Merck and Co., Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1954

110 N.L.R.B. 67 (N.L.R.B. 1954)

MERCK AND COMPANY, INC. 67
fore exclude them from the unit." 1; and by amending the description
of the appropriate unit to read as follows :
All full-time employees in the Employer's retail stores in and
around Dayton, Ohio, including part-time employees who have
worked during at least 18 separate weeks preceding the Decision
and Direction of Election, but excluding part-time employees
who have worked for the Employer less than 18 weeks, meat and
self-service meat department employees, office employees, guards,
professional employees, assistant managers, managers, and all
supervisors as defined in the Act.
By direction of the Board :
OGDEN W. FIELDS,
Associate Executive Secretary.
1 Albers Super Markets, Inc., 110 NLRB 474.
MERCK AND COMPANY, INC. and JOSEPH KELLY AND DOMINICK DE
MIDIO.1 Case No. ?-CA-d8P?. September 28, 1954
Decision and Order
On December 7, 1953, Trial Examiner David London issued his
Intermediate Report in the above entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
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
Intermediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings and conclu-
sions of the Trial Examiner only insofar as they are consistent with
our decision herein.
The Trial Examiner found that the Respondent discharged Kelly
because of his activities on behalf of the Congress of Industrial
Organizations, herein called the CIO, and not because of the various
reasons set forth in its letter of dismissal to him. We disagree. We
find that the Respondent discharged Kelly because of his misconduct
during a strike against the Respondent, as stated in the letter of dis-
missal , and not because of his activities on behalf of the CIO. Accord-
1 Although a charge was filed by De Midio, the Regional Director did not issue a com-
plaint in his case.
110 NLRB No. 18.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, we do not find it necessary to pass upon any of the other reasons
for Kelly's dismissal that are alleged by the Respondent. The per-
tinent facts are as follows :
On July 12, 1952, after the collapse of negotiations for a new con-
tract, the Employees' Organization of Merck and Company, Inc.,
herein referred to as the Union, called a strike of Respondent's em-
ployees, which continued to July 30, 1952. Kelly was then president
of the Union. On July 14, when requested by a police officer to open
up the picket line for a police car, Kelly instead ordered the pickets
to close their ranks. He was immediately arrested. On July 18 a
State court issued a temporary restraining order against Kelly, among-
others, based on findings that he had caused the employees to prevent
plant doctors and nurses and trucks carrying production materials
from entering the plant. On August 25, 1952, Kelly was convicted of
disorderly conduct in connection with the "police car" incident. Three
days later the Respondent discharged Kelly, citing, among other
reasons, the fact of his conviction and his direction of "picketing
found by the Court to be illegal."
It is not disputed that Kelly engaged in the foregoing misconduct
or that the Respondent was privileged to discharge him therefor.Z
The Trial Examiner found, however, that Kelly's strike misconduct
was condoned or waived by the Respondent as a ground for discharg-
ing him. This finding is based on certain events, beginning with the
strike settlement conference on July 30 between the Respondent and
the Union's executive committee, including Kelly. One of the subjects
considered at this conference was paragraph 5 of the Respondent's
proposed agreement, which read : "The Company agrees to return
all employees to work as needed without discrimination or prejudice
for participation in the strike."
The Respondent's representatives at the conference asserted that
they were not thereby waiving their right to discharge employees who
had engaged in misconduct during the strike. When Kelly said,
"What about me? I was arrested too," McGregor, the Respondent's
labor relations manager, shrugged his shoulders and extended his
hands out to the side, palms up.
However, after the agreement was initialed by the union commit-
tee, the Respondent sent a letter dated July 30 to the Union, reading
in part as follows :
1. "The Company agrees to return all employees to work as
needed...."
2. ". . . without discrimination or prejudice for participating
in the strike." This phrase does not grant immunity to any em-
2 Longview Furniture Company, 100 NLRB 301 , remanded on other grounds ; N. L R. B.
v. Perfect Circle Co , 162 F. 2d 566 (C. A. 7).
MERCK AND COMPANY, INC. 69
ployee who engaged in criminal or quasi-criminal acts, nor has the
Company thereby waived its rights to discharge for cause.
If the foregoing accords with your understanding kindly so
indicate on the copy of this letter.
This letter was initialed by Clos for the committee. Kelly reported
for work on July 31, but was informed by his foreman that there was
no work available that day. He was given 4 hours' pay for report-
ing, and was instructed to go on his regular vacation from August 4 to
18. He received his vacation paycheck during that period. Kelly
also received a letter during his vacation assigning him to a new shift
and new department to which he was to report after his vacation.
On August 18 Kelly notified the Respondent that he was ill and did
not know when he would be able to return to work and on August 28,
while he was still absent from work, he received a letter from the
Respondent, notifying him of his discharge for various reasons, in-
cluding his strike misconduct discussed above. This letter, as already
stated, was written only 3 days after Kelly's conviction for his partic-
ipation in the "police car" incident.
Relying on the "shoulder-shrugging" episode at the July 30 con-
ference, the Trial Examiner found that the Respondent had condoned
Kelly's strike misconduct and therefore could not avail itself thereof
as a defense to the complaint in this case. We do not agree. We do
not believe that the General Counsel has established by the preponder-
ance of the evidence that the Respondent intended to convey to Kelly
at the July 30 conference that its policy of not reinstating strikers
guilty of misconduct would not be enforced with respect to Kelly.
McGregor's action in parrying Kelly's inquiry about his status with
a shrug of the shoulders is consistent with an understandable reluc-
tance on the part of the Respondent to discuss such an issue during a
-critical stage of the negotiations for settlement of the strike.
Respondent's actions concerning Kelly during the period from July
30 until shortly after his conviction on August 25 were consistent with'
the policy followed by the Respondent in other cases of withholding
final judgment on strikers charged with misconduct pending the out-
come of an investigation of the charge.' Payment of reporting time,
notice of reassignment, and payment of vacation allowance (which
may have been required regardless of Kelly's status), all occurring
prior to Kelly's conviction, are not inconsistent with the same policy.
It is significant, however, that Kelly was not permitted to perform any
work on Respondent's premises during this period.
If at any time there was a doubt as to whether Respondent's rein-
statement policy applied to Kelly, it was dispelled by the letter of
July 30 quoted above. This letter shows without question that Re-
spondent expressly reserved the right to discharge strikers for "crimi-
• This policy was followed in the case of Entenberg , for example.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal or quasi -criminal acts. " In the face of this agreement , our dis-
senting colleague would order reinstatement of an employee who de-
fied police authority and was duly convicted of criminal conduct on
the picket line. This is a position with which we cannot agree.
Accordingly, even though we accept, as did the Trial Examiner,
Kelly's version of the matter , we are not convinced that it has been
established by the preponderance of the evidence that the Respondent
condoned Kelly's strike misconduct. Absent such condonation, we
find that the Respondent was privileged to discharge Kelly for such
misconduct , and did discharge him for that reason. Accordingly, we
shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER MURDOCK, dissenting :
I would find, in agreement with the Trial Examiner, that the Re-
spondent condoned Kelly's misconduct during the strike and accord-
ingly could not subsequently discharge Kelly therefor.
In finding such condonation, I rely not only on the shoulder-
shrugging incident referred to in the majority opinion, but also on
the fact that the Respondent actually reinstated Kelly on July 31,
after the termination of the strike, with knowledge that he had en--
gaged in misconduct, and did not see fit to discharge him until nearly
a month later.
