Rennie Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1973

202 N.L.R.B. 1117 (N.L.R.B. 1973)

RENNIE MANUFACTURING CO. 1117
Rennie Manufacturing Company, Inc. and Interna-
tional Ladies Garment Workers Union AFL-CIO.
Case 1-CA-8327
April 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 30, 1972, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and General Counsel
resubmitted his brief to the Administrative Law
Judge as his brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings'
and conclusions 2 of the Administrative Law Judge,
and to adopt his recommended Order,3 as herein
modified.
"tremendous increase" in the existing pension fund in violation of Sec.
8(a)(1) Chairman Miller and Member Penello do not adopt this conclusion
The record establishes to their satisfaction that at least I year prior to the
advent of union activity, Respondent had notified its employees in writing
of the procedure it inaugurated to increase pension and retirement benefits
Thereafter, it submitted its plans to the IRS for approval , which approval
was granted in February 1972 Respondent 's disclosure , at its May I and 2
meetings , of past approval by a government agency of its previously
announced plans contained no'promises of benefit not already granted and
announced In their view , while an employer may not institute new benefits
in order to influence their employees ' free choice , neither need an employer
conceal the existence of benefits lawfully decided upon An employer is
entitled to inform his employees of the full range of benefits which have
been lawfully provided to them , since that is clearly relevant to their
decision as to whether they desire to band together in a collective attempt to
bargain with their employer for new or improved benefits.
Member Fanning agrees with the Administrative Law Judge that
Respondent 's announcement on May I and 2, 1972, 1 week after the union
meeting of April 24 and 4 days after the unlawful discharge of Moritz on
April 27, that the IRS had approved a substantial increase in the retirement
benefits of employees 2 months earlier was calculated to and had the effect
of interfering with the employees ' organizational rights In the context of
Respondent 's promises of benefit and other unfair labor practices , Member
Fanning is of the view that the announcement of substantial retirement
benefits at this critical time was similarly violative of Sec 8(a)(I).
3 Chairman Miller does not agree that Respondent 's statement that a
decision had been made to eliminate the practice of posting the piecework
chart was violative of Sec 8 (a)(1). Respondent 's decision to cease the
posting practice antedated the advent of the Union , and resulted from
employee complaints occurring over an extended period of time . Conse-
quently, the Chairman's position is that, as in the case of the pension benefit
announcement, the conception of the benefit was legitimate , and a normal
delivery was equally legitimate See his dissent in Tommy's Spanish Foods,
187 NLRB 235, adopted by the Ninth Circuit in N.LR B v. Tommy's
Spanish Foods, Inc, 463 F 2d 116
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as herein
modified, and hereby orders that Rennie Manufac-
turing Company, Inc., Taunton, Massachusetts, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order as modified below:
1. Delete paragraph 1(a) of the Administrative
Law Judge's recommended Order and substitute
therefor the following:
"(a) Promising and granting improvements in
incentive rates, announcing improvement in working
conditions to discourage union organization, and
creating the impression among employees that their
union meetings and activities are under management
surveillance."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge found that Respondent accelerated an
announcement that the Internal Revenue Service had granted approval of a
202 NLRB No. 152
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise or grant improvements
in incentive rates, announce improvements in
working conditions to discourage union organiza-
tion, or create the impression among employees
that their union meetings and activities are under
management surveillance.
WE WILL NOT discharge, or otherwise discrimi-
nate against , any employees in order to discour-
age membership or support for International
Ladies Garment Workers Union , AFL-CIO, or
any other labor organization.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their rights guaranteed in the National Labor
Relations Act, which are as follows:
To engage in self-organization
To form, join , or help unions
To bargain as a group through a repre-
sentative of their own choosing
To act, together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
Since it has been found that we unlawfully fired
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John J. Moniz, WE WILL offer to give him back his
job and seniority, and WE WILL pay him for the
earnings he lost, plus 6-percent interest.
