Harold W. Baker Co.

National Labor Relations Board - Board Decisions

Sep 30, 1946

71 N.L.R.B. 44 (N.L.R.B. 1946)

In the Matter Of HAROLD W. BAKER, JR., LEONARD E. HEPFER, KATH-
LEEN B. STARR, PAUL BAKEWELL , III, CO-PARTNERS, DOING BUSINESS
AS HAROLD W. BARER COMPANY and LOCAL No. 155. UNITED ELEC-
TRICAL, RADIO & MACHINE WORKERS OF AMERICA ; C. I. O.
Case No. 4-C-1495.-Decided September 30, 1946
Mr. John H. Garver . for the Board.
Mr. David H . Kinley, of Philadelphia , Pa., for the respondent..
Miss Helen Laughlin, of Philadelphia , Pa., for the Union.
Miss Katharine Loomis , of counsel to the Board.
6
DECISION
AND
ORDER
6
On June 19, 1946, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Harold W. Baker, Jr.,
Leonard E. Hepfer, Kathleen B. Starr, and Paul Bakewell, III, co-
partners, doing business as Harold W. Baker Company, Bryn Mawr,
Pennsylvania, and their agents, successors, and assigns shall:
71NLRB,No.12
44
HAROLD W. BAKER COMPANY 45
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of, or contributing financial or other support to, Employees
Representation Committee or any other labor organization of their
employees;
(b) Recognizing Employees Representation Committee as the rep-
resentative of any of their employees for the purpose of dealing with
the respondents concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment;
(c) Discouraging membership in Local No. 155, United Electrical,
Radio & Machine Workers of America, C. I. 0., or any other labor
organization of their employees, by discharging, transferring, or
demoting, or by discriminating in any other manner in regard to their
lure or tenure of employment, or any term or condition of their em-
ployment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Local No. 155, United
Electrical, Radio & Machine Workers of America, C. I. 0., or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities, for the
purpose of collective bargaining, or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from, and completely disestablish,
Employees Representation Committee as the representative of any of
their employees for the purpose of dealing with the respondents con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment;
(b) Offer to Catherine Gallagher, Helen Vogt, Joseph Haggerty,
Pauline Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges;
(c) Make whole Catherine Gallagher, Helen Vogt, Joseph Hag-
gerty, Pauline Scanlon, Florence Mercer, Aiwa Meaney, and Dan
Dortone for any loss of pay they have suffered by reason of the
discrimination against them, by payment to each of them of a sum of
money equal to the amount which lie normally would have earned
as wages during the period from the date of the respondents' dis-
crimination against him, to the date of the respondents' offer of rein-
statement, less his net earnings during said period;
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at their plant at Bryn Mawr, Pennsylvania, copies of the
notice attached to the Intermediate Report, marked "Appendix A." 1
Copies of said notice, to be furnished by the Regional Director for the
Fourth Region, shall, after being duly sigiied by the respondents'
representative, be posted by the respondents immediatly upon receipt
thereof, and maintained by them for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em
ployees are customarily posted. Reasonable steps shall be taken by the
respondents to insure that said notices are not altered, defaced, or
covered by any other material;
(e) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply therewith.
INTERMEDIATE REPORT
Mr. John if Garver, for the Board.
Mr David H Icinley, of Philadelphia , Pa., for the respondent.
Miss Helen Laughlin , of Philadelphia , Pa, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Local No. 155, United Electrical, Radio
Machine Workers of America, C. I. 0., herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated March
5. 1946, against Harold W Baker, Jr, Leonard L Hepfer, Kathleen B. Start,
Paul Bakewell, III, co-partners, doing business as Harold W, Baker Company,
herein called the respondents, alleging that the respondents had engaged and
were engaging in unfair labor practices affecting commeice within the meaning
of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat 449, heiein called the Act Copies of the complaint ac-
companied by notice of hearing were duly served upon the respondents, the
Union, and Employees Representation Committee, herein called the Committee
With respect to the unfair labor practices, the complaint alleged in substance
that the respondents: (1) since on or about April 1, 1945, vilified, disparaged,
and expressed disapproval of the Union, interrogated employees concerning
'their union affiliation; urged, persuaded, threatened, and warned their employees
to refrain from assisting and becoming members of the Union and to assist,
participate in, and become members of an employee representation committee;
and kept under surveillance their employees' union activities and meeting places ;
(2) on or about April 6 and 7, 1945, initiated, formed, and sponsored an employee
representation committee, and thereafter assisted, domingted, contributed to the
support of, and interfered with the administration of said committee; (3) on or
1 This notice, however, shall be, and it hereby is, amended by striking from the first
paragiaph thereof the words
'recommendations of a Trial Examiner"
and substituting in lieu thereot the words
' A decision and order
In the event this order is enforced by decree of a Circuit Court of Appeals, there shall be
inserted, before the words "A Decision and Order" the words :
"A decree of the United States Circuit Court of Appeals enforcing."
1
HAROLD W. BAKER COMPANY 47
about May 15, 1945, terminated the employment of Catherine Gallagher, Helen
Vogt, and Joseph Haggerty because of their union membership and activities,
and on the same date and for like reasons constructively discharged Anna
Meaney, Pauline Scanlon, Florence Mercer, and Dan Dortone by discriminatorily
transferring Meaney, Scanlon, and Mercer from their regular to other work
shifts and by discriminatorily assigning Dortone to different and less desirable
work, thereby causing them to terminate their employment with the respondents;
and (4) by such conduct engaging in unfair labor practices within the meaning
of Section 8 (1), (2), and (3) of the Act.
The respondents filed an answer in which they denied generally that they had
engaged in any unfair labor practices
Pursuant to notice, a hearing was held from March 20 to March 22, 1946, at
Philadelphia, Pennsylvania, before the undersigned, Arthur Leff, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board and the respond-
ents were represented by counsel and the Union by a representative. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the close of the Board's
case, the undersigned granted a motion of counsel for the Board to conform the
pleadings to the proof with respect to the spelling of names, dates, and other minor
variances . At the conclusion of the hearing, the parties were afforded an oppor-
tunity to present oral argument before, and to file briefs with, the undersigned.
Counsel for the respondents alone availed himself of the opportunity to argue,
and no briefs were filed
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Harold W. Baker , Jr, and Leonard E. Hepfer, as general partners, and
Kathleen B . Starr and Paul Bakewell, III, as limited partners , are and have been
since September 1943 , doing business under the trade name and style of Harold W.
Baker Company with their principal office and place of business in the City of
Bryn Mawr , Pennsylvania . At present the respondents are engaged in the busi-
ness of designing and manufacturing special purpose machines At the time
particularly referred to in the complaint the respondents were engaged in the
manufacture of screw machine parts for the manufacture of ammunition. The
respondents in the course and conduct of their business cause and have contum-
ously caused a substantial amount of raw materials used in the manufacture of
their products , consisting during the calendar year 1944 principally of steel,
bronze, and other alloys valued in excess of $15,000 , to be purchased , delivered,
and transported in interstate commerce from and through States of the United
States other than the Commonwealth of Pennsylvania to their Bryn Mawr plant,
and cause and have continuously caused a substantial part of their manufactured
products , valued in excess of $400,000 during the calendar year 1944, to be delivered
and transported in interstate commerce to and through States of the United
States other than the Commonwealth of Pennsylvania from their Bryn Mawr
plant . The respondents admit that they are engaged in commerce within the
meaning of the Act.
