Rodney Metals, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1966

160 N.L.R.B. 1419 (N.L.R.B. 1966)

RODNEY METALS, INC. 1419
Rodney Metals, Inc. and Local 899, International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW, AFL-CIO. Case 1-CA-5253. September 28,
1966
DECISIONS AND ORDER
On June 22, 1966, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions to the Deci-
sion and a supporting brief, and the Charging Party filed an answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
1. The Trial Examiner found, and we agree, that Respondent dis-
charged employee Philip Beauregard in order to discourage union
membership and activity in violation of Section 8(a) (3) and (1) of
the Act, rather than for cause. In addition to the reasons set forth by
the Trial Examiner for finding Respondent's explanation of the dis-
charge incredible, we note the following.
Beauregard's shift had been engaged in an operation which required
prepared steel and when the supply of steel was exhausted, it
became necessary to change to the processing of aluminum. Respond-
ent contends that Beauregard's failure to turn on an aluminum tank
in sufficient time to have it ready for the succeeding shift necessitated
a change from processing of aluminum to working on steel, thereby
causing a loss of 3 hours of production time and of several gallons of
paint. This is advanced as the primary reason for Beauregard's
discharge.
However, it is undisputed that it takes approximately one-half
hour, after the tank valve is turned on, to bring the aluminum tank
to proper temperature. Respondent's Foreman Monteiga admitted in
160 NLRB No. 107.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his testimony that Beauregard turned on the tank between 10 and 15•
minutes before his shift ended. It is also undisputed that the proper
paint had already been prepared for the aluminum run. Thus, going
ahead with the aluminum job could not possibly have caused more,
than 15 to 20 minutes delay. Furthermore, the very reason why the
tank was required in order to process aluminum was the lack of pre-
pared steel needed to continue a previous operation. Yet, Respondent
would have us believe that because the aluminum tank was not ready
at the start of the succeeding shift, it switched to a steel job, requir-
ing different paint. And, when the steel job had been completed, the
aluminum job was again prepared, again requiring a change of paint.
All this, Respondent claims, caused the loss of production time and
paint, as described above.
We find it incredible that Respondent, faced with a choice of either
waiting 20 minutes before starting the aluminum run or switching to
steel with a resultant loss of 3 hours' production and a waste of
materials, chose the latter course. Significant too is the fact that Auf-
frey, general foreman on Beauregard's shift, upon whose testimony
Respondent's story is based, gave confused testimony and became less
and less sure as to just what did occur. Thus, although contending
that there was an actual loss of time and materials, Auffrey stated, in
answer to a question as to what he had told Beauregard at the time,
of the discharge, that : "I believe that I said that in view of the omis-
sion of the aluminum set up it could cost the Company considerable
in production time and also fouled up our normal production sched-
ule." [Emphasis supplied.]
Under these circumstances, we are persuaded that no such loss in
fact occurred. We conclude, rather, that Respondent seized upon
Beauregard's delay in starting the aluminum tank as a pretext to rid
itself of one of the most active union adherents in the plant.
2. The Trial Examiner found, and we agree, that Respondent laid
off employee Moura, and has since refused to recall him, in violation
of Section 8 (a) (3) and (1) of the Act. In this connection, the record
clearly reveals the many job openings in Respondent's plant for
which Moura was qualified. Under vigorous cross-examination,
Respondent's Vice President Morse admitted that most of these jobs
carried approximately the same rate of pay which Moura had
received as a boxmaker. Yet, no job was offered to Moura despite the
fact that he had asked for work?
However, we find the Trial Examiner's recommended remedy, that
Respondent be ordered to resume its box and skid making operation,
and offer employee Moura full reinstatement to his former position, is
1 When told of his layoff, Mourn replied : "You mean to tell me you haven't got anything
for me?"
RODNEY METALS, INC. 1421
inappropriate. Compliance might burden Respondent with huge
expense, unnecessary to effectuate the policies of the Act.2 Rather, we
will order the Respondent to offer Moura reinstatement to a substan-
tially equivalent position for which he qualifies. In the event that the
Respondent resumes its box and skid making operation, Respondent
shall offer Moura full reinstatement to his former position.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete the period at the end of paragraph 1(e) of the Trial
Examiner's Recommended Order and the end of the fourth indented
-paragraph of the Appendix, and add the following:
[except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
[2. Delete the period at the end of the first indented paragraph of
the Appendix, and add the following :
[by discharging, laying off, refusing to reinstate, or in any other
manner discriminating against employees in regard to hire or ten-
ure of employment, or any term or condition of employment.
