Paramount Textile Machinery Co.

National Labor Relations Board - Board Decisions

Dec 28, 1951

97 N.L.R.B. 691 (N.L.R.B. 1951)

PARAMOUNT TEXTILE MACHINERY CO . 691'.
2. By assisting and supporting The Standard Transformer Workers, Inc.,..
and by interfering with its administration, the Respondent has engaged in and-
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
3. All production and maintenance employees of the Respondent employed.
at its Warren, Ohio, plant, excluding office and clerical employees, professional
employees, guards, and supervisors as defined in the Act, constitute a unit appro
priate for the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
4. International Union of Electrical, Radio & Machine, Workers, CIO, was
on October 31, 1950, and at all times thereafter has been, and now is, the exclu-
sive representative of the Respondent's employees in such unit for the purposes
of collective bargaining, within the meaning of Section 9 (a) of the Act.
5. By refusing on November 2, 1950, and at all times thereafter, to bargain
collectively with International Union of Electrical, Radio & Machine Workers,
CIO, as the exclusive representative of its employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within.
the meaning of Section 8 (a) (5) of the Act.
6. By the above conduct, and by otherwise interfering with, restraining, and'.
coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging in unfair labor.
practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
8. By paying a bonus to its employees in June 1950, the Respondent did not:
violate the Act.
[Recommended Order omitted from publication in this volume.]
PARAMOUNT TEXTILE MACHINERY Co. and TEXTILE WORKERS UNION
OF. AMERICA, CIO. Case No. 13-CA-555. December 28, 1951
Decision and Order
On July 30,195 1, Trial Examiner Horace A. Ruckel issued his Inter-
mediate 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. The Trial Examiner further found that the
Respondent had not committed another unfair labor practice and rec-
onlmended that that allegation of the complaint be dismissed. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief; the General Counsel filed a statement in support.
of, and a statement of exceptions to, the Intermediate Report, and a
supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,,
and Styles].
97 NLRP, No. 104.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the supporting statement, exceptions and briefs, and
the entire record in the case, and hereby adopts the findings ,2 conclu-
sions, and recommendations 3 of the Trial Examiner, with the follow-
ing additions and modifications.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent has violated Section 8 (a) (1) of the Act. In so finding,
we rely on the following conduct of the Respondent found to be un-
lawful by the Trial Examiner :
(a) Foreman Rogers' statement to employee Willett that the Re-
spondent would have plenty of work if the Union lost the election but
that Willett could not be guaranteed any work should the Union win
the election.
(b) Foreman Rogers' implied threat, by his circulation among the
employees of the magazine article referred to in the Intermediate Re-
port, that if the Union were successful in organizing the employees, the
Respondent would close the plant and move elsewhere.
(c) President Pope's statement to employee Rainbolt that if the
Union had won the election, Rainbolt would probably have been out
of a job.
2. The Trial Examiner found that although the timing was "per-
haps suspicious," the Respondent had not violated Section 8 (a) (1)
of the Act by its wage increases granted between February and June,
1950. We find merit in the General Counsel's exception to this finding.
On November 15, 1949, an election was conducted among the Re-
spondent's employees, which the Union lost. Following objections
by the Union, a hearing was held, pursuant to Board order of January
5, 1950, on February 23, 1950, and the hearing officer issued his report
recommending that the election be set aside on April 19, 1950. The
election was set aside on June 9, 1950, and a second election was held
on July 17, 1950, which the Union also lost.
The increases in question, averaging slightly more than 5 cents
per hour, were granted to approximately 122' employees, between the
time the hearing on objections was ordered and the date of the second
election. In seeking to justify these increases, the Respondent as-
serts that they were given (1) to make up for increases which had not
2 The Intermediate Report contains certain minor Inadvertences which do not affect the
Trial Examiner 's ultimate conclusions , or our agreement therewith . It is noted in this
connection that the correct spelling of the name of the Respondent 's plant superintendent
is Dlittelstadt ; and that the union campaign at the Respondent 's plant began in Sep-
tember, not October 1949.
8 The Trial Examiner, although he included a provision for back pay to James Sage
I. the remedy section of his report , inadvertently omitted such a provision from his
recommended order.
