Pyne Moulding Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1700 (N.L.R.B. 1954)

1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DYNE MOULDING CORPORATION and UNITED RUBBER, CORK , LINOLEU:IL
AND PLASTIC WORKERS OF AMERICA, CIO . Case No. 1-CA-1367.
December 16, 19,54
Decision and Order
On August 14, 1953, Trial Examiner Richard N. Ivins issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Repo rt
attached hereto. Thereafter, the Respondent filed a brief in support
of the Intermediate Report, the Union filed exceptions to the Inter-
mediate Report, and the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed-
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, but only to the limited extent indicated
herein. The Respondent's request for oral argument is denied, be-
cause the record and exceptions and briefs, in our opinion, adequately
present the issues and the positions of the parties.
1. It was stipulated that the Respondent annually sells materials
exceeding $100,000 in value to Winchester Electronics, Inc., which are
processed by the latter company as an integral part of other devices,
and "enter the stream of commerce." From this it is clear that the
latter company ships goods out of State in an annual amount of more
than $50,000. We find that the Respondent is engaged in commerce,l
and that it will effectuate the policies of the Act to assert jurisdiction
over the Respondent.'
2. We agree with the Trial Examiner's finding that the Union is,
a labor organization as defined in the Act. We base this finding on
the fact that the Union exists, as shown by the record, for the purpose
of collective bargaining with employers on behalf of employees con-
cerning wages, hours of work, and working conditions.
3. We disagree, however, with the Trial Examiner's finding that
the Respondent did not violate Section 8 (a) (1) of the Act by its
announcement of wage increases and other benefits during the week of
December 15, 1952, and by its subsequent grant of such wage increa ies
and other benefits.
From November 28, 1952, to December 9, 1952, the Union conducted
its organizational campaign among the Respondent's employees,
1 See Jonesboro Gram Drying Cooperative, 110 NLRB 481
110 NLRB No. 240.
PYNE MOULDING CORPORATION 1701
which resulted in 10 of the Respondent's 13 production and mainte-
nance employees designating the Union as their collective-bargaining
representative. On December 13, 1952, the Respondent received the
Union's request for recognition as such representative. On December
15, 1952, and from December 17 to 19, 1952, the Respondent interro-
gated each of its production and maintenance employees individually
as to the reasons for their dissatisfaction with working conditions,
and at the same time told them of wage increases and other benefits
which the Respondent planned to institute. The Respondent granted
these wage increases and other benefits from December 19, 1952, to
February 5, 1953. On December 18, 1952, the Respondent refused to
recognize the Union. On December 19, 1952, the Respondent dis-
,charged employee Essig in violation of Section 8 (a) (3), as found,
infra.
On October 31, 1952, which was prior to the union campaign, the
Respondent submitted an application for wage increases and fringe
benefits to the Wage Stabilization Board for approval. Late in
November or early in December 1952, that Board unofficially notified
the Respondent that the application would be approved. On Decem-
ber 18, 19529 that Board sent the Respondent official notice of approval.
The Trial Examiner found, in effect, that the Respondent's an-
nouncement of the wage increases and other benefits during the week
of December 15, 1952, was not motivated by the Union's request for
recognition, because the Wage Stabilization Board application was
made prior to the union campaign, and the announcement was made
after the Respondent had been notified that the application would be
approved.
We do not agree with this finding. In our opinion, the facts clearly
show that, although the wage increases and other benefits may have
been previously determined upon bona fide, the Respondent's an-
nouncement of such benefits was so timed as to show that its purpose
was to interfere with the organization of its employees, and was there-
fore unlawful.2 The announcement of benefits was made immediately
.after the Respondent received the Union's request for recognition, a
fact which tends to indicate that it was motivated by the request for
recognition. Furthermore, the announcement was made after the
Respondent had received only unofficial notice from the Wage
Stabilization Board that the Respondent's application for benefits
had been approved, and before receipt of official notice of approval.3
If the announcement had not been related to the request for recogni-
tion, it would have been made, in our opinion, in the ordinary course
See Hudson Hosiery Company, 72 NLRB 1434; Lake Superior District Power Com-
pany, 88 NLRB 1496, and cases cited therein.
I It is clear that at least the announcement of benefits to some of the employees on
December 15 and 17, 1952, was made before receipt of official notice of approval, which
was not sent to the Respondent until December 18, 1952
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of business only after the Respondent received official notice of ap-
proval, and not after only unofficial notice of approval, because of
the possibility that official approval might not be forthcoming. If,
however, the Respondent could reasonably rely on unofficial notice of
approval as a basis for announcing the benefits, it would, in our
opinion, have made such announcement in the ordinary course of
business immediately after receipt of such notice, and not 2 or more
weeks later as it did. The haste, or the delay, as the case may be,
offers only one logical explanation . The announcement was timed to
thwart the organization of the employees when that organization had
just been made evident by virtue of the Union's request for recognition.
Further evidence of the unlawful motivation of the announcement
of benefits lies in the fact that the Respondent prefaced and combined
the announcement with queries as to complaints about working con-
ditions at a time when the Union had just requested recognition. It
is readily apparent , even though the Union was not specifically men-
tioned, that the queries as to complaints about working conditions at
the time in question was a reference to the employee 's action in joining
the Union, and that the announcement of benefits in conjunction with
that reference was designed to undo the action referred to. Still
further evidence of the Respondent 's aim to thwart the Union lies in
the fact that some of the benefits promised , and subsequently granted,.
were not even included in the application to the Wage Stabilization
Board, such as the installation of candy, cigarette, and soda machines
and the screening of windows . These benefits were newly determined,
and the announcement of them at a time when the Union had just
requested recognition clearly shows that such announcement had as
its purpose the destruction of the majority representation claimed by
the Union. Moreover , the announcement of these newly determined
benefits is further evidence that all benefits promised at this time, in-
cluding those which may have been previously determined upon in
good faith, because included in the Wage Stabilization Board applica-
tion, had such an unlawful purpose. Finally, the Respondent's d is-
criminatory discharge of employee Essig, as found , infra, during the
very same week as its announcement of the benefits clearly demon-
strates a purpose to defeat the Union by unlawful means, and also
supports the conclusion that the announcement of the benefits was
intended to weaken the Union's support.
