Vail Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1945

61 N.L.R.B. 181 (N.L.R.B. 1945)

4
In the Matter of VAIL MANUFACTURING COMPANY and UNITED
STEELWORKERS OF AMERICA, C. I. O.
Case No. 13-C-2295.-Decided March 31, 1945
DECISION
AND
ORDER
On October 9, 1944, the Trial Examiner 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
that it had not engaged in certain other unfair labor practices, and
recommending that it cease and desist from the unfair labor practices
found, and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto, and that the complaint be
dismissed as to the remaining allegations. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
No exceptions were filed by the Union. No request for oral argument
before the Board at Washington, D. C., was made by any of the parties.
The Board has considered the rulings of the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's brief and exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions; and recom-
mendations of the Trial Examiner, with the exceptions and additions
noted below :
1. We concur in the Trial Examiner's finding that on December 1,
or 2, 1943, the respondent, through its president, Walter Vail, ques-
tioned a group of older employees concerning their membership and
interest in the Union and union organization. Our finding in this
respect is based on Walter Vail's admission that he questioned them
concerning the "spirit of unrest" in the plant, on the credible testimony
of employee Terris that President Vail asked him if he belonged to
the Union and on the credible testimony of employee Bloch that Vail
asked him_ if he heard anything about a union trying to get into the
shop.'
' Walter Vail denied having asked the questions attributed to him by employees Terris
and Bloch In view of Walter Vail's admission hereinabove set forth and the fact that
the Trial Examiner discredited Vail in other respects, we reject Vail's denials.
61 N. L. R B., No. 22.
181
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•
2. The respondent contends that the Trial Examiner erred in finding
that the anti-union petition of December 2, 1943, was inspired,, and its
circulation assisted, by the respondent. We do not agree. That the
respondent assisted in the circulation of the petition is apparent from
the fact that department heads signed it and circulated it among the
employees at the plant during working hours, and from the fact that
President Vail knew of, and did not impede, the circulation of the
petition. That the petition was inspired by the respondent is a
reasonable inference from the fact that the respondent was admittedly
opposed to outside unions and made this opposition known to some of
its employees; that shortly before the circulation of the petition,
President Vail called into his office a group of older employees, in-
cluding Thorpe, head of the industrial staple department, and ques-
tioned them concerning the "spirit of unrest" in the plant and their
union affiliation; that the petition was originally drafted by Siss, one
of the employees in the group called into Vail's office; and that the
older employees and department heads assisted iii the circulation of
the petition.
3. The Trial Examiner found that, the respondent's classification,
for the purpose of a Board election, of Frank Mastik and Joseph
Mastik as non-supervisory rather than supervisory employees, and its
attempt to persuade them to consent to such classification, constituted,
in the circumstances of this case, an unfair labor practice. We agree.
Although the Mastiks did some production work, they were in charge
of their respective department and effectively recommended employees
for promotion or discharge. Accordingly, they would fall within the
Board's customary definition of supervisors and be excluded from the
unit of employees eligible to,vote. Expecting the Mastiks to vote
against the Union, the respondent sought to qualify them for'such a
vote by listing them as "operators." 2 This attempt to swell the anti- -
union vote and to prevent the employees from making a genuine choice
of a bargaining representative, constituted part of the respondent's,
campaign to defeat the Union. We find that by such conduct the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
4. We concur in the Trial Examiner's finding that the respondent
discharged the Mastiks for refusing to assist it in the commission of an
unfair labor practice and thereby violated Section 8 (3) of the Act.
The respondent takes exception to this finding on the ground that such
a discharge does not discourage or encourage membership in a labor
2 The respondent contends that in classifying the 1llastiks as non-supervisory, it 'was,
acting in good faith because of its belief that they (lid not fall within the definition of a
supervisor under the Fair Labor Standards Act Assuming that the respondent was acting
in good faith in this respect, it assumed the risk of its determination being erroneous
Matter of American Needlecraft, Inc., 57 N. L. R. B. 1569.
VAIL MANUFACTURING COMPANY 183
organization. We find no merit in 'the respondent's contention. It
is a reasonable inference that, in a small plant such as the respondent's,
where the employees are aware of the respondent's opposition to the -
Union, the discharge of supervisory employees for refusing to aid the
respondent in its campaign against the Union would come to the
attention of the ordinary employees, would cause such employees rea-
sonably to fear that the respondent would take similar action against
those who favored the Union, as in fact it did, and would therefore
discourage membership in the Union. Moreover, the discharge of
the Mastiks would similarly interfere with, restrain, and coerce the
employees in the exercise of the rights guaranteed in Section 7 of the
Act, and hence in addition constituted an independent violation of
Section 8 (1). Whether the discharges be viewed as violations of
Section 8 (1) or of Section 8 (3) of the Act, we find that it is necessary
to order reinstatement with back pay in order to effectuate the policies
of the Act.
5. The respondent contends that the discharges of November 29,
December 1, 2, and 3, 1943, were motivated by economic necessity and
not by the advent of the Union, as found by the Trial Examiner. In
support of its contentions the respondent points particularly to the
Trial Examiner's finding that the discharges of November 26, 1943,
were made in the regular course of the respondent's operations, and to
the impact of the War Production Board Limitation Order L-73 upon
its business. We agree with the Trial Examiner. In view of the fact
that the proportion of union to non-union employees discharged on
November 26 was not excessive in comparison to the proportion of
union to non-union employees in the plant,3 that the union employees
in this group were not particularly active in the Union, and that it
was not until after these discharges were effected that President Vail,
who had returned from Florida on November 25, sought to ascertain
the extent of "unrest" in the plant resulting from the Union's organi-
zational efforts, it is reasonable to infer, and we find, that these dis-
charges were determined upon and effected before President Vail
became fully aware of the extent of employee interest and participa-
tion in the Union. ;1n rejecting the respondent's contention we con-
sider significant, among other facts set forth in the Intermediate
Report, the fact that the respondent knew that it would get a new
metal quota on January 1 and hoped that restrictions on the manufac-
ture of its product would shortly be removed, as in fact it was; that,
despite the War Production Board Limitation Order, the respondent
made no reduction in personnel during the preceding 2 months al-
though in certain departments there was not enough work to go
3 Only two of the six employees discharged were members of the Union and one of the
non-union employees was immediately rehired.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around; that admittedly there was a scarce labor market at that time;
that simultaneous with the discharges in question, the respondent hired
part-time workers; and that while it considered the release of employee
Maahs an absolute business necessity, it nevertheless gave him a wage
increase a week before his discharge .4 .
Viewed as a whole the discharges fall into a pattern which points
to discrimination. We are led to this conclusion by the following
facts, among others set forth in the Intermediate Report : (1) the
admission of Richard Vail that he was opposed to outside unions; (2)
Walter Vail's anti-union statements and conduct, as set forth in the
Intermediate Report, particularly his statement to Frank Mastik that
the employees who did not sign the anti-union petition should be
discharged; (3) the part played by the respondent in the origin and
circulation of the anti-union petition; (4) no employee who signed
the anti-union petition was discharged, while all those who refused
to sign were discharged; (5) only union members, including the presi-
dent, vice president and other office holders, were discharged on and
after November 29, although only • a bare majority of the employees
were members of the Union; (6) the varying dismissal standards used
in the different departments which achieved the result of reaching
only union members; (7) that the decision to retain one employee was
revoked as soon as President Vail learned that the employee was to
be vice president of the Union, while another employee was told in
effect that he was mistakenly discharged because of the respondent's
belief that he was active on behalf of the Union; (8) the timing of
the discharges, e. g., some were dismissed within a few hours after
refusing to sign the anti-union petition, some were dismissed before
the end of a regular weekly pay day, others on the day following a
regular weekly pay day, and still others in the middle of their shift;
(9) the anti-union activities of Wisniewski, head of the staple packing
department, as set forth in the Intermediate Report, who selected a
large number of the employees for discharge, was aware of the union
membership and activities of practically all those selected by her, and
had told some of them to "lay-off" because they would not get any-
where by joining the Union; (10) the reasons given for the selection
of certain employees, e. g., three employees constituted a "clique" who
had the "same idea," another employee was too "ambitious," and others
were "dissatisfied"; (11) the fact that, despite an admitted labor
shortage and an expected relaxation of production restrictions, the
employees, many of whom were skilled, were discharged rather than
laid off; and (12) that when production substantially increased the
following February due to the anticipated removal of War Production
4 We do not rely on the Trial Examiner's observations, in footnote 17 of the Intermediate
Report that the staple packing department was a more logical place to begin a reduction of
force,
VAIL MANUFACTURING COMPANY 185
Board restrictions, the respondent did not recall any of the dis-
charged employees but hired new ones and advertised for-others.
Upon the entire record we find, as did the Trial Examiner, that the
discharges on November 29 of three union members (including the
president of the Union, the two most active in forming the Union, and
one who was among the first to join) were made in an effort to check
the "spirit of unrest" which President Vail discovered, had increased
at the plant, and that the discharges on December 1, 2, and 3, were
motivated by the respondent's desire to defeat the Union.
6. The respondent contended that the Board should not order the
reinstatement of employee Kosiara because she signed and cashed
another employee's check. The record discloses that this incident took
place several months prior to Kosiara's discharge and that the respond-
ent had retained her because she made restitution. It is clear, and we
find, that the respondent's selection of Kosiara for discharge and'
the failure to recall her was in no way motivated by the incident
relating to the check. While we do not condone Kosiara's conduct in
this respect, we are of the opinion that, under the circumstances dis-
closed here, the effectuation of the purposes and policies of the Act
require her reinstatement with back pay.
