Marshall Maintenance Corp.

National Labor Relations Board - Board Decisions

Dec 19, 1963

145 N.L.R.B. 538 (N.L.R.B. 1963)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marshall Maintenance Corp . and Local 731, United Automobile,
Aircraft , Agricultural Implement Workers of America, AFL-.
CIO. Case No. 02-CA-1113. December 19, 1963
DECISION AND ORDER
On July 24, 1962, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
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 attached Intermediate
Report. The Trial Examiner also recommended that the Regional
Director open and count the challenged ballots of John J. Welch and
Paul Brown and issue a revised tally of ballots in a representation
proceeding, Case No. 22-RG-1438, consolidated herewith.
The last date for the receipt of exceptions to the Intermediate Report
was August 16, 1962. Exceptions and a supporting brief from the
Respondent were received by the Board on August 17, and were re-
jected as being untimely filed. On August 24, 1962, the Respondent
attempted to refile its exceptions, by requesting an extension of time
from August 16 to and including such date as the Board should deem
appropriate. The Board denied the request and again rejected the
exceptions and brief as being untimely filed. On November 9, 1962,
the Board issued an Order pursuant to Section 10(c) of the Act and
Section 102.48 of its Rules and Regulations adopting the findings,
conclusions, and recommendations of the Trial Examiner's Inter-
mediate Report.'
Thereafter, pursuant to the Trial Examiner's recommendation, the
two challenged ballots were opened and counted and a revised tally
of ballots was issued indicating that the Union had obtained a major-
ity of the valid votes cast. After considering the Respondent's objec-
tions, the Board issued a Decision and Certification of Representatives
in Case No. 22-RC-1438 on July 12,1963.
In the meantime, the Board had petitioned the United States Court
of Appeals for the Third Circuit for enforcement of its Order in this
case. On July 30, 1963, the court denied summary enforcement of
the Board's Order, because the court considered the Respondent's late
filing of its exceptions to be excused by extraordinary circumstances
relating to the mailing of the exceptions 2
On September 13, 1963, in accord with the decision of the court
of appeals, the Board set aside its Order of November 9, 1962, which
1 On November 26, 1962, Respondent filed a motion for reconsideration or modification
and clarification of this Order, for a reopening of this proceeding to submit newly dis-
covered evidence , and for oral argument The motion was denied on December 18, 1962.
2 N.L.R B v. Marshall Maintenance Corp , 320 F 2d 641 (CA. 3).
145 NLRB No. 53.
MARSHALL MAINTENANCE CORP. 539
had adopted the Trial Examiner's findings on the merits of the case,
and agreed to consider the Respondent's exceptions. It also vacated
its Certification of Representatives pending a decision on the merits
of this proceeding 3 Accordingly, the Respondent's exceptions to the
Intermediate Report and its brief in support thereof are hereby ac-
cepted and made part of the record in this proceeding.
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 [Chairman McCulloch and Members Fanning and Brown].
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 entire
record in this case, including the Intermediate Report and the excep-
tions and briefs and hereby adopts the findings,4 conclusions,5 and
recommendations of the Trial Examiner, except as modified herein.
1. We agree with the Trial Examiner that the Respondent's alleged
reason for discharging Brown and Welch was a pretext, and that the
action was taken to discourage their participation in union activities.
To remedy this violation of Section 8(a) (3), the Trial Examiner
recommended that Respondent reimburse Brown and Welch for their
loss of pay, and reinstate them to their former, or substantially equiv-
alent, positions. In its brief, Respondent urges that if it is required
to reinstate Brown and Welch, "proper safeguards should be made
that these employees divest themselves of all interests and affiliation"
with any enterprise "engaged in the same or similar type of business"
as that of Respondent. We find the Respondent's argument persuasive.
The record establishes that Brown, Welch, and Gulden, a super-
visor who had also been discharged about the same time, formed a
corporation to engage in the same type of business as Respondent,
that of performing maintenance work on machinery sand equipment
for industrial plants on a contract basis. If Brown and Welch are
still engaged in this enterprise, it means that they are in direct com-
petition with their former employer. It would be manifestly improper
3 The validity of the ballots cast by Welch and Brown , which were determinative in the
representation proceeding , turned on whether they were entitled to vote after they had
been discharged . The Trial Examiner found they were entitled to vote because they
had been discharged in violation of Section 8(a) (3).