The majority attributes this delay in discharging Kelly to the
Respondent's policy of withholding final action on employees charged
with misconduct until their guilt or innocence had been established,
and point to the fact that Kelly was not convicted for his part in the
"police car" incident ( in which he ordered pickets to close ranks
when requested to open the picket line for a police car) until August
25, a few days before his discharge. However, the majority ignores
the fact that the Respondent knew on July 31, when it reinstated
'Kelly, that he had already been found by a State court to have directed
pickets to bar the entrance of the plant to plant doctors and nurses
and to supply trucks, conduct of the same sort as involved in the,
"police car" incident. Plainly, therefore, the failure to discharge
Kelly until August 28 cannot be explained by a policy of withholding
action until judicial determination of guilt of culpable conduct. The
explanation which the Trial Examiner credited-namely, Kelly's
progressive identification during the month of August with the CIO'
organizing campaign at the Respondent's plant-provides the only
reasonable explanation for the termination of Kelly's services nearly
a month after his reinstatement.
The Union, of which Kelly was president, and with which the Em-
ployer had had bargaining relations for 14 years, was an unaffiliated
union. As noted above, this Union had called a strike, which was
MERCK AND COMPANY, INC. 71
settled on July 30, and on the next day Kelly returned to work. On
the same day, July 31, the Respondent received a telegram from the
CIO alleging that the CIO had been selected as bargaining representa-
tive by a majority of the production and maintenance employees, and
demanding recognition from the Respondent. The CIO filed a repre-
sentation petition with the' Board on August 1. A Board agent con-
ducted an informal conference on August 21 with representatives of
the Respondent and of the CIO, regarding the latter's petition. A
CIO representative, with the knowledge of the Respondent's repre-
sentatives, attempted to contact Kelly by telephone and have him
come to the meeting in order to sustain the CIO's position that the
strike settlement contract was not a bar to the petition, but he did
not succeed in reaching Kelly.
On August 26, an employee, Dalia, told McGregor, the Respondent's
labor relations manager, that Kelly had expressed the view that the
Union was too weak and would have to join the CIO. On the same
date, McGregor read a newspaper report, which also came to the
attention of Plant Manager Braun, that Kelly was to meet with a
National Labor Relations Board examiner to discuss Kelly's charge
that an agreement reached by the Company and the Union to end the
strike was invalid. The newspaper article continued :
Kelly's stand is that the new contract received no formal ratifica-
tion of the union membership since a back-to-work movement
started without a meeting to approve the agreement reached by
members of the bargaining committee with the Company. He
also contends no contract exists since he as president did not
sign one.
McGregor called the Board examiner referred to in the article and
inquired whether the meeting with Kelly had taken place. He made
his call, he testified, because the Respondent was "interested in not
going to a hearing" on the CIO petition and that the Respondent was
"hopeful that the contract [with the Union] would be a bar to a
hearing." Kelly was discharged only 2 days later.
In view of the foregoing sequence of events and the implausibility
of the various reasons advanced by the Respondent for discharging
Kelly (in addition to the condoned strike misconduct), the conclusion
seems inescapable that he was discharged solely because of his actual
or supposed connection with the CIO's organizing efforts which
threatened the contract relationship between the Union and the Re-
spondent which the latter wished to preserve. I would therefore find,
like the Trial Examiner, that, by discharging Kelly, the Respondent
violated Section 8 (a) (1) and (3) of the Act.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Joseph Kelly and Dominick De Midio, the General
Counsel of the National Labor Relations Board, on May 26, 1953, issued a complaint
against Merck and Company, Inc., hereinafter called Respondent or the Company,
alleging that Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the
,charge, complaint, and notice of hearing were duly served upon the appropriate
parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about August 28, 1952, Respondent discharged Joseph Kelly and has since
that time failed and refused to reinstate him because he had assisted Employees'
Organization of Merck and Company, Inc., herein referred to as the Union, or
engaged in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection. By its answer, Respondent denied that it had been guilty
of any unfair labor practice and alleged that Kelly had been discharged for cause.
Pursuant to notice, a hearing was held August 31-September 4, 1953, at New
York, New York, before the undersigned Trial Examiner. All parties appeared and
were represented by counsel and were afforded full opportunity to be heard and to
examine and cross-examine witnesses. At the conclusion of the testimony, oral argu-
ment was presented by the General Counsel and by Respondent. Since the close of
the hearing, a brief has been received from Respondent which has been duly con-
sidered. Disposition of Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the hearing, is made by the following findings and conclusions.
On 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
Merck and Company, Inc., is, and at all times material herein has been, a corpora-
tion existing under the laws of the State of New Jersey, maintaining its principal
office and place of business at Rahway, New Jersey, where it is engaged in the manu-
facture, sale, and distribution of medicine, fine chemicals, and related products. Dur-
ing the year 1952, Respondent, in the course and conduct of its business operations,
caused to be purchased, transferred, and delivered to its Rahway plant raw materials
valued in excess of $1,000,000, of which approximately 75 percent was transported
thereto in interstate commerce from States of the United States other than the State
of New Jersey. During the same period, Respondent caused to be manufactured at
its said Rahway plant products valued in excess of $1,000,000, of which approximately
75 percent was transported therefrom in interstate commerce to States of the United
States other than the State of New Jersey. Respondent is, and at all times material,
has been engaged in interstate commerce within the meaning of Section 2 (6) and
(7) of the Act.
14. THE LABOR ORGANIZATION INVOLVED
Employees' Organization of Merck and Company, Inc., is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events i
Respondent and the Union, an unaffiliated labor organization, bargained collec-
tively with respect to Respondent's production and maintenance employees for a
i The testimony concerning many of the incidents involved in this proceeding is con-
flicting and contradictory, and the findings of fact made herein result from my attempt to
reconcile the evidence and determine what occurred. The findings of fact are based upon
my consideration of the entire record and my observation of the witnesses All evidence
on disputed points is not described so as not to burden this report unnecessarily How-
ever, all has been considered and, where required, resolved. In determining credibility I
have considered inter alia • the demeanor and conduct of witnesses ; their candor or lack
thereof; their apparent fairness, bias, or prejudice; their interest or lack thereof; and
whether they have been. contradicted or otherwise impeached. In some instances, the fore-
MERCK AND COMPANY, INC. 73
period of approximately 14 years, the last such agreement expiring June 30, 1952.2
Renewal negotiations, which commenced early in June, proved unsuccessful and the
existing contract was extended, verbally, to July 11, 1952. No agreement having
been reached by that time, the Union went on strike commencing the morning of
July 12.
Pickets immediately appeared at the plant entrances and substantially all of the
approximately 1,600 employees in the above-described unit remained away from
work from July 12 until the strike ended on July 30 as hereafter described.3 Shortly
after the strike began, Respondent filed its petition in the Superior Court of New
Jersey, Chancery Division, Union County, seeking to enjoin the Union, Joseph T.
Kelly, its president, and Philip Clos, chairman of its delegation, from engaging in
alleged illegal strike activities. On July 18, 1952, the above-named court issued its
order requiring the defendants therein to show cause on July 23 why the preliminary
injunction prayed for by Respondent should not be issued. Simultaneouly therewith,
the said court issued its temporary restraining order restraining the named defendants,
inter alia, from picketing in numbers greater than prescribed by said order, from
violence, threats of violence, or intimidation in their conduct of the strike.
