sena.
I As is set forth in the Intermediate Report, the Third Amended Charge filed by the Union
on March 28 , 1947, alleges that the Respondent discriminatorily discharged James Sens
on March 14, 1947.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It thus now appears, and the undersigned finds, that a charge alleging that
Sena's discharge constituted an unfair labor practice, was filed with the Board,
and served upon the Respondent, within the period required by Section 10 (b) of
the Act. The undersigned accordingly orders:
(a) That the aforesaid stipulation entered into between the General Counsel
and counsel for the Respondent, dated June 16, 1949, be marked for identification
as General Counsel's Exhibit 34, and be received in evidence;
(b) That the ruling of the undersigned, made in the Intermediate Report,
denying the motion of the General Counsel to amend the complaint by adding the
allegation that Sena was discriminatorily discharged, be reversed, and upon
reconsideration, the said motion is hereby granted ;
(c) That the evidence pertaining to the discharge of Sena, heretofore ordered
stricken, be restored to the record.
,,Upon the basis of the foregoing, and of the entire record in the case, the under-
signed makes the following :
SUPPLEMENTAL FINDINGS OF FACT
The discharge of James Sena
Sena was employed by the Respondent as a power press operator from mid-
January 1947 to March 14, 1947. He was paid on a piecework basis, with a
minimum hourly rate of 85 cents per hour. His immediate supervisor was Fore-
man Pete Terruso.
Two or three days after the beginning of his employment by the Respondent,
Sena was handed a union application card after working hours, near the plant
entrance. Personnel Director Birch, according to Sena, was in the guard's booth
near the entrance on this occasion, and was looking in his direction when he
accepted the card. Sena later signed the card and joined the Union. On March
9, 1947, Sena approached Lenruth Hall with the intention of attending the meet-
ing of the Union held there on that day. When he came near the entrance to
the hall, however, he saw Personnel Director Birch seated in an automobile
parked nearby, and continued walking past the hall, because, as he testified, he
did not wish to be observed entering. He did not carry out his intention of
attending the meeting. Sena testified that he could not tell whether or not he
was seen by Birch on this occasion.
Sena was discharged on March 14, 1947. He testified that on that day he was
handed two pay checks, and could get no explanation for this from either Fore-
man Terruso or Terruso's superior, Stango? He then asked Personnel Director
Birch for an explanation, and was told by Birch that he was discharged because
he "wasn't producing enough."
The Respondent's personnel records with respect to Sena contain the notation,
`'not qualified for job ; work unsatisfactory." In addition, the Respondent's
records of Sena's production, which were received in evidence, reveal that during
the period from February 5 through March 11, 1947, Sena failed to produce enough
to earn his guaranteed minimum hourly pay on 21 days, and that on the remain-
ing 3 days, his production, as measured by the piecework rate, just equaled his
hourly base pay.
8 Neither Terruso nor Stango testified with respect to this matter , but it was stipulated
that if Terruso had been called as a witness he would have denied having told any employee
who asked him why he was discharged that he did not know the reason for such discharge.
E. A. LABORATORIES, INC. 681
While Sena 's discharge is subject to close scrutiny because it occurred during
the period immediately following the March 9 meeting of the Union which the
Respondent kept under surveillance , the significance of this circumstance is con-
siderably weakened by the fact that Sena did not enter the meeting. It is
speculative whether he was seen walking past the meeting hall, and if he was,
whether this was interpreted by the Respondent as a sign of his interest in
the Union . There is thus, in the opinion of the undersigned , no affirmative proof
in the record that the Respondent knew of Sena 's membership in the Union nor
any basis for a reasonable inference of that fact.
In view of the foregoing and Sena's poor record of production as above sum-
marized, the undersigned concludes and finds that Sena was discharged by the
Respondent because of his unsatisfactory rate of production and that his dis-
charge did not constitute an. unfair labor practice.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
SUPPLEMENTAL CONCLUSION OF LAW
The Respondent has not engaged in unfair labor practices by discharging
James Sena on or about March 14, 1947.
SUPPLEMENTAL RECOMMENDATION
Upon the basis of the foregoing findings of • fact, and conclusions of law, it is
hereby recommended that the complaint be dismissed insofar as it alleges that
the Respondent discriminatorily discharged James Sena on or about March 14,
1947.
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 , 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 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 excep-
tions 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 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
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 12th day of July 1949.
ISADORE GREENBERG,
Trial Examiner.
INTERMEDIATE REPORT
Mr. Vincent M. Rotolo, for the General Counsel.
Olvany, Eisner cE Donnelly, by Mr. Merwin Lewis, of New York, N. Y., for the
Respondent.
Mr. Harry Friedson, of New York, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a fourth amended charge filed on July 1, 1947, by United Construction
Workers, United Mine Workers of America, AFL, herein called the Union, 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 July
8, 1947,1 against E. A. Laboratories, Inc., of Brooklyn, New York, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1) and (3),2 and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, together with notices of hearing thereon,
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) That in violation of Section 8 (1) of the Act, the Respondent, since January
1.947, has interfered with, restrained, and coerced its employees in the exercise
of their rights under the Act, by vilifying the Union, interrogating its employees
about their union affiliations and activities, keeping meetings and activities of the
Union under surveillance, and threatening its employees with reprisals if they
joined or assisted the Union; and (2) that in violation of Section 8 (1) and (3)
of the Act, the Respondent; on various dates between January 4, 1947, and March
14, 1947, discharged 16 named employees, and has since refused to reinstate them,
because of their union or other concerted activities.
In its answer, duly filed, the Respondent denied that it had committed any
unfair labor practices.
Pursuant to notice , a hearing was held at New York , New York, on various
dates between March 8, 1948, and April 8, 1948, before the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. The General Counsel,
the Respondent,. and the Union were represented by counsel. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues, was afforded all parties.
Prior to the opening of the hearing, a Demand for a Bill of Particulars, filed
by counsel for the Respondent with the Regional Director of the Board, was re-
1 The complaint was issued prior to the effective date of the Labor Management Relations
Act, 1947 ( 61 Stat. 136), which provides for the issuance of complaints "on behalf of the
Board," and the prosecution thereof, by the General Counsel. At the hearing, which was
held after the effective date of the Labor Management Relations Act, 1947, the General
Counsel prosecuted the case through a representative. The General Counsel, and the
attorney who appeared on his behalf , are referred to herein as the General Counsel. The
Labor Management Relations Act, 1947, is referred to herein as the Act as amended.
2 The provisions of Section 8 (1) and ( 3) of the Act are continued in Section 8 (a) (1)
and (3 ) of the Act as amended.
E. A. LABORATORIES, INC. 683
ferred to me, as Trial Examiner, for ruling. I granted the Respondent's demand
in part, and denied it in part. Pursuant to such ruling, the General Counsel
duly served a Bill of Particulars upon counsel for the Respondent. At the open-
ing of the hearing, over objection by the Respondent's counsel, I granted a motion
of the General Counsel to amend the complaint so as to add the allegation that
employee James Sena was discriminatorily discharged by the Respondent on
March 14, 1947. At the time the motion to amend was granted, I indicated
that I would consider the said ruling more fully on the basis of the whole record,
and after such reconsideration, if persuaded that the motion was improperly
granted, would reverse my ruling thereon in this Intermediate Report. For the
reasons set forth in the footnote below, my ruling granting the motion to amend
the complaint is hereby withdrawn ; the motion to amend is denied ; and all
testimony and evidence in the record with respect to the alleged discriminatory
discharge of James Sena is hereby ordered stricken' At the opening of the
hearing, also, counsel for the Respondent moved "to strike the appearance of
counsel for the Union from the record, and to dismiss the complaint, on the
ground that the charging union has failed to comply with Section 9 (f) of Title
I of the Labor Management Relations Act of 1947, in that the affidavits required
to be filed under that provision of the law have not been filed." The motion was
3 The facts relative to this issue are as follows : Neither the complaint, issued July 8,
1947, nor the Fourth Amended Charge, filed with the Board by the Union in July, on the
basis of which the complaint was issued, mentioned Sena's discharge. A Third Amended
Charge, which had been filed by the Union on March 28, 1947, did, however, set forth
Sena's discharge as an alleged unfair labor practice. The Fourth Amended Charge was
served on the parties together with the complaint and notice of hearing. The Third
Amended Charge, so far as the record shows, was never served on the Respondent until
March 8, 1948, the opening day of the hearing, when the motion to amend the complaint
was made.
The Respondent bases its objection to amendment of the complaint upon Section 10 (b)
of the Act as amended , which provides that "no complaint shall issue based upon any
unfair labor practice occurring more than 6 months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against whom such charge
is made . . .
Since Sena's discharge occurred on March 14 , 1947, more than 6 months prior to March
8, 1948, when the motion to amend was made at the hearing and the Third Amended
Charge was first served upon the Respondent, it becomes necessary to determine whether
the limitations contained in Section 10 (b) apply to the amendment of the complaint
herein sought.
It is a recognized rule of construction with respect to statutory changes in matters of
procedure that such changes are applicable to pending cases to the extent that the proce-
dural steps dealt with have not yet been taken . Here the General Counsel asks that the
complaint be so amended as to add an allegation that the Respondent discriminatorily
discharged Sena. I view such an amendment as tantamount to the issuance of a com-
plaint with respect to the discharge of Sena, and conclude, therefore, that the limitations
placed upon such issuance by Section 10 (b) apply thereto, since the procedural changes
embodied in the said section were in effect as the time the motion to amend was made.
To permit the amendment, consequently, it is necessary for the General Counsel to estab-
lish that a charge complaining of Sena's discharge was filed with the Board, and served
upon the Respondent, within 6 months of the date of discharge, or at least, within 6 months
after the effective date of the Act as amended , which incorporated the procedural changes
here discussed. As has been seen, the Third Amended Charge, which was the only charge
filed with the Board mentioning Sena ' s discharge , was not served upon the Respondent
until March 8, 1948, more than 6 months after the effective date of the Act as amended,
and almost a year after the date of Sena's discharge.
Under all these circumstances, I conclude that the amendment of the complaint sought
by the General Counsel is barred by Section 10 (b) of the Act as amended.
684 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
denied' I also denied the Respondent's motion, made at the opening of the
hearing, and renewed at the close thereof, to' dismiss the complaint as to 9 of
the 16 employees alleged to -have been discharged for. their union activities. The
facts with respect to this ruling are set forth in the footnote below.' At the
close of the hearing I. granted a motion to conform the pleadings to the proof
with respect to formal matters such as the spelling of names, dates, and the
like. I. also granted a motion of the General Counsel to dismiss the complaint
insofar as it alleges the discriminatory discharge of employee Dolores Corella.
Various motions by the Respondent to' dismiss the complaint in whole and in
part, made as of the close of the case for the General Counsel were denied.
Upon renewal of these motions as of the close of the entire case, I reserved
decision thereon. Such motions are disposed of by the findings, conclusions, and
recommendations herein made.
'The parties were afforded opportunity to present oral argument at the close
of the hearing, and thereafter to submit briefs and proposed findings of fact and
conclusions of law.. None of the parties argued orally before me. A brief has
been submitted by counsel for the Respondent.
Upon the entire record in the case, and from my. observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, E. A. Laboratories, Inc., is a corporation duly organized under
the laws of the State of New York, having its principal office and a plant in
4 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 Act as amended, was decided by the Board in Marshall and Bruce Co.,
75 NLRB 90.
b The motion to dismiss was grounded on the Respondent's contention that nine em-
ployees in question had on August 21, 1947, filed separate individual charges with respect
to their discharge from the Respondent's employ, and that the Regional Director of the
Board had on the same date notified the Respondent that the cases involving such in-
dividual charges (the said cases were numbered on the docket of the Board as 2-U-7107
through 2-C-7115) were "pending for investigation." The Respondent argued that since
the aforesaid individual charges involved the same nine employees and the same unfair
labor practices included in the charge filed by the Union, on the basis of which the present
complaint was issued, the latter should be dismissed as to the nine employees in question.
The Respondent contended that "the Board has elected to conduct a further investigation of
the 19 casesl and has thus subjected the Respondent to the hazard of double jeopardy on
identical charges." The General Counsel stated for the record that the individual charges
filed by the nine employees would be "formally withdrawn," and that the complaint having
been issued on the basis of the Fourth Amended Charge filed by the Union , "the Board is
electing to proceed on" the said charge and "will not proceed on the individual charges
filed by the individuals . . On the basis of the aforesaid statement by the General
Counsel, I denied the Respondent's motion to dismiss. At the close of the hearing, counsel
for the Respondent noted for the record that on March 19, 1948, the Respondent was
notified by the Board that eight of the nine individual charges above referred to have
been withdrawn "without prejudice." The General Counsel explained that he had secured
the aforesaid eight withdrawals from the employees involved ; that one of the nine em-
ployees (Nicolazzi), who had filed individual charges had "not appeared to sign a with-
drawal" ; and that if "he does not appear we will formally dismiss the [individual] charge
so that there is no question of double jeopardy or the exposure of this Respondent to prose-
cution in two proceedings for one violation." The General Counsel reiterated his previous
statement that his election to proceed on the charges filed by the Union could be taken as
"sufficient guarantee to this Respondent that no further proceedings will be taken on any
other charges involving the same subject matter and the same persons for a similar viola-
tion of the Act." On that basis, I denied the motion, at that point renewed by counsel
for the Respondent, to dismiss the complaint as to the nine employees who had tiled in-
dividual charges duplicating those filed by the Union.