All of our employees are free to become, or remain,
or refrain from becoming or remaining, members of
any union of their choice.
RENNIE MANUFACTURING
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor-Bulfinch ^Building,
15 New Chardon St., Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: On
August 3 and 4, 1972,1 this case was tried before me in
Boston , Massachusetts , upon a complaint by the General
Counsel,2 alleging that the above-captioned Respondent
discharged one employee and engaged in independent acts
of coercion, in violation of Section 8(a)(3) and (1) of the
Act. Respondent denies the alleged violations.
Upon the entire record of the case, with due considera-
tion given the briefs filed by General Counsel and
Respondent, and from my observation of the demeanor of
the witnesses on the stand , I make the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Respondent is engaged in the manufacture , sale, and
distribution of curtains and related products at its plant in
Taunton, Massachusetts. Annually Respondent has a
direct inflow and a direct outflow in interstate commerce,
in each instance valued in excess of $50 ,000. Respondent
admits, and I find , that it is engaged in commerce , and that
I All dates are in 1972 unless otherwise noted
2 The charge by the Union was filed and served by registered mail on
May 5 , and the complaint thereon was issued on May 30
the Union is a labor organization within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Principal Issues
1. Whether Respondent, on April 27, discriminatonly
discharged employee John J. Moniz.
2. Whether Respondent , in speeches to employees on
May I and 2, (a) created the impression that the
employees' union activities were under Respondent's
surveillance ; (b) promised an improvement in the incentive
rate system; (c) promised to cease the practice, disfavored
by employees , of posting their individual performance
under the incentive rate system; (d) accelerated its
announcement of an Internal Revenue Service approval of
a substantial increase in pension and retirement benefits
-all with the purpose of discouraging support of the
Union in its newly begun organizing campaign.
B. Introductory Facts
Moniz was employed from mid-January until his
discharge on April 27, as a floorboy in the stitching room.
As a part-time employee , he worked from 7 a.m. until
noon , 5 days a week .3 His general assignment was to help
three assistant foremen , Gerald A. Scully, Paul Camara,
and Walter Feigo, who supervised separate and approxi-
mately equal sections of the stitching room . The pertinent
hierarchy also consisted of-William J. Heath , stitching
department foreman ; Kenneth Santos , general manager;
and Clifford Seresky, vice president and treasurer.
C. Organizational Activity
On April 11 , after talking to other employees on the
subject , Moniz made the initial approach to the Umon by
telephone . A meeting of employees with union officials was
arranged. Thereafter , Moniz solicited employees to attend
the meeting ; about 12 employees told him they would
come. On April 24, some 17 to 20 employees met with 4
union agents at the Gondola Club in Taunton. Union
authorization cards were signed by all employees present
and blank cards were taken for solicitation of other
employees . Moniz was designated as the Union's contact at
the plant in the handling of union cards. In the following
days, Moniz was actively engaged in the solicitation of
employees within the plant on working time , during which
he obtained 10 to 12 signed cards. Throughout this period,
Supervisor Scully was aware that Moniz and other
employees were passing union cards , openly and visibly, in
his department. Within a few feet of Scully, such activity
by Moritz took place on April 27, the day he was
discharged . Scully testified he did not reveal such knowl-
edge to any other member of management . From the
testimony, it plainly appears that Scully was sympathetic to
the Union . He had himself signed a union card, and had
3 Moniz also had a job at another employer, a union shop , where he
worked from 3 to I I p .m each day
RENNIE MANUFACTURING CO.
been regularly consulted by Moniz concerning the various
steps of his organizational endeavors.4 However, a serious
issue is raised as to whether Scully's awareness of the
general union activity, and the involvement of Moniz, can
be imputed to Respondent. This question will be treated
infra. As testified by employee witnesses , during the period
from April 24 to 27, employees were similarly engaged in
the passing and signing of cards in the departments
supervised by Camara and Feigo.
