Hunter Metal Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1965

155 N.L.R.B. 430 (N.L.R.B. 1965)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten , coerce, or restrain Continental Grain Company, or
any other person engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require the aforesaid employers, or any
other employer or person , to cease doing business with Upper Lakes, Ltd.
GRAIN ELEVATOR, FLOUR AND FEED MILL WORKERS, I.NTERNATIONAL
LONGSHOREMEN ASSOCIATION, LOCAL 418, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not he altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois , Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Hunter Metal Industries, Inc. and Local 810, Steel , Metals, Alloys
and Hardware Fabricators and Warehousemen , affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Cases Nos. 29-CA-5O (for-
merly 2-CA-9939) and 29-CA-50-3 (formerly 2-CA-99.39-.3).
October 29, 1965
DECISION AND ORDER
On August 9, 1965, Trial Examiner Samuel Ross issued his Decision
in the above-entitled proceeding, finding that. Respondent had engaged
in certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action to remedy such
unfair labor practices. On the same date, the case was transferred to
the National Labor Relations Board. On August 24, 1965, the Trial
Examiner issued an errata thereto dated August 23, 1965.
Thereafter, on September 13, 1965, Respondent filed "Exceptions by
the Employer to the Trial Examiner's Decision.", I The Board, in its
consideration of the matter, found that the document filed as excep-
tions by the Respondent did not conform with the requirements set
forth in Section 102.46 (b) of the Board's Rules and R.egula.tions, Series
8, as amended, for the filing of proper exceptions. The Board there-
upon, by order dated September 23,1965; gave notice to the Respondent
that it must submit proper exceptions on or before October 4, 1965, and
that if none were received within the time provided, the Board would
reject and strike the document referred to above and would adopt as.its
Order the Recommended Order of the Trial Exiuniner. Thereafter,
counsel for Respondent notified the Board by letter that, in his opinion,
the exceptions were proper and should have been accepted by the
Board. Counsel did not undertake to file a. brief or any additional or
revised exceptions.
" At the request of the Respondent , the Board extended the time for filing exceptions to
September 13, 1965, and the time for filing briefs to September 20, 1965.
155 NLRB No. 41.
HUNTER METAL INDUSTRIES, INC . 431
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the Board has delgated its powers with respect to this case
to a three-member panel [Members Fanning, Brown, and Zagorla].
Section 102.46(b) of our current Rules and Regulations establishes
the standards for the proper filing of exceptions. The rule states in
pertinent part that each exception "(1) shall set forth specifically the
questions of procedure, fact, law, or policy to which exceptions are
taken; (2) shall identify that part of the trial examiner's decision to
which objection is made; (3) shall designate by precise citation of page
the portions of the record relied on; and (4) shall state the grounds for
the exceptions and shall include the citation of authorities unless set
forth in a supporting brief.... Any exception which fails to comply
with the foregoing requirements may be disregarded."
Respondent's exceptions are in summary form and merely assert that
the Trial Examiner erred in his conclusion that Respondent knew of
the discriminatee's union activity and fired him for engaging therein.
Respondent also contended that the Trial Examiner committed error
in receiving evidence of certain 8 (a) (1) conduct which Respondent
had previously admitted. Respondent filed no briefs in explanation of
its position and does not call the Board's attention to any specific error
in the Trial Examiner's findings of fact, his reasoning, or his applica-
tion of law. Under these circumstances, we must disagree with Re-
spondent's contention that no citation of authority or statement of
grounds in support of its position is necessary.2 We find, rather, that
Respondent's exceptions fail to set forth specifically those questions of
procedure, law, fact, or policy to which it objects as required by Rule
102.46 (b).3 Accordingly, we shall reject and strike the document sub-
mitted by Respondent entitled "Exceptions by the Employer to the
Trial Examiner's Decision." 4
As no proper statement of exceptions has been filed with the Board,
we shall abide by Section 102.48 (a) of the Rules and Regulations,
which provides that in the event timely or proper exceptions are not
filed, the findings, conclusions, and recommendations of the Trial
Examiner as contained in his Decision shall, pursuant to Section 10 (c)
of the Act, automatically become the Decision and Order of the Board
and become its findings, conclusions, and order, and all objections and
exceptions thereto shall be deemed waived for all purposes.
[The Board adopted the Trial Examiner 's Recommended Order.]
