Holland Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 28, 1960

129 N.L.R.B. 776 (N.L.R.B. 1960)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again , because of the unusualness of the instant situation 13 in finding against the
Company on the pleadings and for the Union on the entire record made , it should be
stated that it is not enough to raise suspicious circumstances in order to support an
adverse finding against a party respondent ; nor is it necessary that I sustain a re-
spondent party's affirmative defense contentions as an exclusive alternative to finding
such party to have violated the Act. All I find and all I need find here is that the
contentions of the General Counsel are not supported by a preponderance of reliable
testimony.
I accordingly conclude in Case No . 2-CA--6599 that Respondent Company dis-
criminatorily discharged Graham for union reasons ; and, in Case No. 2-CA-6599,
I conclude that General Counsel has failed to prove Respondent Union responsible
for Graham's discharge.
V. THE REMEDY
Having found that Respondent Company has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take affirmative
action to effectuate the policies of the Act.
Respondent Company has reinstated Graham but without otherwise making him
whole . I shall accordingly recommend that the Company make Graham whole for
any loss of pay he may have suffered by reason of his discharge by paying him a
sum of money equal to the amount he would have earned from the date of his dis-
charge to the date of offer of reinstatement less his net earnings 14 to be computed
on a quarterly basis in the manner established by the Board in F. W . Woolworth
Company , 90 NLRB 289, 291-294 . Earnings in one quarter shall have no effect
upon the backpay liability for any other such period . It will also be recommended
that Respondent Company make available to the Board , upon request , payroll and
other records to facilitate checking the backpay due. F. W. Woolworth Company,
supra.
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. Respondent Local No. 26 is a labor organization within Section 2(5) of the Act.
2. Respondent Company is engaged in commerce within Section 2 (6) and (7)
of the Act.
3. Respondent Company has violated Section 8(a)(3) and (1) of the Act by
discriminatorily discharging John B. Graham, Jr.
4. The aforesaid unfair labor practices are unfair labor practices affecting -com-
merce within Section 2 (6) and (7) of the Act.
5. The record does not preponderantly establish that Respondent Local No. 26
has violated Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
18-Cf. United Brick h Clay Workers of America, et at. V . Deena Artware, Inc., 198 F. 2d
637, 642 (C.A. 6), cert. denied 344 U.S. 897.
34 Crossett Lumber Company , 8 NLRB 440 , 497-498.
Holland Manufacturing Company and United Steelworkers of
America, AFL-CIO. Case No. 22-CA-5935. November 28, 1960
DECISION AND ORDER
On July 20, 1960, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action , as set forth in the copy of the Intermediate Report at-
tached hereto . Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
129 NLRB No. 95.
HOLLAND MANUFACTURING COMPANY 777
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the 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 this case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Holland Manufacturing Com-
pany, Succasunna, New Jersey, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees because of their
concerted or union activities, or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condi-
tion of employment.
(b) Dominating or interfering with the administration of The Com-
mittee or with the formation or administration of any other labor
organization of its employees, and contributing support to The Com-
mittee or to any other labor organization of its employees.
(c) Recognizing or in any manner dealing with The Committee, or
any reorganization or successor thereof, as a representative of any of
its employees for the purpose of dealing with the Respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of work.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights 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 The Committee as a repre-
sentative of any of its employees for the purpose of dealing with the
Respondent concerning grievances, labor disputes, wages, rates of
• I Member Rodgers , in adopting the Trial Examiner's finding that the Respondent had
knowledge of the union adherence of the seven dischargees , does not rely upon the cir-
cumstance that the Respondent 's plant is a small one located in a small community.
Moreover , in finding that the Respondent unlawfully dominated and interfered with the
administration of The Committee, the Board does not rely upon the Trial Examiner's
conclusion that the Respondent 's power to unseat a selected committee member Eby termi•
nating his employment necessarily constitutes evidence of such domination and interference.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay; hours- of employment, or other conditions of work, and com-
pletely disestablish The Committee as such representative.
(b) Offer to William Newman immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
seniority or other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Make whole William Wisniewski, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy" for any
loss of pay he may have suffered from September 18 to September 25,
1959, by discrimination against him, and in the same manner make
whole Anthony Contessa, Joseph Contessa, Joshua Hamilton, Charles
Reed, and Donald Trepiccione for any loss of pay they may have suf-
fered from September '21 to September 25, 1959, by discrimination
against them.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, and all other records necessary to
analyze the amount of backpay due under the terms of this Order.
(e) Post at its plant in Succasunna, New Jersey, copies of the notice
attached to the Intermediate Report and marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for the
Twenty-second Region, shall, after having been duly signed by the
Respondent, be posted by Respondent immediately upon receipt and
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employee are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Twenty-second Region, in
writing, within 10 days from the date of this Decision and Order, what
steps it has taken to comply therewith.
• 2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order" In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT, OF THE CASE
This proceeding , with gall parties represented , was heard before the duly designated
Trial Examiner in Dover , New Jersey , on March 7 to 9, and March 16 and 17, 1960,
on complaint - of the General Counsel , and answer of Holland Manufacturing Com-
pany, herein called the Respondent or the Company. The issues litigated were
whether or not the Respondent violated Section 8 ( a)(1), (2), and ( 3) of the Act.
