Odenbach Shipbuilding Corp.

National Labor Relations Board - Board Decisions

Nov 29, 1945

64 N.L.R.B. 1026 (N.L.R.B. 1945)

In the Matter of ODENBACH SHIPBUILDING CORPORATION and INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND
HELPERS OF AMERICA,1 A. F. L.
Case No. 3-C-741.-Decided November 29,1945
DECISION
AND
ORDER
On May 11, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, on May 30, 1945, the respondent filed
exceptions to the Intermediate Report. Oral argument before the
Board at Washington, D. C., was not requested and none was held.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as hereinafter modified.
1. The Trial Examiner found that the respondent is responsible
for the anti-union activities of Leaderman Clarence Frederick, set
forth in the Intermediate Report, because his duties and authority
gave the employees reasonable ground to believe that Frederick acted
as a representative of management. We agree with this finding. In
addition to the facts set forth in the Intermediate Report relative to
Frederick's position in the shipyard, the record contains uncontradicted
testimony of two "hook-on" men, which we credit, one stating that "if
he IFrederick] has a job come in he explains what the job is, if it
is on the end where our crane is, we do the job," and the other, that "if
Mr. Frederick wants something done specially, I have to drop my
The words "of America", part of the naive of the Union, were inadvertently omitted
at cci ci it places in the Intermediate Report Similarly , in Section III of the Intermediate
Report, under the caption "A Background," the Trull Examiner stated that the Board set
a.idc an election held on June 19 194 3 The record shows, and we find , that the election
referred to was held on March 19, 1943.
64 N L. R. B., No. 170.
1026
ODENBACH SHIPBUILDING CORPORATION 1027
work and go and do what he asks me to do . . . he watches to see
that everything is in good working order,-to see that they [the cranes]
are busy." In view of the entire record, we find that Frederick
occupied a supervisory position and that his conduct is therefore
attributable as such to the respondent.
2. We agree with the Trial Examiner's conclusion, as set forth in
the Intermediate Report, that the respondent violated Section 8 (1)
of the Act by forbidding union representatives to distribute union
literature on the respondent's parking lot while knowingly permitting
anti-union employees to engage in similar conduct, thus discriminat-
ing against the Union. Although not stated in the Intermediate
Report, Personnel Director Glenn Snyder testified that the respond-
ent prohibited distribution of literature on its parking lot in order to
prevent "traffic jams." However, the respondent offered no explana-
tion for excepting the anti-union distributors, Frederick among them,
from the scope of its ban. Under the circumstances, and particularly
in view of the respondent's other unfair labor practices, we are con-
vinced and we find that the respondent's unequal treatment, referred
to above, was motivated by its hostility to the Union and its favoritism
toward those who opposed the Union.
3. On November 2, 1944, 2 days before the Board-ordered election,
President John Odenbach, Sr., addressed the assembled employees
in the yard cafeteria and said, among other things, that the election
would be by secret ballot, that the employees could vote as they wished,
that he wanted everyone to vote, and that "I want to know how I
stand, whether it is me or the Union." On November 4, the day
following the Union's defeat, he again spoke to the employees say-
ing, "500 voted for me and 290 voted for the Union"; and, to celebrate
the Union's defeat, he announced a party. The employees, all hourly
paid, ceased work at 4: 30 p. in., before the end of the work shift, and
were served refreshments by the respondent. We do not deem it nec-
essary to decide whether the foregoing remarks by President Oden-
bach or the party celebration, each standing alone, constitute an
unfair labor practice. We find, however, that his statements character-
izing the employees' efforts at self-organization as a personal issue
between himself and the Union, and the celebration which he staged
for the purpose of ridiculing and belittling, in the eyes of the em-
ployees as a whole, the aspirations of a minority group for self-organ-
ization and collective bargaining, constitute interference, restraint,
and coercion as part of the totality of the respondent's unlawful course
of conduct, more fully set forth in the Intermediate Report.,
2In his concluding findings as to interference , restraint and coercion , the Trial Exam-
iner inadvertently omitted the letters "Sr ' from the name of the respondent ' s president.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We agree with the Trial Examiner's finding that the respondent
discharged Louis Arieno because of his union activities. Among
other things, the respondent contends that it discharged Arieno be-
cause he left his work to solicit union memberships during working
hours and thus disturbed other employees. Although the Trial Ex-
aminer noted in his Intermediate Report that Arieno denied in his
testimony that he had engaged in such conduct and that the respond-
ent offered no proof of such delinquency other than the testimony of
Assistant Plant Superintendent Dick that such activity by Arieno
had been reported to Dick by President Odenbach and an unnamed
chipper, neither of whom testified, the Trial Examiner made no specific
finding as to whether Arieno had misconducted himself as charged.
We find that Arieno did not leave his work to idle or to engage in any
union activity during working hours and that the respondent did not
discharge Min for such alleged misconduct.
We also find no merit in the respondent's contention that it dis-
charged Arieno because he had refused to work inside tanks. As stated
in the Intermediate Report, sometime during the course of his ap-
proximately 4-month period of employment, Arieno objected to work-
ing inside the tanks because smoke and fumes irritated his lungs.
When Arieno's foreman, Dummel reported this fact to Dick, who su-
pervised the welding department, Dick instructed Dummel to assign
Arieno to outside welding jobs, which was done, and no complaint was
made to Arieno because of his objection prior to his discharge. After
working for several weeks on outside welding jobs, Arieno was again
assigned to work inside the tanks, and he did such work, without objec-
tion so far as appears, on the last boat on which he worked just prior to
his discharge; and, at the time of his discharge, the respondent had a
need for welders similar to that which existed when Arieno had re-
quested to be relieved of welding duties inside the tanks. However,
the Trial Examiner made no specific finding as to whether Arieno's dis-
charge was attributable to his unwillingness to work inside the tanks.
We find that, in discharging Arieno, the respondent was not motivated
by Arieno's refusal to do such work.
5. We also agree with the Trial Examiner that the respondent dis-
charged Edward G. Kring because of his union activities. However,
in reporting Kring's testimony in the Intermediate Report, the Trial
Examiner erroneously stated: (1) that Assistant Personnel Director
Caswell had advised Kring that he was discharged "for passing [out]
union cards in the shipyard"; and (2) that Kring denied that he had
posted anti-union literature on company boats. Contrary to the Inter-
mediate Report, the record discloses, as Kring testified, that Caswell
advised Krieg that he was discharged for distributing union cards "on
Company time", and that Kring denied that he had ever posted union
ODENBACH SHIPBUILDING CORPORATION 1029
literature on company boats. Nevertheless, inasmuch as the record
contains no credible testimony that Kriug distributed union cards
during working hours or posted union literature on company boats,
as the respondent contends, Ave credit Krrng's denials that he engaged
in such activities.
6. The respondent contends that it discharged William Keiss, inter
alia, for incompetence . In addition to the testimony set forth in the
Intermediate Report relative to Weiss' ability as a welder, the record
shows that Weiss had passed a welding test given by the respondent
before lie was accepted as an employee, that he received a wage increase
after Foreman Dummel had allegedly complained to Superintendent
Dick about Weiss' "gold brick" habits, and that although Dick testified
that Weiss was promoted to the status of an AA --elder because he had
"fooled" Duinmel and Dick, Dick admitted in his testimony that Weiss
had passed at least part of another welding test shortly prior to his
discharge . Considering all the evidence relative to Weiss' welding
ability, we are convinced, and we find, that the quality of his work
was not sub-standard and that his efficiency, as compared with that
of other welders retained by the respondent at the time of his discharge,
was satisfactory. We find that the respondent did not discharge Weiss
because of the quality of his work.
