Marshall Industries

National Labor Relations Board - Board Decisions

Aug 31, 1961

132 N.L.R.B. 1613 (N.L.R.B. 1961)

WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1613
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
'It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It will be recommended that the Respondent
offer employees Raymond Long and Claude Smith immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
seniority and other rights and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the discrimination against them, by
payment to them of a sum of money equal to that which he would have earned as
wages from the date of the discrimination against him to the date of offer of rein-
statement, less interim earnings, and in a manner consistent with Board policy set
out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440.7
It will also be recommended that the Respondent preserve and make available
to the Board, upon request, payroll and other records to facilitate the computation
of the backpay due.
It will be further recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any
manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section.2(6)
and (7) of the Act.
2. Communications Workers of America is a labor organization within the meaning
of the Act and admits to membership employees of Respondent.
3. By discrimination in regard to the hire or tenure of employment of Raymond
Long and Claude Smith, thereby discouraging membership in the above Union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in -Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
• 5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
4 The backpay period as to Long will run from September 15, 1959, until February 20,
1960. The backpay as to Smith will run from September 15, 1959, to the date of his first
recall which is approximated In January 1960.
Wahlgren Magnetics, a Division of Marshall Industries and
International Union of Electrical, Radio & Machine Workers,
AFL-CIO. Case No. f1-CA-3885. August 31, 1961
DECISION AND ORDER
On August 31, 1960, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
132 NLRB No. 138.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs.
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 exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exception noted below?
ORDER
Upon the entire record in this 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, Wahlgren Mag-
netics, a Division of Marshall Industries, Monrovia, California, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing financial or other support to, the Employees Committee or
to any other labor organization of its employees.
(b) Recognizing the Employees Committee, or any successor
thereto, as a representative of any of its employees for the purpose of
dealing with it concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment.
(c) Discouraging membership in any labor organization of its
employees, by discharging or refusing to reinstate any of its employ-
ees, or by discriminating in any manner in regard to their hire or
tenure of employment or any term or condition of their employment.
(d) Coercively interrogating its employees regarding their co-
workers' union affiliation and sympathies, threatening to close its plant
if the Union successfully organizes its employees, and promising its
employees benefits and improved working conditions if its employees
abandon the Union.
1 The Board has carefully considered the testimony of Respondent 's witnesses, em-
ployees Martin and Drake , not cited by the Trial Examiner in his Intermediate Report.
This testimony was hearsay in nature and in any event, even if given consideration as
admissible evidence , would be insufficient to upset the credibility findings of the Trial
Examiner.
, we do not adopt the Trial Examiner 's finding that Foreman Burri "engaged in a form
of surveillance" by questioning employee Waters regarding other employees ' union activities.
We agree, however, with the conclusion that such questioning was coercive and in violation
of Section 8(a) (1) of the Act.
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1615
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist International Union of
Electrical, Radio & Machine Workers, AFL-CIO, 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 and other mutual aid or protection, or 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 modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withold all recognition from the Employees
Committee as the representative of any of its employees for the pur-
pose of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
and completely disestablish the Employees Committee as such
representative.
(b) Offer to Anthony Rojas immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights or privileges.
(c) Make whole Anthony Rojas for any loss of pay he may have
suffered by reason of the discrimination against him by payment to
him of a sum of money equal to the amount which he normally would
have earned as wages from the date of his discharge to the date of
Respondent's offer of reinstatement, less his net earnings during said
period.
(d) Preserve and, upon request, make available to the Board and its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of backpay due
Rojas and his right of reinstatement under the terms recommended
herein.
(e) Post immediately in its plant at Monrovia, California, copies of
the notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by Respondent's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
S In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "'Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1616 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD
shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to 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 :
WE WILL NOT dominate or interfere with the administration of
any labor organization or contribute support to it.
WE WILL NOT discourage membership in International Union of
Electrical, Radio & Machine Workers, AFL-CIO, or any other
labor organization, by discharging, causing the discharge of, or
otherwise discriminating in regard to the hire or tenure of em-
ployment or any term or condition of employment of any of our
employees, except to the extent permitted by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT interrogate our employees coercively regarding
their coworkers' affiliations with or sympathies for the above-
named labor organization , or threaten to close our plant if said
organization successfully organizes our employees , or promise
,improved working conditions, higher wages, improved vaca-
tions, or an improved sick leave plan for the purpose of having
our employees abandon said organization.
WE WILL offer to Anthony Rojas immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights or privileges previously
enjoyed , and make him whole for any loss of earnings suffered as
a result of the discrimination against him.
WE -HEREBY disestablish Employees Committee as the represen-
tative of any of our employees for the purpose of dealing with us
concerning grievances , labor disputes, wages , rates of pay, hours
of employment , or other conditions of employment , and we will
not recognize it or any successor thereto for any of the above
purposes.
All our employees are free to become or remain members of any
labor organization or to refrain from such action, except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act, as modified by the Labor -Management
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1617
Reporting and Disclosure Act of 1959. We will not discriminate in
regard to hire or tenure of employment or any term or condition of
employment because of membership in or activity on behalf of any
labor organization.
WAHLGREN MAGNETICS, A DIVISION OF
MARSHALL INDUSTRIES,
Employer.
Dated---------------- By-------------------------------------
(Representative ) . ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on February 9 and 29, 1960,
respectively , by International Union of Electrical , Radio & Machine Workers,
AFL-CIO, herein called the Union , the General Counsel of the National Labor
Relations Board , herein respectively called the General Counsel' and the Board,
through the Regional Director for the Twenty -first Region ( Los Angeles , California),
issued a complaint, dated March 16, 1960, against Wahlgren Magnetics , a Division
of Marshall Industries ,2 herein called Respondent , alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (2 ), and (3 ) of the National Labor Relations Act,
61 Stat. 136, as amended from time to time , herein called the Act.
Copies of the charges, the complaint , and notice of hearing thereon were duly
served upon Respondent and copies of the complaint and notice of hearing thereon
were duly served upon the Union.
