Ford Radio & Mica Corp.

National Labor Relations Board - Board Decisions

Apr 19, 1956

115 N.L.R.B. 1046 (N.L.R.B. 1956)

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Radio & Mica Corporation and International Union , United
Automobile, Aircraft & Agricultural Implement Workers of
America (UAW-AFL-CIO), Local 365.1 Case No. 2-CA--3686.
April 19,1956
DECISION AND ORDER
On November 4, 1955, Trial Examiner Sydney S. Asher, Jr., 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
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended that such allega-
tions be dismissed. Thereafter, the Respondent, the General Counsel,
and the Union filed exceptions to the Intermediate Report, and the
Respondent and the General Counsel filed supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, additions, and modi-
fications noted herein.3
1. The Trial Examiner found that Edwin Long, executive vice presi-
dent of the Respondent, in a conversation with Avella, a supervisor,
said : "They think they are bad off now. Wait until they get the union
and they will see how bad off they will really be." He added that
the employees would not be permitted to smoke at their work if the
Union won the pending election. Employee Donnelly testified that
3 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the Union 's affiliation accordingly.
2 The Respondent also requested oral argument before the Board. This request is de-
nied because , in our opinion , the record . including the exceptions and briefs , adequately
presents the Issues and the positions of the parties.
8 We agree with the Trial Examiner that the discharge of Foreman Zukowsky did not
constitute a violation of the Act ; we therefore also agree that it is immaterial to the
results of this case whether or not there is evidence that "Zukowsky made threatening
gestures with an automobile jack toward a nonstriker entering the plant ." The General
Counsel excepted , however, to the statement that there was such evidence , and we agree
that the record would not support a finding that a threat was made. The nonstriker in
question admitted that Zukowsky had been fixing a flat tire on his car, that he was shout-
ing as he approached the car in which she was riding to work as her car window was
closed , that she was not afraid he was going to hit her, and that when she opened the
car window to hear what he was saying he apologized for having laughed at her on the
preceding day.
In affirming the Trial Examiner 's dismissal of the complaint with respect to the dis-
charge of Foreman Zukowsky , the Board deems it unnecessary to adopt the statement that
"the only time" the discharge of a supervisor interferes with the rights of rank-and-file
employees Is when it is based upon the supervisor 's failure to engage in unfair labor prac-
tices.
115 NLRB No. 169.
FORD RADIO & MICA CORPORATION 1047
the conversation took place at Avella's desk, that this desk was situated
in the plant near the work place of several employees, that she heard
this conversation and discussed it with certain other employees, but that
she did not remember whether or not any of them said they had also
overheard the conversation. None of the other employees testified
about this matter. The Trial Examiner discredited Long's denial
that such a conversation occurred.4 He found further, however, that
these remarks did not violate the Act as this was a conversation be-
tween supervisors and as it was not established that Long "intended
this remark to reach the ears of rank-and-file workers." The Trial
Examiner relied for this finding on National Mattress Company, 111
NLRB 890, 891.
That case, however, found the remarks there in question not a vio-
lation of the Act "because this conduct involved statements between
supervisory employees and there is no evidence that such statements
were communicated to any employees." There was no indication in
that case,5 as distinguished from the situation in the present case, that
the remarks were overheard by any rank-and-file employees. We
find, therefore, that the coercive remarks made by Edwin Long to
Avella within hearing of employees at work, and actually overheard
by one of these employees, constitutes a violation of Section 8 (a)
(1) of the Act .6
2. A few employees were given permission by the Respondent to
attend a conference at the Board's Regional Office with regard to the
Union's petition for an election. Employee Donnelly testified that
when she returned to the plant from this conference, Foreman Phil-
lips said to her, "Well, you will find yourselves outside looking in."'
Phillips denied that he had any conversation with Donnelly about
the Union during this period. The Trial Examiner does not resolve
this conflict in testimony on the grounds that the alleged threat was
ambiguous, and that the record did not show whether or not Donnelly
had obtained permission to attend this conference, or was dilatory
in returning to the plant. As there was no contention that she had
attended the conference without permission nor that she had delayed
her return to work, the General Counsel excepts to the Trial Exam-
4 Although the Trial Examiner stated that Avella did not mention this incident in his
testimony, Avella was asked whether , during this period, Long came over to his desk and
spoke to him about reducing benefits in the shop, and he replied in the negative. We
nevertheless adopt the Trial Examiner 's finding, based upon his resolution of the conflict
in testimony between Long and Donnelly , that this conversation did take place.
6 National Mattress Company, supra, 905.
6 Sharp Point Fish Hook Company, 102 NLRB 1035 , 1037; The Advertiser Company,
Inc., 97 NLRB 604, 617; Jamestown Veneer and Plywood Corporation, 93 NLRB 101, 111,
aenfd. as mod . 194 F. 2d 192 (C. A. 2) ; cf. Tri County Employers Association, 103 NLRB
653, 673, where an inquiry by one supervisor of another as to whether there were any
union members in the shop, although overheard by an employee , was held not to be
"addressed to the ears of any employee within hearing."
T The Intermediate Report inadvertently quotes this testimony as "well , you will find
yourself outside looking in."
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner's conjectures about these possibilities, and maintains that Phil-
lips' remark to Donnelly was coercive. We do not predicate any find-
ing of a violation of the Act on this conduct. We deem it unnecessary
to resolve this conflict, and to pass on the coerciveness of the remark.
if made, particularly because a finding of a violation of Section 8 (a)
(1) here would be cumulative.
The Board also finds it unnecessary to pass on the Trial Examiner's
holding that the Respondent's conduct relating to its proposal to form
an independent union was not a violation of Section 8 (a) (1) but was
protected by Section 8 (c) of the Act, in view of its finding that Sec-
tion 8 (a) (1) was otherwise violated.
3. The Trial Examiner concluded, after a detailed discussion of the
evidence on this matter, that the Respondent discharged the striking
employees. We agree with this conclusion and note that counsel for
the Respondent conceded, during oral argument at the close of the.
hearing, that the strikers were discharged before they were replaced.
4. The Trial Examiner found that three of the strikers, Durkin,
Babino, and Renna, did not formally request unconditional reinstate-
ment; that Durkin testified at the hearing that she desired imme-
diate reinstatement; and that the General Counsel stated during oral
argument that all the employees named in the complaint desired
reinstatement. The Trial Examiner concluded that these statements
by Durkin and the General Counsel "cannot be equated to formal un-
conditional requests for reinstatement addressed to the Respondent."
He therefore recommended that these employees not be given any re-
imbursement for loss of earnings unless "the Respondent should fail
to offer them reinstatement. . . . In that event, back pay shall begin
to run from 5 days after the employee unconditionally requests rein-
statement."
The General Counsel and the Union took exception to these findings
and recommendations. The General Counsel maintains that, as prac-
tically all the strikers applied for reinstatement on May 5, 1954, the
number of applications served as notice to the Respondent that the
strike was terminated, and constituted a request for the reinstate-
ment of all the strikers. He contends, therefore, that all the strikers
should get back pay from May 5, 1954. We do not agree with this
contention as these were individual requests and not a collective
request.
On the other hand, we do not agree with the Trial Examiner that
the individuals in question, as discriminatorily discharged strikers,
were required to make "formal unconditional requests for reinstate-
ment addressed to the Respondent," but find, rather, that they were
required only to indicate that they were ready to abandon the strike
and return to work. The Board generally requires reinstatement and
back pay for discriminatorily discharged employees from the date of
FORD RADIO & MICA CORPORATION 1049
their discharge. It does not, however, award back pay to employees
discriminatorily discharged while on strike during the period when
they remain on strike on the theory that, until it appears that the em-
ployees who desire employment have given up the strike, it cannot be
established that the loss of pay was conclusively attributable to the
Employer's conduct.'
It follows therefrom that the duty which devolved upon the discrimi-
natorily discharged strikers in the present case was merely to indicate
that they had given up the strike. This duty was met here by Durkin's
testimony at the hearing on behalf of herself, and by the General Coun-
sel's statement on behalf of all the complainants, in the presence of the
Respondent's representatives, that reinstatement was desired: We
shall therefore grant back pay to Durkin from February 25, 1955, the
date on which she testified, and to Babino and Renna, who did not
testify, from April 14, 1955, the date of the General Counsel's state-
ment on behalf of all the complainants.'
5. The Trial Examiner found that a picket-line incident engaged
in by striker Marchese, although not serious enough to justify denying
him reinstatement, did require some deterrent action. Accordingly,
he recommended that $200 be deducted from whatever back pay was
found to be due him. The Respondent, whose counsel stated during
oral argument to the Trial Examiner that it did not claim that any
striker should be barred from reinstatement because of picket-line mis-
conduct, as well as the General Counsel and the Union, took exception
to this recommendation.
The incident in question occurred during the strike as Lucy Fabriski,
a nonstriker, was leaving the plant at the end of the workday. She
testified as to this incident that: "Well, it is just that he [Marchese]
was teasing me. He grabbed me and said that it is better here, at least
he is getting the sun.... I says I am better off on the inside. I get
paid, and he doesn't.... I said `leave go,' and he wouldn't, and I
pulled away. . . . I kicked him." [Emphasis supplied.] Marchese
then released her, and the incident ended. Fabriski, whose husband
and brother both worked in the Respondent's plant, did not report the
incident to them or to her supervisors.
Marchese, a bachelor, was well known in the plant as an individual
who liked to tease the girls. The Trial Examiner states that one of
the strikers described Marchese as "always smiling." Fabriski, who
had known Marchese for about 14 years, also testified that he was
"joking pretty much of the time," and the Respondent's attorney re-
8 See, for example , Massey Gin and Machine Works, Inc., 78 NLRB 189; Kallaher and
Mee, Inc., 87 NLRB 410, 413; Buzza Cardoza, 97 NLRB 1342, 1344; National Gas Com-
pany, 99 NLRB 273, 286.
BAs the Trial Examiner found that these three strikers had been discriminatorily dis-
charged, and as we agree with this finding but are merely amending his recommended
remedy, we shall not abate the back pay during the period of the Intermediate Report.
Cf. J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115 NLRB 594.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred to him during the hearing as "Smiley." We agree with the
Trial Examiner and the Respondent that the incident was too trivial
to warrant barring Marchese from reinstatement. Similarly we find
the incident too trivial to warrant any deduction from the back pay
which may be due him,10 assuming, without deciding, that "fining"
strikers for misconduct is an appropriate qualification to a reinstate-
ment remedy under any circumstances. We shall therefore include
him, without qualification, in the order requiring reinstatement with
back pay from the date of his application.
ORDER
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Ford Radio &
Mica Corporation , Brooklyn , New York, its officers, agents , successors,
and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile , Aircraft & Agricultural Implement Workers of America
(UAW-AFL-CIO), Local 365, or any other labor organization of its
employees , by discharging or refusing to reinstate them or discriminat-
ing in regard to their hire, tenure of employment , or any term or con-
dition of employment.
(b) Threatening loss of employment or other reprisals against its
employees because of their membership in or assistance to the above-
named Union, or any other labor organization , or because they engage
in a strike.
(c) Promulgating or enforcing any rule prohibiting solicitation,
for the purpose of impeding or interfering with the concerted activities
of its employees.
(d) Informing its employees that they will not be reinstated be-
cause they had engaged in a strike.
(e) Interrogating its employees regarding their union activities,
affiliations , or sympathies, or those of their fellow employees, or how
they intend to vote in a Board-conducted election , in a manner viola-
tive of Section 8 (a) (1) of the Act.
(f) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the rights guaranteed them in Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to each employee listed in Appendixes B and C attached
to the Intermediate Report and to Doris Noonan immediate and full
"N. L. R. B. v. B/co ManufactWring, Inc., 227 F. 2d 675 , cert. denied 350 U. S. 1007_
11'ORD RADIO & MICA CORPORATION 1051
reinstatement to his former or a substantially equivalent position, and
restore the medical and hospitalization insurance benefits enjoyed by
them prior to the date these benefits were discontinued, without preju-
dice to his seniority or other rights and privileges previously enjoyed,
in the manner described in the Intermediate Report.
(b) Make whole each employee listed in Appendixes B and C at-
tached to the Intermediate Report and Doris Noonan, including John
Babino, Anne Durkin, and Thomas Renna, for any loss of earnings
they may have suffered by reason of the discrimination against them,
and in the event any of the discharged strikers incurred medical and
hospitalization expenses which would have been covered by the can-
celed medical and. hospitalization plans, make them whole for such
expenses , in the manner described in the Intermediate Report, as
modified by this Decision and Order.
(c) Upon request make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze and compute the
amount of back pay due under the terms of this Order.
(d) Post at its plant at Brooklyn, New York, copies of the notice
attached hereto marked "Appendix A." 11 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated the Act by
granting wage increases to its employees in order to discourage mem-
bership in the Union, and by discharging Joseph Zukowsky.
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
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 Labor Manage-
ment Relations Act, we hereby notify our employees that
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft & Agricultural Implement Workers
of America (UAW-AFL-CIO), Local 365, or any other labor
organization of our employees, by discharging or refusing to rein-
state them, or discriminating in regard to their hire, tenure of
employment, or any term or condition of employment.
WE WILL NOT threaten loss of employment or other reprisals
against our employees because of their membership in or assistance
to the above-named Union, or any other labor organization, or
because they engage in a strike.
WE WILL NOT promulgate or enforce any rule prohibiting solici-
tation, for the purpose of impeding or interfering with the con-
certed activities of our employees.
WE WILL NOT inform our employees that they will not be rein-
stated because they had engaged in a strike.
WE WILL NOT interrogate our employees regarding their union
activities, affiliations, or sympathies, or those of their fellow em-
ployees, or how they intend to vote in a Board-conducted election,
in a manner violative of Section 8 (a) (1) of the National Labor
Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Relations Act.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, in the manner set forth in the Trial
Examiner's recommendations :
Herman Adelman Angelo Marchese
John Babino Olga Marcia
Isabel Cheeseman Doris Noonan
Edith Cirillo Jean Novotny
Kathleen Corkery Edith Price
Elizabeth Costello Elizabeth Ratalsky
Victoria De Carlo Thomas Renna
Anne Donnelly Margaret Rose
Catherine Dowling Kostanty Ross
Anne Durkin Helen Ryan
Violet Etheridge Alice Schmidt
Rose Fitzpatrick Hattie Skalski
Sophie Fowler Frances Stanton
Gertrude Guinan Rita Stock
Howard Holmes Catherine Thorgersen
Catherine Johnson Justine Wiatrak
Anna McGann Lavden Gus Yeaton
FORD RADIO & MICA CORPORATION 1053
WE WILL make whole the above -named employees for any
loss of earnings suffered by them, as well as for medical and
hospitalization expenses incurred , by reason of our discrimination
against them , in the manner set forth in the Trial Examiner's
recommendations , as modified by the Decision and Order.
All our employees are free to become , remain, or refrain from becom-
ing or remaining members of the above -named Union , or any other
labor organization , except to the extent that this right may be affected
by agreements in conformity with Section 8 (a) (3) of the National
Labor Relations Act, as amended.
FORD RADIO & MICA CORPORATION,
Employer.
Dated---------- ------ By-------------------------------------
(Representative ) (Title)
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
This proceeding involves allegations that Ford Radio & Mica Corporation, Brook-
lyn, New York, herein called the Respondent, has interfered with, restrained, and
coerced its employees in certain specified respects since February 5, 1954; that on
March 16, 1954, it discharged 22 employees listed in Appendix B, attached hereto;
that on March 17, 1954, it discharged 11 employees listed in Appendix C, attached
hereto; and that on March 18, 1954, it discharged employee Doris Noonan, and has
since failed and refused to reinstate these 34 employees because they joined or as-
sisted International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), Local 365, the Charging Party, herein called the
Union, or engaged in other concerted activities, or participated in a strike. It is
alleged that this conduct violated Section 8 (a) (1) and (3) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the Act. After the issuance
of a complaint by the General Counsel 1 and the filing of an answer by the Respond-
ent, a hearing was held before me on various dates between February 7 and April
14, 1955, inclusive, at New York, New York. All parties were represented and
participated fully in the hearing. During the hearing, the Respondent made several
motions upon which rulings were reserved. These are now disposed of in accordance
with the conclusions and recommendations herein. All parties were granted time
to file briefs and proposed findings of fact and conclusions of law. A brief has been
received from the Respondent and has been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
There is no dispute, and I find, that the Respondent was at all material times en-
gaged in commerce within the meaning of the Act,2 that it would effectuate the put-
'As used herein, the designation General Counsel has two different meanings : Up to
and including December 20, 1954, and on and after March 29, 1955, it means the Gen-
eral Counsel of the National Labor Relations Board and his representatives. Between
these two dates, while there was a vacancy in the office, It means the representatives of
the General Counsel's office.
2 The Respondent Is a New York corporation engaged in the manufacture, sale, and dis-
tribution of mica specialities and related products, with its office and only plant in
Brooklyn, New York. During the year ending November 1, 1954, the Respondent purchased
materials valued at in excess of $1,000,000,-of which approximately 90 percent was shipped
to its plant from points outside the State of New York. During the same period, the
Respondent manufactured finished products valued at in excess of $1,000,000, of which
approximately 90 percent was shipped from its plant to points outside the State of New
York.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of the Act for the Board to assert jurisdiction over the Respondent's opera-
tions,3 and that the Union was at all material times a labor organization within the
meaning of the Act.
A. Sequence of events
The Respondent has engaged in business for many years. During the time herein
material, it employed between 125 and 200 employees. Block mica received into
the plant as raw material goes first to the splitting department where it is split into
thin sheets. From there it is sent to the gauging department where it is gauged and
sorted according to thickness. Next, it is sent to the powerpress department where
operators of high speed presses punch the product out of the sheet mica, using dies
supplied by the Respondent's customers. The product is then inspected, weighed,
cleaned, packed, and shipped. The skills of gaugers and splitters are substantially
interchangeable. All rank-and-file employees in the splitting and gauging depart-
ments are women, but both men and women are employed in the powerpress
department.
Edwin Long, the son of Joseph Long, the Respondent's president, began working
for the Respondent in June 1951, shortly after his graduation from college. In June
1953 Edwin Long became executive vice president of the Respondent and thereafter
took an active part in its affairs. In the fall of 1953 he commenced the installation
of conveyor belts and wind tunnels for the inspection of mica. This proved suc-
cessful in substituting machine inspection for human inspection. The result was a
drastic cut in the personnel 'of the inspection department. Edwin Long also ob-
jected to the amount of time being wasted and took steps to curb excessive visiting
among employees.
In October and November 1953 business in the mica specialties industry declined,
and the Respondent laid off a substantial number of employees .4 These layoffs fol-
lowed seniority. The slump reached its low point in December 1953, but by Janu-
ary 1954 business had improved. Accordingly, some laid-off employees were re-
called during that month. Although the Respondent had announced that laid-off
employees would be called back according to seniority, it recalled a number of fe-
male powerpress operators who had less seniority than some male powerpress opera-
tors who were not recalled.5
Various changes and events in the plant caused dissatisfaction and a feeling of in-
security among the employees. These included technological improvements in the
inspection department , failure to recall laid -off employees according to seniority, fear
of the men in the powerpress department that they would eventually be replaced by
women , stricter discipline enforced as a result of Edwin Long 's more active role in
management , and differential in pay between male and female powerpress operators
(which will be described below). This unrest began to be felt by the end of January
1954. At that time, the Union resumed an earlier unsuccessful attempt to organize
the Respondent's employees and distributed circulars outside the plant. This cam-
paign was under the guidance of Thomas De Lorenzo and Ennio "Chippie" Morselli,
organizers employed by the Union. One of those who early favored unionization of
the Respondent's plant was Joseph Zukowsky, foreman of the powerpress department.
The Union scheduled a mass meeting for the Respondent's employees to be held
at White Eagle Hall on the night of February 2.6 On the morning of February 2,
the fact that the Union was organizing the employees and planned to hold a meeting
that night came to the attention of John Marino, an officer of the Respondent and
superintendent of its plant. Through Zukowsky, Marino learned that the basic cause
of the unrest was the employees' sense of job insecurity, and that the employees
wanted to discuss their grievances with Joseph Long. That afternoon, Marino in-
* Jonesboro Grain Drying Cooperative, 110 NLRB 481, 483-484.
* A few months before, the Respondent had begun the purchase of some mica already
split and gauged. This was an additional factor in causing a reduction in the size of the
Respondent's work complement so far as the splitting and gauging departments were
concerned.
