The Howe Scale Co.

National Labor Relations Board - Board Decisions

Mar 6, 1943

47 N.L.R.B. 1399 (N.L.R.B. 1943)

In the Matter of THE HOWE SCALE COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS (A. F. L.)
Case No. C44134.-Decided March, 6, 19.43
Jurisdiction : scale manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; reprimanding em-
ployees for distributing union cards ; threatening to stop overtime pay ; inquiring
as to identity of union leaders ; revoking discharge of employee after promise
to cease union activities; requiring employees to retrieve from union secretary
the application cards signed by employees.
Company-Dominated Union: formation of, at instigation of employer ; circulation
of petition in plant ; permitting employees to sign applications for membership
in "inside" union and resignations from legitimate union in plant during work-
lug hours; permitting "inside" union to raffle war bond on company time and
property.
Discrimination: discharge of two employees for union membership and activity.
Remedial Orders : dominated organization disestablished; reinstatement and
back pay awarded'.
DECISION
AND
ORDER
On November 27, 1942, the Trial Examiner filed his Intermediate
Report in this proceeding, finding that the respondent had engaged in
and was engaging in certain unfair labor practices affecting commerce,
and recommending that the respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the
Act, as set forth in the copy of the Intermediate Report annexed hereto.
Thereafter the respondent and the Intervenor filed exceptions to the
Intermediate Report, and all parties argued orally before the Board.
During the hearing the Trial Examiner ruled upon various motions
and upon objections to the admission of evidence. The Board has -
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed, except
as noted below.
The Board has considered the Intermediate Report, the exceptions,
and the entire record, and hereby adopts the findings, conclusions, and
recommendations made by the Trial Examiner in his Intermediate
Report, with the following exception :
47 N. L. R. B., No. 178
1399
1400 DFaCISTONS OF NATIONAL LABOR RELATIONS BOARD
During the examination of witness James D'Aniello, it appeared
that he had given a signed statement k o the Board's attorney prior to
the hearing . The request of counsel for the Independent that the
statement be produced at the hearing was refused by the attorney for
the Board ; and the Trial Examiner ruled that the statement need not
be produced . Since, upon a consideration of D'Aniello 's testimony,
we do not credit it and make no findings based thereon, we need not
determine whether the Trial Examiner ruled correctly.
ORDER
Upon the basis of the above findings of fact, conclusions of law, and
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 , The Hove Scale Company , Rutland,
Vermont , its officers , agents; successors , and assigns shall :
1. -Cease and desist from:
(a) Dominating or interfering - with the administration of' the
Independent Scale Workers of Rutland or with the formation or ad-
ministration of any other labor organization and from , contributing
support to said labor organization or to any other labor organization;
(b) Discouraging membership in International Association of Ma-
chinists ,, affiliated with the American Federation of Labor, or any other
labor organization of its employees , by discharging and refusing to
reinstate any of its employees , or in any other manner discriminating
in regard to their hire and tenure of employment, or any term or con-
dition of employment;
(c) In any other manner interfering with, restraining , or coercing
its 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
activity 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) Refrain from recognizing and completely disestablish Inde-
pendent Scale Workers of Rutland as -the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances , labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment;
(b) ' Offer to Charles Mead and Harrison N. Sheldon, Jr., immediate
and full reinstatement to their former or substantially equivalent po-
sitions without -prejudice ' to their seniority or other rights or'
privileges;
THE HOWE SCALE COMPANY 1401
(c) Make whole Charles Mead and Harrison N. Sheldon, Jr., for-
any loss of pay each may have suffered by reason of the respondent's
discrimination against him, by paying to him a sum of money equal
to that which he-normally would have earned as wages during the
period from the date of the respondent's discrimination against him
to the date of the respondent's offer of reinstatement, less his net earn-
ings during said period ;
(d) Post immediately in conspicuous places throughout its Rut-
land, Vermont, plant and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices stating: (1) that
the respondent will not engage in the conduct from which it has been
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; (2) that the respondent will take the affirmative action 'set
forth in paragraphs 2 (a). (b), and (c) of this Order; and (3) that
the respondent's employees are free to become or remain members of
International Association of Machinists, affiliated with the American
Federation of Labor, and that the respondent will not discriminate
against any employee because of membership in or activity on behalf
of that organization;
(e) Notify the Regional Director for the First Region in writing-
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Samuel G. Zack and Mr. Robert R Greene, for the Board.
Mr. J. R. Rogerson, of Jamestown , N. Y.,,for the respondent.
Stafford, Abattell & Stafford, by Mr. James S. Abatiell , of Rutland, Vt., for the
Independent.
Mr. Fred H. Coonley, of Rutland, Vt., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 8, 1942, by International Asso-
ciation of Machinists, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the First Region (Boston, Massachusetts), issued its
complaint, dated October 10, 1942, against The Howe Scale Company, herein called
the respondent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of Section 8
(1),, (°), and (3) and Section 2 (G) and (7) of the National Labor Relations
Act, 49 Stat 449, herein called the Act. Copies of the complaint, together with
notice of hearing thereon, were duly served upon the respondent, the Union, and
the Independent Scale Workers of Rutland, herein called the Independent. -
With respect to the unfair labor practices, the complaint alleged: (1) that
beginning about June 25, 1942, the respondent interfered with, restrained, and
coerced its employees in various ways, including questioning them, as to their
membership in the Union and the number of members in the Union ; making
derogatory remarks about the Union and its organizers ; requesting employees
=1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to resign from the Union ; threatening discharge if employees joined or did not
cease activities on behalf of the Union ; threatening to employ women to replace
men and to go on a 40-hour work week, thereby depriving employees of overtime
if the activities of the Union persisted; asking employees to talk with fellow
employees against the Union; informing employees that they did not need help
from the outside but could represent themselves ; and demanding that certain
employees get back from the Union all applications for membership signed by
employees of the respondent; (2) that the respondent discharged Charles Mead
on July 3, 1942, and Harrison N. Sheldon, Jr., on July 29, 1942, and has since
refused to reinstate them because each engaged in concerted activities; (3) that
beginning about July or August 1942, the respondent by various acts, dominated
and interfered with the formation and administration of the Independent; and
(4) that by such acts and conduct the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On October 15, 1942, the respondent filed its answer which denied all of
the allegations of the complaint concerning unfair labor practices.
Pursuant to notice, a hearing was held at Rutland, Vermont, on October
26 to October 31, 1942, before the undersigned, Earl S. Bellman, the Trial
Examiner duly designated by the Acting Chief Trial, Examiner. On the first
day •of• the hearing the Independent was permitted to intervene, the interven-
tion being limited to the allegations concerning it contained in paragraph
5 of the complaint. The Board, the respondent, and the Independent were rep-
resented by counsel and the Union by a representative. All participated in
the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was afforded all
parties. At the close of the hearing, a motion was granted without objection
conforming the pleadings to the proof as to technical matters. Ruling was
reserved on motions by the respondent and the Independent to dismiss allega-
tions of the complaint I Both motions are hereby denied. Oral argument
was held before the undersigned. The parties were afforded, but waived, oppor-
tunity to file briefs with the undersigned.
