Winchester Electronics, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1960

128 N.L.R.B. 1292 (N.L.R.B. 1960)

1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winchester Electronics , Incorporated , Pyne Moulding , Inc. and
International Brotherhood of Electrical Workers, AFL-CIO.
Case No. 1-CA-2944. August 06, 1960
DECISION AND ORDER
On March 31, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
We find, in agreement with the Trial Examiner, that the Respond-
ents violated Section 8 (a) (1) of the Act. We further find, in agree-
ment with the Trial Examiner, that Respondent Winchester also
violated Section 8(a) (3)3 and (5) of the Act 4 Contrary to the Trial
Examiner, we find that Respondent Pyne also violated Section
8(a) (5) of the Act.
As set forth in the Intermediate Report, Respondents Winchester
and Pyne constitute a single employer within the meaning of the Act;
1 The Respondents ' request for oral argument is denied as the record, including the ex-
ceptions and briefs , adequately presents the issues and, positions of the parties Following
issuance of the Intermediate Report, the General Counsel moved to amend the complaint
to add allegations pertaining to Respondent Pyne's alleged refusal to bargain . Respond-
ent Sled an opposition to the motion . For the reasons set forth hereinafter the motion
is hereby granted except as to proposed paragraphs 20-A(b ), (c), and ( d), which are not
supported by the record.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Bean and Fanning].
3 The record does not support the Trial Examiner 's statement that "both Brochu and
Comben admitted that a number of employees applied for work at the same time and
were not hired because they were strikers ," but establishes rather that they admitted no
more than that they had refused to reinstate certain strikers In view of the other
factors set forth in the Intermediate Report, this error does not affect our agreement
with the Trial Examiner that Respondent 's conduct in sending out recall notices is not
a valid defense to the findings of the unlawful discrimination.
4 As we agree with the Trial Examiner that the Respondent was unlawfully motivated
in laying off certain employees at Danielson and New Milford , in opening a new plant at
Oakville , and in transferring certain operations from New Milford to Oakville , we find it
unnecessary to consider the Trial Examiner 's further conclusion that Respondent 's fail-
ure to bargain concerning those matters violated the Act even if it be assumed that
Respondent 's conduct as to such matters was economically motivated.
128 NLRB No. 110.
WINCHESTER ELECTRONICS, INC., ETC. 1293
the Union was the certified representative of a unit of the employees
of Respondent Pyne as well as of two units of the employees of
Respondent Winchester; the collective-bargaining negotiations cov-
ered the employees in all three units, and the individuals who par-
ticipated in such negotiations were agents 5 of both Respondents; and
Respondent Pyne as well as Respondent Winchester repudiated the
agreement which had been negotiated covering its employees. In
addition, although not set forth in the Intermediate Report, the record
clearly establishes that the employees of Respondent Pyne also went
on strike on September 9; that the strike of Respondent Pyne's em-
ployees was caused at least in substantial part by Respondents' re-
pudiation of the agreement; and the Respondent Pyne's striking
employees applied for reinstatement with Respondent Winchester's
employees and were similarly denied reinstatement.
The record thus establishes all the elements necessary to support a
finding that Respondent Pyne also unlawfully refused to bargain in
violation of Section 8 (a) (5) of the Act; that the strike of Respondent
Pyne's employees was also an unfair labor practice strike from its
inception; and that such employees were also unconditionally entitled
to reinstatement upon application. It is clear from the Intermediate
Report that the Trial Examiner did not make these findings solely
because he did not view the complaint as containing a specific allega-
tion that Respondent Pyne had violated Section 8(a) (5). The Gen-
eral Counsel has excepted to the the Trial Examiner's failure to make
these findings and, as noted above, has moved to amend the complaint
to add the specific allegations which the Trial Examiner believed were
necessary.
We find merit in the General Counsel's position. The timely
amended charge in this proceeding alleged that both Respondents vio-
lated Section 8(a) (5) of the Act. The complaint specifically alleged
that the employees of both Respondents went on strike on September
9; that this strike was caused by Respondent Winchester's unfair labor
practices, including its unlawful refusal to bargain ; and that by virtue
of the conduct alleged as unfair labor practices, including Respondent
Winchester's unlawful refusal to bargain, both Respondent Win-
chester and Respondent Pyne violated Section 8(a) (1) of the Act.
s Contrary to the contention of the Respondents , we agree with the Trial Examiner
that Connor, who became Respondents ' principal negotiator , following Millar's illness
and the beginning of the strike , had actual , or at least, apparent authority to negotiate
a binding agreement , subject only to approval as to the wage issue. As set forth in
the Intermediate Report, the record establishes that Respondents ' officials were aware
of Connor 's assumption of such authority, yet they took no action to repudiate Connor's
agreement until after the Union had called off the first strike on July 20 . In addition,
following the conclusion of this strike , they engaged in conduct , permitting posting of
the union -security provisions , and discussing the administration of various clauses, which
clearly evidenced their conviction that a binding agreement existed and that securing
Burtt's signature was no more than a ministerial act See McCarthy-Bernhardt Buick,
Inc., 103 NLRB 1475
1294 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Moreover as noted above, the facts bearing on Respondent Pyne's
alleged refusal to bargain, the nature of the strike, and the strikers'
-'ap'plication for reinstatement are'inseparably linked to the facts bear-
-ing on Respondent Winchester's conduct in this respect, and all issues
.,
pertaining thereto were fully litigated. In these circumstances, we
"find that the Respondents will not be prejudiced by granting the Gen-
eral Counsel's motion to amend the complaint and, as set forth above,
it is therefore granted.6 Accordingly, on the basis of the foregoing
and the entire record, we find that Respondent Pyne unlawfully re-
-fused-to.bargain with the Union, in violation of Section 8(a) (1) and
- (5) ; that the strike of Respondent Pyne's employees which began on
:-September 9 was an unfair labor practice strike from its inception; and
that Respondent Pyne unlawfully refused to reinstate these strikers
upon application. Moreover, whether Respondent Pyne's conduct be
,,viewed as a violation of Section 8(a) (5) or Section 8(a) (1), we find
that our Order is appropriate, to remedy the unfair labor practices
found.7
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
As we.have found that both Respondents have unlawfully refused
,to, bargain, we shall order both of them to sign the written contract
agreed upon with the Union, if requested, and to bargain with the
said Union. As we have, found that Respondent Pyne also unlawfully
refused to reinstate its striking employees upon application, we shall
also order it to offer to all the strikers at its New Milford, Connecticut,
-plant, who have not been reinstated, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
'to their seniority or other rights and privilges, discharging, if neces-
_ sary, any replacements in order to provide work for the strikers. We
shall also order it, to make whole strikers, including those who may
have subsequently been reinstated, for any loss of earnings they may
have suffered by reason of the discrimination against them, by pay-
ment to each of a•sum of money equal to that which each normally
'would have earned as wages during the periods (a) from their uncon-
r'ditional request for reinstatement to the date of the Intermediate
Report herein,8 and (b) from the date of this Decision and Order to
the date of their reinstatement or Respondent Pyne's offer of reinstate-
6 Section 102 17 of_ thc'Rules arid Regulations of the National Labor Relations Board,
Series 8 See Pecheur ' Lozenge Co , Inc, 98 NLRB 496, 497, at footnote 5
4 Pecheur Lozenge Co , Inc., 98 NLRB 496.'
8 When, as here , the Board , contrary ' to the Trial Examiner, orders reinstatement of
employees , backpay is normally abated from the - date of the Intermediate Report to the
date of the Board's Decision and Order The Jackson Press, Inc , 96 NLRB 897.
WINCHESTER ELECTRONICS, INC., ETC. 1295
ment, as the case may be, less the net earnings of each, to be computed
on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294.
The Trial Examiner recommended that the Board order the Re-
spondents to transfer back to the Danielson plant the work which had
been transferred from there to the Oakville plant, and transfer back
to the New Milford plant the depressing and gauging department,
which had been transferred from there to the Oakville plant. In its
exceptions, the Respondents contend that even assuming that the
order to reinstate laid-off or discharged employees of Respondent
Winchester is justified, there is no authority for ordering Respondent
to close its Oakville plant and transfer its business back to New Mil-
ford or Danielson, if reinstated employees can be given the same or
substantially equivalent work at the New Milford and Danielson
plants which are still in operation, and further, that the order should
not include retransfer, unless necessary to provide substantially equiv-
alent employment for those employees laid off. We find merit in these
contentions. We shall, therefore, order the Respondent to offer the
employees discriminated against as the result of the transfer of opera-
tions from the New Milford and Danielson plants to the Oakville
plant, reinstatement to their former or substantially equivalent posi-
tions at these two plants without prejudice to their seniority or other
rights and privileges. If such reinstatements cannot be made at the
New Milford and Danielson plants without the transfer of operations
from the Oakville plant, then the operations at the Oakville plant
shall be transferred to the New Milford and Danielson plants, to the
extent necessary to afford discriminatees reinstatement.
Upon the basis of the foregoing, and upon the entire record in this
case, the National Labor Relations Board hereby makes the following
additional :
CONCLUSIONS OF LAW
10. All production and maintenance employees of Respondent Pyne
Moulding, Inc., employed at its New Milford, Connecticut, plant, ex-
clusive of office clerical employees, guards, professional employees,
and all supervisors as defined in Section 2(11) of the Act, constitute
a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
11. At all times since May 21, 1959, International Brotherhood of
Electrical Workers, AFL-CIO, has been and now is the exclusive
representative of all the employees in the above appropriate unit, for
the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
12. By repudiating and refusing to sign the agreement which
Connor, attorney for Respondent Pyne, presented to Union Repre-
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative Rogers on August 5, 1959 (General Counsel's Exhibit No. 6),
Respondent Pyne has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act.
13. The strike, which commenced on September 9, 1959, was caused
and prolonged by Respondent Pyne's unfair labor practices and hence
was an unfair labor practice strike.
14. By refusing immediate reinstatement to the unfair labor prac-
tice strikers, upon their unconditional request, Respondent Pyne has
discriminated in regard to their hire and tenure of employment,
thereby discouraging membership in the above labor organization,
and has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
15. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Winchester Electronics, Incorporated, Danielson
and New Milford, Connecticut, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, AFL-CIO, or in any other labor organization,
by discriminatorily laying off its employees, by transferring work
and departments to other plants, by refusing immediate reinstatement
to unfair labor practice strikers upon their unconditional request, or
by discriminating against its employees in any other manner in regard
to their hire or tenure of employment or any term or condition of
their employment, except to the extent permitted by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(b) Refusing, if requested to do so by the above-named Union, to
execute and sign the written agreement reached.
(c) Refusing to bargain collectively, concerning wages, hours, and
other terms and conditions of employment, with International Broth-
erhood of Electrical Workers, AFL-CIO, as the exclusive represen-
tative of all its employees in the following appropriate units : All
production and maintenance employees at Respondent's Danielson,
Connecticut, plant, exclusive of clerical employees, nurses, guards,
professional employees, and all supervisors as defined in Section 2(11)
of the Act; and all production and maintenance employees at Respond-
ent's New Milford, Connecticut, plant, exclusive of office clerical
WINCHESTER ELECTRONICS , INC., ETC. 1297
employees, guards , professional employees , and all supervisors as
defined in Section 2 ( 11) of the Act.
