Nashua Pre-Cast Corp.

National Labor Relations Board - Board Decisions

Jul 7, 1972

198 N.L.R.B. 39 (N.L.R.B. 1972)

NASHUA PRE-CAST CORPORATION 39
Nashua Pre-Cast Corporation and United Steelworkers
of America , AFL-CIO-CLC. Cases l-CA-7817
and 1-CA-7825
July 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 21, 1972, Trial Examiner Josephine H.
Klein issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
copy of his brief to the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt her
recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Nashua Pre-Cast Corporation, Nashua, New
Hampshire, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon charges filed
against Nashua Pre-Cast Corporation, Respondent, by
i In adopting the Trial Examiner's finding that Clark was discharged
in violation of Sec 8(a)(3) and (1) of the Act, we do not rely on any
adverse inference she may have drawn from the fact that Respondent did
not call its attorney, Harkaway, to testify concerning his conversation
with Worden on the day of Clark's discharge (TXD, in 16) We do not
draw such an inference
2 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing her findings Respondent asserts that the Trial
Examiner committed prejudicial error by unduly limiting its right to cross-
examine General Counsel's witnesses, and that it was thereby denied a full
and complete hearing We find no support in the record for Respondent's
charge.
United Steelworkers of America , AFL-CIO-CLC, Charg-
'ing Party , on August 19 and 25 , 1971,1 a consolidated
complaint was issued on November 1 (and amended, after
!notice of intent , at the hearing), alleging that Respondent
discriminatorily discharged employees William T. Clark
and Raymond L. Amadon on August 17 and 19,
,respectively , in contravention of Section 8(a)(1) and (3) of
the Act,2 and on various occasions between August 24 and
30 and on October 20 Respondent interfered with the
exercise by the employees at its Nashua , New Hampshire,
plant of the rights guaranteed them by Section 7 of the Act.
Pursuant to due notice , a hearing was conducted on the
complaint in Nashua , New Hamspshire , on January 5, 6,
and 7, 1972. All parties were afforded full opportunity to
be heard , to present oral and written evidence, and to
examine and cross-examine witnesses. The parties waived
oral argument and thereafter briefs were filed on behalf of
the General Counsel and Respondent.3
Upon the entire record , observation of the witnesses, and
consideration of the briefs , the Trial Examiner makes the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Respondent, a New Hampshire corporation with its
,principal office and place of business in Nashua, New
Hampshire, is engaged in the manufacture, sale, and
distribution of concrete manholes for drainage and
sewerage systems. Respondent annually receives goods and
material valued in excess of $50,000 directly from points
outside New Hampshire and ships finished products
valued in excess of $50,000 from its Nashua plant directly
to points outside New Hampshire. Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Union, Charging Party, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Chronology
In the summer of 1971, Respondent had about 24
production and maintenance employees at its plant in
Nashua .4 Sometime in July employee Raymond L.
i Except as otherwise specified, all dates herein are in 1971
2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519.
29 U S.C Sec 151, et seq )
3 Pursuant to two successive requests by Respondent, the time for filing
briefs was extended from February 4 to 28, 1972 Although not received
until March 3, Respondent's brief has been accepted and fully considered
4 It was also continuing operations on a very small scale at its older plant
in Hollis, New Hampshire, a few miles away The Hollis plant was then
being "phased out" and had only two to four employees
198 NLRB No. 30
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amadon approached other employees concerning the
desirability of trying to unionize.5 Employee William T.
Clark joined Amadon in making these initial inquiries in
the last week of July and the beginning of August. With a
generally favorable response, Clark conferred with officers
of the Union's local at Hume Pipe Company, a similar
company in the area. A meeting was held on the evening of
August 11 at Clark's home. Present at the meeting, in
addition to union representatives, were employees Clark,
Amadon, and Moms Charron, all of whom signed union
authorization cards and took blank cards.
Within the next few days employees Amadon, Clark, and
Charron secured executed cards from other employees at
the plant largely during working hours. Earl M. Bourdon,
union staff representative, testified that on August 16 he
received 17 executed cards in the mail.6 Bourdon there-
upon mailed a recognition demand to Respondent.
The Union's demand letter was received at the plant
about 10:50 a.m. on Tuesday, August 17. Immediately a
management conference was held in the office of Respon-
dent's president, Jack S. Rossborough. Present at this
meeting, in addition to Mr. Rossborough, were Mrs.
Rossborough, an active vice president; Leonard A.
Worden, vice president in charge of production; and Mr.
Ross, comptroller. Shortly after the meeting commenced,
Charles Cillizza, plant superintendent, was called in to join
the group. A telephone call was made to Mr. Aaron
Harkaway, Respondent's counsel.? This conversation
concerned the Union's demand letter and the advisability
of discharging employee Clark that day. After the
conversation with Harkaway, Worden and Cillizza left
Rossborough's office and went to the plant area. Sometime
around 11:15, in Worden's office, Worden, with Cillizza
present, discharged Clark. Clark was told to leave the
premises immediately although he would be paid for the
entire week (through Friday, August 20). Clark did not
receive his final paycheck until sometime later.
Near the close of business of Thursday, August 19,
Amadon was called to Worden's office, where Cillizza
informed him that he was being discharged effective
immediately. Amadon's final checks were given to him at
that time. So far as appears, he was not paid for the rest of
the current week. I
On August 19 the Union filed a representation petition
and an unfair labor charge alleging Clark's discharge as
violative of the Act. The second charge, concerning
Amadon's discharge, was filed on August 25. At this point
Vice President Worden held a general employee meeting
and a series of meetings with individual employees in
which the union campaign and the two employee discharg-
es were discussed.
The Union thereafter chose to proceed with an election
despite the pendency of the unfair labor practice charges.
The Trial Examiner hereby grants the General Counsel's
request that official notice be taken that a Decision and
Direction of Election was issued on September 22.
Thereafter Respondent engaged in an active "Vote No"
campaign, by letters and other literature sent to the
employees and culminating in a speech by Respondent's
president on October 20.
On October 21 the Union lost the election by a vote of
8-13, with 4 ballots challenged. No objections were filed.
B. The Discharge of William T. Clark
Although Respondent's products are made by three
different processes, it is sufficient for an understanding of
this case to know that essentially all the products consist of
concrete with steel reinforcement. Clark's function was to
fabricate the steel reinforcements, called "baskets," "tops,"
and "slabs."
Respondent commenced operations sometime in 1963.
Clark first worked for Respondent for about 9 months in
1964, when he was laid off for lack of work. He then
worked for Respondent again for about a month in 1965.
In 1966, at Rossborough's request, Clark worked part time
until the beginning of 1968, when, again at Rossborough's
request, because of increasing business, he began to work
full time, which he continued to do until he was discharged
on August 17, 1971.
From the beginning Clark worked strictly on a piece-
work pay basis. The hours he worked were dictated by
Respondent's production requirements and were left to
Clark's discretion. The evidence is undisputed that Clark
was an efficient and rapid worker and always met
production requirements.
In the early years, while Clark was working at piecework
rates, the other employees were working at a combination
of hourly and incentive piece rates. Around the end of 1968
or the beginning of 1969, apparently as a result of dealings
with the Wage and Hour Administration, incentive pay (or,
as Respondent referred to it, "bonuses") was discontinued
for all employees except Clark. Respondent wanted Clark
to shift to an hourly rate of pay, but Clark refused,
maintaining that he needed the incentive of piece rates in
order to function at top efficiency.
Worden arrived at the plant to supervise production
sometime around the middle of 1969. From time to time
thereafter, principally on the prodding of Mr. and Mrs.
Rossborough, Worden attempted to have Clark change
from a piecework to an hourly wage rate . However, Clark
was unwilling to do so and the issue was not pressed to a
"showdown" until the summer of 1971, as detailed below.