2 Cf Screen Print Co) poration , 151 NLRB 1266.
"In addition , and contrary to Rule 102 .46(b), Respondent ' s exceptions fall to desig-
nate those portions of the record relied upon . Respondent 's counsel asserts that Respond-
ent could not purchase a transcript of the record However, a copy thereof is available
for examination , upon request , in either the Board ' s Regional Office or its Washington
office. See Section 102 117 of the 'Board 's Rules and Regulations
-Patrick F Izzi d/b /a Pat Izzi Trucking Co., 149 NLRB 1097, affd. 343 F. 2d 753
(C.A 1).
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on April 6 and May 1, 1964, by Local 810, Steel, Metals, Alloys
and Hardware Fabricators and Warehousemen, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called
Local 810, the General Counsel issued a consolidated complaint dated June 30, 1964,
against Hunter Metal Industries, Inc., herein called the Company or the Respondent,
alleging that it had engaged in unfair labor practices within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as
amended, herein called the Act. In substance the complaint alleges that coincident
with an organizational campaign by Local 810, the Respondent, by interrogating
employees concerning their membership in and activities on behalf of Local 810, by
indicating to employees that their Local 810 union meetings, meeting places, and
concerted activities were under surveillance by the Company, by warning and direct-
ing employees to refrain from assisting or supporting Local 810, and by threatening
employees with discharge, loss of pay iaises, and other reprisals unless they became
members of another union, interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by the Act. In addition the complaint alleges that
the Respondent discriminated against two employees, Carlos Del Valle and James
Kimlin, by discharging them because they joined and assisted Local 810 and refused
to join another union. The Respondent filed an answer denying the substantive
allegations of the complaint and the commission of unfair labor practices
Pursuant to notice, a hearing was held in Brooklyn, New York, before Trial Exam-
iner Samuel Ross on March 8 and 9, 1965. All parties were represented at the
hearing by counsel and were afforded full opportunity to be heard, to introduce
evidence, to examine and cross-examine witnesses, and to present oral argument.
None of the parties filed a brief although time to do so was granted.
Upon the entire record in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Company is a New York corporation which is engaged at East Patchogue,
New York, in the manufacture and sale of metal furniture and related products.
During the past year , a representative period, the Company manufactured , sold, and
shipped products valued in excess of $ 50,000 from its plant in the State of New York
to points and places outside the said State. During the same period , the Company
purchased and received materials valued in excess of $50,000 which were shipped
directly to its plant in the State of New York from places outside the State. On the
foregoing admitted facts , it is found that the Company is engaged in commerce and
in operations affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Respondent admits and it is therefore found that the Charging Union, Local
810, is a labor organization within the meaning of Section 2(5) of the Act. The
Respondent also admits and it is found that Lumber, Plants, Warehousemen and
Allied Products, Local 1205, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (herein called Local 1205), is a labor organiza-'
tion within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The background history of labor relations at the Company's plant
1. The representation of the Company's employees by UE
On June 14, 1961, United Electrical, Radio and Machine Workers of America,
Independent (herein called UE), was certified by the Board as the collective-bargain-
ing representative of Respondent's production, maintenance, and shipping employees,,
and thereafter entered into a collective-bargaining agreement with Respondent, effec-
tive until June 30, 1964, which contained a valid union-security clause
i Case No. 2-RC-10886.
HUNTER METAL INDUSTRIES, INC. 433
2. The Company's recognition of Local 1205
On November 21, 1963, Local 1205 filed a petition with the Board seeking repre-
sentation of the Respondent's employees, but this petition was dismissed by the
Regional Director on the ground that UE's contract was a bar to the election." On
January 23, 1964, UE's shop steward at Respondent's plant filed a union-security
deauthorization petition with the Board,3 which resulted on March 2, 1964, in a
certification by the Regional Director that a majority of the Company's employees
had voted to revoke UE's union-security authorization. Thereupon, on the demand
of Local 1205 for recognition, a card check was conducted by an independent
arbitrator on March 3, 1964 (the day after the certification of the union-security
deauthorization results), and he certified that a majority of the Respondent's employ-
ees had designated Local 1205 as their bargaining representative. Subsequently, on
April 2, 1964, although its collective-bargaining agreement with UE had not expired,
the Company executed a collective-bargaining agreement with Local 1205, effective
until April 1, 1967, containing, inter aba, a union-security clause requiring member-
ship in Local 1205 after 30 days, and a dues checkoff provision.
