National Co., Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1962

136 N.L.R.B. 228 (N.L.R.B. 1962)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-short periods of time off, to discipline servicemen for improper work,
-transfer servicemen from one district to another, and to determine
the work priorities for the servicemen. As the parties admit that the
foreman is a supervisor within the meaning of the Act, and as it ap-
pears that the dispatcher substitutes for the foreman during the fore-
man's absence, and as the record shows that the foreman is out of the
.office each day for approximately 50 percent of the time, we find the
dispatcher-commercial industrial sales to be a supervisor within the
meaning of the Act.
As we have herein found that the transportation foremen, street
foremen, inspector of foreign openings, assistant supervisor-outside
collectors, supervisors-outside collections, and the dispatcher-
commercial industrial sales are supervisors within the meaning of the
Act, we shall exclude them from the unit heretofore found appropri-
ate. We have also found that the foremen dispatchers, assistant dis-
patchers, chief dispatcher, dispatcher-central district, and the
dispatcher-west district-day are not supervisors within the meaning
of the Act as contended by the Employer. Accordingly, we shall
include these employees in the unit heretofore found appropriate.
ORDER
IT IS HEREBY ORDERED that the certification heretofore issued in the
above-captioned proceeding, be, and it hereby is, clarified by specifi-
cally including all foremen dispatchers, assistant dispatchers, chief
dispatchers, dispatcher-central district, and the dispatcher-west
district-day and by specifically excluding, as supervisors, all trans-
portation foremen, street foremen, inspector of foreign openings, as-
sistant supervisor-outside collectors, supervisor-outside collections,
and dispatcher-commercial industrial sales.
National Company, Inc. and Independent Union of Plant Pro-
tection Employees . Case No. 1-CA1-3479. March 13, 1962
DECISION AND ORDER
On December 11, 1961, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a brief in
support of the Intermediate Report.
136 NLRB No. 21.
NATIONAL COMPANY, INC. 229
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delgated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was brought under Section 10(b) of the National Labor Relations Act,
as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed
May 29, 1961, by Independent Union of Plant Protection Employees, herein called
the Union, against National Company, Inc., herein called Respondent. On July 7,
1961, the General Counsel issued a complaint against Respondent alleging a violation
of Section 8(a)(3) and (1) of the Act, and Respondent, by answer dated and filed
July 18, 1961, denied the violation charged. A hearing on the complaint and answer
was held on August 3, 4, and 7, 1961, at Boston, Massachusetts, before James F.
Foley, the duly designated Trial Examiner.
Respondent, General Counsel, and the Charging Party were represented at the
hearing. All parties were afforded an opportunity to be heard, make oral argument,
and file briefs. Briefs were filed by General Counsel and Respondent in lieu of oral
argument after the close of the hearing.
The complaint alleges that on March 24, 1961, Respondent discharged employee
Leroy C. Harrold employed at its Malden, Massachusetts, plant for the reason that he
joined or assisted the Union or engaged in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and since March 24, 1961,
has failed and refused, and continues to refuse to reinstate Harrold to his former or
substantially equivalent position. In its answer, Respondent denies it violated the Act
as alleged and states as affirmative defenses that it determined to assign to a job as
guard John Wilband, a foreman aged 62 with 23 years' service in the employ of Re-
spondent, whose job had been abolished because of a general retrenchment by Re-
spondent; that a vacancy in a guard job had to be made by terminating one of the
guards to permit such an assignment as an increase in the number of guards was not
warranted; and that Harrold was selected for termination to provide the vacancy be-
cause while he had greater seniority than two of the other six guards, he could not
perform the duties of one of the two guards of collecting and delivering mail, since he
did not own or have the use of a personal automobile, could not perform the duties
of the other guard of responding to the alarm system protecting the Respondent's
Melrose plants during the hours of the night and early morning when these plants
were closed, as he lived in Lynn, Massachusetts, 7 miles from Melrose, Massachu-
setts, and did not have a telephone in his home on which he could be reached, or own
or have the use of a personal automobile to convey him to the Melrose plant in
response to the alarm system. Respondent also advanced the affirmative defense that
Harrold was dissatisfied with his transfer to a less desirable job assignment and was
looking for a job elsewhere.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation, is engaged in the manufacture, sale, and
distribution of electronic equipment and related products with its principal office and
place of business in Malden, Massachusetts. In addition to its Malden plant it oper-
ates two plants in Melrose, Massachusetts. National Radio Company, a wholly
owned subsidiary, also does business at the three locations. Respondent annually
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receives materials with a value in excess of $50,000 at its Malden plant from points
outside the State of Massachusetts , and ships in interstate commerce from its Malden
plant products with a value in excess of $50,000 to points outside the State of Massa-
chusetts . I find Respondent is engaged in commerce within the meaning of Section
2(6) and ( 7) of the Act , and that assertion of jurisdiction will effectuate the purposes
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Undisputed facts
Respondent and its wholly owned subsidiary has approximately 450 employees at
its 3 plants at 61 Sherman Street , Malden , and 37 Washington Street and 111 Wash-
ington Street, Melrose, Massachusetts . Eight hundred employees have been laid off
since January 1960 due to a business retrenchment . Approximately 100 employees
constitute an appropriate unit of production and maintenance employees for collective-
bargaining purposes and are represented by International Union of Electrical, Radio
and Machine Workers, AFL-CIO, herein called IUE. This unit included approxi-
mately 500 employees before the reduction in force . Respondent and IUE have had
collective -bargaining agreements for 9 years.
The guard force of the Respondent at or about March 24, 1961 , and at the time
of the hearing , consisted of six guards and a sergeant of the guards, Andrew Pung.
The guards were not , and had not been , represented by any labor organization. How-
ever, the guards receive all the benefits, to the extent they are applicable , the JUE
negotiates for the unit of production and maintenance employees . This has been Re-
spondents ' policy. The number of guards had been reduced from 13 in early 1960 to
6, in line with the reduction in the numbers of other personnel . On March 24, 1960,
and thereabouts , three of the guards were assigned to the rotating shift at the Malden
plant and one guard was assigned to each of the two plants in Melrose. Sergeant
Pung was located at the Malden plant as was a guard who worked on the day shift
delivering mail to, and picking up mail from , the post office and the three plants.
The guards on the rotating shift were J. McManus with 181/2 years' service , E. Har-
rington with 9 years ' service, and Leroy C. Harrold with 3 years ' service. H. Martin,
with 51/2 years ' service, was assigned to plant 3 at 111 Washington Street, Melrose,
and T . Paoletti, with 21/2 years ' service, was assigned to plant 2 at 37 Washington
Street , Melrose. P. Goodwin , with 21/2 years' service, was assigned to delivering and
picking up mail. He used his personally owned automobile for this work and re-
ceived a mileage fee for the use of the automobile . He was Pung's nephew by
marriage.
On March 24 , 1961, Harrold had the midnight to 8:30 a.m. shift at the Malden
plant. He had been transferred to the rotating shift at Malden from plant 3 in Mel-
rose on February 24, 1961 . He had been at plant 3 approximately 21/2 years. There
was day duty only at plant 3, and the take-home pay for that asisgnment was higher
than for the rotating shift at Malden as the hours worked at plant 3 were approxi-
mately 60 per week, with overtime pay after 40 hours, as compared with 40 to 48
hours at Malden . His sucecssor at plant 3 was guard Martin who had 21/2 years'
more service than he had. Pung testified that he assigned Harrold to plant 3 so that
he could get back on his feet financially ,' and that he transferred Martin there for
the same reason . Martin's driver 's license had been suspended as a result of an auto-
mobile accident . He expected it to be reissued about the time he was transferred. He
did not have an automobile at the time.
As stated above , plants 2 and 3 in Melrose had guards on duty during daytime only.
These plants were protected during nonworking hours by the American District Tele-
graph alarm system ( herein called the A.D.T. system ). The alarm rang in the police
1 At the time Harrold began his employment with Respondent be owned an automobile.
Prior to his termination Harrold had been without a car for some time , a year at least.
Harrold listed a telephone number on his application form as his Pung's understanding
was that he had a telephone until he moved to another house , but did not have a tele-
phone in the second home . His telephone number in the guard ' s logbook at the time of
termination was the number for his mother - in-law's home which Harrold testified was
2 minutes away. Pung testified that he called the number Harrold listed on two occa-
sions, but was unable to locate him on either occasion , and that in February 1961, when
Harrold was transferred to the Malden plant, lie endeavored to have him purchase a car.
The Plant Guards Protective Association offered to loan him the money to buy a car.
Harrold said to Pung he still had a few debts to clear up
NATIONAL COMPANY, INC. 231
station at Melrose and in the American District Telegraph office in Boston. A
troubleshooter in the latter office would first call a representative of Respondent and
then go to plant 2 or 3, whichever it was. Respondents representative would meet
him there. Sergeant Pung was first on the list to be called. His alternate was guard
Paoletti when the problem was one of plant security and not maintenance. Paoletti
lived in Melrose, had a telephone, and owned and had the use of an automobile. As
stated above, Harrold lived 7 miles away in Lynn and did not own or have the use of
an automobile, or have a telephone in his home. Paoletti answered the majority of
the calls during the 6 months prior to March 24, 1961.