[3. Delete the period at the end of the third indented paragraph of
the Appendix, and add the following :
[or give the impression that such surveillance is being engaged in.
[4. Insert the following as the second indented paragraph of the
-Appendix :
[WE WILL NOT interrogate you as to your union activities in a
manner violative of Section 8(a) (1) of the Act.]
2 Accord, Square Bending & Ruling Go , Inc., 146 NLRB 206, 222; Bonnie Lass Knitting
_M,tls, Inc, 126 NLRB 1396, 1398.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an original and an amended charge , filed respectively on December 2 and
27, 1965 , by the above-named labor organization , the General Counsel of the
National Labor Relations Board on January 14, 1966 , issued his complaint and
notice of hearing in the above-entitled matter . Thereafter the above-named
Respondent employer filed an answer to the complaint . The complaint alleges and
the answer denies that the Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(1) and ( 3) of the National Labor
Relations Act, as amended . Pursuant to notice , a hearing was held in New Bedford,
Massachusetts, on April 13 and 14 , 1966 , before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been received from General Counsel I and the Charging Party. On May 19,
1966, a letter was received from counsel for the Respondent stating that no brief
would be filed. Said letter is hereby made a part of the record.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the conclusion of the hearing, is made by the following find-
ings, conclusions , and recommendations.
Upon the record thus made, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Rodney Metals, Inc., is a New York corporation, with principal office and place
of business in New Bedford, Massachusetts, where it is engaged in the fabrication,
sale, and distribution of fabricated metal and related products.
During the year preceding issuance of the complaint, it purchased, transferred,
and delivered to its plant steel, aluminum , and other materials valued at more than
$50,000, directly from States of the United States other than the Commonwealth
of Massachusetts. During the same period it sold and shipped directly to other
States products valued at more than $50,000.
The complaint alleges, the answer admits, and it is here found that the Respond-
ent is engaged in commerce within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Local 899, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFL-CIO, is a labor organization admit-
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All of the events relevant to issues raised by General Counsel's complaint occurred
during an organization campaign conducted by Local 899 among the Respond-
ent's employees in the summer and fall of 1965. Earlier organizing efforts among
these employees had been unsuccessful.
I Accompanying General Counsel's brief was a "motion to correct transcript," an 18-page
document containing, according to my first and only count, 507 proposed changes seeking
for the most part mere alterations in spelling, or the transposition of a letter in a single
word One recommended correction is to capitalize a lower-case "y." To me the difference
in substantive meaning between "you" and "You" Is hardly discernible. It would be im-
politic to comment upon General Counsel's attention to minor typographical details But
a motion received should not be lightly and without deliberate consideration ruled upon.
To do so in this case would be to compound confusion and inaccuracy. I am confident
that General Counsel did not really intend to have the word "quahs," as it appears in the
transcript at line 12, page 163, corrected to "quack " "Quash," of course, was the word
actually used Nor would the collection of letters "rpoff," appearing at line 24, page 196,
acquire much more relevancy in the context if changed to "proff," as the motion urges.
"Proof" was the word used There is no doubt but that "tat hoisr of lfit," appearing at
line 11, page 276, is more intelligible if altered to "that hoist or left," yet full accuracy
suggests that the last woad in the phrase should be "lift" General 'Counsel would have
"occurance," at line 13, page 339, changed to "occurance." Neither spelling of the word
"occurrence" has been found by me in any dictionary available to me In like fashion, to
change "allrlcht," at line 24, page 361, to "allright" would offend the shades of Webster
or H L. Mencken, or contemporary experts like Bergen and Cornelia Evans (In the first
place, the motion misquotes the transcript. The official transcript shows the spelling there
to be "allriht," not "allri(ht") So far as search reveals, there is no such word as
"allright." "Alright" is theoretically permissible, and is used, but because the quotation is
from my own ruling, 3 prefer the more conservative use of two words: "all right." The
motion also asks that "testitied," at line 11, page 429, become "testiefied." General
Counsel does not say why He meant, it seems almost certain : "testified." No objections
to the motion have been received from other counsel Fatigue may have preNented such
riling. In any event, except as the proposed corrections are, it is hoped, made somewhat
more accurate in this ruling, the motion is granted and is hereby made a part of the record
RODNEY METALS , INC. 1423
Chief issues include: (1) the alleged unlawful employment terminations of
employees Philip Beauregard and Antone Moura, on September 4 and Novem-
ber 19, respectively; (2) alleged unlawful interrogation and threats of reprisals by
responsible supervisors; and (3) alleged unlawful surveillance of union meetings
and announcement of such surveillance to employees by Vice President Benjamin
Gaffin.2
B. Interference, restraint, and coercion
Observation of the witnesses involved and review of their recorded testimony
convince me that the preponderance of credible evidence fully sustains General
Counsel's allegations as to points (2) and (3) noted immediately above.