We find, therefore , that the Respondent , by announcing wage in-
creases and other benefits to its employees on December 15, 1952, and
on December 17 to 19, 1952, and by granting the same from December
19, 1952, to February 5, 1953, violated Section 8 (a) (1) of the Act.
4. We also disagree with the Trial Examiner 's finding that the Re-
spondent did not violate Section 8 (a) (1) of the Act by its granting
of additional wage increases and other benefits from February 24,.
PINE MOULDING CORPORATION 1703
1953, to March 16, 1953, to those employees who were recalled during
that period after a layoff of all production employees on February 6,
1953.
Some of the benefits granted during this period, wage increases,
vacations, and holidays, had been included in the Wage Stabilization
Board application, but were enlarged upon over what that Board had
approved. The others, Christmas Club, group insurance, and rest
periods, had not been included in the Wage Stabilization Board ap-
plication. Thus, all of the benefits granted during this period were
either newly determined or exceeded those approved by the Wage
Stabilization Board.
The Trial Examiner found that the granting of these benefits dur-
ing this period was proper, on the ground that a wage survey by the
Respondent in the area revealed that its wages were too low, and
the granting of these additional benefits was made possible because
Wage Stabilization regulations were no longer in effect. We believe
the Respondent had a different reason for granting these benefits.
Following the Respondent's refusal to recognize it on December 18,
1952, the Union filed a petition for an election with the Board- on
January 30, 1953, as a result of which the Board on March 3, 1953,
directed an election.' Thus, the benefits granted during this period
were granted just before a prospective election, and, as indicated,
were either newly conceived, or were enlargements of those specifi-
cally authorized by the Wage Stabilization Board. In our opinion,
these facts clearly show, and we find, that the granting of these later
benefits was a continuation of the same course of illegal conduct em-
barked upon earlier by the Respondent to defeat the Union, and was
timed just before the prospective election for the purpose of coercing
the employees to vote against the Union in that election.5
We find, therefore, that the Respondent, by granting additional
wage increases and other benefits to its employees from February 24,
1953, to March 16, 1953, violated Section 8 (a) (1) of the Act.
5. We also disagree with the Trial Examiner's finding that the Re-
spondent did not violate Section 8 (a) (3) of the Act by its discharge
of Robert Essig on December 19, 1952.
The Trial Examiner found, as alleged and testified to by the Re-
spondent that production records had been kept on Essig and an-
other employee who operated the same press which Essig operated,
and that Essig was discharged because these records showed that
Essig's production was much lower than that of the other employee.
At the time of his discharge, Essig had been employed longer than
any other press operator except one. There had been no complaints
4 Case No. 1-RC-3114 . The Board permitted the Union to withdraw the petition on
March 31, 1953 , and the election was never held.
5 See Lake Super,ofi District Power Company , supra, and cases cited therein
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his work at any time prior to his discharge, and he had received
two raises in pay in his 3 months of employment, and had taught
new operators their jobs. Essig was one of the first employees Mho
had joined the Union, and he had attended three union meetings.
The Respondent at that time had only 13 production and maintenance
employees, and also admitted that it had had discussions to determine
the identity of the employees responsible for bringing in the Union.
Immediately after receipt of the Union's request for recognition, the
Respondent interrogated all of its employees individually as to 'he
reasons which led to their joining the Union, and Essig was the first
to be so interrogated, 2 or 3 days before any other employee was inter-
rogated. At that time, the Respondent made no complaint about
Essig's work, and promised him, as well as the other employees, wage
increases and other benefits in its first attempt, as we have foi. nd
above, unlawfully to coerce the employees to abandon the Union. I m-
mediately thereafter, the Respondent discharged Essig, allegedly for
poor work, without warning, and without consulting Essig's foreman
who was directly in charge of production.
The production records relied on by the Respondent as the alleged
basis for discharging Essig do show that Essig and another employee
operated the same press, and that Essig's production was somewhat
lower than that of the other employee. However, these records and
other evidence also show that Essig and the other employee wor ced
on that press during different periods, Essig in November and the
other employee in December 1952; that Essig worked on it at a tLme
when the press was not operating properly; and that Essig worked
only on other presses during December 1952 and had a better prod uc-
tion record on one of these presses, during this period just prior to his
discharge, than another employee who was not discharged.
In our opinion, these facts show that the Respondent knew, o;. at
least suspected, prior to Essig's discharge, that Essig was one-of the
union leaders, and that the Respondent discharged him because of
such known, or suspected, union activity.
We conclude that the Respondent knew, or at least suspected, that.
Essig was one of the union leaders for the following reasons : (1)
Essig was one of the first employees who had joined the Union, and
he had attended 3 union meetings; (2) the Respondent had only 1,c.
production and maintenance employees, and it is reasonable to assume
that in such a small plant the Respondent was aware of Essig's a nior
activity; 6 (3) the Respondent admitted that it had had discussion,
to determine the identity of the union leaders; and (4) when the
Respondent, after receiving the Union's request for recognition, in-
terrogated its employees as to the reasons which led to their joining
O See Hartland Plastics, Inc., 93 NLRB 439, 448; Angwcell Curtain Company, Inc. v.
N. L. R. B., 192 F 2d 899 (C. A 7), enfg 94 NLRB 675
PINE MOULDING CORPORATION 1705
the Union, Essig was interrogated first, 2 or 3 days before any other
employee was interrogated.