6 Neither the General Counsel nor the Union contends that the Respondent's failure to
recall laid-off employees according to seniority was violative of the Act The Respondent
maintains that it called back laid-off employees according to seniority if their work had
been good, but admits that in a few instances it failed to follow seniority because the laid-
off employees involved were inefficient or otherwise undesirable. I deem it unnecessary
to determine the Respondent 's reason for not recalling some powerpress operators accord-
ing to seniority.
6 All dates herein refer to the year 1954 unless otherwise stated.
FORD RADIO & MICA CORPORATION 1055
formed Joseph and Edwin Long 7 that the plant was being organized, that the Union
was going to hold a meeting that night, and that the employees felt insecure in their
jobs. Joseph Long agreed to take the matter up with the employees on the following
day. About 6 p. in., Zukowsky telephoned Marino. Marino promised that Joseph
Long would speak to the employees the next day, and suggested that the meeting be
postponed for 24 hours. Zukowsky replied that it was then too late to call off the
meeting.
The union meeting was held as scheduled on the night of February 2. It was at-
tended by a number of the Respondent's rank-and-file employees and also by Zukow-
sky. The discussion centered upon various grievances of the employees, including
the failure of the Respondent to recall laid-off employees according to seniority and
the difference in pay between male and female powerpress operators. Zukowsky
addressed the meeting and warned of the possibility of the plant's conversion into an
"all-girl shop"-in short, that the male employees' jobs might be in jeopardy. Most,
if not all, of those present signed application cards for union membership. A com-
mittee of nine employees was selected to act as a contact between the union offi-
cials and the employees, and to encourage other employees to join the Union. On
the following day, February 3, the Union wrote a letter to the Respondent (received
on February 4) claiming to represent a majority of the Respondent's employees, and
requesting recognition and a meeting for the purpose of negotiating a contract. On
February 4, the Union filed with the Board a representation petition seeking certifica-
tion as the bargaining representative of the Respondent's employees.8 On the same
day, the Board notified the Respondent (by letter received on February 5) of the
filing of the Union's petition.
On the afternoon of February 5, at the request of some employees , the nine em-
ployees who had been selected as the committee at the union meeting conferred
with Joseph Long, Edwin Long, and Marino in Joseph Long's office. This confer-
ence, which will be described in more detail hereafter, took place in an atmosphere
of confusion. The discussion concerned a number of the employees' complaints-
substantially those which had been discussed at the union meeting . The employees
on the committee then left the office and arranged a meeting to be held at Prospect
Hall the following day, open to all the Respondent's employees, to determine whether
they desired to be represented by the Union or by an inside, independent labor
organization . The scheduled meeting took place on Saturday, February 6, and was
attended by Zukowsky and a number of the Respondent's rank-and-file employees.
The meeting was addressed by Marvin Cooper, a member of. the bar having no con-
nection with the Respondent, who explained the purposes and functioning of inside,
independent unions, and also by Solomon B. Marcus, attorney for the Union, who
explained the purposes and functioning of the Union. A vote was then taken, the
result of which demonstrated that those present preferred to be represented by the
Union rather than by an inside, independent organization.
On February 19, the parties entered into an agreement for consent election.9 A
campaign ensued in which the Union and the Respondent distributed circulars to the
employees, and the Union held several additional mass meetings. The election was
conducted on March 3 and resulted in 66 votes for the Union, 88 votes against, and
23 challenged ballots. On March 11, the parties stipulated that Mary Frestad-
whose ballot had been challenged-was ineligible to vote and that the challenge to
her ballot should be sustained. The Union filed no objections to the conduct of the
election. On Monday, March 15, the Board's Regional Director issued his report on
challenges, in which he sustained the challenge to Frestad's ballot and found it un-
necessary to rule upon the remaining 22 challenged ballots, they being insufficient
in number to affect the result of the election. He thereupon certified that a majority
of the valid ballots had not been cast for the Union, and that consequently the Union
was not the bargaining representative of the employees.
In the meantime, on Friday, March 12, the Respondent discharged Zukowsky under
circumstances set forth hereafter. On the same day, several women powerpress
operators discovered that their paychecks contained less money than they believed
they were entitled to receive. The plant was closed as usual on Saturday and Sun-
day. Over that weekend, numerous telephone calls were made back and forth.
7 According to Marino's testimony, Marino notified Edwin Long shortly after 11 a. in.
that day, and Joseph Long late in the afternoon. Edwin Long, however, testified that he
first learned of the union movement from Marino late in the afternoon at the same time
Marino informed Joseph Long. I deem it unnecessary to resolve this conflict.
8 Case No. 2-RC-6567 (not reported in printed volumes of Board Decisions and Orders).
8 The agreed-upon unit differed slightly from the unit set forth in the Union's petition,
but not in any manner here material.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the disgruntled employees , Zukowsky, and Morselli . Some of the employees
said they intended to stay away from work on the following Monday; Motselli advised
against such a course at that time . About a half-hour before the working day com-
menced on Monday, March 15, Zukowsky and a group of approximately 25 or 30
women employees gathered across the street fran the plant. A number of the women
decided not to go to work that day and tried to persuade others to do likewise.
Zukowsky urged them not to stay out on his account. When Marino arrived at the
plant and saw the crowd of employees across the street, he asked what was hap-
pening, but received no satisfactory answer. Some of the women, apparently per-
suaded by Zukowsky, reported for work when the starting whistle blew, but others
remained outside, including all those listed in Appendix B, attached hereto.1° About
this time a policeman, summoned by Marino, approached the crowd and asked what
was going on. Zukowsky responded. The nature of his reply is a matter of dispute
and will be discussed in a later portion of this report. Approximately an hour later,
while Zukowsky and the remaining women were still gathered across the street from
the plant, Marino and Zukowsky conferred in the middle of the street. Zukowsky
told Marino that he had advised the women not to stay away from work on his
account, and that they would like to come in but were under the impression that they
had been fired. Marino then turned to the women and said, "Nobody is fired. The
door is wide open, come on in." However, none of the women responded. Zukowsky
and the women then went to nearby McGuire's Tavern, where they waited for Mor-
selli, whose presence there had been requested. When Morselli arrived, the em-
ployee related to him their complaints against the Respondent and asked him if
the Union would back them up in their action. Zukowsky repeated that he hoped
they would not absent themselves from work because of him. Morselli promised to
contact some union officials regarding the matter and to inform the women of their
reply. Thereafter Morselli conferred with officials of the Union, obtained their per-
mission to help, and so notified one of the women. Shortly after noon, the Respond-
ent dispatched to each of the employees listed in Appendix B the following telegram:
YOU ARE DIRECTED TO REPORT FOR WORK ON TUESDAY MARCH
16TH, AT THE USUAL TIME. IF YOU DO NOT REPORT YOU WILL
BE DISCHARGED WITHOUT FURTHER NOTICE.11
None of the employees listed in Appendix B complied. On the following morning,
March 16, before the beginning of the workday, Morselli and the striking employees
appeared outside the plant with signs reading:
EMPLOYEES OF
FORD
MICA
ON STRIKE
LOCAL 365
U. A. W.-C. I. 0
Picket lines were established , and additional employees failed to report for work
that day. These included all those listed in Appendix C.12 On the same day, the
Respondent . sent to each of the employees listed in Appendix C a telegram, which
read:
REPORT FOR WORK ON WEDNESDAY MARCH 17TH AT THE USUAL
TIME.
None of the employees listed in Appendix C complied.
On March 16 and 17 the Respondent struck from its rolls the names of the em-
ployees listed in Appendixes B and C , and mailed their paychecks to them. On
March 18 , Morselli asked Marino if they could confer in an attempt to settle the
dispute, stating : "These people were out because they have grievances and gripes
that the company would not settle or won't recognize their position in the shop."
He added : "It is not a question of the Union wanting a contract . We lost the
election and we are not looking to get a contract in the shop . . . We are interested
in seeing these people get their jobs back." Marino replied that the strikers had
been notified by telegram to report for work, that they had been discharged, and
w One employee listed in Appendix B, Catherine Johnson , had left work as early as
3 p. in. on March 12.
n One employee listed in Appendix B, Rose Fitzpatrick, did not receive the telegram
until several days later.
22 Two employees listed in Appendix C, Howard Holmes and Helen Ryan, may have
absented themselves from work as early as March 15.
FORD RADIO & MICA CORPORATION 1057
that they could stay in front of the plant "until next winter" if they desired, but the
Respondent would not take them back.
The plant continued to operate and a substantial number of employees crossed
the picket line and remained at work. The Respondent posted a sign on the outside
of the plant reading: "Our employees are not on strike. On March 15, 1954, the
National Labor Relations Board certified that the Union does not represent our
employees." After March 19, the Respondent began to restaff the powerpress de-
partment by recalling powerpress operators laid off in the fall of 1953, transferring
gaugers into the powerpress department, and hiring new powerpress operators from
outside. In this manner, between March 19 and May 6, the Respondent replaced
all the powerpress operators who had remained away from work,13 but did not
replace any gaugers or splitters.
On about March 22, the Respondent filed suit in the Supreme Court of the State
of New York for Kings County against the Union and the individuals named in
Appendixes B and C, alleging that these individuals had quit their jobs without
cause, that they were directed by telegram to report for work, that they failed to
respond but instead picketed the plant, that none of the individuals was then in the
employ of the Respondent, and that the picketing was an attempt to compel the
Respondent to sign a collective-bargaining agreement with the Union " in violation
of existing law." The Respondent requested damages and that the picketing be
enjoined. Copies of the complaint were served upon many of the individual pickets.
The Union and the individuals named in the suit filed an answer denying that the
individuals had quit their jobs without reason, denying that the individuals were not
then employed by the Respondent, and denying that the picketing was designed to
force the Respondent to execute a contract with the Union. The answer further
alleged that the strike was "in furtherance of and concomitant to a labor dispute,"
and since the Respondent was engaged in interstate commerce the State court had no
jurisdiction. On May 3, 1954, the court granted the Respondent's motion for an
injunction pendente lite, on the ground that the purpose of the picketing was to
compel the Respondent to recognize the Union as bargaining agent of its employees
despite the Union's loss of the election, and that such picketing was unlawfuI.14 The
picketing thereupon ceased and on May 5 a substantial number of strikers wrote to
the Respondent offering unconditionally to return to work. These letters were
received on May 6. Similar letters were sent by a number of other strikers later in
May. The Respondent did not reply to any of these.
On June 7, the court rescinded its previous decision and set the case down for
trial .15 A trial was held on June 22, 23, and 24. At the trial the Respondent's
attorney, over the objection of the Union's attorney, amended the complaint by
striking out the allegation that the purpose of the strike was to compel the Respondent
to enter into a collective-bargaining contract with the Union. On June 28, the court
found that "a bona fide labor dispute" existed and that the picketing had been
orderly and peaceful. It accordingly refused to issue an injunction and dismissed
the case.16 Thereafter, in July and August, sporadic picketing was resumed.
The Respondent has not hired additional replacements since May 6, nor has it
reemployed Zukowsky or any of the employees named in the complaint. There has
never been a collective-bargaining contract between the Respondent and the Union.
B. Interference, restraint, and coercion
1. The wage increase
a. Facts
For many years, the employees of the powerpress department have been paid
according to a complex piece-work or incentive system.17 The system is based upon
12 The 34 employees named in the complaint include 26 powerpress operators. The
Respondent's payroll shows an increase of 27 employees during this period, which pre-
sumably includes Alice Hydell, who began work at the beginning of the working day on
May 5, and 2 laid-off employees (McGuire and Rasmussen ) who were recalled on May 3
but did not actually report for work until May 10.
14 Ford Radio & Mica Corporation v. United Automobile, Aircraft & Agricultural Imple-
ment Workers of America, Local 365, CIO, 34 LRRM 2094, N. Y. L. J., May 4, 1954.
N. Y. L. J., June 8, 1954.
le 34 LRRM 2561, N. Y. L. J., June 29, 1954, page 7.
17 There have also been somewhat similar systems in effect in the splitting and gauging
departments, and the occasional use of a "flat rate" in the powerpress department, These
are not here material.
390609-56-vol. 115-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production, and the operators' earnings are originally calculated in terms of minutes.
There are 16 separate "rates," expressed in terms of minutes earned per thousand
items produced.18 These rates range from 13.2 to 50 minutes per thousand. As
each new job is assigned to a powerpress operator, Edward Morrone, the incentive
clerk, assigns a rate to that particular job, depending upon the size and complexity
of the die and the thickness, size, and quality of the mica.19 Earnings of the operator
are determined according to the rate for the job and the operator's production. For
example, if a rate of 24 minutes is assigned to a job, and the operator produces
25,000 items in an 8-hour day, he earns 600 minutes (24 times 25). He is paid a
wage of 95 cents 20 for each 60 minutes earned, or in the illustration above, $9.50
for the day's work.21 Morrone calculates for each operator an efficiency factor,
expressed in terms of percentage. It is determined by dividing the earned minutes
by the number of minutes actually worked. For example, the operator in the above
illustration, who earned 600 minutes in an 8-hour day, has achieved an efficiency of
125 percent (600 divided by 480). In addition, after the finished product has been
inspected and the defective items removed, Morrone calculates for each operator
a "ratio," expressed in terms of percentage. It is determined by dividing the accept-
able finished product after inspection by the recorded number of strokes made by
the press.22 Thus an operator who after inspection produced only 23,750 acceptable
items, but whose recorded production for an 8-hour day is 25,000 items, would be
assigned a ratio of 95 percent (23,750 divided by 25,000).23
Work to be performed by powerpress operators falls into 2 main categories:
"Single punch" jobs are those in which the die is comparatively large while the sheet
mica is comparatively small, so that it is feasible to punch only 1 item from each
sheet of mica. Hence the operator activates the press (by depressing the power
pedal with his foot and then releasing it) separately for each item. "Hop" jobs,
by contrast, are those in which the die is comparatively small while the sheet mica
is comparatively large, so that it is feasible for several items to be punched from the
same sheet of mica. Hence the operator activates the press (by keeping his foot on
the power pedal) several successive times before the sheet of mica is withdrawn.
Since the presses operate at the rate of approximately 250 strokes per minute, an
operator can normally produce more items in the same period of time on a "hop"
job than he could on a single-punch job.
Some time before the events related herein, the Respondent adopted a policy of
allowing a "special payment" (also called the 2-minute rate) to male powerpress
operators on "hop" jobs who achieved an efficiency factor of 135 percent or better
and a ratio of 90 percent or better, and whose "scrap" was not poor.24 It did not
apply to "single punch" jobs. This special payment operated as follows: If a job
normally would be assigned a given rate, for example 22 minutes, the operator who
was receiving the special payment would instead be assigned the next higher rate,
for example 24 minutes. This was a distinct advantage to the operator who received
is The rate is related to a "quota" which is the number of items which should normally
be produced in an 8-hour day The quota can be obtained by dividing the rate into 480,000
(1,000 times the number of minutes in an 8-hour day). Conversely, the rate can be ob-
tained by dividing the quota by 480, and then dividing the result into 1,000.
19 In a few instances, an employee dissatisfied with a rate has appealed Morrone's deci-
sion to Marino, who then ordered the rate changed.
20 The base wage of 95 cents per hour in the powerpress department was not absolutely
uniform. For example, during the workweeks beginning February 3 and 10, Gertrude
Guinan, a powerpress operator, received a base hourly wage of 88 cents ; during the work-
weeks commencing February 17, Guinan and 1 other powerpress operator, Edith Price,
received a base hourly wage of 88 cents. -
21 See Appendix D. This assumes that the operators work a full 480-minute day.
Actually, they work only 460 minutes per day because of two 10-minute rest periods. They
are paid for the rest periods (and also "downtime," I e. time during which work is unavail-
able through no fault of the operator) at their base hourly wage.
22 Connected with each press is a "clock" or counter which records the number of strokes
made. The reading on each clock, known as the "clock count," is recorded daily by
Morrone.
x+ The difference between the ratio and 100 percent (5 percent in the above illustration)
represents the number of defective items produced by the operator plus the number of
times the press made strokes when there was no mica in it-known as "hopping."
24 Scrap is the remainder of a sheet of mica after the product has been punched out.
Poor scrap results when an operator produces fewer items from a sheet of mica than
normal.
FORD RADIO & MICA CORPORATION 1059
it; he not only earned more pay for the same amount of production, but also was
able to attain a higher efficiency factor.25
The special payment did not at that time apply to female powerpress operators,
regardless of their efficiency, ratio, or scrap. The New York Labor Law, a State
statute of which I have taken official notice, provides: "No employee shall, because
of sex, be subjected to any discrimination in the rate of her or his pay." 26 In October
1953 industrial engineers engaged by the Respondent to conduct a survey of its
operations recommended, among other things, that the special payment be extended
to female powerpress. operators on the same basis as it was granted to male power-
press operators, in order to avoid the possibility of being cited for violation of State
law. In January 1954 this differential arising from the granting of the special pay-
ment to male powerpress operators on "hop" jobs who met the criteria described
above,27 while not extending it to qualified female powerpress operators on "hop"
jobs, was one of the reasons causing unrest and dissatisfaction in the powerpress
department. It was a subject of discussion at the first union meeting on February 2.
It was also one of the grievances presented by the committee of employees to the
Respondent's representatives on February 5 during the meeting in Joseph Long's
office. When the matter was brought to his attention on February 5 during this
meeting, Joseph Long turned to Marino and said: "I thought that was straightened
out." Marino replied: "No, but it will be." On the same day, the Union wrote to
the industrial relations division of the New York State Department of Labor com-
plaining that "it is the long standing practice of the . . . [Respondent] to pay its
women employees less money for the same work as men" and pointing out that this
discrimination, based solely on sex, was violative of State law. The Union requested
"that appropriate action be taken to enforce equal pay for equal work and to recover
back pay for the employees against whom the discrimination was practiced." This
letter was received by the New York State Department of Labor on February 8i8
On February 9, Marian P. Mack, a field representative of the New York State Depart-
ment of Labor, telephoned Marcus, the Union's attorney. On the following day,
February 10, she telephoned Morton Singer, the Respondent's labor attorney. In
these telephone conversations, Mack referred to the Union's letter and explained
that it was the policy of the New York State Department of Labor to refrain from
investigating complaints of this nature while representation proceedings were pending
before the Board. Apparently no other steps were taken by the New York State
Department of Labor in the matter, and, on January 5, 1955, Mack noted on her
records that she had received no further word regarding this complaint.
The workweek at the Respondent's plant begins on Wednesday morning and ends
at the close of the workday on the following Tuesday. Payday occurs each Friday,
at which time the employees are paid for the previous workweek. For example, on
Friday, February 12, the employees were paid for the workweek beginning on
Wednesday morning, February 3, and ending at the close of the workday on Tuesday,
February 9.
Sometime between Friday, February 5, and Friday, February 19, the Respondent
applied the special payment to female powerpress operators on "hop" jobs who at-
tained an efficiency of 135 percent or better, had a ratio of 90 percent or better, and
whose scrap was not poor. Each woman powerpress operator who was put on the
special payment received a slip with her paycheck reading: "If your paycheck is
larger or smaller than usual that is because you have ar have not met the standards
as set by our incentive system." There is a conflict as to whether this change oc-
curred before or after February 10, the date when the Respondent first learned that
the Union had complained to the New York State Department of Labor. The Gen-
eral Counsel contends that the change was ordered on February 5, while the Re-
spondent maintains that it was not ordered until February 12. On this subject,
Joseph Long testified that, after the meeting in his office described above, he directed
"the men in charge" to correct the inequity between the pay of male and female
powerpress operators "immediately" and that his orders were carried out "as soon
as we got the complaint." In addition, Marcus testified without contradiction that
at the State court proceedings Marino had testified that the difference between the
25 See Appendix D.
20 30 McKinney's Consolidated Laws of New York Annotated, § 199a. Section 198 of
the same law provides a civil forfeiture of $50 for each violation. The Penal Law also
provides for fine and imprisonment for violations. 39 McKinney's Consolidated Law of
New York Annotated, § § 1272, 1275.
