The Tetrad Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1959

125 N.L.R.B. 466 (N.L.R.B. 1959)

466 DECISIONS oI,' NATIONAL LABOR RELATIONS BOARD
4 By performing and giving effect to said collective-bargaining agreement, the
Company has interfered with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act, and has discriminated against
employees in respect to their hire and tenure of employment and other terms and
conditions of employment, and has thereby engaged in unfair labor practices within,
the meaning of Section 8(a) (1) and (3) of the Act
5 By acquiescing in the Union's unilateral determination of the seniority status
of Michael Lopuch and in reducing his seniority position on the drivers' seniority
roster, the Company has interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act, and has discriminated
in respect to the hire and tenure of employment and other terms and conditions of
employment of Michael Lopuch, and has thereby engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act
6 By performing and giving effect to its collective-bargaining agreement with the
Company containing the aforesaid unlawful seniority provisions, the Union has
restrained and coerced employees in the exercise of their rights guaranteed in Section
7 of the Act, and has caused or attempted to cause the Company to discriminate
against employees in violation of Section 8(a)(3) of the Act, and has thereby
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2)
of the Act
7 By demanding and causing the Company to reduce the seniority status of
Michael Lo uch, the Union has restrained arid coerced employees in the exercise
of their rights guaranteed in Section 7 of the Act, and has caused the Company to
discriminate against an employee in violation of Section 8(a) (3) of the Act, and has
thereby engaged in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2) of the Act
8 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication ]
The Tetrad Company, Inc. and International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO Cases Nos s-CA-
5778 and 2-CA--6054 November 30, 1959
DECISION AND ORDER
On July 17, 1958, Trial Examiner Louis Plost issued his Inter-
mediate Report in this case, finding that the Respondent had not en-
gaged in the violations of Section 8 (a) (1) and (3) of the Act alleged
in the complaint and recommending dismissal of the complaint in its
entirety, as set forth in the copy of the Intermediate Report attached
hereto Thereafter, the General Counsel and Union filed exceptions to
the Intermediate Report, and the General Counsel filed a supporting
brief The Respondent filed a brief in support of the Intermediate
Report and Recommended Order
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-ti iember
panel [Chairman Leedom and Members Bean and Fanning]
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed The
rulings are hereby affirmed The Board has considered the Inter-
125 NLRB No. 61
T11E TETRAD COMPANY, INC. 467
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
'We do not , however , adopt the Trial Examiner 's comment in footnote 5 of the Inter-
mediate Report.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge (2-CA-5778 ) duly filed by International Union of Electrical,
Radio and Machine Workers, AFL-CIO ( Charging Party or Union ), on March 3,
1958, with the Second Region of the National Labor Relations Board ( Board),
averring that Tetrad Company had discriminatorily discharged Frank Stevenson and
William Freeman , and a charge ( 2-CA-6054 ) duly filed by said Charging Party on
July 8, 1958, averring discriminatory discharge of Albert Puente by The Tetrad
'Company, Inc., the Regional Director for the Second Region issued an order con-
solidating cases, complaint , and notice of hearing , dated September 26, 1958. The
complaint alleged violations of Section 8(a)(1) and -( 3) and 2 ( 6) and ( 7) of the
National Labor Relations Act, as amended (Act), by The Tetrad Company, Inc.'
(Respondent ), in that:
Since on or about February 21, 1958, Respondent has interfered with,
restrained , and coerced , and is interfering with , restraining , and coercing, its
employees in the exercise of rights guaranteed in Section 7 of the Act , in that
Respondent , by its president , Martin V . Marcus,2 did:
(a) On or about April 18, 1958, threaten to refuse to recognize or bargain
with the Union or any union.
(b) On or about April 18, 195:8 , threaten to impose very strict and continuing
supervision over its employees if a union came into the shop.
(c) On or about April 18, 1958, threaten to impose production quotas and
to reduce overtime if the Union won the election.
(d) On or about April 18, 1958, threaten to discharge employees active on
behalf of the Union.
(e) On or about June 1, 1958 , threaten to discharge an employee for his
activities on behalf of the Union.
(f) During the month of June 1958 , interrogate various of its employees
concerning their membership in, activities on behalf of and sympathy in the
Union.
(g) On or about June 30, 1958, threaten an employee with bodily harm and
other injuries and reprisals because of his activities on behalf of the Union.
On or about the dates indicated hereinbelow , Respondent did discharge the
following named employees employed by Respondent at the Yonkers plant:
o
Name of Employees
Date
orfLayoff
Frank Stevens, Jr.------------------------------- February 21, 1958
William Freeman------------.------------------- February 28, 1958
Albert Puente---------------------------------------- July 1,
The Respondent filed an answer.
1958
On November 17, 18 , 19, and 20 , 1958 , at a formal hearing before Louis Plost,
the duly designated Trial Examiner , the issues presented were fully litigated. The
parties presented oral argument . The General Counsel and the Respondent there-
after filed briefs.3
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
I Italicization above is added to show errors in charge as filed by the Union.
2 The Respondent ' s president is Morton Marcus.
8 This report was delayed because the Trial Examiner was hospitalized on December 1,
1958, and physically unable to return to work until April 1959.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged and the Respondent admitted:
The Respondent is, and has been at all times herein mentioned, a corporation duly
organized under and existing by virtue of the laws of the State of New York.
At all times herein mentioned, the Respondent has maintained its principal office
and place of business in Yonkers, New York, and is now and has been continuously
engaged in the manufacture, sale, and distribution of diamond phonograph needles,
tools, dies, and related products.
During the past year, the Respondent, in the course and conduct of its business
operations, caused to be manufactured, sold, and distributed, products valued at
in excess of $50,000, of which products valued at in excess of $50,000 were shipped
from its plant in interstate commerce directly to States of the United States other
than the State of New York.
II. THE ORGANIZATION INVOLVED
The parties are in agreement that the Charging Party, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, is and has been at all times
material herein a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharges
1. Frank Stevens, Jr.
Joseph Vicinanza, International representative of the Charging Party, testified
that "about the last week in January or the first week in February [19581," he
began an organizational effort among the Respondent's employees. Vicinanza
testified that his "first contact with one of the employees there" was Al Puente (one
of those named as discriminatorily discharged in the complaint) whom he did not
know prior to beginning his effort to organize the plant; that after becoming ac-
quainted with Puente he met with him "almost every day"; and that thereafter he
also met Frank Stevens and Bill Freeman (also named as discriminatorily dis-
charged) and during February met "quite often" with these three men who unoffi-
cially formed "a sort of committee."
On cross-examination Vicinanza testified, "There were many other people on the
committee," but when pressed for names could recall only one.