We conclude that the Respondent discharged Essig for his known,
or suspected, union leadership for the following reasons : (1) The
timing of Essig's discharge, immediately after the Respondent re-
ceived the Union's request for recognition and unlawfully coerced
the employees to abandon the Union by promises of wage increases
and other benefits, tends to indicate that the discharge of Essig, a
known or suspected union leader, was also illegally motivated; (2)
Essig was discharged on December 19, 1952, allegedly for poor work,
despite the fact that the Respondent only a few days earlier, on De-
cember 15, 1952, had not only made no complaint about Essig's work,
but promised him a wage increase and other benefits; (3) despite the
fact that Essig had been employed longer than any other operator
except one, had received no complaints about his work at any time
prior to his discharge, had received two raises in pay in his 3 months
of employment, and had taught new operators their jobs, the Re-
spondent precipitately discharged him, without warning and without
an opportunity to improve his allegedly poor work, and without even
consulting Essig's foreman who was directly in charge of produc-
tion;' (4) the production records relied on by the Respondent as
allegedly showing that Essig's work was poor not only fail to show
that it was poor in November 1952, in view of the patently unreason-
able comparison made between Essig's work and that of the other
employee with whom he was compared, but also show that Essig's
work during December 1952 was better than that of another employee
who was not discharged; and (5) even were we to assume that these
production records show that Essig's production was poor in Novem-
ber 1952, Essig's production in December 1952, just prior to his dis-
charge, was better than that of another employee who was not dis-
charged.
In view of the foregoing, we find that the Respondent discharged
Robert Essig on December 19, 1952, in violation of Section 8 (a) (3)
of the Act.
6. We agree with the Trial Examiner's finding that the Respond-
ent's failure to recall five press operators, employees Frank Dough-
erty, Ralph Johnson, August Rimbocchi, Raymond Swift, and John
Tyskiewicz, was not a violation of Section 8 (a) (3).
On February 6, 1953, the Respondent laid off all production em-
ployees indefinitely in order to make necessary repairs on its presses.
As these repairs were made, and production was resumed, the Re-
spondent recalled five press operators on various dates between Feb-
ruary 24, 1953, and March 16, 1953, on the basis of their past produc-
See Roxboro Cotton 1latls, 97 NLRB 1359
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion records, and without regard to seniority. The Respondent testi-
fied that it expects to recall the five other laid-off press operators,
whom the General Counsel contends were not recalled for discrimina-
tory reasons, when an anticipated expansion of production occars,
and before it hires any new press operators.
All 5 of the alleged discriminatees had joined the Union, but 3 of
the 5 press operators who were recalled had also joined the Union
In support of his contention that the selection of those recalled was
made on a discriminatory basis, the General Counsel points out that,
all 5 who were not recalled had greater seniority than 2 who were re
called; that 4 who were not recalled had greater seniority than an
other laid-off press operator who was offered but refused reemploy-
ment; and that 3 of the 5 not recalled had received merit increase:,
only the day before the layoff. The seniority factors pointed to by
the General Counsel indicate only that seniority was disregarded
with respect to some, not all, of the employees not recalled, and can-
not therefore serve as sufficient basis for the contention that the er.tirr,
selection was made on a discriminatory basis. In any event, the Re-
spondent admits that seniority was disregarded altogether in mak-
ing its selection for recall, and since this was a new plant with no
established policy of recalling laid off employees on the basis o t
seniority, the Respondent's selection on the basis of the employees'
past production carries no imputation that such selection was dis-
criminatory.' As to the fact that 3 of the 5 who were not recalled
had received merit increases only the day before the layoff, the record
also shows that 1 of the recalled employees also received such an in-
crease at that time. The General Counsel also points to the fact that
the Respondent admitted that it suspected 2 of the 5 who were not
recalled of being union leaders, and testimony by Schwing, a former
supervisor, that the Respondent suspected a third of likewise being
a union leader. The Trial Examiner, however, discredited Schw:ng's
testimony, and we adopt that credibility finding. And here again,
the fact that 2 of the 5 who were not recalled were suspected of being
union leaders is insufficient basis for concluding that all 5 were so
suspected, and were not recalled for that reason.
In view of the foregoing, we find that there is insufficient evidence
on which to base a finding that the Respondent's failure to recall the
five employees in question was discriminatory, and we shall dismiss
this allegation of the complaint.
The complaint also alleges that the Respondent discriminatorily
discharged the 5 employees in question in an apparent reference to ;heir
layoff on February 6, 1953. As the evidence shows that the layoff of
all production employees on that date was for business reasons, and
as the General Counsel does not now contend that the layoff of i,hese
8 See Waterman Industries, Inc , 91 NLRB 1041.
PINE MOULDING CORPORATION 1707
five employees on that date was discriminatory, we shall also dismiss
that allegation of the complaint.
7. We disagree, however, with the Trial Examiner's finding that the
Respondent has not violated Section 8 (a) (5) of the Act.
On December 13, 1952, the Union wrote the Respondent a letter in
which it stated that it represented a majority of the Respondent's pro-
duction and maintenance employees and requested recognition as their
bargaining representative. At this time, the Union had in its posses-
sion cards signed by 10 of the 13 employees in the appropriate unit
designating the Union as bargaining representative. On December
18, the Respondent wrote an answering letter refusing to extend the
recognition requested, upon the ground that it did not know whether
the Union in fact represented the claimed majority.
Ordinarily an employer faced with a demand for recognition by a
union which claims to represent a majority of his employees may
refuse to rely upon evidence of representation in the form of authori-
zation cards signed by employees and insist that the Union establish
its majority by means of a Board-conducted secret election. But
when, as stated in the Joy Sille Hills' case, which is hereby reaffirmed,
"such refusal is due to a desire to gain time and to take action to
dissipate the union's majority, the refusal is no longer justifiable and
constitutes a violation of the duty to bargain set forth in Section 8
(a) (5) of the Act." Essentially the issue is between sincerity or
lack of sincerity in the Employer's expression of doubt as to majority
status, an issue which can only be tested by reference to the total pic-
ture of the Employer's conduct revealed by the record as a whole.
