Jos. N. Fournier

National Labor Relations Board - Board Decisions

Oct 6, 1949

86 N.L.R.B. 397 (N.L.R.B. 1949)

In the Matter of Jos. N. FOURNIER, ROME LINCOLN-MERCURY CORP.-
and LODGE 1787, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 3-CA-146.-Decided October 6, 1949
DECISION
AND
ORDER
On August 18, 1949, Trial Examiner Josef L. Hektoen issued his.,
Intermediate Report in this proceeding, finding that the Respondent
had engaged and was engaging in certain unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act, and recommending-
that it cease and desist therefrom and take certain affirmative action, as .
set forth in the copy of . the Intermediate Report attached hereto.-
Thereafter, the Respondent filed a document with the Board's Re-
gional Director for the Third Region entitled "Objections to the
Findings of Facts and Conclusions of Law." Although this document
is not in conformity with the Board's Rules and Regulations, Section
203.46 (a) and (e), Series 5, as amended, we shall, in the circumstances.
of this case, regard it as a general exception to the Trial Examiner's.
findings.'
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the document regarded as exceptions, and the entire
record in the case, and hereby adopts the findings= conclusions,.
and recommendations 3 of the Trial Examiner.
1 See Hatter of Standard - Coosa-Thatcher Company, 85 N. L . R. B. 1358.
Chairman Herzog and Member Murdock would not find that the document referred
to constituted exceptions to the Intermediate Report . Hence they would have held that
Sec. 203.48 of the Board 's Rules and Section 10 ( c) of the Act operated to make the Trial
Examiner 's recommended order that of the Board , because of the Respondent 's failure
to file exceptions . The majority having held that exceptions were filed , the Chairman and
Member Murdock have considered the case on the merits and are in full agreement with
the decision thereon.
2 As the Trial Examiner found , the business began in April 1948, when Jos. N . Fournier,
an individual doing business as Rome Lincol n-Mercury Company , entered into agreements
with the Ford Motor Company for the sale of new Lincoln and Mercury automobiles. On
March 10, 1949, the agreements were assigned to the Respondent corporation. The.
record clearly establishes that the corporation . is the alter ego of the former individual
86 N. L. R. B., No. 53.
397
398 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Jos. N. Fournier,
Rome Lincoln-Mercury Corp., Rome, New York, and its officers, agents,
successors and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Lodge 1787, International Asso-
ciation of Machinists, or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
by refusing to hire applicants for employment, or by discriminating in
any other manner in regard to their hire and tenure of employment
^)r any term or condition of employment;
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, threatening to discharge its employees, or
to sell or close its business, should they join or remain members of a
union, or in any other manner interfering -With, restraining, or coerc-
ing its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Lodge 1787, International
Association of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the amended
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate employment to James E. Janes, in the position
in which he would have been employed on or about January 5, 1949,
had the Respondent not discriminated against him, or in a substan-
tially equivalent position;
proprietorship , and, like the Trial Examiner we are of the opinion that the Respondent
corporation is responsible for remedying the unfair labor practices found to have been
committed while the business was operated as an individual proprietorship. See Matter
of E. C . Brown Company , 81 N. L . R. B. 140.
3 We find that the unfair labor practices committed by the Respondent potentially
relate to other unfair labor practices proscribed and that danger of their commission in
the future is to be anticipated from the Respondent 's past conduct. The preventive
purpose of the Act will be thwarted unless our order is coextensive with the threat.