A few days later, on April 7, 1964, UE requested negotiations with the Respondent
for modification of its still current and unexpired contract.4 On the following day,
the Company by letter responded that it doubted UE's majority status and would not
meet with it unless that status was reestablished s
3. The organizational campaign of Local 810
The Charging Union, Local 810, began its current organizational activities in
December 1963 by calling a meeting of Respondent's employees. Thereafter, starting
in March 1964, Local 810 organizers frequented the plant site and spoke to employees
outside the plant, authorization cards were passed out by organizers and employees,
and weekly meetings with employees were conducted Admittedly, the Respondent's
President Harry Stoll was aware of Local 810's organizational activity in March 1964,
before the collective-bargaining agreement with Local 1205 was executed. On April 23,
1964, Local 810 filed a petition with the Board for certification as the representative
of Respondent's employees 6 UE and Local 1205 intervened. The Company and
Local 1205 contended that their collective-bargaining agreement of April 2, 1964, was
a bar to the proceeding. On July 7, 1964, the Regional Director ruled that since the
contract was signed during the term of the Company's existing contract with UE, it
could not serve as a bar to Local 810's petition, and he directed an election with UE,
Local 1205, and Local 810 on the ballot. UE subsequently was permitted to with-
draw its name from the ballot, and at the election on July 20, 1964, Local 810 received
a substantial majority of the votes cast. The Company filed timely objections to the
election which were overruled by the Regional Director. Thereafter, the Company's
request to the Board to review the Regional Director's decision was denied.
B. The Respondent's admissions
As previously noted, the complaint alleges that in connection with Local 810's orga-
nizational campaign, the Company unlawfully: interrogated employees concerning
their membership in, activities on behalf of, and sympathy for, Local 810; indicated
to employees that Local 810's meetings, meeting place, and activities were under
surveillance by the Company, warned employees to refrain from assisting or support-
ing Local 810; threatened employees with discharge, loss of pay raises, and other
reprisals unless they became members of Local 1205; and discharged Carlos Del Valle
and James Kimlin because of their membership in and assistance to Local 810, and
their refusal to join Local 1205. Early in the hearing in this case, the Respondent
amended its answer which denied the commission of the above unlawful conduct, and
admitted all the allegations of violation, excepting only the allegation that James
Kimlin was discharged because of his activities on behalf of Local 810 and his refusal
to join Local 1205. During the hearing, the Respondent offered Kimlin reinstate-
ment to his former or substantially equivalent position, which the latter promptly
2 Case No 2-RC-13103.
8 Case No. 2-DD-118.
S Similar demands had been made by UE in November 1963 and January 1964 but had
been rejected by Respondent as untimely.
6 The findings in sections III, A, 1 and 2 above are based on the Regional Director's
Decision and Direction of Election in Case No 2-RC-13386 (General Counsel's Exhibit
No. 2) which was received by stipulation of the parties for background purposes.
6 Case No. 2-RC-13386.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accepted . Thus, the only issue which remains for disposition is whether Kimlin is
entitled to reimbursement for lost earnings because his discharge was motivated by
his activities on behalf of Local 810 and/or his refusal to join Local 1205.
C. Kim liii's employment and discharge
James F. Kimlin was interviewed for employment by Respondent's Vice President
Seymour Schwartz on April 7, 1964,7 and was hired as a machine operator. During
the interview, Kimlin was told by Schwartz that "after thirty days you will join the
union [Local 1205] and you will get a nickel raise." 8 Kimlin reported for work as
directed on April 8 and was assigned the job of spotwelder under the immediate
supervision of Tino Caruso.9
At the completion of his first day of work Kimlin attended a meeting of Local 810
and signed an authorization card designating that union to represent him. On the
following day, April 9, Vice President Schwartz accosted Kimlin and said, "I know
you went to the [Local] 810 meeting last night." Kunlin replied, "How do you know?"
Schwartz responded, "Never mind, I just know." Kimlin then volunteered, "I'm no
[Local] 810 member." Schwartz answered, "You better not be. We don't want any
810 members here."
During the next few weeks, Kimlin participated in Local 810's organizational cam-
paign, solicited employees in the machine area of Respondent's plant to sign authoriza-
tion cards for Local 810, signed up three employees to such cards, attended the weekly
meetings of Local 810 every Wednesday, and together with Carlos Del Valle and
Anibal De Jesus, the other two employee solicitors for Local 810, conferred frequently
at quitting time with that union's organizer just outside the plant.