The Board's electoral machinery exists for the purpose of defini-
tively resolving an employer's good-faith doubt as to a union's major-
ity representation. This machinery does not exist for the purpose of
furnishing an employer with a shield behind which he may engage in
a campaign to destroy the union's majority by means of unfair labor
practices. In the context of this case, the issue narrows down as to
whether the Respondent in refusing to recognize the Union was moti-
vated by a good-faith doubt of the Union's majority or by a desire
to gain time in which to undermine the Union.
What the Respondent did after its refusal to recognize the Union
is very persuasive evidence of its state of mind at the time of the
refusal. Within 2 days of the Union's letter requesting recognition,
the Respondent embarked on a course of unfair labor practices which
extended over a period of 3 months. These unfair labor practices
included a discriminatory discharge and promises and grants of wage
and other benefits to employees. The effect of such unlawful conduct
was to undermine the Union and to make a free election impossible.
9Joy Silk Mills , Inc. v N. L. R. B., 185 F 2d 732, 741 (C. A., D C.), enfg as mod 85
NLRB 1263 , cert denied 341 U. S 914
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The inference is warranted, and we find, that the Respondent intended
the normal consequences of its conduct and that in refusing to recog-
nize the Union on December 13, the Respondent acted not from a
good-faith doubt of the Union's majority, but out of a desire to gain
time in which to destroy the Union's majority by unlawful means."
We find, accordingly, that from December 18, 1952, the Respondent
refused to bargain collectively with the Union in violation of Section
8 (a) (5) of the Act.
As the Respondent was under a legal duty to bargain with the Ur ion
after December 13, 1952, we find further that the Respondent's t ub-
sequent unilateral actions, in granting wage increases and otherwise
making changes in working conditions by granting other benefits,
were violative of Section 8 (a) (5) of the Act "
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in con
nection with the operations of the Respondent described in section I
of the Intermediate Report, 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 the free flow
of commerce.
TIIE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and tak-,
certain affirmative action designed to effectuate the policies of tha
Act.
We have found that the Respondent on December 19, 1952, discrim-
inated in regard to the hire and tenure of employment of Robert Essig
by discharging him. We shall therefore order that the Respondent
offer to Robert Essig immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay
1O Members Murdock and Peterson agree that the issue in the instant case na rroA s
down to whether the Respondent 's refusal to recognize the Union was motivated by a
good -faith doubt of the Union 's majority or by a desire to gain time in which to unde
mine the Union ; and that the Respondent's subsequent unfair labor practices show tlu t
the Respondent acted not from a good-faith doubt of the Union 's majority but on. of a
desire to gain time in which to destroy the Union's majority by unlawful means. How-
ever as they pointed out in their dissenting opinion in the Gilbert case, 110 VLRB
2067 , the Joy Silk Mills doctrine is not limited to a situation , such as in this case, whe e
an employer is motivated by a desire to gain time in which to undermine a union, or i o
do so by unlawful means. The Joy Silk Mills doctrine is much broader , and the sincerity
or lack of sincerity in an employer 's expression of doubt concerning a union 's majorily
status may be tested by reference to unfair labor practices occurring before as N Nell as
after the request for recognition is made, and to other than unlawful conduct which nev-
ertheless impugns the employer 's good faith in, questioning the union's majority.
11 See N. L. R. B. v. Crompton -Highland Mells , Inc., 337 U S 217; Intertown lorpo-
rateon ( Michigan ), 90 NLRB 1145
PYNE MOULDING CORPORATION 1709
he may have suffered by reason of such discrimination by payment
to him of a sum of money equal to that which he would have earned
as wages from December 19, 1952, the date of his discriminatory
discharge, to the date of the offer of reinstatement, less his net earn-
ings during such period in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289.
Having also found that the Respondent on December 18, 1952, and
at all times thereafter, refused to bargain collectively with the Union
as the exclusive representative of its employees in the appropriate
unit, it will be ordered that the Respondent, upon request, bargain
collectively with the Union in respect to rates of pay, wages , hours of
employment, and other conditions of employment.
It has also been found that the Respondent, by promising and
granting its employees wage increases and other benefits, interfered
with, restrained , and coerced its employees in the exercise of the rights
guaranteed by the Act. It will, therefore, be ordered that the Re-
spondent cease and desist therefrom.
Upon a consideration of the record as a whole, the Board is con-
vinced that the Respondent 's conduct in employing the unfair labor
practice tactics it did in order to evade its duty to bargain with the
Union and to prevent the unionization of its employees, indicates an
attitude of opposition to the purposes of the Act generally. In order,
therefore, to make effective the interdependent guarantees of Section
7 of the Act, thereby minimizing industrial strife, which burdens and
obstructs commerce , and thus effectuate the policies of-the Act, it will
be ordered that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record , the Board makes the following :
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America,
CIO, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. The Respondent, Pyne Moulding Corporation, is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
3. All production and maintenance employees at the Respondent's
New Milford, Connecticut, plant, including visual inspectors, but ex-
cluding office clerical employees, guards, professional employees, the
floating inspector, and all other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. United Rubber, Cork, Linoleum and Plastic Workers of America,
CIO, was on December 18, 1952, and at all times material thereafter
has been, and now is, the exclusive representative of all the employees
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the above-described unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By refusing on December 18, 1952, and at all times thereaf ter,
to bargain with United Rubber, Cork, Linoleum and Plastic Workers
of America, CIO, as the exclusive representative of the employees; in
the above-described unit, the Respondent has engaged in and is en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (5) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of Robert Essig by discharging him on December 19, 1'52,
thereby discouraging membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (3) and (1) of the Act.
7. By interfering with, restraining, and coercing the 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 pract ces
within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
9. The Respondent did not commit any unfair labor practice by
its discharge and/or failure to recall employees Frank Dougherty,
Ralph Johnson, August Rimbocchi, Raymond Swift, and John
Tyskiewicz.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Fyne Moulding Corpora-
tion, New Milford, Connecticut, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America, CIO, as the exclusive
representative of all production and maintenance employees of the
Respondent employed at its New Milford, Connecticut, plant, includ-
ing visual inspectors, but excluding office clerical employees, guards,
professional employees, the floating inspector, and all other supervisor
as defined in the Act.