All parties were afforded full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence pertinent to the issues. Both parties presented
helpful briefs which have been duly considered herein. Reserved rulings are disposed
of -in accordance with the following findings of fact and conclusions of law.
HOLLAND MANUFACTURING COMPANY 779
Upon the entire record and my observations of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New Jersey corporation , and at all times material to this case, has
owned and operated a factory at Succasunna, New Jersey, and has engaged therein
in the manufacture, sale, and 'distribution of converted and laminated paper and re-
lated paper products. During the past year the Respondent, in the course of its busi-
ness operations, caused to be manufactured, sold, and distributed at the said plant,
products valued in excess of-$50,000 which products were shipped from its plant to
points outside the State of New Jersey.
I find that the Respondent is engaged in commerce within the meahing of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act, and it is so found. The
Respondent denies that "The Committee" is a labor organization within the meaning
of the Act as alleged in the complaint.
III. THE UNFAIR LABOR PRACTICES
A. Issues and events
The complaint alleges, and the answer denies, that the Respondent, on the basis of
union activity among its employees, initiated discharge or economic reprisals, granted
wage increases and other economic benefits, conducted interrogation, circulated a
petition urging employees to withdraw membership in the Union, sponsored "The
Committee," and unlawfully dominated and assisted the same, recognized and bar-
gained with The Committee although it was not the authorized collective-bargaining
representative, and that the Company discriminatorily discharged seven employees
and refused them reinstatement. The complaint further alleges that the employees
of the Respondent, on or about September 25, 1959, to on or about September 28,
1959,1 ceased work concertedly and went on strike.
The record reveals that in July 1958 the Company opened its Succasunna plant, and
that initially it employed only a few rank-and-file employees, but by the summer of
1959 employed about 20 nonsupervisory employees, a general plant manager, Victor
Marcussen, and Foremen Reginald Waldron, Patrick Macula, and Russell McCue.
There is ample evidence, without any serious contentions otherwise, that the above
individuals were "supervisors" within the meaning of Section 2(11) of the Act, and
in accordance therewith I so find. Among the nonsupervisory employees were the
seven alleged discriminatees in this proceeding, five of whom were hired in August
and all of whom were discharged in September.2 The record also established that
the Union held a meeting on September 16 attended by several of the respondent's
employees , and union authorization cards were signed on this occasion . On Sep-
tember 21 the Union filed a petition with the Board requesting a representation elec-
tion in the production and maintenance unit of the Company, and that a copy of the
petition in Case No. 22-RC-593 was received by the Respondent on September 22.
A strike was called by the Union at the company plant from September 25 to Septem-
ber 28, and in conjunction therewith a picket line was also established.
B. The testimony
1. With respect to the Union
The General Counsel produced testimony through employee Harry Waldron to the
effect that the union meeting was held on or 'about September 16, and that on the
following day most all employees had union cards in their pockets and requests were
made for additional signatures. Employee Rodney Millard credibly testified that he
also attended the union meeting on September 16, that several employees of the
Company signed union cards at the meeting, and that on the following day "some"
cards were also passed around at the plant. Millard further testified, that in a conver-
I All dates herein are 1959 unless specified etheriWise
21t was admitted that Wisniewski was discharged on September 18 and that Anthony
Contessa, Joseph Contessa, Hamilton, Newman, Reed, and Trepiccione were discharged
on September 21.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sation relative to the Union with Foreman Waldron , he was told that the employees
should not act too hasty, and that consultation with the Company would first be
desirable . Millard testified that he also had a conversation with President Holland,
which I find was on September 17, and had told Holland that the employees felt that
they were not getting enough pay , and in addition mentioned insurance problems,
plant conditions , and "I [ Millard] said something to the effect that if we couldn't get
results , maybe we could get results through a union to get more money and more
benefits." According to the credited testimony of Joshua Hamilton, he also attended
the union organizing meeting on September 16, and signed an authorization card.
Hamilton testified that he was given three union cards to pass around at the plant,
and that on the following day Foreman Pat Macula took a union card out of his
(Hamilton 's) pocket , and then told him, "something can be done about this." Wil-
liam Newman testified that he signed a union authorization card on September 17,
and that he received the card from Joshua Hamilton. The other alleged discrimi-
natees, Anthony Contessa, Reed, Wisniewski, Joseph Contessa, and Trepiccione also
credibly testified that they had signed union cards at the union meeting on the 16th
or at the plant on the following day.
In addition to the signing of union cards , Anthony Contessa testified that he inquired
of Foreman Waldron on September 21 as to the reason for his discharge , and that he
was informed by Waldron that the main reason was the Union . William Wisniewski
credibly testified that he had a conversation with Foreman Macula on September 17
in which Macula asked why he wanted a union , and further that Foreman Macula
then told him , "The men get enough overtime now that they can make good money.
Maybe if the Union came in they might not get that overtime."
