N. D. Cass Co.

National Labor Relations Board - Board Decisions

Apr 22, 1955

112 N.L.R.B. 402 (N.L.R.B. 1955)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. D. Cass Company and Local 154, United Furniture Workers of
America, CIO. Case No. 1-CA-1690. April 22, 1955
DECISION AND ORDER
On December 15, 1954, Trial Examiner Louis Plost issued his In-
termediate 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 Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate report and supporting briefs.
The General Counsel filed an additional brief in support of certain
of the recommendations of the Trial Examiner.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case land hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications :
1. The Trial Examiner found that the Respondent had discharged
and failed to recall Arvid Labor, Laura Labor, and Laura Gravel
for discriminatory reasons. We agree that the facts support this
finding. However, we note that the complaint alleged only that the
Respondent had discriminatorily refused to reinstate the two Labors
and Gravel after January 4, 1954. We therefore find only that, on
and after January 4, 1954, the Respondent refused to reemploy Arvid
Labor, Laura Labor, and Laura Gravel in violation of Section 8 (a)
(3) and (1) of the Act. The Respondent's back-pay liability will also
run only from that date.2
2. We do not agree with the Trial Examiner's finding that the lay-
off of Francis Bowers was not discriminatory.
Bowers was first employed by the Respondent on October 5, 1953.
He operated a planer. Laura Labor was his helper. He was laid
1 The Respondent has requested oral argument. This request is denied as the record,
including the exceptions and briefs , adequately presents the issues and positions of the
parties
2 The Trial Examiner also found that the Respondent had discriminated against the same
individuals in violation of Section 8 (a) (4). As the policy of the Act will be fully effectu-
ated by a remedial order based on a finding that the Respondent discriminatorily refused
reinstatement to the Labors and Gravel, we find it unnecessary to determine whether this
refusal to reinstate also violated Section 8 (a) (4). Accordingly, we do not adopt the
finding of a violation of Section 8 (a) (4), but instead shall dismiss this allegation of
the complaint.
112 NLRB No. 54.
N. D. CASS COMPANY 403
off for the regular Christmas shutdown in 1953, but was automati-
cally returned to work the first Monday in the following January
when the plant reopened. About January 14, 1954, Bowers' fore-
man, Olmstead, told Superintendent Bancroft that Bowers was
engaging in arguments with other employees concerning the Union
and that he was distributing union cards. Bancroft agreed with Olin-
stead that the latter should try to obtain one of these cards. On Janu-
ary 21, 1954, during the morning rest period in the boilerroom of the
plant, Bowers discussed the Union with fellow employees, stressing
the advantages to be gained by union representation and deploring
the cowardice of some employees with respect to the issue. Fore-
man Olmstead was seen shortly before and after the above discussion
at the entrance to the boilerroom. As the meeting broke up he was
standing in the doorway and was heard to say, "I think your goose
is cooked." At the time Olmstead made this remark, only Bowers
and employee Culver, who testified to overhearing Olmstead' s state-
ment, were in the boilerroom.3 As Culver was not a, union protagonist,
it seems reasonable to infer that Olmsteac's remark was directed at
Bowers. During the lunch period of the same day, Olmstead told
a group of employees, including Bowers, that there was going to be
quite an upheaval in the plant and that a lot of employees were going
to be laid off. The same afternoon, Olmstead laid off Bowers and
two others, including Bowers' helper. Olmstead told Bowers that
he was being laid off for lack of work. Bowers testified that when
he asked when lie would be called back, he was told ". . . if he was
me [Bowers], that he would find another job somewhere else because
it wasn't likely that I would ever be called back to work again."
The Respondent's defense is that Bowers was laid off for lack of
work. It does not contend that he was incompetent or derelict in
his duty. The record is clear that Bowers' machine was operating
after his layoff and that another employee was put on it full time
while Bowers was out of work. The record further shows that from
January 21, the date of Bowers' layoff, overall employment in the
plant increased and that there was considerable recall of old em-
ployees and the hiring of new ones from that date to June 15, when
Bowers was finally recalled, after lie had filed unfair labor practice
charges.
The Trial Examiner found that the Respondent had not sustained
its defense that it laid off and failed to recall Bowers because of "lack
of work." He also found that the Respondent's antiunion animus
is plain and that other employees had been discriminated against be-
cause of their union activities. We agree with these findings. In-
consistently, however, the Trial Examiner concluded that the General
Olmstead did not testify
300028-50-vo1 112-27
404 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Counsel had failed to prove by a preponderance of the evidence that
the Respondent had laid off Bowers for discriminatory reasons. We
disagree with this conclusion. We believe that the only reasonable
inference to be drawn from the entire record, including evidence of
the Respondent's strong antiunion animus,' its discriminatory treat-
ment of the two Labors and Gravel, its knowledge of Bowers' activi-
ties in behalf of the Union, its inadequate explanation for the lay-
off and failure to recall Bowers, and Foreman Olmstead's remarks
before and at the time of the layoff, is that the Respondent laid off
Bowers because of his activities in behalf of the Union.' Accord-
ingly, we find that by this action the Respondent violated Section
8 (a) (3) and (1) of the Act. We shall therefore order the Respond-
ent to reimburse Bowers for the loss suffered as the result of the
discrimination against him.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, N. D. Cass Company, Athol,
Massachusetts, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 154, United Furniture
Workers of America, CIO, or in any other labor organization of its
employees, by laying off or failing to reinstate any of its employees,
or in any other manner discriminating against them in regard to their
hire or tenure of employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 154, United Furniture
Workers of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any or all of
such activities except to the extent that such right may be affected by
4 See also the Board's decision in Case No 1-CA-1488, issued August 26, 1954, involving
the same Respondent (not reported in printed volumes of Board Decisions and Orders)
5 The Respondent's unlawful motivation is further shown by the following remarks made
by Supeivisor Royal McLean On the day following Bowers' layoff, McLean told Bowers'
wife that if Bowers had kept his mouth shut he would still be working When Bowers
returned to work in June 1954. he told McLean that lie had gone to the Board about his
labor troubles McLean said "i could have told you that a long time before this " At
the hearing in this case, as well as in Case No 1-CA-1488, the Respondent stipulated that
McLean was it supervisor Neai the close of the hearing, the Respondent adduced some
testimony that McLean had no supervnsoiy authority. However, at no time did it attempt
to withdraw fioui its stipulation and the General Counsel, consequently made no effort to
controvert the Respondent's evidence The Trial Examiner cried in finding that McLean
was not a supervisor we find, in accordance with the stipulation of the parties, that
McLean was a supervisor and that, therefore, has remarks are attributable to the Re-
spondent
N. D. CASS COMPANY 405
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Arvid Labor, Laura Labor, Laura Gravel, and
Francis Bowers in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," as modified herein, for any
loss of pay they may have suffered by reason of the Respondent's dis-
crimination against them.