(b) Discouraging membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, by discriminating in regard
to the hire or tenure of employment of its employees, or by discriminat-
ing in regard to any term or condition of employment, in order to dis-
courage membership therein.
PINE MOULDING CORPORATION 1711
(e) Interfering with, restraining, or coercing its employees in the
rights guaranteed by Section 7 of the Act, by promising and granting
them wage increases and other benefits.
(d) 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 United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, or any other labor organiza-
tion, 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, or to refrain
therefrom 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America, CIO, as the exclusive
representative for the employees in the bargaining unit described
above with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer to Robert Essig immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the discrimination
against him in the manner provided in the section above entitled "The
Remedy."
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll rec-
ords, social-security payment records, timecards, personnel records
and reports, and all other records necessary for an analysis of the
amount of back pay due under this Order.
(d) Post at its New Milford, Connecticut, plant, copies of the no-
tices attached hereto and marked "Appendix A." 12 Copies of said
notice, to be furnished by the Regional Director for the First 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 a period of sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to the em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notice shall not be altered, de-
faced, or covered by other material.
'-'In the event that this 01 der is enforced by a decree of a United States Court of Ap-
peals, there shall he substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to it Decree of the United States Court of Appeals , Enforcing an Order "
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps the Re
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis
missed, insofar as it alleges that the Respondent discharged and/or
failed to recall from layoff employees Frank Dougherty, Ralph John
son, August Rimbocchi, Raymond Swift, and John Tyskiewicz, it
violation of Section 8 (a) (3) of the Act.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relation:;
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with United Rubber,
Cork, Linoleum and Plastic Workers of America, CIO, as the
exclusive representative of all employees in the bargaining •Inii,
described below, with respect to rates of pay, wages, hours o:'
employment, and other conditions of employment.
WE WILL NOT discourage membership in the above-named Union,
by discriminating in regard to the hire or tenure of employmen ;
of our employees, or by discriminating in regard to any terr,I or
condition of employment.
WE WILL NOT interfere with, restrain, or coerce our employees
in the rights guaranteed by Section 7 of the Act, by promising o--
granting wage increases and other benefits.
WE WILL NOT in any other manner interfere with, restrair, or
coerce our employees in the exercise of their right to self-organi-
zation, to join or assist the above-named Union, or any other labo
organization, to bargain collectively through representatives o r
their own choosing, and to engage in concerted activities for tho,
purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement, re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Robert Essig immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges previousl;T
enjoyed, and make him whole for any loss of pay suffered as ,r
result of the discrimination against him.
WE WILL bargain collectively, upon request, with the above-
named Union as the exclusive representative of all employees in
PYNE MOULDING CORPORATION 1713
the bargaining unit described below with respect bo rates of pay,
wages, hours of employment , and other conditions of employ-
ment, and if an understanding is reached , embody such under-
standing in a signed agreement . The bargaining unit is :
All production and maintenance employees , including visual
inspectors , but excluding office clerical employees , guards,
professional employees , the floating inspector, and all other
supervisors as defined in the Act.
All our employees are free to become or remain members of the
above-named Union or any other labor organization . We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
PYNE MOULDING CORPORATION,
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 an original charge filed December 29, 1952, and a first and second amended
charge subsequently filed on April 3 and 14 , 1953, respectively, by the United
Rubber , Cork, Linoleum and Plastic Workers of America, CIO , hereinafter called
the Union , the General Counsel of the National Labor Relations Board ,' by the
Regional Director for the First Region ( Boston , Massachusetts ), issued his com-
plaint dated February 18, 1953, and issued an amended complaint dated April 15,
1953 , against the Pyne Moulding Corporation , hereinafter called the Respondent.
The complaint as amended alleges in substance that the Respondent engaged in and
is engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (3), and (5 ) and Section 2 (6) and ( 7) of the National Labor
Relations Act, as amended , 61 Stat. 136, herein called the Act.
Copies of the original charge and the first and second amended charges were
duly served upon the Respondent . Copies of the complaint and notice of hearing
were duly served upon the Respondent and the Union.
With respect to unfair labor practices , the amended complaint alleges, in sub-
stance: ( 1) That the Respondent on December 19, 1952, discharged employee
Robert Essig and on February 24, 1953, discharged and/or failed to recall from
layoff employees Frank Dougherty , Ralph Johnson , August Rimbocchi , Raymond
Swift , and John Tyskiewicz , and has failed to reinstate said employees because of
their membership in, sympathy for, and activity on behalf of the Union ; ( 2) that
the Respondent, from on or about December 15, 1952, to date, has interrogated its
employees concerning their union affiliations , and during the same period has of-
fered , promised, and granted wage increases to its employees ; and (3 ) that the
Respondent at various times since December 15, 1952, has refused to bargain col-
lectively with the Union as the duly selected bargaining agent of the maintenance
and production employees in the Respondent 's New Milford plant.
The Respondent 's answer in substance amounts to a general denial.
' The General Counsel and his representative at the hearing are hereinafter referred
to as the General Counsel and the National Labor Relations Board is called the Board.
338207-5 5-vo 1 110-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing was held at Danbury, Connecticut , on April 29 ant
`30 and May 1, 1953 , before Richard N. Ivins, the duly designated Trial Examiner
The General Counsel , the Respondent , and the Union were represented by counsel.
All parties participated in the hearing and were accorded full opportunity to be
heard , to examine and cross -examine witnesses , and to introduce evidence bearing;
upon the issues raised by the pleadings.
The 20-day period granted counsel at the hearing to file briefs was subsequ,mtly
extended by the Chief Trial Examiner to June 2 , 1953. Briefs have been received
from the General Counsel and the Respondent and have been duly considered by
the Trial Examiner.