In the early evening of July 14, Joseph Kelly, president of the Union, was called
by another union official to come to the Linden Avenue gate of the plant because
of "some trouble" at that entrance. When Kelly arrived at that gate there were
between 50 and 100 people gathered, including 25 to 40 pickets. Inside the gates
were 2 automobiles, 1 of them belonging to the Linden Police Department, the
departure of which was blocked by the crowd outside the gate. As Kelly approached
the entrance, he heard Sergeant Hill of the Linden police force ask the pickets for
information as to who was in charge. Kelly informed the sergeant that he was, and
that he was also the president of the Union. Hill informed Kelly that the pickets
were picketing unlawfully, that they had no right to stop police cars entering or leav-
ing the plant, and asked Kelly to open the picket line to let the police car out. Instead
of complying with Hill's request, Kelly turned to the pickets and said: "Close up,
boys, don't let the police in or out."
Kelly was immediately placed under arrest, taken to the police station, and charged
with being a "disorderly person." Police Captain Biddle and a number of other
officers arrived at the scene shortly after Hill's conversation with Kelly. The entire
police force present formed a human wedge in front of the police car and cleared its
path through the gate and onto the street. The same procedure was followed with
respect to the car of a railroad detective which had been parked behind the police
car. Shortly thereafter, employee Paul Konic called Officers Hill and Guidon vile
and indecent names, was chased by Guidon, and placed under arrest as a "disorderly
person." Both men were released from custody that evening pursuant to arrangements
made by the Union's attorney.
On July 22 Respondent conferred with the Union's executive committee in an
attempt to settle their differences. At the conclusion of that meeting, representatives
of the Company and of the Union initialed a written memorandum by the terms of
which, if ratified by the union membership, the contract which had expired July 11,
1952, would be replaced by an agreement expiring October 1, 1953, subject to two
wage reopening opportunities. The presently pertinent remainder of the memoran-
dum read as follows:
5. The Company agrees to return all employees to work as needed, without
discrimination or prejudice for participation in the strike. . .
7. The union committee agrees to recommend the foregoing for acceptance
by the membership. It is understood that this memorandum agreement is sub-
ject to ratification by the membership. Following the vote of acceptance the
strike will be terminated and work will be resumed as scheduled by the
Company.
A meeting of the union membership to consider the memorandum was held during
the evening of July 23 at a local school and was attended by about 800 members.
When Kelly, who presided, informed the assembly at the opening of the meeting
that their committee had to have a meeting with management, some of the people
going rationale resulted in crediting part of the testimony of a witness and in discrediting
another portion of the same witness' testimony . However, "it is no reason for refusing
to accept everything that a witness says , because you do not believe all of it ; nothing is
more common than to believe some and not all." Judge Learned Hand in N. L. R. B. v.
Universal Camera Corp , 179 F. 2d 749 , 754,(C. A. 2).
2 Unless otherwise noted , all references to dates are to the year 1952.
A few employees returned before the mass return on July 30.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to know why. He responded that the committee "had no alternative, the
picketing was becoming lax, few people showing up, always the same crew, . that
is why [they] had to go to management." Referring to the memorandum of
July 22, he described it as "all [the] executive board could possibly do for [them],"
and directed George Shornack, the Union's recording secretary, to read it to the
membership. Shornack complied and read the memorandum in its entirety. A vote
to determine whether it should be accepted brought affirmative votes from only 17
persons, with 755 voting for rejection?
Not being satisfied with the progress of the strike, contact was established by the
Union with a statewide independent union organization , as well as the CIO and
the AFL. On or about July 25, a meeting of the Union's executive board was held,
over which Kelly presided, to consider CIO affiliation. Although a majority of the
board voted for such affiliation, the body ruled that "the meeting was out of order."
On the following day, Kelly called Austin B. McGregor, assistant to Respondent's
vice president in charge of personnel, to inquire whether employees would receive
their vacation pay regularly scheduled to begin August 1. During the course of the
conversation, McGregor asked Kelly how the meeting of the previous night "turned
out [and] who was for the CIO." Kelly replied that the meeting was "supposed
to be a secret," but as long as McGregor claimed to know about it already, there was
no need for Kelly to tell him.
On July 29 the Company, through the State mediation office , submitted an
amended offer of settlement to the Union. Substantially, it differed from the pro-
posal of July 22 only in that whereas the former proposal provided for two wage
reopenings , the latter granted only one such opportunity. A membership meeting
to consider the Company's latest offer was held in the Franklin school the evening
of July 29, attended by approximately 850 members. Kelly called the meeting to
order, "answered a few questions pertaining to the strike," and then informed the
membership of the latest offer of settlement from the Company. Costello, the
Union's attorney, read the proposal following which Kelly turned the meeting over
to Mr. Weisenfeld of the State conciliation service to conduct the vote on the pro-
posal. The vote was taken, but before it was concluded, it was discovered that a
number of persons had each cast more than one ballot and Weisenfeld declared
the vote illegal. Weisenfeld, Costello, and Kelly left the school building immediately
thereafter. Some of the members of the Union's executive board who remained,
however, had an "impromptu meeting" and decided to contact management to see
what could be done about settling the strike. An effort to get in touch with Respond-
ent's officials that evening was. unsuccessful, but arrangements were made for such
a meeting on the following morning, July 30. Kelly was not notified of the meeting.
On his way to the union office that morning, Kelly stopped for a cup of coffee
at a diner where he met a friend who inquired how it happened that he, Kelly, was
not at Respondent's office with the executive board where there was "a big meeting
going on." Kelly expressed surprise and proceeded to Respondent's office where
he found members of the Union's board and representatives of management in
conference.
After expressing his indignation at the failure to be notified of the meeting, Kelly
joined in the discussion then going on "about people going back to work," the sub-
ject of paragraph 5 of the Company's proposal. The company representatives said
they were not going to let employees Entenberg and De Midio return to work,
"everybody else was all right." McGregor testified that the only persons "men-
tioned in that connection [were] Mr. De Midio and Mr. Entenberg; they had been
involved in acts of violence. . . Entenberg allegedly assaulted a nonstriker who
was riding a bicycle. . [De Midiol was arrested for assaulting a nonstriker who
was in his car," for which he was subsequently convicted. The union representatives
objected to the alleged discrimination against these two men because "there were
other fellows who were arrested" and whom the Company apparently was willing
to accept for return to work.5 Kelly said: "What about me? I was arrested, too."
None of Respondent's representatives gave any oral answer. McGregor, however,
shrugged his shoulders and extended his hands out to the side, palms up, a gesture
which indicated to Kelly, as it did to me when the gesture was demonstrated at the
hearing, that Respondent did not consider Kelly as one who was not entitled to be
returned to work. Its rationale for refusing reemployment only to De Midio and
Entenberg might well have been that they were the only ones who allegedly were
4 Merck & Co , Inc., 102 NLRB 1612, of which I have taken official notice
6 McGregor testified that Ionic had been arrested for abusive and obscene language
directed to police officers at the Linden gate, and that Dalia had been arrested for some
picket line activity in violation of the State court injunction.
MERCK AND COMPANY, INC. 75
guilty of physical assault upon nonstrikers. Indeed, Eric Braun, plant manager,
testified that though Kelly's arrest was discussed, "the only ones we felt strongly
enough about were De Midio and Entenberg." In any event, I find that though Kelly
himself brought up the subject of his arrest, Respondent clearly indicated that it did
not consider his prior activities or arrest as a bar to his return to work.