21 All male powerpress operators on "hop" jobs had met the standards by that time.
98 On a date not specified in the record, the Union distributed a circular pointing out
this discrimination , and claiming that it violated State law.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay of men and women powerpress operators was adjusted the Monday following
the meeting with the employees in Joseph Long's office (which occurred on February
5). Also Margaret Hingula, a powerpress operator who was a witness for the Re-
spondent, testified that she received the special payment probably during the first
week in February. Catherine Johnson, a powerpress operator and a witness for the
General Counsel, testified that the operator next to her received the special payment
on either February 12 or February 19. On the other hand, Olga Marcia, a power-
press operator and a witness for the General Counsel, testified that she received the
special payment on February 19 and that the slip described above was first put on
the paychecks on that day. Edwin Long testified that instructions to include female
powerpress operators in the special payment were first issued "somewhere around"
February 9, as the result of Mack's telephone call to Singer. Morrone testified that
he did not receive instructions to apply the special payment to women powerpress
operators until Friday, February 12. According to Morrone, he began to carry out
these orders on Monday, February 15. On that date, he checked the records of the
female powerpress operators for the previous week with regard to efficiency, and for
February 8 and-9 with regard to ratio. About eight who were found qualified were
given the special payment for jobs handled on Monday and Tuesday, February 15
and 16. They did not receive their checks showing this increase until the following
Friday, February 19. A few more were added to the special payment the following
week.29
In my opinion, there is a lack of convincing evidence that the inclusion of women
powerpress operators in the special payment took place prior to Mack's telephone
call to Singer on February 10. In view of all the evidence, particularly the testimony
of Marcia, Edwin Long, and Morrone, I find that the Respondent took no definitive
steps to extend the special payment to qualified female powerpress operators until
at least February 10, and that the first checks reflecting this additional payment
were not issued until February 19.
b. Contentions and conclusions
The complaint alleges that on or about February 12 the Respondent granted a
wage increase to employees in order to discourage membership in or assistance to
the Union, or to discourage its employees from engaging in concerted activities, or
to affect the outcome of the representation proceeding then pending before the Board.
The answer admits that "there was a change in wage rates" but denies the remainder
of the complaint's allegations in this respect. The basic difference between the parties
is that the General Counsel contends that the real purpose of extending the special
payment to female powerpress operators was to discourage union activity while the
Respondent, on the contrary, maintains that its sole reason for changing the wage
system was to avoid further possible violation of State law.
The granting of a wage increase during a union's organizational campaign is not
per se violative of the Act. As the Board has said, "What is unlawful under the Act
is the employer's granting or announcing such benefits [although previously deter-
mined upon bona fidel for the purpose of causing the employees to accept or reject
a representative for collective bargaining." [Emphasis in original.] 30 In determin-
ing the Respondent's true motive in granting the wage increase to female powerpress
operators, it is important to consider the sequence in which the events occurred and
all surrounding circumstances. It is true that industrial engineers had warned
the Respondent against the possible consequences of continuation of its discrimina-
tory system as early as October 1953. It is also true that the matter was again
called to Joseph Long's attention by employees on February 5, when he already
knew that'a representation petition was pending before the Board. At that time he
promised to correct the inequity. But even then the Respondent delayed. It was
not until after the telephone call from Mack-which could reasonably be interpreted
as,a portent of future trouble with State authorities-that the Respondent belatedly
took action in the matter. It should be borne in mind, too, that continuation of the
discriminatory practices might have subjected the Respondent to penalties. In view
of these facts, I am convinced and find that the Respondent extended the special pay-
ment to female powerpress operators primarily because of Mack's telephone can and
its desire to avoid the intervention of State authorities in the matter.
"a For some reason not explained on the record, Marcia received the special payment for
jobs handled on February 15 and 16, although her efficiency for the prior week was less
than 135 percent. She returned to "the old basis" on the following week.
m Hudson Hosiery Company, 72 NLRB 1434,1487.
FORD RADIO & MICA CORPORATION 1061
The General. Counsel and the Union insist that the Respondent never came into
full compliance with State law, but instead subtly continued to discriminate against
its female powerpress operators by certain practices. Assuming this to be true, it
misconstrues the issue. The question of whether the Respondent merely made a pre-
text of complying with State law or actually fully uprooted all vestiges of antifemale
discrimination, while it may possibly be of some interest to the State authorities, is
here extraneous. What is determinative here is the Respondent's motive for increas-
ing the women's earnings. I find that it was either a good-faith attempt to eradicate
discriminatory practices, or else an effort to appear to have done so. In either event,
it was sparked by Mack's telephone call rather than by the union movement. Ac-
cordingly, I conclude that such conduct was not violative of the Act, and grant the
Respondent's motion, made at the close of the hearing, to dismiss so much of the
complaint as refers to the wage increase.31
2. The discharge of Zukowsky
a. Facts
Joseph "Big Joe" Zukowsky began to work for the Respondent in 1933 as a power-
press operator. About 4 years later he was promoted to diesetter, which job he held
until he entered the Navy in 1943. When Zukowsky returned from service with the
Navy in 1945 he was promoted to foreman of the powerpress department. He held
this position until his discharge on March 12, 1954, except for a few weeks in the
fall of 1953 when he was temporarily in charge of the night shift. The parties stipu-
lated, and I find, that Zukowsky was a supervisor within the meaning of the Act from
1945 until his discharge.
Zukowsky was one of the first to become interested in the union movement. On
Sunday, January 31, he went to the homes of several employees and talked to them
about the Union. On February 2, Marino told Zukowsky that he had heard that
the employees were organizing and planned to hold a meeting that night. Zukowsky
replied that he knew about it and that the employees wanted to speak to Joseph
Long about their grievances.32 Marino then asked what the employees' grievances
were. Zukowsky answered that he did not know, but would find out. Several hours
later, Zukowsky reported to Marino that the reason for the employees' dissatisfaction
was that they felt insecure in their jobs. Marino replied that he was sure that
the matter could be ironed out and that he would confer with Joseph Long about it.
Zukowsky added that he had grievances of his own, but Marino responded that
he was not then interested in management 's grievances, but would take that up
later. Zukowsky also said that he intended to go to the union meeting that night.
Marino, surprised, asked why. Zukowsky answered that he, too, felt that his job
ss The original charge, served on March 23, 1954, did not mention the wage increase. It
was first set forth in the amended charge served on November 1, 1954. In its answer, the
Respondent contended that the 6 months' statute of limitations in Section 10 (b) of the
Act barred any finding of unfair labor practices based upon the wage increase. At the
hearing, the Respondent moved to dismiss the portion of the complaint dealing with the
wage increase ; the motion was denied. N. L. R. B. v. Gaynor News Company, Inc., 347
U. S. 17, footnote 30; N. L. R. B. v. Samuel Kobritz, 193 F. 2d 8, 14-16 (C. A. 1), pet. to
vacate denied 201 F. 2d 156; N. L. R. B. v. Pecheur Lozenge Co., Inc., 209 F. 2d 393, 401
(C. A. 2), cert. denied 347 U. S. 953; N. L. R. B. v. Dinion Coil Co., Inc., 201 F. 2d 484
491 (C. A. 2) ; American Shuffleboard Co. v. N. L. R. B., 190 F. 2d 898 , 903-4 (C. A. 3) ;
N. L. R. B. v. Kingston Cake Co., 191 F. 2d 563, 567 (C. A. 3) ; N. L. R. B. v. Harry Epstein,
at at., 203 F. 2d 482, 485 (C. A. 3), cert. denied 347 U. S. 912; Cathey Lumber
Co. v. N. L. R. B., 185 F. 2d 1021 (C. A. 5), set aside on other grounds 189 F. 2d 428;
N. L. R. B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208, 214-215 (C. A. 5) ; N. L. R. B.
v. Wester Boot & Shoe Company, 190 F. 2d 12, 13-14 (C. A. 5) ; Stokley Foods, Inc. v.
N. L. R. B., 193 F. 2d 736, 737-738 (C. A. 5) ; N. L. R. B. v. Kohler Co., 220 F. 2d 3,
5-7 (C. A. 7) ; N. L. R. B. v. Bradley Washjountain Co., 192 F . 2d 144, 149 (C. A. 7) ;
N. L. R. B. v. Ozark Dam Constructors and Flip pin Materials Co., 203 F. 2d 139, 146
(C. A. 8) ; and Kansas Milling Company v. N. L. R. B., 185 F. 2d 413, 415-416 (C. A.
10). American Federation of Grain Millers , A. F. of L. v. N. L. R . B., 197 F. 2d 451
(C. A. 5), cited by the Respondent , is inapposite . There the court held that a charge
alleging refusal to bargain was barred where the refusal took place more than 6 months
before the service of the charge.
a2 Zukowsky testified that he told Marino that the employees wanted to confer with
Joseph Long ; Marino denied that Zukowsky had so stated . I credit Zukowsky's version.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was insecure . 33 About 6 p. m. that evening, Zukowsky telephoned to Marino and`
repeated that the employees were worried about their security and were going ahead.
with the meeting that night . He stated : "This is your last chance ." Marino replied:
"If that is all they are worried about . . . ask them if they can postpone it 24 hours
and I am sure Mr. Long will straighten it out ." Zukowsky answered : "It is too late
now." Marino retorted : "What the hell did you call me up for ?" and the conversa-
tion ended.
That evening, Zukowsky attended the union meeting. Morselli advised Zukowsky
that , being a foreman , he was not eligible for membership in the Union and suggested'
that he stay away from union meetings . Zukowsky , however , remained and signed:
an application for union membership . He told those present he thought the plant
needed a union and, as previously set forth , discussed certain grievances openly.
On the following day February 3, Zukowsky called Marino to his desk and said:
"Before anyone else tells you I may as well tell you I was at the meeting last night.-
There is a conflict as to Marino 's response . According to Marino , he replied : "What-
are you , crazy? You are management . You don 't go to any more meetings. You
are an arm of management ," and Zukowsky replied that he was going to go to
union meetings , that he was over 21 and knew what he was doing; and Marino
reiterated : "Well, you belong to management , you are not supposed to go to any
of these meetings." Zukowsky denied that Marino or any other representative of
the Respondent had instructed him not to attend union meetings . However, he
admitted that if he had been directed to stay away from union meetings he would
nevertheless have disobeyed such an order . He did not recall telling Marino that
he was "over 21," but admitted that he might have made such a statement . I deem-
it unnecessary . to resolve this conflict.
Later on February 3, Marino reported to Joseph and Edwin Long that Zukowsky
had attended the union meeting the previous night and had expressed his intention
of continuing to attend union meetings . On either that day or the next , Josephs
Long decided to discharge Zukowsky . He telephoned Singer , whom the Respondent
had recently retained as its labor attorney . Singer advised him not to take any,
action against Zukowsky until after the Board election.
Zukowsky attended the open meeting of the Respondent 's employees at Prospect
Hall on February 6 and introduced Cooper to the meeting . He also attended every-
union meeting held after February 6, and it was well known among the employees
that he was in favor of unionization in the plant. Rumors reached Marino that
Zukowsky was giving speeches at union meetings.
During the second or third week in February , Edwin Long summoned Zukowsky
to his office and stated that he had reason to believe that the powerpress department
was where the union movement had commenced . He then directed Zukowsky to-
discover which individuals were responsible for the start of union organization.
Zukowsky replied that he could not do such a thing to people with whom he had'
worked for so many years and whom he respected. He also remarked that he was
paid to be a foreman, not an informer , and that whatever the employees did outside
the plant was their own business . Edwin Long retorted that if Zukowsky thought
more of the employees than of his job he was too soft-hearted . That ended the'
discussion.34
On March 10 Zukowsky , through Stephen Dubik , a mechanic , attempted to arrange
an interview with Edwin Long. Edwin Long sent back a message through Dubik
that he would call Zukowsky when he wanted him 35 On Friday , March 12, Singer
informed Joseph Long by telephone that the Board election was final and the certifica-
tion about to issue.36 This was recognized by the Longs and Marino as the signal
33 According to Zukowsky , several times during the day Zukowsky asked Marino if Marino
had contacted Joseph or Edwin Long concerning the matter , and Marino answered that
he had not yet had an opportunity to do so.
34 The findings of fact with regard to this incident are based upon the testimony of
Zukowsky, who impressed me as a sincere and forthright witness . Edwin Long denied'
calling Zukowsky to his office during this period or having any discussion with him con-
cerning the names of the leaders of the union movement. His denial in this respect was
not convincing and is not credited.
35 General Counsel ' s Exhibit No '8 purports to be a note signed by Edwin Long and given,
to Dubik on this occasion . Edwin Long denied that he had signed the note, and samples
of his signature introduced into evidence substantiate this denial. I find that this exhibit
was not signed by Edwin Long
ae Under the Rules and Regulations of the Board, Series 6, as amended, Section 102.61,
any party may file objections to the conduct of the election within 5 days after the tally
of ballots has been furnished . By March 12 , the 5 days had elapsed and no party had filed
objections to the election
FORD RADIO & MICA CORPORATION 1063
for Zukowsky's discharge. Late that afternoon, Zukowsky was summoned to Joseph
Long's office, where Joseph and Edwin Long, Marino, and Assuero V. Carretta, a
director of the Respondent and its general counsel , were present. Joseph Long
told Zukowsky that he was discharged and handed him his checks. Zukowsky asked
the reason for his discharge. Joseph Long responded: "I have reasons of my own."
Zukowsky then collected his personal effects and left the plant . The word "Dis-
charged" and the date, March 12, were entered on Zukowsky' s personnel record. On
the following Monday, March 15, two diesetters, Ernest Campanelli and Joseph
"Joe-Joe" Allutto, were jointly promoted to foremen of the powerpress department
in Zukowsky's place.
Over the March 12-15 weekend, through word of mouth and telephone calls,.
Morselli and a number of employees named in the complaint learned that Zukowsky
had been discharged. As has been previously described, Zukowsky joined the group
of disgruntled employees across the street from the plant on the morning of March 15,
and discussed the situation with a policeman who appeared upon the scene and also
with Marino about an hour later in the center of the street. From there, Zukowsky
went with the women, who had stayed away from work, to McGuire's Tavern where
they conferred with Mdrselli. On the following day, March 16, Zukowsky again
appeared across the street from the plant before the workday commenced . Morselli
toldZukowsky that he did not consider it advisable for him to remain in the vicinity
of the strike, but Zukowsky insisted that he wanted to do whatever he could to
help the women "go back . . . with some kind of respectful situation in the plant,
where they would be treated as workers and not discriminated against as in the past."
Zukowsky then joined the picketing. He has not worked for the Respondent since,.
nor has he made any attempt to obtain reinstatement.37
b. Contentions and conclusions
The complaint alleges that the Respondent discharged Zukowsky on or about March
12, and thereafter refused to reinstate him, "because he refused to carry out Respond-
ent's orders to spy upon the organizational activities of Respondent's employees and
report thereon to Respondent, and refused otherwise to interfere with, restrain and
coerce said employees in their organizational activities." The answer admits that
the Respondent discharged Zukowsky, but alleges that his discharge was "for cause."
At oral argument the Respondent maintained that Zukowsky was discharged for "good
and sufficient cause . namely, some form of union activity."
A review of Board and court cases on the subject indicates that the only time the
discharge of a supervisor interferes with the rights of rank-and-file employees is when
it is based upon the supervisor's failure to engage in unfair labor practices specifically
demanded by the employer 38 The Act leaves employers free to discharge supervisors
37 The evidence concerning Zukowsky also included several facts which I consider
immaterial :
(1) There is evidence indicating that, during the picketing, Zukowsky made threatening
gestures with an automobile jack toward a nonstriker entering the plant. As it is deter-
mined below that the discharge of Zukowsky did not violate the Act, it is unnecessary to
decide whether this picket-line incident was of such a nature as to cause the withholding
of Zukowsky's reinstatement.
(2) Marino testified that, during February, lie received a number of anonymous letters
denouncing Zukowsky. They were not produced in evidence.
(3) Several witnesses for the Respondent testified that Zukowsky urged employees to
support the Union in the plant during working hours. Zukowsky denied generally that he
had done so, but admitted asking one employee, during working time, why she had not
attended a union meeting.
(4) Zukowsky testified that, early in March, Joseph Allutto talked back to him; that a
mica distributor refused to take orders from him ; and that upon inquiry Zukowsky was
told by Marino that Edwin Long had instructed him to tell the employees in the power-
press department not to obey Zukowsky's orders. Joseph Allutto denied any disobedience.
(5) At the time of his discharge, Zukowsky received 4 checks: the first represented
salary for the workweek ending March 9 ; the second was for salary for March 10, 11, and
12; the third was the refund of money standing to Zukowsky's credit in his payroll pur-
chase of Government bonds account; and the fourth appears to have been either a bonus
of 6 percent on his salary or a week's severance pay.
a, N. L. R. B. v. Inter-City Advertising Co., 190 F. 2d 420, 422 (C. A. 4), cert. denied 342
U. S. 908; N. L. R. B. v. Columbus Iron Works, 217 F. 2d 208, 209 (C. A. 5) ; N. L. R. B. v.
Edward G. Budd Mfg. Co., 169 F. 2d 571, 578 (C. A. 6), cert. denied 335 U. S. 908; Texas
Company v. N. L. R. B., 198 F. 2d 540, 548-544 (C. A. 9) ; Solo Cup Company, 114 NLRB
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any other reason 39 The issue before me with regard to Zukowsky therefore
narrows down to: Is the evidence sufficient to prove that he was discharged because,
during the second or third week in February, he refused to spy upon the activities
of the employees when directed to do so by Edwin Long?
I turn first to a consideration of the time when the Respondent determined upon
its ultimate course of action in this regard. It has been found that the Respondent
arrived at its decision to discharge Zukowsky on February 3 or 4, some time before
Zukowsky's conference with Edwin Long relied upon by the General Counsel as the
reason for the discharge. The General Counsel argues that if the decision had been
reached at such an early date, it is not likely that the Respondent would have waited
until March 12 to discharge Zukowsky. However, Singer advised Joseph Long to
withhold action against Zukowsky until after the election. It is therefore reasonable
to conclude, and 1 find, that on February 3 or 4, the Respondent determined to dis-
charge Zukowsky, but delayed effectuation of this decision until March 12 because of
the advice of its attorney and the fear that such action might be seized upon by the
Union as a ground for upsetting the election.
I next examine the Respondent's motive in discharging Zukowsky. At the State
court trial, Marino testified that Zukowsky was discharged for intimidating employees,
soliciting for the Union, and falsifying records; and Joseph Long similarly testified
that Zukowsky had been discharged for falsifying records and threatening employees.
In the instant hearing, Marino testified that "the only reason" Zukowsky was dis-
charged was because he indicated on February 3 that he was not going to obey
Marino's order to stay away from union meetings. The General Counsel points out
that the explanation given by Marino at the instant hearing is subject to question,
-because the decision to discharge Zukowsky was alleged to have been reached before
he actually disobeyed Marino's order. However, in view of Zukowsky's announced
intent to disobey the order, it was not necessary for the Respondent to wait until he
had actually done so. In any event, the decision to discharge having been made on
February 3 or 4, it is obvious that Zukowsky's later conduct in his conference with
Edwin Long during the second or third week in February could not have affected a
decision already made. And this is so no matter how Edwin Long's instructions to
Zukowsky on this occasion are interpreted. It follows that the contention that
Zukowsky was discharged because he refused to obey Edwin Long's directions to spy
upon the employees' union activities must fall. Accordingly, whether or not Zu-
kowsky's discharge was based upon his union activities, it was not violative of the Act.
I therefore grant the Respondent's motion, made at the end of the hearing, to dismiss
that part of the complaint which deals with the discharge of Zukowsky.40
3. Warnings to refrain from striking or other concerted activities
a. Contentions of the parties
The complaint alleges that, at various times between February 5 and May 4, the
Respondent "warned its employees to refrain from assisting, becoming members of,
or remaining members of, the Union, or from engaging in a strike or other concerted
activities." The answer denies this allegation. The conduct attributed to each of the
Respondent's representatives will first be discussed, in order of their authority. There-
after the broader aspects of this allegation will be considered.
b. Joseph Long
Joseph Long was, at all material times, president of the Respondent. There is no
dispute, and I find, that he was a supervisor within the meaning of the Act.
121 ; Dovedown Hosiery Mille, 102 NLRB 1592, footnote 5; U. S. Phosphoric Products
Division, Tennessee Corporation. 99 NLRB 654, 662; Tri-Pak Machinery Service, Inc., 94
NLRB 1715, 1717-1718; Pure Oil Company (Illinois Producing Division), 90 NLRB 1661,
1662; Accurate Threaded Products Company, 90 NLRB 1364; and Alabama Marble Com-
pany, 83 NLRB 1047, 1074-1075.