Specifically , the complaint , as amended at the hearing , alleged that Respondent
(1) since August 9, 1959, has dominated and interfered with the formation or
administration of the Employees Committee or has contributed support thereto;
(2) since in or about September 1959, by certain stated acts and conduct of certain
of its supervisory personnel , has interfered with , restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act; and ( 3) discrimina-
torily discharged Anthony Rojas on or about February 8, 1960, and thereafter
refused to reinstate him, because he had joined or had assisted the Union or had
engaged in other protected concerted activities. .
On March 25, 1960, Respondent duly filed an answer denying the,commission of
the unfair labor practices alleged.
Pursuant to due notice , a hearing was held from ,April 13 through 15, 1960, at
Los Angeles , California , before the duly designated Trial Examiner . The General
Counsel and Respondent were represented by counsel and participated in the hearing.
Full opportunity was afforded the parties to be heard , to examine and cross -examine
witnesses, to introduce evidence pertinent to the issues, to argue orally at the con-
clusion of the taking of the evidence , and to file briefs on or before May 6, 1960.3
Briefs have been received from the General Counsel and from Respondent 's counsel
which have been carefully considered.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following: -
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a California corporation, is engaged at, its Monrovia, California, plant
in the manufacture and sale of transformers, filters, and chokes. During the year
1 This term specifically includes counsel for the General Counsel appearing at the hearing.
Respondent 's names appear as corrected by stipulation at the hearing.
8 At the request of Respondent's counsel the time to file briefs was extended to and in-
cluding May 19, 1960.
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately prior to the issuance of the complaint herein, Respondent's out-of-State
sales amounted in excess of $50,000.
Upon the above undisputed facts, the Trial Examiner finds that Respondent at
all times material was, and now is, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act
for the Board to assert jurisdiction over this proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
The Union and the Employees Committee are labor organizations admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of, interference with, and support of the Employees Committee;
interference, restraint, and coercion 4
1. Prefatory statement
In an effort to absolve itself from liability for its illegal conduct, Respondent con-
tended, among other things, that the Employees Committee was not a labor organi-
zation within the meaning of the Act.
Section 2(5) of the Act defines the term "labor organization" to include "any
organization of any kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the purpose, in whole or
in part, of dealing with employers concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work." As pointed out in the Report
of the Senate Committee which considered the identical provision in the original
Act,5 the term "labor organization" was purposely phrased "very broadly in order that
the independence of action guaranteed in Section 7 of the bill and protected by Sec-
tion 8 shall extend to all organizations of employees that deal with employers." 6
To the same effect is the following excerpt from a memorandum dated March 11,
1935, prepared by Mr. William M. Leiserson, the then Chairman of the National
Mediation Board, for the Senate Committee on Education and Labor, comparing
the provisions of S. 1958 (which became law) with similar provisions in the bill
proposed in the preceding Congress.
It has been argued frequently by employers as well as by protagonists of the
bill last year that an employee representation plan or committee arrangement
is not a labor organization or a union but simply a method of contact between
employers and employees. But the Act is entitled to prescribe its own defi-
nitions of labor organizations, for its own purposes, and it is clear that unless
these plans, etc., are included in the definition, whether they merely "deal"
* Certain evidence was adduced at the hearing relating to events occurring more than
6 months before the filing and service of the charge herein . Said evidence was received,
not as a basis for any finding of unfair labor practices , but solely for such effect it might
have in elucidating , evaluating , and explaining the character and quality of Respondent's
alleged illegal conduct after the cutoff date . It is well settled that Section 10(b) of the
Act allows consideration of related acts transpiring prior to the statutory limitation date
for the purpose of throwing light on the specific conduct within the period in issue.
Local Lodge No. 1424 , International Association of Machinists , AFL-CIO ; et al. v.
NLRB . ( Bryan Manufacturing Co.), 362 U.S. 411 ; N.L.R.B . v. Sharples Chemicals,
Inc., 209 F . 2d 645 (C.A. 6) ; N.L.R.B. v. Fredrica Clausen , d/b/a Luzerne Hide & Tallow,
188 F. 2d 439 (C.A. 3) ; NLRB. v. General Shoe Corporation , 192 F. 2d 504 (CA 6) ;
Superior Engraving Company v. N.L R.B., 183 F. 2d 783 (C A. 7) ; N.L R B. v. White
Constructorn and Engineering Co., Inc, 204 F. 2d 950 (C.A. 5 ) ; N.L R.B . v. Ozark Dam
Constructors and Flippin Materials Co., 203 F. 2d 139 ( C.A. 8) ; Banner Die Fixture
Company, 109 NLRB 1401; Florida Telephone Corporation, 88 NLRB 1429; Sun Oil Com-
pany, 89 NLRB 833. It is also well settled that to prove Respondent had engaged in un-
fair labor practices it must be shown that the acts and conduct relied upon occurred within
the 6 -month period or extended into said period . Joanna Cotton Mills Co . v. N L.R B.,
176- F 2d 749 (C.A. 4) ; Stewart-Warner Corp. v. N.L R B., 194 F. 2d 207 (C.A. 4) ;
Superior Engraving . Company v. N.L.R.B., supra ; Universal Oil Products Company, 108
NLRB 68.
5The above definition In.the•amended,Act, commonly referred to as the Taft-Hartley
Act, was carried over without change from the original Act, commonly referred to as the
Wagner Act.
6 Rept. No. 573 on S. 1958 , 74th Cong., let sess., p. 7.
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1619
or "adjust" or exist for the purpose of collective bargaining, most of the activity
of employees in connection therewith which we are seeking to outlaw would
fall outside the scope of the Act.