E. A. LABORATORIES, INC. 685
Brooklyn, New York, where it is engaged in the manufacture, sale, and distribu-
tion of automotive, aircraft, and marine accessories and related products. Dur-
ing the year preceding the issuance of the complaint, the Respondent, in the course
and conduct of its business operations, purchased and caused to be delivered to
its Brooklyn plant, brass, steel, aluminum, and other materials valued at in
excess of one million dollars, of which approximately 75 percent was transported
to its said Brooklyn plant from States of the United States other than New
York. During the same period, the Respondent manufactured at its Brooklyn
plant products valued at in excess of one million dollars, of which approximately
90 percent was transported to States of the United States other than the State of
New York.
• The Respondent concedes , and I find, that the Respondent is engaged in com-
merce within the meaning of the Act.
U. THE ORGANIZATION INVOLVED
United Construction Workers, United Mine Workers of America, AFL,` is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background events
During the period covered by the complaint, the Respondent employed approxi-
mately a thousand workers in its Brooklyn plant. On or about December 17,
1946, National Representative Daniel Lawlor, Jr., of the Union, and a committee
composed of several of these employees began informal attempts to organize
the Respondent's plant. On or about January 6, 1947, the Union began solicita-
tion of membership by stationing representatives before the entrance to the plant,
who distributed circulars and blank application cards to incoming and outgoing
employees. This organizational campaign continued thereafter until March 17,
1947, with representatives of the Union varying in number, from time to time,
from two to five, carrying on such distribution of literature three times daily,
during the morning when employees were entering the plant, at noon when they
were leaving for and returning from lunch, and in the late afternoon, when the
employees were leaving work. At a meeting held on March 16, 1947, the members
of the Union present declared a strike, and decided to picket the Respondent's
plant. A picket line was established before the plant the next morning, and was
maintained thereafter for approximately 8 to 10 weeks.
B. Interference, restraint, and coercion
As National Representative Daniel Lawlor, Jr., and a number of former em-
ployees of the Respondent credibly testified, Personnel Director Tyler M. Birch
and a number of other of the Respondent's supervisors, would, while the Union
was carrying on its campaign, customarily stand near the entrance to the plant
during the time that employees were leaving, in a position where they could ob-
serve the distribution of literature by the representatives of the Union. Birch
admitted that he was present near the entrance daily, in a position where he
could and did observe the distribution of union circulars and application cards.
He testified, however, that his customary presence at such place and times was
6At the time of the issuance of the complaint , the Union was affiliated with the American
Federation of Labor. I take judicial notice of the fact that it has since "disaffiliated"
from that body.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely a continuation of his usual practice, before and after the Union's cam-
paign, of standing near the entrance "for a period of from anywhere from five
minutes or maybe half an hour in the morning, and a period at night" in order
to check the reports of guards and watchmen, and to attend to other business.
He testified further that after the beginning of the Union's activities in front of
the plant, he "might have spent a little more time in the morning and in the
evening because more things were happening at that time." Birch also testified
that although he observed the distribution of circulars and application cards to
the employees on such occasions, he could not tell "who did and who didn't take"
such papers. Most of the Respondent's foremen who were named by witnesses
as having been seen watching the aforesaid union activity, denied that they have
ever stood in front of the plant watching the distribution of union literature.
Assistant Foreman John Stango, however,. admitted that during the aforesaid
period he would customarily stand near the entrance of the plant for a few
minutes after work, but explained that he was merely waiting for his "girl friend"
to come out. General Foreman Foti, when asked whether he had ever "stood
out in front. and stopped there and watched the people [distributing union
literature]," first denied that he had ever done so, but later answered, "As far as
4:30, that's when I am free, I can go any place I want, I can stand in front of
the building, I can do anything ..."
I credit the testimony of Lawlor and of the other witnesses whose testimony
corroborated his, and find that (luring the period of the Union's campaign, Birch
and some other supervisors were customarily present near the entrance to the
plant while the employees were leaving work, in a position where they could and
did observe the distribution of union circulars and application cards. While
the record as a whole raises a strong suspicion that the supervisors above referred
to deliberately stationed themselves near the entrance of the plant in
order to keep the organizational activities of the Union under surveillance,
I am reluctant to find that their presence there was so motivated, since the normal
duties of Personnel Director Birch, and the legitimate goings and comings of
the other supervisors, may reasonably have accounted for their being near the
plant entrance at the times in question. Moreover, I deem it unnecessary to
resolve the credibility issue involved, since in any event, as is discussed below,
the record tstablishes instances of unquestionably illegal surveillance on the
part of Birch and other supervisors, and an adequate remedy will therefore be
recommended in connection therewith. In view of the foregoing, I do not find that
the Respondent's above-described conduct constituted a violation of the Act.
On or about January 21, 1947, Lawler and another representative of the Union
were engaged in their customary distribution of literature at the plant entrance.
On this occasion, J. M. Aufiero, the president of the Respondent, approached the
guard stationed there and instructed him to "throw these men away from here.
This is my property." Lawlor declared that he was violating no law, and told
Aufiero that if he were, Aufiero could get a policeirian to remove or detain him.
Aufiero entered the plant, and about a half hour later a police car arrived on
the scene. After some discussion between Lawlor and the police officers, the
latter left, requesting Lawlor to "make sure you don't block the doorways." On
or about February 19, 1947, Lawlor was again approached by Aufiero as the
former was distributing union literature near the plant entrance. Aufiero berated
Lawlor as a "racketeer , parasite," and in similar abusive terms, and then got
into his automobile and drove away.
E. A. LABORATORIES, INC. 687
I do not find that by the two incidents above described the Respondent inter-
fered with, restrained , or coerced its employees in the exercise of their rights
under the Act. It is true that Aufiero's remarks to the guard to "throw these
men away from here," and the subsequent arrival of the police, apparently pur-
suant to a call from the respondent, may have constituted an attempt on Aufiero's
part to interfere with the literature distribution being carried on by the union
representatives. However, in view of the guard's failure to execute Aufiero's
instructions, the latter's departure without further seeking to have the guard
take any action, and the fact that the police likewise refrained from any inter-
ference with the legitimate activities of the Union, I am constrained to dismiss
the incident as so trifling as to call for no findings. Nor am I persuaded that
Auflero's unprovoked and vituperative tirade against Lawlor on February 19
constituted an unfair labor practice. Exercise of the constitutional right of free
speech is not conditioned on the good taste or sound judgment of the speaker.
On succeeding Sunday afternoons , March 9 and 16, 1947, the Union held meet-
ings of the Respondent's employees at a hall located at the corner of Myrtle Ave-
nue and Waverly Place, Brooklyn, New York, this corner being located some
10-15 blocks from the Respondent's plant. On both these occasions, Personnel
Director Birch admittedly went to the vicinity of the meeting place and stationed
himself in a position where he could and did observe the employees entering the
hall to attend the union meeting. Birch testified that "dodgers and circulars
and other papers had been circulated saying that a majority of the people had
joined the Union; I wanted to see what it looked like, in anticipation of probably
having to sit down and bargain with these people. I wanted to see not who were
going in, but what was going on, how many people were going into the meeting
or were interested in the thing." He further testified that on both Sundays he
was alone when he carried on his aforesaid surveillance of the entrance to the
Union's meeting place; that he was seated in his automobile, parked about 177
feet down the street from the hall entrance while maintaining his observation;
and that, while he saw "people come in and out of [the] hall," he was not able
to identify these people.
In contrast to Birch, a number of witnesses ' for the General Counsel who
attended, and testified with respect to the March 9 and/or March 16 meetings,
asserted that they saw Birch in the vicinity of the hall on both days.for a period
before and during the union meetings, accompanied by a group of the Respondent's
supervisors, and that these representatives of the Respondent at various times
during their presence in the vicinity, stood on the street corners nearest the hall
entrance, located about 42 feet therefrom,' sat in parked automobiles, and walked
about, directly in front of the hall, and in the immediate vicinity thereof. The
following supervisors were named by the aforesaid witnesses as being among those
who accompanied Birch at the said times: Assistant Foreman Michael Abban-
dola (known to the employees by the nickname, Mike Farina), General Foreman
Sal Colucciello, Assistant Foreman John Stango, Assistant Foreman Joseph Gui-
dice, and Assistant Superintendent of Production Michael Stango, admittedly the
direct superior of at least one of the Respondent's general foremen. Another
witness, Sena, testified that he started to go to the union meeting on March 9
' De Sabato, Frizell , Snike, Donneruno , Lawlor, Laregio, Caponigro, and Friedson.
Both Birch and the witnesses whose testimony is above summarized , referred to a
diagram prepared by Birch, which was introduced in evidence , and which purports to
show the exact distances in feet, of the various street corners and other landmarks of
the neighborhood, from the meeting hall.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the intention of attending it, but that when he approached within "a few
feet" of the hall, he recognized Birch in a car parked at that point, and that he
'thereupon "kept going and . . . didn't go [into] the hall at all . . ." because he
was afraid of being seen by Birch.
Of the Respondent's supervisors who were identified by witnesses as being in
the group with Birch, Colucciello and John Stango denied that they were in the
vicinity of the Union's meeting place on the days in question ; it was stipulated
that if called as a witness Abbandola would likewise have so testified; and Birch
testified that Guidice, who did not appear as a witness, was unavailable because
he was serving in the Army in a foreign country.
The testimony of the above-named witnesses for the General Counsel which
I have summarized, impressed me as being forthright and reliable, and I credit
it. On the basis of the whole record I find that on March 9 and 16, 1947, Per-
sonnel Director Birch and a number of the Respondent's supervisors, including
Abbandola, Colucciello, Guidice, John Stango, and Michael Stango, loitered in
front and in the immediate vicinity of the Union's meeting hall while employees
of the Respondent were entering in order to attend a meeting of the Union, and
that while so loitering they kept the said employees under surveillance. Such
surveillance by an employer of the union activities of his employees has con-
sistently been held by the Board and by the courts to constitute a prohibited form
of interference with employees in the exercise of their rights under the Acts The
coercive nature of the conduct of Birch and his supervisor-companions is, more-
over, underlined by the circumstances of this case. Birch was no minor foreman,,
but the personnel director in the Respondent's plant, especially charged with the
duty of representing management in personnel and labor relations matters. His
presence near the Union's meeting place on March 9 is shown by the record to
have deterred at least one employee (Sena) from attending the meeting held
on that day. Moreover, the instances of surveillance herein dealt with were not
isolated acts, but constituted part of a general pattern of coercive antiunion
conduct, which, as will hereinafter appear, shortly afterwards was manifested
in the discriminatory discharge of a number of prounion employees, including
some whose union sympathies became known to the Respondent because of their
attendance at the meetings of the Union which were kept under surveillance. I
conclude that by the aforesaid conduct of Birch and the other supervisors named
above, the Respondent committed unfair labor practices.
On March 12 or 13, 1947, the night-shift employees of the Respondent's plant
were instructed to report for work a half hour earlier than usual, and all the
employees then in the plant, including some of the clay-shift workers who had not
yet left, were assembled by their supervisors to listen to a speech by President
Aufiero. Auflero referred to events which had occurred some time before, when
a union other than the charging Union herein had attempted to organize his
employees, and stated the organizers of that union were in prison for trying to
extort money from him; characterized the representatives of the Union, who
were then soliciting membership among the employees, as "racketeers"; stated
that he would not "tolerate a union in the place" ; and urged the employees to
have nothing to do with the Union, since they were "just as well off without a
union . . . and even if [they] would pay union dues [they] would never get
e See : the B . F. Goodrich Company, 64 NLRB 1303 , and cases cited in footnote 1 thereof ;
B. A. Laboratories , Inc., 80 NLRB 625, involving the same Respondent , and similar unfair
labor practices , as are dealt with above.
E. 'A. LABORATORIES, INC. 689
anything for it." 10 Disregarding Aufiero's vilification of the Union and its
leaders, and his exhortations to the employees to have nothing to do with them,
which I am persuaded fall within the privileges of free speech, the above-sum-
marized address to the employees contained at least one coercive statement
constituting a violation of the Act. I view Aufiero's flat declaration, that he
would "not tolerate a union in the place" as a threat that the Respondent would
not permit its employees to exercise their statutory right to be represened by a
collective bargaining agent of their own choice. The gravity of such a threat
is emphasized, in this case, by the discharges of employees on account of their
union affiliations and activities, hereinafter found to have been effected by the
Respondent contemporaneously with Aufiero's speech." I shall find that Aufiero's
said statement to the employees constituted a violation of. the Act."
On the basis of the foregoing, and of the entire record, I conclude and find
that the Respondent, by its above-described surveillance of the Union's meetings
on March 9 and 16, 1947, and by President Aufiero's statement to the assembled
employees on March 12 or 13, 1947, that he would not tolerate a union in the
plant, interfered with, restrained, and coerced its employees in their exercise
of the rights guaranteed in Section 7 of the Act, and of the Act as amended,
theieby committing unfair labor practices as defined in Section 8 (1) of the Act,
and Section 8 (a) (1) of the Act as amended.
Having above found that the Respondent did not commit unfair labor prac-
tices by the presence of Birch and other supervisors in front of the plant while
the Union was distributing literature there, nor by Aufiero's conduct vis-h-vis
Lawlor on or about January 21 and February 19, 1947, I shall recommend that
the complaint be dismissed insofar as it alleges that the foregoing conduct was
in violation of the Act or the Act as amended.