D. Subsequent Events
1. Discharge of Moniz
On April 27, at 11:30 a.m., Moniz was called to Foreman
Heath's office and notified of his discharge. Moniz
testified, in substance, to the following conversation:
Heath said that he was not satisfied with his work, and that
he (Moniz) was spending too much time talking with
Supervisor Scully and smoking when he was supposed to
be working. When he asked what it was that he had failed
to do, Heath "just repeated" the same reasons. He told
Heath that he did not have to hand him a line because both
of them "knew what this was all about."After Moniz was
given his pay, Heath escorted him to the door and said, "I
hope you can find another job, because I don't really know
what this is all about." Heath testified: He gave Moniz as
the reasons for discharge that he was taking too many
breaks and was not doing his job. He related that it was
one of Moniz' duties to keep a certain alley clear of trucks
and merchandise before noon, so that employees could
proceed to the timeclock to punch out during the lunch
period. He indicated that, at times in the past, this was
neglected by Moniz.5 About 11:30 a.m. that day, he
observed, from a distance of 150 to 175 feet, that Moniz
was talking and smoking together with Supervisor Scully at
the latter's work station. He had also seen at this time that
trucks were blocking the alley. It was then he decided to
fire Moniz. Heath described that "most of the time" when
he saw Moniz he would be standing around in Scully's
department taking an "unauthorized" breaks On three
occasions in the past, he had given Moniz verbal
"warnings," viz.: In mid-February, he told Moniz that he
had certain duties to perform and he was not doing them.
Heath could not remember the specific reason of the
warning at that time; it was "probably" because Moniz
was not "cleaning the alley out." About 3 weeks later,
Heath spoke td' Moniz about taking too many smoking
breaks. A few days before Moniz was discharged (on April
27), Moniz came to him, angrily complaining about
Assistant Foreman Feigo, and calling Feigo a "f-
asshole." He told Moniz that he had to watch his language,
that he had to get along with these people, and that he
could lose his job if he kept that up. Thereafter, Heath
asked Feigo what had occurred,7 and was told that Moniz
4 Scully testified that , "at the time" he agreed it was a good thing to have
a union in the shop.
5 According to Mary Souza, the alley has always been cluttered during
the 5 years of her employment.
6 One regular break is provided in the morning and one in the afternoon.
Heath stated that other breaks are solely in his discretion, and cannot be
granted by the assistant foreman . However, if an employee, or an assistant
foreman , was caught up in his work, a break was permitted.
1119
refused to carry out Feigo's• orders, had called Feigo
abusive names, and had actually pushed Feigo. At the time
of these alleged incidents, no disciplinary action was taken
against Moniz. Respondent contends that Heath alone
made the decision to discharge Moniz on April 27.
2. The speeches
On May 1 and 2, all the, employees, in about eight
separate groups at different times, were assembled and
addressed by Vice President Seresky and General Manager
Santos .8 At each meeting, letters in English and Portu-
guese , dated May 1 over Santos' signature , were distributed
to the employees in attendance .9 Most of the employees in
the plant were foreign born and could not understand
English. Santos translated Seresky's speeches into Portu-
guese and also answered the questions of employees which
Seresky invited after his speeches. Seresky stated that he
made essentially the same statements to all groups of
employees; no prepared text was used.'°
Mary Souza, present at the first speech, testified that
Seresky told the employees: He knew that the Union was
trying to get into the shop; that the Union "wasn't good";
that they could do without it; and that they could talk to
him about any problems. It was the employee's free choice
whether or not they wanted to sign a card. He knew about
the (union) meeting at the Gondola Club, and also referred
to a meeting at a girl's house. He knew the employees were
dissatisfied with the incentive rate system and he would try
to help them so that they would be able to make more
money. Some of the employees had complained about the
Company's posting charts which showed the percentage
rate of each employee under the incentive system. He
announced that the decision has been made to get rid of
that practice. Some girls had called him and wanted their
cards back; those who signed could get their cards back. It
was a free country and they could sign or not sign a card,
as they wished. Seresky was asked many questions.