As to interrogation and threats, the credible testimony of employee Lopes estab-
lishes and it is found that:
(1) During the latter part of August or early September his foreman, Manuel
Monteiga, called him into his office and asked "I hear you are kind of strong for
the Union." Lopes replied that he had his "beliefs" about it. The foreman then
declared that he was "disappointed" in him, and warned him that he had "better"
keep his mouth "quiet," for they had a "loud mouth on the first shift and if he
continues to keep it up they will eventually let him go." In the context of his
reference to the Union, Lopes reasonably understood the foreman to refer to
employee Moura who was, in fact, the union leader on that shift and who was
discharged a few weeks later, under circumstances described below. (As a witness,
Monteiga admitted the occurrence of this incident, although his version, which I
do not credit, differs from that of the employee. He said he did tell Lopes he was
"disappointed" in him, and admitted that he accused him of being "just as bad as
the guy from the first shift.")
As to the surveillance and Gaffin's declaration of such activity to employees, the
credible testimony of former employee Richard Hammond and of the Respondent's
former industrial and public relations manager, Ernest Brisson,3 is the basis for the
following findings:
(1) While still employed at the plant Hammond went to the local union hall to
attend a meeting early in October.4 He got there early, before others arrived, and
left the premises, returning later. By this time, however, the meeting was in progress
and doors were closed. So Hammond came down the stairs again and left. The next
day Vice President Gaffin met him in the plant, and told him he had been seen at
the meeting hall. Gaffin further claimed knowledge that he had been the first to
arrive and the first to leave, and that he was aware he had sent in his card. He
asked why. The employee replied, in effect, that he was dissatisfied because he had
not received a promised promotion.
(2) Also the next day, apparently, or later the same day, Gaffin came into the
office where Brisson was talking with General Foreman Auffrey. The vice president
had with him a list of license plate numbers which he said he had noted from cars
near the union hall. Gaffin asked Brisson what kind of a car Dunham, the Local's
president, drove as well as that driven by a certain International representative.
2 For reasons fully set forth in the record I sustained the Respondent's objection to the
belated motion at the opening of the hearing to amend the complaint to include the allega-
tion of point (3) above General Counsel appealed the ruling to the Board. After the close
of the hearing a Board oider reversing the ruling was received and is hereby made a part
of the record The complaint is therefore amended in accordance with General Counsel's
motion appearing on page 6 of the official transcript Evidence concerning this issue was
adduced by all parties during the hearing. No request to adduce additional evidence has
been received from any party.
3 Brisson , subpenaed by General Counsel, was a most reluctant witness At the time of
the hearing serving as the chiet administrative assistant to a U.S Congressman, Brisson
had previously declined to provide information to a Board agent investigating the charges
in this case, although by then he had left the Respondent's managerial staff. Despite
stienuous efforts by counsel for the Respondent to besmirch Brisson's integrity and repu-
tation, during cioss-examination, his testimony was unshaken and his demeanor convinc-
ing. Other testimony by this indi%idual relates to the discharge of employee Moura, and
will be referred to below
He voluntarily quit October 27. He placed the date as the last of September. A union
official, however, fixed the date of the first union meeting as October 4
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the same meeting of officials Gaffin mentioned the names of two or three indi-
viduals seen by him to go into the hall, including that of Hammond.5
I conclude and find that by the interrogation , threats of reprisals , surveillance,
and announcement of such surveillance , as described above, the Respondent inter-
fered with , restrained , and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act.
