The Accurate Tool Co.

National Labor Relations Board - Board Decisions

Jul 27, 1943

51 N.L.R.B. 753 (N.L.R.B. 1943)

In the Matter of WALTER WALKER, DOING BUSINESS AS THE ACCURATE
TOOL COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT . AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-2624.-Decided July 27, 1943
DECISION
AND
ORDER
On May 22, 1943, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist from the unfair labor prac-
tices found and take certain affirmative action as set out in the copy
of the Intermediate Report attached hereto. Thereafter the respond-
ent filed exceptions to the Intermediate Report, and a supporting
brief. Oral argument was held before the Board in Washington,
D. C., on July 15, 1943. The Board has considered the rulings of the
Trial Examiner at the hearing and finds that no prejudicial errors
were committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the respondent's brief and excep-
tions, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, with
the additions noted below.
1. The respondent contends that since Victor LaTorre spent a large
part of his time on union affairs on June 16, 1942, his testimony that
he requested permission of the respondent Walker to take the day off
because he was ill is unworthy of belief and hence no credence should
be given to any of LaTorre's testimony. However, there is undis-
putd testimony, in addition to that of LaTorre's, that LaTorre did in
fact visit a doctor on June 16 and was advised to stay away from work.
Moreover, the respondent Walker admitted that, upon his request,
LaTorre submitted a doctor's certificate which indicated that LaTorre
had been treated on June 16. Walker also testified at one point that
LaTorre had complained of being ill and had stated that he wished to
see a doctor. Upon the basis of the entire record, we, like the Trial
Examiner, credit the testimony of LaTorre. In any event, while it
51 N. L. R. B., No. 122.
753
754 DFYO'ISIONS OF NATIONAL LABOR REILATIONS BOARD
may be that LaTorre took advantage of his day off to advance the
Union's cause, it is clear, particularly in view of the, respondent's in-
consistent defenses and expressed antipathy to the Union,-that^he-was
not discharged for that reason. Like the Trial Examiner, we find that
LaTorre was discharged because of his union membership and activ-
ity in violation of the Act.
2. The respondent contends that Joseph Sorrentino's insistence
that he had been naturalized on March 22, 1943, in the face of proof
introduced by the respondent to show that he had merely filed an
application for naturalization on that day, warrants discrediting-Sor-
rentino's entire testimony. We do not agree. The record does not
establish that Sorrentino deliberately misrepresented his citizenship
status at the hearing. His testimony with respect thereto was posi-
tive and indicated a bona fide, although mistaken, belief that the pro-
cedure he went through on March 22 was sufficient to effect his naturali-
zation. His testimony with respect to said procedure was not refuted.
Upon the basis of the entire record, we, like the Trial Examiner, are
of the opinion that Sorrentino is a credible witness.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Walter Walker, doing busi-
ness as The Accurate Tool Company, his officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, affiliated with the Congress of Industrial Organizations, or any
other labor organization of his employees, by discharging or refusing
to reinstate any of his employees, or by discriminating in any other
manner in regard to their hire orb tenure of employment or any term
or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Victor LaTorre, Joseph Sorrentino, and Angelo Fiord-
aliso immediate and full reinstatement to their former or substantially
THE ACCURATE TOOL COMPANY • 755
equivalent employment, without prejudice to their seniority or other
rights and privileges;
(b) Make whole Victor LaTorre, Joseph Sorrentino, and Angelo
Fiordaliso for any loss of pay they may have suffered by reason of
the respondent's discrimination against them, by payment to each of
them of a sum of money equal to the amount which each normally
would have earned as wages from the date of his discharge to the
date of the respondent's offer of reinstatement, less his net earnings
during the period ;
(c) Post immediately in conspicuous places throughout his plant
in Newark, New Jersey, and maintain for a period at least sixty (60)
consecutive days from the date of posting, notices to his employees
stating : (1) that the respondent will not engage in the conduct from
which he has been ordered to cease-and desist in paragraphs 1 (a)
and (b) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 (a) .and (b) of this Order; and
(3) that his employees are free to become or remain members of In-
ternational Union, United Automobile,' Aircraft and Agricultural
Implement Workers of America, affiliated with the Congress of In-
dustrial Organizations, and that the respondent will not discriminate
against any employee because of membership or activities in that
organization;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of the receipt of this Order, what
steps the respondent has taken to comply herewith.
CHAIRMAN MiLLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr David H. Werther and Mr. Daniel Baker, for the Board.
Lindabury, Steelman, Zink & Lafferty, by Mr. James L. R. Lafferty, of Newark,
N. J, for the respondent.
Mr. Samuel L. Rothbard, of Newark, N. J., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly 'filed on March 19, 1943, by International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, affiliated with the Congress of Industrial Organizations, herein called
the Union, the National Labor Relations Board,' herein called the Board, by
its Regional Director for the Second Region (New York, New York), issued
its complaint dated April 8, 1943, and upon a second amended charge duly
filed on April 14, 1943, by the Union, issued "Amendments to Complaint" on
April 19, 1943, against Walter Walker, doing business as The Accurate Tool
Company, herein called the respondent. The complaint as amended alleged
that the respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
540612-44-vol. 51-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint and amendments to the complaint, accompanied by notice of hearing
were duly served upon the respondent and the Union.
