Geilich Tanning Co.

National Labor Relations Board - Board Decisions

Jan 27, 1959

122 N.L.R.B. 1119 (N.L.R.B. 1959)

GEILICH TANNING COMPANY 1119
Geilich Tanning Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL -CIO 1 and Taunton
Leather Workers Union ,2 Party to the Contract . Case No.
1-CA-2365. January 27, 1959
DECISION AND ORDER
On May 2, 1958, Trial Examiner C. W. Whittemore 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. Thereafter , the Respondent
and the Independent filed exceptions to the Intermediate Report and
supporting briefs.
The Respondent contends , inter alia, that the Intermediate Report
,should be set aside because of the bias and prejudice on the part of
the Trial Examiner. We have carefully reviewed the entire record
herein and we find not only that a number of the Trial Examiner's
findings, adverse to the Respondent , were clearly erroneous but also
that the Trial Examiner in various respects displayed a partisan
attitude . We have reference to the following circumstances:'
1. The Trial Examiner found that the Independent held only one
meeting during relevant periods herein , in June, and also found that
at that meeting Foreman William Delaney made a motion , which was
seconded by his brother John ,4 that the bylaws of the Independent
be altered to require that membership in the organization be for-
feited upon termination of employment.
The record shows, however , that there were two meetings of the
Independent during the material period herein, the first on May 2
and the second on the first Tuesday in June. The minutes of the
two meetings are in evidence ,, and there is no dispute about their
correctness . Moreover, the minutes show that the Delaneys did not
make, and second , the above motion, but rather that it was made
and seconded by admitted employees , Frizado and Gilbert, during
the June meeting.
' Herein called Meat Cutters.
2 Herein called Independent.
8 The various erroneous findings and partisan conduct of the Trial Examiner are merely
being enumerated at this juncture . Their significance will be more clearly understood
when we discuss the substantive merits of the case later in the text. We are not setting
aside the Intermediate Report, or remanding this proceeding , because we find, nonetheless,
that the evidence falls short of showing that the Respondent has violated Section 8(a) (2)
and (3 ) of the Act.
• The General Counsel contends that 14 working foremen, including the 2 Delaneys,
are supervisors within the meaning of the Act.
122 NLRB No. 133.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that the Respondent's president,
Simon Geilich, gave "instructions" to his working foremen, during
a management conference held the same day as the Independent's
June meeting, to attend the latter's meeting that evening and vote
to change the bylaws so that nonemployees could no longer retain
membership in the Independent. There is no substantial evidence
in the record to indicate that Geilich did anything more than suggest
that foremen attend the meeting 5
3. The Trial Examiner found that neither the Independent' s secre-
tary, Hellwege, nor the chairman of its negotiating committee,
Kenney, had heard, prior to the execution of the second contract
herein, any discussion among the employees concerning their desire
for changes in their current agreement. To the contrary, both
Hellwege and Kenney testified that they had heard the employees
discuss possible contract changes before the execution of the second
agreement.
4. The Trial Examiner engaged in the following argumentative
cross-examination of President Geilich concerning his failure to
interview Reed before the latter was discharged:'
TRIAL EXAMINER: I have just one question. You have used
this term "interviewing witnesses" with respect to the Reed case.
You have testified you did not call Reed in or interview him
at any time.
The WITNESS (Geilich) : That is right, Sir.
TRIAL EXAMINER : Do you consider that as an employer, you
were acting fairly in that matter?
The WITNESS : I told the advice of our counsel, sir. [Sic.]
TRIAL EXAMINER : I asked you if as an employer you con-
sidered you were acting fairly to Reed?
The WITNESS : That is a hard question to answer, your honor,
when I had to take the advice of our counsel. After all, I
figured he had better judgment as far as any
TRIAL EXAMINER : You hired your force, didn't you?
The WITNESS : And I followed his advice.
TRIAL EXAMINER: Do you consider that I, as a Trial Ex-
aminer, would be acting fairly if I refused to hear you as a
witness?
WITNESS : No, Sir.
TRIAL EXAMINER : Your counsel wouldn't have thought I was
fair either. All right, I have no other questions.
5 See footnote 16, infra.
6 The reasons why the Respondent did not interview Reed will be discussed later in
the text.
C%
GEILICH TANNING COMPANY 1.121
5. After Geilich had testified that Assistant Superintendent Fitz-
patrick had reported to him about Reed's various fights about 10 days
or 2 weeks before the latter's discharge, this took place :
RESPONDENT'S COUNSEL : Having heard this story from Mr.
Fitzpatrick, what did you do next?
WITNESS (Geilich) : I sat at my desk in deep thought.
TRIAL EXAMINER: For two weeks?
6. The Trial Examiner states in his Intermediate Report: "The
Trial Examiner can place no reliance upon Simon Geilich's denial
that he had knowledge of Reed's union activity." However, no such
denial appears in the record.
7. In finding that the working foremen, in dispute herein, were
supervisors within the meaning of the Act, the Trial Examiner
stresses the fact that President Geilich testified that he employed
no supervisors, apart from certain management officials. However,
at the hearing, when the Respondent attempted to adduce evidence
showing that the Respondent employed supervisors within the mean-
ing of the Act in addition to the top managerial hierarchy, and
apart from the working supervisors, the Trial Examiner cut short
such testimony on the ground that there was no issue about these
individuals.
8. The Trial Examiner refused to admit evidence by the Respond-
ent showing what occurred during the negotiating meeting between
the Respondent and the Independent prior to the execution of the
second contract herein, on the ground that there was no allegation
in the complaint that anything that occurred at this meeting was a
violation of the Act. Nevertheless, in the Intermediate Report, the
Examiner finds : "A new contract was hastily entered into and
signed, without ever being ratified by the Independent membership
as a whole,' during the latter part of June 1957. The testimony
of Secretary Hellwege is to the effect that at the so-called single
negotiating meeting the company told the committee what it would
give and the committee members accepted." 8
9. After a witness called by the Respondent, Plant Superintendent
Peterson, indicated that he was unable to understand a certain part
of his prehearing affidavit, which had been transcribed in longhand
by a Board investigator, the following took place, in which the Trial
Examiner went beyond the requirements of the situation :
TRIAL EXAMINER : Can you read?
The WITNESS (Peterson) : I hope I can, your honor. It is
pretty hard to read this. I don't know what that word is there.
? However, such ratification was not required by the Independent's bylaws.
s IIellwege's testimony does not bear out the Trial Examiner's finding.
505395-59-vol. 122-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Can you tell me what is there? What does that say right there,
please?
TRIAL EXAMINER: Can you read your own signature?
The WITNESS: That is my signature there. But I can't read
this here.
TRIAL EXAMINER : And did you swear to it and [did] you read
it before you swore to it?
The WITNESS : I read what I could of it, yes.
TRIAL EXAMINER : Are you in the habit of swearing to some-
thing that you can't read?
The WITNESS : I presume, I didn't know just what informa-
tion he was after.
TRIAL EXAMINER : I asked you if you were in the habit of
swearing to things that you can't read?
The WITNESS : I wouldn't say I would, your honor. But I
signed that thing here.
TRIAL EXAMINER : You apparently did in this case, is that it?
The WITNESS : I apparently did in this case.
10. In his Intermediate Report, the Trial Examiner casts un-
warranted aspersions upon the conduct at the hearing of the Re-
spondent's Counsel, to wit, "Although counsel for the Respondent
exercised notable concern and voiced leading questions in an effort
to make it appear that employees generally initiated the move to
reopen and renegotiate a contract, the general effect of such effort,
in the opinion of the Trial Examiner, was precisely the opposite of
that desired by counsel.""
11. We have set forth certain specific parts of the Intermediate
Report and transcript of the hearing which indicate a less than
strictly impartial and objective attitude on the part of the Trial
Examiner. This appears to be true also of the entire tenor of the
Intermediate Report, a copy of which is attached hereto. This is
not to say that we are of the opinion that Trial Examiners must use
strictly neutral and colorless language, or that Trial Examiners
may not express disbelief or incredulity. There obviously is room
for wide latitude in the use of style and language which will vary
with the temperament of the individual Trial Examiner and the
circumstances of the specific case. Reasonable men may sometimes
disagree whether a particular passage in an Intermediate Report
exceeds the limits of objectivity; however, without attempting to
define those limits, we believe that they have been exceeded here.
The Merits
In view of the cumulative effect of the erroneous findings and
the other matters discussed above, we would remand this case for
v As will be shown, contrary to the Trial Examiner , the record is clear that the
employees did, in fact, initiate the move to negotiate a new contract.
GEILICH TANNING COMPANY 1123
hearing before a new Trial Examiner, but for the fact that we are
satisfied, even upon the present record, that the General Counsel has
not proved his case by a preponderance of the evidence. Accord-
ingly, the Board has considered the Intermediate Report, the excep-
tions and briefs, and the entire record in this case, and hereby adopts
the findings and conclusions of the Trial Examiner except insofar as
they are inconsistent with our decision herein."
The complaint alleged, inter alia, and the Trial Examiner found,
that the Respondent dominated the Independent in violation of Sec-
tion 8(a)(2) and (1) of the Act. In this connection, the General
Counsel alleged that 14 "working foremen" were supervisors within
the meaning of the Act and that they had taken leading parts in
the activities of the Independent. The Trial Examiner found that
nine of the 14 were supervisors, including William and John Delaney.
The Respondent contends that the foregoing are not supervisors.