11. THE ORGANIZATIONS INVOLVED
Local No 155, United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization which
admits employees of the respondents to membership.
717734-47-vol 71-5
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employee Representation Committee, hereinafter more fully referred to,
is an unaffiliated labor organization.'
III. THE UNFAIR LABOR PRACTICES'
A. Introduction
During the first half of 1945, the respondents, then engaged principally in the
production of a 40 mm. projectile under a Navy contract, employed at its plant
in Bryn Mawr from 80 to 100 production and maintenance employees. Most of
the employees were recruited from the immediate locality and their families
and home conditions were personally known to the respondents' management
personnel. Operations at that time were conducted "around the clock" ; there
were three shifts for women and two for men.' Leonard E. Hepfer, a partner,
acted as plant superintendent, and George Mateer, a consulting engineer who de-
voted his entire time to the operations of the Company,' assisted Hepfer generally
in supervising the plant operations In addition, the respondents' supervisory
staff consisted of Victor Ferraris and Edward Massia, shift foremen, Frances
Garter, in charge of inspection on the day shift, John Medlin, foreman of the
toolroom, and John Emberger. The supervisory status of these employees,
clearly established by the record, was not questioned by the respondents at
the hearing.
During the period here involved, the respondents' plant, like otheis during
wartime, suffered from a high rate of labor turn-over and an acute manpower
shortage. Great difficulty was experienced in hiring and retaining experienced
labor. Unable to find a sufficient supply of experienced and full-time employees,
the respondents found it necessary to resort to part-time workers and to recruit
and train inexperienced help. As Ferraris testified, the question was not what
the respondents could get-"You tried to make the best with what you had."
Because of this situation, testified Hepfei, be considered it an essential part of
his job as plant superintendent to make an effort to discourage employees from
leaving, and, to that end, made it his practice to attempt to remove all sources
of employee dissatisfaction such as, for example, dissatisfaction with shift
assignments. This critical manpower situation prevailed at the respondents'
plant, Hepfer's testimony discloses, throughout and beyond the period when
all the events narrated below occurred.
B. Commencement of union organizational activities; the formation of the
Committee
In the early part of 1945 , dissatisfaction developed among the employees,
particularly with respect to their wage rates . At a meeting held on February 1,
1945 , the employees had been advised by management that the respondents were
about to apply to the War Labor Board for a wage increase . Beyond referring
the matter to their accountants for an audited report, the respondents had not,
however, further processed the application for a wage increase , and anxiety over
the lack of progress had begun to manifest itself among employees.
'The respondents' answer admits that the Committee as well as the Union is a labor
organization.
2 The following findings are based on admitted facts or credible evidence which, except
Where otherwise indicated, was not substantially contradicted.
3 The shift hours for women were from 8 a. in. to 4 p. in ., from 4 p . in. to 12 midnight, and
from 12 midnight to 8 a. in. ; for men from 7 a. in. to 5: 30 p . in and from 5: 30 p. m.
to 7 a. in.
4 Mateer has since acquired a financial interest in the firm.
HAROLD W. BAKER COMPANY 49
In March 1945, the Union commenced organizational activities among the
respondents' employees. As appears from the testimony of Mateer, the existence
of "union agitation" in the plant came to the notice of the respondents' man-
agement about the first week of April. The formation of the Committee followed
soon thereafter.
On April 6, the employees were notified by their immediate supervisors that
a meeting would be held in the plant that afternoon at the conclusion of the
day shift. According to Ferraris and Carter, the decision to hold the meeting
was made by the plant foremen, acting on their own initiative. But the plan
to hold the meeting, the record shows, was directed by the foremen to the atten-
tion of higher management before it was carried into effect. Ferraris testified
that before making final arrangements for the meeting, he, on behalf of the
foremen, called on Hepfer and Mateer to obtain their permission for the meeting
and to explain its purpose, and that Hepfer and Mateer "didn't give [the fore-
men] much satisfaction either way, but they didn't object to it too strenuously."
The purpose of the meeting, testified Ferraris, was to see "if we couldn't get
together and iron out our own troubles among ourselves " Carter testified, in
effect, that the decision to hold the meeting was prompted by a desire on the
part of the foremen to stem the rising tide of employee dissatisfaction which
the foremen felt was retarding production, and that its immediate object was
to provide a forum in which to assure the employees that the respondents were
attempting in good faith to secure for them a wage increase.
But from other evidence in the record as well as from events which followed,
it is clear, and it is found, that the planned meeting had a purpose broader than
that indicated in the testimony of Ferraris and Carter, and one directly related
to the union activities in the plant. Thus, employee Florence Meicer testified
without contradiction, and it is found, that Carter, when she announced to em-
ployees that the meeting was to be held, said, "You know, girls, you know they
are trying to get a union in here, and we don't want a union in here. Let us
have our own union inside and we will all be a happy family." Employee
Pauline Scanlon testified, similarly without contradiction, and it is found, that
Carter, when she informed Scanlon of the meeting, said that its purpose was
"to see it they [the employees] could do without a union."
Held on the plant floor and attended by Foremen Ferraris, Carter, Medlin,
and Emberger as well as employees on two shifts, the meeting on April 6 began
at 4 p in. and lasted about an hour. It extended into the working time of the
female employees on the 4 p. in to midnight shift and of the male employees on'
the day shift whose shift hours did not end until 5: 30 p. in. While the meeting
was in progress, all plant operations were suspended. Those employees on whose
working time the meeting encroached were paid at their regular rates without
deduction for time spent at the meeting.
At the April 6 meeting, all employees, including those favoring the Union,
were afforded an opportunity to air their grievances and express their views.
But at the same time the foremen present made clear their opposition to the
Union. Foreman Emberger told the employees that they did not need a union.
-Forelady Carter suggested that the employees form an employees' committee
of their own to handle grievances and to determine whether the respondents
really intended to process an application for a wage increase. While suggesting
the formation of the Committee, Carter said, "Let us not call it a union. Let
us call it a committee. The name union stinks to me." After the meeting had
progressed in a disorganized manner for some time, Al Mandes, a part-time
employee, who had expressed his opposition to the Union, assumed chairman-
ship of the meeting, and at his suggestion the meeting was adjourned to the
following day.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 7, the employees again met under the chairmanship of Dlandes.
This meeting, like the one on the preceding day, was held on company premises
and during the working time of some of the employees. Unlike the meeting on
the preceding day, however, the April 7 meeting was not attended by any of the
foremen But the April 7 meeting was marked by the presence of Mateer who
testified that he, with the knowledge of Hepfer, attended that meeting at the invi-
tation of employee Evelyn Lorenzo and Al Mandes for the purpose of• discussing
the status of the War Labor Board wage increase application. Dlateer, in a talk
to the employees, informed them that the respondents were engaged in processing
before the War Labor Board an application for a wage increase, and were doing
everything possible to expedite that application. He also intimated that the em-
ployees could not achieve speedier action through the efforts of a union. In
response to questions from employees, Mateer stated that if an "inside" em-
ployees' committee were formed, it could represent the employees concerning
wages, hours, and grievances, and that no employee would be discriminated
against because he had participated in union activities. Mateer then retired
from the meeting.
