Trescott Co., Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1953

102 N.L.R.B. 1160 (N.L.R.B. 1953)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not police election propaganda of "parties" to elections, but leaves
it to "opposing parties" to correct falsehoods. They overlook the
fact that this doctrine has reference to "parties" to elections whose
names are on the ballot; an employer is not such a party.]] The as-
serted fact that the IUE could have corrected the Employer's repre-
sentation but failed to do so is of no controlling significance. The
majority's reference to this also seems to partake of the nature of a
"waiver" argument. But the Board has recently announced that the
"waiver" doctrine with respect to objections to elections will not be
applied to employer misconduct occurring subsequent to the notice of
hearing in the case.12 Moreover, I cannot see how the mere fact of
issuance of a statement by the IUE that the Employer was in error
in representing that the WSB ruling would preclude the wage in-
crease if the IUE won the election, would have neutralized the dam-
age done by the Employer's misrepresentation. It would be obvious
to the employees that the Employer would act upon his own view of
the effect of the WSB ruling no matter how loudly the IUE might
have proclaimed that the Employer was in error as a matter of law.
Only a complete and timely disavowal by the Employer of the mis-
representation and half truths he published to his employees could
have restored to them the strict laboratory conditions heretofore so
vigorously insisted upon by this Board in representation elections.
A threat by an Employer of loss of a substantial wage increase to his
employees if they select the union he opposes is hardly conducive to
a free choice of bargaining representative contemplated by the Act.
For the foregoing reasons I would sustain the Regional Director's
determination that there was merit in the IUE's objection based upon
the Employer's threat of a loss of the 4-cent per hour wage increase
and that the election should be set aside.
n The two cases cited in footnote 8 of the majority opinion on this point both involved,
alleged untruthful statements by unions
12 Great Atlantic cf Pacific Tea Company, 101 NLRB 1118.
TRESCOTT COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MA-
CHINISTS , PETITIONER . Case No. 3-CA -1455. February 9, 1953
Decision and Order
On October 13, 1952, Trial Examiner George A. Downing issued
his Intermediate Report 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 copy of the
102 NLICB No. 111.
TRESCOTT COMPANY, INC. 1161
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
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-member
panel [Chairman Herzog and Members Houston and Murdock].
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-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Trescott Company, Inc.,
Fairport, New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the International Asso-
ciation of Machinists as the exclusive representative of all production
and maintenance employees at the Respondent's, Fairport, New York,
plant, exclusive of all office and clerical employees, guards, profes-
sional, and supervisory employees as defined in the Act.
(b) Discouraging membership in International Association of Ma-
chinists or in any other labor organization of its employees, by dis-
criminatorily discharging or refusing to reinstate 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.
(c) Interrogating its employees concerning their union member-
ship and activities ; advocating and assisting the formation of, and
recognizing and negotiating with, a grievance committee as the repre-
sentative of any of its employees of the purpose of forestalling and
defeating the selection of the Union as their bargaining representa-
tive; and promising and granting unilaterally, and without consulta-
tion with the Union, wage and other benefits.
(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 International Association of
Machinists, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining and other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associa-
tion of Machinists as the exclusive representative of its employees in
the appropriate unit.
(b) Offer to John J. Smith 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 payment to him of a sum of money
equal to that which he normally would have earned as wages from
the dates of the respective discriminations against him to the date of
the offers of reinstatement, less his net earnings during said periods,
in the manner described in the Intermediate Report.
(c) Post at its plant at Fairport, New York, copies of the notice
attached to the Intermediate Report and marked "Appendix A" 1
Copies of said notice, to be furnished by the Regional Director for
the Third Region, shall, after being signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
'This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substi-
tuting in lieu thereof the words "Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act as amended ( 61 Stat . 136), was heard at Rochester, New York , on September
4 and 5, 1952 , pursuant to due notice to all parties . The complaint , issued on
May 7, 1952 , by the General Counsel of the National Labor Relations Board,'
and based on charges filed by the Union and served on Respondent, alleged in
substance that Respondent had engaged in unfair labor practices proscribed by
Section 8 ( a) (1), (3), and ( 5) of the Act by: (a) Refusing on or about July
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. The above-
named Respondent is referred to as Respondent and as Trescott, and the charging union
as the Union.
