National Video Corp.

National Labor Relations Board - Board Decisions

Oct 21, 1955

114 N.L.R.B. 599 (N.L.R.B. 1955)

NATIONAL VIDEO, CORPORATION - 599
'National ' Video Corporation and-iNavidico, Inc. and" Local -194,
,Distributive, Processing and Office Workers of America. Case
No.13-CA-1640. October 21,1955-
DECISION AND ORDER
On September 27, 1954, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
We agree with the Trial Examiner that the Respondents, in viola-
tion. of Section 8 (a) (3) and (1) of the Act, discriminatorily dis-
charged Clarence Dixon, Francisco Rivera, Reuben Mejia, and Sal-
vador Ramirez.. Contrary to the Respondents' contention, the pre-
ponderance of the evidence supports the Trial Examiner's findings
that-the Respondents discriminated against these employees because
of their-membership in and activities on behalf of the CIO.
Dixon
As discussed in the Intermediate Report, the AFL in November
1953 was the bargaining representative of most of the Respondents'
employees. On November 13, 1953, Dixon and Ramirez went to the
CIO office, where they talked to the CIO regional director about form-
ing a CIO union at the Respondents' plant. The CIO regional direc-
tor suggested that a meeting for the employees be held, and the meeting
was scheduled for the evening of November 16, 1953. During the
working day on November 16, Foreman Benkowski stopped Dixon and
asked him: "'What is all this about a union meeting tonight?" When
Dixon denied having any information, Benkowski replied : "Come on,
Dixon, you know what I am talking about; the meeting. You know
what it is all about." By thus singling out Dixon for such interroga-
tion at this time and insisting that he knew what the meeting was
about, it is apparent that the Respondents, from the outset of the CIO
activity, ,knew that Dixon was one of the instigators and leaders in
114 NLRB No. 104.
600 DECISIONS •OF'-NATIONAL'',LABOB,'REliATIONS BOARD
such activity.' On November 21, 1953, the Respondents laid off 190
employees, including Dixon, allegedly on the basis of seniority, and
also stated that the employees would be recalled on the basis of sen-
iority. On December 7, 1953, Dixon filed a grievance on the ground
,<,,.^tr Iat another, employee with less seniority had been recalled before
Dixon. The Respondents in effect admitted'the validity of tlie', grie"v-
ance , but claimed' that the recall of the other employee had, been a
mistake which had been rectified by another layoff of this employee.
However , Dixon was not recalled. On December 28, 1953, Dixon filed
another grievance to the effect that men with less seniority than he
were working in the maintenance department contrary to the AFL
contract with the Respondents. The Respondents also admitted in
effect the validity of this grievance, but claimed that the Respondents
and the AFL had orally agreed to this variance from the contract.
Dixon was not recalled at this time either. The Respondent finally,
after Dixon had filed an unfair labor practice charge on January 19,
1954, reinstated Dixon on January 28.
The evidence also establishes, as the Trial Examiner found, that
after Dixon was reinstated, the Respondents maintained a constant
surveillance over him because of his known advocacy of the CIO in
order to find or make a palpable excuse for discharging him. Thus,
when` Dixon reported to work, Personnel Director O'Donnell told
him "You are going to be watched, so watch your step and be careful" ;
and Foreman Rubino told him "Well, since you left, things have
changed around here . Anytime you are on the job, and if you have
to leave that job, you call me, and let me know where you are at. I
want to know where you are at all times." Thereafter, Rubino fol-
lowed Dixon whenever Dixon left the department, including the
occasions when Dixon went to the lavatory as well as the times when
Dixon went to the time clock to punch out at the end of the day. Al-
though Rubino testified that his surveillance of Dixon was under-
taken on his own initiative and without authority of his superiors,
we agree with the Trial' Examiner, that Rubino's claim to this effect
is refuted by the warning given -by Personnel Director O'Donnell
to Dixon' when he was recalled, that he was to be watched. Rubino
,claimed that the reason for the surveillance was to "protect" Dixon
from harm because of his known CIO activity, but, as found by- the
Trial Examiner, nothing had occurred which indicated that Dixon
needed such "protection." Moreover, on March 3, 1954, when Rubino
saw-Dixon urinating down the drain in the steam booth, Rubino said :
"I have been waiting for yob to do that. I will have to let yourgo.
The Trial Examiner discredited Benkowski ' s testimony that he thought the meeting
was Ian AFL meeting, and finds that Benkowski was in fact referring to the CIO meeting.
In any event , Benkowski admitted that at least within 2 days thereafter he kuev that
the meeting he had been referring to in this conversation was that of the CIO.
NATIONAL VIDEO CORPORATION 601
You' are fired." [Emphasis supplied.] And, Rubino said this, de-
,spite the fact that he: had given Dixon permission to urinate 'in the
steam booth.2 Also, when the personnel department ' then revoked
-the discharge, Rubino told Dixon : "Go back to work. They are giv-
ing you a second chance. You must'have been born'under a lucky
star. I don't know what they are waiting for." [Emphasis sup-
,plied.] In addition, when Respondents' President Cole ordered
Dixon discharged on,March 19,1954, because he "just found out about"
the: steam- booth 'incident, , he ordered- the discharge "-immediately"
-without giving Dixon any opportunity to explain the circumstances
surrounding the steam booth episode. Cole was not called as a witness,
therefore it is not known whether or not Cole had knowledge of the
fact that Rubino gave Dixon permission to urinate in the steam booth.
But even assuming that Cole did not have such knowledge, it would
seem that, if he had no discriminatory intent, he would not have
effected a summary discharge of a long-time employee without first
affording the employee any opportunity to be heard on the alleged
reason for the discharge.
Finally, the evidence shows that the drain in which Dixon urinated
-was used, to. carry off "used oil, cleaning oil, dirt and debris" from
vacuum pumps and.aspirators which Dixon cleaned with steam. Con-
sidering the muck which was flushed down the drain with steam, it
is understandable why Rubino gave Dixon permission to urinate in it
and that a sanitation problem was not thereby created. In these,cir-
,cumstances, the fact that an employer would seize upon an act per-
formed under these conditions as a ground for discharge is further
support for the conclusion that this was nothing but a pretext.
In view of the foregoing, we agree with the Trial Examiner that
after Dixon's reinstatement the Respondents maintained a constant
surveillance over him in order to find or make some excuse for dis-
charging Dixon because of his known instigation and leadership of
the CIO movement in the plant, that the steam, booth episode was
merely a pretext which the Respondents used to accomplish such ob-
jective, and that it actually discharged Dixon because of his known
membership in, and advocacy of, the CIO, in violation of Section 8
,(a) (3) of the Act.