After Mateer left, the employees present were polled to determine whether
or not they desired to form an employees' representation committee. A majority
voted in favor of the organization of such a committee. A further vote was then
taken to elect committee representatives, and employees Evelyn Lorenzo, Anna
Smoll, William Hammond, and Russell DeAntonio were chosen.'
On April 10, the respondents filed with the War Labor Board a formal appli-
cation for a wage increase.
Following its organization, the Committee met with management on two oc-
casions and discussed certain employee grievances as well as the question of
the wage increase. Except for these two meetings, the Committee has not func-
tioned, but neither has it ever been formally dissolved Only two Committee
representatives, Anna Smoll and Russell DeAntonio, now remain in the respond-
ents ' employ.
C. Conclusions as to the respondents ' donzinatton and suppar t of the Committee
It is clear, especially in the light of the respondents' other acts of interference
and discrimination as described in succeeding sections of this report, but also
independently thereof, that the formation of the Committee was initiated, spon-
'Sored, and supported by the respondents in furtherance of a program to forestall
and frustrate the organization of the employees into a union of their own
choosing.
The Committee first came into existence shortly after the respondents learned
that the employees' mounting dissatisfaction with respect to their wages had
begun to seek expression through union organizational activities. The plan to
form the Committee was conceived not by the rank and file employees but by the
supervisory personnel and was by them promoted and presented to rank and
file employees on company time and property. In furthering their plan the super-
visory employees, for whose actions the respondents must in any event be held ac-
countable, acted with the tacit acquiescence if not the express approval of
higher management. And higher management, by knowingly permitting the use
of company time and property for employee meetings designed to bring about the
formation of an "inside" labor organization, not only made clear to the employees
their favor of the proposed Committee but lent invaluable assistance and sup-
" At some later date , just when the record does not disclose , an additional employee,
Helen Martin , was appointed to the Committee.
HAROLD W. BAKER COMPANY 51
port to its formation. Further assistance and support to the Committee was
extended by the respondents through management representative Mateer whose
appearance and address at the second employees' meeting was clearly calculated
to impress upon the employees that an outside union was unnecessary to gain a
wage increase for the employees and that the employees could achieve adequate
representation through a shop committee of their own. It is evident from the
testimony as a whole that the Committee, although taking the form of a labor
organization (as the respondents' answer admits), was conceived and organized
more as a counter to the Union than as an organization intended to assume the
role of a truly active bargaining agency. That it was so understood by the em-
ployees is proved by the inactivity into which the Committee was allowed to
lapse soon after its organization.
It is the contention of the respondents that the Committee was spontaneously
formed by their employees without any interference or support on the part
of the respondents The facts outlined above, particularly those showing the
active intervention of certain of the respondents' supervisory and managerial
employees in the formation of the Committee, effectively refute that contention.
The fact that no supervisory personnel were present at the time the employees
actually voted to form the Committee does not absolve the respondents of re-
sponsibility. For Section 8 (2) is not so narrowly interpreted as to require that
direct link between the employees and the outlawed organization, but, must be
broadly construed to cover any conduct upon the part of the employer which is
intended to and has the normal effect of bringing into being, even indirectly,
an organization -which the employer considers favorable to his own interest.
It is clear that the Committee came into existence under "conditions or circum-
stances which the employer created or for which [he] was fairly responsible
and as a result of which it may be reasonably mf erred that the employees did
not have that complete and unfettered freedom of choice which the Act con-
templates." 9 Upon the entire record, it is concluded and found that the Com-
mittee, a labor organization. is the creature of the respondents and that the
respondents have dominated and interfered with its formation and have con-
tributed support to it, thereby interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
D. Events following the formation of the Committee; additional interference,
restraint, and coercion
The formation of the Committee did not put an end to the Union' s organiza-
tional activities, and these activities continued to draw the attention of respond-
ents' supervisory staff.
Employee Anna Meaney, who the record discloses was the leading union ad-
herent among the respondents' employees, testified credibly that Ferraris, when-
ever he passed her, would inquire if she had a union card 7 Employee Pauline
Scanlon testified credibly, and it is found, that Carter in conversations with em-
ployees under her supervision continued to express her opposition to the Union
IN. L R B v Link-Belt Company, 311 U. S. 584, 588
° Ferraris, while testifying, admitted that he made these remarks but said they were made
in jest and so understood . Since Meaney's interest in the Union was well known in the
plant, it is clear that Ferraris ' remarks were not intended to elicit information from her
as to her union membership. Whether or not they were made in jest it is unnecessary to
decide, since no independent finding of unfair labor practices is here predicated upon Fer-
raris' remarks to Meaney.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated on one occasion that "if the Union came in that Mr. Baker would
close the doors of the plant." °
Two union meetings were held in the period between the time of the formation
of the Committee and May 15, 1945, both at a hall in the neighboring town of
Ardmore The first of these meetings, held about April 15, was attended by nine
employees-Catherine Gallagher, Helen Vogt, Joseph Haggerty, Anna Meaney,
Pauline Scanlon, Florence Mercer, Dan 'Dortone, Julia Griffith, and William
Murphy. The second, held on Sunday May 13, was attended by only eight em-
ployees • the same employees, with the exception of Murphy, who had attended
the earlier meeting °
The union meeting of May 13 became, on the following day, a topic of dis-
cussion generally among employees in the plant On May 14 or 15, it was also
made the subject of conversation between Forelady Carter and Loretta Dunbar
Gallagher 10 As related by Mercer, who was present at the time, and as found
by the undersigned, the conversation between Carter and Loretta Gallagher ran
substantially as follows:
Frances Carter asked Letty [Loretta Dunbar Gallagher] if she was invited
to the meeting on Sunday and Letty said, "What meeting9" and she says,
"The union meeting" Well, Letty claimed that she didn't know anything
about the meeting Well, Frances says, "They had the meeting all right
and Len [Ilepferl knows everyone that was there ""
On the evening of May 14 during working hours, Catherine Gallagher, a 4 p. M.
to midnight shift employee who had attended the union meeting the preceding
day, asked a fellow employee, George Soler, whose station of work was about
4 feet across from hers, to sign a union card Soley informed Shift Foreman
Ferraris that Gallagher had solicited his membership in the Union Later that
evening, Ferraris summoned Gallagher to the plant office and reprimanded her
for engaging in solicitation activities When Gallagher, according to his testi-
mony protested that she was within her rights in doing so, Ferraris told her,
"You can pass cards around but please don't do it in working hours " Gallagher
was then told to return to wo 1c 12
The respondents had no rule prohibiting talking in the plant during working
hours. Nor had they in the past announced any rule proscribing union solicita-
S Carter denied making the quoted remark According to her version , she said only that
"if we didn't make our quota ( of production ) this month I wouldn't blame Mr Baker if
he just closed the plant." Carter's over-all testimony disclosed her to be an evasive and
unreliable witness, and other portions of her testimony revealed a propensity on her part to
explain all statements and conduct by supervisors, otherwise firmly established by the
record to have been directed against the Union, as having been inspired by production con-
siderations . Scanlon, on the other hand, impressed the undersigned as an exceptionally
forthright witness Under the circumstances , the undersigned credits Scanlon 's testimony
and rejects Carter' s denial.