At the hearing, Worden maintained that he had simply
been too busy with other problems caused by the growing
pains of a new company, a disastrous fire which razed the
Hollis plant in January 1970, the reconstruction of the
Hollis plant, and the construction of the new Nashua
plant. Mr. and Mrs. Rossborough, however, indicated that
Clark was allowed to have his way because he was
indispensable and Respondent could not find another
person who could satisfactorily perform Clark's work. The
running controversy was punctuated by Respondent's
threatening discharge of Clark unless he agreed to work at
S Amadon had made some abortive attempt in the same direction 7 Mr Harkaway did not represent Respondent or appear at the hearing,
around November or December 1970 where Respondent was represented by Boston counsel specializing in labor
6 It is not entirely clear whether these cards were in addition to the three law.
signed at Clark's home on August I I The matter, however, is immaterial
NASHUA PRE-CAST CORPORATION
an hourly rate and Clark' s insisting that he would quit
unless he remained on piecework rates.
Throughout the employment, both before and after
Worden's arrival, Clark and Rossborough negotiated the
piecework rates. For example, when Clark returned to
work for Respondent in 1966 he was paid 50 cents per
linear foot for "tops." Shortly thereafter Rossborough
announced a reduction to 40 cents. Clark testified that he
was displeased and therefore "kind of slowed the work
down so that [Respondent] needed the material again."
This led to complaints of shortages and Clark's announc-
ing that he was quitting forthwith because he did not want
the job at the 40-cent rate. Rossborough then proposed,
and Clark agreed, that the rate would be 50 cents per foot
if Clark produced 100 feet per week but 40 cents any time
he fell under 100 feet per week. At another time, in 1971,
Rossborough and Clark negotiated reduction of the piece
rate for "slabs" from $2 to $1 per unit, with Respondent
providing precut steel reinforcing rods rather than Clark's
being required to cut the rods to required lengths.
Respondent's witnesses maintained that Clark was
earning between $300 and $500 per week throughout his
employment. According to Clark's testimony as to his
annual earnings, he averaged roughly $400 a week in 1968,
$260 in 1969, $280 in 1970, and then $300 until his
discharge in August 1971.
To compute his weekly earnings, Clark recorded his
daily production on a timecard and kept a record for his
own use. Frequently his personal record did not jibe with
Respondent's and he often visited the office and spoke to
Mrs. Rosen, the bookkeeper, to reconcile the discrepancies.
So far as appears, there never was any serious difficulty or
any unpleasantness about such differences.
In the early part of 1971 Respondent's business was
growing rapidly. Clark was finding it increasingly difficult
to keep up with necessary production. For awhile he had a
friend come in to help him, but Respondent made him
discontinue that practice because of problems of insurance
coverage for nonemployees. Respondent apparently hired
a series of other employees to assist Clark, but they proved
unsatisfactory.
Respondent then purchased a machine which would
make "tops" automatically. Clark declined an offer to
operate the new machine, saying that there was more than
enough other work to keep him occupied. Frank Austin
was hired on April 12 and assigned to operate the
automatic machine and to observe Clark to some extent.
After a short time, because Clark reported that his work
was unsatisfactory, Austin was requested to leave. Howev-
er, he requested and was given a second chance, whereup.
on his work unproved and he was kept on.
Clark was scheduled to leave on vacation for 2 weeks
commencing July 12.8 Before leaving, he went to the office
for his vacation pay and to request an advance on his
regular pay. There is no dispute that employees, including
Clark, frequently got pay advances.
Clark's request for an advance was later rejected. Mrs.
8 Although the evidence is not entirely clear, it appears that Clark left
work several days earlier because a plant breakdown prevented production
of the items in which his products were used
9 Clark 's request appears to have been for $100, although Rossborough
41
Rossborough testified that she felt he did not, or should
not, need an advance in view of his substantial earnings.
According to her, his current paycheck, with vacation pay
added, amounted to around $500. So far as appears, there
were no complaints by Clark or other aftermath of this
refusal of an advance.9
When Clark received his vacation and salary pay, he
discovered that he was being granted only 1 week's
vacation pay, at the agreed rate of $2.50 per hour for a 40-
hour week.10 He was displeased, believing that he was
entitled to 2 weeks' vacation pay. He told Mrs. Rossbor-
ough that on his initial hiring Mr. Rossborough had said
that beginning with his third year Clark would be entitled
to 2 weeks' vacation, as were all employees. Mrs.
Rossborough checked with Mr. Rossborough, who said he
had made no such agreement and that Clark was not
entitled to 2 weeks because he was being paid on a
piecework basis. According to Mrs. Rossborough, Clark
forcefully expressed his displeasure when she reported
back to him. She quoted Clark as having exclaimed, in a
loud voice, that he would "get it one way or the other."
Although this occurred in the reception office, where
customers and other outsiders wait, there was no evidence
that any strangers were present at the time. So far as
appears, neither Mrs. Rossborough nor anybody else
responded to Clark's statement.
According to Worden, just before Clark left on his
vacation, Worden told him that they "were getting very,
very close to the time when [they] would sit down and
establish an hourly rate for [Clark's] work." Worden
testified that he then "had experienced people" and "could
negotiate to get a good hourly rate for" Clark. Clark said
he wanted to stay on piece work and that at hourly pay "he
couldn't possibly do his job as fast and as rapidly as he
could if he had an incentive to work for."
Sometime during the first week of his vacation Clark
visited the plant, apparently to get another paycheck. At
this time he again complained about not having been given
more than I week's vacation pay. At Mrs. Rossborough's
suggestion, he spoke to Worden about the matter but was
not granted any additional vacation pay. Worden said that
if Clark went on an hourly rate he would receive 2 weeks'
vacation pay, as did other employees.
Before going on vacation, Clark, at Worden's suggestion,
had prepared in advance what Worden described as a
"good supply" of his products for use in his absence. Clark
testified that he produced as many as there was storage
space for. About 10 days after he left, this advance
production was exhausted. Austin was then assigned to
produce the baskets. However, the slabs which Clark had
been producing were contracted out to Al Lee Company,
an independent contractor. It agreed to produce them at 50
cents a basket, whereas Clark's rate was $1. In addition, Al
Lee undertook, without further charge, to handle the
purchase of materials thus saving Respondent considerable
paperwork. According to Worden, subcontracting to Al
Lee, even with attendant transportation costs, resulted in
testified that he understood it had been for $200 . Rossborough 's testimony
generally was unreliable He disclaimed much personal knowledge or clear
recollection
10 This rate had been agreed upon for Clark's vacation and sick pay.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
savings to Respondent as compared with Clark's prod-
uction at his piecework rate.
During the second week of his vacation, Clark visited the
plant again. At this time he learned about the subcontract-
ing of the slab work. With tops being made by Austin on
the automatic machine and slabs being produced by Al
Lee, Clark was left with a rather small workload. He was
fearful that he would be unable to make a living. Worden
testified that at this point, during the vacation, he "finally
decided to discharge Mr. Clark when he came back from
vacation." He said nothing to this effect to Clark. Worden
testified that he informed Rossborough of the decision, but
Rossborough's testimony does not tend to corroborate
Worden and, as discussed below, other evidence leads the
Trial Examiner to discredit Worden on this point and to
find that Worden did not make any decision to discharge
Clark before August 17.
When Clark returned to work on July 26 he and Worden
discussed Clark's work situation and it was agreed that
Clark would work that week at his old piecework rates and
see how it worked out. Concerning this discussion, Worden
testified:
[Clark ] agreed to work out to the end of the week. And
I told him, at that meeting, see how it goes this week,
which we had agreed to, if he came in, and come in and
we will discuss an hourly rate.
Clark worked that week, earning somewhere around $120
at piece rates."