Frank Stevens, Jr., testified he first met Union Representative Vicinanza when
Vicinanza handed him a leaflet he was distributing in the vicinity of the plant, that
"after a few conversations with Joe [Vicinanzal during the first week in February"
he (Stevens) contacted Freeman:
We got together and began talking to guys in the shop before working
periods and during lunch time and break periods and after work and trying to
find out just how many fellows in the shop were what you would call pro-union
and signing them up on a sheet we had that we used to keep around in our
pockets.
According to Stevens, subsequently, "we came in contact with Al Puente" and there-
after "the three of us began to canvass the whole shop."
Freeman was also called to testify with reference to the above-mentioned docu-
ment. According to Freeman "we asked guys . . . to sign" a document which he
had personally prepared; that there was only one copy, which he circulated and
gave to Stevens to circulate. The document admitted in evidence 4 bears purported
signatures of 16 individuals. Of these the name of William Freeman is third and
Frank Stevens, Jr., is eighth.
The Trial Examiner has devoted time and space to the above seemingly trivial
testimony because in his considered opinion the evident contradictions are in reality
indicative of the testimony offered by the General Counsel.
The complaint alleges that the Respondent discharged and has not reinstated
Stevens because "he joined or assisted the union or engaged in other concerted
activities" protected by the Act.
The Respondent contends that Stevens was discharged because of his excessive use
of the telephone which kept him away from his work an unreasonable amount of
time.
General Counsel's Exhibit No. 7.
THE TETRAD COMPANY, INC. 469
John Goudie , grinding room foreman in the Respondent 's plant at the time, testi-
fied that on February 21 , 1958, he discharged Stevens, on his own authority , because
he saw Stevens at the telephone "numerous times ," the telephone being a public
telephone in the shop ; that Stevens who was a grinder worked together with another
man as a team , the latter being compelled to sit idle while Stevens was away; that
on the day of Stevens ' discharge for "an hour to an hour and a quarter , an hour and
a half" of total elapsed time he noted that Stevens ' working partner was idle and
Stevens away from his place of work; that prior to the final day of Stevens' employ-
ment he had observed Stevens at the telephone "20 or 30 times"; that he had warned
him regarding the practice "four or five times," the last warning being "a day or two
days" before Stevens' discharge.
Goudie further testified that at the close of the day on February 21, "I told him
I couldn't go for this business any more and I was going to let him go." Goudie
further testified that Stevens then asked , "Just give me another break" to which the
foreman replied , "I am sorry, I can 't do it" and Stevens "walked out of the shop."
Joseph Como testified that he was the assistant grinding room foreman under
whom Stevens worked while employed by the Respondent ; that he personally warned
Stevens regarding his excessive use of the telephone "three or four times"; that "a
week or two before" his discharge Stevens remained at the telephone for a period
of 30 minutes which act Como reported to his superior as he did not have the right
to discharge.
Como further testified that sometime in November he called Stevens to answer
the telephone during a "break " period but that Stevens refused to do so saying "he
will not answer the telephone call on his time ." Stevens did not answer the call but
was not discharged for this conduct , which Como reported.
Stevens testified that he could not recall the incident.
With respect to his use of the telephone Stevens testified:
Q. Would you tell us how often you had occasion to use the phone?
A. During my stay in Tetrad , I could say that I probably used the phone,
or that I did use the phone, approximately on the average of two times a week
or maybe three at the most, for the allotted time you would for a ten-cent call.
He denied that he had ever been warned by the Respondent regarding his use of the
telephone.
Frederick Quintana , employed by the Respondent from October 1957 until
April 1958 , testified that he worked as a grinder until the first week in February 1958,
at which time he was assigned the task of gathering the diamond dust mixed with
the tool cooling fluid from all the grinding machines and also to polish microscopes
for the grinders at their request . The mixture of dust and fluid taken from the
grinding machine was emptied into a cleaning device or machine by Stevens. The
machine being a centrifugal device which separated the diamond dust from the
solvent was located near the telephone . Stevens admitted on cross-examination that
he actually ran the cleaning machine but two or three times daily , admitted that he
was required to gather the dust about three times daily each time requiring 10 or
15 minutes , admitted that the actual operation of the cleaning machine required
one-half hour, and that while the cleaning machine was operating he would also be
called away from it to clean microscopes at various points in the department.
Quintana testified that when he worked as a grinder he worked "about 10 feet
from Stevens" and that when he worked on the diamond dust machine he was only
3 feet from the telephone.
With this foundation he testified that Stevens "used the phone about twice a week,
sometimes three times."
Quintana admitted however that he could not see the telephone when he was
cleaning microscopes; admitted that while he worked as a grinder , which was during
all his employment prior to February , he could not see the telephone because,
"There was a partition blocking the phone"; admitted that while Stevens was on the
night shift he did not see him at all.
With respect to the "diamond dust cleaning machine" and its operation by
Quintana , Foreman Joseph Como testified:
Q. When would he normally operate this machine?
A. At the end of a grinding day, which would be approximately four or 4:30.
In the opinion of the Trial Examiner , Quintana's testimony does not support
Stevens' contention as to the amount of time he spent away from his work in the
use of the public telephone on matters of his own.
The Respondent 's officials uniformly admitted they had knowledge of the Charg-
ing Party's efforts to organize the employees from its inception because of handbills
535 828-60-=vol. 125-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given them by the Union's representatives and similar literature scattered through-
out the plant; however they all denied any knowledge of any organizational activity
or union membership by Stevens prior to his discharge.
To buttress the contention that Stevens was discriminatorily discharged, the
General Counsel offered testimony designed to prove knowledge of Stevens' union
activity by the Respondent.
. As herein found, Stevens testified that he and Freeman advocated the Union's.
cause to their fellow employees during lunch periods and before work and also
asked for signatures to a document advocating unionization of the plant. The docu-
ment on which the signatures were taken and the method used was described by
Stevens.
It was actually a legal-sized paper , similar to the legal-sized pads you have on
your desk. We tore them in half and we were getting initials from people in
different sections , those people who definitely would like to see a union come
into Tetrad.
Stevens, however , admitted that only one copy was used , being circulated at different
times by Freeman and himself.
Stevens further testified that at about 2:30 p .m. on the day of his discharge he was,
in the "bathroom" and I had my sheet with me that I used to get initials from various.
employees"; that:
Right after I came in, Freddy Quintana came in. I started to talk to him,
about the union, so forth and so on , the details about what they offered against
the conditions as they were in the plant. I asked him to sign this slip of
paper . In other words, committing himself as far as what he thought about
the union and that he would join subsequently if the union managed to get in.
According to Stevens "I had collected quite a few names on it already." After
talking to Quintana , according to Stevens, he folded the paper into a square, gave
it to Quintana who held it against the wall, and "He put his initial on the paper."
To the Trial Examiner, this whole proceeding seems to have been less than a
useless and futile gesture . Quintana, on direct examination , admitted:
Q. During the course of your employment with Tetrad, did you ever become
a dues-paying member of the Union?