Issues Presented
The pleadings present the following points for determination by the Trial
Examiner:
Point 1 . Whether the Board has jurisdiction in the premises.
Point 2 . Whether Respondent 's promises during the week of Decembe,• If,
1952, and subsequent grant of wage increases and other benefits con-
stitute violations of Section 8 (a) (1) of the Act.
Point 3 . Whether the discharge of employee Robert Essig and the discharge
and/or failure to recall the five employees named in the amende3
complaint constitute violations of Section 8 (a) (3) of the Act.
Point 4. Whether the Respondent refused to bargain with the Union coii-
stitutes a violation of Section 8 (a) (5) of the Act.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT 2
1. THE BUSINESS OF THE RESPONDENT AND THE BOARD 'S JURISDICTION
The Respondent is a Connecticut corporation engaged at New Milford , Connecticut,
in the manufacture of mouldings to be used in electrical connectors . It was or-
ganized and went into production about October 1952, and its entire production was
contracted to Winchester Electronics , Inc. H . H Burt , is president of both the R--
spondent and of Winchester Electronics , Inc., and the stock of the two corporations
is commonly held. At the time the Respondent went into production it was esi i-
mated that it would produce approximately one-third of the plastic mouldings re-
quired by Winchester Electronics , Inc. During the first 6 months of production its
net sales to Winchester Electronics , Inc., amounted to more than $48,000. Win-
chester Electronics , Inc., is concededly engaged in interstate commerce. The Re-
spondent's operations clearly fall within the Board 's jurisdiction under the critei is ap-
plied in Hollow Tree Lumber Company, 91 NLRB 635.
I find that the Respondent is engaged in commerce within the meaning. Af t le
Act .3
II. THE LABOR ORGANIZATION INVOLVED
I find that the United Rubber , Cork, Linoleum and Plastic Workers of Anieric a,
CIO, is a labor organization admitting to membership employees of the Responde it.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As indicated in the General Counsel's brief, in the main there is no dispute of er
the pertinent facts in the case . The undisputed facts may be stated in the following
chronological sequence:
1. The Union's organizational campaign was carried from November 28 through
December 9, 1952, and resulted in 10 of the Respondent 's 13 production and main-
tenance employees signing cards authorizing the Union to act as their collecti ie-
bargaining agent.
a This findings of fact is based upon a consideration of the entire record and observation
of witnesses . To avoid unnecessarily burdening this report, all evidence on disputed
points is not set forth , but all has been considered and where necessary resolved. In de-
termining credibility , I have considered , among other things, demeanor and conduct of
witnesses; their means and opportunity for knowledge of the things about whi.h t3ey
testified ; their candor or lack thereof ; apparent fairness , bias, or prejudice
; their interest
or lack thereof ; and whether they have been contradicted or otherwise impeached.
a The Board heretofore decided this question in Case No. 1-RC-3114 on March 3, 16153,
and in any event, I would feel bound by that decision.
PYNE MOULDING CORPORATION 1715
2. On December 11, 1952 , William Fernandez , Jr., a field representative of
the Union , wrote the Respondent requesting recognition as such bargaining agent and a
meeting for the purpose of collective bargaining.
3. On December 13, 1952 (Saturday), the Respondent received said union
letter.
4. On December 15, 1952 (Monday), employee Robert Essig was called into Man-
ager Salusberry 's office and interrogated as to the reasons for the employees' dissatis-
faction with working conditions . Following some discussion regarding the em-
ployees' gripes, Salusberry outlined a program of benefits which he stated the Re-
spondent planned to institute.
5. On December 17 or 18, 1952 (or 18th and 19th), all of Respondent's em-
ployees were called individually into Manager Salusberry's office for a conversation
similar to that with Essig mentioned above.
6. On December 18, 1952, W. H. F. Millas, Esq., Respondent's attorney, wrote
to the Union refusing to recognize it as the bargaining agent.
7. On December 19, 1952, employee Robert Essig was discharged.
8. On various dates between December 19, 1952, and February 5, 1953, the Re-
spondent instituted certain improvements in the employees ' working conditions, such
as the installation of candy machines.
9. On the morning of February 5, 1953, employees Tyskiewicz, Swift, Rimbocchi,
and Chiavuzzi were notified that their pay had been increased in the amount of 15
cents per hour, to $1.45 per hour.
10. On the afternoon of February 5, 1953, the Respondent posted a notice of the
layoff of all production employees for an indefinite period.
11. From February 24, 1953, to March 16, 1953, employees Coons, Chiavuzzi,
Pomakatis, Campbell, and Joly were recalled by the Respondent to work in the order
mentioned and at increased rates of pay. Employee Medlicott was also offered re-
employment but refused. Notices of rest periods and of benefits were posted by the
Respondent during this period.
Discussion
Point 1: Having heretofore disposed of point 1, in paragraph numbered I of this
report, I will now proceed to deal with the remaining points in the order listed.
Point 2: The complaint alleges that the Respondent violated Section 8 (a) (1) of
the Act by promises during the week of December 15, 1952, and the subsequent
grant of wage increases and other benefits'
Section 8 (a) (1) forbids an employer "to interfere with, restrain, or coerce" em-
ployees in the exercise of their rights to engage in or refrain from engaging in col-
lective bargaining and self-organizational activities as guaranteed by Section 7 of
the Act.
The Respondent, as already indicated, was only recently organized in October
1952. On October 31, 1952, the Respondent submitted a schedule of wages pro-
posed to be paid its employees to the wage and hour division, Department of Labor,
Hartford, Connecticut. On December 18, 1952, the Respondent was notified in
a letter from the regional chairman of the Wage Stabilization Board, Boston,
Massachusetts, that their application, with certain modifications, had been approved.
However, prior to that date, and late in November or early in December 1952,
a member of the Boston Wage Stabilization office called Personnel Manager Elvin E.
Shoop, of Winchester Electronics, Inc., and advised him of the proposed action.