President Holland testified that he was unaware of any union activity until he re-
ceived a letter from the Union on September 22, and that this was his first knowledge
of any activity.3 Holland also stated, that on September 22, he received a telephone
call from Union Representative Marsh relative to the prior discharges of the alleged
discriminatees. Foreman Reginald Waldron testified that after Anthony Contessa
was discharged , he inquired of him if it was because of the Union , and he replied
"No," and also that he had not seen any union cards or heard of any union discus-
sions prior to the discharges. However, Foreman Waldron stated that on September
17, Rodney Millard had asked him for more pay and had also inquired at the time
if a union would benefit him in any way.
The record in this case further established that the Respondent, on or about October
1, drafted a petition whereby the employees who signed it purportedly withdrew their
authorization cards for the Union. Relative thereto, Harry Waldron testified, that
Foreman Reginald Waldron brought the petition to him and "asked us to sign it."
Rodney Millard also testified as to circulation of the petition , and stated that he
signed the petition about October 1, and that the petition was circulated by Foreman
Reginald Waldron . President Holland stated that the circulation of the withdrawal
petition resulted from the violence on the picket line and the employees did not desire
this type of union representation , and that the employees were free to sign the peti-
tion if they wished and on a purely voluntary basis.
2. With respect to 8(a)(3)
Joshua Hamilton testified that his work was never criticized , and that Plant Man-
ager Marcussen had complimented him a month before his discharge . Hamilton
further testified that his starting pay was $1.25 an hour, that he received three raises
with his last one being immediately prior to his discharge , and that he had worked
overtime during the last week.
William Newman stated that the normal working week at the plant was on a
40-hour basis , and that for the week ending September 19, he had worked 55.8
hours. On September 21, the day of his discharge , Newman stated that Plant
Manager Marcussen told him that he was laid off due to inexperience and not being
qualified. Newman's duties at the plant were boxing or wrapping the paper rolls
as they came off the slitter machine , and testified that his work was never criticized
nor had he been hired on any "probationary" basis. At the time of his discharge
Newman also stated that he had overhead a conversation between Foreman Reginald
Waldron and Anthony Contessa, and wherein the foreman had told Contessa that
the main reason for Contessa 's discharge was the Union.
3 The letter contained a demand for recognition by the Union sent to the Respondent
from Newark , New Jersey , with a postmark of September 21-6 p .m., and the record
reveals that it was received by the Company on September 22.
HOLLAND MANUFACTURING COMPANY 781
Anthony Contessa testified that he also worked as a boxer or wrapper , that he
had worked overtime on occasions , that his work was never criticized , and at the
time of his discharge was told by Marcussen that he was not experienced or qualified.
Charles Reed testified that he worked as a helper on a slitting machine, and
stated that on discharge he was informed that his work was not satisfactory and
that production was inadequate . He further stated that on September 16, while
working overtime, he was complimented by Foreman Waldron as a good worker,
and that be was never informed of being hired or retained on any "trial " basis.
William Wismewski stated that at the time of his discharge he was told by his fore-
man that 'the Company could not use him anymore, and a few days later was told
by the plant manager that he was not qualified nor was his production sufficient.
He also testified that he had received two raises while working for the Company.
Wisniewski further stated that he had been called into the plant manager 's office
on three occasions some weeks prior to his discharge , and wherein discussions were
held on the slow production of his slitter machine. Joseph Contessa testified that
when discharged he was told that he was not qualified , but that there had been no
prior complaints nor was he hired on any "trial " or "probationary" basis. Donald
Trepiccione stated that when discharged he was informed by the plant manager
of his inefficiency and the lack of work , and that when he confronted Foreman
Waldron and inquired if his discharge was because of union activity , Waldron
replied , "partly." Trepiccione stated that no one had made any prior complaints
about his work, and nothing was said to him about being hired on any trial basis.
As to the discharges of the seven employees herein , President Holland testified
that the Company had to hire inexperienced help in the hopes that they would
develop . He stated that in August the plant had a backlog of orders coupled with
inadequate production , which difficulty he then discussed , during the middle of
September , with his foremen, Holland stated that later in September he and his
foreman also went over the list of employees in each department in the further
effort to evaluate the work of each man . Accordingly , it was determined, that
Wisniewski 's production was off and that other employees had difficulties in working
for him , that Hamilton had been tried in several jobs and was unsatisfactory, that
Reed , Trepiccione , Newman , and the two Contessas were inexperienced and could
not meet the production goals, and that on this basis it was decided to discharge
the employees in question here. Holland admitted a discussion with employee
Rodney Millard on September 17, but testified that it concerned Millard 's wages in
comparison to another employee , but that there was no mention of the Union.
Foreman Waldron testified that it was difficult to keep the discriminatees at their
jobs, that they had no interest in their work , that he was always correcting their
work , that they were slow and especially so in Hamilton 's case , that other employees
complained as to Wisniewski , and that he himself had been reprimanded by the
plant manager for slow production in his department.
Foreman Pat Macula testified that he was unable to teach Joshua Hamilton his
duties, and that he did not perform satisfactory work . Macula stated that when
Wisniewski was discharged he had inquired as to why his production was not up,
and Wisniewski had told him that his help was no good.