(d) Refusing to bargain with respect to grievances relating to
employees in the above -described appropriate units because of the
filing of unfair labor practices charges with the Board.
(e) Threatening employees , in the event the Union were selected
as their bargaining representative , with the discontinuance of the
practice of giving them work during slack periods , with the loss of
vacation time and other existing privileges , or with other economic
reprisals , that the jobs of those over 50 years of age would be in
jeopardy , that management has its own way of making it "stinking,"
and that the Union would be given the worst defeat it ever had.
(f) Threatening that President Burtt would move or close the
plant rather than let the Union in, would never sign a contract with
the Union , and would not care how much money he spent as long as
he got the Union out.
(g) Telling employees that management would lick the Union this
time, that they would be laid off or visited with other drastic changes
because they had been disloyal to President Burtt and , done the wrong
thing by getting the Union in, that the Company was moving out of
the New Milford plant because of the Union , and to let the Union
fight for their jobs.
(h) 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 the above -named Union, or any
other labor organization , to bargain collectively through representa-
tive of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities , except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) If requested to do so by the above-named Union, forthwith
sign the agreement reached as written, and deliver at least three
signed copies thereof for each plant to the Union.
(b) Upon request, bargain collectively with the above-named
Union as the exclusive representative of the employees in the above-
described units.
(c) Upon request, bargain collectively with the Union with respect
to any grievances relating to employees in the above-described units,
whether or not unfair labor practice charges have been filed with the
Board.
1298 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
(d) Offer to all strikers and laid-off employees at the Danielson
and New Milford plants, who have not been reinstated, immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, and make them, and those who may have already been
reinstated, whole for any loss of pay they may have suffered because
of the discrimination against them, if necessary, transferring back to
the Danielson plant the work which has been transferred from there
to the Oakville plant, and to the New Milford plant the depressing
and gauging department which has been transferred from there to
the Oakville plant, all in the manner set forth in the section of the
Intermediate Report entitled "The Remedy," as modified herein.
(e) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts of backpay due
and the rights of employment under the terms of this Decision and
Order.
(f) Post at its plants in Danielson and New Milford, Connecticut,
copies of the notice attached hereto marked "Appendix A." 9 Copies
of the notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, 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 First Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
B. The Respondent, Pyne Moulding, Inc., New Milford, Con-
necticut, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing, if requested to do so by the above-named Union, to
execute and sign the written agreement reached.
(b) Refusing to bargain collectively, concerning wages, hours, and
other terms and conditions of employment, with International Broth-
erhood of Electrical Workers, AFL-CIO, as the exclusive representa-
tive of all its employees in the following appropriate unit : All
production and maintenance employees at Respondent's New Milford,
Connecticut, plant, exclusive of office clerical employees, guards, pro-
0 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
WINCHESTER ELECTRONICS, INC., ETC. 1299
fessional employeesi end all, supervisors as defined in Section 2(11)
of the Act.
(c) Discouraging membership in International Brotherhood of
Electrical- Workers, AFL-CIO, or in any other labor organization, ;
by refusing immediate reinstatement to unfair labor practice strikers
upon their unconditional request.
(d) Threatening employees, in the event the Union were selected
as their bargaining representative, with the discontinuance of the
practice of giving them work during slack periods, with the loss of
vacation time and, other existing privileges, or with other economic
reprisals, that the .jobs of those over 50 years of age would be in
jeopardy, and that the Union would be given the worst deal it ever had.
(e) Threatening to discharge all employees seen on the picket line,
to break the Union by firing all female employees, that President Burtt
would remove-the plant if they stayed out on strike too long, that
orders were being cut down because of the Union, and that they would
close the shop before employees would get more money.
(f) 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 International Brotherhood of
Electrical Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representative of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) If requested to do so by the above-named Union, forthwith
sign the agreement reached as written and deliver at least three signed
copies thereof to the Union.
(b) Upon request, bargain collectively with the above-named
Union as the exclusive representative of the employees in the above-
described unit.
(c) Offer to all strikers at the New Milford plant, who have not
been reinstated, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them, including those who
may have already been reinstated, whole for any loss of pay they may
have suffered because of the discrimination against them, all in the
manner set forth in the section of this Decision and Order entitled
"The Remedy."
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Decision and
Order.
(e) Post at its plant in New Milford, Connecticut, copies of the
notice attached hereto marked "Appendix B." 10 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondent or its representative, be
posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Responsible steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
10 See footnote 9, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in International Brother-
hood of Electrical Workers, AFL-CIO, or any other labor organi-
zation, by discriminatorily laying off our employees, or by trans-
ferring work or departments to other plants, by refusing im-
mediate reinstatement to unfair labor practice strikers upon their
unconditional request, or by discriminating in any other manner
in regard to our employees' hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten employees in the event International
Brotherhood of Electrical Workers, AFL-CIO, or any other
union, is selected as their bargaining representative, with the dis-
continuance of the practice of giving them work during the slack
periods, or with the loss of vacation time and other existing privi-
leges, or with other economic reprisals, or that the jobs of those
over 50 years of age would be in jeopardy, or that management
has its own way or making it "stinking," or that the Union would
be given the worst deal it ever had.
WINCHESTER ELECTRONICS, INC., ETC. 1301
WE WILL NOT threaten that President Burtt would move or
close the plant rather than let a union in, nor that he would never
sign a contract with the Union and would not care how much
money he spent as long as he got the Union out.
WE WILL NOT tell our employees that they will be laid off and
that the plant will move because of the Union, nor accuse our
employees of having been disloyal to President Burtt and having
done the wrong thing by getting the Union in.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to join or assist the above-named or other labor or-
ganizations, to bargain collectively through representatives of
their own choosing, and to engage in union or in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to all strikers and laid-off employees at the
Danielson and New Milford plants, who have not been reinstated,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make all of them whole, including
those who have been reinstated, for any loss of pay suffered as a
result of the discrimination against them, if necessary, trans-
ferring back to the Danielson plant the work which has been
transferred from there to the Oakville plant, and to the New
Milford plant the depressing and gauging department which
has been transferred from there to the Oakville plant.
WE WILL, upon request, bargain collectively with the above-
named Union, with respect to any grievance relating to em-
ployees in the below-described units, whether or not unfair labor
practice charges have been filed with the Board.
WE WILL, if requested to do so by International Brotherhood of
Electrical Workers, AFL-CIO, sign and execute the agreement
reached, as written, and will deliver at least three signed copies
thereof for each plant to the Union.
WE WILL, upon request, bargain collectively with the above-
named Union for the following appropriate units with respect to
rates of pay, wages, hours of work, and other conditions of em-
ployment. The appropriate bargaining units are :
577684-61-vol. 12 8-8 3
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees at our Daniel-
son, Connecticut, plant, exclusive of clerical employees,
nurses , guards, professional employees, and all supervisors
as defined in the Act.
All production and maintenance employees at our New
Milford, Connecticut, plant, exclusive of office clerical em-
ployees, guards, professional employees, and all supervisors
as defined in Section 2 (11) of the Act.
All our employes are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by a lawful agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WINCHESTER ELECTRONICS, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Electrical Workers, AFL-CIO, or in any other labor
organization, by refusing immediate reinstatement to unfair labor
practice strikers upon their unconditional request, or by dis-
criminating in any other manner in regard to our employees' hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten employees in event International
Brotherhood of Electrical Workers, AFL-CIO, or any other
union, is selected as their bargaining representative, with the dis-
continuance of the practice of giving them work during slack
periods, or with the loss of vacation time or other existing priv-
ileges, or with other economic reprisals, or that the jobs of those
over 50 years of age would be in jeopardy, or that the Union would
be given the worst deal it ever had.
WINCHESTER ELECTRONICS, INC., ETC. 1303
WE WILL NOT threaten to discharge employees seen on a picket
line, or to break the above-named Union by firing all female
employees.
WE WILL NOT tell employees that President Burtt would move
the plant if they stayed out on strike too long, that orders were
being cut down because of the Union, and that management would
close the shop before employees would get more money.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self -organ-
ization, to form labor organization, to join or assist International
Brotherhood of Electrical Workers, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring employment, as authorized in Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to all strikers at the New Milford plant, who have
not been reinstated, immediate and full reinstatement of their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make all
of them whole, including those who have been reinstated, for any
loss of pay suffered as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with the above-
named Union, with respect to any grievance relating to employees
in the below-described units, whether or not unfair labor practice
charges have been filed with the Board.
WE WILL, if requested to do so by International Brotherhood
of Electrical Workers, AFL-CIO, sign and execute the agree-
ment reached as written and will deliver at least three signed
copies thereof to the Union.
WE WILL, upon request, bargain collectively with the above-
named Union for the following appropriate unit with respect
to rates of pay, wages, hours of work, and other conditions of
employment :
All production and maintenance employees at our New Mil-
ford, Connecticut, plant, exclusive of office clerical em-
ployees, guards, professional employees, and all supervisors
as defined in Section 2 (11) of the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent that this right may be affected by a lawful agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
PYNE MOIILDING, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by International Brotherhood of Electrical Workers, AFL-CIO,
herein called the Union, the General Counsel of the National Labor Relations
Board, by the Regional Director for the First Region (Boston, Massachusetts),
issued his complaint, dated October 29, 1959, against Winchester Electronics,
Incorporated, Norwalk, Connecticut, and against Pyne Moulding, Inc., New Milford,
Connecticut, herein respectively called Respondent Winchester and Respondent Pyne
or Winchester and Pyne, and collectively referred to as the Respondents. With
respect to the unfair labor practices, the complaint alleges, in substance, that: (1)
Respondent Winchester discharged certain named employees on specified dates
from its plants at Danielson and New Milford, Connecticut, and refused to rein-
state them because of their union and concerted activities; (2) Respondent Win-
chester, at all times on and after April 21, 1959, failed and refused to bargain
collectively in certain specified respects with the Union which was the exclusive
collective-bargaining representative of the employees in designated appropriate units
at the Danielson and New Milford plants, respectively; (3) on various dates in and
after March 1959, Respondents Winchester and Pyne engaged in certain specified
acts of interference, restraint, and coercion; (4) a strike by the employees of
Respondents Winchester and Pyne, commencing on September 9, 1959, was caused
by Respondent Winchester's unfair labor practices; and (5) by the foregoing
conduct Respondent Winchester engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act, and Respondent Pyne engaged
in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
In their duly filed joint and several answer, Respondent Winchester, in substance,
denies that it discharged any of its employees as alleged in the complaint but avers
that it did lay off employees for valid reasons, admits the appropriateness of the
alleged units and the Union's majority representative status therein but denies that
it failed or refused to bargain with the Union; and Respondents Winchester and
Pyne deny all the unfair labor practice allegations or that the strike by their em-
ployees was caused by any unfair labor practices.
