McCormick Longmeadow Stone Co., Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1965

155 N.L.R.B. 577 (N.L.R.B. 1965)

McCORMICK LONGMEADOW STONE CO., INC. 577
McCormick Longmeadow Stone Co., Inc. and United Stone &
Allied Products Workers of America, AFL-CIO. Case No.
1-CA-4817. November 8, 1965
DECISION AND ORDER
On June 7, 1965, Trial Examiner James V. Constantine issued his
Decision 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 Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices. Thereafter, the
Respondent, the General Counsel, and the Charging Party each filed
exceptions to the Trial Examiner's Decision with supporting briefs.
The Respondent filed an answering brief to the exceptions filed by the
General Counsel and the Charging Party.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiners made
prior to and at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner only to the extent they are
consistent herewith.
The Trial Examiner found, and we agree, that the Respondent,
through certain of its supervisors, engaged in conduct which was vio-
lative of Section 8(a) (1) of the Act.
The Trial Examiner also found that employee Angelo Commisso was
lawfully discharged for cause because he had worked at another job in
the evening while protesting, at the same time, his inability to work for
Respondent during the day because of an injury to his left shoulder.
We cannot accept the Trial Examiner's finding in this regard.
Respondent is engaged in quarrying, fabricating, selling, and dis-
tributing stone articles and related products. Commisso was employed
initially as a laborer in February 1964. The following summer he
'In the absence of exceptions thereto , we adopt pro forma the Trial Examiner's con-
clusion that the statement of Foreman Keeping to employee Comstock , to the effect that
President Chipouras had received a letter about the Union and that Chipouras was angry
because he did not like unions , was protected by Section 8(c) of the Act when uttered
under the circumstances herein . Remarks which, standing by themselves may be protected
by Section 8(c), may be held unlawful when uttered in a context of coercion and restraint
created by the employer 's unfair labor practices. (See Savoy Leather Mfg. Co., 139 NLRB
425, 426.)
155 NLRB No. 53.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was advanced to crandle machine operator, the job he held at the time
of his discharge on November 20, 1964. His hours were from 7 a.m.
until 3 :30 p.m. Before working for Respondent he had held a part-
time janitor's job at nearby Bay Path Junior College from 5:30 to 8 :30
p.m. He continued working at his evening job after being hired by
Respondent. Respondent admits that its supervisors knew Commisso
was so employed.
Early in November a union organizing campaign was initiated in
which Commisso took an open and active part by passing out authori-
zation cards, attending meetings, and encouraging other employees to
do so. The Trial Examiner inferred that knowledge of Commisso's
union activity was acquired by Respondent as a result of its unlawful
interrogation of employees and in view of the small number of employ-
ees in Respondent's plant. In addition, Shop Superintendent Keep-
ing's statement to employee Comstock that Keeping, a supervisor, was
"pretty sure" of which employees were supporting the Union, further
illustrates the fact that -Respondent must have known of Commisso's
overt union activities. . -
It is also significant that the Trial Examiner found that, on Novem-,
ber 25, shortly after Commisso- was discharged, Foreman Brown, a
supervisor-, told employee Fields that he, -Brown, had heard that Com-
misso was the one who was trying to start the Union. Brown's state-
ment is additional evidence that Respondent had known of Commisso's
union activity on or before the date of his discharge. Further support
for this view may be found in the testimony of employee Woodward
who stated that, on December 21, the day of the, election, he overheard
Superintendent Keeping tell Foreman Brown that more heads would
roll before this thing was through?
Commisso's discharge came on the heels of the receipt by Respond-
ent President Chipouras, on November 19, of, a copy of the Union's
petition, According to Superintendent- Keeping, Chipouras was
angered by it. Keeping, 'for the first time, then informed-Chipouras
that Commisso had an evening job at Bay Path.
Commisso, after the injury to his shoulder, had been reporting in
daily at the plant. He had advised Chipouras that he would be able to
return to work the following Monday, Despite this, Chipouras felt
compelled, upon learning of Commisso's evening job, to find out
whether he was working on the evening of Thursday, the 19th. He
thereupon telephoned Bay Path and vas told that Commisso was work-
ing at the time, operating a floor buffer. Without further inquiry into
the circumstances, Chipouras, in his own words, became "very irate."
2 We reject the Trial Examiner 's discrediting Woodward's testimony in this regard.
The sole ground relied upon -by the Trial Examiner was that Woodward 's testimony was
not corroborated . - We do not regard this as sufficient reason for discrediting the testi-
mony of a witness . In any event , the record in the instant case does not establish that
other employees were present . Corroboration , therefore , may have been impossible.
McCORMICK LONGMEADOW STONE CO., INC. 579
Commisso was fired the next day, Chipouras having told him that a lot
of " " was "going around, and he was sick of it."
Chipouras had made no effort to ascertain the circumstances of Com-
misso's employment on Thursday evening. He did not inquire into the
comparative difficulty of operating a buffer and a crandling machine,
the time spent operating a buffer on the evening in question, or whether
Commisso had worked every evening that week or only the one. Fur-
ther, he was unable to identify his informant. We cannot agree with
the Trial Examiner 's finding that Respondent conducted a fair and
objective investigation of this matter. Respondent claimed, further,
that Commisso's absence caused it great inconvenience and hardship
because of the pressing need for finished machine-crandled stone for
use on a building project at Yale University. The facts belie such
urgency. Commisso would normally have returned to work the follow-
ing Monday; but, having been discharged the previous Friday, it
became necessary to train a new man to run the crandling machine,
resulting in a noticeable drop in production. Keeping had operated
Commisso's machine in the latter's absence. Shipping records intro-
duced by Respondent indicate that shipments were the same during the
week Keeping had operated the machine as they were the previous
week when Commisso had operated it.