Because of the Union's objection to a settlement of the strike which would bar
Entenberg and De Midio from further employment by Respondent, a recess was
taken during which management representatives left the meeting room to engage
in a conference. On their return, they announced that their objections with respect
to Entenberg were withdrawn. Concerning De Midio, however, Respondent insisted
upon his suspension from work with the understanding that if he were subsequently
acquitted of the assault charge then pending against him, he would be reinstated
with back pay; if he should be convicted, the suspension would be made permanent.
The agreement was still not satisfactory to Kelly and he left the meeting without
consenting thereto. Other members of the union committee who remained behind
felt the Company's proposal should be accepted and recorded their assent by initial-
ing the proposal.
The union committee, without Kelly, informed management that they would "talk
to the people outside the gate, and if they agree[d], the strike [would be] over."
Members of the committee met informally with a group of the strikers outside the
plant and received their approval of the settlement. The committee members, with-
out Kelly, returned to Respondent's offices, initialed the agreement, and the strike
was informally declared to be at an end. The agreement was never submitted for
"ratification by the membership" as required by its own terms and the Union's
constitution. Nevertheless, the bulk of the strikers returned to work the same day
that the committee initialed the agreement, July 30. After the agreement was initialed
by the union committee, the Company prepared and delivered a letter to the Union,
.dated July 30, and reading as follows:
As previously discussed with you, we are setting forth our understanding
of paragraph 5 of the Memorandum of Agreement of July 22, 1952, as amended
by the Memorandum of Agreement of July 29, 1952:
1. "The Company agrees to return all employees to work as needed. .
All striking employees are to report to their Supervisor on the shift which they
normally would have been on in the absence of the strike. Such employees
upon their return are to be advised of their work assignments. There will be
work immediately available for some employees; work for some other em-
ployees, due to the factory shut down during the weeks of August 4 and 11,
will not be available until August 18; and the remainder, approximately 150,
will be laid off indefinitely because of lack of work and jobs. This latter group
will be laid off on the basis of seniority, except that for the purpose of such
layoff this group shall have no seniority rights against any employees who re-
turned to work on the strike.
2. ". . . without discrimination or prejudice for participating in the strike."
This phrase does not grant immunity to any employee who engaged in criminal
or quasi criminal acts, nor has the Company thereby waived its right to discharge
any employee for cause.
If the foregoing accords with your understanding kindly so indicate on the
copy of this letter.6
At about 4:37 p. m. of the same day, July 30, Respondent's labor relations de-
partment received a telegram from the CIO notifying Respondent that that organiza-
tion had been "selected as sole collective bargaining representative by a majority of
[Respondent's] production employees." The telegram also demanded recognition for
the CIO and advised Respondent that the latter was "required by law to refraim from
recognizing or entering into contractual relations with any other labor organiza-
tion." 7 The CIO's petition to be designated as bargaining representative was filed
with the Board on August 1. Braun testified that while at the time the strike was
settled on July 30 he had no "direct knowledge" that Kelly had contacted the CIO,
he had heard "rumors" to that effect. McGregor testified that the same "rumor"
reached him July 31.
G Though the exhibit indicates that it was accepted by Clos for the Union on Tuly 30,
It was undisputed that Clos did not add his written acceptance until sometime during the
week of August 18, after he returned from his yacation.
I The portions of the telegram quoted have been officially noted from representation pro-
ceeding, Case No. 2-RC-5030, 102 NLRB 1612.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent announced at the conclusion of the strike that because of the loss.
of business caused by the strike and the approach of the regular 2-week vacation
period commencing August 1, 150 employees would not be returned to work at
the end of the vacation period. Kelly's name was among those on the posted list
who were directed to return on August 18. He also reported on the job on July 31,
and was informed by his foreman, Stambler, that there was no work available that
day, but was, nevertheless , given 4 hours' pay for reporting on that day. Stambler
also instructed him to go on vacation August 1 and to return to work on Monday,
August 18. During that period, Kelly received his vacation paycheck from Re-
spondent . During the same interval , Clos, "Chairman of the Union' s delegation,"
asked him to sign the formalized labor bargaining contract with the Company but
Kelly declined to do so. Thereafter, Clos and other officers attached their signature
to the contract.
On the Wednesday before August 18 Kelly became ill-"was upset , couldn't eat,
was throwing up, sweating and broke out in a rash ." On or about midnight of-
August 18, and before he was scheduled to return to work, Kelly called his station
at the plant and informed the supervisor that he was sick and wouldn 't report that-
night. He further advised that he couldn't tell when he would be able to return
because he didn't know when he would be fully recovered.
During the morning of August 22 he was visited at his home by Stambler, who-
told him it was "just a social visit" and added: "You do look kind of sick. If I were
you, I would forget all about this union business , if it is going to make you feel
like you do." Stambler asker him whether he had reported his illness to the plant
health department ( as distinguished from his supervisor ) and when Kelly replied'
that he had not, Stambler told `him he ought to do so. Kelly then informed him
that his brother was going to take him to see Dr. Kemeny . Immediately after
Stambler left, Kelly called the plant health department and informed the receptionist
that he had previously reported his illness to his supervisor and that he was about
to visit his doctor . He visited Dr. Kemeny the same day and received a prescription'
which, however, he did not have filled . On Monday , August 25, he appeared in
court, with Konic, on the disorderly conduct charges previously mentioned. Both
were found guilty and each was fined $25.
On or about August 26, McGregor, read a newspaper item , which also came to.
the attention of Braun , reporting that Kelly was to meet "with a National Labor
Relations Board Examiner to discuss Kelly's charge that an agreement reached by the
Company and the Union to end a recent strike was invalid ." The newspaper re-
port continued as follows:
Kelly's stand is that the new contract received no formal ratification of the
union membership since a back-to-work movement started without a meeting
to approve the agreement reached by members of the bargaining committee
with the Company. He also contends no contract exists since he as president
did not sign one.
McGregor called Byrnes, the Board examiner referred to, and inquired whether
the meeting with Kelly had taken place. He made this call , he testified, because
Respondent was "interested in not going to a hearing" on the CIO petition for
representation and that the Company was "hopeful that the contract would be a
bar to a hearing."
On August 27 Dr. H. H. Palmer, employed by Respondent as chief of its health,
section, was advised by someone in the plant that Kelly was sick and was being
attended by Dr. Kemeny. He called Dr . Kemeny on that day but was unable to reach
him. He did , however, talk to him during the morning of August 28 and was
informed that the latter had seen Kelly about a week before for an ailment which the
doctor diagnosed as gastroenteritis-an intestinal upset causing nausea and cramping.
Dr. Kemeny also informed him that he thought Kelly was well enough to have
returned to work on August 25. Dr. Palmer reported the foregoing conversation to,
McGregor.
On August 28 Respondent discharged Kelly by a letter reading as follows:
This is to advise you that effective immediately your services with the Com-
pany are terminated for cause for one or more of the following reasons: you,
have been convicted by the Municipal Court in Linden, New Jersey , of unlawful
conduct during the strike caused by the Employees ' Organization , Inc. of Merck
& Company, against the Company during the period of July 12 to July 30, 1952;
you have engaged in other unlawful conduct by threatening violence to fellow
employees during such period and by directing , as admitted by you in court,
picketing found by the Court to be illegal ; you have been absent from work with-
out permission and you have demonstrated unreliability and untrustworthiness.
MERCK AND COMPANY, INC. 77
in a number of ways, including the giving of testimony under oath in court which
the record shows to be conflicting.