89 N. L. R. B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C. A. 5), relied upon by
the General Counsel , is distinguishable from the instant case on its facts. There, two
supervisors were discharged for failure to carry out specific directions to "break the Union
up" by resort to unfair labor practices.
ao Neither the original charge, . served on March 23 , 1954, nor the amended charge, served
on November 1, 1954, mentioned Zukowsky's discharge. It was first set forth in the com-
plaint , served on November 30, 1954. In its answer , the Respondent contended that the
6 months' statute of limitations in Section 10 (b) of the Act barred any finding of unfair
FORD RADIO & MICA CORPORATION 1065
On March 19, Saint Joseph's Day, the plant was being picketed. As Joseph and
Edwin Long entered the plant that morning, some unidentified pickets said to Joseph
Long: "Happy Saint Joseph's Day, Mr. Long." Joseph Long replied in a voice loud
enough for several of the pickets to hear: "Thank you girls, but I don't think you will
ever see the inside of Ford Mica again ." 41 It is hereafter found that the employees
were then engaged in activities protected by the Act. In view of this fact, Long's threat
that their action in so doing would cause them to be barred from future employment
by the Respondent violated the Act 42
c. Edwin Long
As previously set forth, Edwin Long, the son of Joseph Long, has been executive
vice president of the Respondent since 1953. There is no dispute, and I find, that
he was a supervisor within the meaning of the Act.
Edwin Long's direction to Zukowsky to discover the individuals responsible for
the start of union organization has already been described. The General Counsel
contends that Edwin Long's conduct in this respect was violative of tLie Act. How-
ever, the Board has recently held that an employer's mere instructions to a supervisor
to ascertain information regarding the union activities of employees, unaccompanied
by directions to use unlawful means in obtaining the desired information, and not
carried out, do not violate the Act 43 I am unable to detect in Edwin Long's instruc-
tions to Zukowsky any demand that unlawful means should be used to obtain the
information sought. Moreover, Zukowsky neither carried out the directions nor
communicated them to any rank-and-file employee. Accordingly, I find that the
conduct of Edwin Long in this regard did not violate the Act.
At some date during the picketing, thus between March 15 and May 5, Edwin
Long stated in a voice loud enough for some of the pickets to hear: "I will fight the
case to the end. I will never take them back." 44 This statement, like the similar
remark of Joseph Long on March 19, threatened reprisal against the pickets because
of their protected activities, and hence violated the Act.
As hereafter found, William Avella was a supervisor within the meaning of the
Act. About 3 weeks before the election, Edwin Long stated to Avella: "They think
they are bad off now. Wait until they get the Union and they will see." He added
that the employees would not be permitted to smoke at their work if the Union
came in45 The only employee who testified concerning this conversation was Anne
Donnelly, an alleged discriminatee. According to her, the remark was "obviously"
made so that employees could overhear. However, I consider inconclusive the
evidence that Edwin Long intended this remark to reach the ears of rank-and-file
labor practices based upon Zukowsky's discharge. At the hearing, the Respondent moved
to dismiss the portion of the complaint dealing with Zukowsky's discharge ; the motion
was denied. See cases cited in footnote 31, supra,
41 The findings of fact with respect to this incident are based upon the testimony of
Frances Stanton, corroborated by that of Johnson and Marcia, all of whom are alleged
dischargees. Although Edwin Long testified, he did not mention this particular incident.
Joseph Long denied telling the pickets that they would never see the inside of the plant
again. His denial in this respect is not credited.
42 Seyfert Foods Co., 109 NLRB 800, 815 ; and Gala-Mo Ar's, Inc., 113 NLRB 1.
Marcia further testified that Joseph Long called the pickets "rats on the outside" and
used "bad" language. I deem such testimony immaterial.
43 Florida Builders, Incorporated, 111 NLRB 786. In that case the Board overruled
H. N. Thayer Company, 99 NLRB 1122, 1125, enfd. as mod. and remanded 213 F. 2d 74S
(C. A. 1), cert. denied 348 U. S. 883, and returned to the earlier doctrine of Atlantic Stages,
78 NLRB 553, enfd. 180 F. 2d 727 (C. A. 5), rehearing granted in part March 11; 1950,
rehearing granted April 10, 1950, further rehearing denied June 16, 1950; and Empire
Pencil Company, 86 NLRB 1187, enfd. 187 F. 2d 334 (C. A. 6). See also Airfan Radio
Corporation, Ltd., d/b/a HFSD-TV, 111 NLRB 566, 576, in which a supervisor was in-
structed to report union incidents. The Trial Examiner found no violation of the Act.
No exceptions to this finding were filed.
44 This finding of fact is based upon the credited testimony of Victoria De Carlo, an
alleged dischargee. Edwin Long denied, in general terms, that he made any threats to
employees, but he did not specifically deny making the statement attributed to him by
De Carlo.
4e Although Avella testified , he did not mention this incident. Edwin Long denied mak-
Ing any such statements to Avella ; his denial is not credited.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers. Consequently, the conversation must be treated as one between supervisors.
As such, it did not violate the Act 46
d. John Marino
John Marino was, at all material times, an officer of the Respondent and superin-
tendent of its plant. He is Joseph Long's brother-in-law. There is no dispute, and
I find, that he was a supervisor within the meaning of the Act.
As previously described, in a telephone conversation with Zukowsky about 6 p. in.
on February 2, Marino suggested without success that the union meeting scheduled
to be held that night be postponed for 24 hours. It is not clear whether the General
Counsel and the Union contend that Marino's conduct in this regard was violative of
the Act. As it contained neither a promise of benefit nor a threat of reprisal, I
find that Marino's request that the union meeting be postponed falls within the realm
of free speech protected by Section 8 (c) of the Act.
As set forth above, on the morning of March 15, after conferring with Zukowsky
in the middle of the street, Marino turned to the women who had failed to come to
work that day and stated: "Nobody is fired. The door is wide open, come on in."
Whether the General Counsel and the Union maintain that this statement constituted
illegal solicitation of individual strikers to abandon the strike is not clear. However,
as will hereafter appear, this was an economic strike. Accordingly, the Respondent
had the right to employ replacements to take over the strikers' jobs. There was here
no threat or promise of benefit designed to coerce the strikers into returning to work.
Nor did the remark constitute an integral part of a pattern of illegal opposition to
the purposes of the Act nor does it appear to be designed to undermine the Union
and to demonstrate that the Respondent sought individual rather than collective
bargaining. Under these circumstances, therefore, Marino's remark to the strikers
was not violative of the Act 47
It will further be recalled that, in a discussion with Morselli on March 18, Marino
stated that the strikers could stay in front of the plant "until next winter" if they
desired, but the Respondent would not take them back. This was a clear threat,
similar to those made by the Longs, that the Respondent would never rehire the
strikers. However, it was not made in the presence of any employee, nor is there any
proof that it was repeated to any employee. The question then arises whether such
a statement made to a representative of the Union and not communicated to any
employee constitutes restraint, interference, or coercion of the employees' rights.
The Board has had this issue before it several times. In six cases coercive statements
made to union representatives not in the presence of employees were not held to be
violative of the Act.48 But in 4 other cases such conduct was found to be proscribed,
the Board reasoning in 1 case that the statements "were of a character normally to
be calculated to reach the employees and to discourage them from joining or assisting
the Union," and in another that the statements were "very likely to be relayed to
the employees whom [the union agent] represents." 49 I consider the most recent
pronouncement of the Board, the Reilly Cartage decision, binding upon me. There
the Board refused to find a violation under similar circumstances. As the Reilly case
cannot be distinguished on its facts from the instant case,50 it is dispositive of the
48 National Mattress Company, et al., 111 NLRB 890, 891.
Stanton testified that, on March 19, Edwin Long made an indecent gesture toward the
pickets, adding in a loud voice : "This is for you, girls." I consider such testimony
immaterial
41 Kansas Milling Company v. N. L. R B., 185 F. 2d 413, 419-420 (C. A. 10) ; N L. R. B.
v. Jackson Press, Inc, 201 F. 2d 541, 546 (C. A 7) ; The Texas Company, 93 NLRB 1358,
1360-1; and McLean-Arkansas Lumber Company, Inc., 109 NLRB 1022, 1040. Compare
ClintonPoods , Inc., 112 NLRB 239; and Wheeling Pipe Line, Inc., 111 NLRB 244.
98 N. & W. Overall Company, Inc., 51 NLRB 1016, 1017; Wingert Contracting Co., Inc.,
'72 NLRB 244; Parkside Hotel, and Parkside Hotel, Inc., 74 NLRB 809, footnote 4, enf.
denied 179 F. 2d 15 (C. A., D. C.), vacated March 1, 1949, reinstated and supplemented,
October 31, 1949; M. Snower & Company, Division of Opelika Textile Mills, Inc., 83 NLRB
290, 291; Everett Van Kleeck it Company, Inc, 88 NLRB 785, footnote 4, enfd. 189 F. 2d
516 (C. A. 2) , and Reilly Cartage Company, 110 NLRB 1742.
49 The Federbush Co. Inc, 34 NLRB 539, 547-548; Samuel Rosenblatt , 56 NLRB 769;
Pure Oil Company (Illinois Producing Division), 90 NLRB 1661, 1662; and Arlington-
Fairfax Broadcasting Company, Inc., (Radio Station WEAM), 95 NLRB 846, 848, 856,
enfd. 204 F. 2d 128 (C. A. 4).
60 In the Reilly case, as here, the union represented only a minority of the employees.
I do not decide whether a different result would be reached where a union represents a
majority.
FORD RADIO & MICA CORPORATION 1067
issue herein. I conclude that Marino's threat to Morselli on March 18 did not
violate the Act.
e. Henry Phillips
In February and March, Henry Phillips was foreman of the splitting department.
He also acted as part-time foreman of the gauging department during the absence
of the regular foreman of that department, which was about half the time. It was
stipulated, and I find, that at all material times Phillips was a supervisor within the
meaning of the Act.
In the gauging department there are long tables at which the gaugers sit, with
aisles between. Violet Etheridge, Victoria De Carlo, and Anne Durkin, alleged
-dischargees who were gaugers, and Kathleen Corkery, an alleged dischargee who was
floor girl in the splitting department, testified that late in February and earlyin March
Phillips frequently walked through the aisles of the gauging department and said in
a loud voice that employees who joined the Union would lose their jobs, and that
Joseph Long would padlock the plant if the Union came in. Phillips denied mak-
ing such statements. His denial in this respect was corroborated by about 26 gaugers
who were witnesses for the Respondent, all of whom testified that they never heard
Phillips make any such threats. At least three of them (Catherine Hart, Alice Ma-
guire, and Anna Gunderson) were regularly seated at tables close to those occupied
by De Carlo and Etheridge. It is significant that although Isabel Cheeseman and
Anne Donnelly, gaugers and alleged dischargees, testified, they made no reference to
these statements which Etheridge, De Carlo, Durkin, and Corkery attributed
to Phillips. In so large a group of witnesses, my impressions regarding credibility
varied considerably from witness to witness. However, on the entire record, includ-
ing the silence of Cheeseman and Donnelly on the subject, I find that the General
Counsel has failed to establish by a preponderance of the evidence that Phillips made
the remarks attributed to him in this respect.
Etheridge, Donnelly, and Corkery also testified that late on the afternoon of March
12, after Zukowsky had been discharged, Phillips announced in the gauging depart-
ment in a loud voice that this was only the beginning; that all those who had signed
union cards would go next. Cheeseman, De Carlo, and Durkin did not mention this
incident in their testimony. Phillips denied making this statement. His testimony
in this respect was corroborated generally by the approximately 26 gaugers called as
witnesses by the Respondent who, as previously described, testified that they never
heard Phillips make any threats. Under all the circumstances, I conclude that the
General Counsel has failed to prove by a preponderance of the evidence that Phillips
made the alleged statement.
On February 3, the day after the Union's first meeting, Corkery, Phillips, and
'Stanley "Pittsburg" Wiecezak, a receiving clerk, were discussing the union meeting
held the previous night. Phillips turned to Wiecezak and said: "Ask Kathleen
[Corkery] about it, she was there." Corkery denied that she had ever told Phillips
that she attended the union meeting. She did not, however, testify whether she
had so informed any other representative of the Respondent, and I cannot make
an assumption either way in this respect. I accordingly conclude that the General
Counsel has failed to prove by a preponderance of the evidence that Phillips' re-
mark on this occasion was tantamount to a warning that the Respondent was spy-
ing on Corkery's union activities.
About a week before the Board election, Corkery had three separate conversa-
tions with Phillips, in each of which Phillips remarked that any employee who signed
a union card would be discharged and that Joseph Long would close the plant if the
Union came in.51 Each such statement was a clear threat of reprisal for protected
concerted activities, and constitutes a violation of the Act.
Donnelly attended a conference at the Board's Regional Office on February 19, with
regard to the Union's pending petition for an election. Donnelly testified that when
she returned to the plant Phillips said to her: "Well, you will find yourself outside
looking in." Phillips denied that he had any conversation with Donnelly in February
or March concerning the Union. The record does not show whether Donnelly had
obtained permission to attend the conference at the Board's offices,52 or whether she
returned to the plant promptly upon the completion of this conference. Assuming
that Phillips uttered the threat in question, it is ambiguous. It might have been aimed
at her union activities, but it could also have referred to her leaving the plant with-
out permission, or returning late. I am unable on the record before me to assume
si This finding of fact is based upon the testimony of Corkery. Phillips denied making
the statements attributed to him by Corkery ; his denial in this respect is not credited.
Es Avella, Donnelly's foreman at the time, was unable to recall if Donnelly was one of
the employees granted permission to attend this conference.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the former . I conclude that the General Counsel has failed to prove by a preponder-
ance of the evidence that on this occasion Phillips threatened reprisals against Don-
nelly because of her union activities.
About a day or two after the first union meeting on February 2, Phillips told
Durkin that the plant would dose if the employees voted for the Union . Again,
about a week before the Board election , Phillips informed her that if the Union came
in: "You won't be able to take a day off , and you won 't be able to talk, and you
won't be able to go the ladies ' room when you feel like it" and that the Respondent
would hire employees of "every nationality ." 53 I find that these statements con-
stituted clear threats of reprisal for protected activities , and therefore were violative
of the Act.
f. William Avella
The General Counsel takes the position that, in February and March, William
"Willie" Avella was either a supervisor within the meaning of the Act or an agent
of the Respondent. The Respondent maintains that during February and March he
was a supervisor. The General Counsel's witnesses generally testified that during.
this period Phillips was not only foreman of the splitting department but also
foreman of the gauging department, and that Avella was a nonsupervisory employee
in the gauging department under Phillips. Avella, Phillips, Marino, and a number
of rank-and-file employees testified that during the period in question Avella was
foreman of the gauging department, but that he had additional duties which took
him out of the gauging department approximately half the time; and that during
Avella's frequent absences from the gauging department Phillips temporarily acted'
as foreman of that department. I credit the testimony of Avella, Phillips, and
Marino on this point and find that Avella was a supervisor within the meaning of
the Act during February and March.
De Carlo failed to punch her timecard properly three times on March 8 and 9.
On March 9 she went to the rack where the timecards were kept and began looking
through them because, she explained, she wanted to determine if she had accidently
punched the card of another employee. While De Carlo was thus engaged, Avella
ordered her away from the card rack, remarking: "Pretty soon you won't have a
card to punch." The General Counsel contends that the implicit threat of discharge
was a warning to refrain from union activities. It is true that De Carlo was a union
adherent. 'But there is no evidence that Avella, or any other representative of the
Respondent other than Zukowsky,54 knew that she was active on behalf of the Union.
Moreover, it may well be that De Carlo was violating some plant rule in examining
the timecards of other employees. Accordingly, the contention of the General
Counsel that Avella's remark constituted a threat to refrain from union activities
lacks merit.
Donnelly testified that, on February 5, Avella told his sister-in-law, Margaret, an
employee of the Respondent, and Cora Scott, a gauger, not to attend the open meet-
ing scheduled to be held at Prospect Hall on the following day, and that Helen Shea,
a gauger, was present during this incident. Avella denied telling his sister-in-law or
anyone else not to attend the meeting. Avella's sister-in-law did not testify. Al-
though Cora Scott and Helen Shea testified, neither mentioned this incident. I credit
Avella's denial in this repect and find that the conduct attributed to him by Donnelly
did not occur.
Durkin testified that she overheard Avella tell Wiecezak and Casimir "K. 0."
Fabriski, a shipping clerk, that anyone joining the Union would lose his job. Avella
denied making such a statement. Wiecezak and Fabriski testified generally that
none of the foremen had warned them that they would be discharged if they joined
the Union. I credit Avella's denial in this respect and find that the conduct attributed
to him by Durkin did not take place.
g. Others 4
Two witnesses for the General Counsel attributed threats to Mary Frestad. The
General Counsel and the Union contend that during February and March Frestad
53 These findings of fact are based upon the testimony of Durkin. Phillips denied mak-
ing the statements attributed to him by Durkin ; his denial is not credited.
Durkin further testified that she overheard Phillips say : "Only the damned Irish voted
for the onion " I look upon this remark as protected free speech.
64 As Zukowsky attended union meetings, it may be assumed that he knew the identity of
union supporters. However, as he was himself prounion in sympathies and as he refused
to disclose to Edwin Long the names of the leaders of the union movement, it would be
unrealistic to charge the Respondent with Zukowsky's knowledge.
FORD RADIO & 'MICA CORPORATION 1069
was a supervisor; and in any event, in view of her position in the plant, statements
made by her "would normally be . . . construed by the employees to represent the
position of management." The Respondent, on the other hand, maintains that
Frestad was not a supervisor. Frestad was checker or floor girl in the gauging depart-
ment; she conducted spot checks and prepared quality control charts. According to
witnesses for the General Counsel, she reported directly to Marino; according to
Avella, she was under Avella's immediate supervision. Avella testified credibly that
Frestad assigned work according to his instructions, and had no authority to hire
or discharge employees. There is a dispute in the evidence as to whether or not she
had authority to grant employees time off upon request. Corkery, one of the alleged
dischargees, testified that Frestad's duties in the gauging department substantially
corresponded to Corkery's duties in the splitting department; the parties apparently
agree that Corkery was not a supervisor. Frestad voted in the Board election, but
her ballot was challenged. On March 11, as previously set forth, the parties stipu-
lated that she was ineligible to vote and that the challenge to her ballot should be
sustained. This stipulation contained a statement that Frestad was a supervisor within
the meaning of the Act. While the stipulation is entitled to some weight, it is not
conclusive. The controlling factor is the nature of Frestad's duties and the extent
of her authority. In view of all the evidence on this point, I am convinced, and find,
that during the period in question Frestad was not a supervisor within the meaning
of the Act, nor was she an agent of the Respondent, as that term is defined in the
Act. It follows that the Respondent cannot be held accountable for statements
attributed to her.
Witnesses for the General Counsel charged Louise Von Petzold with implying that
an employee had been discharged because she had been seen talking to a union
organizer, and also with rejecting a striker's application for reemployment at a time
when jobs were available which this particular striker was qualified to fill. Von
Petzold is a sister of Marino and a sister-in-law of Joseph Long. She is not an officer
or director of the Respondent nor does she own any of the Respondent's capital
stock. Her title is payroll clerk; her duties include keeping the personnel records
and drawing up the weekly payroll. In addition, she has charge of the Respondent's
records with regard to the hospitalization insurance program and the group life
insurance policy. In view of Von Petzold's duties, I conclude that she lacks
authority on behalf of the Respondent to explain the reason for an employee's dis-
charge, or to accept or reject a striker's application for reinstatement. And the fact
that she is related to Marino and Joseph Long does not require a different result.
Accordingly, her actions in these regards are not chargeable to the Respondent.
Lucille Long, another of Marino's sisters and a sister-in-law of Joseph Long, was
a bookkeeper in charge of the cashbook, the salesbook, and the payment of bills.
Witnesses for the General Counsel testified that sometime in February either Lucille
Long or Von Petzold said to Phillips, in a voice loud enough for nearby employees
to hear: "You will always be able to get a job, but what about these poor slobs?"
and accompanied the statement with a sweep of her hand toward the employees.