However, for purposes of discussing the issue of domination of the
Independent, we assume, without deciding, that the nine working
foremen are supervisors within the meaning of the Act.
In 1945, the Board certified the Independent, as the representa-
tive of the Respondent's employees, including the above working
foremen. In 1952, the Respondent signed a contract with the
Independent effective to December 31, 1957.
In April 1957 the Respondent's employees, who were members of
Blue Cross and Blue Shield, learned that the premiums of those
organizations were to be raised on July 1. The employees had been
paying for these benefits themselves. After some discussion, the
employees decided to ask the Respondent to pay for their insurance
premiums.11 President Lee of the Independent, who admittedly is
not a supervisor, asked the Respondent's President, Geilich, if the
Company would be willing to negotiate a new contract. The latter
replied that the employees should decide what they wanted and
then see him.
At a regular meeting of the Independent" on May 2, 1957,
Foreman William Delaney moved that a new contract be negotiated.
His brother, Foreman John Delaney, seconded the motion, and the
motion was passed. William Delaney was president of the Inde-
pendent in 1948 and admittedly has actively participated in the
affairs of the Independent.
At the time of the above events, no other union was on the scene.
In late May or early June, Reed began soliciting membership in the
10 The request of the Independent for oral argument is hereby denied , as the record and
the briefs , in our opinion, fully reveal the issues and positions of the parties.
n Apart from wage rates, which could be opened upon a 60-day notice, the contract
could not be opened during its term.
12 Seventy-eight members attended. The Respondent employs approximately 300 persons.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meat Cutters. He was discharged on September 18, 1957.13 The
record does not show the number of employees who signed author-
ization cards for the Meat Cutters, although Reed testified that he
signed up "lots" of employees. Early in June, Vice President Charles
Geilich saw Reed talking to some representatives of the Meat Cutters.
Geilich asked Reed what he was "talking to those fellows for?"
When Reed replied that he was interested in what they had to say,
Geilich -said "It is nothing but lies." 14 and added, "Don't talk to
them again."
The first Tuesday in June, President Simon Geilich called a meet-
ing of various management representatives, including the working
foremen. The meeting was primarily concerned with various pro-
duction and management problems. Upon disputed testimony, the
Trial Examiner found that President Geilich opened the discussion
as to whether nonemployees should be permitted to remain members
of the independent.15 Foreman Fernandez declared that he "didn't
think it was right for an outsider not working in the shop to handle
our money.'' He also stated, "How do we know that Herbert Rounds
is not outside there associating with the [Meat Cutters] now?"
President Geilich and the foremen discussed the outside union com-
ing into the plant and Geilich said he believed the "workers and
supervisors were getting along all right without another union."
As to the question of what Geilich said to the foremen about at-
tending the Independent meeting, he testified as follows :16
Towards the end of this meeting just before we were to break
up, one of the employees attending that meeting-Mr. John
Fernandes-pointed a question at me. He said in approximately
these words. "Do you think that anyone not working here any
longer ought to be a member of the union and take care of
our dough?"
13 This discharge was alleged by the General Counsel to violate Section 8(a) (3) of the
Act and is further discussed below.
"The Trial Examiner , who credited Reed as to this incident , omitted from the Inter-
mediate Report Reed ' s testimony that Geilich said , "It is nothing but lies."
Ir Shortly before this , an employee, Rounds , who was treasurer of the Independent, had
been discharged by the Respondent . The General Counsel does not raise any issue as to
Rounds' discharge.
10 The Trial Examiner credited Geilich's own testimony as to what he said in this re-
spect . Contrary to the Trial Examiner , however , we find that this testimony does not
bear out his finding that Geilich instructed the foremen to attend the Independent meet-
ing, but was , at most, an expression of Geilich's opinion as to their responsibility as
union members . Four witnesses who testified about this issue flatly denied that Geilich
instructed them to attend the meeting. The only other witness who testified on this
matter, Foreman John Silvia, stated at one point that Geilich indicated that he "wanted"
the foremen to attend the meeting ; elsewhere Silvia characterized Geilich's statement as
a "suggestion." It is noteworthy that Silvia did not attend such meeting. , Five of the
six working foremen, who had been present at the management meeting, attended the
union meeting that evening, including one who did not vote and two who Caine too late.
to vote. William and John Delaney attended the Independent meeting and ,apparently
voted.
GEILICH TANNING COMPANY 1125
I said, "Now wait a minute, Mr. Fernandes, it isn't up to me
to discuss any union matters with you." I said, "If you are
asking me for an opinion, you are members of the union ; you
are having a meeting tonight. I think you ought to go up there
and express yourselves."
That evening, a regular meeting of the Independent was held,
attended by 67 members. An employee, Frizado, moved that "we
terminate our relationship with any employee who does not work
at the tannery anymore." Another employee, Gilbert, seconded the
motion and it was passed."
Shortly after this, President Lee of the Independent appointed a
twenty-two man negotiating committee to discuss a new contract
with the Respondent. It is not alleged by the General Counsel that
any of the 22 men on the committee are supervisors. The nego-
tiating committee met with management on June 20. The meeting
lasted about 7 hours and a new contract was agreed upon and
executed the next day. It was another 5-year contract, and provides,
inter alia, that the Respondent will provide the employees with an
insurance program that will give them the equivalent of the Blue
Cross and Blue Shield plans.18 The new contract also provides that
the day after Thanksgiving shall be a holiday with pay, that
women who take maternity leave do not lose their vacation benefits,
and that new employees shall receive greater vacation rights as well
as higher minimum wages. Apart from the above, the two contracts
have the same provisions, including a lawful union-shop clause.
The record does not show when the Meat Cutters requested recog-
nition in July, but by letter dated July 18, 1957, the Respondent
informed the Meat Cutters that it declined to recognize it on the
ground that the Independent was the duly certified representative
of its employees and that it had a contract with the latter.
The Trial Examiner found that in August 1957, Superintendent
Peterson warned employee Davis, "You keep on talking to that guy
[Reed] and you will get yourself into trouble." The Trial Examiner
also found that in October 1957, Foreman William Delaney had
accused employee Wilkinson of working in the interest of an outside
organization and that Delaney had declared that he had "worked
hard" to get the inside union built up and "nobody is going to do
any damage to it," and added that President Geilich knew what was
going on and would take away the profit-sharing plant if "this
other union gets in."
"As previously noted, the Trial Examiner erroneously attributed this motion to Fore-
man William Delaney. ( Delaney did make a motion at the same meeting to amend the
bylaws . to dispense with ratification of contracts by all members.)
18 As stated before, prior to this time , the employees had paid for such benefits them-
selves and the prospective rise in their premiums had caused them to seek a new contract
with the Respondent.
1126 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
In' late June or early July 1957,19. while Reed was at work, em-
ployee Harry Silvia came up to him and engaged in some offensive
horseplay. When an argument ensued, Foreman Camara 20, came
between them. Upon, conflicting testimony, the Trial Examiner
found that Camara started to push and shove Reed and that the
latter accidentally hit Camara on the head; that Camara backed
away; and that this ended the incident.21
Camara reported the incident to Foreman John. Delaney, who
reprimanded both Silvia and Reed. In turn, Delaney reported to
Assistant Superintendent Fitzpatrick that Silvia and Reed had had
a fight and that Camara had been struck by Reed in attempting to
break it up. Delaney also told Fitzpatrick that Camara had stated
that he (Camara) and Silvia had been threatened with a knife by
Reed.
About 3 or 4 weeks later, Delaney informed Fitzpatrick about
other incidents concerning Reed, of which Fitzpatrick had had no
previous knowledge. In one incident, Reed had employee Reams
down on the floor and was hitting him; in another, Reed threatened
employee Oscar Silvia (not the Silvia mentioned above) with a bar;
in a third, Reed had engaged in fisticuffs. with employee Crowell
after Reed had made certain remarks about Crowell's wife; and in
a fourth, Reed had pulled a knife on employee Hurwitz..
Fitzpatrick checked with Hurwitz who confirmed the knife-threat-
ening incident. He also asked William Delaney about the Crowell
fight, which had occurred in the former's department, and was told
that Reed was, at fault. Fitzpatrick also was told by Camara about
another incident in which Reed had thrown an iron pipe at employee
Resendes. All these incidents had occurred over a period of several
years.22
Early in September Fitzpatrick reported all the foregoing to
President Geilich, who, in turn, discussed the situation with his
attorney. The latter advised Geilich that, with the Respondent's
knowledge of Reed's character, it would be liable in damages if Reed
hurt anyone. The attorney also dissuaded Geilich from questioning
Reed on the ground that nothing Reed would say would relieve
Respondent of responsibility for any future misconduct by Reed.
President Geilich thereupon determined to discharge Reed. The
latter was out sick at the time. When Reed came back to work on
19 The testimony as to the date of this incident is conflicting . Pearson, the disinterested
witness credited in great part by the Trial Examiner, said it occurred in the third or
fourth week of July . Others stated it occurred in August . The Trial Examiner credited
Reed that the event occurred in late June or early July.
m The Trial Examiner found Camara was not a supervisor.
21The Trial Examiner discredited Camara's testimony that, during his argument with
Silvia, Reed reached for a knife, which he used in his work and wore on his back.
22 In his testimony , Reed did not deny these various incidents , but contended only that
he was not at fault.
GEILICH TANNING COMPANY 1127
September 18, Fitzpatrick, at the instance of Vice President Charles
Geilich, discharged Reed.
