Sheidow Bronze Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1962

135 N.L.R.B. 621 (N.L.R.B. 1962)

SHEIDOW BRONZE CORPORATION 621
3. By the discharge of Belanger , Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in an unfair labor practice within the meaning of Section
8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Sheidow Bronze Corporation and Local 84, International Mould-
ers & Foundry Workers, AFL-CIO. Case No. 2-CA-7841.
January 29, 1962
DECISION AND ORDER
On October 18, 1961, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief,' and the entire record in
this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification that paragraph 2 (d) read : "Notify the Regional
Director for the Second Region, in writing, within 10 days from the
date of this Order, what steps it has taken to comply herewith."
1 The Employers ' request for oral argument is denied as the record, including the excep-
tions and brief, adequately presents the issues and the positions of the parties.
I In adopting the Trial Examiner 's finding that the Respondent had knowledge of em-
ployee Joseph Brandell's union activities before it discharged him in violation of Section
8(a) (3), Member Rodgers does not rely upon the smallness of Respondent's foundry.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before A. Norman Somers, the duly designated Trial Ex-
aminer, in New York City on August 30, 1961 , on complaint of the General
135 NLRB No. 66.
622 _DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel and answer of Respondent. The issue was whether the discharge of
Joseph Brandell was discriminatorily motivated in violation of Section 8(a) (3) and
(1) of the Act. The parties presented oral argument, which has been carefully
considered, and have waived filing of briefs. Upon the entire record, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Sheidow Bronze Corporation, is a New York corporation, engaged
at its place of business in Farmingdale, Long Island, in the manufacture and sale
of bronze and aluminum memorial plaques, statues, and related products. Its
annual shipment of products out of the State exceeds $50,000, and neither the
existence of the Board's jurisdiction nor the propriety of its assumption is here in
contest.
II. THE LABOR ORGANIZATION INVOLVED
Local 84 , International Moulders & Foundry Workers, AFL-CIO, the Charging
Party, is a labor organization within the meaning of the Act.
III. THE MERITS
The case presents a closeness in sequence between Joseph Brandell's activities on
behalf of the Union and his discharge, posing the question of whether the two
events are causally related or reflect a mere fortuity in timing.
Joseph Brandell, a foundry worker for over 35 years, was employed at the foundry
in Respondent's plant since October 1958. He had been hired by Ferdinand Aurori,
the supervisor of the foundry and a stockholder of Respondent, who had previously
worked with Brandell at another foundry. Before the summer of 1960, the work
had been done by hand, and Brandell was then a molder, individually responsible
for his product. When machinery was installed that summer, moldmaking was
broken down into two phases performed by separate teams-(1) slinging and (2)
stripping or finishing. The record does not convey the clearest picture to this
uninitiated hearer of what they entailed, but in roughest terms, the first would seem
to have involved pouring into the "slinger" the molten metal or whatever else was
needed for making the mold, and the second-which was Brandell's work-opening
the mold and processing the pattern extracted from it.
The foundry consisted of seven rank-and-file employees. Beginning early in
February, Brandell discussed with his fellow employees the desirability of becoming
organized. At noontime on February 28, Brandell and two other employees, Max
Leventhal and Bob Manning, went to the steward of a unionized foundry across
the street to make inquiry. The three reported back to their fellows that the steward
said he would ask the union organizer to visit them at Respondent's foundry. An
employee who had once belonged to the Union explained that the organizer would
not visit the shop unless they signed authorization cards, and so he procured a batch
of cards from union headquarters late that afternoon and turned them over to
Brandell. The next morning, March 1, Brandell told the group he had the cards
and would sign them up at the coffee break. He did so at 2:45 that afternoon-with
all of them, except two. The two were, oddly enough, Leventhal and Manning, his
associates on the previous day's mission. The next morning, March 2, Brandell
solicited their signatures, but without success.' Shortly before the end of that day,
Foundry Supervisor Aurori announced to Brandell he was being "laid off," giving
him no reason for the action.2 Russell Sheidow, president of Respondent and its
'Leventhal testified he was solicited the same day as the others, March 1 That is
probably so, but it is undenied that Brandell solicited Manning on March 2, and he
would have had the same motive for making a second effort to get the signature of
Leventhal as well.
2 Brandell's testimony that Aurora gave him no reason was explicitly corroborated by
Aurora in his first three versions of the conversation On examination by the General
Counsel, he testified: (1) "No I did not [give him a reason]. I just told him he was laid
off", (2) "So I didn't explain why or what" On interrogation by company counsel, he
gave a version which again indicated he had not given a reason He testified that when
he told Brandell he was being laid off, Brandell protested, "You can't fire me for union
activity," following which: "I says, `that has nothing to do with union activity' That
was my answer." Finally, after being asked, "Did you tell him anything else or give him
any other reason why he was laid off?", he answered, "I told him for not satisfactory
SHEIDOW BRONZE CORPORATION 623
general manager, testified that about 20 minutes before the discharge (for it was
such, Brandell having been replaced shortly afterward), Aurori had come to him
and informed him of Brandell's role in organizing the men. Respondent denies that
the information played a part in the termination, and claims that it was for other
causes.