Kindly report to the employment office of the Company during the next week
for your closure. [Emphasis supplied.]
On August 29 Kelly obtained a signed statement, or certificate, from Dr. Kemeny
ieadmg as follows: "Joseph Kelly was ill and unable to work from 8-18-52 to
9-2-52." Kelly appeared in Dr. Palmer's office at the plant on September 3 and
presented Dr. Kemeny's certificate. At that time Dr. Palmer did not know that Kelly
had been discharged but merely assumed that the latter had reported to the health
department following illness and before returning to work, as required by company
rules. He called Dr. Kemeny and asked him why he had changed his mind about
the duration of Kelly's illness. Dr. Kemeny replied that his statement of August 27
to Dr. Palmer that Kelly was well enough to have returned on August 25 was based
on Kelly's statement to him on August 22 that he felt well enough to return to work
on the 25th. Dr. Palmer did not otherwise question the reliability or correctness of
Dr. Kemeny's certification and apparently accepted its verification that Kelly's illness
had continued beyond August 25 and had rendered him "unable to work from
8-18-52 to 9-2-52."
The Union filed a grievance protesting Kelly's discharge pursuant to which Kelly
met with other representatives of the Union and Respondent on September 2, at which
meeting Dr. Kemeny's certificate dated August 29 was presented. Each side pre-
sented reasons and arguments in support of its respective position. The Company,
however, adhered to its decision and continued its refusal to return Kelly to work.
In subsequent proceedings in the representation case, reported in 102 NLRB 1612,
and of which I have taken official notice, the Board held "that the memorandum of
agreement of July 30, 1952, was not ratified by the [Union's] membership according
to its terms and is not a bar to the petition in [that] case," and ordered that an elec-
tion be conducted among Respondent's production and maintenance employees to
determine their choice of bargaining representative. At that election, conducted
by the Board on June 3 and 4, 1953, a majority of the employees voted for United
Gas, Coke & Chemical Workers of America, CIO. On June 12, 1953, the Board's
Regional Director certified that organization as the bargaining representative for
said employees.
B. Contention of the parties
In his closing argument, the General Counsel stated that "the basic theory of [his]
case is that Kelly was discharged because of protected concerted activity and
specifically because of his alleged refusal to recommend the memorandum of agree-
ment of July 22 and of July 29 to his membership, and because of his refusal to sign
the strike settlement agreement and any subsequent contract, and, finally, because
of his dalliance or flirting or contacts or communication with the CIO." On this
phase of the case, Respondent has consistently conceded that one of the reasons for
which it discharged Kelly was his alleged "unrealiability and untrustworthiness"
evidenced, it claims at least in part, by his failure to recommend the July 22 memo-
randum of agreement to the membership at the union meeting on the following
evening. With respect to the latter, the General Counsel contends that Kelly and
his executive board did recommend the settlement agreement to the membership
by reading the entire document, but, in any event, whether he recommended it or
not, Kelly's conduct with reference thereto was a protected activity for which he
could not legally be discharged. As to the other reasons for the termination assigned
by Respondent, it is the General Counsel's position that they were mere pretexts and
not the motivating cause of Kelly's discharge.
Concluding findings
With full recognition that the burden of establishing that Respondent discrimina-
torily discharged Kelly rests upon the General Counsel throughout the entire pro-
ceeding, the state of the record when the General Counsel rested his case made it
incumbent upon Respondent to give a satisfactory explanation for that discharge. It
sought to do so by evidence in support of each of the reasons outlined in the dis-
charge letter of August 28 which will now be considered seriatim.
1. Conviction for unlawful conduct during the strike
The letter of August 28 states that one of the reasons for Kelly's discharge was that
he had "been convicted by the Municipal Court in Linden, New Jersey, of unlawful
conduct during the strike called by Employees' Organization, Inc., of Merck & Co.,
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Company during the period of July 12 to July 30, 1952." However, in:
its brief, Respondent asserts that the "ground for discharge was the unlawful con-
duct in which Kelly was engaged." Consistent with that explanation is the further
statement that Respondent does "not contend that the Trial Examiner or the Board
is bound by the determination of the Municipal Court." In other words, while the
fact of conviction may be given weight in the determination that Kelly was guilty of
unlawful conduct on the picket line, the fact of conviction was not the reason for
the discharge.8 Accordingly, the ground for the termination presently under con-
sideration is "the unlawful conduct in which Kelly was engaged," a reason for which,
it may be assumed, Respondent could have denied reinstatement without subjecting
itself to liability under the Act.
Respondent, however, was fully apprised of that conduct, indeed even of Kelly's
arrest therefor, when it reinstated him on July 31 and included him among the
employees who were ordered on that day to return to work on August 18 at the
conclusion of the vacation period. The General Counsel therefore contends on
this phase of the case (and also with respect to some of the other grounds for the
discharge relied upon by Respondent) that Respondent condoned the illegal conduct
complained of and that its present reliance thereon is a mere pretext.
Without minimizing my own condemnation of Kelly's defiance of the police
authorities, the law is well established that a striker's right to reinstatement, which
might otherwise be forfeited because of serious strike misconduct, may not be exer-
cised by an employer who, with full knowledge of that conduct, reinstates the
employee and subsequently discharges him for the same conduct. In such cases,
"the condonation wiped the slate clean." N. L. R. B. v. E. A. Laboratories, Inc.,
188 F. 2d 885 (C. A. 2). "Once he has made the waiver, an employer cannot later
assert it as a valid reason for discharge or refusal to reinstate." Wallick & Schwalm
Corp., 95 NLRB 1262. In enforcing the Board's decision in the case just cited, the
court of appeals, by a decision reported in 198 F. 2d 477 (C. A. 3), rationalized
as follows: I
Section 2 (3) of the Act defines "employee" to include "any individual whose
work has ceased as a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice. .. .. Section 2 ( 3) states,
in effect, that the employer cannot deprive striking employees of their employee
status under the Act so long as the strikers are engaged in protected activity.
But the employer retains his right to discharge employees because they are
engaged in unprotected activity. It does not follow, however, that employees
automatically lose their employee status once they engage in unprotected activity.
See Stewart Die Casting Corp. v. N. L. R. B., 7 cir., 1940, 114 F. 2d 849,
855-856, certiorari denied 312 U. S. 680. . They subject themselves to the
"risk of the termination of their employment," N. L. R. B. v. Fansteel Corp.,
1939, 306 U. S. 240, 256, . but the employer must affirmatively exercise
his option to terminate the relationship, either by discharging the strikers or
refusing reinstatement.
We think it is clear that respondents waived their right to discharge the four-
teen employees [who Respondents contended had engaged in unprotected'
activity].
See also Magnolia Petroleum Co. v. N. L. R. B., 200 F. 2d 148 (C. A. 5); Clearfield'
Cheese Company, Inc., 106 NLRB 417; N. L. R. B. v. Alabama Marble Co., 185 F.
2d 1022 (C. A. 5), enfg. 83 NLRB 1047, sert. denied 342 U. S. 823; N. L. R. B. v.
Reed & Prince Mfg. Co., 118 F. 2d 874 (C. A. 1).