On Monday, August 2, Clark and Worden negotiated an
hourly rate. Worden offered $3.50 an hour as Respondent's
"top" offer. Clark insisted that he could not live on that
wage and demanded $4 an hour as a minimum. He argued
that he should be paid a flat $200 a week, which he
understood was the salary of Norman Landry, an
"employee" not otherwise specifically identified.12 The
parties finally agreed that Clark would be paid $4 per hour
but was not to work more than 40 hours a week unless
specifically requested or directed to do so by Worden.
On Friday, August 6, Worden asked Clark how many
hours he had worked that week. According to Clark, this
occurred during the afternoon and Clark replied that by
closing time he would have worked 40 hours. Worden
testified that the conversation occurred after quitting time,
as Clark was leaving the plant. They agree that Worden
said "good" when Clark reported his total work for the
week as 40 hours. About 15 minutes before quitting time
on that day Clark learned for the first time that the plant
was to operate on Saturday. He reported to work on
Saturday morning and proceeded to produce the baskets
needed for that day's production. Around 10 a.m. Worden
arrived. He immediately berated Clark, reminding him that
he had been instructed not to work beyond 40 hours in any
week unless specifically so instructed by Worden. Clark
replied that he had come in because he knew that baskets
11 Throughout, all persons were vague about monetary amounts. No
records of any kind-either production or earnings-were ever produced or
offered in evidence Such records would be relevant to Respondent's
claimed reasons for Clark's discharge.
12 The evidence suggests the possibility that Landry was not an employee
includable in the bargaining unrt.
would be required for the production on Saturday and that
there was nobody else available to make baskets.
It is undisputed that Clark had not been told in advance
that the plant was to operate on Saturday and had not been
asked to prepare any baskets in advance. Worden testified
that he did not at any time on Friday check to determine
what, if any, inventory of baskets there was. Austin, who
testified that he has often refused to work overtime, was
apparently not requested to work on Saturday,13 and no
other arrangement had been made for obtaining baskets
for Saturday's operation. Rossborough testified that Clark
had reported merely to obtain unauthorized overtime pay
and that his production was not needed. However, neither
Rossborough nor Worden suggested what alternative
means were available for obtaining the baskets essential to
production that day. Even if there was an alternative, it is
impossible to see what could have been done in the
production time before 10 a.m., when Worden arrived.
On Monday, August 9, Clark spoke to Worden about the
possibility of getting overtime work, possibly at driving a
truck. Clark maintained that he needed more than $160 per
week to live on. According to Clark, Worden said he would
see what could be done. Worden testified that he said that
he could not afford to pay Clark overtime at his $4 per
hour rate when he could use men whose basic rates were
only around $3.50 per hour. Whichever version is correct,
it is undisputed that no action was taken and Clark's
position remained in status quo until his discharge on
August 17.
Charles Cillizza commenced work as Respondent's plant
manager on August 9. He was hired because Respondent's
business had so increased that Worden was no longer able
to supervise production directly in addition to performing
his other duties. Worden testified 14 that "one of [the] first"
assignments he gave Cillizza was "to check out with
Austin; [to] see whether or not in his opinion he could
handle the job." According to Worden, after spending a
few days familiarizing himself with the plant operation and
personnel, Cillizza was critical of Clark's independence
and freedom to set his own schedule for dividing his time
between the Nashua and Hollis plants. Worden also
testified that Cillizza expressed the opinion that the volume
of work did not warrant keeping two men for the
reinforcing work. Rossborough directly contradicted this
view. He testified that he "believed there was more than
one man's job. In other words, if Bill [Clark] could have fit
into this role, then he would have been working, like with,
maybe Frank Austin."
Worden testified that he decided that, if only one man
was to be kept, it would have to be Austin because he was
willing to operate the automatic top machine, was being
paid less than Clark, and was also able to perform regular
production work. Worden then testified that he and
Cillizza "agreed that [they] would watch Mr. Austin's
functions to see if he was capable of handling all the
13 Worden agreed that he "had an understanding . . with Mr Austin
that we would not need him to work overtime." However, now that he has
taken over Clark's work , Austin regularly works overtime about 2 hours a
day and around two Saturdays a month
14 Although Cilhzza appeared as a witness, he testified very little, and
only on cross-examination , concerning the Clark matter
NASHUA PRE-CAST CORPORATION
reinforcing work at [Respondent's] plants" and they would
discuss it again on Friday, August 12.
They were unable to get together that day or on
Monday, August 16. However, as heretofore noted, on
Monday, Worden did discuss with Clark the latter's
request for overtime work. According to Worden, he and
Clark "left it that he was still getting four dollars an hour,
40 hours a week, no overtime."
Worden testified that he finally got to talk Cillizza about
Clark between 9 and 9:15 a.m. Tuesday, August 17.
According to Worden, Cillizza said Austin "could find
time to execute both ends of the reinforcing" and was
"more valuable" than Clark. Worden testified that Cillizza
based his opinion on having observed Austin "when he
first came in" when "Clark was on vacation, and Mr.
Austin was doing both phases of it." Worden appeared
only slightly embarrassed when it was noted that Cillizza
had not arrived until a week after Clark had returned from
vacation. Worden then said that Cillizza had observed
Austin on an unspecified day when Clark was at the Hollis
plant. But no explanation was offered for Clark's not
having done all necessary work for both plants, as was his
wont. Worden also testified that Cillizza "spoke to Mr.
Austin with relationship to doing both jobs." Austin,
however, testified that nothing was said to him about
taking over Clark's work until after Clark was fired. Austin
was told that "if things worked out" he would receive a
wage increase, which he eventually got late in November,
after Phase I of the wage freeze ended.
Worden testified that around 9:30 a.m., immediately
following his meeting with Cillizza, he (Worden) informed
Rossborough of the decision to discharge Clark. However,
in his testimony, Rossborough gave no indication of
having been so notified.15 And at another point Worden's
testimony clearly indicated that he first disclosed the
decision to discharge Clark at the meeting in Rossbor-
ough's office immediately after receipt of the Union's
demand (discussed below).
At 10:50 a.m. on Tuesday, August 17, the Union's
demand for recognition arrived at the plant. Yvette
Hudon, Respondent's receptionist at that time, testified
that immediately thereafter Mrs. Rossborough, whose desk
also is in the lobby-reception room, opened and read the
letter, with Comptroller Ross reading over her shoulder.
Mrs. Rossborough and Ross then went into Mr. Rossbor-
ough's office, where they were soon joined by Worden. A
few minutes later, Plant Superintendent Charles Cillizza
was paged and joined the group in Mr. Rossborough's
office.
Hudon heard part of the conversation in Rossborough's
office. Worden made a remark to the effect that the
Company should not be "scared" by the letter. At Ross'
suggestion , a telephone call was made to Mr. Aaron
Harkaway, Respondent's lawyer. At that point the office
door was closed, so Hudon heard no more.
According to Worden, Harkaway at first advised against
15 Rossborough was called pursuant to Rule 43(b) of the Federal Rules
of Civil Procedure as the General Counsel 's first witness Respondent's
counsel waived "cross-examination of this witness at the present time until I
put my case in, in direct ." Rossborough was not recalled.
16 It was not essential that Respondent produce evidence corroborative
of Worden However, Harkaway 's testimony concerning this conversation
43
discharging Clark because of the "bad timing." However,
when informed by Worden that the discharge was for good
cause and was unrelated to the Union, Harkaway said it
would be lawful.is
A few minutes later Worden and Cillizza left Rossbor-
ough's office and headed toward the plant area. As they
passed her desk, Hudon "heard Len Worden say to Charlie
Cillizza, we will have to get rid of him. We will train
someone to replace him." Respondent did not cross-
examine Hudon and her testimony was not contradicted.
Within 5 or 10 minutes , Clark was discharged in
Worden's office, with Cillizza and Worden present. The
only major conflict in the evidence in this case concerns
the circumstances under which Clark went to Worden's
office.