Harrold had been employed as a guard at the General Electric Company plant
in Lynn, Massachusetts, for 7 years before beginning his employment with Respond-
ent. While employed by General Electric he was a member of the Union. His
father was a business representative of the IUE at the General Electric plant. Ser-
geant Pung was employed as a guard by General Electric for 4 years prior to his
employment of 12 years with Respondent. He was a member of the IUE at General
Electric.2 Pung was not a union member while employed by Respondent. Neither
was Harrold until shortly after he applied for membership in the Union on Febru-
ary 26, 1961.
The record discloses that at least until January 27, 1961, relations between Ser-
geant Pung and Harrold were friendly. Pung would look to Harrold for the names
of persons interested in being employed as guards by Respondent. Walter Curtis
and Ignazio San Filippo were employed on Harrold's recommendation. So was
James Madigan, a principal witness in this proceeding. There were also other
occasions when Pung looked to Harrold for prospective guards.
On January 27, 1961, Harrold sent a memorandum to S. Natkin, vice president
and sales manager of Respondent, in which he complained about the quality of a
company-manufactured radio that was on display at plant 3, Melrose. Harrold was
on duty there at that time. Harrold described the radio as being constantly in need
of repair, and its being on display at plant 3 to be seen by visitors and salesmen
as the "worst piece of merchandising and advertising" that he had ever seen. He
further stated that he had several inquiries per day about the set and that he was
"getting disgusted with trying to make excuses." He went on to say that " if a set is
displayed that persons responsible should at least display printed matter with it
explaining advantages and also stating the prices." He concluded by saying that the
memorandum was written in the interest of the Company and not as a personal com-
plaint. Guard Goodwin heard Pung state on June 2, 1961, to Union Business Repre-
sentative Madigan that Harrold went over his head in sending the memorandum, and
that he was reprimanded as a result of it. As found above, Harrold was transferred
to the Malden plant on February 24, 1961.
On the morning of March 24, 1961, shortly before 8:30 a.m., the end of the mid-
night shift for Harrold, and the beginning of the day shift for Pung, Pung notified
Harrold that his services were terminated. Harrold and Pung had a conversation
about the termination, Pung handed Harrold a check for the amount due him, and
Harrold turned in his uniform, "punched out," and left. Harrold had a conversation
with Industrial Relations Director Hoffman about the termination later in the morn-
ing. Harrold had asked Pung if he could talk to Hoffman and Pung suggested to him
that he call Hoffman and arrange to meet with him before going to see him. Since
March 24, Respondent has not reemployed Harrold, and has not offered to reinstate
him to his former position or a substantially equivalent position. On March 26,
1961, Respondent placed in the vacancy opened by Harrold's termination John
Wilband, 62 years of age, an employee of 23 years' service, and foreman of the coil
winding section until it was disbanded as part of the economic retrenchment begin-
ning in January 1960. The six guards on March 26, including Wilband, have been
continued unchanged in number or personnel. Sergeant Pung has remained as their
supervisor.
B. Harrold's union activity
The testimony of Harrold and James Madigan, business representative and organ-
izer for the Union, is that Harroll contacted Madigan regarding the organization of
Respondent's guards in January 1961. There was no rebuttal testimony as Respond-
ent had no way to counter this testimony. To give this testimony any weight, I
would have to rely on the credibility of the testimony of Harrold and Madigan alone,
and disregard its self-serving aspects. Other evidence, however, militates against
my giving this evidence any weight. Harrold admitted that in a conversation with
Sergeant Pung sometime during his employment by Respondent, he was highly
2 Apparently, when Pung was at General Electric, the employees, including the guards,
bad a plantwide union Subsequently, the guards became members of the Union.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
critical of the Union for the way he considered it treated him when he was one of its
members during his employment at General Electric. He also admitted that in a
conversation on March 24, 1961 , with Roger M. Hoffman , industrial relations direc-
tor, regarding his termination , he volunteered that "I'm not interested in a union
although I received a solicitation card." And up to February 24, 1961 , when he was
transferred to the rotating shift at plant 1 in Malden , Harrold had a preferred posi-
tion in terms of higher take-home pay and better working hours than that of other
guards with more seniority . In sum, prior to February 24, 1961 , Harrold had
evidenced a disinterest rather than an interest in the Union , and was the beneficiary
of preferred wages and working conditions as compared with those of guards with
more seniority which very likely would have been denied him had a union been
representing the guards . I cannot find an interest in the Union premised on an
awakening to the benefits of union representation as Harrold was well aware of
them long before by reason of his prior membership in the Union and his father's
official connection with the IUE.
It is clear from the testimony , however, that James Madigan, the business repre-
sentative of and organizer for the Union , visited Harrold at the guardhouse at
plant 1, Malden , on Sunday afternoon , February 26, 1961, 2 days following his trans-
fer from plant 3, Melrose, to the rotating shift at the Malden plant. As previously
found, Madigan had been employed as a guard by Respondent on Harrold 's recom-
mendation .3 He had been a friend of Harrold's for 20 years . Guard Harrington
saw him waiting in his automobile in front of plant 1 when he arrived shortly before
4 p.m. to relieve Harrold at 4 p.m. He and Madigan exchanged salutations on meet-
ing and farewells on Madigan 's and Harrold's departure in Madigan 's automobile.4
Harrold and Madigan testified they discussed the organization of the guards by
the Union and that Harrold made available to Madigan the names , addresses, and
telephone numbers of the guards that were listed in the logbook kept in the drawer
of the desk in the guardhouse . I credit this testimony as on or about March 10,
1961 , each of the guards , including Harrold , and Sergeant Pung received a handbill
or flyer from the Union and a union card. Guard Martin had kept his address and
telephone number confidential and had asked Sergeant Pung to do likewise. Har-
rold signed a card on February 26 and gave it to Madigan , and also signed the
card he received in the mail on or about March 10, and returned it to the Union.
Madigan and Harrold both testified that Madigan made visits to two or three other
company plants that Sunday afternoon after leaving Respondent 's plant 1, and on
these visits Harrold watched Madigan talk to guards about the benefits of union
membership and representation and watched his technique in getting them to take a
union card . They both testified that while Madigan was in the plant 1 guardhouse
with Harrold , he gave Harrold some union cards which were a combination member-
ship application and authorization to the Union to act as bargaining representative.
According to them , Harrold left some of them in the drawer of the desk of the plant 1
guardhouse . Guards McManus , Harrington , and Pung did not testify as to whether
any cards were in the desk or elsewhere in the guardhouse . I give no weight to this
evidence in view of Harrold's failure to reveal to the other guards and his efforts
to conceal from them any connection with the Union. There is no evidence that
Respondent had any knowledge of Harrold 's accompaniment of Madigan on his
organizational efforts on Sunday, February 26 . Pung did testify that McManus
3 Madigan was employed by Respondent from September 1959 to April 1960 He was
terminated on a seniority basis for economic reasons Following his termination, he was
employed as a guard by Burns Detective Agency and assigned to the plant of the American
Sugar Company , Charlestown, Massachusetts He became a business representative of
the Union in July 1960 This was his employment at the time of the hearing, at the
times of his conversations and other communications with Harrold , and his conversation
with Sergeant Piing
4 Madigan testified that he disclosed to Harrington at the time that lie was a business
representative of the Union Harrington denied that lie made such a disclosure I credit
Harrington as Harrold ' s testimony discloses that he desired to keep his participation in
union activity a secret There is no evidence to indicate that Madigan . Harrold ' s friend,
did not abide by Harrold ' s wishes Madigan was at the plant to discuss union action
with Harrold because of Harrold ' s transfer to plant 1 on February 24 according to
Madigan, Union Piesident Frank Ryan ' s and his selling argument for membership in and
representation by the Union was protection by the Union against similar transfers.
Madigan testified he told the guards that they would be protected by seniority How
Harrold could be prolected by seniority is not cleai as Guard Martin who succeeded
Harrold In this better position after Harrold held it for 21/ years, had 2i/ years' more
seniority.
NATIONAL COMPANY, INC. 233
informed him after that date that he saw Madigan waiting for Harrold on that date,
and that Harrold went off with him. But Harrold and Madigan were known friends.
Harrold testified that when Madigan asked him early in March 1961 what organi-
zational activity he had engaged in, he replied that Madigan should approach the
other guards about joining the Union. This evidence shows, and I find, that Harrold
had not engaged in any organizational activity. It was shortly after Harrold made
this statement that the handbill and card were received by each of the guards and
Pung by mail. He was the only one who signed the card and returned it to the
Union. There is no evidence that Harrold engaged in any other activity that could
be considered as having any connection with the Union's organizational efforts. As
will be seen in section C, infra, Harrold told Guard Goodwin he threw away the
union card he received in the mail and refused to answer Guard McManus' question
whether he had signed it.
The evidence discloses that the only other organizational effort made on behalf
of the Union was a telephone call to Guard McManus about the time the union
handbill and card were received in the mail. Madigan testified that on or about
March 12 or 13, 1961, a call was made in his presence by Frank Ryan, president
of the Union. According to Madigan, Ryan said to McManus that the Union was
in the midst of an organizational campaign and had sent literature. In behalf of
representation by the Union, he stated that under a union contract transfer of a
guard between or among plants, such as a transfer from Respondent's plant 3 to
plant 1, and from daywork to the night relief shift, would be a matter of seniority.
