Northern Metal Co.

National Labor Relations Board - Board Decisions

May 8, 1969

175 N.L.R.B. 896 (N.L.R.B. 1969)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern Metal Company and Ernest Lee Davis.
Case 4-CA-4412
May 8, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 27, 1969, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision together with a supporting
brief, and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Northern Metal Company,
Philadelphia, Pa., its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
In the absence of exceptions, we adopt, pro forma, the Trial Examiner's
recommended dismissal of the 8 (a)(3) allegation of the complaint.
TRIAL EXAMINER'S DECISION
HAROLD X . SUMMERS, Trial Examiner : In this
proceeding , the General Counsel of the National Labor
Relations Board (herein called the General Counsel and
the Board respectively ) issued a complaint'. alleging that
Northern Metal Company (herein Respondent) had
engaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). The answer to
the complaint admitted some of the allegations of the
complaint and denied others; in effect , it denied the
commission of any unfair labor practices . Pursuant to
notice, a hearing was held before me at Philadelphia,
Pennsylvania, on June 27 , 1968. All parties were afforded
full opportunity to call and examine and cross-examine
witnesses , to argue orally, and thereafter to submit briefs.
The sole question involved is whether Ernest Lee Davis,
the charging party herein, was discharged by Respondent
on September 19, 1967, because he engaged in activities
protected under the Act.
Upon the entire record in the case, including my
evaluation of the reliability of the witnesses based upon
the evidence and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent is and at all times material herein has been
a Pennsylvania corporation engaged in operating a ship
terminal facility in the port of Philadelphia, Pennsylvania,
where it loads and unloads and dismantles ships. In the
course of its operations, Respondent annually furnishes
stevedoring services to the Transportation Corps, United
States Army, for which it receives more than $100,000;
and it annually ships and receives materials, including
motor vehicles, to and from foreign ports, for which
services it receives more than $100,000.
Respondent is an employer engaged in commerce
within the meaning of the Act.
If. THE UNION
Industrial Union of Marine and Shipbuilding Workers,
AFL-CIO, and its Local No. 14 (herein collectively called
the Union) are parties to a collective-bargaining
agreement with Respondent which was in effect at all
times material herein . I find that the? are labor
organizations within the meaning of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
There is vital dispute in this record as to the
circumstances surrounding the discharge of the charging
party, dispute the resolution of which was made more
difficult by reason of the fact that one of the principal
participants had died before this hearing began.
Early in the hearing, and on a continuing basis
thereafter, Respondent objected to the receipt of any
testimony with respect to remarks allegedly made by Max
Rose - at all times relevant the plant manager for and
sole stockholder of Respondent, as well as chairman of its
board of directors and its chief executive officer - who
had died approximately 75 days before this hearing began.
The objection was based upon the existence of the
Commonwealth of Pennsylvania's so-called Dead Man's
Statute of 1887.' I overruled the objection, a ruling I here
reaffirm. The Pennsylvania statute, which speaks in terms
of causes of action to vindicate private rights, has no
The complaint was issued on May 17, 1968. The charge initiating the
proceeding was filed on September 19, 1967.
The Union was not made , and did not become, a party to this
proceeding.
'Which, among other things, declares that, if a "party to a thing or
contract in action" is dead and his interest therein has passed to a party on
the record who represents his interest in the subject in controversy, then
neither any surviving or remaining party to the thing or contract , nor any
other person whose interest is adverse to said right of the deceased, shall
be a competent witness (with certain exceptions irrelevant here ) as to any
matter occurring before the death of the party.
175 NLRB No. 145
NORTHERN METAL CO.
application to regulatory statutes such as the Act, which
protects public and- not, private rights (see I.A.M. v.
N.L.R.B., 311 U.S. 72, 80; also San Diego Building
Trades Council v. J.S. Garmon, 359 U.S. 236, 244). Rule
43(a) of the Federal Rules of Civil Procedure broadly
favors the receipt of evidence, and it disfavors
disqualification under statutes restricting admissibility.