Clark testified that Worden came to Clark's work area
and told him to report to the office immediately.
According to Clark, at that time he had completed about
two-thirds of his day's production for the Nashua plant
and had not done any of the production at the Hollis plant.
Worden, on the other hand, testified that around 9 to 9:15
a.m. that day he and Cillizza had agreed to fire Clark and
Worden had then told Clark to report to the office when he
finished his Nashua production and was ready to leave for
Hollis. Worden testified that Clark had then come to the
office pursuant to that request . On all the evidence, as well
as careful observation of the witnesses , the Trial Examiner
credits Clark's version of the timing of his summons to
Worden's office.
Clark testified that Worden said that as of that moment
Clark's services were no longer needed. Clark asked if there
was anything wrong with his work, to which Worden
replied: "No, it is not your work. . . . your work is good
... in fact, your department is the only department I have
never had to worry about, the work was always done . . . it
is just you are a trouble maker. We want you out of here."
When Clark said he wanted at least to finish the day
because he needed the money, Worden said Respondent
would pay him for the entire week, but wanted Clark
"away from the men" immediately because he was a
"trouble maker."
Neither Worden nor Cillizza contradicted the foregoing
testimony. Worden, however, testified that he specified the
reasons for the discharge, as follows:
I told Mr. Clark . . . he should perfectly understand
why he was being discharged because he was not happy
at an hourly rate. He was constantly demanding more
money. And I couldn't meet his demands. I brought his
attention to the rudeness when he had spoken to Mrs.
Rossborough and told him that we just couldn't afford
to keep him doing the work he was doing.
Q. Was any mention made about the Saturday
work?
would have been very illuminating, particularly as to Respondent's
knowledge or belief of Clark 's involvement in the union activity. Since
Respondent chose to give testimony concerning its consultation with
counsel , thus waiving its attorney-client privilege, its unexplained failure to
call Harkaway is noteworthy.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: Yes, I did draw his attention to that,
to disregarding what we had-I told Mr. Clark that he,
it was said, was constantly harassing Mrs. Rossborough
or the bookkeeper. I told him I had told him previously
to take his matters up with me and not to go into the
general office which he refused to do or did not do.
And I told him that the amount of work we give him at
his old working pace would take about half the time it
takes him to do it.
He asked me if that was all. And I told him we would
pay him through to the end of that week and to bring
his uniforms in so we could get credit through on them
and so on.
Worden volunteered to give Clark a good reference.
Rossborough, on the other hand, indicated that the
major, if not sole, reason for Clark's discharge was his
refusal to accept an hourly rate and/or his insistence on $4
an hour. Rossborough's version of the reason for the
discharge was that the matter was "brought to a head" by
Clark's not fitting into the role of an hourly paid employee.
Rossborough continued:
... he was not satisfied to earn 160 dollars a week.
He had to have at least a couple of hundred dollars a
week. He did not want to work for $3.50 an hour. He
wanted to earn four dollars an hour. Our highest paid
man, which is our operator, I believe, is $3.60 an hour
as far as the general labor is concerned. And here a
person other than an operator, you know wanting four
dollars an hour. '
At one point Rossborough testified that the matter had
been brought to head by Clark's working on Saturday,
August 7, without having been specifically requested to.
In view of the undisputed facts, Respondent's explana-
tion of the sudden discharge is little short of preposterous.
Throughout the several years of the employment, Clark
and Rossborough had engaged in hard bargaining as to
specific piece rates and as to piecework versus hourly rate
wages . They were both shrewd bargainers, using various
means of persuasion. The bargaining continued after
Worden's arrival. After years of resistance, Clark finally
agreed to accept an hourly rate when Respondent so
reduced the quantity of his work that a piece rate basis was
nonremunerative. Even then the bargaining was hard.
Respondent raised its "top" offer from $3.50 to $4 an hour
and Clark agreed to a straight 40-hour week. This bargain
was made at least 2 weeks after Worden maintains he had
definitely decided to discharge Clark. If, as Worden
maintained, he had simply postponed the discharge to
avoid the adverse effect on employee morale which would
result from a discharge immediately upon the end of
17 Respondent could have paid Clark for the second week of his vacation
for less than the wages it paid for the remainder of the week after he was
discharged . Employee morale would presumably have suffered less
18 Respondent apparently does not contend that Clark's unfruitful
request for a pay advance played any part in his discharge Although
considerable evidence was adduced concerning that request, it does not
appear that it led to any unpleasantness
19 The adverse inference which would normally be drawn from this
Clark's vacation, one would normally expect Worden to
welcome Clark's quitting upon Respondent's refusal to pay
more than $3.50. It is also difficult to understand how
Worden would expect employee morale to be less adverse-
ly affected by a precipitous discharge than it would have
been by a discharge with notice as of the end of a
vacation.17
Little need be said about Clark's supposed "rudeness" to
Mrs. Rossborough and his claimed "harassment" of the
office personnel. The disagreement about the second
week's vacation pay had arisen some 5 weeks earlier.is
Mrs. Rossborough testified that, while Clark's conduct
with respect to the vacation pay somewhat upset her, she
was not angry and she did not want or request his
discharge. Mrs. Rossborough also in effect disclaimed any
annoyance at Clark's alleged "harassment" of the office
personnel. She testified that, while she felt the extra
bookkeeping involved in Clark's working at piecework
rates was unnecessary, she was not "upset" by it. When
asked on cross-examination if Clark periodically went to
the office to check on his production, Mrs. Rossborough
replied simply: "He came in when he was called to come
in." Despite Worden' s insistence that Respondent would
close its doors before taking Clark back, Mrs. Rossborough
testified that she did not want or request his discharge and
that, as far as she was concerned, he could be taken back at
any time.
Worden suggested that a contributing factor in Clark's
discharge was, in effect, a "slow-down" of his production
when he was finally shifted from piece rate to hourly rate
compensation. Although the Trial Examiner twice indicat-
ed that production records, which Respondent conceded it
keeps, would be considered the strongest evidence of any
such contention, no records were produced.19 In any event,
it is undisputed that Clark performed all the work assigned
to him ; at no time did he fail or refuse to fulfill any
assignment . No criticism was ever leveled against the
quantity or quality of his work. As heretofore noted, it
appears that the agreement for an hourly rate was reached
only because there was insufficient work to assure Clark
reasonable earnings at his piecework rates. Both Clark and
Rossborough indicated that in the past the speed of Clark's
work had varied directly with the extent of his "incentive."
At the time the final agreement was reached for an hourly
rate Clark openly stated that his working pace would
decline, yet Worden acceded to Clark's demand for $4 per
hour.
The evidence is clear that Clark was an unusually
efficient worker. For several somewhat stormy years
Respondent negotiated with Clark, making numerous
bargaining concessions because Clark was virtually indis-
pensable. Mrs. Rossborough testified that whenever she
asked Worden about forcing Clark to accept an hourly
rate, Worden replied that "he needed Bill" until he could
failure to produce is considerably weakened by the fact that the General
Counsel stated an anticipatory objection to the introduction of such
records, as follows there is testimony on the record by Mrs.
Rossborough and by [Clark 1 that the production process changed while he
was on vacation . And there is no way production records or any other
records are going to measure the two times And I think for that reason it is
an unfair question TRIAL EXAMINER . You will have redirect examination to
establish that, Mr Harvey "
NASHUA PRE-CAST CORPORATION 45
find a replacement. On August 17, when Clark was
discharged, Respondent did not have a known replace-
ment. As Hudon testified, without any contradiction while
enroute to discharge Clark, Worden said to Cillizza: "He
[clearly referring to Clark] will have to go. We will train
somebody to replace him." (Emphasis supplied). And when
Austin was hurriedly assigned to perform the job, he had to
take on considerable overtime work, at $5.10 per hour-
-scarcely consistent with Respondent's claimed "econom-
ic" basis for Clark's discharge.