7. Our back-pay order with respect to Joseph Mastik, who was
inducted into the armed forces of the United States after he was dis-
criminatorily discharged by the respondent, shall be taken to mean
that the respondent shall pay immediately to Joseph Mastik that por-
tion of the net back pay accumulated between the date of his discharge
to the date of his induction into the armed forces without awaiting
a final determination of the full amount of his award.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Vail Manufacturing Com-
pany, Chicago, Illinois, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, or any other
labor organization, by discharging or refusing to reinstate any of its
employees, or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of their
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities, for the
purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action,, which the Board finds will
effectuate the policies of the Act :
(a) Offer the employees named in Appendix A immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make whole the employees named in Appendix A, with the
exception of Joseph Mastik, for any loss of pay they may have suf-
fered by reason of the respondent's discrimination against them, by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings during said period;
(c) Upon application,by Joseph Mastik within ninety (90) days
after his discharge from the armed forces of the United States, offer
him immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or other rights
and privileges;
(d) Make whole Joseph Mastik for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages during the periods (1) between
the date of his discharge by the respondent and the date of his induc-
tion into the armed forces of the United States, less his net earnings
during said period; and (2) between the date five (5) days after his
timely application for reinstatement and the date of the respondent's
offer of reinstatement, less his net earnings during said period;
(e) Make whole the employees named in Appendix B for the loss
of pay they may have suffered by reason of the respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
during the period from the date of his discharge to the date of his
reemployment by the respondent, less his net earnings during said
period ;
(f) Post at its plant at Chicago, Illinois, copies of the notice, at-
tached hereto, marked "Appendix C." Copies of said notice to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
VAIL MANUFACTURING COMPANY 187
including all places where notices to 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;
(g) Notify the ' Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated against Frances Mutz and Mildred An-
drzejak within the meaning of Section 8 (3) of the Act,,be, and it,
hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
APPENDIX A
Leona Becker
Walter Carlson
Paul Galgan
Carmella Girodano
Richard Hirschman
Emma Kosiara
Louis Maahs
Frank Mastik
Christopher Monestere
Helen Szmagalski
Russell Wade
Anthony Bombin
Stuart Fairbanks
America Giglio
Axel Gustafson
Angeline Just
Edward Lusinski
Dorothy Malozzi
Joseph Mastik
Mary Monestere
Rose Vommaro
APPENDIX B
Josephine Anderson Reynold Leffring
Rose Girodano Virginia Murphy
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to an Order 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 in any 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 United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges'
previously enjoyed, and make them whole for any loss of pay suf-
fered as a result of the discrimination.
Leona Becker Frank Mastik Axel Gustafson
Walter Carlson Christopher Monestere Angeline Just
Paul Galgan Helen Szmagalski Edward Lusinski
Carmella Girodano Russell Wade Dorothy Malozzi
Richard Hirschman Anthony Bombin Joseph Mastik
Emma Kosiara Stuart Fairbanks . Mary Monestere
Louis Maahs America Giglio Rose Vommaro
We will make whole the employees named below for any loss of
pay suffered as a result of the discrimination.
Josephine Anderson Reynold Leffring
Rose Girodano Virginia Murphy
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of-any such labor organization.
VAIL MANUFACTURING COMPANY,
Employer.
By ----------------------------------
(Representative ) (Title)
Dated --------------------
NOTE: Any of the above -named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Francis X. Helgesen, for the Board.
Mr. John Harrington , of Fyffe A Clai ke, of Chicago, Ill., for, the respondent.
Mr. George E . Mischeau and Mr Sam Taylor, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 11 , 1944, by United Steelworkers of
America, C. I. 0., herein called the Union, the National Labor Relations Board,
herein called the Board , by its Regional Director for the Thirteenth Region
(Chicago, Illinois ), issued its complaint dated May 11, 1944, against Vail Manu-
facturing Company, herein called the respondent , alleging that the respondent had
VAIL MANUFACTURING COMPANY • 189
engaged in and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices, the complaint as subsequently
amended' alleged, in substance, that the respondent: (1) from on or about October
1, 1943, warned its employees not to affiliate with the Union, engaged in surveil-
lance of its employees, and caused to be circulated a petition for the purpose of
coercing its employees into abandoning their union affiliations; (2) on or about
December 1, 1943, discharged Josephine Anderson, Mildred Andrzejak, Leona
Becker, Anthony Bombin, Walter Carlson, Stuart Fairbanks, Paul Galgan,
America Giglio, Carmella Girodano, Rose Girodano, Axel Gustafson, Richard
Hirschman, Angeline Just, Emma Kosiara, Reynold Leffring, Edward Lusinski,
Louis Maahs, Dorothy Malozzi, Christopher Monestere, Mary Monestere, Virginia
Murphy, Frances Mutz, Helen Szmagalski, Rose Vommaro, and Russell Wade,
because of their union membership and activity, and failed and refused to
reinstate any of them with the exception of Josephine Anderson, Rose Girodano,
Reynold Leffring, and Virginia Murphy, because they joined the Union and
engaged in concerted activities with other employees; and (3) on or about
December 6 discharged and thereafter failed and refused to reinstate two other
employees, Frank Mastik and Joseph Mastik, for the reason that they refused to
assist the respondent in the commission of unfair labor practices.
On May 22, 1944, the respondent filed an answer, which was amended at the
hearing, admitting certain of the allegations of the complaint, but denying that
it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held from May 22 to 26, 1944, at Chicago,
Illinois, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel
and participated in the hearing. The Union was represented by two organizers.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties. At the close
of the hearing the Trial Examiner reserved ruling upon a motion by counsel for
the respondent to dismiss the complaint as a whole, and upon another motion to
dismiss the allegation respecting Frank and Joseph lIastik. The motions are
now denied. The parties were advised that they might argue orally before the
Trial Examiner and might file briefs with the Trial Examiner within 14 days
from the close of the hearing. Subsequently, the Trial Examiner extended the
time within which briefs might be filed None of the parties argued orally. On
June 19, both the Board and the respondent filed briefs
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 THE RESPONDENT
The respondent is a corporation having its principal office and place of business
at Chicago, Illinois, where it is engaged in the manufacture and sale of coat
hangers, paper clips, staples, and related products. The principal materials used
by the respondent are steel-castings and wire forms. During the year 1943, the
total value of the materials used by the respondent was in excess of $50,000, of
'During the course of the hearing counsel for the Board moved, without objection, to
amend the complaint to include the names of three employees, not named in the complaint
as originally drawn, and alleged to have beep discriminatively discharged. The Trial
Examiner granted this motion.
639678-45-vo,j. 61-A4
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which more than 50 percent was purchased in States other than the State of
Illinois and transported to the Chicago plant. During the same period, the value
of the respondent's sales of finished products amounted to more than $100,000,
of which more than 50, percent was shipped to purchasers outside the State of
Illinois.
The respondent admitted at the hearing that it was engaged in commerce within
the meaning of the Act, and subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting employees of the respondent to
membership.
III. THE UNFAIR LABOR PRACTICES
A. History of union organization
In May 1943, at a tavern near the'plant, commonly referred to by employees as
the' "Corner", a union organizer approached a group of the respondent's employees
including Walter Carlson. and endeavored to interest them in union organization.
This encounter, although it produced no organizational results, came to the
attention of Walter Vail and Harry Vail, the respondent's president and vice-
president and plant superintendent, respectively.
On the following morning, according to the credible testimony of Richard
Hirschman, subsequently discharged along with Carlson under circumstances
hereinafter related, Harry Vail approached Hirschman and asked him what he
knew about "what happened last'night-at the Corner" Hirschman told Vail
that he had not been present at the "Corner", but that he understood there had
been an "impromptu" meeting of little importance Later in the day, Hirschman
was summoned to the office of Walter Vail. Walter Vail, according to Hirsch-
man's testimony, opened' the conversation by stating that lie understood that
some of the employees were dissatisfied with their working conditions, and asked
Hirschman, if that was true. When Hirschman replied that he knew of no par-
ticular dissatisfaction, Vail brought up the incident at the "Corner" the previous
night, and asked him if Carlson and several other employees, whom he named,
were interested in union organization. Hirschman assured Walter Vail, as he
had Harry Vail, that the meeting in question was a chance meeting and that
no organizing was under way Vail, according to Hirschman's account, con-
cluded the conversation by telling Hirschman that he wanted to keep the
respondent's labor relations on a "stable basis," and that rather than tolerate
any other condition he would "close the doors "
Harry Vail was not called as a witness,' and Hirschman's testimony as to his
conversation with him stands uncontradicted in the record. Although Walter
Vail denied on direct examination that he had had any such conversation with
Hirschman as above related, on cross-examination lie stated simply that he did
not recall it. The undersigned finds that on the occasions related, Walter and
Harry Vail made substantially the statements attributed to them by Hirsch-
man. Inasmuch as Walter Vail's statement, that the respondent would close
the plant rather than tolerate any unstable conditions, was coupled with his
questioning of Hirschman concerning union activity, it was tantamount to declar-
ing that, the respondent would close the plant rather than submit to its
unionization.
Walter Vail testified that Harry ' Vail was at the plant during the hearing.
VAIL MANUFACTURING COMPANY 191
During the latter part of October 1943, the first step was taken in organizing
the respondent's plant when a group composed of Carlson, Hirschman, and
another employee visited the Union's headquarters in Chicago and inquired
concerning organization As a,result, the first organizational meeting was held
at a private home on November 5, attended by between 12 and 14 of the respond-
ent's employees. Memberships were obtained at this and succeeding meetings,
and at a meeting on November 21 a formal organization was perfected and officers
were elected. Hirschman was chosen president, and Carlson, outer guard.
Other employees whose subsequent discharges are hereinafter considered were
elected to other offices.
On the following day, November 22, the Union wrote the respondent advising
it that the Union represented a majority of its employees, and requesting a
meeting on November 27, for the purpose of negotiating a contract. The respond-
ent did not reply to this letter. , On November 29, the Union filed with the Board
a petition for investigation and certification ' The petition was withdrawn on
December 4, following the discharges complained of.
B. Events immediately preceding the discharges; interference, restraint, and
coercion
President Vail testified that he became aware of "unrest" in the respondent's
plant, "aggravated " by union organization , in November , shortly before he left
,for a vacation in Florida. While on vacation he was informed by telephone
of the respondent's receipt of the Union's letter of November 22, and left almost
immediately for Chicago where he arrived on Thanksgiving Day, November 25.