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
The respondent, The Howe Scale Company, is a Vermont corporation, having
its principal office and place of business in Rutland, Vermont, where it employs
about 450 persons and is engaged- in the manufacture, sale, and distribution
of scales, weightographs, and industrial trucks. The respondent maintains
branch sales offices in 15 cities throughout the United States located in 11
States other than the State of Vermont. The repondent's finished products,
which are valued at approximately $2,000,000 annually, are sold throughout
the United States, more than 90 percent being shipped to destinations outside
the State of Vermont. In the manufacture of its finished products the, re-
spondent uses pig iron, brass, steel, lumber, and other raw materials. The
value of the raw materials used annually is approximately $250,000; about
40 percent of these materials are received from points outside the State of
1 The respondent 's motion covered all of the allegations of unfair labor practices and the
Independent 's motion those contained in paragraph 5. -
THE HOWE SCALE COMPANY 1403
Vermont. The respondent admits that it is engaged in commerce within
,the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Association of Machinists is a labor organization affiliated with
the American Federation of Labor. It admits to membership employees of the
respondent.2
Independent Scale Workers of Rutland is an unaffiliated labor organiza-
Aion. It admits to membership the employees of the respondent only.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events; interference, restraint, and coercion
About June 10, 1942, two employees of the respondent, Raymond Hannon and
,Charles Barrett, called upon William Hamilton, financial secretary of the Union's
local covering the employees of the Rutland Railroad, and secured application
blanks for membership in the American Federation of Labor, herein called the
A. F. L.3 Hannon and Barrett held the blanks until the night of June 24, when
they gave some of them to two other employees, Fred Reardon and Agenor Tardiff.
On June 25 and 26, the above four employees, Hannon, Barrett, Reardon, and
'Tardiff, initiated distribution of applications among the respondent's employees
,and secured signatures thereto. Some of their activity took place in the respond-
ent's machine room during working hours, cards being handed out and returned
without interrupting production' It had been customary for employees to sell
various kinds of tickets and to solicit for various causes in the plant during
working hours without objection to such activity on the part of the respondent.
-There had been no rule against such solicitation, and there were no printed rules
governing the plant.
During the, above solicitation, Hannon went to Perley Spafford at his machine
in the machine shop and asked him if he wanted to sign a card. Spafford said
that he would think it over and let Hannon know the next day. The following day,
Spafford came to Hannon and said that Superintendent Raymond Carroll had been
down to his house the night before "raising hell with him for starting the Union"
-and that he did not want to have anything to do with the Union.'
On the evening of June 26 the respondent's paymaster, Savage, who worked
in the main office and made out the checks, called upon Barrett at his home.°
2 On August 4, 1942, a formal organizational meeting was held at which the employees of
the respondent organized Green Mountain Lodge, later chartered as Lodge No. 1590.
3 One side of the blanks contained an application for membership In the A F . L. and the
other side an authorization of the A. F. L. and all affiliated organizations as collective
bargaining agents.
4 Harold Malmgren, who was foreman of the respondent's machine shop at the time of
the above events, testified that it had never come to his attention that employees under his
supervision had engaged in union activities in the plant during June or July 1942 or had
been leaving their work unduly. Malmgren testified more specifically that it had never
come to his attention that Hannon, Barrett, or Sheldon, all of whom worked under his
supervision , were absenting themselves unduly from their work.
5It is not clear whether the Spafford referred to above was Perley Spafford, Sr., or Jr.
Both father and son were machinists. One or the other was elected August 9 as a
representative of the machine shop to the Board of Governors of the Independent, shortly
after that organization was formed . Neither of the Spaffords testified, nor did
Superintendent Carroll
° Savage is Barrett 's brother-in-law. He was in the armed forces of the United States at
the'time of the hearing.
1404 DECISIONS OF NATIONAL `LABOR RELATIONS -BOARD
The call was of some 15 or 20 minutes duration and while the men conversed Mrs_
Barrett took Mrs. Savage into an adjoining room During their conversation,
Savage informed Barrett that he had" heard rumors to the effect that there was
union activity in the machine shop and that Barrett and Hannon were at the
"head of it." Savage told Barrett that he hated to see him "getting mixed up in
it because he knew) there had been trouble there before"' The Savages left
immediately after the above conversation.
On the morning of June 27, Foreman Malmgren sent Hannon, who had been,
employed for some 20 years by the respondent, to Superintendent Carroll's office
Carroll reprimanded Hannon for distributing cards in the machine shop and:
informed him that the men had no right under the "Wagner Labor Law" to do so
and that they were "liable to_ prosecution." Carroll also said that since he had'
only recently become Superintendent that it looked as if the men were starting
the Union to undermine his standing with the company ; that the Union would
hurt relationships with the company ; that unions were no good and caused trouble
and that there was not any need of a union because "the men could deal personally-
with Carroll on any differences they might have. Carroll also told Hannon that
the time which he had been turning in would not stand inspection and that if he
did not agree to stop distribution of applications Carroll could take action ; that
the men were getting a lot of overtime and making good money and would not
make any more under a union ; and that if Carroll wanted to he could stop over-
time and give them just straight time. During the course of the conversation,
which lasted about an hour, Carroll told Hannon to stop his activities in behalf
of the Union and asked him if he would drop the matter. Hannon said that he
would.
About June 29, Malmgren told Hannon, Barrett, and Tardiff to stay at their-
machines. Such instructions had never been issued before, no explanation was-
made by Malmgren when he issued the instructions.
On June 29, Foy, foreman of the heavy scale sealing i oom, told Charles Mead,
an inspector who first went to work for the respondent in 1393 and -whose em-
ployment since 1900 had been continuous, that he understood that the 'C. I. O.
was going to organize the plant. Mead, who had signed an A. F L applications
on June 26, told Foreman Foy that he did not know anything about it, but that he
had heard rumors that the C I. O. was trying to organize at other plants in the
vicinity. About the time of the above conversation, Harry Johnson, the head of
the maintenance department, had a discussion with Mead about unions during
which Mead told Johnson that it was his understanding that a union was being
organized and that he thought a union would be a good thing for both the men
and the company. Johnson made brief reference to a talk which he had had
with the respondent's president, Riehl, 4 or 5 years before, when an attempt was
being made to organize a union, indicating that he had told Riehl then that a
union in the plant might be a good thing. Johnson then said, with reference toa
the attempt then being made by the Union to organize, that he did not know how
strong the Union was or how many were signing up with the Union. Mead,
thinking that Johnson was trying to get information from him, said that he did
not know himself. I
On the morning of July 2, George Ball, foreman of the department which cleans
the castings, met Mead in the plant and told him that he understood the A. F. L.
was organizing in the shop; that he had at one time belonged to the A. F. L.
but that both the C. I. O. and the A. F. L had become nothing but "a racket for
4 There had been an unsuccessful attempt to organize some of the respondent 's employees
a few years previously.