Worden testified that Respondent, as a matter of policy,
never gives advance notice of discharges. But one must
wonder why Clark's discharge and the notification thereof
could not have waited until the end of the week for which
Respondent volunteered to pay him, or at least until
Clark's checks had been prepared.
The final string to Respondent's bow is its denial of any
knowledge of Clark's involvement with the Union at the
time of his discharge. But such denial of knowledge is
effectively refuted by Respondent's own evidence. Worden
and Rossborough testified that when they received the
Union's demand for recognition they knew to a virtual
certainty that Clark would cause "trouble." That realiza-
tion, they maintained, was the reason for their consulting
counsel about the discharge. But, unless Respondent knew
or immediately surmised, that Clark was a union sympa-
thizer or activist, it would have no reason to anticipate a
union-oriented complaint arising from the discharge.
Whether Respondent had actual knowledge of Clark's
involvement or merely jumped to such a conclusion based
on intimate knowledge of Clark's personality is essentially
immaterial; the knowledge was acquired or the surmise
formed before the discharge and the two matters were
linked together in Respondent's corporate mind.
The record as a whole provides no plausible explanation
that for the precipitous discharge other than Clark's
unquestioned leadership in the union movement. Employer
knowledge of such activity may be inferred on circumstan-
tial evidence just as discriminatory motivation may be.
N.L.R.B. v. Link Belt Co., 311 U.S. 584, 602, F. W.
Woolworth v. N.L.R.B., 121 F.2d 658, 660 (C.A. 2);
Syracuse Tank & Manufacturing Co., 133 NLRB 513, 539.
The evidence, however, also warrants an affirmative
inference Respondent knew of Clark's involvement. As
heretofore set forth, the first union meeting was held at
Clark's home. The employees present were Clark and
Amadon, the alleged discnminatees, and Morris Charron.
Worden testified that Charron had told him about the
employees' dealing with the Union before August 17.
20 Q. Had any employees told you that they were negotiating with the
union? A. No, they hadn't. Q. Hadn't Moe Charron told you that9 A. Moe
Charron did not-did tell me that Q When did he tell you9 A I believe
Moe Charron told me that while he was out with an injury. Q And when
was that? A At the time he was out with an injury was prior to the 17th, and
he came in, I believe after I had the meeting with the employees, after the
28th he came into my office And I asked him about his hand and so
on. Q What did he tell you? A. Well, I just-I related to Mr Charron, as
well, what I had related in the speech Q Well, you testified that he told you
about the union negotiations9 A. He didn't tell me about the union
negotiating He told me-it was common knowledge that the union was in
there negotiating because we had received a letter Q Was it your
testimony that Moe Charron told you about the union negatiating with the
Worden's ensuing denial was so ambiguous as to be totally
incredible.20
Other evidence also suggests that Charron was Respon-
dent's source of information concerning Clark's activity.
Worden testified that Charron was a "leadman" and the
person to whom Respondent looked as the "spokesman"
for the employees as a group. Worden testified that at one
time he had discharged an employee from the Hollis plant
on Charron's recommendation.21 On cross-examination as
to this matter, Worden testified that Charron "was quite
outspoken, and he would come to [Worden] with any little
problem or what he thought. He would try to offer advice
where he could."
Charron's communicativeness was in line with the
overall atmosphere in the plant. For example, Worden
testified:
We always had close relationship with our employees,
and we always related to the men and conversed with
them regarding subjects of mutual interest such as their
work... .
The openness of the relationship between employer and
employees is reflected by the undisputed fact that umon
authorization cards were solicited at the plant during
working hours.22
In its brief Respondent contends that the noise of the
plant machinery would preclude any supervisor from
hearing solicitation conversations from any distance and
there is no evidence that any supervisor was in the
immediate vicinity when Clark solicited any cards. Howev-
er, the credited evidence establishes that, despite the
machinery noise, conversations generally can be conducted
in normal speaking tones. The plant is an open area, not
partitioned by walls, and the supervisor regularly travels
throughout the plant. It is a reasonable inference that in a
plant as small as Respondent's, the supervisor was aware of
the employees' activities therein.
In the course of the hearing, Respondent's counsel
emphasized the fact that Charron, the third employee
solicitor for the Union, was not discharged. This fact, in
itself, would not tend to establish that Clark and Amadon
were not discharged for their union activities. N.L.R.B. v.
Nabors Co, 196 F.2d 276 (C.A. 5), cert. denied 344 U.S.
865; N.L.R.B. v. Puerto Rico Telephone Co., 357 F.2d 919
(C.A. 1). In any event, Charron's retention is at least
consistent with his being a source of information to the
Company concerning the employees' activities.
The timing of the discharge by itself is substantial
'evidence that Clark's union activity was the cause.
N.L.R.B. v. Stemun Mfg. Co., 423 F.2d 737, 741 (C.A. 6);
men while he was out on sick leave9 A I'll have to say no. Q Are you sure?
A. I already knew about the union"
21 In the course of cross-examining Worden , the General Counsel
attempted to establish that Charron was a supervisor. No finding is here
made concerning Charron's status.
22 There was evidence that Clark solicited one employee's umon card at
the gas pump, which is visible from the window of the shipping office, and
that Worden was standing at that window at the time Worden denied
having seen this solicitation. Since the gas pump is between 75 and 125 feet
from the shipping office, Worden could not have read the card or heard the
conversation between the employees The Trial Examiner therefore does not
rely on this incident as establishing company knowledge of Clark's union
activity.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. L. R. B. v. Tennessee Packers, Inc., 390 F.2d 782, 784
(C.A. 6); N.L.R.B. v. Schnell Tool and Die Corp., 359 F.2d
39, 45 (C.A. 6). Respondent's discriminatory motive is
inferred from the surrounding circumstances . N.L.R.B. v.
Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8);
Shattock Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470
(C.A. 9).
On all the evidence, the Trial Examiner finds that Clark
was discharged on August 17 because of his union
activities, in violation of Section 8(a)(3) and (1).
C. The Discharge of Raymond L. Amadon
Amadon commenced working for Respondent in July
1970 at $2 per hour. Within the ensuing year he received
two merit wage increases totaling 35 cents per hour, and
two general increases totaling 45 cents per hour, bringing
his wage rate to $3.40 per hour in July 1971. He testified,
without contradiction, that on several occasions, including
the times of the wage increases, Worden praised his work.
Amadon had never had any adverse criticism except for a
statement by Worden to the effect that "sometimes [he]
say[s] too much." This remark was made in conjunction
with a generally laudatory statement on the occasion of
Amadon's receiving a merit increase in May 1971.
Sometime in May Worden assigned Amadon to clean the
pit area, apparently a relatively difficult operation. Accord-
ing to Amadon's uncontradicted testimony, Worden made
the assignment because he was dissatisfied with the
employees who had been doing that work and he "wanted
somebody he could depend on." Worden thereafter said he
was "very satisfied with the way [Amadon] was keeping
the pit clean."
When Robert W. Tidd, Jr., was hired in November 1970,
he was initially trained by Amadon. Thereafter Tidd and
Amadon worked together, each finishing the inside of a
piece while a third man did the finishing work on the
outside of both pieces. Shortly after the operation moved
from Hollis to Nashua, around February or March, the
third member of the crew left Respondent's employ. It is
not clear whether that employee was ever replaced. It is
established, however, that at least on some occasions
Amadon and Tidd alone performed work previously done
by three men.