C. The discharges, and interference, restraint, and coercion incidental thereto
1. Christopher Columbo
Columbo entered the Respondent's employ on October 21, 1946, as a drill-press
operator. About 3 weeks later he was transferred to the die-casting department,
where he worked until his employment was terminated. In the latter depart-
ment his supervisor was General Foreman Lawrence Foti, who testified that he
considered Columbo a satisfactory employee. '
Becoming interested in the Union, Columbo received some union application
cards, which, on January 2, .947, he began to circulate among fellow employees,
both in and outside the plant. On Friday, January 3, Foreman Foti informed
him that there was a shortage of work ; instructed him not to report for work
the next day (Saturday) but to come in for his pay check; and asked him
whether he would be interested in securing some other employment with the
Respondent, suggesting that perhaps he (Foti) would be able to secure a job
as guard for Columbo. Columbo declined the offer, saying that he would prefer
to "stay in this department." On the next day, Columbo received his check
10 The above findings are based on the undenied credited testimony of Bello, which was
corroborated in part by that o-f the Respondent's witness , Assistant Foreman Stango.
11 The speech was delivered to employees on March 12 or 13, 1947 . Discriminatory dis-
charges took place on March 10, 11, 13, and 14, 1947.
12 See American Book-Stratford Press, Inc ., 80 NLRB 914 . Also, B. A. Laboratories,
Inc., ibid., in which a similar statement by Aufiero to employees , was in a prior proceeding
involving this Respondent , held to constitute a violation of the Act.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached to which was a slip bearing the notation, "Send for." Thereupon, he
proceeded to the office of Personnel Director Birch and asked the latter to ex-
plain the meaning of the notation . Birch referred him to Foti . Columbo re-
turned to the plant on the following Monday, January 6, where he found that
his time card was not in its rack.13 Columbo testified that on that day he ob-
served two employees who were junior to him in seniority still working in the
department ; that Foti told him that he (Columbo) was laid off ; that he then
returned to see Birch and asked him the reason for his layoff ; that Birch
answered that the layoff was due to a shortage of work ; and that when he asked
why he was being laid off when "junior men to [him were] working up in the
department," Birch told him that he was suspected of being an agitator and union
organizer , and asked him what his grievances were. After some discussion,
Columbo testified further, he told Birch, "If I have anything to do with it, there
will be a union in here," and Birch replied, "Come and see me some other time."
The following Friday, January 10, Columbo returned to the plant for the pay
check covering the last period of his employment, and when he received it,
noticed that there was a notation appended thereto reading, "Take this man's
badge." Columbo has not since been recalled to work by the Respondent, al-
though, as Foreman Foti testified, the Respondent did employ additional ' em-
ployees in that department about "three or four months" after Columbo was
laid off.
After his layoff, Columbo participated in the distribution of literature and
subsequent picketing of the plant carried on by representatives of the Union at
the plant entrance, and was seen carrying on this activity by Personnel Director
Birch and President Aufiero.
The Respondent takes the position that at the time Columbo was laid off he
was employed in the production of parts for a home heating device known as
the Comfortaire ; that production of the Comfortaire ceased on January 6, 1947,
after which no more parts for this product were made or. worked on in the
plant; and that Columbo was laid off on that day together with four other
employees who had been engaged in producing the Comfortaire, because work was
no longer available for them.14
Columbo's foreman, Foti, testified that he had no knowledge of Columbo's
union affiliations or activities prior to the time of the layoff. The only indication
afforded by the record, of knowledge on the Respondent's part, antedating the
layoff, of Columbo's prounion activities, is Columbo's testimony that on Janu-
ary 6, Birch told him that he (Birch) suspected Columbo of being an agitator
and union organizer, and that Columo told Birch that if he had anything to do
with it, there would be a union in the plant. Birch's version of his conversation
with Columbo on that occasion contains no reference to Columbo's union activi-
ties or sympathies, and indeed, Birch denied that he had ever discussed their
union membership with any of the employees whose discharges are dealt with
in this proceeding. I do not credit Colombo's testimony that he and Birch
discussed his union affiliations or sympathies on or prior to January 6, 1947.
It will be recalled that Columbo himself testified that on the occasion when
13 The factual findings so far made with respect to the discharge of Columbo are not in
dispute , and are based on the latter's undenied testimony . Birch testified that it was he
(not Foti, as Columbo related ) who asked Columbo to consider a Job as guard. As is
hereinafter pointed out , this is a minor conflict which does not go to crucial issues.
14 Based on the testimony of General Foreman Foti, Production Control Supervisor De
Martino , and Personnel Director Birch, and the notation on Columbo 's personnel card, which
was received in evidence , reading , "Jan. 6, 1947-Temporary lay-off-lack of work."
E. A. LABORATORIES, INC. 691
Foreman Foti first indicated to him that there was a shortage of work in the
die-casting department, he also asked Columbo whether he would be interested
in getting work as a guard with the Respondent. In this connection, Birch
testified that it was he, during their conversation on January 6, who asked
Columbo if he would be interested in a "guard job," and told him that he might
"be able to use him subsequently as a guard." Whoever it was who made this
suggestion to Columbo-Foreman Foti, as Columbo testified, or Birch, as the
latter asserted-such an offer by the Respondent to try to secure substitute
employment for Columbo seems to me to be inconsistent with knowledge on its
part that Columbo was active in the Union, in view of the Respondent's demon-
strated hostility against the Union and its adherents. Likewise, this admitted
suggestion by the Respondent that Columbo consider employment in another
department seems to me to destroy any inference that he was discriminatorily
laid off on January 6 pursuant to the Respondent's desire, at that time, to rid
itself of Columbo. I conclude and find, consequently, that Columbo and four
other employees in the die-casting department were legitimately laid off on
January 6, 1947, because the work in which they were employed had ceased.
The issue must still be resolved whether, subsequent to laying off Columbo,
the Respondent failed to recall him to work, when employment thereafter
became available in his department, because it later became aware of his pro-
union activities, and by reason of its animus against him on that account.
General Foreman Foti, it will be recalled, testified that Columbo was a "good
worker," and that he was satisfied with his work. Foti testified further that he
considered Columbo's layoff only a temporary matter, but that he had no author-
ity to recall specific employees, and could only request the personnel office to
supply additional workers for his department when the need for them arose.
He also admitted that be so requisitioned additional employees "about three
or four months" after January 6, 1947.
Columbo's personnel card bears the notation, admittedly in the handwriting
of Personnel Director Birch :
The day after lay-off and continually since that time and to this date,
this man has been in front of the plant with others abusing officers and
management by using foul and abusive language, and for that reason will
not be called back from lay-off. 13th of March, 1947. T. M. Birch.
Birch testified that on or about the day following Columbo's layoff, he saw
Columbo in front of the plant, and that the latter addressed Birch as a "guinea-
loving bastard, a Simon Legree, and a whip-cracker," and made other disparag-
ing remarks, such as referring to the plant as a "sweat-shop, and Birch's
sweat-shop," and calling President Aufiero a "Mussolini-lover." Birch testified
further that because of Columbo's aforesaid conduct, he (Birch) "decided very
definitely that he would not call him back" to work from his layoff.
Columbo testified that shortly after his layoff on January 6, he began openly
to assist the representatives of the Union who were then engaged in distributing
union literature to employees, at the plant entrance. On one occasion, the date
of which is not definitely established by the record, but which Columbo testified
occurred about a week after he began to participate in this activity, President
Auflero came out of the plant, and addressing himself to Columbo, and to Union
Representative Lawlor, whom Columbo was assisting, called them "parasites,"
and asked why they did not get an honest job. Columbo testified further that
he replied, "If you had a decent job in that building I'd still be working" there.
I credit Columbo's aforesaid testimony and find that a verbal exchange such as
882191-51-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he described, did take place between himself and Aufiero.15 At one point in
his testimony, Columbo stated that the occasion above described was the only
one on which he "had any words with Mr. Aufiero." However, under cross-
examination, he admitted that he "might have" called Aufiero a "fascist lover"
or a "fascist," and that he "might have said it a dozen times" during January
And February 1947. He denied that he had ever addressed any abusive remarks
to Birch, as the latter claimed. I find, in view of the evidence above summarized,
that on a number of occasions during January and February 1947, while Columbo
was engaged in union activities at the entrance to the plant, he made disparaging
remarks about the Respondent and its president, Aufiero, including such charac-
terizations of the latter as a "fascist," "Simon Legree," and the like. It is
undisputed that Birch, during this period, was customarily near the plant
entrance at the times when the Union was carrying on its activities at that point,
and I infer and find that Birch heard Columbo's aforesaid remarks.
On the basis of the whole record I conclude and find that at least one of the
reasons why the Respondent refused to reemploy Columbo after his layoff,
was, as it contends, the fact that Columbo had made the aforesaid disparaging
remarks about Aufiero. In view of the Respondent's undisguised opposition to
the organization of its employees, and the flagrant unfair labor practices which
it committed in its efforts to forestall the campaign of he Union, I am convinced
that Columbo's open activities on behalf of the Union, following his layoff,
also contributed to the Respondent's determination not to recall him when work
became available. Nevertheless, Section 10 (c) of the Act as amended" seems
to preclude a remedy for an employee like Columbo, who has been deprived
of employment by his employer for mixed reasons, one valid under the Act,
the other illegal thereunder." In all these circumstances, I find that the Re-
spondent's refusal to recall Columbo to work after his layoff did not constitute
a violation of the Act nor of the Act as amended.
2. Frank G. Arpino
Arpino's employment in the Respondent 's plant began in 1940. It was inter-
rupted by service in the Army from 1942 to sometime' in 1946 and by a short
period thereafter , when Arpino temporarily left the Respondent 's employ. His
final period of employment by the Respondent began on August 14, 1946, and was
terminated by his discharge on or about January 20 , 1947. During this last
span of employment , Arpino worked as a sprayer in the horn department, under
the supervision of a "pivot man" named Angelo Cipriano ,18 and General Fore-
man Louis Pascucci.
15 Lawlor testified that a verbal exchange with Aufiero , such as Columbo described,
occurred in front of the plant while Columbo was assisting him distribute union literature,
and that this incident took place after the two occasions when Aufiero accosted Lawlor on
January 21, and February 19, 1947 . Lawlor did not describe the incident in detail.
16 Section 10 (c) prohibits the Board from ordering the reinstatement of, or payment
of back pay to, an employee "who has been . . . discharged for cause."
17 It might be argued that it is unfair to hold that Columbo ' s disparaging remarks about
Aufiero constituted a valid reason for the Respondent's denial of reemployment to him,
in the light of Aufiero 's own vituperation of adherents of the Union . However, I am not
here passing on whether or not the Respondent 's conduct was, in an ethical sence , arbitrary
or capricious, but rather on whether that conduct was in violation of the statute. This is
not a case such as Bettcher Manufacturing Corporation, 76 NLRB 526, where the exchange
of unrestrained language between employer and employee took place as part of the process
of collective bargaining, and the employee's remarks were, consequently, found by the
Board to have constituted an inseparable part of a protected concerted activity.
18 Personnel Director Birch testified that a pivot man is a "group leader" or "working
foreman." It is not necessary to determine, for the purpose of this proceeding, whether
Cipriano possessed supervisory authority over Arpino within the meaning of the Act.
E. A. LABORATORIES, INC. 693
• Arpino joined the Union about January 12 or 13, 1947, and both before and
after that time solicited union membership among fellow employees 19
The Respondent' s personnel records with respect to Arpino read as follows :
"January 20 , 1947-discharged; loafing in toilet and on floor. Warned." Fore-
man Pascucci testified that about 4 months after Arpino began to work under
his supervision this employee began habitually to overstay his allotted time in
the room where employees were permitted to take a morning rest period ; that
it became necessary for Pascucci to look for Arpino and "bring him out" on
frequent occasions, in order to resume production ; that a few days before Janu-
ary 20, he found Arpino missing from his work station during working hours,
and warned Arpino that "this [had to be] the last time" ; and that on January
20, Arpino again disappeared, without permission, from the floor where he was
assigned to work, and could not be found for several hours. Pascucci further
testified that during Arpino's unexplained absence, Personnel Director Birch
came to the floor, and that he reported the matter to Birch and told the latter
that if Arpino "didn't show up [he, Pascucci] wouldn't want [Arpino] to work
for [him] anymore." When Arpino later was found and admitted that he
had left-the floor without permission , Pascucci testified, the latter sent Arpino
to Birch's office, and Arpino was discharged the sane day. Birch in substance
corroborated Pascucci's testimony as above summarized though their testimony
conflicted in some details. The crucial factual issues in this case arise from
flat conflicts between the testimony of Arpino and that of Birch and Pascucci.
Arpino denied that he had ever been criticized or warned in any way in con-
nection with his work for the Respondent, or had ever been accused of loafing.20
He testified that on or about January 16, 1947, Birch summoned him to the latter's
office and demanded to know "What' s all this business he [Birch] heard" about
Arpino and the Union, and that Birch stated that " he had pretty strong informa-
tion that [Arpino] was a union organizer and an agitator and [had been]
soliciting signatures in the plant for the Union." Arpino denied having any
connection with the Union. A few minutes later, Arpino testified further, Vice-
President Edelman of the Respondent came into the office, and joined Birch in
interrogating Arpino about the latter's union activities. Arpino continued to
deny having any knowledge of such activities. Edelman, according to Arpino,
warned him that he "should know which side [his] bread was buttered on" and
that he "should stick with management [and] shouldn't have anything to do
with the Union." The next day, Arpino stated, Birch called him back to his
office, where he again found Birch and Edelman. The latter immediately left,
saying to Birch, "Well, you won't need me any more for this." Thereupon Birch
said, "I can't afford to have any one like you inside the plant soliciting signatures
for the Union," and presented Arpino with his pay check. When Arpino asked
whether he was being discharged for union activities, Birch said, "No. I am firing
you for refusing to work nights." u
39 Based on Arpino's credited and undenied testimony.
20 It was also stipulated that if he had been called as a rebuttal witness, Arpino would
specifically have denied Pascucci's testimony with respect to the alleged incidents when
he overstayed his rest periods and absented himself from his work station ; the alleged
occasion when he was warned by Pascucci ; and the alleged incident on the day of his
discharge.
n Arpino admittedly had refused a request some months before that he work nights.
