Milco, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1966

159 N.L.R.B. 812 (N.L.R.B. 1966)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milco , Inc., T.O.D. Manufacturing Co., Inc . and Allan Marine
Division of Jervis Corp. and Ronald Thorpe, an individual.
Milco, Inc., T.O.D. Manufacturing Co., Inc. and Allan Marine
Division of Jervis Corp . and Processing and Fabricating Work-
ers Union , Local 321, National Organization of Trade Unions.
Cases 29-CA-225 and 469. June 21,1966
DECISION AND ORDER
On April 18, 1966, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
ents had eng.i,ged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, a
amended, and recommending that they cease and desist therefrom
,and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. She also found that Respondents had not
engaged in other unfair labor practices alleged in the complaint and
recommended dismissal of those allegations. Thereafter, the Respond-
ents and the General Counsel filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amended charge filed respectively on April 23 and August 23,
1965, by Ronald Thorpe, an individual, in Case 29-CA-225, a complaint was
issued on August 31, 1965. The complaint, as amended at the hearing, alleged
that Milco, Inc., T.O.D. Manufacturing Co., Inc., and Allan Marine Division of
Jervis Corp., herein collectively called Respondents, had engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondents filed an answer and an amended answer
denying that they had engaged in the unfair labor practices alleged. A hearing
was held before Trial Examiner Fannie M. Boyls in Brooklyn, New York, on
November 22 and 23, 1965. Thereafter the General Counsel and Respondents
filed briefs.
159 NLRB No. 76.
MILCO, INC. 813
On January 31, 1966, befoie any decision had been issued in Case 19 -CA-225,
the General Counsel filed a motion to reopen the record and consolidate the com-
plaint in that case with a new complaint which had been issued against Respondents
in Case 29-CA-469. The new complaint , which was based on a charge filed on
November 26, 1965, alleged that as a result of the unfair labor practices alleged
in Case 29-CA-225, the employees had gone out on strike and that upon a ter-
mination of the strike, Respondents had denied reinstatement to 16 of the strikers.
in violation of Section 8(a)(3) and (1) of the Act. Over the opposition of
Respondents , the General Counsel's motion to reopen the record and consolidate
the two cases was granted . A further hearing was held before me at Brooklyn,
New York, on March 16 and 17, 1966 . After the conclusion of this hearing,
Respondents submitted a supplemental brief.
Upon the entire record, including all the briefs and arguments of counsel, and
upon my observation of the demeanor of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
The Respondent companies are affiliated businesses with common officers, own-
ership, directors , operators , and a common labor policy . As a single integrated
business enterprise , they are engaged in the manufacture , sale, and distribution of
marine and aircraft parts and hardware and related products at their common
manufacturing facility in Hicksville, New York. During the year 1964 , which is
a representative period, Respondents sold and shipped from their plant in Hicks-
ville, New York , to points outside the State of New York products valued in
excess of 50,000. Respondents conceded and I find that they are an integrated
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Processing and Fabricating Workers Union , Local 321, National Organization
of Trade Unions , herein called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Setting and issues
In late December 1964 , the Union began an organizational campaign at Respond-
ents' plant . Respondents conceded and stipulated at the hearing that they were
opposed to the Union representing their employees and that prior to April 9,
1965, when the Board conducted an election at their plant , they campaigned
against the Union by way of speeches , letters, and other communications to their
employees , but in a manner legally permitted under the Act. The issues presented
in the first case are whether , in addition to legally permissible antiunion conduct,
Respondents , during the preelection period, engaged in other conduct including
interrogation , threats, and surveillance which is proscribed under Section 8(a)(1)
of the Act , and whether Respondents ' discharge of employee Ronald Thorpe, an
active union member, on April 22, 1965, was discriminatorily motivated and in
violation of Section 8(a)(3) and ( 1) of the Act.
The Union called a strike on June 10 , and on July 14 , 1965, when the strike
was called off, 16 of the strikers who applied for reinstatement were not reinstated
because they had been replaced . The General Counsel contends in the second
case that the strike was caused by Thorpe's discharge and Respondents ' refusal
to reinstate him, that the strikers were therefore unfair labor practice strikers,
entitled to reinstatement upon their application , and that Respondents ' refusal to
reinstate them was a further violation of Section 8(a)(3) and ( 1) of the Act.
Respondents , on the other hand, contend that Thorpe was discharged for
excessive absenteeism , following a number of warnings , and not because of his
union activities . They also contend that the strike called on June 10, 1965, was
not because of Thorpe 's discharge , or because of any unfair labor practice, that
they had replaced the strikers with other employees and had no jobs available for
the strikers when they applied for reinstatement , and that they were therefore not
obliged to discharge those hired during the strike to make room for the returning
strikers.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
1. The alleged surveillance
From the commencement of the Union's organizational campaign in late Decem-
ber 1964, to the election on April 9, 1965, the union representatives, Musachio
and Ponce, stood daily at the driveway entrance to Respondents' plant and handed
out leaflets or sought to talk to employees entering and leaving the plant by car.
The driveway runs into a very busy street and during rush hours traffic jams fre-
quently occur. After work, the approximately 140 cars driven by Respondents'
employees would usually have to wait several minutes each before being able to
enter the stream of traffic on the street. Each day during this period, as cars
left the plant at the end of the workday, one or more of the Respondents' repre-
sentatives, including' General Foreman Jack Paolucci, and Foremen Torriere,
Elliot, Tur, Nich Chion, and Sobeck, stood at the entrance to the plant, at the
office window, in the doors to the shipping department, or on the platform of the
receiving department, and watched the union organizers and the employees who
were leaving by car. The General Counsel contends that this conduct, which
Respondents freely admit, constituted surveillance by Respondents of the union
activities of their- employees, in violation of Section 8 (a) (1) of the Act.
General Foreman Paolucci testified that management representatives watched
the employees departing the plant because of reports from some employees, whom
he named, that the union organizers were slowing down the exit of the cars and
Respondent's desire to correct this situation and also because the organizers some-
times stood as much as 20 feet within company property and Respondents objected
to this trespassing. In the latter connection, Paolucci testified that it became
necessary on occasions to call the police to get the organizers off company property
when they had refused to leave.' Paolucci's explanation of Respondents' represen-
tatives' watching of the organizers and the traffic situation at quitting time in the
afternoon appears plausible and I have no reason to doubt it. There is no evidence
that any management representatives made notes or otherwise recorded what they
saw, and the union representatives and the employees were careful not to disclose
which employees were interested in the Union. Those employees who had signed
up other employees for the Union would fold the cards and pass them to the
union organizers as the latter reached into the cars to shake hands. Even if it
had been possible for management to observe which employees were passing cards
to the union organizers in this manner, I find nothing unlawful in management's
conduct under the circumstances. Union representatives and employees who choose
to engage in their union activities at the employer's premises should have no
cause to complain that management observes them.