The respondent also contends that Weiss was discharged because he
idled during working hours. As stated in the Intermediate Report,
Dick testified that he had frequently seen Weiss wandering about the
yard and on occasions had told him to resume work, but Dick also
admitted having given similar admonitions to other employees. The
Intermediate Report also states that, according to Weiss' undenied
testimony, which we credit, as did the Trial Examiner, Plant Super-
intendent Archie Thompson told Weiss, shortly after his discharge
when Weiss complained of having been unjustly dismissed, that Weiss
was as conscientious as any man who was working in the yard at the
time. Although the Trial Examiner found that the reasons advanced
by the respondent for discharging Weiss were a mere pretext, he made
no specific finding as to whether Weiss had idled during the course of
his employment. We find that Weiss occassionally idled but that his
conduct in that respect was no different than that of the employees in
general who were retained by the respondent, and that, in discharging
Weiss, the respondent was not motivated by the fact that Weiss had
idled. Like the Trial Examiner, we find that the respondent dis-
charged Weiss because of his union activities.
7. The complaint alleges that James McVeigh was discharged be-
cause of his union activities in violation of Section 8 (3) of the Act.
The respondent denies that McVeigh's union activities in any way
influenced its decision to discharge him and asserts that his discharge
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulted from his repeated drunkenness on the job and overstaying
his rest period in the yard canteen, particularly on the last day of
his employ. McVeigh, an hourly worker, admitted that on two
occasions, one about 2 months and another 2 weeks prior to his
discharge, he returned from lunch under the influence of alcohol and
fell asleep during working hours; he also admitted that on each
occasion he was reprimanded by his foreman for such midsconduct.3
All employees of the respondent are allowed two 15-minute daily rest
periods, one at 10 or 10 :15 a. in., and another at 3 or 3 :15 p. in., during
which they may enter the shipyard canteen and obtain refreshments.
Snyder testified, without contradiction, and the Trial Examiner
credits his testimony, that on October 13, 1944, he observed McVeigh
in the canteen from 9:55 to 10:35 a. m.; and that Snyder thereupon
discharged McVeigh. McVeigh admitted that "once or twice" he had
overstayed his rest period; but he testified that he was never warned
about the matter. • In the Intermediate Report the Trial Examiner
found that the record failed to show that McVeigh had been repri-
lnanded for overstaying his rest period on any occasion prior to his
discharge or that the respondent had discharged other employees for
similar misconduct.
In view of the foregoing, and upon the basis of McVeigh's union
activities which were known to the respondent, his competence as a
workman, the respondent's failure to discharge him for his prior
misconduct in being drunk on the job, and the respondent's hostility
toward the Union, the Trial Examiner concluded that McVeigh was
discharged because of his union activities. We do not agree. '
The Trial Examiner's conclusion that McVeigh's discharge was
discriminatory, within the meaning of Section 8 (3) of the Act, rests
upon two subsidiary findings which are not supported by the record.
The Trial Examiner failed to note in the Intermediate Report in
making such findings, referred to above, that Personnel Director
Snyder testified that he had warned McVeigh a number of times
about overstaying his rest period, and that, according to the respond-
ent's records, which stand unimpeached, approximately 14 employ-
ees were discharged in the period from June to October 1944, for
"loss of time," and one, specifically, because he had "hung around
the canteen too much . . . ." 4 Under these circumstances, and in
'Personnel Director Snvder testified that when Foreman Cast reported the second of
these two incidents and recommended that McVeigh be discharged, Snyder advised Cast to
"use every possible means" to keep McVeigh on the job because Snyder feared that a dis-
charge of McVeigh might be construed as an unfair labor practice because McVeigh had
appeared as a witness at a hearing in a prior representation proceeding involving the
respondent ' s employees during the month of September 1944.
4 The Trial Examiner made the same erroneous finding that other employees had not
been discharged for idling in determining that the respondent discriminatorily discharged
Weiss . However, unlike McVeigh, as found above , Weiss had not engaged in an undue
ODENBACH SHIPBUILDING CORPORATION 1031
view of McVeigh's prior misconduct in being drunk on the job, to-
gether with the fact that McVeigh remained 40 minutes in the canteen
on the day of his discharge, we are not convinced that the respondent
discharged him because of his union activities. Accordingly, we shall
dismiss the complaint as to McVeigh.
TI III REMEDY
Having found that the respondent violated Sections 8 (1) and 8 (3)
of the Act, we Iriust order the respondent, pursuant to the mandate of
Section 10 (c), to cease and desist therefrom. The respondent's illegal
conduct discloses a purpose to defeat self-organization and its objects
among its employees. For example, Clarence Frederick, a supervisory
employee, attended the Union's first organizational meeting and dis-
paraged the union leaders; shortly thereafter he distributed anti-union
pamphlets among the employees and hired a hall in which he sponsored
an anti-union meeting of employees. Finally, the respondent dis-
charged three employees because of their activities on behalf of the
Union. Such discrimination, in the language of the Circuit Court of
Appeals for the Fourth Circuit, "goes to the very heart of the Act."
Because of the respondent's unlawful conduct and its underlying
purpose, we are convinced that the unfair labor practices found are
persuasively related to the other on fair labor practices hereinafter
proscribed and that danger of their commission in the future is to be
anticipated from the respondent's conduct in the past.' The preventive
purposes of the Act will be thwarted unless our order is coextensive
with the threat. In order therefore to make effective the interdepend-
ent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby minimize industrial strife Which burdens and
obstructs commerce, and thus effectuate the policies of the Act, we shall
order the respondent to cease and desist from in any manner infring-
ing upon the rights guaranteed in Section 7 of the Act. We shall also
order the "respondent to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
amount of idling, such as to distinguish him from the body of employees, and the respondent
did not in fact discharge Weiss for idling
6N L R B v Entwistle Manufacturing Co, 120 F (2d) 532, 536 (C. C A. 4). See
also N L B B. v Autornoti,,e Maintenance Machinery Co, 116 F (2d) 350, 353 (C C A.
7), where the court observed "No more effective form of intimidation nor one more
violative of the N. L R Act can be conceived than discharge of an employee because he
joined a union . .11
° See N. L R B v Express Publishing Company, 312 U S 426
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the respondent, Odenbach Shipbuilding
Corporation, Greece, New York, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., or
any other labor organization of its employees, by discharging, laying
off, or refusing to reinstate or reemploy any of its employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L.,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Louis Arieno, Edward G. Tiring, and William Weiss
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights
and privileges ;
(b) Make whole Louis Arieno, Edward G. Tiring, and William
Weiss for any loss of pay that they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount that lie normally would have
earned as wages from the date of his discharge to the date of the
° respondent's offer of reinstatement, less his net earnings during such
period ;
(c) Post at its Greece, New York, plant, copies of the notice
attached to the Intermediate Report, marked Appendix A.7 Copies of
said notice, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
7 Said notice, however, shall he, and it hereby is amended by striking from the first
paraeraph thereof the voids "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order," and by striking therefrom the name of
James McVeigh.
ODENBACH SHIPBUILDING CORPORATION 1033
(d) Notify the Regional Director for the Third Region ( Buffalo,
New York) in writing, within ten (10) days from the date of this
Order, what steps the respondent has taken to comply herewith; and
IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it
alleges that the respondent discriminated against James McVeigh, be,
and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Milton A. Nixon, for the Board
Mr. Charles D. Mercer, of Rochester, N Y, for the respondent
Mi. Ray Oberholtzer, of Buffalo, N Y., and Mr. J Paul Kessler, of Rochester,
N. Y, for the Union
STATFMENT OF THE CASE
Upon a fifth amended charge duly filed on January 17, 1945, by the Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders and Helpers, affiliated
with the American Federation of Labor, herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Third Region (Buffalo, New York), issued its complaint dated January 17, 1945,
against Odenbach Shipbuilding Corporation, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, the amended charge and notices of hearing were duly served upon the
respondent and the Union.