(b) Upon request, make available to the Bo6qrd, or its agents, for
examination and copying, all payroll records and reports, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due.
(c) Post at its Athol, Massachusetts, plants and warehouses, copies
of the notice attached hereto-and marked "Appendix." 6 Copies of the
said notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the Respondent, be posted
by it immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS IIEREBY rURTIIER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent violated Section
8 (a) (4) of the Act.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
6 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Local 154, United
Furniture Workers of America, CIO, or in any other labor organ-
ization of our employees, by laying off or failing to reinstate any
of our employees or in any other manner discriminating against
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them in regard to their hire or tenure of employment or any term
or condition of employment.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form, join, or assist Local 154, United Furniture Work-
ers of America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL make whole the following named employees for the
discrimination practiced against them :
Arvid Labor Laura Gravel
Laura Labor Francis Bowers
N. D. CASS COMPANY,
Employer.
Dated---- ------------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a third amended charge duly filed by Local 154, United Furniture Workers
of America, CIO, herein called the Union, that N. D. Cass Company, Athol, Massa-
chusetts, herein called the Respondent, had engaged in and is now engaging in
certain unfair labor practices affecting commerce, as set forth and defined in the
National Labor Relations Act, as amended, 61 Stat. 136, hereinafter referred to
as the Act, the General Counsel of the National Labor Relations Board on behalf
of the Board, by the Regional Director for the First Region, issued a complaint
dated September 2, 1954, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3),
and (4) of the Act.
Copies of the charge and the complaint together with a notice of hearing were
duly served upon the Respondent and the Union.'
With respect to the unfair labor practices, the complaint as amended alleges in
substance that the Respondent discriminatorily failed and refused to recall em-
ployees Laura Labor, Arvid Labor, Laura Gravel, and Francis Bowers to work
in violation of Section 8 (a) (3) and (4) and Section 2 (6) and (7) of the Act
The Respondent duly filed an answer in which it denied that it had engaged in
any of the alleged unfair labor practices.
Pursuant to notice a hearing was held at Athol, Massachusetts, on September 22
and 23 and on October 4 and 5, 1954, before Louis Plost, the duly designated
Trial Examiner. The Geneial Counsel and the Respondent were represented by
counsel and the Union by its agent, all being hereinafter referred to in the name
^ The of iginal chaige was filed April 9, 19,54, the first amended charge May 7, the second
amended charge June 10, and the third amended charge on September 2, 1954
N. D. CASS COMPANY 407
of their principals . The parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence bearing on the issues,
to argue orally on the record , and to file briefs and/or proposed findings of fact
and conclusions of law with the Trial Examiner.
At the opening of the hearing the Trial Examiner granted an unopposed motion
by the General Counsel to dismiss the complaint as to one Bruna Bowers.
A date was set for filing briefs. The time for filing was extended to Novem-
ber 15 by the Chief Trial Examiner on request made after the close of the hearing.
The Trial Examiner denied motions , made at the close of the General Counsel's
case-in-chief , and again at the close of the hearing, by the Respondent , to dismiss
the complaint The Respondent argued orally . Briefs have been received from
the General Counsel and the Respondent.
On November 12, the General Counsel filed a motion to correct certain errors
in the official transcript . The Respondent assented to the changes . The Trial
Examiner hereby grants the motion and orders the motion marked "Trial Ex-
aminer's Exhibit" and incorporated in the file of exhibits.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The Respondent is a Massachusetts corporation with its principal office and plant
at Athol , Massachusetts , and an additional plant in the State of Alabama and is
engaged in the manufacture and sale of wooden toys and related products.
The Respondent , in the course and conduct of its business , causes, and continu-
ously has caused at all times herein mentioned , large quantities of lumber and
metal fittings to the amount of more than $ 100,000 annually , used by it in the manu-
facture of wooden toys to be purchased and transported in interstate commerce
from and through various States of the United States other than the Commonwealth
of Massachusetts , and causes , and continuously has caused at all times herein
mentioned , substantial quantities of wooden toys to the amount of $250,000 annually,
to be sold and transported from said plant in interstate commerce to States of
the United States other than the Commonwealth of Massachusetts.
II. THE ORGANIZATION INVOLVED
Local 154, United Furniture Workers of America, CIO , hereinafter referred to
as the Union, is a labor organization within the meaning of Section 2 (5) of the
Act, and admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's Athol, Massachusetts, plant is operated in two divisions,
referred to in the record as the "small plant" or Cass Games and the " large plant"
or Cass Toys. The two divisions constitute a single unit for the purpose of collec-
tive bargaining as well as for the instant matter.
On a 9 (c) petition, docketed in the Board's First Region as Case No 1-RC-1370,
the Board on April 9, 1953, ordered an election among the Respondent 's employees
to determine a bargaining representative . The employees selected the Union and
the Board so certified May 4, 1953.
On July 2, the Respondent 's employees struck.
On July 7, the Union filed a charge with the First Regional Office alleging that
the Respondent was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (5) of the Act. The charge was docketed as Case
No. 1-CA-1488.
On September 21, 1953, all the strikers unconditionally applied for reinstatement.
The record of the instant case discloses that Arvid Labor and Laura Labor
were returned to work on September 29, not at the jobs they had previously held
but at less desirable ones. Arvid Labor who had been a setup man , which is
2 The Board has taken jurisdiction of the Respondent in Cases Nos 1-RC-3170 and
1-CA-1488
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
skilled work, in the "small plant" was returned to work in the "large plant" operating
a nailing machine and a bandsaw, and Laura Labor who had work in the "small
shop" at which she earned $1.26 per hour, on piecework rates, was put in the
"large plant" carrying lumber away from a planer at 80 cents an hour, straight time
only.
As herein stated the Union on July 7, 1953, filed a charge alleging 8 (a) (1) and
(5) violations by the Respondent.
On October 1, 1953, the Regional Director issued a complaint alleging 8 (a) (1)
and (5). A hearing was held thereon on December 1, 1953. The Trial Examiner
hearing Case No. 1-CA-1488 found that the Respondent had engaged in conduct vio-
lative of Section 8 (a) (1) and (5). No objections were filed to the Intermediate
Report which was therefore adopted as the Board's Decision and Order.
At the instant hearing the General Counsel pointed out that the Trial Examiner
who heard Case No. 1-CA-1488 did not find the strike of July 2-September 21,
1953, to have been caused by the Respondent's unfair labor practices and had stated in
footnote 4 to his report:
The complaint alleges and the answer denies that a strike of the Respondent's
employees occurred on July 1, 1953, which was caused and prolonged by the
Respondent's unfair labor practices. There is no allegation that the Respond-
ent refused to reinstate any striker, but the General Counsel contends that such
conduct might occur in the future. Whether the strike was or was not caused
or prolonged by unfair labor practices of the Respondent is not an issue herein.