2. Interrogation and threats
a. By General Manager Rienzo
According to the undenied and credited testimony of employee Cocheo, when
he asked General Manager Rienzo in March about a raise in pay, Rienzo replied
that he would look into the request, adding, "But let's get this union business out
of the way first." On that occasion Rienzo also asked how Cocheo felt about
the union situation in the plant. Cocheo replied that he thought more people
were for the Union than the Company thought.
On the payday before the election, Rienzo stopped at the machine of Charlotte
Kuke, asked her to stop the machine, then asked her if she knew how to vote.
When she replied that she did, he asked if she was sure and told her his belief
that Respondents' employees did not need a union. He invited her to come to
his office at any time for help if she did not know how to vote. Rienzo then pro-
ceeded to talk with other employees in the department.
b. By Foreman Tur
A few weeks before the election Foreman Mario Tur told employee George
Doce, according to the latter's undenied and credited testimony, that at a fore-
man's meeting which he had attended, the foremen were "asked more or less by
'Union Representative Musachio testified that Paolucci threatened to call the police
before the election but that no police officer spoke to him until after the commencement
of the strike in June. I find it unnecessary to resolve this conflict, for under either version
it is apparent that Paoluccl had objected to Musachio's presence on company property.
MILCO, INC. 815'-, ,
Rienzo to inquire with the people what was their opinion about the Union and
trying to find out-and influence them to vote against the Union."
On another occasion about 2 weeks before the election, according to the testi-
mony of Charlotte Kuke, Foreman Tur came into the packaging and shipping
department and told a group of girls there, "The boss might close down the plant
and you people won't have no Work if you vote for the Union and you better
speak about it." At one point in her testimony, Kuke indicated that she had heard
Tur make substantially the same remarks on three occasions but later conceded
that she personally heard him only once and that her testimony about the other
occasions was based on what other girls had told her. Tur denied the statements
attributed to him by Kuke. He testified, "I don't do that because this is a free
country, anybody do whatever he wants to because this is a free country. You
are not supposed to tell nobody what to do." None of the other employees
allegedly present in the group named by Kuke as being addressed by Tur were
called to corroborate her testimony. Although on the basis of Kuke's testimony
as well as that of Doce, infra, I am satisfied that there was talk in the plant about
the plant closing if the Union won the election, I find that the General Counsel
has not sustained his burden of proof in regard to this alleged threat by Tur and
do not base any unfair labor practice finding upon Kuke's testimony in that
regard.2 •
c. By Foreman Torriere
George Doce credibly testified that during the week before the election, Foreman
Torriere called him into the stockroom and asked him what he thought of the
union situation. Doce replied that "the whole thing [looked] very close" to him.
Torriere then stated "that if the union ever gets into the place these will be lots,
of trouble and layoffs and perhaps the company would close out and will move
this company or- Mr. Gittelson [company president]-he would move the com-
pany to another premises. Maybe he would move to Tennessee or Michigan or
even Puerto Rico where they have other plants." Torriere, referring to President
Gittelson as "the old man," stated "I don't know what the old man might do." 3
The possibility of the plant closing down in the event the Union should win the
election was a general topic of conversation in the plant according to Doce's
credited testimony..
d. By Foreman Sobeck.
In mid-March, according to the credited testimony of employee Ronald Thorpe,
Foreman Sobeck approached him and asked him what he thought of the Union.
Thorpe, although at that time an ardent union advocate, evaded a direct response
to Sobeck's question and instead stated that he thought some unions were good
and some were bad and gave arguments for and against unions. A few days after
the election, Sobeck told Thorpe he was shocked at how many votes the Union
had received and stated that he "was almost sure he could say who voted for the
Union and who didn't." When Thorpe` retorted that Sobeck could not be sure
about those things, Sobeck replied, "I_ bet I can tell you how you voted." Thorpe
told him to "go ahead," and Sobeck said, "You voted for the Union." Thorpe
then acknowledged that he had .4
2According,to Kuke^s undenied and credited testimony , lead girl Filomena Rahebrand
asked her one day during the preelection period whether she had mailed her union card
into the Union and expressed her disapproval of the Union . The General Counsel con-
tends that Rahebrand , during the several months before the election when her department
was without a foreman , responsibly directed the work of the employees under her and
was therefore a supervisor within the meaning of the Act and that Respondents were
responsible for her interrogation of Kuke Respondents deny that she was a supervisor
even during the period when her department had no regular foreman . I need not and do
not decide this issue, for a finding that Rahebrand was a supervisor during that period
and that Respondents were responsible for her interrogation of Kuke would not broaden
the scope of the order herein recommended to remedy other acts of coercive interrogation
by Respondents
8 Torriere categorically denied making any such statement to Doce but Doce impressed
me as the more forthright of the two witnesses and I credit his testimony.
* Sobeck did not deny questioning Thorpe in mid-March about what he thought of the
Union. He testified that he did not recall having the postelection conversation with
Thorpe but did not deny that it occurred. He did testify that he never said he "knew"
who voted for the Union but I do not regard this as necessarily a denial of Thorpe's
testimony. In any event, I am satisfied that a conversation, substantially as that related
by Thorpe, did occur.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. Conclusions
The interrogation of employees by General Manager Rienzo and Foremen
Torriere and Sobeck was of the type which, if truthfully and frankly answered,
would have disclosed the union sympathies of the employees questioned. It is
immaterial whether Rienzo's instructions to the foremen to inquire of the emplovee-
about their opinion of the Union may have had the intent only of enabling
Respondents to select those employees which it needed to persuade to vote against
the Union, for the interrogation, occurring as it did, against a background of
employer opposition to the Union expressed through speeches, letters, and other
communications, and also against the background of general talk in the plant that
the plant might close down or move if the Union won the election (talk for which
Respondents were at least in part if not wholly responsible) had the natural tend-
ency to coerce the employees in their organizational rights. Although it is not
necessary to show the actual coercive effect on conduct which by its nature is
coercive in order to establish a violation of the Act, there is an indication in the
record here that the interrogation had that effect. This is shown by the fact that
none of those who testified about the interrogation prior to the election, through
union supporters, frankly acknowledged their support of the Union and instead
gave equivocal answers to the questions asked them.
Whether Foreman Torriere's prediction to employee Doce that President Gittelson
would close the plant down or move it to one of Respondents' other locations in the
event of a union victory sparked the general talk in the plant about the plant closing
if the Union won the election or whether his prediction merely added fuel to a fire
already started is not clear from the record but, in any event, his statements clearly
constituted a threat of reprisal against the employees should the Union win.