Mary M. Coute, who was not in the same group as
Souza, gave the following account: Seresky said that the
Union was trying to get in, and it was telling the employees
a lot of lies. He could take them to Fall River to speak to
people in the Union; and these people were dissatisfied. He
knew what had been going on at the union meeting, and he
could name a few employees who were there.
The foregoing is essentially uncontradicted or confirmed
-except that Seresky denied that he said he knew who
was present at the union meeting at the Gondola Club, and
that he promised an improvement in the incentive rates.
No employees were called as Respondent's witnesses. In
the light of the full record, inter alia, Souza and Coute are
credited.
Santos' letter of May I states the following, in part:
Dear Fellow Employee:
On last Friday I was told by a friend that some union
r Feigo's version was that he sought out Heath.
8 Foreman Heath and the particular assistant foreman were also present
at each speech . Only Seresky and Santos testified for Respondent
concerning the speeches.
9 Seresky instructed Santos as to the contents of the letter , and legal
counsel was consulted.
15 The evidence actually shows variations in statements to different
groups.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people were making problems for you. Don't be
fooled!! They can't make you sign anything! If they did
fool you and you have signed a card, you have the right
to get the card back.
The union people will tell you anything. They will tell
you they will get you more pay. How? Will it pay you
higher pay? Of course NOT! Your Company pays you
the highest pay possible. If it were possible to pay you
more, your company would.
The union said that it will increase your Health
Insurance. Do you remember that in April, 1971, your
Company doubled your insurance benefits? The union
said it will increase your Pension and Retirement. Do
you know that in February, 1972, the Internal Revenue
Service approved a tremendous increase in your
Pension and Retirement fund? In fact, we have not
even had a chance to announce it yet.
E. Concluding Findings
1. Restrain and coercion
I find that Vice President Seresky's speeches created the
impression among the employees that their union activities
were under the surveillance of Respondent. Thus, he knew
about their union meeting, where it was held, what
transpired, and the names of a few employees who were
there. In my opinion,- these statements were clearly
calculated to, and did, intimidate the employees as to the
security they had in the privacy of the union meetings.
Respondent thereby violated Section 8(a)(1).
Seresky said he would try to help the girls so that they
would be able to make more money under the incentive
rate system. One or two weeks after Seresky's speeches,
certain-of the incentive rates were in fact improved, which
permitted the employees involved to earn more money.
The evidence shows that time studies bearing upon the
incentive rates were being conducted in certain sections of
the plant prior to Seresky's speeches. Respondent contends
that there was a continuous process of reviewing incentive
rates and that the changes in rates which were made
following the Union's organizing campaign were entirely
"fortuitous." The thesis that, because the process is
continuous, all adjustments in the incentive rates are
lawfully motivated is unacceptable. There had been many
complaints from the girls that the rates were "too tight,"
which operated to restrict their earning power. It is
undeniable that Respondent could readily control the
rates, up or down. The time studies conducted after
Seresky's speeches were done in the presence of General
Manager Santos. As shown, Seresky made the promise of
an improvement in the rates in the context of antiunion
speeches. This alone, as I find, was intended and
interpreted as an inducement. On the evidence, it cannot
The individual slip shows
NAME
WEEK ENDING
PERCENTAGE % equals $ while on Rate
FOREMAN'S APPROVAL
be held that the improvement in rates shortly thereafter
would inevitably have occurred in the normal course of the
reviewing process. When these improvements were effect-
ed, the employees had reasonable grounds to believe they
were the fulfillment of Seresky's promise. Respondent did
nothing to disabuse the employees of such a belief, and it
can be fairly inferred that Respondent's purposes were
served in allowing this understanding to prevail. It is
found, therefore, that Respondent violated Section 8(a)(1)
as to the promise and the subsequent grant of improved
incentive rates.