TRESCOTT COMPANY, INC. 1163
17, 1951,' and since, to bargain with the Union, which at all times since July 16
had represented a majority of Respondent's employees in an appropriate unit;
(b) discharging John J. Smith on July 16; and, having reinstated him on July
19, discharging him again on or about October 19 because of his union member-
ship and activities; and (c) engaging on and after July 16 in other specified
acts of interference, restraint, and coercion.
Respondent by its answer denied the commission of unfair labor practices as
alleged. It admitted that it refused to bargain, but averred that it had sug-
gested that the Union request a representation election and had stated that if,
as a result, the Union was certified as the representative of its employees, it
would bargain with the Union. With reference to the two alleged discrimina-
tory discharges of Smith, Respondent's counsel expanded its defenses orally at
the hearing to assert that the first alleged discharge was in fact a disciplinary
layoff for cause, and that the second alleged discriminatory discharge was also
a layoff, effected for economic reasons, and that Smith's selection for layoff was
because he was not a sufficiently useful and satisfactory workman to merit his
retention on the permanent force.
All parties were represented at the hearing by counsel or by representatives
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally, and to file briefs and
proposed findings and conclusions. Oral argument was waived. Briefs have
been filed by the General Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Trescott operated a small plant which employed at peak capacity during rush
manufacture, sale, and distribution of fruit and vegetable graders, conveyors,
elevators, incubators, and packinghouse equipment and related products. Dur-
ing the calendar year 1951, Trescott purchased raw materials, supplies, and
equipment valued in excess of $50,000, approximately 25 percent of which was
from extrastate sources ; and during the same year Trescott sold manufactured
products exceeding $100,000 in value, of which approximately 65 percent was
sold and shipped to extrastate points. It is therefore concluded and found that
Respondent is engaged in interstate commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to membership employees
of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Summary of the evidence
1. Introduction ; synopsis of main events
Trescott operated a small plant which employed at peak capacity during rush
seasons only 30-odd employees, and during slack seasons only 10 to 15. In Janu-
ary 1951 the business had been bought by Reginald R. Kiefer and Elmer Charles
2 All events occurred in 1951, unless otherwise specified. The summary of the pleadings
here made conforms to and includes amendments made at the hearing.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hartman, who operated it thereafter as president and vice president, respectively,
during the period of the occurrence of the alleged unfair labor practices a
As a result of employee dissatisfaction with wage rates, organizational activi-
ties led by Smith began at the plant early on the morning of July 16. Smith's
activities were immediately brought to Hartman's attention, who called in Smith
and discharged him. On the following day the Union, having obtained authoriza-
tion cards from 20 of approximately 30 employees, made a demand for recogni-
tion and bargaining, and requested the reinstatement of Smith. Hartman there-
after called 2 or 3 separate meetings with employees, during which he made
various statements alleged to be coercive in nature and during one of which he
suggested the formation of an employee grievance committee. Smith was rein-
stated on July 19 during an interview with Hartman in which Hartman inter-
rogated him with reference to his organizational activities.
The Union made additional requests to bargain on July 18 and during the
ensuing week, but Respondent at no time agreed to recognize or bargain with the
Union. At various times after July 19, Hartman and Kiefer engaged in con-
duct which is asserted by the General Counsel to constitute interference, re-
straint, and coercion, including negotiations with the employee grievance com-
mittee concerning wages and working conditions. On or about October 19
Smith was laid off, along with other employees, because of an asserted slack-
ening of business.
2. The course of events
Smith had been hired on June 21 at the rate of $1 an hour. He asked Hart-
man for a raise during the week preceding July 16, and Hartman promised to
"think it over." During the same week, other employees complained among
themselves concerning their failure to receive requested raises and discussed
the possibility of organizing a union. Smith volunteered to "fix it up" by
seeing the past president of a local at the American Can Company plant and
by getting in touch with the business representative of the Union. On Satur-
day night Smith procured a supply of authorization cards from the union hall.
Smith testified that he went to the plant early on the morning of July 16
and began passing out and obtaining signatures to the cards as the employees
reported for work. Before 10 o'clock, Smith was called to Hartman's office
and summarily discharged by Hartman with the explanation, "you asked for
a raise in pay last week and we can't see where we can afford to go to work
and give you a raise in pay. I am giving you the opportunity now to go out
and get more money." Hartman then followed Smith back through the plant
and directed Art Adams (a supervisor) to "watch this man."