Ramirez
Ramirez was 1 ' of the 2 instigators and organizers of the CIO meet-
ing held m the evening of November 16. As indicated above, in our
.discussion of the Dixon discharge, the Respondents through Fore-
man Benkowski knew about this meeting. Ramirez attended. that
meeting and signed a CIO card. Three days later,'on November 19,
'The Trial Examiner credits Dixon's testimony that Rubino had given,him such per-
mission and discredits Rubino 's denial that he had , given such permission
602 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benkowski , came to Ramirez and inquired : "Sol . . . what is this
1 hear about a new union?" After Ramirez replied that this was the
first he had heard of it, Benkowski then asked : "Don't you know any,
.thing about it?" Upon, receiving, a negative reply, Benkowski de-
parted. Later that same day, Benkowski discharged Ramirez al-
legedly for his "unsatisfactory work."
In our opinion, Benkowski's interrogation of Ramirez on November
19 clearly indicates that the Respondents had knowledge of Ramirez'
'CIO activities. First, there is the fact that only Dixon and Ramirez,
the two instigators and organizers of the CIO meeting, were singled
out by the Respondents for interrogation concerning the CIO. It
seems very unlikely that this was mere coincidence. A much more
logical explanation is that the Respondents knew that both of these
employees were the CIO leaders, and were therefore the best sources'of
information on the CIO movement in the plant.' Second, there is the
timing and the form of the interrogation of Ramirez. Thus, Benkow-
ski's questioning of Ramirez about the "new union" occurred only 3
days after the CIO meeting, which Ramirez had attended and which
Benkowski knew had been held. Moreover, Benkowski apparently
was not satisfied with Ramirez' initial plea of ignorance about the
``new union," because he then put another query to Ramirez in the form
of "Don't you know anything about it?" which certainly indicates that
Benkowski did not believe Ramirez' original answer because Benkow-
ski knew that Ramirez did know about the "new union" as a result of
the latter's activity therein. [Emphasis supplied.] Accordingly, we
find, as the Trial Examiner did, that the Respondents did have knowl-
edge of Ramirez' CIO activity prior to his discharge.
In view of Ramirez' known leadership in the CIO movement in the
plant, the fact that he was discharged only 3 days after the CIO meet-
ing and on the same day as the Respondents' interrogation about his
CIO activity, and the Respondents' unsubstantiated reason that he was
discharged for unsatisfactory work,4 we find, in accord with the Trial
Examiner, that the reason for his discharge was his CIO activity, and
that his discharge was therefore discriminatory.
Rivera
Rivera signed a CIO card at the CIO meeting on November 16, 1953.
On November 25, Foreman Rolla called in Rivera and told him that he
was laid off. When asked the reason, Rolla answered by inquiring :
"You know something about the Union?" Rivera denied such knowl-
S As we have stated above in our discussion of the Dixon discharge , it is apparent from
Benkowski 's similar interrogation of Dixon that the Respondents knew that Dixon was
one of the CIO leaders in the plant
4 The Trial Examiner apparently meant by his statement that Foreman Benkowski
"admittedly" never gave Ramirez the October 27 corrective that Benkowski testified, as
the record shows, that he did not physically hand him a written corrective.
NATIONAL 'VIDEO CORPORATION' ' 603
edge, but Rolla asked, "You signed a union card?", and Rivera then
admitted that he had'signed a union card. Rolla then stated "Well you
got laid off." Rolla then added that'"lack of seniority" was a cause of
the layoff. On or about December 24, 1953, the Respondents sent a
telegram to Rivera recalling him to work, but the telegram had an in-
correct,address so that it was never delivered. The Respondents claim
that the telegram was erroneously sent to the former address of another
employee•with the same name. However, since then Rivera has never
been offered reinstatement.
We are of the opinion that Rolla in his conversation with Rivera
clearly indicated that Rivera was laid off because he had joined the
CIO, and then added only as an afterthought that Rivera was laid off
because of his lack of seniority. Thus, whether or not Rivera did in
fact lack seniority, we find that the real reason for Rivera's layoff was
his CIO activity, and the layoff was therefore discriminatory. More-
over, the missent telegram is not only additional evidence that Rivera's
layoff was discriminatory, but also supports the conclusion that the Re-
spondents never intended to reinstate Rivera because of his CIO ac-
tivity. If this had been the only instance of'a missent notice of recall,
it might be attributed to error. However, as discussed more fully be-
low, the Respondents also missent a notice of recall to Mejia, who was
also laid off in November 1953. With two such cases of missent notices,
we think it only reasonable to attribute such alleged "mistakes" to de-
sign-in this case, design to give the appearance of bona fide notices of
recall, with no intention in fact to recall employees'previously laid off.
In the light of the entire record, we find, as did the Trial Examiner,
that the Respondents discriminatorily discharged and refused to rein-
state Rivera.
Mejia
Mejia, after being laid off in the general layoff in November 1953,
was recalled on January 7, 1954, but was discharged on,January ,9,
1954. We agree with the Trial Examiner that this discharge was dis-
criminatory on the following grounds: (1), The credited testimony of
Mejia shows that when Mejia asked Foreman Rolla, why, he was being
discharged, Rolla replied "They rehired you by mistake, they found
out you signed a CIO,union card"; :(2) the,Respondents' claim that the
mistake discovered was. that Mejia's department was overstaffed is
"demonstrably,,false," in-view of the fact that at the, time of Mejia's
discharge. no, staffing. report had as yet been compiled for ,the; week
covering the period of,Mejia's, reemployment; ,and, (3) the "missent"
telegram of recall in December 1953: ,
In support of the Respondents' claim that Mejia was discharged
because bf overstaffing, Personnel, ,Director' O'Donnell testified' that
the Respondents, in recalling laid-off employees, customarily notified
604 ` DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
a larger number than it could handle in view of the known propensity
among such,employees not to report. The fact that the Respondents
in recalling laid-off employees customarily notified a larger number
than it could handle does not mean that it actually, rehired a larger
number than it could handle. To do so would indeed appear to be
rather poor business practice. In any event, there is no evidence which
shows that this actually occurred either during the, week prior to
Mejia's-recall, or„during,the week,,of,his reemployment., All-that does,
appear is that at the time of his discharge no staffing report had as yet
been compiled for the week covering the period of Mejia's reemploy-
ment, and therefore the Respondents had no valid basis for claiming
that Mejia was discharged because of "overstaffing." The weekly
staffing reports were compiled on Mondays 'for the previous week,
so that when Mejia was rehired on a Thursday the staffing report
for the previous week had already been compiled. If the staffing
report for the previous week showed overstaffing, surely the Respond-
ents would not have rehired Mejia during the following week.
