Filtors, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1967

163 N.L.R.B. 1046 (N.L.R.B. 1967)

1046 DECISIONS OF NATIONAL
engaged in commerce or an industry affecting
commerce, where an object thereof is to force or
require Aluminum Company of America to assign the
work of unloading its cargo vessels at its dock at
Vancouver , Washington , to employees who are
members of International Longshoremen's and
Warehousemen 's Union and Local 4, International
Longshoremen 's and Warehousemen ' s Union, rather
than to employees of the Company who are members
of or represented by the Aluminum Trades Council of
Vancouver , Washington , affiliated with the
Aluminum Workers International Union and Local
300, Aluminum Workers International Union.
INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
(Labor Organization)
Dated By
(Representative) (Title)
LOCAL 4, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington,
Telephone 583-4583.
Filtots , Inc. and Local 411, National
Organization of Industrial Trade Unions.
Case 29-GA-528.
April 13,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On December 22,1966, Trial Examiner Thomas F.
Maher issued his Decision 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 attached Trial Examiner's Decision. He
i These findings and conclusions are based, in part, upon
credibility determinations of the Trial Examiner, to which the
Respondent has excepted After a careful review of the record, we
conclude that the Trial Examiner's credibility findings are not
contrary to the clear preponderance of all the relevant evidence.
Accordingly, we find no basis for disturbing those findings
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d
362 (C.A. 3)
163 NLRB No. 143
LABOR RELATIONS BOARD
also found that the Respondent had not engaged in
other unfair labor practices and recommended that
the complaint be dismissed as to them. Thereafter,
the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the
case, including the exceptions and briefs, and
hereby adopts the Trial Examiner's findings,
conclusions,' and recommendations, except as
modified below.2
THE REMEDY
Having found that by transferring and thereafter
discharging Robert Conklin, Respondent
discriminated against him in violation of Section
8(a)(3) of the Act, thereby interfering with,
restraining, and coercing employees in violation of
Section 8(a)(1) of the Act, we shall order that it cease
and desist from this conduct. We shall also order
that Robert Conklin be reinstated to the position
which he held prior to his unlawful transfer on
January 17, 1966, or to a substantially equivalent
position, without prejudice to his seniority or any
other rights and privileges, and that he be made
whole for any loss of earnings suffered by him
because of Respondent's discrimination against him,
with backpay and interest thereon computed in the
customary manner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Filtors, Inc.,
East Northport, Long Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Delete the word "Discharging" from the
beginning of paragraph 1(a) of the Recommended
2 The General Counsel excepts to the Trial Examiner's failure
to accord proper weight to his own conclusion that Robert Conklin
was transferred to an untenable situation for the purpose of being
fired As it is clear that the transfer was discriminatory, we find
merit in these exceptions and have modified the Trial Examiner's
Remedy, Recommended Order, and notice accordingly.
3 F. W. Woolworth Company, 90 NLRB 289, Isis Plumbing &
Heating Co., 138 NLRB 716
FILTORS, INC. 1047
Order and substitute the words "Transferring,
discharging."
2. Delete paragraph 2(a) of the Recommended
Order and substitute the following:
"(a) Offer immediate and full reinstatement to
Robert Conklin to the position which he held prior to
his unlawful transfer on January 17, 1966, or to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and
make him whole in the manner set forth in the
section of the Board's Decision I entitled `The
Remedy'."
3. Add the word "transfer," after "WE WILL NOT"
in the first full paragraph of the notice.
4. Delete the second full paragraph of the notice
and substitute the following:
WE WILL offer immediate and full
reinstatement to Robert Conklin to the position
which he held prior to his unlawful transfer on
January 17, 1966, or to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and WE
WILL make him whole for any loss of pay he may
have suffered in the manner set forth in the
section of the Board's Decision entitled "The
Remedy."
5. Add the following immediately below the
signature line in the notice:
Note: We will notify the above-named
employee if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance
with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed
forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner : Upon a charge filed
on February 21, 1966 , by Lccal 411, National Organization
of Industrial Trade Unions, the Regional Director for
Region 29 of the National Labor Relations Board , herein
called the Board , issued a complaint on May 25, 1966,
against Filtors , Inc., Respondent herein , alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (29 U.S.C., Sec. 151, et seq.),
herein called the Act. In its duly filed answer , Respondent,
while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Thereafter Respondent filed a Motion for Bill of
Particulars . Over the opposition of the General Counsel,
Trial Examiner Sidney Lindner, by order of July 15, 1966,
dismissed in part and granted in part Respondent's
motion. Thereafter on July 18. 1966 , pursuant to this order,
counsel for the General Counsel filed a Bill of Particulars.
