The Welch Scientific Co.

National Labor Relations Board - Board Decisions

May 7, 1964

146 N.L.R.B. 1451 (N.L.R.B. 1964)

THE WELCH SCIENTIFIC COMPANY 1451
aspect of the Institute's overall educational function. We conclude,
therefore, that the activities of the institute, including its research
program, are primarily educational rather than commercial in char-
acter, and we decline to assert jurisdiction herein. Accordingly, we
shall dismiss the petition .8
[The Board dismissed the petition.]
8 Trustees of Columbia University , supra; Lutheran Church, Missouri Synod, 109 NLRB
859; Sheltered Workshops of San Diego , Inc., supra ; Young Men's Christian Association
of Portland, Oregon, 146 NLRB 20; cf . Massachusetts Institute of Technology ( Lincoln
Laboratory ), 110 NLRB 1611; and California Institute of Technology, 102 NLRB 1402.
The Welch Scientific Company and Display Fixture, Smoking
Pipe, Plastics & Production Workers Union , Local 2682, United
Brotherhood of Carpenters & Joiners of America , AFL-CIO.
Case No. 2-CA-9476. May 7, 1964
DECISION AND ORDER
On January 27, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and is engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions with a supporting brief, and the Gen-
eral Counsel filed exceptions to the Recommended Order. The Re-
spondent also filed a brief in answer to the General Counsel's statement
of exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel 1 [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner with the following
modifications :
'The Respondent 's request for oral argument is denied as, In our opinion, the record,
including the exceptions and briefs , adequately presents the issues and the positions of
the parties.
2 We disavow , as unnecessary for the determination of the Issues herein, the Trial Ex-
aminer 's adverse characterizations of the Respondent 's contracts with Local 325.
146 NLRB No. 122.
1452 DECISIONS OF NATIONAL LABOR RELATICNS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board •hereby orders that the Respondent, The Welch
Scientific Company, New York, New York, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Display Fixture, S"nioking; Pipe,
Plastics & Production Workers Union, Local 2682, United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, or in. any other
labor organization, by discriminatorily discharging any of its em-
ployees or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of employment.
(b) Interrogating employees at the New York plant concerning
the employees' membership in the said labor organization in a manner
constituting interference, restraint, or coercion within the meaning of
Section 8 (a) (1) of the Act.
(c) Applying its collective-bargaining agreement with Local 325
of the Paper Makers Union to the New York plant.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of. their right to self-organization, to
form labor organizations, to join_or assist Display Fixture, Smoking
Pipe, Plastics & • Production Workers Union, Local 2682, United
.Brotherhood,of•Carpenters & Joiners of America, AFL-CIO, or any
.other. labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities.
for the purposes of collective bargaining or other mutual aid or pro
tection, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized by Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will.
effectuate the policies of the Act :
(a) Offer to Abraham Axelrod immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of the Trial Examin-
er's Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,..
and all other records necessary to determine the amount of backpay-
due under the terms of this Order.
THE WELCH SCIENTIFIC COMPANY 1453
(c) Post at its plant in New York, New York, copies of the attached
notice marked "Appendix." 3 Copies of said notice, to be furnished by
the Regional Director for the Second Region, shall, after being duly
signed by the Respondent's authorized representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken
to comply herewith.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there sliall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
-Relations Act, as amended, we hereby notify you that: ,
WE WILL NOT discourage. membership in Display Fixture,
Smoking Pipe, Plastics & Production Workers Union, Local
2682, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, or in any other labor organization, by discrimina-
torily discharging or refusing to reinstate any of our employees
or by discriminating in any manner in regard to the hire and
tenure of employment or. any term or condition of employment of
any of our employees.
. WE WILL offer Abraham Axelrod immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and will
make him whole for any loss of pay he may have suffered by rea-
son of the discrimination practiced against him.
WE WILL NOT apply our contract with Local 325 of the Paper
Makers Union to the employees of our New York plant.
WE WILL NOT interrogate. employees of our New York plant
concerning their membership in Display Fixture, Smoking Pipe,
Plastics & Production Workers Union, Local 2682, United
Brotherhood of Carpenters & Joiners of America, AFL-CIO.
WE WILL NOT in any other- manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self -organi-
zation, to form labor organizations, to join or assist Display Fix-
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture, Smoking Pipe, Plastics & Production Workers Union, Local
2682, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
any other concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as amended.
