Julian A. McDermott Corp.

National Labor Relations Board - Board Decisions

Jul 7, 1970

184 N.L.R.B. 491 (N.L.R.B. 1970)

JULIAN A. McDERMOTT CORPORATION 491
Julian A. McDermott Corporation and Plastic , TRIAL EXAMINER'S DECISION
Moulders & Novelty Workers Union , Local 132,
International Ladies Garment Workers Union,
AFL-CIO. Case 29-CA-1669
July 7, 1970
DECISION AND ORDER
BY MEMBERS FANNING. MCCULLOCH, AND BROWN
On January 7, 1970, Trial Examiner Samuel M
Singer issued his Decision in the above -entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . Thereafter , the Respondent filed excep-
tions to the Trial Examiner 's Decision and a sup-
porting brief , and the General Counsel filed a brief
in reply thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
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
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Julian A. McDermott
Corporation, Ridgewood, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
' The Respondent 's exceptions , in large part , are directed to the credi-
bility findings made by the Trial Examiner It is the Board's established pol-
icy not to overrule a Trial Examiner 's resolutions as to credibility unless, as
is not the case here , a clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Pruduus, Inc , 91
NLRB 544 , enfd 188 F 2d 362 (C A 3) As to the Respondent 's assertion
that it lacked knowledge of Mary Suno 's activities on behalf of the Union,
we find , in accordance with the credibility resolutions of the trial Ex-
aminer , that Company President Julian McDermott personally expressed
to Sumo his suspicion that she was providing the Union with the material
used in its organizing campaign
SAMUEL M. SINGER, Trial Examiner: This
proceeding was tried before me in Brooklyn, New
York, on September 23-October 1, pursuant to a
charge filed on May 19 and complaint issued on
June 30, 1969 ' The issue litigated was whether
Respondent violated Section 8(a)(1) and (3) of the
Act by discriminatorily discharging and not rein-
stating an employee on account of her union mem-
bership and protected concerted activity in order to
discourage union membership.
All parties were represented by counsel and were
afforded full opportunity to be heard and to ex-
amine and cross-examine witnesses. At the conclu-
sion of the case General Counsel and Respondent
presented oral argument, and subsequently a brief
was received from General Counsel.
Upon the entire record' and my observation of
the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS; THE LABOR
ORGANIZATION INVOLVED
Respondent maintains its office and place of
business in Ridgewood, New York, where it en-
gages in manufacture, sale, and distribution of elec-
tronic devices, lights, and related products During
the representative past year Respondent shipped
from that plant to points outside of New York State
products valued in excess of $50,000. I find that at
all material times Respondent has been and is an
employer engaged in commerce within the meaning
of the.Act.
The Charging Party ("Local 132") is a labor or-
ganization within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Organizational Drive
Respondent is a family owned corporation,
producing in its factory signal lighting and safety
devices primarily for utilities and governmental
agencies. Julian A . McDermott is its president and
chief executive; his son Vernon is a supervisor and
foreman in the assembly department.' Two other
sons work in the plant , one (Kelvin ) as foreman of
the machine shop . Respondent 's work force "varies
from time to time," the maximum ranging between
20 and 25. In April 1969 , about 20 females were
employed in the assembly section , including 4
leadgirls,4 and there were 4 males in the machine
shop.
Unless otherwise noted, all dates are 1969
Transcript as corrected by my order on notice dated December I I At
the hearing, the caption was corrected as appears above
' Unless otherwise indicated, references to McDermott as an individual
are to Julian McDermott
' In addition to ordinary production work, leadgirls-who are not
claimed to be supervisors-supply women working with them with parts,
check the stock, and see to it that orders from Vernon McDermott are car-
ried out
184 NLRB No. 52
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around April 10, Mary Siino, the employee
whose discharge is in issue here, contacted Adams,
Local 132 organizer and business agent , and asked
him "to come down to organize the plant."5
Around April 11, Adams distributed the first of a
series of union leaflets at the plant entrance as em-
ployees were leaving work (4:30 p.m.). The leaflet
described the advantages of unionization and urged
employees to send in signed cards enclosed,
designating Local 132 as bargaining representative
After meeting with Siino to obtain "the reaction"
to this distribution, Adams on April 24 or 25 dis-
tributed another leaflet, calling for 40-cent hourly
increases , a $2.50 hourly minimum wage , and vaca-
tion and health benefits.
Several days later (April 28 or 29) Company Pre-
sident McDermott addressed the employees. Mc-
Dermott testified that in discussing the "union
situation" he told them that "we had a union be-
fore" which "hadn't worked out to the satisfaction
of our workers . not only the workers' interest
but ours", and that "if enough of them filled" out
Local 132 authorization cards they would not be af-
forded an opportunity to express their choice in a
second election. However, he also told them that
"they should do whatever they felt" and if they
wanted a union "they should pick a good union"
which would "work out best for them." Noting that
it had come to his "attention" that the Union in its
leaflet had characterized the Company's profit-
sharing plan as "some kind of illusion ," McDermott
described "the details" of the plan, pointing out
that "it was a real thing, that the people had been
receiving cash from it " According to McDermott,
he also discussed employee absenteeism, stating
that "our situation was becoming desperate and
that . this absenteeism must be cut down,"
specifically mentioning a recent Defense Depart-
ment contract cancellation notice.'
McDermott's described testimony, essentially
consistent with that of General Counsel's employee
witnesses, is credited.' In addition employees Rin-
gels and Kellas testified credibly that McDermott
"told us about the other union lI BEW Local 3 ] they
had there and how they didn't make out too well
and they [the employees] voted it out."; and that
McDermott said "he wanted us to join a good
[union] if we decided to get into one."" Referring to
the Union's $2.50 hourly wage "demand," Kellas
quoted McDermott as saying that he "did not see
how the union can het those kind of wages" and
Siino recalled his saying that "they'd never get it in
' Respondent's production and maintenance employees had been
represented by another union (IBEW Local 3) from 1956 until about Oc-
tober 1961, when the employees, dissatisfied with Local 3's servicing of the
shop, sought to decertify it in a Board proceeding As a result of a 1962
election , the Regional Director decertified Local 3
^ the notice (Resp Exh I ), dated April 24, canceled a contract because
"no excusable cause has been presented for the failure to submit" a test re-
port by March 18 As shown below (fn 17), Vernon McDermott admitted
the failure was his fault
' While McDermott testified that he held only one employee meeting in
April, at least two General Counsel witnesses (Scalzo and Ringels ) testified
that plant." Employees Scalzo and Ringels recalled
that when McDermott talked about the Company's
profit-sharing plan he "gave a number of the
women there a rough estimate of what he thought
they had there," including an estimate in Siino's ac-
count. According to Kellas, when McDermott
raised the question of absenteeism and the
threatened contract cancellation, he mentioned
that "a lot of people, men and women, were taking
off occasionally whenever they wanted to" and that
"if people take time or days off, there is nobody in
the shop to do the work."
In answer to some of McDermott's remarks at
this April 28 or 29 meeting, Organizer Adams
handed out a third union leaflet a few days later
(May I or 2). The leaflet purported to answer the
"doubts and misrepresentations" the Company al-
legedly sought "to instill . . in the minds of the
workers" by assuring the employees, for example,
that Local 132 had never fined employees and that
the Union "will not accept one penny" from them
until it obtained a wage increase; and it exhorted
the employees to "UNITE, BEHIND THE UNION
TO SECURE YOUR DEMANDS."