Accordingly, my responsibility is not limited to taking cognizance of, or to appraise
Kelly's wrongful conduct. Decisive of the issue confronting me is a proper appraisal
of what effect that incident had on Respondent when it gave consideration at the
conclusion of the strike, on July 30, to the reinstatement of strikers. That Respond-
ent had knowledge of Kelly's conduct is not denied, just as it had knowledge of the
alleged assaults of De Midio and Entenberg on nonstrikers. Indeed, when union
representatives at that meeting objected to Respondent's absolute denial of reinstate-
ment to De Midio because the latter had been arrested for his unlawful conduct,
Kelly specifically asked about his status and referred to his own arrest. McGregor's
answer , by the gesture heretofore described, clearly indicated that Respondent did
8 "It is not the fact that employees have been convicted of crime that renders them
ineligible for reinstatement, but the fact that they have been guilty of unlawful conduct
which would make their presence undesirable because of the disruptive effect which it
would have upon the employer 's business ." N. L. it. B. v. Kelco Corp., 178 F. 2d 578, 580'
(C. A. 4).
MERCK AND COMPANY, INC. 79,
not consider Kelly's offense sufficient justification to deny his recall to work. If
any doubt existed, though there is presently none in my own mind, that Respondent
at that point in the conference unequivocally waived its right to deny further employ-
ment to Kelly, such doubt was dispelled by the events that followed immediately
thereafter.
It will be recalled that Respondent's representatives left the conference room to.
consider their position with respect to the Union's insistence that both De Midio
and Entenberg be returned to work unconditionally. Upon their return, they an-
nounced that their objections with respect to Entenberg were completely withdrawn,
but that De Midio would be temporarily suspended from work with the under-
standing that if he were subsequently acquitted of the assault charge then pending
against him he would be reinstated with back pay, and that if he were convicted,
the suspension would be made permanent. If, at that point, Respondent had any
reservation as to whether Kelly should be denied further employment it seems only
reasonable to assume that it would have given him the same treatment and considera-
tion that it accorded De Midio. Its failure to do so only confirms my conclusion
that on July 30 Respondent completely, and unequivocally, condoned Kelly's offense
on the picket line the night of July 14 and thereby waived its right to deny him
further employment because of that conduct.
I attach no significance, with respect to Kelly's reinstatement, to Respondent's
letter of July 30 stating that by its agreement to return the strikers "without dis-
crimination or prejudice for participating in the strike" it did not "grant immunity
to any employee who engaged in criminal or quasi criminal acts nor has the Company
thereby waived its right to discharge any employee for cause." That letter was
written after the strike was settled under an agreement by which Respondent agreed
"to return all employees to work as needed, without discrimination or prejudice for
participation in the strike," and after Respondent, upon full deliberation, had already
condoned Kelly's conduct. Wallick & Schwalm Corp., supra.
2. All threats of violence and other illegal picket line activity
The second reason given by Respondent in its discharge letter to Kelly was: "You
have engaged in other unlawful conduct by threatening violence to fellow employees
during [the strike], and directing, as admitted by you in court, picketing found by
the court to be illegal."
At the hearing employees Dalia, Maurer, and Hart testified that the three men met
at Hart's home on the afternoon of July 24 during which meeting Dalia called
Kelly on the telephone. Dalia testified that during the course of the conversation
Kelly threatened to "break [his] skull." Maurer and Hart testified that, at Dalia's
request, they placed themselves close enough to the telephone to hear the conver-
sation . Maurer substantially corroborated Dalia. Hart couldn't remember the
exact words used by Kelly but testified that the latter threatened to "get" Dalia.
The latter, however, testified that Hart and Maurer "laughed" at the tone of the
conversation. Kelly denied making any threats. Dalia told McGregor of the
alleged threats by Kelly and that Kelly had told him that "the independent union
is too weak, looks like we will have to go to the CIO."
Though Dalia had worked with Kelly for a long time, had gone on several fishing
trips with him and held union office with him, he admitted that he no longer consid-
ered Kelly to be a "friend or pal." This was due undoubtedly to the fact that Kelly,
as well as other union officials, had publicly accused him "quite a few times" of
having stolen money from the Union. Nor was Dalia in accord with Kelly's, or
the Union's, strike policy evidenced by his own testimony and his return to work on
July 28, 2 days before the mass return of the strikers. Maurer testified that none
of the men that gathered at Hart's house on July 24 were in accord with Kelly's
conduct of the strike. It was at the suggestion of Kelly that Maurer had been
stopped from attending meetings of the executive board of the Union. Maurer,
like Dalia, returned to work before the end of the strike. Hart, who also returned
to work before the end of the strike, testified that he was "disgusted" with the con-
duct of union affairs by Kelly and the entire executive committee. He was also
resentful of a letter from the Union, signed by Kelly, informing him that he (Hart)
had been expelled from union membership and had been removed from his office
of recording secretary. On the entire record, and particularly by the demeanor of
the witnesses involved, I find that Kelly did not threaten bodily harm to Dalia dur-
ing the telephone conversation in question.
With respect to the other portion of the subheading pertaining to Kelly's alleged
engagement "in other unlawful conduct . . . by directing . picketing found by
the [chancery] court to be illegal," the Respondent in its brief points to events occur-
so DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ring in the early part of the strike. However, on the entire record, I find no credible
substantial evidence to justify a finding that Kelly was guilty of any act which would
bar his reinstatement. In any event, Respondent had knowledge of all these activi-
ties at the end of July when it directed him to return to work. By that direction,
Respondent condoned the picket line excesses now relied upon.
3. Absence from work without permission
The next ground urged by Respondent in explanation for Kelly's discharge is his
absence from work without permission. The only unexcused absence on which Re-
spondent relies, and apparently the only one of which he was ever accused during
the approximately 14 years he was employed by Respondent, is his absence from
August 18 to 28, the day he was discharged. Respondent characterizes this absence
as "malingering " The General Counsel and Kelly, on the other hand, assert that
the absence was due to illness.
To support its charge of malingering, Respondent cites Kelly's attendance at a
union meeting the night of August 18; that he did not fill the prescription which
Dr. Kemeny gave him on August 22 when he first called on a physician; that he
attended his trial in the Linden municipal court on August 25 and that of De Midio
on August 27; that on August 28 he attended a conference in the office of the CIO
attorney in Newark pertaining to the representation proceeding heretofore mentioned;
and the fact that Dr. Kemeny first advised Respondent that Kelly would be able
to return to work on August 25, but subsequently certified that his illness prevented
his return until September 2.
Kelly admitted all of the foregoing incidents but testified, which testimony I credit,
that on or about August 13 he became ill, his stomach "was upset, couldn't eat, was
throwing up, sweating and broke out in a rash," and that he did not fully recover
from that illness until after he was discharged. It was undisputed that he called his
supervisor before he was scheduled to return to work on August 18, advised him of
his illness and that he was unable to tell when he could return to work because he
didn't know when he would be fully recovered.
The record, in my opinion, establishes that Kelly was ill, though not confined con-
tinuously to his home, from August 18 to August 28. On August 22, Kelly saw
Dr. Kemeny at which time the latter found him to be ill with gastroenteritis, the
symptoms of which correspond to Kelly's description of his condition on August 18.
The supervisor of Respondent who called on Kelly on August 22 reported to Stouffer,
acting factory manager, that Kelly "looked peaked and nervous," a report which
McGregor also received. On August 29 Dr. Kemeny certified in writing that Kelly
was too ill to work during the entire period under consideration. And, though Re-
spondent knew on August 18, and was again advised on August 22, of Kelly's ill-
ness and the indefinite date on which he thought he would be able to return, it made
no attempt to have its own doctor examine him.