THE HOWE SCALE COMPANY 1405
a few men" and that he had no use for either of the organizations. Ball then
stated that he understood that Mead was to be the president of the new union;
Mead made no reply. It was after the foregoing conversation that Mead's
discharge on July 2 took place
About Monday,' July 6, following the Fourth of July week-end, Malmgren sent
Tardiff to Superintendent Carroll's office, where Carroll told Tardiff that he was
discharged because Carroll had proof that Tardiff had passed out union cards in
the plant. Tardiff protested his discharge and'asked, in view of his family
obligations and his good recommendations from other plants, that the respond-
ent not give him a bad recommendation because of his union activities. Carroll
said that under the conditions he could not make such a promise, and asked who
the union leaders were. When Tardiff failed to reply, Carroll mentioned Hannon
and Barrett. Tardiff said that Carroll had evidently been told who the leaders
were Carroll inquired if any outside organizers were involved and Tardiff
said that he had no knowledge of it. Carroll asked how far the organization
had gone and Tardiff replied that he did ' not actually know but had heard estimates
that from 25 to 45 cards had been signed. Carroll indicated that he thought
the number was approximately 45.
During their discussion Carroll stated that it seemed that someone wanted to
take a "sock" at him by starting the Union. Tardiff replied that he believed the
men only wanted to protect their own interests and pointed out that conditions
in the washroom should be improved. Carroll said that the janitor was supposed
to take care of that and asked Tardiff if he had not been treated well, if he was
not making good money, and what he was going to do "when the. brook goes
dry " Carroll handed Tardiff a production sheet and said that he believed the
union activities had slowed down production and asked if the men were laying
down on him. Tardiff replied that he did not think the men were but that it was
the operation of more than one machine by some men which kept the plant below
maximum production. Tardiff pointed out that there had never been any com-
plaint about the quality, quantity, or promptness of his work. Carroll agreed
Also during their discussion Carroll inquired as to how the activities of the
Union could be slowed down and stated that he had "no objection to the boys get-
ting together and having a little union of their own." Tardiff asked Carroll if
he thought that he could discuss the matter with the other men without opening
himself to prosecution for interference with union activities. Carroll said that
he thought that Tardiff could.. Tardiff stated that lie would speak with the men e
At the end of the interview, Tardiff inquired as to what his employment status
was and Carroll said, "Now that I know where you stand, you go back to work and
I will see you in the morning."
The following day and almost every day for some 10 days thereafter, Carroll
saw Tardiff at his machine and inquired how things were going. Tardiff at first
said that he had not had time to find out and later that he had been unable to find
out what the activities of the Union were but thought that they had been
discontinued s
On the morning of July 8, Barrett was sent to Carroll's office by Warren Clark,
the assistant foreman in the machine shop. Carroll informed Barrett that he
knew what was going on around the machine shop and asked what part Barrett
B,Tardiff did thereafter discuss the matter with Hannon and Sheldon.
"The above findings concerning Carroll's conversations with Tardiff and all other findings
throughout this report concerning conversations involving Superintendent Carroll are based
upon uncontradicted testimony of the various persons involved, which testimony the under=
signed believes Carroll was not called as a witness and no explanation was made of the
respondent 's failure to call him.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had taken in it. Barrett admitted he had signed an authorization card but did
not give the name of the man from whom be had received it when Carroll inquired
as to who had given it to him. When asked who the ringleader was, Barrett
denied knowing . Carroll asked if he considered Hannon the ringleader . Barrett,
said he did riot believe it could be "pinned on any one particular man" because
the 'activity had sprung tip as the result of the men's desire to have a union.'
Carroll wanted to know if the ringleader was someone inside the plant or some-
one from the outside; Barrett stated that he did not know that either. Carroll
again asked who had given Barrett his card ; Barrett told him that Hannon had.,
During his conversation with Barrett, Carroll insisted that the attempt to.
organize the Union was for the purpose of giving him a "black eye" because he
had only recently been appointed superintendent. Barrett insisted that there was
nothing whatsoever personal in the attempt to organize the Union. Carroll stated
that Barrett had been in violation of law in passing out cards during working
hours in the shop; but Barrett insisted that lie had not violated any law in so
doing. Carroll stated that if the men went ahead with the Union the respondent
could put them "on 40 hours and put on three shifts and bringwonien in to do the
work" and could do a number of things of that type.
Carroll asked Barrett if he had passed out any cards personally and Barrett
admitted having passed out one, mentioning the man's name . Carroll told Barrett
it would be a good idea for him to get his own card back and also the card which
he had secured from the other employee . Barrett agreed to make an . attempt
to do so. _
On July 9 , Malmgren again sent Hannon to Carroll's office , Carroll said that
he had hoped to"stop the activity without calling Vice-president Albert N. Lyons 10
in on it, but-that he did not see how he could, so he was having Lyons come over
to talk with Hannon. When Lyons arrived , he asked Hannon what the employees-
hoped to gain by organizing and questioned whether the men wanted "some out-
sider in here telling them what to do ." Lyons also said there was no union and
no law which could force the respondent to work more than 40 hours a week and
that Hannon had violated the "Wagner Labor Law" by circulating the cards on
company time and property and could be brought into court . Hannon *asked
what objection there was to a union and was told that things were going along
all right and that a union would only cause trouble.
During the conference , which lasted about 2 hours, Hannon pointed out that
Reardon " had been sent home and had not been recalled to work . Hannon was
told that Reardon had not been discharged but that there simply was no work for
him and that he could come back to work . Hannon said that he felt responsible
for the fact that Reardon had lost a week or 10 days. Carro l l said that if Hannon
went to see Reardon and told him to return to work that Reardon's time for that
period would be made good. Lyons asked if Charles Mead, who had been dis-
charged on July 2, "had been kicking up any fuss." Hannon said that he under-
stood that Mead was filing charges with the Board. Lyons said that Mead's dis-
charge had had nothing to do with union activities but that Mead had been sabo-
taging the war effort by his rejections.
• During their discussion, Lyons and Carroll told Hannon that they had been
talking with some of the other men and that those men were sorry they ` had signed
with the Union. They asked Hannon if he could get the cards back from Ilamil-
•ton, to whom Hannon said that he had given them. Hannon replied that he
thought he could do so and agreed that he would try to get the cards back.