He testified that upon his arrival at the plant lie found the spirit of "unrest"
still further "aggravated". Frank Mastik,' in charge of the standard staple
department, testified that shortly after President Vail's arrival he called Mastik
to his office, where, in the presence of Harry Vail, he showed Mastik the Union's
letter and stated that the respondent "did not need anything like that," and
that the Union was "a bunch of racketeers". Walter Vail denied that he made
any such statements to Mastik. The undersigned finds, however, that Vail made,
in substance, the statements attributed to him
Richard Vail testified that upon Walter Vail's return from Florida the two of
them discussed the growth of union sentiment among the employees , and that
Walter Vail suggested that some of the older employees should be called together
and that an attempt be made to find out from them the reason for the desire
of the employees for organization. Accordingly, on December 1 or 2, President
Vail called to-his office Robert Thorpe , head of the industrial staple department,
and four or five other employees of long standing, including Arthur Siss ° and
3 Vail Manufacturing Company and United Steelworkers of America , C 1 0 , Case No.
13-R-2196.
' Richard Vail , the respondent ' s secretary -treasurer, testified that the formal title of
foreman was not conferred on any of the respondent 's supervisory employees, and
referred to the various department heads, including Frank Mastik , as "working super-
visors." It is not disputed that Mastik, who, like other department heads was paid
on an hourly basis and did some production work , was the head of the standard staple
department at the time of the activities herein complained of, and effectively recommended
employees for promotion and discharge He was responsible directly to Walter and
Harry Vail for the work of the department.
6 Walter Vail ' s credibility as a witness on this point is adversely • affected by his
testimony that Mastik's subsequent termination of emplo} nient was a resignation and
not a discharge , as well as by his attempt to persuade Mastik and Mastik's brother,
Joseph, both of them supervisory employees , to list themselves as non-supervisory em-
ployees so that they might vote in a prospective Board election.
6 Siss was not called as a witness.
,192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Marsh, and asked them what was causing the "spirit of unrest" in the
plant. On December 2, there was circulated throughout the plant the following
petition :
DECEMBER 2, 1943.
To the Vail Manufacturing Company; War Labor Board or Whom It May Concern:
We, the undersigned employees, of the Vail Manufacturing Company are satis-
fied with management, treatment and working conditions and are opp9sed to
union organization. '
The petition, the circulation of which was confined to the day of Decemler 2,
was apparently originally drafted by Siss. It was redrafted in the respondent's
office by a clerical employee, after which it was signed by all of the department
heads and circulated by them and others, including Marsh and Siss, among the
employees generally. After most of the employees had signed the petition it
was presented to President Vail. Although Vail denied that he was aware of
the manner of circulation, he admitted that he knew of its circulation prior to
being presented with it! It is a reasonable inference, and the undersigned finds,
that the petition was inspired by the respondent. Irrespective of its origin,
however, the undersigned finds that 'the respondent aided and approved its
circulation8 It is a noteworthy fact, reference to which is hereafter made-in
connection with the discharges on December 2, that no employee who signed the
petition was discharged.
Frank Mastik, in the standard staple department, was able to obtain only the
signatures of himself, his wife, his brother Joseph, and Block, his assistant, and
so reported to Walter and Harry Vail. Mastik gave the following account of
their reaction to his report:
Q. Did you have any conversations with any of the Vails with reference
to this petition?
A. Well, after I give him the petition, after I give the petition to Robert
Thorpe, I met Harry Vail in the aisle and told him that none of my help
would sign it outside of those three, besides myself.' We went into Mr.
Walter Vail's office and he said that the best thing to do would be to get
rid of them, or those people that would not sign it, which we proceeded to do.
[Italics supplied.]
T The respondent, in its brief, states that Walter Vail testified that he did not see
the petition or know who had signed it until several days after December 2, the date
of its circulation. Actually, Vail's testimony as to when he first saw the petition was
"It may have been around the 4th, I imagine " It is hereinafter found that Vail knew
on December 2 who had "signed, and who had not.
8 The respondent's general attitude toward unions and union organization appears
from the testimony of Richard Vail.
Q. As a matter of fact, you are quite opposed to unions, are you not?
A. No, I am not.
Q Are you just opposed to them in your shop?
A. I would not be opposed to a company union.
By Trial Examiner RIICKEL :
Q What do you mean by a "Company Union" 9
A I mean a union formed of the employees of Company and officered among
themselves
r e s s • a s
By Mr. HELGESEN
Q Then do I understand it to be your testimony that you are primarily opposed
to outside unions
A. You might put it that way, yes.
VAIL MANUFACTURING COMPANY 193
By questioning employees concerning their membership and interest in the
Union and union organization, and by inspiring the petition of December 2, 1943,
and aiding in its circulation, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them in Section 7
of the Act.
C. The discharges; further acts of interference, restraint, and coercion
The respondent defends all the discharges' on the ground of certain produc-
tion restrictions and limitations imposed by the War Production Board in its
Limitation Order L-73. The basic, pertinent provision of this order reads as
follows : ,
During each period of 3 months beginning with July 1, 1942, until otherwise
ordered, no producer shall use :
In the manufacture of Group II products,'0 more iron and steel than 15
percent of the aggregate weight of all materials used by him in the manu-
facture of Group II products during 1940.
The respondent has been operating under the above provisions since July 1;
1942 They have had the effect of reducing the respondent's production of paper
clips, staples and pins to approximately 60 percent of its 1910 production, and of
suspending entirely the manufacture of some other items. During this period
the respondent has accommodated itself to the basic production restrictions
imposed upon it, and it is not claimed that the discharges in question were
occasioned by the existence of these particular restrictions. A further regulation
of the War Production Board, however, though permitting manufacturers, includ-
ing the respondent, to anticipate during one quarter of a year a portion of its
metal allocation for the following quarter, forbids them, during the last quarter
of any year, to draw upon their metal quota for the first quarter of the following
year. The respondent defends the discharges complained of specifically upon the
ground that by the latter part of November, 1943, the respondent's stock of metal
had declined to such a point that it could not maintain its level of production for
the month of December 1943 without drawing upon its quota for the first quarter
of 1944 This being forbidden, the respondent, according to its contention, deter-
mined further to restrict production during December, and to release a propor-
tionate number of employees.
Beginning about November 15, Walter and Richard Vail several times discussed
the possibility of having to reduce operations for the remainder of 1943. It was
not until November 30 or December 1, however, according to the testimony of
Richard Vail," that such a reduction was finally decided upon. The decision was
° With the exception of the discharge of Frank and Joseph Diastik who, the answer
alleges, resigned their employment
10 Group II products include those manufactured by the respondent, such as paper clips
and stapling machines.
li Vail's testimony on this point was as follows .
By Mr. HARRINGTON :
Q. Did you have any conversations with your brother, Mr. W. J. Vail, along in
November, 1943, about this situation?
A. We had several discussions.
Q. What was said by you and what was said by him in connection with the using
up of your production quuota?
A. Well, It was pointed out that the records were kept in my office by a statistician,
and pointed out to W. J. Vail that they were dangerously close to the limitation.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made following the receipt of figures on production and on the consumption of
raw materials for the month of November.12 It was followed by the discharge 13
of six employees on December 1, 13 on December 2, and one on December 3,
all of whom are named in the complaint. The decision was preceded, however,
by the discharge of 6 employees on November 26, 2 of whom are named in the
complaint;' and by the discharge on November 29 of three others, Hirschman,
Carlson, and Bombin, all of whom are so named.
As is hereinafter found, no employee not a member of the Union was laid off or
discharged as the result of the decision to reduce employment, in spite of the
fact that on November 29, the respondent employed approximately 110 employees,
of whom only 67 were members of the Union 16
1. The discharges on November 29 in the wire drawing department
Richard Hirschman was employed by the respondent on December 17, 1941.
At the time of his discharge lie was working as a die reamer in the wire drawing
department, under the supervision of Nels Thorp, department head. Hirschman
was the only employee- to do this type of work with the exception of Thorp, who
did die reaming when not actively engaged in supervising the 15 employees in the
wire drawing department.
Walter Carlson came to work in October, 1939. When ,discharged, he was
working as a wet wire drawer along with three others doing that work, all of
whom had been hired before Carlson. ,
Anthony Bombin was employed in September 1932. When discharged, he was
working on the night shift as a wire tinner, along-with two other tinners, Siss
and Botta, both of whom had been hired prior to Bombin.
point, and that we would have to cut production and operations and to do it quickly,
or lay ourselves open to' the penalty that was prescribed to us the previous year.
Q And then what did you decide to do, you-and W. J Vail'?
A We decided that there was no alternative but to, reduce our operations and
proportionately reduce our force
Q. And can you recoiled (sic) about what time of the fourth quarter of 1943
you reached that decision 9
A. Well, it had been discussed a number of times from the 15th of November on,
and I think it was about the final week in November when I went into his office and
said something had to be (lone and done immediately.
Q Did you have any conversations with Toots' (Wisniewski, staple packing
department forelady.)
A. After I. received figures on production consumption of material at the end
of November, it must have been about either November 30 or December 1=.
Mr. HELGESEN : What is this '1 I don't quite get this. What happened on November
30 and December 1'
The WITNESS That is the time I went in to W J. and said we most do something
about the thing immediately, because we were going to overlap again., [Italics
supplied ]
12 Although Richard Vail testified', as above quoted, that production records were kept
in his office by a statistician, the respondent did not introduce them or any summary
of them in evidence.
13 The term "discharge" is used herein interchangeably with the term "layoff" or
"release". No employee, the termination of whose employment is herein discussed, was
told that he was only being laid off,'or that lie might he rehired, or given any advance
notice that his employment would be terminated . The respondent contended that it could
not so inform its employees because of the lack of any certainty that they would be rehired,
and admitted that, with the exception of a few employees who were rehired, it made
no attempt to recall the others
14 The discharges on November 26 are hereinatter found to have been made in the usual
course of the respondent's business, and not related to the other discharges-
11 The figure on employment is taken from respondent's exhibit No 20, and that on
the Union's membership from the testimony of George Mischeau, sub-district director
of subdistrict No 3, district 31 of the Union.
VAIL MANUFACTURING COMPANY 195
Bombin joined the Union on November 5, at the first union meeting. There-
after he became active in soliciting members The role of Hirschman and Carlson
in forming the Union has been previously discussed
On Tuesday, November 29, Thorp handed Hirschman and Carlson their dis-
missal slips, telling them simply that they were being let go because of "production
difficulties." Bombin, who worked on the night shift, was visited at his home at
about 9 o'clock on the morning of Wednesday, November 30, by Thorp, who handed
him an envelope containing his release, pay check, and a note signed by Walter
Vail telling him that his services were no longer required. Neither Hirschman,
Carlson, nor Bombin was told that he was laid off, rather than discharged, or
given any prior warning that he might be released. The regular weekly pay
day for employees in the wire drawing department was on Wednesday.