I find that by threatening plant closure or removal in the event of a union victory
at the polls and by coercively interrogating employees about the Union, Respond-
ents interfered with, restrained, and coerced them in the exercise of their Section 7
rights, in violation of Section 8(a)(1) of the Act.
C. The discharge of Ronald Thorpe
Thorpe was one of the Union's active supporters in the organizational campaign.
He was one of the employees who covertly transferred folded signed union cards to
Union Representative Musachio when the latter from time to time reached into the
car in which Thorpe was a passenger to shake hands. Musachio estimated that
Thorpe gave him 8 to 10 signed cards in this manner. Musachio believed, however,
that no one from management saw the transfer of these cards and Union Repre-
sentative Ponce testified that he and Musachio did everything they could to conceal
from management which employees were the key people in the organizational drive.
Despite the interrogation by some representatives of management of a number of
employees as to how they felt the Union was progressing and the possibility of
management's learning in this manner the identity of some of the union supporters,
I am not persuaded that Respondents knew prior to April 9, 1965; the day of the
election, that Thorpe was an ardent union supporter.
On April 9 Thorpe had a conversation with employee Doce, within hearing dis-
tance of General Foreman Paolucci and Foreman Sobeck, in which he stated in a
loud voice that he would challenge certain part-time workers and office employees
if the union observers failed to do so. On the same day, after an initial tallying of
the ballots, without resolving the challenges, indicated that the Union might have
won the election, Union Representative Musachio announced the results and his
belief that the Union had won. Thorpe, thereupon, in the presence of various super-
visors, shook Musachio's hand and expressed happiness over the results. In a con-
versation with Thorpe a few days later, as already described, Foreman Sobeck
expressed shock at the number of votes the Union had received in the election, com-
mented "that he was almost sure he could say who voted for the Union and who
didn't," and indicated that he felt certain that Thorpe had voted for the Union.
Thorpe then acknowledged that he had done so. Upon the basis of this evidence
it is reasonable to infer, and it is found, that Respondents knew prior to their
decision to discharge Thorpe that Thorpe was an ardent union supporter and had
voted for the Union.
Thorpe was employed by Respondents upon three separate occasions: from June
to August 17, 1956, when he quit; from September 1956 to September 6, 1957, when
he was drafted into the Armed Services; and from December 28, 1964, to April 22,
MILCO, INC. 817
1965, when he was discharged . No complaint had ever been made to him about
the quality of his work and he received a merit increase on March 15, 1965. The
incident which precipitated his discharge was his absence on April 22.
The circumstances surrounding .Thorpe's discharge , as related by the General
Counsel's witnesses , may be summarized as follows : On the morning of April 22,
Thorpe felt ill and asked Cliff Haist , the employee with whom he lived and regularly
rode to work, to tell his foreman, Sobeck, that he was sick and would not report to
work that day. When Haist arrived at the plant, before the 7:30 starting time,
he looked for Elsie Barone, Respondents' nurse-whose duties included the keeping
of attendance records-with the intent of reporting Thorpe's absence to her. The
employees usually notified her when they were absent . Haist could not find her
and went to his workbench when the starting buzzer sounded .5 Later, about 8 or
8:30 a.m ., according to Haist and employee George Doce , who worked 4 or 5 feet
from Haist , Foreman Sobeck came to Haist and asked where Thorpe was. Haist
replied that Thorpe was out sick.6
On the afternoon of that day, according to Thorpe's credited testimony , Personnel
Manager Reardon telephoned Thorpe at his home and told him he was being dis-
charged "for failure to call in sick for that day." Thorpe explained that he had
asked Haist to inform Sobeck of his absence . Reardon made no response to
Thorpe's explanation and merely asked him if he wanted his paycheck mailed or
sent to him by Haist . He told her to give the check to Haist and she did.7
On the day following his discharge , Thorpe, accompanied by Union Representa-
tive Musachio, went to the plant and requested Respondents ' president, Gittelson,
to reinstate him. Gittelson said he knew nothing about the discharge and promised
to investigate the matter , discuss it with General Manager Rienzo and let them know
what Respondents would do . They waited for about 2 hours outside the plant for
a word from Gittelson but heard nothing. Musachio then took Thorpe to the of-
fices of the National Labor Relations Board where Thorpe filed unfair labor prac-
tice charges against Respondents . Musachio explained at the time, "If they reinstate
you, you can always withdraw them ." 8 That afternoon Musachio telephoned Rienzo
about Thorpe's discharge but Rienzo refused to talk to him about the matter, stating
that Musachio did not represent the employees and that Thorpe could come to the
office and see Rienzo personally if he wished. On the same day Thorpe did seek
out Rienzo . Rienzo told him that he was discharged for failing to report in sick on
the previous day. When Thorpe explained that he had requested Haist to report his
illness and absence to Sobeck, Rienzo replied that there was a possible misunder-
standing and that he would check into the matter because Thorpe "was a good fel-
low and they need a good worker in the plating room." He asked Thorpe to call
him on the following Monday . When Thorpe called, Rienzo reported to him that
no one in the plant had known that Thorpe was out sick for the day.
Later, after being served with a copy of the unfair labor practice charge, General
Manager Rienzo wrote the Board's investigator a letter, dated April 29, 1965,
explaining that Thorpe was discharged "because of excessive absenteeism ," listing
nine dates upon which Thorpe had been absent since his employment on Decem-
ber 28, 1964, and stating that Thorpe had been given two written warnings because
of his absences . The letter also stated that he had been told on the occasion of the
8 Haist testified that before starting time Foreman Tur inquired of him as to Thorpe's
whereabouts and that Haist informed Tur that Thorpe was out sick that day.
Tur testi-
fied that he did not remember Haist ever telling him that Thorpe would be out because
of illness ; and in a statement given to a Board agent , Haist stated that Sobeck was the
only management representative to whom he reported that Thorpe was sick and would be
absent that day. I am not ' convinced that Haist in fact informed
Tur of Thorpe's
'absence.
8 Since Haist•is a cripple and gets around only in a wheel chair, he could not go upstairs
to notify Personnel Manager Reardon of Thorpe's absence . Because of his physical con-
dition, people at the plant usually go to him rather than vice versa.
7 Reardon did not testify regarding ' the exact conversation she had with Thorpe but
testified that General Foreman Paolucci told her sometime after lunch 'that day to call
Thorpe and "release him because of poor absences ," and that she did.
s The sequence of events is based on Thorpe's recollection, which I find to be more
accurate than that of Musachio. At the reopened hearing , when confronted 'with a state-
ment given to a Board agent placing the visit to the Board- offices as occurring subsequent
to the discussion with Rienzo, Musachio testified 'that he believed the statement was correct.