On April 22, notwithstanding that Kimlin had been employed by Respondent for
only 2 weeks, Vice President Schwartz spoke to Kimlin regarding his lack of member-
ship in Local 1205. On this occasion, Schwartz said to Kimlin in the plant, "I hear
}ou have not signed a [Local] 1205 card." Kimlin conceded that he had not.
Schwartz then said, "Well you better have [sic] or you will find yourself out of a
job." 10
During his entire period of employment by Respondent until the day of his dis-
charge, Kimlin worked at his original assignment of spotwelder, and admittedly
received no reprimands or complaints about his work or deportment from either
Caruso, under whose immediate direction he worked, John Blake, Respondent's pro-
duction foreman, or any other official of the Company. On the morning of April 24,
Foreman Blake said to Kimlin, "Come with me. You are going to work in the paint
shop." Kimlin replied, "I was hired as a spot welder." Blake responded, "You work
where I tell you." Thereupon, notwithstanding that Kimlin complained to Blake that
paint fumes "bothered him," he followed Blake into the paint shop and worked
there the balance of the day.
According to Kimlin's credited testimony, about 2 p m. that same day, Foreman
Blake returned to the paint room and in the presence of William O'Shaughnessy,
Local 1205's shop steward at Respondent's plant, said to Kimlin, "I hear you still
have not signed a 1205 card yet " Kimlin answered, "No, what's the difference?"
Blake replied, "If you haven's signed a 1205 card, you will not get a twelve and a half
cent raise like the other members of the plant " Kimlin responded, "For a lousy,
stinking twelve and a half cent raise, I will not sell out." Blake retorted, "That isn't
all. If you don't sign the 1205 card now with Mr. O'Shaughnessy, you will be fired
today." Kimlin replied, "I will not sign. I do not like what you are trying to do
here." Blake answered, "Fine," and O'Shaughnessy added, "You can tell the rest of
your 810 members that you [all] will be out by May 2." 11
T All dates hereinafter refer to 1964 unless otherwise specified.
s The Respondent's collective-bargaining contract with Local 1205 provided, inter alia,
that "new employees who are hired as unskilled help shall receive" an increase of 5 cents
per hour "after completion of [a] thirty (30) day probationary period " As noted above,
the contract also contained a 30-day union-security clause.
B The Respondent contends that Caruso is a Ieadman and not a supervisor within the
meaning of the Act. Although that issue was fully litigated, its determination is not
regarded necessary in view of the conclusion hereinafter reached
10 The findings above regarding Kimlin's hire, employment, and conversations with Vice
President Schwartz are based on Kimlin's uncontroverted and credited testimony At the
time of the hearing, Schwartz was no longer connected with Respondent, and assertedly
was unavailable as a witness. However, the Respondent declined my offer of a subpena
and a continuance of the hearing to obtain his attendance
"This date, May 2, was exactly 30 days after the execution of the collective-bargaining
agreement between Respondent and Local 1205
HUNTER METAL INDUSTRIES, INC. 435
About 4 p.m . that same day, one-half hour before the usual quitting time, Respond-
ent's paymaster , Mr. Rubin, gave Kimlin his paycheck and said it was "final."
Kimlin asked Rubin why he was being fired, and the latter told him, "See Mr.
Schwartz ." Kimlin then visited Schwartz in his office and asked him the reason for
his discharge . Schwartz told him, "See Mr. Blake." Kimlin then asked Blake why he
was being dismissed , and the latter replied , "I told you the reason this afternoon."
D. The Respondent's asserted reasons for Kimlin's discharge
Production Foreman Blake denied that he ever spoke to Kimlin "about [Local]
1205 or joining the union or things of [sic] this effect ." Blake also denied any knowl-
edge of Kimlin's union activities , and he testified that Kimhn's dismissal had no
relation to such activities.