According to Madigan, Ryan tried to reach the other guards and was unsuccessful.
McManus testified that someone who identified himself as Frank Ryan, president
of the Union, called his home in his absence. His wife answered the telephone and
received from the caller a number for her husband to call. McManus called the
number and asked for Mr. Ryan. Someone, purportedly Ryan, was reached by
the young lady or woman who answered the telephone, and McManus had a conversa-
tion with him. McManus testified, "He asked me in regards to the Union, and as I
understood it, he said some guard is getting roughly handled and I told him I was
perfectly satisfied with the way I was treated and I did not think any guard was
being pushed around." McManus also testified he did not know to whom the caller
was referring.5
Madigan testified that in the third week of May 1961, the Union decided to abandon
the effort to organize Respondent's guards.
C. Respondent's knowledge of union activity
As previously found, Guard Harrington saw Union Business Representative Madi-
gan waiting in his automobile for Harrold on Sunday, February 26, 1961, when
Madigan visited Harrold at Respondent's Malden plant. Pung testified that Har-
rington informed him after that date that he saw Madigan waiting for Harrold and
that Harrold left in Madigan's automobile. I have credited Harrington's denial
(supra, footnote 4) that Madigan disclosed to him his connection with the Union.
It is clear from .the evidence that Pung was aware that the Union was making an
effort to organize the guards on or about March 10, 1961, as a result of the handbill
and blank union card he received in the mail. It was the same type of organizational
effort the Union had made in the early part of 1960. He also had knowledge about
that time that each of the six guards had received the union literature and the card.
He knew that Guard McManus had made a return telephone call to a person who
identified himself as Frank Ryan, president of the Union, in response to a call to his
home received by his wife in his absence. All of the guards except Harrold had
indicated to Pung that they were not receptive to the Union's organizational efforts.
Harrold testified that he told Guard Goodwin he had thrown his card away. There
is no testimony that he passed on this information to Pung or any other official of
Respondent. Harrold testified that in the period between March 10 and 24, 1961,
he said to McManus, in response to the latter's inquiry as to what he thought about
8 Madigan also testified that shortly after Ryan's telephone calls, the successful one and
the unsuccessful ones, he made telephone calls to two guards He said, "I talked to
McManus, and I think the other guard . . was Hariington" According to Madigan
they cut him short, saying they did not wish to discuss the Union Both McManus and
Harrington denied they ever received a telephone call from Madigan In view of the
denials, and the lack of adequate evidence showing authentication of the telephone calls,
I do not credit Madigan's testimony See Wigmore's Code of Evidence, 3d ed (1942),
sects. 622 and 2088
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, that representation by the Union was the best thing that could happen to
the guards. He stated that he said this to McManus when he disclosed to him he
had received a union card, and in response to McManus' question whether he signed
it, he replied that whether he did or not was a personal matter. McManus' testimony
is silent with respect to this testimony of Harrold. Pung did testify that he learned
from McManus that Harrold had received a card.
Pung's and Hoffman's testimony discloses that on March 23, 1961, Pung was
thinking that someone may have given the names and addresses of the guards to
the Union. Guard Martin received a card at his home address. This address was
kept confidential by Martin and by Pung at Martin's request. There was a notation
in the logbook by Martin's name that his address and telephone number were to be
kept confidential. Industrial Relations Director Hoffman and Pung testified that
on March 23, 1961, Pung referred to the possibility that someone may have given
the guards' names and addresses to the Union from the logbook at the Malden plant
shortly after they had discussed on that date the placing in a guard position of
John Wilband, the necessity of laying off a guard to make a vacancy for Wilband,
and had selected Harrold for the layoff for reasons unrelated to union membership
or activity. Hoffman testified that when Pung referred to this matter, he told Pung
that he could not be certain who gave the names and addresses to the Union, that any
one of the other guards including Martin himself could have furnished them to the
Union. As will be seen in section E, 1 and 5, infra, Harrold testified that Pung
stated to him on March 24, 1961, as one of the reasons for his termination that he
had given the names and addresses to Madigan, and Madigan testified that when he
talked to Pung on June 2, 1961, about Harrold's termination, Pung admitted that he
was let go because he gave this information to Madigan. It will also be seen in section
E, 7, infra, Guard Goodwin, whom I find was present during the conversation be-
tween Pung and Madigan, denied that Pung made such an admission. Pung also
denied it. Goodwin testified that it was Madigan who stated to Pung that Pung dis-
charged Harrold because he had furnished to him the names and addresses, but
that Pung denied it. Pung testified that on March 23, 1961, when he referred to
the possible connection between Madigan's visit and the Union's possession of the
guards' names and addresses, he was not sure that there was such a connection,
and that his thinking about it had nothing to do with the selection of Harrold for
the layoff. Hoffman and Pung both testified that they first had knowledge of Har-
rold's union membership after Respondent received on June 1, 1961, a copy of the
charge the Union filed with the Board containing the allegation he was discharged
because of his union membership.
D. Union animus
General Counsel offered evidence purporting to show that antiunion animus was
behind the termination of Harrold. Harrold testified that during his employment
by Respondent a discussion about the Union arose in conversations Harrold had with
Pung about every 2 or 3 months. Harrold's testimony does not disclose whether
the alleged discussions contained favorable statements or unfavorable statements by
Pung about the Union or other unions Pung denied that he had these discussions
with Harrold. He recalled that on one occasion Harrold said he was fed up with
the Union because of the way it treated him when he was employed at General
Electric. Harrold admitted on cross-examination that in a conversation with Pung
he had been highly critical of the Union for the way he considered it treated him
when he was a member during his employment at General Electric.
Harrold testified Pung told him on two occasions that Walter Curtis and Ignazio
San Filippo, who were hired as guards on Harrold's recommendation in June, July,
or August 1959 (supra), were trying to organize the other guards. He so informed
him a week after they were employed, and again a couple of days later, and then laid
them off another couple of days later. It was Harrold's recollection they were
employed about a month. According to Harrold, when Pung informed him they
were engaging in union activity, he said to him, "Well, Roy, you know that the
Union is one thing we cannot have at National Company." Hoffman testified that
San Filippo and Curtis worked for 1 week, August 6 to 13, 1959. He stated that
they were hired on a temporary basis and the need for them ceased to exist after a
week's employment. Pung denied that he ever talked or said anything to Harrold
regarding these two employees engaging in union activity, or that a union was some-
thing that could not be had at Respondent's plants. He testified that the need for
the two employees ceased to exist so they were let go. He recalled going to Harrold
and saying to him he was sorry he had to let them go, and that Harrold replied he
was not sorry as they had not thanked him for getting them the jobs. Counsel for
NATIONAL COMPANY, INC. 235
General Counsel , in his brief, referred to Respondent's evidence that three guards
were hired on September 10, 24, and 25, 1959, respectively, dates following shortly
the August 13 termination date of San Filippo and Curtis.
General Counsel's witness , Earle Beshong, employed as a guard from Septem-
ber 10 to 30, 1959, testified that when he was hired, Pung said to him that he should
not discuss "any union activities or try to establish one with any of my fellow guards,"
and that Mr . Hoffman would not have a union for the guards , and that he "would be
in wrong with the Company if I did so ." Pung denied he made such a statement
to Beshong . His recollection was that Beshong asked him if the guards had a union,
and he said no, but they had the benefits, that every time IUE obtained benefits for
the unit it represented, the guards received the same benefits . According to Pung,
he told Beshong that Hoffman guaranteed this.
Respondent's union animus will be appraised in the presence of other evidence.
Respondent has had collective -bargaining agreements for 9 years with IUE.6 The
Union had made two prior unsuccessful attempts to organize the guards . Madigan
testified that in the conversation he had with Pung on June 2, 1961 , in the guard-
house of the Malden plant , Pung, in stating reasons involving union activity by
Harrold as the cause for his discharge, said that the word "Union" was a dirty word
in the plant . Pung denied making this statement . Guard Goodwin , who was pres-
ent, did not hear him make it . Both Hoffman and Pung testified that when Pung
apprised Hoffman of union organizational activity in 1960, as well as in the spring
of 1961, the latter told Pung to remain neutral and to say nothing in behalf of or
against such activity. According to Pung and Hoffman, Pung did not inform Hoff-
man until March 23, 1961, of the union activity that he had been aware of since
March 10, 1961, or thereabouts. Pung stated that he felt that Hoffman had many
problems on his mind attendant on the reduction in force that had been taking
place, and he wished to spare him as much as possible. According to Harrold, Pung
stated to him in February 1960, while talking about Madigan being dissatisfied with
a transfer to another plant, that he had been talking union , and should not have
done that. Pung denied that he ever talked to Harrold about Madigan being dis-
satisfied or talking union.
E. The alleged discharge
The General Counsel relies on the testimony of Harrold, corroborated by Madi-
gan's of Harrold 's termination on March 24, 1961. Respondent offered as rebuttal
testimony the testimony of Sergeant Pung, Industrial Relations Director Roger
Hoffman ,7 and Guard Goodwin.