Pursuant to notice, a hearing was held on January 11-15, 1960, at Hartford,
Connecticut. All parties were represented at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to present oral argument at the close of the hearing, and there-
after to file briefs as well as proposed findings of fact and conclusions of law.
After the close of the hearing, I received briefs which I have fully considered.
Upon the entire record I in the case, and from my observation of the witnesses, I
make the following:
11 hereby note and correct the following obvious errors in the typewritten transcript
of the testimony :
P. 194, between lines 2 and 3, the record is corrected to insert "Mr MILLAR :
Yes" ; p. 547, line 12-"He" is corrected to read "Carl Van Scoy" ; p. 727, line 5-
"Now" is corrected to read "not" , p. 764, line 21-"compliance" is corrected to
read "no compliance."
WINCHESTER ELECTRONICS, INC., ETC. 1305
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Winchester and Respondent Pyne are separate corporations organized
under the laws of the State of Connecticut. Togther, they constitute a single
employer within the meaning of the Act.
Respondent Winchester maintains its principal office at Norwalk, Connecticut,
and has operated, among others, two plants, one at New Milford, Connecticut, and
one at Danielson, Connecticut, where it is engaged in the manufacture, sale, and
distribution of electrical connectors and related products. It annually ships to
points outside the State of Connecticut the above-described products valued in excess
of $50,000.
Respondent Pyne maintains its principal office at Norwalk, Connecticut, and
has operated a plant at New Milford, Connecticut,, hereinafter sometimes called
the Pyne plant, where it is engaged in the manufacture, sale, and distribution of
mouldings and related products. It annually ships directly to Respondent Win-
chester products valued in excess of $50,000.
Upon the above-admitted facts, I find, as Respondents admit, that Respondent
Winchester and Respondent Pyne are each engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondents admit , the record shows, and I find that
International Brotherhood of Electrical Workers, AFL-CIO, herein called the
Union , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
.
Respondents admit that as a result of separate elections won by the Union on
April 1, 1959, at the Danielson plant of Respondent Winchester and on May 21,
1959, at the New Milford plants of each Respondent, the Union became the ex-
clusive collective-bargaining representative of the employees in separate appropriate
units of production and maintenance employees at the respective plants. On April
22 the Union and Respondent Winchester commenced negotiations for a collective-
bargaining agreement. No contract had been executed by September 4, when the
employees at the Danielson and New Milford plants of Respondent Winchester went
on strike. Meanwhile, Respondent Winchester either laid off or discharged a total
of 49 employees on July 31, and August 3 and 5 at its Danielson plant, and a total
of 35 employees on August 14 and September 4 at its New Milford plant. The
strike continued until November 16 when the Union sent a letter to Respondent
Winchester requesting reinstatement of all the strikers, none of whom were reinstated
as of the date of the hearing in this case.
The principal issues litigated in this proceeding are whether (1) Respondent
Winchester failed to bargain in good faith with the Union in violation of Section
8(a) (5) of the Act; (2) the strike of September 4, 1959, was caused and prolonged
by any unfair labor practices of Respondent Winchester; (3) Respondent Winchester
discriminated with respect to hire and tenure of employment in violation of Section
8(a)(3) by layoffs or discharges of employees at its Danielson and New Milford
plants and by failing to reinstate the strikers upon their request; and (4) Respondents
Winchester and Pyne, through their agents and representatives, engaged in conduct
which independently violated Section 8(a)(1) of the Act.
B. The supervisory hierarchy at Respondents' plants
H. H. Burtt and Detar are president and vice president, respectively, of each
Respondent, with their offices in Norwalk, Connecticut. Respondents Pyne and
Winchester operate plants in New Milford, Connecticut, in adjoining wings of the
same building. It is "all one big factory." Early in 1957 Respondent Winchester
]eased space in Danielson, Connecticut, where it began to operate its Danielson
plant, which was solely an assembly operation. Respondent Pyne manufactures
plastic mouldings which it sells to Respondent Winchester. It was stipulated that
Respondents Winchester and Pyne constitute a single employer wihin the meaning
of the Act.
Joseph L. Ross has been manager of the Winchester and Pyne plants in New
Milford since about 1957, and is the highest management representative of both
Respondents at New Milford. Prior to that time, he was the general foreman of
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Pyne plant in New Milford. Ethel Comben is the nurse and personnel director
for the Winchester plant at New Milford, and second in command to Manager Ross
at that plant. Pat Chiavuzzi is the general foreman of both the day and night
shifts at the Pyne plant at New Milford and second in command to Manager Ross
at that plant. John Campbell and Carl Von Scoy were foremen or supervisors at
the New Milford plants of Respondents Pyne and Winchester, respectively.
Flo Pruszenski was in charge of production at the Danielson plant of Respondent
Winchester from its inception until June 1959, when her assistant, Freda Brochu,
assumed that position. Rachael Charbonneau and Doris Kinkier were lead girls at
the Danielson plant.
The Respondents stipulated that the above-mentioned personnel, including all
lead girls at the Danielson plant, were supervisors within the meaning of the Act
at the times material herein. The parties are in dispute as to the supervisory
status of A. W. Burtt, Howard Nelson, and May Bowen.
A. W. Burtt is the brother of President H. H. Burtt and, at least until September
1959, was in charge of the men employed at the Danielson plant of Respondent
Winchester. The undisputed testimony shows that he had the authority, which he
in fact exercised, to hire and to lay off male employees at the Danielson plant.
I find that A. H. Burtt was a supervisor within the meaning of Section 2(11) of the
Act at the times material herein.
Howard Nelson was the quality control chief at the New Milford plant of
Respondent Winchester, in charge of eight or nine inspectors whose work he directed
and to whom he gave orders. If an inspector had a piece of work which he did
not think should be approved, he would take it to Nelson for his final determination.
If Nelson approved the work, the inspector would then inform the foreman on the
floor to let it go through; if Nelson rejected the item, the inspector would notify the
foreman to that effect and it would be returned to the employee who had worked
on it, as it bore an identification record of such employee. Nelson also worked at
a desk and read the reports prepared by the inspectors. His immediate superior
was Plant Manager Ross.
Upon the above undisputed facts and the entire record as a whole, I find that
Nelson responsibly directed the work of the inspectors within the meaning of Section
2 (11) of the Act and hence was a supervisor.
May Bowen was the nurse at the Danielson plant. The only evidence relating
to her supervisory status is the undisputed testimony of Richard Rogers, the Union's
representative, that at a meeting with representatives of Respondents on August 5,
Connor, attorney for Winchester, stated that Bowen would be in charge of the
Danielson plant in the absence of A. W. Burtt. The record also shows that Mrs.
Bowen keeps the personnel records in her office. I find that the foregoing, standing
alone, is insufficient to warrant a finding that Bowen was a supervisor within the
meaning of the Act.
C. Background
In Pyne Moulding Corporation, 110 NLRB 1700, the Board found that Respond-
ent Pyne had refused to recognize the United Rubber, Cork, Linoleum and Plastic
Workers of America, C. I. 0., "out of a desire to gain time in which to destroy the
Union's majority by unlawful means" (at p. 1708), had violated Section 8(a)(5)
of the Act by refusing to recognize that union and by granting wage and other
benefits, had discriminatorily discharged an employee in violation of Section 8(a) (3),
and had violated Section 8(a)(1) by timing and granting wage and other benefits
for the purpose of coercing the employees to vote against the union in a subsequent
election. The Board stated that it was "convinced that the Respondent's conduct
in employing the unfair labor tactics it did in order to evade its duty to bargain with
the Union and to prevent the unionization of its employees, indicates an attitude
of opposition to the purposes of the Act generally" (at p. 1709). The Board's
order was enforced by the Court of Appeals for the Second Circuit in 1955 (266 F.
2d 818).
In November 1957 Leonard Byrne, employed in the stockroom at the Danielson
plant, had a conversation with Freda Brochu in the presence of Flo Pruszenski.
Byrne stated that he understood that this was the kind of company which would close
down if the employees organized. Brochu replied, "Oh, yes, H H. f Burtt, Re-
spondents' president] wouldn't stand for a union, he would shut down." 2
3 The findings in this paragraph are based on the credible testimony of Leonard Byrne.
Flo Pruszenski did not testify Freda Brochu merely testified that she could not recall
such a conversation
WINCHESTER ELECTRONICS, INC., ETC . 1307
D. Interference, restraint , and coercion
As previously noted, the Union won three separate elections , one which was held
at Winchester's Danielson plant on April 1, 1959, and the other two which were
held at the New Milford plants of Respondents Winchester and Pyne on May 21.
Both before and after these elections, supervisory personnel of both Respondents,
including the highest management plant representatives, engaged in the following
proscribed conduct: 3
1. Joseph L. Ross
Ross was the plant manager of the New Milford plants of Respondents Win-
chester and Pyne and the top management representative at these plants, which occu-
pied adjoining wings in the same building.
In April after the election at the Danielson plant had been held, employee Louis
Koziar asked Ross, as the latter was walking by Koziar's press in the plant, how the
Union had made out in the Danielson election. Ross replied that the Union had
won by better than two to one, and added that if the Union would get in here "we
will give them a bigger [obscene word] than they ever had before."
Shortly before the elections of May 21, Ross gave a talk to all the employees on
the day shift of both Winchester and Pyne, who were instructed over the sound
system to assemble in one place. During the course of this talk, Ross stated that he
and President Burtt were very much opposed to the Union and that most unions
were Communist, reminded the employees that during slow periods in the past he
kept the employees working rather than send them home, and warned that if the
Union got in the employees would be sent home when work became slack.
Ross gave a similar talk to the night-shift employees of Winchester and Pyne.
During the course of his talk, Ross stated that if the Union got in, he would take it
as a personal defeat and that the employees would lose the friendly attitude existing
between them and the supervisors and also many of their existing privileges. He
went on to emphasize that if the employees did not believe him, all they had to do
was to ask the employees of Respondent Pyne who had been working there when
they tried to get a union in before (referring to the time when the Pyne Moulding
employees had selected United Rubber, Cork, Linoleum and Plastic Workers of
America, C. I. 0., as their bargaining representative, supra). He then told them
that all the employees won at that time was the loss of a week's vacation and that
that was all the good it did the employees at that time to have a union. He further
warned that if the Union got in, the jobs of employees who were over 50 would
be in jeopardy.
On the day of the election, May 21, Ross stated to employee Louis Koziar, as
the latter was walking by in the plant, that "today is the day that you can break up
this Union" and admonished him not to forget "to vote against it." The same day,
as soon as the ballots had been counted and it became known that the Union had
won the election, Ross went to the back of the plant and looked out the back
windows at a group of day-shift employees who were standing there. Ross shook
his fist at Louis Koziar, who was in that group, and stated, ",I see you out there
Louie I know you're the one who got this stinking union in here, and I'll get
you " Shortly thereafter, Ross came through the plant, shook his fingers at Koziar,
accused him of being the one who got the Union here, and warned him to watch
his step or "out you go" the "first move" he made.