Accordingly , in order to make effective the interdependent guarantees of Section 7 and thus
effectuate the policies of the Act , we shall adopt the Trial Examiner's recommendation and
order the Respondent to cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the
Act. May Department Stores v. N. L. P . R., g2r, U. S. 8 76 : N. L. R. R . v. Entwistle .ilanu-
facturing Co., 120 F . 2d 532 (C. A. 4) ; Matter of Tel -State Casualty Insurance Co., 83
N. L. R. B. 828.
JOS. N. FOURNIER 399
(b) Make whole James E. Janes for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages in such position from the date of
the discrimination against him to the date of the Respondent's offer of
employment, less his net earnings during said period;
(c) Offer to Edward F. O'Connor and Robert F. Martin immediate
and full reinstatement to their former or substantially equivalent posi-
tions 4 without prejudice to their seniority or other rights and
privileges ;
(d) Make whole Edward F. O'Connor and Robert F. Martin for
any loss of pay they may have suffered by reason of the' Respondent's
discrimination against them, by 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 the respective discharges to the date of the
Respondent's offer of reinstatement, less the net earnings 5 of each
during said period;
(e) Post at its shop in Rome, New York, copies of the notice
attached hereto and marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Third Region, after
being signed by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(f) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
4In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially - equivalent position " is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 05 N. L . R. B. 827 . The same definition is applicable to
the prospective position of Janes which he was discriminatorily denied.
6 By "net earnings" is meant earnings less expenses, such as for transportation, roonm,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination and the
consequent necessity of his seeking employment elsewhere. Matter of Crossett Lumber
Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State,
county, municipal , or other work-relief projects shall be considered earnings. Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7. This definition also applies to the case of
Janes.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted in the notice before the words : "A DECISION AND
ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS
ENFORCING."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
EVE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, threaten to discharge our
employees, or sell or close our business, should they join or re-
main members of a union, or in any other manner, interfere with,
restrain or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
LODGE 1787, INTERNATIONAL ASSOCIATION OF MACHINISTS, Or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities:
except to the extent that such right may be affected by an agree-
ment 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 the employee named below immediate em-
ployment in the position, or substantially equivalent position,
which he was discriminatorily denied, and make him whole for
any loss of any pay suffered as a result of the discrimination.
James E. Janes
'E WILL OFFER to the employees named below 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.
Edward F. O'Connor
Robert F. Martin
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor
organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the
amended Act.
AVE WILL NOT discriminate with regard to the hire or tenure of
employment or any term or condition of employment against any
JOS. N. FOURNIER 401
,employee because of membership in or- activity on behalf of any
such labor organization.
Jos. N. FOURNIER,
ROME LINCOLN -MERCURY CORP.
Employer.
Dated--------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 10 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Nessrs. Shally O. Wise and William J. Cavers, for the General Counsel,
Mr. Raymond A. St-uber, of Utica, N. Y., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Lodge 1787, International Association of Machin-
ists, herein called the Union, the General Counsel of the National Labor Relations
Board, herein respectively called the General Counsel and the Board, by the
Regional Director for the Third Region (Buffalo, New York), issued his com-
plaint dated July 8, 1949, against Jos. N. Fournier, Rome Lincoln-Mercury Corp.,
Rome, New York, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce,
within the meaning of Sections 8 (a) (1) and (3) and 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, as amended by the Labor Manage-
ment Relations Act, 61 Stat. 1.36, herein called the Act. Copies of the complaint,
accompanied by a copy of the charge and notice of hearing, were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) on or about January 17, 1949, discharged Edward
O'Connor, on or about January 19, 1949, discharged Robert Martin, on or about
January 5, 1949, discharged or failed or refused to employ James E. Janes, all
because of their having joined and assisted the Union and engaged in concerted
activities for the usual purposes; and (2) from on or about July 1, 1948, to the
date of the complaint, interrogated its employees concerning their union affilia-
tion or activity, stated to them that they would be discharged should they join or
remain members of the Union, and warned and threatened them that if they
did so, the Respondent would sell or close its business.
The Respondent filed no answer and was not present nor represented at the
hearing?
3 The complaint was amended at the hearing so as to add "Lodge 1787" to the designation
of the Union.
2 On August 9, 1949, the undersigned received from the General Counsel a communication
stating that before the opening of the hearing and before the undersigned arrived at the
place thereof, an individual appeared thereat and sought to deliver to the General Counsel
a letter addressed to "Trial Examiner" at the place of the hearing and signed by Joseph N.