In his speeches, Seresky also announced that he was
getting rid of the practice of posting charts, which reported
on a weekly basis the individual performance of each
employee under the incentive rate system. This practice,
also called the "report card," was a continuing source of
irritation to the employees, of which Respondent was well
aware from the complaints of employees. In the evening of
May 1, after Seresky's speeches, all the posted charts
(permanently posted in each department) were 'taken
down. On May 2, a new procedure was put into effect, with
a slip distributed to each employee under the incentive
system showing only her individual performance for a
preceding weekly period. The girls were "happy" as a result
of the change. Santos stated that he had been "fighting"
and opposing the posting of these charts since he assumed
his position of general manager in July 1971-and then he
proceeded to testify that he himself made the decision to
eliminate the practice in April 1972. However, Assistant
General Manager James McCarty, who handled certain
details of the change, testified that "we, had been
contemplating it for a couple of weeks before it took
place." He later stated the decision was made "probably"
in early April. Respondent asserts, in essence, that a firm
decision had earlier been made to abandon the charts and
that the effectuation of the change following the appear-
ance of the Union was entirely coincidental. It developed
testimony that it became necessary to design the individual
slips to be given the employees, to train employees in
performing new mathematical computations, and to punt
the slips in the plant printing shop, all of which accounted
for the delay." I am unable to reconcile this defense in the
total context. Knowing the strong concern of the employ-
ees on this subject, it is unlikely that Respondent would
not reveal such a decision at the time it was purportedly
made. In a prospective vein, Seresky told the employees
that the unpopular practice was being stopped; indeed, the
charts were removed that evening, and the individual slips
were distributed the next day. In any event, I do not accept
the testimony that so much time was necessary, or actually
taken, to prepare for the new procedure of using individual
slips. From the substance of Seresky's speeches and Santos'
letter, Respondent's intent is quite plain that it sought to
influence these employees to reject the Union-specifically
mentioning several conditions of benefit theretofore
unknown to the employees. I find Respondent's announce-
ment that it was getting rid of the posting of charts
involved a cognizable change in working conditions
deliberately timed to achieve a coercive result. The alleged
violation of Section 8(a)(1) is accordingly upheld.
Essentially the same reasoning applies to the announce-
RENNIE MANUFACTURING CO.
ment that the I.R.S. approved a "tremendous increase" in
the employees' pension and retirement fund. Emphasizing
Respondent's intended impact on the employees, Santos'
letter states: "In fact, we have not even have a chance to
announce it yet." The allegation does not pertain to the
promise or grant of a benefit, but to the acceleration of
such announcement to the employees, which would not
have been made at this time but for the fact of the initial
and critical stage of the Union's organizational drive.
Thus, I cannot find that justification was established by
Respondent's elaborate explanation that its request for
I.R.S. approval was submitted in early 1971; that it
informed the employees by letter in April 1971 that the
Company contracted with an insurance underwriter to
"substantially increase" the retirement benefits; that it had
already received I.R.S. approval for the plan in February
1972; and that it withheld announcement of the approved
plan because it had asked the insurance carrier to prepare
explanatory booklets for employees, which the carver
unduly delayed; and that one employee was accorded the
benefit of the new plan on her retirement in April 1972. It
may be noted that Respondent found no difficulty in
advising the employees, in April 1971, much before the
plan was approved, of the procedure it inaugurated to
increase the retirement benefits. Within the full year which
followed, it took no steps to inform all new employees, and
remind old employees, of the status of the pending matter.
It could well have apprised all employees of the I.R.S.
approval in February 1972, without immediately furnishing
booklets, in the same manner that it reported to the
employees on the subject in April 1971. In this instance, as
with the other announcements concerning conditions of
benefit to the employees, Respondent's explanations
present a combination of remarkable coincidences which
lack the force of probative persuasion. In sum, I am
constrained to hold that Respondent violated Section
8(a)(1), as alleged.