With respect to the unfair, labor practices, the complaint ag amended alleged
in substance that the respondent: (1) on June' 18, 1942, discharged Victor
LaTorre ; on April 3, 1943, discharged Joseph Sorrentino ; and on April 6,
1943, discharged Angelo Fiordaliso, and has since refused to reinstate said
employees because of their activities on behalf of the Union; (2) from June 8,
1942, to date, vilified the Union, interrogated his employees concerning their
union affiliations, persuaded and threatened his employees to refrain from
joining or assisting the Union, and kept under surveillance the meeting places,
meetings, and activities of the Union.
The respondent's answer, filed April 27, 1943, denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held at Newark, New Jersey, on April 29,
30, May 4, and May 5, 1943, before Will Maslow, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respondent
and the Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At the close
of the hearing, the attorneys for the Board 'and' for the respondent moved to
conform their respective pleadings to the evidence adduced for the purpose of
eliminating unsubstantial variations. These motions were granted. All parties
waived oral argument before the undersigned and on May 11, 1943, the respondent
submitted a brief to the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT'
Walter Walker, doing business as The Accurate Tool Company, began to do
business on November 26, 1941, in Newark, New Jersey, where he operates his
only office and manufacturing plant. The respondent is engaged in the manu-
facture of tools for war purposes. During the year ending April 27, 1943, he
purchased approximately $25,000 worth of raw materials, of which more than
50 percent by value was shipped to his plant in New Jersey from points outside
that State. During the same period, the respondent sold more than $25,000 '
worth of tools, of 'which more than 50 percent by value was shipped from his
plant in New Jersey to points outside that State. The respondent conceded at
the hearing that he was engaged in commerce within the meaning of the Act.
In July 1942 the respondent employed about 50 persons and at the time of the
hearing about 100.
II THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, affiliated with the Congress of Industrial Organiza-
tions, is a labor organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Victor LaTorre
Early in June 1942, employee Victor LaTorre visited the Union's offices in
Harrison, New Jersey, where he was given a stack of membership application
I The findings in this section are based upon a stipulation of the parties.
THE ACCURATE TOOL COMPANY 757
cards. The next day LaTorre gave employee Edward Grant some of these cards
and requested his help in organizing the respondent's employees. That week
LaTorre and Grant arranged little gatherings of employees after work in a candy
store near the respondent's plant and succeeding in inducing about 20 to 25
employees to sign the union cards. LaTorre was then 19 years old.
This activity soon came to the attention of Walter Walker, the respondent.
Joseph Gardner, who was formerly employed by the respondent to do his en-
gineering and estimating work, testified, and the undersigned finds, that Walker
in June 1942 told him that he knew the "ringleaders" in the Union activity and
that LaTorre and Grant were "starting it up there." 2
Edward Grant testified, and the undersigned finds, that around the second
week in June 1942 Charles Hummel, then the plant foreman and now the plant
production manager, approached an employee in the shop and stated that if he
had anything to do with the Union he would find himself "out" and that he
did not want any union talk during working hours.'
On Saturday, June 13, 1942, Hummel, while driving Grant home in the
former's car, discussed unionism with him Grant testified, and the under-
signed finds, that Hummel told him that if he did not keep his nose out of
"this union stuff" he would find himself "out."'
On June 15 Grant was discharged.' The next morning, June 16, a group of
the employees in the shop stopped work to protest Grant's discharge. LaTorre
testified that on learning the reason for the stoppage lie left the plant at about
8:30 a. in., telephoned the Union office, and was instructed to direct the em-
ployees to resume work. He testified further that upon his return to the plant
he asked the men to return to work, promising to see Walker about Grant as
soon as the former arrived. The men thereupon resumed work.'
LaTorre then began to work at his machine when Hummel approached him
and remarked : "I wouldn't stick my nose out if I were you." LaTorre asked
what he meant, and was told, "You know what." Around 9: 15 or 9: 30 a. in.
LaTorre met Walker and asked why Grant had been discharged. Walker re-
plied that it was none of his business. LaTorre then asked Walker for the
day off to see his doctor, claiming to be sick, and thereupon left the plant.' ,
LaTorre testified that he called on his doctor that morning and was advised
to stay home.' Instead, however, he visited the Union's offices in Harrison on,
Grant's behalf and then during the lunch period he returned to the plant. As
2 Walker testified he had only once discussed the Union with Gardner, stating on that
occasion that "the boys want the CIO in the shop " He did not, however, specifically deny
the remarks attributed to him by Gardner. The respondent's brief admits that Grant and
LaTorre were "active in efforts toward organization."
i Grant described but could not name this employee. Hummel did not mention thg
incident in his testimony
+ Hummel did not mention or deny this incident while on the witness stand
s A charge filed by the Union accusing the respondent of the illegal discharge of Grant
was subsequently withdrawn at Grant's request. The respondent contended at the hearing
that Grant was discharged for inefficiency, horseplay, and because of a remark addressed
to a woman employee.
6 LaTorre failed to punch his timecard in leaving the plant to telephone the Union ;
he did, however, "punch out" when he left work that day. The undersigned credits'
LaTorre's testimony related above.