° The record discloses that those in attendance at the meetings did not represent the full
roll of union membership . Mercer testified that "practically" half the employees had joined
the Union, but that many, although they had signed cards "were afraid to go to the
meeting "
3° Loretta Dunbar Gallagher is not related to and is not to be confused with Catherine
Gallagher, a union member . Loretta Gallagher, while in the respondents ' employ, never
joined the Union and revealed by her testimony and demeanor on the witness stand that
she was opposed to it
11 Carter did not deny that she had the conversation with Loretta Gallagher as related
by Mercer. Mercer fixed May 15 as the date of the conversation . Loretta Gallagher testi-
fied that this incident occurred on May 14.
>z The findings made as to this incident are based upon the testimony of Gallagher and
Ferraris which up to this point is substantially in accord.
HAROLD W. BAKER COMPANY 53
tion during such hours. Ferraris admitted that lie had never theretofore in-
formed Gallagher or any other employee that union solicitation was prohibited.
Moreover, as has been shown above, Ferraris and other supervisors and employees
had been permitted to engage in what was in effect anti-union solicitation during
working hours in connection with the meetings which led to the formation of the
Committee. These facts are related here not because the undersigned considers
that Ferraris acted illegally in warning Gallagher to refrain from union solici-
tation during working hours, time which properly should be reserved for work,
but solely because of their hearing on other issues herein in conjunction with
which they must be appraised
Clearly coercive in character, however, was Carter's statement to employees
that "if the Union came in-Mr. Baker would close the doors of the plant" as
well as Carter's remarks to Loretta Dunbar Gallagher indicating knowledge of
those present at the union meeting The latter remarks while not sufficient to
establish that the respondents engaged in surveillance nevertheless served to
foster that impression and hence were as intiinulatory in character as surveillance
itself It is found that by Carter's statement and remarks referred to above the
respondents engaged in conduct which interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the Act.
E The discharges and transfers of i77iion members on May 15, 1945
When Catherine Gallagher reported for work on the afternoon of May 15, 1945,
the day following her conversation with Ferraris reported above, she found her
time card missing from its rack. As to what followed, Gallagher's testimony,
which the undersigned credits, is set out below:
I went back to ring in and my card wasn't in the rack, and Frances Carter
said that Mr. Hepfer wanted to see me in the office. So I went over and
I met him and he asked me what was going on last night, and I told him
nothing wrong as far as I could see Well, he said, "We are going to lay
some of the people off We haven't got quite enough of work". So he said,
"IIere is your release". I said, "Thank you". I said, "Now I think I know
what it is for", and I said "Well I wasn't born yesterday" and he said neither
was lie. So I went.
On the same day that Gallagher's employment was terminated, the respondents
also took the following action :
(a) The respondents also released, purportedly for lack of work, Helen Vogt
and Joseph Haggerty, part-time employees on the late afternoon shift. These
employees, like Gallagher, were first notified that their employment was being
terminated after they reported for work on the afternoon shift and were not
permitted to engage in work that day.
(b) The respondents transferred Anna Meaney, an inspector, from the 4
p. in -midnight shift, where she previously had been assigned, to the mid-
night-8 a. in shift, and transferred Pauline Scanlon and Florence Mercer,
also inspectors, from the 8 a. in. to 4 p. in. shift, where they previously had
been employed, to the 4 p. in. to midnight shift. Meaney was first informed of
her change in shift hours in a telephone call from Carter which she received at
her home about an hour before she was scheduled to report for work that day.
Scanlon and Mercer together were advised by Carter at the end of their shift
at 4 p. in. Due to home conditions, of which the respondents' management per-
sonnel had prior knowledge or notice, none of the affected employees was in a
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position to work during the shift hours to which she was transferred." Meaney
and Scanlon advised Carter that they could not accept the shift change; Mer-
cer, who was with Scanlon, made no comment Carter's only response was that
they see Hepfer. Meaney alone attempted to communicate with Hepfer. Meaney
testified, and it is found, that she telephoned Hepfer, advised him that she
could not work on the midnight shift, and inquired if he had anything else to
offer her, and that Hepfer replied that he had not 14 Meaney, Scanlon, and Mer-
cer declined to accept the shift transfers and did not thereafter report for work.
(c) The respondents reassigned Dan Dortone from a machine operator's job
to the job of chip puller, a laborer's job which involved heavier and more un-
pleasant and arduous work. Dortone was first notified of the job change shortly
after he reported for work on May 15. Although nothing was said about a
reduction in pay at that time, Dortone, who had started in the respondents'
employ as a chip puller some 2 years before and had later been promoted to a
machine job with a raise in pay, viewed the job change as a.demotion, as in fact it
was, declined to accept it, and quit his employment instead.
Thus, on May 15, 1946, the respondents by means of discharge action, shift
transfers, or job reassignment, effected a substantial change of status with respect
to the tenure and terms and conditions of employment of 7 of the 8 union mem-
bers who had attended the union meeting 2 days earlier. No other employee
was affected by a change of status that day, nor, for that matter, during that
weekly pay-roll period 10
F. The respondents' contentions concerning the discharges and transfers on May
15, 1915, and analysis of evidence relating thereto
It is the respondents' contention that each of the discharges and transfers on
May 15, 1945, was motivated by a good and sufficient reason wholly unrelated
to the affected employee's union membership and activity Hepfer testified that
he personally directed each discharge and transfer. Hepfer's explanation as to
why he selected each of the complainants (and no others) will be considered
below. In the interests of convenience and orderly arrangement the explana-
38 Meaney testified credibly and without contradiction that when a year previously she
had asked Hepfer for a raise, Hepfer had indicated that he would grant it if she would
accept a transfer to the midnight shift, and that she had then advised Hepfer that she was
unable to do this because it was necessary for her to be at home at 4 a. in to get her son
off to work ; and that the same reason still prevented her from working on the midnight
shift.
Scanlon's husband was overseas at the time and she had three children who required her
presence at home in the evening . It was Scanlon's credited and uncontradicted testimony
that Carter , who knew her well at the time, was fully familiar with her home conditions.