2. Ethel Comben
Comben was the nurse and personnel director of Respondent Winchester at the
New Milford plant.
About a week or 10 days before the election of May 21, Comben told employee
Ambrose Fenton, who was in her office at the time, that if the Union got in President
Burtt would move out of New Milford
In the latter part of July employee Ellen Peterson was in Comben's office in
connection with a social security matter of another employee Comben told
Peterson that there was going to be a big layoff soon because "we had been very
3 The findings as to the statements made by Respondents' supervisory personnel are
based on some admissions of Respondents' witnesses and on the credible testimony of
employees Louis Koziar, Ambrose Fenton, Phyllis Earl, Virginia Case, Ellen Peterson,
Katherine Goddard, Virginia Mauss, Joseph Yarisb, Ernest Silvernail, Eddie Moret, Rita
Allen, Betty Montville, and Leonard Byrne To the extent that this testimony is denied
by the supervisory personnel named in the text, I do not credit such denials,
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disloyal to Mr. Burtt by getting the Union in there." Peterson stated that she did
not see what Burtt would gain by such a layoff because that would be discriminating
against the Union and Burtt would have to pay the employees who were laid off.
Comben replied that Burtt would not mind how much he pays as long as he gets
the Union out of here and that that was all Burtt cared about.
About the latter part of July or early August employee Virginia Case was in
Comben's office to find out why the number on her timecard had been changed.
This occurred during the period when the Union was waiting for President Burtt to
sign the contract which had been negotiated between representatives of the Union
and Respondent Winchester (infra). Comben told Peterson that "you women did
the wrong thing by having the Union come in," that Burtt would never have a union
in the plant, that the contract had not been signed and would not be signed, that
the fight had just begun, and that quite a few changes would be made.
At the end of the first week in August, after Comben had already approved Ellen
Peterson's vacation request for the second and third week in August, Comben met
Peterson in the plant and suggested that she should not take her vacation at the
requested time "because you are soon going to have a long one." Peterson agreed
to follow Comben's suggestion. However, the following Monday, Peterson informed
Comben that she had changed her mind and would like to take a few days' vacation
in the second and third week in August. Comben approved the request and stated
that she had merely made the suggestion for Peterson's own good. In response to
Peterson's query as to whether there really would be a layoff, Comben replied
that "something very drastic" was going to happen to this plant "since they opened
this Oakville" operation, referring to a new plant opened by Respondent Winchester
at Oakville, Connecticut, about that time (infra). Comben added that she could
not tell Peterson whether all the employees would be laid off or only a part of them
but emphasized that "something drastic" was going to happen at the plant because
the employees had not been loyal to Burtt by getting the Union in. As Peterson was
leaving, Comben remarked, "Goodbye, Ellen, it was nice knowing you. I may meet
you picking apples this fall."
On August 14, Respondent Winchester laid off 10 employees at the New Milford
plant. When employee Virginia Mauss was called into Comben's office that day
and advised of her layoff, Comben stated that she was sorry but that "they were
pulling out of New Milford." In response to Mauss' query as to what she should
do, Comben told her to go to the unemployment compensation office, adding that
"you fought for the Union. Now let them fight for you."
Employee Katherine Goddard had been ill from August 27 to September 3, and
was planning to return to work the following day. Having heard rumors to the
effect that there was going to be a layoff of about 30 girls, she called Comben at her
home after working hours on September 3 and inquired if she was in the group to
be laid off the following day. Comben replied that she "certainly" was and that
"you were foolish girls to get the Union in. You've put a lot of old women out of
work." Comben also informed Goddard that "Mr. Burtt can turn the key in the
lock any time rather than let the Union in." When Goddard stated that she had
heard that two of the girls in her department were to be kept on, Comden replied
that that was "only piecemeal" and that "pretty soon there will be no more
Winchester."
On September 4, Respondent Winchester either laid off or discharged 25 employees
at the New Milford plant allegedly because of a reduction in force. Practically
all of them were female employees.
3. Pat Chiavuzzi
Chiavuzzi was the general foreman of Respondent Pyne at the New Milford plant
and second in command to Manager Ross at that plant
On several occasions before the May 21 election, Chiavuzzi told employee Louis
Koziar that Burtt would not stand for a union in this shop, that if the Union gets
in Burtt will close the plant down, and that Burtt had plenty of money and will
spend millions to keep the Union out.
A few days before the first strike of July 13, Chiavuzzi asked employee Joseph
Yarish in the pill room if he was going to join the Union. When Yarish replied
in the affirmative because he was 100 percent for the Union, Chiavuzzi warned that
Yarish would be sorry "because Joe Ross is going to watch each one that goes out
on the picket line and he's going to fire everyone of them that he sees out there."
The strike ended on July 20 when the employees returned to work (infra). About
a week later, employee Ernest Silvernail had a conversation with Chiavuzzi at the
former's press. Silvernail commented that it was "funny" that "the orders are
WINCHESTER ELECTRONICS, INC., ETC. 1309
cutting down something terrific" and that "it's very unusual." Chiavuzzi replied
that he imagined it was because of the Union and that Ross had told him that if the
shop did close down Chiavuzzi would still have a job and would not have to worry.
About 2 weeks after the first strike of July 13-20, Chiavuzzi told employee Moret
that if the employees had stayed out any longer on strike Burtt would have trans-
ferred some of the work to his other plants, that it did not make any difference to
Burtt whether or not he was in business, and that the employees were lucky that
"this time we got a raise but to watch our step next time."
A few days before the second strike of September 9 (infra), employee Yarish
overheard a conversation between Chiavuzzi and Manager Ross. Chiavuzzi told
Ross that the only way to break the Union was to fire all the women and the men
who would go out would not matter. Ross then invited Chiavuzzi into his office
"to talk it over."
As previously noted, 25 employees were let out at Winchester's New Milford plant
on September 4. All but about one were female employees.
4. Carl Van Scoy
Van Scoy was a supervisor at Winchester's New Milford plant. During the course
of a conversation between Van Schoy and employee Phyllis Earl, near the latter's
machine, about a week before the May 21 election, when the Union was "uppermost
in all of our minds," Van Scoy stated that if the Union did get in "Mr. Burtt was
very likely to shut down the whole plant, put a padlock on it, because he didn't need
the money."
5. Howard Nelson
Nelson was a supervisor at Winchester's New Milford plant. A few days before
the May 21 election Nelson told employee Fenton, one of his subordinates, that
Burtt would close up the place before he would be dictated to by the Union. On
another occasion, employee phyllis Earl heard Nelson talking to two other super-
visors near her machine. Nelson stated that if the Union got in "we would all wish
we were dead," that he had once worked in another shop where the union took over,
and that the "management has their own way of making it real stinking." 4
6. John Campbell
Campbell was asupervisor at the New Milford plant of Respondent Pyne. On an
occasion before the first strike of July 13, Campbell happened to be walking by in
the plant when employee Ernest Silvernail remarked to a fellow employee that it
certainly would be "nice" if they got more money and that it would make it better
for his family. At that point, Campbell stated to Silvernail that Ross had stated
they would close the shop down before the employees would get more money.5
7. Rachel Charbonneau
Charbonneau was one of the lead girls at the Danielson plant of Respondent
Winchester.
Before the April 1 election, Millar, attorney for Respondent Winchester, held a
meeting at the plant of all lead girls and supervisors in connection with the Union
and for the forthcoming election. Charbonneau then told the employees under
her that she had just come from a meeting with Attorney Millar and that if the
Union came in the Company would move and the place would close down 6
During the course of a conversation with employee Betty Montville on another
occasion before the election, Charbonneau stated that her father had been laid off
by the Bryant Electronics Company, which was located on the first floor of the same
building occupied by Winchester, and that if the Union came in at the Winchester
plant, the Company would move just like Bryant was moving. The employees at
Bryant were represented by a union.
4 Nelson did not testify
Campbell did not testify
6 Although Charbonneau denied that the closing of the plant was mentioned at the
meeting, it is significant that Attorney Millar, who testified in specific detail with respect
to what occurred at the negotiation meetings with the Union, testified that he had no
independent recollections as to whether the closing of the plant was or was not mentioned
and would not deny that it was mentioned.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. A. W. Built
A. W. Burtt, the brother of Respondents' president, was the supervisor over
the men employed at the Danielson plant of Respondent Winchester.
In the latter part of June, Burtt accused employee Leonard Byrne, who worked
in the stockroom, of trying to get information for the Union and that "Rogers
fellow," referring to the Union's representative. When Byrne vehemently denied
the accusation, Burtt stated that "you're eitheir with me or you're against me."
Sometime later, Byrne went to see Bunt and apologized for having lost his temper.
At that time Burtt stated that he was very upset over all this union business, dis-
paraged all those who belonged to the Union, related that at places where he had
previously worked the companies had bought off the unions, and concluded with the
statement that "we licked them then and we will lick them this time too." 7
9. Concluding findings
I find that by statements and conduct of Respondent's supervisors hereinabove
detailed, Respondents Winchester and Pyne interfered with, restrained, and coerced
the employees in the exercise of their statutory rights and thereby violated Section
8(a)(1) of the Act.
E. Respondent Winchester's refusal to bargain
1. Negotiations and relevant events 8
a. Prior to the strike of July 13
The first meeting between representatives of the Union and of Respondents was
held, by prearrangement, on April 22, 1959. The Union was represented by Richard
Rogers, an International representative, and a committee of employees from the
Danielson plant. The Respondents were represented by Charles S Connor, an
attorney from Stamford, Connecticut, W. H. F. Millar, an attorney from Waynes-
ville, North Carolina, who was also Respondent's assistant secretary, and Forelady
Pruszenski. Millar testified that Connor was there because he had been advised that
Burtt, Respondent's president, wanted Connor to participate in the negotiations.
The parties discussed the general provisions of an agreement, including the Union's
requests, and, as Connor testified, they agreed to "several of the rather boiler-
plated clauses." Respondents' representatives rejected the Union's request for a
union shop, dues checkoff, bulletin boards, preferential seniority for union officers
and stewards, and the processing of grievances by stewards on company time. The
parties agreed that there would be no binding contract unless all points were agreed
upon and approved by management and the union membership. At the end of the
meeting, Rogers agreed to prepare a written draft, including the items which had
been agreed to, and to send copies to Connor and Millar.
On or about April 29, Rogers sent copies of his draft to Connor and Millar. On
May 8, Rogers was informed by Millar that he had suffered a heart attack, and
suggested that Rogers contact Connor to set up a meeting. Such a meeting was
arranged for May 15 but nothing was accomplished because Connor told Rogers
that he could not say "yes" or "no" without Millar. Another meeting was arranged,
but later cancelled because of Millar's illness.