Fournier . Attached to the letter was a subpena duces tecum addressed to Fournier. The
General Counsel refused to accept the letter and the individual thereupon departed. The
documents were subsequently, on August 3, sent by registered mail to the Buffalo Regional
Office of the Board from which they were received by the undersigned together with the
communication of August 9. The letter indicates that Fournier found it inconvenient to
come to Rome for purposes of attending the hearing from Syracuse , New York, a distance
of some 39 miles by rail , and makes certain statements respecting the merits of the case. On
account of its untimeliness , its not being sworn to, and the lack of opportunity to cross-
examine the writer thereof, the undersigned can neither accept the letter as an answer to
the complaint nor as a defense to its allegations.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a bearing was held on August 2, 1949, at Rome, New
York, before the undersigned Josef L. Hektoen, the Trial Examiner duty desig-
nated by the Chief Trial Examiner. The General Counsel and the Union were
represented by counsel and representative, respectively, and participated in the
hearing. The parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence hearing upon the
issues. At the close of the hearing the usual motion of the General Counsel
to conform the pleadings to the proof in respect of formal matters was granted
without objection. Oral argument was waived and no briefs have been received.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Jos. N. Fournier, Rome Lincoln-Mercury Corp., is a New
York corporation with its principal place of business in Rome, New York,
where it is engaged in the sale of Lincoln and Mercury automobiles, and parts
and accessories therefor, and where it conducts a general new and used car
business. It operates under sales agreements with the Ford Motor Company,
Dearborn, Michigan, for Lincoln and Mercury automobiles, respectively'
From April 1948 to April 30, 1949, the Respondent bought Lincoln and Mercury
automobiles from the Ford Motor Company valued at $264,926. They originated
from Dearborn and Detroit, Michigan, and Metuchen, New Jersey, and were
shipped to Rome, New York, in commerce. From April 1945 to June 30, 1949,
the Respondent bought parts and accessories from the Ford Motor Company
valued at $15,503. They originated from Buffalo, New York, Pittsburgh, Penn-
sylvania, St. Louis, Missouri, and Detroit, Michigan. The undetermined but
substantial position of the parts originating from outside the State of New
York were shipped to Rome, New York, in commerce.
From April 1948 to April 30, 1949, the Respondent sold automobiles, parts
and accessories, and rendered service for which it received a total of $491,050.56.
The undersigned finds that the Respondent is engaged in commerce within
the meaning of the Act.4
II. THE ORGANIZATION INVOLVED
Lodge 1787, International Association of Machinists , is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraina.t, and coercion
Henry George Phillips was hired by the Respondent on December 6, 1948. At
the hiring interview, Fournier asked him whether he belonged to the Union and
8 The business began In April 1948, when Joseph N. Fournier, an individual doing business
as Rome Lincoln-Mercury Company, entered into Lincoln and Mercury sales agreements with
the Ford Motor Company. On March 10, 1949, the agreements were transferred to the
Respondent corporation. The company and the corporation are herein Jointly called the
Respondent. On May 24, 1949, the Respondent asked to be released from the sales agree-
ments. The record is silent as to what thereafter occurred. The minutes of the stock-.
holders' meeting at which the action asking for release was taken Indicate that the sole
stockholders of the Respondent are Joseph N. Fournier, president, Edith H. Fournier, and
Ida F. Mosette, all of the State of New York.
4 See Matter of Johns Brothers, Inc., et al., 84 N. L. R. B. 294 (24 L. R. R. 1258).
5 All findings in this Section hereof are made upon the undenied and credible , testimony. of,
witnesses called by the General Counsel.
JOS. N. FOURNIER 403
upon being assured that Phillips did not and felt hostile to unions generally,
promptly employed him. Fournier thereafter asked that Phillips keep his eye
on the few union members in the shop and that Phillips from time to time report
to him as to any union talk and activity therein. At the same time, Fournier
promised Phillips that the latter would become shop manager within a year,
a position Phillips believed would require 3 years to reach.