The respondent contends that, the release of a number of employees having
been determined upon because of the exigencies of production, Hirschman, Carl-
son and Bombin were selected on the basis of length of service with the respondent.
As has been stated, Hirschman was the only employee who did die reaming with
the exception of Thorp, the head of the department, who was employed several
years prior to Hirschman. Similarly, Carlson had less seniority than any of
the other three wet wire drawers, and Bombin was the youngest tinner in
point of service
The undersigned , however, finds unconvincing the contention that Hirschman,
Carlson, and Bombin were laid off for the reasons assigned by the respondent.
On the basis of Richard Vail's own testimony, it is clear that the decision to lay-
off employees was not reached until December 1, or November 30 at the earliest,
when the production figures for the month of November were available. It is
apparent from the testimony of the Vails, and from the record as a whole, that
up to that time Walter and Richard Vail, although they had discussed the
advisability of reducing production and proportionately reducing employment,
had been postponing such a, decision in the hope that the month of December
might be bridged without such action being necessary 16
It is hardly understandable, if the respondent's, defense is to be credited,
why the respondent should on November 29, prior to its decision to dispense
with any substantial number of employees, and prior to the receipt of the
November production figures, select the wire drawing department, composed
wholly of skilled workers, for a release of three employees." Moreover, as will
more fully appear hereinafter, the wire drawing department was the only de-
partment in the plant where the discharges were made solely on the basis of
14 On January 1 a new quota of metal would be available under the War Production
Board regulations, a fact repeatedly noted by the respondent 's witnesses As a matter of
fact , in February existing restrictions on the production of staples were removed entirely
by the War Production Board, and unlimited production became possible.
17 The staple packing department , under the supervision of Teresa Wisniewski, was a
more logical place to begin a reduction of force Richard Vail testified as folloics with
respect to the employment situation in that department where group discharges did not
begin until December 1:
Q. When you finally decided to lay off the number that she (Wisniewski), had
listed, recommending that they be the ones dismissed, had you thought of cutting
your staff pretty much to the bone , insofar as her department was concerned 9
A. The staff had not been cut to the bone As a matter of fact , we had a lot
of excess labor in that department-we had maintained on the pay roll for a con-
siderable length time, without having sufficient work for them to do , with the
hope that they could be retained on the pay roll by the relaxation of the limitation
orders.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority." It was evident that selection solely on this basis would auto-
matically involve Hirschman, Carlson and Bombin in a lay-off.
The undersigned believes and finds that the discharge of these three employees
was unrelated to the respondent's claimed decision, subsequently made on
November 30 or December 1, to solve a production problem by reducing the
number of employees. Hirschman and Carlson, were of all the respondent's
employees, the two most active in forming the Union, and Bombin was among
the first to join. The questioning of Hirschman the previous May by Walter
and Harry Vail concerning both his and Carlson's interest in union organization,
and Walter Vail's statement to Hirschman at that time that the respondent
would close its plant rather than tolerate its organization by the Union, have
previously been adverted to.' Their later discharge on November 29, prior not
only to the discharge of other employees, but prior even to any decision to dis-
charge others, is not consistent with the respondent's defense that they were
discharged, along with others, in order to reduce the employees to a number
proportionate to the respondent's necessities. Moreover, the method of select-
ing these three employees was not in conformity with the method subsequently
employed elsewhere in the plant, but was such as necessarily involved them,
and them alone, in discharge. The discharges occurred on the day of the filing
of the Union's petition for investigation and certification, a day or so after
Vail's declaration to Mastik that the respondent "didn't need" the Union, and
four days after Vail's return from Florida to find that the "spirit of unrest"
had assumed larger proportions during his absence, and his subsequent inter-
views with the older employees to ascertain the reasons for the growth of union
sentiment.
The undersigned finds that the respondent discharged Hirschman, Carlson, and
Bombin in an attempt to quell this "spirit of unrest", and to check the growth
of the Union. As is hereinafter found, the respondent shortly thereafter dis-
charged other employees in the same endeavor.
2. The discharges in the staple packing department
Teresa Wisniewski is in charge of the respondent's staple packing. Although
she does some packing herself , at least half of her time is spent in supervising
other employees. She effectively recommends employees for hire and discharge.
She testified, and the undersigned finds, that the employees under her direction
*
15 As is hereinafter found, Wisniewski gave length of service only minor consideration
in discharging employees in the staple packing department . Walter Vail testified as,
follows as to the reasons not following seniority in the standard staple department in
subsequently discharging additional employees :
By Trial Examiner RUCKEL:
Q. Were they the newest in that department?
A. Well, I could not say that they were the newest , no, but they would be auto-
matically eliminated by the shut down. It was up to Frank Mastik to choose
them. -
Q Did you tell him the basis on which he was to make the selection?
A. Yes, I told him to go ahead and cut it right down to a skeleton organization-
Q. Well - I want to know - what the criteria was which you gave Mastik in
selecting these people for lay off. You testified that of the wire drawers and wet
wire drawers and tinners and die reamers that seniority was the only criteria, the
last one hired in that category was let out
A. In Frank ' s department there was a continual coming and going of employees
There were comparatively few people who stayed any length of time. I just told
him to keep the people best fitted for the single turn.
VAIL MANUFACTURING COMPANY 197
look upon her as a forelady. In November; 1943, immediately prior to the dis-
charges, she had from 20 to 25 employees under her direction, mostly girls who
performed semi -skilled work.
During the latter part of November, according to the testimony of Richard
Vail,19 Vail told Wisniewski that it might become necessary to lay off a number of
employees in her department, and, according to Wisniewski, instructed her to
prepare a list of those whom the respondent "could do without for awhile." Vail
directed Wisniewski to make her selection on the basis of "seniority, aptitude,
and other considerations of that character." Accordingly, Wisniewski submitted
to Vail a list of six employees.20 Vail told her that in order to meet the respond-
ent's requirements, more than six employees would have to be released, and
instructed her to prepare a second list. About an hour later, Wisniewski handed
Vail another list containing 13 additional names 21
It is noteworthy that Vail, according to both his and Wisniewski's admissions
while testifying, at no time told Wisniewski how many employees the respondent
was contemplating laying off from among the staple packers, or how many
employees Wisniewski should include in either of her two lists.
Thd respondent, on November 26 and December 1 and 2, 1943, discharged all
of those employees whose names Wisniewski had given Vail. No employee whose
name Wisniewski had not given Vail was discharged When asked how it came
about that the 19 employees selected by Wisniewski exactly equalled the number
which the respondent allegedly found necessary to lay off in order to conform
the remaining number of employees to its production requirements, Vail testified
that the total of Wisniewski's two lists "just about fitted in with my impression
of what we could spare without interference of service."
a. The discharges on December 1, 1943
On December 1, 1943, Dorothy Malozzi, Rose Vommaro , Helen Szmagalski, and
America Giglio ," from among those on Wisniewski 's lists , were called to the
office and given release slips along with their pay checks Nothing was said as
to why they were being released from their employment , until Malozzi , Vommaro,
and Szmagalski called on Walter Vail in his office Vail told them, in explana-
tion, that the respondent was "going slow on production."
Wisniewski testified as to her reasons for listing these employees as eligible
for lay-off , that Malozzi, Vommaro , and Szmagalski worked together on the same
conveyor belt, and that they constituted a "clique " which "had the same ideas,"
10 Although Wisniewski testified that she received these instructions during the first week
in November, Vail placed it as occurring during the latter part of the month. The under-
signed accepts Vail's testimony on this point as being more reliable than that of Wisniewski.
20 These employees were • Bryak, Aklinski, Wall, Just, Mutz, and Becker All of them
were subsequently discharged , but only Just , Mutz, and Becker are named in the complaint.
Aklinski, when told she was discharged, personally appealed to Richard Vail and was
reinstated the same day.
21 These employees were : Olson , Adams, Murphy, Anderson, Andrzejak , Giglio, Vommaro,
Malozzi, Szmagalski, Mary Monestere, Kosiara, Carmella Girodano, and Rose Girodano.
All these were subsequently discharged, and all but the first two, Olson and Adams, who
were discharged on November 26, are named in the complaint
22 It will be observed that none of these 4 employees was on Wisniewski's first list of 6
employees which she testified was compiled chiefly on the basis of length of service As to
those employees on the first list, the two named in the complaint-Andrzejak and Mutz,
discharged on November 26-are hereinafter found not to have been discriminatorily
discharged.
Malozzi came to work for the respondent on June 23 , 1941 ; Vomarro , on December 13,
1940; Szmagalski, on June 31 , 1941 ; and Giglio , on April 17 , 1941. Szmagalski joined the
Union on November 5, and the others on November 9, 1943 . Szmagalski was elected one
of the Union 's three trustees . Neither Szmagalski nor Giglio was called as a witness,
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that they were engaged in arguments with fellow employees. Wisniewski ad-
mitted, however, that these were "petty arguments" that did not amount to any-
thing. She further admitted that she first heard about the Union from Malozzi
and Carmella Girodano, who was' discharged on December 2, and that there-
after she heard the Union discussed with increasing frequency in the rest rooms.
She admitted knowing that Malozzi was quite active in promoting the Union,
and that on more than one occasion she told Girodano and Malozzi that she
was opposed to the Union. During one such conversation, according to Wis-
nieswski, the two girls told Wisniewski that they were "going through with it,"
regardless of what Wisniewski had to say.
As to Giglio, Wisniewski testified that she put down her name because she
absented herself excessively from work.
b The discharges on December 2, 1943
On December 2, 1943, as has previously been found, the respondent, through
its department heads and others, obtained the signatures of employees to a
petition in which the employees expressed their loyalty to the respondent and
their opposition to the Union. Carmella Girodano,23 Rose Girodano, Mary
Monestere, Josephine Anderson, and Virginia Murphy were individually asked to
sign the petition and each of them refused to do so. Later, at various times
during the same day, they were called individually to the office and handed their
pay checks and release slips by Richard Vail, who told them simply that the
respondent was cutting down production None of them was told that she was
merely being laid off, or that she might later be called back to work. All of them
had been paid the previous day, which was a regular weekly pay day.