It is clear from Birch's testimony, however, that this had nothing to do with Arpino's
discharge.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edelman, though he was present during at least one session of the hearing,
did not take the stand to deny any of Arpino's testimony. Birch denied ever
having "talked with [Arpino or anyone else] about union membership while they
were an employee of the plant." He also testified that he did not "recall talking
to Arpino and Mr. Edelman at the same time." Birch likewise denied having
told Arpino that he was discharging him for having refused to work nights ; he
testified rather, that Arpino came into his office on the day of his discharge-
"Why, I don't know. I definitely did not send for him"-and asked first, whether
he was being discharged for union activity, and then, whether for having refused
to work nights. According to Birch, the reason he gave to Arpino for the latter's
discharge was the fact that Foreman Pascucci had been unable to find him when
he was supposed to be working.
Arpino impressed me as an honest witness. I was not so impressed by Pas-
cucci. Nor do I feel that I can place much reliance on Birch's testimony, since,
as appears throughout the record, his protestations of a meticulous lack of in-
terest in the union activities of the employees are belied by the evidence of his
having engaged in surveillance of those activities, and in interrogating employees
about them."
On the basis of the foregoing and the entire record, I conclude and find: (1)
That the testimony of Arpino, which I have above summarized, with respect to
the circumstances surrounding his discharge, gives a substantially accurate ver-
sion of the events; (2) that Arpino was not guilty, as alleged by Pascucci and
Birch, of having loafed on the job; (3) that he was never reprimanded or
warned about such derelictions; (4) that Arpino's activities on behalf of the
Union became known to the Respondent prior to the date of his discharge ; and
(5) that Arpino was discharged by the Respondent on January 20, 1947,23 because
of his legitimate activities on behalf of the Union. I shall consequently find
that Arpino's discharge constituted a violation of the Act.
It is also clear that the interrogation of Arpino by Birch and Edelman, with
respect to the former's union activities," and Edelman's coercive statement to
Arpino that he should know which side his bread was buttered on, coupled with
the warning that he should have nothing to do with the Union, constituted inter-
ference, restraint, and coercion with the exercise of the employees' rights under
the Act, and were, therefore, illegal. I shall so find.
3. Marie Gaglia
Gaglia was employed by the Respondent from August 1946, to January 23,
1947, the day of her discharge. About 2 weeks before her discharge, she was
transferred from an assembly line on the third floor of the plant, supervised
by Assistant Foreman Michael Abbandola, to another supervised by General
Foreman Sal Colucciello.
After work on Tuesday, January 21, Gaglia stopped near the plant entrance
to engage in some conversation with Christopher Columbo, who was during tors
period assisting in the distribution of union literature at that place 25 Upon
22 It is also of some significance that Arpino's pivot man, or working foreman, Cipriano,
'was not, for some unexplained reason, called to testify with respect to the many alleged
,occasions when Arpino absented himself from his job.
23 Arpino testified that his discharge took place on January 17. I have accepted the
Respondent's records, which indicate that he was discharged on January 20, as being
more accurate in this respect than Arpino's recollection.
24 Ames Spot Welder Co., Inc., 75 NLRB 352, at p. 355.
25 Columbo is the employee whose layoff and discharge have been discussed above.
E. A. LABORATORIES, INC. 695
crossing the street, Gaglia was asked by Foreman Colucciello, who was standing
there, whether she had been helping Columbo distribute union literature, and
whether she "had anything to do with the Union." Gaglia replied in the nega-
tive, though she had, in fact, joined the Union at the beginning of January."
When Gaglia reported for work the following morning, Colucciello asked her
whether she had been truthful in her answers the previous day; when Gaglia
assured him that she had nothing do to with the Union Colucciello remarked,
"Well, if you was wise, you would keep your eyes open and your mouth shut,
you know, you would get along." " About 10 minutes later, Gaglia and three
other girls were transferred by Colucciello from his department to one on the
fifth floor, where she worked under the supervision of General Foreman Louis
Pascucci."
While Gaglia was preparing to leave the plant the next day after work
(Thursday, January 23), Foreman Pascucci handed her her pay check, and
informed her that she was being laid off. When she asked him the reason, he
answered, "Well, I don 't know. To my knowledge your work is very good, but I
was told to tell you that your work is unsatisfactory."" After unsuccessfully
trying to find Foreman Colucciello, Gaglia approached Personnel Director Birch
and asked him why she was being discharged. Birch told her that she was
being laid off, and advanced several reasons for this, first saying that work was
slack, and later that Gaglia was being laid off for tardiness. After some further
exchange of words, Birch offered to "put in a good word" for Gaglia with some
other employer, but Gaglia declined the offer 8°
Gaglia's personnel record as kept by the Respondent reads : "January 23, 1947-
discharged, work unsatisfactory, not to be rehired." There is no evidence to
support the Respondent's contention that Gaglia's work was unsatisfactory. In
his brief, counsel for the Respondent argues that the transfers of Gaglia from one
assembly line to another, which have above been described, denote that Gaglia's
work must have been faulty, and that the Respondent was trying unsuccessfully
to find a job for her which she could perform satisfactorily. The record con-
tains no basis for this contention. Not one of Gaglia's supervisors nor any other
witness, testified that her work had been unsatisfactory; nor is there any other
evidence to this effect. There is no ground for inferring, therefore, that Gaglia
was transferred from one assembly line to another for any reason except the
normal fluctuations in the demands for workers of these respective divisions.
26 The foregoing findings are based on Gaglia ' s credited , unrebutted testimony.
21 Based on Gaglia's credited testimony. Colucciello denied that such a conversation
had ever taken place between himself and Gaglia. From my observation of the witnesses,
and in the light of the surrounding circumstances, I consider Gaglia a more reliable
witness than Colucciello. I therefore do not credit the latter's denial.
28 Gaglia indicated some uncertainty as to the name of her foreman on the fifth floor,
at one point testifying that she knew him only by the nickname "Red" and later assenting
to his identification as "Red Pascucci." Since it was stipulated that the general foreman
In charge of a department on the fifth floor was named Louis Pascucci , and there are a
number of references in the record to this foreman as "Red" Pascucci, it is a reasonable
inference, and I find, that the latter was Gaglia's supervisor on the fifth floor.
28 Based on Gaglia's credited , unrefuted testimony.
81 Based on Gaglia's credited testimony. Birch testified that he had no recollection of
the above-summarized conversation, and that, as a matter of fact, he could not remember
who Gaglia was.
I shall not discuss certain conversations -with employees named Mussone and Camuso,
which Gaglia testified occurred after her discharge, since it was not established that
Mussone or Camuso were supervisory employees , for whose conduct the Respondent may
be held liable.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence indicates, and I find, that the entry on Gaglia's personnel record,
to the effect that she was discharged for unsatisfactory work, does not state
the real reason for the discharge. Colucciello's interrogation of Gaglia as to
whether she was engaged in union activities, after seeing her engaged in con-
versation with an active union protagonist, and Pascucci's comment on the occa-
sion of her discharge, that Gaglia's work was satisfactory to him, but that he
had been instructed to tell her that she was being laid off for poor work, as well
as Birch's varying explanations for.the discharge, point to the conclusion that
the Respondent suspected Gaglia of being an adherent of the Union, and that
because of this, it discharged her and invented a pretext for doing so. I so find.
Following Gaglia's discharge, she participated in the picketing of the plant
which began when the strike was called on March 17, 1947. On several occasions
while She was engaged in this activity, she was approached by Foremen Coluc-
ciello and Abbandola, who told her that the Union would not succeed in getting
into the plant, and tried to persuade her to abandon the picketing and return to
work for the Respondent. Abbandola offered her a position as forelady at a dol-
lar an hour if she would return to her job.33 The Respondent's above-described
interrogation of Gaglia about her union activities, and its subsequent efforts to
bribe her into abandoning the organizational efforts in which she was engaged,
by offering to reinstate her in its employment in a better job than she had had,
clearly constituted illegal interference, restraint, and coercion with its employees
in the exercise of their rights under the Act. I shall so find.
4. James De Sabato and Charles Caponigro 32
At the time of their discharge on March 11, 1947, De Sabato and Caponigro were
both employed on an assembly line on the fifth floor of the Respondent's plant,
which was engaged in the production of automobile horns. Their supervisor
was Assistant Foreman Mario Attianese 33
De Sabato was first employed by the Respondent, and later transferred to the
aforesaid assembly line, upon the recommendation of Attianese, a family friend.
In early January 1947, about a week after De Sabato was transferred into
Attianese's department, the latter approached him and asked whether De Sabato
had "anything to do with the Union." Upon receiving De Sabato' s assurance
that he did not, Attlanese walked away. A few days later, Attianese specifically
asked De Sabato whether he had signed a union application card. The latter
denied that he had. The same night, after work, De Sabato was handed a union
application card at the plant entrance, which he signed and mailed to the Union.
The next morning, De Sabato was told by Attianese that he had been seen accept-
ing the card, whereupon De Sabato admitted that he had done so. Upon being
asked whether he had signed the card, De Sabato denied it.33
31
Based on Gaglia's credited testimony . I do not credit Colucciello 's partial denial that
the above conversations took place. Abbandola did not testify.
33 Caponigro's name was misspelled at various places in the record as "Caponigone." This
error was corrected by stipulation.
83 It was stipulated that the above is the correct spelling of Attianese's name. Variations
on this spelling occur in the record.
31 The above findings of fact are based on the testimony of De Sabato, in the face of
Attianese's denials that the conversations therein related ever took place. I am convinced
that De Sabato is a reliable witness and that Attianese's testimony is not worthy of cre-
dence when confronted by contrary evidence not. in Itself incredible . This conviction is
founded on the fact, set forth in some detail in the following portions of my discussion
of this case , that the preponderance of the evidence tends to support De Satabo 's testimony,
while it refutes that of Attianese in important respects.
E. A. LABORATORIES, INC. 697
De Sabato attended the March 9, 1947, meeting of the Union, the surveillance of
which by management representatives has hereinbefore been discussed. The
next morning Attianese accused De Sabato of having "double-crossed" him by
attending the union meeting ; Attianese expressed the fear that his own posi-
tion with the Respondent was jeopardized by De Sabato's exhibition of prounion
sympathies, since he had recommended De Sabato for employment to the Re-
spondent. The conversation culminated in a suggestion by Attianese that if
De Sabato were dissatisfied with conditions in the plant, "he might quit," and
then by the threat, "tonight you will be out of a job." In a later conversation
with De Sabato that afternoon, Attianese proposed three alternative courses of
action for De Sabato to take in order to solve the predicament in which he
considered the latter's conduct had placed him : 1. Either that De Sabato quit
his job, or, 2. Ask Attianese to discharge him, or, 3. Pretend that he had been
sent to the -union meeting by Attianese. De Sabato rejected all three suggestions,
despite Attianese's complaint that De Sabato was "making it hot for him."
Caponigro joined the Union on or about January 27, 1947, following which, on
several occasions, he distributed union cards to fellow-employees in the wash-
room of his department. Like De Sabato, Caponigro attended the meeting of
the Union on March 9 3s
On March 11, 1947, Attianese accused De Sabato and Caponigro of having on
the previous day falsified their respective piecework sheets, on which each em-
ployee reported his daily production, and discharged them. As De Sabato was
leaving the plant after his discharge, he remarked to Attianese that the latter
had advanced "a very poor excuse" for firing him-that he "could have picked
on a better reason than that . . ." Attianese answered, "Well Jimmy, you
stabbed me in the back and now I'm stabbing you in the back." 97
In support of the Respondent's contention that De Sabato and Caponigro were
discharged because they had attempted to cheat the Respondent by reporting more
piecework than they had actually produced, Attianese testified : That De Sabato
and Caponigro were, at the time of their discharge, employed on an assembly
line consisting of about 8 employees ; that these employees, each of whom per-
formed one operation in the assembly of automobile horns, were paid on a, piece-
work basis ; that each employee recorded his own production on a daily piecework
sheet, which, after being checked and approved by Attianese, served as the basis
for computing the employee's pay; that on March 10, 1947, Attianese, in checking
the piecework sheets handed in that day by the 8 employees on the aforesaid
assembly line, discovered that while the other employees bad each reported a
production of 900 units,38 De Sabato had reported 1,200, and Caponigro 1,300;
that he checked the record of production of completed horns for that day, and
found that 900 had been produced ; that he then examined the bench along which
the assembly line employees had their work stations, and discovered that there
were no uncompleted horns piled up at De Sabato's and Caponigro's positions
u The above findings, like those discussed in the footnote immediately preceding, are
based on the credited testimony of De Sabato, which was denied by Attianese. The same
reasons for this resolution of the conflicting testimony apply.
89 Based on credited, undenled testimony of Caponigro.
31 The above findings are based upon undisputed evidence, except those dealing with the
exchange of words between Attianese and De Sabato as the latter was leaving the plant.
Here, again, I credit De Sabato's testimony as against Attianese's denial, and for the
same reasons.
38 With the exception of 2 employees performing an identical operation (which admittedly
takes twice as long to do as the others), each of whom reported a production of 450 pieces.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the bench ; that he came to the conclusion that "these two fellows were cheating
on their piece-work"; and that he accused them the next morning of having
cheated, and discharged them.