A. No.
Q. You did sign a union application card?
A. Yes, I did.
Q. Did you subsequently sign a petition that Mr . Stevens, Frank Stevens,
was passing around? [Emphasis supplied.]
A. Yes, I did.
The Trial Examiner uses the term "admitted" to describe Quintana's testimony.
As can be readily seen the witness merely agreed that he signed the card and the
"petition."
Why did Stevens seek the initial and obtain the signature to an independently
passed "petition" from an employee who had already made application for member-
ship in the Union?
The Trial Examiner is also mindful of Stevens' testimony that at the time he
solicited Quintana , he (Stevens ) "had collected quite a few names on it already."
As hereinabove noted, the document admitted as the one in question bears a total
of 16 names, Stevens' being number 8. Quintana's is number 11. The document
bears names , not initials . Be that as it may, Stevens further testified that "Quintana
put his initial on the paper . Just as he finished , Mr. Goudie walked in." He
continued:
These incidents happened almost simultaneously . As he walked in, Mr.
Quintana was just taking his hand down from signing and he had walked past
Goudie. As Mr. Quintana passed him, John Goudie stopped . He looked at
me and he said
* * * * * * *
"You will hear about this later ," and then he walked out.
According to Stevens , the foreman in making this threat spoke "louder than he
usually talked." While Goudie was in the room according to Stevens, he (Stevens)
stood partly blocking the door, he and Goudie being partly in the door when Quintana
went out. He testified on cross-examination:
Q. You said that Mr. Quintana walked out as Mr. Goudie walked in. Is the
door large enough to accommodate two people at one time?
THE TETRAD COMPANY, INC. 471
A. No. He can squeeze by. It is no problem.
Quintana testified as to the above-related incident as follows:
Q. Could you tell us what happened, in your own words?
A. It was during the break period. I went into the bathroom and he was
there at the time.
Q. Who is "he"?
A. Frank Stevens was there at the time. He asked me to read the slip. So I
started reading the slip and he started explaining to me what it is all about.
He asked me if I wanted to sign it, so I signed it. Just when I started signing
my last name, John Goudie came in. Just as I put the "a" in my last name,
I walked out. He was already in the bathroom.
Q. Did anything else occur? Did you hear anything said?
A. No. I just walked out. I didn't hear anything said.
That Quintana did not hear the threatening remark allegedly made by Goudie
while the three men were in the same room and the foreman was talking in an
unusually loud tone of voice remained an unexplained singularity.
Goudie did not testify to the "bathroom" incident, hence it may be said to be
uncontradicted; however, in the opinion of the Trial Examiner, the testimony of
both Stevens and Quintana to the alleged incident furnishes sufficient contradiction.
Stevens' testimony as to the "petition" is wholly incredible from any realistic point
of view, his testimony as to his use of the telephone as "buttressed" by Quintana is
not convincing.
The burden of proof that Stevens was discriminatorily discharged for reasons other
than those advanced by the Respondent rests on the General Counsel. On all the
evidence considered as a whole and from his observation of the witnesses, the Trial
Examiner is convinced and finds that the General Counsel did not sustain his burden
of proof and will therefore recommend that the complaint be dismissed insofar as
it alleges that the Respondent discriminatorily discharged Frank Stevens, Jr.
2. William Freeman
Joseph Vicinanza, the Union's representative, testified that on February 28, 1958,5
he distributed leaflets in front of the Respondent's plant, from 7:30 until 8:30 a.m.
Vicinanza further testified that while he was passing out the leaflets, William
Freeman stopped and talked with him for "maybe five to ten minutes." According
to Vicinanza, Freeman then entered the plant and:
As he opened the door and walked in, he called out over his shoulder that
we will have the union in here within three weeks. [Emphasis supplied.]
On cross-examination Vicinanza testified this was the only time Freeman re-
mained to talk to him "for any length of time" and that during the time he distri-
buted literature at the Respondent's plant, no other person exchanged more than "a
couple of words" with him.
Vicinanza further testified that as Freeman went into the plant, he (Vicinanza)
observed a man standing inside the door, the man being 6 feet away from him and
standing in front of a partition wall against which the door swung when opened.
The Union's representative was careful to point out that he made no claim to
knowing the man he thus observed but testified "I was told it was Mr. DiMarco (the
Respondent's shop foreman) later."
Of course Vicinanza's testimony on this point can at best mean that on a day, the
date of which he was given, he spoke to Freeman, some time in the morning as he
was passing literature, and that when Freeman entered the plant he called back to
him, Vicinanza at the same time seeing a man, whose identity was unknown to him,
standing in the entrance way inside the plant.
William Freeman testified that on the morning of February 28, he spoke to
Vicinanza in front of the plant for "more than ten minutes," then entered the plant
at "8:10 or something like that," continuing:
5 The Trial Examiner most point out that the date was established in the following
manner :
Q. (By General. Counsel.) I would like you to think of the morning of February
28th, which is a Friday.
However, the Trial Examiner is convinced that this manner of questioning (which occurred
on several occasions) was not deliberate impropriety but merely showed inexperience on
the part of the General Counsel's representative who throughout the hearing impressed
the Trial Examiner as being entirely ethical and a credit to his chosen profession.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was going into the shop . I opened the door and there was Mr. Marcus there,
but before I seen him, I called back to Joe, who was handing me a pamphlet
as I was going in, and told him, "I would get you in in about a week or so."
The General Counsel promptly "amended " Freeman 's testimony as follows:
Q. (By Mr. Haemmel .) You say Mr. Marcus was standing there?
A. Yes.
Q. This is Mr. Marcus?
A. Mr. DiMarco, Joe DiMarco.
Freeman testified that DiMarco was "right at the door" when it was opened; that
Vicinanza was about 3 feet away; that he stood "partly in and partly" out of the
door; that DiMarco stood beside him and that then:
I hollered back to him.
He further testified:
TRIAL EXAMINER: How far was he when you hollered back to him?
The WITNESS: He was right at the door.
TRIAL EXAMINER: How far from you?
The WITNESS: Just a little bit farther than you are.
TRIAL EXAMINER : About three or four feet?
The WITNESS: Yes.
Freeman testified that while he called back to Vicinanza he (Freeman ) held the
door open and that DiMarco "didn 't open his mouth."
Albert Puente testified with respect to the above -related story, the opening gambit
being a question framed as follows:
Q. (By Mr. Haemmel. ) I will direct your attention to the morning of
Friday, February 28th, 1958, Mr. Puente . Did you work that day?
that at about 7:45 a.m. he entered the plant passing Vicinanza who was handing
out leaflets , to whom he merely said "Hello"; that Freeman "was in the neighbor-
hood," but quickly agreed that Freeman "was talking to Mr. Vicinanza"; that as he
went into the plant he observed Foreman DiMarco "a couple of feet inside the
door"; that the door was open; "that there was a clip" on the door to hold it open,
he was definite on cross-examination that he saw DiMarco in the doorway on
February 28:
Because Joe was reading a union pamphlet , because the man outside had given
him a union pamphlet . That is why I noticed it.