On May 6, Respondent distributed two letters
from Company President McDermott-one to re-
mind them of existing benefits (paid vacations,
holidays, hospitalization, periodic raises, etc.) and
to refute the Union's claim that the Company's
profit-sharing plan was a myth; the other, to explain
"the law" on self-organization and the legal effect
of their signing union cards. Explaining the opera-
tion of its Profit Sharing Trust Fund, McDermott
pointed out that this fund "was established by the
Company [on December 31, 1962] after the union
that we had [IBEW Local 3] was voted out by our
employees" (see supra, fn. 5), that the Company al-
ready made seven annual contributions to the fund,
normally 15 percent of the yearly total payroll, that
employees covered by the plan were entitled to
draw (and had annually elected to draw) 30 per-
cent of the amount contributed to their individual
accounts; and that a statement of amounts already
accrued to each employee was being prepared for
distribution. Comparing the company plan with
union-sponsored plans, McDermott stated that
while the latter conditioned benefits on member-
ship "until retirement or death," the benefits under
the company plan become vested after 10 years
"even if you leave the company." McDermott re-
minded the employees that all money contributed
by the Company before 1962 to the fund main-
that two meetings were held and a third (Sono) recalled about three Mc-
Dermott placed his first 1969 meeting as the end of March, prior to advent
of the Union Both he and General Counsel's witnesses indicated that the
profit-sharing plan and absenteeism were discussed at all meetings and
General Counsel's witnesses further testified that the current (Local 132)
organizational drive and the "old" union (IBEW Local 3) were also men-
tioned
" Siino similarly testified that McDermott talked about "the trouble" the
employees had with the old union , but quoted him as adding that "this was
a small shop and we didn 't need a union here "
JULIAN A. McDERMOTT CORPORATION 493
tained by Local 3 ($20,000 to $ 30,000 ) was "for-
feited to the general union fund ," even though the
employees had paid dues , initiation fees , and assess-
ments. He also pointed out that Local 3 had been
unable to get them other jobs when the Company
"had to lay off employees because of loss of con-
tracts." McDermott 's second letter stressed that
even though a secret Board election could be held
if 30 percent of the employees signed authorization
cards, the election ( whereby the employees could
express their free choice by the " democratic
process" ) might never take place "if a majority sign
cards." Emphasizing that " a union has no magical
power to deliver anything " and that " We now have
a good working organization WITHOUT
THREATS OF STRIKES ** VIOLENCE ** FINES
** FEES * * ASSESSMENTS OR DUES ," he ex-
horted them , " Let's keep it that way."
B. Discharge of Siino
1. Siino's union activity and status as employee
spokesman
Mary Siino, hired in May 1954, was the senior
employee in Respondent's service at the time of her
discharge on May 7, 1969. As one of the four as-
sembly department leadgirls, she instructed two or
three girls working with her, in addition to as-
sembling, testing, and inspecting signal lights. At
the time of her discharge she worked under Vernon
McDermott's supervision, at $2.15 an hour or $86
a week She admittedly was a "good worker" and
there was "no criticism of her work." Siino testified
that Company President McDermott "always said
[she] was part of his family because [she] was the
only one that came from the old plant that was
left."
As already noted (supra, sec. A), it was Siino
who in mid-April contacted Local 132 Business
Agent Adams to organize the plant. Siino testified
that she "decided to try to bring a local union in"
when several girls became "quite disgusted" at Mc-
Dermott's failure to grant them the insurance
benefits which he had given the four leadgirls.9
After discussing the matter with a "few of the girls"
in the dressing room, she spoke to her brother, an
official of a Teamsters local, who recommended
Adams. Siino had been a committeeman for the
"old" union (IBEW Local 3) which had
represented the employees prior to its 1962 decer-
tification (supra, fn. 5) and had substituted for her
husband, the Local 3 shop steward, when he was
unable to attend to his duties. She played a
prominent role "in getting Local 3 out" and after
its departure was looked upon as "leader" and
spokesman of the employees. Siino testified
credibly that when she and two other employees
discussed with McDermott the employees' plan to
decertify Local 3, McDermott told them, "Well,
when this goes through you don't have to worry, I
will keep to the old contract."10 Siino had in fact
retained a copy of the Local 3 contract, to which
she called McDermott's attention in pressing
grievances. She cited as an example a conversation
with McDermott 5 years ago when she convinced
him to reverse his decision not to pay the em-
ployees for a Washington's Birthday, Siino having
produced the old Local 3 contract to prove that it
had stipulated for such pay. On another occasion,
when Siino objected to McDermott's "changing the
vacations," she tore up her copy of the contract,
stating "there is no use for me keeping this." About
2 or 3 years ago, Siino, accompanied by another
girl, took up with McDermott the employees'
request for Good Friday off, which he refused
because he "couldn't afford" it. Also 2 or 3 years
ago, she and employee Warkin protested Mc-
Dermott's failure to include Warkin in a general
shopwide wage increase, McDermott justifying his
action on the ground that "she was getting it (i.e.,
the wage raise) in the form of additional
hospitalization benefits." Within the past year, em-
ployees discussed with Siino their dissatisfaction
with McDermott's failure to grant them the in-
surance benefits he had extended to the leadgirls
(supra, fn. 9) and his assignment of women in the
machine shop and paintrooms to do "men's work."
Another subject of dissatisfaction which she took
up with employees in 1968 was the Company's
failure to inform employees as to the amount of
money they had accrued in the company profit-
sharing plan.12 It was to Siino that employees
turned to verify McDermott's statements at em-
ployee meetings; for example, whether, if the Union
obtained a certain number of signed authorization
"In March 1969 (before the advent of Local 132) McDermott had ad-
vised the leadgirls ( Siino, Scalzo, Mueller, and Mercogliano ) that they
would be given a $5,000 insurance policy According to McDermott, this
company-financed policy, which previously covered only "salaried" staff
(supervisors and clerical employees ) was given to the four women because
they were "critical people" and " essential parts of the operation " Siino
testified credibly that McDermott "didn't want the other girls to know
[about the policies] because there was some there [in the plant] much
longer " However, the girls ' curiosity was aroused when they saw Mc-
Dermott talk to the leadgirls and Siino then told them about the policies
Because of the "hard feelings " that developed, McDermott assembled all
of the female employees to explain his action
1" Respondent did not produce one of the three employees (Kamer), an
admitted supervisor , to explain or contradict Siino on this point
11 McDermott did not specifically deny the incident although he
generally denied discussing with Siino any wage raises for anybody Testify-
ing that Siino never spoke or acted for other employees , McDermott de-
nied discussing holiday pay, other benefits , or grievances with her Accord-
ing to McDermott , "I always considered that Mary ( Siino ) represented her-
self," admitting , however , that if she "disagreed with something" about the
Local 3 contract " she discussed it with me " Later he added, "She wasn't
necessarily talking for the whole shop " When specifically asked whether
Siino did not take up any requested employee benefit or grievance, Mc-
Dermott evasively stated, "I can't think of any I-it's years and I can't
think " I do not credit McDermott' s denials Suno's testimony is cor-
roborated by the testimony of other credited employee witnesses that Siino
was regarded as the employees ' spokesman
12 As previously noted ( supra, sec A) in his May 6, 1969, meeting with
the girls McDermott promised to supply them soon with a statement of
amounts accrued in their accounts Earlier (in his March 1969 meeting)
McDermott gave only the "approximate amounts" some senior employees
(such as Siino) had in the fund
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, "they wouldn't be able to have a closed bal-
lot." According to Siino's uncontradicted
testimony, at one of the meetings McDermott him-
self asked the girls to check with Siino whether the
Company had not in fact reduced its operations
(number of plants and employees) after the old
union (Local 3) had come to the plant. According
to employee Scalzo, a highly credible witness, Siino
"was one of the longest workers there and I
imagine she was the most respected worker there,
even by Mr. McDermott." Employee Kellas
testified that he knew her as "the spokesman for
the girls." Ringels, another credible witness,
testified to the same effect.