Testifying that it was impossible for De Sabato and Caponigro actually to have
produced 1,200 and 1,300 pieces on a day when the other employees in their crew
made only 900, Attianese described the physical organization and method of
operation of the assembly line in detail. a9 In sum his testimony was : 1. That
De Sabato worked at one end of the bench, and performed the first operation,
which consisted roughly of attaching a contact point to the metal shell of a horn ;
2. that Caponigro worked immediately to the right of De Sabato, and performed
the second operation, consisting of attaching additional parts to the piece on
which De Sabato had worked ; 3. that after performing his operation, Caponi.gro
passed the horn to his right, where the third operation was performed by each
of two employees working on opposite sides of the bench, the third operation
being the one that was twice as difficult to complete as any of the others ; 4. that
thereafter the horn was passed to the right, where operations 4, 5, 6, and 7 were
successively executed, and the assembly of the horn was completed. Attianese
further testified that the line was geared to operate so that within 3 minutes after
the whole process began, a horn was completely assembled, and that the flow of
horns from one operation to another was necessarily so continuous that there
could be no sizable accumulation of horns at any given point on the assembly
line.40
Under cross-examination it was pointed out to Attianese that De Sabato and
Caponigro were paid a substantially lower piecework rate than any of the other
employees on the assembly line 41 and he was asked whether this was not ex-
plained by the fact that the operations performed by these 2 employees were
much simpler, and more quickly accomplished than any of the others thus
leading to a substantially greater production of pieces in a given time, by De
Sabato and Caponigro, than by any other employees on the line. This Attianese
denied. He insisted that with the exception of operation number 3, which
was divided between 2 employees, all of the operations were of equal diffi-
culty, and could be done with approximately equal speed. Consequently, he
testified, the production of each employee on the line (with the exception of the
2 who divided operation 3) would, at the end of each day, be the same
as that of all the others, and the same as the total number of horns completely
assembled that day. The variation between the employees in their daily volume
of production was, Attianese testified, confined to perhaps 5 to 10 pieces, which
might be left uncompleted on the bench at the end of the day. Moreover, he testi-
fied, he kept the assembly line under constant observation and if any one of
°° A diagram prepared by Attianese , and purporting to depict that part of the work-
bench and attached fixtures used by the first 4 employees on the assembly line, was received
in evidence. Attianese testified that this diagram was drawn to exact size. Also in evi-
dence are the piecework sheets submitted on March 10 by each of the 8 employees on the
line. They admittedly show that on that day De Sabato reported having produced 1,200
pieces, Caponigro 1,300, and the rest of the crew 900 each, except the 2 employees who
produced 450 each because, as is undisputed, they performed an operation twice as slow as
the others.
90 It is undisputed that a truckload of 1,000-2,000 pieces was brought to De Sabato's
position at the starting end of the bench when necessary and that he would begin to work
on the pieces thus brought to him.
41 It is undisputed that De Sabato was paid 60 cents per hundred pieces ; Caponigro 58
cents; and the 6 other employees on the assembly line, 86, 82 , 80, 75, 75 , and 80 cents
per hundred , respectively.
E. A. LABORATORIES, INC. 699
the employees was not keeping pace with the rest of the line, this would become
evident as uncompleted horns would begin to pile up. In that event, the fore-
man explained, a "pivot-man" was available, whose task it was immediately to
begin assisting the slower employee, and thus to get the assembly line operations
again synchronized.
Attianese's attempts to explain why in view of the foregoing the piecework
rates paid to De Sabato and Caponigro were so markedly lower than the rates
paid the other employees, were unintelligible. He finally testified that he could
not explain this since he had nothing to do with fixing the rates, and that this
was done by a time-study engineer.
Both De Sabato and Caponigro denied that they had falsified their piecework
sheets, or had ever, prior to March 11, been accused of having done so..42 De
Sabato called as a rebuttal witness, testified further that: The operations per-
formed by him and Caponigro on the assembly line were the simplest and most
speedily performed on the entire line, and that, therefore, be and Caponigro
"were always ahead of all the other workers" ; that there were usually 200 to
300 horns, which had gone through their operations, piled up at their respective
places at the bench, at the end of a day waiting for completion by the other
employees ; n and that he had never completed less than 1,200 pieces on any
given day while working on the horn in question.
As is seen the Respondent's contention that De Sabato and Caponigro had
cheated in filling out their production reports, derives its main support from
Foreman Attainese's testimony that the operations performed by De Sabato and
Caponigro were just as time-consuming as any of the others on the assembly
line and that, because of this, and the way the line was synchronized, it was
impossible for them to have produced substantially more pieces on any given
day than the other employees on the line. Aside from the conflicting testimony
of De Sabato and Caponigro, the record contains conclusive refutation of At-
tianese's aforesaid testimony. Thus, it was stipulated at the hearing that, if
called as a witness, the time-study engineer employed by the Respondent in the
early part of 1947, would have testified that the operations on the horn assembly
line performed by De Sabato and Caponigro at the time herein involved took less
time to perform than the other operations on the same assembly line and that
the piecework rates for their operations were therefore lower than those for
the other operations on the line ; also, that it was possible for those two em-
ployees to have performed their respective operations on 1,200 or 1,300 units such
as those assembled on March 10, 1947. I find that the foregoing stipulated testi-
42 Attianese testified that about 2 days before March 10, he had discovered similar
falsifications on the piecework sheets of De Sabato and Caponigro but had allowed the
falsified sheets to go through the office for payment, merely warning De Sabato not to
repeat the offense. No corroboration of this, such as the piecework sheets for that day,
were produced at the hearing.
43 Attianese testified that it was physically impossible, because of limitations of space
on the bench, for as many as 300 pieces to be piled up at De Sabato's station. De Sabato,
in rebuttal to that, testified that there was a space measuring about 40 inches at the
left end of the bench where he stood, instead of the shorter distance from the end of
the bench to the first fixture installed thereon, as depicted in the diagram prepared by
Attianese. Moreover, he testified, the diagram failed to show a board, 12 to 15 inches
high, which bordered the sides and back of the bench. He further testified that whenever
he needed parts to work on, he would count out from 300 to 400 pieces from the truckload
standing near his end of the bench, pile them in the empty space to his left on the bench,'
and that he would place each piece after completing his operation, either to his right or
directly in front of him, "or wherever he had space." Occasionally, De Sabato testified,
extra men were assigned to the other operations, to help dispose of the backlog which
accumulated.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony is in accord with the facts." I further find that as a result of the greater
speed with which their operations could be performed, De Sabato and Caponigro
customarily produced several hundred more parts per day on the microhorn as-
sembly line than did any of the other employees on the said line; that on March
10, 1947, De Sabato actually produced 1,200 pieces and submitted a true report
thereof on his piecework sheet ; and that on the same day, Caponigro's report
of 1,300 pieces on his piecework sheet was likewise an honest report reflecting
his actual production.
In view of all the foregoing, and of the entire record, the conclusion seems
obvious, and I find, that the Respondent became aware of the union affiliations
of De Sabato and Caponigro prior to the date they were discharged, and that
Attianese's accusation that the two employees had falsified their piecework
sheets on March 10, was a deliberate invention on the Respondent's part to serve
as a justification for their discharge. I find further that the Respondent dis'-
criminatorily discharged De Sabato and Caponigro on March 11, 1947, because
of their affiliation with and activities on behalf of the Union.
Attianese's above-described interrogations of De Sabato concerning the latter's
relationship to the Union, and his threat on March 10, 1947, addressed to De
Sabato, that the latter would "be out of a job" because he had attended the
March 9 meeting of the Union, were clearly illegal under the Act, and I shall find
below that they constituted unfair labor practices on the part of the Respondent.
5. Charles J. Frizell
Frizell was employed by the Respondent as a power-press operator from
the first week in January 1947, to March 11, 1947, the date of his discharge.
His supervisor was General Foreman Pete Terruso. He joined the Union about
a week after starting work for the Respondent, and attended the meeting of that
organization held on March 9, 1947. On his way to the aforesaid meeting, he
passed Personnel Director Birch and Assistant Foreman Abbandola who were
near the entrance to the hall. As has been found above, these representatives
of management were present in the vicinity of the hall for the purpose of
keeping under observation the employees who attended the meeting.
++ In one respect, the stipulated testimony of the aforesaid time-study engineer conflicted
with that of De Sabato. It will be remembered that the latter testified that there was
a board built around the sides and back of the bench on which he worked. The testimony
of the engineer contradicts this. The point is relevant to the disputed issue of whether
or not it was physically possible for several hundred parts to be piled up at De Sabato's
and Caponigro's positions at the bench. Nevertheless, I do not feel it necessary to resolve
the particular issue of whether or not there was a board around the bench. The evidence
is overwhelming that De Sabato and Caponigro were able to produce several hundred
more pieces per day than any of the other employees on the line. One must conclude that,
being paid on a piecework basis, they did. Exactly how, and by what means, they were
enabled to pile the completed pieces on the bench, it is not essential to decide.
As for Attianese's testimony that it would have disrupted the operation of the assembly
line for one operation to have proceeded consistently at higher speed than the others,
his conclusion does not withstand analysis. One must remember that De Sabato and
Caponigro performed the first two operations on the line. From the point of. view of
the most efficient operation of the line, it would be desirable for the initial operations to
proceed at a faster .pace than the later ones. Thereby a "cushion" of uncompleted parts
would be constantly available to keep the rest of the assembly line supplied with material,
and to act as an incentive for continuous production. The pile-up of uncompleted parts
was, as De Sabato testified, kept within bounds by occasionally assigning extra workers
to the other operations, when it became necessary to reduce or eliminate the backlog.
E. A. LABORATORIES, INC. 701
On March 11, 2 days after the aforesaid meeting, Frizell was handed his pay
check while he was at work . When he asked Foreman Terruso what the meaning
of this was, Terruso replied that he did not know-"I got orders to let you go, and
that's all I know." When Frizell pressed him further for an explanation by
asking whether there was any complaint about his work or conduct , Terruso
stated that he found no fault with Frizell, that the latter was "a very good
operator," but that "maybe [he] went some place on the outside where [he
wasn ' t] supposed to go." Frizell answered that where he went "on the outside
[was his] business ." "Well," replied Terruso, "you were seen some place where
you shouldn 't have been." 46
Frizell 's personnel card was marked , "March 11 , 1947, discharged , work unsatis-
factory, not to be rehired." There was no supporting testimony by anyone to the
effect that Frizell's work was in any way unsatisfactory . His supervisor, Ter-
ruso, did not appear as a witness . Frizell himself denied that he had ever been
criticized by Terruso or anyone else concerning his work. This testimony
stands undenied in the record.
The Respondent did, however , introduce into evidence certain of its records,
and a tabulation thereof, purporting to show that on 20 days during his period
of employment by the Respondent , Frizell had failed to produce enough piecework
to earn his guaranteed minimum hourly pay (known as his "base hourly pay").
In his brief , counsel for the Respondent contends that Frizell was discharged
for that reason , Frizell testified that he was employed on a piecework basis,
with a guaranteed hourly rate of 85 cents . He explained that on occasions during
his employment , such as when his machine broke down , or a new die was being
installed therein, or while awaiting assignment to a new job, he would be paid
at the minimum hourly rate. While operating his machine , he was paid on a piece-
work basis. During such times, he testified , he had never failed to produce
enough piecework to earn at least his guaranteed minimum hourly pay. This
testimony by Frizell is likewise uncontradicted in the record . Frizell impressed
me as a truthful witness. In view of the unexplained failure of the Respondent to
offer testimony by any of Frizell 's supervisors with respect to the alleged defi-
ciences in his production , I credit the explanation advanced by Frizell with re-
spect to the occasions when he might have earned only his base hourly pay.'6
In view of the complete absence of any credible evidence that Frizell's work
was, in . fact, unsatisfactory , the only reasonable explanation for his discharge
is to be found in the fact that his attendance at the union meeting of March
9, must have been observed by the management representatives who were at the
scene for that purpose . Indeed, Terruso 's remarks on the occasion of Frizell's
discharge supports such a conclusion . I find that Frizell was discharged by the
Respondent on March 11, 1947, because of his attendance at the union meeting
on March 9, 1947.
+a The above findings are based on Frizell 's credited testimony . Terruso did not appear
at the hearing as a witness , but it was stipulated that if he had appeared, he would have
denied Frizell 's testimony with respect to the above -summarized conversations. In view
of the Respondent 's surveillance of the union meeting of Match 9, which Frizell attended,
the significant timing of Frizell ' s discharge just 2 days later, and the Respondent's dis-
criminatory discharge of a number of other employees within a day or two after they
attended the March 9 meeting , I find Frizell's testimony more credible than the stipulated
denial.
4e Frizell ' s testimony that he failed to earn more than his base pay on only isolated
occasions is corroborated by his record of weekly earnings , which was introduced in evidence.
This company record shows that there was no weekly pay: period during which Frizell failed
to earn more'than his pay would ' have amounted to if computed on the basis of his minimum
hourly pay.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Emily Milani
Milani was in the Respondent's employ from November 1946 to the date of her
discharge, March 10, 1947. For about the last 2 months of this period she worked
under the supervision of Assistant Foreman John Stango in the spray depart-
ment, where she performed the task of wiping excess paint off ornaments.
Milani, who had joined the Union in December 1946, was the only girl who
attended the meeting of that organization on March 9, 1947. She was similarly
the only girl member of the union organizing committee. On the day following
the aforesaid meeting, Milani was about to start working overtime as she had
been requested to do by one of her supervisors, when Foreman Stango handed her
her pay check and told her she was discharged because of her habitual tardiness,
and because she had previously refused to work overtime when requested."