Thereupon, President Lee and a six-member grievance committee
held a meeting to determine whether Reed's discharge was fair or
whether they should invoke the grievance procedure. They heard
testimony relating solely to the Harry Silvia and Camara incident
and determined that this matter was not sufficient cause to discharge
Reed. Thereafter, they met with President Geilich and the Re-
spondent's attorney and attempted to secure Reed's reinstatement.
However, the attorney informed them of the various other incidents
involving Reed, of which they had not previously been aware, and
also told them that the Respondent would be liable in damages if
Reed subsequently hurt anyone. During the course of the attorney's
explanation, President Lee privately asked a member of the grievance
committee whether he should tell the rest of the members that Reed
had admitted to Lee that he had pulled a knife on Hurwitz, in one
of the incidents mentioned above. The other replied, "Why didn't
you tell them before? We wouldn't be here this long." Whereupon
Lee informed the rest of the committee of this affair. The committee
then voted unanimously not to protest the discharge of Reed. Upon
the basis of conflicting testimony of the members of the committee,
the Trial Examiner found that the Respondent's officials were present
when the committee voted.
1. THE TRIAL EXAMINER'S CONCLUSIONS
A. Reed's discharge
The Trial Examiner found that the Respondent's contention that
Reed was discharged for cause was a pretext and that the real
reason was Reed's concerted activities. To support this conclusion,
the Trial Examiner relied on Vice President Charles Geilich's ad-
monition to Reed early in June against talking to representatives of
the Meat Cutters and Plant Superintendent Peterson's warning in
August to employee Davis not to talk to Reed 23
As to Reed's altercation with Silvia and Camara, the Trial Ex-
aminer discusses this affair at some length. He found a conflict
between Camara's prehearing affidavit where he stated that Reed
reached for his knife and Camara's testimony at the hearing that
Reed actually touched his knife. The Trial Examiner found also
that President Geilich's information concerning the dispute "pos-
21 He further relied on certain hearsay testimony (to which the Respondent objected at
the hearing) of employees Reed and Wilkinson that President Lee of the Independent had
warned them that the Respondent was looking for an excuse to fire them. The record is
clear, and the General Counsel does not contend otherwise, that Lee was not a supervisor
and there is no other valid basis for holding that his statements were binding on the
Respondent. Accordingly, we find that any reliance by the Trial Examiner thereon was
improper.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sessed scant resemblance to that .related by the participant Silvia
or by the participant Camara." Therefore, the Trial Examiner
placed little weight on this incident.
However, we find that what actually happened during this dispute
and who was at fault is immaterial in view of the following: : The
evidence is undisputed that Assistant Superintendent Fitzpatrick
was told by Foreman John Delaney that Reed was responsible for
the altercation and that, in turn, he so informed President Geilich.
Also, the record is clear that John Delaney, after thinking over the
affair for 3 or 4 weeks, told Fitzpatrick of various other arguments
or fights in which Reed was involved, and that Fitzpatrick, after
independent investigation, imparted these incidents to Geilich. The
Trial Examiner places great weight on the fact that Geilich did not
give Reed a chance personally to deny these events but relied on
"hearsay" reports. The Trial Examiner infers therefrom a pretext
"to curtain the real and actual reason for [Respondent's] action."
Contrary to the Trial Examiner, we find that the Respondent had
a valid reason for not interviewing Reed. As already stated, Geilich
was dissuaded by his attorney from questioning Reed about his mis-
conduct and advised to discharge him in order to preclude any
liability on the part of the Respondent for Reed's possible future
actions.
The Trial Examiner also finds that the tinning of Reed's discharge
tends to bear out his ultimate conclusion of unlawful motivation.
Reed's dispute with Silvia and Camara occurred around July 1,
according to the Trial Examiner, and he was discharged on Septem-
ber 18. However, the Trial Examiner does not explain why he
regards the delay in Reed's discharge as indicative of unlawful
motivation.
On the contrary, the chronology of events herein is one of the
principal reasons why we are persuaded that Reed's discharge was
lawfully motivated. The Respondent was aware of Reed's activities
on behalf of the Meat Cutters by late May or early June. Assuming
that it determined to discharge Reed for his solicitation, and was
waiting only for a pretext to conceal its unlawful motivation, the
Respondent had such a pretext as soon as Reed became involved in
his dispute with Silvia and Camara around July 1 .24 It had no rea-
son to wait any longer, if we adopt the Trial Examiner's "pretext"
view. Fitzpatrick, who had authority to discharge, was told by
Delaney that Reed had been it fault in the altercation. However,
Fitzpatrick, instead of summarily discharging Reed, merely warned
him against any repetition of the incident and did not even report
the incident to Geilich until after Delaney's report of other incidents,
as Reed testified that he felt that the Respondent would have been justified if it had
discharged him at the time.
GEILICH TANNING COMPANY 1129
and then only after he ( Fitzpatrick ) had investigated these incidents.
As stated above, the Respondent did not discharge Reed until Sep-
tember 18.. There is nothing in the record to show that the discharge
coincided with any increase in the intensity of the Meat Cutters'
organizing campaign. Reed testified that he signed up "lots" of
employees, but there is no evidence to indicate that he was more
active in this respect about the time of his discharge than in May
or June.
Contrary to the Trial Examiner , we find that the Respondent's
stated reasons for Reed's discharge are true. There is no dispute
that Reed was a very undesirable employee who had a penchant for
getting into altercations with his fellow employees. The Respond-
ent had every right, as does any employer, to discharge Reed in order
to rid itself of a source of friction in the plant and also to foreclose
any responsibility on its part for any injury that Reed might inflict
upon his fellow employees in the future . Although there was a
delay between the time of Reed's altercation with Silvia and Camara
and the date of his discharge by Geilich , this is adequately explained,
in our opinion, by the fact that the above altercation and the other
episodes involving Reed were not brought to Geilich 's attention until
early in September; the latter took action as soon as practicable.
In view of the foregoing, and upon the record as a whole, we find,
contrary to the Trial Examiner, that, in discharging Reed, the Re-
spondent did not violate Section 8(a) (3) of the Act.
B. The Respondent's domination of the Independent
The Trial Examiner found that the Respondent violated Section
8(a) (2) and (1) of the Act by dominating and assisting the Inde-
pendent and interfering with its administration. He found that, of
14 individuals alleged to be supervisors by the General Counsel, 9
were, in fact , supervisors . He also found that all nine, as instru-
ments of the Respondent , had played leading roles in the activities
of the Independent.
The Trial Examiner set forth various incidents which he deemed
to show domination of the Independent by the Respondent. This
included the part Geilich played in getting the foreman to attend
the meeting of the Independent in June, the only meeting , according
to the Trial Examiner, during the period involved herein; the part
William Delaney played at this meeting; the fact that no nonsuper-
visory employees suggested renegotiation of the contract; and the
fact that the contract was hastily executed . In the Trial Examiner's
opinion, the new contract was entered into for the purpose of dis-
couraging further efforts of the Meat Cutters to organize.
1130 DECISIONS OF NATIONAL " LABOR. RELATIONS BOARD
Another demonstration of the Respondent 's domination and con-
trol of the Independent 's affairs, according to the Trial Examiner,
was what occurred at the meeting of the grievance committee held
with the Respondent for the purpose of securing Reed's reinstate-
ment. The Trial Examiner found significant the fact that the com-
mittee, in the presence of management officials , reversed its stand
and voted to accept the Respondent 's decision . The Trial Examiner
found it "unreasonable to believe ... that a committee of employees
which had made a full and impartial investigation concerning the
claimed offenses of Reed, should accept without question this [what
Lee had told the committee about Reed admitting he had pulled a
knife on Hurwitz ] wholly unsupported charge by Lee." In conclu-
sion, the Trial Examiner found that the following circumstances
established unlawful domination and assistance of the Independent
by the Respondent :
(1) permitting the membership and activity of its supervisors
in the said organization;
(2) granting dues checkoff of its supervisory employees to it;
(3) the conduct of President Geilich and William Delaney in
obtaining and retaining the power to unseat any elected official
of the organization by terminating his employment with the
Respondent;
(4) urging and suggesting , by Geilich , that supervisors and
foremen attend and participate in a meeting of the organization;
(5) urging and suggesting , through its supervisors William
and John Delaney the renegotiation of an existing 5-year con-
tract;
(6) entering into a new 5-year agreement , providing for mem-
bership in the organization as a condition of employment;
(7) participation in, by management officials , and domination
of, a grievance committee meeting in September 1957; and
(8) through Foreman William Delaney threatening with eco-
nomic reprisals employees who sought representation through
an organization other than the Independent.
However, the uncontradicted evidence , as set forth above, reveals
the following :
(a) William Delaney did not make the motion to amend the
bylaws to require that membership in the Independent be forfeited
upon termination of employment , nor did his brother second the
motion, but rather admitted employees moved and seconded this
motion.
(b) The employees themselves , and not supervisors , instigated the
negotiation of a new contract because of the prospective rise in Blue
Cross and Blue Shield premiums.
GEILICH TANNING COMPANY , - 1131
. (c) President Geilich did not.instruct his foremen to attend the
meeting of the Independent in June."
(d) As stated above, the Trial Examiner. fouled that nine working
foremen were supervisors and that, as instruments of the Respondent,
they had played leading roles in the activities of the Independent.