7 The findings in this paragraph are based on LaTorre 's testimony . Hummel testified
that after LaTorre spoke with the striking employees some went back to work. He did
not mention the remark; attributed to him by LaTorre. Walker admitted at first that
LaTorre had complained of being ill and that he had stated he wished to see a doctor, but
then abruptly changed his testimony and testified that he recalled no conversation about a
doctor He admitted, however, refusing to discuss Giant's discharge with LaTorre.
S LaTorre's testimony was corroborated by the doctor who treated him.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he and a group of employees were talking, outside the plant, William Beckers,
brother-in-law of Hummel and tool crib attendant, approached, LaTorrere-
marked: "Watch out, the stooge is listening." a
Beckers asked whether the remark was intended to identify him and, receiving
an evasive reply, offered to "knock" LaTorre's head off if he repeated the
remark. Grant then joined in the argument. Hummel, however, came out
'and ordered Beckers to return to the shop Just then the bell rang for the
end of the lunch period and all the men returned to their machines. No blows
were struck during the incident."
The next morning, June 17, 1942, when LaTorre reported for work, he was
told to see Walker, who asked where he had been the day before. LaTorre
replied that he had been at the doctor's Walker telephoned the doctor, but
hot being able to reach him, told LaTorre to return the next day with a doctor's
certificate. On June 18, LaTorre gave Walker a doctor's certificate which recited
that he had been treated on June 16 Walker did not even glance at the cer-
tificate, but told LaTorre he was discharged "for starting a riot and walking
out of the shop ""
At the hearing, Walker testified he had discharged LaTorre because of "his
trying to create a disturbance outside the shop" and LaTorre's "incompetency."
He testified he told LaTorre that he "was fed up with, all the disturbances which
we were having around the shop." Walker also testified that he had received
complaints that LaTorre had threatened to "get rid of" employees who would
not join the Union12 He admitted, however, that he himself had placed the
following notation on LaTorre's employed record : "Discharged June 18, 1942.
See time card, also incident with Beckers." Walker testified that the entry
"See time card" referred to LaTorre's walking out of the plant on June 16
without permission.
Hummel, however, in a written statement dated January 5, 1943, which he
made to a Field Examiner of the Board, wrote that LaTorre "was fired for
walking out (to make the phone call) without permission." [parentheses' in
original], that that was "the only reason" for the discharge, and that "the dis-
charge took effect immediately.'
Beckers, who participated in the argument with LaTorre, was not disciplined
or punished in any way, nor were any of the striking employees who stood idle
at their machines on June 16, 1942, for an hour or so. They in fact were Daid
by the respondent for this lost time.
B. The events from July 1, 1942, to April 2, 1948
On July 1, 1942, the respondent's office manager purchased and began using a
new type of personnel form, entitled "Industrial History Record," which con-
tained various blanks for information about an employee's background, includ-
ing a blank entitled "Labor Union." All of the persons then employed were in-
terviewed by the respondent's office staff, who filled out the cards. New em-
0 Beckers testified that he had fold Hummel that LaTorre was distributing application
blanks for the Union.
10 Beckers ' account of the incident is similar to LaTorre's
"The findings as to the conversations on June 17 and June 18 are based on LaTorre's
testimony . Walker admitted calling the doctor in LaTorre's presence, asking LaTorre for
a doctor' s certificate , and finally discharging LaTorre without even looking at the doctor's
certificate. He explained that he attached no importance to the certificate because LaTorre
had boasted he could get ten certificates. LaTorre denied any such boast and the under-
signed credits his denial.
n The respondent offered no evidence in support of the accusation of incompetency and
no further details about LaTorre's alleged threats to his fellow employees.
0
THE ACCURATE TOOL COMPANY 759
ployees hired thereafter were called to the office about a week or two after
they had begun work and were interviewed by the office staff, so that their
industrial history record might be filled out.
At the hearing it was stipulated that in a group of 26 industrial history,
record cards subpoenaed by the attorney for the Board for other purposes, most
of the cards contained the entry "No" or "None" after the question "Labor
Union," that one card listed the name of an A. F. of L. union, and another the
name of a C. I. O. union with an indication of resignation. All of the cards
contained a question entitled "Religion," but this question was not answered on
any of the 26 cards..
Employee Frank Michelini testified, and the undersigned finds, that, when he
was questioned by Alex Latsky, an office employee, he answered that he had
not been a member of a labor union. Latsky was skeptical, commenting on the
'fact that Michelini had previously worked for the National Can Company, which
was a "union company." Michelini then explained that he was not required
to join the union there, because he was only an apprentice. This interview
took place in January 1943, one week after Michelini was hired.13
On July 3, 1942, pursuant to an agreement between the respondent and the
Union, a consent election under the auspices of the Board's regional officers was
held. The Union received 32 out of 39 valid votes cast in the election. Shortly
thereafter the respondent and the Union began to negotiate a contract.'
Gardner testified, and the undersigned finds, that, shortly before the election,
he overheard Walker talking over the telephone to an unknown person and
heard Walker state that he was in trouble as far as the Union was concerned,
but felt that he "could get around that and beat" the Union.'
About a month after the election, Hummel approached employee Samuel
Farina and advised him ,not to bother with the fellows behind the Union and
that by doing so he would get along well with him.16
Shortly thereafter Beckers and a group of the employees prepared a round-
robin petition which read : "We, the undersigned employees of the Accurate Tool
Company, are well satisfied with the conditions under which we are now work-
ing and do not wish any interference with this system by any outside persons.