THE WELCH SCIENTIFIC COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify Abraham Axelrod if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on July 15 , and amended on August 29, 1963 , by Dis-
play Fixture , Smoking Pipe; Plastics & Production Workers Union , Local 2682,
United Brotherhood of Carpenters & Joiners of America , AFL-CIO, hereinafter
called the Union , the General Counsel of the National Labor Relations Board,
hereinafter called the General Counsel i and the Board , respectively , by the Regional
Director for the Second Region (New York , New York ), issued its complaint dated
August 30 , 1963, against The Welch Scientific Company, hereinafter called the
Respondent or Welch . The complaint alleged that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( a) (1) and ( 3) and Section 2(6) and (7) of the Labor Management Rela-
tions Act, 1947, as amended, herein called the Act . Copies of the charges , complaint,
and notice of hearing thereon were duly served upon the Union and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice , a hearing was held at New York, New York , on October 16, 17,
21, 22 , and 23, 1963 , inclusive , before Trial Examiner Thomas S. Wilson. All
parties appeared at the hearing , were represented by counsel or representative, and
were afforded full opportunity to be heard , to produce , examine , and cross-examine
2 This term specifically includes the attorney appearing for the General Counsel at the-
hearing.
THE WELCH SCIENTIFIC COMPANY 1455
witness, and to introduce evidence material and pertinent to the issue. All argument
at the close of the hearing was waived. Briefs were received from General Counsel
and Respondent on November 26, 1963.
Upon the entire record in the case, and from my observation of the witnesses, I
.make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
At all times material herein, The Welch Scientific Company has maintained
its principal office and place of business at 1515 Sedgwick Street, in the city of
Chicago, and the State of Illinois, a branch in the State of California, and a branch
at 331 East 38th Street, in the city and State of New York, herein called the New
York plant;' where it is, and has been at all times material herein, engaged in the
manufacture, sale, and distribution of educational and scientific apparatus, supplies,
and related products.
During the year 1962, which period is representative of its annual operations
generally, Respondent, in the course and conduct of its business, purchased and
caused to be transported and delivered to its various places of business, goods and
materials valued in excess of $50,000, of which goods and materials valued ' in excess
of $50,000 were transported and delivered to its places of business in interstate
commerce directly from States of the United States other than the State in which said
places of business are located.
During the year 1962, which period is representative of its annual operations gen-
erally, Respondent, in the course and conduct of its business operations , manufac-
tured, sold, and distributed at its places of business, products valued in excess of
$50,000 of which products valued in excess of $50,000 were shipped from places
of business in interstate commerce directly to the States of the United States other
than the State in which said places of business were located.
The complaint alleged, the answer admitted, and I find that Respondent is engaged
in commerce within the meaning of the Act.
IT. THE UNION INVOLVED
Display Fixture, Smoking Pipe, Plastics & Production Workers Union, Local 2682,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and Local
325 of the Paper Makers Union, are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The Welch Scientific Company came into existence in Chicago, Illinois, during
the 1880's.
In 1937, the very early days of the Wagner Act, Respondent and Local 325 of
the Paper Makers Union, hereinafter referred to as Local 325, entered into an "open
shop" collective-bargaining agreement covering all of Respondent's production and
maintenance employees. At this time Respondent had its only plant in Chicago.
This relationship has since been both continuous and harmonious. In fact, Richard
E. Welch, Jr., a nephew of the founder of Respondent and presently vice president
and treasurer thereof, could recall only one grievance having been filed by Local
325 in those 27 years and the present case is the only time Respondent has been
•before the Board on an unfair labor practice charge.
In 1941, Respondent negotiated a change in the preamble of its collective-bargain-
ing agreement with Local 325 which then, and since, has read: "This agreement .
by and between The Welch Scientific Company, of Chicago, Illinois, and its sub-
divisions and subsidiaries, hereinafter referred to as the Company, and [Local
325]. .." [Emphasis supplied.]
At the same time article I, section 1, was also changed to provide: "The Company
hereby agrees to recognize and to bargain collectively with [Local 325] . . . as a
sole collective-bargaining agent for all employees of the Company, except those
who are employed as office workers, supervisors, and lithographers... .:' 2
In. 1941, also, Respondent purchased World News Corporation and thereafter
operated it as a "subsidiary." -
? The lithographers were covered by a contract with another union.
744-670-65-vol. 14 G-9 3
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1961, Respondent and Local 325 in Chicago negotiated some minor changes
in the 2-year renewal collective-bargaining contract which they signed that year.
That same year Respondent opened a new plant and warehouse in California em-
ploying some five men. Although Welch, Junior, testified that the provisions of
this 1961-63 contract have been applied to the California plant, he also testified
that Respondent had made no mention of the opening of the California plant until
after the negotiations.
In April 1962, Respondent purchased a company known as the New York Scien-
tific Company in New York which was owned and operated by Joseph Rubinger
and his partner, Cohn. New York Scientific employed approximately 25 employees.
It had never had any union relationship in its 40 years of existence although dur-
ing that period Rubinger testified that he had heard on "many occasions" that a union
had been attempting to organize its employees.
Until larger quarters could be found Respondent continued the operation of the
New York Scientific Company under its old name with its former owners as its
managers.
At the time of the purchase, Respondent supplied Rubinger with information and
booklets describing Respondent' s pension , hospitalization , profit-sharing , etc., plans
which were in turn distributed to the employees. Rubinger was also informed of
the contract with Local 325 but was given no copies of the collective-bargaining
agreement for distribution to the employees. The pension, hospitalization, and
other plans were all completely independent of the collective-bargaining agree-
ment with Local 325.
Respondent made no official announcement of the existence of Local 325 contract
nor of its alleged coverage of the New York employees. In fact , Welch, Junior,
testified that Local 325 in Chicago was told that, although Respondent had purchased
New York Scientific, it was not going to be a typical Welch operation.
Respondent maintained throughout the hearing and in its brief that "since 1962
the New York employees have consistently received wages and benefits, including
all fringe benefits , holidays and vacations , provided in the 1961-63 and the 1963-
65 agreements" it had with Local 325. The evidence shows that on one of his
early trips to New York after the purchase , Welch, Junior, was asked by a female
employee whether the Welch Company had a union contract. Welch, Junior,
informed her that Respondent did have a contract with Local 325 in Chicago but that
it was an "open shop contract" so that the New York employees would not have to
join that union . This was satisfactory to the female employees who were opposed
to joining any union. The New York employees did not receive the 5-cent-per-hour
increase provided in the 1961-63 contract of Local 325 because that agreement
specified that only employees of Respondent as of April 1, 1962, were eligible for
such increase . As Respondent purchased New York Scientific after April 1 of that
year, technically the New York employees did not qualify thereunder, according to
Welch, Junior . One employee in New York testified that she learned of the Local
325 contract when the New York plant unexpectedly worked on Washington' s Birth-
day in 1963, which formerly had been a holiday in New York. She was told that the
same conditions applied in New York as were applied by Respondent in Chicago
and, hence, as the Chicago plant worked that day, Washington's Birthday was lost as
a holiday in New York. Another employee learned of the 5-cent-per-hour increase
when on July 1, 1963, her vacation paycheck indicated a 5-cent-per-hour increase.
The record is definite. however, that neither Respondent nor Local 325, the alleged
representative of the New York employees, distributed copies of the collective-
bargaining agreement to any of the New York employees until July 8, 1963, when
Welch, Junior, distributed copies thereof to the New York employees. The first
appearance of a Local 325 representative in the New York plant occurred on July 16,
1963. Whatever knowledge the few New York employees ever learned about Local
325 and its collective-bargaining contract prior to July 1963, was both accidental
and vicarious.3.
In January 1963, Respondent sought a caster from U.S.E.S. at a suggested salary
of $100 per week. Abraham Axelrod applied. Manager Rubinger agreed that
Axelrod would be hired at $90 and that, if his work proved satisfactory at the end of
his first month , he would thereafter be paid $100 per week.4
s The above referred to collective- bargaining agreements between Respondent and Local
325 contained little, if anything, over and beyond the requirements of the minimum wage
act and the generalities of this act. Respondent's pension plan, profit-sharing plan, and
hospitalization are all independent of those collective-bargaining agreements. These agree-
ments can best be described as being "pre-Model T" agreements in collective bargaining.
4 The two previous casters, Negron and Febus, had been paid $74 or $75 per week for the
same work.
a
THE WELCH SCIENTIFIC COMPANY 1457
Axelrod became the only full-time caster at this time, although Febus who gen-
erally worked as a finisher did casting on occasions.5 Foreman Andrew Maggi who
checked the work of the employees in his departments every night informed Axelrod
that his work was "slow but good" and that he, Maggi, preferred it that way.
At the end of his first month's employment Axelrod received his $10 per week increase
to the $100 salary as agreed.
Rubinger and Maggi both testified that Maggi had objected to giving Axelrod
his $10 agreed-upon increase on the ground that Axelrod was a slow caster. How-
ever, Maggi also admitted that he had, during that month, informed Axelrod that
he, Maggi, was going to need an assistant when the plant moved to larger quarters
and that, "if [Axelrod] could pick up everything that I was showing to him, he could
at one time become my assistant." 6
It is also admitted that during the early part of his employment Axelrod also
informed Maggi that he, Axelrod, had been a member of the Union.
On March 8, 1963, Maggi wrote former employee Negron in part as follows:
We are moving to a much larger place on 38th Street and First Avenue and
we will be needing many more people in the model department.
I heard that you and your brother were in business in Puerto Rico. If you
will consider coming to work for us, I am sure we could find places for both
of you.
In April 1963, Respondent's plant was moved to its new location.
About May Respondent hired a new caster by the name of Schwartz. Schwartz
suggested the possibility of organizing a union to Axelrod and secured union author-
ization cards which Axelrod and a number of the other employees signed. Although
some of the employees attended a union meeting at the union hall and a couple of
informal meetings at a nearby bar and grill, the organizing work was done secre-
tively. So far as any of the employees who testified knew, Respondent was unaware
of this activity.
On June 10, Schwartz was discharged by Respondent. Rubinger testified that
he discharged Schwartz for low production. and because Schwartz was allergic to
the chemicals used in casting.
At or about this time Maggi had been told "in confidence" by an employee that the
Union was attempting to organize the employees. Maggi reported this confidential
information together with the fact that he.suspected employees Passos and McCoy, at
least, to Rubinger as the possible "instigators" of the union movement because he
had found them outside of their work area talking to employees.
On June 21, Maggi allegedly made another critical report on Axelrod's production
to Rubinger.7 Rubinger instructed Maggi to have Axelrod to report to him at the
close of work on Monday, June 24.
On the morning of June 24 Negron returned to work from Puerto Rico. He was
engaged as a caster at $75 per week.
About 5:30 p.m. that evening Axelrod was sent by Maggi to Rubinger's office
where Rubinger told, him that his work was not "up to par" and that Axelrod
would have to improve. Axelrod suggested that, in order to prove that he was
not a slow production worker, he would be willing to exchange molds with another
caster and see who did the better work. Maggi who was present at the interview
said that they would have such a test on Wednesday, June 26.8
That evening as he left work Maggi made no preparation for the proposed ex-
change of molds nor did he inform either Febus or Negron of the proposed test.
On the evening of June 24 the Union held a meeting during which President
Silvio Prezioso informed the employees of Respondent present that about 11 o'clock
the following morning, June 25, he was going to telephone Rubinger and request rec-
ognition of the Union on the ground that the majority of Respondent's employees had
signed up with the Union.
e Negron had returned to Puerto Rico.
81n his testimony Maggi sought to explain the obvious inconsistencies between his
compliment to Axelrod and his criticisms of Axelrod to Ruhinger on the ground that he
was doing "everything possible" to encourage Axelrod at this time to increase his pro-
ductivity. Maggi 's words belied his actions in this, and in other , incidents related hereto.
The testimony of 1lfaggi at the hearing, however , would seem to indicate that most,
if not all , of his troubles with Axelrod 's slow production occurred during the first month
of Axelrod ' s employment . What caused this present criticism of Axelrod by 1%laggi is not
shown on the record.
8 The conflict as to the date of this proposed test between Maggi and Axelrod is dis-
cussed infra.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 11:30 the next morning, June 25, as planned, Prezioso telephoned Rubinger,
told him that the Union represented a majority of the Respondent's employees and
requested a meeting. Rubinger agreed that the men would meet at Respondent's
office on Friday morning, June 28.
Immediately following this telephone conversation Rubinger called Kellogg, a
Respondent official, and Foreman Maggi to his office 6 and told them of Prezioso's
call. These officials then began discussing which employees could have instigated
the union organizational movement. • The names of Schwartz and Axelrod were
prominently mentioned in this connection. Subsequently it was decided that Rubinger
should telephone Respondent's headquarters in Chicago, which he thereupon did,
and was told that President Welch of Respondent would be in town to handle the
matter.'°
On June 25 and June 26, Rubinger approached each of Respondent's employees
and inquired of each if he or she had joined the Union. As each employee answered
the question, Rubinger checked the answer on a list of employees he carried with
him.11
About 5:30 p.m. Rubinger had Axelrod called to his office and informed Axel-
rod that he was discharged "on orders from Chicago." Rubinger, on the other
hand, testified that when Maggi informed him about "10:30 a.m.," and therefore
prior to the Prezioso telephone call, that Axelrod had "reneged" on his suggested
test of production, he decided that the only thing he could do would be to discharge
Axelrod.
Following his telephone call to Rubinger , Prezioso filed a representation petition
with the Board covering Respondent's employees.12
Prior to July 5 Rubinger inquired of Aulisi if he had signed a card for the Union
and warned him not to do so.13 -
Comanager Cohn was then on vacation:
10 The above findings are made on the basis of the credited testimony of Joseph Aultsi
who was at the time a college student and an employee of Respondent . Respondent 's brief
refers to Aulisl as an "eavesdropper ." In fact Aultsi was more than that : he was an In-
tentional eavesdropper . Aultsi was interested in the union organizational effort. He knew
that Prezioso planned to call Rubinger about 10 :30 a.m. Aulisl had a desk in Respond-
ent's main office approximately 25 feet from the three cubicles where officials Cohn,
Rubinger , and Kellogg officed . These three cubicles were separated from the main office
by glass partitions which reached only partway to the ceiling of the room. At the time
of the receipt of the call from Prezioso , Aultsi had made it a point to be at his desk.
Both Rubinger and Maggi denied the testimony of Aulisl . Maggi to the extent that he
was not present at any such conference . Significantly Respondent did not call Kellogg as
a witness nor explain his absence.
Furthermore both Rubinger and Maggi were caught in various omissions and incon-
sistencies in their testimony. Whereas Aulisi proved himself to be an impressive witness,
particularly on cross-examination.
Consequently the Trial Examiner credits the testimony of Aullsi.
n In an affidavit given to a Board field examiner, Rubinger specifically denied having
asked any employee if he had signed up for the Union. Subsequently on August 28, 1963,
Rubinger executed another affidavit prepared by Respondent in which he "corrected" the
denial contained in the affidavit given previously to the Board and, in addition , changed
the date of the inquiry he then admitted from "June 26" to "June 25." He specifically
stated in the August 28 affidavit that Axelrod was not interrogated because "I had
already made up my mind to discharge him that night . . . . 11 However, if the inquiry
was made on June 26 in accordance with his first affidavit , Axelrod would not have been
interrogated but for a completely different reason.
12 Subsequently a hearing on this petition was held at which Local 325 was permitted to
intervene without objection on the basis of cards which It secured In Respondent 's plant
on or about July 16. Local 325 and Respondent maintained at said hearing that under
the terms of the contract between Local 325 and Respondent in Chicago, Respondent's
New'York employees "automatically accreted" to the companywide unit of which Local 325
was the recognized representative under the phraseology of the Chicago contract. The
Regional Director, however, ordered an election with the Union and Local 325 both on
the ballot along with a box for a "no" vote. Respondent appealed this decision to the
Board which on December 6, 1963, affirmed the ruling of the Regional Director.
13 Although Rubinger denied having asked Aulisl whether he joined "Local 2682" [the
Union], he did not deny the interrogation of Aullsi. In this connection it is Interesting
to note that Rubinger attempted to explain his omission of the polling Incident in his
affidavit to the Board on the same ground : that he was concentrating on the number of
the Local.
THE WELCH SCIENTIFIC COMPANY 1459
On July 8 Welch , Junior, appeared at the New York plant and for the first time
speaking to small groups of employees , informed them that they were covered by
Respondent 's contract with Local 325 and entitled to all the " terms and benefits"
thereunder including the 5 -cent-per-hour raise which had been negotiated and executed
between those parties on May 6, 1963, in Chicago. Except for the one employee
who discovered her 5-cent-per-hour increase in the vacation paycheck given to her
on July 1, according to her testimony , this is the first any of the employees knew of
any 5-cent pay increase or of the Chicago negotiations, which had been carried on by
Local 325 in Chicago without notice to, or the presence of, any •representative
of the New York employees.
Promptly after the Union had filed its representation petition for the New York
plant, Respondent 's Chicago officials telephoned the Chicago area director of the
Paper Makers Union and Local 325 and told him of the New York petition. The area
director said that he would get in touch with the Paper Makers area director in New
York about the matter.
On July 16 Organizer Bryan Renick of the Paper Makers Union appeared at
Respondent 's New York plant and requested permission from Rubinger to go through
the plant seeking memberships on behalf of Local 325. This was the first interest
Local 325 had ever shown in the New York employees . Rubinger granted such per-
mission and had Foreman Maggi take Renick and introduce him to the employees.
Maggi introduced Renick to employee Gertrude Ludders and then left Renick.
Renick was seeking signed authorization cards on behalf of Local 325 from the
employees obviously in order to make a showing of interest in the pending R case
proceedings commenced by the Union.
At the hearing Rubinger justified his grant of permission to Renick on the basis
that the contract of Local 325 covered the New York employees and, therefore,
representatives of Local 325 were by that agreement permitted to solicit memberships
in the New York plant.
B. Conclusions
1. Interference , restraint , and coercion
General Counsel 's complaint alleges the following acts by Respondent to be viola-
tions of Section 8(a) (1) in that they interfered with , restrained , and coerced Re-
spondent 's New York employees in their freedom to choose between the Union,
Local 325, or no union:
(1) Rubinger's interrogation of the New York employees as to whether they had
joined the Union.
(2) Welch, Junior's promise of wage increases , etc. on July 8, 1963 , if Respond-
ent's New York employees became and remained members of Local 325.
(3) Respondent 's application of the "terms and benefits" of the contract with
Local 325 in Chicago to the New York employees at a time when Local 325 had no
majority representation among the New York employees.
(4) Respondent 's permission to Renick as an agent of Local 325 to solicit member-
ships in Respondent 's New York plant during working hours.
Essentially Respondent justifies all of the above -alleged unfair labor practices on
the ground that upon the purchase of The New York Scientific Company by Respond-
ent in April 1962 , the New York production and maintenance employees were "auto-
matically accreted" to the companywide unit in which Respondent recognized Local
325. This accretion occurred by reason of the addition of the words "subdivisions
and subsidiaries" as being included within the term "The Welch Scientific Company,
of Chicago , Illinois" in the preamble of Respondent 's 1941 contract with Local 325
and the retention of such legal phraseology in all subsequent contracts between these
parties. Having been thus accreted , the New York employees , according to Re-
spondent 's theory, were also automatically included within the coverage of the con-
tract Respondent had with Local 325.
In its brief Respondent states unequivocally : "The Company has applied its
collective-bargaining agreement with Local 325 to the New York employees since
1962."
The terms of Respondent 's contract with Local 325 are so innocuous that Respond-
ent could have "applied" the terms thereof to its New York operation from the very
time of its purchase without anyone having been the wiser , Local 325, the New York
employees , or Respondent . The agreements complied with the minimum wage law
and the generalities of this Act. A reading of the contracts , which are all but identical,
is sufficient to explain the fact that Welch, Junior, could recall only one grievance
thereunder in 27 years. It is, moreover , the first union agreement this Trial Examiner
has ever seen containing a no-strike clause without providing for the concomitant
provision against lockouts . Respondent had good reason to be satisfied with its
relationship with Local. 325.
1460 DECISIONS OP NATIONAL LABOR - RELATIONS BOARD
Despite Respondent 's unequivocal statement above , the testimony indicates that
the first recognizable application of the terms of the contract with Local 325 to New
York occurred on February 22, 1963, when the New York employees actually lost
George Washington 's Birthday as a holiday on the grounds that "it was the practice
in Chicago" to work that day and, therefore, New York would have to work. The
witness who described the loss of this holiday was even doubtful that the explana-
tion included any reference to the contract with Local 325 which , incidentally , failed
to list Washington 's Birthday as a holiday.
The next identifiable occasion on which the contract of Local 325 was applied
to the New York employees occurred only after the filing of the Union 's representa-
tion petition when the vacation check of this same employee unexpectedly con-
tained a 5-cent -per-hour increase which Local 325 had negotiated in its 1963-65
agreement without notice to, nor representation from, the New York employees.
On this occasion Respondent 's explanation for the 5-cent-per-hour increase gave
credit to Local 325.
Otherwise the evidence indicates a reluctance , at least , on Respondent 's part to have
its New York plant accreted to the "companywide unit" of Local 325. Upon the
acquisition of the New York plant Respondent carefully explained to the New York
employees Respondent 's profit-sharing , pension, insurance , and medical plans and
distributed to the New York employees explanatory booklets on each. None of
these fringe benefits stemmed from the collective-bargaining agreement Respond-
ent had with Local 325. In these discussions with the New York employees Re-
spondent made no mention of the Chicago contract with Local 325 nor distributed
copies of that collective-bargaining agreement. The evidence indicates, however,
that one or two female employees , who were violently opposed to any union, did
inquire if Respondent had a union contract but they were satisfied with the explana-
tion that there was a contract in Chicago which was an "open shop contract" so
that these employees would not have to join.
Nor, until July 16, 1963, did Local 325 approach the New York employees, per-
haps because Respondent had informed it after the acquisition of the New York
plant that the New York operation was not to be a typical Welch operation.
On this record , therefore , I must agree with the finding of the Regional Director
in the representation case to the effect that Respondent's New York employees were
given no official indication that the New York plant accreted, automatically or other-
wise, to the Chicago unit or that the New York employees were covered by the terms
of the collective-bargaining agreement with Local 325 in Chicago until July 8,
1963, and, therefore , after the filing of the Union 's representation petition covering
the New York employees. Whatever information about Local 325 the one or two
New York employees managed to acquire prior to that time was both inadvertent
and slight. It is significant that Rubinger made no such claim during his first tele-
phone conversation with the Union on June 25 when Prezioso claimed majority
represenatition for the Union.
Respondent 's reluctance about accretion evaporated promptly after the Union
demand for recognition on June 25. By June 28 Respondent was telling the
Union's representative that the New York employees were already covered by the
contract with Local 325. By July 8 Welch, Junior, was in New York telling the
employees that they were entitled to all the "terms and benefits" of the contract
with Local 325 and this time distributed copies of that contract along with brochures
of Respondent 's other fringe benefits such as pensions , medical care, and profit
sharing which were independent of the contract with Local 325. Also Welch,
Junior, alerted the Paper Makers Chicago area director to the situation in New
York with the result that on July 16, with Respondent's permission, Local 325 had
an agent in the plant soliciting memberships for Local 325 on company time.
By these acts Respondent obviously sought to, and did, interfere with and restrain
the New York employees in their statutory right to select their own representative
for collective bargaining in violation of Section 8 (a) (1) of the Act.
At the time of, and subsequent to, the acquisition of The New York Scientific
Company by Respondent, Respondent's New York employees cons:ituted an ap-
propriate unit with, of course, the right to select Local 325 as their representative
if they, the employees , so decided . The right to make . such a decision belonged
to the New York employees and to the New York employees alone. Nor may the
employees be deprived of that statutory right by any legal phraseology placed in a
contract executed some 700 miles away some 20-odd years previously.
Accordingly , I must find that by the acts above enumerated , the Respondent in-
terfered with , restrained , and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act in violation of Section 8(a) (1) of the
Act.
THE WELCH SCIENTIFIC COMPANY
2. The discharge of Abraham Axelrod
1461
On June 25, 1963, about 11:30 a.m. Rubinger received his first official word
that the Union had been organizing the employees in the New York plant. A
hastily called conference of three top Respondent officials immediately was con-
vened, discussed what should be done, and speculated as to which employees could
have instigated the organizational effort of the Union. Opinion on the latter seemed
to center on ex-employee Schwartz and employee Axelrod as the instigators of the
movement. Schwartz had already been discharged on June 10 for, according to
Rubinger, low production and being allergic to the materials used by Respondent.
At 5:30 p.m. on June 25, Rubinger precipitously discharged Axelrod "on orders
from Chicago" and, according to his own testimony, for low production and for
"reneging" on a test of productivity allegedly set for earlier that day.
Respondent set up two defenses: (1) it had no knowledge that Axelrod was
engaging in activities on behalf of the Union; and (2) Axelrod was dismissed be-
cause of deficiencies in his quantity and quality of work.
The speculation among Rubinger, Kellogg, and Maggi immediately following
the telephone call from the Union on June 25 as to which employees might have
instigated the Union with its resultant consensus of opinion centering on Schwartz
and Axelrod would seem to disprove Respondent's first contention. This is par-
ticularly so in view of the affidavits of Rubinger wherein he claimed to have had
no information that the Union was organizing until the telephone call of June 25
from the Union, whereas, at the hearing, it was acknowledged that Maggi had re-
ceived, and conveyed to Rubinger, about the time of the discharge of Schwartz, a
"confidential" report from an employee that the Union was organizing the plant along
with his own suspicion that employees McCoy and Passos, at least, were active in the
organizational effort because he, Maggi, had observed McCoy and Passos talking
to employees in other departments. Maggi, of course, at the hearing contended.
that he knew nothing of any activities on behalf of Axelrod despite his reluctant
admission that Axelrod had told him that he was a former member of the Union,
and despite his conversation with Axelrod on June 28 concerning the Union and
its president. In view of all the evidence I must find that the Respondent knew, or
strongly suspected, that Axelrod was active in the Union.
In its brief Respondent points to the fact that all of the employee witnesses testi-
fied that the organizational work had been carried on secretly and that, so far as
they knew, Respondent had no knowledge thereof. These witnesses, of course,
knew nothing of the "confidential" report which had been made to Maggi and
conveyed to Rubinger.
With that defense disposed of we turn now to Respondent's contention of poor
workmanship.
To prove this defense Respondent produced at the hearing 13 casts of a large
botanical model known to Respondent as "The Ideal Flower" which Respondent had
taken out of inventory for the purposes of the hearing. - Each of these 13 casts was
imperfect, even to the naked eye, to some degree.
None of these 13 casts contained any mark identifying the employee who cast the
same. Respondent maintained that these casts had been made by Axelrod on the
basis of testimony by Maggi that no Ideal Flowers had been cast since the discharge
of Axelrod. Neither the casters nor Maggi could otherwise identify the work as
having been done by Axelrod. Nor did Axelrod disclaim the possibility that these
casts might have been his, admitting that some of his work contained similar defects.
There was also no showing that ex-caster Schwartz might not have made the casts.
Nor was there any showing as to how long these 13 casts had been in inventory
prior to their removal for the purposes of the present hearing. For the purposes of
the following discussion, it will be here assumed that the work was that of Axelrod,
which is more than I can say Respondent actually proved.
I pretend to no expertise on molds or casts therefrom but it is obvious to even
a nonexpert that, if all casts were perfect, Respondent would be able to dispense with
the necessity for the employment of finishers whom Respondent still employs.
The question then arises as to how bad these 13 casts actually were. One
witness for Respondent testified that the 13 were fit only for the garbage heap.
Another testified that the casts could be finished, albeit with more effort than finishers
generally like to use.
As the evidence proved that Maggi inspected all work every evening and, after
inspection, had had these 13 casts placed in inventory for future orders, I must
conclude, in accordance with Maggi's expert judgment, that these 13 casts were usable
and finishable.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Actually, up to the date of the hearing, Respondent had been objecting only to the
lack of quantity in Axelrod's work. There had been no objection up to that time
as to the quality of his work. In fact it is admitted that Maggi had told Axelrod
that Axelrod's work "was slow but good" but that Maggi preferred it that way. As a
matter of fact, despite the lack of quantity, Maggi had suggested to Axelrod the
possibility of Axelrod's becoming his assistant when the plant increased in size.
Neither of these acknowledged statements seem to contain any criticism as to the
quality of Axelrod's work. The record, on the other hand, proves that Respondent
had records as to the quantity of work produced by its employees but; significantly,
none such as to Axelrod's work was ever produced at the hearing to prove any
quantitative deficiencies in his work. Instead Rubinger testified that in his affidavits
(even those prepared by Respondent) when he referred to a lack of "quantity" in
Axelrod's production, he meant both "quantity and quality."
It is also all too apparent from Axelrod's 5 months of employment at the extraor-
dinary figure of $90 and $100 per week that his work over that period had been
satisfactory to Respondent-at least until he became suspect as an instigator of the
union movement which came into the open the very same day that he was discharged.
The evidence discloses that there was no hurry to get rid of Axelrod because of his
production until the activity of the Union became public property.
As to the timing of the discharge Respondent again has the answer: Maggi
reported to Rubinger that Axelrod bad "reneged" in the suggested test of productivity
at 10:30 a .m. on June 25 , approximately 1 hour before Prezioso telephoned
Rubinger claiming majority representation for the Union. Rubinger contended at
the hearing that he determined that Axelrod "had to go" at the time of Maggi 's report
and, therefore, the union activity could have nothing to do with the discharge. The
short answer to this claim is that Rubinger did not so inform Maggi at that time
and actually Axelrod was not discharged until 5:30 p.m. that day and, therefore,
hours after the receipt of the Union 's claim and long after the expression of the
consensus of opinion of Respondent 's three officials that Schwartz and Axelrod were
the instigators of the union movement.
Furthermore I am convinced from all the facts that Maggi had set the proposed
productivity test for Wednesday, June 26, rather than for Tuesday, June 25, because
admittedly Maggi had made none of the necessary preparations for the proposed test
on the evening of June 24 nor, in fact , informed either of the other contestants
anything about the test. In addition , as this was purely a case of quantitative produc-
tion, there was no earthly reason for the holding of any such test because Respondent
had records available to prove or disprove this charge against Axelrod. From the
nonproduction of these quantitative records at the hearing, it is a fair assumption that
these existent records would not have proved Respondent 's contention if produced.
Accordingly I am convinced and, therefore , find that Respondent made use of this
proposed test and Axelrod 's alleged "reneging " therefrom as a pretext on which to
discharge Axelrod on June 25 whereas the real reason that Respondent discharged
Axelrod that day was the fact that Respondent knew or suspected that he was one of
the instigators of the union organizational campaign which came out into the open
earlier that same day. Therefore I must find that Respondent discharged Axelrod
on June 25 because it knew or suspected that he was an instigator of the union
activities in the plant in violation of Section 8(a) (1) and (3) of ,the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having further been found that Respondent discriminated in regard to the hire
and tenure of employment of Abraham Axelrod by discharging him on June 25,
1963, because of his known or suspected membership, sympathy, and activities on
behalf of the Union, I will recommend that Respondent offer him immediate and full
reinstatement to his former or substantially equivalent employment and make him
whole for any loss of pay he may have suffered by reason of said discrimination
against him by payment to him of a sum of money equal to that which he would
AMERICAN COMPRESSED STEEL CORPORATION 1463
have earned as wages from the date of the discrimination against him to the date of
his reinstatement less his net earnings during such period in accordance with the
formula set forth in F. W. Woolworth Company , 90 NLRB 289 , with interest thereon
at the rate of 6 percent per annum computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
Because of the variety and the extent of the unfair labor practices engaged in by
Respondent, I sense an attitude of opposition to the purposes of the Act in general,
and hence , deem it necessary to order that Respondent cease and desist from in
any manner infringing upon the rights guaranteed to employees in Section 7 of the
Act.
Upon the basis of the above findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Display Fixture, Smoking Pipe , Plastics & Production Workers Union, Local
2682, United Brotherhood of Carpenters & Joiners of America , AFL-CIO, and
Local 325 of the Paper Makers Union are labor organizations within the meaning
of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By discharging Abraham Axelrod on June 25 , 1963, thereby discriminating in
regard to his hire and tenure of employment and thereby discouraging concerted and
union activities among its employees , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise of
their rights guaranteed them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the
Act.
. 5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
American Compressed Steel Corporation and International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Local 152, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Cases Nos. 9-CA-2932 and 9-CA-2968. May 8, 1964
DECISION AND ORDER
On January 6, 1964, Trial Examiner Frederick. U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices, and recommended
that the allegations of the complaint pertaining thereto be dismissed.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
146 NLRB No. 172.