Tested by the statutory definition, and in the light of the congressional intent, the
Trial Examiner is convinced, and finds, that the Employees Committee constitutes
a "labor organization" within the purview of the Act. In the first place, the em-
ployees "participated" in the Employees Committee through the employees' chosen
representatives who met once or twice a month with management and conducted
business with management. In the second place, the Employees Committee exists
for the purposes of, and actually engaged in, "dealing" with management and dis-
cussed "grievances" concerning "working conditions." Thus, the record discloses,
Respondent discussed and negotiated with the Employees Committee, among other
things, grievances, a new wage scale, changes in job classifications, additional paid
holidays, longer paid vacations, installation of new lighting fixtures, overtime, in-
stallation of air-conditioning throughout the plant, improved plant heating, installation
of coffee urns and vending machines, and changes in working hours. In view of the
foregoing facts there can scarcely be any serious question that the Employees Com-
mittee functioned as a "labor organization" within the "very broad" definition of
Section 2(5) of the Act .7
2. Sequence of the pertinent facts
In or about June 1959, Wayne Brown, Respondent's then general manager, sug-
gested at a meeting of the employees that the employees "pick one representative
from each of their departments" and that "once a month he would talk to them
and answer their questions." As a result of Brown's suggestion, the employees,
during working hours and without loss of pay, selected a representative from each
department who met with management. Thus the Employees Committee was
formed.
The meetings between management and the Employees Committee commenced
in October or November 1959, and were held, pursuant to management's call, in
Respondent's conference room. These meetings were held during working hours
and the representatives attending lost no pay for the time spent at these meetings.
The first of these meetings were held once a month but later on they were held
semimonthly.
One of Respondent's top officials presided over the meetings, and the minutes
thereof "at first" were kept by Respondent's Quality Control Director Ken Stowe
and later on were taken by either Respondent's present general manager's secretary,
or by Personnel Director Anna Biller; of late, no minutes have been taken.
After the various meetings between Respondent and the Employees Committee
at which, as found above, discussions were had regarding grievances, rates of pay,
wages, and other conditions of employment, Respondent would distribute copies of
the minutes of the meetings to the chosen representatives, who, in turn, would dis-
cuss the minutes, during working hours and without loss of pay, with the employees
in their respective departments.
The Employees Committee charges no dues and has no treasury. Nor does it
have any constitution or bylaws. All employees are automatically members of the
Employees Committee without regard to their wishes. When the employees' chosen
representative is transferred from one department to another, or leaves Respondent's
employ, he loses his representative status.
3. Concluding findings
The right of employees, under Section 7 of the Act, "to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing . . [and] to refrain from any or all such activities" is effectively implemented
by Section 8(a)(1) and (2). These provisions forbid employers to "interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7,"
7 N L R B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U S. 203 ; Pacemaker
Corporation, an Indiana Corporation v. N.L R.B., 260 F. 2d 880 (C.A. 7) ; N L.R B. v.
Standard Coil Products Co, Inc., 224 F. 2d 465 (C.A. 1) ; Indiana Metal Products Corpo-
ration v. N L R.B., 202 F. 2d 613 (C A 7) ; N.L.R.B. v. General Shoe Corporation, 192
F 2d 504 (C A 6) ; N.L.R B. v Stow Manufacturing Co , 217 F. 2d 900 (C A 2) ; Harrison
Sheet Steel Company v N L.R B., 194 F. 2d 407 (C.A. 7) ; N.L R.B. v. Pennsylvania Grey-
hound Lines, Inc, 303 U.S 261; NLRB. v. Newport Shipbuilding & Dry Dock Co.,
308 U.S. 241 ; N.L R B. v. James H Matthews & Company, 156 F. 2d 706 (C.A. 3).
614913-62-vol. 132-103
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and likewise prohibit employers from dominating , interfering with, or supporting
labor organizations of their employees. The employer's economic hold over his
employees, which inheres in their relationship, is thereby neutralized in matters of
organization and representation, which are peculiarly the concern of the employees.
Interdictions against employer intrusion in such matters are essential if employees
are to be free from the coercive influence of their employers, for employees are, as
the courts have repeatedly found , not insensitive to the advantages in their employ-
ment that they consider are likely to flow from their choice of a representative to
coincide with the wishes of their employer, nor the disadvantages which may attend
their choice of a representative opposed by their employer. And for the same
reason , employees cannot be expected to derive the full benefit from their protected
right of self-organization if they believe, from circumstances which the employer
created or for which he was fairly responsible, that their representative, however
chosen, is subject to the employer's compulsive will. Consequently, the Act pro-
hibits all forms of employer assistance to, or domination of, his employees' labor
organizations and interference in their organizing campaigns which might operate to
preclude an uninhibited exercise by employees of their collective-bargaining rights .8
In open disregard of its duty of neutrality, Respondent foisted upon the employees
a labor organization which met with its approval. Not only did Respondent initiate
and sponsor the Employees Committee, but it permitted its premises to be used for
balloting purposes and for meetings between the chosen representatives and their
respective constituents. Furthermore, Respondent not only paid all the representa-
tives for the time spent at Employees Committee meetings either with management
or with the employees generally, but it also paid the employees while they met with
their respective representative and discussed Employees Committee business.
The evidence, much of which is not in dispute, leads the Trial Examiner to the
conclusion that the Employees Committee exists and functions only through Respond-
ent's control, participation, and sufferance. In short, the Employees Committee is
being utilized by Respondent as a substitute for collective bargaining and, as such,
is a device which has been held repeatedly to be an outlawed form of a labor
organization .9 Therefore, upon the entire record in the case, the Trial Examiner
finds that Respondent has dominated and has interfered with the administration of
the Employees Committee and has contributed support to it within the meaning of
Section 8 (a) (2) and (1) of the Act, thereby interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guaranteed in Section 7 thereof.
That Employees Committee exists in violation of the Act is further demonstrated
by the fact that all the employees are, without regard to their wishes, members
thereof. Such compulsory membership is repugnant to Section 7 of the Act, which
provides, in part, that an employee may refrain from joining a labor organization
unless there is a valid collective-bargaining agreement requiring membership therein
as a condition of employment as authorized in Section 8(a)(3).
B. The independent 8(a)(1) violations
1. The pertinent facts
In the latter part of September 1959, the Union started its organizational campaign
among Respondent's employees.