We are of the opinion that we can adjust satisfactorily any problems that may
arise from time to time directly with our own management." The petition,
which was signed by 32 employees, was presented to Walker on September 2,
1942. Beckers testified that the purpose of the petition was to keep "outside
unions" out of the shop.11
In October or November, 1942, Farina asked Hummel for a wage increase. He
testified, and the undersigned finds, that he was told by Hummel that. if he
minded his own business "and work [ed ] along with him, probably he could get
it for me." 1R
1s Latsky testified that in interviewing employees he asked no questions about religion
because he did not "think it was right."
14 It was stipulated at the hearing that the respondent had not discriminated against
the shop committeemen who had participated in the collective bargaining negotiations.
15 Walker did not mention this telephone conversation in his testimony
16 This finding is based on Farina's testimony. Hummel did not mention or deny the
incident in his testimony
14 Beckers was then a tool crib attendant with no employees under him. He was engaged
in the distribution of tools, in the receipt of raw materials, and the shipment of finished
products -Whenever he needed help in these duties he would be assigned one or two
helpers for a short period by Huminel. This occurred about,twice a week. It was gent
erally known among the employees that Beckers was Hummel's brother'in- law. The under-
signed finds, however, that Beckers was not then a supervisory employee or a representative
of management.
11 Hummel did not mention this incident in his testimony.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In November 1942, Farina was eating his lunch during working hours. His
foreman Eugene Boehm approached and told him to stop In the course of the
conversation; ^Bohhm reinarli°ed'that Farina had been to a union meeting 2 or 3
days before and that he "was not in accord with the management by doing so." 1B
On December 5, 1942, during his lunch period, employee John Cisco was given
,a Union card to sign by one'of his fellow employees. He asked for some time to
think it over. In the course of the conversation another card was then placed on
the table, which Cisco appeared ready to sign, when Walker approached from his
office, picked up the card, and walked away without saying a word. Fifteen
minutes later Cisco was transferred to filing of metal in another room in the
plant. Walker never returned the Union card.
Cisco, who was sickly, had been hired to do light work. The filing work
required him to keep his arms moving all day. He finished work that day, became
Ill, and remained away a few days. On his return, he did filing work for 2 hours`
and then asked for and obtained a transfer to lighter work.
In January 1943, employee Sam de Martino asked Walker for a wage increase.
In the course of the conversation Walker asked whether de Martino had heard
anything about the Union lately. When de Martino replied that he had not,
Walker asked, "Does that mean it is all washed up?" and then said, 'I haven't
heard anything ever since,we had that meeting with the referee.'' The'conversa-
tion ended with Walker's remark-' "Well, when this is all over with,' you boys
will probably thank me and think much better of me." 20
On April 1, 1943, the Union conducted a meeting among the respondent's em-
ployees at its headquarters in Harrison. Leaflets announcing this meeting were
distributed in front of the plant the night before, Walker, himself, coming out of
the plant for the purpose of receiving a copy from the organizer distributing
them.21 Just before the meeting opened, a group of employees in front of the
Union headquarters saw Walker drive past in his car. It was then about 7 p. m.
and drizzling. Employee Joseph Sorrentino testified and the undersigned finds
that Walker smiled at him as he passed: 2 There were large Union signs in front
of the Union office.
Walker testified that he was driving Osborne home and that he had taken that
route that night, as on several ,occasions before,' to avoid traffic 'congestion,
although it was not the most direct course He also knew that the Union office
was on this route. Walker and Osborne testified the car was traveling at normal
`traffic speed, from 25, to 30 miles an-, hour, and that the car did riot slow down as
it passed the Union headquarters. Sorrentino, however, fixed the speed of
Walker's car at from 5 to 8 miles an hour, and employee Samuel Farina and
39 Boehm admitted that an employee named Doermueller would-often discuss the'Union
with him and had told him who were its most active members. Boehm also testified that
he was "against the Union." Boehm was at that time, according to Walker,_ foi eman_ of
the "tool makers and production workers" with authority to issue orders to such persons
and to recommend their discharge or conversely wage increases for them. The undersigned
finds that Boehm at that time was a supervisory employee.
20 The findings as to the above conversation are based upon de Martino 's testimony.
Walker did not mention the incident in his testimony. On September 17, 1942, the
respondent and the Union had submitted their dispute about the terms of a collective
bargaining contract to the National War Labor Board. 'A hearing before a referee of
that Board was held on October 9, 1942. The referee's report was issued on November 10,
1942, and the directive order of the National War Labor Board on April 28, 1943.
21 Boehm testified that he had discussed the scheduled meeting on April 1 with Hummel
on March , 31, and had asked him "whether be knew anything about that "
22 Osborne , who was in Walker 's car , testified that he noticed Sorrentino and called
Walker 's attention to him as the car passed the Union headquarters . Walker, however,
testified that he had not recognized anyone except an employee named Bilaqua.
I
THE ACCURATE TOOL COMPANY 761
employee Angelo Fiordaliso, who were also present, described the speed of the
car as "very slow."