With respect to the missent telegram, Personnel Director O'Donnell
testified that Mejia's current address was not in Mejia's file in the
personnel department in December at the time the recall telegram was
sent to his former address. Mejia creditably testified that he left his
current address on Foreman Rolla's desk at Rolla's request and also
with the payroll department when he was laid off in November.
Despite O'Donnell's testimony that there is no procedure whereby a
current address of a laid-off employee is forwarded by the payroll
department to the personnel department, it seems quite unlikely that
neither Rolla nor the payroll department gave Mejia's current address
to the personnel department after Mejia gave it to them in November.
But even assuming that the personnel department did not have Mejia's
current address at that time, and therefore made an honest mistake
when it missent the telegram of recall to Mejia's former address, the
Respondents' subsequent conduct indicates an intent to discriminate
against Mejia. Thus, the missent telegram was returned by Western
Union because it had been missent. In the absence of a discriminatory
intent with respect to Mejia, O'Donnell in the normal course of events
would have obtained Mejia's current address from the payroll de-
partment where he knew it would be,5 and sent a notice of recall to
the proper address. However, O'Donnell did not do this. Instead,
O'Donnell, with knowledge that the telegram had been missent, and
with no attempt to correct his own error as he easily could have done,
gave Mejia the status of a "new employee" without any seniority for
purposes of recall because Mejia had failed to report to work within
"O'Donnell himself testified that laid -off employees may at times leave their current
address with the payroll department in order that their check for their final wages will
be properly mailed to them.
NATIONAL VIDEO CORPORATION 605
4,d,ays,of the telegram which the Respondents themselves had, mid,,
directed so, that it had never been delivered to Mejia. Accordingly,
when Mejia was finally recalled in January he was hired as a "new
employee," and 4 days later when Mejia was discharged allegedly
because of "over-staffing" he was selected for discharge because he was
now a "new employee" without any seniority. It is evident, there-
fore; that the Respondents established the missent telegram as a con-
venient means for discriminating against Mejia, and after finally
reinstating him "by mistake" utilized such means as a pretext for
discharging him for his CIO activity. Thus, even without regard to
the fact that this was the second of two alleged "errors" in notices of
recall, it is clear that this one was no mere "error."
In view of the fact that the Respondents told Mejia at the time of his
discharge that the reason for the discharge was the Respondents'
discovery that he had signed a CIO card ; the lack of foundation for
the Respondents' claim that Mejia was discharged because of "over-
staffing"; and the discriminatory intent with respect to Mejia which
must be inferred from the "missent" telegram episode, we agree with
the Trial Examiner that Mejia's discharge was discriminatory.6
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents National Video
Corporation' and Navidico, Inc., Chicago, Illinois, their officers, agents;
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 194, Distributive, Process-
ing and Office Workers of America, by discriminating in regard to
the hire or tenure of employment of its employees, or by discriminat-
ing in any other manner in regard to any term or condition of
employment in order to discourage membership therein.
(b) Interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor organizations,
to join or assist Local 194, Distributive, Processing and Office Work-
ers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in other
concerted activities for the purposes of collective bargaining, or other
mutual aid and protection, or to refrain from any or all of such activ-
ity except to the extent that such rights may be affected by an agree-
" We are not unmindful of the fact that Mejia's grievance concerning his discharge in
January was found to be without merit. however, such a determination.by the incumbeat,
AFL union;,-if,,it.hasrany relevance at"all, is hardly decisive of,the unfair labor - practice
issue before the Board.
• 606 DECISIONS' OP NATIONAL` LABOR RELATIONS BOARD
ment 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 the Board finds will
effectuate the policies of the Act :
(a) Offer-Salvador Ramirez, Francisco V. Rivera, Reuben Mejia,
and Clarence Dixon immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for any
loss of pay they may have suffered by reason of the Respondents' dis-
crimination against them in the manner provided in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(c) Post in its two plants in Chicago, Illinois, copies of the notice
attached to the Intermediate Report and marked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, upon being duly signed by the Respond-
ents' representative, be posted by the Respondents immediately upon
receipt thereof, and be maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Thirteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
ACTING CHAIRMAN RODGERS, dissenting in part :
I cannot agree with the majority's finding that the Respondents'
discriminatorily discharged Dixon in violation of Section 8 (a) (3)'
and .(1) of the Act.
The finding of discrimination is predicated on an alleged pretext on
the part of the Respondent to rid itself of a CIO adherent. However,
the record shows that the Respondents' president discharged Dixon
because he violated a p]ant sanitation rule. As the majority's de-
cision describes it, on March 3, 1954, Foreman Rubino saw Dixon
urinating down the' drain in the'steam booth-a place where tele-
vision 'tubes' ,re cleaned. 'On March 19, 1954, immediately upon'learn-
'' This notice is hereby amended by substituting ,the words "A Decision and Order" for
the , words "The Recommendations of a Trial Examiner " In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
NATIONAL-VIDEO CORPORATION 607
ing _of this opprobrious conduct, President Cole ordered Dixon's dis-
charge. That President Cole acted summarily in effecting Dixon's
disco ssal seems readily understandable as a natural , instantaneous
reaction to conduct for which he could see no excuse.
My colleagues go to great lengths to probe the past in order to create
the background for a pretext rationale, but their efforts are not per-
suasive. Dixon was 1 of 190 layoffs on November 21, 1953, and after
he had filed grievances based on seniority rights in December 1953,
he was recalled on January 28, 1954. It is noteworthy that the Trial
Examiner did not find Dixon's November 1953 layoff or the Respond-
ents' failure to recall him prior to January 28, 1954, discriminatory,
and that the General Counsel did not except to the Trial Examiner's
failtu•e to make such findings. That Dixon was nonetheless recalled
demonstrates not only that the Respondents were acting in good faith
but also tends to render improbable the theory that Dixon was recalled
only to secure a basis for a pretext discharge thereafter. The majority
stresses alleged surveillance but nowhere in the record is there the
slightest indication that President Cole was involved in any such
scheme. Indeed, it is inconceivable that Dixon's disgraceful conduct
in violating the plant sanitation rule could reasonably have been fore-
seen by the Respondent as affording a basis for Dixon's discharge. It
is also pointless to attempt to dispel the gravity of Dixon's miscon-
duct by dwelling on the `-used oil, cleaning oil, dirt and debris" that
went down the drain in question. The distinction is too obvious to re-
quire belaboring. Finally, the majority relies on Foreman Rubino's
alleged permission to Dixon. However, there is not a scintilla of evi-
dence that President Cole, who alone was responsible for Dixon's dis-
missal, authorized the giving of permission, and Rubino clearly could
not have had implied authority to permit such conduct which was
flagrantly contrary to all accepted rules of health and sanitation. To
characteri-ze President Cole's action as a pretext is to render' manage-
ment powerless to enforce a clear violation of company rules and to
discipline individuals for shamelessly disregarding time-honored
standards of health and human behavior.