'The number of increases was inadvertently stated by the Trial Examiner to be 113,
rather than 122.
PARAMOUNT TEXTILE MACHINERY CO. 693
been granted in the preceding fall, and (2) to raise Respondent' s rates
to those prevailing in the area.
With respect to (1), it is sufficient to note that wage increases were
customarily granted by the Respondent in the fall of the year, and
the Respondent's own records show that substantial increases were in
fact made in the fall of 1949, in accordance with the Respondent's
usual practice. There is thus no persuasive support in the record for
the contention that the increases in question were in lieu of normal
increases not made.5 Rather it is clear that they were in addition to
the usual increases.
With respect to the Respondent's second contention, namely that the
purpose of its increases in the first part of 1950 was also to bring its
rates tip to those prevalent in the area, we find it too, without merit.
As already mentioned, these increases were made between the time
of the hearing on objections to the first election and the conduct of
the second election, and at a time other than customarily utilized by
the Respondent for granting wage increases. Moreover, it appears
that the promise to pay going rates was initially made by the Re-
spondent shortly before the first election and was one of the very
reasons relied on by the hearing officer for recommending that the
first election be set aside. No exceptions were taken to that report
and recommendation. Yet the Respondent proceeded to effectuate
that promise by the increases here in question, the majority of which
were made after the hearing officer's report finding the promise to be
improper and shortly before the second election.
Under all these circumstances, we believe that the granting of the
increases was calculated to affect the employees' decision on the issue
of union representation by emphasizing that there was no need for a
collective bargaining representative.6 We therefore find, contrary
to the Trial Examiner, that the granting of the increases in the first
part of 1950 was violative of Section 8 (a) (1) of the Act .7
3. For the reasons fully set forth in the Intermediate Report, we
agree with the finding of the Trial Examiner that the discharge of
"Indeed , in the prior representation proceeding involving these patties ( Case No. 13-RC-
941), the granting of increases in late 1949 was urged by the Union as one of the grounds
for setting aside the first election , and the Respondent did not , in that case , seriously
controvert that increases had been made, but argued rather that they were in accord
with its usual practice. After the Board-ordered hearing, the hearing officer found that
the 1949 increases had in fact been made in accord with the Respondent's practice, and
no exceptions were taken to this finding See Paramount Textile Machinery Co., 90
NLRB No 40 ( not reported in printed volumes of Board decisions)
Although the intormation above referred to is not part of the record herein, it is part
of the record in the prior proceeding before the Board, of which we hereby take judicial
notice See J . S. Abercrombie Company , 83 NLRB 524 , petition to set aside order denied,
180 F. 2d 578 (C A. 5). _
6 Macon Textiles, Inc , 80 NLRB 1525.
7 Cf M H Ritzwoller v. N. L. R. B , 114 F. 2d 432 (C A. 7) ; Western Cartridge Co v:
N. L R B, 134 F. 2d 240 (C. A. 7); Joy Silk Mills v. N. L it. B., 185 F. 2d 732
(C. A.n C)
986209-52-vol 97--45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
;James Sage by the Respondent, with knowledge of the antiunion
motivation of the employees seeking the discharge, was violative of
Section 8 (a) (3) and 8 (a) (1) of the Act. -
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
.Board hereby orders that the Respondent, Paramount Textile Ma-
chinery Co., Kankakee, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Threatening that it would have plenty of work if the Union
were defeated, but that it could not guarantee any work if Textile
Workers Union of America, CIO, or any other labor organization, is
chosen as the exclusive bargaining representative of its employees.
(b) Threatening to close its plant, or to move it elsewhere if the
above-named labor organization, or any other labor organization, is
chosen as the exclusive bargaining representative of its employees.
(c) Threatening employees that they might be without jobs if the
above-named labor organization, or any other.labor organization, is
chosen as the exclusive bargaining representative.
(d) Granting benefits to employees to cause them to refrain from
joining, or to abandon membership in, Textile Workers Union of
America, CIO, or any other labor organization.