Phillips and Lucille Long denied that Lucille Long had made such a remark. The
General Counsel contends that the statement inferred that the plant would be shut
down if the Union came in, was intended for the employees' ears, and the Respondent
is responsible for it because it was made to a foreman. Assuming that the remark
was made, that such an inference can be placed upon it, and that it was intended to
be overheard by the employees, I cannot agree that the Respondent is responsible
therefor simply because Phillips, a foreman, was present. By his mere silence in the
face of the statement, Phillips cannot be said to have adopted it as his own. Accord-
ingly, it was the statement of a nonsupervisory employee for which the Respondent
is not chargeable.
Witnesses for the General Counsel further testified to certain conduct engaged in by
Ernest Campanelli, Serena Annacreanta, and Josephine Allutto. It is conceded that,
Sat the times these individuals allegedly engaged in the conduct in question, they were
rank-and-file employees. Moreover, there is no proof that they were agents of the
Respondent. It follows that such conduct cannot be charged to the Respondent.
Etheridge testified with regard to certain threats alleged to have been made to her
by a truckdriver referred to in the record only as "Campy." The parties stipulated
that Campy was not a supervisor; the Union took the position that it was not even
certain that he was an employee of the Respondent. The General Counsel, however,
maintains that Campy bore "a special relationship to members of management." But
there is no evidence that Campy was either a supervisor or an agent of the Respondent.
The Respondent is therefore not responsible for his actions.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
h. Suggesting the formation of an inside union
As has been previously described, a committee of employees conferred with Joseph
Long and other management representatives on February 5 concerning certain griev-
ances of the employees. The Respondent was then aware of the Union' s organizing
campaign and knew that a representation petition had been filed . During the con-
ference Joseph Long remarked that so long as the employees wanted a union why not
have an inside union? Marino suggested that the employees could select a grievance
committee composed of a certain number of representatives from each department.
Joseph Long commented that he thought that was a good idea. One of the members
of the committee replied that this was not a matter for the committee to decide, but
was up to all the employees; he Therefore proposed that the matter be submitted to
a meeting to which all employees would be invited. Another member of the com-
mittee asked Joseph Long for permission to circulate a notice announcing the meet-
ing and requested him to sign the notice. Joseph Long consented to circulation of the
notice but refused to sign it because of the pendency of the Union's representation
petition. The committee members then left Joseph Long's office. One employee ar-
ranged for the hiring of Prospect Hall for the following day; another engaged Cooper
to explain the purposes and functioning of inside, independent unions; still another
contacted the Union and requested that a representative be sent to the meeting to
explain the purposes and functioning of the Union. Zukowsky and some of the com-
mittee members arranged to have a notice of the meeting typed by a typist employed
by the Respondent on paper bearing the Respondent's letterhead. When this came to
Marino's attention he reprimanded Zukowsky, destroyed the notice, and permitted it
to be retyped on paper which did not contain the Respondent's letterhead. This re-
typed notice was then circulated in the plant during working time with Marino's con-
sent. Other than Zukowsky, no representative of the Respondent attended the meet-
ing at Prospect Hall on February 6. The expenses of the meeting were ultimately
defrayed by the Union.
The General Counsel contends that the suggestions of Joseph Long and Marino
that the employees establish an inside, independent union violate the Act. There is
some question whether such conduct is encompassed within the allegations of the
complaint. Aside from that question, I find nothing in the conduct of the Respond-
ent's representatives in this regard which can reasonably be viewed as promises of
benefit or threats of reprisal for union activities. I therefore conclude, in agreement
with the Respondent's contention, that the Respondent's conduct in this respect was
privileged under Section 8 (c) of the Act 55
i. The no-solicitation rule
On February 8, early in the Union's organizing campaign, the Respondent posted
on its bulletin board the following notice:
During the attempt by the Union to organize our plant all employees are for-
bidden to pass petitions or to solicit membership on company time and on com-
pany premises.
The mgt.
The General Counsel maintains that this notice was illegal on its face because it
prohibited union solicitation on company property even during nonworking time. It
is true that, if so construed, the notice would be proscribed. However, I consider
such an interpretation untenable. The notice refers to company time and company
premises in the conjunctive by using the word "and", rather than in the disjunctive
by using the word "or." 56 I therefore construe it to forbid solicitation on company
premises during working hours only. The Union further contends that the notice, on
its face , prevented solicitation on behalf of the Union while permitting solicitation,
against union adherence. I cannot agree. The reference in the notice to the passing&3
of petitions can reasonably be understood as applying to all petitions, whether in
favor of or against unionization. Viewed in this light, it was not discriminatory.
The General Counsel further contends that, even if the rule itself was valid, it
was enforced in a discriminatory manner. As previously related, during the Union's
campaign the Respondent distributed circulars to the employees . These pointed
out the disadvantages of unionization and urged the employees to vote against the
Union. The General Counsel concedes that they did not contain threats of reprisals
or promises of benefit . He maintains , however, that circulating this literature in the
5 Atlas Storage Division, P & V Atlas Industrial Center, Inc., 112 NLRB 1175.
se Compare B. M. C. Manufacturing Corporation, '113 NLRB 823, where a rule prohibit-
ing solicitation on company premises or company time was held violative of the Act.
FORD RADIO & MICA CORPORATION 1071
plant during working time violated the Respondent 's own rule against solicitation,
and hence was discriminatory. While that was the law at the time of the hearing
herein ,57 the Board has more recently held that an employer may with impunity
distribute literature to his employees during working time , despite the existence of
a no-solicitation rule, so long as the literature itself is devoid of threats of reprisal
or promises of benefit 58 I deem this most recent pronouncement of the Board
binding upon me . As it is diapositive of the issue herein , I conclude that the Re-
spondent 's distribution of circulars while at the same time enforcing its no-solicitation
rule against the Union and the employees did not violate the Act.
To further support his position regarding the alleged discriminatory enforcement
of the no-solicitation rule, the General Counsel claims that it was enforced against
union adherents while employees opposed to the Union were permitted to ignore it.
The record shows that Zukowsky observed employee Edith Cirillo walking around
during working hours and directed her to resume work. It is not clear, however,
whether this occurred before or after the posting of the notice; Zukowsky placed it
as taking place after the posting of the notice but Morino testified that it occurred
on February 4. Zukowsky likewise ordered Annacreanta to cease walking around
the powerpress department during working time. Cirillo was in favor of the Union;
Annacreanta was apparently hostile to it. But there is no showing that the respective
sympathies of these employees were known to representatives of management, other
than Zukowsky. Annacreanta was also seen by Zukowsky walking around in other
departments during working time. However, there is no evidence that any other
representative of management observed this. On two occasions after the posting
of the notice, Avella also may have taken measures to enforce it. On one such
occasion, Durkin testified that she passed a dollar bill to another employee, whereupon
Avella asked her whether she had passed a note. When she explained that it was
note a note, Avella remarked: "So long as it wasn't a note about the Union." This
testimony was denied by Avella. Durkin further testified that on another occasion
after the Union's advent while she was talking to employee Donnelly, during working
hours, Avella ordered her to be quiet. Durkin was in favor of the Union, but there
is no evidence that any representative of the Respondent, other than Zukowsky,
was aware of this. After February 19, it was probably known to Phillips that
Donnelly was a union supporter, as she absented herself from the plant that day
to attend a meeting at the Board's office concerning the pending election. However,
it is not clear whether the incident referred to above in which Durkin engaged in
a conversation with Donnelly occurred before or after February 19. In my opinion,
even if the events described in this paragraph occurred , none of them indicate
that the Respondent knowingly and deliberately enforced the no-solicitation rule
against union adherents , while at the same time permitting employees opposed
to the Union the free run of the plant. The most they prove is that supervisors
made efforts to enforce the no -solicitaiton rule. Even these were not completely
successful, for after the posting of the rule, Angelo Marchese, an employee in favor
of the Union, spoke to employee James Borrelli with regard to the Union during
working time. It does not appear whether any supervisor observed this conversation.
There remains for consideration the motive of the Respondent in promulgating and
enforcing the no -solicitation rule. In the early days of the Union 's campaign, Edwin
Long and other representatives of management observed employees passing out
applications for union membership in the plant during working hours. Edwin Long
testified that this was why the rule was put into effect. The Respondent's attorney
took the position at the hearing that the union campaign divided he employees
into "two camps" and that the no-solicitation rule was designed to "stop the trouble
in the plant" rather than to protect against any decline in productivity . He main-
tained : "We never claimed that our production . . . was affected . from the
point of view of safety , if nothing else, it was imperative that we do something about
it. . . In order to prevent any outbreak of hostilities , it was necessary that we do
something along these lines to prevent it." Furthermore , charitable campaigns had
admittedly been carried on in the plant during working time with the Respondent's
permission . Phillips was designated as the person responsible for conducting solicita-
tions for charity. Thus the 'Respondent permitted solicitation on behalf of the
American National Red Cross and the March of Dimes. Moreover, the Respondent
allowed the local fire department to sell chances to the employees on working time,
the proceeds from which were to be used to distribute Christmas baskets to the
needy. In addition , the Respondent has never barred from its plant a Sister from
sr See, for example, KFSD-TV, 111 NLRB 566, 567.
sa Nutone, Incorporated, 112 NLRB 1153, pet. to review pending sub nom. United Steel
workers of America, C. I. 0. v. N. L. R. B. (C. A., D. C.).
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a religious order who wished to make a collection among the employees during
working hours. Finally, the employees frequently took up collections among them-
selves when one of their number was married or suffered a death in his immediate
family. In such instances, it was customary to clear the matter in advance with
Marino.
In the Standard-Coosa-Thatcher case 59 the employer promulgated a rule for-
bidding solicitation for or against the. union during working hours, while at the same
time permitting charitable campaigns. The Trial Examiner, pointing out that solici-
tation for union membership "is not infrequently attended by heated arguments
stirring conflicting emotions," drew a distinction between that kind of solicitation and
charitable solicitation, and concluded that the rule had been adopted for a proper
purpose, namely, to obviate any interference with production which might be caused
by union solicitation. The Board disagreed. In finding that rule violative of the
Act, the Board found "most important" the fact that it "applied only to union
solicitation ," while campaigns for various social and charitable purposes were per-
mitted. So far as I am aware, this reasoning has never been repudiated by the
Board ; indeed it seems to have been followed in one recent case 60 In view of
the charitable and social solicitation permitted by the Respondent, the admission
of the Respondent's attorney at the hearing that it was not primarily interested in
the possible adverse effect of union solicitation on production, the lack of evidence
to support the contention that the union solicitation presented a safety problem
or that there was reasonable danger of violence,61 other unfair labor practices
committed by the Respondent, and the wording of the notice itself which clearly
applied only "during the attempt by the Union to organize," I conclude that the
Respondent's motive was not its concern over the possible decrease of production due
to union organizing , or matters of safety, but on the contrary, a desire to impede and
interfere with the Union's campaign.62 It follows that the Respondent violated the
Act by promulgating and enforcing the no-solicitation rule. And while I doubt that
this matter is covered in the complaint, a finding of unfair labor practices may be
based thereon, because the conduct in question is closely related to that alleged
in the complaint , and the issue was fully litigated at the hearing.63
j. The alleged "reign of terror"
The General Counsel and the Union maintain that, from the start of the Union's
campaign until the beginning of the strike , the Respondent embarked upon a "reign
of terror" designed to intimidate union adherents. Aside from matters already dis-
cussed, the General Counsel contends that Avella sat at his desk in the gauging
department for at least a week during this period and watched the prounion employees
for 7 or 8 hours a day; that during the union campaign the Respondent instituted a
stricter scrap check; that the Respondent discriminatorily and coercively reduced the
amount of wages paid to four prounion powerpress operators on March 12, after
the Board election; and that Marino refused to reprimand a diesetter who used
abusive language toward a union adherent.
The evidence that Avella watched the employees in the gauging department for
7 or 8 hours each day is, in my opinion , exaggerated . Avella averaged only about 4
hours per day in the gauging department during this period, as other duties took
him out of the department about half the time. Moreover, he was foreman of
the department and was responsible for its discipline. The most that can be said of
his conduct in this respect is that he attempted to enforce the no-solicitation rule.
And if he did watch the employees, there is no basis for assuming that he purposely
was more strict in enforcing discipline with regard to supporters of the Union than
he was in enforcing it with regard to those who did not support the Union, absent
any showing that the union adherents were known to him.
59 85 NLRB 1358, 1364-5, 1382.
80 Clinton Foods, Inc., 112 NLRB 239, in which the Board upheld the Trial Examiner's
finding that the discharge of an employee for engaging in union activity during working
time was discriminatory. In so finding , the Trial Examiner remarked : "It is noteworthy
that Respondent permitted solicitation for various causes, church , charitable, and per-
sonal on company time."
e7 Compare Ramble Glass Company, 113 NLRB 577; and Caterpillar Tractor Co., 113
NLRB 553.
62 In view of this finding , I deem it unnecessary to resolve the conflicting testimony
regarding whether talking interferes with gauging.
03 Monroe Feed Store, 112 NLRB 1336.
FORD RADIO & MICA CORPORATION 1073
The evidence regarding the scrap check is equally inconclusive. A scrap check
of one sort or another has been carried on in the powerpress department for a
number of years. In October 1953 industrial engineers retained to conduct a survey
of the plant recommended, among other things, setting up a stricter system of scrap
control. By January 1954 Frederick Corbellini, assistant superintendent, and
Zukowsky were conducting scrap checks daily, which was more frequent than pre-
viously. On February 8, on orders from Marino, they commenced to grade the
quality of each operator's scrap and to record their findings.64 The exact reason for
this innovation is obscure. It might have been in anticipation of the inclusion of
female powerpress operators in the special payment-a step taken a few days later-or
it may perhaps have been due to the Union's campaign which had just commenced.
In any event, sound economic reasons for a stricter scrap check existed, and I am
unwilling to speculate that any change in the method of checking scrap was intended
to intimidate the employees.
On March 12, the second payday after the Board election and the last payday
before the strike, Johnson, Marcia, Rose Fitzpatrick, and Hattie Skalski found in
their paychecks less money than they believed they were due. All were powerpress
operators who supported the Union. All complained to Morrone. Fitzpatrick was
told: "We cut you this week." She looked for Morrone later in the day to obtain a
further explanation but was unable to find him. Morrone told Johnson and Skalski
that their work "wasn't in the box" and exhibited job tickets indicating shortages.
Angered, Johnson complained to Zukowsky about the matter, then punched out early.
Skalski made an unsuccessful attempt to obtain Marino's intervention. As to Marcia,
Morrone assured her she had been paid all that was due her.
The General Counsel argues that this action was both discriminatory and coer-
cive; discriminatory because it applied only to union adherents, and coercive because
it was designed to demonstrate that the Respondent could "manipulate" its complex
incentive system to the detriment of the employees, when it so desired. Aside from
the question whether the alleged decrease in pay is covered by the complaint, the
General Counsel's contention lacks merit. The decrease in the paychecks has not
been shown to have been discriminatory because there is no proof that any represent-
ative of management, other than Zukowsky, was aware that the individuals involved
were union adherents. Nor do I deem it coercive. According to Morrone, it was a
long-standing policy of the Respondent to deduct from an operator's pay the num-
ber of items "not in her box" when such a shortage was excessive.65 By this is meant
a usual variation between the "clock count" and the number of acceptable items
produced by the operator after inspection. Such an excessive discrepancy is due
either to an unusually large number of defective items or to "hopping" caused by
the operation of the press when no mica is inserted in it. Morrone further testified
that he had received reports from the inspection department showing an excessive
shortage in the work of each of the employees in question. Moreover, when the em-
ployee complained, it was indicated that the matter was not final and that some of
the complaints would be looked into. The strike intervened before there was ade-
quate opportunity for such adjustments as might have been warranted. Finally, the
timing of this event is not as significant as the General Counsel urges. Similar inci-
dents had occurred in the past; indeed Marcia had been taken off the "special pay-
ment" and her earnings consequently reduced as far back as February 26, before the
Board election. I conclude that the reduction in pay of these employees was not
shown to be discriminatory or coercive.
A few days before the election, Fitzpatrick had an altercation with Joseph Alluto.
According to Fitzpatrick, Alluto cursed her on this occasion; she thereafter com-
plained about his conduct to Zukowsky and Marino. Marino replied that Alluto
had denied cursing. Assuming that the incident occurred as described by Fitzpat-
rick, there is no indication that Marino's conduct on this occasion was influenced
by Fitzpatrick's allegiance to the Union or the fact that a union campaign was then
underway. This is especially true because evidence that any representative of man-
agement, other than Zukowsky, knew that Fitzpatrick was in favor of the Union is
° This finding of fact is based upon Zukowsky's credited testimony. Corbellini did not
testify. Marino and Edwin Long testified that the recording began in January 1954 or
earlier. Their testimony in this respect is not credited.
° This should not be confused with removing the employees in question from the "spe-
cial payment." Fitzpatrick and Johnson had never been recipients of the special pay-
ment. Marcia had received the special payment at one time, but had been "returned to
the old basis" on February 26.
390609-56-vol. 115-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lacking. In sum, I conclude that none of the incidents discussed in this subsection
prove discriminatory or coercive practices toward the employees.
k. The telegrams
It will be recalled that on March 15 the Respondent sent telegrams to each of the
employees listed in Appendix B. After directing the absent employees to report for
work on the next day, the telegrams concluded: "If you do not report you will be
discharged without further notice." The General Counsel maintains that this consti-
tuted a threat of discharge for protected activities and hence violated the Act. The
Board and the courts have frequently held that, where employees engage in an eco-
nomic strike as here, a notice that they must abandon the strike and resume work by
a particular date or suffer discharge constitutes an unlawful strike-bearing technique
violative of the Act.66
As this was an economic strike, it may perhaps be argued that the Respondent's
purpose in sending out the telegrams was merely to ascertain how many absentees in-
tended to join the strike, so that it could be guided accordingly in hiring replace-
ments. Assuming that such inquiries would be permissible under the Act,67 the tele-
grams here in question did not constitute such a request for information. On the
contrary, they went much beyond that. Imperative in tone, they clearly threatened
discharge as a penalty for failure to report on the following day. As such, they vio-
lated the Act.
The General Counsel further contends that the telegrams dispatched by the Re-
spondent on March 16 to the employees listed in Appendix C were similarly violative
of the Act. These telegrams, however, omitted any warning of dischage for con-
tinuing participation in the strike. They merely directed the strikers to report for
work on the following day. They are therefore distinguishable from the telegrams
of the previous day.68 As the telegrams of March 15 have been held to be violative
of the Act, it would serve no useful purpose to determine whether the telegrams of
March 16 likewise violated the Act; such a finding would merely be cumulative and
would not affect the order recommended hereafter. Accordingly, I will not base any
finding of unfair labor practices upon the telegrams of March 16.69
1. Surveillance and interrogation
The General Counsel introduced evidence which may be looked upon as tending
to indicate that the Respondent engaged in surveillance of the union activities of its
employees, and that representatives of the Respondent interrogated employees with
regard to their union membership and sympathies. However, the complaint does
not allege that the Respondent engaged in any such conduct. Since the close of the
hearing herein, the Board has stated that "when an issue relating to the subject mat-
ter of a complaint is fully litigated at a hearing, the Trial Examiner and the Board
are expected to pass upon it even though it is not specifically alleged to be an unfair
labor practice in the complaint." 70 In line with that rule, I find that all instances of
alleged surveillance and interrogation discussed hereafter relate to the subject matter
of the complaint The question then remains whether they were "fully litigated" at
the hearing. If so, it is my duty to decide the matters on the merits, although not
mentioned in the complaint.
There was evidence that Wiecezak was at White Eagle Tavern, a tavern connected
with White Eagle Hall, on an evening when a union meeting was being held in White
Eagle Hall, and recognized some employees as they went into the meeting. At the
hearing, when asked whether he was contending that the Respondent had engaged in
06N L. R B. v United States Cold Storage Corp., 203 F. 2d 924 (C A. 5), cert denied
346 U S 818; Kerrigan Iron Works Inc, 108 NLRB 933, 935, pet for review denied sub
nom Shopman's Local No 733, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL v. N L. R B , 219 F 2d 874 (C. A 6) ; Kallaher & Mee Inc.,
87 NLRB 410, 411 ; Rockwood Stove Works, 63 NLRB 1297, 1298; Brookville Glove Com-
pany, 114 NLRB 213; and Hotel Taft Inc. (Connecticut State Board of Labor Relations),
Case No. U-583, Decision No 319, February 18, 1955, 35 LRRM 1593.
Cl Gala-Mo Arts, 113 NLRB 1. But see New Hyden Coal Company, 108 NLRB 1145, 1146.
