Edwards Brothers, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 29, 195195 N.L.R.B. 1451 (N.L.R.B. 1951) Copy Citation EDWARDS BROTHERS , INC . 1451 CONCLUSIONS OF LAW In the light of these findings of fact and upon the entire record in the case, I make the following conclusions of law : 1. The Respondent, Hallam & Boggs Truck and Implement Company is an employer engaged in trade, traffic, and commerce, and business activities which affect commerce, within the meaning of Section 2 (2), (6), and (7) of the Act. 2. International Union of Operating Engineers, Local No. 9, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. All of the Respondent's shop employees, including the mechanics, mechanic trainees, and setup men, but exclusive of office and clerical employees, parts- men, janitor, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The Union was on February 15, 1951, and at all times since has been, en- titled to act as the exclusive representative of the employees in the aforesaid unit, for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By its refusal, on March 14, 1951, and at all times thereafter, to bargain collectively with the Union as the exclusive representative of its employees in a unit appropriate for collective bargaining, the Respondent engaged and has continued to engage in unfair labor practices within the meaning of Section S (a) (5) of the Act. 6. By its interference with the efforts of the Union to bargain collectively on behalf of the employees in the aforesaid appropriate unit, the Respondent engaged and has continued to engage in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] EDWARDS BROTHERS, INC. and AMALGAMATED LITIIOGRAI'ITERS OF AMERICA, CIO. Cage No. 7-CA-350. August 09, 1951 Decision and Order On April 9, 1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Murdock]. 95 NLRB No. 196. 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, except as noted below.2 The Board has considered the Intermediate Report, the Respond- •ent's exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommenda- .t ions, with the following additions and modifications : 3 1. In its exceptions to the Intermediate Report and supporting brief, and in a separate document filed on July 12, 1951, the Respond- ent renewed its motion made at the hearing that the Board dismiss the complaint on the grounds (a) that at the time of. the filing and investigation of the charge, upon which the complaint herein was based, the Congress of Industrial Organizations, the parent federation .of the charging Union, was not in compliance with the non-Communist affidavit provisions of Section 9 (h) of the Act, and (b) that no proof 2 We do not adopt the Trial Examiner's rulings in which he granted the Respondent's motions to strike testimony concerning certain speeches to employees made by Presi- dent J . W. Edwards and Foreman Hagopian, on the ground that these utterances were privileged under Section 8 (c) of the Act . The speech of President Edwards was made on November 7, 1949, shortly after the advent of the Union at the plant, to the employees of both shifts of the press and plate departments specially assembled for such purpose. The testimony in question described this speech as including disparaging .statements against unions generally ; an enumeration and discussion of ,various benefits received by the Respondent 's employees ; and a statement that the Respondent was rushing through a job-evaluation program which might result in higher employee earnings. Foreman Hagopian's statements were made on November 21, 1949, to a gathering of employees at Hagopian 's home. The testimony as to Hagopian described statements, inter elia, ( a) that "the Company would probably leave Ann Arbor If the Union ever got in there," ( b) that the job-evaluation program just completed by the Respondent, which -effected some increase in earnings for most of the employees , might contain mistakes, as the Respondent "had to hurry because the Union was trying to get into the shop," and (c) that "where other industrialists in other industries had become more prone to extend more benefits to the working man in the form of higher wages . . . Air . Edwards had not progressed in that matter until just recently. " The alleged statements in (a) and (b) were not stricken by the Trial Examiner , but those in (c), among others, were stricken. In the light of all of our findings herein , we do not believe the Trial Examiner 's rulings under discussion are prejudicial ; and we do not rely for our findings upon any of the stricken testimony . We are of the opinion, however , that regardless of whether the alleged statements in the stricken testimony are, in fact , privileged under Section 8 (c), which we need not now decide , such testimony is relevant and admissible ( a) as back- ground, ( b) to show motivation on the part of the Respondent , and (c ) to set forth the entire context of a speech ( by Hagopian ), part of which was admitted in evidence. s Certain minor clarifications and corrections of the Intermediate Report are noted as follows : ( 1) Thompson was not one of the employees alleged to have been interviewed by President Edwards at the State Street office on November ' 3 ; Thompson was interviewed on November 2 and November 8. (2) Insofar as the record shows , only Thompson was interviewed by Edwards on two occasions ; the other employees were interviewed once. (3) While we agree with the Trial Examiner that the discrepancy in the testimony of Warner, Perakis, and Space as to the alleged date of their interview with President Edwards is not significant , and does not impair their testimony or credibility respecting the substance of the interview ( which is amply corroborated in the record by witnesses for both the General Counsel and the Respondent ), we find that these interviews took place at some time after the termination of Van Nutter on November 2, and before the discharges on November 11, excluding of course the period of Edwards' absence from the plant. ( 4) With respect to the Van Nutter incident involving the alleged piling up of 30 plates on the production line, it appears that Van Nutters function on this occasion was that of "gumming" rather than "washing." EDWARDS ' BROTI1tRS, I INC. 1453 of eompliance'with Section 9 (f), (g), and (h) of the Act was adduced - in the record by the General Counsel, who thereby 'failed to. sustain his burden of proof in the case. The motion is denied as without merit. As to the first ground, the Board has held that the Act requires compliance at the time 'of the issuance of a' compldint,4 and we' have administratively determined that the filing requirements of :Section 9 (f), (g), and (h) of the Act were fully satisfied at the time the com- plaint'was issued in this case. With respect to the Respondent's sec- ond ground; the Act does not, as a condition to the exercise of its jurisdiction, require pleading and proof by the Board that the Union has complied with these requirements. 