(e) Discouraging membership in Textile Workers Union of Amer-
ica, CIO, or any other labor organization of its employees, by dis-
charging any of them or by discriminating in any other manner in
regard to hire or tenure of employment or any term or condition of
employment.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Textile Workers Union of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to James Sage full and immediate reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges..
PARAMOUNT TEXTILE MACHINERY CO. 695
(b) Make James Sage whole in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due.
(d) Post at its plant in Kankakee, Illinois, copies of the notice
attached hereto and marked "Appendix A." 8 Copies of said notice, to
be furnished by the Regional Director for the Thirteenth Region, after
having been duly signed by representatives of the Respondent, shall
be posted by it immediately upon receipt thereof, and be maintained
by it for a period of at least 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 Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten that we would have plenty of work if the
union were defeated, but that we could not guarantee any work if
TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor
organization, is chosen as the exclusive bargaining representa-
tive of our employees.
WE WILL NOT threaten to close our plant, or to move it elsewhere,
if the above-named labor organization, or any other labor organi-
zation, is chosen as the exclusive bargaining representative of our
employees.
WE WILL NOT threaten that employees may be without jobs if
the above-named labor organization, or any other labor organiza-
tion, is chosen as the exclusive bargaining representative of our
employees.
WE WILL NOT grant benefits to employees to cause them to re-
frain from joining, or to abandon membership in, TEXTILE WORK-
ERS UNION OF AMERICA, CIO, or any other labor organization. ,
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the cords "A Decision and Order," the words
"A Decree of the United States Court of Appeals Enforcing 11
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization of our
employees, by discharging any of them or by discriminating in
any other manner in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collec-
tively bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to James Sage immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges, and make him
whole for any loss of pay suffered as a result of the discrimination
against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
PARAMOUNT TEXTILE MACHINERY CO.,
Employer.
Dated------------------- By--------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a first amended charge filed on July 20, 1950, by Textile Workers Union
of America , CIO, herein called the Union, the General Counsel of the National
'Labor Relations Board , herein called respectively the General Counsel and the
Board , by the Regional Director for the Thirteenth Region ( Chicago, Illinois),
issued his complaint dated April 4, 1951, against Paramount Textile Machinery
Company, at Kankakee , Illinois, herein called Respondent , alleging that Respond-
ent had engaged in and was engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8 ( a) (1) and ( 3) and Section 2 (13)
and (7 ) of the National Labor Relations Act, as amended, 61 Stat 136 , herein
called the Act. A copy of the charge, the complaint , and a notice of hearing
were duly served upon Respondent and the Union.
PARAMOUNT TEXTILE MACHINERY CO. 697
With respect to the unfair labor practices the complaint alleged in substance
that Respondent: (1) In about December 1950 and January 1951 questioned
employees concerning specific union activities in which they had engaged, on or
about November 14, 1949, threatened to move its plant if the employees selected
the Union as their bargaining agent, on or about November 18, 1049, and April
21, 1950, threatened to close the plant under such conditions, and shortly prior
to a second election conducted by the Board granted a wage increase to the
employees; and (2) on or about July 20, 1950, discharged James Sage, an em-
ployee, and since that time has failed and refused to employ him in the same
or equivalent job because of his activities on behalf of the Union, thereby inter-
fering with, restraining, and coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act.
Respondent filed an answer dated April 16, 1951, admitting certain allegations
of the complaint with respect to the nature of its business, but denying that it
had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held on April 24, 25, and 26, 1951, at
Kankakee, Illinois, before Horace A. Ruckel, the undersigned Trial Exaniinar
duly appointed by the Chief Trial Examiner. The General Counsel, Respond-
ent, and the Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues, was afforded all parties. At the
hearing the complaint was amended to allege further that on or about November
19, 1950, and during the latter part of the following January, Henry Pope, Jr.,
Respondent's president, threatened employees with loss of their jobs, and on or
about the same date in November made a promise of benefit to an employee for
the purpose of persuading him not to engage in union activities.
At the conclusion of the hearing the Trial Examiner granted a motion by the
General Counsel to conform the pleadings to the proof in formal matters and
reserved ruling upon motions of the Respondent to dismiss portions of the com-
plaint and the complaint as a whole. These motions are disposed of by the
recommendations hereinafter made. The parties waived oral argument before
the Trial Examiner and were granted until May 16, 1951, to file briefs herein.