86Kansas Milling Company v. N L. R. B., 185 F. 2d 413 (C. A 10) , The Texas Com-
pany, 93 NLRB 1358; McLean-Arkansas Lumber Company, Inc, 109 NLRB 1022; Lester
Manufacturing Company, 112 NLRB 843; and Scott & Scott, 113 NLRB 911.
69 Seyfert Foods Co , 109 NLRB 800, 816; and United Steelworkers of America, CIO,
114 NLRB 532, footnote 1.
70 Monroe Feed Store, 112 NLRB 1336.
FORD RADIO & MICA CORPORATION 1075
surveillance of union activities, the General Counsel replied: "I don 't know." In
view of that answer, I conclude that the matter of surveillance was not "fully liti-
gated" at the hearing. I therefore will not evaluate the evidence with regard to this
matter.
Johnson testified that in February Joseph Long asked her why she wanted a union,
and that she replied by relating certain grievances with regard to her working con-
ditions. This testimony was first elicited by the General Counsel on redirect exam-
ination of Johnson, and the Respondent did not cross-examine her with respect to
this event. Moreover, the Respondent did not thereafter return Joseph Long to the
stand to admit or deny her testimony on this subject. I find that this incident was
not "fully litigated" at the hearing and therefore will not make any finding with
respect to it.
Corkery testified that, about a week before the Board election , Phillips asked her
what she was talking about to Zukowsky. I consider this too ambiguous and incon-
clusive to constitute interrogation regarding union affairs . Corkery further testified
that, on another occasion during the same week, Phillips asked her why she had
joined the Union. Phillips admitted that in February he observed Corkery with a
"union paper" and asked her if she was interested in the Union. I find that this in-
cident was "fully litigated" at the hearing and I credit Corkery's testimony, as
corroborated by that of Phillips, that in February Phillips asked her why she had
joined the Union.
Durkin testified that a few days after the Union's advent Phillips asked her if she
was "for the Union." Instead of replying, Durkin inquired if Phillips was. He an-
swered: "Hell, no." He then added the threat described above that the plant would
close if the Union won the election. Durkin further testified that, on another oc-
casion during February or March, Phillips asked her if Margaret Rose, another em-
ployee, was in favor of the Union, and that Durkin replied that she did not know.
On a third occasion, about a week before the Board election, Phillips again asked
Durkin if she was going to vote for the Union. Durkin gave an evasive answer
whereupon Phillips warned her, as described above, that the employees would lose
certain privileges if the Union won the election. Phillips denied Durkin's testi-
mony with regard to these interrogations and threats. I find that the matter was
"fully litigated" at the hearing. I do not credit Phillips' denial in this respect. It is
found that the three instances of interrogation occurred as described by Durkin.
In the Blue Flash case,71 the Board abandoned its previous rule that any interro-
gation of employees regarding their union sympathies or affiliation was per se pro-
hibited by the Act. Instead, it was held that the legality of any questioning of em-
ployees depends upon "whether, under all the circumstances, the interrogation
reasonably tends to restrain or interfere with the employees in the exercise of rights
guaranteed by the Act." [Emphasis supplied.] Applying this test to the facts at
hand, I am of the opinion that Phillips' interrogations of Corkery and Durkin, in the
context of other unfair labor practices found herein, were coercive.72 This is particu-
larly true because, in the same conversations in which Phillips questioned Durkin, he
also threatened reprisals for union activities.
m. Conclusions
The Respondent offers several defenses to the allegations that it interfered with,
restrained, and coerced its employees. In the first place, the Respondent points out
that, in the circulars which it distributed during the Unon's campaign, it informed
the employees that it would not interfere with their right to make a free and un-
trammelled choice for or against the Union. Thus, one of the circulars stated:
"There will be no repercussions if the Union loses . . . likewise there will be no
repercussions as far as your job is concerned, if the Union wins. . . ." It is argued
that such declarations neutralized any prior illegal acts. However, in view of the
extent and character of the Respondent's unlawful conduct described above, I can-
not agree that the circulars referred to had the purging effect ascribed to them by
the Respondent.73 Accordingly, I find no merit in this defense.
Secondly, shortly after the Union's organizational attempt came to Marino's at-
tention , on February 2 or 3, he told each supervisor individually that the Union
was attempting to organize the plant and directed them not to interfere. The Re-
spondent urges that, because of these instructions to the foremen, it should not be
held responsible for unfair labor practices committed by supervisors who disre-
71 Blue Flash Express, Inc., 109 NLRB 591, 593.
72 Sears, Roebuck & Co., 109 NLRB 632, footnote 2 ; Leiter Manufacturing Company,
112 NLRB 843; and B. M. C. Manufacturing Corporation, 113 NLRB 823.
73 Graber Manufacturing Company, Inc., 111 NLRB 167, 169.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garded such orders. However, it is well established that neutrality instructions di-
rected to supervisors but not communicated to rank-and-file employees constitute no
defense to violations of the Act 74 Accordingly, I reject this defense.
Finally, the Respondent points to the Union's failure to file objections to the con
duct of the election, and maintains that the Union is thereby estopped from charging
the Respondent with unfair labor practices which occurred prior to the election.
There is little evidence that the Union knew of'the unfair labor practices, other than
the posting of the no-solicitation rule, before the election . But even assuming that
the Union obtained knowledge of these incidents before the time for filing objections
to the conduct of the election expired, that would not aid the Respondent. It is
well settled that the doctrines of "clean hands" and equitable estoppel have no appli-
cation to a proceeding by a governmental agency seeking a remedy in the public in-
terest.75 This principle is illustrated by two recent cases in which the facts were
strikingly similar to those in the instant one: the Armstrong and Graber decisions.76
There although the unions failed to file objections after losing elections , the Board
nevertheless predicated its findings of violations of Section 8 (a) (1) of the Act on
events which occurred before the elections. I therefore find this defense untenable.
For the reasons stated above, I conclude that, since early in February 1954, the
Respondent has interfered with , restrained , and coerced its employees in the exer-
cise of rights protected by Section 7 of the Act, thus violating Section 8 (a) (1) of
the Act. This finding is based upon the following incidents:
1. Joseph Long's threat to the pickets on March 19 that they would never see the
inside of the plant again.
2. Edwin Long's similar threat to the pickets between March 15 and May 5.77
3. Phillips' three threats to Corkery, late in February or early in March, that
employees who signed union cards would be discharged and that Joseph Long would
close the plant if the Union came in.
4. Phillips' threat to Durkin, early in February, that the plant would close if the
employees voted for the Union.
5. Phillips' threat to Durkin, late in February or early in March, that certain
employee privileges would be withdrawn if the Union came in.
6. The discriminatory promulgation of the no-solicitation rule on February 8
and its enforcement thereafter.
7. The dispatching of the telegrams of March 15.
8. Phillips' questioning of Corkery in February regarding whether she was inter-
ested in the Union.
74 Solo Cup Company, 114 NLRB 121; and Thomason Plywood Corporation, 109
NLRB 898
75 Richleay Corporation v. N L R B , 206 F. 2d 779, 806 (C. A. 3) ; N L R B v Kings-
ton Cake Co , 206 F. 2d 604, 611 (C A. 3) ; and N L. R. B v. Baltimore Transit Co, 140
F 2d51,55 (C A 4)
10 Armstrong Tire and Rubber Company, Test Fleet Branch, 111 NLRB 708; and Graber
Manufacturing Company, Inc., 111 NLRB 167
77 The original charge, served on March 23, 1954, alleges no independent violations of
Section 8 (a) (1) piioi to March 15, 1954. The amended charge, served on November 1,
1954, alleges no specific violations of Section 8 (a) (1) of the Act poor to March 15 ex-
cept that on or about February 12 the Respondent "administered its wage system so as to
influence the results of a Board election and otherwise interfere with, restrain and coerce
its employees in the exercise of their rights under the Act " The complaint, served on
November 30, 1954, alleges that "at various times on or about and between February 5,
1954, and May 4, 1954, Respondent waived its employees to refrain from assisting, becom-
ing members of, or remaining members of, the Union, or from engaging in a strike or
other concerted activities " The Respondent's answer alleges that the quoted portion of
the complaint was barred by the 6 months' statute of limitations in Section 10 (b) of the
Act At the hearing, the Respondent moved to dismiss this portion of the complaint ; the
motion was denied. I ruled that unfair labor practice findings could not be based upon
any events between March 23, 1954 (the date on which the original charge was served),
and May 1, 1954 (6 months prior to the service of the amended charge), unless predicated
on a discriminatory policy put into force before March 23, 1954, and continued thereafter
It is not clear when Edwin Long's threat to the pickets took place. However, in view of
its similarity to Joseph Long's threat to the pickets on March 19, I shall base a finding of
unfair labor practices upon Edwin Long's conduct in this respect, regardless of the date
on which it occurred, because it constituted a mere continuation of a discriminatory policy
earlier put into effect, rather than a new and distinct cause of actions Rheein Manufac-
turing Company, 111 NLRB 460, and Anchor Rome Mills, Inc, 110 NLRB 956, footnote 12.
FORD RADIO & MICA CORPORATION 1077
9. Phillips' three interrogations of Durkin in February and March with respect to
her union sympathies, those of another employee, and how she expected to vote in
the Board election.
In view of these unfair .labor practices I further find that, since early in February
1954, the Respondent has had a hostile attitude toward the Union, and has been
engaged in an antiunion campaign.
C. The discharges
1. Contentions of the parties
The complaint alleges that on or about March 15 the employees "ceased work
concertedly and went on strike"; that the Respondent discharged the employees
listed in Appendix B on March 16, those listed in Appendix C on March 17, and
employee Doris Noonan on March 18, that Noonan and most of those listed in
Appendixes B and C applied for reinstatement on various dates between May 5 and
14, but the Respondent refused to reinstate them; and that the discharges and re-
fusals to reinstate were because "they joined or assisted the Union or engaged in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection" or because "they had selected or had become members of the
Union or had participated in the strike." The answer denies these allegations, ex-
cept that it admits that on March 15 "a certain number of employees did not report
for work," and that "certain employees . applied for their jobs." At the hearing,
the Respondent conceded that there was "a strike of some form" on the "second
day," March 16. In its brief, the Respondent contends that the employees did not
strike on March 15 but rather quit their employment; that they did not advise the
Respondent of the reason for the work stoppage until several weeks after it began;
that the real reason for the work stoppage was "to compel Respondent to rehire"
Zukowsky; that the work stoppage was "illegal"; and that the Respondent was "within
its rights when it discharged the nonworking employees and replaced them." Bas-
ically two issues are presented, namely, whether the employees engaged in concerted
activities protected by the Act, and whether they were discharged for doing so.
2. Did the employees quit or strike?
The Respondent's contention that the work stoppage which began on March 15
was a "quit" seems first to have been raised in the complaint filed by the Respondent
in the State court, which alleged that the employees had "quit their jobs without
any cause or reason therefor." The Union's answer denied this allegation. The
Respondent apparently bases its argument that the employees had no intention of
coming back on their failure to heed Marino's invitation on March 15 to come in,
and their refusal to comply with the telegraphic demand that they return to work
the following day. The contention lacks merit. That the absentees did not intend
to abandon their jobs and sever the employer-employee relationship is amply demon-
strated by their request for the Union's aid and by their picketing. One who has no
further concern with his former employment would not be likely to seek help from
a union or to expend time and energy in picketing his former employer's place of
business. The call upon the Union for assistance and the picketing, therefore,
bespeak continued interest in the job and an ultimate hope of returning to it. Further-
more, Corkery testified: "I intended to go back when the strike was settled." Cheese-
man testified that she had no intention of abandoning her work, and Justine Wiatrak,
another alleged discnminatee, similarly testified that she did not intend to quit her
job but wanted to see what could be done about keeping it. I conclude that none
of the employees intended to relinquish his employment, but on the contrary, each
voluntarily absented himself from work in order to take part in concerted activities,
consisting of a strike and picketing.78
3. Legality of the means used
The Respondent emphasized throughout the hearing and in its brief that the strikers
went out on March 15 in accordance with their own voluntary decision and without
prior notice to or permission from the Respondent; that they had never advised the
Respondent that they harbored any grievances; and that they never- informed the
Respondent of the reason for the stoppage until sometime after it began. The Re-
79 N L R B. v. -Price Valley Lumber Co., et at., 216 F 2d 212, 214 (C A 9), cert. de-
nied 348 U. S. 943; Andrews Company, 87 NLRB 379, 393; Ace Handle Corporation, 100
NLRB 1279, 1292, and Brookville Glove Company, 114 NLRB 213
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent does not make clear what effect it believes should be given to the failure to
notify or consult with it. As to the first point, the Board has held that "The essence
of a strike is the voluntary concerted withholding of labor requested by an employer,"
and that therefore it would be illogical to consider as a striker an employee who re-
quested permission to absent himself from work.79 Thus if the employees here had
secured consent to their staying away from work, they could not now be looked upon
as strikers. Their failure to obtain such permission underscores the voluntary nature
of their concerted activities. As to the claim that the Respondent had not been told
that the employees harbored any complaints, the facts are otherwise. As already
pointed out, a committee of employees presented grievances to representatives of the
Respondent in Joseph Long's office on February 5, long before the strike began. In
any event, it has been held that the shortness of notice given by strikers and their
precipitate action does not render their strike unprotected 8° It is therefore immaterial
whether the employees advised the Respondent of their grievances in advance of going
on strike. I conclude that the means used by the employees in striking were proper and
legal.81
4. Legality of the purpose
I come now to what is perhaps the crucial issue in the case, that is, the purpose of
the strike. The General Counsel maintains that the reason for the strike was the
employees' dissatisfaction with their working conditions and denies that the reinstate-
ment of Zukowsky was one of the objectives. He admits, however, that Zukowsky's
discharge made the employees "stop and think where they stood and take stock of their
own situation, and they realized that this was the beginning." Finally, he urges that
even if Zukowsky's reinstatement was the only objective sought, the foreman of the
powerpress department had authority to affect materially the earnings of the power-
press operators, and therefore the strikers had a stake closely related to their interests
as employees in retaining Zukowsky as their foreman. In sum, while not contending
that the strike was initially caused by the Respondent's unfair labor practices, the
General Counsel would classify it as an economic strike in its inception. The Re-
spondent originally took the position that it did not know what caused the work stop-
page. In oral argument and in its brief, however, the Respondent maintained that the
sole reason for the strike was to force it to reemploy Zukowsky, and that it was there-
fore illegal . The true purpose of the strikers is not easy to determine. Here there was
a spontaneous and unplanned move not formalized by any strike vote. No ultimatum
was served upon the Respondent prior to the strike setting forth any demands. The
picket signs did not announce the purpose of the strike, and no circulars or advertise-
ments appeared informing the public on that subject. No formal communication
immediately before or after the strike began between the Union or the employees on
one hand and the Respondent on the other reveals the nature of the concessions sought.
The Respondent's position in the State court suit regarding the purpose of the strike -
has already been averted to. There the complaint alleged that the individuals were
picketing "in order to compel the [Respondent] . . . to execute a collective bargain-
ing agreement with [the Union] . . . in violation of existing law." Joseph Long's
supporting affidavit states: "We do not know the reason why pickets are marching in
front of our place nor do we know the reason why the [Union] . . . is taking part in
these activities" and: "The Union is attempting to coerce [the Respondent] . . . into
violating the law by closing a contract with it, despite the fact that the Union does not
represent the employees." As previously set forth, the court granted the Respondent's
motion for an injunction pendente lite, on the ground that the purpose of the picketing
was to compel the Respondent to recognize the Union as bargaining agent of its em-
79 Columbia Pictures Corporation, et at., 82 NLRB 568, 577, enf. denied on other grounds
sub nom . N. L R B v Warner Bros Pictures, Inc, et at., 191 F 2d 217 (C A 9).
®o N L. R. B v. Cowles Publishing Co., 214 F 2d 708 (C A. 9), cert. denied 348 U. S.
876; Seyfert Foods Co, 109 NLRB 800, 812; West Coast Casket Company, Inc, 97 NLRB
820, 824, enfd 205 F 2d 902 (C. A. 9).
e'Michigan Lumber Fabricators, Inc, 111 NLRB 579, and California Cotton Coopera-
tive Association Ltd., etc, 110 NLRB 1494, cited by the Respondent, are not in point.
In the former, the stoppage violated a no-strike agreement ; in the latter, the employees
engaged in a slowdown In both, the means used were found to be unprotected But no
such methods were utilized in the instant case U A. W. v. Wisconsin Employment Rela-
tions Board, 336 U S. 245, rehearing denied 336 U S 790; C. G Conn, Ltd. v. N. L R. B.,
108 F. 2d 390 (C A. 7) ; and N. L. R. B. v. Kohler Co., 220 F. 2d 3 (C A. 7), likewise
cited by the Respondent, are also inapposite. In those cases, the employees did not engage
in a strike but instead sought to remain at work on their own terms. In short, they at-
tempted a "partial" strike. No similar conduct appears here.
FORD RADIO & MICA CORPORATION 1079
ployees despite the loss of the election , and that such picketing was unlawful . Later,
the court rescinded this decision . At the trial in the State court the Respondent 's attor-
ney, over the objection of the Union 's attorney , amended the complaint by striking out
the allegation that the purpose of the strike was to compel the Respondent to enter into
a collective -bargaining contract with the Union . At oral argument in the instant case,
the Respondent 's attorney disavowed any contention that the purpose of the strike
was to compel recognition of the Union or a collective -bargaining contract . In view
of the fact that less than half the employees named in the complaint were definitely
shown to be union members ,82 the Union's failure to renew its February 3 request for
recognition and bargaining rights after losing the election, and especially the statement
of Morselli, the strikers ' authorized agent , to Marino on March 18 that "we lost the
election and we are not looking to get a contract in the shop ," 83 I am convinced and
find that the strike was not designed to compel the Respondent to recognize the Union
as the exclusive bargaining agent for all the employees . It is therefore unnecessary to
decide whether, had such been the object of the strike , it would have constituted a
protected concerted activity.
It will be recalled that , shortly after the strike began , a policeman approached
the gathered employees and asked what was going on. According to Zukowsky, he
replied that the women were staying out because of labor conditions in the plant.
John Taylor , the policeman in question , gave a different version. According to
Taylor, Zukowsky stated that he had been discharged and the women were staying
out in sympathy with him. I deem it unnecessary to resolve this conflict . Zukowsky
was not the strikers ' authorized spokesman . His supposition as to why they were
striking is not entitled to any weight , as a witness ' testimony regarding the mental
processes of other persons is incompetent . 84 It therefore makes no difference what
he replied to Taylor's query.
The Respondent points to the repeated entreaties of Zukowsky that the employees
should not absent themselves from work on his account , and argues that this demon-
states conclusively that they were striking to obtain Zukowsky 's reinstatement. I
cannot agree . Many of the disgruntled employees disregarded Zukowsky 's pleas not
to strike because of him. I consider their action in this regard inconclusive. It may
indicate that they were so intent upon compelling the Respondent to reemploy
Zukowsky that they insisted upon striking despite his wishes , or it might also indicate
that they realized that he had misconstrued their l ,al purpose in striking 85 It there-
fore proves nothing.
There are 26 powerpress operators among the 34 employees named in the com-
plaint . The fact that an overwhelming majority of the strikers came from the de-
partment formerly headed by Zukowsky might indicate that his reinstatement was
sought. On the other hand, the fact that eight employees who were not from his
department went on strike might indicate the contrary . This fact affords no help
in obtaining a definitive answer.
The only communication between the Union and the Respondent regarding the
purpose of the strike was the informal discussion between Morselli and Marino on
March 18. By then Zukowsky had thrown in his lot with the strikers and had
joined the picketing . On that occasion , Moselli told Marino "we are interested in
seeing these people get their jobs back." The phrase "these people" is ambiguous,
and it is impossible to ascertain whether it was meant to include Zukowsky along
with the other pickets. It, too, is of no value in reaching a conclusion.
Numerous strikers testified as to their personal reasons for joining the strike. Most
gave job security as their principal objective and none included the reinstatement of
82 Only eight of the employees named in the complaint ( Corkery, De Carlo, Durkin,
Etheridge , Fitzpatrick , Johnson , Marcia , and Ross ) were definitely shown to have signed
applications for union membership . Five others ( Babino, Cirillo , Holmes, Price, and
Wiatrak ) were on the committee which conferred with management representatives on
February 5, and may be assumed to have been members of the Union.