Pursuant to notice a hearing was held before me in
Brooklyn, New York, where the parties were represented
by counsel and afforded full opportunity to be heard, to
present oral argument, and to file briefs with me. Briefs
were filed by the parties on October 14, 1966.
Upon consideration of the entire record, including the
briefs, and upon my observation of the witnesses as each
appeared before me at the hearing, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a subsidiary of Deutsch Company, a
California corporation. It is engaged in the manufacture,
sale, and distribution of subminiature and micro-
miniature electronic relays for aircraft and guided
missile systems at East Northport, Long Island, New
York, where it maintains its principal office and place of
business. In the course and conduct of its operations
Respondent annually ships from its East Northport plant
finished products valued in excess of $50,000 directly to
points located outside the State of New York, and during
the same annual period it manufactured, sold, and
distributed products valued in excess of $50,000 which had
a substantial impact upon national defense. Upon the
foregoing facts adduced from undisputed evidence at the
hearing I conclude and find that Respondent is an
employer within the meaning of Section 2(6) and (7) of the
Act
II. THE LABOR ORGANIZATION INVOLVED
Local 411, National Organization of Industrial Trade
Unions, sought, by the solicitation of Respondent's
employees at its plant gates, to represent them for the
purpose of collective bargaining with the Respondent, and
to this end secured written authorizations from employee
Robert Conklin and others.
It is Respondent's contention that the allegedly
unsavory character of several of the organization's
officers, more fully described in photocopies of newspaper
reports distributed among the employees, was such as to
preclude it from achieving representative status. In
further support of its contention Respondent sought
unsuccessfully to introduce into the record additional
evidence relating to indictments returned against these
officers, and of news reports of their irregular activities in
labor relations affairs of the community. It is the Board's
settled policy that, notwithstanding evidence of improper
or corrupt practice in the administration of a union's
affairs, Congress did not authorize the Board to withhold
its processes from such an organization.' In view of this
position Respondent's contentions must be rejected.
Quite apart from a stipulation among the parties that
Local 411 is a labor organization within the meaning of the
Act, it has been established by credible evidence that
Local 411 sought to represent employees of the Employer.
It has thereby satisfied the criteria set forth in Section 2(5)
of the Act. Thus it can be said that Local 411 is an
organization in which employees participate, as did
employee Conklin herein, and which exists for the
purpose, as disclosed by its organizing efforts, of dealing
with employers in matters relating to their employees'
' Alto Plastics Manufacturing Corporation, 136 NLRB 850, Warehousemen and Helpers of America (Strauss Paper Co., Inc.),
Edward Fields, Incorporated, 141 NLRB 1182 ; Local 456, 149 NLRB 49
International Brotherhood of Teamsters, Chauffeurs,
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment interests. I accordingly conclude and find
that Local 411 is a labor organization within the meaning
of the Act.
III. THE ISSUES
Whether employee Conklin was transferred or
promoted to a job assignment in which he could not
adequately perform his duties for the purpose of
discriminating against him.
Whether Respondent gave the employees the
impression that it was keeping their union meetings and
activities under surveillance.
Whether Respondent's president, Louis DeLalio,
warned or directed Respondent's employees to refrain
from joining or to foresake Local 411,, or otherwise refrain
from assisting or supporting it.
IV. THE UNFAIR LABOR PRACTICES
A. Background of Union Activity
Respondent's plant was the object of a number of
separate union campaigns during 1965. In each case the
Union involved was unsuccessful in its organizing effoits
and left the scene. It is clear from the testimony of'
Respondent's officials' that it was aware of these efforts
and publicly expressed satisfaction that to date each
union, in its turn, had moved on. The last of these unions
to appear on the scene was Local 411 which, in late
November 1965, began to pass out campaign literature at
the plant gate." Respondent's officials were prompt to
counter, preparing a letter to Respondent's employees
stating its opposition to Local 411. On January 18 and
thereafter, it distributed this letter, together with reprints
of newspaper articles dealing with the alleged extralegal
activities of Local 411's president, Lasky. The record is
not entirely clear that the materials were handed out
personally to the employees, but it was established by
Personnel Manager Motherwell's testimony that after
preparing these materials and clearing them with
President DeLalio, he and his assistants, Allgiere, made
them available at tables placed at both the side and front
employee entrances.