1. Harrold's testimony of his conversation with Pung on March 24, 1961
Shortly after 8 a.m. on March 24, 1961, Harrold met Pung in the reception room
of plant 1 at Malden. Pung requested Harrold through Guard Goodwin to meet
him there. Pung told Harrold that all good things had to come to an end. Accord-
ing to Harrold, Pung then said he had to lay off a guard, that he was the one, and
handed him his check including what was owed to Harrold as of that date. Harrold
asked Pung if 7 years with General Electric and 3 years with Respondent as a
guard did not mean something, and Pung replied that it did not, and then Harrold
said that layoffs were made by seniority, and asked why he was laid off since two
guards had less seniority than he had. Pung replied that union activity had been
going on, that the guards and he had received union cards, Guard McManus had
been contacted by the Union and told that a guard had been transferred from one
Evidence is lacking that during this period Respondent in any respect failed to fulfill
its collective -bargaining responsibilities or attempted to disparage or detract from the status
of TUE as collective -bargaining representative Evidence is also lacking that Respondent's
representatives said or did anything unfavorable to unions or union activity, except to the
extent testimony of Harrold and Madigan purporting to show conduct and statements by
Pung and Hoffman hostile to unions and union activity may be credited
Hoffman has direct responsibility for determining the number of guards and where they
will be located , and for initiating , and securing the approval of, requisitions for additional
guards , and for reviewing and approving disciplinary orders or actions regarding guard
personnel . Hoffman has staff responsibility for labor relations in the entire plant and direct
line responsibility for and authority over the guard force . Pung , as supervisor of Respond-
ent's guards , has the responsibility for scheduling the assignments of the guards, and their
shifts and overtime , and making recommendations to Hoffman for hirings , discharges, and
layoffs . The final decision regarding hirings , discharges, and layoffs is made by Hoffman.
However , he followed Pung's recommendation unless it was contrary to Respondent ' s policy
or had some apparent defect.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the plants to the Malden plant on a split shift and was dissatisfied, and that this
guard could only have been he as he was the one transferred. Pung also stated that
Guard Harrington had seen Harrold with Madigan at the plant 1 gatehouse, and
that he gave the guards' names and addesses to Madigan as the Union had Guard
Martin's new address which he must have obtained from the guards' logbook in the
gatehouse, the only place where it was listed. In response to Harrold's question if it
was not the truth that he had always done his work beyond his required duties,
Pung said it made no difference, he had to let him go as he gave the guards' names
to Madigan. Harrold said be admitted to Pung that because he was transferred to
plant 1 in Malden from plant 3 in Melrose, he believed that conditions at Respond-
ent's plants were such that a union would be the best thing, and that he gave the
names and addresses of the guards to Madigan. Pung said lie knew Madigan was
connected with the Union. Harrold then discussed with Pung his talking to Hoffman
(supra), punched his attendance card, turned in his uniform, and left
2. Pung's rebuttal testimony
In regard to his notice to Harrold on the morning of March 24, that his services
were being terminated, Pung testified that he brought Harrold into the guardroom at
plant 1 so that he would be away from the guardhouse. He informed Harrold that
they had to make room for a foreman they had to put on the guard force in order
to take care of him because he had been serving Respondent many years. He said
to Harrold he was sory it had to be he. Harrold asked him if he was picking on him
since he had seniority over two other guards. Pung explained that the two
guards with less seniority could be contacted anytime. Harrold asked him if he
could see Hoffman, and Pung told him to call Hoffman before he went to see him.
Pung answered yes on direct examination by Respondent's counsel to the ques-
tions whether in this conversation he said to Harrold that there had been union
activity going on, and that he had received a union card In response to Respond-
ent's counsel's question whether he had said to Harrold that Madigan was seen with
him in the gatehouse, he replied that he said to Harrold he understood that Madigan
had given him some transportation and had driven him home 8
Pung denied that in the March 24 conversation Harrold said to him that due to
his being transferred a union would be the best thing, or admitted that he gave the
guards' addresses to Madigan, or signed a union card, and he denied that in this
conversation he said to Harrold that he knew he gave the names of the guards to
Madigan and for that reason had to let him go. He said that he did not know at
that time who gave the names to the Union. He also denied that he said McManus
had been approached by the Union.
Pung testified that he had a personal conversation with Industrial Relations Direc-
tor Hoffman outside the gatehouse at plant 1 on Maich 23, 1961.9 Hoffman said to
him that they were trying to make room for John Wilband, one of the foremen
who had worked for Respondent for 24 years, and wanted to know if he had room
for him as a guard. Pung replied that they would have to lay off a guard. Hoff-
man asked him who the guard was that he would have to lay off. Pung replied
that he did not like to lay off a guard with "a little seniority over the others" but
he would have to lay off Harrold as he did not have a telephone whereby he could
contact him. Pung further stated .to Hoffman that Guard Paoletti, who had less
seniority, lived near the plant in Melrose, had a telephone and a car, and could be
reached around the clock to answer the A.D.T. alarm system, and that Guard
Goodwin, the other guard with less seniority, had a car. ran the mail. and could
answer the A D T. alarm system around the clock.iO According to Pung, Hoff-
man said that if that was his decision, he would abide by it.
Although on direct examination, Pung testified that he first discussed the layoff
of Harrold with Hoffman on March 23, 1961, he stated on cross-examination that
Hoffman visited him at the guardhouse about 2 weeks before March 23 to tell
SHe was referring to Madigan's visit to plant 1 on Sunday February 26 Pung's testi-
mony does not show the contexts in which these statements weie made
9 Pung testified that Hoffman "called me out of the gatehouse, talked with me on the
sidewalk " Hoffman',; office is located next to plant 3, Melrose
10 Pung did not include any statement in his testimony on direct examination that he said
to Hoffman that Goodwin had a home telephone Independent evidence shows that he had
a home telephone. Nor did he refer to Harrold's lack of an automobile Independent evi-
dence shows that Harrold did not have an automobile On cross-examination he testified
he stated to Hoffman that Goodwin had a telephone and an automobile, and that Harrold
lacked a telephone and automobile
NATIONAL COMPANY, INC. 237
him that it might be necessary to lay off a guard and asked him to think about it.
Pung said that no mention was made of Harrold's name at this earlier date. Pung's
reconciliation of his testimony on direct and cross was that he did not consider
the earlier conversation to have had anything to do with the termination of Harrold's
services. He testified that until March 23, he assumed that it would not be neces-
sary to lay anyone off. Pung further testified on cross-examination that older
men make the best guards, that retired policemen are preferred, and that a gun was
available at the guardhouse for use by the guard on duty if called upon to do so.
He also testified that when Respondent has "a top secret job or secret job" the
guards are supplied with sidearms. He further stated that John Wilband who re-
placed Harrold represented to him that he had used guns and rifles, that he took his
word for it, and that Wilband was in good physical condition and looking forward to
another year of employment before retiring.
In response to the Trial Examiner's question whether he would reemploy Harrold
after Wilband retired, Pung gave a long answer which indicated to the Trial
Examiner he did not favor doing so.ii
3. Harrold's testimony of his conversation with Hoffman on March 24, 1961
Shortly after 9 a in. on March 24, 1961, Harrold talked with Industrial Rela-
tions Director Hoffman in the conference room of plant 3 about the notice he
received from Pung earlier that morning that his services were terminated. The
following is Harrold's testimony of the conversation.
Harrold said to Hoffman that he had been accused of union activities and asked
him what he heard about it. Hoffman replied that he had been told that he had
been involved in some union activity but that it was a matter that had to be proven.
He asked Hoffman what he should say at the employment office in order to collect
unemployment compensation. Hoffman told him to say he was laid off for lack of
work. Hoffman then said that Harrold did not have a car, and he had to have
guards with cars. Hoffman also said he did not have a telephone. Harrold replied
that he had the use of his mother-in-law's telephone 2 or 3 minutes away from his
home, and on which Pung had been able to locate him in the past in case of need.
Harrold further testified that Hoffman agreed with him that he had done his work
beyond what he was required to do.12 Harrold stated that nothing was said to him
about a car or a telephone when he was hired. The application form did not call
for any information regarding a car. There was a space for a telephone number.
He inserted his mother-in-law's.
On cross-examination, Harrold recalled that Hoffman told him they were going
to put on the guard force an employee by the name of Wilband who had 30 years'
service. Harrold knew that Wilband had been a supervisor in the coil winding sec-
tion. He asked Hoffman why the same thing had not been done for other employees,
mentioning Carl Hadlock who had 35 years' service. Harrold knew be was an
engineer.13 Hoffman said to him that Wilband was having trouble finding employ-
ment, and due to the amount of service be had with Respondent, he felt they should
give him a job. He recalled Hoffman said they would try to find him employment,
and that he should keep in touch with his office in case they heard of any work in
his line Hoffman called Dave Emery, who worked under his supervision, and asked
him if he knew through his contacts of any jobs which Harrold could fill.
11 Pung answered that Harrold was one of the nicest guards lie had up until the previous
January when he wanted to give "a little break" to Guard Martin who had been on nights
at plant 1 , Malden , and wanted a little change The only place to which he could have
transferred Martin was plant 3, Melrose Harrold had to be transferred to plant 1 , Malden,
to accommodate Martin Harrold did not think he should have made the change Ile had
determined to make the transfer of Harrold to plant 1 prior to Harrold writing to Vice
President Natkin about the display of the radio badly in need of repair at plant 3 Melrose
He had not held any resentment against Harrold for this or for anything else He talked
to Harrold about the transfer after it was made on February 24, as Harrold showed he was
dissatisfied He assured him the transfer was not permanent , as he, Goodwin , Paoletti, and
Martin would be rotated 3 or 4 months at a time , so that eventually he would wind up at
plant 3 again
According to Pang, Harrold appeared to be satisfied at the time He testified , however,
that the third reason for selecting Harrold on March 23 , was that Harrold was dissatisfied
as a result of the transfer Harrold had testified lie would return to work only under cer
tam conditions . He was not asked what the conditions were
12 It is undisputed that Respondent was satisfied with the caliber of Harrold 's work and
his attendance at work.