Similarly, Respondent's contention that Commisso, despite the
injury to his left shoulder, could have operated the machine with one
hand, leaves us unconvinced that Commisso was a malingerer whose
immediate discharge was justified. Operation of the machine involved
placement of stones on the machine bed measuring up to 81/2 feet long
by 41/2 feet in width and ranging from 31/2 to 71/2 inches in depth. They
weighed 144 pounds per cubic foot; or approximately 3,700 pounds.
Although cranes and other employee helpers were used, when avail-
able, in placing the stones on the machine, we are satisfied from the
record that this work often required the operator to exert considerable
strength with both of his arms and hands.
In all of these circumstances, we find that the reason advanced by the
Respondent for Commisso's termination was a mere pretext; that
Respondent had knowledge of Commisso's union activity; 3 that Com-
misso was discharged because he had engaged in such activity; and that
the said discharge constituted a violation of Section 8(a) (3) and (1)
of the Act.
THE REMEDY
Having found that Angelo Commisso was illegally discharged, we
shall order that he be reinstated to his former or substantially equiva-
3 Member Jenkins would not rely on the small number of employees 'employed by the
Company in finding that the Respondent possessed knowledge of Commisso 's union
activities.
212-809-66-vol. 155-38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lent position, without loss of seniority or other rights and benefits. It
will be further ordered that Angelo Commisso shall be made whole for
any loss of earnings suffered by reason of Respondent's discrimination
against him, and that he shall be paid a sum of money equal to that
which he would have earned as wages from Respondent, from the date
of discharge to the date of reinstatement, or proper offer of reinstate-
ment, as the case may be, less his net earnings paid to him by any
employer or employers for whom he has worked or is working during
the approximate hours he had normally worked for Respondent. Such
backpay, if any, is to be computed in the manner established by F. W.
Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent
per annum computed in accordance with the formula set forth in Isis
Plumbing e6 Heating Co., 138 NLRB 716.
AMENDED CONCLUSIONS OF LAW
The following is inserted as Conclusion of Law No. 4:
"4. By discharging Angelo Commisso, Respondent has engaged in an
unfair labor practice within the meaning of Section 8(a) (3) and (1)
of the National Labor Relations Act, as amended."
Conclusion of Law No. 4 as set forth in the, Trial Examiner's Deci-
sion is redesignated as No. 5. Conclusion of Law No. 5 as set forth in
the Trial Examiner's Decision is deleted.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, McCormick Longmeadow Stone Co., Inc., East Long-
meadow, Massachusetts, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening employees with discharge or other economic re-
prisals if they join or assist the Union or select the Union as their
collective-bargaining representative.
(b) Coercively interrogating employees concerning their union
activities, desires, and membership.
(c) Creating the impression that the union activities of employees
have been or are under surveillance by telling them that the Respond-
ent knew the identity of those who attended a union meeting.
(d) Discouraging membership in the Union or any other labor orga-
nization by discharging, threatening to discharge, or otherwise dis-
criminating in regard to the hire or tenure of employment of any
employee.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed to them in Section 7
of the Act.
McCORMICK LONGMEADOW STONE CO., INC. 581
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Offer Angelo Commisso 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 suffered by him as described in the section of the Board's
Decision entitled "The Remedy."
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Post at its shops and quarry at East Longmeadow, Massachu-
setts, copies of the attached notice marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for Region 1,
shall, be posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are custom-
arily 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 Region 1, in writing, within
10 days from the receipt of this Order, what steps the Respondent has
taken to comply herewith.
4 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 "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
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, as amended, we hereby notify you that :
WE WILL NOT threaten employees with discharge or other eco-
nomic reprisals if they join or assist United Stone & Allied Prod-
ucts Workers of America, AFL-CIO, or select said Union as their
collective-bargaining representative.
WE WILL NOT coercively interrogate our employees concerning
their union activities, desires, or sympathies.
WE WILL NOT create the impression that the union activities of
our employees have been or are under surveillance by us by telling
them that we know which of our employees attend meetings of
United Stone & Allied Products Workers of America, AFL-CIO.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce any employee in the exercise of his rights under Section 7
of the National Labor Relations Act, as amended.
WE WILL NOT discharge, threaten to discharge, or otherwise
unlawfully discriminate against any employee because of his activ-
ities on behalf of a Union.
WE WILL offer Angelo Commisso immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to any seniority or other rights and privileges, and make
him whole for any loss of earnings he may have sustained by reason
of his unlawful discharge.
All our employees are free to become or remain, and to refrain from
becoming or remaining, members of United Stone & Allied Products
Workers of America, AFL-CIO, or any other labor organization.
MCCORMICK LONGMEADOW STONE CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement 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.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, Boston Five Cents Savings Bank Building, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case. It was initiated by a charge filed on
December 2 and an amended charge filed on December 16, 1964,1 by United Stone
& Allied Products Workers of America, AFL-CIO, herein called the Union. On
January 15, 1965, the General Counsel of the National Labor Relations Board, by
the Regional Director for Region 1 (Boston, Massachusetts), issued his complaint,
based on said charges , against McCormick Longmeadow Stone Co., Inc., herein
called the Company or the Respondent . In substance the complaint alleges that
Respondent engaged in conduct violating Section 8 ( a)(1) and ( 3), and that such
conduct affects commerce within the meaning of Section 2(6) and ( 7), of the
National Labor Relations Act, as amended, herein called the Act. Respondent has
answered admitting some facts but denying that any unfair labor practices were
committed.
Pursuant to due notice, this case came on to be heard and was tried before Trial
Examiner James V. Constantine on March 22 , 23, and 24, at Springfield , Massachu-
setts. All parties were represented at and participated in the trial and were given
' All dates herein refer to 1964 except where otherwise specified.