3. With respect to the 8(a)(2) allegations
The General Counsel produced credited testimony through employee Harry
Waldron , to the effect that Respondent 's president, Jack Holland , called a meeting
of all the employees at the plant on or about September 8. Harry Waldron testified
that President Holland conducted the meeting , at which time insurance , wages, and
production were discussed , and also that President Holland suggested the formation
of a "Committee" to be composed of one man from each department , and to be
selected by the employees within the respective departments of the plant . Waldron
testified that representatives were then elected in accordance with the above, that
he himself attended three subsequent meetings of "The Committee ," and that along
with the chosen employee representatives from each department , President Holland,
Plant Manager Marcussen , and the various foremen also attended . Waldron testi-
fied that notices signed by Holland, were posted as to the time for The Committee
meetings, that he received pay while in attendance , and that President Holland
acted as chairman at the meetings . Employee Rodney Millard testified that Presi-
dent Holland had suggested a plan for monthly meetings with management, and
that the employees , if they desired , could pick their own representatives from each
department . Millard stated that subsequently , The Committee , between manage-
ment and the employees met, and that he attended four such meeings as a repre-
sentative of the slitting department . Wisniewski corroborated the testimony of
Harry Waldron and Rodney Millard as to the Company 's meeting with employees.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, wherein President Holland discussed insurance and other personal matters, and
that the departments could select a representative to meet with management . Joshua
Hamilton also testified as to the first company meeting with all employees, which
time he placed as prior to the union organization meeting on September 16, and
stated , relative thereto , that President Holland mentioned an insurance matter, a
possible bonus program , and that every month he would meet with an employee
from each department.
The Respondent produced testimony , through its President Jack Holland, to the
effect that it had always been the policy of the Company to keep the employees
informed , and that during the initial formative period of the plant everyone would
eat lunch together , and general topics pertaining to the operations of the plant
would be discussed. As to the company meeting on September 8 with all the
employees , Holland testified that the subjects of insurance , Christmas bonus, wages,
Thanksgiving turkeys, profit-sharing plan, cleanliness , and production were brought
up and mentioned , and that since the plant had been enlarged and was then op-
erating a second shift , he told the employees that to.keep all of them informed on
the various policies "the best bet would be to have you boys pick a man from your
department . .. . Following the September 8 meeting , Holland testified there
were approximately three subsequent meetings where all the employees of a de-
partment were then represented by one employee as so selected by them, and herein
referred to as The Committee . Holland stated that in The Committee meetings
many subjcts were discussed , including lighting of the plant , insurance , and neatness,
but stated that at no time were there any negotiations or bargaining between em-
ployees and management . The record reveals that The Committee meetings are
held in the conference room at the plant; and that in addition to Holland and the
employee representatives , Plant Manager Marcussen and the various foremen also
attended.
There is also considerable testimony in this record relative to the strike conduct
and picket line activities of the alleged discriminatees , and pertinent portions of
this testimony will be set forth and discussed in a later section of this report.
C. Analysis and Conclusions
1. The discharges
It is well -established law by both the Board and the courts , that the existence of a
justifying ground for dismissal of an employee, is no defense if it is a pretext and
not the moving clause. N.L.R.B. v. Solo Cup Company, 237 F. 2d 521 (C.A. 8);
The Plastic Molding Company, Inc., 110 NLRB 2137. As the Court of Appeals in
N.L.R.B. v. Whitin Machine Works, 204'F. 2d 883 (C.A. 1), stated:
Although the discharge of an inefficient or insubordinate union member or
organizer is lawful , it. may become discriminatory if other circumstances
reasonably indicate that the union activity weighed more heavily in the de-
cision to fire him than did the dissatisfaction with his performance.
In applying the above principles to the evidence and testimony in this case, it is
found that the Respondent 's course of conduct violated Section 8(a)(3) of the Act
for the reasons hereinafter indicated.
The Company contends that the discriminatees ' were slow , inexperienced, and
that foremen had troubles in keeping them at ,their jobs. It is difficult to specifically
ascertain how efficient or inefficient these men actually were, but in this respect it
is noted that the actual production records, which the machine operators keep, were
in no way offered by the Company. It is also noted that Wisniewski received two
pay raises, and Hamilton three raises during the relatively brief tenure of their em-
ployment.4 From this testimony it appears unlikely to me that these discharges
resulted from cause , and especially so in view of President Holland's testimony,
that pay raises were given "periodically as a man improved ." In addition to the
above Charles Reed testified that on September 16, while working overtime, Foreman
Waldron complimented him to the effect that he was a good worker, and which
testimony remains in this record without being directly refuted by even Foreman
Waldron himself.