Should the Respondent in the future refuse to reinstate any striker, it will then
be time enough to consider the question.
The General Counsel moved that the Trial Examiner now find the strike referred to
was an unfair labor practice strike. The Trial Examiner asked on the record:
TRIAL EXAMINER: Now, do you really think, Mr. Fuchs, that the fact that in
the previous hearing, the Trial Examiner failed to make a finding as to the na-
ture of the strike, that you may now, after that hearing has been closed and
decided by the Board and in view of the six months statute of limitations, if it
is a statute of limitations, that you may now put in evidence so that I may go
back into this other hearing and make the finding for the Trial Examiner, the
one that he didn't make?
The General Counsel then made an offer of proof, which was rejected. In his brief
the General Counsel argues:
Although the Charge was filed in the instant case over six months thereafter,
this factor does not change the complexion of the strike, and the requested
finding is not barred by Section 10 (b) of the Act.
The case of Brown and Root, Inc. and its companion case are identical pro-
cedurally with the case at bar. [Brown and Root, Inc., 86 NLRB 520, 99
NLRB 1031.]
As in the present case, the Union, in Brown and Root charges violations of
Section 8 (a) (1) and (5) of the Act In both cases a strike took place and
Complaints were sustained with respect to the Charge that Respondents had
violated Section 8 (a) (5) of the Act. In the first Brown and Root case no
request had been made by General Counsel that an unfair labor practice
strike finding be made. In the Cass case such a request was made on the
grounds that discrimination was anticipated. The Trial Examiner indicated
that the question was moot but could be subsequently raised
In the second Brown and Root case, as in the second Cass case, the Unions
charged violations of Section 8 (a) (3) of the Act. The Charges were filed
more than six months after the termination of the strikes. In the second
Brown and Root case, the Board found that the strike was an unfair labor
practice strike and that such a finding was not barred by Section 10 (b) of the
Act since the purpose of this Section was to prevent dilatory filing of
Charges and that timely Charges were filed and adjudicated with respect to
the initial unfair labor practices.
However, the Trial Examiner cannot be persuaded that he make findings on evi-
dence he did not hear, adduced from witnesses he did not see, especially findings
that are to be contrary to those made by the then presiding Trial Examiner.
The Board, however, is not in the same position as the Trial Examiner. The
evidence in Case No. 1-CA-1488 is still before it and the Board of course
takes judicial notice of all previous cases and rulings.
N. D. CASS COMPANY 409
The net result of a finding that the strike was an unfair labor practice strike
would be to cancel out the effect of Section 10 (b) of the Act on the instant
case and permit a further charge, and it found, a finding, that Arvid Labor, Laura
Labor, and Laura Gravel were discriminatorily reinstated by the Respondent and
date the discrimination alleged in the instant complaint to the ending of the before-
mentioned strike.
However, since the Union had from July 7, 1953 (the filing of the charge),
until October 13, 1953 (the issuing of the complaint in Case No. 1-CA-1488),
to amend the charge so as to raise the question of discriminatory reinstatement,
in fact had until December 1953 to raise the issue through a new charge, and
failed to do so, it seems to the Trial Examiner such laches alone is sufficient to
sustain a refusal to set aside Section 10 (b) of the Act.
The Trial Examiner, therefore, despite the able presentation of the General
Counsel in argument and brief, adheres to his original opinion that it is not within
his province to find on evidence not in this record and will view the case as a tub
which must stand on its own bottom.
The only evidence which the Trial Examiner will consider will be that which bears
upon the allegations of the complaint, that:
Respondent did, since on or about January 4, 1954 and until the respective
dates listed alongside their names hereunder, fail and refuse to reinstate
the employees named . . . to their former or substantially equivalent posi-
tions or employment:
Laura Labor-May 15, 1954
Arvid Labor-May 17, 1954
Laura Gravel-June 1, 1954
Respondent did, since on or about January 21, 1954 until June 15, 1954, fail
and/or refuse to reinstate the said Francis Bowers, named above . , to
his former or substantially equivalent position or employment.
Certain employment practices of the Respondent must be understood in order
to fully appraise the 8 (a) (3) allegations.
Shortly before Christmas the Respondent's entire plant is closed to be reopened
shortly after the first of the next year. During this time all the production em-
ployees are laid off.
Glen A. Bancroft, the Respondent's superintendent, testified:
Q. Now, what takes place when a layoff is required?
A. Well, we usually decide on how many we are intending on keeping in
the departments. We draw up a list, and then we usually have so many
that want to be laid off anyway so we usually go around and find out
the ones that want to be laid off, and then we take the list and pick out the
ones that are most diversified for the type of work we are going to have
continued in the coming year.
Bancroft further testified:
Q. Do you have a large turnover of help?
A. I would say we turn over about completely once a year.
Q. Completely?
A. I would say so.
However, Bancroft admitted that when the annual layoff is made only certain em-
ployees are told they are being laid off, or that they will be recalled when needed, but
that the others, amounting to 50 percent of the employees, are not told anything be-
cause they understand they are to return after the first of January and do so without
further notice, because these employees are never "permanently" laid off.
Bancroft further testified that the Respondent does not recognize any seniority of
employment among its employees but he admitted that experienced employees are
retained over inexperienced ones. He testified that the laid-off employees are not
recalled but are rehired if they reapply when needed, but he modified this testimony
by admitting that such employees are recalled by telephone, by word sent them, and
by mail, and further testified that two-thirds of those laid off are always rehired.
From a fair evaluation of Superintendent Bancroft's not too clear testimony it
would seem that with the possible exception of the seasonal layoff the Respondent's
plant operates as does any other, with a complement of employees who are con-
sidered "regulars," who although they have no seniority rights are nevertheless re-
tained year after year on the basis of skill and experience which is of course acquired
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by length of service, that other employees are more or less casual help, hired only dur-
ing peak production but that two -thirds of these employees may well be classed as"regular casuals " as they are reemployed after every seasonal layoff.
B The discriminatory discharges
1. Arvid Labor
Arvid Labor testified without contradiction and credibly that he was first employed
by the Respondent December 15, 1950 , and worked steadily until the strike (July 2,
1953 ), always being recalled immediately following the annual "Christmas -New Year
lay off" to his job in the "small plant" where he was a setup man and operated a variety
of machines when necessary , that he testified in the representation case ( 1-RC-3170)
being steward for the Union ; that he was shop chairman on the Union's negotiating
committee which met with the Respondent, that he participated in the strike (July 2-
September 21, 1953 ); served on the picket line, was recalled to work September 29,
1953, after the applications for reinstatement were made September 21, but that he
was not returned to his old job in the "small plant," but was given a job in the "large
plant" at a wage of 80 cents per hour, and that he was laid off December 18, 1954,
at which time he had the following conversation with Superintendent Bancroft:
He says , "I will have to lay you off as one of them ." "Well," I said, "I will have
to take it the same as the rest , but you will let me know when there is work so I can
come back again." "Yes ," he says, "I will let you know when I want you back
to work." I said , "It won't be necessary for me to come down to the shop and
take your time, will it?" He says , "No, I will let you know."