Both the General Counsel and Respondent filed 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 RESPONDENT
Respondent now and at all times herein mentioned has been an Illinois corpo-
ration having its principal offices and manufacturing plant at Kankakee, Illinois,
where it is engaged in the manufacture and sale of textile machinery and hosiery
drying equipment. Respondent, in the conduct of its business, causes and at all
times material herein has caused, large quantities of raw materials to be pur-
chased and transported in interstate commerce to its Kankakee plant from and
through States of the United States other than the State of Illinois. During the
year 1950 the value of materials so transported was in excess of $25,000, of which
dollar volume more than 50 percent was shipped to it from points outside the
State of Illinois. -
During the same period the value of finished products sold and transported
by Respondent was in excess of $75,000, of which dollar volume more than 50
percent was shipped by Respondent from Kankakee to points outside the State
of Illinois.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent admits that it is engaged in commerce within the meaning of the
Act
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with Congress of Industrial
Organizations, is a labor organization admitting employees of Respondent to
membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In October 1949 the Union became engaged in organizing the employees of
Respondent. James Sage, whose subsequent discharge on July 20, 1950, is here-
inafter considered, was elected chairman of the organizing committee shortly
after the campaign had begun. On November 15, 1949, a representation election
was held under the auspices of the Board which the Union lost. On July 17,
1950, the Union lost a second election.
On November 11, 1949, 4 days prior to the first election, Respondent, over the
signature of its president, Pope, mailed a letter to all Respondent's employees
which in substance amounted to a general attack upon the Union and urged the
employees to vote against it in the election. It is not urged that this letter was
iolative of the Act. On the following day, November 12, the Union distributed a
letter to the employees answering Pope's letter. This letter was signed by Sage
and five other members of the organizing committee as well as G. H. Litney, the
Union's representative.
During the period between the latter part of November 1949 and March 1950,
Paul Schopflin, a material expediter for Respondent and admittedly Respondent's
agent for this purpose, acting upon instructions of Pope, visited the homes of all of
Respondent's employees. Pope's instructions to Schopflin were to ascertain what
complaints the employees had concerning their working conditions and what
changes therein they would recommend to correct them, and to state at the same
time that he, Pope, was not interested in union matters and that he did not care
how anyone voted. Since Pope, according to Schopflin, felt that the Union's letter
of November 12 cast a personal reflection upon his honesty and truthfulness, he
told Schopflin that he did not care whether Schopflin included the six signers in
his visits.
Schopflin, however, called upon the six employees along with the others, and he
admitted that he discussed the letter with them, stating that he believed they did
not mean some of the personal statements which it contained and that he doubted
iNhether they themselves wrote it. The clear implication of this latter remark is,
and the undersigned finds, that Litney was responsible for its phraseology and
that the six employees only affixed their signatures. The General Counsel con-
tends that Respondent's inquiry as to the authorship of this letter constituted
interference with the employees' concerted activity. Respondent urges that
Schopflin's interrogations were motivated merely by Pope's feeling that he had
been reflected upon personally and by his desire to find out whether the employees
felt toward him the way the letter indicated.
Respondent's letter of November 11, consisting of three pages, was a comprehen-
sive and detailed statement of reasons why its employees should vote against the
Union in the election. Among other things, it specifically accused the Union of
making "false accusations, and flowery promises." The Union's reply the follow-
ing day was a paragraph by paragraph answer to Respondent's letter, and
attempted to refute each and every allegation in it. It similarly accused Pope of
making false statements, some of which it characterized as "bunk" and "baloney."
Both of these letters were caustic, but hardly more. The Trial Examiner fails to
PARAMOUNT TEXTILE MACHINERY CO. 699
find in the Union's letter anything other than a vigorous answer to that of
Respondent. It set forth the reasons why the employees should vote for the
Union as Respondent's letter set forth the reasons why they should vote against it.
There is nothing in it which could remotely injure Respondent in the conduct of
its business , and such was not its intent.