2. Discharge of Moniz
Extensive argument on both sides has been devoted to
the position of Respondent that, when Moniz was
discharged (on Thursday, April 27), it had no awareness
whatsoever of the union campaign, which had been under
way for more than 3 days. Seresky and Santos gave this
testimony, in substance: They acquired their first knowl-
edge of the Union from a report by Heath on Friday, April
28, that "he heard that" there was "buzzing" or "rumbling"
in the factory 12 "and Moniz was let go because of the
union activity." 13 Seresky also knew on Friday, from
Santos, that cards were being circulated in the plant.
However, he decided to deliver his speeches the following
Monday as a result of four phone calls he received over the
weekend from supposed "employees." These phone calls
were made to Seresky at his home in Canton, Massachu-
setts, from different girls on Friday night, Saturday
afternoon, Sunday afternoon, and Sunday midnight. In
12 " people who had been talking to [Heath], more than what they
talked to him previously, that ,there was Union activity in the plant"
Testimony of Santos
13 Mary Coute was one of the employees named by Heath as the source
of this information Coute, on rebuttal, denied it
1121
each instance, the person calling refused to identify herself,
stating when asked, that she was "afraid," or "afraid of her
job." Each of them raised questions about getting back
their signed union cards; and two of them advised Seresky
to tell the girls that they do not have to attend union
meetings and that they could get their cards back. His
purpose in making the speeches was to tell the employees
how they could get their cards back and to apprise them of
their rights. Seresky had never received such calls before
and normally had little contact with the employees. On
Monday, about 9-10 a.m., he asked Santos to prepare a
letter to be distributed to the employees, and company
counsel was consulted. The letter took 4 hours to compose;
the first speech was given about 2:30 p.m. Pressed by
General Counsel, Santos averred that the "friend," referred
to in the letter, who told him the Union was making
problems for the employees-was Foreman Heath. Put
succinctly, the manner and the substance of Seresky's
explanation concerning the weekend telephone calls
impressed me as being highly improbable, concocted, and
unbelievable. Seresky's testimony implies that Respondent
had a source of informants, voluntary or otherwise. And,
as earlier described, his speeches displayed an intimate
knowledge of the union meetings , and of some of the
participants, and unlawfully created the impression of
positive surveillance being conducted by Respondent. In
addition, the animus of Respondent is reflected in its swift
reaction to the advent of the Union, particularly in the
inherent coercion of its beneficial announcements to the
employees. Similarly, in Santos letter, specifying certain
union demands, Respondent purported to know with some
precision what the Union was telling the employees. This
knowledge could not reasonably have been derived from
the union "rumbling," and strongly suggests a much
broader acquaintance with the current organizing efforts of
employees. For several days immediately preceding the
discharge, there was open and intensive union activity in
the plant on working time-with Moniz engaged as a
leading advocate. As a further element gathered from the
entire record, I regard the testimony of Seresky and Santos
as vague, dissembling, and generally unreliable.14 Supervi-
sor Scully admittedly had knowledge of the union
campaign and of Moniz' principal participation. Normally
under the Act the doctrine of respondent superior would
apply to impute such knowledge to Respondent.15 Scully
gave testimony as Respondent' s witness . In its brief,
Respondent argues that Scully was acting "adverse" to its
interests and therefore it should not be held responsible for
his knowledge. Without accepting the validity of such a
contention, I do not consider it necessary to rely on
Scully's supervision as a critical element . All of the
foregoing, in my opinion, sufficiently supports the infer-
ence that Respondent knew or surmised Moniz' union
activity at the time of his discharge.
I credit the testimony that Moniz devoted a greater
14 Leading questions by Respondent were extensive in direct examina-
tions, despite repeated admonitions.
11 E g, Montgomery Ward & Company, Inc, 115 NLRB 645, 647, enfd
242 F 2d 497, 501 (C A 2), Extendicare of Kentucky, Inc, 199 NLRB No
47.