2. The Trial Examiner found that Alva Coffey, Edward Briegel, and George Hagopian, alleged supervisors, made certain statements and engaged in certain conduct, as fully detailed in'the Intermediate Report. Such conduct, if attributable to the Respondent, clearly es- tablishes, apart from other evidence in the case, violations of Section 8 (a) (1) of the Act, and is evidence of the Respondent's discrimina- tory motive in terminating the employment of the complainants herein. The Respondent contends, however, that it is not responsible for the statements of Coffey, Briegel, and Hagopian because (a) they were not supervisors, and (b) their statements and activities were not authorized by the Respondent. We find this contention -without merit. -Coffey was in sole charge of the pressroom on the night shift and had authority, among other things, to grant or refuse permission for men to take time off. By` the Respondent's own admission in its brief, Coffey had "certain supervisory duties;" though no*direct power to hire and discharge. Briegel was supervisor of the pressroom on both the day and the night shifts, and possessed the power, among other things, to recommend discharge for misconduct. One instance was established in the record in which he effectively recommended the transfer of an employee. Hagopian was foreman of the plate de- partment, and in this capacity possessed and exercised the power to give work orders, reprimand, recommend hire, discharge, and layoff. The Respondent does not dispute that Hagopian effectively recom- mended the "layoff" of Van Nutter. The record shows and we find that Coffey, Briegel, and Hagopian are supervisors as defined in the Act. We further find that under the circumstances present in this case, the Respondent is fully responsible for the unlawful statements 4 Dant & Ru8seil , Ltd., 95 NLRB . 252; Southern Fruit Distributors; Inc.; .80 'NLRB 1283 ; H. & H. Manufacturing Company , Inc., 87 NLRB 1573 . Cf. N. L. R. B. v. Highland Park Manufacturing Company, 71 S. Ct. 758. N. L. R. B. v. Greensboro Coca-Cola Co., 180 F . 2d 840 (C. A. 4) ; N. L. R. B. v. Red dlock ,Co., 187 F . 2d 76 (C. A. 5) ; N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6). 1454 DECISIONS OF NATIONAL • LABOR !RELATIONS BOARD and activities of its-supervisors, whether or not specifically authorized, particularly in the absence of evidence of any attempt on its part to halt or..disavow such conduct .6 3. Like the Trial Examiner, we find that the Respondent, by the activities -of President Edwardsand Supervisors Hagopian, Briegel, and Coffey, shortly following the Union's appearance at the plant, en- gaged in a course of conduct designed to coerce employees with re- spect to their self-organizational rights. Such conduct, specifically set forth in the Intermediate Report, included various threats-of discharge, of withdrawal of benefits (e. g., pension plan and profit sharing), of terminating the business, of removing the business out of town-promises and grants of benefit, and interrogation of -.em- ployees concerning union affiliation and activities. In addition to these specific instances of unlawful. conduct set forth in the Inter- mediate Report, the record reveals credible evidence of further state- ments and conduct of a substantially similar character on the part of the ' afore-mentioned supervisors, as .well as on : the part of Foreman Grant Lovelace of the layout department, as testified by employees Robert Naylor, Charles Gaff, Richard Rickleman, John Alexander, Marion Dunham, Marion. Jones, Mildred Lambarth, and Arlo Seitz. Also noteworthy is the uncontradicted testimony of the latter em- ployee that Foreman Hagopian, in 'a conversation with him 3 weeks before the hearing herein, stated that if, as a result of the "trial," the "six fellows get back and a union would get in, that he could almost guarantee that [the Respondent would] lose 40 percent of the busi- iless." We find that by all these acts and utterances the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 4. We agree with the Trial Examiner in-his finding that=,4the-Re- spondent violated Section 8 (a) (3) of the Act, as alleged in the complaint .7 Contrary to the Respondent's contention, it need not be shown that the Respondent selected for discrimination all of the known union ad- herents in the plant," or that the particular supervisors instrumental in the selection of the complainants for' termination were actually aware of their union activities. It is sufficient and there is ample evidence that supervisors and officials of the Respondent had actual knowledge of or suspected the union activities of the complainants. e International Association of Machinists v. N. L. if. B., 311 U. S. 72; In the case of Van Nutter, we rely additionally upon Warner's credited testimony of .President Edwards' admission to him that he laid off Van Nutter on account of the union talk heiiealr$ about in the plate room. _ See e. g., N. L. R. B. v. The Sandy Hill Iron - & Brass Company, 165 F. 2d 660 C. A. 2), enforcing 69 NLRB 355. EDWARDS BROTHERS, INC. 1455 On the basis of the " entire- record in the case, including evidence of -the timing of the discharges in question following shortly upon the commencement of the Union's organizational drive; the direct threats and admissions of reprisal'by the Respondent; the clear anti- union motivation of the Respondent; the Respondent's knowledge or, suspicion of the union activities of the complainants; and the absence of a plausible and convincing defense by the Respondent in view of these circumstances, we find, as did the Trial Examiner, that the em- ployment of all of the complainants herein was discriminatorily ter- minated. Order Upon the entire record in the case and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Edwards Brothers, Inc., Ann Arbor, Michigan, its officers, agents, successors, and assigns, :Shall:. 