4 The Intermediate Report contains some minor misstatements of fact that do not affect
the Trial Examiner 's conclusions . Thus, we note that Howard Graucl was a supervisor
of Respondent in addition to those named, and that Grauel, as well as Gulden , was absent
from the supervisors ' meeting of November 21. We also note that it was not at Respond-
ent's shop but at a customer 's plant that Supervisor Katzmar told employee Carter on
November 22 that the Company had information as to 'Carter's leadership in the Union
and that he , Katzmar , would fight the Union to the end
5 The Respondent has excepted to certain of the Trial Examiner 's credibility findings.
Inasmuch as the clear preponderance of all the relec ant evidence does not persuade us
that the Trial Examiner's resolutions of credibility issues are mcoirect , we find insufficient
basis for disturbing his credibility findings. Standard Dry Wall Products, Inc., 91 NLRB
544, enfd 188 F. 2d 362 (CA. 3).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to require Respondent to employ anyone whose loyalty and efforts
as an employee might be affected by his own self-interest as an entre-
preneur and business competitor.6 Accordingly, although we shall
order the Respondent to reinstate Brown and Welch, we shall permit
Respondent to condition its offer of reinstatement to each upon his
divesting himself of all interest in the operation of, and any substan-
tial interest in the ownership of, their competing enterprise. In the
event of acceptance of such offer, Brown and Welch shall have a
reasonable time in which to comply with such conditions. We shall
also order that Respondent make each of them whole for any loss of
pay resulting from the discrimination, plus interest at the rate of 6
percent per annum in accordance with the Board's decision in Isis
Plumbing & Heating Co., 138 NLRB 716.
2. The Trial Examiner's recommendation that the challenged bal-
lots of Brown and Welch be opened and counted has already been
complied with. As the Certification of Representatives in Case No.
22-RC-1438, issued on July 12, 1963, was vacated pending a decision
on the merits in this proceeding, we have, in a separate Order issued
this date, severed the representation case from the instant unfair labor
practice case , and have reissued the Certification of Representatives
as of this date.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
1. Substitute the following for the first paragraph of the Recom-
mended 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 Respondent,
its officers, agents, successors, and assigns, shall:
2. Amend paragraph 2 (a) to read as follows :
Offer. to John J. Welch and Paul Brown, and each of them,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, provided, however, that Respondent may,
if it so desires, condition such offer of reinstatement to each upon
his divesting himself of all interest in the operation of, and any
substantial interest in the ownership of, their competing enter-
prise, and make each of them whole in the manner set forth in
The Remedy section of the Intermediate Report, with interest in
backpay due at the rate of 6 percent per annum.
8 CP. Bausch & Lomb Optical Company, 108 NLRB 1555, 1561.
MARSHALL MAINTENANCE CORP. 541
3. Amend the final paragraph of the Appendix attached to the
Intermediate Report to conform to paragraph 2(a) of the Order, as
amended above.
4. Add the following to the Appendix immediately below the signa-
ture at the bottom of the notice :
NOTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right to
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
5. Immediately below the "Note" at the bottom of the notice, amend
the first sentence to read :
This notice must remain posted for 60 consecutive days from
the date of posting, and must not be altered, defaced, or covered
by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Robert E . Mullin at Trenton,
New Jersey, on April 11 to 13, 1962. The issues litigated were whether the Re-
spondent violated Section 8(a)(3) and (1) by the discharge of two employees as
well as by other alleged conduct and whether the two aforesaid employees were
eligible to vote in a Board-directed election . Subsequent to the close of the hearing,
counsel for all the parties submitted a joint stipulation correcting an error in the
transcript. This stipulation is hereby received as Joint Exhibit No. 1 and the tran-
script corrected in accordance therewith. After the hearing a brief was submitted
by the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under the laws of New Jersey with
its principal office and place of business located at Trenton in that State. It is
engaged in the business of servicing , repairing , and installing machinery in the
plants and factories in that area. In the course of the Respondent's operations
during its last fiscal year, a representative 12-month period, the Respondent provided
and performed services valued at in excess of $500,000, of which, services valued
in excess of $100,000 were provided and performed within States of the United
States other than the State of New Jersey. Upon the foregoing facts the Respondent
concedes , and I find, that Marshall Maintenance Corp., is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 731 , United Automobile , Aircraft , Agricultural Implement Workers of
America , AFL-CIO , herein called the Union , or Autoworkers , is a labor organiza-
tion within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Case No. 22-CA-1113
The complaint alleges that on November 24, 1961 , the Respondent discharged
Paul Brown and John Welch, two employees at its Trenton plant, and refused to
reinstate them , in order to discourage membership in the Union . It further alleges
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that for the same discriminatory purpose in November and December of that year,
the Respondent terminated and withdrew certain economic benefits from its em-
ployees including holiday pay and profit-sharing. All of these allegations are
denied by the Respondent.