243-0867-vol. 159-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second warning that, unless he did something to correct this situation , drastic action
.would have to be taken . It also recited that Thorpe was given a 5-cent increase in
pay on March 15, 1965, because his foreman felt such increase might give Thorpe
an incentive to correct his bad attendance record . Attached to this letter were what
purported to be photostatic copies of two warning notices dated March 24 and
April 7, 1965, respectively, and signed by Sobeck and Paolucci . The purported
warning notice dated April 7 listed Thorpe's absence on April 22.8
Thorpe emphatically denied that he had ever received any written warning
notices, as stated in General Manager Rienzo's letter to the Board representative.
He,'testified that all his absences were because of illness and that although when
he reported ,back to work after an absence, the nurse or his foreman would usually
ask what had been wrong or how,he was feeling, he could recall only one occasion
when anything was said which could have been considered' in the nature of a
reprimand. This was on March 24, when Thorpe reported back to work 'after
being out 2 days with the "flu." On that occasion . Sobeck had told him that
Respondents frowned on absences, especially when an employee' was -out more
than 1 day at a time, and asked him to try not to be absent so often or to remain
out for more than 1 day. Thorpe had replied that he would-try to do better.;, He
testified that although he had been told when rehired in December 1964 that he
should telephone Elsie Barone, the nurse. when he was absent, he had on, several
previous occasions sent word by his friend Cliff Haist and no one had objected to
this procedure , He, also testified that Sobeck had never told him Respondents
would have to take drastic action if his attendance record did not improve.
Thorpe further testified that at the time he received his 5-cent an hour increase
in pay about March 15, nothing was said to him about his attendance record and
that Paolucci, before inquiring of Sobeck as to whether Thorpe was one of the
employees to receive a raise, had told him he was doing good work and to "keep
up the good work." 10
Foreman Sobeck, who accepted the responsibility for Thorpe's discharge, gave
the following explanations. Thorpe was the only employee trained to do cadmium
plating, a type of plating at which he worked about 50 percent of his time. If
Thorps was not available'for that work, Sobeck had to do it himself or break in
someone else to do it. For a week or more prior to April 22 there had been no
cadmium plating to do and Thorpe had been loaned to Foreman Tur for other
duties. On April 22 Respondent's expeditor came to Sobeck with a rush order
involving cadmium plating. Sobeck depended on Thorpe for that work. At first
Sobeck thought Thorpe was probably late to work and went about his regular
foreman's duties, forgetting about the cadmium work until the expeditor later
asked him about it. Sobeck had to explain' to the expeditor that he could not get
the work out that day because of Thorpe's absence. Sobeck testified that he then
became upset because he had no one to do the cadmium plating work and decided
to discharge Thorpe.ii He thereupon informed General Foreman Paolucci that
he wanted Thorpe discharged and requested Paolucci to take the necessary steps.
According to Sobeck, it was not until about 2:30 in the afternoon that he remem-
bered that Thorpe and Haist were "buddies" and rode to work together and at
that time he asked Haist about Thorpe and learned that Thorpe was out sick that
day. Before that he had already requested Paolucci to have Thorpe's paycheck
made out.
Thorpe had been absent a total of 9 days, on seven occasions, between Decem-
ber 28, 1964, and his discharge on April 22, 1965. Sobeck testified that he had
spoken to Thorpe about his absences "a number of times-2, 3, possibly 4 times";
that in March when Thorpe was out for 2 successive days, he told Thorpe "that
the Company didn't like his absenteeism, that they wouldn't tolerate it-that they
frowned upon it in general "; and that "there is one time that I handed him a warn-
ing . . . I would say a few weeks . . . before they laid him off .... I am not
0 Respondents' counsel, at the hearing, though conceding that Respondents had sent this
letter and attachments, objected to their admission in evidence and stated that Respond-
ents were not relying upon the purported copies of warning notices in their defense of the
unfair labor practice charges.
10 Sobeck testified that he, too, might have said something to that effect to Thorpe, but
not at the time he was given a raise.
11 The General Counsel asserts in his brief that Sobeck acknowledged at the hearing that
another employee, Joe Busi, was also trained to do cadmium plating, but as I Interpreted
Sobeck's testimony, Bust was in Respondents' employ for only a short time while Thorpe
was employed there. He ii as not employed at the time of Thorpe's discharge
MILCO, INC. 819
exactly certain as to the time, the exact time" ; that when giving him the warning,
he told Thorpe "that the Company would be liable to take drastic action if he
continued his absenteeism"; and that when he gave Thorpe the warning, Thorpe
had said, "'Well, what can I do' or words to that effect." Sobeck further testified
that at about the time he gave Thorpe a raise in pay, he told Thorpe that if he
wanted any more raises, he should watch his absenteeism, and that Thorpe had
replied that he "would try to be more consistent in his attendance "
On cross-examination,' Sobeck testified that he knew that "at least once" he told
Thorpe "that he was taking too many days off and generally the Company frowned
upon it, this was the direct warning." This was said in a friendly fashion because
Sobeck "didn't want to rile up anybody." Sobeck testified that he was certain
that he gave Thorpe one written warning, a carbon copy of something. He identi-
fied his signature on the two purported written warnings to Thorpe attached to
Rienzo's letter to the Board agent explaining Thorpe's discharge. On the second
purported warning notice, dated April 7 and listing April 22 as one of the dates
Thorpe was absent, there appears the following statement: "Employee was told
that unless he corrected this situation we would have to take drastic action."
Sobeck testified that he-made that statement. Sobeck could not explain the list-
ing of the April 22 absence on the notice, except to state that it must have been
added, subsequent to the time it was signed and handed to Thorpe. He testified
that in March before giving Thorpe a warning slip, he had investigated Thorpe's
absentee record when he noticed Thorpe had been taking days off and discovered
that his absences were a "consistent trend
The warning slips are a regular procedure of Respondents, according to Sobeck.
The employee receives a yellow carbon copy and Respondents keep the original.
It is Respondents' policy to give two warning slips before discharging an employee.
The receipt of two warning slips "would be grounds to dismiss" and an employee
would be discharged if Respondents felt that he was not "up to par." Sobeck knew
of no instance when a third warning was ever given to an employee.
General Foreman Paolucci testified that he was present when Thorpe was
informed that he was receiving a 5-cent raise in pay about March 15. According
to Paolucci, he then told Thorpe, "Ronald, now that you got your raise, make sure
that you get in here every day on time" and Thorpe replied, "Jack, I will." 12 He
denied telling Thorpe at that time that he was doing good work and to keep it up.
Paolucci identified his signature on the purported warning notices dated March 24
and April 7, 1965, and testified that he signed them on the dates appearing thereon.