The next meeting with Connor and Millar was held on June 5. At this meeting
the parties agreed that they "were apart" on the issues of wages, insurance, washup
time, use of bulletin boards, union security, checkoff, and superseniority. During
this meeting Millar gave Rogers a copy of Respondents' proposed contract and
stated that he would prefer to work from that draft. Millar suggested that Rogers
take a copy of Millar's draft, look it over, and arrange a meeting with Connor to
dispose of specific objections. Rogers agreed to do so.
Thereafter, a meeting was arranged with Connor in the latter's office on June 9.
At that meeting, Rogers objected to about 20-25 different points in Millar's draft.
However, Connor stated that he had no authority to change any of the language in
Millar's draft.
Rogers then telephoned Millar and stated that he was disappointed in the progress
of negotiations and that a strike might ensue. Millar thereupon arranged a meeting
for June 23.
IA. W Burtt did not testify
8 The factual findings are based primarily on the testimony of Union Representative
Richard Rogers, who impressed me as a very forthright, candid, and credible witness
WINCHESTER ELECTRONICS, INC., ETC. 1311
Connor and Millar appeared for Respondents at this meeting and acted about
equally as spokesmen. At this meeting, Connor offered a wage increase of 5 cents
per hour plus a paid insurance plan if the Union would withdraw its demand for
union security and a checkoff. Rogers stated that this was not acceptable.
During the next few days, strike votes were taken by the employees at Respond-
ents' Danielson and New Milford plants. Rogers then telephoned Connor, advised
that he had been authorized to call a strike, and suggested the desirability of an-
other meeting. Connor agreed.
Such a meeting was held on July 7 at the offices of Cummings and Lockwood, a
law firm with which Connor was associated. Connor, Millar, and Plant Manager
Ross represented Respondents; Rogers appeared for the Union.
Rogers stated early in the meeting that unless the differences between them could
be resolved, it appeared that there would be a strike. Following some discussion
on wages, Rogers stated that the 5 cents was not the biggest issue between them but
that it was rather the union-security matters. It was then agreed that Rogers should
list the items which he considered the minimum necessary for reaching agreement.
Rogers retired to the office library to do so. When he returned, prepared to discuss
his list item by item, Respondents' representatives had been joined by McPherson,
Connor's associate and a director of Respondents. At this point, McPherson told
Rogers that no concessions on the controversial items could be made without Burtt,
Respondents' president, that Burtt was in Europe and was not expected back for
about 6 weeks, and requested a delay in negotiations until Burtt's return. Rogers
replied that he wouid give them 5 days to get in touch with Burtt.
Rogers received no communication from Respondents' representatives within the
time mentioned. On Monday, July 13, the employees at the New Milford plants of
Respondents Winchester and Pyne went on strike.
b. During the strike of July 13
On Monday morning Rogers telephoned Connor, told him of the strike at New
Milford, and that the employees at Danielson were planning to strike on Wednesday.
Connor stated that he had not heard from Burtt. The employees at Danielson went
on strike on July 15. About that time Connor advised Rogers by telephone that he
had heard from Burtt. Rogers stated that he was "sick and tired of being kicked
from one lawyer to another" and would keep the people out on strike as long as
that situation continued. Connor stated that Millar was now "out of the picture"
and a meeting was arranged for July 16 at the Taft Hotel in New Haven. The
meeting lasted about 7 hours.
The Respondents were represented by Connor and Clifford Oviatt, an associate of
Connor; the Union was represented by Rogers. At the beginning of the meeting,
Rogers asked Connor if he was authorized to "give us some answers" on the
controversial items Connor replied that he was and waved a photostat of a cable-
gram signed by President Burtt, mentioning the name of Detar, Respondents' vice
president, as being authorized to sign an agreement. Connor admitted that he
showed the cablegram to Rogers to indicate to him that someone in the United
States had authorization to execute an agreement because he knew that otherwise
Rogers would not be foolish enough to send the people back to work. Connor
also admitted that he assured Rogers that he [Connor] was the only lawyer Rogers
would have to deal with for the purpose of settling this agreement.
Connor and Rogers then went on to bargain for about 7 hours, using the draft of
Rogers and Millar, and came to agreement on everything except wages, including
a modified union shop, processing of grievances on company time, use of bulletin
boards, and preferential seniority. Rogers offered various wage proposals to Connor
who said he could not spend that much money. At one point, Connor mentioned to
Rogers the sum total he was "authorized to spend" and they considered possible
variations of economic benefits within the framework of the limitations on Connor's
authority in this area. At the end of the meeting, Connor said he would have to get
agreement from the rest of the company principals with respect to the wage settle-
ment, mentioning Millar, McPherson, Ross, and Lockwood, Respondents' comp-
troller 9 Connor was to go back to Stamford to meet with his principals on the
6 Connor's memory as to what was specifically said at the negotiation meetings which
he attended was not as complete and thorough as that of Rogers On several occasions
Connor testified that he had no independent recollection "of exactly what was said "
Under all the circumstances, I am convinced and find that Connor was mistaken when
he testified that he told Rogers that any agreement reached would be subject to approval
by Burtt or his principals in all respects, and not solely on wages, as Rogers testified
I do not credit his testimony in this respect
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage issue, and agreed to inform Rogers whether they could reach agreement on
the wage issue and, if so, which one of the wage propositions was acceptable.
That same evening Connor, Oviatt, Millar, Ross, McPherson, and Lockhard met
in Connor's office in Stamford. Connor admitted that at this conference he told
Millar about the changes in Millar's draft to which Connor had agreed and that "it
horrified some of the people there." 10 Plant Manager Ross admitted that the
Union's demands were discussed at this meeting in order to reach a conclusion.
They then drafted and sent a cablegram, addressed to H. H. Burtt at a hotel in
Switzerland, signed by all five men. The cablegram read as follows:
Result of lengthy negotiations early settlement of strikes possible only on either
of following bases: Proposal No. 1 union security and insurance benefits as
previously advised STOP Ten cents general wage increase STOP Reopener
only on wages six months hence STOP Total annual cost $61,000 plus
negotiated increase if any STOP Proposal No. 2 same as above plus additional
five cents general wage increase six months from date of contract plus 21/z
cents per hour effective six months hence for job inequities and no re-
opener STOP Total annual cost $80,000 STOP If plants to resume work
Monday McPherson must hear from you by noon Friday New York time.
The next morning, Friday, July 17, Rogers telephoned to Connor and was advised
by Connor that his people did not want to move on the wage question "without Mr.
Burtt's OKAY" and that they had not yet heard from Burtt. About 1.30 that
afternoon Connor advised Rogers by telephone that Burtt had accepted proposal No.
1, outlined in the above cablegram. Rogers then "asked if everything else was the
same as we had left it the previous night." Connor replied that it was but stated
that "this is all conditional on your people returning to work on Monday."
A membership meeting was held in New Milford that day and the contract
negotiated by Rogers, including Respondents' wage proposal, was accepted. Rogers
immediately informed Connor of this acceptance. Connor replied that that was
"fine," that he would go to work immediately to prepare a draft of the contract and
send Rogers a copy. Rogers also stated that he was on the way to the Danielson
plant and would assume that the vote there would also be in the affirmative; other-
wise, he would inform Connor. That evening, the Danielson plant employees voted
unanimously to accept the package agreement, as had the New Milford employees.
c. From the end of the strike on July 20 to the September 9 strike
The strikers at all plants returned to work, as promised, on Monday, July 20.
The wage increase, insurance provisions, and shift differentials, provided in the
agreement reached between Connor and Rogers, were immediately put into effect
at the Danielson and New Milford plants, and a notice containing the union-
security provisions agreed upon at the July 16 meeting was posted at all plants with
the permission of Connor and Plant Manager Ross. The heading on the notice
stated that "The contract between the Company and the Union provides. . .
On July 21, Rogers received a letter from Connor along with a copy of the
completed contract. Rogers telephoned Connor and pointed out that the draft
contained some minor errors. Connor agreed and stated that he would prepare
another draft and send it to Rogers. About July 23, Rogers received another letter
from Connor along with a revised copy of the contract, which still contained a minor
error. Rogers called this error to the attention of Connor's secretary, and then
waited for mimeographed copies, as promised in Connor's letter of July 22.
On July 29, Rogers telephoned to Connor and asked about the copies of the
contract. Connor stated that it takes time, that Rogers should not push him, and
that they will have them as soon as they get back from the mimeographers. Rogers
replied hat he was not pushing Connor but that the membership was getting anxious,
that the people were back at work, and that they still did not have a signed contract.
They agreed to meet on August 5, at which time Connor would bring signed copies
of the contract.
At the August 5 meeting, Connor, Oviatt, and Ross met with Rogers and Fenton,
the president of the local. Connor gave Rogers an unsigned mimeographed copy of
the contract, and stated that he had submitted copies for Burtt's signature but that
they had not yet been returned. Connor added that he hoped he would get them
back soon. Connor, Ross, and Rogers then spent the rest of the meeting discussing
10 Connor was testifying as a witness for Respondents. Millar denied that he was
informed by Connor that evening of all the changes in Millar's draft to which Connor
had agreed and testified that he did not learn of such changes until about a week later.
I believe that Millar was mistaken and do not credit him in this respect.
WINCHESTER ELECTRONICS, INC., ETC . 1313
matters which included the administration of various clauses of the contract and
certain grievances. Included in the grievances discussed were those involving em-
ployees Mauss, Jopson, Richards, Moret, and others employed at the New Milford
plant In this connection, Ross had stated that there were a number of old people
whom he would like to get out of the plant, and asked Connor if he would have
to follow the seniority provision of the contract as to them. Connor replied in the
affirmative. Ross stated that he would meet with Fenton on these matters before
anything was done. The meeting lasted about 3 hours.
A few days later, Rogers called Connor's attention to two grievances at the
Danielson plant, which Connor agreed to correct.
On August 12, Connor sent Rogers a letter which stated that he had conferred with
his client and wished to advise him that "the proposed contract can be put in final
form upon your advising me of your concurrence in the following changes in said
proposed draft." The letter then listed a number of changes which Rogers regarded
as affecting the ability of the Union to administer the contract and to maintain the
strength of its membership." The letter also contained suggested corrections in
language and punctuation. Rogers immediately telephoned to Connor; complained
that the letter constituted a repudiation of the most important points of the contract;
pointed out that these were the very issues which had caused the strike in the first
place and were the points which he thought they had won during the strike; stated
that the only thing he would agree to change was the language errors; and that
unless the Respondent signed the contract in its entirety as it had previously been
agreed to, there would be another strike. Connor replied, "I don't blame you but
I am acting under the instruction of my client " Rogers accused the Respondents of
not bargaining in good faith, and stated that he would be forced to file charges with
the National Labor Relations Board. Connor said "good luck" or something to
that effect.
A few days later Rogers learned that there had been a layoff of 10 employees at
the New Milford plant, including those whose tenure had been discussed as a
grievance at the August 5 meeting, and with respect to whom Ross had promised
not to take any action without first notifying the Union.