From the record in this case it is obvious that the Company knew the discrimi-
natees lacked experience when they were hired , but President Holland testified that
the Company had hopes they would develop . The testimony shows that five of
4 Wisniewski was hired by Respondent in March of 1959, and Hamilton was hired in
April of 1959
HOLLAND MANUFACTURING COMPANY 783
the seven dischargees actually worked less than 30 days for the Company, in which
period the union activity started , and in the same short span of time it was then
determined that these employees could not develop adequate skills, which all ap-
pears under these particular circumstances , most unrealistic to me. The Board
has held repeatedly that a mass discharge during the height of an organizational
campaign is persuasive evidence of discrimination , and in this case the discharges
occurred within a few days of the first organizational meeting of the Union after
attendance by several of the discriminatees . This sequence of events , in the dis-
charge of approximately one-third of the production force, also took place at a
time when the Company admittedly enjoyed a record backlog of orders and with
no immediate replacement personnel available. Certainly if slowness and inex-
perience were the moving factors for the discharges , the Company would have
effectuated them sporadically when it had secured replacements , and when its
production backlog ratio would reasonably permit such action.
It is noted also that the individual review of each employee 's work performance
by the Company took place after the union meeting on September 16, although
it is admitted that the Respondent was well aware of the backlog of orders during
the month of August . The record and testimony also discloses , that the duties
and jobs of the discriminatees were extremely simple operations . With the possible
exception of Wisniewski the dischargees performed odd jobs around the plant, but
for the most part wrapped or boxed the various types of finished tape rolls.
Charles Reed and the Contessas testified that it only took them a few minutes to
learn the job and that there was "nothing to it ," and Foreman Waldron 's testimony
was in further substantiation when he explained that an employee could learn the
general principles of these duties in a few minutes.
This record contains , as aforestated , direct . testimony by Anthony Contessa
and Newman that Foreman Waldron had openly stated that the discharge of
Contessa was due to union activity , but the same being denied by Waldron . Trepic-
cione also testified that when he inquired if his discharge was because of the Union,
Foreman Waldron had replied "partly." In these instances I credit the testimony
of the above discriminatees on the basis and nature of their friendly relationships
and close personal associations with Foreman Waldron . In this respect it was
established , without denial , that Foreman Waldron had dinner in the Contessa
home, that he visited a sister of the Contessas ' while she was in the hospital, and
that on one occasion Trepiccione and Anthony Contessa had dated three girls with
Foreman Waldron joining them . It appears to me that with this type of social
relationship outside of the plant , a sudden discharge of an employee while at work
would naturally invoke an immediate inquiry to a mutual friend , and especially so
of Foreman Waldron who was in a position to readily know the full circumstances
involved . This record further discloses that the Company has continually referred
to the seven discriminatees herein as all belonging "to a gang," associating in a
"group" together, all being about 18 years of age, and five of the seven being hired
at about the same time . From these summations of togetherness by the Respondent,
it appears to me that the openly stated testimony credibly attributed to Foreman
Waldron , that union activities resulted in the discharge of Anthony Contessa and
"partly" so in the discharge of Trepiccione , has also an equal evaluation and rela-
tionship to the discharge of the remaining discriminatees.
In respect to these discharges the Company further states that it had no knowledge
of any union activity among its employees until after the discharges , and upon
receiving the Union 's letter on September 22. I find that this contention is with-
out merit and it is hereby rejected . The Board has repeatedly held that direct
knowledge of an employee 's concerted or union activities is a sine quo non for
finding that he has been discharged because of such activities . There is well-estab-
lished Board and court precedent that such knowledge may be inferred from the
record as a whole. Wiese Plow Welding Co., Inc., 123 NLRB 616; Radio Officers'
Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U S. 17
(1954); and Pyne Moulding Corp., 110 NLRB 1700. Joshua Hamilton testified
that on September 17, Foreman Macula took a union card out of his pocket, and
then told him that something would be done about it. I have credited this testimony
by Hamilton on the basis of additional testimony by Wisniewski , who stated that on
the same day Foreman Macula had inquired of him about the Union, and wondered
why the employees wanted it . There was no specific denial by Macula of his inquiry
to Wisniewski , and it remains in this record as further corroborated evidence that a
foreman of the Company was well aware of union activity prior to the discharges
herein. The record also reveals that the Company had a small work force of around
20 employees located in a small community , that 2 of the discriminatees and at
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least 1 foreman , Reginald Waldron, fraternized amicably on several occasions prior
to the discharges , that union cards were circulated and signed at the plant premises
on September 17, that the entire production area of the plant was generally open
without partitions or walls between the departments , that on September 17 employee
Rodney Millard had a discussion with President Holland over wages and wherein
Millard stated that maybe the employees could achieve results through a union, and
further the admission by Foreman Waldron that employee Millard had asked him,
on September 17, if a union would be of any benefit to him. In concluding here it
is again noted that the union meeting for employees was held on September 16,
and from the inquiries of foremen and the statements and activities of the dis-
criminatees on the following day, coupled with the events and reasons surrounding
the unusual circumstances of the seven discharges , as aforestated , it becomes clearly
apparent that the Respondent was well aware of union activity . From the record
as a whole in this proceeding , and in the instances given above, it is readily inferrable
,and reasonably presumed that the Company had prior knowledge of the union
activities among its employees , and in accordance therewith I so find.