Schopfiin's specific interrogation of the six employees as to whether they had
composed the letter, with its implication that if they had not the representative of
the Union had, was an interrogation of these employees as to their activities on
behalf of the Union. Such interrogations the Board has consistently found to
constitute interference with the employees' collective activities'
On November 11, 1949,4 days prior to the first election, Lloyd Willett complained
to his foreman, Ed Rogers, that other employees had received a higher raise than
he had, referring to a number of increases which had just been given employees,
and added that if a satisfactory explanation was not given he could be put down
for a vote for the Union. On the following Monday, the day previous to the
election, Rogers approached Willett and asked him in effect whether it would
make any difference in the way Willett felt if Rogers talked to Pope and obtained
a further wage increase for Willett. Upon the latter's replying that he wanted
something more definite to go on, and that he would not tell Rogers how he would
vote in the election, Rogers told Willett that he had better think it over carefully
because the Company would have plenty of work to do if the Union was defeated
but if it won he could not promise Willett one day's work. Willett's testimony as
to the above conversation was not contradicted, and the undersigned finds that
Rogers made in substance the statements attributed to him. His statement that
Respondent would have plenty of work if the Union was defeated but that no work
could be guaranteed Willett if it won the election constitutes the threat of the loss
of employment, and the undersigned so finds.
It is not disputed that on the same day Rogers circulated among the employees
on the first floor of the plant, handed them a copy of a magazine "Hosiery Industry
Weekly," and called their attention to a column entitled "Odd Lots," saying that
Pope would like to have them read it. The column in question states that the
result of the Union's campaign in northern plants has had the result of causing
many of them to move to Southern States, and that if the campaign were wholly
successful the Union would have many new members with no mills in which to
work. The undersigned finds that the circulation of this column among the
employees constituted an implied threat to close Respondent's plant if the Union
were successful in organizing its employees. As such, it was violative of the Act.
Approximately 1 week after the first election, and pursuant to Respondent's
invitation, employee Rainbolt had a conversation with Pope in his office. After
some talk concerning the Union's letter of November 12, which Rainbolt had
signed, Pope asked him if he felt that he was doing the "right thing" to continue
to work for a person such as the letter described, adding that if the Union had won
the election Rainbolt probably would have been out of a job. Pope's statement
clearly implies that if and when the Union won an election one or more employees
would lose their jobs as a result . It is thus violative of the Act.
Early in 1950, between the two elections, Pope instructed Plant Superintendent
Mittelstatt to conduct an investigation and compare the job rates paid Respond-
'See Standard- Coosa-Thatcher Company, 85 NLRB 1358 and cases cited therein. In
this case the Board expressly held that interrogation is not protected by Section 8 (c)
of the amended Act as an expression of "views, arguments , or opinion" within the meaning
of that provision . The Board's rationale Is that "a subtle pressure created by inter-
rogation results from the realization by the Interrogated employee that his employer Is
concerned with his union affiliation or activities and will, therefore , act to the employee's
detriment . [ Emphasis in original.]
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's employees with similar job rates elsewhere in Kankakee . Upon Mittel=
statt's submission of his report , Respondent put into effect rate increases for
approximately 113 employees . The General Counsel contends that the granting
of these raises was intended to dissuade the employees from engaging in union
activities , and cites as other evidence of this intention the fact that wage raises
for the preceding years of 1947, 1948, and 1949 occurred during the fall months
of those years , and the further fact that in a notice to employees dated April 21,
1950, Respondent stated : "We have paid and are going to continue to pay in the
future the going rates in Kankakee for comparable work in comparable jobs."
The timing of these 1950 raises is perhaps suspicious , but the undersigned finds
it no more than that , and that they were made for legitimate business reasons
and not in an attempt to thwart organization of the employees.
B. The discharge of James Sage
With the exception of a 2-year period between 1942 and 1944 , Sage was an
employee of Respondent from January 1941 until his discharge on July 20, 1950.
As has been stated, in October 1949 Sage was elected chairman of the Union's
organizing committee It is not disputed that Respondent had knowledge of
Sage's activity in this respect.