About a week after Phillips started to work, Fournier told him that subse-
quent dischargees, employees O'Connor and Martin, were the real union agitators
in the shop, and shortly before Martin's discharge in January 1949, that Fournier
was about to discharge him and that he would use lack of work as a pretext for
doing so.°
By the acts and statements of Fournier, its proprietor and later president,
found above, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act.
B. The diserb inatiou agabist Jones, O'Connor, ((ad Martin
James E. Janes,' having been told by a mutual acquaintance that Fournier
was in need of a mechanic, Janes' trade, applied for a job as such with the
Respondent early in January 1949. Fournier interviewed him at some length
as to his qualifications and ability to bring in new business and upon being
reassured by Janes as to both, asked him to return in a few days. Janes did so
on or about January 5, and after a further extensive conversation with Fournier
and inspection of the shop, the latter suddenly turned upon Janes and asked if
he were not a union member. Janes answered that he was, whereupon Fournier
told him "to get the hell out of here," stated that he would rather sell the shop
than have a union penetrate it, and walked off. Janes, who was then unem-
ployed, fruitlessly waited outside Fournier's office for some 45 minutes in order
to obtain the job. He testified, and the undersigned finds, that he was then
willing to give up his union membership in order to do so.
The evidence reveals that Janes had favorably impressed Fournier as to his
ability as a mechanic and his ability to bring in new business to the shop. The
Respondent was then in need of a mechanic and from the entire evidence dis-
closed by the record in the case, it appears to be very nearly certain that, but
for Janes' union membership, he would have been hired. The undersigned finds
that the Respondent failed to hire Janes on account of his union membership and
that it has thereby discriminated against him in regard to his hire to discourage
membership in the Union. He further finds that thereby, and by Fournier's ques-
tioning of Janes as to union affiliation , the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act °
Edlvard F. O'Connor, who, in the early summer of 1948, was employed in a Lin-
coln-Mercury shop in Utica, New York, and was a member of the Union, having
heard that the Respondent was in need of a "parts man," spoke to Fournier in
Rome about such a job. Fournier told O'Connor that he would hire him as soon
as he could rid himself of an evidently undesirable incumbent employee, and
offered O'Connor a job at $60 per week. O'Connor replied that he would have
to consider the matter and in reply to Fournier's question as to whether the Utica
shop where O'Connor then worked was unionized, replied in the affirmative.
'As hereinafter found, the evidence, however, reveals that sufficient work existed in
Martin's department to warrant his being retained by the Respondent.
' Janes' name incorrectly appears in the record as ".lames." The transcript has been
physically amended to indicate the correct spelling of the name.
8 Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 185.
-404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Connor thereafter took a week's vacation in the course of which Fournier
repeatedly telephoned him leaving messages that he desired to see O'Connor
forthwith . O'Connor again spoke with Fournier in Rome, and on about July 17,
finally took a position as manager of the parts department of the Respondent, a
nonsupervisory task.
In August 1948, Raymond A. Stuber, business representative of the Union, vis-
ited O'Connor in the shop of the Respondent. Shortly thereafter Fournier asked
O'Connor, while the latter was at work in the shop, whether he continued to be a
union member . O'Connor replied that he did and explained that he could not
.afford to abandon membership in the Union on account of the $75 reinstatement
fee that he would be compelled to pay to rejoin it. Fournier told O 'Connor that
he would suffer if he continued his union affiliation and that he was wasting his
.money by doing so.
Early in December, Fournier wrote O'Connor a letter of discharge . Called
upon to explain his motive, Fournier first told O'Connor that the Ford Motor
Company, which received monthly statements respecting the Respondent 's opera-
tions, had insisted that the Respondent dispense with O'Connor 's services in
order to reduce expenses. A bit later, however, Fournier told O'Connor that the
letter had been motivated by the latter's continuing union membership and that
the Respondent would close its doors rather than have the Union come into the
shop. They spoke again on the following day. Fournier then asked that
O'Connor resign from the Union . O'Connor offered to do so upon condition that
Fournier give him a written undertaking to reimburse to him his $75 reinstate-
ment fee. Fournier refused to do so and O'Connor nevertheless went back to
work.