He testified that he did not personally give the warning notices to Thorpe, but that
he and Sobeck discussed them and that Sobeck gave them to Thorpe.
Personnel Manager Reardon, who has nothing to do with the decision to dis-
charge or hire an employee but performs certain administrative functions in con-
nection therewith, testified that during Thorpe's previous employment with Respond-
ents (a little more than a year in 1956 and 1957), Thorpe had a poor attendance
record and that General Foreman Paolucci decided to rehire him despite the fact
that she called to his attention Thorpe's previous poor attendance record. At the
time he was rehired, however, Reardon told him she had noted from his old employ-
ment card that he had a poor attendance record and she wished to refresh him in
regard to Respondents' attendance policy. She then proceeded to explain that when
he intended to be absent he should call the nurse, his foreman, or herself before 9
a.m. on the day of his intended absence and "that after three absences or four late-
nesses he was eligible to be released" if his previous record was poor.
She testified that she typed the letter sent by General Manager Rienzo to the
Board agent explaining Thorpe's discharge and that although the nurse , Elsie Bar-
one, normally prepares warning slips , she, Reardon prepared the purported warn-
ing slips which were attached to the letter.13 Specifically she testified as follows
with respect to those warning slips:
Q. (By Mr. STEINER. ) Tell us what you had to do with them9
A. I copied the list of-the original slips were lost; this was a duplicate made
of the warning slips that were given to Ronald Thorpe at one time . I made a
copy of the absences or latenesses that he had while he was with us.
Q. You lost the original warning slips?
A. They should have been in the file, but they weren't there, but this is
exactly the way a slip would have been.
1 Thorpe had been late to work only once-on January 6.
33 Neither Rienzo or Barone testified at the hearing.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Reardon did not specifically testify to that effect, it is a fair inference from
the above testimony, and I find, that it was subsequent to Thorpe's discharge that
she prepared the warning slips of the kind which normally would have been issued if
Respondents had in fact given Thorpe the warning slips.
In further support of their contention that Thorpe was discharged for excessive
absenteeism, Respondents introduced an "Extract of people who were released for
Absenteeism or Lateness during the period from 10/ 1/57 to present ," which had
been prepared by Reardon in preparation of Respondents ' defense , and on which
were typed the names of 12 employees , their starting dates, date of release , and the
number of days each was absent or late . To this list Reardon had subsequently
added in ink the names of three other employees but had not given their dates of
hire and release or their number of absences and tardinesses . The 12 employees
had been employed by Respondents for varying periods between 18 days and 10
months-9 of them for less than 4 months-and only a few of them could be said
to have had a greater number of absences than Thorpe in proportion to the length
of their tenure . These records by themselves , however, have little meaning. They
do not reflect the reasons for the absences , whether the employees timely reported
their absences or whether the employees ' work records were good or bad . There is
also a lack of meaningful evidence in regard to the 3 employees whose names were
later added to the list of 12 . There is no evidence as to their total absences. One
of them , Robert Lyons , who preceded Thorpe on the cadmium plating work, had,
according to Reardon, been employed 4 months, had a poor attendance record, and
after being out for a week , was released when he failed to produce written evidence
to back up his statement that he had been absent for the purpose of taking college
examinations and had not had time to call Respondents.
The General Counsel put in evidence a summary of the absentee records of two
other employees who, he claims , had worse absentee rcords than Thorpe during a
comparable period and were not discharged . But here, too , the basis for compari-
son is not too meaningful, for both those employees had a tenure of 10 years with
Respondents and there is no evidence as to their absentee records prior to 1964.
I am satisfied on the basis of all the evidence that Respondents had no specific
rule about the number of absences it would permit without taking disciplinary action
and that it considered such things as efficiency of the employee, his value to
Respondents and his tenure of service in making this determination . I am also satis-
fied that Respondents had a policy, as Foreman Sobeck testified, of giving an
employee two written warnings about such complaints and his poor attendance rec-
ord before releasing him for absenteeism. Respondents have not contended that
any of the employees released because of poor attendance records failed to receive
the two customary written warnings.
I am also convinced, as Thorpe testified, that Respondents never in fact gave
Thorpe any written warning. I base this finding in part on Thorpe's demeanor as a
witness. He testified in a straightforward and convincing manner and stood up well
under cross-examination. Moreover, he testified prior to Reardon and, so far as the
record shows, had no reason to know that Reardon would concede that the original
warning slips had been lost and that she had later prepared the purported copies of
the warning slips attached to the letter to the Board agent "exactly the way the slip
would have been." It is unlikely that he would have had the audacity to emphati-
cally deny receiving any written warning slip, as he did, if he knew the original of
the warning slips were in existence and could be produced at the hearing and identi-
fied by those responsible for issuing them. I note also that neither Respondents'
nurse, whose normal duty it is to prepare the warning slips, nor Respondents' gen-
eral manager, who signed and presumably composed the letter explaining Thorpe's
discharge following the two purported warning slips, were called to testify, at the
hearing. • This fact reinforces my conviction, and I find, that no written warning
was ever given to Thorpe.
Why then should Respondents have gone to such pains to make it appear that
Thorpe had received the two written warnings? The most plausible answer is that
the reason given for Thorpe's discharge was pretexual and that Respondents felt it
necessary to fabricate the two warning notices-which it normally gives before dis-
charging an employee-in" order to make the discharge appear to be for a good
cause.
It is true, as Respondents point out, that Thorpe did not have a, good attendance
record-nine absences on seven occasions in about 4 months. But he had been
rehired in December 1964 with the knowledge that during his previous tenure with
Respondents he had a poor attendance record and, despite a poor attendance record
MILCO, INC. 821
after being rehired, he had received a merit increase on March 15, 1965. On that
occasion he was told by General Foreman Paolucci that he was doing good work
and to "keep up the good work." 14 There is other evidence also that Thorpe was
considered by Respondents as a valuable employee. Sobeck had remembered him
from his previous employment with Respondents and chose him rather than other
employees as "the logical choice" to train for cadmium plating work. He had told
employee Doce on one occasion that Thorpe was already working "hard enough"
and could not be assigned to any more work, and he conceded that prior to rec-
ommending Thorpe for a raise, he might have praised Thorpe's work. In these
circumstances, Sobeck's summary dismissal of Thorpe, without first giving him the
customary written warning notices and without even ascertaining from him the
reason for his absence on April 22, warrants an inference that Thorpe's absentee
record was not the true reason for his discharge. 15 It is noted, moreover, that
Personnel Director Reardon, when informing Thorpe of his discharge , assigned as
the reason the fact that he had failed to call in that day and that General Manager
Rienzo on the following day likewise informed Thorpe that he was discharged for
failing to call in sick the preceding day but that Respondents in preparing their
defense, abandoned this asserted reason and alleged instead that Thorpe was dis-
charged because of his overall poor attendance record which, following two written
warnings, he had failed to correct.