'0 Lyons did not testify at the hearing and the respondent did not explain its failure to
call hint
"Reardon was one of the four men who had originally distributed applications
THE HOWE SCALE COMPANY 1407
The night of July 9, Hannon went to see Reardon and told him about his con-
versation with Carroll and Lyons. He told' Reardon that he was dropping the
-Union and'that Reardon could go back to work and "his pay would be all right."
Reardon disagreed with Hannon's decision to drop the Union and refused to return
to work Later that evening Hannon went to see Barrett, who was not,at home.
When he reached Hamilton's home, there was no light so he 'did not attempt to
get-the cards.
The following morning. July 10, Hannon was again sent to Carroll's office by
Malmgren. On the way to the office he asked Barrett to accompany him. This
Barrett did. Upon arriving at Carroll's office Hannon told Carroll that he had
brought a helper along and Carroll said that that was all right. Hannon ex-,
plained that he had been unable to get the cards and told what had-happened
the night before. Carroll took the position that the men were just stalling for
time until an organizer could reach town and insisted that Lyons expected the
matter to be cleared up that mornhTg. Hannon and Barrett asked for an
extension of time to get the cards back and Carroll telephoned Lyons to come
over to his office. While they were waiting for Lyons, Reardon's case was
discussed and Carroll tried to get in touch with Reardon by telephone, but he
was not at home. In the interim, Hannon told Carroll that Barrett had pro-,
posed the organization of a committee to talk things over inasmuch as they
were giving up the Union. Carroll said that that was all right, but that until
the cards had been returned, he would not discuss it.
When Lyons reached Carroll's office the situation was explained to him.
Lyons said that he felt that the men were sincere in their efforts to get the
cards back and was willing to give them until that evening. If they were able
to obtain them from Hamilton they were to get in touch with Carroll and tell
him what they had done. It was agreed that if the cards were returned, there
would be no hard feelings and nothing would be held against Barrett and
Hannon nor would they be held responsible for any further activity. Mead's
name again came into the conversation and Lyons and Carroll denied that his
dismissal had been because of union activity. They said that he had, been
rejecting too much work and was a saboteur, and that they hoped that Mead
would try to bring proceedings before the Board because they "had enough on
him . . . to hang him." The suggestion that the employees have a committee
was again discussed. Lyons said that he thought the matter could be handled
all right after the cards had been returned. Lyons also said that he did not
want any "outsiders in there telling him how to run his plant" ; that they had
gotten along all right for a number of years ; and that if a union got in the
plant and tried to tell him how to run it he would not put as much extra effort
into the business as he had been.
On the evening of July 10, Hannon and Barrett went to Hamilton's home to
get the cards. They explained that pressure was being put on them ; that the
men were dissatisfied because'they had not had more rapid action in getting an
organizer; and that they wanted the cards back so they could return them to
the men Hamilton explained that a representative of the Union would arrive
the following week. Nevertheless, Barrett and Hannon wanted the cards and
were given them. They then went to Carroll's house.
At Carroll's house, Hannon and Barrett told him they had secured the cards.
Carroll said that that was good ; that he thought the matter would die down if
they dropped out; that he believed that neither Lyons nor President Riehl
would hold it against them ; and that Lyons had told him that if the men
wanted a committee that either Tardiff or ' Hannon was the man to handle it
and that it would be satisfactory to put either of them "at, the top of the
i
1408 DECISIONS OF NATIONAL LABOR ROLATIONS BOARD
heap." Carroll also told Hannon and Barrett that if they wanted to organize
a committee it would be all right ; that they did not need any outside help ;
and that if at any time they had anything they wanted to talk over, he would
be glad to talk with them
Following their discussion at Carroll's home, Hannon and Barrett kept the
-cards Thereafter on several occasions from time to time Carroll stopped at
their respective machines and asked Hannon and Barrett if, there was any
further union activity and if anyone was giving them trouble 12
On July 13, Fred H Coonley, a representative of the Union, came to Rutland to
assist in organizing the respondent's employees. Coonley saw Harrison Sheldon,
Jr., a machinist who had been employed by the respondent since 1936 Sheldon
agreed to circulate applications for membership in the Union 13 Beginning on July
14 and continuing for about 2 weeks thereafter, Sheldon passed out about 45
applications, some 40 of which were signed and returned. Some of Sheldon's
activity took place in the machine shop during working hours
Upon his arrival, Coonley also saw Barrett and Hannon and tried to get them
to return the previously signed cards Barrett went to Carroll about Coonley's
request that the cards be returned to him, and told Carroll that Coonley had
said , that if he withheld the cards he would be liable in case the company was
prosecuted for having taken part in a conspiracy to interfere with union activities:
Carroll told Barrett to keep the cards ; that the Union would not prosecute ; but
that it would "let it drop now that you fellows have dropped out of it " During
one-discussion of the matter at Barrett's machine sometime after the middle of
July, Carroll asked Barrett how many cards lie had and Barrett said that he had
never bothered to count them. Carroll expressed the opinion that they would
never have got anywhere because they had-not secured a majority Barrett told
Carroll he had not returned any of the cards and Carroll told him to "hang on"
to them, but that if the fellows got "to hot" about it lie could "pass some back to
the fellows you know who are all right."
On July 13, feeling uncertain as to his position, Tardiff went to Foreman
Malmgren ; told him that he would like to know where he stood ; and asked if it
could be arranged for him to talk with Carroll. An appointment was arranged
and Tardiff saw Carroll that evening at his home. Tardiff asked what lie was
supposed to do, saying that he did not know if he was in a position to try to break
up the Union. Carroll said that Hannon and Barrett were willing to quit. Tarditf
stated that that made things a little brighter for him; that he had not known
much about unions ; but that when they had started organizing he had heard that
"unions did work for the good and interest of the company and the group " Car-
roll said that so far as he knew they just "cause turmoil " The situations of
Reardon and Mead were discussed, Carroll stating that Reardon had been laid
off because of lack of work and that Mead was "just a plain case of sabotage "
Tardiff questioned whether Carroll had had a right under the Act to fire him for
union activities when he had called him into the office. Carroll admitted that
he knew that he had not had that right
About the middle of July, Earl Bartlett, a machine shop employee, assisted by
two or three others," started circulating petitions which read, "We. the under-
signers, are in favor of an Independent Union." These petitions were circulated
and signed in part at least in the plant during working hours and approximately
12 Carroll had previously said that if any of the men give them any trouble he would be
glad to talk with such men
13 In contrast with the cards previously circulated which had designated the A. F. L,
these cards designated the International Association of 'Machinists as collective bargaining
agent
14 Bartlett testified that he could not recall who the others were
f
THE HOWE SCALE COMPANY 1409
'187 signatures were secured 1s No supervisor of the respondent ever criticized
Bartlett for his activities in circulating the petition, nor is there any, evidence in
the record that any employee was ever criticized for other activity discussed below,
which took place in the plant during working hours on behalf of the Independent.