1. Cease and desist from: (a) Discouraging membership in Amalgamated Lithographers of Amexica,,.CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire or tenure -of employment, or any term or condition of employment. (b) Threatening its employees with discharge or economic reprisal unless they cease their union activities; promising or granting its em- ployees benefits upon condition that they cease their union activities; interrogating its-employee's concerning their union affiliation and ac- tivities; or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Lithogra- phers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement, as authorized in Section.8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : ( a) Offer to John Thompson, Maurice Warner, George Foster, Anthony Peratis, Sydney Moss, and Charles Van Nutter immediate. and. full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights. and r "privileges. (b) Make whole John Thompson, Maurice Warner, George Foster, Anthony Peratis, Sydney Moss, and Charles Van Nutter for any 1456 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD loss of pay each may have suffered by reason of the., Respondent's discrimination against him by payment to each of them of, vs ' um of money equal to the amount which he normally would have earned as wages , in the manner set forth in the section of the Intermediate: Report entitled "The Remedy." (c) Upon request, make available, to, the Board or its agents,. for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and. all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plants at Ann Arbor, Michigan, copies of the notice attached hereto, and marked "Appendix A." 9 Copies of said notice,, to be furnished by the Regional Director for the Seventh Region,. .shall, after being signed by the Respondent's representative, be posted by the Respondent, 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 shalt be taken by the Respondent to insure that said notices are not altered,. def aced, or covered by any other material. (e) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 discourage membership in any labor organization of our employees by discharging or refusing to reinstate any of our employees, or by discriminating in any other manner `in. regard to their hire or tenure of employment or any term or con- dition of employment. WE WILL NOT threaten our employees with discharge or eco- nomic reprisal because of their union activities; promise or grant. our employees benefits upon condition that they cease their union activities; interrogate our employees concerning their union affili- ation or activities; or in any other manner interfere with, restrain,_ or coerce our employees in the exercise of their right to self-or- ganization, to form, join, or assist any labor organization, to bar- In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order," on this notice, the words: "A Decree of the United States Court of Appeals Enforcing. EDWARDS BROTHERS, INC. 1457 gain 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 or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees-named below immediate and full reinstatement to their former or substantially equivalent posi tions, without prejudice to their seniority or other rights and privileges previously enjoyed', and make them whole for any loss of pay suffered as a result of the discrimination against them. John Thompson Anthony Perakis Maurice Warner Sydney Moss George Foster Charles Van Nutter All our employees are free to become or remain members of' any labor organization except to the extent that this right may be affected by an agreement. in conformity with Section. 8 (a) (3) of the Act. 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. Dated -------------------- EDWARDS BROTHERS, INC. By ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any, other material. Intermediate Report STATEMENT OF THE CASE Upon a charge filed on November 30, 1949, by Amalgamated Lithographers of America , CIO,. herein called the Union, the General Counsel of the National Labor Relations Board , herein called respectively the GeneraUCounsel and the Board , by the Regional Director for the Seventh Region ( Detroit, Michigan), 'issued his complaint dated October 9, 1950 , against Edwards Brothers, Inc., herein called Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the mean- ing of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. A copy of the charge, the complaint , acid a notice of hearing were duly served upon Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that : ( 1) From on or about October 28, 1949 , to the date of the complaint Respondent interrogated its employees concerning . their activity on behalf of the Union , informed them that it would discontinue its business before recog- nizing the Union or would move it to a location outside of Ann Arbor , Michigan, and would discontinue certain previously enjoyed benefits to its employees, and 1458 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD (2)' on or about November 2, 1949, discharged Charles Van Nutter and on or About November 11 discharged John Thompson, Maurice Warner, George Foster, Anthony Perakis, and Sydney Moss, and has subsequently failed and refused to reemploy them because they joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining, and other mutual aid and protection, thereby restraining, interfering with, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. Respondent filed an answer dated October 18, 1950, admitting certain allega- tions.of the complaint with respect to the nature of its business but denying that it had engaged in any unfair labor practices. Pursuant to notice, a 'hearing was held from November 14 to 22, 1950, at Ann Arbor, Michigan, before Horace A. Ruckel, the undersigned Triat Examiner duly appointed by the Chief Trial Examiner. The General Counsel, Respondent; and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing the Trial Examiner denied a motion of Respondent to dismiss the charge on the ground that the Union at the time the charge was filed had not complied with Section 9 (f), (g), and (h), the so-called anti- Communist provisions of the Act. At the conclusion of the hearing the parties were advised that they might argue orally before the Trial Examiner and file briefs with him by December 7, 1950.. The parties waived oral argument 'and no-briefs were filed. The Trial Examiner granted without objection. a motion by the General Counsel to amend the pleadings to conform to the proof in formal matters and granted him leave to take certain depositions as provided for in the Rules and Regulations. These depositions were subsequently taken and are herewith received in evidence. The Trial Examiner reserved his ruling on motion by Respondent to dismiss the complaint. This motion is disposed of by the recommendations hereinafter made. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is a Michigan corporation having its principal office and. place of business at Ann Arbor, Michigan,. where 'it is engaged in the business of -lithography and publishing . The principal materials and equipment used by Respondent are paper , ink, film, binding material , and presses . Materials and equipment purchased by Respondent during the year 1949 exceeded $100,000 in value, of which approximately. 