11 Hoffman testified that Respondent found work for Hadlock in another company.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Harrold also recalled discussing the "N-60" situation with
Hoffman,14 asking Hoffman if that incident was one of the reasons for the layoff,
and remarking that shortly after he sent the memorandum to Vice President Natkin
he was transferred to plant 1 at Malden. And he further recalled saying things
about Pung that were derogatory, and disparaged him as a guard and a supervisor.
He admitted that in connection with these disparaging and derogatory statements,
he said to Hoffman that he did not visit Hoffman to complain about his termination,
but that "there were some other things he should know about Pung." He also
admitted that he said to Hoffman he was not interested in a union although he
signed a solicitation card. He applied for unemployment compensation and in the
application stated he was laid off for lack of work, and made the same statement
to the Guards' Benefit Association in order to receive benefit payments from that
association.15
4. Hoffman's rebuttal testimony
In regard to his March 24 conversation with Harrold, Hoffman gave the following
testimony.
Harrold said the termination was a shock to him as he had just finished paying
off some notes, his anniversary was that weekend, and he did not really know what
to tell his wife. Harrold said he had the impression that he was laid off for unsatis-
factory work performance, and Hoffman replied that he had never heard any bad
reports about his work, that the record showed he was satisfactory as a guard.16
Harrold stated that the reason he was transferred to plant 1 was the "N-60" incident.
He then stated how in February Respondent's President Quick came into plant 3 and
asked how the N-60 radio manufactured by Respondent was working, tried it him-
self, and found it did not work. He asked Harrold to send it to the service depart-
ment. Harrold did, and also sent the memorandum (supra) to Sales Vice President
Natkin.17 Harrold said to Hoffman he thought Pung transferred him to plant 1
out of vindictiveness because of this incident. Hoffman said he never heard of
Pung doing anything like that, and Harrold replied that once a guard got into the
Sergeant's doghouse he received all kinds of "lousy" assignments and was made
miserable. When Hoffman said to Harrold that he could always come to him,
Harrold answered by saying he would have to obtain Pung's approval first and Pung
might not give his approval, and, if given, the guard would be afraid to talk. It
was then that Harrold said that he had no interest in unions, although he had
received a card like everyone else. Hoffman testified he replied that Harrold's
feelings about the Union were his own business and had nothing to do with his
termination Harrold then asked if seniority counted for anything, and he replied
not necessarily, that he knew of two instances where seniority had not been applied
since he had been there.16 Hoffman then referred to John Wilband as Hari old testi-
fied he did (supra) on cross-examination. When Hoffman asked Harrold if there
was anything else on his mind, he said he did not come to see him to complain, but
there were several things he would like him to know as long as he was there. He
then accused Pung of playing favorites and not doing a good security job. Hoffman
told Harrold he would investigate the charges 19 but did not think that they would
affect his termination. He asked Harrold if the personnel department could be of
assistance in locating him a new job, and Harrold replied that it could and that he
would appreciate any help it could give him. Hoffman also testified that in connec-
14 N-60 Is the radio manufactured by Respondent concerning which Harrold wrote a
memorandum to Sales Manager Natkin on January 27, 1961 Harrold complained of the
quality, its need of repair, and bad reflection on Respondent that followed from its display
at plant 3 ( supra).
15 Neither unemployment compensation nor guards' benefits wete payable in the case of
a discharge
16 Hoffman said that Pung on March 23 appeared to believe Harrold was dissatisfied about
his transfer from plant 3, Melrose, to plant 1, Malden Hoffman denied that either Harrold
or he reterred to union activities.
77 As will be seen (infra), Guard Goodwin testified that in the June 2 conversation be-
tween Pung and Madigan in his presence, Pung said Harrold went over his head in writing
the memorandum , and th'it he was reprimanded because of it
is Hoffman testified that seniority determined the selection for layoff when other things
were equal . He testified that Guards Walle and Mullen were laid off on April 30, 1959,
and January 28, 1960, respectively, although having more seniority than other guards, be-
cause the alternative to laying off Walle was assigning him to a day shift, which could not
be done as he was easily irritated and would offend visitors, and Mullen was not able to
work a full complement of hours per week
19 Hoffman testified that he investigated the charges, and that there was no merit to then
NATIONAL COMPANY, INC. 239
tion with Harrold's question regarding seniority, he said to him that the "mail run"
required a car and that Paoletti was on duty at night answering the A.D.T. emer-
gency calls, and Harrold agreed Hoffman corroborated Harrold's testimony that
Harrold asked him what he would say at the unemployment compensation office,
and he told him to say he was laid off for lack of work.
Hoffman testified earlier that on or about February 1, 1961, Warren Marcus,
manufacturing manager of Respondent, telephoned him and said that Respondent
had to "cut down" some of the overhead personnel and one of the employees to
be affected was Wilband, and for him to attempt to obtain a job for Wilband with
another company, and that about February 16 or 17, 1961, he met with Wilband to
line up a program to locate him in another job. Wilband said that at his age (62
years) he did not want to go through the wear and tear of supervising women, and
would like to work as a guard or watchman somewhere for 3 years so he could
collect social security. It was agreed that Hoffman and his staff would try to place
Wilband as a watchman or guard, and he would try to do so himself. Wilband was
on leave with pay status at the time. On March 22, 1961, Marcus called him again
and said he had met Wilband on the street and Wilband told him he had been unable
to locate a guard or watchman job. Marcus further said that he had talked to
Respondent's President Quick about finding a spot for him, and they "recommended,"
with Hoffman's concurrence, that in view of Wilband's 23 years' service with
Respondent, they had an obligation to find a "spot for him on our force." Hoffman
testified he agreed with Marcus that they should find a place for him on Respondent's
guard force since they were unsuccessful in finding a place for him in other companies.
Hoffman then testified that he went to plant 1 at Malden the next day, March 23,
1961, and talked to Pung in front of the main building. He told Pung of the necessity
of placing Wilband on the force, adding that this would mean a surplus of one guard,
and asked where Wilband would be assigned. Pung replied that he would probably
have to assign him to the night relief shift as that was the easiest one to break in on.
He asked Pung who the guard was who had to be laid off, and he replied Harrold,
as he was the least senior of the guards on the rotating shift at Malden. He then
asked Pung if Harrold was the least senior of all the guards, and Pung replied that
Guards Goodwin and Paoletti had less service than Harrold. Pung said it was not
possible to use Harrold in Goodwin's place as Goodwin was on the mail run which
required a car and Paoletti was on call to respond to the A.D.T. [alarm] system at
all hours. He also said that Harrold had been looking for a job elsewhere and
seemed to be dissatisfied since he was transferred to plant 1, and it would be foolish
to lay off someone else and then have Harrold "quit on them." Hoffman testified
that he "concurred that Harrold was the logical man to be laid off." He asked Pung
when Harrold finished his workweek, and when Pung answered Friday, at 8:30 a.m.
(this was the following morning), he instructed Pung to talk to Harrold the following
morning and advise him that he was being laid off because of a surplus of one guard
and because "we were absorbing John Wilband into the force." It was then, accord-
ing to Hoffman, that Pung informed him of the union organizational activity that
had been going on, and that there had been a mail solicitation of the guards. Pung
also remarked that he wondered how the Union obtained Guard Martin's new
address. Hoffman testified that he said to Pung that any number of people could
have been given Guard Martin's address to the Union including Martin himself.
Hoffman testified that the solicitation had nothing to do with the termination, that
Harrold was considered strictly as a surplus guard.
Hoffman at this point in his testimony stated that he had talked to Pung about 2
weeks earlier. He was not asked what the conversation was about, and did not volun-
teer this evidence. During cross-examination, he conceded that the seeking of a
guard or watchman job by Wilband was an unusual experience for him and Respond-
ent, and the placing of Wilband in such a job was something Respondent had not
previously done 20
5. Madigan's testimony of his conversation with Pung on June 2, 1961
Madigan testified that he had a conversation with Pung in the guardhouse at
plant 1, Malden, about 1 p.m. on June 2, 1961, regarding the termination of Harrold
on March 24, 1961 .21 Madigan's testimony follows. Madigan drove down Sherman
20 Harrold, on cross-examination, stated that he considered Hoffman a truthful person.
21 Madigan testified that Guard Goodwin was present during parts of the conversation
but not during the first 2 minutes of the conversation, at the end of the conversation, and
during periods of the conversation when he would be absent from the guardhouse. Pung
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Street , Malden , to Respondent 's plant 1 , stopped at the gate, and saw Pung sitting
in the open doorway of the guardhouse. He parked his car and walked into the
guardhouse where Pung was. His first words were, "What happened to Roy?"