With respect to the unfair labor practices the complaint a o amended at the
hearing alleged in substance: (1) that the respondent discharged Louis Arieno
on June 30, 1944, Edward G. Kring, on July 14, 1944, William Weiss on July 17,
1944, and James McVeigh on October 13, 1944, because of their membership in
and activities on behalf of the Union ; and (2) that from on or about May 1,
1944, the respondent attempted to discourage and has discouraged its employees
from forming, joining, or assisting the Union by: (a) making inquiries as to the
union affiliation and activities of its employees; (b) causing and/or permitting
the distribution of statements to its employees designed to discourage member-
ship in the Union; (c) surveillance of the union activities of its employees; (d)
sponsoring and/or supporting a campaign designed to discourage membership in
the Union; (e) disparaging the Union in conversation with and speeches to its
employees; and (f) refusal to permit distribution of union handbills on its
property.
In its answer, the respondent admitted certain allegations in respect to the
nature of the respondent's business, but denied that it is engaged in commerce
within the meaning of the Act and further denied the allegations in respect to
the unfair labor practices.
Pursuant to notice a hearing was held on February S through February 14,
1945, at Rochester, New York, before Henry J. Kent, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The Board and the
respondent were each represented by counsel, the Union by representatives, and
all participated in the hearing Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the isues was
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afforded all parties. At the close of the Board's case counsel for the respondent
moved to dismiss the complaint on the grounds: (1) that the Board lacked juris-
diction to hear the cause; and (2) that no competent evidence was offered in
support of the allegations of the complaint. At this time counsel for the respond-
ent also moved to strike all testimony off the record in respect to the status of
leadei men in the respondent's plant on the ground that the status of such em-
ployees had been determined by the Board in a prior proceeding The motions
were denied without prejudice to later renewal. At the close of the case counsel
for the respondent renewed these motions. The motion to dismiss on the grounds
of lack of jurisdiction was denied Rulings on the other two motions were re-
served and, in effect, are made herein in the writer's conclusions below Counsel
for the Board moved to conform the pleadings to the proof in respect to formal
matters and there being no objection, the motion was granted. Brief oral argu-
inent was presented by counsel for the Board and for the respondent: all parties
indicated that they did not intend to file briefs.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Odenbach Shipbuilding Corporation, formerly known as The Odenbach Ship-
building Company, a New York corporation, operates a shipyard in Greece, near
Rochester, New York, where it is engaged in the construction of gasoline fankers.
During the year ending July 1, 1944, the respondent used raw materials valued
in excess of $1,000,000, more than one-third of which represents shipments made
to the respondent's shipyard from outside the State of New York. All tankers
are constructed on behalf of, and are delivered to, the United States War Depart-
ment. The facilities of the respondent are owned by the Defense Plant Corpora-
tion but the record shown that some of the raw materials used in the inanufac-
ture of ships is the property of the respondent The respondent maintains its
own personnel office and has sole authority to hire and discharge employees.
All checks for salary and wages are issued by the respondent
The undersigned concludes, contrary to the respondent's contentions, that it is
engaged in commerce within the meaning of the National Labor Relations Act.'
II THE ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers,
affiliated with the American Federation of Labor, is a labor organization ad-
mitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
After a hearing on a petition filed by the Union alleging that a question
affecting commerce had arisen concerning the representation of employees of
Odenbach Shipbuilding Company, Greece, New York, the Board on March 1,
1943, ordered an election to be held among those employees found by the Board
'See Matter of Odenbach Shipbuilding Company, 47 N L. It. B. 1261, 1iherein the
Board previously found the Company to be within the Board's jurisdiction. See also
Matter of Brown Shipbuilding Company, Inc, 57 N L. R. B. 326.
ODENBACH SHIPBUILDING CORPORATION 1035
to constitute an appropriate collective bargaining unit in Case No. R-4552.' An
election was held on March 19, and on March 20, 1943, the Board's Regional
Director for the Third Region (Buffalo, New York), issued an Election Report,
which shows that 169 employees voted for the Union and 173 voted against it.
On March 24, the Union filed objections to the conduct of the election and to
the Election Report. Thereafter, on April 13, 1943, following an investigation,
the Regional Director recommended that the Board direct a hearing on the
said objections Pursuant to an order of the Board and pursuant to notice
duly served on the parties a hearing was held on the said objections Upon
the record made at the hearing, the Board on June 9, 1943, set aside the election
held on June 19, 1943,3 because as set forth in the Board's Order, John H.
Odenbach, the president of the Company and certain of its foremen engaged in
the following anti-union conduct prior to the election :
The record discloses that on or about January 4, 1943, Angelo La Loggia,
an automatic operator, helper, and welder, and an advocate of unionization,
was told by his foreman, Walter Dick, "I understand you are doing a lot
of talking . . . If you like your job, leave things the way they aie" The
following day, La Loggia's card was missing from the rack When he
inquired of Schneider, the personnel director, the reason for its absence,
Schneider told him, "I have orders to let you go . . . You know more about
it than I do. You know what it is all about."
On January 9, subsequent to the discharge of La Loggia, the employees
of the Company held a meeting at which they decided to affiliate with
the AFL.
On or about January 11, Louis Hoffman, an automatic electric welder,
who had presided over the meeting of January 9, passed out application
cards during the lunch period in the lunchroom of the Company. That
evening his time card was missing from the rack. He asked Schneider
with regard to this and was told, "Go down to the company office . . .
and get your money." Roffman asked Schneider why he was discharged,
but received no answer. He had previously received a raise and had been
told by Walter Dick, his foreman, that his work was satisfactory.
Henry Cerrarr, an electric welder, testified that on or before January 11,
while talking to fellow employees during the lunch period concerning the
union, he was overheard by his foreman who later told him that if he
didn't stop talking "union" he would be laid off ; that about this time, John
H. Odenbach, the president of the Company, addressed the employees in
the lunchroom of the Company during their lunch period, told them that
he would not stand for any closed shop in his plant, and threatened to
inflict violence upon anyone agitating for a union; that in spite of this
Cerrarr continued to pass out application blanks and "talk union"; that
shortly thereafter, he became ill and was away from work ; and that during
this period, on or about January 15, he was discharged Cerrarr was re-
hired on February 17, and on or about February 24, was told by his fore-
man, Jack Brown, that "somebody said you were passing out union cards
and that is why you were laid off."
On or about March 11, a period midway between the issuance of the
Decision and Direction of Election herein, and the date set for the elec.
tion, a circular dated March 10, over the signature of John H. Odenbach,
2 47 N L R B 1261.
850N.L R B 371
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was distributed among the employees. The following is an excerpt from
this circular:
You do not have to belong to a Union or any other organization to,
work here, this plant is open-shop, and we will not permit any work-
man or other person to agitate or sabotage your work effort. We will
not permit any argument for or against the Union or any other or-
ganization during working hours Argument leads to strife and de-
stroys that free feeling toward each other. Let's avoid it. Discussion
of your problem or complaint can be taken up with your foreman or
supervisor and we are sure it can be adjusted to your satisfaction.
If you have any ideas as to how to improve our building ships faster-
let's have them.
Shortly after the distribution of this circular, Odenbach addressed the
employees repeating the statements contained therein.
The Company granted several of the welders an increase in pay which
was received by them in their pay envelopes on the pay day immediately
preceding the date of the election. Shortly thereafter, the foreman of the
welders, Walter Kazerowski, approached several of the welders and asked
at least one of them about his views with regard to the coming election.
He told Frank Quattrocchi, an employee active in the organizational drive
of the AFL, that he [Quattrocchi] "would be sticking [his] neck out for
only a dime raise."
On March 18, pursuant to notices previously posted, Odenbach, on Com-
pany time, addressed his employees, most of whom were welders, for about
20 minutes in the lunchroom of the Company. He told them that his at-
torney had checked the constitution of the AFL, and that the word "weld-
ers" did not appear therein He further told them that all complaints
should be taken up with the foremen. We find that this speech was cal-
culated and timed to influence the choice of the welders.
On March 19, the day of the election, Henry Deigmiller , a foreman, told
Cerrarr, "I would not vote for the union for only 60 cents an hour." On
the same day, Kazerowski and Nereau, another foreman, told Hyman Cohen,
in the presence of another employee, that the foremen would have to push
the men harder if the Union came in and that the men would be the losers
in the long run.