According to Blake, about 4 days before Kimlin 's termination, he observed Kimlin
sitting "on top of a work bench with another spot welder ... with his knees crossed,
hands clasped over them , pretty well relaxed, laughing [and] having a good time with
the other operators ." Blake admitted , however , that he did not tell Kimlin either to
get off the bench or to stop talking and get to work. Blake also conceded that
although he had previously observed Kimlin at work during his frequent trips through
the plant, this was the first "bad move" that he had seen Kimlin make. Later that
day, according to Blake, he checked with Tino Caruso , under whose direction Kimlin
worked, and Caruso told him that Kimlin talked a lot and was away from his machine
excessively . 12 Accordingly , Blake testified , he "started to observe " Kimlin for the
next "two or three days ," and saw him "talking very heartedly ," and making "frequent
trips" with "very light loads " of material so that he was away from his machine "more
often than he should have been ." Blake admitted that he never spoke to Kimlin
about any of these alleged shortcomings , nor made any attempt to have them cor-
rected by- Kimlin. His only excuse for not so doing was that under the contract with
Local 1205 , Kimlin was a probationary employee and a "probationary isn't given
that chance."
Blake further testified that on the day of Kimlin's discharge , he was short of helpers
on the "dip line" in the paint room , that he told Kimlin to come with him, and that
when Kimlin "got into the paint room ," he said to Blake, "I was hired as a spot welder
and not to work in the paint room." Blake then "corrected " Kimlin, saying, "You
were hired as a general helper to work anywhere in the plant . You had no specific
duty when you were hired here ." Kimlin did not reply but proceeded to "work in
the paint department ." Thereupon , without either observing or inquiring about the
adequacy of Kimlin 's work in the paint department , and without telling Kimlin about
it, Blake assertedly decided at that moment to discharge Kimlin because of the
"arrogant attitude" displayed by Kimlin when he was transferred and "claimed he
was a spot welder," although "he was hired out by the Company as a general
helper ... for every department." Accordingly, after he left the paint department
and without notice to Kimlin, Blake proceeded to process his discharge form.
Significantly , Blake failed to deny Kimlin 's testimony that after notification of his
dismissal, when Kimlin asked Blake the reason therefor, the latter said, "I told you
the reason this afternoon ." Moreover , although on direct examination Blake testified
about Kimlin 's other alleged shortcomings , he gave only Kimlin's "arrogant attitude"
as the reason for his termination , but on cross-examination Blake testified that he also
discharged Kimlin because of his earlier conduct of sitting on the workbench.
In respect to Kimlin's asserted "arrogant attitude " by claiming to having been hired
as a spotwelder rather than a general helper for all departments , Blake admitted on
cross-examination that he was not present when Kimlin was hired , and therefore had
no knowledge of what Kimlin had been told when he was hired . Blake also admitted
that before discharging Kimlin, he made no effort to ascertain from Vice President
Schwartz who hired Kimlin 13 whether or not Kimlin had been told that he was hired
as a machine operator or spotwelder.
In respect to Kimlin's other alleged shortcomings , Blake admitted that other
employees laugh and talk. Moreover , as previously noted, another spotwelder was
observed by Blake sitting on the bench at the time that Kimlin allegedly was so
engaged. However , there was no testimony that any disciplinary action was taken
against that other employee . In addition , the record also discloses that as part of
Kimlin 's job, it was necessary for him to leave his bench , at least on some occasions,
to pick up material to work on from other machines , but the proper number of such
trips not disclosed by Blake or any other witness for Respondent , and Kimlin admit-
tedly was never told that this practice was not satisfactory.
12 Caruso was not called by Respondent to corroborate this hearsay testimony.
is Schwartz was then still connected with Respondent.
212-809-66-vol. 155-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Concluding findings
1. The issue presented and the legal principles involved
The issue presented for resolution by the foregoing record is whether, as alleged
in the complaint , Kimhn was discharged because of his union activities on behalf of
Local 810 and/or his refusal to join Local 1205.
The legal principles applicable to this issue are well settled:
... the Act does not interfere with the employer 's right to conduct his business,
and, in doing so, to select and discharge his employees . It proscribes the exercise
of the right to hire and fire only when it is employed as a discriminatory device.14
"The question involved is a pure question of fact." 15 "Anti-union bias and demon-
strated unlawful hostility are proper and highly significant factors for Board evalua-
tion in determining motive." 16 Accordingly , the record will now be considered in
the light of these principles.