During the period between the two elections a group of employees led by Leo
Ostrowski and including Emerson Hammer, Urbain Fortier, John Harris, Tom
Rodgers, and Martin Pushay , circulated a petition among the employees, which
was later given Respondent , stating that they did not want union organization of
the plant and that they were satisfied with their working conditions. On Feb-
ruary 24, 1950, the day following a hearing upon the Union's objections to the
first election , Rogers, foreman of the first floor where Sage worked , reported to
Mittelstatt that a number of employees on that floor , including the above named,
wanted to know what Respondent was going to do about Sage Mittelstatt got
in touch with Vice-Piesident William Pope and Albert J. Smith, Respondent's
attorney , and as a result Smith , Mittelstatt , and Rogers went to the plant and
called in Ostrowski , Fortier, Pushay, Rodgers , and Hammer . Smith, who did
most of the interviewing , asked them to state their complaint against Sage.
Ostrowski, who acted as spokesman , said that the men on the first floor were
"tired of Sage and his insulting remarks and his trouble making" and they
wanted to get rid of him, that "either he goes out or we go out ." The other
employees present agreed with this. Smith asked if the reason they didn't like
Sage was because of his union activities , to which Ostrowski replied that it was
not, that they were merely tired of his insulting remarks. Smith asked the
employees to continue to work and let the matter blow over.
Following this meeting , and up until after the second election on July 17 and
Sage's discharge on July 20, these 5 employees continued to make complaints to
management as to Sage They were to the general effect that they were tired of
Sage's making insulting remarks to them and using bad language . Following
this, Rogers told Mittelstatt that the employees were "putting pressure" on him
to discharge Sage.
Fortier testified that he asked Rogers what was to be done with Sage because
they had had "quite a lot of trouble" with him. He did not specify what the
trouble consisted of. Rodgers testified that he asked Respondent to "do some-
thing" about Sage because many of the employees were complaining about extra
work they were having to do because of him. Rodgers , however, did not specify
any particular incident in which Sage caused them to do more work. On one
occasion , according to Rodgers , Sage accused him of "sucking for a foreman's
job." Hammer 's complaint was that on that occasion Sage asked him how he
would vote in the second election , and apparently upon receiving an unfavorable
PARAMOUNT TEXTILE MACHINERY CO. 701
answer, added : "Well, you had better not vote at all." Casino, another employee,
testified that on July 19, the day before Sage's discharge, he asked Rogers what
was to be done with Sage, giving a reason for his dislike of Sage that on one
occasion the latter accused him of "selling out" to Respondent for $200, appar-
ently the cost of furnishing equipment for a baseball team organized during the
period of the Union's organizing. The testimony of Ostrowski was that Sage
similarly accused him of "selling out for a baseball team," and that he resented
Sage's comments concerning the circulation of Ostrowski's antiunion petition,
during which Sage asked him if he was putting in his time at this without
"getting anything for it," and Ostrowski asked Sage what the Union was paying
him for his organizing.
John Harris testified that in June 1950 he asked Rogers what was going to be
done about Sage, giving as a reason for his objection to that individual that on
one occasion Sage had told him that 90 percent of the employees had signed up
for the Union, which statement Harris believed not to be true.
It is clear that each of the employees who testified as above against Sage were
opposed to the Union The conversations between them and Sage concerning
the Union were such as can normally -be expected to occur between opposing
factions in an election campaign. It is noted that none of these witnesses testi-
fied that they bore any grievance against Sage during the 7 years they had worked
with him prior to the advent of the Union. Casino admitted while testifying
that he asked Rogers "now that the election is over, what are [you] going to do
about Mr. Sage?" and "are [you] going to get rid of him or is he going to stay
here?" This clearly related Sage's tenure of employment to the loss of the
election, as if one depended upon the other.
On July 19, the day before Sage's discharge, Rogers reported to Mittelstatt :
"I don't know what we are going to do-we are going to have to dd something.
The workers are putting the pressure on me something terrible downstairs."
Respondent admits, indeed it asserts, that it discharged Sage because of this
pressure by antiunion employees, although it contends that this pressure origi-
nated in the employees' personal dislike of Sage. However, at the hearing it
asserted that it had had complaints as to Sage's work during the period between
elections.