On July 27, 1943, a second election was held pursuant to the Board's Sec-
ond Supplemental Decision and Second Direction of Election issued in the case.
The Union lost the election and thereafter, no objections having been filed to
the Regional Director's Report on the second ordered election, which had been
duly served on all of the parties, or to the conduct of the election, the Board
dismissed the petition filed by the Union.
In May 1944. the Union renewed its efforts to organize the respondent's em-
ployees and received assistance from the International Association of Machinists
and* other labor organizations affiliated with the Metal Trades Department of
the American Federation of Libor As part of the campaign, Union organizers
invited the respondent's employees to attend meetings held at the Dutch Mill,
Rochester, New York, on June 22, and June 30, 1944, and at the Eagles Hall, also
in Rochester, on July 14, 1944 Handbills were distributed in front of the plant
by union organizers a few days before each of the above meetings. From 50 to
65 of the respondent's employees attended the first meeting and about 50 attended
each of the other two, including employees Louis Arieno, William Weiss, Edward
ODENBACH SHIPBUILDING CORPORATION 1037
Kring, James McVeigh and Clarence Frederick, one of the plant leadermen
Arieno and Weiss signed union cards at the first meeting
B The dischtrlyes
1. Louis Arteno
Arieno started to work in the yard on March 2, 1944 , as a welder at $110 an
hour. About a month later he received a wage increase to $1 20 an hour, the
top rate paid to welders . He testified without substantial contradiction that
there had been no criticism of his woik, but lie admitted that he had objected to
working on the inside of tanks on one occasion because the smoke and fumes
irritated his lungs. Following this complaint he was not assigned to tank weld-
ing for several weeks , but he thereafter was assigned to and was welding in
tanks on the last boat he worked of 6
As shown above Arieno attended the Iii St union meeting held dui ing the 1944
canilaign on June 22, 1944 , and signed a union caid on that occasion He testi-
fied that thereafter he solicited other employees to sign union cards on the
respondent ' s premises , but not on company time . When he stopped at the time
clock to check out of the plant on the night of June 30, his time car d was missing
from the rack Snyder and Dick were standing nearby and Snyder banded him
an envelope containing a check for his wages and a release . When At ieno asked
why lie had been discharged , Dick told him it was because he refused to work
on tank jobs
On the following day , according to Dick ' s testimony , Arlene returned to the yard
and told Dick that he did not believe D-ck had discharged him for refusing tc
work in the tanks, but because lie was `mixed up with the Union " Admittedly,
Di( k then replied:
All right , I will tell you why you were discharged You wei e keeping other
men from working You had left your job. The complaint came to me
that you were trying to sign these men up as union members .' . , , not only
that , you also refused to work in the tanks
In respect to the above conversation, Arieno testified without contradiction:
that at the time Dick also said , ' We are doing all right, here without the Union,
and we do not want them here " and asked him if he had any union literature on
his person ; that after Arteno then adinit red lie had joined the Union and attended
"Frederick, who had formerly been a newspaper reporter, took the floor and accused
some of the Union repiesentatites piesent of making false statements to the employees,
and thereafter actd-ely campaigned against the Union in the plant
° Walter Dick, the superintendent of the welding department, testified that when Aueno's
foreman, Frank Dummei, told him that Arieno complained about working in tanks lie told
Dumniel to assign Aueno to outside welding fobs, because there was a desperate shortago
of welders in the yard personnel Dnectoi Snyder admitted that the respondent was
adveitisnig for welders in the Rochester newspapers throughout the month of Silly and
part of August 1944
"Dick, at the hearine, refused to state the name of the employee who purportedly told
him that Arteno was keeping men from work, but lie further testified that a day or two befoi e
,4rieno was discharged, the respondent's piesident, John Odenbach, told him, "Walt, I
have noticed too many of the welders standing around They seem to be keeping other
amen from work' Odenbach gave no testimony and the record fails to show that he
sepi imanded an{ of the welders at the time for purported delinquencies In view of the
tact that the Union had list recently passed out handbills in front of the plant inviting
the employees to attend union meetings and the fact that the record clearly shows Oden-
bach' s anti-union bias , there can he little doubt that Odenbach was warning Dick to he on
the alert to stop any union activities among the welders
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings but denied engaging in union activities on company time, Dick said he
would check back on the report concerning Arieno's union activities, and asked
him to come back to see Dick in a few days; and that when Arieno returned to the
plant a,few days later Dick told him "the report was true, you will have to stay
out " From the foregoing it is clear that Arieno was summarily discharged
because he engaged in union activities. The record fails to show that he was in-
terrogated in respect to such activities or warned to desist from them before his
discharge Since the record also shows that there was a "desperate" shortage
of weldei s in the yard at the time, it is inconceivable to the undersigned that such
a drastic step should have been taken without a prior warning to Arieno unless it
was respondent's purpose to serve notice upon its employees that it was opposed
to the formation of the Union in the plant. In view of the anti-union bias of the
respondent's president and supervisors shown above by their utterances in the
section of this report entitled "Background" and further exemplified by their sub-
sequent and similar anti-union utterances discussed below, the undersigned con-
cludes and finds that the treatment accorded Arieno was part of and a continu-
ation' of a calculated plan to discourage union activities among its employees.
On all the above the undersigned concludes and finds that his discharge was
discriminatory. '
2. Edward G Kring
Kring was hired by Assistant Personnel Director Caswell in March 1944, as a
shipfitter . His starting rate was 90 cents an hour and it was raised to $1.00
about a week later . In six weeks , he received another raise to $110 an hour and
on or about July 1, when he asked Caswell for another raise, Caswell told him
that lie would soon be in line for one
He signed a union card in the latter part of May or early in June 1944, during
the initial stages of the Union ' s 1944 campaign. He admitted soliciting other
employees to sign union cards on the Company's property but denied that he
did so on company time He attended the first two meetings held by the Union
on June 22 and June 30, 1944. On the afternoon of July 14, 1944, he was called
to Caswell's office and at the time was told by Caswell that he, Caswell, was
sorry that he had to dischaige him for passing out union cards in the shipyard.'
Glenn Snyder , the respondent' s personnel director, testified in respect to Kring:
that he had received reports from some unidentified person or persons indicating
that Kring on occasions left the job to which he had been assigned to post union
literature on boats in the yard,' that on the clay Kring was discharged , Charles
Odenbach, the supervisor of the outfitting dock, and also the brother of Presi-
dent Odenbach , told Snyder , "we had better get rid of this man Kring We can't
keep track of him all day long ;" that after this conversation Snyder asked
Foreman William O'Brien, Kring ' s Foreman , for his opinion of Kring, where-
upon O ' Brien told him, Kring "had ability, but he could not keep track of him;"
° This finding is based upon firing's uncontiadicted testimony, for Caswell was not
called to testify. From his observation of Kring the undersigned concludes Kring to be
a truthful witness and he accordingly accepts his version of the statement made by Caswell
as true
8 In connection with posting literature on boats Snyder testified that it has been orally
announced at meetings and during meal periods in the plant that no saiitings or printed
niattei other than that posted by management on the iespondent's property was permitted
to be posted in the plant He furthei testified that the resident inspector of the United
States Army told Snyder that army regulations prohibited it and requested Snyder to post
notices in the plant regaiding the matter Snider was unable to state whether or not any
violation of the rule had been committed after lie posted written notices pursuant to that
request Krmg denied that he had ever posted anti-union literature on any. of the boats
in the yard and in view of the reason for his discharge stated by Caswell , his denial is
accepted by the undersigned as true.
ODENBACH SHIPBUILDING CORPORATION 1039
and that on his return to his office he told Caswell, his assistant, to give Kring
a release and his final pay check that night.' Kring had never been reprimanded
or interrogated by any supervisor in respect to the above alleged delinquencies,
prior to his discharge.