In arriving at my overall conclusion on this phase of the case I have been mindful
that it was not necessary for Respondent to establish that Kelly was in fact malinger-
ing or absenting himself from work without proper excuse. It would be sufficient
ground for discharge if Respondent believed him guilty of such an offense, pro-
vided however, it had reasonable grounds for such belief and that it discharged
him for that reason. While it is true that Dr. Kemeny told Dr. Palmer on August 28
that he thought Kelly was well enough to have returned to work on August 25, the
conversation between the two doctors on September 3 made it clear that Dr. Kemeny's
original statement about Kelly's ability to return to work on August 25 was made
in reliance on Kelly's prediction to his doctor on August 22. And, while it is also
true that this explanation did not reach Respondent until after Kelly's discharge,9 it
was nevertheless brought to its attention in the grievance meetings that followed
the discharge, but without avail. This, notwithstanding Dr. Palmer's testimony that
normally the Company accepts a doctor's certificate as to the illness of an employee
"at face value," and that at the conclusion of his conversation with Dr. Kemeny on
September 3, he "knew" that the reason the latter had certified September 2 as the
terminal date of Kelly's illness was because of his "diagnosis , . . of gastroenteritis."
Furthermore, it was Dr. Palmer's professional opinion that "if Kelly had continued
to show the same symptoms after he visited Dr. Kemeny, (which symptoms Kelly
testified he continued to have), it is possible he could not have been able to report
on August 25."
Also of significance is the testimony of Eugene Lyons, Respondent' s vice presi-
dent in charge of employee relations, that the Company's "policy on absenteeism . . .
9 Dr Palmer reported the explanation to McGregor.
MERCK AND COMPANY, INC. 81
is not the same for all types of absenteeism . . . For repeated absence in which the
employee did not claim sick benefits,1° just absence without a suitable excuse, usually
we will accept two or three of those without discharge." In connection with that
testimony, and to further establish disparate and discriminatory treatment of Kelly,
the General Counsel offered in evidence copies of eight warning notices issued by
Respondent to other employees for unexcused absences. In none of the cases was
the violator discharged, and disciplinary measures were applied only in the case of
S. Fabrisky. The remainder were let off with warnings.
Among these warnings was one to Miss Kay Byram for absences of 72 days during
the year, "20 of which were unknown absences." Another, to J. A. Smith, was for
absence of 26 days during a 6-month period, "20 of which were unknown absences."
Fabrisky was disciplined with a 5-day layoff for an absence from May 23 to June 6.
Fabrisky had not only failed to give notice of his absence, but "his absence was not
authorized by plant health on his return to work." [Emphasis supplied.] The
quotation last noted on Fabrisky's warning notice is also significant in determining
the bona fides of Respondent's position in connection with Kelly's absence. When
Kelly presented Dr. Kemeny's certificate to Dr. Palmer on September 3, the latter did
not know that Kelly had already been discharged and the doctor then assumed that
Kelly's purpose in reporting to him "was [for] the standard checkup for an employee
absent more than 2 weeks coming back to work." Respondent, however, offered no
evidence that either Dr. Palmer, or anyone else in plant health had not "authorized"
Kelly's absence to September 2, a condition which Respondent apparently deemed
necessary before it imposed a 5-day layoff on Fabrisky. It must, therefore, be
assumed that Dr. Palmer, at least, was satisfied with Dr. Kemeny's certificate of
September 2 and the latter's explanation for the change in Kelly's anticipated return
to work, and that Kelly's absence was therefore "authorized" by plant health.
Furthermore, no question was raised by Respondent with regard to the bona fides
of Kelly's reported illness at least to August 25, the date that both Kelly and Dr.
Kemeny thought the former would be able to return to work. Thus, at best, Respond-
ent seeks to justify Kelly's discharge for his unexcused absence only from that day
to August 28. As a chemical worker in a plant manufacturing pharmaceutical sup-
plies, Kelly, who was suffering from nausea and the other discomforts heretofore
described, though not confined to his home, apparently deemed it injurious to his
health or well-being to return to work on August 25. What are the activities to which
Respondent points as proof that Kelly was malingering from August 25 to August 28?
On August 25 he attended his own trial on a disorderly conduct charge; on August 27
he attended the similar trial of De Midio; on August 28 he attended a conference
pertaining to the representation proceedings filed with the Board. Though the
record does not establish what Respondent's reaction would have been had Kelly
returned to work on August 25 and requested leave to attend to the 3 matters just
mentioned , I cannot believe that Respondent, in the light of Kelly's apparently 14
years of faithful service without any other criticism of his work, and his position as
president of the Union, would have denied his requests for leave.
On the entire record I find that Kelly was not discharged because he was "absent
from work without permission" as alleged in Respondent's discharge letter of
August 28.
4. Kelly's alleged "unreliability and untrustworthiness"
Two factors alone are relied upon by Respondent to support the allegation in the
discharge letter that it discharged Kelly because he had "demonstrated unreliability
and untrustworthiness in a number of ways, including the giving of testimony under
oath in court which the record shows to be conflicting." [Emphasis supplied.]
Though the matter is not specifically mentioned at all in the discharge letter,
Respondent devoted most-of its attention at the hearing, and in its brief on this phase
of the defense, to the charge that Kelly demonstrated unreliability and untrustworthi-
ness by failing to recommend the memorandum of July 22 to the union membership
at its meeting on July 23. True, Kelly did not heap praise on the settlement memo-
randum, nor indeed did he make any oral statement urging the membership to ratify
the proposed settlement. On the entire record, however, I find that pursuant to
Kelly's instructions, the union secretary read the entire memorandum to the member-
ship, including the portion that "the union committee agree[d] to recommer'1 the
[memorandum] for acceptance by the membership." By that instruction and read-
ing, Kelly performed his responsibility as a negotiator for the Union, and discharged
whatever duty he owed Respondent.
10 There was no evidence offered that Kelly claimed such benefits
338207-55-vol. 110-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection, it is also to be' noted that the memorandum imposed no duty
upon Kelly, or any other member of the committee, to individually recommend its
acceptance to the membership. The memorandum only required the "committee"
to recommend the settlement. Seven other union officers or committee members had
initialed the July 22 memorandum and practically all of them were on the stage when
it was read to the approximately 800 members in attendance at the meeting of July
23. Apparently, all of the committee members were satisfied that the reading of the
entire memorandum and Kelly's presentation thereof was a proper execution of any
duty imposed on Kelly, or them, for no one, insofar as the record discloses, made any
suggestion or offered any criticism of that presentation during the entire meeting.
And, if Respondent was of the opinion that Kelly as a member of the committee
demonstrated untrustworthiness and unreliability by failing to individually exhort
the membership in support of the memorandum, it is reasonable to ask why Respond-
ent did not discharge any or all of the other members of the committee who sat on
the stage at the union meeting, but none of whom made any individual recommenda-
tion that evening. Also, whether or not the ground for discharge now under con-
sideration is an afterthought is suggested by the fact that while the letter discharging
Kelly specifically describes each of the four other grounds allegedly relied upon for
the termination, Kelly's presentation of the settlement memorandum was not
specifically mentioned.
In sum, I find that the union committee and Kelly performed their obligation under
the July 22 memorandum. I further find that Kelly's conduct with reference thereto
did not, nor could Respondent reasonably believe that it did, demonstrate the gen-
eralized "unreliability and untrustworthiness" mentioned in the letter by which he
was discharged." With regard to the remaining defense relied upon, that Kelly
gave "testimony under oath in court which the record shows to be conflicting," I
find no competent, probative evidence to support such an accusation.