(See Dellefield v. Blockdel Really Co., 128 F.2d 85, 33
(C.A. 2).) The Board, in Wallick and Schwalm Corp., 95
NLRB 1262 (enfd. 198 F.2d 477 (C.A. 3)), held that it
was not precluded from considering as evidence statements
attributed to deceased persons, noting only (at 1263) that
the consideration of the testimony of such statements is
"subject to the closest scrutiny before deciding what
weight to give it."'-With this adjuration in mind, I have
resolved any factual questions which have arisen.
Ernest Davis had once - 10 years earlier - worked
for Respondent. During the ensuing period, he had lived
and worked in North. Carolina and in the District of
Columbia, but the late summer of 1967 found him
unemployed. At that time, during a visit to Philadelphia,
he heard that Respondent was doing some hiring, and he
applied there for a job. His application was accepted, and
he began work on August 21.
He had been hired as a laborer at $2.335 per hour.' The
first day he worked in the warehouse; thereafter, except
when it was raining , he worked out in the "yard." Almost
all of the time he was a member of a "hooker-on" crew
engaged in loading, unloading , or otherwise transporting
heavy materials or merchandise; working along with a
crane operator, Davis was one of several who would either
hook or unhook the load.
(Hooking/unhooking was normally a continuous
operation. The crane would bring the hook or hooks to
the material to be transported; the hook-on team, one
man or, usually, two men, would attach the hook(s); then
the crane would move the material to the unloading site,
where the unhooking team there frees the hook(s).)
Davis received his first two paychecks on September 1
and 8, covering the 1-week work periods ending August 27
and September 3, respectively.
At 5 p.m. on September 15 he picked up his pay for the
period ending September 10, the period which included
Labor Day, a nonwork day for Davis. As he left the
bookkeeper, he looked at the paycheck and noticed that it
was one day "short." He returned to the bookkeeper to
ask about this. Present at the time were Max Rose and
Maurice Chorney, the latter the overall yard
superintendent. Either Rose or Chorney - exact
identification is immaterial; the conversation took place in
the presence of both - asked Davis how long he had been
employed by Respondent. When Davis said that he was in
his third week, he was asked whether he was a member of
the Union. No - he said - his 30-day "grace-period"
had not yet expired. "Well," said Rose, "you're not
entitled to holiday pay."
Before he left the yard Davis checked on the matter
with the Union's shop steward. This person - the name
of whom he did not know - asked him if he had joined
the Union, and, receiving a negative answer, told him that
The treatment of the subject by several Trial Examiners, as approved by
the Board, can be found in Calandra Photo, Inc., 151 NLRB 660, 669, and
in Sterling Aluminum Company, 163 NLRB No. 40, TXD fn. 30
'Although the current contract limited the hourly pay of a starting
laborer to $1 75 for his first 30 days and $2 for 30 days thereafter, Davis
received the regular laborers pay from the beginning . (As will be seen, the
written word of the contract was not always universally adhered to.)
897
the Union could do nothing for him. When Davis pressed
the subject of whether he was entitled to pay for the
holiday not worked, the steward disclaimed knowledge,
suggesting only that Davis see Joe Winbush, an employee
of Respondent and financial secretary for the Union
Local, who was just then arriving to get his own
paycheck. Davis put the question to Winbush, who
demonstrated a reluctance to carry on a discussion.
"You're not a member of the Union," he said, "so there
is nothing we can do." A bit later, away from the yard,
Winbush explained to Davis that he had been unable to
talk freely at the plant, that he had not said that Davis
was not entitled to holiday pay, but that there was nothing
the Union could do for him.
Davis did not let the matter rest. On Monday
(September 18), during the lunchbreak, he went to
Winbush and asked for a copy of the Respondent-Union
contract. Winbush - telling Davis not to reveal where he
got it - gave him a copy. Then Davis, in Winbush's
presence, read from the section on holidays:
Employees shall be paid eight (8) times their regular
base hourly rate, on the following holidays not worked;
provided that the employee has worked the scheduled
day before and the scheduled day after the holiday;
New Year's Day, Easter Monday, Decoration Day,
Independence Day, Labor Day, Thanksgiving Day and
Christmas Day.