A. The facts
In November 1961, the Respondent had approximately 30 employees. Mr. Richard
N. Marshall, president and a principal stockholder of the corporation, was actively
engaged in the operation of the business. The supervisory staff at that time con-
sisted of Bela Weiss, machine shop superintendent, Raymond Katzmar, Sr., and
John Gulden, the latter two being classed as field superintendents.
John J. Welch and Paul Brown, two mechanics, had been in the Respondent's
employ for several years prior to their termination. Welch became a full-time
employee in 1958 and prior to that time he had been a part-time employee for
approximately 3 years. Brown was hired in the spring of 1959 and worked con-
tinuously for the Respondent thereafter until his discharge.
In October 1961 several of the employees became interested in organizing a union.
Welch, who in his previous employment had once been president of a local of the
United Steelworkers, contacted the Trenton office of that organization. The latter
referred him to the Autoworkers and, thereafter, John LaEzza, an international
representative of that union, sent Welch a supply of authorization cards to use in
soliciting memberships for the UAW. Early in November, Welch distributed these
cards to his fellow employees. After he had secured several signed authorizations
he brought them to the union hall of the Autoworkers, where, after a conference
with the organizers , arrangements were made for a meeting of all the employees at
Marshall Maintenance. This meeting, held at the union hall in mid-November, was
attended by about 15 employees. During the course of the meeting Welch was
appointed the union contact man for the Marshall employees and Brown was named
as his coworker or alternate. On the morning of November 24, Marshall received a
telegram from the Union, setting forth its claim to represent a majority of the
employees and requesting that the Company meet with it for the purpose of collective
bargaining . That afternoon , Marshall discharged Welch and Brown.
There was considerable testimony on the question of whether the supervisory
staff had engaged in various antiunion conduct during the week prior to the discharge
of these employees. To that evidence we will now turn.
On the night of November 21, Marshall held a meeting at his home which was
attended by all the supervisory staff with the exception of John Gulden.' There
was testimony from the General Counsel' s witnesses that the following morning
Weiss and Raymond Katzmar, Sr., two of the supervisors present, told the em-
ployees that at this meeting Marshall had discussed the union campaign to organize
the shop and had told them that if it was successful he would close down. Thus,
Gulden testified that the next morning Katzmar told him that it "was brought
out that there was a union being organized, or in the process of being organized .
that Mr. Marshall was ready to close the plant down but they talked him out of
it." This testimony was corroborated by Vincent Tartaglia, an employee who was
present during a portion of the conversation and whom Katzmar, Senior, engaged in
further discussion after Gulden left the scene. According to Tartaglia, during the
course of this latter conversation, Katzmar, Senior, reiterated the comments attributed
to Marshall and emphasized that "Mr. Marshall means it, that he will close the doors
if the union got in." Gulden further testified that he had a similar conversation
with Weiss during the course of which the latter stated that "Mr. Marshall wanted
to close the doors down the very next day [but that] the supervisors talked it over
with Mr. Marshall and talked him out of it." According to Gulden, Weiss con-
cluded their conversation by telling him "I'm going to tell my men, talk to them,
'Prior to this time Gulden had signed a union card . On November 27, Marshall dis-
charged him . This termination , however, Is not an issue in the present proceeding.
Gulden testified at the instant hearing that Marshall never notified him of the supervisors'
meeting on November 21. According to Gulden , on the evening of the meeting he was at
a tavern near the shop when Bela Weiss, his fellow supervisor , told him about It and asked
whether he planned to attend . Gulden testified that this was the first information he had
of the meeting and, because he was not invited by Marshall himself, he felt that he was
not wanted and did not thereafter proceed to the meeting . Weiss testified that when he
informed Gulden of the meeting on this occasion the latter stated that he would be unable
to attend because of a previous commitment . At the hearing Gulden conceded that he had
a social engagement on the night in question.
MARSHALL MAINTENANCE CORP. 543
talk them out of it. You should go to your men and talk them out of organizing a
union." Both Katzmar , Senior, and Weiss conceded that they had had discussions
with the foregoing witnesses at the times and places in question but both denied
that there had been any reference to the Union or to any threat to close the shop.