Siino testified credibly that after distribution of
the second or third union pamphlet (late April or
early May), McDermott told her that she "had
known the trouble we had with the other union
[Local 3]"; that "this was a small shop and we
didn't need a union here "; and that "he was won-
dering who was giving out all the information to
Jack Adams." McDermott also asked if she "was
involved" with the Union. When she answered
"no," McDermott said that he "thought" she
(Siino) might be the source since she was "the
smartest one to remember all that was going on in
the meetings."13
2. The May 7 discharge
Siino worked on Monday, May 5, despite a
toothache that had kept her up all night. On the fol-
lowing day (May 6), a dentist removed the im-
pacted tooth and ordered her home. She admittedly
did not "call in" or otherwise notify the Company
that she would be out that day.14 Finding her
timecard missing from the rack upon arrival for
work early the next morning (May 7), Siino went to
Vernon McDermott, her supervisor.15 When Ver-
non asked Siino where she had been on the previ-
" McDermott disclaimed "any private or individual conversations" with
Siino regarding the Union and added that "I lust didn't care what in-
dividual brought it [the Union ] in " That McDermott was not as uncon-
cerned and apathetic about the Union as he sought to convey is indicated
by the content of his talks and literature to employees in which he ex-
pressed serious concern about its wage and other demands
" Although a company rule-generally followed by employees-
requires an absentee to call in absences before 10 on the morning of
absence, Siino had for many years followed the practice of calling in only if
she expected to be out for more than I day
"As previously noted , Vernon is Company President Julian Mc-
Dermott's son
"The above findings are based on Siino's credited testimony Although
Vernon McDermott did not mention Siino's explanation for not calling in
on May 6 on account of the described tooth extraction , he did not deny
that Siino gave that explanation According to Vernon , when he advised
Siino that "she was fired because she didn 't call in and was out the day be-
fore, " Siino " accused [him ] of being vindictive " for a complaint Siino had
lodged against Vernon with Vernon's father 2 weeks earlier for assigning
Siino to what Siino regarded to be an undesirable task ( the "sandbag job")
ous day, she told him about her "bad toothache"
and visit to the dentist, showing him "the hole."
Vernon said, "Well, you're fired." Asked the
reason, Vernon said, "For not calling ... You
know the rules." Siino answered, "I couldn't call
because I was in such agony, and I never called be-
fore unless of course I was out two days, knowing
I'd be out two days, I hadn't called in all that time,
maybe once or twice." Vernon said that "that
wasn't the only reason," citing Siino's failure to
complete timesheets and her alleged refusal to go
to the machine shop to pick up parts. When Siino
said that "quite a few people" had failed to fill out
timesheets and that she had in fact picked up parts
in the machine shop, Vernon answered that she was
being fired "for a lot of reasons."'s
Vernon McDermott testified that he decided to
discharge Siino in the late morning or early after-
noon of May 6 (the day she was at the dentist)
because he was embarrassed by the fact that three
other girls were also absent on that day-a day
when three Government inspectors happened to
come to the plant "to find out why we were late on
deliveries."" Of the four absentees, Siino was the
only one who failed to call in that morning. Ac-
cording to Vernon, before leaving the plant that
night, he removed Siino's timecard from the rack
and telegraphed her that "Due to repeated unex-
cused absences, failure to call and other reasons
your employment with Julian A. McDermott Corp.
is hereby terminated."
Immediately upon her discharge by Vernon,
Siino saw Julian McDermott , telling him about her
dental problem, her visit to the dentist, and the
tooth extraction. When Julian offered to go with
her to talk the matter over with Vernon, Siino
refused, stating she "took enough abuse off him
when [she] was down there the first time." Julian
thereupon suggested that Siino telephone him
"maybe in a day or two and he would see what he
"According to Vernon , he had in mind that only about a week earlier
(on April 24 ) the Defense Department had canceled a contract with
Respondent and he felt that with " four girls out it ruins my production time
and as a result I don't get the jobs out " He admitted , however , that Siino
was not assigned to work on that contract, and also that the cancellation
was prompted by Vernon 's own failure to submit a sample or test report for
which Vernon as the engineer was solely responsible Attempting, how-
ever, in some way to connect the contract cancellation with Siino's
absence , Vernon claimed that because of his preoccupation with the
leadgirls (including Siino ) who were not attending to their jobs , " I didn't
have time to work on it [ the test report ] " In addition to the April 24 con-
tract cancellation, Vernon testified that "two other contracts were
under fire as far as cancellation" was concerned , on May 6, indicating that
although the Respondent had not received notices of default thereon until
after Suno 's discharge, he feared potential cancellations (for failure to
make deliveries ) prior to the discharge However , as to these also Vernon
admitted that Siino "didn't work on [the] items " covered by these con-
tracts either, he claimed , however , that he "could " have assigned her to
such work ( although he never had)
JULIAN A. McDERMOTT CORPORATION 495
could do," indicating that "things were just upset
now. "i8
On returning home later in the morning (May 7),
Siino learned of Vernon McDermott's telegram of
discharge and immediately telephoned Julian Mc-
Dermott, expressing surprise about the telegram
"saying finally I was fired" when only minutes
earlier in the plant Julian asked her "to call him in
a day or two." Claiming that he did not know
"anything about it," McDermott again asked Siino
"to call him back in a day or two." 19
Siino again telephoned Julian McDermott a day
or two later (May 8 or 9) as to whether he would
take her back. Julian again said that he "didn't get
a chance to talk to Vernon because [Vernon's]
wife was sick and [Vernon] was upset." Encourag-
ing Siino "to take another job some place else and
maybe [she] would like it better," Julian neverthe-
less assured her that "he'd see what he would do."
Siino did not thereafter hear from (nor did she
again call) Respondent.20
Both McDermotts disclaimed knowledge of
Siino's membership or union activity at the time of
her discharge, Julian claiming that he did not "be-
lieve" she was a member even at the time of the in-
stant hearing on September 30. Asked if he had not
become aware of this when he received the unfair
labor practice charge (filed on May 19), he an-
swered, "Then I would assume that she was" a
member. He admitted telling a Board investigator
in a questionnaire, dated June 10, that when he
concluded his conversation with Siino before she
left the plant on the morning of her discharge (May
7), Siino said, "the union won't like this," but he
claimed (at the hearing) that he did not "see that
had any relationship that she was a member and
[he] didn't so assume."21 Julian and Vernon Mc-
Dermott admitted knowledge that Siino's brother
was a business agent of a Teamsters union.
" Siino's testimony (on the basis of which the above findings are made)
is consistent with that of Julian McDermott, except in one material respect
According to Julian, when he suggested talking the discharge over with
Vernon, Suno refused to do so on the ground that her brother, an official of
another union, had told her he "can get a better job for [her] at $3 50 an
hour " Admitting that she indicated she could get such job through her
brother, Suno insists that she made this remark only in response to the sug-
gestion from Julian that she could obtain a better job According to Suno,
what she said to Julian was, "If I wanted another job, I could have gotten
one months ago at $3 50 an hour from my brother, but knowing the people
and working there so long I wanted to stay where I was " I do not credit Ju-
lian McDermott's version of this conversation Snno's version is supported
by the testimony of employee Scalzo, a disinterested and highly credible
witness, who, as noted infra (sec C), quoted McDermott as telling the girls
at a meeting on the day of the discharge that Siino had turned down her
brother's offer because she had been with Respondent "so many years and
liked to work" with the girls That it is not likely that Suno told Julian that
she was giving up her job at Respondent is demonstrated by the fact that
she vigorously protested the discharge to Vernon, appealed it to Julian, and
(as presently shown) persistently sought to regain it
10 According to Julian, in her telephone conversation Sumo merely asked,
"Are you going to put me back9" and he, in turn, replied that he had not
yet seen Vernon to arrange a conference regarding Siino's return Julian
opined that the telephone conversation took place a day later (May 8), but
he was uncertain as to this
20 Julian McDermott did not specifically deny Snno's testimony that he
advised her to take another job He did testify that he "suggested she call
[him ] back again, the matter wasn't closed " Sumo, on the other hand, de-
C. Postdischarge Events
On May 7, the date of Stino's discharge, Julian
McDermott called a meeting of the assembly de-
partment and told the women that he "felt that he
should tell [them] why he had fired Mary because
he knew how [they] all felt about her." McDermott
mentioned that he had offered to discuss the
discharge with Vernon and had asked Siino to call
him back "in a couple of days" after he saw him.