For these reasons, I would reverse the Trial Examiner' s finding that
the Respondents violated Section 8 (a) (3) and (1) of the Act in
discliarging Dixon, and dismiss the complaint as to him.
MEMBER LEEDOrr took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a first amended charge duly filed on April 7, 1954, by Local 194, Distributive,
Processing and Office Workers of America, herein called the Union or CIO, the
General Counsel of the National Labor Relations Board , hereinafter called the
608 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
General Counsel' and the Board, respectively, by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated April 30, 1954, and
amendment enlarging complaint dated May 11 , 1954, against National Video Corpo-
ration and Navidico , Inc., referred to herein as the Respondents , alleging in substance
that the Respondents: (1) By various enumerated acts and statements had interfered
with, restrained, and coerced its employees; and (2) had discharged and refused to
reinstate four named employees because of their membership in and activities on
behalf of the Union, thereby engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the
complaint, the amendment enlarging complaint, and the notice of hearing thereon
were duly served upon the Respondents and the Union.
The Respondents duly filed their answer wherein they admitted certain allegations
of the complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held in Chicago, Illinois, on May 17 and June
15 and 16, 1954, before the duly designated Trial Examiner. The General Counsel
and the Respondents were represented at the hearing by counsel. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. On July 29 and August 12, 1954,
respectively, the General Counsel and Respondents filed briefs.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
National Video Corporation and Navidico, Inc., are and at all times material
herein have been Illinois corporations engaged in the manufacture and reclaiming
of television tubes. The Respondents own and jointly operate two plants located
respectively at 3019 W. 47th Street, hereinafter referred to as 3019, and 4300 W. 47th
Street, hereinafter referred to as 4300, Chicago, Illinois. In the course and'conduct
of their business, and in the operation of their plant, the Respondents cause and
have continuously caused large quantities of raw materials to be received at their
plants in Chicago from sources outside the State of Illinois. During the year 1953,
the Respondents have received at their plants raw materials valued in excess of
$1,000,000, such raw materials being transported in interstate commerce from, into,
and through States of the United States other than, the State of Illinois. During the
same period, the Respondents have sold and caused to be shipped, in interstate com-
merce from their plants in the State of Illinois to points outside the State of Illinois,
merchandise valued in excess of $1,000,000.
The Respondents admit, and the Trial Examiner finds, that they are ; engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 194, Distributive, Processing and Office Workers of America is a labor
organization admitting to membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
In October and November 1953, the Respondents, who will hereafter be referred
to in the singular as admittedly they constitute 1 integrated organization despite the
separate corporate entities, employed a total of approximately 1,000 employees of
whom 700 were in the bargaining unit represented by Amalgamated Local No. 286 of
the International Union, United Automobile Workers of America, affiliated with the
American Federation of Labor, hereinafter referred to as AFL, which had a contract
with the Respondent dated July 21, 1952, and terminating March 24, 1954, covering
the employees of the Respondent.
On November 13, 1953, employees Clarence Dixon and Salvador Ramirez went
to the office of the CIO after work and talked to the regional director about forming
a CIO union at the Respondent's plant. It was suggested that a meeting for the
Respondent's employees be scheduled and that word of this meeting be spread among
'This term specifically includes the counsel appearing for the General Counsel at
,the hearing.
-NATIONAL VIDEO CORPORATION 609
the employees. Thus commenced the first CIO activity in the plant. This meeting
was scheduled for November 16, 1953.2
Two significant events occurred at the plant during the working day of November
16. Sometime on that afternoon Chester Benkowski, foreman of the maintenance
department at 3019 who is over both Dixon and Ramirez, met Dixon on the railroad
dock of the plant where he, according to his own admission, stopped Dixon to in-
quire: "What is all this about a union meeting tonight?" When Dixon denied having
any information, Benkowski replied: "Come on, Dixon, you know what I am talking
about; the meeting. You know what it is all about." After Dixon had once denied
having any'knowledge of the meeting and suggested that an employee accompanying
Benkowski might know, the men parted.3
The second significant event of that working day occurred when Supervisor Bob
Cooper asked Salvador Ramirez to translate into Spanish a request from the
Respondent that the employees work overtime that day because of an alleged rush of
orders which had to be turned out that same day. Ramirez did as requested and,
after reminding the employees in Spanish of the scheduled CIO meeting, translated
their answer back to Cooper which was that the employees were sorry but that they
could not work overtime as they were attending a "social event" after work .4
The CIO meeting that evening after work was attended by an estimated 20 to 50
employees, a number of whom signed CIO cards including Dixon and Ramirez. A
subsequent meeting was held about November 23.
At or about this time 5 Respondent called all its supervisors to a meeting at which
time the supervisors were told of the fact that the CIO was attempting to organize
the plant and that, on direct orders of the Respondent's president, Asher Cole, the
supervisors were to be strictly neutral and not take sides between the AFL and CIO.
These instructions were never relayed to the employees.
Moreover, sometime about 1t/2 months after October 6, 1953, and also sub-
sequent to this supervisors' meeting, Manuel Sanchez, himself a supervisor at the
time, spoke to a group of 7-10 Spanish speaking employees with the permission of
the shift manager. According to Sanchez, he did this at the request of an AFL
committeeman and merely interpreted remarks of that committeeman. Sanchez
acknowledged that questions regarding the CIO were asked. This activity hardly
seems consonant with the neutrality instructions. One employee hearing Sanchez
understood his remarks to mean: Don't sign a CIO card for that might get you laid
off.
This was the situation existing as of November 16 and 17 against which the dis-
charges described hereinafter must be judged.
2 The Respondent indicates in its brief that this meeting occurred on November 3 but
the prenonderanee of, and the better, evidence proves that the meeting occurred on
November 16 -
• The evidence of- Dixon and Benkowski was almost identical as to the above events.
Benkowski testified further that be had thought that the meeting was that of AFL and
that he did not leain from the "grapevine" (conversations around the plant) that it was
a CIO meeting until 2 days thereaftei He explained that his inquiry of Dixon was based
exclusively on "curiosity" and that he consideied that Dixon would know about the meet-
ing because lie (Dixon) had been an AFL committeeman when he had been employed at
the plant prior to his last hitch in the Navy which ended about Easter 1932 Benkowski's
last explanation appeals quite farfetched to the 2'na1 Examiner who believes, and therefore
finds, that Benkowskt was in fact refeiring to the scheduled meeting of the CIO contrary
to his testimony that he thought it was an AFL meeting
4 Sonietuue subsequent to Ranuiez' discharge, Supervisor Pisano inquired of Ramirez
while Itaniiez was distiibuting CIO leaflets at the gate to the plant' "Are you putting
out leaflets for that social meeting they had from Navidico '"
In view of the gcncial layott at the plant occurring in the latter part of November
caused by it cutback of orders discussed among management as eaily as October, this
sudden -rush of orders on the day of the scheduled CIO meeting appears more than strange.