About mid-October 1959, Bob Burri, the then foreman of the finishing department,
assembled the approximately 25 finishing department employees, and after telling
those assembled what had transpired "at the grievance meeting," "brought up the
8 See N.L.R.B. v. Link-Belt Company, 311 U S. 584; International Association of Ma-
chinists, Tool and Die Makers Lodge No. 35 v NL.RB (Serrick Corp.), 311 U.S. 72,
N.L.R B. v. Electric Vacuum Cleaner Company, Inc, 315 U.S 685; N.L R.B. v. Southern
Bell Telephone and Telegraph Company, 319 U.S. 50; Harrison Sheet Steel Company v
NLRB , 194 F. 2d 407 (,C A 7) ; NLRB. v S. H. Kress and Company, 194 F. 2d 444
(C.A 6) ; N.L R.B. v. Edwin D. Wemyss, d/b/a Coca-Cola Bottling Company of Stockton,
212 F. 2d 465 (C.A. 9)
9 N.L.R.B. v. Newport News Shipbuilding & Dry Dock Co, 308 U S. 241; N.L R B. v.
Baldwin Locomotive Works, 128 F. 2d 39 (C.A. 3) ; Bethlehem Steel Company v. NLRB ,
120 F. 2d 641 (App. D C.) ; Westinghouse Electric & Manufacturing Company v. N L R B.,
112 F. 2d 657 (C.A. 2) ; Edward G. Budd Manufacturing Company v. N.L R B , 138 F 2d
86 (C A. 3) ; N.L.R.B. v. Rath Packing Company, 123 F. 2d 684 (C A. 8) ; N L.R B v.
Edwin D. Wemyss, d/b/a Coca-Cola Bottling Company of Stockton, supra. Adhesive
Products Corporation, 117 NLRB 265, and cases cited therein, remanded on other grounds
258 F. 2d 403 (C.A. 2) ; 0. E. Szekely and Associates, Inc., 118 NLRB 1125, enfd 259 F.
2d 652 (C.A. 5).
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1621
subject about the" Union. Burri then requested those who desired the Union to
raise their hands. Burri then asked the five or six employees who had raised their
hands whethey they were "for the Union," to which question each responded in the
affirmative.
Commencing about mid-November, Joseph H. Miles, Respondent's executive vice
president in charge of operations of the Wahlgren Magnetics division, held a series of
meetings with groups of the employees, which meetings were attended, from time
to time, by Personnel Director Anna Biller, Production Superintendent Mat Piotrow-
ski,10 Foreman Willis Morgan, and Foreman William E. Frost.
Miles was the principal speaker at these meetings and they were called by him
purportedly to refute "some of the statements made in a sheet that was put out by
the [Union] as to what [it] could obtain for the Wahlgren employees" if it success-
fully organized Respondent's employees. At at least one of these meetings Miles,
after discussing the various claims which the Union stated in its leaflets it expected
to obtain from Respondent, told the employees that Respondent was preparing a
new job classification, a new salary scale, a new sick leave schedule, and a new vaca-
tion plan. Miles also stated, according to the credible testimony of employee Jerry
W. Creamens who attended one of the meetings, that if the Union "did try to get in
at Wahlgren Magnetics that he would fight it every step of the way." Employee
David Rohan credibly testified that at the meeting he attended Miles stated, to quote
from Rohan's testimony, "If the union did get in, he would refuse to sign anything to
admit it, and that he would fight it every step of the way . . . that the Company
was in a better position to fight us than we were then." Rohan credibly testified fur-
ther, "Then Mr. Piotrowski talked and he was talking about the extremely high dues
that you could be paying the union, and he mentioned that if the union got in it could
affect our work. By that, he stated at the time that it could cause a slowdown or
cause it to go out of business, since they were operating in the red at that time."
Employee Anthony Rojas credibly testified that at the meeting he attended Piotrowski
said after Miles had concluded his remarks, that the employees, to quote Rojas,
"Should think a little bit about this union thing, and he thought the company would
work out a good program for us and he gave an example of what might happen if
the union ever came in, using another company as an example, of possibly closing
the door because of union activity." ii
Employee James Waters credibly and without contradiction testified that in
November he attended a union meeting; that the following day his foreman, Bob
Burri, asked him how many attended the meeting, what was discussed thereat, and
how many had signed union cards; and that about 2 weeks later, on the day following
another union meeting, Burri asked him how many attended the meeting and how
many cards had been signed.
Rojas testified, as the Trial Examiner finds, that in late November or early Decem-
ber, his foreman, William E. Frost, asked him what he thought about the Union;
that he made a noncommittal reply; and that Frost then remarked, "Well, things are
going to be pretty rough around here if the Union gets in."
On February 8, 1960, over the signature of Larry W. Moede, general manager of
the Wahlgren Magnetics division, the following notice was posted on the plant's
bulletin boards:
During the past several months you have been pressured by union people
to sign representation cards and join the International Union of Electrical, Radio,
and Machine Workers, (AFL-CIO). Now you will. have an opportunity to
express your own wishes by secret ballot, without I hope, any outside pressure.
On February 5, 1960, in my memorandum to you, I informed you about the
meeting, all parties concerned had at the National Labor Relations Board and"
difficulties I encountered with the representatives of the union. This morning
I received word from Mr. Orville Johnson of the National Labor Relations Board
that the union representatives have agreed to the proposed Bargaining Unit, as
submitted. (A copy is posted on the bulletin board). Consequently, arrange-
ments have been made for a National Labor Relations Board election in our
10 Also referred to in the record as Nat Piotrouski
11 Miles' version of what he said at these meetings varies with what Rojas, Rohan, and
Creamens testified he had said. In the light of the entire record, the Trial Examiner is
convinced that the testimony regarding Miles' remarks given by Rojas, Rohan, and
Creamens is substantially in accord with the facts This finding is buttressed by the
fact that Rojas, Rohan, and Creamens Impressed the Trial Examiner as being forthright
and honest witnesses, whereas Miles gave the Trial Examiner the impression that lie was
studiously attempting to conform his testimony to what he considered to be the best
interest of Respondent
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on Thursday, February 18, 1960. The election will be held in the area
adjacent to the bulletin boards located in your production area, between the
hours of 1:30 P.M. and 3:00 P.M.
The election will be by secret ballot under direct supervision of the United
States Government. No one will know how you vote. You do not have to vote
in a particular way because you may have once signed a card. No one can
control your vote in any way.