C. The discharge of Joseph Sorrentino
Joseph Sorrentino was hired on January 17, 1942 He testified that he was
hired as a plater, but started on other work because the plating tanks were not
ready at the time. Sometime before March 5, 1943, he failed to report for work
one morning. Alex Latsky, a former office employee of the respondent, testified,
and the undersigned finds, that he telephoned Sorrentino, asked why he, was
absent, and was told : "You better find out if t" y have enough work for me to
do. I don't want to hang around that shop. I am getting tired hanging around
there, and if they haven't got enough work for me to do I won't come in." Hum-
mel was then called to the telephone and promised Sorrentino enough work.
Sorrentino then reported for duty. Hummel laughed about the incident, saying
he had never before heard of anyone who complained of insufficient work w
On April 1, 1943, Sorrentino attended the Union meeting, joined the Union,
and was elected shop steward. He testified, and the undersigned finds, that
on Saturday, April 3, at 11: 30 a. in., Walker told him he would have to be
released, because he "had a letter from Washington" saying that Sorrentino
was an alien. Sorrentino protested, claiming that he had told Hummel that
he was an alien when first hired and that in any event he had become a citizen
on March 22, 1943. Walker also stated that when the twelve o'clock bell rang
Sorrentino was to get'his wages and. walk, out quickly without talking to any-
one. Sorrentino then repeated his protest to Hummel who replied : "There is
nothing I can do. If you had behaved yourself, maybe I could talk for
you...."
At noon, Sorrentino received his wages and then asked Walker for a release.
Sorrentino testified, and the undersigned finds, that Walker asked: "How can
I give you a release? What will I put in it?" and then told Sorrentino to return
later that afternoon. That afternoon Sorrentino came back and was told by
Walker that he had been discharged because he had been in the toilet a half
hour that morning.
Walker testified that he had discharged Sorrentino after he had received "re-
ports on his loafing." He was then shown Sorrentino's personnel card, which
listed as, the reason for his discharge, "Loafing, 25 minutes in toilet," and was
asked to explain certain erasures on, the card. Walker- stated he did not know
what had been erased or why.
John F. Hays, the respondent's personnel manager, was then shown the card.
He testified that he made the erasures using an ink eradicator and could not
recall what had been erased other than it was a reason for Sorrentino's discharge.
He stated : "I don't recall what was on the first reason. I think I got it out of
the air somehow myself." Hayes was then shown, by the attorney for the
Board, a report of the Technical Research Laboratory of the New York City Police
Department which, by ultra-violet ray examination, had uncovered the material
erased. Hayes then confirmed the police report that the first reason erased was:
"Dept. of Justice Inquiry see corresp. confidential" and that the word "citizenship"
had also been eradicated.
His memory now refreshed, Hayes testified that he had placed the-first reason
for Sorrentino's discharge on the card on his "own, responsibility" and had re-
ceived the information from a letter which he had seen on Walker's desk. He
u Hummel did not mention the incident in his testimony . Sorrentino was paid on an
hourly basis, as were all the other employees.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted, however, that he had not read the body of the letter, but, had drawn
the "inference" merely because the letter was from the Department of Justice
and related to Sorrentino's citizenship.
Hayes contended that Hummel had notified him in the morning of April 3
that Sorrentino was to be discharged, but could not recall whether Hummel had
told him why Sorrentino was to be discharged. Finally, he testified that when
Walker saw Sorrentino's card on April 3, he instructed him to change the
"reason" for discharge.'
Foreman Boehm testified that, being, dissatisfied with Sorrentino's loafing, he
timed a visit Sorrentino had made to the toilet on the morning of April 3 and
reported to Hummel that Sorrentino had been in the toilet, for 25 minutes.
Hummel, according to Boehm, instructed him to continue watching Sorrentino.
Neither Boehm nor Hummel spoke to Sorrentino about this incident nor had
Sorrentino ever been reprimanded or warned before about loafing in the toilet or
elsewhere. Boehm 'also admitted that he had caught other employees loafing in
the toilet, had timed at least three of them, and had given warnings to em-
ployees Hagel, Sadowski and others. Only one, of them had been discharged,
Hagel, who had been warned several times by Boehm.
Sorrentino denied that he had been in the toilet on April,3 longer than 8
minutes, or that he had been loafing there. The undersigned credits. his denial.
D. The discharge of Angelo Fiordaliso
Angelo Fiordaliso was hired in September 1942. In February 1943, he became
a shop committeeman for the Union, directing the work of three Union assist-
ants in the plant. At the meeting of April 1, 1943, he was elected vice president
of Local 122 of the Union, the highest office held by any of the respondent's
employees. He was on the street in front of the Union's office when Walker
passed by in his car. The next day at 3: 30 p. in., Fiordaliso was, told that
beginning Sunday, April 4, 1943, he would have to work on the night shift.
Fiordaliso complained to Hummel, who explained that Walker had received
instructions "from Washington to break in women on all jobs." On Saturday,
April 3, Walker told Fiordaliso that he was not discriminating against him, but
that he had received instructions from the War Department "to rush the, work
out" and had "to break women in on all these jobs."
Fiordaliso did not report for duty on the night shift on Sunday. On Monday
morning, he reported for duty, but was told that there would be no work for him
except on the night shift. Two weeks later at his request he was given a
release.
Fiordaliso had been promoted around the beginning of March 1943 from bench
lathe work to work on an engine lathe. Hearing that engine lathe work might
entail night work, he had told Hummel that his wife had been ill for 3 years, that
he had quit a previous job to avoid night work, and that if his promotion might
require him to work nights, he would rather remain at work on the bench lathe.