40 percent represented shipments to its place of business at Ann Arbor from points outside the State of Michigan. During the same period sales by Respondent exceeded $1,000,000, of which in excess of 90 percent represented shipments by Respondent from its place of business at Ann Arbor to points outside the State of Michigan. Respondent admits that it is engaged in commerce within the meaning of the 'Act. . . II. THE LABOR ORGANIZATION INVOLVED Amalgamated Lithographers of America, affiliated with the Congress of In- dustrial Organizations, is a labor organization admitting employees .of Respond-, ent to membership. EDWARDS BROTHERS, INC . 1459 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Organization of Respondent's employees into the Union began during the latter part of September 1949 when John Thompson, a pressman whose subse- quent discharge is hereinafter discussed, called at the Detroit office. of, Local 9 of the Union. 'Upon his return to the plant Thompson ascertained that there was considerable sentiment for union organization, as a result of which he arranged for an organizational meeting to. be held at his house. This meeting was held on Saturday, October 29, and was attended by two international officers of the Union, and by Thompson and other employees of Respondent, including Charles Van Nutter, Anthony Perakis, and three other employees not named in the complaint. Arrangements were made for a representative of the Union to come to Ann Arbor in the near future to help organize the employees. The meeting at Thompson's home immediately came to. Respondent's attention. ,The, credible and uncontradicted testimony of George Foster is to the effect that on Monday,, October 31, Al Coffey,. assistant foreman in the pressroom,. called him away from his work and asked him what he had found out at the meeting at Thompson's home. Foster, who had not attended the meeting, told Coffey that he had not but Coffey told him not to lie about it and that he would find out that the "damned Union (wasn't) any good." George Thorpe, who voluntarily left Respondent's employ in July 1950 and .who attended the meeting, testified that on the first of the following week, while at work, Hagopian, foreman of the plate room, called him aside and asked how he felt about the Union, stating that Respondent knew who had been at the dinner at Thompson's house the previous Saturday, that if the Union got into the shop Respondent would prob- ably discontinue its profit-sharing and pension plans and would probably either go out of business or move out of town. Hagopian admitted while testifying that he inquired of Thorpe as to his interest in the Union, as he did generally of all the employees, and that he had prophesied that Respondent might discon- tinue its profit-sharing and pension plans, if the Union came in, but otherwise denied Thorpe's version of the conversation. The undersigned credits Thorpe's account and finds that Hagopian made in substance the statements and inquiries attributed to him. During the afternoon of November 2, Thompson, was called to the office. of President J. W. Edwards where, according to Thompson, Edwards stated that he knew there had been a union dinner, that there was no room in Respondent's plant for a union, and that if one came in Respondent would have to close its doors. Edwards stated that he knew that there was "a rotten apple" among the employees, that Respondent had to get rid of it, and that the evidence pointed to Thompson as being the ringleader. When Thompson denied this, Edwards replied : "I hope you are not lying to me, Johnnie." The conversation concluded by Edwards'. stating that he was going to "get to the bottom" of the union activity ;and that after he had talked to the.other employees in the, pressroom he-would again talk to Thompson. Referring, to Van Nutter, whose layoff on the same day is hereinafter discussed, Edwards, still according to Thompson, said that it was "just a coincidence" but Van Nutter had been at the dinner at Thompson's home. Foster testified that on November 8 he was called to Edwards' office where, after some conversation pertaining to Foster's work, Edwards asked him why he thought the employees needed a union, that there was a "rotten apple" in the plant. which he proposed to "get out," that he did not know whether he could get along with the Union, but that he did not want to "take a chance on it." 961974-52-vol. 95--93 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foster replied that he did not "necessarily think" that a union was needed, to- which Edwards replied that he hoped Foster was not lying and that'he could not have employees "with the wrong attitude" in the shop. Later the same day, according to. Foster, he encountered his foreman, Briegel, in the pressroom in the company of Moss, and he and Moss asked Briegel about Respondent's .profit-sharing plan. During the conversation, according to Foster, in. which respect he is corroborated by Moss, Briegel stated that if the "old man," referring to Edwards, heard anything more about the Union "things (would) start hap- pening." When Moss, asked what it was that would start happening, Briegel replied that Respondent would not have men with the "wrong attitude". in its employ and that the "old man'." would rather see the plant burn to the ground and have to sell the business "piece by piece" than to see a union in the plant. Briegel admitted talking to everyone he could in the pressroom about the Union, particularly as to the effect that it might have upon the profit-sharing and pension plans, and that he remembered talking to Moss and Foster. He denied , however,. stating to them that Edwards would rather see the plant burn to the ground or sell it piece by piece than see the Union come in. But he admitted stating that the employees might be without jobs if the Union came in, and that the Union could not keep Edwards from discharging them. The undersigned credits the testimony of Moss and Foster in this respect, and finds that Briegel made in substance the statements attributed to him. Warner testified that on November 3, about 6 p. in., he was called to Edwards' office where a conversation ensued similar to those related above. Edwards, according to Warner, asked him if he was at the union dinner at Thompson's, home and Warner told him that he was not because he was out of town €hat`day. In point of fact Warner was not at the dinner. Edwards told Warner, however, that he had been informed by others that he was present and asked him if he was sympathetic