"Mr. Winbush," he said, "I don't see anything in here
that says a man has to be a member of the Union [or] to
be here 30 days [in order] to receive holiday pay." He
pointed out that the sole requirement was that an
employee work the day before and the day after the
holiday, a requirement he had fulfilled. Winbush (again)
protested that he had not said Davis was not entitled to
pay for Labor Day - he had merely said that the Union
could do nothing for him. Davis' attention was called to
the sections of the contract covering new employees:
The Company agrees when new employees enter upon
their employment they will be handed a copy of the
agreement between the Company and the Union, and
that attached to the cover will be a notice to new
employees reading as follows:
. . Your attention is called to the fact that
[Respondent] has a labor agreement with [the Union] .
. The Management requests that you examine a copy
of the Agreement handed to you by the Union . . .
which requires you, as a condition of your employment
to become a member of the Union within thirty (30)
days....
After a probationary period of thirty (30) calendar
days, no employee shall be discharged except for proper
cause . . . [which discharge] shall be subject to the
-grievance procedure in accordance with the terms of
this Agreement. Company shall have the right at the
end or before the end of thirty (30) calendar days
probationary period to discharge an employee without
his case being subject to the grievance procedure.
Winbush explained, in effect, that the Union could do
nothing for Davis since he was not a member. He
suggested that Davis reraise the subject with Rose. "If he
doesn't do anything, then come back to me and I'll see
what I can do."
(To the extent it has materiality, I here find that,
whatever the wording of the current contract (1)
Respondent did not pay holiday pay to probationary
employees and (2) Respondent did not believe that the
Union had the authority under the contract to press
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances of any kind on behalf of probationary
employees.)
That evening, at quitting time, Davis went to Rose's
office.. Also in attendance throughout was the latter's
secretary. Once again, Davis raised the question of his not
receiving pay for Labor Day. Once again, Rose said he
was not entitled to such pay. Davis, referring to the
pertinent part of the contract, pointed out that the only
prerequisite was working before and after the holiday.
Rose asked where Davis had procured a copy of the
contract, but Davis chose not to tell him. Rose, speaking
loudly, said that Davis, employed by Respondent less than
a month, was trying to tell him how to run the business.
Davis denied this. "You should have been a lawyer," said
Rose, to which Davis answered, "There's your contract,
and a man don't have to be a lawyer to read it." Rose
had the last word, "You're not entitled to it," and Davis
left the premises.
My findings as to this conversation generally follow,
but do not completely accord with, Davis' testimony. (I do
not find, for example, that Rose said, in words or effect,
that Davis was not entitled to holiday pay because he did
not belong to the Union.) I paid particular attention to
Davis' demeanor on the stand, and I have given full
consideration to his inability to recollect certain details; I
note the failure of Respondent, without explanation, to
call as a witness the secretary who is supposed to have
been present throughout the conversation; and I have
given careful consideration to the elements of plausibility,
as drawn from other aspects of this case, for their bearing
on this conversation. I have duly considered the fact that
Davis has been involved as charging party in a number of
other unfair labor practice cases; in my opinion, the bare
fact does not reflect on Davis' credibility one way or the
other.
(Also with respect to this conversation, I have not
credited Respondent's witness Simon Ellison where his
testimony conflicted with Davis'. Among other things,
Ellison testified that, as a messenger-driver for
Respondent, he customarily sat outside Rose's office; that,
at quitting time on Monday, September 18, Davis came to
Rose's office and that he (Ellison) overheard the ensuing
conversation; that Rose - having earlier promised Davis
that he would look into the Labor Day pay situation -
now explained that, "by the rule of the contract,"
under-30-day employees were not entitled to holiday pay;
that Davis demanded the pay despite any contract -
"Every man should be paid for Labor Day" - and said
he would go to the "Labor Board"; that the two argued
over whether Davis was trying to tell Rose how to run the
business, in the course of which argument Davis said,
"You'd better sit down, old man, before I knock you
down"; and that the conversation ended when Rose asked
him (Ellison) to take Davis out of his office - a task
which became unnecessary when Davis said he would
leave voluntarily but "would make [Rose] pay for that
day." Also - somewhat belatedly, in answer to a quite
pointed if not leading question - Ellison testified that,
among other things, Rose told Davis that he had a
"complaint" against him - that he had been informed
that Davis was a "goof-off, not performing your duty like
you should; I like to have a man who does eight hours
work for eight hours pay." Thereafter - Ellison's
testimony continued - Rose called Respondent's
Comptroller Saul Carroll, told him that Davis, in asking
for holiday pay, had threatened him, and instructed him
to make up Davis' final pay. I was not impressed by
Ellison as a witness. Moreover, he was not corroborated
by Carroll - who also testified - with respect to Rose's
telling him about a threat. My findings as to Rose's
conversation with Carroll based on the latter's credited
testimony, are set forth immediately below.)