Preliminarily, we consider whether the evidence thus far warrants a prima facie
inference of a causal relationship between the discovery of Brandell's role in the
Union and his dismissal. It is a truism that "management can discharge for good
cause, for bad cause or no cause at all" (N.L.R.B. v. 1'. A. McGahey, Sr., et al.,
d/b/a Columbus Marble Works, 233 F. 2d 406, 412 (C.A. 5)), "as long as it is not
for, or in discouragement of such activities as the Act makes permissible." Magnolia
Petroleum Company v. N.L.R.B., 200 F. 2d 148, 149 (C.A. 5). A unique feature
of this case is that it lacks "background" evidence, normally found in other cases,
which demonstrates-apart from sequence and independently of it-an attitude of
hostility on management's part toward the Union. At least such evidence as there
is on that score I happen not to credit. This consisted of the testimony of Brandell
to the effect that about 3:30 pin. on the day he was terminated, he overheard
Sheidow tell Aurori, "We don't need any outside interference to run the shop " On
Brandell's own version, Sheidow entered the foundry and took Aurori aside before
making the statement. This corresponds to the time that Sheidow admitted Aurori
informed him of Brandell's role in the Union, and thus at first blush, impressively
corroborates Brandell, who gave his testimony well before Sheidow made his ad-
mission. While it lends credence to Brandell's testimony that he saw Sheidow and
Aurori in conference, I am not persuaded he overheard the remark he attributed to
Sheidow. In the light of its shortly ensuing sequel, Brandell understandably made
an assumption concerning what Sheidow said, which presumably ripened into a
conviction that he had heard it.3 It would seem hardly likely that after calling his
intended auditor aside, the cultured Sheidow would obligingly have raised his well-
modulated voice so as to be overheard by the last person whose ears he could con-
ceivably have wanted to favor with that kind of communication. So our task of
determining the inference which is reasonably warranted by events is not lightened
by the portion of Brandell's testimony concerning what he overheard, as distinguished
from what he saw.
In the absence of evidence independently demonstrating an attitude of employer
hostility to the union, an inference of cause and effect based merely upon closeness
in sequence between union activity and discharge could conceivably be vulnerable
as embodying the post hoc fallacy. It would seem to me, however, that there is an
added ingredient where the discharge is preceded by the employer's actual discovery
of the employee's union leadership and no reason is given the employee for the drastic
action taken immediately thereafter. Where there is no other explanation, than
under the "presumption that people in the conduct of business affairs act out
of rational motives" (Sears, Roebuck and Company, 123 NLRB 1236, 1264), the first
must be inferred to be a cause of the second-unless we are to say that the action
was completely unmotivated, which Respondent itself disclaims. The conclusion is
thus that in this state of the evidence, there is, prima facie, a causal relationship
between the discovery of Brandell's leadership in the Union and the immediately
ensuing discharge, which calls upon us to appraise the explanation advanced by
Respondent to offset that inference.
Respondent's explanation was that the discharge of Brandell on March 2 was in
execution of a decision arrived at in a conference held the morning of March 1
between Sheidow, Aurori, and Harry Van Iderstein, who is Respondent's vice presi-
dent and plant superintendent. Sheidow testified that when Aurori informed him on
March 2 of Brandell's union activity, he replied that this should not stand in the way
of going through with a decision already made for reasons other than that. The
reasons are stated in Respondent's answer to have been:
That said employee was uncooperative, arrogant, distracted and interrupted
other employees in their work, was tardy too frequently, fractious and insub-
with his work." It is rather difficult to see how one can credit this against his previous
unequivocal testimony to the contrary-more especially in the light of the half-hearted
manner in which it was given There will be further occasion to consider Aurora's sus-
ceptibility to suggestion and the role which leading and suggestive questions played in
the development of the crucial aspects of the defense.
8 Cf. Sears, Roebuck and Company, 123 NLRB 1236, 1240, where I had occasion to ob-
serve that "witnesses will read an implication in a statement or act and will ascribe to
the speaker or actor on explicit utterance in conformity with it "
-624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordinate; that said employee resented and complained of the presence in the
plant by management in the supervision by the latter of production.
The supporting testimony was given, in that order, by Aurori, Sheidow, and Van
Iderstein. The common element in their recitals was Brandell's alleged tardiness and
his habit of talking, which Respondent claimed distracted the other employees. The
only other specifications-deferring at this time an incident occurring the afternoon
.of February 28-were given by Aurori and Van Iderstein. Aurori, when asked the
"`nature" of the complaint against Brandell, stated that "he wouldn't cooperate some-
times" in that "if I told him something to do, he said, `Well, let the other fellow do
it."' He mentioned the pouring of metal, which if not done at once, would burn up.