Amadon initiated consideration of unionization among
the employees sometime in July.23 On August 12, the day
after the organizing meeting at Clark's home, Amadon
solicited eight authorization cards-one on the way to
work, four at the plant during working time, and three at
lunchtime. So far as Amadon knew, there was nobody in
the vicinity when he solicited three of the four cards at
work. However, immediately after obtaining employee
Paul Mertz' signature, Amadon noticed Cillizza coming
toward him. Amadon testified that he started to leave, but
Cillizza came up and "told me he didn't want me talking to
his employees as I had done." Cillizza was not specifically
examined about this testimony by Amadon and Cillizza
did not testify to any such incident. The Trial Examiner
credits Amadon.
There is no direct evidence that Cilhzza saw the actual
card solicitation or knew the nature of the conversation
between Amadon and Mertz. And Cillizza denied having
had any knowledge of union activities before August 17.
However, a friendly and relaxed atmosphere pervaded the
plant (see discussion above) and there is no evidence of
any rule against employees ' engaging in conversation
among themselves . It would therefore be reasonable to
infer that Cillizza's rebuke of Amadon on August 12 was a
reaction to the nature of the dealings between Mertz and
Amadon rather than to the mere fact that they were talking
together. However, it is unnecessary to rely on that
incident to establish Cillizza's knowledge of Amadon's
union sympathies since such knowledge is clearly shown by
a subsequent event.
Amadon testified that on August 18 he and Tidd were
working alone . Irked because Respondent had not provid-
ed a third man, Amadon, in a very loud voice and using an
obscenity, exclaimed that he would be glad when the
Union came in. Amadon testified that at the time Cillizza
was standing about 6 feet away from him and employee
Arthur Morrill was about 10 or 12 feet away. Immediately
after Amadon's outburst, Cillizza went to the office.
Morrill thereupon told Amadon that Morrill had heard
Amadon's statement. Amadon's testimony was corroborat-
ed by Morrill and Tidd. If Morrill heard Amadon's
statement , obviously Cillizza, who was considerably closer
to Amadon, must have heard it. Thus, despite Cillizza's
denial, the Trial Examiner finds that on August 18 Cillizza
heard Amadon's emphatic expression of prounion sympa-
thy.
At the close of business on the next day, Thursday,
August 19, Cillizza called Amadon to Worden's office.
Amadon testified:
[Cillizza] says, "I'm going to have to let you go." I says,
"Why?" He said, "Well it's your work." I said, "What
do you mean my work. I do piece by piece with
anybody out there." He said, "It's not only that. It's
your attitude. You don't have an attitude for the
company.". . .
With the use of relatively minor obscenity, Amadon ended
the interview with a request for his pay.
Cillizza testified, in effect , that Amadon expressed such
anger that Cillizza felt he could not fully explain the reason
for the discharge.
Tidd testified that when he later asked Cillizza about
Amadon's discharge, Cillizza said he "felt that [Amadon]
wasn't doing any work." Tidd replied, as he testified at the
hearing, that Amadon was doing as much work as Tidd;
since they worked together, Tidd could not maintain his
satisfactory work pace unless Amadon did too. According
to Tidd, while Amadon did not possess Tidd's special
"touch . . . to bung out the quality with a piece, the
quality finishing," Amadon's work was entirely satisfactory
as to both quantity and quality.
Worden testified that after the discharge he held
meetings to reassure the employees that Clark's and
23 He had previously worked at a union shop, a fact which Worden had
elicited when he hired Amadon.
NASHUA PRE-CAST CORPORATION
Amadon's discharges were for cause and not for union
activities. At one point Worden testified that he told the
employees that Amadon required constant supervision and
that Worden had frequently observed him wasting time in
talking, drinking coffee, or simply idling. However,
Worden never said anything to Amadon about such
derelictions. The discharge came 10 days after Worden had
ceased supervising production, being replaced by Cillizza.
Cilhzza, who claimed sole responsibility for the dis-
charge, ascribed it to a serves of three incidents. According
to Cillizza, sometime during his first week at the plant, he
told the men to try a different method of performing part
of the work. Amadon replied that that method had been
tried before and did not work and Amadon did not think it
would work now. However, as conceded by Cillizza,
nothing more was said; Amadon did not refuse to follow
instructions, but in fact did proceed to try the method
suggested.
The second incident occurred on Monday, August 16.
Cillizza asked the men to do a particular job which the men
had done in the past. Amadon replied that it had not been
done at this time because the men did not have the time.
Amadon and Cillizza both testified that Amadon did then
proceed to perform the task. Nothing further was said.
The final-and, according to Cillizza, the decisive-inci-
dent occurred on the morning of August 18. Cillizza told
the men that he would like to try to increase production by
making three rather than two products at a time. Enraged,
Amadon proclaimed that they could not do so. He said
that they had tried it before, when they had three men
working, and he was not going to do it now, when there
were only two men. According to Cillizza, Amadon then
turned his back. Cillizza told Amadon that in Respon-
dent's plant one did not turn his back on other people but
spoke to them face to face and that it was "not permissible
to yell in this company." Cillizza testified that it was at this
time that he definitely decided that Amadon had to go.
Cillizza testified that he immediately informed Worden
that he wanted Amadon terminated as of that day. Worden
approved and had Amadon's paychecks prepared.
It is noteworthy that Amadon had never been warned
that his work was anything less than satisfactory. The
absence of any criticism or warning takes on special
significance in the light of Worden's testimony concerning
the earlier discharge of another employee:
At the Hollis plant in 1970 [an unnamed employee]
wasn't doing his job properly, and the foreman made
me aware of this. And, of course, we gave him an
opportunity to do his job better. And he failed at this
... we would speak to him and try to build an
incentive enough so he would give us an hour's work
for an hour's pay and so on and stop getting in
everybody's way and acting smart alecky and talking
smart alecky . . . I don't like to fire a man unless it's
really essential.
As noted above, employee Frank Austin had been given a
chance to improve his performance after Respondent had
24 Cillizza had been hired because of the Company' s growing business
25 There was some confusion or conflict in the evidence as to the precise
date of the general meeting The Trial Examiner finds that it was held on
August 27, the day after Respondent received the second charge in this case,
47
decided to discharge him. In view of this policy, it is
somewhat remarkable, to say the least, that Worden
agreed, without any discussion or question, to discharge an
employee with a year's creditable service upon the
recommendation of a plant superintendent who had been
with Respondent for less than 2 weeks-and this at a time
when, according to Worden, the Company's production
was increasing and it "needed every man [it] could get." 24
The circumstances and timing of Amadon's abrupt
discharge in the middle of a pay period lead inexorably to
the conclusion that it was motivated by the union situation.
On all the evidence, the Trial Examiner finds that Amadon
was discharged because of his union activities and
sympathy, in contravention of Section 8(a)(3) and (1) of
the Act.
D. Alleged Violations of Section 8(a)(1)
1. Vice President Leonard A. Worden
In 10 separate paragraphs the complaint alleges that
between August 24 and 30 Worden engaged in various acts
of interference with the employees' rights under Section 7,
including unlawful interrogation, promises, threats, and
surveillances of union activities. The evidence in support of
these allegations concerned a meeting of all unit employees
Worden called on August 2725 and a series of private
meetings he held with the individual employees just before
or within a few days after the general meeting.
The general meeting, in the Company's lunchroom,
lasted about 45 minutes, late in the day. The employees
were paid at overtime rates for the duration of the
meeting.26
In Worden's words, the purposes of the general meeting
were to inform the employees that Respondent was "aware
that union negotiations were taking place" and "to assure
them that the discharge of Mr. Clark and Mr. Amadon was
not because of union activity." He stated, in general, that
Clark and Amadon had been fired for poor or insufficient
performance and/or bad attitude. Questions and com-
ments by employees were solicited. As detailed below,
there was considerable discussion of existing employee
benefits. In the main, his private conversations with
individual employees, held in his office, were similar in
content to the general meeting.