This election is especially important to you. It affects your future, your
family's future, and the future of Wahlgren Magnetics. You should make such
a decision carefully.
To help make that decision, ask yourself two very important questions.
FIRST, what would the I.U.E. cost me, not just in money, although the cost
is large, but also in job security and personal freedom?
SECOND, how would it benefit me? Can the union really get me more money?
Where would it come from? Of course, not from the Electrical union, since you
will pay them, they will not pay you. Not from our customer-he will not pay
more for Wahlgren transformers and magnetic units just because of the I.U.E.
On the contrary, if our costs go up, our customer may take his business else-
where, especially when some of our major competitors already pay substantially
lower wages than we do, in their plants.
You need answers to these two questions. They call for facts. I shall
supply them for you between now and election day. Then you can readily
decide for yourself.
It is your job and your family's welfare that is at stake. As intelligent men
and women, I urge you to think carefully before making your decision.
2. Concluding findings
Respondent's contention that Miles' statement, if actually made, to the effect that
he would refuse to "sign anything" if the Union successfully organized Respondent's
plant which could be construed as recognition of the Union as the employees'
collective-bargaining representative, Frost's statement to Rojas, if actually made,
"Things are going to be pretty rough around here if the Union gets in," and
Piotrouski's threat at a meeting of a group of employees called by Miles that "if the
Union got in" a "slowdown" might occur or the plant might be closed were not
violative of the Act, is without merit for such statements, when viewed in the setting
in which they were made and to whom they were made, transgressed the bounds of
permissible conduct.12 The Trial Examiner further finds that Miles' promises of,
among other things, (1) new job classifications, (2) a new salary scale, (3) a new
vacation plan, and (4) a new sick leave schedule, coupled with the actual installa-
tion of improved working conditions at a time when the Union was engaged in a
campaign to organize Respondent's employees, were adroitly and strategically timed
to impress upon the employees that continued union adherence was a fruitless gesture,
would achieve them naught, and they could rely upon their employer's unilateral
generosity to attain their needs. By such conduct, Respondent violated Section
8(a)(1) of the Act.13
The Trial Examiner also finds that Burri, by questioning some employees regarding
their union affiiliations, violated Section 8 (a)( 1 ) of the Act, for the specific purpose
of such questioning was to undermine the Union in the eyes of the employees ques-
tioned and for the additional purpose of attempting to induce those employees to
renounce whatever affiliation and sympathies they may have had for the Union.
Furthermore, by Burri's questioning of Waters regarding other employees' union ac-
tivities and sympathies, Respondent engaged in a form of surveillance regarding those
employees' organizational activities and thus this questioning was no less coercive in
22 See Sheridan Silver Co , Inc, et at., 126 NLRB 877; Neco Electrical Products Corpora-
tion, 124 NLRB 481; Brown-Dunkin Company, Inc, 125 NLRB 1379; "M" System, Inc,
Mobile Home Division, Mid-States Corp, 1118 NLRB 502; Mt. Clemens Metal Products
Company, 126 NLRB 1297
za See May Department Stores d/ b/a Famous-Barr Company v. N L R.B., 326 U S. 376;
N.L.R B. v. Trimfit of California, Inc., 211 F. 2d 206 (C.A. 9) ; N L R B. v. Parma Water
Lifter Co., 211 F. 2d 258 (C.A. 9) ; N.L.R B. v. Crown Can Company, 138 F. 2d 263
(C A. 8) ; N.L R B. v. Mt. Clemens Pottery Company, 147 F. 2d 262 (C.A. 6) ; F. W. Wool-
worth Company v. N L.R.B., 121 F. 2d 658 (C.A. 2) ; Southern Colorado Power Company
v. N L.R.B., 111 F. 2d 539 (C A 10) ; N L R B. v Wytheville Knitting Mills, 175 F. 2d 238
(C.A. 3) ; Cold Spring Grantite Company, 101 NLRB 786; Paramount Textile Machinery
Co, 97 NLRB 691.
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1623
its nature than direct questioning of the employees, themselves, concerning their own
union activities and sympathies. Such conduct of employers has been repeatedly held
to be in contravention of the Act.14 -The aforesaid conduct of Burri was nonetheless
violative of the Act, even though there is no showing that the employees about whom
Burri queried Waters were cognizant of his conduct. For, as the Fourth Circuit
said, "Any real, surveillance by the employer over the union activities of employees,
whether frankly open or carefully concealed, falls under the prohibition of the Act." 15
Under the circumstances, the Trial Examiner finds that by the conduct and activi-
ties of Miles, Piotrowski, Frost, and Burri, as epitomized above, Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in.Section 7 of the Act, thereby violating Section 8(a)(1) thereof.
C. The discriminatory discharge of Anthony Rojas
1. The pertinent facts
Rojas was first employed by Respondent on October 29, 1956, as a trainee at $1.40
per hour. In September 1958, at which time Rojas was receiving $2 per hour, he
was made night foreman at a wage scale of $2.25 per hour.
Rojas remained night foreman at $2.25 per hour until the night shift was eliminated
in July 1959. Rojas then returned to his transforming department job which he
held until his discharge on February 8, 1960. At the time he was discharged, Rojas
was receiving $2.25 per hour.
In the latter part of November 1959, Rojas attended a union meeting, signed an
authorization card, and consented to be a member of the Union's organizing
committee.
Under date of December 7, the Union sent Miles a letter reading, in part, as
follows:
Please be advised that the following persons are members of the IUE, AFL-CIO
Organizing Committee.
Anthony Rojas
John Shepard
Bob Stewart
Ruth Kuba
David Rohan
Your cooperation on this matter will be appreciated.
The record indicates, and the Trial Examiner finds, that after December 7, the
relationship between Rojas and his foreman , Frost, changed , in that Rojas no longer,
as in the past, assisted Frost or any of his coworkers, nor was he permitted to cut
tubes and wire or to keep "track of wire and cutting coils."
On the evening of February 3, 1960, Rojas, accompanied by Edward Wedman, a
field representative of the Union, called at the homes of three of his coworkers on
behalf of the Union.