About July,24 Carroll stopped at Hannon's machine and asked him if he thought
that Sheldon was doing any soliciting for the Union. Hannon replied that he did
not think that Sheldon was.-
Just before 5 o'clock on July 28,.Foreman Malmgren came to Sheldon and told
him that Carroll wanted him to come back that night and get out a back fixture
for a railroad scale. Sheldon replied that be hail other plans and could not return
and that the back fixture would not be needed for several days anyway. Malm-
gren said that Carroll wanted him to come back and that he would have to talk
with Carroll in the morning if he did not. On leaving the plant that evening
Sheldon told Malmgren that if they insisted on his working that night, he would
come back at 11 o'clock. Malmgren replied that Carroll wanted him to come back
at 6. When Sheldon explained that he could not come back because he had
plans which he could not change, Malmgren, who was on very friendly terms with
Shelden, did not ask him what his plans were. Nor did Malmgren give Sheldon
a pass to return to the plant; without such a pass Sheldon could not have
returned at 11 o'clock as he cffered to do
On the evening of July 28. Sheldon went to the first union meeting held in
G. A. R. Hall in downtown Rutland It was at this meeting that Sheldon turned
over theI application cards which he had secured to Coonley.
On July 29, Sheldon was called to Carroll's office just before noon. Carroll
thereupon discharged Sheldon, giving as the reason that Sheldon was not co-
operating in the war production program.'
On Thnisday, July 30, Coonley went to see Lyons and requested recognition
of the Union and reinstatement of Mead and Sheldon. Lyons replied that he
was not the highest official of the company and could not act upon the request.
He said that Coonley would have to see President Riehi and asked that Coonley
give him a few days to take the matter up with Riehl and arrange a meeting
for the first of the following week. Coonley told Lyons that be would return
the first part of the following week, "undoubtedly" on Tuesday.
On Tuesday, August 4, Coonley called at the respondent's office but was unable
to see President Riehl. He was able only to talk with Riehl from a telephone
booth in-the office hall. Coonley told Riehl that he was calling as a result of
his previous talk with Lyons in order to discuss reinstatement of Mead and
Sheldon and recognition of the Union. Riehl stated that he could not see Coonley
that day or any time that week and that' he did not know when he could see him.1°
That day Coonley filled out and swore to a charge which he mailed to the Regional
Office.
On August 4, the Union held its formal organizational meeting in a hall in the
Woolworth block in downtown Rutland The name, Green Mountain Lodge, was
selected. That night temporary officers were elected. Charles Mead was elected
president; Raymond Hannon, recording secretary; and Raymond Ruby, finan-
cial secretary." -
15 The petitions had been turned over to the Independent 's attorney prior to the hearing
and had been destroyed
1U The above finding is made upon testimony of Coonley which the undersigned credits.
President Riehl, like Lyons and Carroll , did not testify , nor was his failure to testify
explained
R During the latter part of September , Charles Barrett succeeded Ruby as financial
secretary. 1
513024-43-vol. 47-89
14101 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
On the morning of August 5,, the Rutland Herald, Rutland's daily newspaper,
carried a front-page article about the organizational activities and claims of the
Union in relation to the respondent. About 4 o'clock that afternoon, Donald
Guy, the city editor of the Rutland Herald, went to the plant to see Lyons and
was referred'to Carroll. Guy asked Carroll about the A. F. L., activities and
Carroll told hint that he had learned more from the morning paper than he had
known himself. Carroll also asked how the story happened to be put on-the front
page. After Guy's explanation, Carroll said there was another organization. in
the plant and that some men had been in to see him that morning about it. Carroll
said that of course he had assured them that he could not do anything-L-to,,help'
them and that they would have to work it out themselves. Guy asked who the
men were. Carroll named Bartlett and Fregosi, giving only their last names."
Guy wanted to interview some of those connected with the new organization then,
but Carroll said he would put them in touch with Guy later. During the discus-
sion in relation to the A. F. L, Carroll told Guy that he did not want outsiders
coming into the plant to show him how to run the business.
About 6: 30 that evening, Guy returned to the office and found a typewritten
piece of paper on his desk which had been received by one of the reporters. It had
a telephone number written in the margin. This paper read as follows :
AUGUST 5, 1942.
Howe Scale Company employees, aroused by American Federation:of'Labor
claims, today selected a temporary committee to draw up plans for an inde-
pendent union. A large number of workers have already voiced their dis-
approval,of affiliation with any nationally organized group.
The temporary committee selected informally by popular demand con-
„ -sists of : ,
Arthur D. MeWithey, Machine Shop, Chairman.
Walter J. Clark, Wood Shop
Earl C.-Bartlett, Machine Shop
Lloyd L. Derby, Forge Shop
Hiram D. Spafford, Trailer Shop.
Guy called the telephone number which he found on the paper and talked with
a man who identified himself as Clark. Guy asked Clark for further information,
pointing out that the two paragraphs gave little information for a newspaper
story. Guy wanted to know how long the organization had been trying to form,
who the officials were, how many `were in the organization, and whether they
were going to ask for a contract. Clark could. give Guy no further'information
and said that everything was contained in the statement.
About an hour later, Carroll telephoned Guy and 'asked him if any ohe,,liad got
in touch with him. Guy said that a piece of paper had been left at the office
which would make only about 2 inches in the newspaper and did not contain
tiearly as much information as lie wanted. He told Carroll that he had called
Clark and had not been able to get any further information. Carroll said it was
not so much the length of the story that mattered but its position in the paper
and the kind of headlines which were given it. Carroll asked Guy to "give it a
good plug anyway."
On August 6, Coonley wrote the respondent requesting recognition of the Union.
He never received a- reply to that letter. -
as Bartlett and Fregosi had both been absent from their machines in the machine shop for
unusually long'perlods of time during the preceding several days.
I-)
THE HOWE SCALE COMPANY 141-1
On the evening of August 6, the first meeting of the Independent was held in
its attorney's office. The five men named in the above article left at the' news-
paper, McWithey, Clark, Bartlett, Derby, and Spafford, were the only ones
present in addition to the attorney. The five constituted themselves a com-
mittee. Bylaws governing the Independent were drawn up that evening at the
meeting. The bylaws provided that one of the methods of giving legal notice
of meetings was "a notice posted on the bulletin boards in the various depart-
ments." 19 That. night the self-constituted committee also elected temporary of-
ficers. McWithy was selected president ; Spafford; first-vice president ; Clark, sec-
ond vice president ; Derby, secretary ; and Bartlett , treasurer. -
On August 9, an open meeting of the Independent was held at the Italian-
American Club in Rutland . The bylaws were read and adopted . The temporary
officers selected on August 6 were elected officers for a one-year period by a
show of hands, although the bylaws, called for an election by ballot. A Board
of Governors was also elected. Membership meetings were thereafter held on
August 14 and August 20 A meeting of the Board of Governors, composed of the
officers and representatives of the departments who had been elected on August
9, was held on August 26. No meetings have been held since and at no meeting
of the Independent"was there any discussion of any grievance which any member
of the Independent might have had.