"Respondents -aitnesses were highly indefinite as to the date of this meeting with
most of them placing it in the "latter part of November" or "after the layoff." One
supervisor placed it definitely between September 24 and 30. However, another supervisor
who appealed to be an honest witness testified that the meeting occurred before the dis-
charge of Ramirez, an event of November 19 The logical time for such a meeting would
appear to have been at the time of the earliest and greatest activity. Otherwise the
meeting ttiould he valueless.
610 DECISIONS OF NATIONAL LABOR : RELATIONS BOARD
A. Discharge of Salvador Ramirez
Ramirez had started his employment with the Respondent in October 1952 at
$1.40 per hour. Soon he was earning $1.70 per hour which was still his rate in
November 1953. His duties were many and varied. He,was the emergency and
preventative maintenance man for the Navidico operations at 3019 under Foreman
Benkowski which required him to check, repair, and maintain the numerous ma-
chines in that operation, check the oxygen supply line, and numerous other de-
tails requiring his presence all over the plant in the course of his duties. So varied
were his duties that Supervisor Cooper gave him the nickname of "The Tourist"
because of the many places to which his duties took him. In addition to these
mechanical problems Ramirez' duties also encompassed the handling of uniforms-
This last job appears to have been a peculiar one, and perhaps only a semiofficial
one, in that the Respondent while apparently not requiring the use of uniforms,
at least did not object thereto.
At least until the end of September or October 1953, the work of Ramirez had
been satisfactory to the Respondent for even Benkowski could recall no criticisms
of Ramirez prior to that time. Ramirez, himself, testified that he had never re-
ceived any criticism of his work, and, in fact, it is undenied that the works man-
ager had complimented him early in November 1953 for repairing the oxygen line
to a lathe machine.6 It is also admitted that Ramirez received a note in his pay-
check in October 1953 complimenting him for his work and asking him to recom-
mend any other person he might consider suitable for employment with the
Respondent?
As noted heretofore, Ramirez was 1 of the 2 instigators and organizers of the
CIO meeting of November 16.
On the morning of November 16, Foreman Bob Cooper asked Ramirez to trans-
late a request to the Spanish speaking employees in his department that they work
overtime that evening in order to get out some rush work. In addition to trans-
lating this request. into Spanish, Ramirez also reminded the employees in Spanish
of the CIO meeting that evening. Ramirez then translated for Cooper the reply
of the employees that they would not stay because they had a special "social" meet-
ing to attend.8
The meeting was held as arranged, with some of the employees including Ramirez
and Dixon signing CIO cards.
About 11:30 a. in. on November 19, Foreman Benkowski approached Ramirez
where he was working and inquired: "Sol . what is this I hear about a new
union'" After Ramirez stated that this was the first he had heard of it, Benkowski
again asked: "Don't you know anything about it?" Upon receiving a negative
reply, Benkowski departed.
At 3:30 p. in. that same day Benkowski sent for Ramirez and, upon his appear-
ance, said: "I have bad news for you . I have to let you go." After Ramirez had
inquired the reason for the discharge, Benkowski stated: "Well, your work is un-
satisfactory. . . . Mr. O'Donnell said youi work wasn't satisfactory."
Subsequent to his discharge that day, Ramirez and Dixon passed out CIO leaflets
at the plant gates on several occasions during various months until March 1954.
Respondeni contended that Ramirez was discharged because his work became
so bad in the last month or two before his discharge. Benkowski testified that
Ramirez had been a good workman, and still was in October 1953, but suddenly
he began to receive a great number of complaints about Ramirez. According to
Benkowski, he "by passed," i. e., did nothing about, these complaints in October
because he had confidence in Ramirez until October 27 when he spoke to Ramirez
about it and gave him a "corrective"-a correction in writing. To corroborate
O Respondent did not call Works Manager Willie Fantzer as a witness nor snake any
showing as to his unavailability
7 This, however, apparently N,. as a form notice with a typewritten signature of Personnel
Manager O'Donnell O'Donnell testified that similar notices were placed in all the
employees' pay envelopes at one time of another O Donnell was not certain when the
forms were distributed
8 Not long after the discharge of Ranuiez on November 119, Ranifiez was passing out CIO
leaflets at the plant gate when Supervisor Pisano inquired "Aie you putting out leaflets
for that social meeting they had fioni Navidico"'
NATIONAL VIDEO CORPORATION 611
this testimony , a carbon duplicate of his corrective was produced - which read as
follows:
Sol has been letting his work slip-Has not been getting all his work done on
time. Also has been lax in his known work in his area. I warned Sol to-day
to get on the ball.
Benkowski "knew" that Ramirez' work improved after this even though he
acknowledged that he did not watch Ramirez or check his work. But then the
complaints became "numerous " again until , according to Benkowski , Foreman Rolla
suggested that Ramirez be put on "A. V. O. status," i. e., have all his work assigned
to him on written orders upon which Ramirez would have to state in writing over
his signature what work he had done on the order.
Finally, still according to Benkowski, the works manager, Willie Fantzer, entered
a "bitter complaint" that he, Fantzer, would fire Ramirez if Benkowski did not,
whereupon Benkowski discharged Ramirez on November 19.
It is significant that Rolla, who was a witness, did not testify regarding either
poor workmanship by Ramirez nor about the alleged "A. V. O. status," that Works
Manager Fantzer was not called as a witness at all and, therefore, did not deny
having complimented Ramirez on his work in early November. It is further sig-
nificant that no "A. V. 0." orders were produced-nor were any shown Ramirez
when he asked for them on November 19. And, in addition, it is significant that
the corrective of October 27, quoted above, was originally dated "1954" which had
been changed in pencil to "1953."
Most significant of all was the fact that Benkowski testified exclusively about com-
plaints he allegedly received from others who failed to testify about any poor work-
manship by Ramirez. Benkowski spoke extravagantly of the number of oral
corrections he had given Ramirez and of the A. V. O.'s which Ramirez had failed
to work on but he could produce nothing to substantiate his claims as admittedly
the "corrective" of October 27 was never given Ramirez. Benkowski, as the fore-
man over Ramirez, should have known his work better than any of the other
supervisors but he could testify to nothing against Ramirez or his work of his own
knowledge.