Although Puente, as will appear later, in testifying as to his own discharge had
considerable difficulty with dates, testified he could not recall dates, testified in such
fashion as to dates pertinent to his discharge that it was pointed out to him that there
is no June 31 but he remained certain as to February 28, because "I remember that
day." Puente testified:
TRIAL EXAMINER : Are you sure it was the 28th?
The WITNESS: I am very positive it was the 28th.
TRIAL EXAMINER : What else do you remember happened on the 28th?
The WITNESS : I can't recall.
It seems strange that even under the stress of questioning by the Trial Examiner
the witness did not recall that February 28 was the day his fellow "committee
member," with whom he testified he was actively engaged in organizing the plant,
was allegedly discriminatorily discharged.
Considering that the Union 's representative vigorously "disaffiliated" himself
from any claim that he saw DiMarco in the doorway; that both Vicinanza and
Freeman testified that the door was opened by Freeman while Puente testified it
was held open by a clip ; that Puente according to his testimony entered the plant
at 7:45, while Freeman testified he entered at 8:10, immediately after a 10-minute
conversation with Vicinanza , it may well be that this fully accounts for the fact
that Puente did not hear Freeman "holler" or it may be because his knowledge
is based on information disclosed as follows:
TRIAL EXAMINER : Do you remember clearly everything that happened?
The WITNESS: Yes, I do. I would like to explain why.
TRIAL EXAMINER: Tell me why you remember.
The WITNESS : Because we were discussing it and somebody said that that
crazy bastard Freeman goes out and yells that he is going to get the union in.
TRIAL EXAMINER : Did you hear him yell that?
THE TETRAD COMPANY, INC. 473
The WITNESS: No, I didn't.
TRIAL EXAMINER: You are merely testifying what you heard somebody tell
you?
The WITNESS: That is right.
It would seem that the account of the morning's conversation between the Union's
representative and the discharged employee hardly serves as a foundation of prior
knowledge of Freeman's alleged union activity by the Respondent upon which to
build an allegation of discriminatory discharge.
As hereinbefore found in connection with Stevens' alleged discriminatory dis-
charge, Freeman testified that he was very active in behalf of the Union; that
(apparently without the knowledge of the Union's official representative) he person-
ally prepared a "petition" which was circulated by him and at times by Stevens,
there being but one copy. Freeman described the petition
We had a little piece of paper with names of people that wanted to be in the
union. We had on it guys that wanted to change the things that were going on
around here. They wanted to see different changes.
Freeman testified he circulated the document "about four weeks." It is of interest
(as has been found herein) that the "petition" bears a total of 14 signatures other
than that of Freeman and Stevens, hardly an impressive showing after 4 weeks.
Puente, whose testimony regarding the February 28 conversation between
Vicinanza and Freeman has been related herein also testified that during "the first
or second week in February [1958]" (not being able to fix the time more accurately
because "I can't remember the dates") he observed the activities of Freeman and
Stevens and said that:
They had a piece of paper or pad and they were soliciting people, signing up
the pad for the union.
Neither Stevens nor Freeman testified to using a "pad," neither does their account
of their activity conform to Puente's description which was that it took place:
In the men's room, and at times when the men would sit down at their machines.
The machines were off and they would come over and sit down and talk to them.
Puente further testified:
Q. What about prior [to Freeman's discharge] to that time?
A. Prior to that they had cards. They were signing up men with cards.
I saw them talking to people. Both of them would come up to a person and
they would talk to him for a short while and then one would stay and talk
and the other one would talk and walk away and then talk to someone else.
Freeman, however, testified:
Q. (By Mr. Haemmel.) Was there an occasion when Mr. John Goudie saw
you with this instrument?
A. Not me. I am quite sure Mr. Goudie never had seen me with it.
Mr. HAEMMEL: No further questions.
Goudie is the Respondent's shop foreman who discharged Freeman.
Returning to the alleged incident occurring the morning of February 28, 1958,
above discussed; Joseph DiMarco, the Respondent's shop foreman, testified he re-
called "no incident concerning Mr. Freeman" as set forth in Freeman's testimony
and the "supporting evidence" to it, occurring on February 28.
DiMarco, Goudie, the foreman who actually discharged Freeman, and Morton
Marcus, the Respondent's president, all denied having any knowledge of activity on
behalf of the Charging Party by Freeman prior to Freeman's discharge.
From a careful study of the testimony of Freeman, Vicinanza, and Puente, as well
as his observation of the witnesses while on the stand, the Trial Examiner is fully
convinced that the account of a conversation between Vicinanza and Freeman on
February 28, 1958, followed by Freeman calling loudly to Vicinanza while stand-
ing virtually beside Foreman DiMarco that "I [Freeman] would get you [the Union]
in in about a week or so-' relates to an incident existing only in the imagination of
the General Counsel's witnesses. The Trial Examiner is further convinced on the
entire record considered as a whole that prior to Freeman's discharge the Respond-
ent had no knowledge of any activity by Freeman on behalf of the Union.
Freeman testified further that at 5:30 p.m., February 28, he was called to the
office of Foreman Goudie; that upon his arrival:
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He told me, "Bill, this thing of attendance, I got to let you go." That is all he
said, and there was no further comment, because I rushed right out myself. I
punched the card and came home.
Q. You didn't argue with him and nothing was said?
A. No.
I oreman Goudie testified he discharged Freeman for the sole reason that "he
never called in when he was [to be] out," this conduct creating a bad working situa-
tion in the plant because Freeman who was a grinder worked together with another
grinder as a team and an unarranged-for absence of one team member disrupted
production.
According to Goudie, during Freeman's employment with the Respondent
(March 1957-April 28, 1958) he had been absent 10 or 12 times and had not called
in his intention to be absent at any time. Goudie testified he had spoken to Free-
man about this conduct "2 or 3 times."
Joseph Como, the assistant shop foreman, testified that from September to
December 1957, Freeman worked under his supervision on the night shift; that
during this period he stayed away two or three times without previous notification
to the Respondent; that each time he spoke to Freeman regarding this conduct; that
after December 1957, Freeman and he were both on day shift and that Freeman
from then until his discharge was also absent without giving any previous notification
to the Respondent; that he reported the various absences to Goudie, but "most of
the time it was not necessary" as Goudie was in the shop "overlapping" the two
shifts.
It is clear that Freeman was employed by the Respondent under the "Veterans'
Administration On-the-Job-Training Program." 6 Under this program the Respond-
ent paid wages to Freeman who also drew subsistence pay from the Veterans' Ad-
ministration. The Respondent was required to file a report form monthly certifying
to attendance and commenting on progress and conduct. After 21/2 days of ab-
sence the Veterans' Administration made a deduction from the allowed compensa-
tion. Freeman testified without contradiction that no deduction was made from
his subsistence allowance by the Veterans' Administration.
The forms filled by the Respondent and signed by Freeman 7 carry the following:
In this respect it is emphasized that the monthly rate of education and training
allowance is limited by law to the difference between the compensation to be
paid the veteran each month in accordance with his approved training program
and the $310 statutory ceiling.
Freeman testified that at the time he was discharged he was being paid $50.50
weekly by the Respondent.
It may well be that because of wholly patriotic considerations the Respondent
was constrained to regard the derelictions of Veterans' Administration trainee
grinders with less severity than those of its nonveteran trainee employees.
Upon the entire record, his observation of the witnesses, and his finding that the
Respondent had no knowledge of any activity on behalf of the Charging Party by
Freeman, the Trial Examiner finds that the General Counsel has not sustained his
burden of proof with respect to the allegation that the Respondent on February 28,
1958, discriminatorily discharged William Freeman and will therefore recommend
that the complaint be dismissed insofar as it so alleges.
B. Interference, restraint, and coercion
The complaint's allegations of independent 8(a)(1) (interference, restraint, and
coercion) are fully set out in the opening statement of this report. They fall into
two categories, speeches made to employees by the Respondent's president and
specific threats made by the same official to employees Albert Puente and Andrew
Kruck. None of these acts are alleged to have occurred prior to the discharge of
Stevens and Freeman.
1. Speeches delivered to employees by President Marcus
Frederick Quintana testified that on April 18, 1958, the Respondent 's employees
were called to assemble in the grinding room to hear a speech by President Marcus.
As to Marcus' address Quintana, testified:
Q. Can you relate to us, to the best of your knowledge, what Mr. Marcus
said at that time?
Stevens was employed under the same program.
v General Counsel's Exhibit No. 6.
THE TETRAD COMPANY, INC. 475
A. What I remember was that he said that if the union came in, it would be
worse. They would cut down on our overtime. That is all I remember now.
Andrew Kruck was asked "did you have occasion to be present on April 18th,
when Mr. Marcus delivered a speech regarding the union?" Kruck answered that
he was present and, regarding Marcus' speech, testified:
He remarked about the fact that he understood that a majority of the people
in the shop wanted a union. He couldn't understand why, because he felt that
he was treating them fair enough, that they wouldn't be able to get any more
money, and that they had security. He pointed out the fact that if you were
a good worker you didn't have to worry about losing your job, or anything
like that.
and something to the effect that if a union did get in , or something like that,
he didn't have to negotiate, that he didn't have to have a union there, he could
close the shop, or he could run the shop with other people there, and something
about hospitalization, I think. That's about all.
After Kruck had exhausted his recollection, his memory was prodded and he
recalled that Marcus stated that the employees were not watched as carefully as they
would be "if a union did get in the shop"; that "overtime would be knocked off
because they would bring more men into the shop"; and that if they tried to get a
union in or got it in "they would be out on the street."
He further testified that as he spoke Marcus held some papers in his hand but
did not tell his audience what they were.
Kruck testified that in all Marcus delivered five or six speeches; that in one, he
stated that he had met the Union's men at the National Labor Relations Board and
referred to the Union's representatives as:
Cockroaches and communists. I don't know it word for word. It is very vague.
Albert Puente, who was the first witness called to testify with respect to the
speeches made by President Marcus first "established" the date of the first such
speech in the following manner:
Q. (By Mr. Haemmel.) I would like you to think forward into April.
Did Mr. Marcus have occasion to deliver a speech in reference to the union
on April 18th, 1958?
A. Yes, he did.
The Respondent promptly challenged the form of the question; the Trial Examiner
agreed that it seemed leading, after which Puente testified that on April 18, which
apparently was the first of a series of talks by Marcus, all the employees were
assembled in the grinding room by their foremen, the power being shut off before the
audience was assembled; however, Puente's memory did not serve to recall the hour
of the affair, his best recollection being that "it was either in the morning or the
afternoon ." Regarding Marcus' remarks , Puente testified:
He said he wouldn't negotiate with the union; that the people that were in favor
of the union would be out in the street with picket signs; he had enough people
in the shop that would work for him; he would send his work through the Post
Office Department , make his deliveries through the Post Office Department.
Q. Can you add anything to that, Mr. Puente?
A. (No response.)
After it appeared that the witness had exhausted his recollection, he was prodded
into the following testimony:
He spoke about the pamphlet that was distributed . He spoke about the
Teamsters and the I.U.E. as being communist , as being racketeers.
Q. Can you as close as possible recall what he did say?
A. His exact words, I don't know. He said he would not negotiate with a
union , and nobody can tell him what to do.
This witness was asked if Marcus "had any of these union pamphlets in his hand"
as he spoke , the answer by Puente being that he could not "positively identify them
as union pamphlets"; testified that Marcus "addressed his remarks" to the documents
he held , but when asked "Do you recall what he said ," Puente did not answer.
However , he rather promptly recalled:
Well, he spoke about nobody is putting a quota on anybody's production; that
nobody tells you how many times you can go to the bathroom ; and he men-
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned that if a union did get into the shop, things would be changed. He
mentioned the charge slips that he had, and that all he needed was one charge
against the individual and that was enough for a dismissal.
that "earlier in the day" he saw a "book of charges" on a foreman's bench, this
being the first time he saw it, and that he "imagined" Marcus was referring to this
book of charges; however he testified:
TRIAL EXAMINER: You thought he meant the book?
The WITNESS: I imagine that is what he was referring to.
TRIAL EXAMINER: But you didn't hear him say anything about it?
The WITNESS: No.
Puente was asked if Marcus "made mention of William Freeman and Frank Stevens,
Jr.," and recalled that Marcus stated they were "fired for a damn good reason" and
"the union made an issue of it."
After his initial testimony and his recollections when refreshed by prompting,
Puente closed his testimony as to the April 18 speech as follows:
Q. Can you recall anything further about that speech at this time?
A. At this time .1 can't. I am a little confused.
Puente further testified that on June 18, 1958, a date he fixed by its being the time
"of the meeting between the company, the Union, and the National Labor Relations
Board, to set up a date for the election," President Marcus again addressed the
employees telling them:
Get this. The union would have you believe-get this word "government."
The union would have you believe that the N.L.R.B. is part of the government,
that they work close with the union,
that Marcus then made insulting remarks about the Union and its representative.
Morton Marcus, the Respondent's president, testified with respect to the meeting
and his speech which had been placed on April 18, 1958, as follows:
Well, I stated that I believe that the working conditions in our plant was good,
that the pay rate was fair, that the overtime situation as it was operating at
present and has been operating since the company was in business was a general
company policy, and that the general policy in most union shops was for a
minimum of overtime, and that this evidently was a practice, and I compared
this to our practice, and the experience I have had over ten years with this.
I believe that I had some literature distributed by the union and repudiated
some what I believe to be falsehoods in this literature and attempted to prove
that they were falsehoods.
With respect to his "repudiation" of the statements in the Union's literature,
Marcus testified that in one instance the Union had stated the Respondent's employees
"get less at Tetrad" as their seniority increased and that:
I offered at that time to reduce the salary of anyone who was an older employee
to increase his security if it was necessary.
He testified he pointed out that the Respondent's supervisory staff "had worked
themselves up from production workers."
As to a June 19 meeting and speech Marcus testified he said "essentially the
same things," and further testified that during one of his speeches (of which there
were about six) he may have mentioned the Board, either because it was referred
to in some of the Union's literature or because he "had been" to the Board's office;
that in one of his talks he referred to a union representative "who had stated he
knew all about our business."
Foreman Joseph DiMarco testified that Marcus addressed the Respondent's
employees "about half-a-dozen times," the first time "about the middle of April
1958," the last about July 1; that at the first of such occasions.
He [Marcus] expressed the conditions of the shop, how they were, and he com-
pared the wage scale with the immediate environment; he showed them that it
was higher than average; he also expressed the fact that no one was really
being bull-whipped or coerced or forced to do their normal day's work in an
unusual fashion; that they were free to talk in a reasonable state while working;
and nothing was done by the numbers, if I may use that expression.
He also stated that if we had a union here, there is no reason to doubt they
would be like those in the immediate environment that do have a union.
THE TETRAD COMPANY, INC. 477
Foreman Joseph Como testified that "around April 18th" in a talk to the
employees:
Mr. Marcus compared the shop, the Tetrad Company and the working condi-
tions with various other shops in the area. He discussed with the employees
such various things as shop security, advancement , wages, and a few other
things. He also compared the shop proper with other shops in the area, as I
told you before.
With respect to Marcus' speech on June 19, Como testified that Marcus spoke of
cartoons which had appeared in the Union's literature and "told the fellows he had
had this meeting with the National Labor Relations Board."
On cross-examination the General Counsel closely pressed the witness on the
8(a)(1) violations with respect to the speeches as set out in the complaint.
Como was asked what Marcus said regarding job security. The answer being
that all the witness recalled was: "He says your job is secure here as it is any place
else in the world."
Como was asked:
Did he say anything about what would happen to job security or with respect
to job security if the union secured a contract?
The witness answered:
No sir, he did not.
The General Counsel asked, "Did Mr. Marcus say anything about wages?" The
witness replied that he had, and when asked, "What?" replied, "He said that wages
were just as good if not better, than some or most of the others in the environment."
Como further testified:
Q. (Mr. Richman.) Did he say anything about environment?
A. If I am not mistaken, there was a slight point on advancement.
Q. What was it?
A. He told the fellows that all our foremen here are employees of the shop
and always had been employees of the shop, that every guy here has been
through the machines and knows his way around the shop.
The witness could not remember if Marcus mentioned the Union coming into the
plant during his April 18 speech.
On cross-examination with respect to the June 19 meeting, Como testified:
That was the day that Mr. Marcus come back into the shop and he told the
men that he had been down to the National Labor Relations Board at a hearing
of some kind. He had quite a talk with the boys. During the talk he mentioned
that he did not have to negotiate with any union, so long as it was not in the shop.
Foreman John Goudie testified that on April 18, 1958, or "thereabouts," Marcus
in a talk to the Respondent's employees:
He just went over the shop in general , what we had there, the overtime, that
it was no sweat shop, or anything like that. Just general things like that.
Goudie testified that Marcus stated the shop "had a good amount of overtime"
and also stated "that everybody was making a buck."
On cross-examination Goudie questioned as to Marcus' April speech testified:
Q. Did he make any mention of the fact that conditions would be changed?
A. Not that I can remember.
Q. Was any mention made of the union?
A. The only thing that I think was mentioned is that he didn't have to bar-
gain with it, because it wasn't in there yet.
Conclusions as to Speeches by President Marcus
The testimony adduced by the General Counsel, in the opinion of the Trial Ex-
aminer, does not in any manner sustain the 8 (a) (1) allegations of the complaint,
based on the speeches delivered by President Marcus in April through June 1958.
Quintana's testimony that all he "remembered" was that Marcus stated "that if
the union came in, it would be worse. They would cut down our overtime" when
considered with Kruck's testimony, which came after Kruck's recollection was ex-
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hausted and refreshed, that Marcus stated "if a union did get in the shop-over-
time would be knocked off because they [clearly the Union] would bring more men
into the shop," does not tend to sustain but refute the allegations of the complaint.
When Puente, who recalled that Marcus spoke on April 18, but could not recall
if the speech was delivered in the morning or the afternoon, testified that Marcus
stated "he wouldn't negotiate with the union" and that those favoring the Union
"would be out on the street with picket signs" and when he further testified in detail
as to "charge sheets" which Marcus "held up" as he spoke but which Puente could
not see but "imagined" were referred to by the speaker, surely the General Counsel
did not receive support for the allegations of illegal threats of discharge and loss
of benefits despite the eager willingness of the witness.
Under the circumstances it seems hardly necessary to refer to the testimony of
Marcus, DiMarco, Como, and Goudie with respect to the speeches.
Como's testimony that Marcus told the employees "he did not have to negotiate
with any union, so long as it was not in the shop," as well as Goudie's testimony
that Marcus stated "he didn't have to bargain with the union because it wasn't in
there yet," have the ring of authenticity.
Although the testimony of the three foremen, as to the speeches, was in general
terms when corroborating Marcus, on the entire record and from his observation of
the witnesses, the Trial Examiner credits their testimony where in conflicts with
that of Quintana, Kruck, and Puente.
The Trial Examiner therefore finds that in speeches to employees delivered some
time between April and June 1958, inclusive, by Morton Marcus the Respondent
did not engage in conduct violative of the Act as Marcus merely expressed his
opinion and made statements free of threats of reprisal or promise of benefit based
on the employees' attitude toward a union, whose formation the Respondent clearly
indicated through Marcus, in strictly legal terms, that it did not desire.
2. Additional 8(a)(1) allegations
Puente testified that he was called to President Marcus' office twice in June 1958.
He set the date of the first occasion as June 29, the second as June 31.
The General Counsel promptly sought to correct the testimony as follows: 8
Q. (By Mr. Haemmel.) There is no June 31st. Can you make another
estimate as to when that occurred?
I might also point out to you that June 29th is on a Sunday.