The Respondent vigorously assailed the credibility of Gulden who , as noted earlier,
was terminated by Marshall late in November . Immediately thereafter , Gulden,
along with Welch and Brown , organized a corporation known as "Cooperative Main-
tenance" to engage in substantially the same type of industrial maintenance and
repair work as they had been performing for the Respondent . The evidence as
to this post-termination business operation has been considered in arriving at a
conclusion as to the weight and credence to be accorded Gulden's testimony. After
such a review it is my conclusion that Gulden was more credible than either Weiss
or Katzmar . This is due , in part, to the fact that Gulden withstood a searching
cross-examination by able counsel for the Respondent who was thoroughly prepared
and who questioned Gulden as to these conversations at great length. Additionally,
however, Gulden 's testimony as to his conversation with Katzmar , Senior, was cor-
roborated by Tartaglia, a mechanic who was still working for the Respondent. The
latter impressed me as a credible witness throughout his appearance on the stand
and since he was still in the employ of the Respondent and under both Weiss and
Katzmar, Senior , it cannot lightly be assumed that his testimony , so sharply in con-
flict with that of his supervisors , was without substance . Neither Weiss nor Katzmar,
Senior, was persuasive or convincing . For these reasons, it is my conclusion, and I
find, that the conversations with Weiss and Katzmar, Senior, occurred substantially
as related by Gulden and Tartaglia.
Other employees testified as to further conversations with these supervisors dur-
ing this period . Thus, according to Lawrence Carter, at about this same time,
Katzmar came up to him in the shop and told him that the Company had "definite
information that [ Carter] was one of the ringleaders in the Union .. . Carter
testified that when he gave a noncommittal response , Katzmar, Senior, declared that
he was going to fight the Union "all the way down to the end ." Katzmar, Senior,
conceded that he had a conversation with Carter on November 22, but denied that
there was any mention of the word "union" during the course of their discussion.
Carter was another witness for the General Counsel who was still in the Respond-
ent's employ . He impressed me as a frank and honest individual whose testimony
was more credible than that of Katzmar , Senior.
Jesse T. Vansant, another employee during the time in question , testified that
one noon hour during this same period he and Raymond Katzmar, Jr., a fellow
employee , were having lunch together when Superintendent Weiss questioned them
as to whether they had joined the Union. According to Vansant , during this
same conversation , Weiss further asked them for the names of the "instigators" of
the organizational campaign? Carter also testified that on the Friday before Christ-
mas, Weiss repeated to him and to one of the other employees the statement that
Marshall would close the plant if the Union succeeded in organizing the men.
Weiss conceded that he had various conversations with Vansant throughout this
period but he denied ever having questioned the employee as Vansant related. Weiss
also testified that he had not had any such conversation with Carter as that em-
ployee attributed to him. Upon an appraisal of these witnesses it is my con-
clusion that Vansant and Carter gave the more accurate and reliable accounts.
Subsequent to the supervisory meeting held on the evening of November 21,
Marshall put up a series of notices on the shop bulletin board He testified that
he posted the first immediately after he concluded the meeting with the supervisors.
This read as follows:
Nov. 21, 1961.
TO ALL EMPLOYEES
Because of the tremendous losses incurred during this quarter, the following
policy changes will take place:
1. There will be no Christmas party.
2. Effective immediately , the Profitmakers Club is abolished.
3. Any truculence , insubordination , loafing or other inefficiency will be
cause for immediate discharge.
MARSHALL MAINTENANCE,
(Sgd) RICHARD N. MARSHALL.
0 The quotation is from Vansant ' s testimony.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day the following notice was posted:
NOVEMBER 22, 1961.
To All Employees:
We regret to inform you that for economy reasons we have to take the
following steps:
1. There will be no paid holidays for Thanksgiving and Christmas this year.
2. We have deferred purchase of the new lockers for the washroom until
a later date.
MARSHALL MAINTENANCE,
(Sgd) RICHARD N. MARSHALL.
Later in the week the following notice appeared on the board:
NOVEMBER 24, 1961.
To Our Employees:
Although we have never guaranteed a 40 hour minimum work week, in our
ten years in business we have had only one short week back in 1954.
This has required that we find odd jobs for repairing and so on. As you
can imagine, it's been very costly, amounting to an average of $1500 a year for
each of our employees or about 750 per hour.
To relieve ourselves of this tremendous burden of expense, we are with-
drawing this practice, effective immediately.
MARSHALL MAINTENANCE.
Another notice, dated November 24, listed a total of $57,200 in savings that
would purportedly accrue from the elimination of the Christmas party, the Profit-
makers Club, paid holidays for Thanksgiving and Christmas, the 40-hour guarantee,
and lockers. On November 27, Marshall posted an announcement of the elimination
of company payments for Blue Cross and Blue Shield insurance on the employees.