McDermott also said that Siino had told him that
her brother (the Teamsters business agent) "can
get her a job," that he (McDermott) said "she
should take" it, and that Siino refused because she
had been with the Compan so many years and
liked to work" with the girls.2 `
About 5 days later (May 12), the Union (Local
132) distributed to the employees a leaflet at-
tacking the discharge of Siino, pointing to her past
role in pressing employee grievances and urging the
women to organize lest they become "a victim" like
Siino even after 15 years of "devoted" company
service.
Shortly thereafter McDermott called another
shopwide meeting at which McDermott again
discussed the discharge, asserting that Siino was
discharged for not completing timesheets, absentee-
ism, lateness, and not calling in. Concerning Siino's
stated intention to file "charges" against Respon-
dent, McDermott said that he "would just have to
see this through."23
D. Respondent 's Defenses
Vernon McDermott testified that his "immediate
reason" for discharging Siino was her May 6
absence and failure to "call in that she was going toy
be out for the day." He cited as "other reasons":
"excessive absenteeism," failure to complete
med that Julian asked her to call back According to Julian McDermott,
the second telephone conversation "was a repetition of the first," indicat-
ing that he "still [had not] been able to talk this over with Vernon because
[ Vernon's] wife is sick and in the hospital " Vernon himself testified that
he had in fact talked the matter over with his father immediately after he
discharged Siino (and after she left the plant) on the morning of May 7
According to Vernon, Julian at that time asked, "Do you want to have a
conference with Mary" and he (Vernon) answered that he would meet
with her only if she complied with "certain conditions from now on,"
specifically that "she fill out the time slips" and generally that she follow
"the rules "
2' Answering a leading question on redirect examination, Julian Mc-
Dermott testified that he did not "have any idea what union [Suno] was
talking about" in the above-described Suno-Julian conversation, i e ,
whether she had referred to Local 132 or her brother's (a Teamsters)
union According to Julian, he merely took Snno's statement to mean that
"some union wouldn't like it " I do not credit McDermott's transparent at-
tempt to convey the impression that he did not even suspect that Siino was
a Local 132 sympathizer Julian admittedly was aware of Local 132's then
intensive campaign to organize the plant, having himself distributed anti-
union literature and conducted at least one antiunion meeting (See also
infra, sec E, 2, c )
22 Based on the testimony of Scalzo, a highly credible witness Mc-
Dermott's testimony is consistent with that of Scalzo, except that in quoting
Siino regarding her brother's job offer McDermott did not state that Siino
had turned it down
Based on Scalzo's testimony, in essential respects consistent with Mc-
Dermott's
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timecards, and smoking by her bench in violation of
instructions. Later in his testimony he added "late-
ness" as still another reason. He indicated, how-
ever, that Siino would still be working in the plant
had she not been absent on May 6. Vernon ad-
mitted that he "never told" or warned Siino that he
was going "to fire" her for any of her alleged dere-
lictions. According to Julian McDermott, although
Vernon had complained about Siino's past "infrac-
tions," he had done nothing about them.
1. Failure to call in or report absences
As previously noted (fn. 14), a company rule
requires employees to call in absences before 10 in
the morning. Vernon McDermott testified that the
purpose of the rule was to enable a supervisor like
himself to reassign the work of an absentee if
needed to meet delivery requests. The record
shows, as Vernon testified, that the girls in his de-
partment complied with this rule "[m]ostly all the
time."24 Both Vernon and Siino testified that Siino
called in only "once in a while." Over the course of
many years of her employment, Siino's practice had
been to call the office only if she expected to be out
for more than 1 day. According to Siino, neither of
the McDermotts had ever criticized or warned her
about this practice. Vernon McDermott, however,
testified that he had talked to her twice (June 1968
and April 1969) about her failure to call in.25
2. Absenteeism
SIIno was absent 8-1 /2 days from January 1
through May 6, 1969, 15-1/2 days in 1968, and
about "the same or maybe even a little more" in
the 3 previous years (1965-67). Three of the eight
and one-half 1969 absences (February 10-12) were
admittedly under "very unusual circumstances"-
during a snow "blizzard" when only those residing
in the plant neighborhood could get to work.
Another 1969 absence included Good Friday
(April 4), which Siino had taken off for "the last
couple years" to go to the cemetery.26 Under com-
pany rules, an employee is required to sign a slip
after each absence, giving the reason therefor, even
if called in or permitted in advance. None of Siino's
absentee slips bears the notation "Excuse unac-
ceptable. "27 The record shows that absenteeism was
common in the plant and that Company President
McDermott frequently complained about it in
meetings with employees (supra, sec. A). Siino
credibly testified that neither Julian nor Vernon
McDermott had ever talked to her, criticized her,
or warned her about absenteeism.28 The record
shows, however, that she was absent more than any
of the other three leadgirls.29 On the other hand,
the record also shows that Respondent has retained
at least two workers with absentee records com-
parable to or worse than that of Siino; i.e., assembly
department employee Pugh, with 17 absences in
1968, and 9 in 1969 (until May 6), and Kellas, with
8 absences in 1969.30 Each of these had con-
siderably less employment seniority than Siino.