2. Respondent 's hostility to Local 810
The Respondent's President Harry Stoll and its Foreman Blake testified that the
Company's policy towards the competing unions was one of neutrality and "strictly
hands off." However, the undisputed record discloses that: ( 1) Kimlin was told by
Vice President Schwartz , "We don't want any 810 members here"; ( 2) in violation
of Section 8(a) (1) of the Act, Respondent "warned and directed its employees from
becoming or remaining members of Local 810, and to refrain from giving any
assistance or support to it, and from soliciting employees to join Local 810"; 17 and
(3) in further violation of Section 8(a)(3) and (1) of the Act, it discharged Carlos
Del Valle because he joined and assisted Local 810. In the light of the foregoing
record , the conclusion is inescapable and it is accordingly found that Respondent was
actively opposed and hostile to the representation of its employees by Local 810.18
3. Respondent 's knowledge of Kimlin's activity on behalf of Local 810
As noted above , Foreman Blake testified that before discharging Kimlin, he had
no knowledge of Kimlin's membership in or activity on behalf of Local 810. Not-
withstanding Blake's denial , it is fairly evident from the record that Kimlin 's interest
in and activity for Local 810 was known by Respondent . This conclusion is based
on the following evidence in the record : ( 1) Kimlin 's uncontradicted testimony that
on the day after he attended his first Local 810 meeting , that fact was known by
Respondent 's Vice President Schwartz; (2) Kimlin was observed "constantly" by
Blake according to the latter 's own testimony , and Blake thus had ample opportunity
to observe Kimlin when the latter solicited adherents for Local 810 in the plant;
(3) on the day of his discharge , Kimlin in effect asknowledged to Blake that he was
an adherent of Local 810 when he refused "to sell out" by joining Local 1205; and
(4) Kimlin's frequent conferences with Local 810's organizer outside the plant were
visible to plant officials from their offices.19
4. Conclusions in respect to the motivation for Kimlin 's discharge
In the light of the findings above that the Respondent was opposed to the repre-
sentation of its employees by Local 810 , that Respondent engaged in interference,
restraint , and coercion of employees to discourage affiliation with that union, that
Respondent discharged Carlos Del Valle because of his activities on behalf of Local
810, and that Respondent had knowledge of Kimlin's like activities in support of
14 N.L.R .B. v. Wagner Iron Works and Bridge, Structural & Ornamental Iron 'Workers
Shopmen'8 Local 471 (AFL ), 220 F . 2d 126 , 133 (CA 7).
" Hartsell Mills Company v. N.L R.B. , 111 F. 2d 291 , 293 (C A. 4).
19 N.L.R.B. v. Dan River Mills , Incorporated, Alabama Division , 274 F. 2d 381, 384
(C A. 5).
17 This quotation is from paragraph 11 of the complaint , which, as previously noted (see
section III , B, above ), was admitted by the Respondent during the hearing
>e The contrary testimony of Foreman Blake and President Stoll regarding Respondent's
"strictly hands off" and neutral policy towards the competing unions is therefore regarded
as unworthy of credence or belief.
19 Significant in this regard is the testimony of Anibal De Jesus who testified that Vice
President Schwartz pointed out of the office windows to employees of Respondent who
were talking to Local 810 's organizers outside the plant , and asked De Jesus , "You see
those guys [ Respondent 's employees ]? What are they trying to prove?"
HUNTER METAL INDUSTRIES, INC. 437
Local 810, the sudden termination of Kimlin's employment admittedly without any
prior warning that either his work or deportment was unsatisfactory, clearly estab-
lishes, prima facie, that Kimlin's discharge was motivated by Respondent's hostility to
Local 810. The same conclusion is also required by Kimlin's credited testimony that
on the day of his discharge, Kimlin was threatened by Foreman Blake with dismissal
unless he joined Local 1205 that day, that he nevertheless refused to sign up with
Local 1205, and that as threatened, he was fired later that day and told by Blake that
the reason therefor was that given him earlier in the day.