However, the Trial Examiner sets forth no evidence, and the record
reveals none, to show that, apart from William Delaney, the work-
ing foremen were active in the Independent. During the period in
issue, the record shows only that some of the foremen attended one
meeting of the Independent. The Act permits supervisors to be
members of a union and, indeed, the Board included the working
foremen in the bargaining unit in 1945, as mentioned above.
The fact that the new 5-year contract of June 21, like the old,
provided for a lawful union shop and required dues checkoff of the
employees (including the working foremen) has little significance.
Absent any contention or finding to the contrary, we assume that the
old contract was in all respects valid. Accordingly, these provisions
merely continued in effect the valid provisions of a previous contract.
There remains for consideration the activities of William Delaney
and the part played by the grievance committee in protesting Reed's
discharge, both relied on by the Trial Examiner. As to the first
point, it is clear that William Delaney was active in the Independ-
ent's affairs during all times material herein, and it is assumed for
purpose of this discussion that Delaney was a supervisor. How-
ever, these circumstances alone are not sufficient to prove unlawful
domination.
In Nassau and Suffolk Contractors' Association, Inc., etc., 118
NLRB 174, the Board found no violation of Section 8(a) (2), in the
fact that supervisory master mechanics, who were required by the
parties' contract to be union members and were included in the bar-
gaining unit, took an active part at union meetings "in the ab-
sence of evidence . . . that the Respondent encouraged, authorized,
or ratified their activities, or acted in such manner as to lead em-
ployees reasonably to believe that the supervisors were acting for
and on behalf of management." In so holding, the Board pointed
out that Congress, in Section 8(b) (1) (A), added a caveat to Sec-
tion 7 that. the right there guaranteed do not "impair the right of
a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein." The Board also
We are of the opinion that the general discussion that took place at the management
meeting , set forth above, is immaterial to the question of the Respondent 's alleged
domination of the Independent. Supervisors have the right at a management conference
merely to express their opinions as to whether nonemployees should belong to a union
established by company employees for their own benefit . As to President Geilich's state-
ment that things "were getting along all right without another union," it is clear that,
apart from other considerations , it falls within the "free speech " provision of Section 8(c)
of the Act.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the union had been in existence for a number of years
and there was no contention or evidence that it was employer-
dominated in its inception.26 The Board also stated :
Ordinarily when a supervisor injects himself into union af-
fairs the employer is held liable for his conduct. But this is not
invariably so. In certain situations, the Board and the courts
have recognized that a supervisor participating in union mat-
ters is acting in his individual rather than in his representative
capacity and have refused to hold the employer responsible for
his conduct... .
Where foremen are members of the rank-and-file unit and
union, it is reasonable to expect that they will have a voice and
vote in the administration of the affairs of the union. It is
obvious that in a setting where foremen are included in bar-
gaining units together with the rank and file some modification
of the ordinary rules of respondent superior must be made.
The Board and the courts have indeed recognized this fact and
have adopted a more limited theory of employer liability for
the conduct of supervisors included in a rank-and-file bargain-
ing unit. Thus, when a supervisor who was included in a bar-
gaining unit with nonsupervisory employees made certain anti-
union remarks, the Board refused to hold his employer
automatically responsible for what the supervisor had said.
Supervisors included in the unit, the Board said, "had the same
right as rank and file employees to express their views as to
the undesirability of representation by the Union. Liability for
such statements and activities may be attributed to the Re-
spondent only upon a showing that the respondent `encouraged,
authorized, or ratified their activities or acted in such a man-
ner as to lead the employees reasonably to believe that the
[supervisors] were acting for or on behalf of management."'
Turning then to William Delaney's activities, the record shows
the following: Delaney has been a member of the Independent for
about 13 years and was president around 1948. At the June meet-
ing, he moved that the bylaws be amended to permit the negotiat-
ing committee to enter into a binding contract with the Respond-
ent, thereby eliminating the requirement of ratification of contracts
by the members. In itself, this would seem to be a neutral action
on the part of Delaney. It is not uncommon for unions to dispense
with contract ratification by the membership as a whole. Moreover,
in the instant case, 22 admitted employees were subsequently ap-
pointed to the negotiating committee by President Lee and there
is nothing to indicate that they did not fairly discharge their duties.
21 The same is true in the instant case.
GEILICH TANNING COMPANY 1133
Delaney also made the motion at the May meeting to renegotiate
the current contract with the Respondent. However, the record is
clear, as set forth above, that prior to this time, the employees had
determined to ask the Respondent to provide them with a substitute
for, or pay for, their Blue Cross and Blue Shield plans as well as
for other changes in the contract. Looked at in this light, the fact
that Delaney actually made the motion is scant evidence of em-
ployer domination, but indicates that Delaney performed only a
ministerial act after the employees, themselves, had made the sub-
stantive decision to seek a new contract.
However, assuming, argue-ndo, that Delaney actually was one of
the leaders in the movement to renegotiate the contract, it still does
.not necessarily follow that his actions may be attributed to the
Respondent. The question is whose interests was he then advanc-
ing-the Respondent's or the employees'? This is a factual question.
The then current contract still had 6 months to run. Thus, the
Respondent did not have to agree to change any terms or conditions
of employlnent.27 However, as the Trial Examiner indicates, the
Respondent might conceivably have desired to execute a new con-
tract in order to forestall the Meat Cutters. While, contrary to the
Trial Examiner's implication, the employees received some sub-
stantial new benefits under the new contract, as set forth above,
it may be argued that the cost of these new benefits was the price
the Respondent was willing to pay in order to secure a stabilized
bargaining relationship for the next few years and keep the Meat
Cutters out of the plant. Under this view, the new contract would
be considered, in effect, a, bribe to the employees, in order to retain
their allegiance to the Independent.
Consequently, it may be contended that, although Delaney seemed
to be working contrary to the Respondent's interests in seeking more
benefits for the employees, he was in reality, merely the agent of
the Respondent, carrying out its instructions, in order that a new
contract might be executed and the Meat Cutters forestalled.
However, the short answer to all these speculative inferences is
that the motion to reopen the contract was made by Delaney on
May 2, when the Meat Cutters had not yet begun their organizing
carrmpaign. We conclude, therefore, that, in seeking to reopen the
contract, Delaney was acting on behalf of the employees and against
the interests of the Respondent. We find, also, contrary to the
Trial Examiner, that Delaney's statement to Wilkinson in October
1957, warning of reprisals by the Respondent if the Meat Cutters
displaced the Independent do not warrant a finding of unlawful
assistance or domination. As stated in the foregoing quoted ex-
cerpt from the Nassau case, a respondent's liability for antiunion
'T Apart from wages , which could be reopened on a 60-day notice.
1134 DECISIONS ^OF ' NATIONAL -LABOR) RELATIONS BOARD
utterances of a supervisor who, as here, is in the bargaining unit
depends on whether the respondent has expressly authorized or rati-
fied such utterances.28 There is no evidence here of such authoriza-
tion or ratification. In any event; Delaney's warning to Wilkinson,
even if attributable to the Respondent, would not, standing alone,
suffice to constitute a violation of Section 8(a.) (2).
Finally, we turn to the grievance committee. - As another dem-
onstration of the Respondent's domination and control of the In-
dependent's affairs, the Trial Examiner points to the grievance
committee's change of mind and decision not to seek the reinstate-
ment of Reed. The Trial Examiner found that, after his discharge,
Reed appealed to the Independent, whereupon a committee of six
employees, none of them supervisors, held hearings, "queried at least
1 disinterested employee [Pearson] present at in alleged incident
whom Geilich had not seen fit to interview,' and unanimously de-
cided to protest the discharge and seek Reed's reinstatement, despite
Reed's open solicitation for the [Meat Cutters]." The Trial Ex-
aminer treats as evidence of domination the facts (a) that the coin-
mittee reversed its stand when it was informed that the Respondent
refused to reinstate Reed and (b) that the committee voted in the
presence of management officials to reverse its stand.
As to (a), as set forth before, the record shows that this change
of position occurred only after the committee had been informed by
the Respondent's attorney of several other incidents involving Reed,
of which the committee had not theretofore been aware, and also
after Lee had told them of Reed's admission that he had pulled a
knife on one employee. The Trial Examiner minimizes the latter
fact by stating, "It is unreasonable to believe ... that a committee
of employees which had made a full and impartial investigation
concerning the claimed offenses of Reed, should accept this wholly
unsupported charge by Lee."
The Trial Examiner does not state why he considers Lee's state-
ment to the employees a "charge" nor does he give any reason why
it. should be inferred that the committee would not believe their
own president. We deem it significant, moreover, that the Inde-
pendent sought the reinstatement of Reed in the first instance, al-
though it was aware of his activities on behalf of another labor
organization. We find it unlikely that a dominated union would
take such action.
As to (b), absent any persuasive evidence that the committee's
vote was influenced by the mere presence of the Respondent's offi-
cials, we attach no significance to the fact that the vote was taken
while such officials were at. the meeting.
' See , also, Montgomery Ward & Company, Incorporated, 115 NLRB 645 , 647, holding
that threats of reprisal for union activity by a supervisor who was included in the
bargaining unit do not violate Section 8(a)(1) of the Act.
GEILICH'TANNING COMPANY 1135
In view of the. foregoing, and upon the record as a whole, we
find, contrary to the Trial Examiner, that the Respondent has not
dominated the Independent. Nor do we find that it has unlawfully
assisted, or interfered with the administration of, that labor or-
ganization.
C. The Section 8(a) (1) violations
The Trial Examiner also found that the Respondent violated.