Hartman's testimony was not in substantial conflict with Smith's as to the
content of the discharge interview. Hartman also readily admitted that he
had learned of Smith's distribution of union cards through other employees,
who had reported that fact to him, and some of whom had reported that Smith
had also placed blank cards in the timecard rack. Hartman testified that
Adams had also twice complained that morning that Smith was not working
well and urged that Smith should be let go immediately. Hartman admitted,
however, that in discharging Smith he did not refer either to Adams' complaints
8 Early in 1952 Hartman formed a new corporation, Hartman Metal Fabricators, Inc.,
which purchased from Trescott , and thereafter operated , the metal shop, taking over from
Trescott the employees formerly employed in that shop . Hartman retained no interest
in the Trescott Company, and Kiefer has none in the Hartman Company ; and there are
no business connections between the two corporations save the matter of payment of a
purchase-money mortgage.
TRESCOTT COMPANY, INC. 1165
concerning Smith's work or to employee reports that Smith had placed union
cards in the timecard rack.
Smith returned to the plant during the rest period and during the lunch
period on Monday and continued to procure signatures to authorization cards,
finally obtaining a total of 20. On Tuesday Smith, Charles M. Price, business
representative of the Union, and Andrew B. Radley, Price's assistant, went to
the plant during the lunch hour and first talked with the employees on the
parking lot. Price (and later Radley) also conferred with Hartman in the
office and informed him that the employees (production and maintenance)
had decided to organize the Union and that a majority had already signed
authorization cards.
Price explained what the cards meant and answered various questions by
Hartman as to what was involved in recognition and bargaining . Price ex-
plained also that the Company could recognize the Union on the basis of proof
of majority by the signed cards, which Price had with him, or that if it did
not wish to do so, it had the right under the law to request an election. Hart-
man inquired, "Well if the Company were to consider bargaining, what proof
would the Company have that you do represent a majority." Price showed him
the packet of cards which he had with him, stated that they were from more
than half of the employees, and that "if the Trescott Company will agree to
bargain, we will submit these cards as evidence that they are more than a
majority." Hartman asked if he could see the cards, "so that I will know who
has signed?" Price refused, stating, "if you agree to bargain you can see them.
If you won't agree to bargain, there is no point in your seeing them. I am not
going to show them to you."
Hartman's final statement was that he would not assume the responsibility,
and would make no decision regarding either recognition, or bargaining, or an
election, because he would have to confer with Kiefer, who was out of town.
Hartman agreed to notify Price on Friday, July 20, what the decision was. Price
also requested Hartman to reinstate Smith and to pay him for his lost time.
Hartman also deferred decision on that request until Kiefer's return.
During the latter stages of the discussion Adams came in and reported to
Hartman that the employees were talking to a union organizer (Radley) outside
the plant and inquired whether he should " listen in ." Hartman asked if Price
had any objection, and Price stated he had none. Adams then left to listen to
the discussions, but there is no evidence that he actually did so, or in fact that
there were any further discussions.
Price and Radley returned to the plant later that day and inquired whether
Hartman had decided to reinstate Smith. Hartman replied that during their
absence he had talked with all employees personally and had decided not to
reinstate Smith because the employees stated they did not want Smith as a fellow
employee and did not think he should be reinstated. Price characterized Hart-
man's actions in questioning the employees as an unfair labor practice. Price
also stated that he would confirm by letter the matters discussed during the
conferences. He did so by his letter of July 18 which, among other things, re-
peated the request for recognition and bargaining and the offer to furnish proof
of a majority representation.
On July 17 and 18 Hartman held 2 or 3 separate meetings with the employees.`
Though Hartman had obtained legal advice in the meantime, and though much
4 There is some suggestion that the first meeting was held on the 16th after Smith's
discharge . Though the point is immaterial , the preponderance of the evidence establishes
that the first meeting was held on July 17, and probably after the Union's request for
recognition.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had to say was clearly privileged as free speech (cf. Section 8 (c)) and
need not be summarized in detail, he made additional statements upon which the
General Counsel relies to establish allegations of the complaint. Thus Hartman
informed the employees that they were free to join or not to join a union and
that there would be no discrimination against them because of joining. He re-
ferred to the Company's plans for taking on other lines of business, such as
incubators, and placing its operations on a year-round, rather than a seasonal,
basis ; he stated in that connection that he and Kiefer were anxious to establish
a plan to share the profits with the employees. Hartman also invited the em-
ployees to bring their problems or "gripes" to him, and to that end suggested that
the employees in each of the two shops (grader shop and steel plant) should
select a grievance representative to act together as a grievance committee, and
that the employees should take up their grievances through their representatives.
In one of the meetings Hartman referred to Smith's discharge and to the
Union's request for reinstatement, and requested the employees to help him make
the decision by voting on the question whether Smith should be taken back.
Most of them refused, stating the decision was Hartman's to make, but Hartman
nevertheless proceeded with a poll in which only 5 or 6 employees voted, and in
which the results were unfavorable to Smith's reinstatement.
On July 19 Hartman called Smith in and reinstated him (on advice of counsel),
after an interview during which Hartman questioned Smith at length as to his
activities in connection with the distribution of the union cards and as to his
reasons for doing so, and charged him with having placed some of the cards in
the timecard rack.
The Respondent having made no answer to the Union's request to bargain on
July 20 as agreed, Price and Radley returned to the plant the following week
and met with Kiefer. They informed him that they sought the Company's
decision whether it would bargain without an election or whether the Union
would petition for an election. Kiefer stated that Hartman was ill, that they had
had no opportunity to discuss the matter, that they expected to do so in a day
or two, and would then advise the Union. Kiefer raised no question concerning
the Union's majority and made no statement regarding an election. The Union
has received no subsequent word or communication from the Company.
Thereafter, pursuant to Hartman's suggestions in the meetings of July 17 and
18, the employees selected Payne and Trimble as grievance representatives from
the two shops ; thenceforth Hartman and Kiefer held regular meetings with the
committee, during which there were discussed and adjusted a variety of griev-
ances concerning working conditions (e. g., equipment guards, lighting, tools,
etc.') as well as wage rates generally and raises on behalf of aggrieved em-
ployees. Hartman admitted that the subject of wages and wage rates had been
discussed in the meetings with the committee, and that sometime thereafter the
starting wage rates had been raised from $1 to $1.20 an hour. He denied,
however, that the raise was a result of the discussions with the committee, but
contended it was made in order to meet competitively the rates at the American
Can plant.
There was also testimony by Russell Crawford that in late October Kiefer
called a meeting of employees during which he stated that the Company pro-
posed to work out a profit-sharing plan with the employees. Crawford testified
that that was the first mention which had been made to the employees of the
5 The preponderance of the evidence establishes that all changes in break periods and
washtime were made prior to Smith's discharge save for an adjustment to even minutes
which was necessitated by the mechanical arrangement of a program clock after its
purchase in August.
TRESCOTT COMPANY, INC. 1167
possibility of a profit -sharing plan , save for Hartman 's reference to it during his
various talks on July 17 and 18.
Kiefer admitted that he had discussed a profit-sharing plan with the employees
in October or November . He testified that he thought he had called an earlier
meeting in the spring of 1951 , at which it seemed to him that he had mentioned
the profit-sharing plan. No other witness corroborated that testimony, and it is
not credited in view of Kiefer's uncertainty about it and in view of Crawford's
testimony above referred to.
Respondent 's records indicated that on October 19 Respondent laid off four
employees, including Smith. However, Smith testified, without contradiction,
that his termination was effected on a Monday morning ( October 22) under the
following circumstances : When he came in to work , his timecard was not in the
rack, and when he spoke to Adams about a card for the job he was working on
the preceding Friday, Adams replied that he would "fix that up." Adams returned
in a few minutes with Smith's pay envelope and stated that "We have got to let
you go" because of "slack of work" and that "if anything turns up, we get busy
enough, in two or three months time, we will call you back again." Smith's pay
envelope included pay for a half day Monday.
Smith also testified without contradiction (and was corroborated by Craw-
ford) that he and other employees were working overtime at the time of his
termination. Crawford testified that one Clarence Bowman (who had been first
hired on August 30) was assigned to Smith's job; and other evidence established
that Bowman was retained in Respondent 's employ until the spring of 1952.
Kiefer testified that the question of making the layoff was one which had been
considered and discussed for some time, that it was effected in October because
of a sharp dwindling of business , and that Smith was selected because after con-
sultation with foremen it was decided that Smith had not acquired sufficient skill
to warrant his retention on the "steady " crew. Other evidence concerning the
seasonal nature of Respondent 's business and its method of hiring during rush
periods is summarized , infra, under "Concluding findings."
B. Concluding findings
1. Interference , restraint , and coercion
It is concluded and found that by the following conduct Respondent engaged
in interference , restraint , and coercion within the meaning of Section 8 (a) (1)
of the Act :
(a) Interrogation of its employees concerning their union membership and
activities . This includes the polling of the employees on the question of Smith's
reinstatement . That instance of interrogation occurred during one of Hart-
man's speeches concerning the Union and after Smith's leadership in the organi-
zational activities had become known. In that setting, the reference to Smith 's
discharge, which had been made immediately after Hartman 's discussions with
various employees of Smith's participation in those activities , and the question-
ing of the employees as to whether Smith should be reinstated , amounted to
seeking, perhaps indirectly , but no less in practical effect , to require the employees
to reveal their prounion or antiunion sentiments.
(b) Advocating and assisting the formation of, and recognizing and negoti-
ating with , a grievance committee as the representative of its employees for the
purpose of forestalling and defeating the selection by the employees of the Union
as their bargaining agent.
(c) Promising and granting wage and other benefits, after the Union ' s request
to bargain , for the purpose of inducing the employees to withdraw their support
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union. This includes the granting of wage increases and the promises
to inaugurate a profit-sharing plan. The evidence establishes that Respondent
was not committed to announce its profit-sharing plan when it did, in the face
of the organizational activities and of the Union's request to bargain, nor was
there other compelling legitimate reason for the announcement at that time.
Indiana Metal Products Corporation, 100 NLRB 1040. The announcement
was clearly timed to induce the employees to reject the Union. Joy, Silk Mills v.
N. L. R. B., 185 F. 2d 732, enfg. 85 NLRB 1263; cert. den. 341 U. S. 914.
2. Discrimination
a. The July 16 discharge
The evidence summarized above discloses that immediately upon learning of
Smith's leadership in organizational activities Hartman called him in and dis-
charged him summarily, asserting as the cause Smith's previously expressed
dissatisfaction with his wage rates. No reference was made then, nor in the
reinstatement interview on July 19, to any dissatisfaction either with Smith's
work or his conduct. Indeed, on July 19 Hartman continued to explore Smith's
union activities and the question whether Smith had passed out union cards and
why he had done so. That evidence, when coupled with that of Hartman's pre-
vious and subsequent conduct, which was dedicated to the forestalling of the
Union, is more than ample to establish, prima facie, the General Counsel's case
of discrimination.
Nor did the Respondent offer any substantial evidence to support its defense.
First, there is no evidence that Smith was laid off ; the evidence is uncontra-
dicted that he was discharged. In the next place there is no evidence that the
action was for disciplinary reasons. Though Hartman claimed that Adams
complained that Smith was not working well on the morning in question, Adams
was not called to support those claims,' and Hartman made no reference to them
either in discharging Smith or in discussing with him the question of his rein-
statement on July 19. Respondent's brief intimates that Smith's discharge was
based in part on Hartman's belief that Smith had placed union cards in the time-
card racks. Not only did Hartman make no reference to such a claim during
the discharge interview, but he testified expressly that he had not let Smith
go for that reason and that he "would have gotten over that all right."
It is, therefore, concluded and found on the evidence as a whole that Smith's
discharge was unrelated to his conduct or to the character or quality of his
work but was, to the contrary, motivated by Respondent's desire to discourage
union membership and to forestall the organization of a Union. Respondent
thereby engaged in unfair labor practices proscribed by Section 8 (a) (3)
and (1).
b. The October 22 termination
Before reaching the main issue of discriminatory motivation, it is necessary
to dispose of a preliminary issue whether Smith was discharged, as claimed by
the General Counsel, or was laid off as claimed by Respondent. The General
Counsel's claim is based in part on his contention that the reinstatement of
July 19 was not made in good faith. Much color is lent to the latter contention,
" Adams' disposition to interfere with union activities was plainly disclosed by his sug-
gestion to Hartman that he "listen in on" union discussions during the lunch hour on the
17th. The inference is clearly warranted that Adams' complaints , if any, were related to
Smith's discussions of organizational matters with employees in the plant . Indeed, Hart-
man testified that Adams' complaint to him , in part , was that Smith "was congregating
men around the shop."
TRESCOTT COMPANY , INC. 1169
of course , by the nature of Hartman 's reinstatement interview , which was
devoted mainly to an exploration of Smith 's organizational activities . But were
the General Counsel 's premise assumed, it would not necessarily support the
conclusion that Respondent ' s action of October 22 constituted a discharge rather
than a layoff. The nature of that action must be determined on the basis of the
evidence surrounding it, including the nature of Respondent 's operations.
The evidence is undisputed that Respondent 's operations were seasonal in
nature , that the peak occurred generally during the summer months, and that
the low point occurred during the winter . This condition was accompanied by
a wide fluctuation in the number of employees ; indeed , Respondent normally
kept in its employ during the winter months a steady crew which seldom num-
bered beyond 10 or 12 employees . To take care of expanded summer operations,
it was Respondent 's practice to begin hiring in late May or early June such
additional employees as it needed , and to lay them off in turn when the fall
decline began . Respondent had no practice of recalling employees previously
laid off, but waited for them to reapply in reliance on their assumed knowledge
of Respondent 's seasonal operations . In fact, a number of the summer employees
consisted of students who worked with Respondent only during the school vaca-
tion months. As to employees other than students , Respondent had no practice
of informing them that they were being hired temporarily . Smith was not so
informed either when initially hired or at the time of his reinstatement by
Hartman.
Since Respondent had no practice of recalling its so-called "laid-off" employees,
and since it required reapplication from them as new employees , it is clear
that what it termed a "layoff" was tantamount to a discharge ; and it is so
found. Smith 's testimony that Adams promised to call him back "if we get busy
enough," does not affect this conclusion , since the evidence as a whole contains
no indication that Respondent 's action in Smith ' s case differed from its customary
action in other similar terminations.
Although the evidence also established that the reduction in personnel to which
Respondent had resorted on October 19 was justified on an economic basis, as
asserted by Respondent , the issue remains whether this was so in Smith's case
and whether Smith 's selection for termination was motivated by Respondent's
continuing desire to discourage union membership , or whether , as asserted by
Respondent , Smith was selected because he had not become a sufficiently useful
and satisfactory employee to merit retention on the steady crew . The bur-
den is, of course , on the General Counsel to establish , prima facie, a discrimina-
tory motivation as charged in the complaint.
Supporting the General Counsel 's position were the following facts : Though
Hartman reinstated Smith-on advice of counsel-the reinstatement interview
disclosed Hartman's continued concern over Smith 's leadership in union activ-
ities and his continued intention to restrain and to discourage such activities.
Hartman's attitude therefore cast grave doubt on the bona fides of the rein-
statement . Subsequent events augmented that doubt. Thus Respondent con-
tinued its attempts to forestall the Union by its recognition and negotiation
with the employee grievance committee and by the promising and granting of
benefits as above found . Finally, it effected Smith 's termination without warn-
ing after the beginning of a workweek . Significantly , Smith was not in-
cluded in the layoff of the preceding Friday , and Adams , Smith 's supervisor,
was not at first aware on Monday that Smith was to be terminated . Further-
more , Smith had been working overtime ; and he was supplanted by an employee
who had not been hired until August 30 and who was retained through the
winter months.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence disclosed, therefore, that in Smith's case the alleged lack of
work assigned by Adams was but a specious reason. The circumstances as a
whole clearly warrant the conclusion that after making the October 19 layoff,
Respondent decided to avail itself of the opportunity to rid itself of Smith
behind the convenient cover of an economic layoff, and that it hastily arranged
his termination the following Monday after he reported to work. The evidence
therefore plainly established a prima facie case that Respondent's selection of
Smith for termination was motivated by its continuing desire to discourage
union membership and activities.
Much of the evidence upon which Respondent relies to overcome that prima
facie case (i. e., that relating to the seasonality of its operations and to its hir-
ing practices) has been previously referred to. Respondent also offered Kiefer's
testimony that Respondent classified its employees as permanent and temporary ;
that seniority was not a controlling factor in selecting employees for layoff or
discharge, but that Respondent acted instead on the basis of its evaluation
of the temporary employee as a sufficiently skilled and satisfactory workman
to warrant retention on the steady crew. It was on that basis, Kiefer testified,
that the decision was reached, after conferring with foremen, to lay off Smith.
Kiefer's testimony as to the basis of Respondent's classification of employees
as temporary and permanent was inconsistent, contradictory, and confused.
Among other things, it developed that in effecting layoffs, Respondent had dis-
regarded those classifications by terminating certain employees previously classi-
fied as permanent and by retaining many who fell within its definition of "tem-
porary." Thus, Kiefer testified that Respondent waited at least 3 months before
making a determination whether a new employee was to be considered a perma-
nent employee. Yet, on cross-examination it developed that at least 7 em-
ployees with less than 3 months' employment were retained in preference to
Smith, who had been employed for 4 months. See the following table :
Employee Hired Retained until:
Anthony Stolt________________________ July 20, 1951 Dec. 14, 1951.
Julio Basil___________________________ July 23, 1951 Still employed.
Richard Dixon------------------------ Aug. 3, 1951 Still employed.
Rodney Duel_________________________ Aug. 10, 1951 Through end of year.
Clarence Bowman____________________ Aug. 30, 1951 Spring of 1952.
John Perry___________________________ Sept. 7, 1951 Through end of year.
John Carini, Jr---------------------- Sept. 21, 1951 Still employed.
The evidence therefore plainly requires the rejection of Kiefer's testimony
as to Respondent's alleged classifications and plainly refutes the argument in
Respondent's brief that the men with a substantial period of service with the
Company were those who were ordinarily kept on during slack times. The
evidence similarly requires the rejection of Respondent's contention that Smith
was hired as, and remained, a temporary employee. It is also found, in view
of the overtime work being done by Smith and by other employees, that Smith
was not terminated for "slack of work," the reason assigned by Adams
Respondent's remaining contention was that Smith was not a good workman.
No witness with firsthand knowledge was produced to testify that such was the
case. The evidence is uncontradicted that Smith was at no time criticized about
his work. Significantly, Hartman made no such criticism at the time of the
first discharge ; and certainly if basis existed for such a claim, there was then
no reason to conceal it. Furthermore, there was no evidence that Respondent
had otherwise considered Smith to be an unsatisfactory employee, as it claimed,
prior to his engaging in union activities. If Respondent subsequently evaluated
him as such, it seemed clearly due to his participation in those activities.
TRESCOTT COMPANY, INC. 1171
Respondent's evidence therefore signally fails to overcome the General Coun-
sel's prima facie case, above summarized. It is accordingly concluded and
found, on the preponderance of the entire evidence, that Respondent discharged
Smith on October 22, 1951, because of his union membership and activities, and
thereby committed an unfair labor practice within the meaning of Section 8 (a)
(3) and (1).
3. The refusal to bargain
a. The appropriate unit; the Union's majority representation
All production and maintenance employees employed by Respondent at its
Fairport, New York, plant, exclusive of all office and clerical employees, guards,
professional and supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
Respondent attacked this unit because, as a result of the later organization
of the Hartman Company, a portion of Trescott's operations and employees
were taken over by the new and unaffiliated corporation. That fact did not, of
course, affect the appropriateness of the unit at the time of the request and of
the refusal to bargain (cf. Smith Transfer Co., 100 NLRB 834), nor indeed the
appropriateness, scope, or constituency of the unit as presently defined.
On July 16 there were in Respondent's employ a total of 33 employees of whom
20, or more than a majority, formally authorized the Union on that date to
represent them as to hours of labor, wages, and other conditions of employment.
b. The refusal to bargain
Respondent admittedly refused to bargain with the Union. Its answer pleaded
that it had stated to the Union its willingness to bargain if the Union should
file a representation petition and obtain a certification as a result of an election.
That defense was not supported by the evidence, Respondent leaving unrebutted
the testimony of Price and Radley that neither Hartman nor Kiefer made any
reference to an election or to the Company filing a petition.
Nor is there any evidence that either Hartman or Kiefer expressed doubt
of the Union's majority or requested the Union to substantiate its claims.
Though Hartman at one point asked to see the cards, it was not because of, or
to allay, doubts that the Union in fact represented a majority, but was "so that
I will know who has signed." In view of Respondent's earlier unfair labor
practices and its avoidance of a commitment to bargain, the Union was obviously
justified in refusing at that point to disclose to Respondent the identity of its
adherents. Nor did Hartman or Kiefer, on the occasion of the later requests to
bargain, express doubt of the Union's majority representation. Instead, as pre-
viously found, Respondent continued its course of conduct which was designed,
by promises of benefit, to procure repudiation by the employees of their repre-
sentation by the Union and the substitution therefor of an employee grievance
committee of Respondent's choice. Respondent completed its forestalling of the
Union by thenceforth recognizing and dealing with that committee on wage
rates and working conditions and by continuing its promises and granting of
benefits without consultation with the Union.
It is settled law that an employer, having resorted to a course of unfair labor
practices to defeat a union's majority representation, cannot be heard to say
that it entertained good-faith doubts of the fact of majority representation.
See, e. g., Indiana Metal Products Corp., 100 NLRB 1040; D & D Transportation
Co., 100 NLRB 920; Rehrig-Pacific Co., 99 NLRB 163, and cases there cited.
There was not, as contended by Respondent, any obligation on the Union's part,
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the circumstances here presented, to file a representation petition in order
to obtain bargaining rights. D & D Transportation Co., supra; Louisville Con-
tainer Corp., 99 NLRB 81, and cases there cited, footnote 4.
It is, therefore, concluded and found that by its aforesaid conduct, Respond-
ent on July 17, 18, and 20, and thereafter, refused to bargain with the Union,
and thereby committed an unfair labor practice proscribed by Section 8 (a) (5)
and (1).
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONcLusIONs OF LAW
1. The activities of the Respondent set forth in section III, above, occurring
in connection with the operations of 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 thereof.
2. The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
3. All production and maintenance employees employed by Respondent at its
Fairport, New York, plant, exclusive of all office and clerical employees, guards,
professional and supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. At all times since July 16, 1951, the Union has been and now is the exclusive
representative of all the employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9 (a) of the Act.
5. By failing and refusing at all times on and after July 17, 1951, to bargain
collectively with the Union as the exclusive representative of the employees in
the aforesaid unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
6. By discharging John J. Smith on July 16 and again on October 22, 1951,
and by thereafter refusing to reinstate him, because of his union membership and
activities, Respondent engaged in discrimination and committed an unfair labor
practice within the meaning of Section 8 (a) (3) and (1) of the Act.
7. By interfering with, restraining, and coercing its employees in the rights
guaranteed 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.
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 in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
WE WILL NOT discourage membership in INTERNATIONAL AssocIATION OF
MACHINISTS, or in any other labor organization of our employees , by dis-
charging or refusing to reinstate any of our employees , or in any other
manner discriminating against them in regard to hire or tenure of employ-
ment or any term or condition of employment.
TELEGRAPH PUBLISHING COMPANY 1173
WE WILL NOT interrogate our employees concerning their union member-
ship and activities ; advocate or assist the formation of, or recognize or
negotiate with, a grievance committee as the representative of any of our
employees for the purpose of forestalling and defeating the selection of the
union as their bargaining representative ; or promise and grant unilaterally,
and without consultation with the union, wage and other benefits.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS
or any other labor organization, to bargain collectively through represent-
atives of their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to John J. Smith 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 as a result of our discrimination against him.
WE WILL bargain collectively, upon request, with INTERNATIONAL ASSOCIA-
TION OF MACHINISTS as the exclusive representative of all our employees in
the bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an agree-
ment is reached, embody such understanding in a signed contract. The
bargaining unit is :
All our production and maintenance employees employed at our Fair-
port, New York, plant, exclusive of all office and clerical employees,
guards, professional and supervisory employees as defined in the Act.
All our employees are free to become or refrain from becoming members of
the above-named union, or any other labor organization, except to the extent that
the right to refrain may be affected by a lawful agreement requiring membership
in a labor organization as a condition of employment.
TRESCOTr COMPANY, INC.,
Employer.
By ------------------------------
(Representative ) (Title)
Dated------------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
TELEGRAPH PUBLISHING COMPANY and AMERICAN NEWSPAPER GIIILD,
CIO, PETITIONER. Case No. 1-RC-19413. February 9, 1953
Order Rescinding Certification
On November 18, 1952, the Employer filed a motion with the Board
requesting rescission of the certificate issued by the Board on May
25,1951, to the Petitioner in the above-entitled proceeding as exclusive
bargaining representative of certain of the Employer's employees.
102 NLRB No. 113.
250883-vo1 . 102-5,3----75,