The next day, February 4, while employee Anna Stackhouse and Rojas were
working close to each other, the following ensued, according to Rojas' testimony:
Well, she asked me what I thought the Union could do for her and I said
that I wasn't going to take the time to explain to her what, it could do or
couldn't do, and she said, "I don't think it could do me any damn good anyway."
Regarding the conversation referred to immediately above, Stackhouse testified
as follows: -
Tony asked me if I was going to be at their union meeting held that Friday,
and I said to Tony, "No," and he says, "Well, I haven't seen you at any of our
union meetings" and he said, "I just wanted to know how come." And I says,
14 See N.L.R.B. v. Fruehauf Trailer Co ., 301 U.S.,49 ; N L.R B. v. Laister-Kauffmann
Aircraft Corporation, 144 F. 2d 9 (C.A. 8),; Montgomery Ward & Co v. N.L.R.B., 115 F.
2d 700 (C.A. 8) ; N.L.R.B. v. Vermont American Furniture Corporation, 182 F. 2d 842
(C.A. 2) ; N.L.R.B. v. Collins & Aikman Corp., 146 F. 2d 454 (C.A. 4) ; N.L.R B v.
Fairmount Creamery Company, 143 F. 2d 668 (C.A. 10) ; N.L R.B. v. Pennsylvania Grey-
hound Lines, Inc., 303 U . S. 261 ; N.L.R.B. v. Friedman-Harry Marks Clothing Co., 301
U.S. 58.
15 N.L.R.B. v. Collins & Aikman Corp ., supra In accord , N.L.R.B. v. Grower-Shipper
Vegetable Asa'n, 122 F . 2d 368 (C.A. 9) ; N.L.R B. v. Clark Brothers Company, Inc.,
163 F . 2d 373 (C.A. 2).
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Well, I just don't go." . . . he says "you know .. . we are having an election
come up on the 18th." And my answer to Tony was, "No, I didn't know it.
I didn't know that the union had even gotten that far." . . . he says "You mean
if the union comes into this plant . . . you are not going to vote for the union?"
I says, "No, Tony, I am not going to vote for the union if the union comes into
this plant." He says, "You intend to keep your job?" And I says, "Yes, Tony,
I do intend to keep my job. . You, your union and no one else got my job
but myself. . . . I intend to keep it." Tony then turned right and looked at
my face and says to me, "You will not keep your job. I will make sure you
don't have a job when the union gets in."
In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of Rojas and Stackhouse, and after a very careful scrutiny of the entire
record, all of which has been carefully read, and parts of which have been reread
and rechecked several times, and being mindful of the contentions of the parties with
respect to the credibility problems involved and of the fact that Rojas and Stack-
house have had several very unpleasant incidents, commencing from the time Stack-
house first started to work for Respondent in September 1959, the Trial Examiner
finds Rojas' version of what was said during the aforesaid February conversation to
be substantially in accord with the facts. The finding is not only supported by the
fact that it was not until February 8 that it was determined by Respondent, the
Union, and the Board that the Board would hold an election on February 18, but
also by the fact that Rojas impressed the Trial Examiner as being one who is careful
with the truth and meticulous in not enlarging his testimony beyond his actual mem-
ory of what was said. On the other hand, Stackhouse did not so impress the Trial
Examiner.16
Frost testified that he did not hear the aforementioned Rojas-Stackhouse con-
versation but that Stackhouse told him. "Tony asked her which way she was going
to vote in the union election, and in reply she said it was none of his business . . .
and he told her that if she didn't vote for the union, that he was going to be shop
steward and he'd see to it that she would not have a' job if the Union came in";
that he told Stackhouse, Rojas "couldn't say that to her and I told her to go sit at her
work station and relax"; that Stackhouse's face was red and she was "just out and out
mad at something"; that he then sat down (in his private office) and "thought it
over for a minute and then I went upstairs to see Anna Biller (personnel director)
and Bob Matthews (production manager) was in the office. And I told them this
same story that she (Stackhouse) told me, and I told them that I wanted to terminate
Tony. I didn't want this to happen to any other of my people"; that Biller and
Matthew advised taking the matter up with Karl Breitigan; 17 and that Breitigan
was contacted and an appointment was set up for the following day.
On February 5, Biller, Matthews, and Frost met with Breitigan at the plant.
After Frost had "related" the Rojas-Stackhouse "story" to Breitigan the latter in-
quired whether Stackhouse would be "willing to come in and tell him the story just
as'it had happened." Frost replied that he "was sure she would come in and tell
him what happened," he then went to where Stackhouse was working, and, after
ascertaining that she was willing to tell Biller, Breitigan, Matthews, and himself
what "happened," Frost brought her into the meeting. Stackhouse then, according
to Frost's testimony, "related the same story that she had told" him the previous day,
after which Frost accompanied Stackhouse to her machine and then returned to the
aforementioned meeting. Frost then "suggested terminating [Rojas] and Karl
Breitigan also suggested that there [were] grounds for immediate termination "
Edwin H. Franzen, Respondent's counsel, was then called upon for his opinion as
to the propriety in termiating Rojas. Franzen's opinion was requested because
of the Union's organizing drive and of the fact that "everyone knew that [Rojas]
was an organizer of the" Union. Franzen stated that Respondent was "in the right
for terminating" Rojas.
About mid-afternoon on February 5, Breitigan, Biller, and Matthews informed
General Manager Moede that Frost "had come down and wanted to dismiss Anthony
Rojas because he had threatened Anna Stackhouse and that they had looked into
1s This is not to say that at times Rojas was not confused on certain matters or that
there were not variations In his objectivity and convincingness But it also should be
noted that the candor with which he admitted, during a long and searching cross-
examination , that he could not be certain as to dates or the exact words used, only
serves to add credence to what a careful study of his testimony shows that he honestly
believed to be the facts
17 Respondent's labor relations consultant
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1625
the matter very carefully, had talked to Anna Stackhouse and were firmly con-
vinced that this incident had taken place exactly as described" by Stackhouse. Breiti-
gan advised Moede that since Rojas was a union organizer he "in all likelihood
as soon as he was fired he would go down to the union, tell them some cock-
and-bull story, and in all -likelihood an alleged unfair labor practice would be held."