Section 8(a) (1) of the Act by (a) Vice President Charles Geilich's
admonition to Reed not to talk to representatives of the Meat Cut-
ters and (b) Plant Superintendent Peterson's warning to employee
Davis against talking to Reed.
As regards (a), as stated above, when Geilich, in May or June;
saw Reed with representatives of the Meat Cutters, Geilich asked
Reed why he was speaking to them and declared that what they
had to say was nothing but lies, and that Reed should not talk to
them. As to the interrogation aspect of this remark, it does not
meet the test laid down by the Board in the Blue Flash case.29
Whether or not such statement was intended or understood to be
of a coercive nature, it is clear that Reed openly continued his con-
certed activities and the Respondent did nothing to interfere with
such activity by Reed for the entire 4 months following this event
that Reed remained in the Respondent's employ.
As to (b), as stated above, the record shows only that Peterson
came up to Davis, while the latter was eating his lunch, warned him
against talking to Reed, and left. There is nothing to indicate what
provoked this remark, or that it was intended as anything more
than an admonition against excessive talking during working hours.
In any event, even if we consider either or both of the foregoing
incidents as violations, we do not believe, in view of their isolated
nature, that it would effectuate the policies of the Act to issue a
cease and desist order herein. Accordingly, we shall dismiss the
complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER BEAN, dissenting in part :
Although I agree with niy colleagues that the Respondent did not
engage in the alleged violations of the Act with respect to the In-
dependent or employee Reed, I do not agree with their dismissal of
the complaint in its entirety. The record seems to me to show that
the Respondent clearly violated the statutory rights of its employees
in certain respects. Thus, Charles Geilich and superintendent Peter-
son, both management representatives, warned employees of getting
in trouble for talking to the Union's organizers; and Foreman Wil-
29 Blue Flash Empress, Inc., 109 NLRB 591.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Liam Delaney threatened the employees with loss of benefits after
accusing one of , them of working on behalf of the Union. If my
colleagues are of the opinion that the hearing before the Trial
Examiner which established these facts deprived the Respondent
of due process, I believe it preferable that they should at least
remand the case for a new hearing rather than dismiss these viola-
tions on the ground that they were of an "isolated nature" and did
not merit a cease and desist order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named
Respondent Company, a hearing involving allegations of unfair labor practices in
violation of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act, was held in Taunton, Massachusetts,
on March 11, 12, 13, and 14, 1958, before the duly designated Trial Examiner.
As to unfair labor practices, in substance the complaint alleges and the answer
denies that the Respondent: (1) on September 18, 1957, discriminatorily, and to
discourage membership in the Amalgamated Meat Cutters, herein called the Union,
discharged employee Allison Reed; (2) since March 20, 1957, has dominated,
assisted, contributed to the support of, and interfered with the administration of
Taunton Leather Workers Union, herein called the Independent; (3) in June 1957,
entered into a renewed collective-bargaining agreement with the Independent; and
(4) by such conduct interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.
All parties were represented at the hearing, and were given full opportunity to
examine and cross-examine witnesses, and to introduce evidence bearing upon the
issues. Oral argument was waived. Briefs have been received from all parties
except the Charging Union.
At the conclusion of the hearing ruling was reserved upon a motion by the
Respondent to dismiss the 8(a)(2) allegations of the complaint. Said motion is
disposed of by the following findings, conclusions, and recommendations.
From his observation of the demeanor of the witnesses, and from the entire
record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Geilich Tanning Company is a Massachusetts corporation, with principal office
and place of business in Taunton, Massachusetts, where it is engaged in the manu-
facture, sale, and distribution of leather and related products.
It is conceded that the Respondent causes leather and related products valued
at more than $50,000 annually to be shipped and transported from its plant in
interstate commerce to points in the United States other than in the Commonwealth
of Massachusetts.
The Respondent admits and it is here found that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, and Taunton Leather Workers Union are labor organizations admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Company domination of the Independent
1. Background of organization
Although the record does not show when or under what circumstances the In-
dependent came into existence, it does establish that on April 7, 1945, the Board
certified it, in Case No. 1-R-2150, as the exclusive bargaining agent for employees
GEILICH TANNING COMPANY 1137
in a unit including, among others, "working foremen," but specifically excluding
"foremen , and any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action."
At the time of this certification, some 13 years ago, there were only about
32 employees in the plant; currently there are about 300. The fact that the work-
ing force has increased tenfold indicates that in this long period some change in
the supervisory staff must reasonably have been made, and that the situation in
1958 is not that of 1945.
2. The question of supervisors
One of the factors relied upon by General Counsel, to support his claim of
company domination of the Independent, is the continued membership and ac-
tivity in the Independent of supervisors within the meaning of the Act. The Re-
spondent counters with the claim that no supervisor within the meaning of the
Act is a member, but only certain "working foremen," as permitted by the Board's
certification noted above.
General Counsel specifically challenges the following individuals:
Jeff Hebert Bill Delaney
John Delaney John Muniz
John Fernandez Harold Benson
John Silvia Charles Cote
Fred Robinson Manuel Camara
Ludger Benoit Orren Hellwege
Harold Priest
as being supervisors within the meaning of the Act. The Respondent denies that
they are supervisors as alleged.
About most of the above-named individuals the Respondent adduced a good
deal of testimony in support of its denial. When appraised in its totality such
testimony provides a picture so confused as to cast immediate doubt upon its merit.
For example, although testimony of high officials and documents already in
evidence had established that there were "foremen" at the plant, Simon Geilich,
president of the Respondent, blandly declared, when asked how many foremen he
now had in the plant who came within the excluded terms of the certification:
We have no foremen today. The head of each department is called the
supervisor.
This reply brought from his own counsel the following comment:
I shudder to think how confusing this is going to be on the record.
And although effort was made by the Trial Examiner to . clarify the point,
Geilich insisted that now, with 300 employees, he had no supervisors within the
meaning of the Act (except management officials) although there were 2 in such
capacity when there were only 30 employees.
During the course of the hearing it became apparent to the Trial Examiner, and
the probability is shown in the record, that on this point of supervisors most of the
Respondent's witnesses were more vigorously concerned with giving testimony to
support the Respondent's position than with revealing the truth as to their own
supervisory capacity.
Even Superintendent Elcanna Peterson strove to make it appear that certain
individuals named above were without supervisory authority-until faced with his
sworn statement, previously given to a Board agent. Relevant excerpts from that
document are as follows: [Italics supplied to indicate individuals named in the
above list.]
John Delaney is Foreman in the Wet Division. There are approximately
80 employees in that Division including all shifts. In the division are machine
operators, coloring, beamhouse, tanning, shaving, setting, sorting , and shanking.
John Delaney is in charge of color and fat liquoring; John Fernandez is Fore-
man of Shaving Dept.
Under Albert Wilson (Asst. Supt. of Dry Division) are foremen Jeff Hebert,
buffing; Harold Priest, pasting unit; and Robert King on general-takes care
of emboss machines and directs work to seasoning machines. Leger (Ludger)
Benoit is in charge, under Wilson and King, (of) the hand seasoning machines.
Each of these foremen have authority to discipline, reprimand, and direct
505395-59-vol. 122-73
1138 DECISIONS OP NATIONAL LABOR -RELATIONS BOARD
employees while in charge of their respective operations. If it came to a
question of recommending discharge, each foreman would refer the problem
back to the assistant superintendent, and from there back up through me, and
if I thought it necessary, I would refer it to S. Geilich.
Similarly, after Foreman William (Bill) Delaney had stoutly disclaimed having
the slightest supervisory authority, as defined by the Act, he was confronted with
and conceded the authenticity of his previously made sworn affidavit containing
the following admissions:
I am foreman of the color dept. and have been for about 8 years. I have
eight men under my supervision. I have authority to recommend discipline,
discharge, or transfe-, and I am consulted by Asst. Supt. Fitzpatrick concern-
ing pay raises for employees.
The sworn admissions of Superintendent Paterson and Foreman William
Delaney, supported by credible testimony of several employees, establish, and the
Trial Examiner concludes and finds, that the following are supervisors within the
meaning of the Act:
John Delaney Jeff Hebert
John Fernandez Robert King
Harold Priest Ludger Benoit
William Delaney
As to John Silvia: This individual's own testimony is to the effect, and it is
found, that he is the shipping room foreman, in a department of seven employees,
directs their work, and has authority to recommend transfers, wage increases, and
to discipline employees under his supervision. He is on salary, is responsible to
Vice President Charles Geilich, and attends foremen's meetings. The Trial Ex-
aminer concludes and finds that John Silvia is a supervisor within the meaning of
the Act.
As to Charles Cole: Cote is foreman of the maintenance department, with super-
vision over seven employees. He is referred to as "Foreman of the Maintenance
Department" in the Respondent's own publication, "Beamhouse Crier," issue, of
June 1957. According to Simon Geilich's testimony Cote is directly responsible
to Vice President William Feldman. The Trial Examiner concludes and finds that
Cote is a supervisor within the meaning of the Act.
As to Harold Benson, Orren Hellwege, John Muniz, Manual Camara, and Fred
Robinson: Although the record contains credible evidence that these individuals
have supervision to some degree over employees, in the opinion of the Trial Ex-
aminer such evidence is insufficient to establish beyond question that any or all
of them are supervisors within the meaning of the Act.