C. The discharges
1. Philip Beauregard
Employee Beauregard was summarily fired on September 4, 1965. The record
makes it plain that management believed him to be an active union adherent.
Counsel for the Respondent himself established this point when, on cross-
examination , he obtained an affirmative answer to the question : "And it is true
that when you were hired (in 1964) you told him (General Foreman Patnaude)
that you had been a shop steward2" 6 And it is undisputed that the employee's then
foreman, Everett Alcrim, a few weeks before the discharge had queried him about
the Union and asked him for a leaflet.?
And in fact Beauregard was active in the summer organizing campaign. He
solicited signatures to union cards and obtained from a shop bulletin board lists
of employees for transmittal to the Union. One such list, discarded at the end
of the week, was thus removed a few days before September 4. Despite the denial
of General Foreman Auffrey, who fired the employee, that he had actually seen
him take these sheets, I am convinced, and find, that the foreman was aware that
he had done so, at the time of the discharge. According to the credible testimony
of employee Lopes, still working at the plant, Beauregard's foreman at the time
of discharge , Monteiga , told him after the dismissal that Auffrey had taken the
action because he had seen the employee take lists-"to give to the Union." (I
must accord more weight to Monteiga 's declaration than might be warranted under
other circumstances, since according to Auffrey the determination to discharge
Beauregard "was a combined decision of Mr. Monteiga his immediate foreman
and myself." Monteiga 's denial that he told Lopes why Beauregard was fired is
not credited.)
The employee was called into Auffrey's office on September 4 and, without being
questioned, was told that he was fired. He asked it the foreman was "kidding."
Auffrey said he was not. Beauregard asked for some reason. Auffrey fingered a
number of papers, said he had "charges" against him, and (1) declared that 4
hours' production had been lost the night before because the employee had failed
to turn on an "aluminum tank" on his shift, and (2) said he had not made a "tank
.check," as required, during his shift on September 2. Beauregard readily admitted
that he had not made the "tank check," explaining that he had to spend some
4 hours on an unusual "general cleanup job." He further declared that he had not
falsified his "day sheet" to show the check made because he did not "operate
that way."
The tank check accusation is so inconsequential as to cast doubt at once upon any
merit the other point might have as a plausible reason for firing the employee. No
claim is made that any damage was caused or production lost, or that the employ-
5 For reasons set forth fully below I can believe no part of Gaffin's testimony which is
not supported by more credible evidence . Furthermore , his claim that Hammond spoke
first to him and volunteered the information of going to the union hall is implausible on
its face. He admitted that he did take down license plate numbers near the plant but
said he did so because Auffrey had previously complained of "vandalism " and damage
to cars and because "vandalism" was his responsibility. He failed to explain , however, any
incident that night of "vandalism " or "damage" which might reasonably have caused him
to make note of employees ' license plates.
O Apparently co-counsel for the Respondent forgot his associate 's tactical accomplish-
ment in establishing that Patnaude had hired the applicant despite knowledge of previous
union activity , Beauregard on direct having credibly testified that the foreman had told
him that Rodney was not "union ," that a union had previously tried but had failed to
"get into the plant," and asked if he had had anything to do "with any union " For
co-counsel put Patnaude on the stand and obtained a flat "No" in response to the leading
question : "At the time you hired Mr. Beauregard was there any discussion whatever con-
cerning unions in or out of the shop or any connection at all"" Patnaude 's denial is not
.credited.
7 As a witness , Alcrim merely said he did not recall this conversation.
RODNEY METALS, INC. 1425
ee's explanation of the unusual cleanup job was other than he stated. Despite
Auffrey's obviously strained effort to color the "tank check situation" by answering
his counsel: "I believe that I said that we had been through similar instances
before (and) that this was part of the reason for the need to discharge the man
at that time," Monteiga, the employee's foreman, readily admitted that he could
recall no occasion before this when Beauregard had failed to make the tank checks.
He further admitted that he was not aware that the form had not been marked by
the employee on this one occasion until Auffrey called it to his attention much
later. Auffrey admitted that he did not check such reports daily.
Before appraising the "aluminum tank" issue as claimed as a reason for the
discharge, it may be well to consider Beauregard's job and responsibilities.