A. It should be on the 30th. It would be June 30th, the second one.
Q. And the first one?
A. It was either a Thursday or a Friday.
According to Puente, upon entering the office he found there Marcus, Goudie,
DiMarco, and Janet Taylor, also a company official; that DiMarco told him to tell
Marcus "what had happened outside in the street" during an argument between
Puente and Harasco, another employee; that Marcus asked how Puente felt about
the Union, how he intended to vote in a forthcoming representation election, ac-
cused him of being a professional union organizer and then:
He said he was going to frame me. He says, "I can't fire you for your work."
that:
He said he would get boxes and put the rejects into the boxes . He had some
on the desk . He would put my number on each individual box and say that I
sent these out to the different companies, deliberately sabotaging the plant.
He further testified that Marcus stated:
He was going to frame me for stealing , sabotaging , selling information to com-
petitors , to the union . That is about it. Those are the different charges he
would frame me on.
According to Puente after similar statements and various insulting remarks Marcus
threatened him with bodily injury if not death. He testified:
Q. (By Mr. Haemmel .) Was there any mention of the word "hanging?"
A. Yes. He said he should take me into the grinding department and hang
8 As has been pointed out in this report, Puente had no hesitancy in fixing the Freeman-
Vicinanza incident as February 28, and the date of Marcus' first speech as April 18.
THE TETRAD COMPANY, INC . 479
me, take a rope and hang me. He also said he would take me out in the street
and break me up in little bits.
According to Puente during all this "I folded my arms. I told him I would fold
my arms. I would listen, but I wouldn't answer any more."
Puente further testified that he was again called into Marcus' office 3 days later,
that the same company officials were present and that Marcus again berated him.
He testified:
He says he couldn't fire me for my union activities and he couldn't fire me for
my work, but he would frame me. He says, "Let's see what I can frame you
for. For stealing, sending out bad pieces to customers, selling information to
Jeannie Axelrod, Clear Tone, and Walter Roach."
Q. Continue.
A. That he would have Leroy Engleman beat up. He said that he could
have Leroy Engleman beat up and that he would come around every hour on
the hour. He says that I better pray to God that Leroy Engleman doesn't get
hurt, that he is going to worry me every minute of the day, that I should worry
and see what he is going to do to me.
Puente admitted that Engleman was the foreman involved in the Harasco incident
about which he was questioned during his first interview and that he had told the
Union's representative to "Lam it into him (Engleman) good, too, because he is
one of the two rats that caused the guy to get fired." President Marcus testified that
"over a period of two-and-a-half months" the Respondent's products (diamond
phonograph needles) valued at $60,000 were rejected by one customer alone; that
an investigation was begun about 6 weeks before June 27, 1958, and "about a week
or so before June 27th" the Respondent was convinced that Puente was the final
inspector responsible.
Marcus further testified he questioned Puente, first, regarding a threat made to
Foreman Engleman but that Puente would not answer, merely sat silent with his
arms folded; that he next asked Puente to explain the fact that material inspected
and then reinspected by Puente was rejected but that:
Mr. Puente again folded his arms and said he refused to answer me,
that he continued asking similar questions but received no answers, that:
At this particular point I asked Mr. Puente if he had ever passed information
concerning the number of units shipped to any particular company or any
company to Mrs. Axelrod.
Marcus testified that on June 30, 1958, Puente was again called to the office at
which time:
I asked Mr. Puente several times to explain the abnormal amount of rejects that
was being sent out to the Sonotone Corporation. I asked him, too, once again
about the situation with Mrs. Axelrod, whether he had passed any information
to her.
This is essentially a repeat of the first. The answers to both questions Mr.
Puente refused to give.
Marcus further testified:
TRIAL EXAMINER: Before you leave the meetings, did you during the course
of the June 27th meeting in your office with Mr. Puente that we have been
talking about say to him substantially, or in effect, that you could not fire him
for union activity because that was against the law, or you could not fire him
because of bad work, because his work was good, but that you could frame
him and outline how you were going to frame him?
The WITNESS: I did not.
TRIAL EXAMINER: Did you make the statements, or substantially those
statements, at the June 30th meeting at your office?
The WITNESS: I did not.
Foreman Joseph DiMarco testified that he was present at the two above-
mentioned interviews with Puente; that in the first interview Puente was asked about
a threat made to Leroy Engleman; that Marcus questioned Puente regarding
inspection of material and passing confidential information but that Puente did not
answer any question put to him, merely sitting silent with his arms folded.
With respect to the second interview DiMarco testified:
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Marcus specifically asked Mr. Puente once again if he was purposely
passing work in bad condition. No answer.
DiMarco specifically denied seriatim Puente's testimony with respect to the various
statements attributed to Marcus by Puente and further testified:
Q. Was there any mention made of the union in either of these two meetings?
A. No, I heard nothing pertaining to the union.
Foreman Goudie testified, with respect to the interviewing of Puente in Marcus'
office, that Marcus did not accuse Puente of sending out bad material or of divulging
the Respondent's trade information but merely "talked to him" about these matters
but that Puente did not say anything. Goudie further testified:
TRIAL EXAMINER: What did he say to him?
The WITNESS: The only direct question I can remember is the one he
asked him as to what he meant by the Engleman deal, about what he meant by
"get that guy."
Conclusion as to Marcus' Interviews of Puente
The Trial Examiner is asked to credit testimony to the effect that a seemingly
normal individual, who at the same time was an employer not overjoyed by the
advent of a union, called an employee to his office, first asked about an admitted
altercation and threat in which the employee was involved, then asked how the
employee intended to vote in a forthcoming representation election, then remarked
to the employee "you are a professional union organizer" and then with the scene
so set, in the presence of plant foremen as audience proceeded to abuse the employee
in vile, insulting and extravagant language, telling him that although he could not
discharge him because of his union activity he intended to "frame" him by accusing
him of various disloyal acts of sabotage and carefully outlined his plan and modus
operandi by which the employee was to be destroyed and the Employer rid of a
union adherent, self-proclaimed as the strongest and most effective in the plant,
that after the disclosure the Employer apparently carried away by his own ferocity
threatened his victim with bodily harm and, at least by inference (saved only by the
use of the word "should") with death by hanging in the plant, presumably as an
example to other union-minded employees.
The Employer's testimony is denied by the Employer and members of the
"audience."
The Trial Examiner, as he recalls that the employee in question (Albert Puente)
was cast by the General Counsel in the role of "Star Witness" to most of the alleged
unfair labor practices by the Respondent and recalls how he failed to measure up
to his assigned role, proving himself, in the considered opinion of the Trial
Examiner, an unreliable witness, cannot credit Puente's account of the two June
interviews.
Upon the entire record, the evidence considered as a whole, and his observation
of the witnesses, the Trial Examiner credits the testimony of Marcus, DiMarco,
and Goudie as to the language used and statements made by Marcus during the two
interviews of Puente in Marcus' office sometime in June 1958, shortly before Puente's
final discharge hereinafter discussed.9
Andrew Kruck, who voluntarily quit the Respondent in July 1958, after "almost
3 years" employment, apparently questioned to establish the union activity of
Puente, Stevens, and Freeman, testified that neither Stevens nor Freeman discussed
the Union with him and further that he did not observe either of them "approaching
anybody else," however, he testified "Al Puente and myself discussed it several
times," amplified as follows:
Q. In regards to Mr. Puente talking with you, in reference to the premises,
where did that occur?