After some discussion relative to what possible adverse consequences might ensue
by discharging Rojas, the conferees were in accord with Breitigan's suggestion that
he be permitted to confer over the weekend with Franzen, even though Moede
"felt that [Rojas] should be dismissed immediately" and that the conferees had
"tentatively agreed to dismiss Tony Rojas" because, as Moede testified, Respondent
could not "tolerate our people being threatened."
Sometime prior to Rojas' discharge either Moede or Matthews informed Miles of
the Rojas-Stackhouse incident and Miles, although he had decided to leave the ulti-
mate decision to discharge Rojas up to Moede because Moede was then running
the plant, testified that he was in agreement with the decision to terminate Rojas
because Rojas had threatened Stackhouse.
Between 7:30 and 8 a.m. on February 8, Moede and Breitigan conferred in the
former's private office at the plant 18 at which a final decision was reached to dis-
charge Rojas because Respondent could not "have this going on" and Rojas' paycheck
was then ordered prepared.
Moede and Breitigan, after disposing of the Rojas matter, went to the Board's
Twenty-first Regional Office and signed an agreement providing fora Board-conducted
election to be held on February 18 among Respondent's employees in a certain
appropriate unit.
During the morning of February 8, Judy Davis, an office employee, informed
Rojas that she had a check for him. When he inquired, "What check?" Davis said,
"I'll bring it to you." After examining the check, which was made out to his order,
Rojas told Davis that he had received his paycheck the previous Friday. Thereupon
Davis took the check, remarking that there "must have been a mistake."
At 2 p.m. on February 8, Frost escorted Rojas to Breitigan and Matthews. Mat-
thews handed Rojas a "Termination Notice" which stated under the heading, "General
Remarks,"
This employee was discharged for intimidating, coercing and threatening
employee while at work, interfering with employee's work.
When Rojas asked what evidence Respondent had upon which to base such a charge,
Breitigan stated, according to Rojas' undenied and credible testimony, "That's our
business" and Matthews remarked, "We have sufficient evidence to substantiate
the charge here." Breitigan then asked Rojas whether he had any questions, and he
replied, "No," adding that he denied the charge.
On the day Rojas was discharged the following notice, with Moede's approval,
was posted in the plant.
MEMO
FEBRUARY 8, 1960.
To: All Employee's [sic].
From: R. C. Matthews.
Subject: Discharge of Mr. Anthony Rojas.
' At approximately 2:00 P.M. this date, the above referenced employee of
Wahlgren Magnetics, was discharged for reasons as listed:
Intimidating, Coercing and threatening a employee, regarding future employ-
ment conditions, if said employee did not cast a ballot in favor of a cause which
this person represented.
I feel that this is an opportune time to reiterate company policy in regards
to matters of this nature.
Any employee guilty of forcing their beliefs on any other employee's through
the medium of coercing, threats, intimidations or other methods usually referred
to as Strong Arm Tactics, will be discharged immediately. This directive ap-
plies to personnel engaging in these tactics either for or against Labor Unions.
Sincerely,
(S) R. C. Matthews,
R. C. MATFHEws,
Production Manager.
At quitting time on February 9, Moede caused to be posted on the plant's bulletin
board and copies thereof distributed to the employees, the following notice:
IS Normally Mloede does not arrive at the plant prior to 8 :30 or 9-a m.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMO
To: All Employee's [sic].
Subject: Cancellation of Election Date.
FEBRUARY 9, 1960.
Yesterday you received a memorandum from Bos Matthew, our Production
Manager, stating that due to an unfortunate situation he was forced to terminate
Mr. Anthony Rojas for intimating and coercing an employee. Also stated in
this Memorandum, Mr. Bos Matthews specifically stated our company policy
in relation to, any employee guilty of foreing[sic] their beliefs on any other
employee's through the medium of coercing, threats, intimidations or other
methods usually refered to as strong arm tactics, will be discharged immedi-
ately. This directive applies to personnel engaging in these tactics either for or
against labor unions.
Unfortunately, this morning the union posponed [sic] the election by filing
a complaint against Wahlgren Magnetics with the National Labor Relations
Board. Such action to us indicates an approval by the union of "strong arm"
tactics. Due to this complaint the election will not be held on February 18, 1960.
The new election date will be announced by the National Labor Relations
Board after the investigation of this complaint has been made and a ruling by
the National Labor Relations Board has been given.
I will keep you informed on this matter as development occurs.
Sincerely,
(S) L. W. Moede,
L. W. MOEDE,
- General Manager.
2. Concluding findings
Respondent contended at the hearing and in its brief that Rojas was discharged
not solely because of the aforementioned incident involving Stackhouse-which "was
the final straw that broke the camel's back"-but for various and sundry reasons.
Among the assigned reasons for his discharge the Respondent points to his poor
workmanship on the multiple winding machine and his inability to get along with
his coworkers, especially the female help.
Respondent's defenses must fall because the record clearly indicates that they are
refuted by, among other things, (1) the reason assigned on the termination slip
given to Rojas on February 8, (2) the above-quoted posted notices of February 8
and 9, (3) the testimony of Miles, Moede, Frost, and Biller who each testified that
Rojas was discharged solely because of the purported February 4 incident involving
Stackhouse, and (4) Rojas' purported shortcomings only became insupportable in
his employer's eyes when he became active in the labor organization which the
employer opposed.
In view of the inadequacy and inconsistencies of Respondent's explanations for
Rojas' discharge, coupled with Respondent's unconcealed union hostility, a finding
is clearly warranted that Rojas was terminated because of his union activities and
sympathies and because he had engaged in concerted protected activities with his
fellow workers.19 In N.L.R.B. v. May Department Stores Company, 154 F. 2d 533
(C.A. 8), the court said at page 538, regarding a situation similar to the one here
presented, that there is a "broad scope of interference open . . . on questions of
motive and discrimination, where the evidence indicates a desire to thwart or nullify
unionization effort, either generally or to a particular employee-organization." And
where, as here, the employer has shown strong opposition to its employees' union-
ization "a very convincing case of discharge for cause would have to be made to
make unreasonable a conclusion that [the] discharge was because of union affilia-
tions." 20 This burden Respondent failed to establish.