Additional Concluding Findings
There are other factors present which have influenced my ultimate conclusion
herein. Especially noteworthy is the timing of the discharge. It followed by 1
day, or 2 days at most, after which McGregor read a newspaper report that Kelly
had met with a Board field examiner to discuss Kelly's charge that the strike settle-
ment agreement was void and his contention that "no contract exists since he as
president did not sign" the contract. The report apparently distressed Respondent
for, according to McGregor's own testimony, he called the Board's field examiner
because the Company was "interested" in having the CIO petition for an election
dismissed and was "hopeful that the contract would be [held to] be a bar to a
hearing." Nor was the Company unaware of Kelly's connection with that proceeding,
for both McGregor and Braun testified that prior to that time each had heard
"rumors" that Kelly had contacted the CIO.
Significant also is the testimony of Lyons, who testified that it was company "policy
that there was to be a careful investigation of each of the cases of alleged misconduct
before a discharge was effected." The record does not disclose what investigation
Respondent generally conducted, but it is to be assumed that no investigation worthy
of the designation would be considered complete without an opportunity for explana-
tion by the accused. What "careful investigation" was made by Respondent of the
reasons for Kelly's discharge mentioned in the letter of August 28, for any one of
which Respondent had stated it had grounds to discharge him?
Considering the first ground relied on-Kelley's unlawful conduct the evening of
July 14-it may be urged that Kelly's subsequent conviction was sufficient com-
11 By reason of the finding just announced, I find it unnecessary to consider the General
Counsel's alternative argument that whether Kelly recommended the memorandum agree-
ment or not, his conduct with reference thereto was a protected union activity for which
he could not legally be discharged. The following cases seem to sustain that theory
Atlantic Towing Company, 75 NLRB 1169 ; American Shuffleboard Company v. N. L. R. B.,
190 F. 2d 898 (C. A. 3). In that situation, even though it be assumed that Kelly did not
do everything that Respondent expected of him in order to secure the union membership's
approval of the memorandum agreement of July 22, Kelly's discharge would be in violation
of the Act. "It is well settled that where a clearly unlawful reason is one of the motivat-
ing causes of a discharge, the coexistence of a separate valid reason does not eliminate
the unlawful aspect of the employer's action." Kingston Cake Company, Inc., 97 NLRB
1445, 1451, remanded on another ground 191 F. 2d 563 (C. A. 3) ; N. L R. B. v Whltin
Machine Works, 204 F. 2d 883 (C. A. 1) ; N. L. R. B. v. Coal Creek Company, 204 F. 2d
579 (C A 10).
MERCK AND COMPANY, INC. 83
pliance with Respondent's established policy. In both argument and brief, how-
ever, as has heretofore been pointed out, Respondent made it clear that it was rely-
ing on "the unlawful conduct in which Kelly was engaged," and not on his conviction.
Here, Kelly was never asked to give his version of that incident, notwithstanding
that McGregor had heard that Kelly "denied what the police officers who arrested
him asserted in their arrest." In the case of Konic, however, who was reinstated
though he too was convicted of disorderly conduct, no action was taken on his case
until after Lyons had received Konic's version of the incident, and notwithstanding
that his story was inconsistent with that of the arresting officers and the subsequent
finding of guilt by the court. After making that investigation, Konic was reinstated.
Turning next to the "investigation" of the threats of violence allegedly made by
Kelly to Dalia, insofar as the record establishes, all that Respondent did was to
accept the statements of Dalia, Maurer, and Hart pertaining to the telephonic threat
heretofore described. Kelly, however, was never given an opportunity to deny the
incident before he was discharged. And, in connection with Kelly's alleged "malin-
gering" after August 25, whatever "investigation" was made by Respondent did not
include an opportunity to Kelly to give his side of the story.
By reason of all the foregoing, my ultimate conclusion is that Kelly was not
discharged for any of the reasons assigned by Respondent. Rather, I find that
Respondent terminated his employment because of the part he played with the CIO
in initiating the movement which ultimately succeeded in setting aside the contract
which Respondent thought it had effectively secured from the Independent Union.
With respect to all the objectionable conduct on which Respondent now relies, I am
convinced that, as to a part thereof, it was nonexistent and was interposed merely
as a pretext to cover Respondent's true motive; as to the remainder, until Kelly
allied himself with the CIO to set aside the contract with the Independent Union,
these derelictions "were all condoned; . . . the straw that broke the back of
[Respondent's] tolerance and condonation was the union activity." Magnolia
Petroleum Co. v. N. L. R. B., 200 F. 2d 148 (C. A. 5). By reason of Kelly's dis-
charge, Respondent violated Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with the operations of 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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I will recom-
mend that it cease and desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
It having been found that Respondent discriminatorily discharged Joseph Kelly
on August 28, 1952, it will be recommended that Respondent offer him immediate and
full reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole for any loss
of pay he may have suffered by reason of Respondent's discrimination against him
by the payment of a sum of money equal to that which he would normally have
earned as wages from the date of the discrimination against him to the date of offer
of reinstatement, less his net earnings during that period. All computation of back
pay shall be made in accordance with the rules and methods laid down by the Board
in Crossett Lumber Company, 8 NLRB 440, and F. W. Woolworth Company, 90
NLRB 289.
Because of Respondent's unlawful conduct as heretofore found, and its underlying
purpose, I am convinced that the unfair labor practices found are persuasively related
to the other unfair labor practices proscribed by the Act and that the danger of
their commission in the future is to be anticipated from the source of Respondent's
conduct in the past. The preventive purpose of the Act will be thwarted unless the
recommendations are coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and to minimize strife which burdens and obstructs commerce,
and thus to effectuate the policies of the Act, it will be recommended that Respondent
cease and desist from in any manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by 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:
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
1. By discharging Joseph Kelly on August 28, 1952, Respondent violated Sec-
tion 8 (a) (1) and 8 (a) (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
PARKER BROTHERS & COMPANY, INC. and SHELL WORKERS' INDEPEND-
ENT UNION , PETITIONER . Case No. 39-RC-791. September 28,1954
Decision and Certification of Representatives
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on June 2, 1954, among the
employees in the stipulated unit. At the conclusion of the election,
the parties were furnished a tally of ballots which showed that of 399
eligible voters, 302 cast ballots, of which 232 were for the Petitioner,
27 were for the Intervenor, Houston Metal Trades Council, AFL, 9
were for the Intervenor, United Stone and Allied Products Workers
of America, CIO, 4 were against both labor organizations, 4 were
void, and 26-a number insufficient to affect the results of the elec-
tion-were challenged.
Thereafter, the Intervenors timely filed separate objections to con-
duct allegedly affecting the results of the election. The Regional
Director investigated the issues raised by the said objections, and on
June 18, 1954, issued and duly served upon the parties his report on
objections to conduct, affecting the results of election in which he
recommended that the Intervenors' request for formal hearing be
denied and that the results of the election be certified. Thereafter,
Houston Metal Trades Council, AFL,' filed timely exceptions to the
Regional Director's report.
The Board has considered the Regional Director's report on objec-
tions, the exceptions filed by Houston Metal Trades Council, AFL,
and the entire record in the case, and hereby makes the following
findings :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved herein claim to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
1 Although United Stone and Allied Products Workers of America, CIO, filed objections
to conduct allegedly affecting the results of the election, it did not file exceptions to the
Regional Director's report.
110 NLRB No. 15.