3. Lateness
Vernon McDermott testified that Siino was late
for work during 11 weeks of 1968 and 7 weeks in
1969 (i.e., up to her discharge on May 7, 1969).31
According to Vernon, the number of weeks during
which the other three leadgirls were late in the
comparable period were: Scalzo-6 and 4;
Mueller-7 and 2; and Mercoghano-3 and 3. As
previously noted (fn. 29) Scalzo and Mueller lived
close to the plant and most of the other girls lived
24 General Counsel witnesses Scalzo, Rmgels, and Kellas testified that
they always called in absences
25 The April 8, 1969 (Good Friday ), incident is discussed infra, in 26
Absentee slips produced by Respondent show that Snno called in 5 of I 1
recorded absences in 1968 and I of 7 absences in 1969 As hereafter
shown , three of the seven 1969 absences were in a February snowstorm
26 Under company policy employees were entitled to 1-1/2 hours off on
Good Fridays , so as to leave at 3 instead of 4 30 p m On the day before
Good Friday of 1969 (April 3), Sumo asked Vernon McDermott for per-
mission to take off Good Friday afternoon Vernon first approved the
request, then changed his mind According to Sumo, she thereupon told
Vernon that she "had to go some place " and would take the whole day off
When Vernon said that she would not get paid for 1-1/2 hours, Sumo an-
swered "that's all right " Vernon McDermott conceded first giving and
then denying Suno permission to take off that afternoon , but claimed Snno
said nothing about taking the entire day off According to Vernon , when on
her return to work the next Tuesday ( April 8 ) he asked Sumo why she had
not called in her April 4 absence , Snno answered that she "didn't have
time
27 Sumo testified credibly and without contradiction that she knew of at
least one case in which Respondent made such a notation on another em-
ployee's absentee slip
2" Vernon McDermott's testimony on the question whether he had talked
to Suno about absenteeism is too vague and evasive to warrant credit
Asked ( by company counsel ) if he had spoken to her about her absences in
1968 or 1969 , Vernon said that he had talked to her in June 1968 about her
failure to call in, and again on the same subject on April 8, 1969 ( supra, fn
26) Although later generally averring that he "talked to her twice about
the absences ," his testimony discloses that according to him he actually
spoke to her only about a "lateness " in February 1969 and about her
failure to call in on April 8, 1969
29 According to Respondent 's records , leadgirl Mueller was absent five
times in each of the years 1968 and 1969 (January-May 6, 1969), Scalzo
1-1/2 and 2 half days, and Mercogliano twice in 1968 and none in 1969
Scalzo and Mueller lived near the plant
"' Kellas testified that he was actually absent approximately 30 times
since hired on December 18, 1968 Vernon McDermott explained the glar-
ing discrepancy by indicating that Kellas "apparently made the time up "
Vernon named three other employees with excessive absences , indicating
that two of these ( Lambethas and Faber , who worked under his brother,
Kelvin, in the machine shop) had been fired for that reason and for failure
to call in He named only one employee working under him in the assembly
department ( Mufano) who was purportedly discharged for absenteeism,
but then indicated that the "immediate reason " for that dishcarge was in-
subordination- for refusal to comply with a job assignment, Mufano had
been absent 24-1 /2 times in 1968
" Vernon based these figures on company weekly payroll records, which
do not record "latenesses " According to Vernon , he inferred that Sumo
(and others for whom he gave comparative figures ) was late in a particular
week from the fact that the payroll record showed "odd" or "uneven"
number of work hours in that week, e g 39-3 /4 hours, signifying to Vernon
a I5-minute lateness , and 39-1 /2 hours, signifying to him a 30-minute or
possibly two 15-minute latenesses He indicated , however , that in some
cases, as where an employee worked over 40 hours , it was difficult to deter-
mine the extent to which the "odd" figure represented overtime work as
distinguished from lateness , e g , 40-1 /2 hours could (possibly, for exam-
ple) mean a half hour overtime work or a half hour lateness or some other
possible conjectural combination
JULIAN A. McDERMOTT CORPORATION 497
in the neighborhood; Siino lived several miles away
and (according to Siino) it took her as much as an
hour or more "between waiting for all the buses" to
get to work. As previously noted, Vernon testified
that he spoke to Siino once or twice about her late-
nesses.
4. Failure to complete timesheets
Vernon McDermott testified that after he
became a supervisor (in January 1968) he decided
"to update" the assembly department. In June
1968, he made up "IBM cards" listing all opera-
tions and instructed the girls, including Siino, to
make out timesheets, indicating such information as
number of pieces worked on and the time it took to
complete a particular job. According to Vernon, he
specifically asked Siino to complete records on the
signal lights manufactured for the Pennsylvania
Railroad, on which she spent 70 to 90 percent of
her time, so as to enable him to compute prices to
be charged the customer. Vernon testified that
when he first collected timecards in October or
November 1968, he found only 10 to 20 cards in
Siino's box; that it was obvious to him that Siino
had not completed timeslips for all of the jobs; and
that when he called this to Siino's attention she
promised to complete them in the future. Further
according to Vernon, when he again checked on
Siino's timeslips in March 1969, he "found the
same thing" and, as in October, he was unable to
make an accurate timestudy on the basis of Siino's
10 to 20 completed cards and the 30 to 40 cards he
found in other girls' boxes. Vernon also testified
that the situation was no better when he again
checked on Siino's performance in the middle of
April and prior to her discharge in May, despite
Siino's promises to comply with his instructions.32
The credible evidence establishes, however, that
employees other than Siino who were expected to
complete timesheets on various jobs in the as-
sembly department likewise failed to do so. Thus,
Scalzo, a leadgirl like Siino, credibly testified that
she made out these slips only when she had the
time , indicating that she was often preoccupied
with the girls working under her-instructing and
checking their work. 33 Ringels testified that
although she invariably made out the timesheets-
and indeed was instructed to do so by Siino (her
leadgirl) as well as by Vernon McDermott-she
knew that some girls did not complete them. At one
point in his testimony, Vernon McDermott himself
admitted that not all of the girls made them out, in-
dicating that "no matter how much discipline [he]
put into them," they would "follow lead workers"
12 Suno admitted that Vernon hau requested her to complete the slips on
Pennsylvania Railroad jobs Although claiming she made out such slips, she
appeared rather vague on this point While it appears , as Siino claimed,
that she kept records on repairs in a special book so as to enable Respon-
dent to determine charges to customers , these entries appear to cover work
on old lanterns rather than on new lamps for which timeslips were expected
of her Sumo claimed that Vernon never criticized her for not completing
the timeslips , except on the date of discharge I do not credit Suno's
who were derelict in this respect.34 It is clear that
no employee was ever discharged, or warned of
discharge, for not filling out timeslips; nor was the
subject raised in Julian McDermott's meetings with
employees where McDermott discussed other em-
ployee problems and alleged derelictions such as
absenteeism.
5. Smoking by the workbench
Vernon McDermott testified that the no-smoking
rule in the plant "wasn't rigidly enforced" until
March 1969, although he would be "finding
people" smoking all the time. In his March 1969
meeting with the employees (supra, fn. 7), Julian
McDermott told them, that on inspection of the
plant in January or February, the firemen said that
they "want[ed] us to cut out smoking" and, as be-
fore, he restricted smoking to designated areas such
as the ladies' dressing room. According to Vernon,
Siino continued to smoke by her bench during the
lunch hour up to the time of her discharge. How-
ever, he testified that he talked to her about this
only once-at the end of March. He also indicated
that other employees continued to smoke in
restricted areas for "awhile" after the March meet-
ing.
Siino testified that while she would light up a
cigarette by her bench during breaks and lunchtime
and then proceed to smoke it in the ladies' dressing
room, she discontinued this practice (and began to
smoke by her bench at lunchtime) after she could
no longer suffer the "disgusting" habits of one of
the employees in the ladies' dressing room. Em-
ployees Scalzo and Ringels corroborated Siino, the
latter testifying that because of the "alcoholic"
woman in question "we had to come out [of the
dressing room] and eat at our benches and once in
awhile we did take a puff on a cigarette." And Ver-
non McDermott admitted receiving complaints
about the eating habits of the employee in question,
and that he finally terminated her employment at
the end of May 1969. It is undisputed that Siino
was never warned of discharge for smoking by the
bench and that no employee was ever discharged
for violating the no-smoking rule.
E. Conclusions
1. Credibility resolution
I have already resolved much of the conflicting
testimony in this case. Insofar as Julian McDermott
is concerned, it appears that some of his testimony
was 'equivocal and evasive; as, for example, his
testimony on the subject of timecards , except insofar as her testimony is
corroborated by other credited testimony, including that of Vernon Mc-
Dermott and employees Scalzo and Ringels
" Vernon McDermott admitted that Sumo had to instruct three girls on
the Pennsylvania Railroad job at the same time she was doing production
work
" On the other hand, at another point, Vernon claimed that the girls had
completed timeslips " 90 percent of the time "
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony regarding Siino's role in processing past
grievances on behalf of fellow employees (supra, fn.