with the Union. Warner replied that he was not. Edwards, ac- cording to Warner, went. on to say that several employees had stated that Edwards would be doing them. a favor if he discharged those who were promoting a union . Warner told Edwards that the only thing he knew'about the Union was the talk that he had heard in the plate room. Edwards said that he also had heard about the talk in the plate room and that he had laid off a "man named Van" on account of it. The undersigned finds that Edwards referred to Van Nutter who had just been laid off that day. Edwards said 'that if the Union came into the plant he would have to close down because he could not get along with it and that the only reason that "Johnnie," referring to Thompson, was interested in the Union was that he thought he would get a steward's job. Edwards stated finally that be believed Warner's disclaimer of any particular. interest in the Union, but was sure that some of the other employees were lying when they similarly disclaimed interest. Perakis, a helper in the press department at the time he was hired and subse- quently a pressman , attended the dinner October 29, and testified that on the following Monday, October 31, Coffey asked him if he had attended the dinner and Perakis said that he had. Coffey then, according to Perakis, said that he was crazy for wanting a union in the shop and that he would do his best to stop it, even if he was called a "squealer" for doing so. Coffey was not called as a witness by Respondent and this testimony of Perakis stands uncontradicted in the record. On November 3, according to Perakis, who worked on the night shift, he was called to Edwards' office where he arrived between 7 and 7: 30 p. in. During big conversation with Edwards the latter told Perakis about Respondent's profit-, sharing plan and asked him, according to Perakis, referring to a union meeting, in Detroit, if he had learned there how much union lithographers were making. EDWARDS BROTHERS , INC . 1461 Perakis had not been to such a meeting in Detroit and so told Edwards; to which the latter said, "You're going to lie to me, too ." Edwards further stated , accord= ing to Perakis, that if the Union came into the plant he would shut it down, that he and the Union could never get along , and that the Union would have to strike for every wage increase , but that he , Edwards, would not have to worry because he would sell all the machinery and fixtures , indicating some in the room, and that "ringleader" Thompson had told him that the only reason he wanted a union in the plant was so that he could be a steward. Dallis Space, a pressman , testified that on November 3 he also was called to Edwards' office where Edwards asked him "what's all this about a union" and if he had been asked by anyone to join the Union ., Space replied, according to his testimony , that the employees were dissatisfied and that he himself had been approached for union membership . Edwards asked him what he thought would happen if the Union got in the shop and Space told him that he "probably won't be buying any $30 ,000 cameras ," referring to a camera which Edwards was supposed to have purchased , and Edwards responded : "That is right." Edwards then asked him if he had been to the dinner at Thompson 's house and Space replied in the negative . Edwards then asked ' Space what he, Edwards, should do about the Union , and when Space replied that he did not know Edwards said "If you have a boy, you take care of it , don't you:?" Space told Edwards that he believed that Edwards knew that Thompson was the man that Edwards was most interested in, whereupon Edwards referred to Thompson as an "agitator" and asked if he should discharge Thompson, to which Space replied that he did not know . Space further testified that on November 10 Edwards stopped at his press and asked him what he , Edwards, "should do about.. this whole thing," to which Space=replied that he did not know. Edwards admitted while testifying that he talked with all of these employees at least once , and in the case of most of them twice, concerning working conditions in the plant but on no occasion mentioned the Union . He denied all of the state- ments attributed to him by Thompson , Warner, Foster , Perakis, and Space and particularly denied asking them concerning , the meeting at Thompson 's house, stating that he had no knowledge of such a meeting , and denied that he talked to any of them on November 3, contending that his first conversation with these employees was the week prior to November 3 and again around the 10th of No- vember. Perakis , it will be recalled , testified that he was called to Edwards' office about 7 p. in. on November 3, and Thompson that he was called to Edwards' office shortly after 3: 30 p . in., which was Thompson 's quitting time. There is documentary evidence in the record which indicates that Edwards left the flying field at Willow Run, Michigan , at 5:35 p. in. on the afternoon of November 3, for New York, and Edwards testified that his 'time during that day was occupied with the preparations for his trip and that he did not talk to these employees on that day. ' The undersigned concludes that Edwards was on his way to New York at the time that Perakis testified he was interviewed by Edwards in his office, and it is improbable that Edwards could have talked to Thompson shortly after 3: 30 p. in. on November 3. The significance of the discrepancy in the date on November 3 is that it to some extent substantiates Edwards' testimony that his first conver- sation with these men was about Friday, October 28,.or possibly October 27, prior to the date of the dinner at Thompson 's home. Accepting as correct Edwards' testimony that he did not talk with these em- ployees on November 3, it does not follow that the only time he could have men- tioned the dinner at Thompson's home was at a meeting with them on October • .28 or 27. Mention of this could have been . made in the later conversations around November 10, which Edwards admits that he had with these employees , or even 1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on some intermediate date between October 31 and November 3 when Edwards left for New. York. In spite of the conflict in dates and ascribing to it all that Respondent may contend for it, the undersigned was impressed by the testimony of these employees as to what Edwards told them and he does not credit the denials of Edwards, who proved to be an unsatisfactory witness in several respects. His testimony was frequently of the "I couldn't" instead of the "I didn't" variety. He was other- wise frequently not responsive to questions put to him and in other contexts