Mr. Shoop also performed similar duties for the Respondent Corporation. None
of these proposed benefits had been communicated to the employees of the Re-
spondent. Robert Salusberry, acting in the capacity of plant manager of Respond-
ent, shortly thereafter, called Robert Essig, one of the older employees in point of
service, into his office, explained to him the wage and other benefits which had
been approved by the Wage Stabilization Board, and asked what if any complaints
he and the other employees had. A few days later the other employees were called
in by Salusberry and he conversed with them in similar manner and told of the
additional benefits which the Wage Stabilization Board had approved. Some of
the complaints involved the attitude of Foreman Schwing, a need for candy and
cigarette vending machines in the plant, rest periods, and group insurance. The
letter received by the Respondent on December 15, 1952, from the Union, re-
quested recognition as bargaining representative for the Respondent's production
4 The complaint also alleges that the Respondent violated Section 8 (a) (1) through
the interrogation of certain employees as to their union affiliations However, the record
contains no evidence to support this allegation and the General Counsel has apparently
abandoned this contention since it is not mentioned in his brief.
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees. The evidence does not establish that the action of
Salusberry in notifying Essig and the other employees shortly thereafter wa; for
the purpose of influencing or coercing its employees. It seems natural to sufpos,,
that the Respondent, through Salusberry, acted in the usual and proper course of
conducting its business in notifying the employees of the additional benefits which
the Wage Stabilization Board had approved, and also in inquiring as to what -.om-
plaints they had about their working conditions. This would seem to be the nc rma 1
course for the Respondent to have followed.
Subsequently Joseph Ross, who had been installed as foreman at the Respondent's
plant, made a wage survey of the wages paid in the surrounding area to press
operators performing the same kind of work which was performed by the Re -
spondent's press operators, and determined that the wages paid by the Respondert
were too low. After the Respondent's laid-off press operators were rehired, they
were paid $1.50 per hour, which was an increase over the rates they had received
before being laid off. This increase and certain other benefits which were granted
the employees as they were called back to work was made possible because `mage
Stabilization regulations were no longer in effect.
Under these facts, I find and conclude that the additional pay and other benefi s
which were granted were entirely proper and did not constitute a violation of the
Act. As the Board stated in Hudson Hosiery Company, 72 NLRB 1434:
. .. By this we do not mean that an employer is foreclosed from announcirg
or granting economic benefits during a union's organizational campaign or
during the period of a Board election.
The chronology of these events make it obvious that the Respondent applied
to the Wage Stabilization Board for approval of the additional wage and other
benefits for its employees considerably prior to, and without any thought of, the
possibility of a union campaign in its plant. It is also obvious that the Respondent's
action in notifying its employees of the additional benefits which the Wage Stabiliza-
tion had been approved was in nowise related to the receipt of the Union's request
for recognition as bargaining agent.
Point 3: The complaint alleges that the discharge of employee Robert Ess g and
the discharge and/or failure to recall the five employees named in the amended
complaint constitute violations of Section 8 (a) (3) of the Act.
Section 8 (a) (3), insofar as is here pertinent, forbids an employer to discriinini"te
against employees "in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in a labor
organization."
It should be pointed out that the record contains no indications that the Employer
has been guilty of antiunion bias, or that it interrogated any of its employees i e-
garding their views or attitude toward the Union. The Respondent's foe eman,
Joseph Ross, about 2 days before the scheduled bargaining election, after working
hours while in the plant washroom, made the following statement to the m-,n:
If it is your feeling you want a union organization, a union in this plane-that
is your privilege and there will be no discharge or nobody discharged f they
vote a union in this plant. . . . It is perfect okay with us if you vote the
union in; we shall have the union here if it is your desire to haie the
union. . . . After the union gets voted in any of you men feel you I ave to
join it in order to keep your job, you have the privilege of joining or not joining;
that's your prerogative.
The record does not disclose that Salusberry or any other member of tie Re-
spondent's management made any investigation as to who belonged to the Un on
or discussed the Union with the employees.
The complaint charges that Robert Essig was discharged because of his acti-ity
in and on behalf of the Union. The Respondent denies this, and says, instead,
that Essig was discharged for cause-because of his poor production record and
because he was "laying down on the job."
The General Counsel's chief witness, who testified on the Essig discharge, was
Joseph J. Schwing. He testified that he was originally hired by the Respondent as
general manager; that a few months later he was replaced in his management duties
by Robert G. Salusberry and remained as foreman in charge of production and
moulds; and that subsequently he was relieved as foreman and remained w super-
visor of the moulds. A day or two following the layoff he was discharged. He tes-
tified that he was not happy with the demotions which he had received. :3e first
testified that he had resigned his employment with the Respondent and Inter ad-
mitted that he had been discharged. He testified that the reason given by Salusberry
PYNE MOULDING CORPORATION 1717
for discharging Essig was his low production , but that he felt that it was because of
Essig's union activity . He said that Salusberry told him that this was the real reason.
Salusberry denied this . Salusberry testified that production records had been kept
on Essig and another man who was operating the same press which Essig was oper-
ating, that Essig 's production was so low , and that he did not seem to be giving a
normal amount of effort to his work . Schwing corroborated Salusberry 's testimony
as to Essig's poor production record . He stated that Essig produced only about half
as much as another new employee and that he appeared to be "laying down on the
job." 5
I was favorably impressed with the appearance , demeanor, and apparent willing-
ness of Salusberry to fully and frankly answer the questions put to him , and, ac-
cordingly, accept and credit his version of the discharge of Essig, and reject the
testimony of Schwing , whose manner, demeanor , and reluctance to answer ques-
tions propounded to him on cross-examination , impressed me with his bias and
untrustworthiness . I, therefore , find and conclude, that the manner in which Rob-
ert Essig performed his duties with Respondent and his poor production were such
that the Respondent discharged him for cause , as the Respondent had a perfect right
to do. The Act only prohibits an employer from discharging an employee for
union activity . The Act does not prohibit an employer from discharging an
employee for any other reason.