Shortly after its organization, applications for membership in the Independent
were printed and distributed. . Signatures were solicited in the plant during
working hours. Like the petitions for the Independent mentioned above, there is
no evidence that any) person soliciting membership for the Independent was ever
criticized by an official of the respondent.
Up 'to about the last of September, the Independent had received a total of
$47. Twenty-six dollars of this was profit made from raffling off a $25 war bond
in the plant. The solicitation took place during working hours and employees
were told, and the tickets had printed upon them, that the raffle was for the
Independent. This solicitation covered approximately 2 weeks during the last
of- August and the first of September. There is no evidence that anyone was
reprimanded for such solicitation. During the month of October three persons
only paid the monthly dues of 50 cents to the Independent.
Sometime after the Independent's organization, distribution took place in the
plant during working hours of literature of a national association of independent
unions. Solicitation also took place to secure withdrawals. from the Union.
The withdrawal forms used originated in the office of the Independent's attorney,
but,,like the petitions discussed above, by the time of the healing they had been
destroyed. Some of this solicitation of A. F. L. resignations took place in the
plant -durinb working hours. One employee, James D'Aniello, signed such a
resignation as a result of discussions at the Italian-American Club with Fore-
man Cioffi.20 During the first discussion, D'Aniello indicated that he was thinking
of getting out of the A. F. L. and Cioffi asked him why he wanted anything to
do with the Union and if be was not making "pretty good money 'now " 'About 2
weeks later, D'Aniello saw Cioffi at the club again and asked him if he had a
blank for resigning from the A. F. L. Cioffi told him to wait a minute, went out,
10 There is no evidence that this method was used in giving noticeeof meetings. Lloyd
Derby, the Independent's secretary, testified that there was discussion as to whether or not
they would be permitted to post such notices and that they decided to put it in the bylaws
but that later th^y decided it would be better to get out fliers to announce meetings rather
than to use the bulletin boards'
° Cioffi was president of the ltalian-American Club' and D'Anmllo hid fonmem ly been a
trustee.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD0
and returned with a form of resignation from the Union. D'Aniello signed it
and gave it to Foreman Cioffi
On September 10, Coonley, Lyons, and Harry Russell, an agent of the,
War Production Board, had a discussion on the steps in the front of the re-
spondent's office. Russell raised the question of the loss of skilled workers
which was affecting war work: Lyons said- there was a slow-down in the
plant. Coonley denied any knowledge of a slow-down.. Lyons refused to take
any action and during- the discussion remarked that "they were- just one big
happy family until outsiders came in and disrupted conditions."
From the facts above set forth and especially the statements and actions
of Vice-president Lyons, Superintendent Carroll, and Foreman Cioffi, the un-
dersigned finds that beginning about July 25, 1942, the respondent interfered
with, restrained, and coerced its employees in various ways, including ques-
tioning them as to their membership in the Union and the number of mem-
bers in the Union ; making, derogatory remarks about the Union and its
organizers ; requesting employees to resign from the Union ; threatening
discharge, if employees joined or did not cease activities on behalf of the Union;
threatening to employ women to replace men and to go on a 40-hour week
thereby depriving employees of overtime if activities in the Union persisted ;
asking employees to talk with fellow employees against the Union; informing
employees that they did not need help from outsiders but could represent
themselves, and demanding that certain employees get' back from the Union
all applications for membership signed by its employees, and that the re-
spondent thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 , of the Act. ,
B. Conclusions concerning the Independent
The salient facts concerning the organization of the Independent are set
out above in their chronological relationship to. the respondent's campaign
against the Union. That the respondent had repeatedly and vigorously mani-
fested its determination to rid itself of the Union prior to the formation of the
Independent is clear. It is also clear from the discussions of Lyons and
Carroll during June and July with Hannon, Barrett, and Tardiff, that the
respondent, in contrast with its antipathy toward the Union, was willing to
accept an organization composed of the respondent's employees, in the absence,
of "outside interference." That Carroll knew of the formation of the In-
,dependent prior to its formal organization on the night of August 6 is shown
by his conversation with City Editor Guy on the afternoon of August 5. That
Carroll was solicitous for the Independent is shown by his request the evening
of August 5 that Guy give the Independent a "good plug."
The formation of the Independent took place immediately following the at-
tempt of Coonley on August 4 to see President Riehl to secure recognition,
and the formal organizational meeting of the Union on the night of August 4.
At the hearing, Lloyd Derby, the Independent's secretary, first testified that
he had drafted the article submitted to the Rutland Herald at his home on the
-evening of August 4, and that the article had been typed up for him at noon
,on August 5. Derby could not remember having changed the draft after he had
written it at his home on August 4. The draft submitted to the newspaper on
August 5 opened with a statement that the respondent's employees had been
aroused by the claims made 'by the A. F. L. Derby later testified that he had
not known of the A. F. L.'s claims to a majority until after he had read of, those
claims in the Rutland Herald on the morning of August 5. Dery's testimony as
to the preparation of the publicity for the Independent was not convincing.
THE' HOWE SCALE COMPANY 1413
whatever actually may have happened, it is evident that the publicity was pre-
pared in haste, and in advance of any actual formal organizational steps. The
first meeting of the Independent was not held until the evening of August 6, after
the article announcing its organization' had appeared in the paper on the morning
of August 6. In explanation of the publicity released on August 5, naming the
five men who later became the officers of the Independent as a "temporary com-
mittee selected informally by popular demand." Derby testified that a group of
some 15 or 20 men met on benches just outside of the plant at noon on August
5 and informally selected the committee. A study of the testimony of Secretary
Derby and Treasurer Bartlett, the only officers of the Independent who testi-
fied,21 in the light of the entire record does not convince the undersigned that
the Independent arose as the result of popular demand on the part of the re-
spondent's employees, whatever personal reasons certain employees may have had,
for not liking the A. F. L.
The formation of the Independent cannot be divorced from the respondent's
unfair labor practices. The drastic action against the Union taken by Carroll
immediately after activities on behalf of the Union started in June is set out
above. Those who had solicited for the Union on respondent's time and property
were threatened in several ways including prosecution for the alleged violation
of law. Tardiff was confronted with an outright discharge until he agreed to
abandon the Union. In contrast, there is no evidence in the record that anyone
active on behalf of the Independent was ever interfered with or reprimanded.