he was vague, uncertain, and contradictory. The following excerpts from his testimony are illustrative : Q. Did you say that you knew that a union in your shop and yourself just couldn't get along, that they would have to strike for everything, on wage increases? A. There was no question about a union, I didn't know anything about a union. Q. (By Mr. Conlin) Now, did you say that you'd get along, that you'd sell ,this and that machine-and this fixture, and point. to the stuff in your room and say, "I'll get along." A. I did not. I'm not positive, but I don't remember.. Q. was there anything about the Union at all? A. Nothing. Q. I will ask you whether or not you described or said these words to Mr. Perakis : "Your ringleader, John Thompson" Did you refer, to Thompson. in that manner? A. I don't remember it. Q. Can you say you did or didn't refer to Thompson as a ringleader? A. I may have. * * * * s * s Q. Did you state that from the information you had gathered that every- thing pointed to him as the ringleader?, A. Well, I might have. It certainly did point to him. Q. Were you referring to the Union? A. Why; the Union had nothing to do with it, we never talked about the Union, I didn't know anything about the Union. Q. (By Mr . Conlin ) I might ask you this, Mr . Edwards, When is the first knowledge that had, or information , when did it first come to you about an. attempt to organize the Union in your plant, do you remember the date? A. As far as an attempt to organize the Union in the plant , the first' time I knew about it was when we got a letter from the Union . ( Letter dated November 15, 1949.) Q. (By Mr . Conlin) Did you point him out, . Thompson , as a ringleader and that-you said you ' had information he was the ringleader? A. You mean at this time when I first talked to him? _Q. Yes. A. I had no information. Q. Well, did you say that to him? A. That I suspected him of being the ringleader? ,Q. Yes. EDWARDS BROTHERS, INC. 1463 A. Yes, I probably did, considering the past record. Q. And were you referring to his union activities, if any? - A. I didn't know anything about any union activities., s s s _ * s • + Q. (By Mr. Brooks) Don't you recall that you said in the past, your ex- perience has been that Mr. Thompson was at the bottom of that sort of thing when there was any difficulty? A. In my testimony, was I supposed to have told somebody that? I don't care whether you told somebody that or whether you knew that. Trial Examiner RUCKEL. Did you testify that? The WITNESS. Testify that I told somebody? Trial Examiner RIJCKEL. No, that you testified that you might have said that Thompson was a ringleader, at the bottom of this, because on previous occasions he had been at the bottom of whatever trouble or difficulty, came up. The WITNESS. No, I don't remember saying that to anybody. On the afternoon of November 8 or 10 Edwards again called Thompson and other of the dischargees to his office and renewed the general subject of the situation in the shop and union activity. During the conversation Edwards, ac- cording to the credited testimony of Thompson and others, reiterated Respond- ent's position that it would have to close its doors if the Union came into the plant. B. The discharges On November 11, Thompson, Warner, Foster, Perakis; and Moss were called to Edwards' office where Joe Rinaldi, Respondent's general manager, discharged them individually. Rinaldi told Thompson that he was "all through" because he was always late and unable to get along with other employees-that he "always pick (ed) fault with everything." Rinaldi told,-Foster that he was "a loafer-lazy," "no good for the organiza- tion," and-that he was "through." Perakis was told that his production.was poor, his quality no good, and that he was "just finished" and "there is the door." Moss was told that he was "no good for the company." Rinaldi was similarly succinct with Perakis. Rinaldi testified that for some time prior to November 11, 1949, Respondent's production had been unsatisfactory and that the bottleneck seemed to be in the production pressroom, and that he had discussed the situation frequently with Edwards with a view toward straightening it out. Things reached a crux in September, according to Rinaldi, when he discussed the matter with his fore- man and with the individual pressmen and considered letting some of the men go ; but it was still Respondent's busy period, which is in the summer when textbooks and other scholastic material are prepared for school use in the fall Rinaldi testified that on November 10 he talked to Edwards on the telephone and told him that in order to straighten out the situation in the plant he would have to fire the five individuals named in the complaint, and Edwards told him,to go ahead. According to Rinaldi he selected Foster for discharge because as a stock chaser one of his duties was to keep the paper for the presses in order and he did not do so, and that Foster had fallen into the habit of roaming from press to press talking with the other employees. Perakis, according to Rinaldi, "would never be a press man" according to his foreman, Briegel. although Rinaldi admitted that so far as he himself was concerned he had never rung press and aecolingly 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew little about it. With respect to Warner, Rinaldi testified that Briegel "always felt" that Warner "could have done better" and that the previous September he and his helper were lying on the floor on one occasion when they should have been on their feet attending to the press. During the same month Respondent had to rerun a• number of sheets on his press-around a hundred copies-part of a $25,000 order. There was no testimony as to what additional expense was incurred by Respondent in rerunning these pages, but the inference left by the record is that the 100 sheets were a very small part of the order. Rinaldi testified that Moss , who was Warner 's helper , was "not carrying out his duties as a helper ." Rinaldi said that in one instance of a report to him by an assistant foreman in the pressroom that on one occasion , unspecified as to date, Moss was away from his press when he should not have been. Rinaldi testified that Thompson, according to Briegel, was not producing what he could produce, that his record seemed good but that be "could do a lot better," and that he was frequently late for work. On. cross-examination Rinaldi testified that the work of these five men had not been entirely satisfactory since he became a general manager in September 1948. He was unable to say whether it was worse after September than previously. Significantly , Rinaldi testified that he did not discuss with