83 In Gala-Ho Arta, Inc, 113 NLRB 1, the Board in determining the reason for a strike
relied heavily upon the union president 's statements to the employer , saying: "In any
event, we are satisfied that Helens , as president of the Union , had been authorized by
the employees to speak on their behalf and that his statement of the reason for the strike
must be attributed to those who authorized him to speak for them." Likewise, in the
instant case , the strikers had authorized Morselli to be their spokesman.
84 7 Wigmore on Evidence ( 3d ed .) Sec. 1962.
85 Zukowsky testified that when he urged the women not to stay out on account of him
they replied that they were not absenting themselves on his account but for job security
and because of conditions in the plant . However, he did not identify the individuals who
allegedly made these statements and I therefore will not rely upon this testimony.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zukowsky. These self-serving declarations of subjective intent, made long after
the strike, are entitled to little weight. The matter must be determined primarily
by examining the background in which the strike occurred, and the words and actions
of the participants at the time.
The strike occurred when dissatisfaction among a number of employees was
running high. There was widespread discontent over the Respondent's failure to
follow strict seniority in recalling laid-off employees in January, a matter discussed in
union meetings and in the February 5 conference in Joseph Long's office. Male
employees were worried about the likelihood of conversion of the plant into an
"all girl" shop.86 Zukowsky fanned this fear by warning of such a possibility at the
union meeting of February 2. Women in the powerpress department were originally
disgruntled because of the discriminatory wage policy. Edwin Long's stricter dis-
cipline was distasteful to some employees. The more exacting scrap check instituted
in January and enlarged in February to include grading and recording doubtless
added another irritant. The no-solicitation rule was imposed during the Union's
campaign; some gaugers felt that Avella was deliberately keeping them under sur-
veillance. Others who supported the Union may well have resented the threats
made by Phillips, discussed above. In general, there was a feeling of insecurity.
The dissatisfaction was brought to a head by two events which occurred on March 12,
the last workday before the strike-four powerpress operators had their pay reduced
that day 87 and Zukowsky was discharged.
Let us now examine the actions of the strikers. As previously related, there were
numerous telephone calls among the employees themselves and between employees
and Morselli over the weekend of March 12-15. Etheridge testified that she told
Corkery over the telephone that weekend that if they did not fight for their security
now there was no point in working. According to her, there was no mention of
Zukowsky in this conversation. She further testified that on the morning of March 15
the discussion across the street from the plant concerned job security and that she
then stated "now was our chance" to assure that in the future laid-off employees
would be recalled according to seniority. De Carlo testified that on the morning of
March 15, when Zukowsky pleaded with the girls to go in to work, she replied: "I
could not work under those conditions, we should do something about the Union."
Elizabeth Ratalsky, one of the alleged discriminatees, testified that over the weekend
Johnson told her "she had beettachort in her pay" and "discussed Big Joe being
fired." Skalski testified that on March 12, after finding less money in her paycheck
than she believed was due her, she told Wiatrak, another striker, that she was "not
going to stand for things like this, we simply have to do something." Wiatrak replied:
"We will talk about it tonight." It is significant that this occurred during lunch hour,
before Zukowsky's. discharge. Skalski further testified that she telephoned to
Zukowsky that evening and asked him if it was true that he had been discharged;
when he answered affirmatively she told him that she had already discussed with
Wiatrak "what happened to me" and they were "not going in Monday." On March
13 or 14, Skalski telephoned Wiatrak and informed her: "I wasn't going in"; Wiatrak
answered that she and others had "decided they were going to stay out in protest on
Monday morning." Angelo Marchese, one of the alleged discriminatees who joined
the strike on March 16, testified that on March 15 Rose Manzione, an employee who
came to work on March 15 despite the strike, told him that the strike was in sympathy
with Zukowsky; that Marchese then remarked to Marino that it was foolish to walk
out in sympathy for a discharged man and that on the following day if the matter
did not involve Zukowsky and pickets were outside, he would join them, as "they
are all my kind." Marino replied: "I don't blame you." Marchese further testified
that on March 16 he told Morselli that he had heard the strike was in sympathy
with Zukowsky and that Morselli denied this, saying that the strike was to obtain
better working conditions and job security. Marchese then spoke to striker Herman
Adelman who said: "We have to fight this way to win our rights," explaining that
he. meant job security and better working conditions. Upon these assurances,
Marchese then joined the strikers. Wiatrak recounted numerous telephone con-
versations she had with other employees regarding job security and the possibility
of a strike. According to her, Zukowsky was mentioned in some of these conversa-
80 Thus , John Babino told Morselli that he knew it was just a matter of time until the
men in the shop were displaced by women Howard Holmes likewise told Morselli that
"he felt it was only a matter of time until he was replaced " Kostanty Ross expressed
substantially the same point of view to Moiselli. Gus Yeaton told Morselli "that he was
worried about his job," but did not elaborate.
87 At least two of the powerpress operators whose pay was reduced discussed the mat-
ter with other employees before the strike began.
FORD RADIO & MICA CORPORATION 1081
tions but not in others. Cheeseman testified that on March 15 she told the others
gathered across the street from the plant that "we have got to fight for our security.
Marino testified that, on the morning of March 15 when he saw the group of em-
ployees across the street, he asked them: "What is the matter?" but received no reply.
He further testified that on March 16 he asked Kostanty Ross why he was picketing
and Ross answered that "they" threatened to bomb his house if he went in. This
was denied by Ross. Marino also testified that he asked Adelman why he had stayed
out and that Adelman responded that he refused to cross a picket line. Morselli de-
scribed the telephone calls he received over the weekend from disgruntled employees.
He testified that on the evening of March 12 he was called by John Babino, one of the
alleged discriminatees, who informed him that Zukowsky had been discharged and
asked what could be done about it; he replied that-nothing could be done because
Zukowsky was a foreman and had- "no protection so far as the Union was con-
cerned." The next call he received was on the same day from Wiatrak. After
mentioning Zukowsky's discharge, she complained that the way employees were
being treated was "unbearable" and that "they" were discriminating against those
known to have been active on behalf of the Union. She said: "Chippie, I wish
you could do something, because we are really in a desperate situation in the shop."
He answered that as the Union had lost the election there was very little that could
be done, and recommended against a strike. Morselli also received a telephone call
from Marcia, who told him that Zukowsky had been discharged, and that union
adherents were "being short changed in their pay" and were being watched. Cirillo
also called Morselli and said approximately the same things. Wiatrak again tele-
phoned to Morselli on the morning of March 15 to inform him that the employees
had not gone in to work that day. In this conversation she did not mention Zukowsky.
It will further be recalled that on March 15, when the strikers gathered with Morselli
at McGuire's Tavern, they related, to him their complaints against the Respondent:88
Analysis of this testimony shows that from the words and actions of the strikers
there is little indication that the discharge of Zukowsky was the motivating cause
behind the strike. On the contrary, the record indicates the opposite, especially the
testimony of Skalski and Marchese. The Respondent, however, contends that these
alleged grievances were "merely a cleverly contrived method to avoid the severe
criteria that the Act imposes" and an afterthought. It points to the fact that the
work stoppage commenced immediately following Zukowsky's discharge. It would'
be unrealistic to look upon the discharge of Zukow^ y as having occurred in a vacuum,
completely unrelated to other events. Perhaps Al was therefore more prominent
in the discussions preceding and immediately after the strike began than the witnesses
were willing to admit. However, on the record before me, I believe that the em-
ployees acted as they did, at least in material part, because they considered their
own job security in jeopardy. I am convinced, and find, that the employees struck
primarily to obtain the redress of real or fancied grievances pertaining to their
own working conditions, and that an intention to force the reinstatement of Zukowsky
was either entirely absent or merely incidental to the main purpose. Accord-
ingly, the strike was for the employees' mutual aid and protection within the meaning
of the Act. It was therefore an economic strike, a form of protected concerted
activity. In so finding, I do not pass upon the validity of the grievances, as that is
not a matter with which I may properly be concerned. In view of the foregoing, I
deem it unnecessary to determine whether the strike would have constituted conduct
protected by the Act if its sole objective had been Zukowsky's reinstatement.89
The Respondent points out that, although 66 employees voted for the Union in
the Board election, only 34 went on strike. But the fact that the strikers con-
stituted a minority group has no bearing on their rignt to engage in concerted activi-
ties designed to protest their own grievances.90 I conclude that the strike's objective
was valid.
88 Patrolman Taylor, Zukowsky, strikers Cheeseman and Anna McGann Lavden, and non-
striker Dorothy Hughes testified to various statements regarding the purpose of the strike,
but were unable to identify the individuals making the alleged statements. Such evi-
dence is incompetent and will be disregarded
89 See Joanna Cotton Mills Co. v. N L R B., 176 F. 2d 749 (C. A 4) ; N L. R. B v.
Phoenix Mutual Life Ins Co , 167 F. 2d 983 (C A 7), cert denied 335 U S 845; Solo Cup
Company, 114 NLRB 121, Hearst Publishing Company, 113 NLRB 384; Gala-Ho Arts, 113
NLRB 1; Wood Parts, Inc, 101 NLRB 445, 451 ; Ace Handle Corporation, 100 NLRB
1279, 1280, 1290; and Fontaine Converting Works, Inc., 77 NLRB 1386. See also Arm-
strong Cork Company, 112 NLRB 1420
DODouds V . Vocal 1250, Retail Wholesale Dept. Store Union, 173 F. 2d 764 (C. A. 2),
rehearing denied April 26, 1949. See also first proviso in Section 9 (a) of the Act.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Were the strikers discharged?
The complaint alleges that the Respondent discharged the employees listed in
Appendix B on March 16, those listed in Appendix C on March 17, and employee
Doris Noonan on March 18. The answer denies these allegations. The issue pre-
sented is whether the threat to discharge contained in the telegrams of March 15
was a mere tactical step designed to coerce the strikers into resuming work, that is,
an empty threat never carried out,91 or whether it was effectuated by an attempted
termination of the employer-employee, relationship.
The General Counsel points to the fact that the telegram addressed to Fitzpatrick,
directing her to report for work at the usual hour on March 16 or suffer discharge,
was mailed to her by the Respondent on March 16 after the time for her to report
had expired and therefore could only have been intended to indicate that she had
already been discharged.92 But this was nothing more than an extension of the basic
act of sending out the telegrams at all, and like the dispatching of these telegrams,
can be looked upon either as a mere tactical maneuver or as a discharge.
The General Counsel would also draw a-similar inference from the fact that
striker Frances Stanton applied for reinstatement in April when work was available
for her and was refused. However, her application was made to Von Petzold who,
as has been found above, lacked authority on behalf of the Respondent to accept or
reject a nonstriker's application for reinstatement.
The Respondent maintains a group hospitalization and surgical policy for its
employees (Blue Cross), which runs from the 17th day of one month until the 17th
day of the following month. It covers all employees who so desire. The premium
for the employees' coverage is paid by the Respondent, except that portion allocated
to coverage of other members of the employees' families. It was the Respondent's
practice to carry laid-off employees and those permissively, absent under this policy
for a period of approximately 3 months, but to cancel coverage immediately for
those who are discharged. On March 19, the Respondent instructed the insurance
carrier to remove from coverage under the group hospital and surgical benefit con-
tract all individuals listed in Appendixes B and C, with the exception of five who
earlier voluntarily refrained from the program. The Respondent also carried a
group life and sickness benefit policy covering all its employees. The premium is
paid entirely by the Respondent. On March 16, the Respondent directed the insur-
ance carrier to remove from the benefits of the policy the names of Zukowsky and
all employees listed in Appendix B. On March* 18 the Respondent gave similar
directions regarding all employees listed in Appendix C. The General Counsel
contends that the Respondent's action in this respect indicates an intent to sever the
employer-employee relationship. Statistics show that a number of firms follow a
practice of discontinuing coverage under such group policies during strikes.93 If
such benefits are looked upon as essentially payments in lieu of wages,94 it would
not be logical to provide them during the period when the employee is not entitled to
receive wages. On the other hand, if such benefits are merely emoluments of employ-
ment, like seniority, which cannot reasonably be considered as part of "wages," then
the General Counsel's contention that the stopping of such benefits indicates the
discharge of the strikers is meritorious.95 In view of other indicia pointing to the
discharge of the strikers, as related hereafter, I deem it unnecessary to pass upon the
General Counsel's contention that the Respondent's removal to pass upon the General
Counsel's contention that the Respondent's removal of the strikers from the coverage
of these policies indicates that they were discharged.
Apparently referring to the telegrams of March 15, Joseph Long testified: "We
merely put `discharge' in there to get them to come back. We needed them for
01 Compare Rockwood Stove Works, 63 NLRB 1297; and Columbia Pictures Corporation,
et al, 82 NLRB 568, 571, enf. denied sub now. N. L. R. B. v. Warner Bros. Pictures, Inc.,
etal,191F 2d217 (C A 9).
92 He also would put the same interpretation upon the Respondent's service on the
strikers of copies of the complaint in the State court suit It is obvious, however, that
the purpose of this conduct was merely to bring the strikers within the court's jurisdiction.
03 Group Insurance During Strikes, 17 Management Record (National Industrial Con-
ference Boaid) 186-8
94 See Inland Steel Company, 77 NLRB 1, 4, enfd 170 F 2d 247 (C. A. 7), cert denied
336 U. S 960; and W. W Cross it Company, Inc, 77 NLRB 1162, 1163-4, footnote 5, enfd.
174 F 2d 875 (C. A 1).
s, See General Electric Company, 80 NLRB 510. Compare Mathieson Chemical Cor-
poration, et al., 114 NLRB 486.
FORD RADIO- & MICA CORPORATION 1083
production." This testimony must be read in conjunction with his earlier testimony,
as follows:
Q. (By Mr. Turitz.) You did discharge all the employees who didn't come
back to work, when they refused to respond to your telegrams, didn't you?
A. We replaced them.
Q. I did not ask you if you replaced them. I asked if you discharged them.
A. I am saying that we replaced them.
Q. You say you did not discharge them?
A. We replaced them.
Q. Answer my question.
A. Isn't that an answer?
Q. I asked you, did you discharge them?
A. We told them in that telegram if they didn't come back they would be
discharged. By that we meant that they would be replaced.
Mr. TURITZ: I move to strike out what the witness said about what "we
meant."
Mr. SINGER: You asked for an answer, and I think you got it.
TRIAL EXAMINER: I will grant the motion.
Q. (By Mr. Turitz.) Now, Mr. Long, if you want to tell the Trial Examiner
you did not discharge these employees on our about March 16th, just say no.
And my question is, did you discharge them?
A. I answered by saying that they were replaced, which means practically
the same thing.
Mr. TURITZ: I ask that the witness be directed to answer this question yes
or no. If he wants to make an explanation thereafter, I suppose his counsel
can bring that out. But I think he ought to answer that question.
TRIAL EXAMINER: I will instruct the witness that if at all possible, he should
answer the question yes or no, and if necessary, he can add a brief explanation,
if he so desires.
The WITNESS: Yes, but by discharge we meant replace.
Q. (By Mr. Turitz.) When did you discharge them meaning that you re-
placed them?
A. They were discharged if they didn't come in that morning and replaced
if they didn't come in that morning, if possible.
Q. They were not replaced that morning?
A. Not immediately, but as quickly thereafter as possible.
Q. As of March 17th, that was Wednesday, all those employees had been dis-
charged, isn't that right?
A. Yes.
Q. You struck their names off the payroll?
A. Yes.
Q. Is that right?
A. Yes.
Q. And you knocked them off Blue Cross?
A. We probably took them off everything, like we do any other employees
going to be replaced.
Q. You did it before they were actually replaced, didn't you?
A. Yes.
Mr. SINGER: Did what?
Q. You tell Mr. Singer what you did before they were replaced?
A. We took them off Social Security and Blue Cross, and various things.
Q. And to state it another way, you discharged them before they were re-
placed, didn't you?
A. We discharged them before they were replaced, yes.
Q. (By Mr. Turitz.) At page 575, do you remember, Mr. Long, in an in-
junction trial before Judge McDonald, being asked this question and giving this
answer:
"Q. What happened on the 16th with regard to the employees who did
not come in to work? They were fired, weren't they?
A. Just as the telegram said, they were discharged."
TRIAL EXAMINER: The question is, do you remember that testimony?
* * * * * * *
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The WITNESS: I remember something to that effect, yes.
Q. Now, do you remember-
A. What we meant is replaced.
Q. (By Mr. Turitz.) Then your testimony went on as follows, did it not:
"Q. Now, there were men who did not come in on the 17th, after receiv-
ing the telegram on the 16th, is that so?
A. Yes.
Q. What happened to these men on the 17th?
A. They don't come in the following day. They were discharged.
Q. They were discharged?
A. Yes'.
Q. Those who did not come in?
A. Yes.
Q. But those who did come in were discharged?
A. That is right."
Do you remember giving the testimony I have just read to you?
A. I have a recollection of something like that. Not word for word, I can-
not remember.
Q. But that is the substance of it, is that correct?
A. It is.
Moreover, in an affidavit filed in the State court suit, he stated with respect to the
employees listed in Appendix B: "These employees did not return to work on
March 16, 1954 and their names have been stricken from our payroll." With regard
to the employees listed in Appendix C, the same affidavit states: "On March 17, 1954,
these employees failed to report for work and they were discharged." [Emphasis
supplied.] It is evident from the above that in both the instant hearing and the ear-
lier State court suit, Joseph Long admitted that the strikers were discharged when
they failed to respond to the telegrams. His lame explanation that he had equated
discharge with replacement was an obvious attempt to evade the clear implications of
his admissions.
In addition, Edwin Long testified that the strikers who did not reply to the tele-
grams were "treated as quits" and "when they didn't come in, they were stricken
from the records. . . The girls took them off all records . took them off the
payroll records." He further testified that the Respondent "waited a few days" be-
fore hiring replacements. Marino testified that the hiring of replacements began
about March 19. Von Petzold testified that when no response was received from the
telegrams, she "removed the names of these people" from the payroll and that all
employees listed in Appendix B were thus "taken off the payroll" by March 16. She
also testified that the paychecks for these individuals were made up and mailed out
before the usual payday "because they were no longer on the payroll," and that it
was usual to pay discharged employees immediately rather than to wait for the nor-
mal payday. Marcus testified that, in the State court trial, Marino had testified that
the telegrams constituted the discharge and that 23 women were discharged on
March 16.
A number of employees purchased bonds under a payroll deduction plan. It was
customary upon the discharge of an employee who had a bond account with the
Respondent to refund the amount in his account. Certain of the employees listed in
the complaint had bond money accumulated in the Respondent's possession. A re-
fund check for each of these employees' bond money was sent to the respective em-
ployees at the same time that their paychecks were mailed, although none had re-
quested such a refund. Moreover, as appears from Joseph Long's testimony quoted
above, the strikers were dropped from the social-security rolls. Finally, Edwin Long
indicated that he had informed the State employment authorities that the strikers
had "left of their own accord" for reasons unknown to the Respondent.
The Respondent relies heavily upon the Kerrigan Iron Works case 96 as authority
for the proposition that such threats of discharge do not, ipso facto, constitute dis-
charges. There the Board, with court approval, held that a letter threatening strikers
with discharge unless they ceased their strike by a certain date, while a violation of
Section 8 (a) (1) of the Act, was not sufficient in itself to constitute a discharge
96Kerrigan Iron Works Inc, 108 NLRB 933, pet . for review denied sub nom. Shop-
man's Local No 773, International Association of Briage, Structural and Ornamental
Iron Workers , A. F. L. v N. L R B., 219 F . 2d 874, ( C. A. 6), cert. denied 350 U. S.,835.
FORD RADIO & MICA CORPORATION 1085
of the strikers or to convert their economic strike into an unfair labor practice strike.
In so doing , the Board emphasized that there the employer's actions following the
letter were inconsistent with discharge. I consider that case distinguishable from
this one on its facts, because here the conduct of the Respondent was consistent with
the carrying out of the threat expressed in the telegrams of March 15. In view of
evidence that the strikers were "treated as quits" and dropped from the payroll when
they failed to respond to the telegrams, the admissions of Joseph Long that the em-
ployees were discharged, the information given by Edwin Long to State authorities,
the testimony of Marino at the State court trial that the telegrams constituted a dis-
charge and that the employees receiving them who did not respond were discharged,
the removal of the strikers from the social-security rolls, the premature wage pay-
ments to strikers, and the unsolicited mailing to the employees of their accumulated
bond money, I am convinced and find that the Respondent carried out its threat and
discharged the employees listed in Appendix B on March 16 and those listed in Ap-
pendix C on March 17.97
Alternatively, the General Counsel contends that, even if the employees were not
discharged, the telegrams of March 15, which it has already been found violated the
Act, prolonged what was in its inception an economic strike and thereby converted
it into an unfair labor practice strike.98 The Respondent disputes this. In view of
the finding that the employees were actually discharged, I deem it unnecessary to
decide this issue.