From the foregoing, it is clear that Kring was a competent employee and that
lie was summarily discharged without a warning or fair opportunity to refute
the charges against him, because the respondent believed that he had engaged
1n union activities in the yard The factual surroundings in connection with his
discharge are substantially similar to those in the case of Arieno. Accordingly
the undersigned concludes and finds that his discharge was discriminatory.
3 William Weiss
Weiss was hired as a welder on March 2, 1944. His starting wage was $1.10
an hour A few weeks later his foreman Frank Duiuniel told him his wages had
been increased to $120 the top rate for welders in the shipyard and he con-
tinued on this rate until he was discharged on July 17, 1944.
He attended the first union meeting on June 22, 1944, and signed a union card
of the meeting10 At the time lie requested Kessler, a union official to send him
a number of cards and after receiving them he kept a number of them in his lunch
pail During the noon hour he passed them out and solicited other employees to
sign,them and on his way out of the plant at night some of them returned signed
cards to him. Other employees also left signed cards in his automobile while it
was parked on the respondent's lot. His time card was missing from the rack
on the night of July 17, when he went there to check out and he told Snyder
who was standing nearby that he could not locate it Snyder asked him to step
into his office and then handed Weiss a release and his wages. He asked Snyder
why he was discharged and the latter replied that his work had been unsatis-
factory.
Dick, the welding superintendent, in substance, testified that he told Snyder
to discharge Weiss because the latter was an incompetent welder, and failed
to stay at work on the job assigned to him In his testimony, he admitted that
lie had slight personal knowledge in respect to the quality of Weiss' work ; that
lie relied on adverse oral reports made to him by Foremen Dunimel and Kozoroski,
neither of whom was called to give testimony ; " that there was a "desperate
shortage" of welders in the yard at the time of the discharge; and that ",with
the type of men we get today we do not expect any of them to be expert welders."
He further testified that he saw Weiss wandering ,wound. the yard frequently and
on some of these occasions told him to get back on his job, but he also admitted
"Neither Charles Odenbach nor Foieman O'Brien was called to testify
10 At this meeting, Clarence Fiedcrick, a plant leadeiman present, arose and stated
among other filings that some of the employees received higher wages than they earned.
Weiss then stood up and denied the accuracv of Fiederick.'s statement
11 In respect to these reports Dick, insubstance, testified that Welding Foremen Dnnunel
and Kozoioski both told him that Weiss was a "gold brick," in other aords, an employee
who seemmgl} kept busy iihile in reality lie was doing little work that Dununel told him
Weiss had failed to pass a vertical welding test it few days prior to the discharge; and
that a day of two before the discharge. Kozoroski told hint that Weiss had turned out
the poorest welding job on a bulkhead that Kozoroski hid e er seen Duniniel and Kozoroski
who ale presently working in a Floiida shipyard for a company affiliated with the respond-
ent were not called to testify Kozoroski's name variously appears as Kozorski, Kazoroski
of Koserkartz in the instant record. and also as Karerowski in the record of the eailrcr
representation proceedings in Case No R-4852, discussed above For purposes of clarifica-
tion lie will herein be called Kozoroski It is noted that in the findings above, made by
the Board in Case No 11-4852, Dick and Kozoioski during the Unions 1943 campaign
each threatened employees firth iepnsals if the plant rias organized
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had given similar admonitions to other employees , and the record fails
to show that any of them were discharged for such conduct.
Weiss admitted that Dummel on one occasion had reprimanded him for report-
ing late for work, and that he had turned out a poor welding job about 6 or 7
weeks before he was discharged, which Dummel had to make certain corrections
on but lie denied that he had been criticized for any other delinquencies prior
to his discharge . He also testified that Dummel had given him overhead and
vertical weldings tests in July shortly before his teummition and told him at
the time that lie had passed the tests. On his way out of the plant on July 17,
after he was discharged, lie met Kozoroski whom lie claimed wrongfully accused
him of doing poor welding on a boat that he had never worked on A few min-
utes later on the same night he met Plant Superintendent Archie Thompson and
complained to him about the discharge. According to the unrefnted testimony
of Weiss , Thompson, in substance, told Weiss • "I have no complaint about your
work" and said on several occasions he had obscri ed Weiss at work and thought
that the latter was as conscientious about his work as any of the employees ;
that if the reason for the discharge was for faulty work Thompson could do
something about it, but that his "hands were tied" if the discharge was for union
activities; and that Thompson then tool: down Weiss' name and address stating
that he would investigate the matter and notify Weiss if lie could reinstate him
Thereafter, Thompson failed to notify Weiss of his final decision, concerning the
matter After the above conversation with Thompson. Weiss proceeded to the
respondent's parking lot to get his automobile On opening the door lie leai tied
that some unidentified person had removed an envelope containing union cards
from under one of the seats of the automobile and scattered the cards on the
floor.12
From the foregoing, it clearly appean•a that the respondent voluntarily raised
Weiss' wages to the top rate paid to welders in its shipyard after giving him
a trial at welding for seteral weeks at a lower rate, this indicating that lie
was a reasonably competent welder according to the respondent's standard for
such work It also appears that Weiss was outstanding aunong the employees
for his union activities and that the respondent clean ly evinced a strong antipathy
to the Union." Although it is the respondent's contention that he was dis-
charged for poor work, the iecord shows that at the time of his discharge there
was a "desperate shortage" of welders in the yard; that expert welders were
unobtainable; and that he was never warned that his work was substandard
or told he would be discharged if the quality of his worn: did not improve More-
over, it is significant that Foremen Dummel and Kozoroski, the only supervisors
who were familiar with tits work, were not called to testify- concerning it On
all the above the undersigned concludes that the reasons advanced by the
respondent for his discharge were merely a pretext and that the motivating
reason for the dischaige was his activity on behalf of the Union
4. James McVeigh
McVeigh star ted to work in the yard in Miiv 1013, as a plumber ' s helper.
His bcginnung rate i, as SO cents an hour During the following i ear he received
three separate wage increases of 10 cents our hour and in the aping of 1044, he
12 It is noted that Weiss rave the only substantial direct testimony in the record respect-
ing his pork peifoimince and that it stands unrefined, for Duniel, Kozoroski and Thomp-
son were not called to testify Based upon hip obsei vation the undersigned concludes
Weiss to he a credible witness and accordingly lie accepts his version concerning his work
and the statements made to bun concerning it by Thompson as credible hid title
11 See footnote 6, supra
ODENBACH SHIPBUILDING CORPORATION 1041
was reclassified as a mechanic in the plumbing department. At this time his
wages were increased to $120 an hour, the top rate paid to mechanics in the
respondent's yard. He signed a union authorization card on May 27, 1944, and
thereafter attended all of the union organizing meetings At one of these
meetings held in July 1944, he and another employee were appointed co-chair-
men of a committee in charge of distributing and collecting union cards in the
yard" In connection with the current organizing campaign, a petition, alleg-
ing that a question had arisen concerning the representation of employees of
Odenbach Shipbuilding Corporation (the respondent herein) was duly filed
by Metal Trades Department, A F. of L., on August 24, 1944, in Case No. 3-R-867.16
At a hearing on the said petition, held at Rochester, New York, on September 18
and 19, 1944, McVeigh was called as a witness for the Union and gale testimony
in support of the Union's contention that plant leaderrnen were supervisory
employees Thereafter, on October 13, 1944, McVeigh was discharged after the
following conversation with his foreman, Ivan Cast, in the plumbing shop :
When I got there my pipe foreman said "I want to see you a minute." I
said "0 K." He walked over to a fitting bench and stood there and had some
papers in his ]rand. He looked at the pipers and then looked at me and I
was looking at Trim, smiling. He was trying to tell me something and could
not get it off his chest. He Said "Wait a minute, Jimmie, I will be right
back." So I stood around there for a while, and lie went, and then I went
and got this piece of pipe and the fitting. I was at the pipe machine and
he called me over to the office When T walked into the office the expediter
.ind bookkeeper who were wet king in the othce got up and walked out and then
Mr. Cast walked over ' There were two deaka in his office. He walked over
to one desk, looking down at the desk and looking over at me, and I looked
back at him, and smiled. He walked over to another desk and put his elbows
rip there and said "God damn it, Jimmie, have a cigarette," and then offered,
me a cigarette. I said "Never mind the cigarette, let's have it. When I
say `Let's have it', I mean get it off your chest, whatever it is " Mr. Cast
said, "I am sorry. Jimmie, they told me to let you go," and I said "For what?"