B. President DeI alio's Speech
Several days after Respondent circulated its opposition
literature , on the afternoon of January 21, it called a
meeting of employees in the plant cafeteria Personnel
Manager Motherwell, who was responsible for the physical
arrangements of the meeting, was present only
sporadically, but most of the other management officials
were present for the full session as President DeLalio
addressed the group, speaking from notes for
approximdtely 20 or 25 minutes.4
With several exceptions to be noted hereafter there
appears to be general agreement as to the substance of the
speech, the emphasis, however, differs with the telling.
Thus President DeLalio described the speech as a
consequence of production instability that had resulted in
some recent layoffs of production employees. It is not
disputed that DeLalio devoted a considerable part of his
speech to this subject, explaining in detail the Company's
problems to the group, outlining its plans for future
developments and improvements, and seeking their
cooperation in such matters as absenteeism, efficiency,
and extended job training. Based on the correction of such
considerations, DeLalio assured the assembled
employees, the Company's profit situation would be
improved and it would redound to their ultimate benefit,
particularly as to the future of the bonus, an item which
had previously been curtailed because of the business
slump.
As DeLalio warmed to his subject, however, he enlarged
on it to include the presence of the Union. This he did by
first complimenting the employees upon their rejection of
the several unions that had recently sought to organize
them From that point he proceeded to make specific
reference to Local 411 whose representatives he and other
company officials had admittedly observed soliciting at the
plant gates. He said that the very thought of this Union
trying to get in made him mad: that its officials were
nothing but a "bunch of crooks who sought the
employees' dues payments to support their racetrack and
other gambling activities : that he hoped that the
employees, as they had before, would reject this new
Union, Local 411, and that they would "quietly fold their
tents" and move on. He went on to say that the Company
would, in any event , fight Local 411 in its efforts to
organize the employees, that they were now only using
their "little guns" to combat it, but if necessary would get
out their legal "big guns" to do the job '
There is conflicting evidence in the record concerning a
statement attributed to DeLalio to the effect that if the
Union got in they would be forced to close or move the
plant. Because of the confusion of this evidence, I reject it
Thus employee Robert Ibbottson , in response to a leading
question following the exhaustion of his recollection on the
speech, quoted DeLalio as stating that "if the Union had
gotten in, that operating cost would go up and the plant
would be forced to move elsewhere." And employee
Morris Burton quoted DeLalio at several points in his
testimony that if the Union got in the Company would have
to "pack up and move." Similarly employee Robert
Conklin testified that DeLalio had stated that "if the Union
got in, financial conditions, they would have to close the
plant "' On the other hand, in addition to DeLalio's denial
of having made the statement, Personnel Director
Motherwell's denial that it was made, a number of
employees called by the General Counsel corroborated
these denials. Specifically, employees Eddie Lewis and
Frances Daniel were asked if anything was said in
DeLalio's speech concerning the closing or moving of the
plant if the Union got in. Each stated that nothing was said
by DeLalio in his speech concerning the moving or closing
of the plant. In view of the confused condition of this
evidence, and particularly as it involves contradictory
testimony of General Counsel's own witnesses , I am not
2 Personnel Manager Motherwell and Presiden t DeLalio
3 The undisputed testimony of Union Representative Hustic
" This speech is not to be confused with a subsequent one
referred to in the record, which appears to have dealt exclusively
with company problems and included the introduction of a
company sales executive to the assembled employees
51 do not credit DeLalio ' s denial that he used the word
"crooks" in his speech
8 Certain of the witnesses quoted DeLabo as stating his plan to
use their "big artillery "
The record further discloses that in referring to this speech in
an affidavit which he supplied to an agent of the Board prior to the
hearing, Conklin made no mention of DeLaho's statement with
respect to the closing or moving of the plant
FILTORS, INC
disposed to make any finding with respect to DeLalio's
alleged threat to close or move the plant.