On August 17, Rogers filed unfair labor practices charges with the Board, alleging
violations with respect to layoffs at Respondents' Danielson and New Milford plants iz
and with respect to Respondents' failure to bargain in good faith.
By letter dated August 18 and addressed to President Burtt, Rogers requested a
meeting date to discuss matters involving wages, hours, and working conditions, such
as layoffs of certain employees, failure to pay established wage rates, issuance of
unwarranted warning slips, and performance of unit work by supervisory personnel.
Millar replied, by letter dated August 21, stating that he would be glad to discuss
these grievances with Rogers.
After further correspondence and a telephone call, Millar met with Rogers on
August 26 at Stamford. Millar stated that he felt their differences could be adjusted
"provided we would withdraw the charges we had filed with the National Labor
Relations Board." Rogers replied that he was unwilling to do this "unless and until
our differences were settled." They then discussed the changes which Connor had
suggested in his letter of August 12. Rogers made it clear that he was unwilling
to renegotiate the contract to which Connor and he had agreed, but he would agree
to a separate stipulation or letter to clarify any ambiguous language, which would
be attached to the contract and signed at the same time. Millar offered to modify
some of Connor's proposed changes but refused to embody them in a separate letter.
"These were as follows :
1 Eliminate provisions that union stewards and officers be paid for time spent
during working hours collecting dues and investigating and processing grievances,-
2. Eliminate provision that Union Grievance Committeemen be paid for time lost
discussing grievances ;
3. Eliminate provision that an International Representative be permitted to enter
the plant at any time upon notice to Company,
4. Eliminate provision that the Company post Seniority Lists on Bulletin Boards,
and advise Union of changes in the lists ;
5. Amend seniority provision by providing that layoffs and promotions be on a
competence basis with Company as sole judge ; and
6. Amend vacation provision by providing that vacations be taken at Company
convenience.
12At the Danielson plant, 12 employees were laid off on July 31, 9 employees on
August 3, and 28 employees on August 5, all allegedly for lack of work ; at the New
Milford plant , 10 employees were laid off on August 14 , allegedly for lack of work.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remainder of the time was spent in discussing grievances, many of which had
been discussed at the August 5 meeting, and also included the layoff of the 10
employees at New Milford. The meeting concluded with Millar stating that he
would get in touch with Rogers with respect to the grievances which had been raised
and notify him as to Millar's position on them.
By letter dated August 28, Millar informed Rogers that he had decided not to give
Rogers the "benefit" of processing a grievance with respect to the 10 employees
laid off at New Milford on August 14 because Rogers "had taken this case to the
National Labor Relations Board as a part of Unfair Labor Practice Charges." The
letter also stated Millar's position on some of the other grievances which had pre-
viously been raised, and concluded with an offer to redraft the contract to incorporate
the changes previously suggested by Millar. Rogers did not answer this letter.
During August, without any prior notice to or discussion with the Union, Re-
spondents opened a new operation at Oakville, Connecticut, where assembly work
identical to that done at the Danielson plant was performed. On September 4, also
without any prior notice to the Union, Respondents moved their depressing and
gauging department out of the New Milford plant to its Oakville operation and at
the same time laid off 25 employees at the New Milford plant, allegedly because of
a reduction in work force.
On the evening of September 8 the employees at Danielson and New Milford held
a general membership meeting at which a strike was voted. On September 9 the
employees at Respondents' Danielson and New Milford plants went on strike.
d. Since the September 9 strike
About September 25, 1959, Rogers and Millar met with Federal and State
mediators, at the request of the mediators, but no progress was made toward a settle-
ment of the differences.
On October 29, Rogers and Millar appeared at a hearing before the State com-
missioner of labor in connection with the Union's claim for unemployment com-
pensation At the end of the hearing, the commissioner asked if there was any
chance of settling the contract differences between the parties, offering to sit in as
a mediator. Millar replied that he was willing to negotiate. Rogers refused, stating
that too much damage had already been done because of the employment termina-
tion of people and that until that damage had been rectified, there was not much
point in rehashing the entire thing again.
By letter dated November 16, 1959, Rogers notified Respondents that "all em-
ployees represented by this union are unconditionally available for work, and request
immediate reinstatement." Millar replied, by letter dated November 24, that the
strikers would be reemployed "when and if their jobs are available." The strikers
had not been reinstated as of the time of the hearing in this proceeding.
2. The respects in which Respondents violated the Act
It is the General Counsel's position that agreement on all points, except the wage
issue, had been reached at the July 16 negotiating meeting between Rogers and
Connor, who had full authority in this respect, and that the contract became binding
on both parties when Burtt accepted one of the wage proposals and the union mem-
bership thereafter ratified the entire agreement. The General Counsel contends
that the Respondents violated their statutory obligations within the meaning of
Section 8(a)(5) of the Act by their conduct, among others, (a) in later repudiating
and refusing to sign this agreement, (b) in taking unilateral action with respect to
layoffs, the transfer of a New Milford department, and the opening of the Oakville
plant, and (c) in refusing to permit the layoff of the 10 employees at the New
Milford plant to be processed as a grievance because the Union had filed unfair labor
practice charges. The Respondent contends that (1) Connor had no authority to
negotiate a binding agreement without the approval of Burtt, (2) Burtt had not
approved all the terms of the agreement negotiated at the July 16 meeting with
Connor, and (3) it was the Union which thereafter had refused to bargain by failing
to answer Millar's letter of August 28 and calling a strike instead, and by refusing
to negotiate during the strike at the suggestion of the State commissioner on
October 29.
a Respondents' refusal to sign the agreement negotiated with Connor on July 16
after Burtt's approval of the wage proposal
The preponderance of the evidence convinces me that Connor had full authority
to conclude an agreement subject only to the approval of Respondents' principals
WINCHESTER ELECTRONICS, INC., ETC. 1315
on the wage issue and that the agreement reached on July 16 became final and
binding on both parties when Connor received Burtt's approval on one of the wage
proposals and the union membership thereafter accepted the entire package. Out-
standing among the factors which lead me to this conclusion are the following:
(1) The July 13 strike was called when McPherson stated at the July 7 meeting
that no concessions could be made on the controversial issues without Burtt's con-
sent and when no answer had been received from Burtt by July 13. These con-
troversial matters included, among others, the very items which Connor later sought
to have changed. Connor was anxious to negotiate a settlement of the strike. His
disclaimer of authority at the meeting of May 15 and June 9 emphasized by contrast
his assertions during the meeting of July 16 that he now had authority to "give us
some answers" on these controversial items. Connor assured Rogers that Millar
was "out of the picture" and that "for the purpose of settling this agreement, if we
can, you won't have to worry about any other lawyer at this time." After 7 hours
of negotiations, Connor and Rogers reached agreement on all the terms of a contract
except wages.
(2) At this meeting of July 16, Connor told Rogers that he would have to get
approval from his principals, including Millar, only with respect to the wage
settlement.
(3) That evening Connor informed his principals, including Millar, about the
changes that had been made in Millar's draft and to which Connor had agreed.
Although Millar and some of the others appeared "horrified" by these changes,
Millar took no steps to tell Rogers of his disagreement with any of them until they
met on August 26. Indeed, even if, contrary to my prior finding, Connor's authority
to reach an agreement was subject to the approval of his principals with respect to
all terms, such approval was obtained that evening on all matters except the issue
referred to Burtt by cable.
(4) The wage issue was the only new proposal submitted for Burtt's approval,
although Connor admittedly knew that Rogers would not be foolish enough to
send the people back to work unless someone in the United States was authorized to
sign a contract on behalf of Respondents.
(5) The cablegram to Burtt opened by stating that as a result of lengthy negotia-
tions, early settlement of the strike was possible "only on either of the following
bases," and requested a reply by Friday if the plants were to resume work on Monday.
(6) On Friday, July 17, Connor informed Rogers that his people did not want to
move on the wage issue "without Mr. Burtt's okay." He gave no indication that any
further "okay" would be needed on any other issues.
(7) When Connor informed Rogers that afternoon that Burtt had approved pro-
posal No. 1, Rogers "asked if everything else was the same as we had left it in the
previous night." Connor replied that it was and that "this is conditional on your
people returning to work on Monday." Connor testified that he knew Rogers would
not be foolish enough to send his people back to work unless there was someone
in the United States with authority to sign a contract. By the same token Connor
must also have known that Rogers would not be foolish enough to send his people
back to work unless a binding contract had been agreed upon.
(8) The Union called the strike off and the employees returned to work on
Monday, July 20. At the same time, the wage and insurance provisions called
for by the contract were put into effect at all plants. This alone indicated that
the admitted bargaining techniques of Connor and Millar to the effect that there
would be no binding agreement on any item unless all items had been agreed to,
had been met. Otherwise, if no full agreement had been reached, Respondent's
conduct in putting these provisions into effect while negotiations were still in
progress would constitute unilateral action violative of Section 8(a)(5) and (1)
of the Act, as Connor and Millar, both experienced attorneys in negotiations and
in labor matters, must have known.
(9) At the same time Respondent posted a notice on union-security provisions
in its plants, with the knowledge and approval of Connor and Plant Manager Ross
The notice began with the statement that "The contract between the Company and
the Union provides."
(10) Connor wrote letters to Rogers on July 20 and 22, which letters indicated
that there was a completed contract.
(11) At the August 5 meeting, Connor, in Ross' presence, told Rogers that the
contract had been sent to Burtt for signature. Connor, Ross, and Rogers then dis-
cussed the administration of various clauses of the contract.
(12) Between July 17 and August 12, Respondent acted as if the contract were
in effect and, at any rate, did nothing to indicate to the Union that it felt that the
contract was not in effect or not bindine.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(13) The changes which Connor proposed in his August 12 letter involved
some of the very issues which had caused the strike in the first place.
(14) When Rogers accused Connor of repudiating the most important points of
the contract which Rogers thought they had won during the strike and threatened
another strike unless the contract were signed as previously agreed to, Connor replied
that he did not blame Rogers but that he was acting under the instructions of his
client.
Upon consideration of the foregoing, and upon the entire record as a whole, I
find that: (1) Connor had express or implied or at least ostensible authority to
negotiate a binding agreement on behalf of Respondents, subject only to his princi-
pal's approval on the wage issue; (2) such approval was obtained when the wage
issue had been resolved by Burtt's answer to Connor's cablegram; (3) when
Connor informed Rogers of Burtt's approval and the union membership thereafter
ratified the entire contract, there was a complete agreement binding on the Re-
spondents and the Union; and (4) Respondent's subsequent repudiation of, and
refusal to sign, this agreement constituted a refusal to bargain within the meaning
of Section 8(a) (5) and (1) of the Act.13
b. Respondents' unilateral action
As previously noted, during the period from July 31 to September 4, Respondents
laid off 14 employees at its Danielson and New Milford plants as follows: At the
Danielson plant, 12 employes were laid off on July 31, 9 employees on August 3,
and 28 employees on August 5, all allegedly for lack of work; at the New Milford
plant, 10 employees were laid off on August 14, allegedly for lack of work, and 25
employees on September 4, allegedly because of a reduction in force In addition,
about August 1, Respondents opened up a new operation at Oakville, Connecticut,
where it hired new employees to perform the identical assembly work performed
at Danielson, and on September 4 transferred its depressing and gauging department
from the New Milford plant to the Oakville operation, thereby causing the layoff
or termination of the 25 employees at New Milford on September 4.