In a final notice that appeared on November 28, Marshall stated that the Company
had lost a total of $13,139 on three different contracts and that recently it had
failed to secure a $75,000 loan from the United States Government.
On or about December 16, 1961, the Respondent restored to the employees all the
benefits which in the foregoing notices it had announced that the employees would
lose.
B. The discharges of Welch and Brown; contentions of the parties;
conclusions with respect thereto
On the morning of November 24, 1961, Welch, Brown, and several other em-
ployees were engaged in the completion of an emergency maintenance project at the
plant of the Cary Chemical Company in Milltown, New Jersey, some 28 to 30 miles
distant from the Respondent's shop in Trenton. At about 1 p.m., Brown and Welch
were told that there was not much left to do and that they were to return to the
Respondent's shop. At this point Superintendent Katzmar told Brown that before
leaving he should load on his truck a journal bearing box from the rubber mill on
which they had been working. This bearing, weighing approximately 800 pounds,
was then loaded aboard Brown's pickup truck and the two employees departed
for Trenton.
Welch and Brown testified that they left the Cary plant at 2:15 p.m. and that
they arrived back at the Trenton shop a few minutes before 3. It was undisputed
that almost immediately after their return they were accosted by Marshall who
accused them of having spent too long on the way back and fired them on the spot.
The General Counsel alleges that these employees were discriminatorily terminated.
The Respondent contends that they were discharged solely for having failed to,
return promptly from the Cary job.
On the day in question Marshall arrived at the Cary plant shortly before Brown
and Welch left. He explained his presence at that site as being in keeping with
his practice of staying in touch with all the jobs in progress. According to Marshall,
the two employees left Milltown at 2:10 and did not arrive back at the Trenton
shop until 3:15, whereas he left after they did and reached Trenton at 2:55. Al-
though Marshall testified that the employees departed at 2:10 he conceded that the
Respondent's time records disclose that Welch was paid at the Cary site until 2:15
and that the employee was then allowed 42 minutes travel time back to Respondent's
shop. Superintendent Katzmar, Senior, who was on duty at the Cary project also con-
ceded that on his time record he allowed these two employees until 3 to complete
the return journey. Superintendent Weiss estimated that normally it would require
from 40 to 45 minutes for a truck such as Brown was driving to complete the trip
from the Cary plant to Trenton. Marshall conceded that on this occasion he gave
MARSHALL MAINTENANCE CORP. 545
Brown and Welch no instructions as to which route they should follow on their
return. Welch testified, without contradiction, that on another occasion, when he
was sent to the Cary plant, Marshall directed him to follow the identical route that
he and Brown used on the afternoon in question.
Late in the afternoon of November 24, Tartaglia, who had also been at work at
the Cary plant that day, returned to the Respondent's shop in Trenton where Super-
intendent Weiss informed him that Brown and Welch had been discharged. When
Tartaglia inquired as to the reason, Weiss told him that it was because they had
taken too long to get back to the shop. Thereafter, according to the employee,
Weiss launched into a discussion of the Union and declared that Marshall would
definitely "close his doors if the union got in," that although they [the supervisors]
had tried to persuade Marshall not to, the latter would definitely follow that course
of action if the employees were organized. Weiss conceded that he had a conver-
sation with Tartaglia at the time and place in question, but denied having mentioned
the Union. It is my conclusion that in this instance Tartaglia was the more credible
witness and I so find.
The Respondent's officials and supervisors denied having any knowledge that the
employees were interested in a union until the morning of November 24, when the
UAW telegram, requesting recognition and a bargaining conference, arrived. From
the foregoing findings, however, it is my conclusion that the union activities of
the men were discussed at the supervisors' meeting held at Marshall's home on the
evening of November 21, that thereafter Weiss interrogated Vansant and Raymond
Katzmar, Jr., as to whether they had signed union cards, that at about the same
time Katzmar, Senior, accused Carter, another employee, of being a "ringleader"
in the organizational campaign, and that at various times during the course of this
week both Weiss and Katzmar, Senior, related to the men their own firm belief that
Marshall would close the plant if the Union succeeded in organizing the employees.