The explanation, of course, came out on November 19 when Benkowski ex-
plained to Ramirez: "Mr. O'Donnell said your work wasn't satisfactory." This was
corroborated by Fantzer's "bitter complaint" that he, Frantzer, would fire Ramirez if
Benkowski would not. In other words, Ramirez was being discharged on orders
from above. Benkowski was the man who knew most about the work Ramirez was
doing. Yet he was being instructed to discharge Ramirez and was also being told that
Ramirez' work was not satisfactory. If Ramirez' work was in fact unsatisfactory,
Benkowski as his foreman would have been the moving force-not the personnel
manager or the works manager who could not and did not know about the work of
Ramirez. Obviously this alleged sudden deterioration in the work of Ramirez was
merely the pretext which higher officials who had determined to discharge Ramirez
forother reasons were using for the purpose.
Following the discharge of Ramirez, the work formerly done by him was divided
among 2 or 3 other employees which does not indicate that Ramirez was either a lazy
or a poor workman.
The Trial Examiner finds that Ramirez' testimony that he never received an adverse
criticism of his work is true and further that he was not in fact either a lazy or a
poor workman.
In view of the fact that this alleged "unsatisfactory work" was demonstrably only a
"pretext" or "excuse" for the discharge and the fact that the Respondent, as well as
Benkowski and other minor supervisors, knew and objected to the efforts of Ramirez
on behalf of the CIO together with the timing of the discharge promptly after the first
meeting of the CIO group, the Trial Examiner must find that the Respondent dis-
charged Ramirez on November 19, 1953, because of his membership in, and activi-
ties on behalf of, CIO in violation of Section 8 (a) (3) of the Act.
B. Clarence Dixon
Clarence Dixon was the second employee hired in the Respondent's maintenance
department. In November 1953, only Novak had longer service with the Respond-
ent than Dixon. Dixon began working for the Respondent on August 31, 1949, and
387644-56-vol 114-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had worked continuously except for a period when he had been recalled by the Navy
from which,he returned to the Respondent's employ about Easter 1952.9
As found heretofore, Dixon and Ramirez were the two employees who went to the
CIO, scheduled and arranged for the meeting of November 16, notified the other
employees thereof, and signed CIO cards at that meeting.
In November 1953, Dixon was working under Foreman Benkowski at 4300 and
was asked by Benkowski on the railroad dock about the meeting of November 16,
as found heretofore. At least within 2 days thereafter Benkowski admitted that he
knew that the meeting he had been referring to in this conversation was that of the
CIO.
On November 21, Personnel Director O'Donnell announced over the public ad-
dress system in both plants that due to cutbacks in orders there would be a general
layoff made in accordance with seniority and that the employees would be recalled
thereafter according to seniority. Following this announcement, Benkowski noti-
fied those individuals who were to continue work of that fact. When Benkowski in-
formed Dixon of those who were to continue to work, Dixon objected that he, Dixon,
had seniority over most, if not all, of those employees retained. Dixon threatened to
see O'Donnell about the matter. Benkowski then stated with a grin on his face that
those employees retained were all supervisors and added: "In my eyes they are super-
visors." However, the facts show that they were not.
On December 7, 1953, Dixon filed a grievance with AFL based upon the fact
that an employee named Frank Roza had been recalled to work ahead of Dixon and,
therefore, out of seniority. At the grievance meeting on this matter O'Donnell ad-
mitted the fact that Roza had been recalled to work but contended that Benkowski
had recalled Roza by mistake. O'Donnell then claimed that the error had been
rectified because Roza had been laid off again. At this time O'Donnell did tell Dixon
not to worry for Dixon would be recalled to work. There is no showing as to who, if
anyone, replaced Roza. Dixon did not.
On January 6, Dixon filed another grievance to the effect that men with lesser
seniority were working at 3019 in the maintenance department contrary to the AFL
contract. After a big grievance meeting this grievance apparently was concluded
but Dixon was not put back to work.
At this meeting it developed that, while seniority was "plant-wide," by which it
was meant that the employees at the two plants were integrated and interchangeable
so that the newer employees should have been the first laid off no matter at which
building they were employed, the Respondent had laid off none of the maintenance
employees at 3019 while practically all of the maintenance employees at 4300 were
laid off with the exception of those who "in the eyes" of Benkowski were supervisors.
No regard was paid to seniority. O'Donnell testified that this was a variance from
the seniority clause of the contract but that Respondent and the AFL had orally
agreed that the Respondent might keep its maintenance crew at 3019 intact.
On January 28, 1954, in response to a telegram received from the-Respondent the
preceding day, Dixon reported to Assistant Personnel Manager Horst, who sent him
to 4300 to work under Foreman Benkowski. When Dixon reported, Benkowski
inquired what he was doing there and immediately telephoned someone, after which
he ordered Dixon to report to O'Donnell at 3019. O'Donnell ordered Dixon to report
to Foreman Rubino of the maintenance department at 3019 and warned him as he
was leaving: "You are going to be watched, so watch your step and be careful."
When Dixon reported to Rubino, Rubino instructed: "Well, since you left, things
have changed around here. Anytime you are on the job, and if you have to leave
that job, you call me, and let me know where you are at. I want to know where you
are at all times." When asked if those orders included going to the lavatory, Rubino
answered: "Yes, do you want me to go with you?" For a period of weeks there-
after Rubino followed Dixon whenever Dixon left the department. This included the
occasions when Dixon went to the lavatory as well as the times when Dixon went to
the time clock to punch out at the end of the day. On one of the occasions when
Rubino followed Dixon to the time clock, he told Dixon that Dixon would have to
leave the company property and go outside if he wanted to talk to the employees.
Rubino denied telling Dixon that he was to be kept under surveillance but he ad-
mitted that he told Dixon he had to have Rubino' s permission to leave the depart-
ment and also that, for a week or more, Rubino followed Dixon wherever he went
including the lavatory. Rubino attempted to explain this surveillance on the ground
that he was "protecting" Dixon. Rubino testified: "When [Dixon] was transferred
to me from 4300, and it was known openly that he was organizing for the CIO, and
' The Trial Examiner hereby orders line 2, page 134 of the transciipt corrected by
striking the letter "n" from the word "Eastern."
NATIONAL'VIDEO CORPORATION 613
it was none of my. business , that was when I thought it was necessary to .follow him
to make sure he didn't get hurt." Rubino also attempted to make it appear that this
surveillance was his, Rubino's, own idea and that he was not acting upon the orders
of his superior. This testimony by Rubino fails to take into account the warning given
by O'Donnell to Dixon that he was to be watched. Even Rubino had to admit that
nothing untoward occurred which gave him the idea that Dixon was in any danger.