U
1122 DECISIONS OF NATIONAL LABOR RELATIONS'BOARD
proportion of his time to Scully, to whom he first reported
each morning.is Theoretically his work was to be distribut-
ed among Scully, Camara, and Feigo, as needed. While
taking assignments from one assistant foreman, he was on
occasion sought out or paged by one of his other
supervisors, and could properly have been fully occupied
or away from the range of the call. His duties consisted of a
variety of errands and minor functions. Thus, it appears
that he served three immediate masters, as well as Foreman
Heath-sometimes conflicting with each other on demands
for his limited time of 5 hours a day. Scully clearly stated
that he had no criticism of Moniz' work or conduct. Feigo
testified that he "could never find" Moniz, and that Moniz
failed to perform certain duties, e.g., clearing the alley,
filling the oil cans, and keeping the thread racks supplied.
Moniz testified that he performed these duties when
required, and received no complaints from management
concerning his work. Camara was not called to testify.
Respondent's chief grounds for his discharge, and the
precipitating cause, as already shown, was his taking
"unauthorized breaks" by talking and smoking with Scully
in Scully's department. Moniz certainly could assume he
was doing nothing wrong in such conduct while in the
company of his supervisor. Affirmatively it is shown there
were no rules against talking or smoking per se. I reject
Heath's efforts to deny the authority of Scully m this
regard.17 I question Heath's testimony that, whenever he
saw Moniz, "most of the time" he was engaged in such
unauthorized breaks. These ostensible wrongdoings could
not have been regarded seriously and were in any event
condoned. After Respondent learned of the Union's
campaign, it would appear that Moniz' conduct became
offensive.
In the discharge interview, Heath stated the reasons were
that Moniz was spending too much time talking and
smoking with Scully when he was supposed to be working.
On the evidence of both sides, it was Moniz' duty to clear
the alley by noon. Moniz testified he customarily cleared
the alley at 11.45 a.m. Here it may be noted that, on
Moniz' timecard, he was clocked out at 11:45 a.m. onl April
27-bearing in mind the added ground asserted by Heath
that Moniz failed to clear the alley on April 27. Written by
Heath, the timecard states-"Fired-not doingjob proper-
ly and taking too many breaks (unauthorized) after being
warned verbally various times (3)." The Feigo matter is not
specified. Filling the oil cans, supplying the thread racks,
and the Feigo incident were supplemented in Heath's
testimony.18 As to the Feigo matter, I find that it occurred
before Moniz became involved with the Union, rather than
the week of April 23 as stated by Heath and Feigo. Moniz'
denial that he "pushed" Feigo is credited. His testimony is
16 Initially Heath confirmed that Moniz spent more of his time with
Scully than with Camara and Feigo combined. Later, on leading questions,
he testified that Moniz was supposed to work "equally" for the three
assistant foremen Further, it is clear that Moniz in fact reported first to
Scully each morning, although Heath testified that Moniz was not so
instructed when hired.
17 Purportedly, Scully could not authorize such breaks. And Scully could
not tell Moniz to clear the alley, but Feigo could Elsewhere Heath testified
that Scully did his job well, and was never disciplined for too many breaks
18 Expressly at the hearing, Respondent also relied on the grounds,
unsubstantiated, that Moniz had heated words with other foremen, and
that, after being fired on April 27, Moniz' remark to Heath-"I'll be seeing
that he went directly to Heath concerning a dispute with
Feigo as to the removal of trucks from the alley,19 and
Heath expressed no dissatisfaction with his work. Looking
at Heath's own account, he mildly counseled Moniz to
"watch his language," and "he could lose his job if he kept
that up." There was no mention of pushing. Nor is it
alleged that such conduct recurred. Neither Heath nor
Feigo is credited in their respective versions of this
incident.20 Three weeks before he was discharged, Moniz
received a wage increase. Initially he was excluded from
the general raise which included only those part-time
employees working more than 25 hours a week. However,
an exception was made in his case after he took the matter
up with Heath.