6. Conclusions
a. The employees listed in Appendixes B and C
One additional defense remains to be disposed of. Joseph Long and Von Petzold
testified that the Respondent had a rule requiring absentees to notify the Respondent
of their absence, and that when they fail to do so they are taken "off the payroll."
Pointing out that the employees involved herein did not give the required notification
before or after absenting themselves from work, the Respondent apparently contends
that this conduct breached the rule. The basic defect with this contention is that no
such rule existed in the Respondent's plant. Joseph Long admitted that the rule was
never enforced by the use of telegrams on any prior occasion, and not a single incident
appears in which the rule was invoked, even to the extent of a reprimand. Moreover,
Von Petzold impressed me as an unreliable witness.99 On the other hand, Johnson
and Cheeseman testified that they had never heard of the rule and had never been
instructed to report the reasons for their absences, although each had been employed
by the Respondent for several years. Numerous other witnesses testified of in-
stances when they had remained away from work as long as an entire week at a time
without notifying the Respondent, and yet were not reprimanded when they returned.
In view of this testimony, I am convinced and find that no such rule was in effect
prior to March 15. Accordingly, ,the action of the employees in failing to report for
work on March 15 and 416 without notice to the Respondent was not in violation
of any plant rule and therefore did not justify disciplinary action. It is accordingly
unnecessary to determine whether, had such .a rule existed and been 'breached -by
the employees, it would have constituted an unreasonable impediment to .their right
to engage in concerted activities.ioo
As previously explained, each employee listed in Appendixes B and C absented
himself from work on either March 15 or 16, and continued to do so until at least
May 5. The Respondent argues that the record•is inconclusive that certain individuals
did so in order to join the strike. I disagree. It is reasonable to assume, and I
find, that they all participated in the strike. But even if some were not in -fact
strikers, there is no .doubt that -the -Respondent thought they were and treated them
all accordingly, even naming them individually as defendants in 'the State court suit.
"IN. L R. B. ;v. United States Cold Storage Corp., 203 F 2d 924 (C. ?A. ,5)) , •cert denied
346 U. S. 818; Kallaher and Mee, Inc, 87 NLRB 410; and Hotel Taft, Inc., 35 LRRM
1593
08 Rockwood Stove Works,•63'NLRB 1297.
e9 Thus she testified at one point that she supervised the sending out of the telegrams,
but later flatly contradicted this by testifying that she had nothing to do with the tele-
grams
100 The Respondent cites Terry Poultry Company, 109 NLRB 1097, where the Board
upheld as "necessary to insure orderly and efficient operation of a production line" a plant
rule forbidding employees to leave a production line until arrangements could be made for
their replacement. In the Respondent's plant, however, there is no production line, hence
the Terry Poultry case is distinguishable on its facts.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well established that violations of the Act may be found in conduct based upon
a respondent 's belief, true or false, as to the union activities of his employees.101 I
conclude that the Respondent discharged the employees listed in Appendix B on
March 16 because they had, or the Respondent believed they had, engaged in an
economic strike on March 15; that the Respondent discharged the employees listed
in Appendix C because they had, or the Respondent believed they had, joined that
strike on March 16 ; and that the Respondent thereafter refused to reinstate any of
the employees listed in Appendixes B and C for the same reason . It is of course
true, as pointed out by the Respondent , that when employees engage in an economic
strike their employer has the right to replace them.ioz If all the Respondent had
done here was to replace the strikers , then it would have been innocent of any violation
of the Act. But that is not what the Respondent did. Instead of that, it discharged
the strikers before they were replaced. The authorities are clear that economic
strikers may not be discharged without first having been replaced . 103 Accordingly,
I find that the Respondent , by discharging the employees listed in Appendixes B and
C and by thereafter failing and refusing to reinstate them , violated Section 8 (a) (3)
of the Act. Moreover , these discharges interfered with , restrained , and coerced the
employees in the exercise of rights guaranteed in Section 7 of the Act, thereby also
violating Section 8 (a) (1) of the Act.
b. Doris Noonan
Doris Noonan did not testify . However, the record shows that she was a power-
press operator who remained away from work on March 15 and was present when
Morselli conferred with the strikers on March 15 at McGuire 's Tavern. She received
one of the telegrams referred to above on March 15. She returned to work on March
16 and worked that day and the following day. However , she did not report for
work on March 18 or thereafter . She participated in the picketing during the strike.
On March 22 the Respondent directed the insurance carrier to remove Noonan from
coverage under the group life and sickness benefit policy, but she was not joined as a
defendant in the State court suit filed by the Respondent . On May 17, later than
the other strikers , she wrote to the Respondent unconditionally requesting reinstate-
ment . The Respondent did not reply . The record does not show whether or not
Noonan applied for membership in the Union or attended union meetings.
In view of the fact that Noonan picketed , I am convinced and find that she ab-
sented herself from work , not because she intended to abandon her employment,
but because she desired to participate in the strike . Moreover , as the Respondent
discharged all other strikers , it would be illogical to assume that it did not discharge
Noonan, merely because it failed to join her as a party in the State court suit. Ac-
cordingly , I find that Noonan struck for 1 day on March 15 and struck again on
March 18, and that she was discharged by the Respondent on March 19 because of
her participation in the strike. I further find that , by such conduct , the Respondent
violated Section 8 (a) (3) of the Act, and interfered with, restrained , and coerced
its employees in violation of Section 8 (a) (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
I.-International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America (UAW-CIO), Local 365, 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 all em-
ployees listed in Appendixes B and C and Doris Noonan , thereby discouraging
membership in the above -named organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By such conduct , and by other acts interfering with, restraining , and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
101 Etiwan Fertilizer Company, 113 NLRB 93, and cases cited in footnote 10 thereof.
102 N L. R. B . v. Mackay Radio & Telegraph Co., 304 U S 333, 345
103 N. L R. B v Price Valley Lumber Co , at al., 210 F. 2d 212 (C. A 9), cert. denied
348 U . S 943 ; and N. L . R. B. v. United States Cold Storage Corp., 203 F. 2d 924 ( C. A. 5),
cert. denied 340 U . S. 818.
FORD RADIO & MICA CORPORATION 1087
4. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the meaning of Section 2 (6) and
(7) of the Act.
5. The Respondent has not violated the Act by granting a wage increase to its
employees in order to discourage membership in the Union, or by discharging
Joseph Zukowsky.
Upon the basis of the above findings of fact , and conclusions of law, and upon
the entire record in the case, I make the following :
RECOMMENDATIONS
It has been found that the Respondent interfered with , restrained , and coerced
its employees , and discouraged membership in the Union by discriminatorily dis-
charging and thereafter failing and refusing to reinstate 34 employees . Because of
the underlying purpose and tendency of this unlawful conduct , I conclude that there
exists danger that the Respondent will in the future commit other unfair labor prac-
tices. Accordingly, in order to effectuate the purposes of the Act, it will be recom-
mended that the Respondent cease and desist not only from the unfair labor prac-
tices found but also from in any other manner infringing upon the rights guaran-
teed in Section 7 of the Act.
Normally , when employees have been discriminatorily discharged , it is customary
to recommend their immediate reinstatement to their former or substantially equiva-
lent positions . This may be varied , however, where the employees involved, after
their discharge , engage in conduct which stamps them as undesirable employees, or
where the amount of work available at the employer 's plant has been considerably
reduced because of economic reasons.
I turn first to the conduct of the employees on the picket line. The Respondent
introduced evidence indicating that during the strike , tires were deflated on a number
of nonstrikers ' cars parked on a lot owned by the Respondent and used by its em-
ployees. However, during oral argument the Respondent 's attorney stated that it
did not take the position that any individual should be barred from reinsatement
because of picket-line incidents . Moreover , the evidence is insufficient to show who
was guilty of this tortuous act. Finally , the Union repudiated this violence through
a statement of Morselli to the Respondent 's representatives and also through leaflets
distributed at the plant gate . 104 Accordingly, this incident did not indicate that
any of the strikers were undesirable employees.
There is evidence that on March 15, Fitzpatrick called to one of the other em-
ployees: "Mary, don't go in ." On this same day Cirillo said: "We are keeping
everybody out," and Wiatrak called to one of the nonstrikers : "Come on over." I
do not detect any threat of force or violence in any of these statements and consider
them natural and normal under the circumstances . There was also evidence that
some strikers directed toward non-strikers epithets such as "scab ," "rats," and
"Tokyo Rose." As has recently been pointed out by the Board , employees engaged
in concerted activities "may solicit the loyalties of fellow employees with purpose
and zeal , at times drawing upon the time-worn jargon of trade unionism." 105 I
conclude that the language used by the strikers was not of such a nature as to re-
quire the forfeiture of their reinstatement.
On one occasion during the picketing , Marchese , who was picketing at the time,
accosted nonstriker Lucy Fabriski as she was leaving the plant at the end of the
workday and told her that it was better outside, at least he was getting some suntan.
Fabriski replied that she was better off inside because she was getting paid. Marchese
then grabbed Fabriski, whereupon she said: "Leave go." When Marchese refused to
comply, Fabriski kicked him.106 He then released her. However, Fabriski stated
that Marchese was "teasing her," and admitted that she did not complain of the in-
cident to the police , her husband , or anybody else. Furthermore, Marchese was a
jovial and good-natured individual . Marcia, one of the strikers , described him as
"always smiling ." While his behavior on this occasion is not to be condoned, I do
not consider it sufficiently serious to warrant the denial of his reinstatement.
104 Contrast B V. D Company, Inc., 110 NLRB 1412, pet. for rev. pending in Court of
Appeals for the District of Columbia.
106 Caterpillar Tractor Co , 113 NLRB 553. See also Kimble Glass Company, 113 NLRB
577
100 This finding of fact is based upon the testimony of Fabriski, corroborated by that of
Helen Wiecezak, an eye-witness to the incident. Marchese gave an entirely different ver-
sion ; his version is not credited.
10'88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted before, all striking powerpress operators were replaced before May 6.
The number of powerpress operators employed by the Respondent at the time of
the hearing was substantially the same as the number employed on the last workday
before the strike began. Moreover, Marino admitted that after the strike began
the male powerpress operators worked 5 hours per week overtime , although 'there
had been no overtime in the powerpress department prior to the strike since the
fall of 1953. I conclude that there has been no decline of work in the powerpress
department caused by economic reasons.107 Accordingly , I shall recommend that
the Respondent offer to all powerpress operators listed in Appendixes B and C 108
and Doris Noonan immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and privileges,
dismissing to the extent necessary employees hired since the date of their respective
discharges.
With regard to the discriminatorily discharged employees from the gauging and
splitting departments , the matter of reinstatement is not so simple . It will be re-
called that none of these strikers was replaced . This was the result of economic
factors, principally an increase in the use of presplit and pregauged mica, causing a
decline in the amount of work in the splitting and gauging departments . Accord-
ingly, it will be recommended that the Respondent offer,to them 109 immediate ;and
full reinstatement to 'their former or substantially 'equivalent positions without
prejudice to their seniority and other rights and privileges , dismissing to 'the extent
necessary employees hired since the date of their respective discharges . If after
such dismissals there are still not sufficient positions available, all 'existing positions
in the appropriate job classifications shall be distributed among the - employees ordered
reinstated and other employees who were hired 'before the said employees were dis-
charged, without discrimination against 'any of them 'because of his or her union
affiliation or strike or concerted activities , following such system of seniority or
other nondiscriminatory practices as would normally have been applied by the
Respondent to determine job retention rights upon a reduction in force. All em-
ployees remaining after such distribution , including those ordered reinstated, for
whom no employment is immediately available, shall be placed upon a preferential
-list and offered reemployment as work becomes available in a suitable classification,
and before other persons are hired for such work , in the order required by the
Respondent 's normal seniority system or other nondiscriminatory practices.
It will also be recommended that the Respondent make whole all employees
listed in Appendixes B and C and Doris Noonan, except John Babino , Anne Durkin,
Angelo Marchese , and Thomas Renna, for any loss of earnings they may have suf-
fered because of the discrimination against them, by paying to each of them a sum
of money equal to the amount he or she normally would have earned from the date
when -he or she unconditionally applied for reinstatement , 110 to the date of offer of
reinstatement , less his or her net earnings durine the said period.
Strikers John Babino, Anne Durkin, and Thomas Renna did not formally request
unconditional reinstatement . Durkin, in response to a auestion directed to her by
the General Counsel at the hearing, testified that she desired immediate'reinstatement.
.In -addition, the General Counsel stated during oral argument that all the employees
-named in the complaint desired reinstatement . However, these statements cannot
be equated to formal unconditional requests for reinstatement addressed to the
'101 The General Counsel contends that, since the strike , the Respondent has subcon-
tracted more of its work to another firm than it had prior to that time , and introduced
evidence to support this contention . I deem it immaterial whether the Respondent in-
creased the amount of work subcontracted by-it after the strike began
10B.Herman Adelman, John Babino, Edith Cirillo, Catherine Dowling, Rose Fitzpatrick,
Sophie Fowler , Gertrude Guinan , Foward Holmes , Catherine Johnson, Anna McGanp
Lavden , Angelo Marchese , Olga Marcia , Jean Novotny , Edith Price , Elizabeth Ratalsky,
Thomas Renna , Kostanty Ross , Helen Ryan , Alice Schmidt, Hattie Skalski , Frances Stan-
ton, Rita Stock , Catherine Thorgersen , Justine Wiatrak and Gus Yeaton
109 Isabel Cheeseman, Kathleen Corkery, Elizabeth Costello , Victoria De *Carlo, Anne Don-
nelly, Anne Durkin, Violet Etheridge , and Margaret Rose
110 With respect to all but the following , applications for unconditional reinstatement
were received by the Respondent on May 6 , 1954 : John Babino , no request for reinstate.
ment , Anne Durkin, no request for reinstatement ; Olga Marcia , May 7 ; Doris Noonan,
May 17 ; Edith Price, May 12 ; and Thomas Renna , no request for reinstatement.
FORD RADIO & MICA CORPORATION 1089
Respondent. Accordingly, these employees are not entitled to any reimbursement
for loss of earnings, except in the event that the Respondent should fail to offer
them reinstatement and they should thereafter unconditionally request reinstatement.
In that event, back pay shall begin to run from 5 days after the employee uncon-
ditionally requests -reinstatement.
There remains the matter of back pay for Marchese. It is stated above that his
conduct on the picket line was not sufficient to justify the withholding of his re-
instatement. However, he did not release Fabriski immediately upon her request to
do so; it was necessary for her to kick him in order to get free. Such minor assaults
cannot be overlooked, for in the context of heat generated by a strike such incidents
can readily form the sparks that set offmajor clashes. While I do not believe that
Marchese should forfeit all back pay due him, I am of the opinion that the purposes
of the Act will best be effectuated by deducting a reasonable sum from the -back pay
-due him. Although this is a novel remedy, the Board's remedial powers are flexible,
and should be tailored to fit the particular circumstances of the case. And lack of
precedent should not be confused with lack of power.ili I will accordingly recom=
mend that Marchese shall be reimbursed as above, but that the sum of $200 shall
be deducted from the amount of back pay due him.
The back pay provided for herein shall be computed on a quarterly -basis in the
,manner established by the Board; earnings in one particular quarter shall have no
effect on the back-pay liability for any other period. It will also -be recommended
that the Respondent make available to the Board, upon request, payroll and other
records which facilitate the checking of the amount of back pay cue. It is further
recommended, in the event that any of the discharged strikers incurred medical and
hospitalization expenses which would have been covered by the canceled medical
and hospitalization plans, or sustained losses because of the cancellation of the life
insurance policy, that the Respondent make them whole for such expenses.112 It
will also be recommended that the Respondent post appropriate notices.
As it has been found that the Respondent did not violate the Act by granting wage
increases to employees in order -to discourage union membership or by discharging
Zukowsky, it will be recommended that the complaint be dismissed in these respects.
[Recommended Order omitted from publication.]
111 Coats d Clark, Inc (Clarkdale Plant), 113 NLRB 237.
» Kntckei backer Plastio Co , Inc, 104 NLRB 514, 516, enfd. 218 F. 2d 917 (C. A. 9).
APPENDIX B
EMPLOYEES WHO STAYED AWAY FROM WORK ON MARCH 15, 1954
Isabel Cheeseman Rose Fitzpatrick Elizabeth-Ratalsky 4
Edith Cirillo Sophie Fowler Margaret Rose
Kathleen Corkery Catherine Johnson Alice Schmidt
Elizabeth Costello 1 Anna McGann Lavden 3 Hattie Skalski
Victoria De Carlo Olga Marcia Rita Stock
Anne Donnelly Jean Novotny Catherine Thorgersen
Catherine Dowling Edith Price Justine Wiatrak
Violet Etheridge 2
1 Also known as Helen Costello.
a Also referred to in the lecoid as Violet Ethridge
a Referred to in the complaint by her maiden name, Anna McGann.
Also referred to in the record as Betty Ratalsky.
APPENDIX C
EMPLOYEES
Herman Adelman
John Babino
Anne Durkin
Gertrude Guinan
WHO STAYED AWAY FROM WORK
Howard Holmes
Angelo Marchese
Thomas Renna
Kostanty Ross
ON MARCH 16, 1954
Helen Ryan
-Frances Stanton
Gus Yeaton
390609-'56-vol. 115-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Comparison between daily earnings of operators on 2 successive rates
(based on hourly wage of 95 cents)
On rate of 22 minutes On rate of 24 minutes
Production for 8-hr. day
Earned
minutes
Earned
pay
Efficiency
(percent-
age)
Earned
minutes
Earned
pay
Efficiency
(percent-
age)
22.000------------------------- 484 $7 66 100 8 528 $8 36 110
22,500- ----------------------- 495 7 84 103 1 540 8.55 112 5
23,000 ------------------------- 506 8.01 105.4 552 8.74 115
23,500--------- ---------------- 517 8 19 107.7 564 8 93 117.5
24,000 ------------------------- 528 8 36 110 576 9 12 120
24,500- ------------------------ 539 8.53 112.3 588 9.31 122.5
2 000 ---------------------- 550 8 71 114 6 600 9 50 125
25,500----- -------------------- 561 8 88 116 9 612 9 69 127.5
26,000------------------------- 572 9 06 119.2 624 9.88 130
26,500------- ----------------- 583 9 23 121.5 636 10 07 132.5
27,000 ------------------------- 594 9 40 123 8 648 10 26 135
27,500- ------------------------ 605 9.58 126 660 10 45 137.5
28,000------- ------------------ 616 9 75 128 3 672 10 64 140
28,500----------- -------------- 627 9 93 130 6 684 10 83 142.5
29,000------------------------- 638 10.10 132 9 696 11.02 145
29,500-- ----------------------- 649 10 28 135.2 708 11.21 147.5
30,000----- -------------------- 660 10 45 137 5 720 11 40 150
30,500- ------------------------ 671 10 62 139 8 732 11.59 152.5
Quota for 8-hr. day----------- 21,800 (approximate) 20,000
Necessary for 135% efficiency-- 29,500 (approximate) 27,000
Thus the operator on the 22-minute rate who produced 29,000 items in an 8-hour day would have earned
only $10.10 and would not have attained 135 percent efficiency , while the operator on the 24-minute rate
who produced an equal amount would have earned $11.02 and would have attained more than 135 percent
efficiency . And an operator on the 22-minute rate who produced 30,000 in an 8-hour day would receive
the same pay ($10 45) and attain the same efficiency (137.5 percent) as one on the 24-mmuto rate who pro.
duced only 27,500 in the same period of time.
North American Aviation, Inc. and International Union of Oper-
ating Engineers, Local 89, AFL-CIO , Petitioner . Case No.
9-RC-2696. April 19,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Regulations Act, a hearing was held before Orville E. Andrews, hear-
ing officer. The hearing officer 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
1 In the absence of objection from any party , the Petitioner 's motion to receive in evi-
dence Petitioner's Exhibits 8, 9, and 10, inadvertently omitted from the record , is hereby
granted.
115 NLRB No. 171.