Hummel promised that he would remain on the day shift "so long as nobody on
the night shift kicked about going back on days."'
24 Walker testified that, upon receipt of the letter about Sorrentino from the Depart-
ment -of Justice on April 3, he discussed the matter with his attorney who advised him
that his war contracts did not require him to discharge enemy aliens: Sorrentino waskborn
in Italy. The letter was apparently a routine request for information about Sorrentino.
xa According to Hummel, he promised that "for the time being" he would not assign
Fiordaliso to the night shift. _ - •
d
THE ACCURATE TOOL COMPANY 763
At the time of Fiordaliso's transfer, there were nine other men operating
engine lathes on the day shift. Hummel testified that he had told his brother-
in-law, Martin Wagner, who was doing the same type of work as Fiordaliso,
that he might have to put him on the night shift. Wagner told Hummel that
he would quit first, because he would have to make three different bus con-
nections at night to, get to the plant. Wagner was kept on day work. Hummel
then transferred Fiordaliso. Employees on the night shift received a 10
percent bonus for such work.
Hummel admitted that he had not questioned any of the other nine engine
lathe men about their willingness to go on the night shift before he had
assigned Fiordaliso. Asked why he had selected Fiordaliso for the transfer,
Hummel testified that he wanted to "break in" a woman on that work, that he
could not break in a woman on the other engine lathe, and that Fiordaliso was
the least skillful of the ten engine lathe operators Hummel admitted, however,
that at the time of the hearing, one month after Fiordaliso's discharge, he
had three women working on the engine lathes, two of the engine lathe men
being transferred to the night shift, one on April 18, the other on April 27,
1943. These women were broken in in three to four hours, the men they
replaced being assigned to the night shift. The men they replaced were more
skilled than Fiordaliso.
Charles Sadowski, who worked as an assistant toolmaker, had refused an
assignment to*the night shift and had not been discharged. Asked to explain
the difference in treatment, Hummel stated-that Fiordaliso could be replaced
while Sadowski could not. Walker testified, however, that no action was
taken against Sadowski, because the watter was to be inducted shortly into the
armed forces.
At the time of the discharge of Fiordaliso, the respondent had been attempt-
ing in every way to increase the size of the force and had maintained help
wanted advertisements in the newspapers continuously.
E. The second petition
Later in April 1943, Beckers and Doermueller and some other employees pre-
pared a second anti-Union petition which recited that the undersigned "wish to
form our own labor-management organization" because the respondent's pro-
duction of tools "is being substantially hindered by the continued interference
of outside influences and persons not connected in any way with this com-
pany" Julius Bodnar, one of the men who helped prepare and who signed
the petition, is a set-up man. According to Walker, Bodnar is one of two set-up
men "sometimes referred to as foremen," who "supervises and watches closely
over the work" of from 20 to 38 girls and makes recommendations with respect
to the ability and efficiency of these girls to Hummel, the. plant produc-
tion manager. The girls look to Bodnar for instructions. Bodnar is paid
$1.20 an hour, while the girls under him receive 60 cents an hour. The
undersigned finds that Bodnar is a supervisory employee.
In April 1948, because of the expansion of the respondent's business, Beck-
ers had two full-time assistants . In addition, beginning in March 1943, two
to four employees would be assigned every other day to assist him on special
jobs. The tool crib release which each employee who was leaving was required
to submit to the paymaster before he was paid was signed by Beckers over a
line entitled "tool crib foreman." This form was used for the first time in
1943. Beckers testified , however, and the undersigned finds, that the 'title
was an error and that he was not a foreman or supervisory employee.
764 DEOISIONS OF NATIONAL LABOR RELATIONS BOARD
Late in April 1943 , employee Frank Michelini asked his foreman, Boehm, for a
wage increase , whereupon , according to the former , the following conversation took
place : -
Boehm : Why don't you want to sign our union?
Michelini : I don't sign nothing. I don't know what good this union is, and
I don't know what benefits I am going to have.
Boehm : You sign Sam's union without knowing what benefit you were
going to have.
h
Michelini testified further that by "Sam's union " was meant the union of Samuel
Farina, or the CIO . Michelini had joined the Union on April 1, 1943.
Boehm had been one of the employees who prepared the first anti -Union peti-
tion, at a time when he was not a foreman , but denied the remarks attributed to
him by Michelini . The undersigned found Michelini to be a credible witness and
accepts his testimony , rejecting Boehm 's denial , and 'further finds that Boehm
was attempting to induce Michelini to sign the second petition.
F. Concluding flndings
1. The discharge of LaTorre
That the reasons given by the • respondent for LaTorre 's discharge are, mere
ptetexts is manifest from their inconsistency and the circumstances surrounding
his discharge . LaTorre had not tried to create a disturbance outside the shop,
as Walker charged . The entire incident was a trivial one, and in any event,
Beckers, who was at least equally guilty with LaTorre , was not disciplined in any
way. Hummel , himself, in his signed statement to a Board agent did not even
mention the alleged disturbance as a ground for the discharge of LaTorre.