No specification of time or occasion was given, but from the description of the two
phases of the moldmaking process and from the characterization of Brandell's conduct
on this score as an instance of failure to cooperate, rather than to do his work, it
is inferred that it related to something not specifically within Brandell's function as a
finisher. But whatever the job to which that task related, we have no indication that
'this matter was ever taken up with Brandell, much less conveyed to him as reflecting
-upon his performance or standing. Van Iderstein testified that in the summer of
1960, when he became plant superintendent, and the mechanical method was in-
stalled, Brandell did a short hitch as a slinger; and that during that period he once
,gave -Brandell his view of the "only method to make those molds," and Brandell
replied, "He had been a molder for some thirty-odd years and he knows god damn
-right well what he is doing." While this is hardly an endearing response, we are
given no indication that Van Iderstein or management ever called Brandell to task
for it, or told him it regarded it as an impertinence affecting his relations with it. So
far as appears, the remaining 6 or 7 months of Brandell's tenure as a finisher-with
no claim that this change in assignment was related to the incident above-were free
,of any interchange of that character. Van Iderstein also testified that it was "more
or less of a trait of Mr. Brandell to have a general comment to make about most any
employee," and that Brandell, at some unspecified time, had told him he was "going
to punch Leventhal in the nose"-again with no indication that management ever
took this trait up with Brandell as affecting his performance or his tenure.
This brings us to the tardiness and the talking. As to the first, it was not claimed
-that Brandell reported late for work-indeed it was admitted that he regularly
reported well before starting time-but it was claimed that he delayed responding
to the starting bell sometimes for as long as 10 minutes, while still lingering over his
coffee. As to talking, it was claimed that Brandell would drift among the employees
while he distracted them from their tasks with conversation.
One would have thought that if Respondent had been dissatisfied with Brandell's
performance on the job for these reasons, some representation to that effect would
have been made to him. Brandell testified that there had been no complaints what-
ever about his performance. Aurori and Van Iderstein testified they complained just
about every day-Aurori stating he did so in the presence of the men. If the last
had been so, the employee most likely to have observed it would have been Guillermo
Gomez, Brandell's teammate in the finishing function, since Respondent bases the
seriousness with which it assertedly viewed Brandell's working habits upon the retard-
ing effect that delay by one member of a team has upon the production of both.
Gomez, still an employee of Respondent and hardly a partisan of Brandell (his other
testimony implicates Brandell in having procured Gomez' signature to an allegedly
false statement that Gomez overhead Leventhal inform Van Iderstein on March 2 of
Brandell's role in the Union), testified he had never observed management make any
complaint to Brandell. The only other rank-and-file employee who testified, Leven-
thal, who was hardly more partial to Brandell than Gomez (he was called by Re-
spondent to confirm the alleged falsity of the statement, signed by Gomez at
Brandell's request, that he had informed upon Brandell to Van Iderstein), testified
that there was no rule in the plant against talking, that he, too, had engaged in it, and
that though Brandell "liked to talk," he-on an interpretation of his testimony most
favorable to Respondent-could recall but "a couple of times" when Brandell was
criticized for it?
This was elicited from the witness on cross-examination by the General Counsel, who
introduced the subject to him. The witness' prior answer casts grave doubt on whether
the above reflected his personal observation It would seem a reasonable assumption that
if Leventhal had observed it, Respondent would itself have interrogated him concerning
it on direct as,its own witness His prior response to "Did you ever hear Mr. Brandell
criticized or threatened with discharge for talking too much 9" would suggest that it is
based on what he had heard in the hearing room before he took the stand. The answer,
"Well, there is discussion that they didn't like him talking so much, I mean disturbing,
SHEIDOW BRONZE CORPORATION 625
Nor can one discern in the asserted "complaints," even on their face, the attribute
which one associates with the term in industrial parlance-some indication that
management regards the subject matter as affecting the employee's rating or tenure.
The comments would appear to have been casual supervisory proddings in common-
place situations. Thus, Aurori testified that when he saw Brandell engage employees
in conversation, he told him, "Look, you work here and let this man alone. Don't
be always holding back the men." And Van Iderstein testified that on some oc-
casions , when he saw Brandell drinking coffee at starting time, he "would ask Mr.
Brandell in a courteous sort of way, Joe, do you think you are going to work today?"'
At best to Respondent, these would seem to have been transitory expressions of
annoyance, if the apparent levity in Van Iderstein's comment permits even that charac-
terization, rather than reflections or communications of any basic dissatisfaction with
the employee's performance.
Even petty irritations, to be sure, if unabated, can wear out an employer's patience.