C. The Union's Meetings and Activity
It is alleged in the complaint that Respondent's
president, DeLalio, and other representatives, gave
employees the impression that the Union's meetings and
its activities were being kept under surveillance. The
evidence is clear that DeLalio did know of Local 41 I's
organizing efforts, of the presence of its organizers, usually
Hustic, at the gate, and, in fact, of friendship between
Representative Hustic and one of the Company's
employees, Conklin, whom DeLalio encountered together
at a local restaurant None of these facts demonstrate that
the Company was spying or creating the impression that it
was but rather that it had knowledge of the Union's
presence, a necessary element in establishing, in the first
place, a motive of opposition to the Union I accordingly
reject any suggestion that these facts known to
Respondent were related in any way to actual or intended
or implied surveillance.
There is. however, one other incident which bears
comment. Several employees testified that at a union
meeting attended by employees on January 18, 1966, one
Joan Linz attended, arose to express opposition to
Local 411, and solicited the names of employees in
attendance No where was Linz identified as anything but
a rank-and-file employee: specifically, an inspector. Nor is
there any evidence that she represented or claimed to
represent management in this or any other connection, or
that management knew of, little less authorized, her
presence at the meeting Except for employee Joan Linz'
vocal opposition to the Union and her collection of the
names of some of her fellow employees at the union
meeting there is no other evidence of an effort by
Respondent to create an impression of surveillance.
D. The Rise and Fall of Robert Conklin
Until one evening in early January 1966 Robert Conklin
was but another of Respondent's employees with little if
anything to distinguish him from his fellows except his
good work record, first as a machine shop employee and
later as an inspector, and a 10-year term of
employment-one of the longest in the Company But with
the chance encounter of President DeLalio with Conklin
as he was dining with Union Representative Hustic in a
local restaurant, a chain of events commenced which did
not end until Conklin had been terminated from
Respondent's employ, thus initiating the subject matter of
this proceeding.
Conklin was first hired by the Company in 1956, worked
in the machine shop, and has since progressed through
various jobs until he had achieved the classification of
reliability inspector in the quality assurance department of
the plant, a department charged with the maintenance of
proper standards in the production of microrelays and
other electronic devices." By December 1966 Conklin was
earning an hourly wage rate of $3. His record of
performance was shown to have been very good and his
immediate superior, Everett E. Taylor, credibly testified
that in the 4 years during which he had had opportunity to
observe and direct Conklin he was "a good man," and
again he testified, "a good worker." Personnel records
1049
introduced at the hearing substantiate Taylor's estimate of
Conklin's ability. Thus, from 1956 he moved from job to
job at continually increasing hourly wage rates, beginning -
at $1.50 and including at least two merit increases in the
past 3 years. During all of his employment the record
shows periodic ratings of "Vei-y Good," and for the most
recent periods "Excellent." It is significant , however, that
after his transfer on February 19, 1966, the critical
incident in this matter, no ratings whatever appear in
Conklin's personnel record.
When Local 411 representatives appeared at the gates
in late November, Conklin was among those accepting
literature and a membership card. On December 6 he
signed his card and mailed it to the Union's headquarters.
Thereafter Representative Hustic, noting from Conklin's
application that he had been with the Company for over 9
years, decided that this would be a good man to enlist into
the organizing campaign and wrote Conklin asking him to
get in touch with the Union. This Conklin did by
telephoning Hustic and as a result a meeting between the
two was arranged for before Christmas at Hemi's
Restaurant in nearby Comack, Long Island. Due to auto
difficulties Conklin was able to meet only briefly at this
time with Hustic outside the restaurant. Another meeting
was scheduled for the first week in January. At the
appointed time the two met in the restaurant and were
assigned a table first in a row directly in line with the
entrance and about 15 feet from it. As Hustic and Conklin
were engaged in conversation at the table, Respondent's
president, DeLalio, came into the restaurant in the
company of Charles Nunn, an engineer with the Company.
DeLalio testified that he recognized Conklin on this
occasion and spoke to him, and Conklin returned the
greeting . DeLalio further testified that although he was
aware at the time that Conklin was with another person he
did not know it to be Local 411's Hustic. For reasons
which will become apparent hereafter I do not accept
DeLalio's insistence that he did not recognize Conklin's
companion to be the union representative.