Briegel or any other supervisor , other than Edwards himself , what people he should select for discharge. Briegel , called as a witness , similarly testified that he was not consulted by anyone about the discharges and that he did not know about them until after they had been effectuated . Briegel confirmed, however , Rinaldi's testimony of frequent consultations concerning low production in the pressroom and the characteristics of these particular employees. He testified , however, that all the employees in the pressroom were discussed , and not merely the five employees in question. Briegel further testified on cross-examination that although there was a little more talking among the employees beginning with the last of October than previously , he could not say that it was really unusual inasmuch as the employees were always talking to one another . Nor could Briegel single out any particular employees who talked more than others. He knew that much of this conversa- tion concerned the Union , and admitted that on occasion he talked with the employees, particularly Moss and Foster , concerning the Union. ''Briegel further testified that he did not report the growing discussion, such as it was, to his superiors because he thought it was his problem rather than theirs. He admitted that on occasion he joined in conversations and talked against the Union, stating at one time to Foster and Moss, among other things, that Respondent could not afford to pay them higher wages and that if the Union came in they might not have any job at all. The testimony of Coffey, recalled as witness for Respondent, corroborated the testimony of Rinaldi so far as the characteristics of the five employees were concerned. Coffey, like Briegel, stated that he was not consulted prior to the discharges by anyone , although he was assistant foreman of the pressroom, and did not know the individuals in question had been discharged until after the discharges had been made. Conclusions The record is replete with evidence that Respondent , and particularly Edwards himself, was bitterly opposed to the Union and resented its advent in the plant. Immediately after it came to his attention that the Union was beginning to or- ganize he repeatedly addressed the employees as individuals and in groups, EDWARDS BROTHERS , INC. 1465 inquired as to their interest in the Union, referred to its moving spirit as a "rotten apple" which had to be gotten rid of, and went so far on various occa- sions as to threaten to shut down the plant if the Union was successful in organizing the employees. It is not disputed that Respondent had knowledge of the union activities of the particular employees named in the complaint, the only conflict in the evidence being as to when concrete evidence of formal organ- ization came to its attention. By any construction of the testimony it came to the Respondent's attention prior to November 11, the date of the discharges. The reasons given by Edwards and Rinaldi for the discharge of the five men in question are wholly unconvincing. It is evident that there was considerable discussion among the employees while at work, and had been for some time, and that these five men, and others on previous. occasions, had been told to pay greater attention to their duties. There is no evidence in the record, however, that any one of them was ever warned that if he did not do better he would be discharged. The undersigned finds it significant that although Briegel was foreman of the pressroom and Coffey was the assistant foreman, Rinaldi did not. consult with either of them prior to discharging the individuals in question, or inform them that the discharges were pending. The complaints adduced by Rinaldi were vague and general in character. It does not appear that these five employees were any less satisfactory as employees after October 29, the date of the beginning of intensive efforts to organize the employees, than they had been prior thereto. The undersigned finds that Respondent, on November 11, 1949, discharged Thompson, Perakis, Moss, Foster, and Warner because of their activity on be- half of the Union and not for legitimate business considerations. In so doing, Respondent discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Charles Van Nutter Van Nutter first came to work for Respondent about November 1948, in the plate' room . His work was that of inking, coating, and cleaning plates. After several months in the plate room he was transferred at his request to the press- room, where he served as a helper. During the latter part of August or first -part-of September 1949, Briegel, his foreman, informed him that he was arrang- ing the work so that thereafter there would be only one helper to every two presses instead of, as formerly, a helper to each press, and that he was being transferred back to the plate room. Van Nutter worked in the plate room until November 2, 1949, when he was told by Hagopian that he was laid off. Van Nutter was one of those who attended the meeting at Thompson's home on the evening of October 29. On the morning of Wednesday, November 2, shortly after he commenced work, Hagopian passed Van Nutter and, according to the latter's testimony, asked him: "Why did you do it?" Van Nutter asked him what he meant, but got no response. A little later, Hagopian called Van Nutter aside, stated that he had learned about the dinner at Thompson's home the previous week end, that he knew who was at the dinner, and that although he was speaking only as an individual it was his opinion that Respondent would close the shop or move it to another town before it allowed the Union in the plant. In the afternoon Hagopian again approached Van Nutter and told him that he was going to have to let him off because it was a slack period. When Van Nutter was laid off, his place was taken by the washer in the plate depart- ment. 1466 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD Hagopian testified that the first he knew of the decision to lay someone off in the plate room was on the morning of November 2 when Rinaldi called him, and told him that he was overstaffed. According to Magopian, the choice of the employee to be laid off was left to him. Hagopian told Rinaldi that he would select Van Nutter because he no longer had any interest in his work. Hagopian testified that for some time previously Van Nutter had been slowing down the production line in the plate room and cited a complaint of a fellow employee of Van Nutter. Hagopian on this occasion, about a week before Van Nutter's discharge, found that there were about 30 plates in the tank which should have been washed by Van Nutter. Hagopian spoke to Van Nutter and told him