However, where an employer reaches that stage, one would normally expect to find
some onset in the form of an indication to the employee that his peccadillos are no
longer funny and that he is running out the string of the employer's tolerance. Noth-
ing in the evidence suggests that the traits attributed to Brandell were having that
cumulative effect, much less that it was even intimated to him that they were. So if
that were all, one would be rather hard put to visualize management's past relations
with Brandell, even on its own description, as accounting for the kind of action taken
on March 2. Respondent claims that that was not all: that a remark by Brandell
to Aurori the afternoon of February 28 in resentment of an admittedly unprece-
dented activity by President Sheidow at the foundry precipitated the decision to get
rid of him. We treat this below.
February 28 happened to be the day when Brandell and the two fellow employees
took the first step toward organizing the employees. Sheidow testified that he had
for some months been dissatisfied with the accomplishments of the mechanical proc-
ess at the foundry in that it was not achieving the step-up in production-needed to
fill Respondent's mounting orders-which had been expected of it. And so he
decided to devote February 28 to do something he had never done before-make a
time study of the operations at the foundry in order to determine how to cope with
the problem. He testified that during the afternoon of that day he observed that
Aurori was giving greater assistance to the finishing end, in which Brandell was en-
gaged , than to the other phases of the work. That afternoon, Sheidow testified, he
held a preliminary conference with Aurori and Van Iderstein, in which he stated his
tentative impressions, and the following morning he held another conference with
his two associates, in which he discussed the problem on a more crystallized basis;
that at the start of the meeting, Aurori told him of Brandell's remark, and that this
convinced him in his own mind that Brandell was beyond redemption as an employee,
but he was not sure that he communicated this thought to the conferees. It would
seem to me , however, that whether he did so makes all the difference between whether
a decision to discharge Brandell had been made at that conference, as claimed, or
whether it was a mere thought, as yet too barren of objective manifestation to convey
to Aurori that he was to take the action he did toward Brandell on March 2. This
last would seem to me of rather crucial importance in appraising the true role of
the remark, when taken in connection with the manner in which the point was de-
veloped at the hearing.
The matter was first introduced by company counsel in his own "cross" examina-
tion of Aurori after the General Counsel examined him on "direct" as an adverse
witness under Rule 43(b) of the Federal Rules of Civil Procedure. On the General
Counsel's examination , Aurori was asked the reasons for Brandell's discharge. If
that incident had played a part in the decision, one would have expected that Aurori
would then have made some reference to it. Yet twice he was asked, specifically,
what "incident" had brought about the discharge and twice he answered that the
incident was a conference between him and his two associates, in which after dis-
cussing Brandell's habit of drinking coffee at starting time and talking to the men, it
was decided, "Well, that's it." Aurori's failure to mention Brandell's remark in
his recital would seem the more significant in that he testified that the "Well, that's
it" took place, not in the March 1 conference in which Respondent claims the decision
was made, but in the conference on February 28, inferentially the "preliminary" one
after Sheidow's "time study," and on the heels of the remark in question. Up to then
you know, not to talk so much," would seem less indicative of his observation of a past
occurrence than of his impression of the sense of what he heard in the hearing room.
634449-62-vol. 135-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one would have known nothing of the remark, much less of any claim that sig-
nificance had been attached to it. It came to light for the first time in the following
manner on examination by company counsel:
Q. Mr. Aurori, you were asked by Mr. Neylan a question as to what took
place around February 28 that brought about his discharge. Do you remember
that question?
A. Well, I remember that question.
Q. All right, you remember it. Now, do you recall on February 28 Mr.
Sheidow being in the plant or in the foundry?
A. I do.
Q. And on or during the day that Mr. Sheidow was in the foundry, did Mr.
Aurori-excuse me-did Mr. Brandell say anything to you about Mr. Sheidow's
presence in the foundry?
A. He did.
Q. What did he say to you?
A. He said, "Get this guy off my back. What is he doing in here?" My answer
back was, "Mr. Sheidow has a perfect right to be in here in the place any time
he feels like."
Q. Did you communicate that information or did you tell Mr. Sheidow what
Mr. Brandell had told you?
A. I did.
Q. And was that the reason and was it at that time that the decision was
reached to fire Mr. Brandell?
A. That's right.
Preliminarily, I would wish to dispel any implication of criticism of counsel in
putting his questions in that form, since Aurori had been called by the General
Counsel and he was then technically under "cross"-examination, albeit by hardly
adverse counsel. But it would seem manifest that on the weight to be given to such
testimony, one can hardly ignore the manner in which it was elicited, for a patent
suggestion to an interested witness on such a crucial matter, particularly of the kind
embraced in the last question, at once presents the trier with the problem of resolving
how much of the answer is the product of the suggestion, and how much the witness'
true recollection. This problem is aggravated in the case of a witness who before
this, on his own, has made no mention of the matter , and where the interrogation
on this subject is on the heels of the witness having demonstrated his susceptibility
to suggestion when questioned on another subject. Just before this he had given
the testimony, previously discredited (supra, footnote 2) in which he departed
from his prior explicit disclaimers that he had given Brandell a reason for the dis-
charge. How dubious the reliance one can place upon such testimony is at once
manifest in the way the witness downgraded "the reason" in response to the General
Counsel's first question to him concerning it, thus:
Q. Mr. Aurori, was this remark of Mr. Brandell's, you now say that this was
the reason that he was discharged?
A. It had something to do with it.
Even this watered down significance is hard to reconcile with the casual manner in
which Aurori's actions show him to have taken the remark. Had he deemed it an
act of insubordination or a defiance of authority , as it is now claimed to have been
regarded, it would have seemed "natural" (E. Anthony & Sons, Inc. v. N.L.R.B.,
163 F. 2d 22, 26 (C.A.D.C.), cert. denied 332 U.S. 773) for Aurori at once to have
exercised his power to discharge him, or to have told him that he was engaging in an
act of insubordination, or at least to have gone to Sheidow on that matter as he had
2 days later with the information about Brandell's role in` the Union. Not only
did he not do so, but, as he admitted, he did not mention it to Sheidow even at the
"preliminary" conference which was held almost immediately thereafter. The char-
acter of Aurori's reply to Brandell and Aurori's failure to act upon it or even to
mention it to Sheidow until the following morning would indicate-as indeed Aurori's
cxplanation for his inaction strongly. suggests-that it was simply passed off as
another manifestation of a-personality trait in line with remarks of that character
made, as Aurori testified, by Brandell "many times" before and "in other places,"
inferentially. including the one where they had worked together previously, and
never taken seriously, if the fair test of such an attitude be discipline, warning-or
criticism, or reservations on Aurori's part about hiring Brandell in the first place.
The versions of the March 1 conference as given by Sheidow and Van Iderstein
confirm that the remark played no part in the decision-undisputably so if we accept
Aurori's testimony that the decision was made at the February 28 conference, when
SHEIDOW BRONZE CORPORATION 627
he concededly had not mentioned Brandell 's remark . Sheidow's testimony , previ-
ously recounted, hardly establishes that there was any decision whatever concerning
Brandell at the March 1 conference, at least as one would understand that term as
applied to a group , which would entail some mutual communication among the con-
ferees concerning its sense . it has already been related that Sheidow testified that
when Aurori mentioned to him what Brandell had said the previous afternoon, he
"decided in my own mind at that time " that "there was no further hope,"-but
"whether I announced it to Mr. Van Iderstein and Mr. Aurori at that time I can't
say." The version of Van Iderstein likewise gives no indication that the matter went
any further than that. He testified the meeting was devoted to the time study and
then recounted Aurori's mentioning "a remark [ by] Brandell . . . questioning Mr.
Sheidow's authority to be in the foundry." The next question put to him, somewhat
in the manner of the one to Aurori, assumed the very matter in issue-"Can you tell
us at what point a decision was reached?" Van Iderstein, like Sheidow before him,
circumspectly avoided stating that there was an objectively manifested decision at
that meeting. He testified that he had been "pushing for the release of Mr. Brandell
for quite some period of time basically for items which we have gone over here," and
that Aurori "had more or less agreed with me," but that "the actual decision as far
as Mr. Sheidow was concerned was arrived at immediately upon Mr. Aurori's telling
Mr. Sheidow what Mr. Brandell had to say." But he could hardly have been in a
position to know that without an announcement from Sheidow to his associates,
which Sheidow testified he could not say he made and which Van Iderstein, rather
pointedly, avoided testifying Sheidow made. The sense of Van Iderstein's guarded
answer to the question, fairly appraised , was that he was recounting the subjective
and uncommunicated reaction of Sheidow as he had heard Sheidow relate it on the
witness stand . It is thus difficult to spell out from these recitals a definitive expression
at the March 1 conference which could have served as the basis for Aurori's know-
ing he was to announce to Brandell his termination the next day . Sheidow testified
that the decision to discharge Brandell was "formalized" the afternoon of March 1
at still another meeting with his associates. He gave no further description of the
meeting or explanation of the quoted term. Nor was there any testimony by his
associates that there had been such a meeting-so unless there was a decision at the
morning meeting it must be concluded that there was none at all on that day.
I would find it difficult to conclude a decision had been reached on March 1 to
discharge Brandell for still another reason. Brandell testified, without denial, that
on the afternoon of March 1,'Van Iderstein praised the tablets turned out by him
and his teammate as "beautiful, just like French sand castings." This is hardly how
one would expect an employer to act toward an employee whose doom had already
been sealed , as claimed . Nor can I quite see it as reflecting the kind of strained
relationship which Van Iderstein testified he had been having with Brandell,, and
which brings us to the situation preceding February 28.
It has already been indicated that the failure of management to bring home to
Brandell any dissatisfaction with his performance prevents one from seeing the
items now brought to light as accounting for the discharge. But that would not
seem to be all. For during the claimed period of woe over Brandell, Respondent
had raised his pay by 50 cents an hour, an increase of $20 a week, which would
hardly seem hay in any man 's lexicon . Nor can one quite see an employer calling
upon an uncooperative employee for the kind of extracurricular chores that Brandell
performed during off hours. On request, frequently of Aurori, and occasionally of
Van Iderstein, he devoted time after and before work hours, and' once on a Saturday,
making pickups and deliveries in his car of heavy materials in various parts of the
city; and, on one occasion, he gave a visitor at the plant a lift from there to Man-
hattan to catch a train. It would hardly seem important, whether, as Brandell claimed,
this was done gratis except for a $5 payment for carting 600 pounds of metal, or, as
Van Iderstein testified,-some adjustment was made by permitting Brandell to come
late when be attended to a morning chore or to leave correspondingly early when it
was to be done after hours. What is significant here is that it would seem to have
reflected a flexibility of dealing which one would normally not expect to find in the
kind of strained relationship here claimed. And as an interesting sidelight, one can
hardly avoid noting the added insight, unwittingly contributed by Van Iderstein, into
the assertedly serious view of the time lost by Brandell's coffee drinking and talking,
in his description of the adjustment as one which allowed Brandell leeway at either
end of the workday, for periods which it would seem reasonable' to assume were
measurable by hours, rather than minutes:
None of the above is to say that'Respondent found Brandell a lovable personality.
It is to say that the record fails to indicate that it deemed the traits now relied on as
adding up to a performance with which Respondent had been dissatisfied or had
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
communicated to him any dissatisfaction, either on the score of competence, which
the answer did not claim, or on the score of a tenable working relationship, which the
answer suggests.
Discussion until now has proceeded upon an acceptance of Respondent's version
of the purpose of Sheidow's visit to the foundry on February 28. Since, as appears,
it does not serve to explain the drastic action taken against Brandell even if the
visit had been prompted by an unalloyed operational motive as claimed, there would
hardly be any need to go behind it, except that a line of inquiry into it has been
opened up by Respondent itself. On oral argument, company counsel advanced
an illuminating interpretation of the atmosphere prevailing at the foundry during
Sheidow's visit, as follows:
Now, what happened. Mr. Brandell, and it's very significant because the picture
is clear from what has transpired thus far. Mr. Brandell resented the appear-
ance of Mr. Sheidow and an underground, of course, exists everywhere, and he
knew, he knew that there was trouble in the air. He knew it on the 28th or he
wouldn't have resented Mr. Sheidow's presence, he knew it on March 1st and
he knew it on March 2nd, and the only conclusion that I can arrive at, and,
frankly, it is a conclusion that Mr. Brandell, who knows his onions, when he
realized that he was on the block and on the spot, he went ahead and got these
cards and attempted to get signatures in order that he could be in a position to
file a charge and bring the employer down here in order to face the remarks
made in the complaint.
This is a rather remarkable statement . On Sheidow's own version of his visit,
the purpose was to acquire a firsthand familiarity with the employees' mode of
operating in order to find a way to cope with a general problem-the claimed
failure of the mechanical process as yet to achieve the potential expected of it. This
had originally been attributed, without any time study, to Respondent's own in-
experience with the process , and, on Sheidow's own explanation , his impressions
even after the time study as expressed in the "preliminary" conference in the late
afternoon of the 28th, were only tentative. What, then, could reasonably have
accounted for the "trouble in the air" in the form of a portent that Brandell was
"on the block and on the spot," which was supposed to have come to the foundry
through the "underground" in advance of Sheidow's visit , or at least in advance
of his completion of the time study? The "on the block" reference would indicate
that Brandell's fate was being sealed earlier than March 1, and even before the
"preliminary" conference of February 28, as fixed by Aurori, thus showing Brandell's
remark during the time study to have been irrelevant to the decision on any basis.
Respondent 's allusion to the "trouble in the air," with Brandell supposedly realizing
he was the center of it, rather conveys that the "time study" was hardly characterized
by the attitude of "openminded inquiry," which the term connotes , but by a hostility
directed to Brandell personally , which he was supposed to have sensed , and which
under this argument, produced his outcry to Aurori. There was hardly anything in
the operational situation which would explain why Brandell , as the argument
strangely concedes , should have been the special target of Sheidow's visit.
Respondent's position rather invites comparison , in a search for the explanation
for this hostility, between the gossamer items inhering in Brandell 's employment
history as advanced by Respondent, and the hard, concrete occurrence on noon of
that day in the form of the visit by Brandell and two fellow employees as the first
step in putting the previously discussed organizational aspirations into action. The
reference to the "underground ," introduced by Respondent, hardly puts it in a
position to disclaim knowledge of the visit to the unionized shop, for if the under-
ground was a channel for carrying to employees information of impending manage-
ment action as yet neither announced nor executed , how much more likely is to be
a conduit of information to management concerning employee organizational action
actually taken . Counsel's volunteered statement is a graphic acknowledgment, in
reverse , of the fact in industrial life, frequently mentioned in case lore (having its
most recent application in Standard Rate & Data Service , Inc., 133 NLRB 337,
and Syracuse Tank and Manufacturing Company, Inc., 133 NLRB 513, that or-
ganization among employees in a small shop hardly takes place without manage-
ment becoming aware of it ; indeed Superintendent Van Iderstein confirmed this in
explaining, as the source for a volunteered statement that he knew of another
employee's prior union membership , that "more or less you hear talking in the plant
and it just becomes more or less general knowledge ." In this circumstance, one can
no more ignore the closeness in sequence between Sheidow 's unprecedented activity
SHEIDOW BRONZE CORPORATION 629
in the foundry the afternoon of the 28th and the employees' visit to the unionized
shop earlier that day, than the similar sequence between Brandell's discharge and
the ascertainment of his leadership in -the organizing campaign ! It would seem a
strange set of coincidences that the course of action culminating in Brandell 's elim-
ination was preceded at both its beginning and climax by some definitive item
relating to Brandell 's participation in the union movement-most ' especially so in the
absence of some explanation as to how a job study of a kind never theretofore
undertaken by Sheidow and in respect to a problem which, on his own version, had
been existing over the months, should have been timed precisely to follow the first
organizational step taken by the men . And since , as one of the factors to support
its explanation for the "trouble in the air" on the 28th , Respondent invokes-some-
what incomprehensibly-its sequel in the form of Brandell's signing up the men the
next day, one can hardly ignore, as part of the same sequel, the fact that the two
employees who, together with Brandell, furnished the leadership, in the first or-
ganizational step on the 28th, should, the very next morning, have become the lone
holdouts against signing a card-a result hardly to be expected if the "trouble in
the air" were dissociated from the subject concerning which they had just collaborated
with Brandell. What reasonably appears then is that as of February 28 and March 1
there were three persons who could have accounted for the leadership in the
organization movement; after the other two dropped out and rejected Brandell's
second overture to them on March 2, the spotlight centered on him, and with the
fact of his leadership confirmed by Aurori's report later that day, the difusion of
focus was lifted, and Respondent, in contrast with the ambiguities of its deliberations
of the day before, could now give Aurori the unequivocal instructions embodied in
the action taken 20 minutes later. The foregoing, it would seem to me, is a recon-
struction of events more in keeping with the sense of the record than that proffered
by Respondent; and while, as noted, the inference of a causal relationship between
the discovery of Brandell 's leadership and the discharge is here warranted even if
Respondent's assertion of the purpose of Sheidow's unprecedented activity at the
foundry on February 28 were accepted, an inquiry into that subject would seem
to lead us the more inexorably to the conclusion which the record calls for in any
event.
Respondent stresses that it never asked applicants for employment whether they
belonged to a union, and in Sheidow's words it "assumed" that some of them did.
Undoubtedly this is an element in its favor, to which due weight has been given.
But its weight is hardly enough to offset the pull of the multiple factors indicating
a different reaction by Respondent to a concerted drive about to result in its having
on its hands a completely organized shop.
Here it may be in point to restate the focus of this inquiry. In a case such as
this, we do not have an either-or issue, where union-activity must be the sole cause
of the discharge to the exclusion of any other. It is enough if union activity was a
contributing factor, even though the employer may have been moved by operational
motives as well. There are situations in which employers, often with no conscious
purpose to deceive, will insist that in discharging the leader of an organizational
movement, they were prompted by his prior delinquencies, despite objective indi-
cations that the leadership in the union was at least a contributing cause. Case
lore is replete with instances where under the shock of an awakening organizational
movement, the employer looks back upon the leader's shortcomings with a new
intolerance, and in discharging him, persuades himself that it was these shortcomings
which prompted the action, however much he may have taken them in stride before.
The adage in folklore that "action and conduct on some occasions speak louder
than words" has been judicially recognized as a proper yardstick in these matters.
See The M. H. Ritzwoller Co. v. N.L.R.B., 114 F. 2d 432, 436 (C.A. 7). The
concurrence in timing between Respondent 's initiation of the action culminating in
the discharge and the first steps taken by the employees toward union organization,
the immediacy with which Brandell was discharged without explanation following
the discovery that he led the organizational movement, taken in connection with the
fact that the operational considerations to which Respondent attributes the' discharge
do not persuasively, if at all rationally, explain this drastic action, lead to the
conclusion that the discharge would not have occurred but for Respondent's dis-
covery of Brandell's leadership in the organizational drive. It is accordingly con-
cluded, on the basis of the preponderance of the evidence, that the discharge was a
result of Respondent's discovery of Brandell's leadership in the current movement to
organize the employees in the foundry. Thereby, Respondent discriminated against
Brandell in order to discourage membership in the Union, in violation of Section
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a) (3), and interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7, in violation of Section 8(a)(1), of the'Act5
IV. THE REMEDY
The usual cease-and-desist requirement will issue (here of a broad character since
a discriminatory discharge in discouragement of union membership and activity
goes to the "heart of the Act"-N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536
(C.A. 4) ), as well as the conventional remedial requirement, in effectuation of the
policies of the Act, of an offer to Brandell of immediate and full reinstatement to
his former or substantially equivalent position without prejudice to seniority and
other rights and privileges (The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827, 829) and reimbursement for any loss of
pay sustained in consequence of the discrimination against him, in accordance with
the principles enunciated in F. W. Woolworth Company, 90 NLRB 289, and upheld
in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Upon the foregoing and the entire record, I hereby state the following:
CONCLUSIONS OF LAW
1. By discharging Joseph Brandell because of his leadership in a movement to
organize the employees into the Union, Respondent discriminated in respect to his
hire and tenure with a purpose to discourage membership and activity in the Union,
thereby engaging in an unfair labor practice within the meaning of Section 8(a)(3)
of the Act; interfered with, restrained, and coerced employees in the exercise of
their rights as guaranteed by Section 7, thereby engaging in an unfair labor practice
within the meaning of Section 8 (a) (1) of the Act.
2. The foregoing unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant to
Section 10(c) of the Act, it is hereby ordered that the Respondent, Sheidow Bronze
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or discriminating against any employee with a purpose of dis-
couraging membership in or activity on behalf of Local 84, International Moulders &
Foundry Workers, AFL-CIO, or any other labor organization.
(b) In any, other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join or
assist Local 84, International Moulders & Foundry Workers, AFL-CIO, to bargain
collectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other mutual
s Two other factors have been considered, which do not serve to alter the result First,
Respondent explains that it delayed until March 2 to discharge Brandell because that
was the end of the workweek This explanation has been weighed against the factors,
previously considered, which Indicate that the failure to act until March 2 was due to the
fact that until then a decision to discharge Brandell had not been made Secondly, as a
discrediting factor against Brandell, Respondent stresses that he had gotten Gomez to
sign an allegedly false statement that Gomez had overheard Leventhal inform on
Brandell to Van Iderstein. Brandell testified that this was "as a result of a conversa-
tion" that he had previously had with Gomez. Nothing in the case calls for a resolution
of the conflict: it does not affect the case substantively, since Respondent concedes that
it knew of Brandell's union leadership before it discharged him ; it does not concern any
other aspect of the case, since the conclusions have not turned upon resolutions in favor
of Brandell of conflicts in testimony between Respondent's witnesses and him, so much
as the inferences warranted by conceded facts and defects inhering in Respondent's own
defense The one element in Brandell's testimony which would have furnished conclusive
evidence of discriminatory motivation was not accepted, despite circumstantial corrobora-
tion of Brandell, because of.my doubt that he could have overheard the statement about
"outside interference" which he attributed to Sheldow In not passing upon the verity of
the statement signed by Gomez, I do not wish to be understood as implying that if I had
to pass upon it, I would be Impressed with Gomez' disclaimer of knowledge of what he had
signed any more than I am with his earlier denial that he knew what he had been doing
when the signed a union card
SHEIDOW BRONZE CORPORATION 631
aid or protection, or to refrain from any and all such activities, except to the extent
that said right might become affected by an agreement, if lawfully made in accord-
ance with Section 8 (a) (3) of the Act, conditioning retention of employment on
membership in a labor organization.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer Joseph Brandell immediate and full reinstatement to his former, or to a
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 as a
result of his discharge 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 other data helpful in analyzing backpay
due and the right of reinstatement under the preceding provision.
(c) Post at its plant in Farmingdale, New York, copies of the notice attached
hereto marked "Appendix." 6 Copies of said notice; to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent, be posted by the Respondent immediately 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.
(d) Notify the Regional Director for the Second Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
it has taken to comply herewith.
O In the event the Board adopts this Recommended Order, the words "A Recommended
Order of a Trial Examiner" will be replaced by "An Order" ; and in the event of court
enforcement of the Order, this will, in turn, be replaced by: "Pursuant to a Decree of a
United States Court of Appeals, Enforcing an Order."
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 Labor-Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee in
order to discourage membership in or activity on behalf of Local 84 , Interna-
tional Moulders & Foundry Workers, AFL-CIO.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right of self-organization , to form labor or-
ganizations , to join or assist Local 84, International Moulders & Foundry Work-
ers, AFL-CIO, to bargain collectively through any representative of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any and all such activities.
WE WILL offer to Joseph Brandell immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority or
other rights and privileges , and we will make him whole for any loss of pay
suffered as a result of his discharge.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Local 84 , International Moulders & Foundry Workers,
AFL-CIO, or any other labor organization , except to the extent that said right might
become affected by an agreement , if lawfuly made in accordance with Section 8(a) (3)
of the Act , conditioning retention of employment on membership in a labor
organization.
SHEIDOW BRONZE 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. -