Late in December 1948, Fournier asked that O'Connor resign his job with
the Respondent. O'Connor refused and continued to work.
On January 17, 1949, O'Connor, having heard rumors in the shop that he was
about to be discharged, waited upon Fournier in an effort to discover the reason
for his prospective severance. Several of the employees in the shop had asked
that O'Connor speak to Richard Lindberg, in charge of the service department
of the Lincoln-Mercury Division of the Ford Motor Company at Builalo, New
York. Fournier immediately telephoned Lindberg, at O'Connor's request, and
before giving the receiver to O'Connor, told Lindberg that O'Connor had reduced
the shop to an unstable condition, and nearly succeeded in unionizing it, and
that he was therefore being discharged. When O'Connor spoke to Lindberg,
he informed the latter that he was being discharged on account of his union
membership. After some further conversation indulged in by Lindberg, via
telephone, and Fournier and O'Connor in the Respondent's of ee, Fournier gave
O'Connor 20 minutes to "get the hell out of here," stated that O'Connor, on
account of his union membership, was a "damned traitor," and that Martin
would be the next employee to be discharged. O'Connor thereupon left the plant.
The reason for O'Connor's discharge by the Respondent is so clear as to cause
the undersigned to consider that any further review of the incidents respecting his
employment would constitute surplusage. It is found that the Respondent by
discharging him as related above, discriminated in regard to the tenure of em-
ployment of O'Connor on account of his union membership, to discourage mem-
bership in the Union and that it thereby, and by Fournier's repeated questioning
of O'Connor respecting his union membership, stating that he would suffer on
account of his persisting therein, requesting that O'Connor resign from the Union,
and stating that his continued adherence to the Union was traitorous, has inter-
fered with, restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
JOS. N. FOURNIER 405
Robert F. Martin was hired by Respondent on November 18, 1948, as a "body
and fender man" and painter. At his hiring interview, Fournier asked if Martin
were a union member . The latter replied that, having been out of the Union
for about 8 months and lacking the necessary $75 reinstatement fee, he was not.
Fournier thereupon told him, "You're hired. But remember no union in this
shop."
Shortly before the end of his tenure of employment with the Respondent,
Martin was visited in the shop by an insurance agent who hugely interested
Fournier. The latter asked O'Connor, then still employed by the Respondent, if
the visitor was a union man, and upon O'Connor's inability to identify him as
such, called O'Connor a liar. Fournier also inquired of the visitor as to his
identity and inquired of Martin as to whether he was "another one of the
union organizers."
During December, Martin spoke to two employees respecting the Union in a
restaurant close by the shop, stating that if the Respondent' s operation were
unionized the lot of the employees would be materially ameliorated.
On January 19, 1949, after a dinner party for the employees given by the
Respondent, Martin learned from the Respondent's service manager that he
was about to be discharged. He thereupon consulted Fournier, who had returned
to the office of the Respondent after the dinner, informed him of what the of-
ficial had said, and asked Fournier the reason for his imminent discharge.
Fournier told Martin that his discharge was the result of the latter's union
proclivities, adding that he was "sick" of union organizers. Martin undertook
to leave immediately and persisted in doing so even though Fournier asked him
to stay out the week in order to complete a number of jobs then in the shop.
It will be remembered that the work in Martin's department was sufficient
to have kept him occupied, that Fournier had told Phillips that he would use
alleged absence thereof for a pretext to let Martin go, and that he had told
O'Connor that Martin was the next who was to be purged on account of union
activity.
Again, it would be futile to further belabor the evidence. It is quite clear
that Martin was got rid of on account of his union activities and sympathy and
Fournier's intense hostility to the Union. The undersigned so finds and further
finds that the Respondent thereby discriminated against Martin in regard to
the tenure of his employment to discourage membership in the Union, and by
doing so and by Fournier's questioning him as to his union membership, the
Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 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 connection with its operations set forth 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 and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the hire
of James E. Janes. It will therefore be recommended that the Respondent offer
him immediate employment to the position in which, but for its discrimination
867851-50-vol. 8G 27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him, he would have been employed on or about January 5, 1949. It will
be further recommended that the Respondent make him whole for any loss of
pay he may have suffered by reason of the discrimination against him, by the
payment to him of a sum of money equal to that which he would normally have
earned as wages in such position from the date of the discrimination against
him to the date of the Respondent's offer of employment, less his net earnings
during said period.'
