Smith & Wesson

National Labor Relations Board - Board Decisions

Mar 6, 1969

174 N.L.R.B. 1040 (N.L.R.B. 1969)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith & Wesson and International Union Of
Electrical , Radio and Machine Workers,
AFL-CIO. Case I-CA-6396
APPENDIX
NOTICE TO ALL EMPLOYEES
March 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULL3 CH AND MEMBERS
BROWN AND ZAGORIA
On November 25, 1968, Trial Examiner Joseph I.
Nachman issued his Decision 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
thereform and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting 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
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 brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Smith & Wesson, Springfield,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
Delete the "Appendix" attached to the Trial
Examiner's Decision and substitute the "Appendix
attached to this Decision and Order
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that
After a trial at which all sides had the chance to
present evidence, the National Labor Relations Board has
found that we violated the law and has ordered us to post
this notice to inform our employees of their rights
WE WILL NOT tell our employees that they will be
sorry if their efforts to get a union into the plant do not
succeed
WE WILL NOT tell our employees that their request
for wage increases will receive less favorable
consideration because of their activity on behalf of a
union
WE WILL NOT interfere with the processes of the
National Labor Relations Board by advising employees
not to obey a subpena issued by that Board requiring
an employee to appear and testify at a Board
proceeding.
WE WILL NOT fire or otherwise discriminate against
any employee because he joins, assists, or supports a
union
As the National Labor Relations Board found that
we violated the law when we fired Wilfred Joseph
Dauplaise, WE WILL offer him his old job back, with
full seniority, and we will make up the pay he lost,
together with 6 percent interest
WE WILL notify Wilfred Joseph Dauplaise, if
presently serving in the Armed Forces of the United
States, of his 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
The law gives all our employees these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
WE assure you that WE WILL NOT do anything to
interfere with you in the exercise of these rights. Every
employee is free to become or remain a member of
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other union, or not to
become or remain a member of any union.
SMITH & WESSON
(Employer)
The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd
188 F 2d 362 (C.A 3) We find no such basis for disturbing the Trial
Examiner 's credibility findings in this case
We do not rely on the Trial Examiner's observations contained in fn 22
of his Decision
The Trial Examiner's Decision contains certain inadvertent errors that
have been noted and corrected
Dated By
(Representative) (Title)
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 provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F Kennedy Federal Building, Cambridge and New
174 NLRB No. 152
SMITH & WESSON
Sudbury Streets, Boston, Massachusetts 02203, Telephone
617-223-3300
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I NACHMAN , Trial Examiner . This proceeding
tried at Springfield, Massachusetts , on September 5 and 6,'
involves a complaint ' pursuant to Section 10(b) of the
National Labor Relations Act (herein the Act), alleging
that Smith & Wesson (herein Respondent or Company)
violated Section 8(a)(I) of the Act by interfering with,
restraining , and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act, and also
violated Section 8(a)(3) and (I) of the Act by discharging
and refusing to reinstate Wilfred Dauplaise because of his
assistance to and support of International Union of
Electrical , Radio and Machine Workers , AFL-CIO
(herein the Union ) By answer Respondent admitted
certain allegations of the complaint , but denied the
commission of any unfair labor practice
At the trial the General Counsel and Respondent were
represented by counsel and were afforded full opportunity
to adduce relevant evidence , to examine and
cross-examine witnesses , and to argue on the record. An
argument by the General Counsel is included in the
transcript Said argument and a brief by Respondent have
been duly considered
Upon the entire record, including my observation of the
demeanor of the witnesses while testifying , I make the
following-
FINDINGS OF FACTS
1. THE UNFAIR LABOR PRACTICES
A Interference, Restrains , and Coercion
The General Counsel contends that in the course of an
organizational campaign conducted by the Union between
January and April, Respondent's supervisory personnel
threatened, restrained, and coerced its employees in the
exercise of rights guaranteed them by Section 7 of the
Act. The specific incidents as to which evidence was
offered are as follows '
All dates are 1968 unless otherwise stated
'Issued August 16, on a charge filed July 15
'No issue of commerce or labor organization is presented The complaint
as orally amended at the hearing alleges , and the answer as so amended
admits, facts which establish these jurisdictional elements I find those
facts to be as pleaded
'In addition to the three incidents hereafter detailed , the General
Counsel offered evidence with respect to another incident , not mentioned in
the pleadings and admittedly outside the l0(b) period , allegedly for
background purposes The evidence so adduced by the General Counsel
shows that Supervisor Glendowski is on friendly terms with one Romeo
Letendere , who is the uncle of Wilfred and Gregory Dauplaise, but not
employed by Respondent , that in the fall of 1967, when Glendowski was
visiting Letendere , the latter asked how Wilfred Dauplaise was doing at the
plant and that Glendowski replied , in substance , that Dauplaise was trying
to bring a union into the plant and that this could hurt him if the
Company found out about it, apparently referring to an earlier campaign
conducted by U A W , in which Dauplaise was also active Glendowski
admitted that he had a conversation with Letendere concerning Wilfred
Dauplaise , and that he mentioned the latter ' s efforts to get a union into the
plant, but contended that it was in June 1968, rather than the fall of 1967,
and denied that he made any further statement on the subject In my view
it is unnecessary to resolve the conflict , or to make any findings with
1041
1 Shortly before February 23, employee Wilfred
Dauplaise, who solicited the Union to begin its
organizational campaign, and who was probably the most
active employee in its behalf, while at work, was
approached by Stuart Haines, an admitted supervisor,
who asked Dauplaise why the latter was so active in trying
to get the Union into the plant Dauplaise replied that it
was to better himself and earn more money. Haines then
stated, "Well, if they don't make it you will be sorry "5
2 Employee Gregory Dauplaise, Wilfred's brother, was
also quite active on behalf of the Union. About 3 weeks
prior to the election conducted by the Board among
Respondent's employees on April 25,6 Gregory Dauplaise
approached Supervisor Glendowski and asked the latter