Bancroft testified he did not recall the conversation but "I usually tell them that
any way."
Labor testified that he did not apply for reinstatement from the time of his layoff
until May 1954 ,3 when he applied to Bancroft , that he was recalled to work by a
post card from the Respondent , calling him to return on May 24, 1954; that he was
not put back at his previous job in the "large plant" but was given a job in the ware-
house at a 10-cent an hour increase in pay.
Labor testified that prior to his layoff on December 18, he testified as a witness
in Case No. 1-CA-1488 4
Superintendent Bancroft testified Labor was laid off on December 18, 1953:
Because of his inability to turn out the amount of work that was ordinarily
done and also because of the drinking , I decided that I would let him go at that
time.
With respect to Labor's work Bancroft testified that on Labor 's being returned to
work after the strike he operated a nailing machine, ran a sander and bandsaw, but
"he wasn't able to turn out the amount of work that the average nailer machine op-
erator could turn out"; that therefore it was necessary to furnish Labor help on his
work, principally because he could not do the framing of boxes he nailed and keep
up the other work as well and therefore it required "two or three" others helping Labor
to "keep up with the work" one man should have done.
Bancroft admitted however that except for momentary observation of Labor as
Bancroft walked through the plant, his only knowledge of Labor's performance came
from the daily work report Labor was required to turn in.
Labor's job was rated as piecework , although Labor testified he was always under
the impression he worked on straight time of 80 cents per hour. Under the Re-
spondent 's system, the employees on piecework kept a card record of each job per-
formed each day which was turned into the office . Each job carried a piecework rate,
if the sum of all jobs required on a piecework basis amounted to more than a day's
pay at the employees' day rate, the employee received the excess , if it was less the Re-
spondent absorbed it and entered the amount on the card as a "loss."
The Respondent introduced Labor's work record cards , originally filled out by
him, and figured by the office . The cards cover the period October 1, 1953, to De-
cember 17, 1953. The records disclose the following.
October-23 days worked . "Loss" on 15 days.
3 The charge in the instant matter was filed April 9, 1954
a Heard December 1-9, 1953 The Trial Examiner ' s report of the case reflects Labor's
testimony at the hearing, damaging to the Respondent
N. D. CASS COMPANY
The "losses" for the first 2 weeks in October run as follows:
3 20
4.11
3.41
1.91
1.80
.61
2.60
1.52
3.46
2.28
1.21
.68
1.21
411
A total of $28.00
Of these 13 "losses," only 5 cards show that Labor operated the nailing machine.
The cards show that on the days part of Labor's work was operating the nailing
machine the "losses" amount to $4.10.
Labor earned his day rate or more on 14 days on which together with other work
he operated the nailing machine.
The October cards also show that during the last 2 weeks of October, Labor
made "loss" only on 2 days. They were:
.83
.30
Labor testified that he was not familiar with the work he was given after the
strike.
Bancroft admitted he assigned Labor to the job without any knowledge as to his
experience on the work. Apparently Labor had learned the technique of the job
after the first 2 weeks.
The November work cards show: 15 days worked, "Losses" 5 days.
The losses run:
.16
.91
.48
.75
.35
A total of 2.65
On 4 days which show losses, Labor operated the nailing machine as part of
his work. Of the 10 days on which Labor earned his day rate or more he operated
the nailing machine, together with other jobs, on 9 days.
In December the cards show that Labor worked 15 days.
Only two "losses" are shown:
.13
1.27
The card showing the 1.27 "loss," also bears a notation "Machine out of order."
Both days showing "loss," also show nailing.
Of the 13 days showing no "loss," Labor did nailing on 11 days and framing
on 9 days. He did both nailing and framing on the same days during this period.
The record is clear that Labor was not criticized for the amount or character of
his work.
The Respondent did not call Labor's direct immediate supervisor to testify as
to Labor's work or ability.
The Trial Examiner is convinced and finds that the work record as submitted
and the record as a whole does not show that Labor was discharged in advance
of the regular Christmas layoff or that he was not later recalled when the plant
ordinarily resumed in January, "because of his inability to turn out the amount of
work that was ordinarily done."
The Trial Examiner finds that this reason as assigned for Labor's discharge by
Bancroft is an obvious pretext and not a real or valid cause therefore.
With respect to the Respondent's contention that Labor was "laid off" and
not rehired promptly because of his drinking during working time, Bancroft, with-
out however fixing the time, testified that Labor's forelady complained to him that
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor "was drinking on the job"; that he watched Labor "out of the window one
rest period" and saw him at his car, parked about 100 feet distant, "with a bottle
up to his mouth"; that he "could not see well enough to describe the bottle"; that
when Labor returned he asked him if he had been drinking but Labor denied it; that
be could not smell alcohol on Labor's breath, but that he "could tell . . . by his
actions" that Labor had been drinking; he testified:
TRIAL EXAMINER: Now, you say you could tell by his actions that he had
been drinking. Just tell us what you mean by that.
THE WITNESS: There was in his voice, the way he talked. He stammered,
and his actions were like a man who was in a sort of a stupor. I could not
smell anything on him.
Bancroft testified that the Respondent's rules prohibited employees leaving the
premises during rest periods, but admitted that for the past 8 years the rule had
not been communicated to the employees, either by written notice or verbally.
Bancroft further testified that before the above-related incident, which time
he also fixed as "a month and a half" before Labor's termination, he observed
Labor and another employee drinking from a bottle at Labor's car; he testified the
observation was made from an office window during a rest period and testified
further that he did not speak to Labor on this occasion but told his forelady about
the incident.
Labor denied he ever drank liquor on the job or that Bancroft ever spoke to
him regarding such drinking or warned him regarding such conduct. Inasmuch
as Labor's forelady, who allegedly complained about Labor's "drinking on the job,"
was not called , and inasmuch as Bancroft did not speak to Labor regarding his
drinking the first time he allegedly observed it, but on the second alleged observation
noted that "he stammered and his actions were like a man who was in a sort of a
stupor," but did not discharge him out of hand , the Trial Examiner, if he credited
Bancroft , would, at least by inference , be putting the Respondent on notice that
its superintendent was derelict in his duty, however Bancroft did not impress the
Trial Examiner as a man who would in any manner act contrary to his employer's
interest . Quite the contrary.
The Trial Examiner on the entire record , as well as his observation of the two
men while testifying , does not credit Bancroft but does credit Labor to the effect
that Labor did not drink alcoholic beverages while at his work or during rest
periods during working hours.