Mercer's husband , a railroad employee , was a day worker , and it was necessary for her
to be home in time to prepare his dinner . Mercer had originally worked on the evening
shift for 20 months ; during that period her husband also worked on a late shift. In
October, 1944 , when her husband had been changed to the day shift , Mercer had requested
that her shift be similarly changed, and Hepfer, who was.personally acquainted with her
husband, had granted this request
14 Hepfer denied that Meaney communicated with him. Meaney by her demeanor and
by her over-all testimony , which in substantial respects was corroborated by other con-
vincing circumstances in the record , impressed the undersigned , as a truthful witness
Hepfer did not similarly impress the undersigned His testimony was marked by evasion
and a lack of candor , and, as will hereinafter more fully appear, was in many respects
improbable and contradictoiy His denial is not credited
'S Hepfer testified at one point that another employee, Lucy Kemmerer , was also laid off
on May 15 , 1945 . Kemmerer's pay-roll record disclosed that she had been employed but a
few weeks and during that time had been very irregular in her attendance , working only 16
hours during the pay-roll period ending May 15. Subsequently Hepfer altered his testi-
mony, and stated that Kemmerer had not been released but had been eliminated from
the pay roll on May 15 after having failed to appear for work for a "couple of days "
HAROLD IV . BAKER COMPANY 55
tion given as to each individual complainant will for the most part be con-
sidered separately. But in finally appraising the merits of the respondents'
defenses , a matter which will be reserved for the succeeding section of this
report, the several discharges and transfers will be considered, as indeed they
must be , not as if each stood in isolation, but each in relationship to the others
and all against the back-drop of preceding events as reflected by the entire record
of the case.
Catherine Gallagher, Hepfer testified when directly questioned on that point,
was released for "refusing to work " Hepfer's account of the circumstances
which prompted him to release Gallagher was in sharp conflict with Gallagher's
version which has been set out in the preceding section of the report.
Hepfer's testimony in substance was as follows :
Upon arriving at his office on the morning of May 15, he found a note
from Ferraris, who had left the plant prior to his arrival, stating simply
that Ferraris had sent Gallagher home the previous night and that Gallagher
would call on him in the morning to explain what had happened When
Gallagher called to see hum on May 15, he asked her what had caused
Ferraris to send her home Gallagher declined to tell him, stated, "You
might as well pay me off because I am not going to tell y ou anything
about it," and otherwise became "indignant and sassy." Because of her
attitude he decided to and did release her forthwith. Before taking this
action, he made no effort to determine from Ferraris what had actually
occurred the preceding night
Beyond his testimony above set forth, Hepfer did not elaborate on his basic
assertion that he released Gallagher for "refusing to work "
The undersigned was not impressed by Hepfer's testimony as to the circum-
stances which led him to release Gallagher. To the extent that it indicated
that Gallagher had been sent home by Ferraris the night before, Hepfer's testi-
mony was contradicted not only by Gallagher but also by Ferraris who admitted
that Gallagher, following her reprimand by Ferraris for engaging in union
solicitation, had been told to and did return to her job Hepfer's testimony
(as well as that of Ferraris) that Ferraris, without otherwise communicating
with him, had left him a note that Gallagher would call on him to explain
what had happened but had made no mention in the note itself of the incident
which led to this unusual action is, on its face, inherently implausible. More-
over, Hepfer's assertion that Gallagher's statements and "indignant and sassy"
attitude during their interview initiated his determination to release Gallagher
is wholly incompatible with the fact, not otherwise explained by Hepfer, that
Gallagher's time card, like the cards of the two other complainants released
that day allegedly for lack of work, had been removed from its rack in advance
of the interview which Hepfer now says prompted his discharge decision. By
her demeanor and over-all testimony, Gallagher, unlike Hepfer, impressed the
undersigned as a trustworthy witness . Under all the circumstances , the under-
signed credits Gallagher's testimony as to her conversation with Hepfer and
finds that the only reason asserted by Hepfer at the time of her release was
that she was being laid off for lack of work, a reason the validity of which the
respondents made no attempt to support at the hearing.
Helen Vogt and Joseph Haggetty,16 according to Hepfer, were released because
their services were no longer required. Hepfer's reasons (as related by him while
36 Vogt, who prior to her discharge was engaged principally in the operation of a tapping
machine, and IInggerty, who worked as it maintenance man and general helper, were among
the approximately 15 part-time employees in the plant at that time Vogt worked regularly
between the hours of 6 p. in. and midnight ; I-Iaggerty, who had another daytime job,
worked during irregular hours in the evening.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testifying) for selecting Vogt and Haggerty for lay-off were shifting, obscure, and
confusing. At one point Hepfer testified that these lay-offs were attributable to
a conveyer system and new machines which the respondents were then in the
process of installing for the purpose of speeding up their production quota. But
Hepfer's testimony failed to show specifically how the installation of the new
equipment directly affected the work in which Vogt and Haggerty were then
engaged. On the contrary, his own testimony indicated that the added equipment
did not eliminate the operation of the machines to which Vogt was assigned or the
maintenance work which Haggerty performed. At another point in his testimony,
Hepfer assigned an entirely different reason for Haggerty's lay-off. He stated
that Haggerty was released because Meaney's transfer from the afternoon shift
dispensed with the respondent's need for Haggerty's services But here again the
connection was not made clear, for Haggerty's work was primarily that of a
maintenance man and general helper and only occasionally did he assist Meaney
in the performance of her work. Elsewhere in his testimony, Hepfer asserted that
Vogt and Haggerty were released pursuant to a plan placed in operation at that
time to reduce labor costs by eliminating surplus employees. In that respect his
testimony was inconsistent with earlier testimony given by him wherein he had
conceded that the respondent's principal problem during that period, because of
acute turn-over and manpower difficulties, was to acquire competent employees
rather than dispose of them. Moreover, the respondents' records show that
during the month of May the respondents hired 11 employees," that its pay roll
(reflecting its labor costs) for the weekly period ending May 15 was higher than
for the preceding week, and that although it decreased during the succeeding week
(after the 7 employees named in the complaint were separated), it thereafter
continued to rise steadily until the middle of June, and was generally higher in
June than it was in May. Nor did Hepfer otherwise give a consistent explanation
for his particular selection of Vogt and Haggerty from among other part-time
eiployees for force reduction. When first specifically questioned on this point,
Hepfer said he selected them because they were not "dependable 100 percent," but
later he altered his testimony in that respect, denied that he had testified that
Vogt was not dependable, and asserted that Vogt (a machine operator) and
Haggerty (a maintenance man) were selected because they were the only part-
time employees in the inspection department on the evening shift. According to
Hepfer, his decision to release Vogt and Haggerty was made several days or a
week prior to May 15. Yet he did not explain why they were required to report
for work on May 15 before being advised that they had been laid off, instead of
being notified in advance, at least at the close of their shift on the preceding day.'e
As to Florence Mercer and Pauline Scanlon, Hepfer's testimony as to his reasons
for transferring them from inspection work on the day shift was likewise
garbled, conflicting, and clouded in obscurity. Hepfer testified variously that
the transfers were decided upon, (a) because a bottleneck caused by employee
dissension had developed on the inspection line where they had been working,
(b) because defective work was getting through the inspection table and it was
deemed desirable that Mercer and Scanlon as "old employees, capable of doing
any job in that plant in inspecting" sit at the head of the inspection table where
they could cull out defective work before it reached the Navy table, and (c)
because it was desired to effect a proper balance in the number of inspectors on
each shift. Hepfer did not explain, nor is it otherwise apparent from the record,
why it was necessary to transfer Scanlon and Mercer to another shift to correct
17 During the same period there were 12 separations in addition to those involved in this
case. According to Hepfer all but 4 of them were voluntary terminations
is Their regular work week would have terminated at the end rather than the beginning
of their May 15 shift.