Local 411's representatives, Hustic and another, had
been at Respondent' s plant gates morning and night, at
least two or three times a week, from late November
through March 1966. Respondent's officials were quite
conscious of this activity, Personnel Manager Motherwell
testifying that as soon as the organizers appeared in front
of the plant he knew of it, and he particularly recognized
Hustic because of his distinguishing portly appearance. In
fact Motherwell, according to Hustic, frequently requested
him to move his circular-passing activities further away
from the plant entranceway.
For his part President DeLalio, as early as before
Christmas 1965, was also familiar with Local 411's
presence at the gate. And he admitted, in fact, to having an
investigation made of the organization after Motherwell
had first told him what union it was. DeLalio similarly
conceded that at least occasionally upon his arrival and
departure from the plant he had the opportunity to witness
the activities of the union representatives there, including,
presumably, Representative Hustic whom Motherwell had
frequently observed there.
Finally, it is to be noted that President DeLalio's
interests in the activities of 411 were not as fleeting as his
testimony would suggest. Quite apart from the
investigation he directed, by January 21 he considered it a
8 A relay is an electrically activated switch
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter of such considerable moment that in a meeting with
the employees he asked them to reject the Union for the
"crooks" he believed them to be (supra).
Upon all of the foregoing it is difficult to believe that
when President DeLalio saw Hustic in the company of
Conklin in early January he did not recognize him as the
union representative who had engaged in organizing
activities at Respondent's gates, which campaign
Respondent's officials were already aware of and which
had inspired DeLalio, himself, to initiate an investigation. I
had occasion to observe President DeLalio as he testified
on many subjects related to this proceeding. Suffice it to
say he did not impress me as a company official who was
so obtuse that he would not have recognized Hustic in the
restaurant on the occasion mentioned, or that he would not
have assessed the significance of Hustic's meetings with
employee Conklin. I accordingly reject DeLalio's denial
that he did not recognize Hustic at this time and his
further testimony that he did not know that Hustic was
connected with Local 411 until sometime late in January.
Within a week or 10 days following the restaurant
meeting, on January 17, 1966, Taylor, the supervisor in the
quality assurance department, summoned Conklin and
informed him he was being transferred to the
specifications department whose function, according to
Pat Mullahy, the department manager, is to review
customers' specifications to assure that the product
conforms to them, and to interpret these specifications for
the purpose of making manufacturing instructions for the
product on order. This involves a review of blueprints,
drawings, and the specifications themselves. In his
testimony Taylor, Conklin's superior, concedes that
Conklin had not requested this transfer nor had he been
consulted in advance concerning it, nor did Taylor have
any knowledge of Conklin's ability to read' blueprints. He
just "had always assumed that he had." What Conklin had
done under Taylor's supervision was relay inspection
work; and this, said Taylor, he did well. Conklin, for his
part, stated his willingness to accept the transfer, and in
the company of his new supervisor, Pat Mullahy, went to
the specifications department area where he was put to
work at a table provided for him. The other employees in
the department, it appears, performed their duties at
desks. Conklin's pay for this new assignment remained the
same, $3 per hour, albeit it was computed on a 40-hour
weekly basis, as salary, rather than on the previously
computed hourly wage basis.
The working personnel in the specification department
to which Conklin was assigned all appeared to have been
on a higher educational level than Conklin himself. Thus,
for example, one Grubner held a degree in mathematics,
McAdams held a college degree, and Robotti had at least 2
years of study at the nearby Farmingdale State College.
Conklin, on the other hand, had less than a full nigh school
course of study.
Conklin was not at his new job more than a few days
before he began to experience difficulties with his newly
assigned tasks, such as reviewing specification analyses
and reading blueprints. To be sure, Conklin was expected
to do all of these jobs from the time of his assignment,
according to Mullahy, but at the outset made the mistakes
usually expected of a newcomer. For the first couple of
weeks he would make the mistakes and Mullahy would
have him correct them. But as they went into the third
week he began to make even more errors. At this point
Mullahy consulted with his own superior, Krieger, and
with Personnel Manager Motherwell, and the latter
suggested that Conklin be given another chance. During
the week that followed the mistakes continued and
Conklin gave the impression, according to Mullahy, that
he just did not care. Whereupon Mullahy, with the
approval of Krieger, terminated Conklin on February 18,
1966. Significantly, whereas Conklin had admittedly been
rated "Excellent" in the job from which he had been
previously transferred, nevertheless the company
personnel manager knew of no report on Conklin's
performance in the job from which he was terminated,
Mullahy, never having been required to submit such a
report.