At the time of his discharge this employee was, and for the preceding 2
months bad been, the "indirect man" on one of the plant's two "paint lines," where
metal coils, either of steel or aluminum, are processed. In this position he not only
trained new employees, but was required to know each of six different `operations"-
three on each of the two lines. Before being promoted to "indirect man" he had
served in the other jobs. In his final position, which in many plants would corre-
spond to that of a leadman, in addition to making the "tank checks," his responsi-
bilities included those of bringing coils for processing by his shift, taking care of
scrap, and filling in for other men in the crew when he gave them their breaks. In
September he was working on the second shift, under Monteiga. Everett Ancrim
was foreman of the third shift, where Beauregard had -worked before his promo-
tion, and Patnaude had charge of the first shift. Over Monteiga was Auffrey, gen-
eral foreman, who discharged the employee.
When a change was to be made from steel to aluminum, in processing, it was
the indirect man's job, as part of the preparation procedure, to turn a certain valve
or valves to heat the so-called "aluminum tank." According to Beauregard's credible
testimony, undisputed, it takes about half an hour to bring this tank to proper
temperature after the valve is turned.
I have found it difficult to detect clear and simple meaning in Auffrey's con-
fused testimony regarding this incident which he claims was a cause of the dis-
charge. Much of such testimony was elicited by his counsel only after the latter
admitted having exhausted his "recollection" and by referring to a memorandum
which he claimed was made after the event. The nub of his claim appears to be
that Beauregard somehow and seriously neglected his duties, and thereby caused
loss of production on the succeeding shift, by failing to turn the valve in time on
the aluminum tank during his own, the second shift. Monteiga, the second shift
foreman, corroborated the employee as to the time when the valve was turned,
when he testified that the latter reported to him, at about 11:15 or 11.20 p.m. (the
shift ending at 11:30) that the tank was not ready. The foreman said that he could
not recall that the employee gave him any reason. But he did not say that he
asked for any reason, or in any other fashion indicated that Beauregard had been
remiss in his duties. This fact lends support to Beauregard's testimony to the effect
that only about half an hour is required to bring the temperature up to the proper
degree. Thus it would seem, from the accounts of both the employee and his fore-
man, that no more than 15 or 20 minutes delay should have occurred on the
succeeding shift.
Yet Auffrey, in his response to leading questions and by reference to the self-
serving document, would have it believed that because the aluminum tank was not
ready, the third shift had to run steel, and not only lost "3 hours of production,"
but "several gallons of paint." I find no credible explanation in the record for the
situations thus described by Auffrey. Had all this delay and loss actually occurred
on the third shift, and had been caused by some dereliction on the part of the
second shift "indirect man," it seems reasonable that the third shift foreman,
Ancrim, would not only have been aware of it but also would have been asked to
testify about it. Auffrey, general foreman of the second shift, could have known, if
anything, only what was reported to him by others. Ancrim was not queried about
the matter at all. Nor were any records of any sort brought forward to support the
so-called "memorandum."
Beauregard not only readily admitted that he did not turn on the valve in ques-
tion until shortly before the end of his shift, but he also gave a clear and undis-
puted explanation.
It is uncontradicted, by oral or documentary evidence, that when the employee
assumed his responsibilities on the second shift that day, he was informed by his
2Z7-551-67-vol. 160-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposite number on the first shift that there were some 18 or 19 thousand feet of
steel to be run on the order then in process , and that he noted from the "master
sheet" that the next order called for about 35 thousand feet , also of steel . Enough
steel already was at the machines to complete the first order, which ordinarily
would have-taken 3 or 4 hours to process. He then brought to the machines some
13 thousand additional feet, as a start on the second scheduled order. After per-
forming other tasks, he went to the other paint line, to take care of a complete
clean up job, about a 4-hour task. When he returned to his own line, shortly
before the end of his shift, he found that no more steel than the 13 thousand feet
he had previously brought had been "slit" or prepared for processing on the line-
despite the fact that the "master sheet" showed that 35 thousand feet were ready.
It was at this point that Beauregard, realizing that aluminum would have to be
the next run, turned on the proper tank.
As a witness Auffrey admitted that he did not know what the master sheet called
for, and that he made no check of it. Monteiga, the employee's own foreman, was
not questioned about this document. Beauregard's explanation for the slight delay
is not only plausible, but unrefuted.