Witnesses called by the Respondent to substantiate the contention that Labor's
discharge was for the reasons given by Bancroft failed to do so, for example:
Mary Jerris, who has charge of and keeps the Respondent's personnel records,
testified that Bancroft hired and discharged all employees and that if an employee
was discharged for any reason other than lack of work Bancroft personally made
a note on the employees' personnel record card showing the reason for the discharge.
Jerris testified further that her records showed only that Labor was discharged
for "lack of work."
Joseph Henry Stiles, superintendent of the Respondent's toy trunk department
in which Labor was employed, testified that Labor was laid off "because of lack
of work" in mid-December 1953 because "that is our usual slack period."
The Trial Examiner finds that the alleged drinking of alcoholic beverages
during working hours by Arvid Labor in no way was a cause for his discharge
for the reason that such drinking did not take place as contended by the Re-
spondent.
Bancroft testified that after Labor's "layoff" and also after the plant reopened
in January 1954, there was no need for Labor as others did his work on part-time
basis and that after full-time operation of Labor's job became necessary, an em-
ployee who proved greatly superior to Labor was hired, although his capabilities
were not known to the Respondent at the time of his hiring.
Bancroft testified he considered experience and skill when he retained or hired
employees There can be no contention that Labor had any seniority rights with
the Respondent. As is well argued in the Respondent's brief the Respondent had
full and complete right to discharge, transfer, hire, and recall employees. This
right is absolute as long as the decisions made under it are not influenced by con-
siderations of union affiliation or activity. The Trial Examiner has found that
Labor's layoff was not for the reasons given by the Respondent.
As to Labor's recall to work, despite his admitted skill in the "small plant," and
Superintendent Bancroft's testimony that he valued skill and experience when
selecting employees, the Respondent did not recall him for work in that department
although Arthur Howard Green,-the superintendent of the "small plant," testified
N. D. CASS COMPANY 413
that at the present time the "mill room" in which Labor was employed while in
the "small plant" now has 14 employees, about the same number as employed there
before the strike and further that some of these were hired after Labor was laid
off December 18.
If Labor was reemployed after the strike by Bancroft for work in the "large plant"
at a time Bancroft had no knowledge of Labor's skills and was put to work at a
job on which he had no experience, assuming arguendo that by December 18, he
had demonstrated that he was unfit for any job other than casual unskilled work
in the "large plant," Bancroft who by this time knew of his former job as a setup
man was quite inconsistent in not recalling him for work in the "small plant,"
where Labor's skill would be valuable, or on the contrary not recalling him for
casual employment at unskilled work in the "large plant" especially so, since the
record shows that between January 1954, the date of Labor's layoff, and May 24,
1954, the date of his recall, 13 new employees were hired into the department
from which he was laid off, and more were hired into other departments including
the "small plant." Adding to its inconsistency with respect to Labor, when he
was recalled in May, the Respondent gave Labor a job in a wholly different depart-
ment at a higher wage rate.
Considering all the above as viewed in the light of the Respondent's patent
failure to establish its contended reasons for Labor's layoff and its failure to
promptly recall him, the Trial Examiner is compelled to the conclusion that the
Respondent's inconsistencies with respect to Labor's hire and tenure of employment
spell out discrimination.
The Respondent's reasons having failed there remain only those reasons advanced
by the General Counsel for Labor's early layoff and untimely recall, namely, Labor's
union membership and activities including his testifying in Case No. 1-CA-1488.
The Trial Examiner so finds.
The Trial Examiner finds that Arvid Labor was laid off by the Respondent on
December 18, 1953, in advance of the regular normal Christmas layoff and was
thereafter refused reinstatement from the normal reopening of the plant in January
1954 until May 24, 1954, because of his membership in and activities on behalf
of the Union, including his giving testimony in Case No. 1-CA-1488, all such
conduct being in violation of Section 7 of the Act.
2. Laura Labor
Laura Labor is the wife of Arvid Labor. Mrs. Labor testified that she was
employed by the Respondent in 1951 and until December 1954 had never been
laid off, except during the regular annual Christmas shutdown and that during all
this time she automatically returned to work when the plant reopened in January.
This testimony was not denied.
The Trial Examiner on the above is persuaded that Laura Labor was one of
those "regular" employees whom Bancroft never "told they were laid off until
further notice."
Laura Labor testified that prior to the strike (July 2-September 21, 1953), she
worked in the "black board department" in the "small plant" and that she was
on piecework and earned $1.26 per hour, the day rate for the job being 80 cents
per hour.
This was also not contradicted. It is apparent that Laura Labor was a skilled
operator.
Laura Labor further testified, also without contradiction, that she was a shop
steward for the Union; that she was a member of the Union's negotiating com-
mittee which met with the Respondent; that she participated in the strike and was
active on the picket line; and that she was a witness for the Union and testified
against the Respondent in Case No. 1-CA-1488.5
Laura Labor further testified that prior to the strike her work was never criticized.
All the above-related testimony is credited by the Trial Examiner.
Mrs. Labor further testified that she applied for reinstatement together with the
other strikers on September 21, 1953, but was not reemployed until September 29,
at which time she was hired by Bancroft who placed her to work in the lower mill
room of the "large plant"; the work she was given was to carry lumber from a
planer, an unskilled labor job paying 80 cents per hour with no piecework possible.
Absent a finding that the strike was an unfair labor practice strike the General
Counsel cannot contend that the Respondent was under any obligation to return
Laura Labor to her former job, however the Trial Examiner is mindful of Bancroft's
6 The Trial Examiner ' s report in Case No. I-CA-1488 bases findings of 8 (a) (15) in part
on Laura Labor's testimony.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that he considered experience when hiring employees, not so much from
the standpoint of the employee but from the standpoint of the Respondent.
Bancroft testified that when he put Laura Labor to work after the strike he did
not know her "job history" and was ignorant of the kind of work she had been
doing or was capable of doing.
On cross-examination of Laura Labor (who was out of the plant during the
strike), the Respondent sought to establish that the machinery at which she had
worked in the "small plant" had been shipped from the plant during the strike and
that 19 less people were employed in the "small plant" after the strike. However
this was not established.
Richard J. Doolin, vice president and comptroller of the Respondent, testified
with respect to the moving away of machinery:
There was machinery that was moved down that had been bought over a
period of a few months prior for shipment down there.
TRIAL EXAMINER- Didn't you move machinery from here to Alabama?
The WITNESS. Some was bought for the purpose of moving it down.
TRIAL EXAMINER: It wasn't operated here at all?
The WITNESS: Well, on a standby or temporary basis.
Vice-President Doolin further testified:
Q. (By Mr. Fuchs) Well, your blackboard line was operated in Cass Toys,
was it not, prior to the move to Alabama.
A. It is still there, as far as I know.
Q. So that if an employee worked at Cass Toys before you moved to Ala-
bama, there would be no reason why that employee should not be still work-
ing there on the same machine?