The other alleged reason , walking out of the plant without permission , deserves
the same skepticism . According to Hummel , the act occurred when LaTorre left
1 he plant during the stoppage in order to telephone . Walker 's testimony , however,
indicates that he discharged LaTorre for leaving work on June 16, 1942, after
the stoppage , there being otherwise no explanation of his Insistence upon a doctor's
certificate . Yet when LaTorre presented the certificate , Walker admittedly paid
no attention to it. Since, as has been found , LaTorre did notify Walker on June
16, 1942, that he was ill and wished to leave and Walker made no objection,
LaTorre was not guilty of improperly absenting himself. In any event, LaTorre's
conduct during the stoppage was designed to allay his fellow employees' unrest
and to 'end a strike which- was ' interfering, with war production . = While, the
strikers , who stopped work on their own initiative , were not docked for the time
lost, LaTorre, who acted to get them back to work , was discharged.
In view of the respondent 's admitted knowledge of LaTorre 's Union activity,
and Walker's admitted antipathy towards such union activity , 'the undersigned
does not credit the respondent 's alleged reasons for his discharge and finds that
he was discharged because of his Union activity and,in violation of the Act.
2. The discharge of Sorrentino '
The clear-cut and credible testimony of Sorrentino indicates that, casting about
for an excuse to discharge Sorrentino , the respondent hit upon his alleged lack
of citizenship and so-endorsed his employment record .. When further deliberation
indicated that this might not prove to be a valid ground for discharge , Walker
caused the employment record to be changed and a new reason inserted. The
conduct of Walker and Hayes on the witness stand , in professing ignorance of
the reason for the erasures until confronted with the police report, is not such
THE ACCURATE 'TOOL COMPANY 765
as to lend credibility to other portions of their testimony. The undersigned
credits Soirentino's denial that he was guilty of loafing on April 3, 1943, but even
if he had been, he normally would have been let off with a reprimand or a warning.
This is indicated by Hummel's remark to Boehm to continue watching Sorrentino;
which would not have been necessary if the incident in and by itself was deemed -
sufficient to warrant his discharge Finally, it hardly seems likely that Sorrentino.
find been guilty of loafing in the past, in view of the fact that he had never been
warner about or reprimanded for such an offense, and his announced refusal in
the past to remain idle in the plant.
In view of the respondent's knowledge of Sorrentino's Union activity, the
suspicious circumstances surrounding the erasures on Sorrentino's employment
record, the proximity of the discharge to the discovery of his Union attendance,
and the discriminatory punishment for the alleged loafing, the undersigned finds
that Sorrentino was discharged because of his Union activity and in violation
of the Act.
3. The discharge of Fiordaliso
Fiordaliso's refusal to accept a transfer to the night shift was not an arbitrary
or capricious one. He had notified Hummel of his wife's illness and his inability
to work on the night shift and Hummel had promised him day work as long as
no one on the night shift complained. Yet one month later, Hummel and Walker
insisted on transferring • Fiordaliso to the night shift, although -there, was no
evidence that any employee on the night shift was seeking a transfer back to the
day shift. The respondent insisted upon selecting Fiordaliso for the transfer,
despite his known objections, admittedly without even determining whether any-
of his fellow engine lathe operators were willing to accept such a transfer. The
respondent's contention that new women employees could be broken in only on
Fiordaliso's work is disproved by the fact that at the time of the hearing, only one
month after Fiordaliso's transfer, three women had, in a few hours, been taught
engine lathe work, relieving two skilled engine lathe operators for the night shift.
In view of the respondent's long-continued efforts to hire any person "with
mechanical inclinations," and his willingness to allow other employees, such as
Sadowski and Wagner, to refuse a transfer to the night shift, the undersigned
finds that Fiordaliso was singled out for discriminatory treatment because of his
Union activity and office. It is a fair inference that the respondent knew of
such activity in view of Fiordaliso's presence in front of the- Union quarters
on April 1, 1943, when Walker's car passed by, and in view of the reports Walker's
supervisors were receiving from Beckers and Doermueller. The undersigned
accordingly finds that Fiordaliso was compelled tp, resign and hence- was -dis-
charged, not because of his refusal to accept a transfer to the night shift, but
because of his Union activity and in violation of the Act.
4. The alleged surveillance of April 1, 1943
Although Walker's conduct on April 1, 1943, in selecting a route which, would
lead him past the Union office is suspicious, and although it seems probable that
he and Sorrentino could not have exchanged smiles unless his car was traveling
very slowly (considering the fact that it was around 7 p. in. on a drizzling evening
in April), the undersigned finds that there is insufficient evidence to hold that
Walker deliberately chose a route, or deliberately slowed down, in order to observe
who was attending the Union meeting. -
5.. The anti-union petitions
The undersigned finds that the respondent is not chargeable with responsibility
for the first petition prepared by Beckers in August 1942, because Beckers was not
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then either a supervisory employee or one whom the employees might reasonably
have regarded as a representative of management. The second petition, however,
leas prlepared and-signed-by Julius Bodnar, a foreman who supervised the work of
20 girls and for whose anti-union activities the respondent is responsible. This
conclusion is fortified by the efforts of Foreman Boehm to induce Michelini to
sign the petition.