It has been further found that the Respondent has discriminated in regard to
the tenure of employment of Edward F. O'Connor and Robert F. Martin. It
Will therefore be recommended that the Respondent offer them, and each of them,
immediate and full reinstatement to their respective former or substantially
equivalent positions," without prejudice to their seniority and other rights and
privileges, and make then whole for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them by the payment to
each of them of a sum of money equal to that which he normally would have
earned as wages from the date of the respective discharges to the date of the
Respondent's offer of reinstatement, less the net earnings of each during said
period "
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Lodge 1787, International Association of Machinists, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire of James E. Janes, and the tenure
of employment of Edward F. O'Connor and Robert F. Martin, thereby disconrag-
ing membership in Lodge 1787, International Association of Machinists, 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 interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record herein, the undersigned recommends that the Respondent,
0 Since the matter appears most readily susceptible of solution in the effectuation of
compliance, no attempt is made by the undersigned to deal with the present activities of
the Respondent nor the availability of the position in respect to which Janes was discrimi-
nated against, nor the period for which any monetary award should be computed.
10 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827. The same definition is applicable to the prospective
positions of Janes which he was discriminatorily denied.
11 Matter of Crossett Lumber Co., 8 N. L. R. B. 440. This definition also applies to the
case of Janes.
JOS. N. FOURNIER 407
Jos. N. Fournier, Rome Lincoln-Mercury Corp., Rome, New York, its officers,
agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Lodge 1787, International Association of
Machinists, or in any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees, by refusing to hire applicants for
employment, or by discriminating in any other manner with respect to the hire
or tenure of employment of its employees or with respect to any term or condi-
tion of their employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist Lodge 1787, International Association of Machinists,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain from any
and all such activities except to the extent that such right 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, as guaranteed by
Section 7 thereof.
2. Take the following afiiru native action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer immediate employment to James E. Janes, in the position in which
lie would have been employed on or about January 5, 1949, had the Respondent
not discriminated against him, or in a substantially equivalent position ;
(b) Make whole said Janes for any loss of pay he may have suffered in
consequence of the discrimination against him, in the manner set forth in Sec-
tion V above, entitled "The remedy" ;
(c) Offer to Edward F. O'Connor and Robert F. Martin immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges ;
(d) Make whole said O'Connor and Martin in the manner set forth in Section
V, above, entitled, "The remedy" ;
(e) Post at its shop in Rome, New York, copies of the notice attached hereto
and marked "Appendix A." Copies of said notice, to be furnished by the Re-
gional Director for the Third Region, after being duly signed by representatives
of the Respondent, shall be posted by Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by other material ; and
(f) Notify the Regional Director for the Third Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report,
what steps Respondent has taken to comply herewith.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all mo-
tions or objections) as he relies upon, together with the original and six copies of
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a brief in support thereof ; and any party may, within the same period, file an
original and six copies of a brief in support of the Intermediate Report. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or mimeographed, and if mime-
ographed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.40, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring the
case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become the findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 18th day of August 1949.
JOSEF L. HEKTOEN,
Trial Examsner.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE wiLL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist LODGE 1787, INTERNATIONAL ASSOCIATION OF
MACHINISTS, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any and all of such activities except to the
extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE wLLL OFFER to the employee named below immediate employment in the
position, or substantially equivalent position, which he was discriminatorily
denied, and make him whole for any loss of pay suffered as a result of the
discrimination.
James E. Janes
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without prej-
udice 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.
Edward F. O'Connor
Robert F. Martin
All of our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
JOS. N. FOURNIER 409 •
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
JOS. N. FOURNIER , ROME LINCOLN-MERCURY CORP,
Employer.
By ---------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.