For several weeks prior to their discharge, Welch and Brown had been actively
engaged in an attempt to unionize the plant. In the week prior to his termination
Welch had been instrumental in getting some 15 of the employees to attend an
organizational meeting at the UAW hall. This was approximately half of the entire
work force at the Respondent's shop. At the same meeting the organizer for the
Autoworkers named Welch and Brown as his contact men for the balance of the
campaign to unionize the Respondent's employees. On the basis of the foregoing
facts, it is my conclusion, contrary to the Respondent's position, that by Novem-
ber 24, Marshall had learned of the prominent role which Welch and Brown were
playing in the attempt to organize his employees.
The Respondent contends that the sole reason for the dismissal of Brown and
Welch was their failure to return more promptly from the Cary plant on the day
in question. The two employees testified that they returned at approximately 3
p m. The testimony of Weiss and Katzmar, Senior, tends to establish that the
employees could not possibly have returned much sooner. Marshall testified that
they did not return until 3:15. If we accept the latter testimony as true, the
Respondent's position must be that these two employees were fired for being 15
minutes late on the 30-mile return journey from the Cary plant.
Both Welch and Brown had excellent work records. Welch had been hired in
1958 at a starting rate of $2.05. Thereafter he received approximately a dozen
merit increases, the last on July 20, 1961. At the time of his discharge he was
getting $2 80 per hour. Brown had a similar record He had been hired in 1959
at $2.25, had received 6 merit increases, the last on July 27, 1961, and at the time
of his termination was getting $2.75 per hour. There was no evidence that either
had ever been warned of impending dismissal. No supervisor offered any criticism
of their work. Although Marshall testified that for some time their work had been
"deteriorating" as he described it, he conceded that he had never admonished them
for any inadequacies and the extreme generality of his criticism offered at the
hearing demonstrated that it was an afterthought.
Even if Welch and Brown were 15 minutes late, on the date in question, as
Marshall testified, discharge would be a severe penalty in the absence of a history of
repeated violations of a rule on that subject. Here there was no contention that
either employee was 'an habitual offender in -this regard. Both had excellent work
records and, in fact, the Respondent offered no evidence of any such prior complaints
or of any complaints of any kind against either of these men. Finally, the absence
of any warning to the two employees that their discharge was imminent, by itself,
is of some significance. There is, of course, no requirement in the Act that an em-
ployer is bound to warn an employee of impending dismissal. On the other hand,
734-070-64-vol. 145^86
546 DECISION S OF NATIONAL LABOR RELATIONS BOARD
the absence of such a warning "is not natural." 3 In the light of the foregoing facts,
it is my conclusion, and I find, that the reason offered by the Respondent for the
abrupt termination of Welch and Brown was a pretext and that the real reason for
the severe penalty imposed on them was the fact they were the principal leaders of
the campaign to organize the Respondent's plant. Angwell Curtain Company, Inc
v. N.L.R.B., 192 F. 2d 899, 903 (C.A. 7); N.L.R.B. v. J. A. Booker d/b/a Atlantic
Stages, 180 F. 2d 727, 730 (C A. 5); N.L.R.B. v. English Mica Company, 195 F. 2d
986, 987 (C.A. 4); Hartsell Mills Company v. N.L.R.B., Ill F. 2d 291, 292-293
(C.A. 4). By such conduct the Respondent violated Section 8(a)(3) and (1)
of the Act. I further find that in the context of these discriminatory discharges
it was also a violation of Section 8(a)(1) of the Act by the Respondent, for
Superintendent Weiss to interrogate Vansant and Raymond Katzmar, Jr., as to
their union affiliations, and for both Weiss and Katzmar, Senior, to state to the
employees, as they did at various times during the week of November 20, and
thereafter, that Marshall would close the plant if the union campaign succeeded.
C. The withdrawal and subsequent restoration of employee benefits; contentions
of the parties and conclusions with respect thereto
As found above, by notices dated November 21, 22, and 24, 1961, Marshall an-
nounced to the employees that due to business losses which the Company had
incurred there would be no Christmas party, no holiday pay for Thanksgiving and
Christmas, no further guarantee of 40 hours work per week and, effective immediately,
the Profitmakers Club was abolished. On November 27, the Company announced
that it could no longer pay the cost of Blue Cross and Blue Shield insurance for its
employees. It was undisputed that thereafter, on about December 16, all of the
foregoing benefits were restored. The General Counsel contends that the with-
drawal of these employee benefits was not dictated by business reverses, but that it
was, rather, an unlawful maneuver by the Company that was designed to discourage
the employees from joining the Union. The Respondent denies any such motive
and avers that the announcements resulted solely from Marshall's serious concern
about the Company's losses.