In summary, upon the basis of the foregoing findings, and with reference to the
list of Independent members in evidence, the Trial Examiner concludes and finds
that the following individuals, all being supervisors within the meaning of the Act,'
at all times material have been and are active members of the Independent:
Jeff Hebert John Silvia
John Delaney Harold Priest
William Delaney Charles Cote
Ludger Benoit Robert King
John Fernandez
3. The Respondent's participation in and control
of Independent's administration
In June 1957, after management had become aware of the Union's organizing
campaign (as established by Charles Geilich's warning to employee Reed, noted
in the next section of this Report), President Simon Geilich summoned all super-
visors to the office. It appears that shortly before this meeting, in May, the
treasurer of the Independent, employee Rounds, had been discharged. He con-
tinued to serve in his office, his continuing membership in the organization being
specifically permitted and provided for in the then-existing bylaws. When the
1 Section 2 (11) of the amended Act states : "The term `supervisor' means any individual
having authority, in the interest of the employer, to hire, transfer, suspend , lay off,
recall, promote, discharge, assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent, judgment."
GEILICH TANNING COMPANY 1139`
Foremen and supervisors-many of them who are named in the paragraph im-
mediately above-were assembled , Simon Geilich opened discussion of nonemployees
being permitted to remain members of the Independent. Foreman John Fernandez,
according to his own testimony, declared that he "didn't think it was right for an
outsider not working in the shop to handle our money." And according to the
credible testimony of John L'Heureux, management's expediter, Foreman Fernandez
also declared, "How do we know that Herbert Rounds is not outside there asso-
ciating with the Union now?" Foreman King, a witness , admitted that manage-
ment and foremen discussed the "outside union " coming into the plant , and that
Geilich said he believed the "workers and supervisors were getting along all right
without another union ." Simon Geilich then , according to his own testimony,
"suggested" that the foremen attended the Independent meeting that night and have
the bylaws changed.
Pursuant to Geilich 's instructions , foremen attended the Independent meeting.
Foremen Bill Delaney made a motion, which was passed, to alter the bylaws. The
new provision required that membership in the organization be forfeited upon ter-
mination of employment.
(Neither the so-called "minutes" nor the testimony of the organization 's secretary,
Orren Hellwege , makes entirely clear just when this meeting of the Independent
was held-whether it was May or June. The minutes purportedly recording
Delaney 's motion , at the top, have "June" crossed out and "May" substituted. The
preponderance of credible evidence establishes, however, that Delaney did not make
his motion until the night of the meeting convened by Simon Geilich , and that
Geilich called the meeting of foremen in June.)
Also at the same Independent meeting the two foremen , William and John
Delaney , made and seconded a motion to reopen the existing 5-year contract then
in effect between the Respondent and the Independent . This contract did not
expire until December 1957.
Although counsel for the Respondent exercised notable concern and voiced
leading questions in an effort to make it appear that employees generally initiated
the move to reopen and renegotiate a contract, the general effect of such effort,
in the opinion of the Trial Examiner, was precisely the opposite of that desired
by counsel. For example, Simon Geilich was the one witness who insisted that
he had seen an Independent notice on the bulletin board, before the meeting at
which Delaney made the motion, announcing that the question of reopening the
contract would be taken up. "Practically word for word," declared Geilich. If
Geilich is to be believed, then it is apparent that he knew more about Inde-
pendent affairs than did its own secretary, a probability which the Trial Examiner
doubts that the Respondent's counsel wished to establish. For example, despite
obviously leading questions by the Respondent's counsel, the secretary of the
Independent stated flatly that he could recall no notice such as Geilich testified
about having been posted before the meeting, and he could not recall whether
or not there had been any discussion of what should be included in a new contract
until after Delaney's motion had been passed. He admitted, without equivocation,
that Delaney "gave no reason" for moving to reopen the contract. Alfred Kenney,
chairman of the Independent's negotiating committee and a former president of
the organization, was asked the following leading question by counsel for the
Respondent:
Q. There had been quite a bit of talk about the fact that the employees
wanted this (a certain insurance program) prior to the negotiations of the
contract , isn't that right?
Kenney replied candidly: "I don't think I could say what the talk around the
shop was."
The Trial Examiner is unable to find credible support, in testimony or docu-
ments, for Geilich's insistence upon there having been a notice posted regarding
renegotiation of the contract before it was proposed by his own representative,
Bill Delaney, at a meeting . Nor is there any credible evidence that any non-
supervisory employee sought or suggested renegotiation of the contract. It may
well be, as indicated , that some employees wanted management to assume certain
insurance costs, but the first formal move to seek a new contract was unques-
tionably made by William and John Delaney-both representatives of management.
A new contract was hastily entered into and signed , without ever being ratified
by the Independent membership as a whole, during the latter part of June 1957.
The testimony of Secretary Hellwege is to the effect that at the so -called single
negotiating meeting the Company told the committee what it would give and the
committee members accepted. Hellwege further admitted that employees had
nothing to do with proposals for a new contract. The Trial Examiner specifically
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disbelieves Geilich's testimony that somewhere he had proposals submitted by the
Independent, but that he was unable to find them. It is another 5-year contract,
requiring membership in that organization as a condition of employment, and
providing for checkoff of dues.
In the opinion of the Trial Examiner this preexpiration renewal of the contract
was effectuated for the purpose of discouraging further efforts of the Charging
Union to organize. This opinion is supported not only by the foregoing findings,
but also by undisputed testimony that somewhat later William Delaney, the same
foreman who precipitated the renegotiation, accused employee Wilkinson of working
in the interests of an outside organization, declared that he had "worked hard" to
get the inside union built up and "nobody is going to do any damage to it," 2 and
further added that Si (Geilich) knew what was going on and would take away
the profit-sharing plan if "this other union gets in." Of further bearing on this
point is the fact that the hasty signing of the new agreement gave Simon Geilich
the needed excuse to decline, as he did within a few days after the contract was
executed, the request of the Charging Union that it be recognized as the bargaining
representative.
Another demonstration of the Respondent's domination and control of Inde-
pendent Affairs occurred in late September 1957, after Simon Geilich had dis-
criminatorily discharged employee Reed, as found in the section next below. After
his discharge, Reed appealed to the Independent, and a committee of six employees,
none of them supervisors, held hearings, queried at least one disinterested employee
present at an alleged incident whom Geilich had not seen fit to interview, and
unanimously decided to protest the discharge and seek Reed's reinstatement, de-
spite Reed's open solicitation for the Charging Union. This grievance committee
met with management officials and Robert Lee, head of the Independent-although
the latter was not a member of the committee. Management flatly refused to
reinstate Reed. Still in the presence of management officials, the committee re-
versed its stand and voted to accept management's decision .3
4. Conclusions as to domination, assistance, and interference
Upon the basis of the foregoing findings, and upon the entire record, the Trial
Examiner concludes and finds that the preponderance of credible evidence sustains
the allegations of the complaint to the effect that the Respondent, since March
1957, has "assisted, dominated, contributed to the support of, and interfered with
the administration of" the Independent,4 and in the following specific respects:
(1) Permitting the membership and activity of its supervisors in the said or-
ganization.
(2) Granting dues checkoff of its supervisory employees to it.
(3) By conduct of Simon Geilich and William Delaney obtaining and retaining
the power to unseat any elected official of the organization by terminating his
employment with the Respondent.
(4) Urging and suggesting, by Simon Geilich, that supervisors and foremen
attend and participate in a meeting of the organization.
(5) Urging and suggesting, through its supervisors William and John Delaney,
the renegotiation of an existing 5-year contract.
(6) Entering into a new 5-year agreement, providing for membership in the
organization as a condition of employment.
' Delaney Is a former president of the organization, and nominated for the office the
present incumbent, Lee.
8 The finding that management officials were present at the vote rests upon the credible
testimony of three employee members of the committee : Kenney, Texeira, and Brown.
The denials are not credited. The sudden effort on the part of management witnesses
to disclaim their presence at this incident is inconsistent with Simon Geilich's ready
admission that he had called his foremen together and "suggested" that they attend an
Independent meeting to alter its bylaws. Nor can the Trial Examiner accept as credible
the testimony of some present at this meeting that committee members changed their
minds when Lee-after company officials had already refused to reinstate Reed-claimed,
as he had not done at Reed's hearing, that the discharged employee had admitted to him
that he had "pulled a knife" on another individual. It Is unreasonable to believe, in the
opinion of the Trial Examiner, that a committee of employees which had made a full
and impartial investigation concerning the claimed offenses of Reed, should accept without
question this wholly unsupported charge by Lee. It seems more consistent to believe that
this committee, as had the negotiating committee a few weeks before, merely accepted
whatever management would yield-in this case, nothing.
' 0. R. Szekely and Associates, Ina., 118 NLRB 1125.
GEILICH TANNING COMPANY 1141.
(7) Participation in by management officials, and domination of a grievance
committee meeting in September, 1957.
(8) Through Foreman William Delaney threatening with economic reprisals em-
ployees who sought representation through an organization other than the In-
dependent.