Stango testified that the immediate incident which precipitated the Respond-
ent's decision to terminate Milani's employment occurred on the Friday pre-
ceding her discharge, when, as Stango testified, he had occasion to complain to
his supervisor about Milani's poor work on that day. He had previously made
such frequent complaints against Milani's tardiness and her slipshod work,
Stango testified, that on this final occasion the general foreman indicated that
he "was sick of it," and told Stango to "get rid of Milani." In support of the
foregoing, Stango testified on the basis of Milani's time cards, that from Janu-
ary 6, 1947, to the date of her discharge, Milani had reported to work late 17
times, the last 2 instances of such tardiness having occurred during the week
ending March 4, 1947. Stango further testified that Milani's work "was very
unsatisfactory" ; that "she showed no interest at all in her work whatsoever, and
the work that she used to do . . . she used to spoil," so that it had to be done
over again. The unsatisfactory quality of Milani's work, according to Stango,
was the "most important factor" in his decision to discharge her. He further
testified that Milani's shipshod work became apparent to him "the very first day
she came to work for [him]"; that it was so extremely bad that she spoiled
8 or 9 out of every 10 pieces she worked on; and that Milani "never improved"-
"that always went on."
Milani admitted that for a period of some 2 months prior to her discharge
she had been habitually late to work, that she had been severely reprimanded
for this tardiness and warned that it must cease, and she testified that there-
after she "made it [her] business to come in earlier," with the result that after
she was warned, she was tardy only a couple of times. The company records
show that Milani was tardy 15 times from January 6 to February 26, 1947, and
twice during the week ending March 4, 1947, and was not again late to work
during the rest ,of her employment with the Respondent. It was stipulated that
if Milani had been called as a rebuttal witness, she would have denied that she
had done poor work as testified by Stango.
Milani's personnel record is marked, "March 10, 1947-Discharged, absenteeism
and lateness and unsatisfactory work." The record contains no other reference
to absenteeism on Milani's part.
In resolving the crucial issue as to the actual motivation for the Respondent's
determination to discharge Milani, I have taken into consideration two factors.
47 It is undisputed that there had been occasions when Milani refused to work overtime.
However, since her supervisor, Stango, who testified with respect to the reasons for her
discharge, did not assign this as one of the reasons, I do not deem these refusals an issue
. herein, and shall not discuss them further.
E. A. LABORATORIES, INC. 703
The first is the suspicious circumstance that Milani was discharged the very
day after she had attended the March 9 meeting, which the Respondent had
kept under surveillance, and that her discharge coincided with a number of
others, which the Respondent effected within the day or two after that meeting
against employees similarly in attendance. The second is a certain incredible
characteristic about Stango's testimony, in that, if I may indulge in a metaphor,
he tried to "ungild the lily" too much. I find it difficult to believe Stango's testi-
mony that Milani, from the very first day in his department, was an outstandingly
poor worker, so poor in fact, that 80 to 90 percent of her work had to be done
over, that this persisted to the last day of her employment, and that, despite this,
and her admitted earlier habitual tardiness, he tolerated her continued employ-
ment for 2 months without disciplining her. Nor do I credit Stango's testimony
that he neither knew of Milani's connection with the Union, nor considered that
as "any affair of" his, in view of the fact, as hereinabove found, that he was one
of the supervisors who had joined with Birch in keeping the union meeting of
March 9 under surveillance.
On the basis of the whole record, I conclude and find that Milani had been
habitually tardy while in the Respondent's employ ; that she was warned against
continuing this habit ; that she thereafter showed some improvement in this
respect; that her tardiness had been condoned by the Respondent at the time
of her discharge; that the Respondent thereafter learned of her attendance at
the March 9 meeting of the Union and determined to discharge her for that
reason ; that it invented a charge of poor workmanship against Milani, which,
together with her earlier tardiness, it utilized as a pretext for discharging her ;
and that the Respondent, on March 10, 1947, did discharge Milani because of
her attendance at the aforesaid meeting of the Union.
7. Alfred Snike
Snike was employed by the Respondent from November 6, 1945, until March
11, 1947, the date of his discharge. During the whole period he served as helper
to his immediate supervisor, Maintenance Machinist Morris Schwartz. Their
task was to repair machines, jigs, and fixtures throughout the plant as such
repairs became necessary.
Snike joined the Union in January or February 1947, signing an application
card at the entrance to the plant, which was handed to him there by Christopher
Columbo. He attended the March 9, 1947, meeting of the Union which has
heretofore been referred to. Near the entrance to the meeting hall he met
Assistant Foreman John Stango, who was standing there, and exchanged greet-
ings with him."
On March 11, Schwartz informed Snike that he was "going to have to let
[Snike] go." When asked why, Schwartz replied, "I don't know. I haven't
got anything to do with it. I got my orders from downstairs."" Following
this, Snike approached Stango, whom he had seen near the union hall on the
occasion of the March 9 meeting, and berated him as a "rat." - Stango merely
0 I have hereinbefore discredited Stango's denial that he was near the Union 's meeting
hall on the day in question.
49 Based on Snike's testimony , which I credit. Schwartz did not refer to any such
conversation in his testimony.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied, "I know what side my bread is buttered on, and I don't bite the hand
that feeds me." 60
Snike's personnel card is marked, "March 11, 1947-Discharged, work unsatis-
factory and fools around. Has been warned several times." Schwartz testified
that Snike had been a satisfactory employee during the first year of his employ-
ment, but that about 3 or 4 months before the date of Snike's discharge, he
(Schwartz) began to receive complaints from various foremen that Snike had
the habit of "fooling around" with the girls in their departments when he was
sent there to make repairs., and that the repairs he made were unsatisfactory
and had to be done over. In January and February 1947, according to Schwartz,
he warned Snike that he had received these complaints, and Snike promised to
"try to cut it out." On March 7, 1947, the Friday preceding Snike's discharge,
Schwartz testified further, there was brought to his attention an instance of
Snike's having neglected his duty when assigned to repair a machine in the
department of Foreman Louis Savo. He thereupon informed Personnel Director
Birch of the situation, he testified, and Snike was discharged on Tuesday, March
11. Of the foremen named by Schwartz as having complained to him against
Snike, only one, Mascia, testified with respect to the matter, and Mascia merely
averred that he had, at some unspecified time, once complained to Schwartz
about the workmanship of one of Schwartz' assistants, and asked Schwartz
not to send this unidentified assistant to make repairs in his department any
more. Mascia could not, when asked, identify Snike as the assistant in
question 61
Snike denied that he had ever received any complaints from Schwartz regard-
ing his work, either on the day of his discharge, or at any other time. He
admitted that on one occasion, which he placed roughly as having occurred some
4 to 10 months before his discharge, he had been cautioned by Schwartz not to be
"seen fooling with the girls." He testified, however, that this warning was
couched as a "friendly tip," rather than a criticism, that it was never
repeated, and that neither at that time nor any other, did Schwartz refer to
any complaints having been made against him. He explained that during the
course of his work it was necessary for him to engage in conversation with the
girl operators of machines he was sent to repair-to ask them what the trouble
was, instruct them in the proper operation of the machine, and the like. Snike
did not deny that there might have been occasions when machines he had re-
paired broke down and had to be repaired over again, but he insisted that he had
never been criticized for this, and that, in fact, it was not uncommon for machines
that Schwartz himself had worked on to require repeated attention. On cross-
examination, Schwartz admitted the truth of this.
The undisputed fact that Snike started in the Respondent's employ at a pay
rate of 70 cents per hour, and was advanced to 90 cents per hour by the time
he was discharged, and that at least his last pay raise was a "merit increase,"
effected on the recommendation of Schwartz, indicated that at least up to the
"Based on Snike '. s testimony Stango, who admittedly had been friendly with Snike,
testified that Snike had spoken to him on the day of his discharge , but claimed that he had
merely asked Stango to intercede for him. He claims he told Snike that he could do nothing
for him because it was common knowledge in the plant that Snike had wasted time during
working hours talking to the girls .' I credit Snike's version of the conversation.
61 The record shows, as Mascia testified , that Schwartz had had 3 or 4 different assistants
at various times, and more than one while Snike was so employed.
E. A. LABORATORIES, INC. 705
time the latter increase was put into effect,0' Snike was a satisfactory employee.
This is not disputed. The Respondent's contention is, therefore, that about 3
or 4 months later there was an abrupt change in the character of Snike's work,
which-finally led to his discharge.
I am convinced that it was more than coincidence that the Respondent's
decision to discharge Shike was executed on March 11, just 2 days after Snike
was observed entering the hall in which the Union was holding a meeting. We
have already seen instances in which the Respondent invented or seized upon
pretexts by which to rid itself of employees who participated in that meeting.
This seems to be another such case. Schwartz' testimony that he received com-
plaints from various foremen about Snike's conduct and workmanship, is, as we
have seen, uncorroborated by the foreman in question. I am persuaded, there-
fore, to credit Snike's denials that he had ever been criticized by Schwartz and to
discredit Schwartz' testimony. As for the warning that he should not be seen
"fooling around with the girls," the evidence is susceptible to two interpretations.
One, most favorable to Snike, and in accord with his testimony, is that Schwartz,
knowing that Spike's work brought Aim into close contact with the girl machine-
operators, and without any specific occasion to do so, mentioned to him that he
should be careful not to let their business conversations be prolonged into personal
chats, simply, as Snike put it, as a "friendly tip." The other, urged by the Re-
spondent, is that Schwartz must have received a complaint that Snike was en-
gaging in uncalled-for talk with the girls, and passed the criticism on to Snike.
Even if we adopt the latter inference, I do not, in all the circumstances of this
case, believe that the incident played any part in the Respondent's decision to
discharge Snike. I am convinced, rather, that if any such complaint was ever
made against Snike, it was soon forgotten by all concerned, and is now being
resurrected to bolster the Respondent's justifications for the discharge. In the
same category, I further conclude, are the instances pointed to by Schwartz,
when machines repaired by Snike broke down, and again had to be repaired.
The record clearly shows that such incidents were routine events in the plant,
and did not necessarily indicate any fault on the part of the repairman involved.
I find that Snike was never criticized for such an incident.
On the basis of the entire record, I conclude and find that the real reason for
the Respondent's discharge of Snike on March 11, 1947, was his attendance at
the meeting of the Union on March 9, 1947, and that his discharge was, therefore,
in violation of the Act.
8. Andrew Donneruno
At the time of his discharge on March 13, 1947, Donneruno was employed in
the Respondent's sixth floor stockroom, under the supervision of Foreman Vincent
Muscarella, and of Assistant Foreman Joseph Guidice. Muscarella testified that
he considered Donneruno a satisfactory worker.
Donneruno joined the Union in January 1947, distributed some union cards
across the street from the plant in February, and attended the fateful March 9
meeting of the Union.
On March 13, Donneruno was instructed to perform certain tasks involving
the use of a handle for a handcart, which handle he was told to borrow from the
Respondent's paint shop on the floor above. When Donneruno returned the
handle, employee Massie, in whose custody it had been, warned him not to borrow
' The date of the said "merit increase" is shown by the Respondent's records to be
August 13, 1946.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it again, because Massio was displeased with the delay in returning it.
Donneruno insisted he had been instructed to use the handle; Massio threatened
to "smack [Donneruno] in the mouth" if he took it again ; Donneruno challenged
him to try to "do it"; Massio accepted the challenge, swung at Donneruno ; and a
brief exchange of blows or attempted blows ensued 63
Immediately after the fight, Donneruno. was called to the office of Personnel
Director Birch, where, after some discussion, he was told by Birch that he was
"a trouble-maker, always looking for a fight, all over the building," and was
discharged. His personnel card reads: "March 13, 1947-discharged, fighting in
factory during working hours."
The record contains many minor conflicts between witnesses as to whether
or not Donneruno struck the first blow in the fight, whether he denied this after-
wards, and the like." Based on a consideration of all the evidence, I am per-
suaded, and find, that Donneruno did, in fact, get into a controversy with Massio ;
that the latter struck or attempted to strike Donneruno ; and that a slight flurry
of blows or attempted blows ensued, which was quickly ended through the inter-
cession of bystanders. I further find that1Donneruno denied to Birch that he
had started this fight.
One cannot help but view the foregoing incident as a rather trivial flare-up of
temper between two boys. In normal course, I am convinced, the Respondent
would have dismissed it with a reprimand to the participants, or even if it did
view any fight in the plant, no matter how trifling, as a serious matter, it would
have disciplined both boys. Significantly enough, Donneruno, an employee whose
conduct or work had never before been criticized, was summarily discharged.
Massio, who was at least equally at fault, was not.
Were not another more persuasive explanation afforded by the record, one
might dismiss the Respondent's discharge of Donneruno as arbitrary, perhaps,
but nevertheless within its prerogatives as an employer, and therefore no viola-
tion of the Act. The surrounding circumstances do, however, point plainly to
the Respondent's real motive for treating Donneruno as it did. His discharge is
of a pattern with the discharges of other employees who were observed by the
Respondent in attendance at the meeting of the Union on March 9. I am con-
vinced by the whole record, and find, that the Respondent, having learned of
Donneruno's attendance at the aforesaid meeting, seized upon Donneruno's alter-
cation with Massio on March 13, 1947, as a convenient pretext to rid itself of
Donneruno, and that it discharged him on that date because of his attendance
at the March 9 meeting of the Union. This discharge, consequently, constitutes a
violation of the Act.