At no time did Respondents inform the Union of their intention to make these
layoffs, to open the Oakville operation, and to transfer the depressing and gauging
department from New Milford to Oakville. At no time did Respondents offer any
of the laid-off employees from Danielson and New Milford the opportunity to take
employment at Oakville.
As I hereinafter find that Respondents' conduct in the above respects was dis-
criminatorily motivated in violation of Section 8(a)(1) and (3) of the Act, it
also constituted a refusal to bargain in good faith with the statutory bargaining
representative of the affected employees in violation of Section 8(a)(5) and (1).
However, even assuming that Respondents' conduct in all these respects was moti-
vated solely by economic considerations, its failure to apprise the affected em-
ployees' bargaining representative of their intentions to take such action and thus
afford the Union an opportunity to bargain with the Respondents in an effort to
mitigate, or perhaps avoid, the adverse economic effects on the employees in-
volved, and to bargain about the possible transfer of the affected employees to
the Oakville plant, was in derogation of the Respondents' obligation to bargain in
good faith with the Union in violation of Section 8(a)(5) and (1) of the Act.
This was particularly aggravated in the case of the layoff at the New Milford
plant on August 14 of the 10 employees, as the tenure of at least some of them was
still the subject of an unresolved grievance which Rogers had discussed with Plant
Manager Ross at the August 5 meeting and with respect to whom Ross had promised
at that meeting not to take any action without first notifying the Union. That the
opening of the Oakville operation had adverse economic effects on the Respondents'
employees at the Danielson and New Milford plants is crystal clear. As herein-
after found, the layoffs at Danielson were caused by the transfer of some of the
Danielson work to Oakville, and the September 4 layoffs at New Milford were
admittedly caused by the transfer of the depressing and gauging department to
Oakville And Personnel Director Comben of the New Milford plant admitted
3311 J Heinz Company v. NLRB, 311 U S. 514; New England Die Casting Company,
116 NLRB 1; see also Sheet Metal Workers Union, Local No. 65, AFL-CIO (Inland
Steel Products Company), 120 NLRB 1678
14 The General Counsel contends that these were discharges I find that it is im-
material to a resolution of the issues in this case whether they be termed discharges or
layoffs
WINCHESTER ELECTRONICS, INC., ETC. 1317
that "naturally when a person opens up in another section, it is going to indirectly
affect certain phases of our work."
I therefore find that Respondents' unilateral action in the above-stated respects
violated Section 8(a) (5) and (1) of the Act.15
c. Refusal to process grievance because Union filed unfair labor practice charges
By letter dated August 28, Millar informed Rogers that with respect to the
Union's grievance concerning the layoff of the 10 employees at the New Milford
plant on August 14, which Rogers had raised at a conference on August 26, Millar
had decided not to bargain on this grievance "since you [Rogers] have taken these
cases to the National Labor Relations Board as a part of the Unfair Labor Practice
Charges "
It is well settled that the duty to bargain with the statutory bargaining repre-
sentative continues during the pendency of unfair labor charges.is I therefore
find that Millar's refusal on August 28 to bargain about the grievance regarding
the layoff of the 10 employes at the New Milford plant on August 14 constituted a
further violation of Section 8(a) (5) and (1) of the Act.
d. Respondents' contention
I find no merit in Respondents' contention that Rogers' failure to answer Millar's
letter of August 28 and the strike of September 9 constituted a refusal to bargain
by the Union. As previously found, Respondents had already violated the Act
in the numerous respects hereinabove set forth. As hereinafter found, the resultant
strike was caused by Respondents' unfair labor practice.
Nor is there any merit to Respondents' contentions that the Union had refused
to bargain at the suggestion of the State commissioner at the October 29 meeting.
Millar gave no indication at that time that he was prepared to recede from his
previous position Fruitless meetings had already been held with State and Federal
mediators the preceding month. Moreover, the Union was under no duty to
renegotiate the contract upon which final agreement had been reached by both
parties merely because Respondents repudiated that agreement. Finally, the Union
was entitled to insist that Respondents' unfair labor practices first be remedied.
F. The discriminatory layoffs by Respondent Winchester
The complaint alleges, the record shows, and Respondent Winchester admits that
at the Danielson plant 12 employees were released on July 31, 1959, 9 employees on
August 3, and 28 employees on August 5; and that at the New Milford plant, 10
employees were released on August 14 and 25 employees on September 4, 1959.
The General Counsel contends, as the complaint alleges, that these employees were
discharged and thereafter refused reinstatement because of their union and con-
certed activities and because of Respondent Winchester's opposition to the Union,
in violation of Section 8(a)(3) and (1) of the Act. Respondent Winchester con-
tends that these employees were not discharged but were laid off for nondiscrimi-
natory reasons, that 25 employees were laid off at the New Milford plant because of
a reduction in force, that the other employees at the New Milford and Danielson
plants were laid off for lack of work, and that many of these employees have since
been reinstated.
It is immaterial whether the employment separations be classified as discharges
or as layoffs; the only material issue is whether they were discriminatorily moti-
vated in violation of the Act. I will therefore refer to these separations as layoffs.
1. Reasons for the layoffs
Freda Brochu, in charge of production at the Danielson plant, testified that she
was the one who made the decision to lay off the employees at the Danielson
plant and that these layoffs were due to lack of work caused by a shortage of
'S See, e.g, New Madrid Manufacturing Company, et al., 104 NLRB 117, 120-121;
Industrial Fabricating, Inc, at al., 119 NLRB 162, 189-190; Brown Truck and Trailer
Manufacturing Company, Inc., et al, 106 NLRB 999, 1000-1001; California Portland
Cement Company, 101 NLRB 1436, 1440; California Footwear Company, 114 NLRB
765, 766; and Smith's Van & Transfer Company, Inc , et al , 126 NLRB 1059
'e See, e g, California Portland Cement Company, supra; The Borden Company, 108
NLRB 807, 812
577684-61-vol 128-84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials. However, at another point Brochu admitted that perhaps as much as
30 percent of the work performed at Danielson had been transferred to the Oak-
ville plant which began about August 1 and which admittedly performed the same
assembly work as Danielson. Moreover, Brochu further admitted that she listed
the material shortages every day, that a memo containing them was sent to the
main office in Norwalk every day, and that copies of such memos or correspondence
were maintained at the Danielson plant. Yet, at the General Counsel's request,
Respondent's attorney refused to permit Mrs. Brochu to produce copies of such
correspondence. Respondent's refusal to produce copies of such correspondence
is, under the circumstances, persuasive evidence that they would have been adverse
to the Respondent.17
On the other hand, Joseph Ross, plant manager of the New Milford plants,
testified that the decision to cut down employment at the Danielson plant "would
come from Mr. H. H. Burtt," president of Respondents; he further admitted that
there had been a transfer of work from the Danielson to the Oakville plant
which resulted in a lack of work at the Danielson plant causing the layoffs. He
also admitted that the reason he knows about it is because Burtt had discussed
these matters with him. H. H. Burtt did not testify, although subpenaed by the
General Counsel.
With respect to the New Milford plant, Ross admitted that the layoff of the 25
employees on September 4 resulted from the transfer of the depressing and
gauging department from the New Milford to the Oakville plant. With respect
to the layoff of the 10 employees at New Milford on August 14, many of them
were among the oldest employees in point of seniority, the reasons advanced for
the layoff of many of them admittedly were not the true reasons, and many of
them were later recalled and reemployed despite their alleged deficiencies. More-
over, as previously found, on the day of the layoffs, Personnel Director Comben
told one of the laid-off employees that she was sorry about the layoff but that
"they were pulling out of New Milford." Indeed, Comben added that the opening
up of another operation would naturally "affect certain phases of our work."
In the light of the foregoing, and upon consideration of the entire record as a
whole, I am convinced and find that the layoffs at the Danielson and New Milford
plants were caused by the transfer of work and equipment to the Oakville plant.
The question as to whether these layoffs were discriminatory therefore turns
upon a determination of whether the transfer of work and equipment to the Oak-
ville operation was motivated by economic considerations, as Respondent con-
tends, or by discriminatory considerations such as Respondent's opposition to the
Union and a desire to rid itself of the Union, as the General Counsel contends.
2. Respondent 's asserted reasons for the transfer to Oakville
a. As to Danielson
Ross testified that President Burtt made the decision to rent the Oakville plant
and that Burtt discussed the reasons therefor with Ross. The lease for the Oakville
space, which consists of about 10,000 square feet , was made on June 24, 1959,
and became effective August 1.
Ross testified that , at Burtt's request, he had been looking for about 12,000
square feet of suitable space to rent for an assembly operation since about
January 1958 , and that about once every 2 weeks he would go to different locales,
sometimes with Burtt, to inquire about suitable space and to look at various
buildings . As to the need for this additional space at that time, Ross testified
as follows:
Q. (By Mr. Kowal .) Now, at that time Mr . Ross, what created the need
for this additional space?
A. Well, I'll tell you what created the need, we started that far back because
Mr. Burtt was foreseeing a big boom in business, and Mr. Burtt generally
prepares himself a long time ahead for such moves, and so he just casually
told me. "Joe , keep looking , and if you come across anything good," he says,
"We'll look at it ," and, as he foresaw , and it did come about , our business
doubled, and doubled again
Q. And is that the only reason you began looking two years ago , because
Mr. Burtt saw a big expansion in business in the future?
A. That's right.
31 See, e g, Interstate Ctircust v. U S, 306 U.S 208, 226.
WINCHESTER ELECTRONICS, INC., ETC. 1319
Ross admitted that although he had been looking for 2 years without being
able to find a suitable place, the Oakville space had been vacant for several years,
and that he first visited that location in May or June 1959 with a view to renting it.
He further admitted that during the whole time that he was looking for additional
space, Respondent had about 12,000 square feet of unused leased space at its
Danielson plant. However at another point Ross testified, and Respondent contends,
that the reasons for deciding to cut down the Danielson operations and to look for
another location in which to do the same assembly work were the following alleged
defects in connection with the Danielson operations:
The lack of available qualified employees in the Danielson area: Respondent
contends that it was unable to obtain an adequate number of qualified employees
with sufficiently good eyesight and deftness of fingers which are required for its
assembly work. Admittedly, the work is not difficult, new and inexperienced em-
ployees were shown how to perform the work in about 1 hour, and girls of school
age with no previous job experience as well as women over 50 years of age were
hired to perform this work. Admittedly no eye examination or finger dexterity
tests were given to applicants for employment. In September and October 1958,
Respondent hired about 55 employees which, according to Mrs. Brochu, was all
that she needed for the Danielson operation. About the same time, Respondent
leased about 12,000 square feet of additional space at the Danielson plant and
started to make preparations for the expansion of its operations in the leased
space, which continued until sometime in the spring of 1959. Indeed, as late as
April 1, 1959, when Rogers and Respondent's Attorney Millar were checking the
eligibility list for the election to be held that day at the Danielson plant, Millar
told Rogers that Respondent expected to expand its work in that space.18 Finally,
according to the Unemployment Commission of the State of Connecticut, the
Danielson area has had the greatest unemployment problem in the State for the
past 10 years, and the unemployment figures have been so high that the area has
been designated as "critical" and a labor surplus area.