A. Before work; lunch time; maybe at night, a telephone call.
Kruck made no claim of having actively aided in the Union's organizational effort.
Kruck further testified he was called to Marcus' office on two occasions, the
first "six months before" the Union's organizational effort began; the second about
July 1, 1958. As to this latter occasion Kruck testified he was called in by Marcus
9 However, the testimony of President Marcus with respect to the interviews raised
and left a strong element of doubt which although it does not go to the language used by
Marcus does affect his general standing as a witness.
THE TETRAD COMPANY, INC. 481
who talked "of some of the things that he had said in his speeches; also remarks
about Mr. Puente." He testified:
Q. Can you stop and tell us what it was he said about his speeches?
A. That the unions weren't any good, that they were a bunch of racketeers,
and things of that nature.
He further testified:
Q. You said he mentioned Mr. Puente. What did he say about Mr. Puente?
A. He said something about Mr. Puente. being the rat or the snake that has.
been passing on information to his competitors, and he knows that because he:
had me taken out of the inspection department so that he could track down:
definitely who the person was.
On cross-examination Kruck testified, Marcus, during the above-mentioned office
meeting, spoke of the "tremendous number of rejects," and the fact that "some
person" was passing "Tetrad's trade secrets" to competitors. His testimony with
respect to his meeting with Marcus ended:
Q. (By Mr. Simon.) During this entire meeting which you say lasted two
hours, if I understood your testimony correctly, you state that at no time did
he discuss with you your feelings towards the union or the election?
A. No.
Upon the entire record and from his observation of the witnesses the Trial
Examiner finds that the 8(a) (1) allegations of the complaint have not. been sustained
and it will be recommended therefore that the complaint be dismissed insofar as it
alleges that the Respondent engaged in independent interference, restraint, and
coercion.
•C. The discharge of Albert Puente
Puente testified that on July 1, 1958, at about 2:45 p.m. when he returned to his
work following a break or rest period President Marcus came to his place of
work and according to Puente:
I no sooner sat down and Mr. Marcus demanded that I get the button off. I
told him that I can wear anything on my clothing, that it was not against the
law to wear anything on my clothes. He told me the button constitutes elec-
tioneering, get out.
Puente testified he was wearing a button or badge bearing the legend AFL-IUE-
CIO. The letters were red and blue, the background white, the button being 4 inches
in diameter. According to Puente.
I says, "What do you mean by get out?" He says, "Get out of the shop. You
are wearing a button. You are electioneering in the shop." I says, "What does
that mean?" I says, "Does that mean I am fired?" He says, "Yes, you are fired."
Kruck testified that he worked beside Puente, that they had just returned from
the break, and:
Mr. Marcus came in and he says to Al, "There will be no electioneering
in here. Take that button off. Take that off while you are in here."
According to Kruck
He [Puente] said, "I am sorry, I can't."
Mr. Marcus said, "Get out."
Al said, "Does that mean I am fired?"
He says, "That's right."
Then he turned to me and said, "Did you hear that?"
I said, "Yes, I heard it."
TRIAL EXAMINER: Who said that to you?
The WITNESS: Al [Puente] said that to me, "Did you hear that?"
Marcus testified that he discharged Puente; that on the day Puente was discharged
Marcus came upon him in three departments "in which he did not belong," the first
time being "before lunch period" when he observed Puente "talking to somebody
leaning through the doorway in. the radius department."
I asked him what he was doing there and I told him that I didn't want to
see him electioneering in the place, and that if he wanted to do this he could do
it on his own time and to get back to his work.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Marcus, Puente returned to his work, and "shortly after lunch" he
found Puente in a section of the inspection department in which he did not work
whereupon, "Once again I told him the same thing," and that Puente returned to his
work.
The third and final occasion according to Marcus was "later in the afternoon,"
but admitted by him on cross-examination to be "after the afternoon break," at
which time:
I came through the inspection from the opposite door. He was talking to
someone in there. I don't know the names of the people. I told him this is
the third time I had warned him about this and to go back to work, at which
point Mr. Puente-and at this point Goudie came along, too-told me he was
protected by the National Labor Relations Board and he had every right in the
world to hand out literature and buttons.
I told him I was tired of talking to him, that it was third time today, and to
go out and punch out, and he was discharged.
On questions put by the Trial Examiner, Marcus testified Puente was discharged
"Directly for not being at his work" and because he passed faulty material as an
inspector. Marcus further testified, on examination by the Trial Examiner, that on
June 27 and 30 he was satisfied that Puente was responsible for passing defective
material valued at 50 to 60 thousand dollars.
TRIAL EXAMINER: You waited until Puente stayed away from his work, was
in the wrong part of the building, and that was the motivating thing that caused
you to discharge him?
The WITNESS: This is not correct. The decision to discharge a man for
workmanship which is not proper requires a little investigation. .. .
He testified further in explanation that: "I won't fire a man merely because there
is a possibility of a light being bad or a background being bad."
The Trial Examiner is convinced and finds that the charges of faulty inspection
or improper conduct did not enter into Puente's discharge.
The highly objective view which Marcus, according to his testimony, took of
workmanship which seriously affected the Respondent's business is not accepted by
the Trial Examiner as a reason Puente was not terminated on June 27-30, or as a
reason for his discharge on July 1, 1958.
Foreman Goudie testified that immediately preceding Puente's discharge he
walked through the inspection department and passed Marcus and Puente who
"were talking":
Mr. Puente was saying it was okay for him to hand out pamphlets and talk
to the guys. He was protected by the NLRB. Mr. Marcus was telling him
that he could do that, but not on his time, and then he was fired.
Considering the character of all the testimony of Albert Puente, the Trial Examiner
cannot in good conscience credit his version of the circumstances surrounding his
discharge although it is corroborated by Kruck and therefore accepts the testimony
of Marcus and Goudie as being the more accurate version thereof.
The Trial Examiner therefore finds that Albert Puente was discharged on July 1,
1958, by the Respondent for the reason that he had been absent from his place of
work on three different occasions during work periods on that day, the Respondent
believing that Puente so absented himself from his work to "electioneer" for the
Union.
Inasmuch as it is well established that an employer is not required to furnish the
facilities nor the time necessary for its employees to engage in otherwise legitimate
activities on behalf of union organization , the Respondent under the circumstances
herein had the clear right to act as it did.
Final Conclusions
The Trial Examiner is convinced and finds on the entire record that the General
Counsel has not sustained his burden of proof and will therefore recommend that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of the Respondent, The Tetrad Company, Inc., occur in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]