The complaint also alleged that the Respondent discharged and/or failed to recall
from layoff employees Frank Dougherty , Ralph Johnson , August Rimbocchi, Ray-
mond Swift, and John Tyskiewicz , in violation of Section 8 (a) (3) of the Act.
There is no evidence in the record to indicate that these five employees were
discharged . The evidence shows, instead , that they were laid off for an indefinite
period of time. It became apparent that Winchester Electronics , Inc., expected to
reject all moulding which were produced by the Respondent until the Respondent
was able to produce mouldings which came up to Winchester 's requirements . There-
upon , the Respondent posted a notice on the plant bulletin board notifying these
and the other production workers that the moulds would have to be reworked, and
that they would be laid off indefinitely effective at the close of business on Friday,
February 6, 1953. Schwing, whose services as a foreman had proven unsatisfactory,
was discharged and Ross, the new foreman , was employed with authority to hire,
fire, and fix the rates of pay. The presses were converted to individual oil pressure
presses, and the moulds were reworked . As this was done Ross , being anxious to re-
sume production , began to recall the laid-off workers . During the layoff period
he also made a survey of the wages paid in the adjacent area, and determined that
the press operators who were called back on the job should be paid a starting rate
of $1.40 per hour , with an increase up to $ 1.70 within a year . Ross began recalling
production workers on the basis of their past production records. Up to the date of
the hearing he had recalled five of the mould operators . He testified that he expected
to recall others as their services were required in the anticipated expansion of produc-
tion . There is nothing in the record to indicate that Ross knew or cared who
belonged to the Union or ever undertook to inquire along this line. He testified
that he expects to recall all the laid -off press operators before employing a single
outside press operator . Under these circumstances I find and conclude that the
Respondent has committed no violation of Section 8 (a) (3) of the Act in connec-
tion with the layoff or failure to recall these employees.
Point 4: The complaint alleges that in violation of Section 8 (a) (5) of the Act, at
various times since December 15, 1952, the Respondent has refused to bargain and
refuses to bargain collectively with the Union.
The evidence on this point while somewhat meager, is abundantly clear. William
Fernandez , Jr., International representative of the Union , on December 11, 1952,
wrote the Respondent a letter in which he stated that "a majority of the employees
of your production and maintenance departments have designated the United Rub-
ber, Cork , Linoleum and Plastic Workers of America , CIO, as their collective bar-
gaining agent for the purpose of negotiating with you with respect to wages, hours
and working conditions ," and requested that the Respondent recognize the Union as
such bargaining agent , and that a conference be arranged at an early date for the
purpose of collective bargaining . W. H. F. Millas, Esq., attorney for the Respond-
6 Schwing also testified that Salusberry told him that Burt, the Respondent 's presi-
dent , did not want the Union in the plant . Even if this statement is believed it fails to
establish any violation of the Act . As I commented in The Deming Company, IR-153,
"While the Act requires an employer to commit no unfair labor practice in connection
with a union organization campaign, the Act does not require an employer to welcome
the union into his plant with open arms, or to entertain regard and esteem for the union."
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, advised Mr. Fernandez, by letter dated December 18, 1952, that "the company
is without knowledge as to whether or not your union represents a majority of its
production and maintenance employees and therefore must decline to recognize your
union as the collective bargaining agent at this time." The Union thereupon filed its
petition with the board seeking a representation election. Respondent participated
in the hearing. An election was ordered by the Board, and on the very day set for
the holding of the election, the Union withdrew its petition and the Board cancelled
the election. The record contains no other evidence of a request to bargain.
The Act requires an employer to bargain in good faith with the representative se-
lected by a majority of employees in a unit appropriate for collective bargaining,
and Section 8 (a) (5) makes it an unfair labor practice for an employer to refuse to
do so. However, here an appropriate unit had not been established nor did the Union
offer to prove to the Employer that it was in fact the duly authorized bargaining
agent for the employees which it purported to represent.
While the Board and the courts have held that a refusal to bargain made in com-
plete good faith by an employer under circumstances of this character may be con-
verted into a refusal to bargain through the employer subsequently committing other
violations of the Act, as I have already found, the General Counsel has failed to
establish by credible evidence that any other violation charged in the complaint
was in fact committed by the Respondent. The burden of establishing that the
Respondent failed or refused to bargain in good faith with the Union rests upon the
General Counsel. I find and conclude that he has failed to prove that the Respondent
violated Section 8 (a) (5) of the Act.
During the course of the trial the Respondent moved the Trial Examiner to strike
from the record the portions of the testimony of the General Counsel's witnesses
Essig, Tyskiewicz, Rimbocchi, Swift, Campbell, Yarochoviez, and Johnson, which
related to alleged conversations with Salusberry, the Respondent's acting plant man-
ager. The basis of the motion, which was renewed in Respondent's brief, being that
the statements attributed to Salusberry by these witnesses were permissible as "free
speech" under Section 8 (c) of the Act. I overruled the motion at the hearing,
but since counsel have seen fit to renew it in the brief the matter perhaps deserves
at least passing comment. Since this testimony is not properly subject to a motion
to strike I, therefore, adhere to my former action in overruling Respondent's mo-
tion. In this connection, it seems not improper to state that had Respondent's
counsel, instead of this motion, at the close of the General Counsel's proof-in-chief,
moved to dismiss the complaint in its entirety because the General Counsel's failure
to make out a case, I would have felt constrained to grant same.
In consideration of all of the foregoing, I find that the Respondent did not violate
Section 8 (a) (1), (3), or (5) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a
labor organization within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Pyne Moulding Corporation is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. Respondent Pyne Moulding Corporation has not engaged in any unfair labor
practice within the meaning of the Act.
[Recommendations omitted from publication.]
SAFEWAY STORES , INCORPORATED and RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL. Cases Nos. 33-CA-235 and 33-CA-238. De-
cember 16,1954
Decision and Order
On December 10, 1953, Trial Examiner Martin S. Bennett 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
110 NLRB No. 242.