A. That is right.
Laura Labor testified that on December 18, 1953, her immediate foreman, Merle
Olmstead, told her she would be discharged as follows:
Merle said, "I have got to lay you off tonight," and I told him, "That is
all right." He said, "I have talked to Mr. Bancroft and told Mr. Bancroft
that it was not essential to lay you people off because there was plenty of work
for everybody," but he said Mr Bancroft wouldn't listen. Olmstead was not
called to testify as to this incident. Bancroft did not deny it as attributed to him.
The Trial Examiner credits Laura Labor. Mrs Labor further testified, credibly,
that Olmstead then told her "they will call me back when they needed me."
Laura Labor was not recalled at the time of the regular reopening and not offered
work by the Respondent until May 5, 1954, despite the admission by Superintendent
Bancroft that no cut back in work was ordered or made in the "lower mill room,"
where Laura Labor was employed, until January 21.
It was not denied that Laura Labor performed many skilled jobs '-in the "small
plant," yet although the record is clear that new employees were hired for the
"small plant" while Laura Labor was off work from December to May, and these
new employees worked at jobs she had previously performed, she was not called
for work there, although skill and experience were a factor considered in choosing
employees.
It is also clear that during the period of her unemployment more than a dozen
new employees were hired for the "large plant" mill room.
Conclusions as to Laura Labor
Considering the fact that Laura Labor, who was an active union member, an
officer in the Union, and an employee who testified against the Respondent in an
unfair labor practice case, together with the fact that she was capable of highly
skilled work and earned a high rate of pay, was not returned to her former work at
the end of a strike but was given a low paid inferior job and was laid off from this
job at a time when there was work for her and not recalled for approximately 5
months, although the department in which she was working was not "cut back"
until after she was laid off and then only slightly reduced, and that thereafter while
she was kept out of employment new people were hired into the department and
plant and new people were also hired into the department in which she worked
before the strike to do work she had done there for a long period of time, the Trial
Examiner is convinced that the reason for her layoff and untimely recall was some-
thing other than the assigned reason of "lack of work."
N. D. CASS COMPANY 415
Furthermore when the Trial Examiner considers that Laura Labor is the wife of
an employee found to have been discriminated against by the Respondent for exactly
the same union activities as engaged in by her, he cannot but recall the first Biblical
injunction regarding marriage ,6 and be persuaded that the marriage relationship of
the two employees also served to determine the Respondent 's discrimination against
her.
On the entire record, the evidence considered as a whole , and the demeanor of
the witnesses the Trial Examiner finds that the Respondent laid off Laura Labor and
thereafter failed to recall her promptly because of her membership in and activities
on behalf of the Union , including her testifying in Case No . 1-CA-1488, and finds
that such conduct is violative of Section 7 of the Act.
3. Laura Gravel
Laura Gravel testified she worked for the Respondent "off and on" from 1938
to 1951, as during this period she took leave because of her husband 's illness,
testifying:
It was because I couldn't work. 1 had to be with him part of the time.
Gravel further testified that from February 12, 1951, until her last "layoff" on.
December 18, 1953, that, with the exception of the time she was out on strike, she
worked steadily in the Respondent's plant, that after the usual Christmas layoffs she
was "always returned the day after the shop opened up" in January; that she partici-
pated in the strike, was active on the Union's picket line, and became a union steward;
that she testified in Case No. l-CA-1488; 7 that after the strike (September 2, 1953),
she was returned to work in the "lower mill room" where she operated a pull saw,
under Foreman Merle Olmstead; and that during her employment from 1951 she had
been on various jobs:
I have been a stitcher on the sewing machine each year. I have made
erasers I have put legs on blackboards, and I have tended to the sticker. I
have run the pull saw
Gravel was laid off on December 18, 1953 She testified that immediately preceding
the layoff her foreman, Merle Olmstead, held the following conversation with her:
He came over and told me that he was sorry but he guessed he would have to
do it. I said, "Yes, I suppose I am going to be laid off." He said yes. I
says, "Well, will I come back when they start up?" He says, "No, you will have
to wait until Mr. Bancroft calls you."
Olmstead was not called to testify. The Trial Examiner credits all the above-
related testimony, which was not contradicted.
The record is clear that Gravel and Laura Labor, found to have been discriminated
against by the Respondent, were the only employees in the "lower mill room" "laid
off" on December 18.
It has been found that Olmstead also laid off Laura Labor, telling her at the time
that her layoff was not necessary and that he had told Bancroft so 8
Gravel was not recalled at the time the plant reopened after the Christmas shut-
down. She testified that in February she asked Bancroft "if there was any chance"
of her obtaining work and that Bancroft said "no," and that some time in March she
again went to the plant and "asked him [Bancroft] for a job, but "he told me he was
sorry but he couldn't use me."
Gravel was recalled to work by the Respondent May 5, 1954.
Bancroft testified that prior to 1954 the Respondent manufactured summer furni-
ture during slack work periods and that Gravel worked on this furniture but that she
was "laid off" solely for inefficiency. He testified:
6 Genesis 2 24 Therefore shall a man leave his father and his mother , and shall cleave
unto his wife and they shall be one flesh
4 The Trial Examiner 's report in Case No 1-CA-1488 bases findings of 8 (a) (1) on her
testimony and discredits Superintendent Bancroft 's testimony relating to Gravel.
8In its brief the Respondent argues
It must be noted with significance that Merle Olmstead did not testify, the General
Counsel and the Union made no request to take Olmstead's deposition, not was it shown
that he was not unavailable to testify
Olmstead was a supervisor in the Respondent's plant The burden to disprove statements
attributed to him is on the Respondent
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Judge Rose.) Did you put her in any other place in the plant?
A. I have had her in several other spots. I tried to work her, but she was
just inefficient.
Mary Jerris, who was in charge of the Respondent's personnel records and who
testified (as found herein) that if an employee was let go for any reason other than
lack of work then Superintendent Bancroft noted the reason on the employee's per-
sonnel record card, testified as follows, from personnel cards in her possession, that
Gravel had been employed by the Respondent from 1938 with breaks in 1953, 1945,
and 1946 and further testified:
Q. Suppose you give me the last continuous date of employment up to
December 18th.
A. The last one was February 12, 1951.
Q. And then she was employed continuously through December 18, 1953.
A. Right.
Q. She was laid off for lack of work according to this notation.
A. Yes.
Q. December 18, 1953, I meant. And is there any comment in Mr. Bancroft's
handwriting or in his initials about Mrs. Gravel's being inefficient?
A. No. [Emphasis supplied.]
The record discloses that Gravel was replaced on her job by a recently employed
woman and that all those persons who were employed both in the "lower mill" room
and throughout the plant during the period Mr. and Mrs. Labor were discriminatorily
denied employment by the Respondent were of course also employed during the
period Gravel was denied work.