1 1)-testimony at odds with that of disinterested
employees to the effect that Simo had been a
prominent employee spokesman . I have also noted
(supra , fn. 21) Julian McDermott 's transparent at-
tempt to put self-interest over duty to truth in in-
sisting that he had no suspicion even as late as the
date of the hearing that Siino was linked to Local
132. His claimed lack of interest in the union drive
is belied by his- campaign literature and talks with
employees. Nor do I believe Vernon McDermott's
self-serving testimony that he thought the plant "in
the long run will be better off with a union." His
recital of Siino's numerous and varied derelictions,
as well as his demeanor on the stand , lead me to be-
lieve that Vernon was prepared to go to extreme
lengths to brand and get rid of Siino as an undesira-
ble, uncontrollable , and intolerable worker-in
order to fashion a plausible excuse to discharge her
"for cause ." For example he heavily stressed Siino's
absenteeism . Yet, he testified that he spoke to her
only twice on this subject-once a year before the
discharge ( June 1968 ) and again a month before
discharge (April 8, 1969). Later, he claimed that
he had a third conversation (in February 1969), but
admitted that all of these discussions related only to
Siino's failure to "call in " the absence and to "late-
ness." Furthermore , he sought to convey the im-
pression that Respondent lost Defense Department
contracts because of Siino's absenteeism, but on
closer examination it appeared that Siino was never
assigned to any work on these contracts ; indeed, he
acknowledged that it was his own failure to submit
an engineering sample or test report which led to
the cancellation of one contract. Nor was Vernon
McDermott completely forthright in his testimony
concerning his authority to hire and fire employees.
Asked on the first day on the witness stand whether
he could hire and fire without first discussing the
matter with his father, Vernon hedged with the
answer, "I have done it. I am not supposed to,"
stressing his limited authority in other fields as well,
including sending out orders and making design
changes. When he returned to the stand the next
morning, however, Vernon this time emphasized his
authority in these spheres , asserting , " I have the
right to hire and fire ... and I discipline," subject
only to the right of his father as president of the
Company to "overrule " him. He insisted that he
alone decided to and did fire Siino , that he "had
the right to make the decision," and that " since I
took over as foreman I have been making the deci-
sions," subject to his father's power to later
"overrule me." He claimed that his father did not
even know that he sent the telegram of discharge to
Siino on the night of May 6. It is difficult for me to
believe that Vernon McDermott would have
discharged the senior employee of this small Com-
pany, an admittedly good worker and a leadgirl
who had been with it for 15 years, without his
father 's advance permission . It seems far more like-
ly under the circumstances presented that Julian
McDermott , who preferred no union in his plant,
used his son as an instrument to effect the
discharge . I so find.
As to Siino, I have no doubt that she exaggerated
some of her testimony to suit her best interests. Her
testimony concerning the timesheets , in which
testimony she sought to convey the impression that
Vernon McDermott was totally unconcerned about
her failure to complete those sheets, conspicuously
falls in this category . Siino nonetheless impressed
me as essentially truthful in meeting Vernon Mc-
Dermott 's charges regarding her other work
habits-i . e., chronic absenteeism and failure to call
in absences . Furthermore , her testimony concern-
ing her concerted and union activities and discus-
sions thereon with other employees and Company
President McDermott was not only convincing and
stood up well under vigorous and able cross-ex-
amination , but was to a degree corroborated by dis-
interested credible witnesses ( see supra , sec. B, 1).
On the whole , I am persuaded that she was a more
reliable witness than Vernon and Julian Mc-
Dermott.
In crediting Siino's versions of the events to the
degree described , I have not overlooked two factors
which , Respondent claims, tend to detract from her
credibility . The first is Siino 's admission that she
"lied" to a Board agent in a 1961 investigation of
charges filed by IBEW Local 3 against Respondent.
As noted ( supra, fn. 5), as a result of an employee
decertification petition filed in 1961 , the Board
decertified Local 3. That union filed charges alleg-
ing that Respondent had illegally assisted the em-
ployees in circulating the decertification petition,
but the Regional Director refused to issue a com-
plaint thereon. In this proceeding, Siino testified
that she was untruthful when she told the Board's
investigator that Julian McDermott had no hand in
the preparation and circulation of the 1961 peti-
tion, explaining that Julian had in fact volunteered
to get the papers to start the decertification
proceeding, and that he had called each employee,
one at a time, to the company garage to sign the
petition. Siino claimed-plausibly and credibly, as
it impressed me-that she had covered up for Ju-
lian McDermott because McDermott had pleaded
with her that he "could get in a lot of trouble if it
was found out he was involved in it." In this
proceeding McDermott denied that he had had
anything to do with the decertification petition,
specifically disavowing discussions thereon with
Siino, except that Siino and another employee (who
had gone to the Board with the petition) had asked
to be paid for lost time, which request he denied. I
have considered these circumstances in resolving
credibility in the instant case.
Secondly, Respondent claims that Siino falsely
accused Julian McDermott of requesting her to
represent that she was a "salaried " ( as distin-
guished from an hourly) employee on an applica-
tion for insurance As noted (supra, fn. 9), in
JULIAN A. McDERMOTT CORPORATION 499
March 1969, Julian awarded his four leadgirls, in-
cluding Siino, a $5,000 insurance policy which
previously covered only " salaried " staff. Siino un-
derstood Julian to say that "the only way we could
get it is that he [Julian] had to say we were on
straight salary" when, in fact, they were not. Julian
denied requesting Siino to "designate herself as a
salary rather than hourly worker" and in support
produced Siino's insurance application which called
for no representation in this regard. Viewing Siino's
testimony in the light of what Julian McDrmott
testified as to what he told Siino and the testimony
of Scalzo, a disinterested and credible witness, who,
like Siino, quoted Julian as telling her that "we
would be on straight salary," I find, contrary to
Respondent, no deliberate attempt on Siino's part
to falsify. Julian himself testified at one point, "I
said it was for our salary worker" and, at another
point, "I mentioned that they were being brought
into the salaried group." It would seem that Julian
McDermott, who acknowledged that he himself
"was a little confused" on the matter, either was
under the impression that the insurance plan was
applicable to salaried people only and so informed
or implied to Siino and Scalzo, or, if he was not
under such misapprehension , that the confusing or
imprecise language he used led the women to be-
lieve that they were or might be treated as salaried
for insurance purposes.
2. The discharge
The applicable principles are well settled.
Whether Respondent discharged Siino for dis-
criminatory reasons or legitimate reasons presents a
purely factual question, the key issue being Respon-
dent's intent or motive. However, "It would indeed
be the unusual case in which the link between the
discharge and the union activity could be supplied
exclusively by direct evidence. Intent is subjective
and in many cases the discrimination can be proven
only by the use of circumstantial evidence."
N.L.R.B. v. Melrose Processing Co., 351 F.2d
693, 698 (C.A. 8). See also Shattuck Denn Mining
Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A.
9). Furthermore, "the rule is well established that
although ample valid grounds may exist for the
discharge of an employee, that discharge will vio-
late § 8(a)(3) if it was in fact motivated, even par-
tially, by the employee's union activity [citing
cases] Thus, where there are legitimate reasons for
the discharge of an employee, the question is
whether those were in fact the only grounds for the
dismissal, or whether they were `put forth as a mere
pretext to justify an impermissible discharge."'
N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105,
109-110 (C.A. 2).
On the record as a whole, and particularly in
view of the considerations set forth below, I find
that the preponderance of evidence and the
reasonable inferences to be drawn therefrom
establish that the discharge of Siino was based on
Respondent's suspicion and belief that she had
brought the Union to the plant.
a. Admittedly, Respondent did not look
favorably upon Local 132's advent into the plant,
preferring to deal with its employees directly. Thus,
through literature and at shopwide meetings, Com-
pany President McDermott sought to impress upon
his employees that their prior organizational effort
(representation by IBEW Local 3 until 1961)
"hadn't worked out" to "the workers' interest" any
more than Respondent's. McDermott reminded
them of the "trouble" they had had with that union,
pointing out that the' had "forfeited" their rights
under the old union s pension program, that the
union had let them down in a Company layoff
(powerless to find them other employment), and
that Respondent had had to reduce its business
(plants and staff) while Local 3 was in the plant.