Shortly after this conversation, I find, Rose called in
Comptroller Carroll. Rose told Carroll that Davis was
being discharged because he was an "undesirable
employee" - no further details were given him - and
that his final paychecks should be prepared. Thereupon,
Carroll caused the check for the pay period just ended and
the check for the 8 hours of the next pay period already
worked to be made up and turned over to Rose.
(In my findings as to this conversation, I have credited
Carroll, who struck me as being a most believable witness.
I here note again that Carroll made no mention of Rose's
telling him that had threatened Rose, in a situation in
which - had the threat really been uttered - (1) Rose
would most certainly have told Carroll about it, and (2)
Carroll would most certainly have alluded to it in his
testimony.)
Next morning, the 19th, when Davis reported for work,
he found his timecard out of the card rack. He went to
Rose's office to seek an explanation. Rose held an
envelope toward him, saying that it was Davis' pay. When
Davis asked, "what is that for?" Rose said, "We can't use
use you any more." Davis asked if he was being fired, to
which Rose said, "I can't use a man around here who
tries to tell me how to run my business." Davis, protesting
that he was not trying to do this, said he wanted a union
representative to be present "to witness the firing." Rose
said he had no right to union representation, at which
Davis walked out without taking the envelope. Thereafter,
Rose sent the envelope to the guard shack at the outer
gate with instructions that it was to be given to Davis if
and when he returned to the plant.
Davis, meanwhile, proceeded to the Regional Office of
the Board and filed the charge which initiated the instant
proceeding. Later the same day, he returned to the plant
and, on advice of a Board agent accepted the envelope
with his final paychecks at Respondent's outer gate.'
(I am persuaded by Respondent's brief to reject as
implausible that part of Davis' testimony in which he says
that, now once again upon his return from the Board's
Regional Office, he spoke to Rose, asking for and being
refused the presence of a union representative as a witness
before he accepted his pay envelope. For one thing, as
pointed out by Respondent, Davis had now filed a charge
against the Union' as well as one against Respondent. I
believe that Davis was confusing his contacts with Rose.)
The General Counsel contends that Respondent
discharged Ernest Davis because he sought to achieve
Respondent's compliance with what he believed to be the
requirements of the pertinent collective-bargaining
agreement, thereby (1) interfering with, restraining, and
coercing employees in their exercise of the
self-organizational rights guaranteed them by Section 7 of
the Act and (2) by discrimination as to tenure of
employment, discouraging membership in a labor
organization.
Respondent's defense is two-pronged - and I
paraphrase: (1) Davis was discharged toward the end of
his probationary period because he was an unsatisfactory
'One of the checks was dated September 18, the other September 21. It
is interesting , if irrelevant, to note that Davis' bank cashed both checks on
the 19th , the day he received them.
'This charge has since been dismissed.
NORTHERN METAL CO. 899
a
A
employee, and for no other reason;' and (2) assuming,
without conceding, that his demand for Labor Day pay
played a part in the discharge, this was not a concerted
activity protected by the Act."
Respondent introduced evidence designed to support its
first defense.
Its "key witness" in this respect was Leo Westover,
labor supervisor in the yard.
In his yardwork - i.e., most of his employment by
Respondent - Davis was under Westover's immediate
supervision. The latter was directly responsible for the
activities of approximately 170 men. Each morning he
would assign tasks, to those not regularly attached to a
job. During the workday he moved from job to job
throughout a 160-acre area, making sure that work
performance was up to standard; in the course of his
duties, he spoke to employees, correcting errors and
lecturing on safety. And among his responsibilities was
that of reporting to Max Rose on the abilities and
attitudes of probationary employees prior to the ends of
their respective probationary periods.