As hereinabove set out Gravel testified that from 1951 to her layoff she not only
was a "stitcher" on furniture "each year" but worked at various other jobs not
connected with the slack season furniture manufacture.
The Trial Examiner is at a loss to understand how an employee who was "just
inefficient" evaded discharge from 1938 to 1953; was never "laid off" except during
the annual shutdown; was always recalled as soon as the plant reopened after each
shutdown; and even rehired after each time she quit work because of the illness of
her husband. This puzzle together with Gravel's work record, as kept by the Re-
spondent, in the opinion of the Trial Examiner marks the Respondent's excuse for
her "layoff" as spurious.
On the evidence considered as a whole, and his observation of the witnesses, the
Trial Examiner does not credit Bancroft's testimony that he terminated Gravel and
failed to promptly recall her because of her inefficiency.
To the Trial Examiner it is plain that Laura Gravel was "laid off" and not promptly
recalled by the Respondent,9 because of her membership in and activities on behalf
of the Union, including her testifying in Case No. 1-CA-1488, and was therefore
violative of Section 7 of the Act.
Conclusions as to Arvid Labor, Laura Labor, and Laura Gravel
The Trial Examiner is convinced and finds on all the evidence in the case, includ-
ing the fact that the Respondent failed to establish its contentions with respect to
the reasons for the discharge of Arvid Labor, Laura Labor, and Laura Gravel, that
the reasons advanced by the General Counsel for discharges are well supported by
the record and therefore finds on all the evidence considered as a whole that the
Respondent discharged Arvid Labor, Laura Labor, and Laura Gravel on December
18, 1953, and thereafter failed to recall them in January 1954 because of their mem-
bership in and activities on behalf of the Union and has thereby discriminated in
regard to their hire and tenure of employment, discouraged membership in a labor
organization, and has interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, more particularly Section 8 (a)
(3) and (4) and Section 8 (a) (1) thereof.
C. The alleged discriminatory discharge
Francis E. Bowers
Francis E. Bowers testified he was first employed by the Respondent October 5,
1953, after the strike herein referred to; that he worked under Foreman Merle Olm-
stead in the "lower mill room," operating a planer, at which job his helper was Laura
Q As in the other cases her recall came only after the charge herein was filed.
N. D. CASS COMPANY 417
Labor, who "took away " from the planer until December 18 when she was "laid off"
being replaced first by a woman worker for 1 day and then by one Sweeney who con-
tinued on the job "until the day we were both laid off "; and that he was laid off
for the regular Christmas shutdown in 1953 and was automatically returned to work
"the first Monday" in January 1954, when the plant was reopened.
Bowers further testified that on January 21 , 1954, during a rest period , from 9:20
to 9:30 a. in., "Blackie Sawyer, Royal McLean , Ray Culver , and myself" were in the
plant boilerroom and "the subject of the Union was brought up and I talked a good
deal about the Union "; that he was "for the Union " but the others , with the exception
of one man , not identified , were against it; and that he explained union benefits, such
as insurance and safety measures to them, and:
I told them , the boys, I said, "If you didn't hide behind the lumber pile
when you wanted to talk, the union would be stronger in the shop."
Bowers further testified that when he had entered the boilerroom he had brushed
against Foreman Olmstead, and that he again saw Olmstead entering the room as
he left.
According to Bowers he was a member of the Union and had so indicated to fellow
employees in the boilerroom "quite a few times," and while Royal McLean was
present, however he altered his testimony as to McLean 's presence in the boilerroom
on January 21, testifying:
I wouldn't say positively that he was there. I couldn 't be absolutely positive that
he was there . Most of the days he was in there.
On cross-examination , he testified that McLean "might have been there and might not
have been there" and again testified:
I wouldn't say positively that he was in there every day. He might have been
there one day and might not have been . I know he was there the 21st on the
day I was talking.
Royal McLean , called by the Respondent , denied he had ever been in the boiler-
room during January 1954 together with Bowers, or with a group in which Bowers
was included He testified that he did see Bowers "going in and coming out" of the
boilerroom ; that the only times he saw Bowers in the boilerrom was momentarily
as they may have passed in the doorway as Bowers came in and he left but that he
was never actually in the room with Bowers.
Bowers' testimony regarding the boilerroom incident was confusing . McLean's
was equally so and was further obscured by the fact that McLean evaded giving direct
answers.
The General Counsel sought to show that Royal McLean was a foreman , however,
the record shows that McLean had no such supervisory authority as to make his
conduct binding on the Respondent with respect to labor relations.
The confusion as to the boilerroom discussion or discussions was heightened by
further testimony.
Chester Culver called by the General Counsel , testified that Bowers, McLean, "a
fellow named Blackie," and himself spent a rest period in the boilerroom on January
21. Regarding any conversation at the time Culver testified:
Q. Were you talking among yourselves?
A. We did.
Q. And did Mr . Bowers do some talking? Did he say something?
A. I had done the talking first.
Q. And then what did Mr. Bowers say?
A. After I spoke , he said that he thought it would be a good idea for the
union to get in. That is all he said.
Q. And you had a general discussion . Did you have a general discussion?
A. No.
Q. Did you talk about it?
A. No.
According to Culver "just before the bell rang," marking the end of the rest period,
he noticed Foreman Olmstead "right in the door way, about two feet from me" and
that just before the men left Olmstead remarked , "I think your goose is cooked."
He then changed his testimony to be that he "couldn't say" if Olmstead's remark
was made at this time or "a day or two later."
As to whether or not Bowers was terminated the day of the incident in the boiler-
room, Culver testified:
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Judge Rose) Do you recall when you talked to me that you said to
me definitely that Mr Bowers was laid off about three days later after the con-
versation in the boilerroom?
A. That is what I should think.
Q. That is what you told me.
A. I ain't sure, but I know it was somewhere around two or three days, I
think. Now they tell me it wasn't. That it was the same night.
Q. Who told you that it was the same night?
A. The boys in the shop.
Q When did they tell you that?
A. Today.
Q. Up to the time that somebody told you that, you believed it was two or
three days later
A. Yes, two or three days later.
In complete fairness to the witness, as well as the General Counsel and the Re-
spondent's attorney the Trial Examiner points out that Culver apparently was very
hard of hearing and it was clear that his ailment prevented him from grasping the
questions as put to him.
Bowers further testified that during the lunch hour of the same day as the boiler-
room incident (January 21), Olmstead told a group of employees, including Bowers,
"there was going to be quite an upheaval in the shop. Quite a lot were going to be
laid off"; that at 3.30 p. m. Olmstead told him he was being laid off for "lack of
work"; that he asked Olmstead when he would be called back and that:
He said that if he was me, that he would find another job somewhere else be-
cause it wasn't likely that I would ever be called back to work again.
As found herein Olmstead did not testify.
Bowers was recalled to work by the Respondent June 15, 1954.