Emma Kosiara, Leona Becker, and Angeline Just also failed to sign the peti-
tion, and were discharged along with the previously named employees. None of
these four employees testified, however, and there is no evidence in the record
that their failure to sign 2' followed a request that they do so.
Wisniewski testified that her first information concerning the Union was
derived from Carmella Girodano, late in November, when she had the following
conversation with her:
The WITNESS: I asked her how come she didn't mention it before, and she
said that she wanted to keep our friendship and she was afraid I wasl a
company man, and if she didn't keep all this on the "Q-T" that I would have
brought it in to the Vails and it would have upset all their plans.
By Mr. HEr0ESEN :
Q What did you say to her?
A. I told her I did not see why she felt she should be in the Union, because
I explained to her that her job could not pay any more-
Wisniewski admitted having another talk with Girodano concerning the Union,
following a talk between Wisniewski and her husband. Wisniewski was not
questioned as to the substance of this conversation, but did not deny Girodano's
credible testimony that it occurred on the morning of December 2, shortly before
23 Carmella Girodano first came to work for the respondent on October 1940 , Rose
Girodano in December 1941 ; Mary Monestere in August 1942; Anderson in January 1943 ;
Kosiara in November 1942; Becker in June 1943 ; Just in September 1943, and Murphy
in July 1943. All of them joined the Union during the first part of November Carmella
Girodano was elected as recording secretary at a union meeting on November 21.
2; Virginia Murphy, also , did not appear as a witness The finding previously made,
that , she was asked to sign the petition and refused , is based upon the testimony of Russell
Wade who was standing near Murphy at the time
VAIL MANUFACTURING COMPANY 199
the circulation of the petition. Wisniewski, according to Girodano„came into the
department "blowing her tops," and "telling all us girls to lay off, that we would
not get anywhere.by joining up with the Union," and stating that she had had
a conversation with her husband the night before in which he declared that
there was "no use" in having a union in the plant. Girodano testified, and Wis-
niewski admitted that, in reply, Girodanoitold Wisniewski, to "mind her own
business," and that she, Girodano , was "wholly for the C. I. 0., and that was all
there was to it."
Wisniewski testified as follows with respect to putting Carmella Girodano on
her list for discharge:
Well, Carmella Girodano had ability and she was in for some higher work.
In other words, she was an operator's helper"' Now she had so much ambi-
tion that she would have like to have been an operator, but in order to recog-
nize her and speak for her in the office and get her that promotion, that would
mean throwing off the real operator, and you could not very well do that, so
being that she had that ability, I thought maybe if she got out she would
have a chance to be recognized somewhere else.
Q. Well, you discharged her for her own good, is that it?
A. No, sir, she was very dissatisfied and we could not do anything for her
at the time, and I did not know how soon we would do anything for her
Q Did you tell her prior to the time she was discharged, just what you
told us as to the reason for letting her off?
A. No, sir, I did not. I just gathered that is how she felt, and that is
how I felt.
With respect to Rose Girodano, Wisniewski testified that, although she had
ability, she was "dissatisfied toward the end there, just before I put them down,"
so she gave her "a chance to prove her ability elsewhere." Concerning her reason
for including Mary Monestere in her list, Wisniewski stated that it was because.
like Rose Girodano, she was "dissatisfied." As to Anderson and Murphy, who
were on the night shift, Wisniewski testified that they preferred night work and,
inasmuch as the respondent was discontinuing the night shift," Wisniewski
decided to put their names on her list. There is no evidence, however, that either
Anderson or Murphy was asked if she would be willing to work on the day shift.
Wisniewski gives as her reason for including Becker and Just, that they had
been employed only a short while, and that Just had not made satisfactory
progress in learning her work. Wisniewski did not testify as to why she
selected Kosiara 27
The undersigned does not credit Wisniewski's reasons for including the above-
named employees on her list for lay-off or discharge. As has been stated, the
respondent discharged no employees on December 1 and 2, except union members,
although as of December 1, only a bare majority of the respondent's total number
of employees belonged to the Union. It is also significant that no employee, any-
15 As operator's helper, rather than a packer-a position she had formerly heed-Giro-
dano was under the direct supervision of Robert Thorpe, head of the industrial staples
department, rather than that of Wisniewski
2' It is hereinafter found that the discontinuance of the night shift was the result,
rather than the cause of the discharge
n Richard Vail testified , however, that he was "glad to see " Kosiara's name on the
list because several months previously Kosiara had forged a pay check made out to
another employee but upon her making restitution the respondent decided to keep her in
its employ . The respondent , while it admits that Kosiara was not discharged by reason
of this incident , contends that she should not be reinstated because of it
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where in the plant, who signed the anti-union petition circulated by the respond-
ent,28 was discharged.
Wisniewski's opposition to the Union is evident from the record, as is her
.knowledge or belief that all the discharged employees were members of and
variously active in the Union. He finds that such membership and activity were
factors which, among others, caused her to include them in a list of employees
whom the respondent should discharge, if and when the occasion arose.
It has been found that Wisniewski, according to her own testimony, and acting
upon the instructions of Richard Vail, compiled two lists of employees whom the
respondent "could do without for a while." The six employees whose names were
on her first list 21 were those whom it would normally be expected would be the
first to be laid off. Six employees were, in fact, laid off on November 26, but
these included only two employees on Wisniewski's first list,30 and four others"
Two others on this first list, Just and Becker, were, as has been found-, not dis-
charged until December 2, shortly after they had failed to sign the petition
which the respondent caused to be circulated on that day. It is a reasonable
inference that the respondent, in spite of the short time that Just and Becker
had been in its employ, originally decided to retain them as employees and to
discharge others in their stead, and that it decided otherwise only after, and
because of, their failure on December 2, to sign the anti-Union petition.
The only common denominator and constant factor that the undersigned is
able to discern in the selection of staple packers, as well as other employees for
discharge, is their union membership and activity. Not only was no non-union
employee discharged, but those discharged were of varying lengths of service as
well as of varying efficiency.
On December 15, the respondent reemployed Murphy. On January 1, a new
quota of metal became available to the respondent and on January 6 it reemployed
Rose Girodano and Anderson. The respondent admittedly about this time began
to advertise extensively for employees. In February, according to Vail's further
admission, the War Production Board removed the ceiling on staple production,
and unlimited production became permissible. The respondent then hired addi-
tional new employees. However, in spite of the fact that, according to the
respondent's contention, it discharged employees only because of the exhaustion
of its 1943 metal quota and the continuing limitations on the amount of production,
the respondent did not reemploy any other discharged employee.32 Asked the
reason for its failure in this respect, President Vail testified that most of them
had obtained work in defense plants, and that he considered it "unethical" to
offer them reinstatement.
c. The prior discharges on November 26
As has been stated, the respondent on November 26 discharged Frances Mutz
and Mildred Andrzejak, along with four other employees not named in the com-
28 Although 18 other employees on the pay roll whose names do not appear on the
petition were not discharged , there is no evidence as to whether these employees were
working at the plant on December 2, and available for signing.
11 As has been stated, these were • Bryak, Aklinski , Wall, Just, Mutz, and Becker, only
the last three of whom are named in the complaint
80 Bryak and Wall, neither of whom is named in the complaint.
31 Olson, Adams, Matz, and Andrzejak , of whom only the last two are named in the
complaint , and as to whom it is hereinafter recommended that the complaint be dismissed.
32 With the exception of Leffring , who was reemployed on December 17 only upon his
promise to resign from the Union But the respondent reemployed Olson and Adams,
two of the six employees discharged on November 26, who were not members of the
Union, and who are not named in the complaint.
VAIL MANUFACTURING COMPANY 201
plaint. Mutz was employed on August 29, 1943, and Andrzejak in May, 1941. They
joined the Union early in November, but neither, so far as the record discloses,
became particularly active in the Union.'
Matz was included in Wisniewski's first list of employees most eligible for lay-
off or discharge. Wisniewski testified that she was included because she had
been only recently employed
Andrzejak although not included on the first list, was laid off according, to Wis-
niewski because she was not making satisfactory progress in learning her work.
Wisniewski testified that these reasons were similarly applicable to the other four
employees discharged on November 26. The undersigned credits Wisniewski's
testimony in this respect. Although both Mutz and Andrzejak belonged to the
Union, the other four who were discharged along with them, did not This pro-
portion of union to non-union employees discharged approximates the rates of
union to non-union in the plant, and contrasts with the fact that only members
of the Union were included in the group discharges on December 1 and 2. Further-
more, the discharges on November 26, while they followed by one day Walter Vail's
return from Florida, preceded not only the respondent's decision on December 1,
to lay off or discharge a substantial number of employees, but also preceded the
discharges on November 29 of Hirschman, Carlson and Bombin, the first two of
whom were those employees most active informing the Union. It has previously
been found, that the discharge of Hirschman, Carlson, and Bombin constituted
the respondent's first move in attempting to put an end to union organization in
the plant. The discharges on November 26, including those of Dlutz and Andrze-
jak, the undersigned finds were made in the regular course of the respondent's
operations, and were unrelated to union activity. It will be recommended that
the complaint be dismissed as to Matz and Andrzejak.
3. Discharges in the industrial staple department
Reynold Leffring and Russel Wade: Leff ring, who is 18 years of age, came to
work for the respondent in June, 1943. At the time of his discharge lie was work-
ing as a staple feeder in the industrial staple department under Robert Thorpe,
department head Wade was first employed in September 1933 He left the
respondent's employ in 1942, was gone 11 months, and returned in March 1943.
At the time of his discharge he was working on the night shift as an operator,
work similar to that clone by Thorpe on the day shift when Thorpe was not
actively engaged in supervising the work of the department.
Both Leff ring and Wade joined the Union during the early part of November.
They were discharged on December 2 within a few hours after they had been
asked and refused to sign the petition previously referred to."
Robert Thorpe was not called as a witness Walter Vail, who approved the
discharges from the industrial staple department, testified that because of the
"loss of business" in that department only enough work was available for a sin-
gle shift, and that he accordingly instructed Thorpe to discontinue the night shift
and to retain the most efficient employees.