9. Joseph De Rienzo
De Rienzo was employed by the Respondent from November 25, 1946, to January
27, 1947, the date of his discharge. His supervisor was General Foreman Sal
Colucciello. He joined the Union some time before his discharge, and distributed
union cards in the plant to fellow employees.
"Based on the undenied , credited testimony of Donneruno.
64 Thus: Donneruno testified that Musearella as well as Guidice witnessed the fight.
Muscarella testified he only heard the commotion and arrived on the scene after it was
over . Guidice did not testify. Donneruno testified, and Muscarella admitted, that when
questioned by Birch, he told Birch that Massio had struck the first blow. Birch at first
testified that while he remembered the "incident " of Donneruno 's discharge , he could not
recall the details of the conversation between himself and Donneruno . He later testified
that there "was no dispute as to the facts" of the fight at the time , and that Donneruno
had admitted striking the first and only blow.
E. A. LABORATORIES, INC. 707
Colucciello testified on the basis of company records, and I find, that De Rienzo
was absent from work on the following days during his period of employment :
December 24, 26, 27, 1946; January 2, 3, 4, 20, 21, 22, 23, and 24, 1947.66 He fur-
ther testified, and I find, that he received no communication from anyone explain-
ing De Rienzo's last absence, which began on January 20, 1947, and continued to
the date of his discharge on January 27 56 Colucciello, according to his testimony,
finally decided to discharge De Rienzo for absenteeism, and did so on the 27th.
In view of the foregoing findings, I do not find it necessary to resolve the issue
of whether or not the Respondent was aware of De Rienzo's activities on behalf
of the Union. I am persuaded and therefore find, that the record indicates a
valid reason for the Respondent's discharge of De Rienzo, namely absenteeism,
that it discharged him for that reason, and that, consequently, his said discharge
was not in violation of the Act.
10. Michael Montemurro
Montemurro was in the Respondent's employ as a power-press operator for 2
weeks, from January 8 to January 22, 1947, the date of his discharge. His super-
visor was Foreman Pete Terruso.
Prior to his discharge, Montemurro joined the Union, and a day or two there-
after engaged in prounion discussion with fellow employees in the plant lunch-
room during lunch hours.
On the day of his discharge, Montemurro was referred to Personnel Director
Birch, who told him that he was being discharged for "inexperience." 67
Montemurro testified that he had had several years of experience as a power-
press operator prior to working for the Respondent, and that he had been able
to operate every machine in the Respondent's plant to which he had been assigned.
He further testified that Foreman Terruso had never commented to him on his
work, except to ask why Montemurro never "tried to go over the base pay." 68 The
latter replied that the risk of injury was too great when one attempted to "speed
up" on a power press, and that he did not consider it worth while to incur this
risk just to try to earn a few more cents an hour. Terruso, he claims, told him,
"Just give us the quota and it will be all right." 69 Asked whether he had averaged
his base rate each week (i. e., "made his quota"), Montemurro answered, "I
imagine I did."
66 De Rienzo 's testimony that he was absent on only two occasions before his final absence
was not convincing.
60 De Rienzo testified that he was ill on Monday, January 20, did not report for work,
and that he asked his sister to telephone the Respondent and report the reason for his
absence ; that his sister told him that she did so but was told he was discharged ; and
that when he went in for his pay check the following Friday he was told by Birch that
he was discharged for absenteeism. He also testified that he had always reported the
reasons for his absences to some representative of the Respondent. De Rienzo's sister
did not appear as a witness . In the absence of testimony from her that she had reported
De Rienzo 's final absence, and the reason therefor , to the Respondent , the record contains
nothing but De Rienzo's hearsay testimony to support his contention that she had done so.
I do not, therefore, find that the Respondent was, in fact, notified.
57 The above findings are based on Montemurro ' s undenied , credited testimony . Terruso
did not testify, and Birch could not recall who Montemurro was, or anything about his
discharge.
69 Apparently Montemurro was paid on a piecework basis, being guaranteed a minimum
hourly pay of 85 cents, regardless of his actual production.
69 By "the quota," I assume, is meant the minimum piecework production necessary to
earn one's guaranteed "base hourly rate."
882191-51 46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent introduced into evidence Montemurro's production records,
and a compilation thereof , which show that out of the 14 days he worked for the
Respondent, he produced less than his quota on S.
On the record as a whole, I find that Montemurro did not maintain a satisfac-
tory rate of production while in the Respondent's employ; that he was discharged
for that reason; and that his aforesaid discharge did not constitute an unfair
labor practice.
11. Antonina Agueci. 80
Agueci was discharged by the Respondent on Friday, January 31, 1947; she
had been hired on January 6, 1947. She was one of about eight employees who
worked together on an assembly line under the supervision of General Foreman
Louis Pascucci.
As she was leaving the plant after work on January 30, Agueci had a conversa-
tion with a representative of the Union, Messier, who was distributing literature
near the plant entrance. They were joined within a few minutes by Christopher
Columbo, former employee of the Respondent, who, at the time, was assisting the
Union in its activities at that place. Agueci testified, and I find, that this con-
versation took place about one-fourth of a block down the street from a point near
the guard's booth, where Personnel Director Birch was then standing, and that
after being solicited to do so by Columbo, she then and there signed a union ap-
plication card.81
The Respondent contends that Agueci's employment was terminated because
she had, in effect, resigned, by abandoning her job about an hour before quitting
time on the last day of her employment (Thursday, January 30). Her personnel
record is marked, "Resigned--abandoned job-trouble maker-work unsatisfac-
tory-not to be rehired." Her foreman, Pascucci, testified that on January 30, at
about 4 o'clock in the afternoon, he noticed that the members of Agueci's assembly
line were not at their work-stations ; that he was informed that they had gone to
the engineering office to discuss a grievance regarding their piecework rates ;
that after a while, all these employees except Agueci returned to their jobs; that
he "figured" she had quit her job; and that the next day he submitted a "quit slip"
to the personnel office for Agueci.82 The time-study engineer with whom the
employees in question discussed their grievance, did not appear as a witness, but
it was stipulated that if he had, he would have testified as follows : That Agueci
appeared in his office at about 4 p. in. on Thursday, January 30, 1947, with six
other employees on the same assembly line; that they complained about their
rates; and that after a discussion, as the group were leaving his office, Agueci
said that the "company were gyps and they could go to hell." 83
Agueci denied that she had failed to return to her job together with the rest
of the assembly line, following the conference with the engineer. She testified
that after the said conference, she, together with the other employees, returned
to work, and that she worked for the rest of the day, until 5: 30 p. in. She testi-
eo It was stipulated that the above is the correct spelling of the name written in the
complaint as "Antonia " Agueci.
01 Agueci ' s testimony with respect to the above is undenied . I credit it.
A2 The "quit slip" Is marked, "she abandoned her job . Her work was not satisfactory."
In another space is the word , "discharged ," appearing over the word , "resigned ," which is
crossed out.
63 It was also stipulated that if Agueci had been called in rebuttal she would have denied
making the above -quoted remark . For reasons which will become evident, I do not credit
her denial.
E. A. LABORATORIES, INC. 709
fled further that on reporting for work the next day, she did not find her time
card in its rack, was referred to Personnel Director Birch, and was told by the
latter that she was discharged "for talking to a union delegate."
Agueci, as is set forth above, testified that her conversation with representa-
tives of the Union, near the plant entrance, on January 30, took place as she was
leaving the plant after work. I am convinced that this conversation followed,
rather than preceded, the termination of her employment. As has been seen,
Agueci insisted in her testimony that on January 30 she had returned to work
after the conference with the engineer, and finished the day on the job, working
until 5: 30 p. in. Her time card for that day, however, is punched out at 4: 33
p. in. This seems conclusively to corroborate her foreman's testimony that she
did not work until 5: 30 with the rest of her group, but instead left the plant
after the conference with the engineer, and in fact abandoned her job on that
day. Moreover, the testimony of the engineer that she remarked that the Re-
spondent "could go to hell," at the end of her discussion, is consistent with such
a conclusion.
On the basis of all the evidence, I conclude and find that Agueci on January
30, 1947, voluntarily abandoned her job with the Respondent, and that the latter
did not, as is alleged in the complaint, discharge her because of her union affilia-
tions or activities.
12. Frank Laregio
Laregio was discharged from the Respondent ' s employ on March 14, 1947. His
personnel card is marked : "March 14, 1947-discharged , organizing for union on
company time, 12: 35 p. in. 3/14/47."
While there is evidence in the record tending to show that the Respondent,
prior to discharging Laregio, knew of his affiliation with the Union ,64 1 do not
deem it necessary to make a finding with respect thereto, since the incident for
which Laregio was admittedly discharged had to do with union activity on his
part. The crucial issue, as I see it, is whether such activity took place during
working hours, as the Respondent contends , or during Laregio's lunch hour, as
he testified.
Laregio testified that on March 14, he was handed a union circular during his
lunch hour ; that, since he cannot read or write English, he brought the circular
back into the plant with him ; that , still during the lunch hour, he asked a fellow
employee to explain to him in Italian what the circular contained ; that while he
and the other employee were conversing , their foreman , Eddie Mascia, ap-
proached , grabbed the circular , told Laregio, "you know you [are] not supposed
[to] bring this paper [into ] the shop," and discharged him on the spot. Laregio
further testified that the bell indicating the end of the lunch period rang at just
about the time he and the foreman were engaged in their aforesaid conversation.
Foreman Mascia testified that Laregio and another employee, Frank Fusco,
both worked under his supervision ; that Lareglo was an excellent worker; that
on the day of Laregio's discharge , about 5 to 10 minutes after the end of the
lunch period , he observed Laregio and Fusco in conversation in their department ;
that he approached them and saw Fusco with the union circular in his hand;
that he questioned the two employees as to who had initiated the conversation ;
. " Laregio testified that he attended meetings of the Union at the same hall which was
kept under surveillance by the Respondent , but that these meetings occurred after his dis-
charge. Either Laregio was confused, or he may have attended only the March 16 meeting,
which was admittedly kept under observation by Birch. This meeting was held 2 days
after Laregio ' s discharge.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Laregio admitted that he had ; and that he then discharged Laregio for
having engaged in the foregoing conversation with Fusco during working hours.
Fusco corroborated the foregoing testimony of Mascio in every substantial de-
tail.''
Though entertaining some doubts with respect to this case I am persuaded
that the General Counsel has failed to establish, by a preponderance of the
evidence, that Laregio was discriminatorily discharged. In view of the testi-
mony of Mascia and Fusco as to the timing of Laregio's conversation with
Fusco, I find that Laregio did, during working hours, hand Fusco a union circular,
and ask him to read it, and that Laregio was discharged on March 14, 1947, the
day of the aforesaid occurrence, for having engaged in the said activity during
working hours. I conclude and find that his discharge was not in violation
of the Act.
13. Frank Nicolazzi
Nicolazzi was in the Respondent's employ from November 26, 1946, to March
14, 1947, the date of his discharge. From about the end of December 1946, or
beginning of January 1947, to the date of his discharge, he worked in the stock-
room under the supervision of Foreman Vincent Muscarella and the latter's
assistant, Joe Guidice.
Nicolazzi joined the Union in early January 1947. On the occasion when he
received the union application card in the plant, Assistant Foreman Guidice told
him it would be useless to "sign with any union because no union would ever
get into" the Respondent's plant. Nicolazzi replied that "there was no harm
in trying" and expressed his determination to join the Union.40
Nicolazzi's personnel card reads : "March 14, 1947-discharged, work unsatis-
factory, lazy and indifferent." Foreman Muscarella testified that during the
time Nicolazzi worked under his supervision, this employee, was "a slow worker,
lazy. You would have to remind him many, many times to get back to work."
He testified further that Guidice had reported to him that Nicolazzi was "no
good," that he was "slacking in his work," and that "it's about time you got rid of
this man." Muscarella testified that he had himself observed, during the last
couple of weeks of Nicolazzi's employment, that the latter was lazy and indiffer-
ent, and that he finally arrived at the decision to discharge him on March 14. The
foreman admitted that there were other employees in his department who had
had to be "prodded," whom he did not discharge, but explained that in Nicolazzi's
case the employee would not even work after he was so prodded.
Nicolazzi testified on direct examination that he had never been accused
of violating any company rules, and that "there had never been any complaints
about his work" up to the time of his discharge. He admitted that he had
never received any wage increases while in the Respondent's employ. On the
day of his discharge, he testified, he was handed his pay checks and told he
was being discharged, but received no explanation for this. He did not seek
out his foreman or any other representative of management to ask the reason
for his discharge. Nicolazzi was not recalled as a witnesses to deny the testi-
mony of Muscarella with respect to his alleged deficiencies.
In view of the instances already noted herein of the Respondent 's use of pre-
texts to discharge prounion employees, Nicolazzi't discharge is not free of sus-
picion. However, since his foreman's testimony was not specifically denied and
Fusco was a foreman in the Respondent ' s employ at the time of the hearing.
r0 Based on Nicolazzi 's credited , undenied testimony.
E. A. LABORATORIES, INC. 711
there is no affirmative evidence that Nicolazzi was an efficient worker, I do not
feel that the record adequately supports the General Counsel's allegation that
his discharge was motivated by his union affiliation, rather than the Respondent's
dissatisfaction with his work.
I find, therefore, that Nicolazzi was discharged on March 14, 1947, because
the Respondent did not find his work satisfactory, and shall recommend dismissal
of the complaint insofar as it alleges that his discharge was in violation of the
Act.