Bancroft testified that Bowers was "laid off" for "lack of work"; that President
Cass had "cancelled out the orders in the mill room"; that the "cut back" amount
to 40 percent in production; and that therefore he let 3 millroom men go, meaning
2 in the millroom proper, namely, Bowers and his helper, Sweeney, and 1 man in
the warehouse.
At the time, Sweeney had enlisted in the Marine Corps and was waiting call to
service. The record is clear that Bowers' machine was operated after his layoff and
an employee was put on It full time while Bowers was out of work. The record fur-
ther discloses that from January 21, 1954 (the day of the layoff), overall employ-
ment in the plant increased
An increase in employment and at the same time a 40 percent cut in production
are hardly probable
Bowers testified without contradiction that his work was never criticized and there
is no contention that he was not fully competent.
The record is clear that there was considerable new hiring during the period Jan-
uary 21-June 15 while Bowers was off work. Of course the Respondent had a right
to lay off Bowers and not recall him for any reason whatever, or for no reason at
all provided Bowers' legitimate union activity and membership did not enter into
the termination of his employment.
If Bowers' union sympathies or activities, no matter how slight, caused his layoff
and thereafter his late recall, then the matter becomes one of illegal discrimination.
Bancroft admitted that "a week or so" before Bowers was laid off Foreman Olm-
stead told him (Bancroft) "there had been some kind of an argument in the boiler-
room" and that Bowers had been causing some trouble about the Union down there.
He further admitted that Olmstead told him Bowers was distributing membership
cards for the Union and stated he (Olmstead) "was going to see if he could get one"
and that with respect to this suggestion he told Olmstead, "0. K " and at the same
time told Olmstead that Bowers' passing out cards was "perfectly all right" if con-
fined to other than company time, and told Olmstead to so inform Bowers.
Conclusion as to Francis E. Bowers
In sum the record does not disclose any union activity by Bowers other than a rest
period conversation, however, the Respondent had received a report from Fore-
man Olmstead that Bowers had engaged in an argument regarding the Union, was
"causing trouble," and was distributing union applications.
Bowers testified that during the boilerroom discussion, which forms the base for
the union activity which attracted the Respondent's attention to him and allegedly
N. D. CASS COMPANY 419
brought forth Foreman Olmstead's statement that Bowers' "goose was cooked," a
statement not heard by Bowers, one of those present also favored the Union, and was
not thereafter laid off. Incidentally it must be pointed out that Bowers' wife who was
also employed in the plant, and who at Bowers' request asked for his reinstatement
on several occasions was not laid off.
The Respondent's sole reason for Bowers' layoff, namely, "lack of work" is not
supported by the record, nor is the failure to recall him promptly for the same
reason sustained.
Bowers was not an impressive witness The witness called to sustain Bowers' testi-
mony that he advocated the Union, and who also volunteered the damaging remark
by the foreman, did not add weight to the General Counsel's case However, Fore-
man Olmstead, the one witness who could have shed light on the incident as well, as
others found herein, was not called.
The Respondent's antiunion animus is plain and discrimination in hire and tenure
of employment has been found; still, the Trial Examiner is convinced that on the en-
tire record and all the evidence considered as a whole a finding that the Respondent
illegally discriminated against Bowers would in reality be based on an inference that
the Respondent was seeking to rid itself of any employee who favored the Union.
The Trial Examiner does not believe that this inference can be drawn on the
record but the matter is not free from strong doubt.
Being of the opinion that the record by a preponderance of the evidence fails
to sustain the allegation that Bowers was discriminatorily laid off and thereafter
denied timely reemployment from January 21 to June 15, 1954, the Trial Exam-
iner will therefore recommend that the complaint be dismissed insofar as it alleges
that the Respondent discriminated in the hire and tenure of the employment of
Francis E. Bowers within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce in the sev-
eral States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that the Respondent cease and desist theretrom and
take certain affirmative action which the Trial Examiner finds necessary to effectu-
ate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of Arvid Labor, Laura Labor, and Laura Gravel within the
meaning of Section 8 (a) (3) and (4) of the Act,l° the Trial Examiner will rec-
ommend that the Respondent make the aforementioned employees whole for
any loss of pay they may have suffered by reason of such discrimination, by pay-
ment to each of them of a sum of money equal to that which each normally would
have earned as wages from the date of the discrimination to the date of reinstate-
ment, less any net earnings during such period In computing the amount of back
pay due to the discriminatees for this period, the customary formula of the Boaid
set forth F. W. Woolworth Company, 90 NLRB 289, shall be applied, and the
Respondent shall make available to the Board payroll and other records to facil-
itate the checking of the amount due.
Although it may seem that no more than loss of wages is involved in any rem-
edy, this is not so, because discrimination in hire and tenure of employment "goes
to the very heart of the Act " The Trial Examiner will therefore recommend that
the Respondent cease and desist from in any manner infringing upon the rights
of employees as guaranteed by Section 7 of the Act.ii
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
10 As the discrimina tees have been returned to work no recommendation of reinstatement
is necessary Superintendent Bancroft testified that Arvid Labor was not working at the
time of hearing because of an accident As the General Counsel did not pursue the matter
the Trial Examiner believes this absence from woik was temporary
, L R B v Entwistle 1tfg Co, 120 F 2d 532 (C A 4)
369028-56-vol 112-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, N. D. Cass Company, Athol, Massachusetts, is engaged in
commerce within the meaning of Section 2 (b) and (7) of the Act.
2. Local 154, United Furniture Workers of America, CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Arvid
Labor, Laura Labor, and Laura Gravel, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and
(4) of the Act.
4. By such discrimination which is also interfering with, restraining, and coerc-
ing employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices against Francis E.
Bowers.
[Recommendations omitted from publication.]
Union News Company and Retail Wholesale and Department
Store Union, Local 506, Retail , Wholesale and Department Store
Union, CIO. Case No. 10-CA-1611. April 22, 1955
DECISION AND ORDER
On December 3, 1953, Trial Examiner Bertram G. Eadie 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 Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions 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 Intermedi-
ate Report, the exceptions and brief, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner only insofar as they are consistent with this
Decision and Order.i
1. The complaint herein alleges, in substance, that the Respondent
violated Section 8 (a) (3) of the Act by discharging four employees,
Bernice Louise Hood, Almogene Nix, Alice B. England, and Julia
Mae McClusky, all employees at the Respondent's restaurant located
1 After the hearing the General Counsel, the Respondent, and the Charging Union stipu-
lated that the total gross annual sales of the Respondent's interstate restaurant chain for
the year 1953 exceeded $10,000,000 This stipulation is hereby received and made part of
the record We find that the Respondent is engaged in commerce within the meaning of
the Act and that it meets the jurisdictional standards for the restaurant industry. See
Bsckfords Inc, 110 NLRB 1904.
112 NLRB No. 57.