McCORMICK LONGMEADOW STONE CO., INC. 583
full opportunity to adduce evidence, examine and cross-examine witnesses, present
oral argument, and submit briefs. Respondent and the General Counsel have filed
briefs. Counsel for Respondent argued orally at the close of the case. Respondent's
separate motions (1) to dismiss before any evidence was received, and (2) for
specific information and production of documents, were denied. Its motions to dis-
miss when the General Counsel rested were also denied. Respondent's request that
I take a view was denied.
Upon the entire record in this case, and from my observation of the witness, I make
the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
The Company, a Massachusetts corporation, is engaged at East Longmeadow,2
Massachusetts, in quarrying, fabricating, selling, and distributing stone articles and
related products. Annually Respondent ships goods valued in excess of $50,000 to,
.and receives goods valued in excess of $50,000 from, points located outside the Com-
monwealth of Massachusetts. I find that Respondent 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 to assert jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
United Stone & Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
This case involves one alleged discriminatory discharge and some acts of alleged
interference, restraint, and coercion.
A. Interference, restraint, and coercion
1. General Counsel's evidence
About 2 days after employee James Fields was hired on November 12, 1964, Angelo
Commisso asked him to help Commisso start a union. Shortly before Thanksgiving,
Coley Brown, whom I find to be a supervisor embraced by the definition thereof in
Section 2(11) of the Act, told Fields a "lot of cards were being passed around the
shop," asked Fields if he had received a union card, and, if he had, not to sign it.
Brown also obtained permission to come to the Fields home to talk to Fields. But
Brown never did come. During the conversation, Fields asked Brown why Com-
niisso was fired. Brown replied he did not know for sure but he "heard that
[Commisso] was the one who was trying to start the Union." Brown did not mention
where he heard this.
About December 1964, Supervisor Brown asked Fields if the Union had held a
meeting the night before. Fields replied in the negative. Thereupon Brown said
that Chipouras "knew who all were at the Union meeting," but Brown stated that he,
Brown, did not know the source of Chipouras' information. Thereupon Fields con-
ceded that "we had a Union meeting."
Employee Donald Woodward was hired in June 1964 One Friday in December
when he cashed his paycheck and was having lunch at Big Ben's restaurant, Super-
visor Keeping "sat down next to us." Keeping then asked Woodward if he attended
a union meeting the night before, sought to ascertain Woodward's view on the Union,
told Woodward that he, Keeping, was pretty sure of which employees in Woodward's
department were supporting the Union, and asked what Woodward thought the
Union was trying to gain.
On the day of the election, December 21, but after the voting had finished, Wood-
ward overheard a conversation between Supervisors Keeping and Brown. In it
Keeping said that "more heads would roll before this thing was through "
Employee Richard S. Comstock was hired by the Company in 1960 to run the
gang saw During this time he also held another job with another employer as
superintendent of two apartment buildings. Respondent knew about this other job.
He sometimes took off without calling in.
2In the complaint East Longmeadow Is alleged to be located in Springfield County. My
understanding Is that It is situated in Hampden County and that there is no Springfield
County in Massachusetts.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the second week in November 1964, Paul Keeping, his foreman, came to
Comstock at the latter's machine. Telling Comstock that owner Chipouras had
received "a letter about the union" from someone not further identified, Keeping said
that Chipouras "was mad on account of the union because he don't like unions."
Continuing, Keeping warned Comstock that "there is going to be a lot of firing going
on and privileges taken away and a lot of layoffs and changes made in the shop."
Two or three days later Keeping again spoke to Comstock and told Comstock that
Chipouras had received a letter "from Boston ." In this conversation Keeping said,
"I can 't understand what you guys think you are going to gain by the union," and
asked Comstock why he wanted to join the Union. Comstock replied it would be
an improvement over "what we got right now," and proceeded to argue that, although
the men wanted a union, they were "not trying to break the Company." Thereupon
Keeping asked, "Why did you have a meeting over James Noonan's house?" Com-
stock replied that he did not know where Noonan lived and added, "For your informa-
tion, we had the meeting right in town." Then Keeping said that Chipouras "don't
like unions."
According to Comstock, who cuts slabs, among other things, for crandling, he saw
5 or 6 piles of stones, each containing 10 stones, in the shop stockpile (inside the
plant ) during the week of November 16, 1964. These consisted of both unfinished
stone awaiting crandling as well as stones already crandled by machine. He also
observed "a good 30" machine crandled slabs outside the plant.
Daniel Goyette was hired by Respondent in August 1964. Goyette overheard the
statement of Supervisor Keeping to employee Comstock, recited above, that "if union
talk kept going on, there was going to be a lot of firing going on."
In October Goyette stayed out of work for three consecutive Mondays without
calling in. He was reprimanded for failing to call only on the second of those Mon-
days. He also missed two Mondays since then without calling it, but nothing was
said or done about it by Respondent.
2. Respondent's evidence
About Wednesday, November 18, Superintendent Keeping spoke to employee
Richard Comstock. Keeping denies that he mentioned that Chipouras had received
a letter concerning the Union; or that if the employees selected a union a lot of
privileges would be taken away, a lot of firings and layoffs would take place, and
that changes would be made in the shop. In fact, Keeping denied discussing the
Union at all with Comstock.
Keeping further testified that he often ate lunch at Big Ben's restaurant , including
an occasion on a Friday in December when he sat on a counterstool next to employee
Donald Woodward. Big Ben's is a minute or two away from the plant by foot, and
both company officials and employees eat there often Although he talked to Wood-
ward on that Friday, Keeping denies that he asked about the union meeting the
previous evening, or whether Woodward attended it, or what Woodward's views
were about the Union, or what the employees expected to gain by having a union.
In fact Keeping denies referring to the Union at all in this conversation.
Keeping further denies that he had any conversation with Supervisor Coley Brown
on December 21, and denies that he ever told Coley Brown or anyone else that
"more heads would roll before this thing was through."