While this record leaves some doubt as to the full abilities of the discriminatees
and somewhat reflects as to the character of two of them ,5 it does appear to me that
the General Counsel has sustained these allegations by a preponderance of substantial
evidence , and that the compelling and motivating reasons for the discharges were
union activity rather than inexperience and slowness . Based on the sequence of
events here , my observations and demeanor of the witnesses , and for the reasons as
given herein , it is accordingly found that the Respondent has terminated the em-
ployment of the seven dischargees alleged in violation of Section 8(a) (3) of the Act.
2. The Committee
The Act defines a labor organization as:
. . . any organization of any kind or any agency or employee representation
committee or plan in which employees participate and which exists for the pur-
pose in whole or in part of dealing with employees concerning grievances, la-
bor disputes, wages, rates of pay, hours of employment, or conditions of work.
,On or about September 8, the Respondent's president, Jack Holland, called a
meeting of all the employees at the plant. Holland then discussed insurance, bonus,
wages, profit-sharing, cleanliness , and production, and also suggested to the employees
that "the best bet would be to have you boys pick a man from your department."
On this basis the employees proceeded to select one representative from each depart-
ment, and three or four monthly meetings of The Committee then followed.
While there are no set procedures for The Committee meetings the general patterns
are the following: The employee representatives are informed of the meetings by
the plant manager, or by a notice posted on the bulletin board signed by Holland,
the meetings are held in the company conference room at the plant, meetings are
held after the days' working hours but the employee representatives are paid for each
attendance, and President Holland and the foreman attended each meeting. The
Committee continues to exist without any provisions for membership of the em-
ployees generally, without any source of revenue, and making use of all plant
facilitities needed for its operation. The Committee has never had, nor requested
the Respondent to negotiate, a written collective -bargaining agreement binding on
both parties.
The record further shows that at The Committee meetings, insurance matters for
the employees were discussed, wages, lighting, working conditions, and "gripes of
employees" were also considered. There is undisputed and admitted testimony that
as a result of The Committee meetings the employees insurance plan was changed,
lighting was improved, lavatory facilities cleaned, and additional vending machines
were installed.
The foregoing facts amply demonstrate that The Committee falls within the
statutory definition of a labor organization, and that its function is not limited merely
to the conveying of information and keeping all the employees informed, as con-
tended by the Respondent. The employee representatives are not mere messengers
for the transmission of information. They act to settle grievances at the foreman
level, and deal with management on a variety of subjects within the employment
5 The record discloses that Anthony Contessa and Trepiccione gave erroneous dates on
their employment application forms, and that Anthony Contessa was convicted on a
charge of disorderly conduct (fighting) on December 26.
HOLLAND MANUFACTURING COMPANY 785
relationship. I accordingly find that The Committee is a labor organization within
the meaning of Section 2(5) of the Act. Whirlpool Corporation, 126 NLRB 1117,
Coppus Engineering Corporation, 115 NLRB 1387.
While it is sufficiently clear that the Respondent has contributed financial and
other unlawful support and assistance to The Committee, there remains for con-
sideration here, the question of whether the Respondent has dominated and inter-
fered with the formation or administration of The Committee. Section 8(a)(2)
of the Act provides that it shall be an unfair labor practice for an employer "to
dominate or interfere with the formation or administration of any labor organiza-
tion or contribute financial or other support to it...."
In this case it is admitted that the proposal and impetus for the formation of
The Committee came from Respondent President Holland at a meeting of all the
employees called by him at the plant. No secret election was held among the em-
ployees to determine whether a majority wished to have this form of representation.
The only balloting or selection was for a member of the various departments to
serve on The Committee. The Company here contends that it had no concern
and no control over the selection of the representative from the departments and
did not know who the representative would be. However, in this respect the
Respondent is in a position to control The Committee through its inherent power
to unseat any selected committee member by terminating his employment. The
mere existence of such power, whether exercised or not, the Board has repeatedly
held, places the employer in a dominant position over the organization. Finally,
The Committee does not exhibit the characteristics of an existence independent of
the Respondent. It has no discernible resources, there are no dues, no membership
requirement, no constitution, and no bylaws. Further the employee representatives
receive wages for time spent after regular working in their conferences with manage-
ment, and such payments, under these circumstances, have long been regarded
as `San aspect of control." N.L.R.B. v. H. E. Fletcher Co., i08 F. 2d 459, 465
(C.A.1). In sum, ,the Respondent has made the functions of The Committee possible
by enabling them to take place on its property, with the use of such facilities as are
needed, and by payments for time spent both during and after working hours.
By such subsidies, the Respondent remains in a position to assure its domination
over The Committee. The record here also discloses that on October 1, a petition
was circulated seeking withdrawal from the employees of their union authorization
cards, and which petition was signed by most all of the employees then working at
the plant. Even on this basis, if we assume that a majority of employees favor the
continued existence of The Committee, the fact remains that there is no case which
supports the proposition that an employer acquires a valid defense to his establish-
ment of a labor organization simply because later there develops employee support
for the organization. Whirlpool Corporation, supra.
Upon full consideration of the entire record as a whole, in the light of the prin-
ciples and criteria enunciated in prior Board decisions I am convinced that the
situation here is one of domination and interference , and accordingly I find that
the Respondent, in its relations with The Committee, has violated Section 8(a)(2)
and (1 ) of the Act.