In the light of the foregoing conclusion, consideration is now required of the
grounds for Kimlin's dismissal as asserted by Respondent. For the reasons herein-
after explicated, the said grounds, testified to by Foreman Blake, are regarded as quite
obviously insubstantial, implausible, and as pretexts to conceal the real motive
for Kimlin's termination.20
Thus, as previously noted, Blake first testified that the reason for his discharge of
Kimlin was the latter's "arrogant attitude" assertedly displayed when Kimlin claimed,
in objecting to his transfer to the paint department, that he had been hired as a
spotwelder. Not having participated in Kimlin's hire, Blake admittedly had no basis
for knowing whether Kimlin's claim was true or not. Moreover, after Kimlin was
told by Blake that he was a "general helper" and was required to work "anywhere
in the plant," Kimlin worked in the paint department without further protest. Under
the circumstances, the mere assertion by Kimlin that he was hired as a spotwelder,
which, for all Blake knew, might be true, could not reasonably be regarded as "arro-
gant." Blake admittedly made no effort to ascertain the truth of Kimlin's claim before
he fired him, and Blake's testimony is generally regarded as unreliable. Accordingly,
his assertion that this was the reason for Kimlin's discharge is not believed, and is
regarded by me as a pretext to conceal the true motive for Kimlin's termination.
As further previously noted, on cross-examination, Blake also assigned as addi-
tional reasons for Kimlin's discharge, his conduct of once sitting on the workbench,
his talking and laughing, and his too frequent trips for materials. For the reasons
hereinafter stated, these asserted reasons are regarded by me as afterthoughts on the
part of Blake and as further pretexts to conceal the illegal motivation for Kimlin's
termination.
1. Since laughing and talking by other employees are admittedly tolerated by
Respondent, it is difficult if not impossible to conceive how Kimlin's like conduct is
either a shortcoming on his part, or reasonably could be regarded as such, especially
since he admittedly was never told that he was not supposed to laugh and talk.
Accordingly, this asserted reason for his dismissal is regarded as pretextual.
2. Even if it is assumed that Kimlin was not supposed to sit on the workbench,
he did so only once, and that was 4 days before his discharge. Another employee
engaged in the same "offense" at the same time, and, so far as this record discloses,
was not in any way disciplined. On the single occasion when Kimlin sat on the bench,
he was not reprimanded or told not to engage in such conduct. In any event, since
the "offense" was not repeated by Kimlin despite the absence of reprimand, it could
not reasonably have motivated his dismissal 4 days later. Accordingly this asserted
reason for Kimlin's discharge is regarded as another pretext.
3. The record discloses that as part of Kimlin's duties as a spotwelder, it was neces-
sary for him to leave his bench to pick up material to work on. According to Blake,
Kimlin's such trips were too "frequent" and he carried "very light loads." However,
aside from these conclusions, Blake furnished no testimony regarding what con-
stitutes a proper number of trips, or what a proper load should be. Significantly,
Blake did not testify that there was anything wrong with either the quantity or
quality of Kimlin's work. In the light of the foregoing, the general unreliability of
Blake's testimony, and especially since Kimlin admittedly was never told that he was
zo Aside from all other considerations, I regard Blake's testimony as generally un-
worthy of credence or belief. As previously noted, Blake's testimony regarding Respond-
ent's "strictly hands off" and neutral policy towards the competing unions was obviously
untrue and was not credited (see footnote 118, supra). In addition, Blake's testimony was
in some respects self-contradictory. On other occasions, especially on cross-examination,
Blake was evasive and avoided direct answers to questions. In general, Blake impressed
me as an unreliable witness. For example, Blake testified on one occasion that he "started
to observe" Kimlin after he first saw him sitting on the bench, but later contradictorily
testified that he had observed Kimlin "constantly" from the inception of his employment
by Respondent. Blake obviously was reluctant to concede that Kimlin objected to his
transfer to the paint department because the paint fumes bothered him, and did so only
after his memory was prodded by that admission in his affidavit to the Board agent.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
away from his machine more often than he should be, or that this method of opera-
tion was improper , this asserted reason for his discharge is regarded as just another
pretext.
4. As noted above, Blake 's only explanation for not calling Kimlin's attention
to any of his alleged shortcomings and for not reprimanding Kimlin was that a
"probationary isn't given that chance ." Since the Respondent hired Kimlin and
undertook the trouble and expense of teaching him to spotweld , it would be natural
to assume that the Respondent would also train him in proper performance and
conduct, to the end that he would become a valuable employee . Under the circum-
stances, the absence of any reprimands suggests either that Kimlin 's conduct and
performance were not improper , or if so, not sufficiently so to require correction.
5. In his closing argument , Respondent's counsel in effect concedes that the
reasons asserted for Kimlin 's discharge could properly be regarded as "rather flimsy"
and "fishy" if applied to an employee of longer tenure. Whether or not grounds for
discharge that are "flimsy " or "fishy" for longer term employees are not equally so
when applied to a probationary employee, I so regard the reasons asserted for the
discharge of Kimlin, an employee who received no reprimands for either his work or
department prior to discharge.