Pung replied that they had to get rid of Harrold, that they knew he gave to him the
names and addresses of the guards , and that he was instrumental in contacting him
to have him organize Respondent 's guards. Madigan replied that Pung could not
say this was the truth as he did not know it was. Pung answered by saying that
Guard Martin received a union card at his new address and the logbook at the plant
1 guardhouse was the only logbook that had Martin's new address in it. Pung said
Harrold should have known better, and continued with the statement that Guard
Harrington saw Madigan on one Sunday waiting at plant 1 for Harrold and Harrold
riding off with him in his car . Pung also stated that McManus had come to him
and told him he had been called by Frank Ryan of the Union who cited him an
example of a guard being transferred from plant 3 to plant 1, having his shift
changed , and being dissatisfied with the transfer and change , and that that could
not happen if the Union had a contract with Respondent with a seniority clause in
it. Pung then said that they knew that Ryan was referring to Harrold as he had
described Harrold 's situation . He also said that some of the other guards had
brought the union cards to him and asked him what they should do with them, and
that he took them to Hoffman. At that time Pung told Hoffman that he then knew
that as he suspected Harrold was the instigator of the union activity. Pung further
stated that Hoffman said to him that the problem was his, the guards were his men,
and for him to do as he saw fit. As Madigan was leaving, Pung said to him that
Harrold should have known better than to have become involved in such a matter
as the "Union is a dirty word in this plant." Madigan said to Pung that he, Pung,
had formerly worked at General Electric where the guards were members of the
Union and Pung replied that the Union never did him any good when he worked
at General Electric. Madigan also recalled that Pung asked him why the Union
kept trying to get in Respondent 's plant, that since he had worked for Respondent,
the Union had made three attempts and could not be very strong if it was not able
to get a few guards to an election.
On cross-examination, Madigan stated that he merely said hello to Andy before
asking what happened to Harrold. He said hello to Guard Goodwin when he came
into the guardhouse, 2 minutes after the conversation started. He repeated that
Pung said he laid Harrold off because he gave the guards' addresses to him and
denied he asked Pung if Harrold was laid off for that reason . He denied Pung said
Harrold had gone over his head several times and that he said to Pung that Harrold
had Respondent 's interest at heart when he went over Pung's head . He testified
that Goodwin was in and out of the guardhouse during the conversation and said
nothing during the conversation . He denied saying to Pung before he left that he
was a union representative and working at Revere Sugar, but on further inquiry
by counsel for Respondent, he admitted that before he left he informed Pung he was
a union representative in the employ of the Union . When asked if he had been asked
the question previously, he answered that he had been asked whether he worked for
Revere Sugar . He testified that as an employee of Burns Detective Agency he was
stationed at American Sugar Co., Medford Street, Charlestown, Massachusetts.
Madigan also testified on cross-examination that he had driven by Respondent's
Malden plant several times "to get a basis for this discharge of Harrold," and June 2
provided the first opportunity for him to see Pung there 22
6. Pung's rebuttal testimony of his conversation with Madigan on June 2, 1961
,Pung testified that he was surprised when Madigan visited him on June 2, 1961. It
was the first time he had seen him since he was laid off. Madigan greeted him and
and Goodwin testified that Goodwin was present throughout the conversation except for
the end of the conversation. Pung stated that at this time Madigan was getting ready to
leave and neither he nor Madigan said anything having any material bearing on Harrold's
termination
22Respondent ' s counsel questioned Madigan and Harrold on the lapse of time between
the termination on March 24, 1961, and the filing of the charge on May 29, 1961, by the
Union to develop evidence as to whether Harrold, Madigan, Union President Ryan, and
Union Vice President Buckley considered Harrold's termination as a layoff instead of a
discharge I have not made findings of these questions and answers as I do not consider
them to contribute any weight one way or the other to the evidence
NATIONAL COMPANY, INC. 241
Guard Goodwin at the same time, asking them how their families were, and asking
Pung how May was 23 They answered fine, and Madigan said that one of the guards
received a raw deal. Pung asked him if he meant Harrold, and when he replied
yes, Pung replied that he did not as far as he was concerned, that he had to lay him
off for certain reasons. Madigan said he was a representative of the Union, and
Pung said he had not known that he was. He asked Pung if he gave cards to some-
body, and Pung replied that he had not, but said that he had received a union card,
and thought for the first time he was eligible to join the Union. He asked Madigan
if he was eligible, and Madigan replied that he was. That was the extent of the
conversation. Madigan left and he waved goodby to him.
Pung further testified on direct examination that he did not say to Madigan that
Harrold should have known better, or that Guard Harrington told him that he saw
Madigan at the plant and Harrold drive off with him. He testified that Harrington's,
McManus', and Union President Ryan's names were not mentioned in the conversa-
tion. He testified that he made no reference to Harrold as the employee who had
been transferred from one plant to another and from a day shift to a split shift to
his dissatisfaction. He also testified that he did not say to Madigan that he took
the union cards received by the guards to Hoffman and said to him that that was
what he suspected. He denied that he said to Madigan that Hoffman told him
that the problem was his and to handle it his own way, that he said to him that
the word "Union" was a dirty word in the plant, or that the Union could not be
strong if it could not get a few guards "for an election."
7. Guard Goodwin's testimony of Madigan's conversation with Pung on June 2, 1961
Guard Goodwin testified that Madigan came to the guardhouse at plant 1, Malden,
in the latter part of May or the first part of June 1961, shortly after 1 o'clock in
the afternoon. He was in the guardhouse with Pung when Madigan came in. Madi-
gan greeted Goodwin with the words, "Paul, how are you?" shook hands with him,
asked how the family was, and Goodwin replied, "Fine, Jim, how's yours?" Madigan
turned and shook hands with Pung, and asked how his family was, and Pung
answered, "Fine." Goodwin believed he and Pung asked Madigan how his family
was. Madigan asked how things were going at Respondent's plant and Pung replied
that they were slow. Madigan then said that he understood a guard was laid off,
and Pung replied that he was right, it was Harrold. Madigan asked why Harrold
was laid off, that it sounded like "he was getting a shafting." Pung replied that it
was not so, that Harrold was let go "because he was dissatisfied with his work and
Roy was mad because of the fact that he had been shifted from Plant 3 to Plant 1,"
and, in general, he was dissatisfied with conditions at plant 1 as there was quite a
bit of difference in money between plant 3 and plant 1. Madigan then said that
Harrold was let go because the guards had received union cards through the mail,
and Pung replied, "Definitely that was not the reason." There were a few moments
of silence, and then Goodwin left the guardhouse to enter the plant to get ready to
go on the mail run. When he came out, Madigan had left the plant premises.
Goodwin also testified on direct examination that Pung said to Madigan that Har-
rold had gone over his head by sending the memorandum to Vice President Natkin
about the N-60 radio at plant 3, and that he was reprimanded because Harrold sent
it. Madigan replied that he believed Harrold had the Respondents' interest at heart
when he sent the memorandum. On direct examination, Goodwin denied that Pung
said that they knew that Harrold gave the guards' names and addresses to Madigan,
and was instrumental in contacting the Union; that Roy should have known better;
that Pung said that Guard Harrington had seen Madigan at the plant and that Har-
rold had driven off with him; that Guard McManus told Pung that Union President
Ryan had called him and discussed seniority with him, or that McManus' name or
Ryan's name was mentioned in the conversation. Goodwin also denied that Pung
said that they knew Ryan was referring to Harrold in the purported conversation
Ryan had with McManus, that Pung said he took union cards to Hoffman and said
to him that that was what he suspected,24 that Hoffman told him it was his problem
and for him to handle it his own way, and that Pung said Harrold should have known
23 May Is Pung's wife's first name. Madigan's testimony that he was alone with Pung
for 2 minutes before they were joined by Goodwin, and that he began the conversation im-
mediately by asking, "What happened to Roy," is contrary to Pung's and Goodwin's testi-
mony. Madigan admitted on cross-examination, he said, "Hello Andy" to Pung, and,
"Hello Paul" to Goodwin when, according to him, he subsequently appeared
u He recalled Pung stating to Madigan that on March 24, Harrold and he had talked
about Harrold seeing Hoffman regarding the termination.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better as the word "Union" was a dirty word in the plant. He also denied that Pung
asked Madigan why the Union kept trying to get in Respondent's plant, and that Pung
added to the question the statement that the Union could not be strong if it could not
get a few guards to an election.
Goodwin on direct examination also testified that Madigan asked Pung if some of
the guards had turned over to him the cards they received from the Union. He
stated that he answered the question instead of Pung by interjecting the statement
that he had given his card to Pung and suggested at the time Pung use it in a certain
manner 25 On cross-examination, he testified that Pung had told him he also received
cards from Paoletti and Martin.
On cross-examination, Goodwin testified regarding a number of other things. He
delivered and picked up mail each day starting at 7:40 a.m. He made four trips a
day to the Melrose plants from Malden and three trips to the Malden Post Office.
He was waiting to go on the 1:15 p.m. mail run to the Melrose plants when Madigan
arrived. He had been carrying the mail since September 22, 1958. It was not Pung
but Madigan who mentioned the guards' addresses during the conversation. Pung
.did say in the conversation that somebody gave them out, and in a conversation he had
with Pung, before Harrold was laid off, Pung had said to Goodwin that somebody had
given out the guards' addresses as Martin's new address was only in the logbook at
plant 1 in Malden and Martin had received a union card at the new address. Goodwin
told Pung at that time he did not give them out. Hoffman's name was mentioned in
the conversation only when Pung referred to Harrold asking him on March 24 for
permission to talk to Hoffman. Goodwin also received a union card in early 1960.