Further, the record clearly establishes that petitions for an independent union
were circulated in the plant during working hours in July and that thereafter
during August and September application cards for the Independent were cir-
culated in the plant on company time; that literature of a national association.
of independent unions was passed out in the plant during 'working hours ; that
solicitation for a war bond raffle for the Independent took place openly in the
plant on company time; and that resignations from the A. F. L. were solicited
in the plant during working hours. The undersigned is convinced and finds'
that the activities on behalf of the Independent in the plant during working
hours were substantially more extensive than the activities on behalf of the
Union; that the respondent was well aware of the activities on behalf of the
Independent; and` that the respondent acquiesced in those activities. This
striking contrast in the respondent's treatment of the Union and the Independent
in the matter of organizational activities in its plant during working hours
constituted a clear demonstration of the respondent's approval of the Inde-
pendent and substantial assistance to the Independent.
From all of the surrounding circumstances, the undersigned finds that the
respondent has dominated and interfered with- the formation and' administra-
tion of the Independent Scale Workers of Rutland and has contributed support
thereto, and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
C. The discharges of Mead and Sheldon
1. Charles Mead
The respondent contended at the hearing that Mead was inefficient and offi-
cious; harbored resentment towards and refused to cooperate with his superiors;
had to be constantly watched by his superiors ; had marked certain wheels as
scrap which were then scrapped thereby holding up production; and, that the
respondent finally dispensed with Mead's services to protect itself and its
products.
21 Derby and Bartlett were called by the Board. The Independent called no witnesses.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence does not support the respondent's contentions. Mead was an
inspector with his desk located in the machine shop 22 He first went to work
for the respondent in 1893 and had worked continuously since 1900. Mead's
position was a responsible one, and during his long period of service he had held
several responsible positions, having served as the foreman of various depart-
ments, including the machine shop. Mead evidently had a dual type. of, respon-
sibility, consulting with the chief inspector, John R. Eash, on certain. matters
and with the machine shop foreman, Malingren, on other matters.' Foreman
Malmgren, when called by the Board, testified that he had never had any com-
plaints about the work which Mead had done upon materials finished in the
machine shop, but that he did not think that Mead necessarily came under his
supervision. Chief Inspector Eash, when called by the respondent, testified
that he believed that Mead was under the "direct supervision of the machine
shop foreman"; that as chief inspector he had no complaints against Mead and
had never made any to his superiors ; that while Mead felt that he knew most
of the jobs in the plant better than the men who were doing them, he did not
consider that Mead had been officious in the discharge of his duties; and that
Mead was very careful and conscientious, and if there were any complaint against
Mead it was because he was too careful and too conscientious. Superintendent
Carroll, who actually discharged Mead on July 2, did not testify and the only
testimony concerning the circumstances surrounding the actual, discharge is
that which Mead gave. Mead's account, which the undersigned believes, follows.
After Foreman Ball had told Mead on the morning of July 2 that the A. F. L.
and the C. I. O.' were both rackets and Mead had failed to deny that he was
to be the president of the Union, Perley Spafford, Sr.," who had for 25 years
been in charge of the drilling of wheels, told Mead that a new man had drilled
the axle holes too large in some industrial truck wheels and that the wheels would
have to be scrapped. Mead marked the wheels as scrap and sent a ticket to the,
office in accordance with the usual procedure. About 3 that afternoon, Malm-
gren came to Mead and asked him why he had marked .the wheels as scrap.
Mead explained what,had taken place. Malmgren informed Mead that he was
not to scrap any more, material without first showing it to him. Mead agreed
that he would follow those instructions. Malmgren then turned and said some-
thing to Carroll who had been standing some 5 feet away. Thereupon the three
went to where the wheels were and Carroll asked Malmgren why they had been
scrapped. Mead explained again what had taken place and why he had scrapped
the wheels-and then asked Spafford if he had not requested that.they be scrapped.
Spafford stated that he had so requested. Carroll then told Mead that he had
done all the scrapping that he was going to do, that he was fired, and to pack up
his things and get out. Carroll asked Mead if he remembered "those No. 4,
blocks." 26 Mead replied that he certainly did. Mead thereupon got his-check
from,Paymaster Savage.
22 All of the places and processes discussed in this section of the report were visited
and inspected by the Trial Examiner In the company of all counsel and the representative
of the Union.
23 According to his own testimony, Mead considered himself responsible to the chief,
inspector.
24 See footnote 5. above.
"The incident involving the blocks had occurred some 5 or 6 weeks earlier. Mead and
Carroll had had a heated discussion over whether several hundred chilled blocks should'
have been scrapped. Mead had consulted Eash on the matter for advice and was following
Eash's suggestions. He had also cooperated with Foreman Malmgren and, Assistant Foreman,
Clark in tiying to save as maoy of the blocks as possible. At the hearing' neither Malmgren
nor Eash testified that Mead's conduct in regard to the chilled blocks had been in any way
reprehensible.
THE HOWE SCALE COMPANY 1415
As to the wheels which Mead marked as scrap, the record does not show that
any loss, delay, or inconvenience was caused by Mead's action. While the pro-
cedure to be followed by the respondent's inspectors, their duties, and their lines
of responsibilities are none too clear from the record, it is evident that at most
Mead may have erred in accepting the word of Spafford who had been in charge
for 23 years cf the drilling of wheels that the wheels had been drilled with over-
sized axle holes and would have to be scrapped, and in not taking up with Fore-
man Malmgren the question of the possibility of salvaging) the wheels before
marking them as scrap. However, there was nothing in Mead's conduct on the
witness stand, nor is there any evidence in the record, to indicate that Mead,
in scrapping the wheels, was motivated by malice or was attempting to sabotage
the respondent's war production program. If any error was involved, it was
merely a minor error of judgment.
Assuming that Mead erred along the above-suggested lines, the undersigned
does not believe that such error was the real reason for Mead's discharge, es-
pecially in view of his long service, his varied experience, and the lack of any
complaints about his work by Foreman, Malmgren and Chief Inspector Eash.
On tha other hand, it is clear from the findings set out hereinbefore that Carroll
was then carrying on a vigorous campaign in flagrant violation of the Act to rid
the respondent of the Union. On June 27, shortly before Mead's discharge,
Hannon had been called to Carroll's office and told, among,other things calcu-
lated to get him to give up,his allegiance to the Union, that the time he had
turned in would not stand inspection. On July 6, just the second working day
after -Mead's discharge, Tardiff was called into Carroll's office and discharged,
only to be reinstated when he agreed to try to stop the Union's organizational ac-
tivities. Carroll was persistent in his attempts to find the ringleader of the
Union. - On the morning of the day Mead was discharged, Mead had failed to
deny to Foreman Ball that he was to be the president of the Union. From all of
the evidence the undersigned infers and finds that the real reason for Mead's
discharge on July 2 was the respondent's belief that Mead was a leader in the
organizational activities of the Union.