HAROLD W. BAKER COMPANY 57
the conditions described by him in (a) and (b) above. Moreover, notwithstand-
ing his assertion that the shifts were in a state of unbalance, Hepfer testified
that after Scanlon and Mercer had quit rather than accept a shift change, he
found it unnecessary to and did not transfer any other inspector to the evening
shift. Both Mercer and Scanlon were among the oldest employees in the
respondents' employ and were admittedly highly competent inspectors, for whom
work was available at the time on the day shift. As noted above, it was Hepfer's
usual policy at the time to take into account and to respect his employees'
desires as to shift assignments. Nevertheless, Hepfer offered no explanation
for his omission in this instance to consult in advance with Scanlon and Mercer
concerning their proposed shift change, a circumstance particularly significant
in view of the fact, found above, that their home conditions precluding them
from working during the evening hours were then known to the respondents'
management.
As to Anna Meaney, Hepfer offered no reason to support her transfer to the
midnight shift. Instead, he gave an elaborate explanation for her transfer to
the day shift Hepfer testified that he, through Inspection Forelady Carter,
directed Meaney's transfer from the magniflux inspection operation on the
afternoon shift to a similar operation on the day shift because it had been deter-
mined to discontinue the use of the magnifiux on all but the day shift. As
already noted, it was Meaney's testimony that she had been ordered transferred
not to the day shift but to the midnight shift Carter, although at first corroborat-
ing Hepfer fully, and testifying that she had instructed Meaney to report to the
day shift, later contradicted her earlier testimony and admitted that in fact
she had told Heaney to report on the midnight shift. Carter's explanation that
she had misunderstood Hepfer's instructions (which she still maintained called
for Meaney's transfer to the day shift) was wholly unconvincing in view of her
earlier testimony that Hepfer, at the time he instructed her to transfer Meaney,
had "given [her] a complete idea of our new change-over that we had been
working on," and the fact that she was the supervisor of inspection on the day
shift. Upon all the testimony, including Meaney's credited testimony concerning
her conversation with Hepfer following her transfer order, heretofore adverted
to, the undersigned is persuaded and finds that Carter did not misunderstand but
rather carried out Hepfer' s instructions in advising Meaney to report to the mid-
night shift. Meaney was one of the respondents' oldest employees and was
qualified to perform a number of jobs other than the magniflux operation. Yet
Hepter admittedly did not endeavor to ascertain whether she could be placed on
some other operation on the second shift, nor did he, as he had done on a previous
occasion before she became active in the Union, consult _lleaney as to her desires
before attempting to put the shift change into effect, and this notwithstanding
the fact already shown, that he was then on notice that she was unable to work
the midnight shift.
Daniel Dortone, according to Hepfer, was reassigned from his machine opera-
tor's job to the common laborer's job of chip pulling because of his poor work.19
i9 Dortone entered the respondents' employ in April 1943 as a chip puller and sometime
thereafter was promoted to a machine operator 's position with an accompanying raise in
wage rate The record does not clearly fix the date of Dortone' s transfer to a machine
operator's job. Dortone testified that he had been engaged in chip pulling 8 months and
as a machine operator for 2 years, a total period greater than his period of employment
Hepfer testified at one point that Dortone had pulled chips full time for not more than 2
or 3 months , elsewhere in his testimony stated that Dortone had worked on a machine
only a month or two, and at a third point indicated that Dortone had been on the machine
operation for at least 6 months George Stein, a Navy inspector and a witness for the
respondent , indicated in his testimony that Dortone operated a machine for a period "over
8 months " while Stein was stationed with the respondents. Upon all the evidence, it was
found that Dortone was a machine operator for more than 8 months.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that Dortone was not a skilled machine operator, that he
produced a high percentage of scrap, and that on occasions in the past lie had
been reprimanded by his supervisors for leaving his machine and for having too
many rejects. But the record also shows that the respondents had scarcely any
experienced machine operators in their employ at that time and that work on
the machine operations generally, including that of the employee who operated
Dortone's machine on the opposite shift, was generally running badly and causing
a substantial rate of rejects. Hepfer admitted that he had no particular person
in mind to replace Dortone when he directed Dortone's transfer to chip pulling;
Dortone's position was in fact filled by an employee who theretofore had per-
formed chip pulling and general labor work Dortone's alleged delinquencies
and shortcomings as a machine operator were not of recent origin ; Hepfer
testified that the poor work for which Dortone was demoted consisted of "doing
the same thing he had been doing for the last six,months "
In the past Dortone's delinquencies had always been condoned More than a
month prior to his demotion Dortone had had trouble with a supervisor who had
requested his dismissal, but Hepfer at that time had refused to accede to this
request and had instead transferred Dortone to other supervision. Since the
question to be determined is not why Dortone's demotion might have been justified
but what in fact induced the respondents to take this action, it is relevant to
inquire into the immediate circumstances which prompted IIepfer to determine
to transfer Dortone on the very day which he also selected to effect a change
of status of six other union members and no others As to this there is a conflict
of testimony. It appears from Dortone's testimony that nothing unusual occurred
at that time; that Dortone simply reported for work on the afternoon of May 15,
was met by Ferraris and told to transfer to a chip pulling job, and that Ferraris
at that time not only made no mention of the quality of Dortone's work but
refused when requested to give any reason for the transfer Although Hepfer's
.testimony on this point, as on many others, was generally evasive, he testified,
when pressed for particulars, that Ferraris had had some trouble with Dortone
during the night shift of May 14; 20 that when Hepfer arrived in the plant early
in the morning on the 15th, Ferraris, who with Dortone had remained overtime,
reported to Hepfer his difficulties with Dortone- and advised Hepfer that he
would no longer tolerate Dortone on his shift ; that Hepfer thereupon and in the
presence of Ferraris notified Dortone that he would have to resume his former
job as a regular chip puller; that Dortone said he would not accept the job "and
that was the end of it " Hepfer's testimony concerning his conversation with
Ferraris and Dortone on the morning of May 15 was directly contradictory to
other testimony which he gave in seeking to justify the release of Gallagher 2i
Moreover, Hepfer's testimony was substantially impeached by Ferraris who in
the main corroborated Dortone's version of what happened Ferraris testified
that it was he, and not Hepfer, who notified Dortone to change to chip pulling work
and that he did this on the specific instructions of Hepfer first given to him
when he arrived at the plant for the evening shift on May 15. Ferraris, a
witness obviously friendly to the respondent, made no mention in his testimony
of any incident the night before Under all the circumstances the undersigned
concludes that the testimony of Hepfer set out above is not worthy of belief,
and finds that Hepfer's determination to transfer Dortone on May 15th was not
prompted by any specific occurrence related to Dortone's woik
20 Hepfer, when asked to describe the "trouble," became vague, indefinite and evasive.
21 Then Hepfer testified that he did not see Ferraris at all on the morning of May 15,
Ferraris having left the plant before Hepfer had arrived. Ferraris' testimony was to the
same effect.