Although Worden testified that he was "neutral" on the
question of unionization and that he did not comply with
Rossborough's request that he participate in the Compa-
ny's "Vote No" campaign, the evidence, including Wor-
den's testimony, establishes that he made clear his opinion
adverse to unionization at Respondent's plant. The
complaint essentially raises the question of the extent to
which his statements fell within or without the limits of
protected free speech.
At the meeting, Worden reviewed the Company's
employee benefits, with considerable emphasis on its
profit-sharing plan. He assured the employees that as the
Company grew and prospered it would improve benefits as
alleging Amadon's discharge as violative of the Act
26 Or for the time spent in after-hours cleanup necessitated by the
meeting
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much as possible. He asked the employees what they
believed the Union could obtain for them that they could
not secure for themselves, without a union. This led to a
discussion of job security in the light of the Clark and
Amadon discharges and reference to specific employee
benefits. By asking why the employees "needed a union"
and indicating that their problems could be solved by
direct dealing with management, Worden in effect solicited
employee grievances "and implied a promise to correct
them without the intervention of the Union." Such conduct
contravened Section 8(a)(1) of the Act. Teledyne Republic
Manufacturing, 185 NLRB No. 129 (TXD).
There is no dispute that Worden suggested that the
employees consider forming a grievance committee. As
stated by employee Morrill, after some discussion of the
benefits desired by the employees, "Mr. Worden said that,
if we wanted to organize, we could organize a committee or
something and bend them against the wall with anything
we want." It has consistently been held violative of the Act
for an employer to suggest to employees that they form a
"committee" rather than seek representation by an outside
union. International Metal Specialties, Inc., 172 NLRB No.
139, enfd. 433 F.2d 870 (C.A. 2), cert. denied 402 U.S. 907;
Seibert Distributing Co., 187 NLRB No. 108 (TXD).
Apparently in response to a specific inquiry, Worden
said that Respondent was already looking into the
possibility of lowering the eligibility age, then 25, for
participation in the Company's profit-sharing plan. He also
referred to a possible future plan under which employees,
on a voluntary basis, could invest in mutual funds. While
he apparently gave no details, he clearly created the
impression that such a plan would be of considerable
benefit to the employees. He also spoke of the contemplat-
ed installation in the plant's lunchroom of a ping pong
table and other recreational facilities for the use of
employees.
There is no suggestion that any of these possible future
benefits had ever previously been mentioned to the
employees. Further, there is no probative evidence that
Respondent had actually brought them under serious
contemplation. On the contrary, Worden himself testified
that the mutual funds investment plan was simply one of
the benefits that Respondent might "look into"-"it was
just something that I had been approached on personally,
and I took up with some of the employees." The only
"employee" he specifically recalled having talked to about
it was Norman Landry.27 Worden could not date that
conversation.28
In the absence of any probative evidence that Respon-
dent had actually formulated or announced any plans for
the institution of new benefits before the union campaign
commenced, it was a violation of Section 8(a)(1) to hold
out the prospect of such benefits as an inducement to the
employees to reject the Union. N.L.R.B. v. Exchange Parts
Co., 375 U.S. 405, 409; N.L.R.B. v. Grand Foundries, Inc.,
362 F.2d 702, 708 (C.A. 8).
Worden also spoke of the Company's interest in
employee "loyalty." According to employee Tidd's credit-
ed testimony, Worden said that Respondent " was a small
company, needed loyal employees, and the loyal employ-
ees would be taken care of. Anybody that wasn't loyal he
didn't need." Worden conceded that he might have told
the employees that Respondent needed "every loyal man
they could get." He admitted that he might have called
Amadon "disloyal." Worden testified that "loyalty" was
unrelated to the union matter, referring solely to dependa-
bility or reliability-"to give an ... honest hour's work for
an honest hour's pay." According to Worden, he also
referred to the "acute shortage of personnel showing up for
work in the mornings" and "the fact that the burden had to
be carved by some of the individuals that were regular and
did show up." But there is no evidence that tardiness or
absenteeism had been a deficiency of Amadon, and there
was only a passing reference in Worden's testimony to a
possible tardiness by Clark. Worden knew that the
employees believed, as the Trial Examiner has found was
the fact, that Clark and Amadon had been discharged for
union activities. It was virtually inevitable that employees
would equate "loyalty" to "anti-Unionism." That this was
Worden's message is reinforced by employee Earl Bergh,
Jr's., testimony that toward the end of the meeting Worden
"said, if this talk did not, mainly, sink into our heads, that
he was going to have to find some other means or ways of
convincing us not to go for the union." On all the evidence,
the Trial Examiner finds that, as alleged, Worden threat-
ened discharge of employees who did not renounce the
Union.
It is undisputed that Worden said emphatically that
Respondent would close its doors before it would take
Clark or Amadon back because they had been discharged
for cause and not for union activities. This threat, however,
was made after the charges had been filed with the Board,
and Worden was fully aware that at least some of the
employees believed the discharges to have been based on
union activities. Worden testified that he called the
meetings to reassure the employees because of an air of
great tenseness in the plant caused by discharges. Against
this background Worden's threat to close the plant,
without any possible deference to the Board's disposition
of the charges, was clearly coercive and thus violative of
Section 8(a)(1).
Morrill testified that a few days after the general
employee meeting he visited Worden's office to request a
wage increase and to discuss Amadon's discharge. Morrill
credibly testified that on that occasion Worden asked him
what he thought of the Union and Morrill replied that he
"was strongly for it." Worden than asked to whom Morrill
had been talking and Morrill refused to answer . Worden's
questions, occurring while a representation petition and
unfair labor practice charges were pending, were clearly
violative of Section 8(a)(1).
The complaint alleges , in effect, that Respondent,
through Worden, promised wage increases if the employees
rejected the Union. The support for this allegation is found
27 Landry's status does not appear The evidence suggests that he was 28 Rossborough was at least equally vague about possible liberalization
salaried and possibly was not an employee includable in the bargaining of the profit -sharing benefits He finally said the matter was considered at
Worden did not speak to Landry about the Union, as he did with other an unspecified time in August
employees.
NASHUA PRE-CAST CORPORATION
in the testimony of employee Morrill that around August
27 Worden said that "before the wage freeze came along,
everyone was due for a substantial wage increase ." On its
face, that statement would clearly imply a promise of a
general wage increase , without union intervention, at the
end of the wage freeze, which had been imposed on August
15. However, at the hearing the parties stipulated that
Respondent's records show that eight employees received
increases as of the week ending July 17 and nine others as
of the week ending August 7. In light of this fact, it is likely
that Worden merely reminded the employees of their
recent increases and, in effect, their good fortune in having
had the raises granted before the freeze.29 So viewed,
Worden's statement was not violative of the Act.
There is no substantial evidence to support the allegation
that Worden kept union activities under surveillance or
gave the impression of doing so.
2. President Rossborough's speech
On the morning of October 20 Rossborough delivered a
speech to the assembled employees. The meeting lasted
about 30 to 40 minutes, ending just about 24 hours before
the beginning of the Board-conducted election.
Rossborough testified that he read the speech from a
prepared text, with no variations. However, he also
testified that at the conclusion of the speech he invited
questions and "There might have been one question, one
or two questions." These statements cannot both be true
because the text of the speech contains a concluding
sentence explaining that Rossborough "won't be able to
open this meeting for discussion" because of the Board's
24-hour rule. Be that as it may, the prepared text of the
speech is the sole evidence in support of the allegation that
Respondent, through Rossborough, threatened to close the
plant if the Union won the election or if the employees
"became or remained members of" or assisted or support-
ed the Union.30
In his brief the General Counsel does not discuss this
allegation of the amended complaint and does not specify
any portions of Rossborough's speech which he believes
constitute a threat of plant closure.31 The following are the
only parts of the speech which either directly or indirectly
refer to possible plant closure or loss of jobs:
I have pointed out before, no union can guarantee you
a job.... No union can guarantee you steady
work.... You have absolutely no guarantee or
assurance whatsoever that the Steelworkers Union can
do one single thing for you.