Coley Brown has been foreman of Respondent's quarry since 1962. On the day
before Thanksgiving, 1964, he went to the shop as part of his duties While there
he spoke to employee James Fields. But Brown denies that he then or at any other
time asked Fields whether Fields received a union card, or told Fields to refuse to
sign it if he did, or requested permission to come to Fields' home to talk about the
Union,3 and insists that Fields never asked him why Commisso was fired. Further,
Brown denied that on December 11 or any other time he asked Fields whether a
union meeting was held the day before, or that he told Fields that owner Chipouras
knew anything about a union meeting. Moreover, Brown testified that Chipouras
did not tell him about a union meeting although Chipouras about December 19 did
ask him if he had heard anything about the Union.
Supervisor Keeping insists that he spoke to employee Goyette after each of the
latter's absences and that each time Goyette explained that he had been sick, that
he told Goyette that Respondent had a rule which required notice of absences; and
demanded that Goyette observe that rule. But Keeping also testified that Goyette
did call Respondent 's office each Monday he was out and stated he would not be
in that day.
s Fields testified only that Brown asked to come to his home, without mentioning why.
McCORMICK LONGMEADOW STONE CO., INC. 585
Concluding Findings as to Interference, Restraint, and Coercion
It is my opinion, and I find, that Supervisors Keeping and Brown engaged in anti-
union conduct,4 that some of this conduct transgresses Section 8(a)(1) of the Act,
and that all of such conduct did not occur until after Respondent became apprised that
the Union was organizing its employees. Thus I find that Superintendent Keeping:
1. About the second week in November told employee Comstock that owner
Chipouras had received a letter about the Union, that Chipouras was mad on account
of it because Chipouras did not like unions, and that there would be a lot of firings,
layoffs, changes, and revocation of privileges in the shop. I do not credit Keeping's
denial thereof for the reasons expressed below.
That part of the above statement by Keeping referring to the receipt of the letter
and Chipouras' being mad about it and to Chipouras' dislike of unions is protected
by Section 8(c) of the Act and the free speech guarantees set forth in the Constitu-
tion. Hence they do not violate the Act. The fact that such remarks were uttered
in a setting of other statements which have been found to amount to unfair labor
practices does not remove them from the shelter of Section 8(c) and the Constitution;
nor do they thereby become converted into unfair labor practices. But see N.L.R.B.
v. Zelrich Co., 344 F. 2d 1011 (C.A. 5). Nothing in the Constitution provides that
rights granted therein are lost by lawbreakers, or that such rights belong only to
those who obey the law; nor has the Supreme Court ever so held.5 The exercise of
constitutional rights is not denied by that document to those who violate the law.
Although Savoy Leather Mfg. Corp., 139 NLRB 425, is distinguishable, it seems to
say that expressions otherwise protected by law are forefeited when "given in a con-
text of threats of possible recrimination."
However, I find that the remainder of Keeping's statement manifestly constitutes
forbidden interference, restraint, and coercion because patently it contains threats of
reprisals.
2. Two or three days later Keeping told employee Comstock that Chipouras had
received a letter from Boston, stated that he, Keeping, could not understand what the
men would gain by having a Union, and asked why Comstock wanted to join the
Union. I do not credit Keeping's denials. These utterances do not threaten reprisals.
Hence I find they are protectetd by Section 8(c) of the Act. The Board has held
that somewhat similar statements were not obnoxious to the Act. Willard Bronze
Company, 148 NLRB 1686 In this same conversation Keeping asked Comstock why
a union meeting was held at Noonan's house, and added that Chipouras did not like
unions. I do not credit Keeping's testimony inconsistent therewith. The statement
that Chipouras did not like unions finds asylum in Section 8(c) of the Act and the
Constitution; but the inquiry as to the union meeting not only constitutes unlawful
interrogation, because not made in connection with a legitimate cause or purpose
(Johnnie's Poultry Co., 146 NLRB 770, 774-775, reversed on other grounds 344 F.
2d 617 (C.A. 8) ), but also gave an impression that Respondent had union meetings
under surveillance. This type of surveillance is illegal under the Act. N.L.R.B. v.
Prince Macaroni Manufacturing Company, 329 F. 2d 803, 806 (C.A. 1); Moore's
Seafood Products, Inc., 152 NLRB 683. Keeping's denial is not credited.
3. On a Friday in December Keeping asked employee Woodward if he had
attended a union meeting the night before, asked Woodward's views about the
Union, and what Woodward thought the Union was trying to gain, and mentioned
that he, Keeping, was pretty sure of which employees were supporting the Union.
I reject Keeping's testimony to the contrary. Except for the inquiry as to what the
Union was trying to gain, which is immunized by Section 8(c) of the Act (Willard
Bronze Co., 148 NLRB 1686), this conversation patently is coercive, and I so find,
since no lawful reason is shown for its utterance. Johnnie's Poultry Co., 146 NLRB
* It is not an unfair labor practice to dislike unions or to express opposition thereto to
employees. N.LRB. v Threads, Iite, 308 F. 2d 1, 8 (C A. 4).
5 See New York Times Co. v. Sullivan, 376 U.S 254, 271, 273; Thomas v. Collins, Sheriff,
323 U.S. 516, 537-538, and a concurring opinion at 547; Milkwagon Drivers Union, etc. v.
Meadowmoor Dairies, Inc, 312 U.S. 287, 296. This is not to say that utterances other-
wise protected as free speech must be entirely disregarded. Such utterances may be
considered in determining whether the whole course of conduct was aimed at achieving
objectives proscribed by the Act. N.L R B. v. Virginia Electric and Power Company, 314
U.S. 469. Thus it is permissible to utilize constitutionally protected speech in appraising
other conduct; but it is another thing to hold that such free speech constitutes an unfair
labor practice. Accordingly, I have considered these sheltered expressions in arriving at
subsidiary and ultimate findings herein, but I have not recommended that Respondent be
enjoined from uttering them if he does so in a setting disassociated from unfair labor
practices.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
770, 774-775. See N.L.R.B. v. Mid-West Towel and Linen Service, Inc., 339 F. 2d
958, 960-961 (C.A. 7); N.L.R.B. v. Prince Macaroni Manufacturing Company, 329
F. 2d 803, 806 (C.A. 1). But see N.L.R.B. V. The Lorben Corp., 345 F. 2d 346
(C.A. 2).