E. Circumstances Relating to Conklin's Assignment and
Termination
Quite apart from the chionological sequence of
Conklin's misfortunes, certain factors and circumstances
relating to the work and to his qualifications are worthy of
comment at this point. Because of their general relevance
no attempt will be made to present them in any order
suggestive of their place in chronology or their
comparative significance.
1. It is contended that Conklin's new assignment
constituted a promotion and involved increased
emoluments. A review of the evidence supplied by the
testimony of Respondent's officials and the documents
procured by them makes if. clear and specific that Conklin
was "transferred," and not "promoted." This brings into
question the interpretation of the policy whereby
Respondent never returned a promoted employee to his
previous job when he failed to make good-the alleged
reason for terminating Conklin on February 18, and for
refusing to rehire him thereafter on July 1, 1966, when he
reapplied for work and was again refused. As Conklin was
never promoted clearly the policy was not mandatory in
this case. It thus becomes questionable whether
Respondent's termination of Conklin and subsequent
failure to rehire him was, in fact, an implementation of this
policy.
2. That Conklin's new assignment had certain
advantages over the previous ones can not be gainsaid.
Thus he worked in the office and not in the production
area. He was free of the restraining work conditions in the
so-called blue room where he had last previously
worked-a department where working conditions were
restrictive as to clothing atmosphere, and confinement
because of the precise and critical nature of the operations
being performed. Similarly, although as a so-called
"exempt employee" for pay purposes"' he received a
weekly salary. It was, it essence, the same $3-per-hour
rate, and it is admitted that for production employees
there were jobs, on an hourly basis, that paid higher than
this rate. Hence he was not moved from a "dead end" to
new vistas of pay.
Nor is it significant that in his new assignment there was
one increased benefit, a doubled insurance benefit. The
credited evidence discloses that based upon the insurance
company's computations, generally, insurance benefits to
9 An "exempt employee" is a classification established under salaried employees are entitled to overtime benefits from which
the Wage and Hour Law whereby, under certain conditions, they would normally be excluded
FILTORS, INC. 1051
the white collar employees are greater than those to
production workers. This, it was made clear, had nothing
to do with compensation but was an actuarial result
reached by the insurance carrier and hence could not be
viewed as an increased benefit in the usual sense. Except
for this insurance differential and a certain amount of
laxity with regard to sick leave and lateness nothing else
that might be considered an added benefit could be
suggested. 10
3. It appears from the testimony of all company
management witnesses that advancement into sales and
management positions was a possible step from the
specification department.
4. It appears from all the testimony that at the time
Conklin was transferred that Respondent was in a
production crisis and a number of production workers
were being laid off. Respondent 's officials' testimony
suggests that Conklin's transfer was part of this whole
economic upheavel . In this regard it is to be noted,
however, that Conklin was one of the most senior
production workers in the plant and had been receiving
merit increases and ratings of "Excellent" in his
inspection work for the past 2 years. I therefore reject the
unspoken inference that Conklin' s job was in jeopardy for
such economic reasons, particularly as there was no
showing of anticipated layoffs in the blue room where he
was last assigned.
5. As previously noted , Respondent 's records establish
that Conklin was " transferred" not "promoted ." In his
testimony concerning the differences between the two,
whether one is or is not a reclassification , or an upgrading,
Personnel Manager Motherwell's description of the
terminology and the application of the so-called policy
bordered on an incoherence that could only be compared
with obtuse technical or professional conversation. All
that can be distilled from a reading of Motherwell's
analysis is that Conklin' s change from one job to another
could be cataloged as anything management chose to
adopt. Here, for purposes that I will describe later, it chose
to consider Conklin to be "promoted"; and as such, when
found unqualified , to be "unreassignable ," all of this in the
face of documentary evidence that the initial assignment
was noted as a "transfer " and not "promotion."