In view of Respondents' strong opposition to the Union, their knowledge at least
by the date of the election that Thorpe was an ardent union supporter, the closeness
of the election results, and the likelihood that the Union would renew its organiza-
tional efforts even if it lost the election, as it had done in the past,ls and the false
and specious, as well as inconsistent, grounds assigned for Thorpe's discharge, it is
a reasonable inference, and I find, that Respondents were motivated by antiunion
considerations in discharging Thorpe. The discharge was therefore in violation of
Section 8(a)(3) and (1) of the Act.
D. The strike
1. Reason for the strike
Following the initial attempts by Union Representative Musachio, already
described, to secure the reinstatement of Ronald Thorpe, and a few days after the
filing of unfair labor practice charges with the Board on April 23, 1965, Musachio
telephoned General Manager Rienzo and sought to persuade him to put Thorpe
back to work. Rienzo stated that he would discuss the matter with his attorney and
let Musachio know what Respondents would do. Musachio never received a
response.17 About June 6 or 7, he telephoned Thorpe at his home, informed him
that there would be a strike at the plant in his behalf and asked if Thorpe could
arrange to be present on the picket line for the first 2 or 3 days of the picket line.
Thorpe, who by then had secured other work, agreed to do so and thereafter
arranged for a transfer to night work so that he could appear on the picket line.
About June 8, as employees were leaving work in their cars, Musachio and Ponce
took a poll of those with whom they were able to talk to ascertain whether they
would support a strike in protest against Respondents' discharge and refusal to
reinstate Thorpe. Among those polled were employees riding in the cars with Fore-
men Little, Tur, and Torriere. A majority of those polled expressed a willingness
14 This finding is based on Thorpe's credited testimony. I do not credit Paolucci's
denial or his testimony otherwise insofar as it may be in conflict with Thorpe's testimony.
15 In this connection I find it unnecessary to decide whether, as Haist and Doce testi-
fied, Haist Informed Sobeck by about 8: 30 a in of Thorpe's absence because of illness or
whether this occurred in the afternoon of April 22, as Sobeck testified, for in either event,
Sobeck was departing from customary procedures in discharging Thorpe without first giving
him two written warning slips Moreover, as already noted, Respondents were apparently
willing to forgive Thorpe's predecessor at cadmium plating work for a whole week's
absence without calling in if the employee had been able to furnish evidence that his
reason was the taking of college examinations
16 At the time of the discharge challenged ballots had not been resolved It was not
known until about January 12, 1966, after a bearing on the challenges, that the Union
had lost the election . The Union had previously sought unsuccessfully to become the
employees ' bargaining representative in 1959
17 Rlenzo did not testify at the reopened hearing and Musachlo 's testimony on which the
above findings are based stands uncontradicted.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to support such a strike and Musachio set the strike date for June 10 Only eight
employees joined the strike on the first day but others joined it later. On July 14
when the strike was called off, there were 16 employees on the picket line. Some
employees who were not polled as to whether they would support a strike in
behalf of Thorpe heard from discussions with fellow workers or from Ponce that
the strike was in support of Thorpe.
At the time the strike was called, the Union already had on hand in its offices
large signs, approximately 14 by 21 inches in size, on which were printed the fol-
lowing words "THE EMPLOYEES OF THIS ESTABLISHMENT ARE ON
STRIKE LOCAL ," followed by the full name of the Union and its New
York and New Jersey addresses and telephone numbers. Musachio or Ponce had
filled in the number of the Local, 321, on the signs which the pickets started carry-
ing on the morning of June 10. During the afternoon, when an attorney for the
Union appeared at the plant in connection with an investigation of the challenges in
the representation case, which had not yet been resolved, Musachio asked his advice
as to what additional legend should be placed on the signs, and on the advice of the
union counsel, Musachio wrote in ink the following additional words on the signs,
"Unfair Labor Practices" and "8A3." Some the of strikers did not understand the
meaning of "8A3" and Musachio explained the meaning to them. As the original
picket signs became worn, they were replaced by fresh signs and Ponce or some of
the employees assisted Musachio in writing in "Unfair Labor Practices" and "8A3"
on the fresh signs. (This perhaps explains the different colors of ink used on the
signs.)
The events above stated are based on the credited testimony of Union Repre-
sentatives Musachio and Ponce, and employees Gilberto Garcia, Doce, Thorpe,
Ramirez, O'Brien, Donovan, and Haist.i$ There is not the slightest question in my
mind but that the strike occurred in the manner above described and that the
employees who joined the strike did so for the purpose of protesting the discharge of
Thorpe and of trying to get him reinstated. Moreover, since it is undisputed that
among the employees polled were employees riding in cars with Foreman Little, Tur,
and Torriere, it is a reasonable inference, and I find, that Respondents knew that a
strike in protest against Thorpe's discharge was being planned before the picket line
was established.19
In an attempt to cast doubt upon the Union's motivation in calling the strike,
Respondents introduced in evidence a photocopy of what purports to be a union
leaflet, dated June 10, 1965, which summarizes various complaints against Respond-
ents but, even assuming that this document was prepared and distributed by the
Union-a matter about which there is considerable question-I find nothing in it
inconsistent with the stated purpose of the strike as explained to the employees in
the prestrike poll. The leaflets recite , inter alia: ,
We polled the people in your plant and the vast majority voted to go out
on strike. We are striking under Sectons 8A1 and 8A3 of the National Labor
Relations Board laws.
You also all know that Local 321 officials promised that there would be a
man in front of your plant from April 9, the date of the election, in order to
protect your rights. The officials also promised that the employees who voted
for the Union would not be discharged because of any phony or trumped up
charges. We keep all our promises, which by now you all know.
Respondents also adduced testimony from employee Groditski that he once
heard someone in the direction of the pickets yell out that the Labor Board 'had
Is Haist at one point in his testimony acknowledged that he had given a statement to a
Board agent on August 4, 1965, indicating that the Union called the strike because it
believed this would help speed up a Board determination of the challenges in the repre-
sentation case, but testified that this statement was based on a personal opinion which
he then had and not on anything he could recall having been said to him by anyone from
the Union. He further testified that he was one of the employees polled by Musachio and
Ponce about 2 days before the strike as to whether he was willing to strike in support
of Thorpe
>e There is also testimony by Musachio , denied by General Foreman Paolucci , that dur-
ing the strike Paolucci expressed a wish that the strike was over and Musachlo replied,
"it is very simple to have it over, put Ronald Thorpe back to work." ' I find it unnecessary
to resolve this conflict in view of other evidence described above showing the reason for'
the strike and Respondents ' knowledge of it.