The Profitmakers Club was a profit-sharing plan which the Respondent had
established several years earlier. According to Marshall, pursuant to this plan,
each quarter the Company set aside 25 percent of the net profits after taxes in the
the Profitmakers fund which was then distributed to the employees on a merit-rating
system. Marshall testified that he became very alarmed about the Company's
financial position over the weekend of November 18 and 19. According to the
Respondent's president, this was due to the fact that when, on November 2, he
received the financial statement for the quarterly period ending September 30 he
learned that only $1,504 was available for the Profitmakers, and further, that in
the weeks thereafter, on three separate contracts the Company lost a total of about
$13,000. Marshall testified that it was due solely to his concern about this financial
problem that he summoned his supervisors for the night meeting of November 21
and at that point told them about the need to effect every possible retrenchment
in expenditures. Marshall also testified that within a short time thereafter the
Company's economic position improved to the point that on December 16, he felt
justified in restoring all the benefits which had been withdrawn the preceding month.
On cross-examination Marshall conceded that the disappointing character of the
quarterly report received on November 2 was no surprise, since he was at all times
intimately acquainted with the Company's current financial position. He also con-
ceded that other quarters in the past fiscal year had been worse. Whereas at the
end of September, $1,504 was available for the Profitmakers, for the quarter ending
in March 1961 the latter received only $117, and in December 1960 it received
$1,352. In March 1960 only $1,175 was set aside. Marshall conceded that after
none of the other quarters did he feel impelled to cancel any employee benefits,
post any notices, or summon the supervisors into an emergency meeting. Although
the company president explained the subsequent restoration of employee benefits on
December 16 on the ground that business had improved, further cross-examination
disclosed that for the quarter ending December 31, 1961, the Respondent incurred
a net loss of about $150 and that the Profitmakers Club received nothing at all for
that period.
3 See E Anthony ct Sons v. N L R R , 163 F 2d 22, 26-27 (C.A D.C ), cert. denied 332
U S. 773: "All [ discruninatees] were discharged summarily without preliminary warning,
admonition or opportunity to change the act or practice complained of. Such action on
the part of an employer is not natural."
MARSHALL MAINTENANCE CORP. 547
Marshall testified that the supervisory meeting of November 21 was called solely
to consider the Company's financial emergency and that Immediately after that
meeting he posted the first notice to the employees on the need to abolish the
Profitmakers Club. The morning after that meeting, however, Superintendents
Weiss and Katzmar told the employees that the union campaign had been discussed
and that Marshall was determined to shut the plant if the Union was successful.
From this it is evident that it was only after the Union appeared on the scene
that Marshall became concerned about the employees' fringe benefits. In view of
the fact that the profit-sharing plan and other employee benefits were canceled
during the week of November 21 and then restored only a few weeks later when
from the quarterly fiscal report it appears that the Company's profit margin had not
improved, it is quite obvious that the withdrawal and subsequent restoration of these
benefits were unrelated to the Respondent's financial picture. In the context of the
discriminatory discharges of Welch and Brown, it is my conclusion, on the findings
set forth above, that Marshall's motivation for the announced abolition of the
Profitmakers Club and the other benefits stemmed from a desire to discourage the
employees from joining or assisting the union movement in his shop. For this
reason, I find that by this action the Respondent violated Section 8(a) (1) of the Act.
Bausch & Lomb v. N.L.R.B., 217 F. 2d 575, 576 (C.A. 2); N.L.R.B. v. Solo Cup
Co., 237 F. 2d 521, 523-524 (C.A. 8); N.L.R.B. v. Hazen & Jaeger Funeral Home,
203 F. 2d 807 (C.A. 9); Cummer-Graham Company, 90 NLRB 722, 723.
Case No. 22-RC-1438
Subsequent to its demand for recognition the Charging Party filed a petition with
the Regional Office seeking an election among the Respondent's employees. Marshall
Maintenance Corp., Case No. 22-RC-1438. Pursuant to a Stipulation for Certifica-
tion upon Consent Election, executed by the parties on January 5, 1962, an election
by secret ballot was conducted among all employees (except for the statutory ex-
clusions) in a production and maintenance unit at the Respondent's plant. The
consent agreement provided that eligibility to vote was to be determined by the
payroll list of employees on December 28, 1961. The tally of ballots showed that
there were approximately 24 eligible voters and that 24 ballots were cast, of which
11 were for the Union, 11 were against, and 2 were challenged. The two challenged
ballots were those of Welch and Brown. In a report on objections and challenged
ballots the Acting Regional Director for the Twenty-second Region recommended
that a hearing on the challenged ballots be consolidated with the unfair labor prac-
tice proceeding involving Welch and Brown since their eligibility to vote in the
election would be determined by the outcome of the latter. By order, dated March
12, 1962, the Board adopted the foregoing recommendation and ordered a heating
to resolve the issue raised by the challenged ballots. On March 15, 1962, the
Regional Director for the Twenty-second Region issued an order consolidating for
hearing Cases Nos. 22-CA-1113 and 22-RC-1438.