F. Conclusions as to Conklin 's Assignment and Discharge
From a review of the foregoing findings and of the entire
record, it is obvious that Robert Conklin was assigned to
the specifications department only as a first step to his
dismissal . Conklin was present for the 4 days of hearing
and appeared before me as a witness . Consequently I have
had ample opportunity to observe him. It is easy to see in
him a person who would be imminently successful in the
routine performance of the routine duties of an inspector,
even as he had succeeded previously in the various
operations of the machine shop. But in this specific I
reject the testimony of his superior , Taylor, that these
talents were transferable to his i.ewly assigned job in
specifications analysis. The confusion which Conklin
brought to the witness stand , in his hesitant answers and
in his failure to understand some of the questions
propounded to him, bespeaks not only a basic inability to
do the tasks assigned to him , all of a more technical nature
than he had previously experienced , but more
significantly , there was suggested in his general demeanor
an inability to extricate himself from the untenable
position into which he had let himself be placed by
accepting the new assignment . To repeat , this profile of
Conklin's personality was obvious to me as the trier of the
facts. I have no doubt whatever that it was equally as
obvious to those who had supervised him for the past 10
years. Upon the facts herein and upon my observation of
the witnesses , I would conclude and find that Conklin was
duped into accepting a job for which he was not qualified.
However an employee may have come into a job it is
well established , of course , that quite apart from an
employer's obligations in charity and basic justice he can
discharge him for any reason except those proscribed by
the Act. I have no difficulty in finding and concluding that
this was Respondent 's basis for ridding itself of Conklin.
There is no question of Respondent ' s distaste for
Local 411. President DeLalio's own version of his speech,
the Company' s distribution of information concerning the
unsavory character of Local 411 's officials, all of these
establish a positive , admitted antipathy towards Local 411
in its goal to organize Respondent 's employees. Against
such a backdrop DeLaho's encounter with employee
Conklin in the company of Local 411's organizer, Hustic,
at the Heini Restaurant , and Conklin 's subsequent fate
have a most significant connection. Upon a consideration
of all the facts surrounding these two elements I have no
alternative but to find and conclude that Conklin was
transferred or "promoted " into an untenable situation for
the purpose of being fired ," and for no other reasons.
Under all these circumstances I conclude and find that
Respondent has thereby discriminated against Robert
Conklin in violation of Section 8(a)(3) of the Act, thus
engaging in interference , restraint, and coercion of
Respondent's employees in violation of Section 8(a)(1).
G. Conclusions as to Other Interference, Restraint, and
Coercion
Two other significant incidents emerge from a review of
the findings herein : the nature of President DeLalio's
speech , and the presence of one Joan Linz at a union
meeting.
With respect to the speech it is obvious that DeLalio
opposed this Union as he had the others . Thus he
commented on the character of its officials with facts that
were not rebutted and assured the employees he would be
glad to see Local 411 depart the scene . Neither of these
statements appear to infringe upon the employees'
guaranteed rights. In the first place I am not referred to
any authority that would grant sanctuary to union or
company officials from fair Comment 12 upon their reported
unsavory character . Nor is Respondent precluded from
advising its employees that it will "fight " the Union. It is
only when it does so , or announces that it will do so, in a
manner proscribed by the Act, by threats and promises of
benefits , that such conduct becomes violative . Neither
statement had such a portent. On the other hand , DeLalio
was also reported to have threatened to close or move the
plant if Local 411 got in . As previously noted (supra,
section IV , B), evidence upon this alleged threat ranges
from outright denial , through faint recollection , to positive
10 The testimony of Personnel Manager Motherwell
" Cf Betser Aviation Corporation , 135 NLRB 450 , Bernhard
Conrad Embroidery Company, 156 NLRB 1056
12 Cf Monroe Auto Equipment Company, 159 NLRB 613
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recall, by witnesses called by both parties. In such a stat
of the record, and finding it to be the only statement of
doubtful propriety I am not disposed to find DeLalio's
speech, or any part of it, to be interference, restraint, and
coercion. 13
As to Joan Linz' presence at the union meeting
constituting the suggestion of surveillance, one item is
missing. Who is Joan Linz? Nowhere in the record is theie
any evidence that she represented Respondent or claimed
to do so, or that Respondent had so designated her. All we
know is that she was an inspector, as Robert Conklin was
an inspector, who vocalized her opposition to the Union
and who had an unexplained interest in recording the
names of those who attended the union meeting in her
company. In the absence of anything more tangible or
suggestive I would dismiss so much of the complaint as
alleges such activity to be a violation of Section 8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection its business operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
VI. THE REMEDY
Having found that by discharging Robert Conklin
Respondent discriminated against him in violation of
Section 8(a)(3) of the Act, thereby interfering with,
restraining, and coercing employees in violation of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom. Affirmatively I shall recommend that
Robert Conklin be reinstated to his former or substantially
equivalent position, if this has not already been done,
without prejudice to his seniority or any other rights and
privileges, and that he be made whole for any loss of
earnings suffered by him because of Respondent's
discrimination against him, with backpay computed by
access to Respondent's books, records and accounts, in
the customary manner ,14 with interest added thereto at the
rate of 6 percent per annum; i' and that if he be presently
serving in the Armed Forces of the United States that he
be notified of his right to full reinstatement upon
application in accordance with the provisions of existing
law I shall also recommend that the Respondent post the
customary notices of compliance with the provisions of the
Board's Order.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Robert
Conklin to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole in the manner set forth in
the above section entitled "The Remedy."