MILCO, INC. 823
been paid off, but this evidence also is not inconsistent with evidence summarized
above indicating that Thorpe's discharge was the reason for the strike. One other
witness, Leadman Cocheo, called by Respondents, gave a rather confused account
of his understanding of the reason for the strike. Insofar as it is inconsistent with
the overwhelming weight of contrary evidence, I do not credit it.
In resolving credibility issues, I have borne in mind a fact pointed out by counsel
for Respondents in his supplemental brief, that Union Representatives Musachio
and Ponce and the former strikers who testified that the reason for the strike was
Thorpe's discharge were all interested witnesses. I have not based my credibility
determinations on mere quantitative evidence but have considered the demeanor of
the witnesses as they testified, the manner in which most of them stood up under
cross-examination and also the fact that Foreman Little, Tur, and Torriere were in
a position to, but did not, dispute the testimony that employees riding in cars driven
by them before the strike were polled as to whether they would support a strike in
protest against Thorpe's discharge.
I find that the strike was caused and prolonged by Respondents' unlawful dis-
charge and refusal to reinstate Thorpe. The strike was therefore an unfair labor
practice strike and the strikers were entitled to reinstatement upon their uncondi-
tional applications for reinstatement.20
2. Respondents' refusal to reinstate the strikers
The strike was called off on July 14, 1965. The complaint, as amended at the
hearing, alleges that on that day 16 named employees,21 through their representa-
tives, and individually, made unconditional offers to return to work and to their
positions of employment. Respondents' answer, as amended at the hearing, admits
this allegation except as to employees Mary Pecorara and Ismail Ramirez.
It was stipulated at the hearing that when the strike started on June 10, Pecorara
was on vacation but that she thereafter joined the picket line and picketed until the
end of June 1965, after which she neither returned to the picket line nor to the
plant at any time. There is no evidence that she ever applied for reinstatement or
that anyone else applied in her behalf. The allegation of the complaint that
Respondents refused to reinstate her upon her unconditional application for rein-
statement has therefore not been sustained and will be dismissed.
Ismail Ramirez and George Doce testified that Ramirez was among the strikers
who personally applied to General Manager Rienzo for reinstatement on July 14,
and there is no evidence to the contrary. Respondents were mistaken in their alle-
gation that Ramirez did not apply and so conceded at the conclusion of the hear-
ing It is therefore found that all of the 16 employees named in the complaint in
Case 29-CA-469, except Mary Pecorara. made unconditional applications for rein-
statement on July 14, 1965.
General Manager Rienzo told the employees who applied for reinstatement that
each had been replaced during the strike and that there were accordingly no jobs
available for them but that if jobs became available in the future he might recall
them. It was stipulated at the hearing that Respondents subsequently rehired, at
their previous rates of pay but as new employees, the following former strikers on
the dates indicated: Charlotte Kuke on October 26, 1965; Elizabeth Donovan on
October 29, 1965; Alfonso Salvato on November 8, 1965; and Santos A. Texidor
on September 22, 1965. As new employees, these four were subjected to a loss of
certain benefits which were normally provided by Respondents for their employ-
ees. It was stipulated at the hearing that pursuant to Respondents' policies and
programs- (1) New employees do not receive contributions on their behalf for
individual coverage for Blue Cross and Blue Shield until they are employed for a
25 As the General Counsel has pointed out, even if the strike were in part motivated by
reasons other than unfair labor practices-a supposition which I do not believe the record
supports-the strike would nevertheless be considered an unfair labor practice strike, for
there can be no doubt that Thorpe's discharge was at least one of the reasons for the
strike. The Little Rock Downtowner, Inc., 145 NLRB 1286, 1312 ; N L R.B. v West Coast
Casket Company, Inc., 205 F 2d 902, 907 (C.A. 9) ; N.L.R.B. v. Fitzgerald Mill. Corp., 313
F.2d 260, 269 (C A. 2), cert. denied, 375 U.S. 834
a Santos A Texidor, Gilberto Garcia, Elizabeth Donovan, Charlotte Kuke, Theresa
O'Brien, Ismail Ramirez, Raul Garcia, Gervasto Garcia, Jesus Estrella, Margaret Mc-
Laughlin, Gerardo Boitel, John C Haist, George Doce, Alfonso Salvato, Mary Pecorara,
and Anibal Rojas
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of 6 months; (2) that they receive paid holidays after I month's employ-
ment; (3) that under Respondents' vacation program, they receive 1 day's paid
vacation after 4 months' employment, 2 days after 6 months' employment, 3 days
after 8 months' employment, 4 days after 10 months' employment, 1 week after 12
months' employment, and 2 weeks after 2 years' employment; (4) that after 2
years of employment employees begin to participate in a profit-sharing program;
and (5) that after 3 months' employment, an employee is entitled to 3 days' sick
leave.22
Since the employees named in the complaint were unfair labor practice strikers,
they were entitled to reinstatement to their former or substantially equivalent posi-
tions upon their unconditional applications for reinstatement, without loss of se-
niority or other rights and privileges. By refusing thus to reinstate the 15 who made
such unconditional applications, Respondents have violated Section 8 (a) (3) and (1)
of the Act.
CONCLUSIONS OF LAW
1. By threatening plant closure or removal if the employees selected the Union
to represent them and by coercively interrogating employees about the Union,
Respondents have interfered with, restrained, and coerced their employees in the
exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.
2. By discharging Ronald Thorpe because of his union sympathies and activities,
and by refusing to reinstate him, Respondents have violated Section 8(a)(3) and
(1) of the Act.
3. The strike occurring on June 10, 1965, was caused by Respondents' unlawful
discharge and refusal to reinstate Thorpe.
4. By refusing to reinstate to their former or substantially equivalent positions,
without loss of seniority and other rights and privileges, the 15 employees who
struck in protest against Thorpe's discharge, Respondents have discriminated in
regard to the hire and tenure and terms and conditions of employment of these
employees, thereby discouraging membership of said employees in a labor organiza-
tion, within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The General Counsel has not established by a preponderance of the evidence
that Respondents have engaged in unlawful surveillance of union activities or that
they unlawfully denied reinstatement to employee Mary Pecorara as alleged in the
complaint.
THE REMEDY
It having been found that Respondents have engaged in certain unfair labor prac-
tices, my Recommended Order will require that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondents discriminatorily discharged Ronald Thorpe
and have since refused to reinstate him, my Recommended Order will require that
they offer him immediate and full reinstatement to his former or substantially equiv-
alent position, without prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered as a result of the discrimi-
nation against him, such loss of pay to be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as
ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716.