At that time he gave the card to Hoffman. Paoletti handled the mail run in Good-
win's absence. Owning a car was not a requisite to obtaining employment as a guard.
On redirect examination, Goodwin testified a car was necessary for the mail run.
He also testified that not more than 2 minutes elapsed from the time he left the con-
versation until he returned, and the distance from the guardhouse to the mailroom in
the plant where he picked up light mailbags and back to his car which was parked
.close to the guardhouse was approximately 40 to 45 feet.
F. Analysis and concluding findings
From my evidentiary findings, I make the following analysis and concluding
-findings.
I find that there is not substantial evidence to support the contention Respondent
had any hostility to the Union or to union membership or union activity. Respondent
has a history of good bargaining relations with IUE, the Union that represents its pro-
duction and maintenance employees. I do not give any weight to the testimony of
Harrold that every 3 months Sergeant Pung would raise the subject of unions with
him. This is a mere conclusionary statement. It has no evidentiary value. In any
event it does not disclose whether the purported references to the Union were hostile.
I must assume, in the absence of evidence to the contrary, that Respondent's conduct
was favorable to it. Sergeant Pung denied making any reference to the Union. On
the other hand, he recalled Harrold referring to the Union on one occasion, and indi-
cating his hostility toward it because of something it did and did not do which Harrold
considered unfavorable to him. Harrold admitted that he was highly critical of the
Union in one conversation he had with Pung.
I do not credit Harrold's testimony of what Pung said to him regarding the pur-
ported union activity of San Filippo and Curtis, two temporary employees who were
employed for approximately 1 week, or former employee Beshong's testimony of what
Pung said to him when he began his employment about avoiding union activity.
Pung's testimony of what happened in both these incidents is the more logical expla-
nation of what happened, especially when viewed with the external and independent
circumstances related to these incidents. The hiring of additional guards months
later does not by itself neutralize Pung's testimony. Respondent testified that tempo-
rary guards were hired as needed and let go when the need ceased.
I do not credit Harrold's testimony that in 1960 Pung stated to him that Madigan,
then employed by Respondent as a guard, was dissatisfied about a transfer, and was
talking union, and that he should not have talked union. Pung denied he made the
statement. This purported incident, without evidence of external and independent
The manner suggested , which is beyond the bounds of propriety, indicated Goodwin's
hostility to the union organizational activity.
NATIONAL COMPANY, INC. 243
circumstances to support it, smacks of manufactured testimony designed to buttress
Harrold 's testimony of his own situation and borrowed from Harrold 's tesitmony of
the situation he claimed he was in . Nor do I credit Madigan's testimony that on
June 2, 1961, Pung stated to him that the word "Union" was a dirty word in Re-
spondent's plant. On June 1, 1961, Respondent received from the Board's Regional
Office a copy of the Union's unfair labor practice charge filed on May 29, 1961. So
Pung had notice of it . Pung allegedly made the statement in a conversation Pung
had with Madigan which was set up by Madigan to obtain admissions by Pung against
Pung's and Respondent 's interests . Pung's demeanor on the witness stand and the re-
gard in which he was held by Industrial Relations Director Hoffman indicate to the
Trial Examiner that Pung was not a naive person, which he would have to be to
make such a statement when he had knowledge of the filing of the Union 's charge, and
was aware of Madigan's purpose in coming to the guardhouse to talk to him for the
first time since he had been terminated approximately a year before. While the evi-
dence indicates that Pung did not know Madigan was a representative of the Union
until the end of the conversation, he knew that Harrold and Madigan were friends of
long standing, and that Madigan was waiting for Harrold outside the Malden plant
on February 26, 1961. Pung denied he made the statement. Goodwin, who I find
was present during the complete conversation, denied the statement was made in
his presence. Also persuasive that Pung did not make the statement are the absence
of any evidence of antiunion activity by Pung in connection with the flurries of organi-
zational activity generated by the Union in March 1961, and on two prior occasions,
Pung's favoring of Harrold over guards with more seniority up to June 28, 1961, un-
doubtedly due at least in part to the union position Harrold 's father held, and Re-
spondent 's collective-bargaining relations with IUE , a powerful and influential sister
labor organization.
I do not credit Madigan's testimony that Pung said to him in their conversation
of June 2, 1961, at the Malden plant that the Union had never done him any good
when he worked at General Electric in response to a statement by Madigan to
Pung that the latter had formerly worked at General Electric where the guards were
members of the Union. Pung denied he made the statement. When Pung was at
General Electric, the guards in the plantwide unit were represented by IUE. It was
not until after Pung left General Electric's employ that the Union began representing
the guards at General Electric. Moreover, the statement attributed by Madigan to
Pung is the statement that Pung testified that Harrold made to him and which Har-
rold admitted he made. Here again is manufactured testimony by Madigan of what
purportedly occurred on June 2, 1961, in regard to the notice of termination Pung
gave Harrold on March 24, 1961. It is part of an abortive attempt by Madigan to
furnish testimony corroborative of Harrold's testimony of the March 24 notice of
termination. Madigan's testimony of what was said by Pung in the, Malden plant on
June 2, 1961, is not credible testimony.26
I find at this point that the record does not contain probative evidence of acts or
statements showing antiunion animus by Respondent independent of the evidence of
statements purportedly made by Pung to Harrold on March 24, 1961.
The relation, if any, of the proscriptions of Section 8(a)(3) and (1) of the Act
to the termination of Guard Harrold on March 24, 1961, had its birth with the
memorandum of January 27, 1961, that Harrold sent to Respondent's Vice President
Natkin, in charge of sales, on or about January 27, 1961. Harrold's immediate
superior, Sergeant Rung, felt that Harrold had gone over his head in sending it and
claimed he was reprimanded because of Harrold's sending it. On February 24,
1961, Sergeant Pung transferred Guard Harrold from the job he held as guard for
21/2 years during daytime hours at Respondent's plant 3 in Melrose, Massachusetts,
to night duty at Respondent's plant 1 in Malden. He had planned to make the
transfer to give Guard Martin an opportunity to enjoy the preferences the Melrose
assignment had, but the sending of the memorandum may well have accelerated his
decision On the Malden job Harrold not only worked nighttime hours but received
less take-home pay. On Sunday afternoon, February 26, 1961, 2 days following the
transfer, Madigan, a business representative of the Union and a close friend for 20
years, visited Harrold in the gatehouse of plant 1, Malden, where Harrold gave
'-e If General Counsel's position that Pung had knowledge of Madigan's connection with
the Union through a disclosure of it by him to Guard Harrington on February 26, 1961,
were recognized, Madigan's testimony would be clearly incredible.
641795-63-vol. 136-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Madigan the names and addresses of the guards from the logbook kept there and
they discussed the organization of the guards by the Union and Harrold's transfer to
the Malden plant. Before Harrold entered the plant about 3:30 p.m. on his last
round prior to being relieved by the guard on the shift begining at 4 p.m., he let
Madigan out the gate of the plant. Madigan sat in his car parked outside the gate
waiting for Harrold. There he was seen by Guard Harrington shortly before 4 p.m.
as he came to relieve Harrold. Shortly after 4 p.m. Harrold left with Madigan.
Harrington and Madigan exchanged farewells. Harrington told Pung shortly there-
after he had seen Madigan waiting for Harrold 27
On or about March 10, 1961, each of the six guards and Sergeant Pung received
organizational literature of a general nature put out by the Union and a union card.
Harrold signed his card and returned it. He had also signed a card on February 26
and given it to Madigan. None of the other guards signed the card, and Pung had
knowledge they did not intend to do so. On or about March 12 or 13, 1961, Guard
McManus talked by telephone to someone in the Union, who identified himself as
Frank Ryan, union president. McManus had made a return call to him because of
a call he made to McManus earlier that day and which was answered by McManus'
wife in his absence. The caller told McManus the Union was organizing and that a
guard employed by Respondent was being roughly handled, and McManus replied
he was satisfied with the way he was being handled, and did not believe any guard
was being unfairly handled. McManus informed Pung of this telephone call.
Pung would know from this information from McManus that Harrold's dissatis-
faction had reached the Union and was being used in its organizational effort
However, the record lacks evidence to show that at this time Pung or any of the
guards except Harrold had any knowledge that Madigan, whom Harrington had
seen waiting for Harrold on February 26, had any connection with the Union, or
that Harrold was connected in any way with the Union, its organizational activity, or
had any interest in the Union.28 What Pung knew was that Harrold had been highly
critical of the Union to him. He also knew that the organizational activity of the
Union was a mere flurry and was going nowhere.