(b) Notify Robert Conklin if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Post at its East Northport, Long Island, New York,
plant, copies of the attached notice marked "Appendix." 17
Copies of said notice, to be furnished by the Regional
Director for Region 29, after being duly signed by the
Respondent, shall be posted immediately upon receipt
thereof, in conspicuous places, including places where
notices to employees are customarily posted, and
maintained by it for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material
(d) Notify the Regional Director for Region 29 in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply there
with.ia
IT IS FURTHER RECOMMENDED that so much of the
complaint in this proceeding as alleges other incidents of
unlawful interference, restraint, and coercion be
dismissed.
" Ct Poray, Inc, 143 NLRB 617, Texas Boot Manufacturing
Company, Inc, 143 NLRB 264.
14 F W Woolworth Company, 90 NLRB 289
15 Isis Plumbing & Heating Co, 138 NLRB 716
is In the event that this Recommended Order be adopted by
the Board the word "recommended" shall be deleted from its
caption and wherever else it thereafter appears, and for the words
"I recommend " there shall be substituted "The National Labor
Relations Board hereby orders "
" In the event that this Recommended Order is adopted by the
B"--d, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
is In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read- "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith."
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend" that Filtors, Inc., its officers,
agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in respect to hire and tenure of employment for
the purpose of discouraging membership in Local 411,
National Organization of Industrial Trade Unions or
engaging in concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
I PPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge or otherwise discriminate
against our employees with respect to hire or tenure
because they are leaders in or members of Local 411,
DOUBLEDAY BROS. & CO. 1053
National Organization of Industrial Trade Unions, or
have participated in concerted activities protected by
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reinstatement to
his former or a substantially equivalent position to
Robert Conklin, without prejudice to his seniority or
other rights and privileges, and WE WILL make him
whole for any loss of pay he may have suffered in the
manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section 7 of
the Act.
All of our employees are free to become or remain, or to
refrain from becoming or remaining members of the
above-named Union, or any other labor organization.
FILTORS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and m=ist not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
596-3535.
Doubleday Bros. & Co. and Chauffeurs,
Teamsters and Helpers Union, Local Union
No. 7, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Cases 7-CA-5596 and
7-RC-7382.
April 13,1967
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On January 20, 1967, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
consolidated proceeding, finding that the
Respondent had not engaged in unfair labor
practices as alleged in the complaint, and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. In addition, the Trial
Examiner found no merit in the objections to the
election filed in Case 7-RC-7382, and recommended
that the objections be overruled, and that the results
of the election be certified. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the objections filed
in Case 7-RC-7382 be, and they hereby are,
overruled.
CERTIFICATION OF RESULTS OF ELECTION
IT Is HEREBY CERTIFIED that a majority of the
valid votes has not been cast for Chauffeurs,
Teamsters and Helpers Union, Local Union No. 7,
International Brotherhood of ' Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, and said labor organization is not the
exclusive representative of the employees in the
appropriate unit within the meaning of Section
9(a) of the National Labor Relations Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: These cases,
involving objections to conduct affecting the result of an
election and unfair labor practice charges, were heard at
Kalamazoo, Michigan, on November 4, 1966, pursuant to a
complaint and report on objections issued on September 9,
1966. The two cases were consolidated for hearing. The
complaint against Doubleday Bros. & Co., herein called
the Respondent, the Company, or the Employer, alleges
violations of Section 8(a)(1) of the Act. Briefs were filed by
the General Counsel and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Doubleday Bros. & Co., maintains its principal office
and place of business in Kalamazoo, Michigan, where it is
engaged in the printing, sale, and distribution of printed
matter, and the sale and distribution of office furniture.
163 NLRB No. 144