Q Did he say who they were?
A No, lie lust said "They said to let you go." I presume it was his boss
or the management. I said "What am I laid off for T' "Well," he said, "I
hate to see you go." I said "What am I let out for?" and he said "They told
me you were haugiarq around, the canteen too inztich.10 so that sort of burned
me up. I said "I will tell you why I war let go, that is not the reason The
reason for my being let go at this time is because I hive been active in
Union activities", and I said "Remember September 18th, in the afternoon
when I laid off at noontime?" and lie said "Yes " I said "The National
Labor Relations Board had a hearing at the curt house and I went up and
testified at that hearing that leaders, or whatever else you want to call
them were assistant foremen." I didn't care for John Odenbach or anybody
else, they were still assistant foremen to me And I said "That is the
14 It was common knowledge among the employees that lie held this position and many
of them time to McVeigh in the yard to get union cards to sign before his discharge on
October 13 McVeigh and his fellow committeeman handed in about 150 signed cards
to union officials.
15 Matter of Odenbach Shipbuilding Corporation and Dtetal 7'radeu flepai tin emit, 4 F L
58 1 L R B 1117 It is noted that the Union herein as one of the affiliates of the Metal
Trades Department of the American Federation of Labor participated as a party in the
above representation proceedings.
16 Italics supplied
670417-40-vol 64-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason", and he said "I don't know anything' about that." He said "You
have been active at Union activities, and I know that "" I said "Yes, I
believe in Union activities, and I would like to See the Union come into this
place " "Well," I said, "that is all I have got to sa} Whege do I get my
money and release?" He said "You ;to offer to the office" So I went over to
the office and Mr Caswell was in the office and I said "I am McVeigh", and he
said "0. K. McVeigh here is your release and pay," both in an envelope
already waiting for me." Snyder, in substanm claimed that he decided to
discharge McVeigh because of adverse reports previously received from
Foreman Cast concerning MeVeigh's conduct and also because McVeigh had
spent 40 minutes in the plant canteen on the nwuunac of October 13
In respect to the reports purportedly received from Cast, they were pim arily
based upon the fact that on occasions NLcVeigli ctould indulge in intoxicating
liquor when lie left the yard at noon diking the lunch horn Admittedly McVeigh
occasionally drank intoxicating liquor, for he testified that on one occasion about
tiro months before his dischaige he returned from lunch atier overly Indulging
fn liquor and cell asleep on the dock in the yard: that on the following morning
Cast reprimanded him for it; that at the time lie promised Cast that it would not
happen again, and said it has not happened anice that tune 10 He also admitted
that about 2 weeks prior to hit dischai ce lie fell asleep in a cabin on one of
the boats Snydei testified: that when Cast reported this last incident to him,
Cast recommended that McVeigh be discharged, that he, Snyder advised against
it be! ause l\leVeigli had iecentls testified for the Union in the i epresentation case
mentioned above and teased the discharge nvhht be regarded as an untair labor
practice; and that at the tine, "l told hini to use evory possible means to keel)
Jimmy (McVeighl on the job."
Despite his above admonition to Cum Si. vkheii Siivder saw llcVeigl1 go into the
canteen about 9:55 o'clock shortly before the lU o'cioth whistle ble«, on the
morning of October 13. he asked Cast to cone to Isis othee to check on McVeigh's
presence in the canteen and said they both "Nvatched" McVeigh and learned that
lie remained there until 10.3.5 o'clock After McVeigh left the canteen, Snyder
said. "I told Mr Cast that I was ifrnid that iii spite of ,that 1 had told him
previously that we have to let Ali INIcVeitch go. because other men were taking
him as an example and pointing him out to nie. when T tried to get them out
of the canteen" -1%IcVeigh. in substance, testified: that he may have stayed over
15 minutes in the canteen on one or two occasions, but at no tune remained there
over half an hour: that lie was never reprimanded for remaining there over the
allotted 15 minutes: that lie had no recollection as to whether or not he visited
the i nuteen on the day lie was discharged , ,mid that lie only visited the canteen
5 or 6 times during the morning rest period. because lie usually stays at his
"Italic,, 1,11 pplied
18(`.ist, who rs presrulit enrplotoil Ili the F]oud.i Shipyard mentioned above was not
called to Itshf•- Ind other than McVeigh s I'stimoriv above theie is no other evidence in
the record pertaining to this incident From his observation of McVeigh on the witness
,,land together with it consideration of all of the evidence, the undersigned concludes
that McVeigh,, version of file ahotit conversation with Cast is credible and he finds It to
he true
19 ire also to't,If!I'd, R ithoI It f onti 1411( lion. that oil occasions when a number of boats
Wert' launched at the v,nd on the same dav. the respondent gave parties to the employees
Ilk the plant r,inteen at hit ii liquor war served free by the respondent
'01at h snot ring about one-half of the sinplovees are given a rest period from 10 to 10 - 15
o'clock and the other half it nuiiam rest period fioni 10 15 to 10 30 o'clock. During
tilt' e 18' tort,, t'urlilotee,, nisi vi,it the eamitten to purchase refreshments The Company
had posrod ,,ign,, rn flit' pl:nit 1(i respect to observInc a 15 minute rest period and Snyder
testified that lie had reprimanded many employees tar its ring over the allotted 15 minutes
period in the tantieu 'l'ilt' relortl tangs to chow that Snyder reprimanded McVeigh for
(iter,tatnig ]its rest penrnl nit tho' or on ant previous occasion
ODENBACH SHIPBUILDING CORPORATION 1043
place of work at that time to eat . part of his lunch Employee Frank Jordan.
McVeigh's helper, on his direct examination testified that lie and McVeigh ate
part of their lunch on one of, the boats in the yard at 10 o'clock on the morning
of October 13, but he also admitted during his cross -examination that on occa-
sions while lie and McVeigh were working on a boat, McVeigh sometimes left
the job to get materials and on those occasions lie did not know where McVeigh
had gone. In view of McVeigh 's iailu'e to deny that he was in the canteen on
that morning and bec ,>puse Snyder ' s detailed version of the canteen incident on
October 13 is more likely to be credible than Jordan ' s above version , he accepts
Snyder 's above testimony in respect to McVeigh's visit to the canteen on this
nroining as credible and true
in view of the fact that the iecoid show-: McVeigli had received numerous
wage increases and a promotion front his job as plumber 's helper to one as
a plumbing mechanic during his comparati vely long tenure as all employee, the
undersigned concludes and finds that lie was a competent woikmaii Conse-
quently it is improbable that the respondent would have summarily discharged
him for overstaying his allotted rest period in the plant canteen on October 13
absent a prior reprimand or wauung , especially in view of the further fact that
many other employees were also guild of overstaying their allotted time in the
plant canteen without being subjected to snnilar , treatment Although the record
also shows that lie had been reprinvi nded by his foreman for reporting for work
on occasions while under influence of intoxicntnig beverages , lie was not dis-
chaiged at the time tliee deiuigneicies occur red a nd the record shows that
these lapses from satistactoi ^ d ondnc 1. it cheer had been condoned . Further-
more, Since the iecoid convinciug h shows that the respondent had a strong
antipathy to the Union and had knowledge that McVeigh was outstanding as a
union adherent among its employees , it becomes apparent why the respondent
should seek a pretext to dischaige him during the height of the Union 's organi-
zati onal campaign in its plant On-all the above and all of the other evidence
in the record , the undersigned concludes and finds that McVeigh was discrimina-
toril3 discharged because of his activities on behalf of the Union.