The Trial Examiner further concludes and finds that, by reason of the above-
described conduct of dominating the administration of the Independent, the said
renewed 5-year contract, and any modification, supplement, renewal, or extension
thereof is invalid and in violation of the Act, and that it interferes with, restrains,
and coerces employees in the exercise of rights guaranteed by the Act. Having
found that the said agreement is invalid, the Trial Examiner further concludes and
finds that the checkoff provisions contained therein are likewise coercive and in-
valid, and it will be recommended that the Respondent reimburse its employees for
all dues and assessments deducted from their wages and paid to, or retained for,
the Independent since March 20, 1957, a date 6 months prior to the filing of the
original charge in this case .5
B. The discharge of Allison Reed
1. Events leading up to the discharge
Until his summary dismissal on September 18, 1957, Allison Reed had for 10
years been an employee and, accordingly to the testimony of both his immediate
supervisor, Manuel Camara, and Assistant Superintendent E. B. Fitzpatrick, had
been a satisfactory worker.
Although he was a member of Independent as required by contract, in May or
June 1957, Reed began taking an active part in soliciting membership for the
Union. He signed up a number of employees in his car, outside the plant. At
the public entries to the plant he met and conferred with union organizers. It is
undisputed that Reed was seen with the union organizers by Vice President Charles
Geilich, son of President Simon Geilich.
It is undisputed, also, that the same day Charles Geilich saw Reed with the
organizers the vice president came to Reed in the plant, asked him what he was
"talking to those fellow for" and directed him: "Don't talk to them again."
It is further uncontradicted that in the latter part of August or early September
Robert Lee, previously identified as the head of the company-dominated Inde-
pendent, came to Reed and said, "Reed, let me give you a tip . . . Si (Geilich)
wants me to kick you out of the union so he can fire you.."6
Despite these pointed warnings, Reed continued his organizing activities, and he
was not "kicked out" of the Independent.
On the basis of uncontradicted evidence the Trial Examiner concludes and finds
that management was aware of Reed's activity on behalf of the Union. (The Trial
Examiner can place no reliance upon Simon Geilich's denial that he had knowledge
of Reed's union activity.)
For a period of about a week before September 18 Reed was at home, ill.
When he returned to work that day he was called to the office of Assistant Super-
intendent Fitzpatrick. Fitzpatrick promptly fired him, giving as a reason the claim
that Simon Geilich had learned of his "poor record for fighting" in the plant. He
has not been reinstated.
2. The Respondent's claims as to the dismissal
Not since the same Trial Examiner heard the Edward G. Budd Manufacturing
Company case, in 1942, has he been confronted with such a maze of confused and
contradictory testimony offered by an employer in support of so extravagant a
6 Mohawk Business Machines Corporation, 116 NLRB 248.
6 Although both Geilich and Lee were witnesses for the Respondent after Reed testified
about Lee's statement, neither was questioned on the point. While, under the circum-
stances fully narrated in the preceding section as to Lee's having been placed in nomina-
tion for office by Foreman Delaney and his servile willingness to accede to management's
decision regarding the reinstatement of Reed, the Trial Examiner believes his statement
to Reed might well warrant an 8(a) (1) finding, Lee's conduct as an instrument of the
employer is not placed in issue by the complaint, and the Trial Examiner makes no
finding of that nature. On the other hand, the Trial Examiner believes that the incident
and the undisputed testimony about it have probative value and merit in determining
the motive for the discharge of Reed. And in any event, the Trial Examiner states
specifically that other evidence fully supports his ultimate conclusion , in his opinion,
even if this incident is disregarded.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim as to the reason or accumulated reasons for discharging an employee. As-
suming that all or any part of the reasons asserted by Simon Geilich were to be
accepted as true, in the opinion of the Trial Examiner his ultimate conclusions
would be governed by the court's decision in the above-cited case. There, where
most if not all the claimed derelictions were found to be true, the Third Circuit
Court of Appeals said:
The case of Walter Weigand is extraordinary. If ever a workman deserved
summary discharge it was he. .
The petitioner contends that Weigand was discharged because of cumulative
grievances against him.
But it is certainly too great a strain on our credulity to assert,
as does the petitioner, that Weigand was discharged for an accumulation of
offenses. We think that he was discharged because his work on behalf of the
CIO had become known to the plant manager. . The record shows that
the Board's finding was based on sufficient evidence.?
Here, in attempting to appraise the Respondent's contention, it must be borne in
mind that Simon Geilich, who ordered the discharge, was not a witness to any one
of the various incidents he claims to have occurred, and according to his own ad-
mission never gave Reed an opportunity to admit or deny them. Thus it is plain
that Geilich could have had no basis for his contention of accumulated grievances
except the hearsay stories of certain supervisors. His violation of even the most
rudimentary principles of an employer who seeks the truth, by denying the accused
a chance to be heard, leads inescapably to the inference that he was not interested
in or making any effort to obtain facts but only some semblance of support for
a pretext to curtain the real and actual reason for his action . And this reasonable
inference opens wide the door upon the fact, noted above, that shortly before this
Lee, as head of the employer' s own instrument , had warned Reed that Geilich
wanted his nonmembership in that organization as an excuse to fire him.
Under such circumstances, the Trial Examiner feels it unnecessary to encumber
this report with a detailed recital of all the contradictory testimony given by
employer witnesses as to the incidents themselves.
First, even the testimony of such management witnesses establishes that Reed
was never contemporarily discharged or disciplined in any way for any of the inci-
dents or with any reasonable immediacy after the final one, which occurred between
2 and 3 months before the actual dismissal. Indeed Fitzpatrick admitted, as a
witness, that nothing had happened since June or July with respect to Reed and
that although he had full power to do so he had not seen fit to discipline Reed
for that occurrence.
The occurrence in question, as described by the credible testimony of Reed and
employee M. J. Pearson ,8 was as follows . While Reed was busy at his work, pack-
ing hides on a wagon near Pearson , employee Americus (Harry) Silvia came by and
"goosed" Reed who was leaning over to place a hide on the pallet . Reed did
not appreciate the action and as Silvia kept on walking by yelled at him, "If you
don't keep your hands off me I am going to wrap a hide around your neck."
Upon this shout, Manuel Camara, supervisor over both Reed and Silvia, rushed
toward Reed and, although by this time-even according to Silvia's testimony-the
latter was well out of Reed's way, Camara started to shove and push Reed. Reed
began swinging his arms in wind-mill fashion to keep Camara off, and one of his
swings hit Camara on the head. Camara backed away-there was no further
action in the incidents
7 Edward G. Budd Manufacturing Co. v. N.L.R.B ., 138 F. 2d 86 ( C.A. 3), (cert. denied
321 U.S. 773).
8 Although Pearson was the one employee nearby, apparently , who was not involved in
the altercation, no member of management ever questioned him about it.
6 The testimony of Camara and Silvia as to this incident is so inconsistent as to defy
credulity . For example, Silvia denied "goosing" Reed , and said that the incident began
when he said something to Reed and Reed got mad , whereupon Camara came upon the
scene. According to Silvia, although he kept on walking toward the end of the mill,
200 feet away, he saw Reed throw a hide at Camara. His testimony contains no mention
of Reed 's having drawn a knife on him or on Camara , and, if believed , shows that he at
no time stopped by or near Reed. Camara's version , however, is that he "heard a
commotion over there ," proceeded toward it , and as he arrived saw Reed in argument
with Silvia,` Reed having a hide in his hand. Also according to Camara, as he reached
both of them Reed dropped the hide, "reached for his knife," and said to Silvia, "I will
kill you, you son-of-a-bitch ." It appears reasonable to the Trial Examiner that if, as
Camara says , Reed did threaten Silvia in this fashion , Silvia himself would have been
GEILICH TANNING COMPANY - 1143
Now, as to the reporting of the incident to higher authority, here, too, as noted
in the footnote below, there are inconsistent statements. According to Camara,
immediately after the incident he went over and told Foreman John Delaney about
it, and Delaney "come over and he bawled out Harry-we call him Harry-
Americus Silvia, there. He bawled him out and he bawled Reed out about it."
Delaney, as a witness, testified that he, in turn went to Assistant Superintendent
Fitzpatrick, and told him that Camara had said that Silvia and Reed "had had a
fight . . . and that Mannie Camara went in to break it up" and had been struck
by Reed. Delaney also testified that he told Fitzpatrick that Camara had told him
"Reed had threatened him with a knife," and also had threatened Silvia with a
knife. Coming to Fitzpatrick's testimony, he declared that Delaney had "told me
there had been an argument ... at which time Reed had drawn a knife."
Finally, according to the testimony of Simon Geilich, the one who finally ordered
Reed's discharge without taking the trouble to learn Reed's version, Fitzpatrick told
him that Reed had "pulled a knife on one Harry Silvia."
It appears clear to the Trial Examiner that Simon Geilich's understanding of the
incident , as related by him, possessed scant resemblance to that related by the
participant Silvia or by the participant Camara.
As a witness, Geilich claimed as additional reasons for the discharge, his learn-
ing from Fitzpatrick of a number of previous incidents, occurring over a period
of some 8 or 10 years. Since the testimony concerning such incidents-both as
to the actual or claimed occurrences and as to the transmission of hearsay reports
about them through the various supervisory steps up to Geilich-is as confusing
and inconsistent as that regarding the Camara -Silvia altercation , the Trial Ex-
aminer considers it unnecessary to analyze it in detail.
There is no credible evidence that as a result of any incident involving Reed,
except that occurring in June or July 1957, was the employee even reprimanded.
And as to the possession of knives-testimony is in agreement that all employees,
at least in this department , carried knives similar to Reed's, and that they were
necessary for the performance of their work-the cutting of knots and pieces of
flesh from hides.
Furthermore , the testimony of Respondent's witnesses themselves makes it plain
that altercations of one sort or another are not, and have not been, uncommon
at the plant.