3. Interference , restraint , and coercion
The General Counsel contends that the petition requesting the withdrawal of the
Union and signed by 17 employees on or about October 1, is a violation of Section
8(a)(1) of the Act. This petition contained the following caption:
We employees of Holland Manufacturing 'Company do not want the United
Steelworkers of America, AFL-CIO, as our bargaining representative. Those
of us who have signed cards for that union now withdraw them.
President Holland testified that he consulted with the company attorney and the
petition was then drafted, and that it was circulated by the Company's foreman.
Harry Waldron testified that he signed the petition because "he wanted to," and
that he did not like the way in which the Union was "handling things," and also
told The foreman who was circulating the petition, N f I don't sign it] ... "I sup-
pose I might get laid off because of inefficiency, too."
It is well-settled law that Section 8(a) (1) of the Act makes it unlawful for an
employer to instigate and promote a decertification proceeding or induce employees
to sign some other form of union-repudiation petition. Clark & Lewis Co., 122
NLRB 865; N.L.R.B. V. Pat'ma Water Lifter Co., 211 F. 2d 258, 262 (C.A. 9), cert.
denied 348 U.S. 829; N.L.R B. v Louisville Container Corporation 209 F. 2d 654,
586439-61 vol. 129---51
786. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
655 (C.A. 6). In Fairbanks Transit System, Inc., 108 NLRB 958, at 977, the Trial
Examiner with Board approval stated:
And the solicitation of employee signatures in connection with the antiunion
petition must also be construed, in and of itself, as a forbidden form of interro-
gation with respect to employee attitudes, equivalent to surveillance, and as a
pressure tactic. Cf. Syracuse Color Press, Inc., 103 NLRB 377. When under-
taken by an employee, at the instigation and with the active support of his
employer, the solicitation of such signatures , therefore, must be characterized
as an unfair labor practice.
The complaint also alleges that the Respondent violated 8(a)(1) of the Act by
granting wage increases and benefits to employees. There is credible evidence in
this record that employee Harry Waldron on September 21 and 28, received two
wage-hour-pay increases, and that Rodney Millard received pay raises on September
21 and on November 2. Exhibits of the company payroll records, received into
evidence, further discloses that eight other employees in the production and main-
tenance unit also received wage-hour-rate increases on September 21, and that six
of these employees including Waldron, received increases on September 28. Al-
though President Holland testified that it was the company practice to give automatic
raises at the end of 30 days, the evidence reveals that on, or subsequent to September
21, seven employees in the production unit received one or more wage increases
within periods of a week to 10 days. Also the record and exhibits show that em-
ployees hired after September received $1.40 minimum hourly wage rate, and that
prior to the September organizational efforts by the Union the starting wage rate
for employees had been $1.25. The Board has repeatedly held that the granting of
wage increases, after the advent of a union without an adequate showing of inde-
pendent consideration as to merit, is a deterring union activity and a violation of the
Act. Allure Shoe Corporation, 123 NLRB 717. See also Hoffman-Tuff, Inc., 123
NLRB 1462; Cosco Products Company, 123 NLRB 766. '
I accordingly find that the Respondent interfered with, restrained, and coerced its
employees within the meaning of Section 8(a)(1) of the Act, by: (a) drafting a
petition for its employees to sign, renouncing any membership or adherence to the
Union; (b) causing said petition to be circulated among its employees; and (c)
granting wage increases during the advent of union organizational activity. All of
which, under these conditions, reasonable probability, purposes, setting, and sequence
of events here, have had the effect of interfering and restraining the employees in
the exercise of their rights under the Act. I also find that various inquiries and
statements to employees that certain benefits, bonuses, and overtime might be with-
drawn if the Union came in, although bearing on the conclusions as aforestated,
were not sufficiently complied with threats or promises to constitute other than
privileged remarks or prophecies, and as such protected by Section 8(c) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Company set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies 'of the Act.
Since the Respondent has dominated and interfered with the formation and
administration of The Committee and has contributed support thereto, I shall rec-
ommend that the Respondent cease and desist from such conduct and that it with-
draw recognition from and completely disestablish the Committee as the repre-
sentative of any of the Respondent 's employees for the purpose of dealing with the
Respondent - concerning grievances , labor disputes , wages, rates of pay, hours of
employment , or conditions of work. I shall also recommend , in order to make
effective the interdependent guarantees of Section 7 of the Act, that the Respondent
cease and desist from, in any manner, infringing upon the rights guaranteed in said
Section . NL.R.B. v. Express Publishing Company, 312 U.S. 426; N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
'Where, as in the instant case, it has also been found.that .the Respondent engaged
in unfair labor practices in violation of Section 8(a)(1) and ( 3) of the Act, it is
HOLLAND MANUFACTURING COMPANY 787
usual to recommend that the Respondent cease and desist therefrom and take
certain affirmative action, including the offer of reinstatement to discriminatorily
discharged employees. However, the Respondent contends, and the General Counsel
is in accord, to the extent that six of the seven discriminatees, Reed, Anthony and
Joseph Contessa, Wisniewski, Trepiccione, and Hamilton, engaged in disqualifying
conduct during the course of the strike at the Respondent's plant, commencing on
September 25, and therefore, the General Counsel does not urge their reinstatement.