Westover testified that his observation of Davis during
the latter's period of employment had convinced him that
Davis was a "goof-off" - his work was satisfactory "as
long as he was on the job" but he too frequently left his
work either to go to the toilet or to visit with other
employees; that Davis' fellow-crewmembers complained to
him about Davis' absences more than once; that he
himself spoke to Davis a number of times, saying in words
or effect that, if a man did not do his share of a crew's
work, he might as well not be a part of the crew; and
that, asked by Rose about Davis' work performance, he
reported the above facts to Rose. He testified that there
was no objection to a man's going to the bathroom but
that visiting away from his work would not be tolerated.
Asked for details about occasions of Davis' being away
from his workplace, he described one such as a toilet visit
which he originally said was the first instance of Davis'
being away from work, occurring 2 or 3 weeks after Davis
was hired; later, he said this was the last such incident. As
for his reporting to Rose, he could not, although pressed,
remember when he told Rose about Davis; finally, he
"guessed" it was close to the end of Davis' probationary
period.
Comptroller Carroll testified - and I have found -
that when Rose (on September 18) notified him that Davis
was being discharged, he called Davis an "undesirable"
employee.
Davis' payroll record, received in evidence, bears the
notation, in purported explanation of the termination of
his employment, "Discharged - Unsatisfactory
performance of duty," in the handwriting of a person
identified as the payroll clerk. Without explanation, she
was not called to testify either as to the date of or the
basis for the entry.
None of Davis' crewmembers who was supposed to
have complained about him was called to testify, even
though at least one of them, named in Westover's
testimony, is still employed by Respondent.
On behalf of the General Counsel, Davis testified he
was unaware of any complaint about him by fellow
crewmembers; that, to his knowledge, Westover never
hunted for him away from his work; that he would go to
'In its brief, Respondent does not assign Davis ' alleged threat of physical
force against Rose as a cause for the discharge.
'Left unsaid but implicit in Respondent's argument was the further
contention that a discharge for such activity , under the circumstances, was
not a discouragement of union membership.
the restroom when necessary but that this had never been
frowned upon; and that he was never criticized about his
work, orally or in writing, either by Westover or by
anyone else.
I have already found that Rose, in the conversations
with Davis leading up to the latter's discharge, did not
mention Davis' work performance. I now find that Rose,
at the time of the discharge, was unaware of any work
deficiencies on Davis' part and that, in fact, Davis was
considered to be a satisfactory employee. In so finding, I
do not credit Westover's testimony to the contrary.
Making due allowances for the fact that testifying in a
proceeding of this kind is not an everyday occurrence, I
believe that Westover displayed an undue amount of
nervousness; this, combined with his confusion and with
the absence of corroboration where - it would seem -
there was the possibility of corroboration, persuades me
there was no basis for the cause for Davis' discharge here
being urged by Respondent." I am convinced that Rose
had something else in mind when he told Carroll that
Davis was an "undesirable" employee.
Specifically, on the basis of what I believe to be a fair
preponderance of the evidence, I find and conclude that
Davis was discharged for pressing for the holiday pay to
which he thought he was entitled under the
collective-bargaining contract.
The sole remaining question is whether Davis' conduct
was "protected" under the Act.
As pointed out by the General Counsel, the Board has
held that an employee's attempt to enforce the provisions
of a collective-bargaining agreement, even though he acts
alone, is an activity covered by Section 7 of the Act; the
Board's rationale for this conclusion is that complaints of
this sort are grievances within the framework of the
contract which affect all employees and are, therefore,
concerted activities the exercise of which is guaranteed by
Section 7 of the Act." Nor does it matter that the
complaining employee may have been in error in his
interpretation of the contract." I conclude that the
conduct for which Davis was discharged was indeed
protected under the Act; and that the discharge, under the
circumstances, constituted an interference with, and
restraint and coercion of, his self-organizational rights, in
violation of Section 8(a)(1) of the Act."
"This is not to say that I adopt Davis' overreactive opinion , expressed in
his testimony , that the failure of one member of the hook -on crew to
perform his share of the work did not hamper the total production of the
crew . It should go without saying that Respondent could, with impunity,
discharge a crewmember who did not pull his weight.
" Interboro Contractors. Inc.. 157 NLRB 1295, 1298.