I find that Industrial Relations Director Hoffman went to the Malden plant on
March 23, 1961, and had a conversation there with Sergeant Pung regarding the
assignment to a job as guard of John Wilband, an employee of 23 years. who had
been foreman of the disbanded coil winding section. On March 22, 1961, Hoff-
man had told Manufacturing Manager Marcus that Wilband would be placed in a
guard position, following Marcus' statement to Hoffman that this was the desire of
President Quick as well as his own. Hoffman told Pung that Wilband had to be
placed on his staff, and asked him where he would be assigned, and who was the
guard to be laid off to make a place for Wilband. Pung replied that he would have
to be assigned to the rotating shift at the Malden plant, that Harrold was the guard
to be laid off, as he had the least seniority of the guards on duty at Malden When
Hoffman asked Pung if Harrold had the least seniority of all the guards, Pung re-
plied that Guards Goodwin and Paoletti had less seniority than Harrold, but that
Goodwin was handling the mail run which required the use of a personally owned
car, and Paoletti responded to the alarm system at the Melrose plants, for which a
home telephone and a car were required and that Harrold had neither a telephone
nor a car. Pung also said to Hoffman that Harrold was dissatisfied with his job
and was looking for employment elsewhere, and there would be no point in re-
taining Harrold and then have him quit. Hoffman followed Pung's recommendation
to lay off Harrold for these reasons, and told Pung to lay off Harrold. He in-
structed Pung to give Harrold notice on the following morning.
n I have not credited the testimony that Madigan informed Harrington he was represent-
ing the Union or that Madigan left any union cards in the drawer of the desk. I have not
given any weight to the testimony that Harrold was instructed in organizational techniques
by Madigan or that he visited other plants that Sunday afternoon with Madigan to see
how the latter engaged in organizational activity, as the record is absent of evidence of
knowledge by Respondent that Harrold had anything to do with the organizational activity
Harrold refused to solicit the signing of the union cards, told Guard Goodwin he threw
his card away, and refused to say yes or no to Guard McManus' question whether he signed
a card.
2 Pung did not know Madigan was a union representative until June 2, 1961, or that
Harrold was a member of the Union until June 1, 1961 , or thereafter.
NATIONAL COMPANY, INC. 245
I find the evidence to disclose that from a sound business or economic standpoint,
Harrold was the guard to be selected for the layoff. Seniority controlled layoffs
only when other factors were equal. Goodwin handled the mail run which Harrold
could not handle, and Paoletti responded to the nighttime and early morning plant
protection alarm system which Harrold could not do. The employment status of
Guards Harrington, McManus, or Martin was at least equal to Harrold's, so seniority
required the retention of each one of these guards rather than Harrold.29
I credit Hoffman's testimony that he was not aware of the flurry of organizational
activity in March 1961 until he was informed of it by Pung on March 23, 1961,
following the decision to lay off Harrold. Hoffman's testimony of Pung's state-
ments to him when he informed Hoffman of the organizational activity indicates
that Pung was thinking that the Union could have obtained the names and ad-
dresses of the guards from the logbook at the Maiden plant before the union litera-
ture and cards were sent to the guards. However, his testimony and that of Pung's
does not disclose , or support an inference , that Harrold's name was mentioned in
this conversation in connection with the obtaining of the names and addresses.
Harrold's testimony of his conversations with Pung and Hoffman on March 24,
1961, and Hoffman's and Pung's testimony of these conversations show that Harrold
did not question the Respondent's determination to make a place on the staff of
guards for Wilband. The reference to Harrold being laid off in the statement in
the charge filed by the Union supports this finding. There is not substantial evidence
of record which would permit me to find that Wilband was placed on the guard staff
to provide the opportunity to get rid of Harrold. Wilband had been serving as a
guard at the time of the hearing for better than 4 months, and no evidence was
offered to show incapacity by him to perform a guard's duties. Guards Harrington
and McManus and Sergeant Pung are in the same age group as Wilband. He was
not hired to respond to the alarm system at the Melrose plant during the night or
early morning hours and is not expected to do so. Harrold was not expected to
do so during his employment and did not do so.
I credit Hoffman's denial that Harrold said to him on the morning of March 24,
1961, that Pung accused him of union activities, and that he replied that whether he
was or not was a matter of proof. When the remainder of Harrold's testimony on
direct examination and his recollections on cross-examination are compared with
Hoffman's testimony of the conversation there is no dispute at to what was said.
The conversation covered Harrold's seniority over Guards Goodwin and Paoletti,
Hoffman's explanation that Goodwin was handling the mail run and Paoletti was
responding to the night alarm system at the Melrose plants, assignments which Har-
rold could not perform, the caliber of Harrold's work performance, Harrold's
opinion that Pung had selected him for the termination out of vindictiveness because
of the memorandum he had sent to Vice President Natkin, Harrold's efforts to be-
little Pung's conduct as a supervisor , an understanding between Hoffman and Harrold
as to the reason to be given on the application for unemployment compensation, and
the agreement by Hoffman that his department would try to place Harrold with
another company. This conversation does not disclose any evidence that Pung
recommended Harrold for the layoff because of union activity.
Pung admitted that he began the conversation of March 24, 1961, with Harrold
with the words that all good things must end. I find in it no nuances from which
an inference could be drawn that the termination was related to union activity. Pung
in effect said it was the end of a good thing . Harrold testified Pung said to him
that a place had to be made for a veteran employee and that he was selected, and
when he asked him if his seniority made any difference, Pung replied it did not as
union activity had been going on, that McManus' telephone conversation with a
representative of the Union disclosed the Union was using his dissatisfaction with
his transfer in its organizational activity , and that he had given the guards' names
and addresses to Madigan as the Union had Guard Martin 's new address. Pung
denied he made such a statement to Harrold. He testified that he told Harrold that
a veteran employee had to be given a job as guard , someone had to be laid off to
provide a vacancy, and he was selected instead of Goodwin or Paoletti, who had less
seniority because they could be contacted any time.
^ These findings are premised on Hoffman ' s testimony Hoffman's demeanor on the wit-
ness stand, compared to the demeanor of the other witnesses, persuades me that he was the
most credible of the witnesses who testified . This conclusion and evaluation of all the testi-
mony is the basis for the crediting of Hoffman 's testimony.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Pung's testimony and not Harrold's. Pung, a union member during 4
years' employment at General Electric, would have had to be childishly naive to have
made the statement Harrold attributes to him. His demeanor on the witness stand
satisfies me that Pung was not a victim of fits of naivete. Moreover, there is no
evidence that Pung knew Madigan was connected with the Union on March 24,
1961, that Harrold would have anything to do with the Union, or that Pung had an
antiunion animus or in any event would disclose such an animus needlessly in view
of the efforts of Respondent generally and Hoffman in particular to maintain good
relations with the IUE. There is the evidence that Harrold was a son of an official
of IUE, and until the sending of the memorandum to Vice President Natkin on
January 27, 1961, had received favored treatment from Pung. Pung usually hired
the persons recommended by Harrold.
Pung was aware from the reference to Harrold's transfer from plant 3 to plant 1
in the union officials' conversation with Guard McManus on March 12 or 13, 1961,
that Harrold was still dissatisfied with it, and his dissatisfaction had reached the
Union. However, Pung knew of this dissatisfaction independently of this disclosure.
In any event, the use of knowledge of Harrold's dissatisfaction with the transfer
from this source does not mean that Pung was engaging in illegal activity under the
Act. Moreover, in view of the lack of evidence to support an antiunion animus on
the part of Pung, or Hoffman, or Respondent generally, I cannot see how Pung
would take seriously the weak flurry of organizational activity that the Union engaged
in during March 1961. Moreover, Pung knew it was getting nowhere.
Pung testified on direct examination that during his conversation of March 24,
1961, with Harrold he stated there had been union activity going on in the plant,
that he had received a union card, and that he understood Madigan had furnished
him transportation on February 26, 1961. He denied however, that he made any
reference to the furnishing of the names and addresses to Madigan or to the con-
versation McManus had with a representative of the union or its contents. No
attempt was made by either counsel to elicit from Pung the contexts in which these
statements were made in the March 24 conversation. If they had been made part
of the record, the evidence might have pointed in a different direction. Pung testified
that in the June 2, 1961, conversation with Madigan, he stated to him that he
recommended Harrold's layoff for certain reasons . The reasons were not given.
Guard Goodwin, who was present , testified that Pung said that Harrold had gone
over his head in sending the January 27, 1961, memorandum to Vice President
Natkin and that he had been reprimanded as a result of it. I credit Goodwin's
testimony. However, this testimony is not evidence of any illegal conduct by Pung.
Goodwin also testified that in conversations he had with Pung between March 10
and 24, 1961, Pung had remarked that someone must have given the names and
addresses to the Union. He denied Pung made the statement in the conversation
with Madigan on June 2, 1961. Both Hoffman and Pung testified that Pung had
made the same remark to him on March 23, 1961. For the reasons previously
stated, I do not find these remarks of Pung to be substantial evidence that Pung
had Harrold in mind when he made them. Pung testified that on and prior to
March 24, 1961, the did not know who gave them to the Union.
For the above reasons, I conclude and find that General Counsel has failed to
prove the allegations of his complaint by a preponderance of the evidence on the
record considered as a whole. I will, therefore, recommend that the complaint be
dismissed in its entirety.30
CONCLUSIONS OF LAw
1. Respondent National Company, Inc., is engaged in commerce within the mean-
ing of Section 2(6) of the Act, and the Independent Union of Plant Protection
Employees is a labor organization within the meaning of Section 2(5) of the Act.
2. Respondent has not engaged in conduct violative of Section 8(a)(1) and (3)
of the Act, as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended herein that the complaint be dismissed in its entirety.
20 See N.L.R.B . v. Corn-mg Glass Works , 293 F. 2d 784 (C.A. 1).