Furthermore, the shifting and unsupported grounds assigned by Respondent for
terminating Rojas' employment are further persuasive indications that antiunion
reasons, rather than the reasons asserted by Respondent, accounted for the action
taken against him.21
19 Of course, disbelief of the reasons advanced by Respondent does not itself make out a
violation. The burden is on the General Counsel to establish discriminatory motive, not
on Respondent to disprove it. But here, the General Counsel has more than amply met
that burden.
2Dannen Grain and Milling Company v . N.L.R.B, 130 F. 2d 321 , 328 (C.A. 8).
u The courts have frequently recognized that shifting explanations by an employer for
the discharge of an employee may warrant an inference that the true reason was the
employer 's hostility to the Union See N.L.R B v. International Furniture Company, 199
WAHLGREN MAGNETICS, DIV. OF MARSHALL INDUSTRIES 1627,
The Trial Examiner has carefully considered the various contentions of Respond-
ent as to why the complaint, as amended„should be dismissed in its entirety, or in
part,.and finds each of them to be without mentor substance.22
Upon the entire record in the case, the Trial Examiner is convinced, and finds,
that Rojas was discharged on February 8, 1960, because of his union affiliations
and activities and not. for the reasons 'asserted by Respondent 23 The Trial' Examiner
further finds that by said discharge Respondent interfered with, restrained, and
coerced its employees in, the exercise of the rights guaranteed in Section 7 of the
Act, thereby discouraging membership. in the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section 111, above, occurring in connec-
tion with Respondent's operations described in section I, above, have, a close, inti-
mate, and substantial relationship to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow,
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1), (2), and (3) of the Act, the Trial Examiner will recommend
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As found above, Respondent dominated and interfered with the administration of
the Employees Committee and contributed support to it. The Trial Examiner is
convinced, and finds, that Respondent's continued recognition of the Employees
Committee constitutes a continuing obstacle to the exercise by the employees of the
rights guaranteed them under the Act. Therefore, in order to effectuate the policies
of the Act and to free the employees from the effects of Respondent's unfair labor
practices, the Trial Examiner will recommend that Respondent withdraw all recog-
nition from the Employees Committee as a representative of any of its employees
for the purpose of dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, and other conditions of employment, and to com-
pletely disestablish it as such representative.
Having found that Respondent discriminated in regard to the hire and tenure of
employment of Anthony Rojas by discharging him, the Trial Examiner will recom-
mend that Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of said discrimination by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the discrimination against
him to the date of the offer of reinstatement, less his net earnings during such period.
Loss of pay shall be computed and paid in accordance with the formula adopted by
the Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices committed by Respondent in the instant case are such
as to indicate an attitude of opposition to the purposes of the Act generally. In
F. 2d 648 (C.A; 5) ; N.L.R B v. Crystal Spring Finishing Company, 116 F. 2d 669
(C.A. 1) ; N.L.R B. v. Yale & Towne Manufacturing Company, 114 F. 2d 376 (C.A. 2) ;
N L R.B. v. Condenser Corporation of America, 128 F. 2d 67 (C.A. 3) ; N.L R B. v
Eclipse Moulded Products Company, 126 F. 2d 576 (C.A. 7). And this is so even where
the employer had "plausible grounds" for the discharge. United Biscuit Company of
America v. N L R B., 128 F. 2d 771 (C A. 7). See also N.L.R.B. v. Condenser Corporation
of America, supra; N.L.R B. v. C. W Radcliffe and W. W. Maneke d/b/a Homedale
Tractor & Equipment Company, 211 F. 2d 309 (C.A. 9), which hold that the giving of
implausible , inconsistent , or contradictory explanations of a discharge may be considered
in determining the motive ; it is, as here , a circumstance indicative of antiunion motivation.
za Contrary to Respondent 's contention , the fact that it discharged only one of the five
known members of the Union's organizing committee in no way negates an inference of
discrimination as to Rojas . See N.L.R.B. v. Earl 1 . Sifers, d/b/a Sifera Candy Company,
171 F. 2d 63 (CA. 10).
' It goes without saying, as the Fifth Circuit pointed out in N.L.R.B. v. T. A. MoGahey,
Sr, et al, d/b/a Columbus Marble Works, 233 F. 2d 406, "Management can discharge for
good cause or bad cause , or no cause at all" provided the discharge was not motivated by
any purpose proscribed by the Act. But, the court, however, pointed out that where the
evidence reveals that the real and dominant purpose for the discharge was discriminatory,
as here, then a finding of a violation of Section 8(a) (3) of the Act is clearly' warranted.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order, therefore, to make effective the interdependent guarantees of Section 7 of the
Act, thereby minimizing industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union and the Employees Committee are labor organizations within the
meaning of Section 2(5) of the Act.
2. By dominating and interfering with the administration of the Employees Com-
mittee and by contributing support to it, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a)(2) of the Act.
3. By (1) interrogating its employees about their union affiliations and sympa-
thies, (2) interrogating its employees regarding the union affiliations and sympathies
of their coworkers, ( 3) threatening to close its plant if the Union successfully or-
ganized their employees , and (4) promising its employees, provided they abandoned
the Union , improved working conditions , increased wages, more advantageous job
classifications , and improved vacation and sick leave plans, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I)
of the Act.
4. By discriminating in regard to the hire and tenure of employment of Anthony
Rojas, thereby discouraging membership in the Union, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mayrath Company and U.A.W., AFL-CIO. Case No. 13-CA-
2862. August 31, 1961
DECISION AND ORDER
On August 5, 1960, Trial Examiner Thomas S. Wilson issued his
Intermediate Report' in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report and briefs in
support thereof 2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 A previous Intermediate Report issued in this case by another Trial Examiner was set
aside by order of the Board , and the case was remanded for hearing de novo
2 The Respondent has requested oral argument herein. This request Is denied as the
record , the exceptions, and the briefs adequately present the issues and the positions of
the parties.
132 NLRB No. 132.