*
I would also like to make it very clear that no union,
Steelworkers or otherwise, can tell us how many people
we should employ, or who we can hire or how many
hours per day, or days per week, we should work or
who can do what jobs in our plant, or otherwise tell
29 In his brief the General Counsel conjectures that the raises were
actually granted at a later date and made effective retroactively. There is no
evidence to support such speculation. Amadon, the General Counsel's
witness, indicated that he had received a general increase in July.
30 This allegation was added to the complaint by amendment made at
the beginning of the hearing, after the General Counsel had given notice of
49
NPC how to run its business. We have no doubt that
the Steelworkers' Union may try to do this, but the law
gives the company the right to manage its business
whether there is a union in the picture or not. I believe
most of you know me well enough to be certain that I
would never let any union tell me how to run this
company. No company has ever grown from a small
beginning like ours by letting someone else tell them
how to run their business.
The union may have told you that you will have "job
security" if you vote them in. Let us consider
"security." I would like to point out the many varying
elements of security. What is security? . . . Security, to
me, is my job. I believe security to you, is your job.
What created them? . . . And what conditions will
assure their continuing and expanding? . . . We are in
the manufacturing industry. NPC was started as just an
idea. This idea has become our product line, and we
have turned it into something we can sell. How much,
and how often people buy our product is of the utmost
importance to everyone here today. It's these, the many
tasks and operations involved in making and selling our
product that creates and will expand our jobs, and I'm
sure you all understand this.
I would like to point out that these past many
months have been hard times for some people. Yes,
even some industries as a whole, but not so at Nashua
Pre-Cast. We have expanded-even while other have
been cutting back.... When people no longer want
or need our product . . . or are not satisfied with our
service, it is then that we are in trouble. Anything less
than this-union or no union-and the future of this
company will be in peril. This can only be accom-
plished through your loyalty and cooperation.... By
all of us working together and pulling together . . . not
by our pulling apart.
* * *
Even if the union were to win the election ... there
would still be only one way that it could try to force us
to agree to any of its demands which we thought were
unreasonable or which we otherwise couldn't see our
way clear to agree to. That would be by pulling you out
on strike. I hope you realize . . . and understand .. .
while there is yet time, that NPC has no intention of
yielding to any such pressure as that . . . ever.... As
matters now stand . . . you have a good job . . . you
have steady employment here. Naturally . . . we all
hope things will get even better. They can be better if
we can get this union matter behind us, and settle down
to the business all of us are supposed to be here for.
In the Trial Examiner's opinion, Rossborough's speech,
whether read as a whole or analyzed sentence by sentence,
his intention to amend.
31 A portion of the speech is cited as an unlawful representation that
"resort to self-organization was unnecessary" within the holding of Jefferson
Wire and Cable Corp., 159 NLRB 1384 , 1405-6. No finding is made in this
connection since the complaint contains no such allegation.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not contain any threat, express or implied, direct or
indirect, of plant closure in the event of a union victory.
Accordingly, it will be recommended that the amended
complaint be dismissed insofar as it alleges such a threat.
CONCLUSIONS OF LAW
1. By coercively interrogating an employee concerning
union sympathies and activities; by promising employees
improved benefits if they reject the Union and deal with
the employer directly or through an employee grievance
committee; by threatening discharge of employees who
support the Union; and by threatening to close the plant
rather than reinstate employees who were discriminatonly
discharged, Respondent interfered with, restrained, and
coerced employees in the exercise of their rights under
Section 7 of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. By discharging William T. Clark and Raymond L.
Amadon on August 17 and 19, 1971, respectively, and
failing and refusing to reinstate them thereafter, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. The General Counsel has not shown by a preponder-
ance of the evidence that Respondent has engaged in any
unfair labor practices other than those found above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, the Trial Examiner will recommend that
Respondent be ordered to cease and desist therefrom and
take affirmative action of the type customarily ordered in
such cases. Having found that Respondent discriminatorily
discharged William T. Clark and Raymond L. Amadon in
violation of Section 8(a)(3) of the Act, the Trial Examiner
will recommend that Respondent be required to offer them
immediate and full reinstatement, with backpay, to be
computed in the manner established in F. W. Woolworth
Company, 90 NLRB 289, together with interest at 6 percent
per annum in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716. Because the unfair labor practices,
particularly the precipitous discharges of Clark and
Amadon, strike at the heart of the Act, the Trial Examiner
will recommend that a broad cease-and-desist order be
issued.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended: 32
32 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided by Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
ORDER
Respondent, Nashua Pre-Cast Corporation, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
union activities.
(b) Threatening to discharge employees who support the
Union.
(c) Promising improved employee benefits if the employ-
ees renounce the Union in favor of dealing with Respon-
dent directly or through an employee grievance committee.
(d) Threatening to close the plant rather than reinstate
employees who have been discharged in violation of
Section 8(a)(3) of the Act.
(e) Discouraging membership in the United Steelworkers
of America, AFL-CIO-CLC, by discharging any employee
or by discriminating in any other manner in regard to hire
and tenure of employment or any term or condition of
employment.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-
organization, to form or join labor organizations, and to
engage in any other concerted activity for the purpose of
collective bargaining or other mutual aid and protection,
or to refrain from any or all 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 Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Offer William T. Clark and Raymond L. Amadon
immediate and complete reinstatement to their former jobs
or, if those positions are no longer in existence, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, in the
manner set forth in "The Remedy" section of this
Decision.
(b) Notify William T. Clark and Raymond L. Amadon,
if they are presently serving in the Armed Forces of the
United States, of their right to full reinstatement upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and compute the amount of backpay
due under the terms of this recommended Order.
(d) Post at its facilities in Nashua and Hollis, New
Hampshire, copies of the attached notice marked "Appen-
dix." 33 Copies of said notice, on forms provided by the
33 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
NASHUA PRE-CAST CORPORATION
Regional Director for Region 1, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the law and we have been ordered to post this notice about
what we are committed to do.
The National Labor Relations Act gives all employees
these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining of
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
We assure all of our employees that:
WE WILL NOT unlawfully question employees con-
cerning their union membership, activities, or sympa-
thies, or concerning any union activities among our
employees.
WE WILL NOT threaten to discharge employees if
they join or support the United Steelworkers of
America, AFL-CIO-CLC, or any other labor organiza-
tion.
WE WILL NOT promise improved or increased
employee benefits or other terms or conditions of
employment if the employees choose to be represented
by a union; and WE WILL NOT advise employees that
51
they will receive better terms and conditions of
employment if they choose to deal with us directly or
through an employee committee rather than an outside
union.
WE WILL NOT threaten to close our plant if we are
required to reinstate discharged employees William T.
Clark and Raymond L. Amadon.
WE WILL NOT discourage membership in United
Steelworkers of America , AFL-CIO-CLC, or any other
labor organization , by discriminatorily discharging any
employee or discriminating in any other manner in
regard to hire and tenure of employment or any term or
condition of employment.
WE WILL offer William T. Clark and Raymond L.
Amadon immediate and full reinstatement to their
former jobs (or, if those jobs no longer exist, to
substantially equivalent jobs), without prejudice to
their seniority or other rights and privileges.
WE WILL give William T . Clark and Raymond L.
Amadon backpay , with interest , for any loss of
earnings suffered by them as a result of our having
discharged them on August 17 and 19, 1971, respective-
ly.
WE WILL notify William T . Clark and Raymond L.
Amadon , if currently serving in the Armed Forces of
the United States , of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, after their discharge from the Armed
Forces.
NASHUA PRE-CAST
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Seventh Floor , Bulfinch Building , 15 New Chardon Street,
Boston, Massachusetts 02114, Telephone 617-223-3300.