It having also been found that Respondents discriminatorily denied reinstatement
to the unfair labor practice strikers who unconditionally applied for reinstatement
on July 14, 1965, my Recommended Order will require that Respondents, to the
extent that they have not already done so, offer each of said employees, who are
listed in "Appendix A," immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other rights
and privileges, dismissing, if necessary, any persons hired on or after June 10, 1965.
the date of the strike, who were not in Respondents' employ on that date. Respond-
ents will also be required to make such employees whole for loss of wages between
the date of their unconditional applications for reinstatement and Respondents'
offer to reinstate them in the same manner and under the same formula applied in
the case of Thorpe. It was stipulated at the hearing that one of the former strikers,
Alfonso Salvato, who was rehired as a new employee, subsequently quit his employ-
ment, but since he was never offered reinstatement as required by law, his case
12 It was also stipulated that Kuke was originally hired on December 21, 1961 , Texidor
on October 27, 1964 , Salvato on May 4, 1964, and Donovan on October 12, 1961.
MILCO, INC. 825
will be treated for remedial purposes the same as the other strikers rehired a new
employees. Respondents will be required to offer to each the full reinstatement to
which each is legally entitled.
My Recommended Order will also require that Respondents, upon request, shall
make available to the Board or its agents all proper records pertinent to a-compu-
tation of the amounts of backpay due hereunder.
In my opinion, Respondents' discharge of Thorpe and refusal to reinstate him and
the unfair labor practice strikers, and-their other acts of interference, restraint, and
coercion herein found, demonstrate a flouting of statutory proscriptions which "go
to the very heart of the Act," as that phrase is used in N.L.R.B. v. Entwistle Mfg.
Co., 120 F.2d 532 (C.A. 4). My Recomended Order will therefore require
Respondents to cease and desist from in any manner infringing upon the rights
guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the
following:
RECOMMENDED ORDER
The Respondents, Milco, Inc., T.O D. Manufacturing Co., Inc., and Allan Marine
Division of Jervis Corp., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Processing and Fabricating Workers Union,
Local 321, National Organization of Trade Unions, or any other labor organization,
by discharging, refusing to reinstate, or in any other manner discriminating in regard
to the hire or tenure of employment or any term or condition of employment of
their employees, except to the extent permitted by the proviso to Section 8(a)(3) of
the National Labor Relations Act.
(b) Coercively interrogating employees about the Union or threatening plant
closure or removal if the employees select the above-named Union or any other
labor organization to represent them.
(c) In any other manner interfering with, restraining, or coercing their employees
in the exercise of the rights guaranteed them under Section 7 of the Act.
2 Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Ronald Thorpe and, to the extent they have not already done so, to
the former strikers listed in "Appendix A," immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of earnings they
may have suffered as a result of the discrimination against them, as provided in the
section of this Decision entitled "The Remedy."
(b) Restore to each of the former strikers whom they may have rehired as new
employees the seniority and other rights and privileges withheld from them upon
their rehire and make them whole for any financial loss suffered as a result of their
improper rehire as new employees.
(c) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act, as amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at their plant in Hicksville, New York, copies of the attached notice
marked "Appendix B." 23 Copies of said notice, to be furnished by the Regional
Director for Region 29, shall, after being duly signed by Respondents, be posted
immediately upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, where notices to employees are customarily
posted. Respondents shall take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material.
23 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the' notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals;-the words "a Decree of the United'States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondents have taken to comply herewith.24
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges
unfair labor practices not specifically found herein.
u In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX A
Santos A. Texidor Gerardo Boitel Anibal Rojas
Gilberto Garcia Ismail Ramirez Margaret McLaughlin
Elizabeth Donovan Raul Garcia John C. Haist
Charlotte Kuke Gervasio Garcia George Doce
Theresa O'Brien Jesus Estrella Alfonso Salvato
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Processing and Fabricating Work-
ers Union, Local 321, National Organization of Trade Unions, or any other
labor organization, by discharging, refusing to reinstate, or in any other man-
ner discriminating in regard to the hire or tenure of employment or any term
or condition of employment of our employees, except to the extent permitted
by the union shop proviso to Section 8(a)(3) of the National Labor Relations
Act.
WE WILL NOT coercively interrogate our employees about any union and
WILL NOT threaten to close or remove our plant in the event our employees
select a union to represent them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed under Section 7 of the Act.
WE WILL, to the extent we have not already done so, offer to Ronald Thorpe
and to the former strikers listed below immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, and make them whole for any loss of
earnings they may have suffered as a result of our discrimination against them.
Santos A. Texidor
Gilberto Garcia
Elizabeth Donovan
Charlotte Kuke
Theresa O'Brien
Gerardo Boitel
Ismail Ramirez
Gervasio Garcia
Jesus Estrella
Anibal Rojas
Margaret McLaughlin
John C. Haist
George Doce
Alfonso Salvato
Raul Garcia
WE WILL restore to each of said former strikers who we may have rehired
as new employees, all the seniority and other rights and privileges withheld
from them upon their rehire and make them whole for any financial loss suf-
fered as a result of their improper rehire as new employees.
All our employees are free to become or remain, or to refrain from becom-
ing or remaining members of the above-named union or any other labor orga-
nization except to the extent that such right may be affected by an, agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
MILCO, INC., T.O.D. MANUFACTURING CO., INC.,
AND ALLAN MARINE DIVISION OF JERVIS CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
PALESTINE TELEPHONE COMPANY 827
NoTE.-We will notify Ronald Thorpe and each of the other above-named
employees if presently serving in the Armed Forces of the United States of his
rights to full reinstatement upon application in accordance with the Selective
Service Act and Universal Military Training and Service Act, 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,
16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386.
Palestine Telephone Company and International Brotherhood of
Electrical Workers, AFL-CIO, Local Union No . 702. Case 14-
CA-3840. June 21,1966
DECISION AND ORDER
On April 18, 1966, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above-entitled proceeding, granting the motion of the Gen-
eral Counsel for "Judgment on the Pleadings," and finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act, as
amended. The Trial Examiner recommended that the Respondent
cease and desist from such unfair labor practices and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor. Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing the finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order].
'Respondent excepts to the Trial Examiner 's statement that the Acting Regional Di-
rector properly relied on the Board 's Decision and Order In Case 14-CA-3495 ( 154 NLRB
1325 ) in counting Maddox 's challenged ballot and in sustaining the challenged ballot of
Kent. We do not agree with the Trial Examiner to the extent that his reference to such
reliance may possibly imply that the Acting Director deferred to the Board's view in the
unfair labor practice case in making his representation proceeding determinations. For
the Acting Director stated merely that he agreed with the Board and there Is nothing to
Indicate that the rulings on challenged ballots were not independently made by him.
159 NLRB No. 79.