It is further significant that this "protection" extended to telling Dixon that he was
not to talk to anyone on company time or property at the time clock. The episode at
the time clock makes it clear that the Respondent intended to prevent anyone
interested in the CIO from talking to its employees.
As Dixon was not returned to work at 4300, he was not reassigned to his former
job. Instead Rubino at 3019 assigned Dixon to cleaning vacuum pumps and aspir-
ators with steam in a small 6 x 4 x 5 foot steam box which had a drain in the middle
of the floor down which flowed the used oil, cleaning oil, dirt, and debris from this
operation. He worked under a maintenance employee named Belcher.
On February '1, Rubino found two pumps which were gassy and gave Dixon a
written corrective fordimproperly'cleaning the pumps and aspirators. A similar cor-
rective was given Homer Belcher under whose direction Dixon was then working.
Admittedly this episode had nothing to do with the discharge of Dixon and, therefore,
will not be discussed further here.
On March 3, Rubino saw Dixon urinating down the drain in the steam booth.
Calling attention to Dixon's action, Rubino said: "I have been waiting for you to
do that. I will have to let you go. You are fired." Dixon protested that he had
secured permission from Rubino to use this drain for the purpose. Rubino answered:
"I don't remember that." Rubino then telephoned the personnel department and
after completing the call told Dixon: "Go back to work. They are giving you a
second chance. You must have been born under a lucky star. I don't know what
they are waiting for." 10 On orders of the personnel department Rubino made out
a written corrective regarding the matter the following morning with the assistance
-of O'Donnell.'
Thereafter ,Dixon,-worked, as, ,usual in the steam booth until March 19 when
Rubino walked up to Dixon at work and said: "I have got bad news for you,
Dixon, . . . I don't know if it is bad for you, it might be good news. . . . I will have
to let you go.... Asher Cole [Respondent's president] 11 just found out about your
urinating in the steam booth and wants you dismissed immediately. I must escort
you to the door." Rubino did escort Dixon to the door. He has not been recalled
to work since.
There is a direct conflict between Dixon and Rubino as to whether Dixon re-
quested and received permission to use the drain in the steam booth as a urinal.
Dixon's testimony was factual and corroborated both by documents and by Re-
spondent's own witnesses throughout. He gave the appearance of a straightforward
honest, though talkative, witness. On the, other hand, Rubino's story of following
Dixon on his own initiative in order to "protect him" is only slightly less than fan-
tastic especially in view of the fact that O'Donnell had warned Dixon upon his re-
call that he "was going to be watched." Between the two witnesses, the Trial Ex-
aminer must, on this record. accept the truthfulness of Dixon's testimony that he
had secured permission from Rubino.
The facts in Dixon's case are too clear for argument that, after discovering Dixon's
interest in the CIO, the Respondent was forced to reinstate him only because of his
persistency in filing grievances on matters proving the Respondent's intent to dis-
criminate against him and that, upon being thus forced to reinstate him, the Re-
spondent maintained a constant surveillance over him because of his known advocacy
of the CIO in order to find or make a palpable excuse for discharging him. The
Trial. Examiner finds that the steam booth episode was merely the pretext upon which
the Respondent sought,to. accomplish its objective and that it actually discharged
Dixon because of his known membership in, and advocacy of, the CIO in violation of
Section 8 (a) (3) of the Act
C. Francisco V. Rivera
Rivera commenced working for the Respondent on May 28, 1953, under Fore-
man Rolla at 3019 as a glass cutter. Until July 8, Rivera was the only glass cutter
in the department but at that time he was joined in that occupation by Jesse Wash,
who had left the Respondent's employ in December 1952 in order to assist his mother
10 This conversation was not denied
n Cole was not a witness
6.14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on her farm in Mississippi following his father's death. According to the Respondent
and Wash, Wash had been given a leave of absence for thatpurpose.
Rivera signed a CIO card at the meeting of November 16, 1953, at the CIO hall-
On November 25, Foreman Rolla called in Rivera and told him that he was laid'
off. When asked the reason, Rolla answered by inquiring: "You know something
about the Union?" Rivera denied such knowledge but, when asked by Rolla if he-
had signed a card for the Union, Rivera admitted the fact that he had signed. Rolla's.
answer was: "Well, you've got laid off."
Rolla denied telling Rivera that he was laid off because he signed a union card,
but- he did not deny that the conversation occurred as testified by Rivera and as-
found above., The Trial Examiner has no doubt Rolla added, as he, testified, that
"lack of seniority" was a cause of his layoff and so finds.
The admitted interrogation of Rivera by Rolla of his knowledge of the CIO and
whether he had signed a CIO card are violations of Section 8 (a) (1) of the Act, in
addition to which they were designed to create the definite impression that his signing
the CIO card was the cause of his layoff, and the Trial Examiner so finds.
On or about January 24, the Respondent admittedly sent a telegram to Rivera
with an incorrect address so that it was never delivered. According to the Respondent,
another "Francisco Rivera" lived at the address to which the telegram was sent Re-
spondent's personnel files contained Rivera's correct address
Rivera has never been offered reinstatement since.
Considered alone, perhaps, Rivera's case would not be proved by preponderance
of the evidence even considering Rolla's statement of November 25 but, when the
record as a whole is taken into consideration , the pattern of the Rivera case appears
identical with clear cases of discrimination occurring at or about this time. There
is the same interrogation, the same "errors" made by the Respondent, and the same
result. Therefore, the Trial Examiner finds that by discharging Francisco Rivera
on November 25 and refusing to reinstate him thereafter because of the fact that
he had signed a CIO card, the Respondent discriminated in regard to the tenure
of employment of said Rivera because of his membership in a labor organization
and thus violated Section 8 (a) (3) of the Act.
D. Reuben Media
Mejia began washing tubes for the Respondent in December 1952-under Foreman
Rolla at $1.20 per hour. By November 1953 he was earning $1.40 per hour.
Mejia signed a CIO card a day or two after the meeting of November 16.
On November 30, Rolla laid Mejia off. At the time of this layoff and at Rolla's
request, Melia gave Rolla a slip of paper containing his name and address, 1135 West
Adams Street. About a week thereafter Mejia requested the payroll department
to mail him his final check and gave the payroll clerk his address for that purpose.
He received that check through the mail as requested.
After Christmas, Mejia saw Rolla and requested work as the Respondent was
then hiring new employees. Rolla stated that Mejia would be recalled. There-
after Mejia saw Personnel Director O'Donnell and asked why he had not been
recalled. O'Donnell then showed Mejia a telegram requesting his return to work
which the Respondent had missent to a previous address, although the personnel
file, as well as Rolla and the payroll department, had Mejia's current address. This
misdirected telegram had been returned by Western Union on the ground that it
was unable to locate the addressee. O'Donnell explained to Mejia that he had been
taken off the payroll when he failed to report within 4 days of the date that tele-
gram had been sent. O'Donnell further explained that the Respondent would recall
Mejia as a new employee after it had exhausted its official call-back list.