HAROLD W. BAKER COMPANY
G. Conclusions as to discrimination
59
Deriving added import from the respondents' earlier conduct reflecting an
attitude of opposition to the Union, the respondents' selection for discharge and
transfer on a single day of seven employees (and no others), whose only common
denominator appears to be their union membership and the fact that they were
among the eight employees who had attended a union meeting 2 days before,
looms as the most significant factor in appraising the respondents' motive.
Either the presence of this common denominator must be explained on the basis
of coincidence or it must be explained on the basis of a definite relationship be-
tween the choice and the union membership and activities of those chosen. The
mathematical possibility that the selection of the seven bore no relationship
whatsoever to their common interest in the Union and their joint attendance at
the meeting, but resulted rather from the operations of chance, is exceedingly
remote.' And while this possibility, however remote, may not be ignored alto-
gether, the mathematical improbability that union affiliation was disregaided
as a relevant factor in the choice is so great in this case as to cast the burden
upon the respondents to come forward with a plausible, adequate and con-
vincing explanation demonstrating that the action taken by them with respect
to each affected employee was based solely upon non-discriminatory consid-
erations:'
This the respondents have not done. As found above, Gallaghei's termination
was defended by the respondents upon a ground entirely different from that
stated to her at the time of her lay-oft, and one, moreover, which the under-
signed finds to be unsupported by the weight, of credible evidence. Hepfer's
shifting and contradictory account as to his reasons for laying oft Vogt and
Haggerty at a time when the respondents were suffering from an acute manpower
shortage lacked the clarity of conviction and impressed the undersigned as a
contused effort to probe for some legal excuse to rationalize the ,action taken
rather than as a forthright statement of position. Furthermore, the validity
of the claim that these two employees were laid off for "lack of work" becomes
even more dubious when it is considered that the same reason, clearly proved
to be specious, was stated at the time of her lay off to Gallagher who, like Vogt
and Haggerty, was given no advance notice of the lay-off until after she reported
to work on May 15 only to find her time card missing, a circumstance persua-
sively tending to refute Hepfer's testimony that the decision to lay off Vogt and
Haggerty was made before the union meeting. For the reasons already indi-
cated, the respondents' contused and conflicting explanations for the shift trans-
fers of Mercer, Scanlon, and Meaney do not stand the test of close scrutiny-
Had the respondents' motive in effecting these shift changes been legitimate, it
is difficult to believe that they would have risked the loss of these old, experienced,
and admittedly valuable employees by effecting the shift transfers without first
consulting the affected employees. That the respondents' motives were other
than legitimate is underscored by the fact that the respondents were then on
^ At that time the respondents employed approximately 85 production and maintenance
employees On the basis of pure chance , eliminating all other factors , the possibility of
selecting in a plant of 85 on any given day 7 of only 8 employees who had attended a
union meeting , and no others , is comparable to that of a blindfolded person selecting at
random 7 blue marbles in succession from a bowl containing 85 marbles of which 77 are
white and 8 blue. The mathematical possibility of such selection, computed on the basis
of the applicable formula , would be one chance in 616,980 ,915. See Mills Statistical
Methods, Henry Holt & Company, New York, 1924, p. 518 "The Multiplication of Piob-
abilities "
23 See N L. R. B. V. Chicago Steel Foundry Co , 142 F. (2d) 306 (C C. A. 7) ; Mont-
gomery Ward & Co , Inc. v. N. L. R. B., 107 F. ( 2d) 555 (C. C. A. 7) , N. L. R. B. v. Bachel-
der, receiver for Hoosier Veneer Company , 120 F. ( 2d) 574 (C. C. A. 7).
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice of the employees' home conditions as well as the further fact that the
summary action taken represented a departure from the respondents' personnel
policy to discourage employees from leaving, among other ways, by removing
sources of dissatisfaction as to shift assignments. Although the quality of
Dortone's work might have been such as to justify the respondent in demoting
him, the question here is whether the respondents actually were motivated by
that consideration rather than by his union affiliation. Upon all the evidence,
the undersigned is convinced that the reason asserted by the respondents at the
hearing was a pretext rather than the true reason for the demotion, and that
the respondents were in fact prompted in their action with respect to Dortone
by the same motives which prompted them to act with respect to the other com-
plainants that day. Persuasive in that connection are the timing of the demo-
tion in, relationship to the action taken with respect to the other complainants,
the fact that Hepfer admittedly had no qualified replacement in mind when he
decided to remove Dortone from the machine operation, the circumstance that
Dortone's shortcomings were of long duration and had in the past been condoned,
and, finally, the failure of the respondents to give any reason for selecting that
particular day to demote Dortone other than a reason which the record unmis-
takably shows to be unworthy of belief With respect to each of the complain-
ants, Hepfer's testimony, it is found, was not such as to invite credence, and the
reasons asserted by him with respect to each of the discharges and transfers
are not credited
Nor does the undersigned regard as credible Hepfer's testimony that it was
not until about 5 days after May 15th that he first learned that the complainants
had attended a union meeting at Ardmore the preceding Sunday. Just as the
factors discussed above render extremely improbable any conclusion that there
was absent a relationship between the choice of employees selected for transfer
or lay-off and their attendance at the meeting, so, too, do the same factors make
highly unreasonable a finding that Hepfer was unaware of the fact of attendance
at the time he directed the lay-offs and transfers. Moreover, since, as found
above, the union meeting of May 13 was made a topic of general discussion in
the plant on the following day, it is more likely, in view of the circumstances
under which Hepfer testified he carne to know about the meeting, that Hepfer
acquired knowledge of it a day rather than a week later. Hepfer testified that
lie learned of the meeting through general conversations with his employees with
whom he ate lunch ; he admitted that his contact with his employees was such
that what his employees would know about the shop he would know, and that if
the employees had knowledge of union activities he would in the normal course
of events also know about it. But the finding, herein made, of knowledge on
Hepfer's part anteceding the transfers and lay-offs need not and does not rest
upon inference alone. More direct proof is supplied by the statement made by
Forelady Carter to Loretta Dunbar Gallagher shortly before the transfers and
lay-offs to the effect that "Len [Hepfer] knows everyone that was there [at the
meeting]," a statement which Carter did not deny making and the respondents
made no effort to explain.
In view of the respondent's failure satisfactorily to explain its action on any
other basis and in light of the respondents' previously manifested antipathy to-
ward the Union, and their prior course of conduct designed to interfere with the
self-organizational plans of their employees, the undersigned is convinced, and
he finds, that the lay-off of Gallagher, Vogt, and Haggerty-, the shift transfers
of Mercer, Scanlon, and Heaney, and the demotion of Dortone were all motivated
by discriminatory considerations. It is further found, in view of all the cir-
cumstances, that the termination of employment of Gallagher, Vogt, and Hag-
HAROLD W. BAKER COMPANY 61
gerty, although characterized as lay-offs, were in effect tantamount to discharges
Contrary to the respondents' contention indicated in their answer, it is found
that Mercer, Scanlon apd Meaney, who were transferred to shifts on which they
were unable to work, and Dortone, who was demoted to less desirable and more
arduous work, did not voluntarily discontinue their employment services with
the respondents. The shift transfers and demotion in each case were effected
by the respondents upon a disci minatory basis. Under the circumstances the
rejection by the affected employees of the new shift or job assignments was justi-
fied as a refusal to acquiesce in the respondents' disc rinminatory action, and,
accordingly, did not operate as a voluntary termination of employment
It is found that the respondents on May 15, 1945, by terminating the employ-
ment of Catherine Gallagher, Helen Vogt, and Joseph Haggerty, by transferring
Florence Mercer, Pauline Scanlon, and Anna Meaney from their regular work
shifts to other work shifts, thereby causing them to terminate their employment,
and by demoting Dan Dortone and assigning him to different and less desirable
work, thereby causing him to terminate his employment, discriminated with
respect to their hire and tenure of employment and the terms and conditions
of their employment, thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing their employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the respondents described in Section I, above,
have a close, intimate, and substantial ielation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the respondents have violated Section 8 (1), (2), and (3) of
the Act, the undersigned will recommend that they cease and desist therefrom
and take certain affirmative action, which the undersigned finds necessary to
effectuate the policies of the Act.