that he would have to improve his work. After he was transferred back to the plate room after his assignment to the pressroom, Van Nutter's work consisted almost altogether of gumming plates, washing being done for the most part with the washer who took Van Nutter's place upon his layoff. - Van Nutter, however, did some washing. There was one operation between that of washing and that of gumming, that of pulling the plates, which was done by Bowerman, another employee. It does not appear from the record that the piling up of 30 plates on the production line for lack of washing was due to Van Nutter's own negligence. Thorpe was an employee in the plate department with less seniority with Respondent than Van Nutter. Van Nutter had apparently done the various jobs necessary to be performed in the plate department, and it does not appear that Thorpe was any more efficient than he. Hagopian was not questioned on the point. As has been found above, Thorpe also attended the dinner at Thompson's house and it may appear from this that Respondent had no stronger motive in laying off Van Nutter because of his union activity, than, it had in laying off Thorpe. It has been found above that Hagopian told Thorpe that Respondent knew who had been present at the dinner. But it does not appear that he asked Thorpe specifically if he had been present. Moreover, Hagopian's testimony was that when he asked Thorpe as to his interest in the Union, Thorpe•replied..that he was not interested particularly one-way or the other. Edwards, on the other hand, knew specifically that Van Nutter had been at the dinner and, as has been found, told Thompson so, stating that it was just a coincidence "that Van Nutter was laid off." The undersigned credits the testimony of Hagopian and Rinaldi that Novem- ber was a comparatively slack time in the plate department. Assuming without finding, however, that the decision to lay off one of the eight employees in the plate department was motivated by legitimate business considerations, the undersigned believes and finds that. Respondent discriminatorily selected Van Nutter. After Van Nutter's layoff (Hagopian testified that he did not expect at the time he laid Van Nutter off to reemploy him in the future), two other employees were hired in the plate department at work which Van Nutter was qualified to do. By laying off or discharging Van Nutter on November 2, 1949, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF TUE UNFAIR LABOR PRACTICES UPON COMMERCE - - ' The activities of Respondent set forth in. Section III, above, occurring in connection with its operations as 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. EDWARDS BROTHERS; INC. 1467 V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment of John Thompson, Maurice Warner, George Foster, Anthony Perakis, Sydney Moss, and Charles Van Nutter, it will be recommended that Respondent offer these employees immediate and full reinstatement to their former or substantially equivalent positions' without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to each of them a sum of money equal to the amount of wages he would have earned from November 2, 1949, the date of the discharge in the case of Van Nutter, and from, November 11, 1949, to the date of the discharge in the case of Thompson, Warner, Foster, Perakis, and Moss, ' to the date of the offer of.-reinstatement. Loss of pay will be computed on the basis of each sepa- rate calendar quarter or portion thereof during the period from November 2 and November 11, 1949, respectively, to the date of a proper offer of reinstate- ment. The quarterly periods, hereincalled quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he normally would have earned for each such quarter or portion thereof, his net earnings; if any, in other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for. any other quarter.' In accordance with the Woolworth decision it will be recommended that Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor, practices found reveal on the part of Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference. that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. _ Upon the basis of the foregoing findings of fact and the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Lithographers of America , affiliated with the Congress of Industrial Organizations , is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John Thompson, Maurice Warner, George Foster, Anthony Perakis, Sydney Moss, and Charles Van Nutter, thereby discouraging membership in a labor organization, I In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position" is interpreted to mean "former position wherever possible and if such position is no longer in exisetence , 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. z Crossett Lumber Company, 8 NLRB 440.- I F. W. Woolworth Company, 90 NLRB 289. 1468 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining,. and coercing its employees in the exercise of the rights guaranteeed in Section 7 of the Act, Respondent has engaged-in and is. engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices af- fecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] WARREN PETROLEUM CORPORATION, PETITIONER and OIL WORKERS INTERNATIONAL UNION, CIO WARREN PETROLEUM CORPORATION and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONER, Ci ase4 Nos . 16-RM-43 and 16-RC-779. August 29,1951 Decision and Direction of Election Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held. before Evert P. Rhea, hearing. officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor.- Relations Act, the Board has delegated its powers in connection with these cases to a three-member, panel, [Members Houston, Reynolds, and Murdock]. Upon the entire record in. these cases the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. . 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9" (c) (1) and Section 2 (6) and (7) of the Act. 4. Both the Employer and the Union in their respective petitions allege an appropriate unit consisting of all employees employed at the Employer's gasoline plant near Hawkins, Texas, excluding the plant superintendent and the chief engineer. The sole dispute be-, tween them relates to the status of three individuals whom the Union would exclude from the appropriate unit as supervisors, and whom the Employer would include. The plant in question is engaged in the processing and manufac- turing of natural gasoline and other gasoline products. The essential operations are divided between the "field" and the plant proper. The functions in the field primarily involve the arrangement and regu]a- 95 NLRB No. 197. 1 Copy with citationCopy as parenthetical citation