for a raise Glendowski replied that he did not think
Dauplaise was entitled to a raise because his work was not
up to par Dauplaise then asked if there was anything else,
and Glendowski replied, "Well, you know the Union
activities you and your brother are engaging in is not
going to help you one bit "'
3 Prior to the trial in this case, the General Counsel
caused to be issued and served on a number of persons,
including employee Robert Sakowski, subpenas calling for
their attendance as witnesses on September 5 The
subpenas, in accordance with Board practice, were served
by registered mail, and in the case of Sakowski was signed
for by his mother Upon receipt of the subpena,
approximately a week prior to September 5, Sakowski
asked Anthony Parker' for permission to be absent from
work on September 5. At that time there was no
discussion as to the reason for Sakowski's request, and
Parker admitted that as he remained silent Sakowski had
every right to assume that his request was granted
Toward the end of the workday on September 4, Parker
asked Sakowski if he still wanted to be off on September
5, and, upon an affirmative reply, asked the reason for
such request. Sakowski replied that it was personal
business, and Parker asked what kind of personal
business. Sakowski then went to his locker, got the
subpena, and offered it to Parker saying I have to go to
court Parker admitted that while the paper was folded
when Sakowski offered it to him, he did see the words
"Subpoena" and "Bureau of Labor Relations" Parker
then asked Sakowski whether the subpena had been
delivered to him in hand, and upon being told that
Sakowski's mother had signed for it, Parker stated that
respect to this incident
'Based on the credited testimony of Wilfred Dauplaise and his fellow
employees Catania and Pepe, both of whom testified that they were present
and overheard the aforementioned conversation Although Catania and
Pepe differ with Dauplaise as to the precise words Haines used , it is clear
that they attributed to Haines a statement that Dauplaise would have
reason to regret his assistance to the Union Haines admitted that he may
have used the word "trouble" in his conversation with Dauplaise, but
testified that whatever he said was in connection with Dauplaise ' s work,
and denied that he ever discussed the Union with the latter I do not credit
Haines' denial of the statement so attributed to him
'Case I-RC-9943 The petition in that case was filed February 26 In the
election referred to, 373 votes were cast for the Union, 676 against, with
10 void and 6 challenged ballots By supplemental decision issued May 13,
the Regional Director overruled the Union ' s objections to the election
because of the latter's failure to " immediately" serve a copy thereof upon
Respondent , as required by the Board ' s Rules and Regulations
'Based on the credited testimony of Gregory Dauplaise I do not credit
Glendowski' s denial in that regard
'The General Counsel contends that Parker is a supervisor within the
meaning of Section 2(l 1) of the Act , or the least an agent for whose
conduct Respondent is responsible Respondent denies its responsibility for
Parker 's conduct The facts bearing on this issue , and my conclusions with
respect to the same, are hereafter stated
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under those circumstances Sakowski did not have to go to
court or testify. Sakowski replied that he did not want to
get himself or his mother into trouble, and intended to
obey the subpena Parker then asked Sakowski if his court
attendance concerned the case against Respondent, what
Sakowski was going to testify about, did he think the
employees would win, and was he aware that Stuart
Haines, who had been an assistant foreman, but was now
associated with another firm located in Ohio, was going to
be in town for the Board hearing '
Parker testified that he is employed by Respondent as
"chief tester,"" and that his duties consist of firing some
of the weapons, keeping records with respect to the tested
weapons, training new employees, substituting for any
absent employee, and that all such work is routine and
repetitious. According to Parker, nine employees worked
under him. He is paid $3 23 per hour, while those who
woik under him are paid in a range of $2.71 - $2 99, at
least one employee receiving the latter rate Parker denied
that he had authority to hire, fire, lay off, recall, issue
warnings to, or discipline employees, and that any
recommendations he might make in connection with such
matter are not generally accepted He admitted that he
frequently assigned work, and otherwise issued orders to
employees, claiming that this is never done on his own but
only at the direction of a department supervisor. Parker
admitted, however, that when he assigns work or conveys
an order to an employee, the latter would have no way of
knowing whether Parker was acting on his own, or at the
direction of a supervisor Parker admitted that he notifies
employees of overtime assignments, but claimed that the
system of rotating overtime is automatic and that he
simply notifies the employee whose name comes up for
such an assignment when overtime work is authorized by
a department supervisor Parker further admitted that
from time to time he authorized employees to checkout
early, but claimed that except in an emergency he did so
only after prior clearance with the foreman in his
department, and when he acted in an emergency, his
foreman was notified as soon after the event as possible
Parker further admitted that while he could not recall a
specific instance, supervisors have told employees in his
presence that they had to take orders from him Except
for this testimony by Parker, no management official of
Respondent testified on the subject of Parker's authority,
or lack of authority to act on behalf of Respondent The
parties stipulated that Parker voted in the April 25
election
Employee Sakowski, who worked on the firing range,
credibly testified that on at least two occasions Parker
granted him permission to leave the plant early for
personal reasons, and at least in his presence did not
'Based on the credited and for the most part uncontradicted testimony of
Sakowski Parker admitted that he knew about the upcoming hearing, and
that Haines would be in attendance , from newspaper headlines and from
gossip in the plant , and also admitted that he told Sakowski that he did
not have to obey the subpena if it had not been put in his hand Parker did
not deny that he asked Sakowski what the latter would testify to, and
merely stated that he had no recollection of asking whether Sakowski
thought the employees would win For those reasons I credit Sakowski
Parker ' s explanation for his admitted statement to Sakowski that the latter
did not have to obey the subpena is that there is a general air of frivolity
about the plant , with the employees constantly joking with each other, and
that his statement to Sakowski was simply a joke I do not credit Parker's
testimony in that regard Having admitted that he saw the word
"subpoena" on the document that Sakowski tendered him, I do not believe
that Parker would joke about the question of obedience to it
"To test the fire arms for accuracy, they are fired on a range
check with anyone prior to granting such time off.
Sakowski further credibly testified that from time to time
Parker gave him work assignments and insisted that he
carry them out On a particular occasion, about 2 months
prior to the trial herein, Parker directed him to assist in
the unloading and storage of a quantity of ammunition.
Although Sakowski had done this work several times in
the past, on this occasion he declined to do it because he
felt that it was not among the duties he was employed to
perform Parker insisted that Sakowski do the work, and
threatened discipline if the latter refused. Sakowski did
the work, but later in the day had a conference with
Markham, his department foreman, at which Parker was
present, to ascertain whether the unloading and storage of
ammunition was a part of his duties. Markham told
Sakowski that he had to comply with any order Parker
issued to him
B The Discharge of Wilfred Dauplaise
Dauplaise was employed by Respondent in May 1961,
and except for a period of about 3 months in 1966," was
so employed until his discharge in June 1968, working in
several departments For more than a year prior to his
termination, Dauplaise was a repairman in the hard fitting
department where he made adjustments on weapons, that
proved inaccurate on the firing range, so as to bring them
to an acceptable level of accuracy It is undisputed that
Dauplaise was never criticized or reprimanded for his
work , and his volume of work was always in excess of
requirements That Respondent regarded Dauplaise as a
valuable and efficient employee is clear from the fact that
in 1966, it permitted Dauplaise, who is a polio victim and
at times suffers more than his usual difficulty in mobility,
to have a special parking place near the plant entrance,
and arranged to have work brought to his work bench to
avoid the necessity of his having to go for it . As above
noted, Dauplaise requested the Union to undertake
organization of the employees and was probably the most
active employee in the plant on the Union's behalf He
not only attended meetings, some of which were held in
his home, but assisted in drafting and his name appeared
on most of the union literature which listed him as a
member of the organizing committee whom the employees
might contact for information about the Union At the
plant, Dauplaise solicited employees to sign authorization
cards, and obtained between 100 and 150 signatures to
such cards . Not only did Dauplaise carry the
authorization cards about in his pocket so as to be open
and obvious , but he credibly testified that supervisors
observed him soliciting employee signatures . 1s Sometime
in January , Dauplaise informed Foreman Dubia that it
was necessary for him to submit to surgery in connection
with his disability , as soon as arrangements therefor could
be made, and that the doctor's estimate was that he would
be out 6 to 8 weeks. Granting the request for leave, Dubia
told Dauplaise "Don't worry about anything. Just get
better and come back to work ." Dauplaise ' s last day of
work prior to entering the hospital was February 23
Because of complications, Dauplaise was confined to the
hospital longer than had been anticipated, being
discharged on April 23, and by the end of May was still
on crutches, unable to return to work
"In September 1966, Dauplaise accepted what he regarded as a better
job offer from a friend Apparently, things did not work out as anticipated,
and in November 1966 he returned to work for Respondent
"Dubia and Glendowski denied that they observed Dauplaise soliciting,
SMITH & WESSON
For some years Respondent published and distributed
to its employees an "Employees' Handbook," containing
rules of conduct The latest edition of the handbook, dated
January 1, 1968, was during that month distributed to all
employees. Dauplaise admitted receiving a copy of that
handbook, but claims he did not read it The handbook,
to the extent here material, provides as follows-
Absences and Tardiness
Habitual absence or tardiness on the part of any
employee makes orderly planning impossible and is,
therefore, injurious both to fellow v orkers and to the
company. It also affects employment status by being a
factor in the "Employee Rating "
You are required to notify the Company of any
absence for whatever reason. Failure to do so within
three days will cause your name to be dropped from the
employment list. In the event of a continuing absence,
the employee is required to contact the Company every
two weeks
Absence for sickness of more than three months
automatically cancels your employment status unless
you submit a written request for extension and it is
granted by the Company."
According to Dauplaise, he learned sometime in May,
in discussion with friends, that as he was going to be out
more than 3 months, it was necessary for him to so notify
the Company. Accordingly, on May 24, he went to the
plant and sought to speak to Dubia, but was told by
Assistant Foreman Haines that Dubia was not in the
plant, but would be back the following Monday (May 27).
Dauplaise told Haines that because it was now apparent
that he would be out for more than 3 months, he had
come to advise Dubia of that fact Haines told Dauplaise
to return on Monday, and that he could see Dubia at that
time '' Haines admitted that when this conversation
occurred it was obvious to him that Dauplaise, who was
on crutches, was in no condition to return to work. He
also admitted that in this conversation he said nothing to
Dauplaise to indicate that his request for an extension of
leave had to be in writing, giving two reasons for his
failure to do so: first, that it did not occur to him that
Dauplaise had been absent for anywhere near the 3-month
period; and second, that while he was familiar with the
rule, the necessity for its application arose infrequently 15
but Haines , who was an assistant foreman and presumably spent more
time in the work area , did not in any event, all the supervisors admitted
that they knew Dauplaise was active on behalf of the Union because his
name appeared on the latter ' s pamphlets which were distributed in the
vicinity of the plant
"Though the language varied somewhat , virtually the same rules were
contained in prior issues of the Handbook , dated March 1952 , July 1953,
August 1954, and September 1962 Prior to the 1962 revision, the rule
merely required that in case of illness the request for extension of leave
beyond the 3-month period , be granted by the Company Beginning with
the 1962 revision , it was required that the request for such extension be in
writing
''There is considerable conflict in the testimony with respect to the dates
Dauplaise visited the plant He testified that his initial visit to the plant for
this purpose was on May 16, and upon being told that Dubia was not
available , returned and spoke with Dubia the following Monday, May 20,
and he is corroborated in this , at least in part, by Sakowski If these dates
are accurate , Dauplaise spoke with Dubia 3 days before expiration of his
3-month period of leave Company witnesses , however, place the first visit
by Dauplaise on May 24, and his conference with Dubia on May 27, the
latter date being 4 days after expiration of the 3-month period In view of
the fact that Respondent ' s records show that Dubia was absent from the
plant on vacation for the period beginning on May 18, and extending
through May 26, and the fact that Dauplaise 's testimony as to the date
was based solely on his recollection , which he admitted was not too good
1043
On May 27, Dauplaise returned to plant and spoke
with Dubia 16 At this time Dauplaise told Dubia that the
purpose of the visit was to inform the latter that he
(Dauplaise) would be unable to return to work within the
3 months, and asked if there was any job to which he
might be assigned that he could perform from a seated
position. Dubia replied that this would not be possible
because insurance rules or Company rules prohibited his
returning to work until his doctor signed a release Dubia
then asked when Dauplaise expected to be able to return
to work, and the latter replied that he had an appointment
with his doctor for June 17, at which time he expected to
obtain more definite information Dauplaise also asked
Dubia whether upon his return, he would be assigned to
his old job, saying that such might be a factor in the
doctor's decision as to when he could return to work
Dubia assured Dauplaise that he would go back on his old
job, and gave the latter a "Return to Work" form, telling
him to have the doctor sign it and that upon delivery of
the executed form to the company nurse, Dauplaise could
return to work. The conversation concluded with Dubia
telling Dauplaise not to worry, "Just get better and come
back to work "" As in the case of Haines, Dubia admitted
that in his conversation with Dauplaise he said nothing to
the latter to indicate that his request for an extension of
leave had to be in writing, explaining that it did not occur
to him how long Dauplaise had been away, and he
assumed that Dauplaise was aware of the rule and what it
required
Dauplaise had no further conversation with Respondent
until he received a letter on June 26, signed by Plant
Superintendant Kuczek, stating that it had become
"necessary to remove your name from the payroll because
of your long absence, your position had to be filled " To
this letter was attached a form entitled "Termination of
so far as dates are concerned , I have credited Respondent ' s witnesses in
that regard
"The findings in the above paragraph are based on the credited
testimony of Dauplaise Haines denied that in the May 24 conversation,
Dauplaise made any statement giving notice of his intention to return to
work According to Haines, Dauplaise only asked what job he would be
assigned to, and Haines replied that the question had not been considered
I do not credit Haines' testimony that Dauplaise made no statement
regarding notice of intention to return to work Even under Haines ' version
of what was said , implicit in the question Dauplatse allegedly put is his
intention to return to work However, if the testimony of Haines and
Dauplaise is in conflict , I credit the latter because I regard it as the more
probable in view of his purpose in going to the plant
"The General Counsel makes much of the fact that Dauplaise arrived at
the plant about 10 a m , but, because Dubia was engaged , was unable to
see him until about 1 p in , and that for the 3 hours Dauplaise was
permitted to stand on crutches outside Dubia's office without being offered
a chair , arguing that such treatment stands in bold contrast to the manner
in which Dauplatse was treated in 1966, when he was suffering more than
his usual disability and he was given a special parking place and work was
brought to him by supervisors I find it unnecessary to treat with that
argument
"Based on the credited testimony of Dauplaise Like Haines, Dubia
claimed that in the conversation with Dauplaise , the latter did not mention
the subject of a notice pursuant to the 3-month provision of Respondent's
rules According to Dubia, all Dauplaise said was to ask if he would be
assigned to his old job, and whether there was any work to which he might
be assigned that he could perform from a seated position I do not credit
this denial by Dubia As in the case of the conversation with Haines (see
fn 15, supra), I believe that implicit even in Dubia's version of the
conversation, was the fact that Dauplaise intended to return to work when
his condition permitted, which condition Dubia admitted he could observe
had not yet come to pass Furthermore , even if the testimony of Dauplaise
and Dubia be regarded as in conflict , I credit Dauplaise because his
testimony seems the more probable in view of the purpose of his visit to
the plant
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employment," that Dauplaise was asked to sign and
return, which stated that he was "discharged," and gave
as the reason therefor "Absent over 3 months without
submitting written request for extension "18 On June 27,
Dauplaise wrote Kuczek asking that Respondent
reconsider, and rescind its termination notice. Among
other things Dauplaise referred to his long tenure with the
Company, his good employment record, the reason for his
absence, and that his doctor, whom he saw on June 18,
had said that he was not yet able to return to work, as
well as his conversations with Haines and Dubia in May,
stating that when he left Dubia he had the "solid
impression" that his request for an extension of leave had
been granted, and that he would be assigned to his old job
when he was able to resume work. Kuczek's reply, dated
July 1, quoted the Handbook with respect to absences for
more than 3 months, and concluded that "since no written
request was received for an extension, your name has been
removed from the payroll." Dauplaise did not thereafter
communicate with the Company, and on July 15 the
charge herein was filed.
Kuczek testified that employee absences of more than 3
months are reported to his secretary by the payroll
department, and that she checks whether a written request
for extension has been received, and, if not, calls the
matter to his attention, and that he then automatically
sends a termination letter. He admitted that in the case of
Dauplaise, the matter was called to his attention by his
secretary on June 3 Kuczek testified, as did Dubia, that
on June 3, he called Dubia to his office, and pointed out
that Dauplaise had been absent more than 3 months.
Admittedly, Dubia told Kuczek about Dauplaise's visit to
him on May 27, and that he was expecting the latter back
to work shortly. Kuczek admitted that he decided to "let
it go at that." About a week later, Kuczek again called
Dubia to his office and complained about a bottleneck in
production. Dubia explained that the problem was due to
the inefficiency of the employee who, when Dauplaise
went on leave, was temporarily assigned to his duties, and
when Dauplaise returned to the job, which he expected
would be in a week or two, the problem would be over
Kuczek's only reply was, "We will see "I' About June 21,
Kuczek again called in Dubia and told him that there had
been no word from Dauplaise, and he was going to send a
letter of termination The letter mentioned went forward
on June 24 Kuczek admitted that he knew Dauplaise was
on leave for surgery, and that his record as an employee
was good, but that he did not take those factors into
account when he wrote the letter of termination, claiming
that termination was automatic upon failure to comply
with the rule.'"
'"There is a conflict in the evidence as to the date of this letter, and when
it was received by Dauplaise The letter itself is dated June 14, and
Dauplaise testified that he received it on June 15 or 16 Kuczek testified
that the letter was sent June 24, and that June 14 was probably a
typographical error on the part of the typist As the letter had been sent by
registered mail Kuczek , during a recess , checked with the post office, and
the latter 's report , evidenced by Exh R-1, shows that the letter was mailed
on June 24, and received by Dauplaise on June 26 Also, the letter
Dauplaise sent in reply , hereafter more fully discussed , recites that he
received Kuczek ' s letter on June 26 1 find , therefore , that Kuczek's letter
was written and mailed on June 24 , and was received by Dauplaise on June
26.
"Dubfa admitted that at this time Switzer , the replacement for
Dauplaise , was doing less than half the work Dauplaise normally did
Switzer was still on the job at the time he testified herein, but just prior
thereto he had been given a warning slip, and told that unless his
production improved , he would be transferred to other work
"The findings above are based on the testimony of Kuczek and Dubia
Kuczek also testified that Respondent enforced, and
that all employees complied with, that portion of the rule
which requires that in case of a continuing absence
employees "contact the company every two weeks."
However, the evidence does not support Kuczek's
assertion. The testimony is clear that Dauplaise did not
communicate with the Company every 2 weeks, while he
was on leave, and no evidence was offered of even a single
instance that any other employee did so. Indeed, upon
close questioning, Kuczek admitted that he had no real
knowledge on that matter and simply assumed that the
foremen required compliance with that rule because it was
their duty to do so
The first portion of the rule quoted above cautions
employees against "habitual absence or tardiness."
Gregory Dauplaise testified not only with respect to his
own derelictions in that regard, but read into the record a
list of such derelictions on the part of other employees in
his department, during a 3-month period early in 1968.
Respondent offered no testimony to refute that of Gregory
Dauplaise, and since attendance records are undoubtedly
kept by Respondent, I must infer from its failure to
produce them that had they been offered they would not
refute the testimony Gregory Dauplaise gave
Kuczek further testified that requiring requests for
extension of leave beyond 3 months be in writing has,
without variation, been uniformly enforced. To support
this testimony, Kuczek named five employees other than
Dauplaise, who were allegedly discharged for failure to
request an extension of leave in writing The five so
named by Kuczek were Mrs. Joslyn, Vincent
Korzeniowski, Mrs. Robak, Sotolotto, and Stowers.,' The
record testimony, however, does not support Kuczek's
assertion that the five persons named were terminated
because their request for extended leave was not in
writing Thus, Kuczek, under cross-examination, finally
admitted that of the three he terminated, Stowers quit for
a better job, and his former testimony that he discharged
Stowers for violation of the rule was in error, the notice
of termination sent Mrs. Robak merely read "absent over
3 months," and she was in fact terminated at the request
of her husband who informed Respondent that she was
unable to return to work, and Sotolotto was absent from
February 1 until he wrote the letter of termination on
June 24, which gave as the reason therefor, "because of
your long absence, your position had to be filled."„ Of the
two discharged by the prior superintendent, Kuczek
admitted that there was nothing in the file to indicate that
Mrs. Joslyn was terminated because of her failure to make
written request for extension of leave, and in the case of
Korzeniowski Respondent's file contains some indication
that the rule was not as rigid as Kuczek claimed, and that
under some circumstances an oral request to a foreman
for extension of leave was acceptable. Thus, on June 15,
1965, Respondent advised Korzeniowski that he was being
terminated that day, giving as the reason "Automatic 3
month removal No extension applied for " When
Korzeniowski wrote protesting the action, claiming that he
was unable to work, Respondent replied on June 30, 1965:
"According to Kuczek, he discharged the last three of the employees
named, while the first two were discharged by a former superintendent,
who Kuczek succeeded in 1965, and who, according to Kuczek, "followed
the same rule I did "
"It is of interest to note that the termination notice to Sotolotto and
Dauplaise were mailed the same day, and that the letter sent Sotolotto did
not refer to his failure to submit a written request for extension, as did the
one to Dauplaise
SMITH & WESSON
According to insurance supplements you are able to
leave your home, so it seems after such a long absence,
a trip to Smith & Wesson to contact your foreman Mr
Goss or myself would have been in order
Kuczek additionally testified that he had no knowledge
of the union activities engaged in by Dauplaise, denying
that he saw any of the union literature distributed at the
plant or that anyone told him about it I do not credit his
testimony in that regard 1' This denial, plus the fact that
Respondent's records do not support Kuczek's claim that
Respondent, without variation, uniformly enforced its rule
requiring a written request for extension of leave, causes
me to regard all of his testimony as suspect.
11 ANALYSIS AND CONCLUSIONS
A The 8(a)(1) Allegations
Based on the foregoing factual findings, I conclude that
Respondent violated Section 8(a)(l) of the Act in the
following particulars
1. Haines ' statement to Dauplaise that if the Union was
not successful in its campaign "you [Dauplaise] will be
sorry " Respondent argues that the quoted statement
should not be construed as coercive because Dauplaise's
being "sorry" might arise from some cause or action for
which Respondent could in no way be responsible For
example, Respondent argues that the statement could be
construed as meaning that if the Union failed to achieve
its objective, Dauplaise would be sorry that he did not
work harder on the Union's behalf The test, of course, is
whether the statement may reasonably be regarded as
calculated to restrain or coerce Zimnox Coal Company,
140 NLRB 1229, 1234, enfd 336 F.2d 516 (C A 6)
Certainly, a reasonable interpretation of the statement in
question is that because of some action by Respondent,
Dauplaise would be sorry he assisted the Union And in
view of what ultimately happened to Dauplaise, Haines'
remark proved to be more than a prophecy.
2 Equally coercive was the statement by Supervisor
Glendowski to employee Gregory Dauplaise that the union
activity in which he and his brother were engaged would
not help him get a raise To the employee, the only
reasonable interpretation of the remark is that a raise
would be denied him because of the union activity in
which he and his brother were engaged and was, therefore,
coercive
3. By Parker's statement to Sakowski that he was not
obligated to honor the Board's subpena which had been
legally served, Respondent attempted to dissuade
Sakowski from cooperating with the General Counsel and
thereby interfered with the effectiveness of the Board's
processes in securing for employees vindication of rights
protected by the Act, in violation of Section 8(a)(1)
thereof. J W Morrell Company, 168 NLRB No. 80 The
only real question here is whether on the facts heretofore
detailed, Respondent is liable for Parker's conduct. The
record shows that Respondent permitted Parker to assign
work to employees, to assign them overtime, and on at
least two occasions to grant Sakowski's request for
permission to leave work early. Although Respondent
contends that Parker had no real authority in these areas,
and acted merely as a conduit through which the
"I find it incredible that none of the extensive quantity of union
literature distributed at Respondent ' s plant during the 4-month campaign
came to Kuczek's attention , and that no management personnel informed
him of it
1045
foreman's direction of the employees in the department
was effectuated, this limitation of Parker's real authority
was in no way brought home to the employees On the
contrary, Respondent permitted Parker to act with respect
to the employees in such manner that the employees had
just cause to believe that in his relations with employees
Parker had authority to and did act on Respondent's
behalf in the vital area of employer-employee relationship
This is made abundantly clear not only by Supervisor
Markham's statement to Sakowski that the latter must
obey any work order issued by Parker, but by the very
fact that Sakowski, when he wanted time off, went to
Parker, not once, but on two separate occasions. It is a
little strange also that if as Respondent contends, Parker
was without authority in this area, he did not so inform
Sakowski and direct him to one who did have such
authority Instead, as Parker admitted, when Sakowski
initially asked him for leave, he impliedly granted it by
remaining silent Under these circumstances, Respondent
is responsible for Parker's conduct International
Association of Machinists, Tool and Die Makers Lodge
No 35 v NLRB, 311 U.S. 72, 80; NLRB v
Mississippi Products, Inc , 213 F 2d 670, 672-673 (C A 5),
Smith's Transfer Corporation, etc , 162 NLRB 143,
Square Binding and Ruling Co, Inc, 146 NLRB 206,
211, Birmingham Fabricating Company, 140 NLRB 640
I so find and conclude The fact that Parker, as the
parties stipulated, by agreement of all concerned, voted in
the Board-conducted election is irrelevant
B The Discharge of Dauplaise
The crucial question on this aspect of the case is
Respondent's motive in terminating Dauplaise If, as
Respondent contends, the discharge was based solely upon
the failure to comply with an admittedly valid rule, there
is no violation of the Act On the other hand, if the
alleged enforcement of the rule was merely a pretext, and
the discharge was motivated even in part by the
employee's union activity, a violation of Section 8(a)(3) of
the Act is clear. Whether a discharge falls in one category
or the other is a question of fact to be determined from
the circumstances of the particular case Uf.on
consideration of the entire record in the case, I am
convinced, and therefore find and conclude, that in
discharging Dauplaise Respondent was motivated by his
prior union activity, and that his failure to make written
application for extension of sick leave was simply a
pretext seized upon in an effort to obscure the true motive
of the discharge and to give it apparent legitimacy I
reach this conclusion upon the totality of the following
considerations
1 Dauplaise had been employed by Respondent for
about 7 years, and admittedly had an unblemished
employee record.
2. Dauplaise's activities on behalf of the Union here
involved, as well as his activities on behalf of UAW in the
latter's prior campaign, which were known to Respondent
3. Respondent's antipathy to the Union as evidenced by
the statements of Supervisors Haines and Glendowski, as
well as the conduct of Parker, all of which I have found
violative of Section 8(a)(1) of the Act
4. The fact that when Dauplaise visited the plant on
May 24 and 27, and made known to Supervisors Haines
and Dubia his desire to return to work as soon as his
physical condition would permit, neither Haines nor
Dubia informed Dauplaise that his notice had to be in
writing The excuses Haines and Dubia gave for not doing
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so seem weak in view of the provision in the Handbook
that "Your immediate supervisor and foreman are your
closest contacts with management. An important part of
their responsibilities is to help you succeed in your work "
If, as Haines and Dubia claimed, they did not know how
long Dauplaise had been on leave, it would certainly have
been a very simple matter for them to ask Dauplaise, or
to check with those responsible for keeping Respondent's
attendance and payroll records. The logical inference from
all the facts, and the one which 1 draw, is that neither
Haines nor Dubia saw the necessity for a written request
for extension of leave, and had no intention of requiring
it. This would appear to be the reasonable inference to
draw from Dubia's statement to Dauplaise on May 27,
"Take it easy Just get better and come back to work,"
and the similar statement by Haines on May 24
5 On June 3, Kuczek admittedly learned that
Dauplaise had been on sick leave for more than 3 months
and had submitted no written request for extension. If, as
Kuczek contends, application of the rule is automatic, and
the sending of the termination letter is perfunctory, I find
it difficult to understand why he waited for 3 weeks -
until June 24 - to send the termination letter The
answer would appear to be, as Kuczek's conduct
demonstrates, that he did not regard Dauplaise as
automatically terminated, and in effect waived strict
application of the rule.=' After June 3, Kuczek had two
conferences with Dubia concerning Dauplaise's extended
absence, and each time was told that Dauplaise had stated
his intention to return to work, and was expected to
return in a relatively short period I regard it as
significant that at the time Kuczek did not take the
position that Dauplaise was automatically terminated, but
rather at the end of the first conference decided, in his
words, to "let it go at that," and at the end of the second
one stated, "We will see."
6 Another factor indicating that Kuczek had some
discretion in the application of the rule is one facet of his
testimony. At one point he was asked if he would have
permitted Dauplaise to return to work had the latter
communicated with him after June 3, but before he wrote
the June 24 termination letter. Kuczek's answer was, "I
don't know " Plainly, if failure to comply with the rule
was as automatic as Kuczek insisted it was, a written
request by Dauplaise during the period mentioned, would
have presented no question for Kuczek to consider.