The General Counsel does, however, ask that these discriminatees be reimbursed
for lost pay from the time of their discharge until the strike and the commission
of the disqualifying conduct. In view of the unanimity here, I deem it unnecessary
to detail the corroborated and undenied testimony in this record relative to the strike
conduct of the above discriminatees. All six were identified as participants in
forceably blocking ingress of other personnel to the plant, and which incidents later
necessitated police escorts. Reed, and both Anthony and Joseph Contessa, were fur-
ther identified with property destruction, physical violence, and numerous other
incidents.6 The Board has repeatedly held that unfair labor practice strikers, as is
the case here, who engaged in the type of misconduct amply evidenced in this record,
are guilty in acts of violence of such nature as to warrant denial, and forfeiting their'
rights of reinstatement. Talladega Foundry & Machine Company, 122 NLRB 125;
Morris Fishman & Sons, Inc., 122 NLRB 1436; Waycross Machine Shop, 123 NLRB
1331. The Board has also held, that while misconduct may bar reinstatement rights,
discriminatees can be awarded backpay during the period between the discriminatory
discharges and their participation in the disqualifying strike. Mid-West Metallic
Products, Inc., 121 NLRB 1317. In accordance herewith I will only recommend
backpay reimbursement of the above-named discriminatees from the date of dis-
charges until the commencement of the strike and their misconduct on September
25. The remaining discriminatee, William Newman, was not specifically identified
with any disqualifying conduct, and it will be recommended that the Respondent
offer William Newman immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings he may have suffered by
reason of the discrimination against him, by payment to him of 'a sum of money
equal to that which he would have earned as wages from the date of the discrimina-
tion against him to the date of offer of reinstatement, 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 also be recommended that the Respondent preserve and make available to
the Board, upon request, payroll and other records to facilitate the computation of
the backpay due.
Upon the basis of the foregoing finding of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union and The Committee are labor organizations within the meaning of
Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of William
Wisniewski, Anthony Contessa, Joseph Contessa, Joshua Hamilton, William New-
9 From September 25 to September 28 the Union called a strike in protest of the dis-
charges, and established a picket line at the company plant. Relative thereto, President
Holland testified, that on September 25 when he drove his car to the plant, Charles Reed
jumped on the front of his car, while others in the group, Holland stated, "Jumped in on•
all sides on my car to try and stop me from going In. And I had to force my way
through " Holland testified that he was also called a bastard, scab, plus other miscellane-
ous profane names at the time, and that he recognized Reed, both the Contessas, Hamilton,
and Wisniewski. Holland further testified that during the noon hour on September 25 the
local pollee were contacted, that the police then provided escorts for cars going to and
from the plant, that Reginald, Waldron's car was "tussled" and the aerial ripped off, that
Bill Cook's car was rocked, that Joseph Contessa threw a rock that went in the back
window of Ray Horvell's car, that Reed and Joseph Contessa tried to break in the back
gate, that a telephone call threatened his children and wife with a knifing, that windows
in the plant were broken by, the pickets, and that an arrest warrant was made out against
Reed and the two Contessas The Company also produced testimony through William
Cook, in corroboration of President Holland's testimony as to the, strike and picket line
incidents.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, Charles Reed , and Donald Trepiccione , thereby discouraging membership in a
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
3. By dominating and interfering with the formation and administration of The
Committee , and contributing support thereto , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the sights 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 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization of our employees , by discharging
or refusing to reinstate any of our employees because of their concerted or union
activities , or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT dominate or interfere with the administration of The Com-
mittee , or with the formation or administration of any other labor organization
of our employees , nor will be contribute support to The Committee or to any
other labor organization of our employees.
WE WILL NOT recognize or in any manner deal with The Committee, or any
reorganization or successor thereof, as a representative of any of our employees
for the purpose of dealing with us concerning grievances , labor disputes , wages,
rates of pay, hours of employment , or other conditions of work.
WE WILL NOT in any other manner interfere with , restrain, or coerce our
employees in the exercise of the right to self-organization , to form labor organi-
zations, to join or assist United Steelworkers of America , AFL-CIO, or any
other labor organization , to bargain collectively through representatives of their
own choosing , or to engage in concerted activities for the purpose of collective
bargaining , or other mutual aid or protection , or to refrain from any or all such
activities.
WE WILL withdraw all recognition from The Committee as a representative
of any of our employees for the purpose of dealing with us concerning griev-
ances, labor disputes , wages, rates of pay, hours of employment , and other con-
ditions of work , and completely disestablish The Committee as such representa-
tive.
WE WILL offer to William Newman immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to seniority or
other rights and privileges, and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL make whole William Wisniewski for any loss of pay suffered by him
from September 18 to September 25, 1959.
WE WILL make whole Anthony Contessa, Joseph Contessa , Joshua Hamilton,
Charles Reed , and Donald Trepiccione , for any loss of pay suffered by them
from September 21 to September 25.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of United Steelworkers of America, AFL-
CIO, or any other labor organization.
HOLLAND MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
0