McDermott 's message was plain : the employees
should refrain from repeating the mistake of resort-
ing to organization. As he emphasized in a letter to
the employees: "We now have a good working or-
ganization WITHOUT THREAT OF STRIKES **
VIOLENCE ** FINES ** FEES ** ASSESS-
MENTS OR DUES. Let's keep it that way." Exem-
plifying what he characterized in his letter as the
Union's lack of "magical power to deliver
anything," he stresses at one meeting that "they'd
never get" the $2.50 hourly wage demanded by the
Union.
While it is true, as Respondent correctly asserts,
that McDermott's statements to the employees
were free from and unaccompanied by outright
threats and unlawful promises of benefits and were
"within [the Company's] rights in making its posi-
tion and sentiment known to its employees [yet] its
expressed attitude is one of the factors which must
serve to measure its motivation " in determining the
legality of the discharge of an active union ad-
herent . Cf. Revere Camera Co. v. N.L.R.B., 304
F.2d 162, 165 (C.A. 7). See also N.L.R.B. v.
General Electric Co., 418 F.2d 736 (C.A. 2);
Darlington Manufacturing Company v. N.L.R. B.,
397 F.2d 768, 769 (C.A. 4).
b. The record shows that Siino was the driving
force behind the union movement. She had been
regarded as and acted as the employees' spokesman
in pressing grievances and, just prior to the or-
ganizational drive, discussed with fellow employees
their dissatisfaction with McDermott's failure to
grant them insurance benefits. It was she who con-
tacted Union Representative Adams and asked him
to unionize the plant. She kept in constant touch
with Adams during the campaign, reviewing with
him the progress of the drive, including the em-
ployees' reactions to the Union's leaflets. While the
active role of an employee in a union drive and an
employer's opposition to the drive are not in them-
selves sufficient to establish a discriminatory
discharge, "[s]till, where the discharge in question
involves the `key' employee in an organizational
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drive, it may supply shape and substance to other-
wise equivocal circumstances." N.L.R.B. v.
Davidson Rubber Co., 305 F.2d 166, 169 (C.A. 1).
c. To be sure, there is no direct evidence that
Respondent actually knew of Siino's union sym-
pathies prior to her discharge. However, Respon-
dent ignores the well-settled proposition that "A
finding of knowledge of union participation may be
based on circumstantial evidence." N.L.R.B. v.
Schill Products, Inc., 340 F.2d 568, 572 (C.A. 5).
"[I]t need not be established by direct evidence; in-
ferences may be drawn from the surrounding cir-
cumstances." N.L.R.B. v. Pembeck Oil Corp., 404
F.2d 105, 110 (C.A. 2). Here, I infer that Respon-
dent suspected and correctly surmised that Siino
was the employee leader of the union drive from
the totality of the circumstances shown: that she
had been active in the old union (IBEW Local 3);
that subsequent to that union's decertification she
was the recognized spokesman in pressing em-
ployee grievances; that Respondent knew she was
the sister of a paid union official; that involved in
this case is a small closely held family shop with
close personal contact between company represen-
tatives and the 20 to 25 employees;3' and that Com-
pany President McDermott had actually singled out
Siino for questioning as to whether she "was invol-
ved" with the Union and as to "who was giving out
all the information" on what he said at a shop
meeting, indicating that Siino must have been feed-
ing the information since, in his phrase, she was
"the smartest one to remember all that was going
on in the meeting."
d. Also significant is the timing of the discharge.
The Union came on the scene around April 10.
Within the next 2 weeks it distributed two leaflets
and shortly thereafter (April 28 or 29) Company
President McDermott addressed the employees to
remind them about "the trouble" they had had with
the old union and to question the new Union's abili-
ty to secure its wage demands. On May 1 or 2, the
Union distributed another leaflet, and on May 6
Respondent issued to the employees two letters re-
minding them, among other things, that they had a
"good working organization" without "threat" of
strikes, violence, fines, etc., and he exhorted them
to "keep it that way." The very next morning (May
7) Vernon McDermott (Company President Julian
McDermott's son and Siino's foreman) precipitate-
ly and without warning or notice, notwithstanding
15 years of employment, discharged her. Surely,
"the coincidence in time ... would seem somewhat
significant." (N.L.R.B. v. Geraldine Novelty Co.,
Inc., 173 F.2d 14, 18 (C.A. 2). See also I. C. Sutton
Handle Factory v. N.L.R.B , 255 F.2d 697, 698
(C.A. 8).
e. Also relevant is the manner in which Respon-
dent effected the discharge. Vernon McDermott
testified that he decided to discharge Siino in the
° Cf Angwell Curtain Company v N L R B, 192 F 2d 899,903 (C A 7),
N L R B v Melrose Processing Co , 351 F 2d 693, 697-698 (C A 8),
N L R B v Dove Coal Co, 369 F 2d 849,851 (C A 4)
morning or early afternoon of May 6 because she
had neglected to call in. He testified that prior to
leaving the plant that night (May 6) he pulled her
card from the rack and sent out the telegram of
discharge. According to Vernon, Siino would still
be working in the plant if she had reported her
absence. To me, Respondent's failure to ascertain
the reason for Siino's unreported absence (a bona
fide visit to the dentist for extraction of an im-
pacted tooth), prior to taking the drastic discharge
action, seems somewhat remarkable when it is con-
sidered that Siino had been in Respondent's employ
continuously for 15 years, was its senior employee,
had seldom called in prior absences, and admittedly
was never warned that failure to call in an absence
would or could result in discharge. Nor can I over-
look what appears to be the runaround Julian Mc-
Dermott gave Siino in promising to take up the
discharge with Vernon in expectation or at least
contemplated possibility of recalling her. Thus,
while Julian testified that he told Siino in at least
two postdischarge telephone conversations that he
could not discuss the matter with Vernon because
of illness in Vernon's family, Vernon testified that
he had already discussed the situation with his
father-moments after Siino left the plant in the
morning of May 7-prior to the telephone conver-
sations. According to Vernon, he had already told
his father that he was unwilling to take her back un-
less she agreed to "certain conditions," i.e., com-
pliance with company "rules"-a conversation Ju-
lian never relayed to Siino. At the same time, Julian
advised Siino "to take another job some place else
and maybe [she] would like it better."
f. Respondent's explanations for the discharge
fall far short of overcoming the prima facie case of
discriminatory motivation established by the
evidence. As to Siino's breach of a company rule to
call in or report absences in the morning, the
record shows that Respondent had ignored this
breach for years. As to her absences, even aside
from the fact that they may have been for the best
of reasons or for acceptable reasons, it is clear that
absenteeism was rife in the plant, that Respondent
has retained employees with comparable or worse
attendance records, that in no instance was Siino's
excuse on absentee slips treated as unacceptable,
and that no one from management had singled her
out (let alone criticized or warned her) for any
such infraction. Nor is there any credible evidence
that Respondent had regarded Siino's "latenesses"
seriously, even Vernon McDermott indicating that
he talked to her only once or twice on this subject.
Although Respondent established that Siino failed
completely to heed Vernon McDermott's instruc-
tions to fill out timesheets, it appears that other em-
ployees were also derelict in this regard, without in
any way being disciplined; and again , it appears
that Siino was never warned of possible discharge
for such conduct. The same is true with respect to
Siino's smoking by her workbench; furthermore, an
extenuating circumstance appears to be Siino's ina-
JULIAN A. McDERMOTT CORPORATION
bility to utilize the ladies' dressing room for this
purpose due to the "disgusting" habits of one of the
women frequenting it, resulting in the latter's
discharge.