By the discharge of Louis Arieio . Edward G Tiring, 1Villian Weiss, and
Junes McVeigh and its subsequent iefisal to rehire them , the respondent has
discriinnated in regard to then - hue and tenuie of employment and dis-
couraged membership in a labor oig:niization and by these acts and by its
anti-union expressions in connection therewith. the respondent has interfered
with, restrained , and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act
C Intei/eicvicm, iratiaia-t. died Cocicaon
I The activities of Leaderman Clarence Frederick
The respondent contends : it is not responsible for the activities of Frederick
because the Board in its Decision and Direction of Election in Case No. 3-R-867,
above mentioned, held that gang leaders should be included in the unit of pro-
duction and maintenance employees found to be appropriate for the reason that
they lack authority to make effective recommendations concerning wage in-
creases."
The instant record shows that Frederick is under the immediate supervision of
John Odenbach, Jr, the son of the respondent's president, and the assistant plant
manager rather than under the supervision of a departmental foreman as are
gang leaders generally; that lie is a specialist in charge of all crane opetations
=There is no evidence in that record concerning the duties or status of Frederick in
the plant.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who exercises his independent judgment in making up special slings to lift heavy
loads and personally directs the operations when such loads are handled; and
that customarily he makes effective recommendations for woge increases for the
men on the crews engaged in the crane operations." Frederick is paid $1.52 an
hour, the same wages paid to foremen in the plant, and according to Personnel
Director Snyder, Frederick is regarded by the respondent as a "premium man." 22
From the foregoing, the undersigned concludes and finds that the employees had
reasonable grounds to regard Frederick as a representative of management.
Furthermore, in view of the fact that Frederick can make effective recommenda-
tions in respect to wage increases for employees working under him on the crane
crews, he finds that Frederick does not fall within the category of gong leaders
who were included in the unit found by the Board to constitute an appropriate
collective bargaining unit in the said representation case.2i
Admittedly Frederick attended the first organizational meeting of the Union
held on June 22, 1944, and at the meeting accused one of the union representatives
present of making false statements concerning the respondent's policies to the
employees present. Thereafter, Frederick, who had formerly been a newspaper
reporter, prepared copy for three anti-union circulars.25 On July 10, 1944, he
ordered 1,500 mimeographed copies of the first circular at the printing establish-
ment of the Acme Advertising Company in Rochester, New York, and thereafter
on August 4 and October 28, 1944, ordered the Acme Company to turn out a simi-
lar number of copies of the second and third circulars. The record shows that a
day or two after he placed each Of the above orders he took time off from work
to call for the said circulars. At noon on July 12, he asked employee Joseph
McAuliff. one of the "hook-on" men working under Frederick, to request some of
the other employees to help Frederick pass out the first of the above-mentioned
22 Presently there are three overhead cranes in service at the yard. Each crane crew
consists of the crane operator and two "hook on" men Crane Operator James Creighton
testified without contradiction that on one occasion when he asked John Odenbach, Jr., for
permission to iemain away from work Odenbach granted his request, but told him in the
future lie should take up such matters with Frederick because the latter was in charge
of the crane operations Creighton further testified without refutation that subsequently
he asked Frederick for a wage increase and shortly thereafter he received it. Employee
Charles Eckelberger, a hook-on man, testified without contradiction that on four occasions
after lie went to Frederick to ask him for a wage increase, he received an increase on
each occasion shortly after making such requests to Frederick. Frank Barone, also a
hook-on man, testified without contradiction that he received a wage increase after
asking Frederick for one, and that on occasions when he wanted to be excused from work,
he always went to Frederick to get the latter's approval.
23 It also appears from Snyder's testimony that Frederick's high wages are due to the
fact that he engaged in high rigging work on occasions, but Snyder also admitted that
presently there is little high rigging work required. Ordinary leadermen received $1.32
an hour.
24 Frederick's vote was challenged at the election held on November 3, 1944 pursuant
to a Board's order in Case No. 3-R-867 (58 N. L. R. B 1117) which the Union lost.
No rulings were thereafter Ynade in respect to challenged ballots by the Regional Director,
because there were not a sufficient number of them to affect the result of the election.
25 The first circular stated, inter aria: "the Union wants to collect $36,000 a year from the
employees, do not let the high salaried rabel rousing racketeers get any part of your money."
The second contained the following statements. "when Union Organizers are out In front
of the yard trying to spread discontent, look them over. You won't find a welder or a burner
ci a [fitter] or even a working man [among then]. All you will see is a bunch of guys
who live off the labor of other people. You don't have to pay tribute to anyone for the right
to earn an honest living. Thiow them out and keep them out." The third, in part, reads
as follows. "Think of your `Incentive Bonus,' that has given you.,thousands of dollars in
addition to your pay. Your freedom of movement in the yard Your unlimited rest periods
[In connection with this last statement, it is noted that McVeigh was discharged for over-
staying his rest period in the plant canteen, as shown above.] The company gave us all
this Don't take a chance of losing it by letting outsiders gain control. VOTE NO."
All of the above handbills were purportedly signed by the "Employees' Committee " Ac-
cording to Frederick's testimony, he was the only member of the alleged committee.
ODENBACH SHIPBUILDING CORPORATION 1045
circulars on that same afternoon. Pursuant to this request, McAuliff and sev-
eral of the other employees met Frederick at his automobile, which was parked
near the plant, later on that same afternoon and were handed a supply of the
circulars to pass out to the employees when they were leaving the plant at 6
o'clock on that afternoon At the same time a group of union representatives
were also passing out circulars for the Union The time cards of Frederick, em-
ployees Clifford Everts, It. McLaughlin, and Gordon Mapes, all of whom helped
Frederick pass out the circulars on this day, show that Frederick checked out of
the plant at 5, 45 o'clock and that Evei ts, McLaughlin, and Mapes checked out at
5 50 o'clock on that afternoon 26 The record fails to show that the respondent
reprimanded any of the above-named employees for leaving their work early
Subsequently, similar groups of employees passed out the other two anti-union
circulars prepai ed by Fi edei icks, but the record fails to show whether or not the
employees left their work early in order to help distribute them. Frederick
also admitted in his testimony : that a few nights before November 3, 1944, the
(late of the last election held at the plant, he hired a hall, located it short distance
from the plant, to hold an anti-union ineeting in; that the meeting was attended
by about 200 of the employees : that in a talk he made. he outlined the matters
discussed in the three anti-union circulars he had previously caused to be passed
out; and that at the close of the meeting he served free beer to those present.
2. Discrimination in respect to the distribution of circulars on July 12, 1944
The respondent's property is located in a sparsely settled section of a suburb
of the city of Rochester, New York 1 t has a frontage of about 500 feet on Dewey
Avenue, a main highway leading into Rochester. The plant buildings lie behind
a fence which on the Dewey Avenue side sets back about 500 feet from the high-
way The only entrance or exit for the employees working in the-plant is through
it watchmen's gate in the fence facing Dewey Avenue The respondent maintains
it parking lot on its property between the said fence and Dewey Avenue and about
90 percent of the employees drive to and from work and park their automobiles
on this lot Two driveways known as the Upper and Lower roads serve as a
means of ingress and egress from the parking lot to Dewey Avenue. The Upper
road carries most of the trathc because it is closer to Rochester. Approximately
25 feet before the said Upper road reaches Dewey Avenue it branches off into
a Y and the automobiles, leaving the lot use both arms of the Y fork in order to
make it turn into Dewey Avenue.