From the findings set forth above it is my conclusion, and I find, that had it not
been for the Respondent's discriminatory termination of Welch and Brown both
of these individuals would have been on the Respondent's payroll on the date in
question. The Act does not permit a wrongdoer to profit from the results of his un-
fair labor practices. Accordingly, I find that Welch and Brown were eligible to vote
in the election and will recommend that their challenged ballots be opened and
counted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action of the type conventionally ordered in such cases as provided in the
Recommended Order below, which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act.
Since I have found that on November 24, 1961, the Respondent discriminatorily
discharged John J. Welch and Paul Brown I will recommend that the Respondent
be required to offer them immediate and full reinstatement to their former or sub-
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially equivalent positions, without prejudice to their seniority or other rights,
and make them whole for any loss of pay suffered as a result of the discrimination
against them by payment to them of a sum of money equal to the amount they would
have earned from the date of their discriminatory termination to the date of the
Respondent's offer of reinstatement, less net interim earnings, to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Co.,
90, NLRB 289. Actual earnings in any particular quarter shall have no effect upon
the backpay liability for any other such period. I will also recommend that the
Respondent be required to preserve and make available to the Board, or its agents,
on request, payroll and other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, I will recommend
that it 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 in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of John J.
Welch and Paul Brown, thereby discouraging membership in the Union, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By terminating and withdrawing certain economic benefits from its employees,
including holiday pay and profit sharing, during the months of November and
December 1961, in order to discourage membership in, or assistance to, the Union,
the Respondent violated Section 8 (a) (1) 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, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. John J. Welch and Paul Brown were employees within the meaning of the
Act and eligible to vote at the time of the election held in Case No. 22-RC-1438.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Marshall Maintenance Corp., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees, by
discriminating in regard to their hire, tenure, or any other terms or conditions of
employment.
(b) Discouraging membership in, or assistance to, any labor organization by
withdrawing or withholding economic benefits.
(c) Interrogating employees concerning union affiliation or activities in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1).
(d) In any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization to form, join, or assist any
labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right is affected by the provisos in Section 8(a)(3) of
the Act.
2. Take the following affirmative action, which is necessary to effectuate the
policies of the Act:
(a) Offer to John J. Welch and Paul Brown immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole in the manner set
forth in the section of the Intermediate Report entitled, "The Remedy."
4 Since the parties stipulated that these benefits were restored to the employees on about
December 16, 1961 , the Recommended Order does not contain any affirmative provision In
this connection.
MARSHALL MAINTENANCE CORP . 549
(b) Preserve and, upon request , make available to the Board , or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due.
(c) Post at its plant at Trenton, New Jersey, copies of the attached notice marked
"Appendix." 5 Copies of such notice, to be furnished by the Regional Director for
the Twenty-second Region, shall, after being duly signed by an authorized representa-
tive of the Respondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-second Region, in writing,
within 20 days from the date of the receipt of this Intermediate Report what steps
the Respondent has taken to comply herewith.6
In Case No. 22-RC-1438 the Regional Director for the Twenty-second Region
will, upon suitable notice, open and count the challenged ballots of John J. Welch
and Paul Brown and issue a revised tally of ballots.
5If this Recommended Order be adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
In the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting the words "A Decree of the
United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order "
6 If this Recommended Order be adopted by the Board, this provision shall he modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in any labor organization by dis-
criminating in regard to hire, tenure of employment, or any other term or
condition of employment of any of our employees.
WE WILL NOT interrogate employees concerning union affiliation or activities
in a manner constituting interference , restraint, or coercion in violation of
Section 8 (a)( I) of the Act.
WE WILL NOT discourage membership in, or assistance to, any labor organi-
zation by withdrawing or withholding economic benefits.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to join any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such right
is affected by the proviso to Section 8 (a) (3) of the Act.
WE WILL offer to John J. Welch and Paul Brown immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges and make them whole for any
loss of pay suffered as a result of the discrimination against them.
MARSHALL MAINTENANCE CORP.,
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.
Employees may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.