Wade, when handed his release by Walter Vail, was told that his shift was
being shut down, that he and the other employees ' on that shift were being
ea Neither Mutz nor Andrze ]ak was called as a witness
34 Leffring was asked by Marsh, and Ward by Thorpe
35 The other employees on the night shift in the industrial staple department were
Virginia Murphy, Josephine Anderson, and another, unnamed employee Murphy and
Anderson have previously been referred to as being . employed in the staple packing depart-
ment The staple packing department was subdivided into the packing of industrial
staples and the packing of standard staples . Apparently staple packers worked alongside
an operator.
202 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD ,
released , and that the respondent was "going to let them go into a more essential
industry ." Leffring was reemployed on December 17, upon advising Walter Vail
that he intended to drop out of the Union . He testified as follows concerning a
conversation with Walter Vail at the time of his discharge , and one with Harry
Vail upon applying for reinstatement :
Q. What did Mr. Vail say to you when you were discharged.
A If I liked my job, and I said "Yes , but I followed the rest."
Q. What do you mean, "You followed the rest"?
A. Because they did it , I did it.
Q. Did what?
A. Did not sign the petition.
Q What did you say to Mr Harry Vail when you went back?
A. I asked him if I could have my job back.
Q. What did Mr. Harry Vail say to you?
A. He said that he would talk it over with his brother-
* * * * * *
By Mr. HELGESEN :
Q. Was the subject of your union membership mentioned in your con-
versation with Mr. Harry Vail?
A. Not that I know of ; I do not think it was.
The undersigned granted the Board 's attorney permission to lead the witness
at this point , in view of his obvious reluctance . Leffring continued :
Q. Does that refresh your recollection? Will you go ahead and tell us
what conversation you had with Harry Vail and what was said by yogi or Mr.
Vail regarding the union?
A. (No answer.)
By Trial Examiner Rucaxt:
Q. Tell us what was said?
A. Well, I said that I did not want to go along with the union, and he
says that he would have to talk it over with his brothers-
By Mr HELGESEN :
Q. Do you recall any mention being made by Harry Vail as to what young
kids would sometimes do?
A. He said that he knew that young kids, you know , that they would follow
the rest, that they would go along with the gang most of the time, what they
would do the other kid would do.
Q. Did he say anything about young kids not thinking before they did
something?
A. Well, he said that he knew that a lot of young "kids do it before they
realize what they are doing.
Q. And was this statement that you have just testified to me made after you
told him that you would drop out of the Union?
A: (No answer.)
Q. Was this statement that you just testified to , the remark made by Mr.
Harry Vail, made to you after you had told him you would drop out of the
Union?
A. Yes.
* * * * * * *
Q. -Why did you tell,that to Mr. Vail?
A. To Harry , when I talked to Harry.
VAIL MANUFACTURING COMPANY
Q. Yes.
A. Well, I did say that.
* * * *
203
Trial Examiner RUCKEL: The question is, "Why did you tell him that?"
The Witness: Oh, I didn't want nothing to do with the Union and I
liked my job and I wanted my job back.
The respondent waived cross examination of Leffring. The undersigned
finds that Leffring was discharged because of his union membership and because
he refused to sign an anti-union petition, and that his reinstatement was con-
ditioned upon his resigning from the Union. As to Wade, the undersigned
concludes that the discontinuance of the night shift was the result of, rather
than the cause, of the discharges, and that Wade's discharge, like that of
Leffring, was because of his membership in the Union.
4. Additional discharge in the wire drawing department
It has previously been found that Hirschman, Carlson, and Bombin were
discharged on November 29, from the wire drawing department, because of
their union membership and activity. On December 1, 1943, the respondent
discharged Axel Gustafson, another employee in that department. Gustafson
was first hired in August, 1941, as a dry wire drawer. He left in September,
1942, to enter the army, from which he was honorably discharged. He returned
to work for the respondent on November 15, 1943,'° as a laborer in the wire
drawing department He joined the Union the same day and was elected outer
guard at the meeting on November 21.
Gustafson was discharged at noon, although his regular quitting time was
5:30 o'clock. Upon releasing him, Nels Thorp, department head, told him only
that he was doing so upon the order of Walter Vail.
Walter Vail testified that Gustafson, like Hirschman, Carlson, and Bombin,
was discharged because he was among the last employees hired. The record
shows that with the exception of Carlson, whose case has previously been dis-
cussed, and Sherbina, a dry wire drawer 3, who also performed some duties as
a watchman, Gustafson was the youngest employee in the department in point
of service.
The undersigned, however, does not credit the reason assigned by the re-
spondent. It is herein found that the respondent's decision to reduce its force
was occasioned and motivated by its desire to put an end to union organization.
Gustafson testified that a dhy or so after his discharge Thorp visited his home
and told him that he had found out that Gustafson "did not have anything to
do with the Union," and that he was "not supposed to be fired." Thorp, while
testifying, admitted the visit and stated that he had a "family talk" with Gus-
tafson during which he told him that he "would have a chance to come back"
when work picked up. He did not specifically deny making the statement at-
tributed to him by Gustafson, and the undersigned accepts Gustafson's testi-
mony in that respect as true. 38 Gustafson was not thereafter offered reemploy-
ment.
"'Walter Vail testified that the date of Gustafson 's original employment determined
his seniority standing , and it is so treated in the respondent 's brief.
37 Gustafson , upon his return from the Army , though he performed only work as a
laborer retained h is prior classification of dry wire drawer.
w Thorp ' s statement to Gustafson, to the effect that the respondent intended to dis-
charge only those employees active in the Union , lends further support to the finding
previously and hereinafter made, that other employees were similarly discharged because
of their union membership.
0
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 Discharges in the standard staple department •
The respondent, from among the employees in its standard staple department,
discharged Christopher Monestere on December 3, and Paul Galgan, Stuart
Fairbanks, and Edward Lusinski (332) on December 2,,1943. Monestere came
to work for the respondent in May 1941; Galgan in May 1942; and Fair-
banks in August, and Lusinski in April 1943. At the time of their discharge
Monestere and Galgan were working as machine operators. It does not clearly
appear from the record what work Fairbanks and Lusinski performed.
The above named employees joined the Union early in November, and Mones-
tere was elected. vice-president at the Union's organizational meeting on Novem-
ber 21. Each of the four refused 'a to sign the anti-union petition when requested
to do so on the morning of December 2 It has been found when Mastik reported
to Harry and Walter Vail that none of the' employees in his department would
sign the petition excepting himself, his wife and brother, and Block, assistant
department supervisor, Walter Vail replied that the "best thing to do would be
to get rid of them," which, according to Mastik, the respondent "proceeded to do."
Mastik's further credible testimony was that while, on most previous occasions,
he himself had discharged employees, on this occasion he was not previously con-
sulted as to the particular employees to be discharged.
Galgan, Fairbanks, and Lusinski were discharged on December 2, within a
few ^hours of their refusal to sign the petition. Monestere, however, was not
discharged until the following day, December 3. âIastik testified as follows as to
a conversation between himself and Walter Vail on December 2, concerning the
discharge of Monestere :
Q. All right, will you go ahead and state what was said by yourself and
what was said by Mr. Vail.
A. Well, he started the conversation by saying that we had to get rid
of organizers for the Union, and I told him that there were several I would
like to keep and that one was Christopher Monestere. I said that I had
taken several years to break him in and he was at a point where he was of
some help to the department and I would like to keep him.
By Mr. HELGESEN :
Q. What did he say?
* * * * * * *
A. Well, he just said, "Well, we will keep him."
Q. Was Mr. Monestere retained in your employ?
A. He was until the next day.`
Q. And what happened the next day?
A. The next morning I was called into Mr. Vail's office and he asked me
if I knew what office Mr. Monestere was going to have in this union that
was being organized, and I told him no, that I did not, and he said that he
was going to be vice-president. Well, then he mentioned or said that we
would have to get rid of him.
Q. And do you know how long after this conversation occurred before
Mr. Monestere was discharged?
A.-A half day.
Vail, while testifying, denied the substance of the statements attributed to him
by Mastik concerning Monestere. The undersigned accepts the testimony of
39 The manner of asking and refusal was thus described by Mastik "I proceeded to call
the help over and they just waved their hands at me and laughed and did not even come
near me."
0
VAIL MANUFACTURING COMPANY 205
Mastik as true, and does not credit Vail's denial Mastik's testimony is sup-
ported by the uncontradicted testimony, previously related, of Leffring and Gus-
tafson as to similar conversations with Walter and Harry Vail, and Nels Thorp.
Moreover, there is no other explanation of why Monestere, alone of those dis-
charged in this department, was discharged on December 3, rather than on Decem-
ber 2 with the others
Following Vail's statement to Mastik respecting Monestere, the latter was
called to Vail's office where according to Monestere, the tollowing conversation
took place:
Q Tell us what happened that day
A. Well, Frank Mastrk sent me into the office to see Air Walter Vail. He
said, "Mr Vail wants you " I went in and Mr Vail handed me my discharge
and my release and he says, "Well, your services is no longer required, so we
will have to fire you."
I said, "Did you fire me because I joined the Union? FIe said,"No, we are
slowing down on production," and he said, "We will have to lay you off," and
I started to walk out and Air Vail said "Why did you join the Union?"
I said, "I am tired of seeing these kids get kicked around by the
foremen-"
He said, "Well, we are not laying you off for that We laid off Dick Hirsch-
man because he is a music teacher90 and he should not be working here.
The WVIrNLSS : Then he says that, "If we have the union in here we will have
to shut down because we cannot go on," he says
Vail denied making the statements attributed to him by Monestere The under-
signed does not credit Vail's denial and accepts Monestere's testimony as to this
conversation as true
Hlinko, who at the time of Monestere's discharge was working as a feeder, took
Monestere's place as do assistant operator although lie came to work more than
a year later than Monestere. The respondent offered no explanation for dis-
charging llionestere whom Walter Vail admitted was a "very good" worker, in
place of Hlinko
The undersigned finds unconvincing Walter Vail's testimony that the discharges
of Monestere, Galgan, Fairbanks, and Lusinski were rendered necessary because
of the closing down of the second shitt in the standard staple department 41 The
90 This reference to Hirschman is unexplained by the record.
41 Vail ' s testimony as to the reasons , and the manner in which employees were
selected , was in part as follows :
By Mr . HAaaiNGTON
Q Did you discuss the release of these men with Fiank or Joe Mastik4
A Yes, I did
Q Did they make any recommendation as to who should be laid off')
A Well , I told Frank that I wanted to cut the turn down in the staple depart-
inent to one turn.