2. Harrison N. Sheldon, Jr.
As to Harrison Sheldon's discharge on July 29, the events immediately sur-
rounding that discharge are set forth above in the chronology of events., The
respondent contended that Sheldon was discharged solely because of his refusal
to work on the evening of July 28 on work required for the war effort or to give
any reason for not working that evening.
Sheldon had worked for the respondent for approximately 6 years. Foreman
Malmgren testified that he had never had any complaint about Sheldon's work.
He did not testify that Sheldon refused to give any reason for his not wishing
to return at 6 o'clock. The respondent made no showing as to why Sheldon could
not have returned as well at 11 o'clock the night of July 28, as he offered to do,
rather than at 6 o'clock., The machine shop was open for the night shift until
2 a. m., the power was on, and Sheldon's machines were not in use. The back
fixture which Sheldon was asked-to return to work on could not have been used
in the scale until the -beam had been finished and the beam had, not yet been
made. The beam was customarily made before the back fixture and no explana-
tion was, given to Sheldon for the reversal of the usual process. The respond-
ent made no showing that Sheldon's failure to return on the night of July 28
in any way retarded its production schedule.' Sheldon had previously indicated
that he could not return for evening overtime work and had never before been
disciplined for so doing.
1416 DEICISIONS OF NATIONAL LABOR RELATIONS BOARD
The important engagement which Sheldon could not change was the first meet-
ing of the Union at which he turned over to Coonley the applications he had
secured. For some 2 weeks previously, Sheldon had been soliciting applications
for the Union. His activities had begun shortly after Carroll's vigorous attempts
during late June and early July to stamp out activities on behalf of the Union.
About July 24, Carroll had questioned Hannon as to whether Sheldon was active
on behalf of the Union. Clearly, Carroll was employing drastic measures to
ferret out activity on behalf of the Union and Sheldon was the most active
employee on behalf of the Union during the 2 weeks prior to his discharge. From
all of the evidence the undersigned is convinced and finds that the respondent
became aware of Sheldon's activity on behalf of the Union prior to his discharge
and that the respondent used Sheldon's unwillingness to comply exactly with its
request as a pretext to rid itself of Sheldon who was taking the lead in keeping
the Union alive among its employees in the face of the respondent's persistent
opposition to it.
The undersigned finds that the respondent, by its discharge of Charles Mead on
July 2, 1942, and its discharge of Harri:on N. Sheldon, Jr.. on July 29, 1942, has
discriminated in regard to the hire and tenure of employment of Mead and Shel-
don; has thereby discouraged membership in the International Association of
Machinists; and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV., THE EFECT OF TILE UNFAIR LABOR PRACTICES UPON' COMMFRCE
The undersigned finds that 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned- will recommend that it cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to effectuate the-policies
of the Act.
Having found that the respondent dominated and interfered with the formation
and administration of the Independent and contributed support thereto, the under-
signed will recommend that the respondent refrain from recognizing the Inde-
pendent as representative of its employees for the purposes of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of work, and completely disestablished said
Independent.
Having found that the respondent discriminated in regard to the hire and
tenure of employment of Charles Mead and Harrison N. Sheldon, Jr., the under-
signed will recommend that the respondent offer immediate and full reinstatement
to Mead and Sheldon to their former or substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, and that it make Mead
and Sheldon whole for any loss of pay each may have suffered by reason of the
respondent's discrimination against him, by payment to each of a sum of money
equal to the amount which he normally would have earned as wages from the date
THE HOWE SCALE COMPANY 1417
-- i
of such discrimination to the date of the offer of reinstatement , less his net
earnings' during said period.
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists , affiliated with the American Fed-
eration of Labor, and Independent Scale Workers of Rutland are labor organiza-
tions, within the meaning of Section 2 (5) of the Act. '
2. By dominating and interfering with the formation and administration of
Independent Scale Workers of Rutland and contributing support thereto, the
respondent has engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 ( 2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Charles Mead and Harrison N Sheldon , Jr., and thereby discouragingg member-
ship in International Association of Machinists , affiliated with the American
Federation of Labor, the respondent has engaged in and is engaging in unfair
labor practices , within the meaning of Section 8 ( 3)f of the Act.
4. By interfering with , restraining , and coercing its 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.
5. The aforesaid unfair labor -practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent , The Howe Scale Company, its officers,
agents, successors , and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Independent
Scale Workers of Rutland or with the formation or administration of any
other labor organization and from contributing support to said labor organiza-
tion or , to any other labor organization ;
(b)' Discouraging membership in International Association of Machinists,
affiliated with the American Federation of Labor, or any other labor organi-
zation of its employees , by discharging and refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their hire and tenure
of employment, or any terin or condition of employment ;
(c) In any other manner interfering with, restraining , or coercing its em-
ployees 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 activity for the purpose of collective
26 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 the respondent's
discamination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America , Lumber and Sawmill Workers Union, Local 2590,78 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.
J I
14-18 DEICE=IONS OF NATIONAL LABOR' RELATIONS BOARD
bargaining of-other mutual-aid or protection, as guaranteed in Section '7,of the
Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policy of the Act :
(a) Refrain from recognizing and completely disestablish Independent Scale
Workers of Rutland as the representatives of any of its employees for the pur-
pose of dealing with the respondent concerning guevances, labor disputes, wages,
-rates-of pay, hours of employment, or other conditions of employment;
(b) Offer to Charles Mead and Harrison N Sheldon, Jr., immediate and full
reinstatement to their former or substantially equivalent positions without preju-
dice to their seniority or other rights or privileges; r
(c) Make whole Charles Mead and Harrison N Sheldon, Jr., for any loss of pay
each may have suffered by reason of the respondent's discumni ration against him,
by paying to him, a sum of money equal to that which he normally would have
earned as wages during the period from the date of the respondent's discrimina-
tion against him to the date of the respondent's offer of reinstatement, less his
net earnings 27 during said period ;
(d) Post immediately in conspicuous places throughout its Rutland,. Vermont,
plant and maintain for a period-of at least sixty (60) consecutive days 'from the
,date of posting, notices stating: (1) that the respondent will not engage in the
condupt from which it has been reconnnended that it cease and desist in pata-
graph 1 (a), (b), and (c) of these recommendations; (2) that the respondent
will take the affirmative action set forth in-paragraph 2 (a), (b), and (c), of
these recommendations; and (3) that the respondent's, employees are free to
become or remain members of International Association of Machinists , affili-
ated with the American Federation of Labor, and that the respondent will not
discriminate against any employee because of membership in or activity oil behalf
of that organization ; '
(e) Notify the Regional Director for the First 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 herewith.
It is further recommended that unless on or before ten (10) days from 'the
date of the receipt of this Intermediate Report the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, 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 Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of 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 he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided 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.
EARL S. BELLMAN,
Trial Examiner.
Dated November 27, 1942
27 See footnote 26, supra