The statutory test is one of motive-whether the
discharge was actually caused, in whole or in part, for
reasons of union membership or activity. In the entire
lengthy defense, it is apparent to me that Respondent
utilized the hearing to dredge up every possible criticism of
Moniz, real or fancied. The Feigo incident, failing to fill
the oil cans, not supplying the thread racks, being
unavailable when needed, and other generalities, were
injected as afterthoughts. The alleged unauthorized breaks
in smoking and talking with Supervisor Scully, and the
failure to clear the alley before noon, are largely unsup-
ported in the evidence as misconduct justifying discharge.
Even assuming Respondent's belief that these various
misdeeds occurred, I find they were old and recurring
matters of no serious concern to management until the
advent of the Union. Further considerations comprise, in
summary: the fabricated testimony of Respondent's
principal witnesses; the sudden development of a concen-
trated union campaign; Moniz' leadership designation and
activity; Respondent's awareness of the organizing cam-
paign; its reaction in the animus shown in Seresky's
speeches, Santos' letter, and the coercive pressures exerted
on the employees; and the significant timing of Moniz'
discharge at the height of the union drive. On the record
considered as a whole, I conclude that the variety of
reasons asserted by Respondent were raised as pretexts,
and that its true motive for discharging Moniz related to
his union activity. Accordingly, the violation of Section
8(a)(3) is sustained.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
Respondent in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
you"-constituted a threat
19 Moniz claimed that, after he repeatedly cleared the alley that morning,
Feigo proceeded to block it again with his materials
20 Feigo gave changing testimony, was prone to exaggeration, was and
unpersuasive as a witness His own detailing of the incident with Moniz
would indicate a decided weakness or reluctance in exercising his own
supervision. Yet the seriousness of the insubordination which he described
would, by ordinary standards, suggest an immediate disciplinary reaction If
Feigo did speak to Heath at the time of the incident , it is evident that the
matter was allowed to pass Furthermore, Feigo testified, incredibly, that
when he observed Moniz smoking, at least four times a day, he assumed
Moniz was not working and complained to Heath
RENNIE MANUFACTURING CO. 1123
the several States and tend to lead to labor disputes,
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby recommend the following: 22
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Particularly by reason of
the discriminatory discharge, which goes "to the very heart
of the Act," a broad order appears warranted.21
It has been found that Respondent unlawfully dis-
charged John J. Moniz in violation of Section 8(a)(3) of the
Act. It will therefore be recommended that Respondent
offer this employee immediate and full reinstatement to his
formerjob or, if suchjob no longer exists, to a substantially
equivalent job, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of
earnings suffered by reason of the discrimination against
him, by payment to him of a-sum of money equal to that
which he would normally have earned, absent the
discrimination, from the date of the discrimination to the
date of the offer of reinstatement, less net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Backpay shall carry interest at the
rate of 6 percent per annum, as set forth in Isis Plumbing
and Heating Co., 138 NLRB 716. It will also be recom-
mended that Respondent preserve and make available to
the Board, upon request, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1.' Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Be terminating John J. Moniz, thereby discouraging
membership in the Union, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By the foregoing, and by other acts and conduct
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
21 N L R B v Express Publishing Co., 312 U S 426, N L R B v Entwistle
Mfg Co, 120 F 2d 532 (C.A. 4).
22 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Rennie Manufactur-
ing Company, Inc., Taunton, Massachusetts, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising, granting, or newly-announcing conditions
of benefit to employees to influence their union activities
and sentiments; or creating the impression among employ-
ees that their union meetings and activities are under
management surveillance.
(b) Discouraging membership in International Ladies
Garment Workers Union of America, AFL-CIO, or in any
other labor organization, by discharging employees, or in
any other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer John J. Momz immediate and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings, in the manner set forth in
"The Remedy" section of the Administrative Law Judge's
Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy" section of the Administrative Law Judge's
Decision.
(c) Post at its Taunton, Massachusetts, plant, copies of
the notice attached hereto, as "Appendix,"23 Copies of said
notice on forms provided by the Regional Director for
Region 1, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
deemed waived for all purposes.
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "