Stone & Webster Engineering Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1975

220 N.L.R.B. 905 (N.L.R.B. 1975)

STONE & WEBSTER ENGINEERING CORPORATION 905
Stone & Webster Engineering Corporation and Bos-
ton Local No. 300 and Boston Local No. 16-B,
Graphic Arts International Union , AFL-CIO. Cases
1-CA-10021 and 1-RC-13427
September 30, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 28, 1975, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt her recom-
mended Order, as modified herein.
We disagree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1) by
promulgating and enforcing a rule during the pree-
lection period which discriminatorily prohibited its
employees from discussing union matters during
working hours. In the weeks preceding the election,
reproduction department employees were observed
by management engaging in frequent conversations
on working time. Assistant Manager Marsden testi-
fied that he would tell these groups of employees, or
direct a supervisor to tell them, that unless their con-
versation was work related they were to return to
work. Union Organizer Raia testified that
Respondent's previous practice of allowing employ-
ees to carry on conversations at their work or when
they were caught up with their work was discontin-
ued during the election campaign.
It appears from the record that Respondent be-
came somewhat more restrictive with respect to em-
ployee conversations in the weeks before the election,
but contrary to the Administrative Law Judge, we
attribute Respondent's attitude to its conclusion that
the increased frequency of conversations on working
time would result in decreased production. Supervi-
sor Aletto testified that higher management "in-
formed me that if people there wanted a union they
were entitled to it and that supervisors , in general,
shouldn't interfere, that they could discuss union
matters before work, after work, during the lunch
time, they could use the cafeteria, but during working
hours they were supposed to be working." Assistant
Manager Marsden corroborated this testimony, add-
ing that the employees were also free to discuss union
matters during coffeebreaks even though coffee-
breaks were considered company time. Since Re-
spondent permitted its reproduction department em-
ployees to converse freely during lunch and break
periods, we find that any restrictions imposed upon
employee conversations while the employees were
working were motivated by legitimate business con-
siderations and were not designed to unlawfully pro-
hibit union discussions. Accordingly, we shall dis-
miss that portion of the complaint which alleges that
Respondent's conduct with respect to limiting em-
ployee conversations to nonworking time violated
Section 8(a)(1) of the Act.2
ORDER
' In the absence of an exception thereto , we adopt pro froma the Adminis-
trative Law Judge 's finding that Respondent did not violate Sec. 8(a)(1) of
the Act by creating the impression of surveillance of the activities of Union
Organizer Coady.
The Administrative Law Judge recommended that Respondent be re-
quired to post notices in the reproduction departments at each of its loca-
tions in Boston . Since all of the conduct found unlawful herein occurred in
the reproduction department at Respondent's Summer Street location, and
since there is no showing that anyone employed in the other reproduction
departments was affected by such conduct , we believe the posting of the
notice should be limited to the reproduction department of Respondent's
Summer Street facility . Cf. Dover Corporation, Norris Division, 211 NLRB
955 (1974); United Mercantile Incorporated et a!, d/b/a Globe Shopping
City, 204 NLRB 663 (1973).
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein and hereby orders that the Respondent, Stone
& Webster Engineering Corporation, Boston , Massa-
chusetts , its officers , agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified below:
1. Substitute the following paragraph for para-
graph 1(a):
"(a) Following employees in the plant to prevent
2 We shall also overrule that portion of the objections to the election
which corresponds to this section of the complaint . Member Fanning dis-
agrees and would affirm the Administrative Law Judge.
220 NLRB No. 124
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee conversations about the Union or main-
taining surveillance of the conversations and activi-
ties of the employee organizers of the Union."
2. Insert the following as paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act."
3. Substitute the following sentence for the first
sentence in paragraph 2(d):
"(d) Post in the reproduction • department at its
Summer Street, Boston , Massachusetts , location,
copies of the attached notice marked 'Appendix."'
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT follow employees in the plant to
prevent employee conversations about the
Union or maintain surveillance of the conversa-
tions and activities of employee union organiz-
ers for the purpose of discouraging membership
in or activities on behalf of Boston Local No.
300 and Boston Local No. 16-B , Graphic Arts
International Union, AFL-CIO , or any other la-
bor organization.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of the rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL NOT discharge or terminate the em-
ployees named below or any other employees, or
otherwise discriminate against any employees in
regard to their hire or tenure of employment, in
order to discourage membership in or activities
on behalf of the above -named Union, or any
other labor organization:
Joseph Butler Anil K. Mukerjee
William Coady Michael Sutton
Roland Cunniff Edward Thimas
Kendall Victor Innes Robert Tobin
WE WILL offer the employees listed above im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist , to substan-
tially equivalent positions , without prejudice to
their seniority or other rights and privileges and
WE WILL make each of them whole for any loss of
pay each of them may have suffered as a result
of the discrimination against him.
STONE & WEBSTER ENGINEERING CORPORA-
TION
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINOER , Administrative Law Judge: Upon
a charge filed on August 7, 1974,' by Boston Local No. 300
and Boston Local No. 16-B, Graphic Arts International
Union, AFL-CIO, referred to herein jointly as the Charg-
ing Party or the Union; a petition for certification of repre-
sentative filed by the Union on August 2 in Case 1-RC-
13427; a stipulation for certification upon consent
election executed by Stone & Webster Engineering Corpo-
ration, herein called the Respondent, and by the Union on
August 19, and approved on August 20; an election con-
ducted on September 19, in which challenged ballots were
sufficient in number to affect the results of the election;
objections to conduct affecting the results of the election
timely filed by the Union on September 24; and a report
on challenged ballots and objections issued by the Acting
Regional Director for Region 1 (Boston , Massachusetts),
on September 30, consolidating certain of the challenges
and objections with the unfair labor practice case as similar
issues were raised in both proceedings , the General Coun-
sel, by the Acting Regional Director, issued an order con-
solidating cases, complaint and notice of hearing on Octo-
ber 3. In an order directing hearing dated October 22, the
National Labor Relations Board adopted the Acting Re-
gional Director's recommendations, and directed that a
hearing be held to resolve the representation case issues.
The complaint , as amended at the hearing, alleges in
substance that the Respondent discharged employees But-
ler, Coady, Cunniff, Innes , Mukerjee, Sutton, Thimas, and
Tobin because of their union and other protected concert-
ed activities , and has failed and refused to reinstate them,
and by various acts and conduct has interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and thereby en-
gaged in unfair labor practices violative of Section 8(a)(1)
and (3) of the act.
In its answer, duly filed, the Respondent admits some of
the factual allegations of the complaint , denies that it has
committed any of the alleged unfair labor practices, and
asserts that the eight employees were not discharged but
were "terminated as part of a reduction in force ," and that
"Reinstatement is inappropriate where there has been a
reduction in force."
Pursuant to due notice, a hearing was held before me at
Boston , Massachusetts , on November 18, 19, and 20, and
December 16 and 17. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce relevant evi-
dence. Subsequent to the hearing, briefs were filed by the
1 All dates hereinafter refer to 1974 unless otherwise indicated.
STONE & WEBSTER ENGINEERING CORPORATION 907
General Counsel and the Respondent on or about January
24, 1975, which have been fully considered.
Upon the entire record in this proceeding and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been , a corporation duly organized under and existing by
virtue of the laws of the Commonwealth of Massachusetts.
The Respondent , which is engaged in the engineering, de-
sign , and construction of heavy industrial projects includ-
ing nuclear power facilities , maintains its principal office
and place of business at 225 Franklin Street in Boston, and
places of business at other locations , including one at 401
Summer Street in Boston, referred to herein as the Summer
Street location . The Respondent , in the course and conduct
of its business operations , causes large quantities of build-
ing materials to be purchased and transported in interstate
commerce from and through various States of the United
States other than the Commonwealth of Massachusetts.
During the calendar year 1973, the Respondent, in the
course and conduct of its business operations, received
goods valued at over $50,000 directly from points located
outside the Commonwealth of Massachusetts. The com-
plaint alleges, the Respondent in its answer admits, and I
find, that the Respondent is, and a' all times material here-
in has been, an employer engages in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find , as the complaint alleges, and the Respondent in
its answer admits , that Boston Local No. 300 and Boston
Local No. 16-B, Graphic Arts International Union, AFL-
CIO, are, and at all times material herein have been, jointly
a labor organization within the meaning of Section 2(5) of
the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that the Respondent, on
or about August 2, discharged eight reproduction depart-
ment employees at its Summer Street location , and has
failed and refused to reinstate them , because it knew or
suspected that all eight engaged in union organizing activi-
ties, or knew this as to two and terminated the other six in
an attempt to shield the unlawful discharge of the two, in
violation of Section 8(a)(3) and (1) of the Act; and that the
Respondent (A) on or about August 2, gave the impression
of maintaining surveillance of the union activities of em-
ployees; (B) on or about August 5 and 8, escorted dis-
charged employees, thereby harassing employees because
of their union activities ; (C) on or about August 9, re-
stricted employees to their work areas because of their
union activities ; (D) on or about August 9, forbade em-
ployees to talk to employees located in other departments
because of their union activities ; (E) since on or about Au-
gust 9, refused to allow employees to receive incoming tele-
phone calls because of their union activities; (F) since on
or about August 9, kept under surveillance the activities of
employees because of their union activities; and (G) since
on or about August 21 through September 19, the date of
the election, promulgated and enforced a rule which pro-
hibited employees from discussing the Union with each
other during work time, in violation of Section 8(a)(1) of
the Act.
The Respondent, which contends it had no knowledge
on August 2 of a union drive or of which employees en-
gaged in union activities, also maintains that the eight em-
ployees were terminated because economic conditions ne-
cessitated a reduction in force, that they were selected on
the basis of attendance and productivity as the most ex-
pendable employees in their sections, and that they have
not been and will not be considered for reemployment in
view of the grounds on which they were selected. The Re-
spondent also denies that it has engaged in unfair labor
practices by the terminations or by any of the other con-
duct alleged by the General Counsel.
The Respondent's representatives whose supervisory sta-
tus is admitted include Doherty, vice president and senior
personnel manager, whose office is at the Franklin Street
location in Boston, and who has been with the Respondent
about 30 years; Flanagan, manager of the reproduction
department; Flynn, assistant manager of the reproduction
department at all locations, who has been with the Respon-
dent 23 years; Genaris, senior supervisor, who assists at all
reproduction department locations other than Summer
Street; Dennis, manager of buildings and services; Mars-
den, assistant manager of the reproduction department at
the Summer Street location, who has been with the Re-
spondent 19 years; and Aletto, Kelleher, Berklind, and
Lee, supervisors, and Harris, assistant supervisor, in the
reproduction department at Summer Street.
B. Organization of the Union
Some of the Respondent's employees decided on about
July 22 that they wanted union representation. Raia, who
has been employed as a pressman in the Reproduction de-
partment at Summer Street about 3-1/2 years, got in touch
with a union representative. They arranged a meeting
which was held at the union premises, and was attended by
Raia, by Coady who was employed in the bindery section,
and by Sutton who was employed in the camera depart-
ment. Carlsen, president of the Union, advised these em-
ployees to get signatures to a union petition. Each of them
began circulating petitions the following day and contin-
ued for the next few days. Raia testified that he got help in
this from two other employees in his section, and that they
obtained, from about 40 employees in the section, a total of
about 36 signatures, of which Raia obtained about half.
Coady testified that he spoke to about 30 employees in his
section, some of whom refused to sign, that he tried to
conceal this activity from supervisors, and that the petition
was out of his possession about six times. Sutton circulated
the petition in his section and in other departments as well.
He testified that he spoke of the benefits of union organiza-
tion to about 5 to 10 employees in other departments, who
had been unwilling to sign a petition, and that he circulat-
ed the petition when management was not around, but that
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the petition was at times left with other employees. The
signed petitions were later given to Carlsen. A meeting was
held at union headquarters in Revere, Massachusetts, on
the evening of July 31. Raia, Coady, and Sutton notified
employees at work about this meeting , and about 45 em-
ployees attended. Raia, Coady, and Sutton were elected by
voice vote to the organization committee.
Raia admitted that he engaged in union discussions dur-
ing working hours, but stated that it was usually when his
work was done, that employees had always before this
been permitted to talk, and that other employees were per-
mitted to talk at this time but not to him. Raia testified,
and Aletto admitted, that during the organizing period Al-
etto told one employee to stop talking to Raia and return
to his machine and, when this employee said he was caught
up in his work, told him to return anyhow as Raia had
work to do; and told another employee, when he came to
see Raia, to go back to the photographic section where he
belonged, although Raia testified this employee previously
came to see him with no criticism.
Raia also testifed that when he received a call during the
organizing period, on a public telephone the employees
were permitted to use, Marsden, Aletto, or Genaris, sepa-
rately or in combination stood about 4 to 6 feet away "ob-
viously trying to listen"; and that on one occasion in Sep-
tember he told Genaris he did not like having supervisors
trying to overhear his conversations, and Genaris "said
something like, `well, we don't want you guys calling the
other buildings trying to solicit votes for the union." 2
Aletto's office, which is about 4 feet from the pay tele-
phone, is so small that, if more than one supervisor is talk-
ing to him, which occurs frequently, they stand outside his
office to have more room and to watch the work areas.
Aletto testified that he spends more than half his time out-
side his office. He also testified that the presses, which have
since been moved but were then about 30 feet from his
office, were so noisy it was difficult to hear his own tele-
phone and impossible to hear a conversation on the pay
telephone from the vicinity of his office, and that he could
overhear, if he walked past the pay telephone, only what
was said as he was passing. Other supervisors testified to
the same effect. In addition, Bradley, supervisor of noise
control in the Respondent's environmental division, testi-
fied to tests he made in the area in question. Certain press-
es had been moved, however, at the time of the tests; the
number of presses operating at any particular time vaned;
Bradley did not know Raia or Raia's tone of voice; and
Bradley admitted that, if a person on this particular tele-
phone shouted, he could be understood at 4 feet even with
the presses running.
Raia also testified that, for a period after the termina-
tions until the Board election on September 19, he was
followed by Marsden "more or less everywhere I went."
This was denied by Marsden and other supervisors, who
pointed out that Marsden had duties that took him to dif-
ferent work areas at Summer Street and to outside loca-
tions, so he could not spend as much time observing Raia
as Raia claimed.
Marsden testified that management on two or three oc-
casions "more or less discussed the conduct" of supervisors
during the Union's preelection campaign , and told the su-
pervisors that "employees have their right to have discus-
sion on company breaks and lunch hours; but the fact of
course that working hours were hours that work was to be
done" He also testified that they discussed whether em-
ployees could talk Union on coffeebreaks, and agreed that,
while "there's generality here that coffee breaks are compa-
ny time," they could do so "in orderly fashion" but they
could not discuss the Union at work. He admitted that
there are frequent "peaks and valleys" in the Respondent's
production and that employees possibly converse at work
during production "valleys," but asserted they should work
when there is work. He testified further that, while he
would not break up two employees talking unless it was
prolonged, there were "numerous occurrences at that time
where employees congregated together, and of course I
would walk up to this group and say is this something con-
cerning business ; and of course the employees if they stat-
ed no I would ask them to break it up and return to their
work area." He explained that it was part of his job to see
that employees were not having meetings during working
hours because they have to get out the work to meet critical
deadlines; that he is constantly in the work areas as the
coordinator of the various operations; that he spent more
time in the work areas than usual in the period preceding
the election; that he noticed employees were talking more
than usual during July and August, almost every day in
August and September, and sometimes two or three times
in a half-hour; that at times he asked supervisors about the
purpose of employee gatherings and they went over and
asked the group about it; that certain employees, including
Raia, were in these groups most of the time ; and that he
greets employees when he can and greeted Raia every day
that he was in that area prior to the election. When asked
by the General Counsel on cross-examination if he ever
reported to his superiors which employees he thought most
active on behalf of the Union, Marsden answered: "No,
sir. I don't recall any. Not naming employees, personnel,
no."
Aletto testified that he learned of the Union 's election
campaign when he returned from vacation on August 19;
that he was told by Doherty that employees could have a
union if they wanted one, "supervisors, in general,
shouldn't interfere," and employees could discuss union
matters "before work, after work, during the lunch time,
they could use the cafeteria, but during working hours they
were supposed to be working." 3 He also testified that,
prior to the election on September 19, there was more mill-
ing around than usual and production dropped a little, that
he had no idea what the groups were doing, and that, when
he sees groups gathered and there is work to be done, he
breaks them up.
The Respondent maintains that it had no knowledge of
union activity until after the decision to terminate employ-
ees made on August 2, and Aletto, as noted above, testified
that he did not learn of the union drive until August 19.
7 Berklind testified that he agreed with Aletto's testimony about manage-
2 Genarns was not called as a witness . ment instructions to supervisors.
STONE & WEBSTER ENGINEERING CORPORATION 909
Aletto admitted , however, that an employee told him, be-
tween 4:30 and 5 on July 31, "that he was asked to sign a
card so that a union could be brought into the printing
section." As Flynn sometimes dropped in at Summer Street
in the evening without Aletto seeing him, Aletto called
about 5 and asked Flynn, if he came that evening, to see
him. Flynn came at about 6, Aletto reported what he had
been told about "trying to get a union," and they discussed
it. Aletto testified that the conversation lasted about 5 min-
utes but he could recall only this one statement , and that
he might have reported the name of the employee but was
not sure . While he testified that he considered the incident
important enough to report to Flynn, Flynn testified that
many "rumors" are heard in an organization as large as the
Respondent; that if officials paid attention to every rumor,
they would "just get no work done whatsoever"; and that
"We would become aware and keep ourselves aware but
we would not take any action based on a rumor ." Flynn
testified that he did, however, tell Flanagan of this particu-
lar "rumor" the next day, August 1, that Flanagan appar-
ently had not known of it and expressed "mild surprise,"
and that he also on August 2 relayed this information to
Doherty. Doherty, who has his office at the Franklin Street
location and spends no time at the Summer Street location,
testified that he talks to Flynn occasionally, not every
week, but that any important labor relations matter would
be brought to his attention. Asked by the General Counsel
if the'supervisors knew about any union drive on August 2,
Flynn answered "I don't believe they did," and Doherty
maintained that no company representative had any
knowledge of a union drive on August 2, and pointed out
that union organizers testified about keeping their activity
secret from management.
Aletto, one of the three supervisors involved in the termi-
nations, testified that there was no further mention of the
Union between him and Flynn from Wednesday evening,
July 31, to Friday evening, August 2, when Aletto left on
vacation, then that he could not recall any mention of the
Union at their August 2 conference about the terminations
or whether Flynn asked if he heard anything else about the
Union, but that Flynn "may have . . . I don't recall. I-all
I can remember him-when he told me that seven people
had to be terminated from my area it kind of shocked me
at the time ." The second of these supervisors , Berklind,
when asked if there was any discussion with Flynn about
the Union, answered, "Not that I can recall." And the
third, Kelleher, testified that he heard nothing about the
Union prior to August 2 and, as to whether he ever saw the
petition, answered, "Absolutely not," but, asked whether,
at his meeting with Flynn about the terminations, Flynn
made any mention of the Union, he answered, "I don't
recall . I don't believe so."
The Union sent the Respondent a letter announcing or-
ganization of the Union and the names of the three em-
ployees on the organizing committee , and another letter
claiming to represent a majority in a unit of reproduction
employees at Summer Street and requesting recognition.
Both letters are dated August 1 , were mailed on August 2,
and bear a company stamp indicating they were noted by
Flanagan on August 5 and 6 respectively. The Respondent
claims that mail is picked up at the Post Office between
10:30 and I 1 a.m., and that this was its first knowledge of
the union drive.
Asked if he has had discussions with his superiors about
the Union since August 2, Flynn answered "Certainly we
have." He testified further that he and his superiors "op-
posed the union campaign," and, to the question "Did
Stone & Webster oppose unionization at the reproduction
department," answered, "Yes. We campaigned against the
union." And Doherty, asked about the company efforts to
oppose unionization of the reproduction department, testi-
fied: "Oh, I had something to do with it all right. . . . I
guess I was the senior person in the effort.... we did not
feel that the union was in the best interest of either the
company or our employees."
C. The Economic Situation
Doherty testified that the Respondent had written con-
tracts covering all its projects, but that stop and slow or-
ders were received from named customers, beginning early
in July, which by July 24 affected certain projects totaling
billions of dollars. He testified at a later point, however,
that he did not learn of the contract cancellations until the
afternoon of July 24 when Smith, executive vice president,
sent for him and told him they had some manpower prob-
lems. Doherty testified further that even at this point Smith
did not go into the matter of a reduction in force, a deci-
sion that had to be made by Allen, president, who was not
at this meeting. Doherty testified at one point that the Re-
spondent went overnight from a shortage to too much sup-
port manpower, and that it was therefore decided on July
24 there should be some reductions in personnel, and at
another point that the decision to reduce personnel was
made on August 2; that on the morning of August 2, at a
meeting in his office with Flanagan and Flynn present,
Larson informed them there was to be a reduction in the
reproduction department; and that this followed a shut-
down of Vepco work on July 31.
The Respondent's recruitment program had resulted in a
number of employees hired during the period from April to
June to report in August. Doherty, asked if it would not
have been easier to cancel new hires rather than terminate
employees, answered, "To be perfectly honest with you, sir,
in July we didn't think this thing was going to get as bad as
it did." He admitted also that he did not know if the Re-
spondent continued to contract out reproduction work or if
it had even considered discontinuing this, did not know
how much reproduction work was lost because of delays
on contract work, and did not know whether any clerical
employees involved in reproduction work at Summer
Street were terminated. Doherty explained that not only
was there no advance notice permitting the Respondent to
program the terminations, but also that the downturn in
the middle of July was a complete surprise, and that corpo-
rate plans in fact had called for expansion. The Respon-
dent hired, in all categories, 4,152 during 1973, and almost
as many, 3,503, in the first half of 1974. During 1973 it
spent $2,284,397 -on employee recruiting, and almost as
much, $2,028,671, in the first half of 1974. It also commit-
ted itself to new buildings to house the expected increased
numbers of employees.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doherty also testified that the Respondent, during the
period from about July 24 to about August 16, because of
the downturn in work, terminated large numbers of em-
ployees in different categories working at various locations
and projects; that, on August 2, 60 were terminated in Bos-
ton, including the reproduction department employees
here involved; and that the total reduction through No-
vember in all locations was 9 percent of the work force,
and not replacing turnover brought this total to 18 percent.
The record does not show, however, the extent, if any, to
which the employees who were terminated had completed
work assigned to their categories on particular projects.
Doherty included in his descriptions of those terminated,
for example, five reproduction department employees in
the Respondent's Long Island operation, all of whom had
been hired as summer employees.
Counsel for the Respondent introduced into evidence a
document summarizing the data about which Doherty tes-
tified as to stop and slow orders, and stated that it was not
for the truth of the data but to show, by this document and
Doherty's testimony, that the economic cutbacks necessi-
tated the reductions in personnel including those here in
issue . Respondent's counsel admitted these were not origi-
nal documents, which he explained could not be intro-
duced because of confidential material contained therein,
but stated, in view of the objections of other counsel and
the ensuing discussion, that additional documentary evi-
dence would be furnished. Shortly before the close of the
hearing, he stated that "We have attempted to get some-
thing which is 'a little more official' than just a statement
of the fiscal loss to the company in these cutbacks. There is
highly confidential information in the files from various
clients who have cut back their orders. I have here two
statements by Vepco from which we have deleted figures
dealing with costs, bids and so forth. And I have the frame-
work of the letters of the Executive Senior Vice President
to Stone & Webster as one piece of evidence, which would
substantiate the necessity for reduction in force because of
loss of business. In other words , what the customer has
done has said , 'We want to cut back .' Now, this is as close
as anything we can get short of subpoenaing the executives
of the clients, which we certainly are not in a position to
do." Both letters are dated July 24. Doherty testified that
he had that morning by telephone asked a project manager
to prepare these documents, and that he had been unable
to reach any other project managers . He tried again before
the close of the hearing to get in touch with other project
managers by telephone but did not reach any. No original
documents were made available for inspection or compari-
son with the data submitted. Doherty admitted that there
was nothing in the partial text of the letters in evidence that
related to or mentioned the reproduction department, and
that he knew of no such reference in the deleted portions.
Flynn testified that he made the terminations here in
issue on August 2 on the basis of a decline in business he
"anticipated," but, at another point in his testimony, that
the reduction was based not on anticipated lack of work
but on "a tremendous downturn in our overall business
which happened on a very very short notice. Somewhere in
the area of the middle of July . . . . the downturn in the
corporate business was here it wasn't anticipated," and it
lasted several months. Flynn admitted, however that in
early July the Respondent "was hiring most all the people
it could-they could get"; that employees were hired short-
ly before August 2 who were retained; that commitments
were made in July to hire employees who came to work
after August 2; and that other new employees were hired
after August 2. Flynn also admitted that there was over-
time work in the department after August 2 to complete
urgent jobs for the Atomic Energy Commission and others
as "The nature of our business is tremendous peaks and
valleys," and that at times supervisors performed work nec-
essary to meet critical schedules. Flynn admitted, more-
over, that the Respondent placed several advertisements
for employees. He stated that they were placed in early
July before he knew of the downturn, but then admitted
one was placed on July 24 and others at various times
throughout this period, that some were for employees in
the reproduction department, and that certain ones were
intended to replace employees who quit. He testified that
none of the eight complainants were recalled in lieu of new
hires because "We felt they were marginal employees and
we don't want them back," and they will not be considered
for reemployment.
Marsden testified that there were constant peaks and
valleys in the workload, and that he could not answer
whether July, August, or September was a "valley" because
these peaks and valleys were a weekly situation, and "One
week you're slow . Your next you could be almost straight
out." Asked by Respondent's counsel why employees were
not terminated during previous "valleys," Marsden replied
that "We haven't had a termination in the reproduction
department in the 17 years that I know of. So, there was no
basis for termination before this. The basis here was the
reduction in force." And Flynn testified that there had
been no reduction in force for at least 10 years, that he
never had to terminate anyone because of reduction in
force in his 23 years with the Respondent, and that there
were no previous terminations in the approximately 2-1/2
years he had been in his present position.
D. The Reproduction Department
Doherty testified that the Respondent, which is engaged
primarily in providing engineering, design, and construc-
tion services , also prepares engineering specifications,
drawings, and reports at a number of its own reproduction
department locations and in some areas through outside
contractors; that the reproduction department is required
to produce reports of 6 or 7 volumes with each volume
hundreds of pages thick, and these have to be produced in
quantities up to 300 depending upon who is designated by
the Atomic Energy Commission to review them; that this
represents a tremendous effort of collating , binding, and
the production of a truly professional job; that any delay in
this work could greatly delay obtaining Atomic Energy
Commission approval and cause losses in the millions of
dollars; and that reproduction functions "are a very integ-
ral part of our operation and very important and critical to
our relationship with our clients."
The reproduction department at the Summer Street loca-
tion, prior to the terminations of August 2, had 85-90 em-
STONE & WEBSTER ENGINEERING CORPORATION 911
ployees, and was divided into sections designated as print-
ing, bindery, photographic, Xerox, Diazo, and microfilm-
ing. There are a number of other reproduction locations in
the Boston area with a total of about 71 employees.
E. The Reduction in Force
Flynn testified that Larson, a vice president, told him
and Flanagan on about July 23 or 24 that a reduction in
force might be necessary because of a loss of contracts, but
did not indicate when nor what number of employees
might be affected; that he discussed this matter with Flan-
agan but no steps were taken to prepare for a reduction;
and that the immediate supervisors of the employees were
not informed of this possibility. Flynn also testified that he
attended a meeting on Friday, August 2, at about 8:30
a.m., with Larson, Doherty, Dennis, Flanagan, and Patter-
son, a labor relations official from the management offices
in New York,4 in Doherty's office at the Franklin Street
location; that he was given virtually no notice of this meet-
ing and had no idea in advance of the purpose of the meet-
ing; that Larson told him there was to be a reduction in
force and he was immediately to terminate 10 to 15 em-
ployees; and that, although Larson did not at the meeting
state the reason for this action, the reason was the down-
turn in work, which was a matter of general knowledge.
Larson also did not tell Flynn which sections were to be
reduced. Flynn determined that and the number of em-
ployees to be affected. He proceeded with these termina-
tions on August 2 immediately after the meeting that
morning, and verified his final decision with Flanagan. Al-
though Flynn is in charge of reproduction department op-
erations at all locations, he terminated only employees at
the Summer Street location, but he did not wait to consult
Marsden, the assistant manager in charge of the Summer
Street location, who was on vacation and was scheduled to
and did return on Monday, August 5. He likewise did not
consult Genaris, the senior supervisor who assists at all
reproduction department locations other than Summer
Street. Flynn, using Marsden's office, called in supervisors
Aletto, Berklind, and Kelleher, one at a time, between
about 10 and 11 a.m. on August 2, immediately after the
meeting of officials. None of these three supervisors had
any inkling as to the purpose of the meeting until he went
to the office and Flynn told each there was to be a reduc-
tion in force and he had to select a certain number of
employees to be terminated.
Flynn testified that, although he never previously had to
terminate anyone because of a reduction in force, and
knew of no written company policy on this subject, he de-
cided he would, as a matter of "common sense judgment,"
not base the terminations on seniority but get rid of the
"weakest employees"; that, while "Seniority would carry
weight, yes," it in fact carried some weight only as to Sut-
ton, who was nevertheless terminated; and that his criteria
in selecting the 10 employees to be terminated 5 were, first,
"where we felt the work would turndown the quickest, due
Larson, Flanagan, and Patterson were not called as witnesses.
Flynn, Marsden, and Aletto testified about 10 terminations, including
Gore, a temporary seasonal employee, and Pyne, hired on June 24 and
described by Aletto as being "out more than he was in," who are not com-
to the sudden decline in business" that he "forecast," the
second was absenteeism which included lateness, "and I
guess the third would be seniority. If you had two good
people of good productivity and good absenteeism or no
absentee record then seniority would play a part in it," but
that people with more absenteeism were retained if better
producers because of "our tight schedules" and "critical
workload."
Flynn also testified that, as the official attendance rec-
ords are kept in a personnel office and "not immediately
available," he used the informal attendance records that
are kept in Marsden's office. These records contained some
information taken from the official records as to employee
attendance, but did not show whether absences were unex-
cused, or excused paid absences, or prolonged absence for
serious illness.' Moreover, while he testified at one point
that he had the 1974 records for the sections affected, he
also testified that the informal records are retained for only
2 to 3 months. No individual production records were
available. Most supervisors did not keep them. Aletto kept
informal daily and weekly production records for each em-
ployee in his section so he could "know exactly" what
"each individual is doing, who's doing twice the amount of
work as the next fellow," but he did not bring his produc-
tion records to the meeting with Flynn as he did not know
the purpose of the meeting, and Flynn did not know any
such production records were prepared. The comparisons
of employee productivity were based on each supervisor's
judgment as to work performance. Flynn called in Aletto
and said he had to select seven employees for termination.
Both testified that they discussed each employee in Aletto's
section, which took about a half-hour, and selected seven,
including five of the eight complainants, who, Aletto testi-
fied, were least effective. Berklind was next, and selected
two of the approximately 34 he supervised, and Kelleher
selected I of his 8 employees. Flynn testified that the dis-
cussions with Berklind and Kelleher took about 15 minutes
each, but Berklind testified his took a half-hour, and Kel-
leher that his was 15 minutes or a half-hour.
Immediately after the selections were made, Flynn noti-
fied each individually of his termination. He testified that
this began about I I a.m. and took about an hour, that most
of them were surprised and some protested their termina-
tion, and that the "physical terminations" were made on
August 2 but they were to be paid through August 9, "Plus
severance and plus vaction," but that all eight terminations
were effective on August 2 even if someone selected was on
vacation on that date.
1. Aletto's selections
Alecto, who had never discharged anyone and previously
recommended for discharge only one employee about a
year ago, selected Butler , Cunniff, Mukerjee , Thimas, and
Tobin for termination.
Butler began his employment in the reproduction depart-
plainants . Doherty testified that I I were terminated , but he could not recall
nor locate in the available records the name of the I1th employee.
6 Flynn testified that employees were given paid sick leave of, he thought,
a day a month ; that sick leave in excess of that was unpaid ; and that
absences of the eight selected for discharge may have been on paid sick
leave.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment at Summer Street in November 1973. He testified
that he signed the union petition in late July at the request
of employee Phillips, and attended the August 1 union
meeting in Revere . Butler also testified that his vacation
was scheduled for, he believed , August 5 to 9 ; that on Au-
gust 2 at about 10 : 45 he was sent by Flanagan to see Flynn
in Marsden 's office , and that Flynn said he was laid off
because of a cut in the work force and that , if work picked
up, he would be recalled . He also testified that he had been
training Mahoney, who worked with him on a multilith
press, for about 2 weeks so that , as Aletto had told him,
Mahoney could take over the work while Butler was on
vacation . Butler admitted Mahoney was an experienced
pressman , but testified that he did not know how long Ma-
honey had been employed . He also admitted that, while he
never refused to do overtime work, which was voluntary,
he failed to report for it a couple of times.
Flynn testified that Butler was selected because of his
"bad absentee and tardiness ," and he "had received two
warnings which had an effect on the decision ." Flynn testi-
fied further , after looking at Butler's records, that the prob-
lem was not absence but primarily tardiness , that Butler
received a warning on May 31 for absence and lateness,
and that he received another warning on July 1 for the
same reasons plus not showing up for overtime after agree-
ing to do so. Flynn explained that Butler was not dis-
charged earlier despite the two warnings because the
Respondent 's workload had been so heavy that it retained
marginal employees . Flynn also testified that another rea-
son for Butler's selection was production . He admitted,
however , that Butler received a merit increase in May
bringing his rate to $ 140 a week.
Aletto testified that Butler was selected for tardiness and
absenteeism as to which he received two warnings from
Marsden , but, at a later point , that he agreed with Flynn's
testimony that Butler's problem was not absence but tardi-
ness; that he was selected also for poor production in that
Butler did a great number of plates but the quality was
frequently poor and had to be redone; that Aletto first
noticed this in about February but gave Butler no written
warnings for it in the approximately 6 months Butler
worked thereafter prior to his termination ; and that he dis-
cussed this with Marsden , who issued warnings on atten-
dance but , as to production , said the workload was so
heavy it was better to have someone like Butler than no
one. Aletto also testified that he was not familiar with the
attendance book , that his knowledge as to absenteeism had
to be checked with the book , and that his recommenda-
tions were based on production.
Cunniff was employed by the Respondent as a messenger
at $100 a week in June 1972 , was transferred to the repro-
duction department in August 1972, and worked as a press-
man until his termination in August 1974. At the time he
was earning $ 150 a week . While a double increase of $20
was as the Respondent admitted most unusual , Cunniff
had received two double raises. He testified that Marsden
stated as to the first one that he was very pleased with
Cunniff's work ; and that, as to the second , he spoke about
a raise to Aletto, who spoke to Marsden , who rejected
Cunniff 's request but, when Cunniff pointed out that he
was doing the same work as other men who were paid
more , Marsden agreed and spoke to Flynn , who also
agreed . Cunniff testified that he was never criticized as to
his work or production , and that Aletto frequently com-
plimented jobs he did. Cunniff went on vacation the week
of July 29. During the preceding week , he signed the union
petition at Raia's request , and he advocated union organi-
zation in employee discussions at the plant. He also attend-
ed the union meeting at Revere on August 1.
Cunniff returned to work from his vacation on August 5.
He had placed his lunch in his locker and was hanging up
his shirt when Marsden told him to come to the office and
bring his shirt. Flynn , who was in Marsden 's office, said
there was a reduction in work and Cunniff was one of
those to be laid off. Cunniff testified that he protested that
other employees had been there a much shorter time and
he knew how to run all the machines , but Flynn replied
that seniority meant nothing , and that severance pay would
be mailed . Cunniff walked back to get his lunch from the
locker with Marsden following him. Raia called out to ask
about Cunniff 's vacation . Both Cunniff and Raia testified
that , when Cunniff replied that he had just been laid off for
no reason, Marsden walked over and said if Cunniff want-
ed to talk to employees he should do so at lunch . Cunniff
then went to get a drink of water with Marsden still follow-
ing him . At this point Cunniff said , if he was being termi-
nated , he wanted his pay and whatever was due him. Mars-
den said Cunniff would have to see Flynn about it, so
Cunniff walked back to the office , with Marsden following,
and asked for his severance pay, but Flynn said again it
would be mailed.
Cunniff testified that he went back to the plant on Au-
gust 8 to get his personal belongings out of the locker,
which he had been too "astonished " to do on the day of his
termination ; that he banged on the back door which was
locked ; that an employee admitted him but said that door
was no longer used ; that he pointed out an error in his pay
to Marsden, who said he would take care of it , and then
asked where Cunniff was going; that when Cunniff replied
that he was going to clean out his locker , Marsden said
Cunniff could not go to that area, but , when Cunniff ex-
plained that he wanted to get his personal belongings,
Marsden gave him permission to do so but followed him;
and that when he left he told Marsden , "Thanks for the
escort ." Cunniff testified that he knew other employees
who had been discharged but were not followed by compa-
ny officials, and that one Crowell who was discharged in
the summer of 1973 comes to the plant to visit and walks
around freely.
Flynn testified that Aletto reported Cunniff to be "one
of our weaker employees , based on absenteeism and poor
productivity," of which Flynn had been unaware before
this. Flynn admitted , however, that about 5 of the 30 in this
section had poorer attendance records, and that, while
there was a practice of giving written warnings to employ-
ees on attendance and production , he thought no written
warning of any nature had been given to Cunniff . He also
admitted that employees were reviewed every 6 months for
$10 step increases up to a fixed ceiling on the basis of merit
and attendance , that double raises of $20 were "extremely
STONE & WEBSTER ENGINEERING CORPORATION
unusual," that Cunniff was given a $10 raise on February
26, 1973, a $20 raise on August 27, 1973, and a $20 raise on
February 25 , 1974, and that the double raises for Cunniff
were recommended by Aletto to Marsden , who recom-
mended them to Flynn and Flanagan.
Marsden testified that he learned of the terminations
Sunday night on his return from vacation when Flynn tele-
phoned him at home and told him of a companywide re-
duction affecting 10 in Marsden 's area, and said he would
tell him more in the morning ; that Flynn told him at about
7 the next morning that seven in printing , two in the bind-
ery, and one in photographic were affected by the compa-
nywide reduction ; that, when Cunniff came in , he called
Cunniff to the office and said Cunniff was terminated be-
cause of the companywide reduction, and that "of course
Mr. Cunniff was a little surprised ." Marsden admitted he
followed Cunniff when the latter asked to go to the work
area to get his personal belongings, and stated he did so
because he was then filling in for Aletto who left on the
evening of August 2 on a 2-week vacation ; 7 and that he
went with Cunniff when the latter returned to the office to
ask Flynn for his pay. Marsden also testified that Cunniff
returned on Wednesday at about 11 a.m. and asked if he
could clean out his locker, and that he gave permission.
Marsden testified at one point that he terminated Cunniff
on Monday, August 5, when both returned to work from
vacation but, at another point , that it was not his decision
to terminate Cunniff, he was not there when the decision
was made , he and Flynn discussed the terminations Mon-
day morning, and, as he was back, he informed Cunniff of
the termination . Marsden also testified that it was at their
meeting early Monday morning that Flynn told him about
contracts being lost , that they discussed the 10 who were
terminated and the effect on the department , and that,
while he could not recall Flynn ever previously terminating
employees in his area , his views as to the selections were
not asked nor offered as the selections were already made.
Aletto testified that Cunniff was selected for excessive
absenteeism and for poor production; that the quality of
his work dropped greatly in the last 4 to 5 months; that he
seemed not to care and wandered away from his press
more although there was work to be done; that Aletto
spoke to him about this but could not recall how frequent-
ly, and saw no improvement after he did so; that he spoke
to others also but more often to Cunniff in the 4-5 month
period; and that, for example, Cunniff left on vacation
without cleaning his press although he was supposed to
clean it unless told otherwise by Aletto. Aletto admitted,
however, that he recommended Cunniff to Marsden both
times for the double raises, and that he had since then both
criticized and complimented Cunniff's work.
As to following Cunniff, Marsden testified that there
was no indication Cunniff might do any damage and that
he could not recall any damage done by a terminated em-
ployee, but that the longstanding policy, albeit unwritten,
was to watch terminated employees, that he has watched a
few, but that he could not recall how many nor any names
other than that of Cunniff.
7 Aletto testified that the vacation schedule was made up a month or two
in advance.
913
Doherty testified that it was the practice to require ter-
minatedemployees to leave promptly in the computer and
reproduction departments because of the delicate and ex-
tremely valuable equipment there, that this practice was
adopted independently by each of these departments, but
that the practice had never been reduced to writing.
Aletto testified that he has seen terminated employees
Sherion, Shaw, and Woodings in his work area ; that "A lot
of times it was just before lunch. They were waiting-you
know, they came to go to lunch with someone"; then that
"Woodings came down a couple of times and I remember
asking him once to wait down in front of the building for
whoever he was going to lunch with"; that Woodings "had
been in my area without my even seeing him coming in";
and that Sherion never came down there, and Shaw, "I
don't think, has ever been down to 401 Summer Street, to
my knowledge anyway."
Mukerjee began working for the Respondent on October
23, 1973, at $130 a week, received a $10 merit increase after
6 months, and was an A.B. Dick operator in the multilith
section in printing. He testified that he was asked in late
July to sign the union petition, and that he did because
"everyone else did so." Mukerjee testified that Aletto told
him at about 11:30 a.m. on August 2 to report to Flynn in
Marsden's office ; that Flynn "told me my job is finished
... and that I should leave. . . . that I'll be getting that
week's salary plus one week's extra money, whatever mon-
ey they owed me . . . when I did ask him why I was given
this notice to leave . . . all he told me was a lack of work
.... I didn't understand why, because I came into the
company in good faith to work with them and serve them
..."; and that he was given no further explanation al-
though he had work to do at the time. Mukerjee also testi-
fied that he had never been warned about production and
that Aletto in fact had complimented his work . He admit-
ted that he was warned once early in the summer about
lateness , but testified that he explained his transportation
problem; that he was never late more than 5 minutes or
less and, if he was taking more time for medical or other
reasons , always telephoned; that there was no reference to
discharge in the warning he received but he was merely
told to come earlier ; and that he did improve and came in
on time.
Flynn testified that Mukerjee was selected for "absentee-
ism and poor productivity and received, I believe, one
warning for absenteeism-tardiness"; that Mukerjee had
the worst record on tardiness; that he received a written
warning for it on May 31; and that his record did not
improve, thereafter. Flynn admitted, however, that about
seven had poorer records than Mukerjee as to absence;
that Mukerjee was never given a second warning; that he
did not know, although Aletto or Marsden might, whether
Mukerjee had an excuse for his tardiness; that another em-
ployee, Hawe, who was often late and had been warned as
recently as July 10, was still employed because his record
improved and he had good production; and that Mukerjee
received a merit increase in April 1974 bringing his rate to
$140 a week.
Aletto testified that Mukerjee was selected for excessive
tardiness and poor production, that he was slow and had
been from the time he started a year ago, and that he re-
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceived a written warning from Marsden "in respect to his
tardiness and his productivity," although at a later point
Aletto testified that the only written warnings issued by
Marsden are for attendance.
Thimas was hired as a pressman on the reproduction
department day shift on February 19. He signed the union
petition at Raia's request, and attended the August 1 meet-
ing in Revere. He was called to Marsden's office on August
2, where Flynn told him there was a companywide reduc-
tion and he was laid off.
Flynn testified that Thimas had no problem on atten-
dance but was selected for poor production, and that when
Thimas finished a job he read books and did not ask for
another job. Flynn admitted, however, that he did not be-
lieve Thimas ever received a warning.
Aletto testified that Thimas required constant supervi-
sion because of poor production, that he reprimanded Thi-
mas several times for reading a book when there was work
to be done, that others also finished work and failed to get
another job but less frequently than Thimas, and that he
did not think the attendance record was considered in this
instance.
Flynn testified that Tobin 8 was selected for absenteeism
and also for poor production. He admitted that there were
in the section "maybe two with poorer absent records,"
and that Tobin received a merit increase in March which
brought his rate to $150 on a job with a ceiling, Flynn
thought, of $170. Flynn also testified, as to both Thimas
and Tobin, that "I believe they received verbal warnings
from their supervisors," that these supervisors "would tell
me. . . . Not all the time. I said I believe they have. I'm
not sure."
Aletto testified that Tobin, who worked under his super-
vision about a year, was selected for excessive absenteeism,
although he agreed with Flynn there were some with poor-
er records still employed; that it was also for poor produc-
tion caused by Tobin doing a great deal of work but some
that was of poor quality had to be redone, although he
admitted work of others was also rejected at times; that he
spoke to Tobin about work that had to be done over about
3 to 4 months before Tobin's termination; and that he also
mentioned this to Marsden, but nothing was done about it.
2. Berklind's selections
Coady was employed by the Respondent as a bindery
operator in September 1969. In 1972 he left voluntarily for
a year, and returned in March 1973. He was hired both
times by Marsden. He came back to work on the night
shift, but in about September 1973 went on the day shift, at
his request, in the bindery under Berklind's supervision.
Coady went on a 2-week vacation beginning the last week
in July. He circulated the union petition the week before,
and attended the meeting with Carlsen while on vacation.
He testified that he went to the plant on August 5 to ask
about the Union, that he had always been permitted into
the building, and that he spoke to Raia and King each for
a few minutes but saw Marsden watching so left. He also
8 A representative of the Charging Party stated at the hearing that Tobin,
who did not appear to testify, was ill.
testified that on the next day he received a letter of temina-
tion dated August 5;9 that he called Harris, assistant super-
visor, and asked if the letter could be because he came into
the building; that she told him Marsden had scolded em-
ployee Waitz for permitting Coady to come into the build-
ing and said Coady was to be kept out; and that he also
called Marsden, who "said he was sorry ... he didn't
know anything about it . . . it was because of lack of
work."
Marsden asserted that Coady's testimony about coming
to the plant and seeing him on August 5 was untrue as, if
this occurred, he would have talked to Coady about the
termination which Coady could not be told about in per-
son because he was on vacation. Marsden also testified
that Coady telephoned Tuesday afternoon, said he re-
ceived a letter that he was terminated due to a reduction in
workload, and wanted to know the reasons behind it, and
that Marsden answered only that it was because of the
reduction in force. He also testified that he saw Coady on
Wednesday afternoon talking to bindery employees and
asked why Coady was there, that Coady said he was talk-
ing to a few of his friends, and that "of course, at this time
I told Mr. Coady he'd have to realize that this was working
hours and that I would desire that he talk to his friends and
the other employees either at lunch hour or after work."
Marsden testified further that he was surprised Coady got
in without his knowing it, that he asked employee Waitz,
who was at the desk, about it, but she said she did not
know Coady was there, and that Coady's entrance into the
plant "added additional suspense on my part ... because
we were concerned, of course for the protection of compa-
ny property and the equipment."
Innes worked in the bindery at the Respondent's Frank-
lin Street location from January to July 1973, when he quit
to go to school. He came back in February 1974 to work in
the bindery at Summer Street under Berklind' s supervision.
He was hired both times by Marsden. Innes was on vaca-
tion when the union activity began, but he was back at
work when Sutton asked him on August 1 to sign the peti-
tion, and he did so. Innes testified that right after lunch on
August 2, at about 12:30, Berklind sent him to Marsden's
office, where Flynn told him there was a reduction in force,
mentioned that his attendance was poor, and said he was
being terminated. He also testified that "I was amazed. I
couldn't believe it. I just looked at him in amazement and
just walked out." Innes testified further that, immediately
after this he asked Berklind what was going on, that Berk-
lind replied he did not know anything about it, and that he
also spoke to Assistant Supervisor Harris but did not recall
what she said.
With regard to both Coady and Innes, Flynn testified
they were selected for termination on the basis of absentee-
ism and productivity. He admitted, however, that, while
v The letter, in evidence as a Joint Exhibit, is signed by Flynn, dated
August 5, stamped "Noted" by Doherty on August 5, and states:
We regret to advise that due to a reduction in work load we find it
necessary to terminate your employment with us effective at the close
of business , Friday, August 9, 1974.
On August 9, 1974, our Treasury Division will forward to you at the
above address a check covering two weeks ' severance pay and any
vacation now standing to your credit.
STONE & WEBSTER ENGINEERING CORPORATION
Innes had a worse record than Coady on absenteeism,
about 4 of the 30 in the section had worse records than
Innes . He testified that some of these worse records may
have been due to long illnesses , but he admitted that Coa-
dy had hepatitis and that he did not know how long Coady
was absent because of this . He explained that the type of
absence was taken into consideration, but admitted no
consideration was given to whether absences were excused
or were on paid or unpaid time , which was not noted on
the records he used. Neither Coady nor Innes received any
written warnings.
Berklind testified that "In the case of both men the ma-
jor point was the absenteeism," and that he spoke to both
about absenteeism , but he admitted he spoke to others
about it also . Berklind also testified that a new employee
was hired on the evening shift shortly before August 2 and
one since the election , not for the jobs Coady or Innes held
but to do work both could perform, but they were not
given a choice of going on the night shift in lieu of termina-
tion. He also testified that the bindery worked overtime in
July and August , and at all times since then.
3. Kelleher's selection
Sutton worked for the Respondent a total of almost 4
years . He began in May 1970 doing general work in the
reproduction department part time at night , quit in Sep-
tember 1970 to go to school, and returned in November
1970 in the same job. He testified that Lee, his supervisor,
said he was glad to have Sutton back . Sutton went on a
full-time basis in September 1971, at his request , as he was
not going back to school , and he continued to work in all
areas of the department . Sutton testified that in August
1973 Lee said Flanagan had chosen him to go in the cam-
era department full-time nights as Sutton had shown an
interest in this work, Flanagan wanted to cut down on the
overtime , and Sutton was the only one who knew how to
operate the machinery there; that he went to the darkroom
from 3 to 5 p.m., and employees there showed him how to
do this work; and that he went on the day shift in the
camera department in April 1974 under Kelleher's supervi-
sion . He admitted that he was not able to handle all assign-
ments in the department as some others were , but main-
tained that he could handle most of them . He also testified
that, while his work was not complimented or criticized, he
received four or five merit increases , the last one in Octo-
ber 1973; and that in December 1973 Lee told him there
was to be a night shift at two locations, and Lee spoke to
Marsden about making Sutton a supervisor , but the Re-
spondent decided Lee would commute between the two
locations.
Sutton received a union petition at the same time Raia
and Coady did, began the next day getting signatures in his
department, and tried to persuade from 5 to 10 employees
in other departments who were unwilling to sign the peti-
tion . He testified that he did this when management was
not around, but his petition at times was in the hands of
other employees . Sutton gave his petition to the Union
when the others did, told employees at the plant about the
meeting in Revere , and attended the meeting on August 1.
He admitted that he talked about the Union on company
915
time, but asserted that his work took him to other areas,
and that he knew of no rule prohibiting employee conver-
sations.
On August 2, Sutton returned from lunch at 12:15 and
went to work. At 12:30 Kelleher told him Flynn wanted to
see him in the office. Sutton testified that Flynn told him
there was a reduction because of loss of contracts, and
Sutton was selected by his supervisor as expendable; that
he asked repeatedly why he was chosen, and was finally
told that Kelleher said he was the poorest worker in the
department; that he disputed this, then asked if there was
a chance of being recalled, and was told "possibly"; and
that he asked for his severance papers and check, but was
told none of this was available at the time but would be
sent in the mail. Sutton testified that he then went to see
Kelleher and asked why Kelleher did this; that Kelleher
said he was sorry but felt Sutton was the most expendable
one in the department; that he argued about it but Kelleh-
er maintained his position; that he finally asked what
Flynn had said, and was told Flynn said he was a poor
worker; that he asked whether he could come back to the
department if rehired, and the reply was Kelleher hoped he
would; and that they shook hands, Sutton said goodbye to
a few employees, and left. Sutton went back to the plant
about 7 p.m. to see Lee, who said he was sorry to hear of
Sutton's termination. Sutton testified that, after his conver-
sation with Lee, he discussed the Union with some employ-
ees, and was in the plant about 45 minutes.
Sutton also testified that two employees Ringold and
Bennett , who were employed a shorter time than he, were
not laid off. And Lee, who at the time of the hearing was in
charge of the bindery at Summer Street, testified that in the
middle of July he hired Geer, who reported to work on
August 5; that both Sutton and Coady were more capable
than Geer; and that he told Marsden at the time Geer was
hired that three employees had given notice they would be
leaving soon.
Sutton testified that there was a slow period of about 4
months, in about late 1972 or early 1973, when employees
spent a good deal of time reading and talking, but no one
was laid off and he was never told he might be laid off.
Raia also testified that sometimes when he came in there
was no work for him to do but work might come in later in
the day, that there were intervals of as much as a month
with little work but there were no layoffs, and that the slow
periods were for only 3 or 4 days at a time in the months
following the terminations. Raia also testified that there
was overtime work since the terminations and that, while
he usually does not work overtime, he did twice in the past
few weeks.
Lee testified that he had known Sutton about 3-1/2
years and was sorry to see Sutton go; that Sutton had
worked for him a long time, did all kinds of work, and was
a good employee; that he had recommended Sutton for
raises, and discussed making Sutton managerial with Mars-
den, and at one time with Flanagan and Flynn as well; that
he had been satisfied with Sutton's work in the camera
department and had asked Aletto, who was then in charge
of printing and camera operations, if there were any com-
plaints about Sutton's work, and was told there were not.
Flynn testified that Sutton was one of about eight em-
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the photographic department under Kelleher, of
whom three had worse absence and two worse tardiness
records than Sutton , and that Sutton was terminated be-
cause he was "the last one in the camera room " and "the
least experienced man in the camera room or the pho-
tographic section . . . who was expected to do all jobs."
Flynn admitted, however, that Sutton's personnel records
showed his last date of hire as November 1970, that Sutton
had worked on the night shift for months before he trans-
ferred at his request on April 15, 1974, to the day shift in
the photographic section , that night-shift people perform
various functions , that Sutton was the only one on the
night shift who worked in the camera room , that there were
no problems with his night-shift work as far as Flynn knew,
that Sutton's records showed no warnings , and that Sutton
was given a raise in October 1973. Flynn also admitted
that , despite Sutton's years of experience , there was no dis-
cussion with Kelleher of transferring Sutton in lieu of ter-
mination . Flynn also testified that he did not know if Sut-
ton was ever considered for a supervisory job, and
Marsden testified that he recommended Sutton for transfer
from one department to another , but not for a supervisory
promotion, although Lee testified he discussed placing Sut-
ton in a managerial position with both Flynn and Mars-
den.
Kelleher, who went on a 2-week vacation the night of
August 2, testified that Flynn told him on August 2 that the
terminations were to be based on absenteeism , tardiness,
and production, but they determined in about 2 minutes
from the attendance records in Marsden's office that all of
his employees had good records on absenteeism and tardi-
ness, so they had to rely on production. Kelleher also testi-
fied that, "upon looking at the records I realized that Mr.
Sutton had only been with me a few months. . . . And he
would have the least amount of experience in the overall
operation of the darkroom. Therefore I based this on my
decision ." Kelleher admitted that Sutton was being trained
on the Brown camera, the most expensive equipment in the
darkroom; that he knew Sutton had worked in the dark-
room under Lee's supervision on the night shift, which
overlapped with the day shift for an hour, but did not re-
call how long Sutton was there or what Lee told him about
Sutton upon Sutton's transfer to his shift ; that he never
gave Sutton any written warnings and did not believe he
gave Sutton any verbal warnings; that he asked his supervi-
sors about a raise for Sutton in about June , but did not
recall whether it was a recommendation ; that the employee
who had the least service was Bennett , who left sometime
after Sutton's termination ; that Bennett and Ringold, as
well as Sutton, were not able to perform all the functions of
this section ; and that Vitale had asked to be transferred
out of the darkroom for health reasons, but he did not
recall whether this was before or after August 2.
IV. CONCLUDING FINDINGS
A. The Terminations
(1) Employees at the Summer Street location began a
union campaign in late July . The Respondent 's witnesses
maintained that they had no knowledge of a union drive
prior to the employee terminations on August 2. They-ad-
mitted, however, that supervisors constantly watched the
work areas , that for a period before August 2 they had
noticed employees talking together more frequently than
had been the practice, and that they asked groups of em-
ployees what they were discussing . While the employees
who were given the union petitions testified that they tried
to obtain signatures when management was not present,
these petitions were for considerable periods in the hands
of other employees. Moreover, this department was a rela-
tively small operation, and much of the organizing talk and
activity occurred in the work areas where supervisors
maintained a close watch. Finally, there is the admission
that an employee informed Aletto on July 31 of the drive
for union members. While the testimony of the
Respondent's witnesses made light of this information as
one of many rumors they constantly heard, they admitted
that Aletto immediately notified Flynn, and Flynn notified
his superiors, of this particular rumor. Moreover, each of
the three supervisors involved in selecting those to be ter-
minated was vague and evasive in his testimony about
whether there was any reference to the Union at the time
of the selections. On the basis of the entire record, I infer
and find that the Respondent, which was admittedly op-
posed to union organization of its reproduction depart-
ment employees, had knowledge, before August 2, of the
union drive at the Summer Street location of the reproduc-
tion department.1°
(2) The evidence shows that the Respondent, immedi-
ately after learning of the union drive in the reproduction
department at Summer Street, terminated eight employees
in that department, all at the Summer Street location. I
find unconvincing the testimony of the Respondent's wit-
nesses, which was vague, inherently inconsistent, and con-
tradictory, of themselves and of each other, that these ter-
minations were required by economic conditions. The
Respondent introduced no original documentary evidence
to show the economic need for these terminations. While it
maintained that the documents could not be placed in evi-
dence because of confidential information contained there-
in, it made no effort to show such documents to other
counsel for possible stipulations as to the material therein
that would be relevant to this issue. Nor does the testimony
adduced by the Respondent as to stop and slow orders
establish the economic necessity for the eight terminations.
The Respondent in this regard presented no evidence as to
new contracts obtained during this period; as to existing
contracts that were unaffected by stop or slow orders; as to
arrangements that were made to resume work on projects
which the Respondent was committed by contract to com-
plete by certain dates; or as to what impact, if any, these
orders had on the specialized operations performed in the
reproduction department. Doherty's testimony, in fact, in-
dicated that the original documents which the Respondent
failed to produce would in any event not have related to
the work of the reproduction department. It is evident,
therefore, and I find, that the Respondent, which has con-
stant peaks and valleys but never before had a reduction in
10 Warren Chateau Hall, Inc, 214 NLRB No. 55 (1974); Gould, Inc, 216
NLRB No. 183 (1975).
STONE & WEBSTER ENGINEERING CORPORATION
force in the reproduction department, has not advanced a
substantial and legitimate businesstjustification for the pre-
cipitate terminations on August 2.A
(3) I find further that the evidence in its entirety, includ-
ing admissions by the Respondent's witnesses, establishes
that the decision to make the terminations on August 2 was
discriminatorily motivated. As found above, the Respon-
dent knew there was a union drive to organize the repro-
duction department employees at Summer Street, and it
admittedly campaigned against the Union as not, in its
view, in the best interests of the Respondent or the employ-
ees. The Respondent did not show why this unprecedented
reduction was necessary although layoffs were never before
made in recurring production "valleys." Furthermore,
there is no explanation for the extreme haste with which
the terminations were made. After a meeting of officials
from about 9 to 10 on Friday morning, Flynn held separate
meetings with three supervisors from about 10 to 11 the
same morning, and then notified individually each termi-
nated employee who was not on vacation that same af-
ternoon. All the terminations were effective immediately
although employees were working at the time they were
notified, and although their termination papers and pay
had not been prepared or even computed at the time."
None of the supervisors knew a reduction was to take
place, and none of the employees were given any warning
of termination. And although the terminations were all at
the Summer Street location of which Marsden was the
manager, and although Marsden would be back from vaca-
tion on Monday, the terminations were made on the Fri-
day before his return.
Further, there is the evidence that during the period here
in issue, the Respondent was advertising for and hiring
new employees before and after the terminations, overtime
work was frequent, and supervisors on occasion performed
urgent production work.13 There is likewise no explanation
by the Respondent of why all the reductions in the repro-
duction department were made at the Summer Street loca-
tion, why they were made in the particular three sections
affected, how the number of terminations in each section
was determined, or why these employees, several of whom
had previously left and been reemployed, had become un-
employable. There is, therefore, on the basis of all the evi-
dence, a clear inference that the reductions were made at
this time and in great haste because of the Respondent's
awareness that a union drive was taking place in this area
of the reproduction department. I so find.14
(4) Furthermore, I find unconvincing, on the evidence
in its entirety, the reasons advanced by the Respondent for
its selection of the eight employees to be terminated. Flynn
and the supervisors who made the selections apparently
relied on absenteeism or tardiness or productivity, which-
ever standard might appear more justifiable as to a. par-
ticular individual. They gave no regard to the reasons for
11 Carbide Tools, Incorporated, 205 NLRB 318 (1973); Newport Division of
Wintex Knitting Mills, Inc., 216 NLRB No. 172 (1975); Forest City Enterpris-
es Inc., 217 NLRB No. 30 (1975).
12 See Gould Inc., supra.
13 Rosen Sanitary Wiping Cloth Co., Inc., 154 NLRB 1185 (1965); Leon
Ferenbach, Inc., 212 NLRB 896 (1974).
14 Gould, Inc., supra.
917
absenteeism, which concededly might have been due to ex-
cused paid sick leave, or to the reasons for tardiness, or to
whether they were explained to other supervisors. They
had no records on production, and gave no consideration
to such factors as the absence of warnings, wage increases
given in unusual numbers or shortly before the termina-
tions, long experience in the work gained on the night shift
when the selection was made by the day-shift supervisor, or
to recommendations other supervisors had made for raises
or promotions. Employees were retained who had been on
the job a shorter time, or who had worse records on absen-
teeism or tardiness, or whose productivity was not shown
to be any greater, actually or potentially, than that of the
employees terminated.15
I have considered all the circumstances relating to the
terminations, including the timing directly after the
Respondent's officials were informed of the union drive;16
the precipitate manner, with no warning or notice or rea-
sonably adequate explanation, in which the terminations
were made, creating shock and bewilderment among super-
visors and employees;l" the requirement that those termi-
nated leave the premises promptly or proceed under super-
visory observation until they left;18 the lack of credible,
documentary, or probative evidence to support the
Respondent's asserted reasons for the reduction in person-
nel and the selections of those to be terminated;19 the small
employee complement in this operation, with advertising
for and hire of new employees and overtime work, before
and after the terminations made allegedly for lack of work;
the failure to consider these employees for transfer to de-
partments or shifts unaffected by the reduction; the posi-
tion of the Respondent that these employees, some of
whom had been employed for years, would not be consid-
ered for reemployment; and the failure to give those termi-
nated any reasonably consistent explanation.
It is apparent, from the record as a whole, and I find,
that the Respondent's assertions that it terminated the em-
ployees here involved for economic reasons are unsupport-
ed by probative or credible evidence,20 that the reasons
advanced for the individual selections were pretextual'21
and that the Respondent terminated these employees pre-
cipitately, directly after learning of the union drive in this
department, and maintained they would not be considered
for reemployment, because it "was plainly determined to
rid itself immediately of the Union element within its work
15 Sharron Motor Lines, Inc., 214 NLRB No. 1 (1974); Warren Chateau
Hall, Inc., supra; Gould, Inc., supra.
16 Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire v.
N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974); Scott Gross Company, Inc., 197
NLRB 420, enfd. 477 F.2d 64 (C.A. 6, 1973).
n N.L.R.B. v. Sutherland Lumber Company, Inc., 452 F.2d 67, 69 (C.A. 7,
1971); Rosen Sanitary Wiping Cloth Co., in, supra.
1s Dobbs Houses, a Division of Squibb Beechnut, Inc., 182 NLRB 675, 679
(1970).
19 The Great Atlantic and Pacific Tea Co., Inc., v. N. L. R. B., 354 F.2d 707
(C.A. 5, 1966), holding that "The Board is not compelled to accept the
employer's statement [of the ground for discharge] when there is reasonable
cause for believing that the ground put forward by the employer was not the
true one, and that the real reason was the employer's dissatisfaction with the
emloyee's union activity."
t Carbide Tools, Incorporated, supra.
31 Santa Rita Mining Company, a Division of Home-Stake Production Com-
pany, 200 NLRB 1070 (1972); Gould, Inc., supra.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force...." 22 In view of the unlawful motivation for the
terminations, I further find that it is immaterial whether
the Respondent had knowledge of the union membership
or activities of each of those terminated, or only a belief or
suspicion, or a general intent to eliminate employees in the
sections where union activity was occurring.23 Accordingly,
I conclude and find that the Respondent terminated Jo-
seph Butler, William Coady, Roland Cunniff, Kendall Vic-
tor Innes, Anil K. Mukerjee, Michael Sutton, Edward Thi-
mas, and Robert Tobin on August 2, 1974, in order to
discourage membership in or activity on behalf of the
Union, and that the Respondent has thereby discriminated
against employees in regard to their hire or tenure of em-
ployment, in violation of Section 8(a)(3) and (1) of the Act.
B. Interference, Restraint, and Coercion
The General Counsel's brief urges that the evidence
shows that the Respondent violated Section 8(a)(1) of the
Act by the following conduct: (1) Lee's conversation with
Sutton on the evening of August 2 in which Lee indicated
knowledge of Coady's petition activity and "gave the im-
pression to Sutton of Lee's surveillance of Coady's union
activities"; (2) Marsden's admitted following of Cunniff
after Cunniff's termination by Flynn on August 5 and
when Cunniff returned to the plant on August 8; (3) sur-
veillance by Marsden and other supervisors of Raia's activ-
ities, including his telephone conversations, for about 3
weeks preceding the election on September 19; and (4) pro-
mulgation and enforcement of a rule prohibiting employee
discussions during working hours adopted during the
union drive in order to discourage union membership and
activities.
(1) Sutton testified that when he returned to the plant on
the evening of August 2, after he had been terminated, he
had a conversation with Lee, in which Berklind later
joined. Sutton testified that in this conversation, in answer
to his questions, Lee said he had heard of Sutton's termina-
tion, he was sorry to hear of it, he did not know what was
going on, he had not been asked to participate in any per-
sonnel reduction, and none of his men had been terminat-
ed. Sutton testified further that "I asked him if he knew
about the Union campaign. And, he said that he knew of
Bill Coady collecting signatures, and he had known for
about a week, I believe"; that other employees were in
hearing distance of this conversation and later "some of
the employees got into the conversation and we started
discussing the Union, the pros and cons"; and that Sutton
was in the plant about 45 minutes.
Lee testified that employees McEachern, Meyers, and
Corey were present during this conversation; that Sutton
"did mention to me something about a letter that he had
assumed that the company had received that morning evi-
dently of some signatures that they had collected with the
22 Waterways Harbor Investment Company, Inc., et al., 179 NLRB 452
(1969).
23 N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602; Majestic Molded
Products, Inc. and Lucky Wish Products, Inc. v. N.L.R.B., 330 F.2d 603 (C.A.
2, 1964); N.L.R.B. v. Clinton Packing Co., Inc., 468 F.2d 953 (C.A. 8, 1972);
Chauffeurs, Teamsters and Helpers, Local 633 v. N.L.R. B., supra; Rosen San-
itary Wiping Cloth Co., Inc., supra; Pak-Mor Manufacturing Company, 214
NLRB No. 46 (1974).
union activity. And I told him that I knew of no such
letter; I had never heard of it"; and that, after Sutton asked
about Coady, "all I stated was that I had seen Mr. Coady
the previous week talking to my men and that I had as-
sumed it was because of the work that we had done the
previous night. I did not know that it was-that it had
anything to do with union activity." Lee also testified that
he did not know or suspect there was union activity prior
to August 2; that he watched employees at this time no
more than he normally would in the course of supervising
them; and that he has never told his employees they could
not gather together and talk on company time. Berklind
corroborated Lee's testimony as to what was said about
Coady. None of the other employees present at this conver-
sation was called as a witness.
This was a lengthy conversation, with various partici-
pants, in which Sutton raised the question about Lee's
knowledge of union activity. None of the witnesses who
testified about this conversation, Sutton, Lee, or Berklind,
appeared to be fabricating what he testified was said. In
my opinion, the variances in their testimony resulted from
misunderstanding and confused recollection, not from giv-
ing deliberately false testimony. I find, on the basis of all
the relevant evidence, that the General Counsel has failed
to establish that the Respondent, by this conduct of Lee,
admitted knowledge of Coady's petition activity or gave
the impression to Sutton of Lee's surveillance of Coady's
union activities, in violation of Section 8(a)(1) of the Act. I
shall therefore recommend dismissal of this allegation of
the complaint.
(2) Cunniff testified that Marsden followed him around
after he was terminated by Flynn on August 5, and again
when he returned on August 8 to clean out his locker,
which he had been too "astonished" to do when he was
terminated. Marsden admitted he followed Cunniff, but
maintained, as did Doherty also, that it was company poli-
cy to do so when an employee is terminated in the repro-
duction department because of the danger that an ag-
grieved employee might damage costly and delicate
equipment. This policy, however, has never been reduced
to writing or announced to plant personnel. The record
shows that other terminated employees, during this period
and on other occasions, were not followed. Marsden testi-
fied that he followed Cunniff because he was filling in for
Aletto who on August 5 was on vacation, but there is no
evidence that Aletto followed those in his section who were
terminated on August 2. Marsden also testified that follow-
ing terminated employees was a longstanding practice, but
he could not recall how many employees he had followed;
and said there had been a few, but could recall the name of
only one, Cunniff.
I am convinced, from the foregoing and the record as a
whole, that Marsden followed Cunniff in the plant on Au-
gust 5, and again on August 8, not to protect company
equipment or in accord with established company policy,
but to prevent Cunniff from talking to employees about the
Union. Accordingly, I conclude and find, in all the rele-
vant circumstances, that the Respondent was seeking by
this conduct to interfere with the exercise by its employees
of their rights under Section 7 of the Act, and thereby vio-
lated Section 8(a)(1) of the Act.
STONE & WEBSTER ENGINEERING CORPORATION
(3) Raia testified credibly that, for about 3 weeks pre-
ceding the election, various supervisors maintained surveil-
lance over his activities in the plant , including attempts to
overhear his conversations on the pay telephone. The
Respondent's witnesses disputed that they did so, and
maintained , further, that Raia's telephone conversations
could not have been overheard because of the physical lo-
cation of the telephone with relation to Aletto's office and
to a number of presses whose operation created consider-
able noise . Raia's testimony is undisputed , however, that in
one such instance he said to Genaris, a supervisor, that he
did not like the idea of supervisors trying to overhear his
conversations , to which Genaris replied, "Well, we don't
want you guys calling the other building trying to solicit
votes for the Union." The Respondent had by this time
received the union letter naming the three employee organ-
izers of whom Raia was the only one still employed.
The Respondent 's supervisors as a general practice spent
much of their time in or near the work areas so they could
observe what employees were doing, particularly during
the preelection period when, they admitted, they noticed
more congregating and conversing among the employees
than usual . Marsden testified that certain individuals were
frequently present in these groups , that Raia was there in
"most of the cases," and that he had occasion to greet Raia
practically every day during this period.
I find, on the basis of Raia's credited testimony, unrefut-
ed as to his conversation with Genaris, and on the totality
of the evidence , that supervisors maintained a close watch
over employees, particularly Raia, for weeks preceding the
election; that employee conduct previously permitted was
forbidden; that this was not work-related but in order to
discourage any conversation or other activity on behalf of
the Union; and that the Respondent thereby interfered
with , restrained , and coerced its employees in violation of
Section 8(a)(1) of the Act.
(4) Raia also testified credibly that employees had been
permitted to carry on conversations at their work or when
they were caught up in their work, but that this practice
was discontinued during the preelection period regarding
conversations with him . Aletto admitted that he had direct-
ed employees to stop talking to Raia and return to their
own machine or work area . Marsden admitted that he ob-
served groups of employees , particularly Raia, conversing
more frequently in the weeks preceding the election, and
that he told these groups, or directed a supervisor to tell
them, that unless their conversation was work-related they
were to return to work.
Marsden also testified that at management meetings
about the union campaign , the supervisors were instructed
that employees could discuss union matters during lunch-
time and also that , while "there 's generality here that cof-
fee breaks are company time ," they could do so "in an
orderly fashion" during coffeebreaks, but that they were
not permitted to discuss the Union at work.
Aletto testified that on or about August 20 , after his re-
turn from vacation , Doherty instructed him and several
other supervisors that "if people there wanted a union they
were entitled to it and that supervisors , in general,
shouldn't interfere , that they could discuss union matters
before work, after work, during the lunch time, they could
919
use the cafeteria, but during working hours they were sup-
posed to be working." And while Marsden testified that
two employees working side by side could not talk to each
other as this could be dangerous for press operators, Aletto
testified that he had no objections to employees conversing
while operating their machines provided only that they
kept an eye on what was coming out of the machines.
I find, on the record as a whole, that the Respondent,
which previously permitted employees to talk together in
the work areas and while working, prohibited such conver-
sation about the Union during working hours in the pre-
election period in order to discourage union membership
and activities, and that this constituted promulgation and
enforcement of a rule for a discriminatory purpose, in vio-
lation of Section 8(a)(1) of the Act.
IV. THE ELECTION ISSUES
The Union filed a petition for an election in Case
1-RC-13427 on August 2, 1974. Pursuant to a stipulation
for certification upon consent election executed on August
19 and approved on August 20, an election was held on
September 19 in a stipulated unit of all the reproduction
department employees at nine locations in Boston. The tal-
ly of ballots showed, of 165 eligible voters, 68 cast ballots
for and 79 against the Union, and 13 ballots were chal-
lenged, 9 by the Board agent and 4 by the Union, which
were sufficient in number to affect the results of the elec-
tion. The Union on September 24 filed timely objections to
conduct affecting the results of the election. On September
30, the Regional Director, following an investigation, con-
solidated the representation and complaint cases , and or-
dered a hearing to be held in the consolidated proceeding
to resolve the challenges and the objections.
A. The Challenged Ballots
The Regional Director recommended that the Board
agent's challenge to the ballot of Childs and the Union's
challenges to the ballots of Campana, Clune, Jones, and
Morreale be overruled, and that the Board agent's chal-
lenges to eight other ballots be considered in this proceed-
ing. These eight challenged ballots were cast by the eight
employees found hereinabove to have been discriminatori-
ly terminated. Accordingly, I shall direct that the ballots of
Childs, Campana, Clime, Jones, and Morreale, and of But-
ler, Coady, Cunniff, Innes , Mukerjee, Sutton, Thimas, and
Tobin, shall be opened and counted.
B. The Objections
As the Union's objections to the election raised issues
identical with those in the complaint case, the Union's rep-
resentatives stated at the hearing that they would present
no evidence with regard to the objections. The issues raised
by the Union's objections that were consolidated with the
complaint case issues therefore involve conduct considered
in the complaint case that occurred in the critical period
from August 2, when the petition for an election was filed,
to September 19, when the election was held.
I have found above that the Respondent engaged in vari-
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ous unfair labor practices during this period which includ-
ed the discriminatory discharge of eight employees on Au-
gust 2 ; Marsden 's conduct on August 8 in following Cun-
niff about the plant in order to prevent any conversation
with employees about the Union ; maintaining surveillance,
for about 3 weeks preceding the election , over the activity
of Raia , the only one of the three original union organizers
still employed by the Respondent; and, about late August
or early September, promulgating and enforcing , for a dis-
criminatory purpose, a rule prohibiting employee conversa-
tions about the Union during working hours while permit-
ting conversations about other matters . I find that such
conduct, occurring during the critical preelection period,
created an atmosphere which precluded a fair election and
effectively denied the employees their statutory right to ex-
ercise a free choice in the election , and constitutes substan-
tial interference with the election 24
Accordingly, I shall recommend that the 13 ballots that
were challenged be opened and counted, and that the Re-
gional Director thereafter prepare and cause to be served
on the parties a revised tally of ballots , including therein
the count of the said 13 ballots; that, if the Union receives
a majority of the valid ballots cast, according to the revised
tally, the Regional Director shall certify it as the exclusive
bargaining representative of the employees in the appropri-
ate unit; and that, if the Union does not receive a majority,
the election conducted in Case 1-RC-13427 on September
19, 1974, shall be set aside and a new election held when
the Regional Director deems that the circumstances permit
a free choice of bargaining representative25
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations described in section I, above, have a close, inti-
mate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VII. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, I find that it is necessary that the Re-
spondent be ordered to cease and desist from the unfair
labor practices found and from in any other manner in-
fringing upon its employees ' Section 7 rights ,26 and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have found that the Respondent, on or about Au-
gust 2, 1974, terminated Butler, Coady, Cunniff, Innes,
Mukerjee, Sutton, Thimas, and Tobin, and thereafter failed
and refused to reinstate them , in order to discourage mem-
10 Forbes Pavilion Nursing Home, Inc., 198 NLRB 802 (1972).
u Gary Aircraft Corporation, 193 NLRB 108 (1971).
2s N. L. R. B. v. Express Publishing Company, 312 U.S. 426, 437, N L R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
bership in and activities on behalf of the Union, in viola-
tion of Section 8(a)(3) and (1) of the Act, the Respondent
will be ordered to offer to each of these employees rein-
statement to his former job, or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and to make
each of these terminated employees whole for any loss of
pay suffered as a result of discrimination against him, with
backpay computed on a quarterly basis , plus interest at 6
percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Stone & Webster Engineering Cor-
poration, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Boston Local No. 300 and Boston Local No. 16-B,
Graphic Arts International Union, AFL-CIO, are jointly a
labor organization within the meaning of Section 2(5) of
the Act:
3. By following employees in the plant to prevent em-
ployee conversations about the Union, by maintaining sur-
veillance of the conversations and activities of employee
union organizers, by promulgating and enforcing a rule
prohibiting conversations about the Union during working
hours for the purpose of discouraging union membership
and activities, and by other conduct interfering with, re-
straining, and coercing its employees in the exercise of
their Section 7 rights, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By terminating Butler, Coady, Cunniff, Innes, Muker-
jee, Sutton, Thimas, and Tobin, on or about August 2,
1974, in order to discourage membership in and activities
on behalf of the Union, the Respondent has discriminated
against employees in regard to their hire or tenure of em-
ployment, and has thereby engaged in unfair labor practic-
es within the meaning of 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 Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER27
The Respondent, Stone & Webster Engineering Corpo-
ration , Boston, Massachusetts , its officers, agents , succes-
sors , and assigns, shall:
1. Cease and desist from:
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
STONE & WEBSTER ENGINEERING CORPORATION
(a) Following employees in the plant to prevent employ-
ee conversations about the Union, maintaining surveil-
lance of the conversations and activities of the employee
organizers of the Union, promulgating and enforcing a rule
prohibiting conversations about the Union during working
hours for the purpose of discouraging union membership
and activities , or in any other manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
(b) Terminating or otherwise discriminating against any
employees in regard to their hire or tenure of employment
in order to discourage membership in or activities on be-
half of Boston Local No. 300 and Boston Local No. 16-B,
Graphic Arts International Union, AFL-CIO, or any other
labor organization.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Butler , Coady, Cunniff, Innes , Mukerjee, Sut-
ton, Thimas, and Tobin, immediate and full reinstatement
to their former jobs, or, if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges.
(b) Make Butler, Coady, Cunniff, Innes, Mukerjee, Sut-
ton, Thimas, and Tobin whole for any loss of pay each of
them may have suffered as a result of the Respondent's
discrimination against him , in the manner set forth in the
section of this Decison entitled "The Remedy."
921
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records neces-
sary to analyze the amounts of backpay due under the
terms of this recommended Order.
(d) Post at its reproduction department locations in Bos-
ton, Massachusetts, copies of the attached notice marked
"Appendix." 28 Copies of the notice, on forms provided by
the Regional Director for Region 1, after being duly signed
by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith. -
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations not specifically found
herein.
28 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."