It has been found that the respondents have dominated and interfered with
the formation of the Committee and have contributed support thereto. The
effects and consequences thereof, as well as any continued recognition of the
Committee as the bargaining representatives of the respondents' employees, con-
stitute a continued obstacle to the free exercise by the respondents' employees of
their right to self-organization and to bargain collectively through representatives
of their own choosing Because of the respondents' illegal conduct with regard
to the Committee, it is incapable of serving the respondents' employees as a
genuine collective bargaining agent. While it is true that the Committee has
not functioned since about May 1945, it has nevertheless never been dissolved,
and in the eyes of the employees may still be viewed as the recognized exclusive
bargaining agent. Since this situation is obstructive to the free exercise by the
employees of the rights guaranteed to them by the Act, the undersigned will
recommend that the respondents withdraw all recognition from the Committee as
the representative of any of their employees for the purpose of dealing with the
respondents concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and completely disestablish the
Committee as such representative.
11 Indeed , the respondents ' answer admits that these employees were "dismissed."
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the respondents discriminated in regard to the hire
and tenure of employment and terms and conditions of employment of Catherine
Gallagher, Helen Vogt, Joseph Haggerty, Pauline Scanlon, Florence Mercer, Anna
Meaney, and Dan Dortone. It will be recommended that the respondents reinstate
them to their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges and that the respondents make
them whole for any loss of pay they may have suffered by reason of the re-
spondents' discrimination against them by payment to each of them of a sum
of money equal to the amount he normally would have earned as wages during
the period from the date of discrimination to the date of the offer ot reinstate-
ment, less his net earnings zr; during said period.
As has been found above, the respondents have employed divers illegal methods,
including domination and interference with the formation of a labor organization,
discriminatory transfers and discharges, and other intimidatory conduct in
furtherance of a general effort to frustrate and discourage union organization by
their employees The varying methods employed by the respondents disclose a
propensity and a determination on the respondents' part to engage in persistent
efforts, although not necessarily by the same means, to continue to defeat self-
organization by their employees Because of the respondents' unlawful conduct
and its underlying purpose, the undersigned is convinced that the unfair labor
practices committed by the respondents are related to other unfair labor prac-
tices proscribed and that danger of their commission in the future is to be
anticipated from the respondents' conduct in the past The preventive purposes
of the Act will be thwarted unless the recommended order is coextensive with
the threat. In order, therefore, to make effective the interdependent guarantees
of Section 7, to prevent a recurrence of unfair labor practices, and thereby mini-
mize industrial strife which burdens and obstructs coimmnerce, and thus effectuate
the policies of the Act, it will be recommended that the respondents be ordered
to cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.
CONCLUSIONS or LAw
1 Local No. 155 , United Electrical, Radio & Machine Workers of America,
affiliated with the Congress of Industrial Organizations, and the Employee
Representation Committee, referred to above, are each a labor organization within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation of, and contributing
support to, the Employee Representation Committee, the iespondents have en-
gaged in and are engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act
3 By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of Catherine Gallagher, Helen Vogt, Joseph Hag-
gerty, Pauline Scanlon, Florence Mercer, Anna Heaney, and Dan Dortone, thereby
discouraging membership in Local No 155, United Electrical Radio & Machine
Workers of America, C I 0, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
26 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else.
where than for the respondents , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N L It B 440 Monies received for work performed
upon Federal , State, county, municipal, or other work-relief projects shall be considered
as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
HAROLD W. BAKER COMPANY 63
4 By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
nuclei signed recommends that Harold W Baker, Jr., Leonard E. Hepfer, Kathleen
B Starr, and Paul Bakewell, III, co-partners, doing business as Harold W.
Baker Company, Bryn Mawr, Pennsylvania, and their agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Dominating and interfering with the formation or administration of,
or contributing financial or other support to, Employees Representation Com-
mittee or any other labor organization of their employees;
(b) Recognizing Employees Representation Committee as the representative
of any of their employees for the purpose of dealing with the respondents con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment ;
(c) Discouraging membership in Local No. 155, United Electrical, Radio &
Machine Workers of America, C. I 0., or any other labor organization of their
employees, by discrimination in regard to hire or tenure of employment or any
term or condition of employment;
(d) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist Local No. 155, United Electrical, Radio & Machine
Workers of America, C. I 0, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish Employee
Representation Committee as the representative of any of their employees for
the purpose of dealing with the respondents concerning grievances, labor disputes,
wages, rates of pay, bouts of employment, or other conditions of employment;
(b) Offer to Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline
Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges ;
(c) Make whole Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline
Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone for any loss of pay
they may have suffered by reason of the discrimination against them by payment
to each of tliein of a stun of money equal to an amount determined in the manner
set forth in the section entitled "The remedy" above;
(d) Post at their plant at Bryn Mawr, Pennsylvania, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A " Copies of
said notice, to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the respondents' representative, be posted by the
respondents immediately upon receipt thereof and maintained by them for sixty
(60) consecutive days thereafter in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the respondents to insure that said notices are not altered, defaced, or covered
by any other material ;
717734-47-vol. 71-6
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) File with the Regional Director for the Fourth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report a report in
writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of ex-
ceptions and/or brief, the party or counsel for the Board filing the' same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board Any party desiring to submit a brief in
support of the Intermediate Report shall do so within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, by filing
with the Board an original and four copies thereof, and by immediately serving
a copy thereof upon each of the other parties and the Regional, Director.
ARTHUR LEFF,
Trial Examiner.
Dated June 19, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We hereby disestablish Employee Representation Committee as the
representative of any of our employees for the purpose of dealing with us
concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and we will not recognize it or
any successor thereto for any of the above purposes.
We will not dominate-or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights or privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Catherine Gallagher Florence Mercer
Helen Vogt Anna Meaney
Joseph Haggerty Dan Dortone
Pauline Scanlon
HAROLD W. BAKER COMPANY 65
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Local No. 155, United Electrical, Radio & Machine Workers of
America, C. I. 0., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection. All our
employees are free to become or remain members of this union, or any labor
organization. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
HAROLD W. BAKER COMPANY,
Dated-------------------- By --------------------------------
(Representative) (Title)
Note: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.