On January 6, 1954, Mejia returned to 4300 where he requested Rolla and Plant
Superintendent McDonald to reinstate him. McDonald wrote out a note for Mejia
and sent him back to 3019 to be rehired. At the personnel office they gave Mejia
a card and told him to report for work the following day.
As requested Mejia reported for work on January 7, a Thursday. Rolla stated that
he was glad to have Mejia back. When they discovered that Mejia was to be paid
$1.20 per hour, Mejia asked Rolla to get his old rate of $1 40 per hour reinstated
for him. Rolla promised to do so. However, on January 9, Rolla reported to Mejia
that after "they" found out who Mejia was, they discovered that they had hired him
"by mistake," that so long as Mejia was going to be in the plant there would be
trouble for they had learned that Mejia had signed for the CIO union. Rolla ended
this conversation by stating: "This time you are fired."
Some weeks thereafter, Mejia asked O'Donnell at the plant if he would be rehired
as Respondent was then hiring new employees. O'Donnell informed Mejia that they
would not rehire him any more, "unless the CIO made them" rehire him again.
NATIONAL VIDEO CORPORATION 615
The Respondent's explanation of the Mejia case is far from convincing . ' Rolla
-testified that Mejia gave him his address on the occasion of his recall to work =on
January 7-not at the time of his layoff. The probabilities of the situation are all
against Rolla's testimony. The Respondent would want the address in the file at the
time of a layoff so that it would be able to get in touch with its experienced, capable
employees when it desired. O'Donnell corroborated Mejia's claim when he ad-
mitted that at the time he showed Mejia the misdirected telegram in December,
Mejia had informed him that he had given his address to Rolla at the time of the
layoff so That he was unable to understand why the telegram should have, been, sent
to an incorrect address. In addition, admittedly not only the payroll department
had the correct address within a week of the layoff but also the correct address was
found in the personnel file. Rolla was not telling the truth.
Rolla and O'Donnell both denied having mentioned the CIO to Mejia. Both
claimed that Mejia was "discharged" on January 9 because the personnel department
found that a "mistake" had been made in rehiring Mejia on January 7. They claim
that the mistake discovered was that Mejia's department was overstaffed upon his
reinstatement, so that it had ordered Rolla to lay off the man with the least seniority,
who happened to be Mejia because he had been employed on January 7 as a
"new employee" without seniority since he had lost his right to reinstatement and
accumulated seniority because he failed to report to work within 4 days of the
telegram which the Respondent itself had misdirected so that it had never been
delivered to Mejia. This story is also demonstrably false because the personnel
department determined when a department was "overstaffed" upon receipt of a weekly
staffing report received from the various foremen on Mondays. As Mejia's 3 days
of employment at this time were Thursday, Friday, and Saturday, no staffing report
had been received from Foreman Rolla during Mejia's period of employment.
Obviously, therefore, the "mistake" was not "overstaffing." Furthermore, the rec-
ord shows that 4 or 5 new employees had been hired in Mejia's department since
November so that Mejia had to be relieved of his accumulated seniority in order
to be the man with the least seniority in' the department. This O'Donnell attempted
to do by reason of Mejia's failure to report within the 4 days of the telegram
which he never received due solely to the fact that the Respondent had misdirected
it. Thus an employee is deprived of his contractual accumulated seniority solely
by reason of his employer's error. This appears quite unreasonable.
Obviously the "mistake" discovered by the personnel department about Mejia
after his reemployment was sufficiently important to warrant his "discharge," as
distinguished from layoff, on January 9. Rolla made a point of this distinction
at the time. Clearly this mistake, which could cause a "discharge," was much
more important than mere overstaffing or the fact that Mejia had failed to report
for work within 4 days of the telegram he never received due exclusively to another
of Respondent's admitted "errors." The proven unreliability of the Respondent's
witnesses, the speciousness of the explanation given, together with the fact that
Mejia had all the demeanor of a straightforward, sincere, and truthful witness,
convince the Trial Examiner that, as both Rolla and O'Donnell indicated in' words
to Mejia, as found above, the "mistake" the Respondent had discovered about the
rehiring of Mejia was that he had signed a union card and was a union advocate
in the plant and that this discovery was the cause of Mejia's discharge on January
9, 1954. The Trial Examiner so finds. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The. activities of the Respondent set forth- in section III, above, occurring in con-
nection with the operations of the Charging Party described in section I, above, have
a close, intimate, and substantial relation to, trade, traffic, and commerce among the
several States, and tend- to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that he Respondent engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom and that it take certain affirmative
action designed to_effectuate the policies of the Act.
It having been found that the Respondent discriminated in i•egaid to the hire and
tenure of employment of Salvador Ramirez on November 19, 1953, Francisco V.
Rivera on November 25; 1953, Reuben Mejia on January 9, 1954,'arid Clarence Dixon
on March 19, 1954, by discharging and refusing to reemploy each of them, the
Trial Examiner will recommend that the Respondent offer to each of them immediate
and full reinstatement to the position he formerly held or a substantially equivalent
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one;.iv ithout,prejldice to his, seniority, or ;other, rights. and, privileges, and make
each whole for-any loss of pay he may have suffered3by'reason-of said discrimination
by payment to*him, of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the ' date of the offer of
reinstatement, less his net earnings during such period, in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the in-
terdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife
which burdens and. obstructs commerce, and thus effectuate the policies of the Act,
it will be recommended that the Respondents cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 194, Distributive, Processing and Office, Workers of America is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discharging and refusing reinstatement to Salvador Ramirez on November
19, 1953, Francisco V. Rivera on November 25, 1953, Reuben Mejia on January 9,
1954, and Clarence Dixon on March 19, 1954, thus discriminating in regard to the
hire and tenure of employment of said individuals, thereby discouraging membership
in Local 194, Distributive, Processing and Office Workers of America, the Respond;
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with , restrain, or coerce our employees,
in the exercise of their right to self-organization , to form labor organizations, join
or assist Local 194, Distributive, Processing and Office Workers of America, or
any other labor organization, to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or 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.
WE WILL offer to Salvador Ramirez, Francisco V. Rivera, Reuben Mejia, and
Clarence Dixon immediate and full reinstatement to his former position or
a substantially equivalent position without prejudice to any seniority or other
rights and privileges and will make each of them whole for any loss of pay
he may have suffered as a result of the discrimination against him.
NATIONAL VIDEO CORPORATION
AND NAVIDICO, INC.,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
l .altered, defaced, or covered by any other materia