6. The industrial history record forms
Despite the fact that the questions about union affiliation were asked of em-
ployees after they had been hired, and the fact that the questions themselves were
based upon the use of a printed form which the respondent did not himself devise
but purchased, the undersigned finds that, by such questioning, employees were
put on notice that the respondent regarded the information as material and hence
such questioning interfered with, restrained, and coerced the employees in the
exercise of the rights guaranteed in the Act.26
7. Miscellaneous acts of interference
The undersigned finds that by Huminel's remarks to Grant in June 1942; by his
threats to the unidentified employee overheard by Grant in June 1942; by Hum-
mel's remarks to LaTorre on June 16, 1942; by the questioning of employees about
their union affiliations in filling out the personnel records ; by Hummel's remarks
to, Farina in August 1942, and in October or November 1942; by Boehm's remarks
t9 Farina in November 1942; by Walker's removal of the Union card in Cisco's
possession and by Cisco's transfer to filing work on December 5,1942; by Walker's
questioning of de Martino in January 1943; and by the circulation of the second
petition in April 1943, the respondent interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the.several States and tend to lead to labor disputes burdening and,
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair laboi prac-
tices, it will be recommended that he cease and desist therefrom and take affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the respondent discharged Victor LaTorre on June 18,^
1942, Joseph Sorrentino on April 3, 1943, and Angelo Fiordaliso on April 5, 1943,
and thereafter refused to reinstate them because they joined or assisted the,
Union. It will therefore be recommended that the respondent offer them imme-
diate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges. It will also
be recommended that the respondent make whole Victor LaTorre, Joseph Sorren-
tino, and Angelo Fiordaliso, for any loss they may have suffered by reason of their
unlawful discharge, by payment to each of a sum of money equal to the amount
2 Matter of Adolph Spalek and William J. Zrenchick , co-partners, etc., 45 N. L. R. B.
1272; Matter of Dannen Grain & Milling Co., etc., 30 N. L R. B 888, 894, 896 , modified
in other respects in Dannen Grain and MillingOCo. v. N. L. R. B., 130 F. (2d) 321
(C'. C. A.,'8).
THE ACCURATE TOOL COMPANY, 767 f
which he would normally have earned as wages from the'date of his discharge
tc the date of the respondent's offer of reinstatement, less his net earnings n
during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 International Union, United Automobile, Aircraft and Agricultural Imple-
ment Woikern of America, affiliated with the Congress of Industrial Organiza-
tions, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment of Victor LaTorre, Joseph Sorrentino, and Angelo
Fiordaliso, thereby discouraging membership in the Union and thereby discourag-
ing concerted activities for mutual aid and protection, the respondent has engaged
in and is engaging in untair labor practices within the meaning of Section 8
(3) of the Act
3. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in surveillance of the meetings, meeting
places, or activities of the Union.
RECOMMENDATIONS
Upon the basis of tha above findings of fact and conclusions of law, the under-
signed recommends that the respondent, his agents, successors , and assigns , shall :
1. Cease and desist from:
(a) Discouraging membership in International onion, United Automobile, Air-
craft and Agricultural Implement Workers of America, affiliated with the Congress
of Industrial Organizations, or any other labor organization of his employees, by
in any manner discriminating in regard to the hire or tenure or any term or condi-
tion of emplopnient of his employees ;
(b) In any other manner interfering with, restraining , or coercing his em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Victor LaTorre, Joseph Sorrentino, and Angelo Fiordaliso, immedi-
ate and full reinstatement to their former or substantially equivalent employ-
ment, without prejudice to their seniority or other rights and privileges;
=By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the subsequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal, State, county , municipal , or other work -relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
768 DiEc,ISIONS OF NATIONAL LABOR REiLATIONS BOARD
(b) Make whole Victor LaTorre, Joseph Sorrentino , and Angelo Fiordaliso, for
any loss of pay,they may have, suffered by reason of the respondent 's discrimina-
tion in regard to their hire and tenure of employment , by payment to each of a
sum of money equal to that which he normally would have earned as wages from
the date of his discharge to the date of the respondent 's offer of reinstatement,
less his net earnings 2' during said period ;
(c) Post immediately in conspicuous places throughout his plant in Newark,
New Jersey , and maintain for a period of at least sixty ( 60) consecutive-days
from the date of posting , notices to his employees stating: ( 1) that the re-
spondent will not engage in the conduct from which it has been recommended
that he cease and desist in paragraph 1 (a) and ( b) of these recommendations;
,(2) that the respondent will take the affirmative action set forth in paragraph
2 (a) and ( b) of these recommendations ; and (3 ) that his employees are free
to become or remain members of International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, affiliated with the Con-
gress of Industrial Organizations , and that the respondent will not discriminate
against any employee because of membership or activities in that organization ;
(d) Notify the Regional Director for the Second Region in writing within ten
;(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith. -
It is further recommended that the allegations of the complaint that the
respondent has engaged in surveillance of the meetings , meeting places, or
activities of the Union be dismissed.
. It is further recommended that unless on or before ten ( 10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that he will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid. _
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Boat, Series 2, as amended , effective October 28, 1942-
any party may within fifteen (15) days from the entry of the order transferring
the,case to the Board , pursuant to Section 32 of Article II of said Rules and
Regulations , file with the Board , Shoreham Building , Washington , D. C., an
original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections ) as it relies upon, together
withAhe original and four cppies of a brief in support thereof . As further pro-
vided in said Section 33, should any party desire permission to argue orally before
the Board , request therefor must be made in writing to the Board within ten (10)
days from the date of the order transferring the case to the Board.
WILL MASLOW,
Trial Examiner.
Dated May 22, 1943.
23 See footnote 27, supra.