The plausible explanation was plainly as available to management, at the time
of the incident, as it was at the hearing in this case, and its failure to seek such
explanation supports the conviction that the Respondent seized upon it, not because
it was at all serious, but simply because it might serve as a pretext for ridding the
plant of a known union leader . In short, I find no merit in the Respondent 's claim
of legal "cause" for the dismissal.8
On the contrary, I conclude and find that the Respondent discharged Beauregard
to discourage union membership and activity,9 and thereby interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by the Act.
2. Antone Moura
Antone Moura was effectively discharged by the Respondent on November 19,
1965, a sudden climax to 8 years of satisfactory service as the chief box and skid
maker in the shipping department. That he was in reality discharged, and not
simply laid off due to lack of work, as the Respondent claims, is shown by the
fact that since November and up to a date shortly before the hearing in this case
more than 20 new and wholly inexperienced employees were hired at the plant
without a single offer to Moura of any one of the jobs available and thus filled.
As in the case of Beauregard, credible evidence makes it plain not only that
his participation was extremely active and vocal in the union organizing campaign,
but also that he was known by management to be so engaged. As noted above, it
was to Moura that Foreman Monteiga referred as a "loud mouth," when warning
employee Lopes. As a witness for the Respondent his own foreman, Raphael,
admitted asking him if he had signed a union card and merely said he did not
recall asking him, as Moura had testified, what went on at a union meeting. Fur-
thermore, according to the credible testimony of Brisson, formerly a management
official, in mid-October Plant Manager Morse asked him how they could get rid
of Moura, declaring that he had become a "problem" because of his union talk
and probably was responsible for signing up half the department employees.
Upon orders admittedly given by Morse to Foreman Raphael the same morning,
Moura was suddenly dismissed on November 18 by this foreman. Raphael bluntly
told him that they were going to "disband the box department," according to his
own testimony, and that he was laid off "until further notice." Moura was given
neither advance notice customary in industries at all concerned with amiable
employee relations, nor any termination pay, despite his 8 years of continuous and
uninterrupted service.
In view of Morse's efforts to obtain from Brisson some excuse for firing so
active a union adherent, not long before November 19, and in order to overcome
8 That Beauregard had received two minor written criticisms, from another foreman and
long before-his promotion to a responsible position, I consider wholly irrelevant to the
-Respondent's contention. Auffrey admitted that discharge after three written warnings was
not automatic.
O Additional support for this conclusion appears below, in the,section covering the dis-
charge of aloura It is there found that Plant Manager Morse asked Brisson, the industrial
relations manager, to suggest some "way," or pretext, to rid the plant of another union
leader.
RODNEY METALS, INC. 1427
General Counsel 's strong prima facie case, it would appear logical to expect the
Respondent to come forward with substantial and credible evidence to support a
plausible motive for so sudden an action of termination.
On the contrary, however, and although the Respondent adduced a great amount
of oral testimony from several management officials, its evidence is so confused
and contradictory that I can believe no part of it . Only two alternative conclusions
seem warranted : ( 1) the testifying individuals were without firsthand knowledge
of the subject matter, or (2) they were purposely attempting to color if not falsify
the record.
It is the Respondent 's contention that Moura was not discharged but only "laid
off," because the boxmaking operation was discontinued . It is its further contention
that he was not given some other job because he was physically unable to fill
any other position . The latter claim may be disposed of quickly ; it is absurd on
its face. No competent evidence supports it. It rests insecurely upon the mere
statement that 8 years earlier, when hired, Moura was said by the company doctor
to have a "hernia ." The doctor was not called as a witness , and so far as direct
evidence is concerned , either another employee or another hernia may have been
involved. Moura testified credibly that he had never heard of it until the doctor
said so, and that it had never bothered him before or since. His daily work for
8 full years was making and hoisting both light and heavy boxes, as well as the
lumber to make them , and he never lost time because of any "hernia ," or anything
else. It is clear, and is found , that this claim of the Respondent is without merit.
If management witnesses are to be credited even in small part , concerning their
complicated efforts to make up their minds to, and then have , packing boxes and
skids made outside the plant, instead of by Moura, then it is indeed a marvel and
a wonder that the Respondent is able to function as a going enterprise . Such wit-
nesses would have it believed that it took various top officials from the first of
1965 to November 19 to analyze possibilities , get bids, compare costs, consider,
decide, and finally give an order to the only concern , or its subsidiary, which
apparently either was asked to submit a bid or actually did so , in part.
I find such testimony most difficult to believe . According to Morse, by Novem-
ber 19 they had "placed orders" to have boxes made outside "and they were being
made." On the preceding day of the hearing , however, Gaffin had testified-from
records, he said-that not until "the first part of December or the latter part of
November we started contracting to make boxes outside." No records were brought
forward or offered in evidence . And Morse conceded that boxes continued being
made at the plant for some time after Moura was terminated.
In his comprehensive brief General Counsel properly and accurately cites a
number of similar contradictions in the testimony of officials , especially as to self-
contradictions on the part of Gaffin. On the first day of the hearing he declared
that he had no part in the decision leading to discontinuance of the box operation.
The next day he declared he did participate in the decision which , "he would
say," took place early in November . He testified at one point that a "cost analysis"
was made in April. A few minutes later he said it was made in November.
In short, I credit no part of the testimony of the Respondent's witnesses regard-
ing the "discontinuance " of the box operation . I am convinced , and find, that the
chief, if not the only, reasons for the move was to provide the semblance of a
legitimate reason for an illegal objective : ridding the plant of its most vocal union
adherent.
Since the evidence appears conclusive that the operation was halted , not for
economic reasons, but to provide a pretext for the unlawful discharge , it will be
recommended , as General Counsel urges, that the Respondent resume such opera-
tions, and reinstate Moura to perform it.
It is further concluded and found that by the discharge of Moura for the pur-
pose of discouraging union membership and activity the Respondent interfered
with , restrained , and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent, described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Local 899, International Union, United Automobile , Aerospace and Agricul-
tural Implement Workers of America, UAW, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By discriminating against employees Beauregard and Moura , as described
herein, to discourage membership in and activity on behalf of the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I will
recommend that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It will be recommended that the Respondent offer employee Beauregard immedi-
ate and full reinstatement to his former or substantially equivalent position. It
will also be recommended, for reasons set forth above, that the Respondent resume
its box and skid making operation, and offer employee Moura immediate and full
reinstatement to his former position. Offers to both employees shall be made
without prejudice to their seniority or other rights and privileges. It will further be
recommended that the Respondent make said employees whole for any loss of
earnings they may have suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to that which he normally would
have earned from the date of the discrimination to the date of offer of reinstate-
ment, less net earnings during said period, and in a manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the
backpay due in accordance with Board policy set out in Isis Plumbing & Heating
Co., 138 NLRB 716.
In view of the serious and extended nature of the Respondent's unfair labor
practices, it will be recommended that it cease and desist from infringing in any
manner upon the rights of employees guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, I recommend that the Respondent, Rodney Metals, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Local 899, Interna-
tional Union, United Automobile, Aerospace and Agriculture Implement Workers
of America, UAW, AFL-CIO, or in any other labor organization, by discharging,
laying off, refusing to reinstate, or in any other manner discriminating against
employees in regard to hire or tenure of employment, or any term or condition of
employment.
(b) Interrogating employees as to their union activities in a manner violative of
Section 8(a)(1) of the Act.
(c) Threatening employees with reprisals to discourage union membership and
activity.
(d) Engaging in surveillance of union meeting places, or giving employees the
impression that such surveillance is being engaged in.
(e) In any other manner interfering with, restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer employees Beauregard and Moura immediate and full reinstatement,
and make them whole for any loss of pay suffered by reason of the unlawful dis-
RODNEY, METALS, INC. 1429
crimination against them, in the manner set forth above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all records necessary to determine the
amounts of backpay due.
(c) Notify the said employees, if presently serving in the Armed Forces of the
United States, of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
(d) Post at its plant in New Bedford, Massachusetts, copies of the attached
notice marked "Appendix." 10 Copies of such notice, to be furnished by the Regional
Director for Region 1 after being duly signed by an authorized representative of
the Respondent, shall be posted upon receipt thereof and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith."
10 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
11 In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days of
this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT unlawfully discourage you from being members of Local
899, International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFI-CIO, or any other union.
WE WILL NOT threaten you with reprisals to discourage you from joining any
union.
WE WILL NOT engage in surveillance of union meeting places.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act, to join a union of your own choice or not to engage in any
union activities.
WE WILL offer reinstatement to Philip Beauregard and Antone Moura, and
give them backpay.
RODNEY METALS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108,
Telephone 223-3353.