As stated above, I have not credited Keeping's testimony insofar as it is not con-
sonant with the foregoing findings of fact. This declination is based not only upon
the demeanor of the witnesses involved, but also upon the fact, which I hereby find,
that employee Goyette, whom I credit, confirms part of Comstock's evidence; i.e.,
Goyette overheard Keeping say that if union talk persisted at the plant, a lot of
firing would take place.
Further, I find that Supervisor Brown:
1. About the day before Thanksgiving told employee Fields that a lot of cards
were being passed around the shop, asked Fields if he had received a union card,
and, if he had, not to sign it. This conversation in my opinion is coercive, and I so
find. For reasons hereafter set forth, I do not accept Brown's contrary testimony.
Further, I find that this conversation exceeds the bounds of Section 8(c) of the Act
for two reasons; one, the statement that cards were being distributed implies that
union activity was under surveillance, which is coercive; and, two, the inquiry as to
whether Fields had received a union card has not been demonstrated to have been
asked for a legitimate purpose pursuant to the rule promulgated in Johnnie's Poultry
Co., 146 NLRB 770, 774-775. Accordingly, I find that this talk incurs Section
8(a)(1) liability. In this conversation Brown also asked permission to come to
the home of Fields. Since the purpose thereof is left to surmise on the record before
me, I find that this request is innocuous and, therefore, does not offend the Act.
In this conversation Brown also said that he heard that Commisso was the one
who was trying to start the Union, and that this could have been the reason for
Commisso's discharge. I find that this statement carries an implication of reprisal
for union activity, so that it is coercive.
2. About December, Supervisor Brown asked employee Fields if the Union had
held a meeting the night before. This is coercive as it does not appear to have been
asked for a legitimate objective. In this same conversation Brown stated that owner
Chipouras knew the identity of those who attended that meeting. This is coercive
since it created the impression and reasonably led Fields to believe that a union
meeting had been held under surveillance by Respondent. N.L.R.B. v. Prince
Macaroni Manufacturing Company, 329 F. 2d 803, 806 (C.A. 1).
3. On or about December 21, employee Woodward claims he heard Superintendent
Keeping tell Supervisor Brown that more heads would roll when this thing was
through. Although other employees were in the vicinity, none of them was put on
the stand to confirm Woodward. Hence I do not credit him. In any event I find
these words are too indefinite and ambiguous to be reasonably correlated to the
union movement in the plant. Accordingly, I find that even if these words were
delivered, they do not amount to interference, restraint, or coercion under Section
8(a)( I) of the Act, as they do not connote reprisals for union activity.
B. The discharge of Angelo Commisso
1. General Counsel's evidence
This employee was hired by Respondent in February 1964 as a laborer at $1.75
an hour. In July or August he became a crandle machine operator at $1.90 an hour.
His regular hours were from 7 a in to 3.30 p.m., but he "usually" worked overtime
1 hour on weekdays and 5 to 8 hours on Saturday. While employed by Respondent,
Commisso also worked for Bay Path Junior College each year from September to
May or June; i.e , during the school year. He obtained this latter job some time in
1963. At Bay Path, where he was employed from 5.30 to 8.30 p.m., Mondays
through Friday, he performed janitorial work, dusting, emptying baskets, and buffing
the floor to obtain additional income. Commisso notified his foreman, Paul Keeping,
whom I find to be a supervisor under Section 2(11) of the Act, of his other duties
at Bay Path.
About November 9, Commisso signed an authorization card of "American Fed-
eration of Labor and Congress of Industrial Organizations and All Affiliated Organiza-
tions." In addition, he handed out or distributed union cards during breaks at work
to fellow employees Dudley and Fields about that time, and asked them and another
employee, Bruce Sherman, to join the Union.
On his way home from work at Respondent's plant on November 16 Commisso
was involved in an automobile accident. After making a report thereof at the
police station, Commisso proceeded to Bay Path where he informed the latter he
would be unable to work that evening because of injuries to his left shoulder received
McCORMICK LONGMEADOW STONE CO., INC. 587
in the accident. The next morning Commisso called Respondent's shop by telephone 6
to state that the accident would keep him away from work. Mrs. Chipouras answered
the phone. I find that Strati Chipouras, her husband, is the owner, president, and
treasurer of the Company and a supervisor within the meaning of Section 2(11) of
the Act. Following the above call, Strati Chipouras called Commisso later in the
same day to ascertain whether Commisso would remain out for any length of time,
stating that a replacement would be necessary if this were the fact. Commisso
replied that he did not think he would be away from work for more than that week
but, if so, promised to call again as to when he expected to return. That evening
Commisso visited his doctor (Kanski).
On Wednesday, November 18, pursuant to Doctor Kanski's direction the day
before, Commisso went to other doctors for X-rays of his shoulder. These latter
reported to him that no broken bones were disclosed by the films and that they would
send a report to Doctor Kanski. Later that morning Commisso went to the Com-
pany's plant where he informed Foreman Paul Keeping of the results of the X-rays,
that he was scheduled to see Dr. Kanski the next day, Thursday, and that he thought
he would be back at work the following Monday.
On Thursday, November 19, Commisso went to Dr. Kanski's office where the
doctor confirmed the results of the X-rays, diagnosed the injuries as bruises, and
authorized Commisso to go back to work the Monday following "if it didn't bother
me." From there Commisso went to the plant and reported to Foreman Keeping
Doctor Kanski's conversation. Then Commisso asked if there was enough work for
his machine when he returned on Monday. Keeping replied that he had been operat-
ing it, while also supervising the shop, during Commisso's absence. After this Com-
misso spoke to employee Bruce Sherman, a truckdriver, asking Sherman what he
thought of the Union and inviting Sherman to come to the union meeting that night.
At 5 p.m. that evening, November 19, Commisso went to work on his night job at
Bay Path, completing his duties there about 8.30 or 9 pm. His work there that
evening consisted of acting as a replacement for 1 of the 13 regular janitors who
may be out.7 This evening he alerted the Bay Path foreman of the bad shoulder;
the latter instructed him to do what he could. As a result Commisso was able to
empty baskets, dust, and operate the buffing machine (weighing between 50 and 70
pounds) which buffed the floors. In running the buffer Commisso used only one
and "most of the time." When he finished at Bay Path, Commisso attended a
union meeting.
On the next day, Friday, November 20, Commisso went to the plant to collect his
pay from Foreman Keeping. However, instead of paying him, Keeping instructed
Commisso to see owner Chipouras in the office. Thereupon Chipouras "pulled [Com-
misso's) file," handed Commisso his paycheck and a "white slip," and notified
Commisso that Commisso was all done working for the Company. When Commisso
requested a reason for his discharge, Chipouras answered that "there was a letter
there explaining it," at the same time handing Commisso a letter. This instrument,
dated November 20, and signed by Chipouras as Respondent's treasurer, in material
part provides, "Dear Angelo: Because of your failure to report for work while at the
same time working elsewhere your services as an employee of this company are
terminated effective immediately." (General Counsel's Exhibit No. 3). In response
to a question by Commisso as to why he was discharged, Chipouras replied that
"there was a lot of crap going around" and he was "sick of it." When Commisso
insisted he had not done anything, Chipouras replied that Commisso had been "some
place else" running a buffer when he "could have been" at the shop. Protesting that
be was not receiving sick pay from Respondent, Commisso justified his nightwork by
pointing out that it was light work compared with his job as a crandler and that he
needed the money. Chipouras added that someone had seen Commisso running the
buffer at Bay Path and that, if Commisso could do that, he could work at the shop.
Commisso again defended himself by remarking that the buffing work was light and
that he needed "a few dollars on the side because I wasn't getting any sick pay."
Further, Commisso begged to be retained by Respondent because, since his wife was
pregnant, he did not want to lose insurance (which apparently was an appurtenance of
his employment by the Company) which coveied maternity expenses in an undis-
closed amount. But Chipouras did not recede from his position in firing Commisso.
Commisso's work may be described as follows. Stones are cut up into slabs weigh-
ing from 200 to 500 pounds by other employees. Then he straps the slabs and
causes them to be transported to and on a bed of his machine by overhead cranes
which lift the slabs by the straps. After he removes the straps, Commisso pries the
9 The shop phone and the home phone of Chipouras are on the same line.
7 When no regular janitor is off or otherwise absent, Commisso washes windows.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stone on the machine bed by means of a steel crowbar, so as to remove blocks under
the stone. When the blocks ale out, Commisso lines up and levels the stone, using a
crowbar as an aid. Then the machine passes over the stone, during which time it is
crandled, i e., the surface of the slab is roughened. Following the crandhng Com-
misso places blocks under the slab, again using a crowbar for this operation, and
causes the crane to take it away. Often, if not always, another employee handles the
block while Commisso is manipulating the crowbar. If the slab is over 8 feet long,
Commisso uses a sledge hammer "to break up the end." He crandles 5 to 10 slabs a
day. After a slab is machine crandled it is then hand crandled by other employees.
After the slab has been placed in position on a bed, the crandling machine (a
revolving cylinder containing teeth) moves over the stone. The bed on which the
stone rests remains stationery. To activate the crandler up and down, a wheel must
be moved by hand, and to have the crandler proceed back and forth along the stone
on the bed another wheel must be adjusted by hand.
The crandling machine is a new machine and the only one of its type in the plant
if not in the world. Respondent in July or August asked Commisso, who at that time
was a laborer, if he would like to learn to run it. When Commisso answered affirma-
tively, he was assigned to this machine. Only Foreman Keeping is also qualified to
run it. Commisso was trained by Foreman Paul Keeping, a process which required
a week or two.
2. Respondent's evidence
Paul Keeping is superintendent of Respondent's saw shop. In his shop stone blocks
are brought in from the quarry, are cut to size, and then machine crandled for another
of Respondent's shops, where they are hand crandled and finished. He briefly
described the work which Commisso performed, which corresponded to that narrated
by Commisso. However, Keeping testified that a crandle machine operator could
do all work, including the use of the crowbar, with one hand, and that, if two hands
were needed, the operator could always obtain assistance from any man on the floor
or from Keeping merely for the asking. President and owner Chipouras confirmed
this.
Beginning in August 1964, the Company was engaged in supplying Yale University
with the exterior stone for a 22-story building and requiring about 70,000 cubic feet
of stone. This job depended on the crandler, for this stone had to be crandled. More-
over, if the crandler machine was idled, 10 or 15 men in the plant of the Company
who performed the next operation of hand crandling would be sent home for want
of work. About 25 to 30 slabs were needed for them daily.
On Tuesday morning, November 17, Commisso came to the plant and told Super-
intendent Keeping that an accident had thrown out his shoulder and arm and that
he had to go to the doctor for X-rays. Keeping thereupon asked Commisso to inform
him when he would return to work because the operation of the crandler was "very
vital and we needed the stone for the [Yale] job." That day Keeping operated the
crandling machine, as no other employee (besides Commisso) was competent to run
it. Another employee was trained to run it shortly after Commisso's discharge.
The next day, Wednesday, Commisso again came in about 1 p m. and informed
Keeping that the X-rays had been taken, that they revealed nothing broken, and that
he would probably be back at work the following Monday. Keeping again "impressed"
Commisso that "the stone coming off that machine was very necessary" and that
Keeping was put to an inconvenience in running Commisso's machine and running the
shop at the same time. Keeping ran the machine again that day and the following 2
days; Le, Thursday and Friday Keeping did not hear from Commisso on Thursday,
November 19. On Friday, November 20, Commisso came in to collect his pay
about 11:30 a.m. from Keeping, but Keeping instructed him to see owner Chipouras
in the office.
Keeping testified that there was special urgency to fulfill the Yale order on time
and that he had been instructed to produce stone therefor as fast as he could because
construction of the Yale building had progressed to the stage where stone from
Respondent could be installed. Although Respondent does stockpile stone, Keeping
testified that it had no "excess inventory for the Yale job that would have warranted
stopping the crandling machine." Of the 5 or 6 piles of 10 stones each mentioned by
employee Comstock, only 2 piles were available for the Yale job, and the remainder
were unfit therefor either because of "cracks" or "for some reason . wouldn't make
it." These other piles were maintained to be utilized when other jobs "needed certain
stones."
On Thursday, November 19, Keeping reported to owner Chipouras that Commisso
had once told him about Commisso's part-time job at Bay Path. (Keeping knew
about this other job since about February or March 1964, but he was "not particularly
concerned" about it.) Chipouras thereupon directed Keeping to ascertain whether
McCORMICK LONGMEADOW STONE CO., INC. 589
'Commisso worked elsewhere that week. In addition Chipouras telephoned Bay Path
about 8 p.m. and learned that Commisso was at that moment operating a buffing
machine.
On November 20 owner Chipuoras instructed Supervisor Keeping to tell Commisso,
when he came in, that Chipouras wanted to see him. Then Chipouras called his
counsel, Arthur Marshall, to inform Marshall that Chipouras was going to discharge
Commisso. Soon after this, when Commisso came to the company office, Chipouras
,discharged him. When Commisso asked why, Chipouras assigned as the reason the
failure of Commisso to report for work when his work was needed for the Company
while he was working elsewhere and also handed a letter to Commisso. See General
Counsel's Exhibit No. 3. Chipouras denies that he also said a lot of "crap" was
going around and that he was sick of it.
Chipouras further testified that he first knew of union activity at the plant on
November 19, when he received a copy of a petition for an election, that at the RC
hearing thereon he first learned that Commisso had distributed two union cards, and
that on December 9 he first learned of a union meeting from a union handbill placed
,on his desk by someone.
Concluding Findings as to the Discharge of Angelo Commisso
It is my opinion, and I find, that on the record unfolded in this case Angelo Com-
misso was discharged for cause, that he was not fired for union or other activity safe-
guarded by the Act, and that the reason assigned by Respondent for the discharge
is not a pretext or cloak to mask or disguise a discharge for union or other protected
activity. Before setting forth the reasons for the foregoing conclusions, it is desirable
to dispose of two defenses advanced by Respondent's answer which in my opinion
are not well taken, and I so find. (1) Respondent contends that one reason for
,Commisso's termination is "his failure to report for work as scheduled." But Com-
misso did report to the plant to explain his absence without complaint from his
employer; in fact the employer acquiesced therein. Hence this aspect of the defense
lacks merit. (2) Respondent's answer also urges that the discharge in part may be
attributed to Commisso's "failure to notify the Respondent in advance of his intended
absence from work." But the Respondent's own evidence, as well as the General
Counsel's, definitely establishes that Commisso did communicate with Respondent
regularly to assert that he would be absent. Accordingly, I find that this segment of
the answer has not been established.
But I find that Commisso's employment was concluded by Respondent because he
worked at Bay Path in the evening while at the same time protesting that he was
unable to work for Respondent, and that Commisso was so informed And I further
find that this reason has not been seized upon by Respondent to justify an otherwise
illegal discharge for union or other conduct sheltered by the Act These ultimate
conclusions are derived from the entire record and the following factors, which I find
as subsidiary facts-
1 No appreciable time elapsed between Respondent's acquiring knowledge of
Commisso's resumption of working at night on November 19 and his subsequent
discharge. After his injury of November 16 Commisso returned to his Bay Path
job on the evening of November 19. Chipouras first learned of this on that evening
and discharged Commisso therefor on November 20 when the latter came to the shop
to pick up his paycheck. Thus there exists a correlation between the resumption of
nightwoik and the discharge, while there is absent a timing between the union activi-
ties (which occurred several days before) and the firing. Thus it is significant that
the discharge coincides with actual dereliction of duty by Commisso.
In this connection I find that Chipouras conducted a fair and objective investigation
to ascertain whether Commisso engaged in work at Bay Path on November 19, not-
withstanding that the investigation did not include affording Commisso an opportunity
to deny such employment. See Fort Smith Broadcasting Co. v. N.L R.B., 341 F. 2d
874, 878 (C.A. 8). I recognize, of course, that intentionally shunning an impartial
inquiry into an employee's alleged shortcomings is evidence of a discriminatory intent.
Illinois Tool Works, 61 NLRB 1129, 1132. See Shell Oil Company v. N L R B., 128
F. 2d 206, 207 (C.A. 5).
2. The reasons given for the discharge are not specious and do not suddenly resur-
rect past misconduct which had been overlooked or condoned in the past. Hence
Commisso was terminated for a fresh default. On this facet of the case I do not
weigh the evidence regarding the merits of the discharge. For I am not required to
decide whether the facts justify the discharge, because this is not an arbitration pro-
ceeding This situation often confronts arbitrators. See Coin Products. Co., 44 LA
127. Rather, the question is whether the employer's actual reason for the termination
is illegal. It is a maxim of the law that, as long as the actual reason is not discrimi-
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
natory, the discharge must be upheld as having been made for cause, regardless of its
soundness. N.L.R.B. v. Prince Macaroni Mfg. Co., supra, 809; Fort Smith Broad-
casting Co. v. N.L.R.B., 341 F. 2d 874 (C.A. 8). The extent of discipline is lodged
with the employer and may not be reviewed in this proceeding. N.L.R.B. v. Ace
Comb Co., et al., 342 F. 2d 841 (C.A. 8). Hence neither the Trial Examiner nor the
Board may examine the wisdom or business judgment of an employer who is
prompted in good faith by nondiscriminatory motives in releasing an employee.
N.L.R.B. v. United Parcel Service, Inc., 317 F. 2d 912, 914 (C.A. 1); Thurston Motor
Lines, 149 NLRB 1368.
Nor does the fact that owner Chipouras complained to Commisso that a lot of
"crap" was "going around" lead to the conclusion, as contended by the General
Counsel, that "this statement undoubtedly referred to the Union." Rather, I find
that "crap" is too conjectural to be construed as union activity; it can just as well
allude to Commisso's working for Bay Path during the time he claimed he was
incapacitated for work.
3. As contended by the General Counsel, I find that Respondent entertained hos-
tility toward the Union, as more fully narrated above. But this alone is inadequate to
show that the discharge of Commisso is attributable to such union animus. N.L.R.B.
v. Little Rock Downtowner, Inc., 341 F. 2d 1020, 1021 (C.A. 8). It must additionally
be established that such antipathy to unions is proximately linked with the unfair
labor practice in issue. N.L.R.B. v. Citizens-News Company, 134 F. 2d 970, 974
(C.A. 9); Wellington Mill Division, West Point Manufacturing Co. v. N.L.R B., 330
F. 2d 579, 586-587 (C.A. 4); Lasko Metal Products, Inc., 148 NLRB 976 I am
unable to find that the discharge here is related to the unfair labor practices hereto-
fore found or to Respondent's union animus, especially since Commisso was never
questioned or approached about his union activities and such activities were not
mentioned or referred to in conversations between supervisors and employees prior
to the discharge . In this connection I have been guided by the familiar principle that
"Engaging in protected, concerted activity ... does not perforce immunize employees
against discharge for legitimate reasons." Mitchell Transport, Inc., 152 NLRB 122.
Accord: Pioneer Photo Engraving, Inc., 142 NLRB 1099, 1101; Metals Engineering
Corporation, 148 NLRB 88; Wellington Mill v. N.L.R.B., supra.
4. While the record is devoid of specific evidence of Respondent's knowledge as to
Commisso's union activities, I infer that, because of the other unfair labor practices
and the small number of employees in Respondent's plant, Respondent acquired
knowledge of Commisso's adherence to and actions on behalf of the Union. Ameri-
can Grinding & Machine Co., 150 NLRB 1357; New French Benzol Cleaners and
Laundry, Inc., 139 NLRB 1176, 1179; Tru-Line Metal Products Company, et al., 138
NLRB 964, 966; Angwell Curtain Company Inc. v. N.L.R B., 192 F. 2d 899, 903
(C.A. 7). But see N.L.R.B. v. Falls City Creamery Company, 207 F. 2d 820, 829
(C.A. 8). I do not regard the statement of Supervisor Brown on November 25 that
he "heard that [Commisso] was the one who was trying to start the Union" as
affirmative evidence that Respondent had knowledge of Commisso's activities on or
before November 20.
5. I credit Chipouras that he discharged Commisso for working at Bay Path while
incapacitated but at the same time refusing to work for Respondent. In view of this
finding, it becomes unnecessary to analyze extensive evidence as to Commisso's
respective physical duties at Bay Path and at Respondent's shop, or as to stockpiling,
or as to the importance of Commisso's production in fulfilling delivery schedules on
the Yale job, or as to whether it would require extensive time to train another
employee as a crandler, or as to whether other employees were dealt less severe or
no discipline for failure to call in when absent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of the Respondent found to constitute unfair labor practices as
set forth in section III, above, occurring in connection with its operations described
in section 1, 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 has engaged in certain unfair labor prac-
tices proscribed by Section 8 (a)( I) of the Act, it will be recommended that it cease
and desist therefrom and that it take specific affirmative action , as set forth below,
designed to affectuate the policies of the Act. While such violations do not go "to the
GUYAN MACHINERY COMPANY 591
heart of the Act," as that phrase is used in N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d
532, 536 (C.A. 4), they nevertheless are neither sporadic nor isolated. Hence I find
that it may reasonably be anticipated that such conduct is likely to recur. Accord-
ingly, I find that an order restraining the same or related conduct in the future is
warranted on the record before me.
Upon the basis of the foregoing findings of fact and of the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. United Stone & Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a) and
is engaged in commerce as defined in Section 2(6) and (7) of the Act.
3. Respondent has engaged in unfair labor practices within the contemplation of
Section 8(a)(1) of the Act by: (a) threatening employees with discharge and other
economic reprisals if they joined or assisted the Union or selected it as their collective-
bargaining representative, (b) coercively interrogating employees concerning their
union activities, desires, and membership, and (c) creating an impression that union
activities of the employees had been and were under surveillance by Respondent.
4. Said unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any other unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.]
Guyan Machinery Company and Local Union No . 505, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases Nos. 9-CA-3291
and 9-RC-6022. November 8,1965
DECISION AND ORDER
On July 19, 1965, Trial Examiner Eugene F. Frey issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint in
Case No. 9-CA-3291 and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Trial Examiner's
Decision. In Case No. 9-RC-6022,1 the Trial Examiner recommended
that the challenges to 80 ballots be overruled and that the challenges
to 17 ballots be sustained. Thereafter, the Charging Party filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof,
and the Respondent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
1 Pursuant to Section 102.33 of the Board's Rules and Regulations , Series 8, as amended,
revised January 1, 1965, the Regional Director consolidated this case with Case No.
9-CA-3291.
155 NLRB No. 47.