5. Conclusions as to the discharge
During the presentation of his case, counsel for the Respondent had this to say
about his theory of the case:
. what I am saying is this, that when the executive in question learned
about these incidents and, with knowledge of certain other incidents, the
cumulative effect of all of this information was such that he decided that
something ought to be done about Mr. Reed.
. I will put the executive on the stand. In fact, I think there is no
mystery about it. Mr. Fitzpatrick is the one who discharged Mr. Reed. Mr.
Fitzpatrick was told these things. Mr. Fitzpatrick, the evidence shows, was
aware of the incident involving Harry Silvia and Camara, and the evidence
will show that Mr. Fitzpatrick-after he heard about these other incidents
from this witness (John Delaney)-made an investigation and came to certain
conclusions.
Later testimony produced by the same counsel , however, establishes-not that
Fitzpatrick decided and came to the conclusion to discharge Reed-but that he
aware of it, and would have so testified . Camara, it seems, was quite willing as a
witness to adopt any words Respondent 's counsel put into his mouth. For example,
although a moment before Camara had said only that in making his threat to Silvia
Reed "reached for his knife ," he then answered as follows :
Q. (By Mr. Schneider .) Did you see him put his hand on his knife?
A. Yes, I did.
Having once made this claim, Camara later in his examination clung to it and several
times insisted that Reed "had his hand on his knife"-which was at the employee 's back,
sheathed , and attached to his belt . When confronted with a sworn statement previously
made to a Board agent, however, in which he had said only "I saw him [Reed ] put his
-right hand to his back near his belt. I thought it meant he was going to draw the
knife . " he reluctantly withdrew his claim of having seen Reed 's hand on a knife.
Camara still insisted that whatever threat was made was against Silvia , not himself-
despite Silvia 's testimony . Nor did Camara say anything about Reed 's having thrown a
hide at him , as did Silvia.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely reported to Simon Geilich what he had heard from others as to what they
had heard, and that it was Geilich who "came to the conclusion to discharge
Reed."
As previously noted, no investigation worthy of the meaning of that term was
made by any management representative. Reed was questioned by no one, as
to any one of the alleged incidents, nor was the one disinterested employee witness
to the Silvia-Camara occurrence asked about it-(Pearson). When Geilich himself
was confronted with a question as to whether or not he considered a proper
investigation had been made by him, before reaching an ultimate decision, he
promptly evaded responsibility by saying that he did not query Reed:
Because when we finished with Mr. Hurwitz, I said to Mr. Cohen (counsel for
the Respondent and a vice-president) "Well, now, we will get Reed up here
and get his story." Mr. Cohen said, "Now, wait a minute." He said, "What
good is that going to do?" He said, "You have heard the testimony of these
individuals. There is only one course left to you. Either he is going to come
up to the office and admit that the evidence as we have it is true, or he is
going to deny it. Either way you can't take the responsibility and the lia-
bility upon yourself, and it is my advice that you don't open yourself to
liability, and that you have the man discharged upon the evidence that we
have heard this afternoon."
Thus Geilich shifted responsibility for the discharge upon his vice president and
counsel.
Although counsel Cohen was later a witness, he did not deny Geilich's testimony
as noted. There stares from this record, then, the stark fact, if Geilich is to be
believed, that a member of the bar has advised his client to discharge an employee
of 10 years' service, admittedly a good worker, and one who-so far as the record
shows-had never been disciplined, without giving him an opportunity to be heard
and without calling a witness not involved.
Having found Geilich an unreliable witness, the Trial Examiner hesitates to
accept this obvious thrusting of responsibility upon his vice president and counsel.
Even if this advice was in fact given by Cohen, the ultimate fact remains:
Geilich adopted and followed it, and ordered Fitzpatrick to discharge Reed.
Even if the testimony of all the Respondent's witnesses were to be considered
without regard to any part of General Counsel's case, the Trial Examiner could
not conscientiously find merit in the Respondent's affirmative defense. There is
insufficient credible evidence to support either of the two apparent theories that:
(1) Reed was discharged by Fitzpatrick because of an accumulation of past of-
fenses, or because Fitzpatrick had heard someone say that there had been past
offenses; or (2) he was discharged because of the speculative fear that the Respond-
ent might be held liable if, at some future date, Reed did hurt someone with a
knife. The first theory is inapplicable in view of Geilich's testimony that it was
he, not Fitzpatrick, who made the decision, and the second falls into the abyss of
absurdity created by the proposition that after 10 years of employment without
even a claim of actual assault with a knife, it was suddenly decided to fire him
to avoid the employer's liability if, in the future, Reed should attack someone!
On the other hand, the following facts have been found heretofore: (1) Reed
was warned in May or June by Vice President Geilich not to talk to organizers
for the Union; and (2) later as warned by Lee that Geilich wanted him to oust
him from the Independent so he could fire him. Evidence as to two other similar
matters is undisputed, and it is found that: (1) in early September Lee also went
to employee Wilkinson and told him: "They want to kick you and Allison Reed
out of the union [Independent] . Si [Simon Geilich] is putting pressure on me
so that you guys will be fired;" and (2) in August Superintendent Peterson warned
employee Joseph Davis: "You keep on talking to that guy [Reed] and you will
get yourself into trouble." The Trial Examiner concludes and finds, therefore, on
the basis of the preponderance of credible evidence, that the Respondent dis-
criminatorily and to discourage membership in the Union discharged Allison Reed
and thereafter refused to reinstate him. By this discharge, the Respondent inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act.
The Trial Examiner also concludes and finds that the Respondent engaged in
illegal interference , restraint , and coercion, by the above-noted warning of Reed
by Vice President Charles Geilich and by Superintendent Peterson 's warning to
employee Joseph Davis.
GEILICH TANNING COMPANY 1145
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has dominated, assisted, contributed sup-
port to, and interfered with the administration of the Independent since March 20,
1957, by certain specified conduct and by urging and entering into a renewed con-
tractual agreement requiring membership in that organization as a condition of
employment and providing for checkoff of dues. It has been found that said
contract is invalid. It will therefore be recommended that the Respondent with-
draw recognition from and completely disestablish the Independent or any successor
thereto as the representative of its employees, and that it cease giving effect to the
said agreement of June 21 , 1957, or to any modification , extension , supplement
or renewal thereof, or any substitute therefor.1°
The remedy of reimbursement of checked-off dues is deemed to be appropriate
and necessary to expunge the illegal effect of the Respondent's unfair labor prac-
tices. By its unlawful union-security agreement, the Respondent has unlawfully
required employees to maintain membership in the Independent as the price of their
employment, thereby inevitably coercing the payment of dues.
The Trial Examiner finds, therefore, that it will effectuate the policies of the
Act to recommend that the Respondent refund to employees all dues checked off
pursuant to the checkoff authorizations in favor of the Independent since March 20,
1957.11
It has also been found that the Respondent discriminatorily, and to discourage
membership in and activity on behalf of the Union, discharged employee Allison
Reed. It will be recommended that the Respondent offer him immediate and full
reinstatement to his former or substantially equivalent position, without loss of
seniority or other rights and privileges, and make him whole for any loss of pay
he may have suffered by payment to him of a sum of money equal to that which
he would have earned as wages from September 18, 1957, to the date of the
Respondent 's offer of reinstatement , less his net earnings during said period, and in
a manner consistent with Board policy set out in F. W. Woolworth Company,
90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440.
It will further be recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent
to the analysis of the amount due as back pay.
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat. To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, and Taunton Leather Workers Union are labor organizations within the
meaning of Section 2(5) of the Act.
io This recommendation is not intended to require the Respondent to vary or abandon
the substantive features of its relations with its employees , established in the performance
of the agreement, or to prejudice the assertion by employees of any rights they may
have thereunder.
"Broderick Wood Products Company, et at., 118 NLRB 38; Baltimore Transit Com-
pany, at at., 140 F. 2d 51 ( C.A. 4), enfg. 47 NLRB 109.
1146 DECISIdNS OF NATIONAL LABOR RELATIONS BOARD
2. By dominating, assisting, contributing support to, and interfering with the
administration of Taunton Leather Workers Union, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(2)
and (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Allison
Reed, thereby discouraging membership in Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Bussey-Williams Tire Co., Inc. and General Drivers, Warehouse-
men and Helpers, Local Union No. 968, Petitioner . Case No.
89-RC-1299. January $8, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Wilton Waldrop,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers herein to a three-member panel
[Chairman Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in the sale and servicing of new and
retread tires in Houston, Texas. In 1957, the Employer purchased
approximately $70,000 worth of tires from the Firestone Tire and
Rubber Company's warehouse at Houston, which receives its tire
stocks from outside the State. During this same year, the, Em-
ployer's gross tire sales and services amounted to $184,578.77, of
which $124,484.85 was received from sales to several employers classi
fled as "commercial" accounts, and approximately $45,000 was re
ceived from sales to small trucking businesses.
The Employer has moved to dismiss for lack of jurisdiction, con
tending that it is a retail sales operation and that the Board's retail
standard for asserting jurisdiction should be applied.
In Roland Electrical Company v. Walling, 326 U.S. 657, 674-675,.
the Supreme Court, in considering whether a firm which serviced
and sold electrical equipment to industrial consumers was a "retail"
or "service" establishment within the intendment of the Fair Labor
Standards Act, examined and set. forth various criteria for dis-
tinguishing between "wholesale" and "retail" operations. In do-
122 NLRB No. 137.