That this pressure was the determinating factor is seen by the testimony of
Superintendent Mittelstatt which was that even if Sage's work had been satis-
factory "I think we would have had to lay him off," and by the further fact that
when Sage was discharged nothing was said about the quality of his work. In
view of the fact that the complaints of antiunion employees as to Sage and their
threat to strike unless something was done about him was the motivating reason
for the discharge, the undersigned does not find it necessary to consider Sage's
efficiency as an employee.
While it is understandable that Respondent feared the economic consequences
of a strike by antiunion employees if Sage, the leader of the Union, was con-
tinued in his employment after the Union lost the second election, such a fear of
economic consequences has-been repeatedly held by the Board not to constitute
a valid reason for discharge?
2 See Ma)cstic Metal Specialties , Inc, 92 NLRB 1854. In this case the Board found
that two employees were discriminatorily transferred to another department because of
the hostility of an antiunion group of employees who demonstrated their hostility toward
one employee by evicting him from the plant and toward the other by engaging in a'
sit-down strike . The Board said : "It is well established that an employer is under a
duty to insure that its right to hire , discharge, or transfer is not delegated to any anti-
union or prounion group of employees . This duty exists even where the failure to yield
to employee pressure might cause disruption to the employer ' s operations ," citing Randolph
Corporation, 89 NLRB 1490 , and other cases.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that Respondent discharged James Sage on July 20,
1950, 'because of his activity in behalf of the Union and not for any legitimate
business reason. In doing so, Respondent discouraged membership in the Union
and interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with its operations as described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain
affirmative action which will effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and ten-
ure of employment of James Sage, it will be recommended that Respondent
offer him immediate and full reinstatement to his former or substantially equiva-
lent position' without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of pay he may have suffered by reason of Re-
spondent's discrimination against him, by payment to him of a sum of money
equal to the amount of wages he would have earned from July 20, 1950, the
date of his discharge, to the date of the offer of reinstatement. Loss of pay will
be computed on the basis of each separate calendar quarter or portion thereof
during the period from July 20, 1950, to the date of a proper offer of reinstate-
ment. The quarterly periods, herein called quarters, shall begin with the first
day of October, January, April, and July. Loss of pay shall be determined by
deducting from a sum equal to that which he normally would have earned for
each quarter or portion thereof, his net earnings,' if any, in other employment
during that period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.`
In accordance with the Woolworth decision it will be recommended that
Respondent , upon reasonable request, make available to the Board and its agents
all records pertinent to an analysis of the amount due as back pay.
Upon the basis of the foregoing findings of fact and the entire record in the
case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of James
Sage, thereby discouraging membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act. -
I In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position " Is interpreted to mean "former position
whenever possible and if such position is no longer in existence , then to a substantially
equivalent position ." See The Chase National Bank o f the City of New York, San Juan,
Puerto Rico , Branch, 65 NLRB 827.
4 Crossett Lumber Co., 8 NLRB 440.
5F W. Woolworth Company, 90 NLRB 289.
G. W. THOMAS DRAYAGE & RIGGING CO., INC. 703
3. By interfering with, restraining, and coercing its employees in the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging,
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not, by granting wage raises to its employees , violated the
Act.
[Recommended Order omitted from publication in this volume.]
G. W. THOMAS DRAYAGE & RIGGING CO., INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS
MILLWRIGHTS LOCAL UNION No. 102, UNITED BROTHERHOOD OF CARPEN-
TERS & JOINERS OF AMERICA, AFL, and INTERNATIONAL ASSOCIATION
OF MACHINISTS. Cases Nos. 20-CA-541 and 20-CB-181. December
28,1951
Decision and Order
On August 6, 1951, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached thereto. Thereafter the Respondent
Union filed exceptions to the Intermediate Report and a supporting
brief.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that :
I. G. W. Thomas Drayage & Rigging Co., Inc., its officers, agents,
successors, and assigns, shall:
(a) Cease and desist from :
(1) Encouraging membership in Millwrights Local Union No. 102,
United Brotherhood of Carpenters & Joiners of America, AFL, or
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board had delegated its powers in connection with this case to a three -member panel
[Chairman Herzog and Members Houston and Murdock].
97 NLRB No. 103.