"See cases cited by the Board in fn . 7 of the Interboro Contractors case;
also, the Board ' s own interpretation of Interboro Contractors, found in
E.E.E. Co.. Inc., 171 NLRB No. 137, at fn. l; and Anaconda Wire and
Cable Co., 173 NLRB No. 144.
"Respondent's reliance upon Continental Manufacturing Corp., 155
NLRB 255, is misplaced . There, the Board found that the discharge under
attack was the result of the affected employee's expressions of personal
dissatisfaction with job conditions and with management 's treatment of
employees rather than an attempt to enforce a collective-bargaining
contract.
Likewise , Respondent 's quotation from Klate Holt Co., 161 NLRB
1606, 1612, is inapposite. In the quote in question, the Board states, as an
additional factor in that case , that an employer 's desire to terminate an
employee because he engages in concerted activities does not , of itself,
establish the unlawfulness of a subsequent discharge ; if there is sufficient
cause for which he would have been terminated in any event, the fact that
the opportunity is welcome does not make the termination unlawful . "This,
at most , is the situation in the present case." But - if my factual findings
are correct - this is not the situation in the instant case; Davis was
discharged because he pressed for holiday pay under the contract and for
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(But, in Respondent ' s actions under the circumstances,
I find neither the intent nor effect of discouraging union
membership . I shall recommend dismissal of the
complaint in this respect.)
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Ernest Lee Davis on September 19,
1967, because he sought compliance with a
collective-bargaining agreement covering the working
conditions of himself and of others , Respondent interfered
with , restrained , and coerced employees in the exercise of
the rights guaranteed them in Section 7 of the Act, in
violation of Section 8(a)(1) thereof.
4. The foresaid conduct is an unfair labor practice
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Except for the foregoing , Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the
Act.
I shall recommend that Respondent offer Ernest Lee
Davis full and immediate reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him
whole for any loss of earnings suffered by him because of
the discharge by payment to him of a sum of money equal
to the amount he would have earned from the date of his
discharge to the date of Respondent 's offer of
reinstatement , less his net earnings during said period.
Backpay shall be computed on a quarterly basis with
interest at a rate of 6 percent per annum in the manner
heretofore established by the Board.
As the unfair labor practices committed by Respondent
are of the character striking at the roots of employees'
rights safeguarded by the Act, I shall also recommend
that Respondent 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
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act , I hereby issue
the following:
RECOMMENDED ORDER
Northern Metal Company, Philadelphia , Pennsylvania,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging any of its employees because of their
exercise of the rights guaranteed them in Section 7 of the
Act.
no other reason. The discharge was not merely the product of the existence
of sufficient cause coupled with a desire to punish Davis for his pressure -
it directly resulted from his exertion of such pressure.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
through representatives of their own choosing , to engage
in concerted activities for the purpose of collective
bargaining , or other mutual aid or protection, and to
refrain from any and all such activities except to the
extent that any such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Ernest Lee Davis reinstatement to his former
position even though this may necessitate displacement of
a present incumbent (or, if his former position no longer
exists, to a substantially equivalent position), without
prejudice to his seniority or other rights and privileges.
(b) Make him whole for any loss of earnings suffered
by reason of the discrimination against him, in a manner
set forth in the section above entitled "The Remedy."
(c) Notify him if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement.
(e) Post at its place of business at Philadelphia,
Pennsylvania , copies of the attached notice marked
"Appendix."" Copies of said notice , on forms provided by
the Regional Director for Region 4, after being duly
signed by an authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(f) Notify the Regional Director for Region 4, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
heretofore remedied in this Recommended Order.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 4, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
NORTHERN METAL CO.
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discharge any employee for seeking to
secure benefits under a collective -bargaining contract
covering the working conditions of himself or of other
employees.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to organize ; to form , join , or assist a labor
organization ; to bargain collectively through a
bargaining agent chosen by themselves ; to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection; or to
refrain from any such activities (except to the extent
that the right to refrain is limited by the lawful
enforcement of a lawful union -security requirement).
WE WILL offer Ernest Lee Davis his former or
substantially equivalent job (without prejudice to
seniority or other employment rights and privileges)
and WE WILL pay him for any loss suffered because of
our discrimination against him.
901
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
NORTHERN METALS
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1700 Bankers
Securities Building , Walnut and Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone
215-597-7601.