7 The examples Kuczek relied upon to demonstrate
consistent and uniform compliance with the rule as he
construes it, do not stand up under scrutiny. Not only did
Kuczek admit that Stowers voluntarily quit for a better
job, and that Mrs. Robak was terminated at the request
of her husband who reported that she was unable to return
to work, but he also admitted that the only information in
his files dealing with the reason for the termination of the
other three, was a legend to the effect that no extension
had been applied for. That legend, of course, indicated
only that no request for extension was made, and does not
establish that the discharge was for failure to make the
request in writing Indeed, reliance upon such weak
evidence casts doubt upon the bona fides of the assertion
Moreover, the letter written Korzeniowski, taking him to
task for not visiting the plant to make known his desire to
return to work, is a strong indication that Respondent
regards an oral request made at the plant, as sufficient
"Even if it be assumed , as Respondent contends , that neither Dubia nor
Haines had authority to waive compliance with the rule , certainly Kuczek
had such authority
compliance with the rule upon which Respondent relies
This is precisely what Dauplaise did
8 What all this adds up to is a case of an employee
with seniority of 7 years, who has admittedly performed
satisfactory work, and whose services are urgently needed
because of a bottleneck in production caused by the
unsatisfactory work of his temporary replacement, and
who has admittedly made known to the employer his
desire to return to work as soon as he has recovered from
the effects of surgery, is discharged allegedly for what, at
worst, was a mere technical violation of a rule
infrequently used, and other aspects of which were
violated by employees without reprimand from
Respondent This is not the customary and normal
reaction of an employer faced with a situation of this
kind And when there is added to this the fact that the
employee, not once but twice, was the dominant employee
force in the efforts to organize the plant, and that the
examples shown by Respondent of its alleged uniform
enforcement of the rule do not stand up under scrutiny, it
is reasonable to conclude, as I do, that "The demand for
strict compliance [with the rule] here is more consistent
with antipathy for union activity than concern over the
plant rules " (N L R B v General Industries Electronics
Company, 401 F 2d 297, 69 LRRM 2455, 2458 (C A 8) )
Or as the Court of Appeals for the Ninth Circuit stated
the same principle in Shattuck Denn Mining Corporation
v. N L R B, 362 F.2d 466, 470
If he [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where, as in this case, the
surrounding facts tend to reinforce that inference.
Accordingly, I find and conclude that Dauplaise was
discharged because of assistance to and support of the
Union, and that his discharge therefore violated Section
8(a)(3) and (1) of the Act
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following-
CONCLUSIONS OF LAW
I Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the conduct referred to in section II, A, hereof,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in, and is
engaging in, unfair labor practices proscribed by Section
8(a)(l) of the Act.
4. By discharging Wilfred Dauplaise on June 24, 1968,
Respondent discriminated against him in regard to his
hire or tenure of employment, discouraging membership in
a labor organization, and thereby engaged in, and is
engaging in, unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
SMITH & WESSON 1047
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action found necessary and designed to
effectuate the policies of the Act Respondent's contention
that the violations here found were at best minimal, and
do not warrant a remedial order, I must reject as without
merit. Rather, said violations, particularly the discharge of
Dauplaise, are such that go to the very heart of the Act,
and warrant an order requiring Respondent to cease and
desist from in any manner infringing upon the exercise of
employee rights N L.R B v Entwistle Mfg. Co., 120
F.2d 532 (C A 4), California Lingerie Inc., 129 NLRB
912, 915.
Having found that Respondent discriminatorily
discharged Wilfred Dauplaise, I shall recommend that it
be required to offer Dauplaise immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and
other rights, privileges, or working conditions, and make
him whole for any loss of earnings suffered by reason of
the discrimination against him by paying him a sum of
money equal to the amount he would have earned from
the date of the discrimination against him, to the date
Respondent offers him reinstatement as aforesaid, less his
net earnings during that period in accordance with the
Board's formula stated in F. W Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent
per annum, as set forth in Isis Plumbing & Heating Co ,
138 NLRB 716. As Dauplaise was absent from and
unable to work at the time of his discharge, and when he
became able to work not being discernible from this
record, that question will be left for resolution at the
compliance stage of this proceeding.
It will further be recommended that Respondent be
required to preserve and upon request to make available
to authorized agents of the Board, all records necessary or
useful in determining compliance with the Board's order,
or in computing the backpay due thereunder
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended , it is recommended that the National
Labor Relations Board order Smith & Wesson, its
officers , agents, successors , and assigns, to:
1 Cease and desist from
(a) Telling employees that they will be sorry if their
efforts to secure union representation are not successful
(b) Telling employees that their request for wage
increases will receive less favorable consideration because
of their activity on behalf of a union.
(c) Interfering with the processes of the National Labor
Relations Board by advising employees not to obey a
subpena issued by said Board requiring any employee to
appear and testify at a Board proceeding
(d) Discouraging membership in International Union of
Electrical , Radio and Machine Workers, AFL-CIO, or
any other labor organization of its employees, by
discriminatorily discharging any employee, or in any other
manner discriminating against any employee in regard to
his hire, tenure, or other term or condition of
employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities
2. Take the following affirmative action found
necessary and designed to effectuate the policies of the
Act
(a) Offer to Wilfred Joseph Dauplaise immediate, full,
and unconditional reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, privileges, or working conditions,
and make him whole for any loss of earnings he may have
suffered, in the manner set forth in the section hereof
entitled "The Remedy."
(b) Notify Wilfred Joseph Dauplaise if presently serving
in the Armed Forces of the United States of his 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.
(c) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary or useful in
determining compliance with this Recommended Order, or
in computing the amount of backpay due, as herein
provided.
(d) Post at its plant in Springfield, Massachusetts,
copies of the attached notice marked "Appendix "35
[Board's Appendix substituted for Trial Examiner's.]
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by its
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith 26
"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 "
"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 from the date of this Order, what steps have been
taken to comply herewith "