For all the foregoing reasons, including the pretextual grounds asserted for his
dismissal , I find and conclude that Kimlin's employment was terminated by Respond-
ent because of his active role in support of Local 810 and his refusal to join Local
1205,21 and that thereby the Respondent discriminated against Kimlin and engaged
in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against Carlos Del Valle and
James F. Kimlin by terminating their employment , I will recommend that to the
extent that the Respondent has not already done so,22 it be ordered to offer them
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges , and make them
whole for any loss of earnings they may have suffered by reason of the discrimination
against them , by the payment to each of them of a sum of money equal to the amount
which he normally would have earned as wages from the date of his discharge to the
date of his reinstatement , less his net earnings during said period, with backpay com-
puted on a quarterly basis in the manner established by the Board.23
I will also recommend that the Respondent make available to the Board upon
request, payroll and all other records necessary to facilitate the determination of the
amounts due under this recommended remedy.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 810 , Steel, Metals , Alloys and Hardware Fabricators and Warehousemen,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, and Lumber, Plants, Warehousemen and Allied Products, Local
1205, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers
of America , are labor organizations within the meaning of Section 2(5) of the Act.
21 Since Kimlin had only worked 16 days for Respondent when discharged , it is obvious
that he was not yet required to join Local 1205 under the terms of the contract between
Respondent and that union
22 At the outset of the hearing all the parties conceded that Carlos Del Valle had already
been reinstated . As previously noted , during the hearing Respondent offered Kimlin rein-
statement which the latter accepted
23 F. W. Woolworth Company, 90 NLRB 289. Backpay shall include the payment of
Interest at the rate of 6 percent per annum to be computed in the manner set forth in
Isis Plumbing & Heating Co , 138 NLRB 716.
HUNTER METAL INDUSTRIES, INC. 439
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that the Respondent, Hunter Metal Indus-
tries, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Local 810, Steel,
Metals, Alloys and Hardware Fabricators and Warehousemen, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of its employees, by discharging or refusing
to reinstate any employee, or in any other manner discriminating in regard to hire or
tenure of employment, or any term or condition of employment, except to the extent
permitted by the proviso to Section 8(a) (3) of the Act.
(b) Interrogating employees concerning their union affiliation, activities, or sympa-
thies in a manner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
(c) Making statements to employees which indicate or create the impression that
their union meetings or other union or concerted activities are under surveillance.
(d) Threatening employees with loss of employment, economic sanctions, or other
reprisals to discourage union affiliation or adherence.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join or
assist Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action to effectuate the policies of the Act
(a) To the extent it has not already done so, offer Carlos Del Valle and James F.
Kimlin reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a result of the discrimination against
them in the manner provided in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Notify Carlos Del Valle and James F. Kimlin if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its plant in East Patchogue, New York, copies of the attached notice
marked "Appendix." 24 Copies of said notice, to be furnished by the Regional
Director for Region 29, shall, after being duly signed by Respondent, be posted by it
immediately upon receipt thereof and maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
In the event that this Recommended Order be adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order "
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 29, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps it has
taken to comply herewith 25
5 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10, days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local 810,
Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization, by discharging or refusing
to reinstate any of our employees or in any other manner discriminating against
our employees in regard to their hire or tenure of employment, or any term or
condition of employment, except as permitted by the proviso to Section 8(a) (3)
of the Act.
WE WILL NOT coercively or unlawfully interrogate our employees regarding
union affiliation, activities, or sympathies.
WE WILL NOT make statements to our employees which will indicate or create
the impression that their union meetings, or other union or concerted activities,
are under surveillance.
WE WILL NOT threaten employees with loss of employment, economic sanc-
tions, or other reprisals to discourage union affiliation or adherence.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist Local 810, Steel, Metals, Alloys and Hardware Fabri-
cators and Warehousemen, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act.
WE WILL offer to Carlos Del Valle and James F. Kimlin, to the extent we
have not already done so, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination against them.
WE WILL notify the above-named employees if presently serving in the Armed
Force of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of Local 810, Steel, Metals, Alloys and Hardware Fabricators
and Warehousemen, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any other labor organization.
HUNTER METAL INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Brooklyn, New York, Telephone No. 596-5386.