By Mr HELGESEN
Q What does the witness mean by "one turn")
A One shift We had been working extra shifts there
Trial Examiner RUCIdEL You asked about Galgan You did not mention the
others. He spoke about Galgan, Fairbanks, Lusinski, and Monestere
The WITNESS Fairbanks and Lusinski were new boys there and they would not
be required unless the other shift was to run.
By Trial Examiner RUCKEL
Q Were they the newest in the department?
639678-45-vol. 61-15
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
undersigned believes and finds that in the standard staple department, as else-
where in the plant, the determining factor in-discharging employees was the
advent of the Union and their membership in it, and that the abandoning of the
second shift was merely the respondent's adjustment to the situation thus
created.
6. The discharge in the wire flattening department
Louis Maahs first came to work for the respondent in August, 1938. At the
time of his discharge on December 1, 1943, he was working as a machine operator
in the wire flattening department which consisted of himself and O'Brien. The
latter was responsible for the work of the department and did some work as an
operator. Maahs joined the Union during the early part of November, and on
November 21 was elected as one of the three trustees of the Union.
Maahs was called to the office on December 1, where a clerk handed him his pay
check and release. No explanation was given him as to why he was being dis-
charged. Walter Vail testified that it was because there was not enough work
for two operators in the department, and that it had been decided to keep O'Brien
and discharge Maahs.
The undersigned does not credit the reason given by the respondent for dis-
charging Maahs. Granted that the work in the department was such that one of
the two employees therein could be dispensed with without impairing the work
of the department, and granted that as between O'Brien and Maahs the latter
was the natural selection for lay-off, it is apparent from the record as a whole
that here, as elsewhere in the plant, the decision to discharge an employee was
precipitated by the formation of the Union. The respondent here, as in other
departments, admittedly had for sometime past kept employees with whom it
might have dispensed, in the hope that the raw material situation might improve.
The undersigned finds that the respondent on December 1, discharged Maahs as it
did other employees because of the growing activity of the Union and because of
Maahs' part in it.92
7. The discharge of Frank Mastik and Joseph Mastik
Frank and Joseph Mastik are brothers. The former came to work for the
respondent in 1922, and the latter in 1935. At the time of their separation from
the respondent's employment on December 6, 1943, Frank Mastik'was in charge
A Well, I could not say that they were the newest, no, but they would be
automatically eliminated by the shutdown. It was up to Frank Mastik to choose
them-
Q. They could be put back on the other shift, could they not9
A. Well, I suppose they could be placed on the other shift, but I left it up to him.
Q. Did you tell him the basis on which he was to make the selection?
A. Yes, I told him to go ahead and cut it right down to a skeleton organization,
consisting of one turn and keep enough people in that turn, like, take Monestere.
Monestere was a good man there but lie was automatically laid off because it would
throw the turn out of balance- -
42 As is pointed out in the respondent's brief, there is no specific evidence that the
respondent knew that Maahs and certain other employees were members of the Union
The undersigned believes it to be a reasonable inference , however, and finds, that the
respondent was aware of the interest in the Union, if not the actual membership of
Maahs and these other employees It is evident from Walter Vail's questioning of
Hirschman as to his and Carlson 's contact with a union organizer the previous May;
from Vail's statement to Mastik that Monestere was vice-president of the Union, from
Wisniewski ' s conversations with employees concerning tht Union , and from the record
as a whole, including the fact that the respondent discharged no employee on December 1
or 2 who was not a member of the Union , that the respondent's officers and supervisors
were themselves kept informed as, to the union affiliations of the respondent 's employees.
VAIL MANUFACTURING COMPANY 207
of the day shift in the standard staple department, a position he had held for
approximately nine years, and his brother in charge of the night shift, a position
he had held for about four years.
A few days after the filing, on November 29, of the Union's petition for inves-
tigation and certification, Walter Vail, at the Board's request, began the com-
pilation of a list of employees eligible to vote in a Board election.- On Saturday,
December 4, Vail went through the plant, "checking over the names out there
in the factory and putting the various positions of men down," as he went along.
He arrived in the standard staple department in the afternoon as the shifts were
changing, and told the two Mastiks, who were standing together, that he was
putting them on his list as day and night operators. Frank Mastik testified 43
that Vail stated that he was doing this so that they could vote against the Union.
Vail denied making this statement, but the undersigned, for reasons which will
hereinafter appear, does not credit his denial.,
Frank Mastik testified as follows with respect to related events which took
place on the following Monday, December 6:
Q. All right, what happened after that?
A. Well, then we went home, and over the week end, why we got to thinking
that that did not sound right, that that was not'treating us fairly there, and
we knew that we had hired and taken care of 44 all the people in that partic-
ular department and that we could not say that we were not foremen. We
would lose the friendship of our fellow workers and my brother Joe and I
decided that Monday we would go in there and tell him that we could not do
that. So Monday morning, about 10 o'clock, we had a conference with
Mr. Vail and we told him that we would not agree to those ways of doing it,
that before I would do anything like that, why, I would take a release. So
he went on to say that if that was the way we felt, why, he would not put
us down that way, he would keep us on the list as foremen.
So he said that was O. K., that he would not put us down as operators. We
had been listed as foremen, and we went out of his office.
About five minutes later one of .the clerks came out of the office and says,
"Mr. W. J. Vail would like to see you in there." We went in . . . We got into
his office and he said, "We have decided to give you your releases." So I took
the release and started out the door and he got up and says; "I want to go
out with you to see that you do not take anything that belongs to the
company." We went back to the department.
Walter Vail, on direct examination, gave the following account of this con-
ference:
... Monday morning when I got into my office Frank and Joe were seated
on the davenport there and Frank was the spokesman. He said to me,
"I see we are being considered as operators." "Well, yes," I said, "Frank,
I-have never considered you anything else. You were always an operator."
Well, he says, "We want to be considered foremen or we are quitting."
Well, I said, "Frank,-and you too, Joe." "Frank, you have been here twenty-
one years"-and Joe, I think, was there around seven years- I said, "Don't
be foolish."
43 Joseph Mastlk , at the time of the hearing , was in the armed forces and did not
appear as a witness.
44 Although final decision in hiring was exercised by Walter Vail, Frank Mastik cus-
tomarily interviewed prospective employees in his department and made recommendations
to Vail.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was a little frightened myself. I did not want to lose them and I said,
"What you had better do is to go back to your job and think this thing over
for an hour and then come back and let me know after thinking it over just
what you intend to do."
So they went out and, oh, I guess it was I got to think it over myself, and
I think it was maybe half to three-quarters of an hour when I called them
back and asked them if they felt the same way about it, and the two of them
said yes, that they did. Well, I said, "In that case, why, it is up to you to
quit." So they said, "all right, we are quitting."
On cross-examination Vail further testified as follows:
Q You knew that Frank iAIastik objected to it on the basis that all em-
ployees considered him a foreman and he (lid not want to attempt to vote in
an election, did you not?
A. No, I did not.
Q What did he say was the basis of his objection?
A Well, he wanted to be called a foreman. I don't know what his reason
was for that. He made that the basis for his quitting.
I
By Trial Examiner RUCKEL :
Q. Did he ever ask you previously for the title of foreman, to have the
title of foreman conferred upon him?
A.. He never did, no.
Q. What could have been his point at this time in asking that the title
be made clear?
A. I don't know. That was a mystery to me, too-
Q. That was a voting list for the election?
A. That is right.
Q And you wanted him on that list?
A. Certainly I did.
By Trial Examiner Ruci^:Er.:
Q You thought you knew if he was on that list you knew he could vote,
right?
A. Yes.
Q. You knew that his functions were such that he would not be permitted
to vote if the Board knew what those functions were?
A No, I did not ; I could not say that.
Q You said just a while ago, you said yesterday that in general you
knew that employees with supervisory authority were not permitted to vote
in Board elections.
A. Supervisory authority Does it not depend on how much of their
time they put in working on the job?-
By Trial Examiner RUCKEL:
Q. Is it not pretty clear that irrespective of what you thought that
Mastik thought because of his functions, irrespective of what he was called,
that he should not be permitted to vote in a Board election and that is the
reason that he did not want to be classified as an operator?
A. That is probably what he thought.
The undersigned finds Mastik's account of 'his conversation with Vail on
December 6, to be nearer in accord with the facts than the version given by
Vail. Vail's testimony, as a whole, is disingenuous and unconvincing. If Vail
VAIL MANUFACTURING COMPANY 209
was engaged merely in drawing up a list of eligible voters for the Board, and
honestly believed the Mastiks were eligible to vote, it is hard to understand why
he should have found it necessary to discuss the matter with the Mastiks in the
first place The fact that he informed the Mastiks that he was putting them
down as operators leads the undersigned to conclude that he feared the possibility
of their raising an objection as to their classification, and lends support to Frank
Mastik's testimony that Vail told them, in explanation, that they were being
listed as operators so that they might vote against the Union.
The statement of Frank Mastik that "before he would do anything like that"
he would accept a release from the respondent, did not constitute a resignation.
At the most, it was a threat to resign if the respondent persisted in classifying him
as an operator. According to Mastik's testimony, which the undersigned has
accepted as true, Vail yielded the point and agreed to list him as a supervisor.
The Mastiks believed that the matter was settled. Admittedly, at this point, they
did not quit their employment, but on the contrary returned to work. Nor did
either of them take any further step toward quitting. On the contrary, Vail called
them back to his office and reopened the subject.
Even if Vail's testimony that he told the Mastiks to think the matter over for
an hour and then come back to the office were to be taken as true, Vail's action
in calling them back before the expiration of that time was a forcing of the
issue, and was hardly consistent with his other testimony that he was "a little
frightened" at the prospect of the Mastiks' quitting. Moreover, assuming the
truth of Vail's testimony, his inquiring if they "felt the same way about it", and,
upon being told that they did, his further statement that "In that case, why it is
up to you to quit," constituted, under the circumstances, a discharge rather than
a resignation. The undersigned finds that the respondent's classification of the
Mastiks as non-supervisory rather than as supervisory employees, and its attempt
to persuade them to consent to such a classification, constituted, in the circum-
stance of this case, unfair labor practices. He further finds that the respondent
discharged the Mastiks because they refused to assist the respondent in the
commission of these unfair labor practices.
d. Conclusions as to the discharges
Whether or not a reduction in the respondent's labor force for the month of
December 1943, was warranted, from a managerial standpoint, by the amount of
metal remaining available to the respondent from its 1943 quota, the undersigned
concludes from the above findings of fact, and from the record as'a whole, that
the respondent's decision, made on November 30 or December 1, to effect such a
reduction was motivated by the appearance of the Union in the plant It is
difficult to believe that the respondent, knowing that a new metal quota would be
available to it beginning on January 1, and in view of the admitted scarcity of
labor, would not have continued to maintain its labor force throughout the month
of December if the threat of unionization had not arisen. Moreover, the re-
spondent admittedly entertained the hope that restrictions on the manufacture of
its products would shortly be removed entirely. They were, in fact, removed dur-
ing the following February. But when, as a result, production was substantially
increased , the respondent, though it hired new employees and advertised for
others, did not offer reemployment to any of those whom it had previously
discharged.9B
41 The reemployment of Anderson, Rose Girodano , Leffring and Murphy took place during
December and the first week in January
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conclusion that the respondent's decision to discharge a number of em-
ployees was caused by the advent of the Union, is supported by Richard Vail's
admission that he looked with disfavor upon "outside" unions; by Walter Vail's
statement to Hirschman as far back as the previous May that, rather than submit
to unionization, the respondent would close its plant ; by his statement to Frank
Mastik on December 2, that the employees who did not sign the anti-union petition
should be discharged ; by the fact that the only employees discharged on November
29, and thereafter, were members of the Union,48 although only a bare majority of
the total number of employees were members of the Union ; by the respondent's
action, prior to its final decision to lay off a number of employees, in discharging
three employees from the wire drawing department ; by the respondent's failure
to give its department heads any instructions as to how many employees should
be released, in spite of the respondent's claim that it laid off a number of em-
ployees proportionate to the raw materials available ' and by the other facts
and circumstances set forth above.
The evidence points to the conclusion, and the undersigned finds, that after
receipt of the Union's request for a bargaining conference, and upon Walter
Vail's return from Florida, to find that' "unrest" in the plant had increased
during his absence, the respondent, in order to check this "unrest" determined
to put into effect a decision which it had theretofore sought to avoid making,
and to discharge a number of its union employees, including several of the
Union's officers. With this purpose in view, the respondent first discharged
three employees in the wire drawing department, two of them the originators
and most active proponents of the union, of whom one was president of the
Union. This was done prior to making any decision as to how many employees
should be laid off or discharged. No reason appears for these preliminary dis-
charges, or for selecting this department in preference to other departments,
or for the selection of employees therein on a strict basis of seniority, in con-
trast with the basis on which discharges were subsequently and elsewhere
made, excepting the fact that Hirschman and Carlson were employed in this
department and would be the employees immediately affected.
i With the exception of the factor of seniority, subsequent discharges in other
departments followed much the same pattern as was followed in the wire draw-
ing department. In these other departments, where'many union employees had
been employed prior.to non-union employees, seniority was only one factor in
making the discharges, and aptitude and other more vague qualifications were
considered including, in the case of the staple packing department, the fact that
one or two employees were too "ambitious." In this department, too, employees
originally selected as the most eligible for discharge, either were not discharged
or were discharged only after others had been released, and, in at least one
instance, only after the employee had failed to sign the anti-union petition.
The signing of this petition, which, by its terms, was a declaration of loyalty
to the respondent and a pledge of opposition to the Union, constituted effective
insurance against discharge. Just as no non-union employee was discharged
on or after November 29, so no employee who signed the anti-union petition
was released. Some employees, though discharged on a regular weekly pay
day were released before the end of the day, while others were discharged on
the day following pay day. None was told that he was being laid off, rather
than discharged, or that he might be reemployed after the beginning of the year,
96 With the exception, of course, of the Mastiks who the respondent contends resigned.
47 Most apparent in the case of the staple packers, where the number of employees whom
Wisniewski placed on her list as being most eligible for lay-off inexplicably coincided with
the number of those actually discharged.
e I
VAIL MANUFACTURING COMPANY , 211
in spite of the fact that the respondent envisioned an improvement in produc-
tion at that time. Instead, one employee, Gustafson, was told in effect that he was
not supposed to have been discharged because he was not believed to have been
active in the Union, and another, Leffring, was reinstated only after he had
promised to withdraw, and had withdrawn, from the Union, while still another,
Christopher Monestere, whom the respondent on December 2 decided to retain,
was discharged the following day after it had come to the respondent's atten-
tion that he was vice-president of the Union.
In summary, the undersigned finds that the respondent on November 29,
November 30, December 1, 2, 3 and 6, 1943, discharged the employees whose
names appear on Appendices A and B, hereof, because of their union member-
ship and activity , or because they refused to acquiesce in -the respondent's un-
fair labor practices, and that in so doing the respondent discouraged member-
ship in the Union and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 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
connection with its operations described in Section I, above, have a close, inti-
mate, 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
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom, and that it
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
The undersigned has found that the respondent discriminated against the
employees listed in Appendices A and B by discharging them. He will therefore
recommend that the respondent offer the employees listed on Appendix A, with the
exception of Joseph Mastik, immediate and full reinstatement to their former or
substantially equivalent employment, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay they may have*
suffered by reason of the respondent's discrimination against them, by payment to
each of them of a sum of money equal to the amount he would normally have
earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement , less his net earnings during said period . 1 With respect
to Joseph Mastik, it will be recommended that upon application by him within
forty (40) days after his discharge from the armed forces of the United States, ,
the respondent offer him immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority and other rights
and privileges.
49 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work -relief
projects shall be considered as earnings See Republic Steel Corporation V. N. L. R. B..
311 U. S. 7.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the record shows that the respondent has reemployed those employees
named in Appendix B, it will be recommended that the respondent make them
whole for any loss of pay they may have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum of money equal
to the amount he normally would have earned as wages from the date of his
discharge to the date of his re-employment by the respondent, less his net earnings
during said period
The undersigned has found that the respondent did not discriminate against
Mildred Andrzejak or Frances 1\Iutz by discharging them. He will, therefore,
recommend that the complaint be dismissed as to these employees
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. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act
2 By discriminating in regard to the hire and tenure of employment of the
employees named in Appendices A and B, hereof, thereby discouraging member-
ship in United Steelworkers of America, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (3) of the
Act
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the Act
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5 By discharging Frances Mutz and Mildred Andrzejak, the respondent has
not engaged in unfair labor practices.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Vail Manufacturing Company, Chicago, Illinois,
its officers, agents, successors, and assigns shall.
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America, or any
other labor organization of its employees, by discharging or refusing to reinstate
any of its employees or by otherwise discriminating in regard to the hire and
tenure of their employment ;
(b) In any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join, or assist United Steelworkers of America or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2 Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees named in Appendix A immediate and 'full rein-
statement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges;
VAIL MANUFACTURING CO1VJPANY 213
(b) Make whole the employees named in Appendix A, with the exception of
Joseph Mastik, for any loss of pay they may have suffered by reason of the
respondent's discrimination against them by payment to each of them of a sum
of money equal to that which lie would normally have earned as wages during
the period from the date of his dischaige to the date of the respondent's offer
of reinstatement, less his net earnings during said period ;
(c) Upon application by Joseph Mastik within forty (40) days after his dis-
charge from the armed forces of the United States, offer hum immediate and
full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges;
(d) Make whole Joseph Mastik for any loss of 'gay he may have suffered by
reason of the respondent's discrimination against him, by payment to him of
a sum of money equal to the amount which he normally would have earned as
wages during the periods (1) between the date of the respondent's unlawful
discrimination and the date of hit induction into the armed forces of the United
States, and (2) between the date five (5) days after his timely application for
reinstatement and the date of the offer of reinstatement, less his net earnings
during these periods ;
(e) Make whole those employees named in Appendix B for any loss of pay
they may have suffered by reason of the respondent's discrimination against
them by payment to each of them of a sum of money equal to that which he
would normally have earned as wages during the period from the date of his
discharge to the date of his reemployment by the respondent, less his net earn-
ings during said period ;
(f) Post immediately in conspicuous places throughout its plant in Chicago,
Illinois, and maintain for a period of not less than sixty (60) consecutive
days from the date of posting, notices to its employees stating (1) that the re-
spondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a) and (b) hereof; (2) that it will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), (d) and (e) hereof;
and (3) that the respondent's employees are free to become or remain mem-
bers of United Steelworkers of America, and that the respondent will not dis-
criminate against any of its employees because of membership in or activities on
behalf of that organization;
(g) Notify the Regional Director for the Thirteenth Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this- Intermediate Report the respondent notifies the said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respon-
dent to take the action aforesaid
It is further recommended that the complaint as to Frances Mutz and Mil-
dred Andrzejak be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended-, effective November 26,
14:43, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D C, an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon , together with the original and four copies of
214 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
a brief in support thereof. Immediately upon the filing of such statement of
exception and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any party.
desire permission to argue orally before the Board request therefor must be made
In writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
Hon,acE A. RuoiEL,
Trial Examiner.
Dated October 9, 1944.
Leona Becker
Walter Carlson
Paul Galgan
Carmella Girodano
Richard Hirschman
Emma Kosiara
Louis Maahs
Frank Mastik
Christopher Monestere
Helen Szmagalski
Russell Wade
Josephine Anderson
Rose Girodano
APPENDIX A
Anthony Bombin
Stuart Fairbanks
America Giglio
Axel Gustafson
Angeline Just
Edward Lusinski
Dorothy Malozzi
Joseph Mastik
Mary Monestere
Rose Vommaro
APPENDIX B
Reynold Leffring
Virginia Murphy