That the reasons advanced to justify Simo's
discharge were not the sole motivating cause for
the discharge is indicated by Julian McDermott's
testimony that although Vernon, Simo's superior,
had complained to him about her alleged infrac-
tions in the past, nothing was done about them until
the advent of the Union. Indeed, as late as March
1969, Julian McDermott rewarded her with an in-
surance policy because (in McDermott's own
words) she was one of the "critical" people and
"essential part[s] of the operation." Thus, under all
of the circumstances it would seem that Siino's
behavior "apparently became intolerable only"
(N.L.R.B. v. Electric City Dyeing Co., 178 F.2d
980, 983 (C.A. 3)), when the need for a plausible
defense appeared. As in Magnolia Petroleum Co. v.
N.L.R.B., 200 F.2d 148, 149-150 (C.A. 5), "until
the union issue arose, these complained of acts of
[hers] were all condoned and would have con-
tinued to be condoned and ... the straw that broke
the back [of Respondent's] tolerance and condona-
tion was the union activity in the plant."
g There is, of course, in this case, as in others of
this type countervailing evidence tending to negate
discrimination. Thus, as indicated, Siino was not
free from fault as regards completing necessary
timesheets and as to smoking by her bench.
Furthermore, the fact is that she had a record of
absences as well as of failing to call in. However,
giving full weight to these countervailing factors, I
am nevertheless persuaded that they are out-
weighed by factors supporting a finding of dis-
criminatory motivation. Cf. General Electric Com-
pany, 155 NLRB 208, 221-222; Alton Box Board
Company, 155 NLRB 1025, 1039; General Tire &
Rubber Company, 149 NLRB 474,480-48 1. "The
mere existence of valid grounds for a discharge is
no defense to a charge that the discharge was un-
lawful, unless the discharge was predicated solely
on those grounds. . ." N.L.R.B v. Symons Manu-
facturing Co., 328 F.2d 835, 837 (C.A. 7). "And a
justifiable ground for dismissal of an employee is no
defense to an unfair labor charge if such ground
was a pretext and not the moving cause " N.L.R.B.
v. South Rambler Company, 324 F.2d 447, 449
(C.A. 8 ).
Nor have I overlooked the fact, stressed by able
counsel for Respondent, that the record is devoid
of evidence of independent 8(a)(1) violations, such
as systematic interrogations, threats, and promises
of benefits-often, if not usually, found in dis-
criminatory discharge cases. The answer to this has
been aptly stated by my colleague, Trial Examiner
Frederick U. Reel, in Terry Industries of Virginia,
Inc., 164 NLRB 872, 874, enfd. 403 F.2d 633
(C.A. 4):
In the ordinary case, the General Counsel is
able to point to other antiunion conduct of the
501
employer as support for the inference that
union activity was the real reason for the
discharge which the employer sought to ex-
plain on false grounds. In this case ... I find
that apart from the discharges. themselves, the
Company engaged in little overt antiunion con-
duct. But just as the showing of other antiunion
conduct is of some support, but is not conclu-
sive, in establishing that a particular discharge
was for union activity, so the comparative
absence of such conduct is not conclusive in
establishing that a discharge was not for union
activity. A contrary rule would mean that an
employer could discharge union leaders with
impunity if he refrained from other acts of
hostility to the union. The ultimate question is
what was the reason for the discharge, and the
presence or absence of other antiunion actions
is an aid to answering the question, not an
answer in itself. [Footnote omitted.]
Accord: N.L.R.B. v. Mrak Coal Company, Inc., 322
F.2d 311, 313 (C.A. 9), where the court held that it
could not "accept the respondent's theory that
proof or lack of proof of prior anti-union animus is
controlling," explaining that "[s]uch a rule would
automatically always insulate the first unfair labor
practice charged against an employer "
For all of the foregoing reasons, I find that the
reasons advanced for Siino's May 7, 1969,
discharge are pretextuous. I conclude that the
discharge was, at least in controlling substantial
part, motivated by Respondent's desire to rid itself
of the suspected employee leader in the union
drive, thereby to thwart union organization in viola-
tion of Section 8(a)(3) and (I) of the Act.
CONCLUSIONS OF LAW
1. By discharging Mary Siino on May 7, 1969,
and thereafter failing or refusing to reinstate her, in
order to discourage union activities, Respondent
has discriminated in regard to hire and tenure of
her employment, in violation of Section 8(a)(3)
and (I) of the Act.
2. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
The Recommended Order will contain the con-
ventional provisions in cases involving findings of
interference, restraint, coercion, and discriminatory
discharge, in violation of Section 8(a)( I) and (3)
of the Act. These will require Respondent to cease
and desist from the unfair labor practices found, to
offer reinstatement with backpay to the employee
discriminated against, and to post a notice to that
effect. In accordance with usual requirements, rein-
statement shall be to the discriminatee's former or
substantially equivalent position, without prejudice
to her seniority and other rights or privileges. The
427-835 0 - 74 - 33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatee shall be made whole for any loss of
earnings she may have suffered by reason of the
discrimination against her by payment to her of a
sum of money equal to that which she normally
would have earned from her date of discharge
(May 7, 1969), to the date of offer of reinstate-
ment , less net earnings if any during such period, to
be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended, in view of the na-
ture of the unfair labor practices Respondent has
engaged in , that it cease and desist from infringing
in any manner upon the rights guaranteed em-
ployees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclu-
sions of law , and the entire record in the case, and
pursuant to Section 10(c) of the Act, it is recom-
mended that Respondent , Julian A . McDermott
Corporation , its officers , agents, successors , and as-
signs, shall.
1. Cease and desist from:
(a) Discouraging membership and activities in
Plastic , Moulders & Novelty Workers Union, Local
132, International Ladies Garment Workers Union,
AFL-CIO, by discriminating in regard to the hire
and tenure of employment of Respondent's em-
ployees, or by discriminating in any other manner
in regard to any term or condition of their employ-
ment in order to discourage membership or activi-
ties therein.
(b) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action , which is
deemed necessary to effectuate the policies of the
Act:
(a) Offer Mary Siino immediate and full rein-
statement to her former or substantially equivalent
position , without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of pay she may have suffered as a result of her
discharge , in the manner set forth in "The
Remedy " section herein.
(b) Notify the above -named employee if
presently serving in the Armed Forces of the
United States of her right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act , as amended , after discharge from the
Armed Forces.
(c) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its plant in Ridgewood , New York,
copies of the attached notice marked "Appen-
dix."36 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.31
'" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
'r In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to
give evidence, it has been decided that we , Julian
A. McDermott Corporation , have violated the Na-
tional Labor Relations Act, and we have been or-
dered to post this notice.
The National Labor Relations Act gives you, as
employees , certain rights , including the right to
self-organization ; to form , join, or help unions; and
to bargain collectively through a representative of
your own choosing.
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes
with any of your rights listed above.
WE WILL NOT fire or take any reprisal against
any of you because you have joined or sup-
ported , support, or will support the organiza-
tional campaign of Plastic, Moulders & Novel-
ty Workers Union , Local 132, International
Ladies Garment Workers Union , AFL-CIO, or
any other union.
WE WILL offer to give Mary Siino back her
job, with full seniority and all other rights and
privileges, since she was found to have been
JULIAN A . McDERMOTT CORPORATION
discharged because she supported the or-
ganizational campaign of the above-named
Union.
WE WILL also make up all pay Mary Siino
lost, with 6 percent interest.
All of you are free to become , remain, or refrain
from becoming or remaining , members of Plastic
Moulders & Novelty Workers Union , Local 132,
International Ladies Garment Workers Union,
AFL-CIO, or any other labor organization.
JULIAN A . MCDERMOTT
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
503
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office , 16 Court Street , Fourth Floor,
Brooklyn , New York 11201, Telephone
212-596-3535.