As mentioned above, it group of union representatives and the so-called
Frederick group each distributed circulars in front of the plant on the late after-
noon of July 12. On this occasion the members of the Frederick group passed
out substantially all of their circulars on that part of the respondent's property
which extended from Dewey Avenue to the plant fence. Several of them were
stationed along the Upper driveway behind the point where it branched out into
two ways at the Y fork above mentioned On this occasion, when the Union's
distributors stepped over the respondent's properly line at Dewey Avenue, they
were ordered-to get back on Dewey Avenue by one of the plant guards 2° As a
26 According to the testimony of Leadernian Frank Spoto, which was not refuted , all em-
ployees including leadermen are required to apply at the plant office for a pass on occasions
when they wish to have the plant during working hours. On July 12, the quiting time was
6 o clock
27 Sn^ der gave the following testimony respecting this incident
Q On the night in question when the Union sought to distribute leaflets, you in-
stincted'tlie guards to keep them outside that puking lot. That is what you meant,
is it not"
A. That is right.
Q. Out of the driveways and to keep them on the road?
A. That is right.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequence, the union distributors were forced to take positions at the inter-
sections of the plant driveways with Dewey Avenue. In view of the through
traffic on Dewey Avenue and the stream of automobiles turning into Dewey
Avenue from the parking lot it is obvious that the distributors for the Union
would be unable to make as effective a distribution of the circulars as that made
by the anti-union group After both groups had completed their work on this
occasion, Loretta Gordon, one of the union representatives, walked over to the
Frederick group and asked them why they were working against the Union.
Frederick, thereupon, in substance, stated in a loud voice: the union representa-
tives were rabble rousers and racketeers, and then said, "Why don't you go and get
a job and earn an honest living, and why donut you go back where you came from."
3. Anti-union statements and conduct of John Odenbach
At noon on Wednesday, November 1, 1944, 2 days before an election was held
in the plant pursuant to a Board's Oi der in Case No 3-RS67, 8 the respondent an-
nounced over the loud speaker system that bonus checks and Army and Navy
E-10 pins would be distributed to the employees in the plant cafeteria at 4
o'clock that afternoon At the meeting, John Odenbach, the respondent's presi-
dent, spoke to the employees present. After telling them that the Army and
Navy E-10 pins were awarded to show appreciation for their good workmanship
and production efforts, he further stated : "We are having an election Friday."
"1 want everybody to be here and vote" "I want to know how I stand, whether it
is nae or the Union " RD [Italics supplied]
Following Odenbach's speech the employees left the cafeteria to watch the
launching of some boats in the yard and later returned to the cafeteria for the
distribution of the bonus checks, the Army and Navy E-10 pins and for free
refreshments. The bonus checks were for the largest amounts ever received by
the employees and according to Fanelli's testimony which was not substantially
contradicted, these checks for some months previously had always been handed
out on Fridays.
The election was duly held on Friday, November 3, 1944 The Tally of Ballots
indicates that 290 votes were cast for the Metal Trades Department, A F of L.,
.509 votes against it. and that 55 votes were challenged.
About noon on Saturday. November 4, President Odenbach stated over the
loud speaker system in the plant : "500 voted for me and 290 voted for the
Union," and then said that refreshments for the employees won](] be served in
the cafeteria at 4: 30 o'clock that afternoon 30
Upon the foregoing facts and on all of the evidence in the record the under-
signed concludes and finds that the respondent has interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act; by such of the acts and utterances of Walter Dick, Clarence Frederick,
Glenn Snyder and John Odenbach detailed above as occurred after May 1, 1944:
by interrogating its employees respecting their union activities; by causing and
permitting the distribution of statements to its employees designed to discourage
membership in the Union ; by sponsoring and supporting a campaign designed
to discourage membership in the Union; by disparaging the Union in conversation
with and speeches to its employees ; by discriminatorily refusing to permit the
29 See note 15 , supra
2D The above findings are based on the testimony of Jacob Fanelli, which stands unre-
futed Although Personnel Director Snyder testified in respect to the incident and corrobo-
rated Fanelli's testimony in part, he failed to deny that Odenbach, made the statements
attributed to him above by Fanelli, and Odenbach gave no testimony at the hearing.
"This finding is based on the unrefuted testimony of Fanelli which the undersigned
accepts as being credible and true
ODENBACH SHIPBUILDING CORPORATION 1047
Union to distribute circulars on its property : and by discharging and refusing to
reinstate Louis Arieno, Edward G Kring, William Weiss, and James McVeigh.
IV. THE EF FECT OF THE UNFAIR I ABOII PRACTICES UPON COMMERCE
It is found that the activities of the respondent set forth in Section III, above,
occurring in connection wit Ii the operations of the respondent described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It having also been found that the respondent discharged Louis Arieno,
Edward G. Kring, William Weiss, and James McVeigh for the reason that they.
engaged in concerted activities and joined and assisted labor organizations for
the purposes of collective bargaining and other mutual aid and protection. It will
be recommended that the respondent offer Arieno. Kring, Weiss, and McVeigh
immediate and full reinstatement to their foimer or substantially equivalent
positions without prejudice to their seniority or other rights and privileges they
may have. It will he further recommended that the respondent make Arieno,
Kring, Weiss, and McVeigh whole for any loss of pay they may have suffered
by reason of their discriminatory discharges by payment to them of- a sum of
money equal to the amount which they would have earned as wages from the
dates of their respective discharges to the date of the respondent's offer of rein-
statement, less their net earnings a' during said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned snakes the following :
CONCLUSIONS OF LAW
1 International Biotheihood of Boilermakeis, lion Shipbuilders and Helpers
of America, in affiliate of the American Federation of Labor, is a labor organi-
zat ion within the meaning of Section 2 (5) of the Act
2. By discriminating in regard to the hire and tenure of employment of
Louis Arieno, Edward C Kring, William Weiss and James McVeigh, thereby
discouraging membership in a labor oiganization, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section & (3)
of the Act.
3 By interfering with, restra ini rig, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
n By "net earning.," is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not has e been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Saiomill Worteie Union, Local 2590, 8 N. L. R. B. 440. Monies re-
ceived for work performed upon Federal, State county, municipal , or other work-relief
projects shall be considered as earnin gs See Republic Steel Corporation v. N. L. R. B.,
311 U 8 7.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the un-
dersigned recommends that the respondent, Odenbach Shipbuilding Corpora-
tion, Greece, New York, and its officers, agents, successors, and assigns shall.
1 Cease and desist from :
(a) Discouraging membership in any labor organization of its employees
by discharging or refusing to reinstate any of its employees or by discriminating
in any other manner in regard to the hire and tenure of employment or any
term or conditon of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercising of the rights to self-organization, to form, join or
assist International Brotherhood of Boilermakers and Helpers of America. an
affiliate of the American Federation of Labor, or r any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer Louis Arieno, Edward G. Kring, William Weiss, and James McVeigh
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other mutual rights and
privileges ;
(b) Make whole Louis Arieno, Edward G. Kring, William Weiss, and James
McVeigh for any loss of pay they may have suffered by reason of the respond-
ent's discrimination against them, by payment to them of a sum of money equal
to the amount which they normally would have earned as wages during the
period from the respective dates of their discharges to the date of the re-
spondent's offer of reinstatement, less their net earnings 32 during such period
(c) Post at its plant at Greece, New York, copies of the notice attached hereto,
marked "Appendix A." Copies of the said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are customarily
posted Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) File with the Regional Director for the Third Region on or before ten
(10) clays from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
It is further recommended that, unless on or before ten (10) days from
the receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3. as amended, effective July 12, 1944, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations file with the Board. Rochambeau
Building, Washington, D C, an original and four copies of a statement in writ-
82 See footnote 31, earpra.
ODENBACH SHIPBUILDING CORPORATION 1049
ing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in sup-
port thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the paity or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire peimission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
HENRY J. KENT,
Trial Examiner.
Dated May 11, 1945.
NLRB 577
(9-1-44)
"APPENDIX A"
NOTICE To ALL EMPLOYEES
Pursuant to Recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, 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,
to join or assist International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers (A. F. of L.) or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection.
We will offer to the employees named below immediate and full rginstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Louis Arieno, Edward G. Bring, William Weiss, James McVeigh.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
ODENRACH SHrraul DING CORPORATION,
Employer
Dated-------------------- By----------------------------------------
(Representative) (Title)
NoTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material