14. Connie Spallone (Airs. Connie Bizup) "
Bizup having moved from the area where the hearing was held, did not appear
to testify in person. It was stipulated that if she had appeared as a witness,
she would have testified as follows :
She entered the Respondent's employ as a power-press operator in or about
August 1946. Two weeks later she became a timekeeper. She was discharged
on January 20, 1947. Bizup joined the Union sometime between January 2
and January 14, 1947. On Friday, January 17, while she was relieving the
receptionist in the office of Personnel Director Birch, Birch told her that "there
was some talk that [she] was connected with the Union." Bizup denied that
she was, but Birch "insisted that it was true because he had reports that [Bizup]
was seen talking to the union organizers in Charlie's Bar across the street
from the plant." Bizup also denied this. Birch then asked her whether she
had received any union cards for distribution among the employees and she
admitted that she had, but told him that she had torn up the cards. Birch then
asked whether she had "talked union" to other employees, and she denied this.
Thereupon Birch told Bizup that she was a good worker; that he had obtained
her last raise for her, and would see that she soon obtained another one. He
told her, "If you want to work here, stick to our team, and forget the Union."
Bizup did not report for work as usual on Saturday, January 18, and when she
came to work the following Monday, January 20, found her time card missing
from its rack. Birch's receptionist told her she had been discharged. Later in
the day, Birch told her she had been "fired because [she] did not show up on
Saturday for work." When Bizup remonstrated that Saturday work was op-
tional, Birch told her she was discharged for "absenteeism, constant lateness,
and insubordination."
Birch testified that Bizup first began work as a timekeeper with such "elemen-
tary" duties as checking attendance reports, making up quit-slips, and helping
to fill out application blanks ; that she was transferred to the more difficult
job, about 2 weeks before her discharge, making time-clock readings and com-
putations of piecework earnings; and that she was discharged "simply because,
she could not or wouldn't count. She was incompetent on figuring cards and
keeping records," He further testified that after the first pay period for which.
Bizup had computed employees' earnings, he discovered that she had both under-
computed and over-computed the earnings of various employees. Birch denied
having made the statements about Bizup's union activities attributed to him by
the latter, as well as having told her that she was a good worker and he would
get her another raise.
73 The above -named employee was known by her maiden name, Connie Spallone, while In.
the Respondent 's employ, and is thus named in the complaint . She is ' referred to in the
testimony by both her maiden and married names.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's records admittedly show that Bizup received 80 cents per
hour when employed as a power-press operator ; that on August 20, 1946, upon
being transferred to a job as timekeeper, she was reclassified to 75 cents per
hour ; and that on November 19, 1946, she received a merit increase to 80 cents
per hour. Birch explained the latter increase by testifying that on November
19, Bizup was still doing the more simple work as a timekeeper to which he had
previously referred, and that she had done that work satisfactorily.
With respect to the occasion of Bizup's discharge, Birch testified that he told
her that she was being discharged for incompetence and absenteeism, and that by
the latter he meant her failure to report for work on the previous Saturday,
though she had promised to do so.
As appears above, Birch's testimony that Bizup had promised to work on the
Saturday preceding her discharge, but had failed to do so, and his detailed testi-
mony with respect to her alleged incompetence during the last 2 weeks of her
employment, stand undenied in the record: It may be that this is due only to
the unfortunate circumstance of Bizup's unavailability to appear in person as
a witness, but be that as it may, the record so stands. I am constrained to find,
therefore, that Bizup did promise to report for work on Saturday, March 18, but
failed to do so, and that during her last 2 weeks in the Respondent's employ,
she committed a number of errors in her work.
As for Birch's alleged questioning of Bizup about her union activities, I would
be inclined to discredit his denials, since, as the record shows, similar denials
on his part with respect to other discharged employees, are refuted by the evi
deuce. I see no point in resolving this issue, however, since I am persuaded that,
in view of the findings above made concerning Bizup's absence and errors, I
would be precluded from recommending reinstatement and back pay for her
even if I found that antiunion bias on the part of the Respondent played some
part in its determination to discharge her."
Accordingly, I find that Bizup was discharged on January 20, 1947, because
she had promised, but failed, to report for work the preceding Saturday, and'
because her work during the 2 last weeks of her employment had been unsatis-
factory to the Respondent.
D. Concluding findings with respect to the discriminatory discharges, and the
Respondent's conduct in relation to the discharged employees
On the basis of the entire record, I conclude and find that the Respondent,,
by discharging the following named employees on the dates set opposite their
names, and by failing to reinstate then since the dates of their respective dis-
charges," because of their affiliation with or activities on behalf of the Union,
72 See my discussion of this question in connection with the case of Christopher Columbo,
supra.
73 In its brief the Respondent requests that I make a finding that in April 1947 It offered
to reinstate the employees herein found to have been discriminatorily discharged, and that,
such offer of reinstatement was rejected. The foregoing proposed finding of fact is rejected
for the following reasons : The record shows that in April 1947, during a hearing before
the New York State Supreme Court on a petition for an injunction by the Respondent'
against the Union, some discussion was had with the presiding justice, of a proposal to
settle the strike then in progress against the Respondent. Frizell, who was present at the
said hearing , testified that at the presiding justice's suggestion, the Respondent offered to
reinstate the striking employees, including, presumably, the discharges herein involved,'
but refused to reimburse them for the loss of earnings occasioned by their discharges. This
offer, according to Frizell, was rejected because the employees demanded back pay and
recognition of the Union as conditions of returning to work. Attorney Friedson, who
0 E. A. LABORATORIES, INC. 713
discriminating in regard to their hire and tenure of employment, thereby dis-
couraging membership in the Union, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, and of the Act as amended. The employees above referred to, and the
dates of their respective discharges are :
Frank G. Amino------------------------------- January 20, 1947
Marie Gaglia--------------------------------- . January 23, 1947
James De Sabato______________________________ March 11, 1947
Charles Caponigro----------------------------- March 11, 1947
Charles J. Frizell______________________________ March 11, 1947
Emily Milani ---------------------------------- March 10, 1947
Alfred Snike__________________________________ March 11, 1947
Andrew Donneruno____________________________ March 13, 1947
I further conclude and find that by the acts enumerated below, on the dates
shown, the Respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act and of the Act
as amended, thereby committing unfair labor practices within the meaning of
Section 8 (1) of the Act, and Section 8 (a) (1) of the Act as amended. The
aforesaid conduct consisted of :
1. Birch's and Edelman's interrogation of Arpino with respect to his union
activities, on or about January 16, 1947.
2. Edelman's warning to Arpino on the same day that Arpino "should know
which side his bread was buttered on" and to refrain from having anything to
do with the Union.
3. Birch's statement to Arpino the next day when discharging Arpino, that he
(Birch) could not afford to have anyone like Arpino inside the plant, soliciting
signatures for the Union.
4. Colucciello's interrogation of Gaglia on or about January 21 and i2, 1947,
with regard to her union activities.
5. The efforts of Colucciello and Abbandola to induce Gaglia to abandon her
picketing of the Respondent's plant during the strike which began March 17,
1947, and Abbandola's offer to Gaglia of a job as forelady, if she would would
return to work for the Respondent during the strike.
6. Attianese's interrogations of De Sabato with respect to his union activities,
(luring early January 1947.
7. Attianese's statement to De Sabato on or about March 10, 1947, that the
latter "would be out of a job" that night, because he had attended the union
meeting the day before.
represented the Union at the proceeding in question, testified that the then counsel for
the Respondent merely proposed to Friedson, at a conference with the presiding justice,
that be (Respondent's counsel) would recommend to the Respondent that the pickets be
reinstated on condition that the picket line be forthwith discontinued. No settlement of
the strike, or offer of reinstatement ensued. It is thus clear that so far as the record shows,
the Respondent never made any offer of reinstatement with back pay to the employees
herein found to have been discriminatorily discharged. On the other hand, the record does
establish that on March 13, 1947, a committee representing the Respondent's employees
who were affiliated with the Union, sent the following telegram to the Respondent, and
that no reply thereto was ever received :
YOUR UNION SHOP COMMITTEE DEMANDS THE IMMEDIATE REINSTATE-
MENT OF ALL LOCKED OUT EMPLOYEES. UNLESS THIS DEMAND IS COM-
PLIED WITH, YOUR LOCKED OUT EMPLOYEES WILL TAKE ACTION TO
PROTEST YOUR CONDUCT.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
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 certain unfair labor prac-
tices affecting commerce I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the
Act, and of the Act as amended.
Having found that the Respondent discriminated in regard to the hire and
tenure of employment of Frank G. Arpino, Marie Gaglia, James De. Sabato,
Charles Caponigro, Charles J. Frizell, Emily Milani, Alfred Snike, and Andrew
Donneruno, I shall recommend, in order to effectuate the purposes and policies
of the Act and the Act as amended, that the Respondent offer them immediate
and full reinstatement to their former or substantially equivalent positions,"
without prejudice to their seniority and other rights and privileges. I will also
recommend that the Respondent make each of 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 sum of money equal to the amount he or
she would normally have earned as wages from the date of his or her respective
discharge, to the date of the Respondent's offer of reinstatement, less his or her
net earnings during that period76
Because the unfair labor practices found to have been committed by the
Respondent, both in this Intermediate Report and in a previous Board pro-
ceeding,78 demonstrate an intent on the part of the Respondent generally to
interfere with, restrain, and coerce its employees in the exercise of their rights
under the Act and the Act as amended, the commission of other unfair labor
practices by the Respondent is to be anticipated. I consider it necessary, there-
fore, in order to effectuate the preventive purposes of the Act and of the Act as
amended, to recommend that the Respondent cease and desist from in any manner
interfering with, restraining, and coercing its employees in the exercise of their
rights as defined therein.77
Upon the basis of the foreging findings of fact, and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAw
1. United Construction Workers, United Mine Workers of America, is a labor
organization within the meaning of Section 2 (5) of the Act, and the Act as
amended.
74 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean former position wherever
possible and if such position is no longer in existence then to a "substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
46 See Crossett Lumber Co., 8 NLRB 440, 497-498.
TOE. A. Laboratories, Inc., 80 NLRB 625.
47 See May Department Stores v. N. L. R. B., 326 U. S. 376, aff'g as modified 146 F. 2d
66 (C. A. 8), enf'g 53 NLRB 1366.
E. A. LABORATORIES, INC. 715
2. By discriminating in regard to the hire and tenure of employment of Frank
0. Arpino, Marie Gaglia, James De Sabato, Charles Caponigro, Charles J. Frizell,
Bmily Milani, Alfred Snike, and Andrew Donneruno, thereby discouraging mem-
bership in a labor organization, the Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8 (3) of the Act, and Section
8 (a) (3) of the Act as amended.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act and the Act as amended, the
Respondent has engaged, and is engaging, in unfair labor practices within the
meaning of, Section 8 (1) of the Act, and of Section 8 (a) (1) of the Act as
amended.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meeting of Section 2 (6) and (7) of the Act, and the Act
as amended.
5. The Respondent has not engaged in unfair labor practices by the customary
presence of Personnel Director Birch and other of its representatives near the
entrance of the Respondent's plant while the Union was distributing literature at
the point ; nor by President Aufiero's conduct and utterances with relation to
Union Representative Lawlor on or about January 21, 1947; nor by Aufiero's
utterances to Lawlor on or about February 19, 1947; nor by its discharge of
Christopher Columbo, Joseph De Rienzo, Michael Montemurro, Antonina Agueci,
Frank Laregio, Frank Nicolazzi, and Connie Spallone (Mrs. Connie Bizup).
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
hereby recommended that E. A. Laboratories, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Construction Workers, United Mine
Workers of America, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment, or any term
or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist United Construction Workers, United Mine Workers of
America, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, and the Act as amended.
2. Take the following affirmative action which I find necessary in order to
effectuate the policies of the Act and of the Act as amended :
(a) Unless already reinstated, offer to Frank G. Arpino, Marie Gaglia, James
De Sabato, Charles Caponigro, Charles J. Frizell, Emily Milani, Alfred Snike,
and Andrew Donneruno, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority and other
rights and privileges, in the manner set forth in the section entitled "The remedy,"
above;
(b) Make whole the above-named employees for any loss of wages, in the man-
ner provided in the section entitled "The remedy," above;
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post immediately at its plant at Brooklyn, New York, 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, 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 any other material ;
(d) File with the Regional Director for the Second Region on or before twenty
(20) clays from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the Respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report the Respondent notify said Regional Direc-
tor 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 further recommended that the complaint be dismissed insofar as it alleges
that the Respondent committed unfair labor practices by : the customary presence
of Personnel Director Birch and other representatives of the Respondent near
the entrance to the Respondent's plant while the Union was distributing litera-
ture at that point ; President Aufiero's conduct and utterances with relation to
Union Representative Lawlor on or about January 21, 1947; Aufiero's utterances
to Lawlor on or about February 19, 1947; its discharge of Christopher Columbo,
Joseph De Rienzo, Michael Montemurro, Antonina Agueci, Frank Laregio, Frank
Nicolazzi, and Connie Spallone (Mrs. Connie Bizup).
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 Inter-
mediate Report and Recommended 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 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 mimeographed, and if mime-
ographed 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
-E. A. LABORATORIES, INC. 717
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 25th day of February 1949.
ISADORE GREENBERG,
Trial Examiner.
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, and of the Labor Management Relations Act, 1947, we hereby notify
our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist UNITED CONSTRUCTION WORKERS, UNITED MINE WORK-
ERS OF AMERICA, 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.
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 and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Frank G. Arpino
Maria Gaglia
James De Sabato
Charles Caponigro
Charles J. Frizell
Emily Milani
Alfred Snike
Andrew Donneruno
All our employees are free to become or remain members of the above-named
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.
E. A. LABORATORIES, INC.,
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.