Ross testified that as a result of considerable research, including interviews of ap-
plicants at Oakville, they decided that an adequate qualified labor supply would be
available at Oakville. He admitted that Burtt had undertaken the same kind of
research before opening the Danielson operation and had concluded that Danielson
was a good place to establish his operation. Again, on advice of counsel, Ross
refused to produce the records of the interviews and the applications made at
Oakville. And, as previously noted, H. H. Burtt who, according to Ross was the
one who made the decision to rent the Oakville plant, was not called as a witness,
despite the fact that the General Counsel had subpenaed him.
In view of the foregoing, and upon consideration of the entire record as a whole,
I find that the foregoing reason asserted by Respondent was not the true motivating
cause for its sudden conduct in cutting down the Danielson operation and trans-
ferring some of its work to the Oakville plant at that time.
The distance factor: The Danielson plant is located about 100 miles from the
New Milford plant, whereas the Oakville plant is only 28 miles from the New
Milford plant. Respondent contends that a truck with materials went from New
Milford to Danielson twice a week, that it took too long to make these runs, and
that the differential in distance between Oakville and New Milford, on the one hand,
and Danielson and New Milford, on the other, was a major factor motivating
Respondent in establishing the Oakville operation and transferring some of the
Danielson work to it. However, the distance factor was known to Respondent
when it first set up the Danielson operation in 1957. Despite this factor, Respond-
ent leased more space at the Danielson plant and as late as April 1959 intended
to expand its operations there. Finally, since the opening of the Oakville operation,
the truck admittedly is making three trips a week from New Milford to Danielson
and will continue to do so, as Respondent intends to continue operations at
Danielson on a limited scale. Under all the circumstances, I find this asserted reason
to be wholly unconvincing and conclude that it also was not a true motivating
cause for Respondent's actions at that time.
b. As to New Milford
Ross testified that President Burtt told him that the reason for the transfer of
the depressing and gauging department, including equipment, from New Milford
to Oakville on September 4, with its attendant layoffs at New Milford, was to make
18 This finding is based on the credible testimony of Rogers. Millar merely testified
that he did not recall any such statement
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room for the installation of hermetic equipment. Yet, Ross admitted that the
hermetic equipment has never been ordered, and that he has no idea when, if ever,
it will be ordered, or, if ordered, when it will arrive. At one point, Ross testified
that Respondent may use the vacated space for plating operations; at another point,
he testified that Respondent still "seriously intends" to install the hermetic equip-
ment gat New Milford. Meanwhile, the space, which was large enough to provide
working space for about 50 employees, remains vacant. And none of the laid-off
employees were offered jobs at the Oakville operation, only 28 miles away. Here
again, it is significant that H. H. Burtt, who is alleged to have made these decisions,
did not testify.19 As the Supreme Court has held,20 "the failure under the circum-
stances to call as witnesses those . who were in a position to know . is itself
persuasive that their testimony, if given, would have been unfavorable" to Respondent.
In view of the foregoing, and upon consideration of the entire record as a whole,
I reject the Respondent's asserted reason for the transfer of the New Milford
department and equipment to the Oakville plant.
3. Concluding findings with respect to the layoffs
Long before the Union commenced its organizational activities, Brochu, at that
time assistant production manager, stated that President Burtt would not stand for
a union and would shut down before he would have a union in the plant. Ross
admitted that Burtt told him he did not want a union at his plants. As previously
found, both before and after the elections at the Danielson and New Milford plants,
Respondent's supervisory personnel, from lead girl to personnel director and plant
manager, threatened employees with economic reprisals and with the shutdown or
removal of the plant by Burtt, in the event that the Union became their bargaining
representative. After the Union won the Danielson election in April, Plant Manager
Ross told an employee that if the Union won the election at the New Milford plant
the Company would give the Union the worst deal it ever had. After the Union
won all elections, what started as a casual search to see if they "could come across
anything" good because of Burtt's vague plan of expansion in a vaguer and indefinite
future, was suddenly translated into immediate action. All efforts of expansion
at Danielson suddenly came to an end, its lease for extra space was given up, the
alterations in progress were cancelled, and approximately the same amount of
space that was given up at Danielson was leased in Oakville on June 24. In the
latter part of July, Personnel Director Comben told an employee that there was
going to be a big layoff soon because they had been "very disloyal to Mr. Burtt by
getting the Union in there" and that Burtt did not care how much it would cost him
as long as he got the Union out. In the latter part of July or early August, Comben
told another employee that Burtt would never have a union in the plant, that the
contract had not been signed and would not be signed, that the fight had just begun,
and that quite a few changes would be made. About the same time, the layoffs at
Danielson began. Thereafter, Respondent repudiated and refused to sign the con-
tract previously negotiated and agreed upon. Early in August, Comben told an
employee that "drastic" changes would be made "since they opened this Oakville"
operation because the employees had not been loyal to Burtt by getting the Union in,
and that she did not know whether all the employees, or only part of them, would
be laid off. On August 14, Comben told 1 of the 10 employees laid off that day that
"they were pulling out of New Milford" and to "let the Union fight" for them. And
on September 3, the day before the layoff of the 25 employees at New Milford
resulting from the transfer of the depressing and gauging department to Oakville,
Comden told 1 of the 25 laid-off employees that the girls were "very foolish" to "get
the union in," that they "put a lot of old women out of work," and that Burtt "can
turn the key in the lock any time rather than let the Union in."
Moreover, the Union, with which Respondent allegedly was engaged in the process
of negotiating a contract, was given no notice or inkling of Respondent's intentions
to open the Oakville operation, to transfer work from the Danielson plant and a
19 Attorney Millar stated that Burtt would not he called to testify because he was not
a well man and was under a doctor's care. However, no medical testimony or certificate
was offered to support any contentions that his Illness prevented him from testifying.
Millar himself admitted that despite Burtt's heart and lung conditions, he was able to
perform his normal duties, so far as Millar knew Ross also testified that he visits Burtt
at the Norwalk office almost every night, and at his house on weekends, to discuss plant
operations. Under all the circumstances, I find that Respondent has shown no valid'
justification for the failure to call Burtt as a witness.
21 Interstate Circuit, Inc . v. U S., supra.
WINCHESTER ELECTRONICS, INC., ETC. 1321
department from the New Milford plant, and to lay off a total of 84 employees in
the appropriate units at the Danielson and New Milford plants. Indeed, 10 employees
were laid off at the New Milford plant on August 14 while discussion concerning
their tenure was pending with the Union, and with respect to whom Ross had pre-
viously promised not to take any action without first notifying the Union . There-
after Respondent refused to discuss their layoffs with the Union because unfair labor
practice charges had been filed with the Board. Nor, significantly , were any of
the laid-off employees from the Danielson and New Milford plants offered any
employment at Oakville , which was only 28 miles from New Milford and where
the same work was being performed ; instead, Respondent hired new employees for
the Oakville operation and by the time of the hearing had increased its employee
complement there to more than twice that at Danielson and New Milford.
Upon consideration of the foregoing , and upon the entire record as a whole, I am
convinced and find that the removal of the Danielson work and the New Milford
department to the Oakville plant, which resulted in the layoffs at the Danielson and
New Milford plants, was primarily motivated by Respondent 's opposition to the
Union and to the selection of the Union as the bargaining representative of the
Danielson and New Milford employees. As the motivating cause of the layoffs was
thus unlawfully discriminative , thereby discouraging membership in the Umon,
Respondent Winchester violated Section 8(a)(3) and ( 1) of the Act by making
these layoffs 2i
Respondent urges as a defense its conduct in sending out the recall notices to the
laid-off employees . These recall notices, sent out by Brochu to about 35 laid-off
employees at the Danielson plant and by Comben to about 27 laid-off employees
at the New Milford plant, stated that the laid-off employees were being recalled and
were requested to report to the office . Yet, Brochu testified that she could only
have hired five at that time , and in fact hired only one. Indeed , she admitted that
even if all 35 employees were willing to return to work, she could not have hired
all of them even up to the date of the hearing . Moreover , all those who responded
to her letters admittedly were offered exclusively "SMRE" work , which was the most
objectionable type of work and which had previously comprised only 10 percent of
the work and had been shared by all the employees . Yet, when Hilda Shirer, a
laid-off employee who received a recall letter, agreed to accept "SMRE" work,22
Brochu did not hire her , despite the fact that she admittedly had need for four
more employees , because Shirer had joined the strikers . Comben also admitted that
she got all the employees she needed at that time despite the fact that many of them
did not respond to her recall letters. Finally , both Brochu and Comben admitted
that a number of employees applied for work at the same time and were not hired
because they were strikers . I find that Respondent's above-described conduct does
not constitute a valid defense to the discriminatory layoffs nor rebut any finding that
such layoffs were discriminatory.
G. Respondent Winchester's discrimination with respect to reinstatement of strikers
1. The cause of the September 9 strike
As previously found, after Rogers received Connor's letter of August 12, repudiat-
ing certain provisions of the agreement tendered by Connor at the August 5 meeting
as the completed agreement previously arrived at by the parties , Rogers telephoned
Connor, accused the Respondent of not bargaining in good faith , and announced
that there would be another strike unless the Respondent signed the contract to
which they had previously agreed. Both prior thereto, and also thereafter, Respond-
ent, without prior notice to or consultation with the Union, unilaterally established
its Oakville operation , and transferred to it some of the Danielson work and the
New Milford depressing and gauging department , which resulted in the layoff of a
large number of employees at the Danielson and New Milford plants. On or shortly
after August 14 Rogers learned that the 10 employees unilaterally laid off that day
at the New Milford plant included those whose tenure was previously discussed as
a grievance at the August 5 meeting and with respect to whom Plant Manager Ross
had promised not to take any action without first notifying the Union. In his letter
to Rogers , dated August 28, Respondent's Attorney Millar refused to bargain about
the grievance regarding the 10 employees unilaterally laid off at the New Milford
ffi Cf, e g ., Missouri Transit Company , etc, 116 NLRB 587, 590, enfd . 250 F. 2d 261
( CA. 18) ; Barbers Iron Foundry, 126 NLRB 30.
22Based on the credible testimony of Shirer . I do not credit Brochu's testimony to
the extent that it may contradict that of Shirer
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on August 14, because unfair labor practice charges had been filed with the
Board And on or shortly after September 4 Rogers learned that 25 more employees
had been unilaterally laid off at the New Milford plant with the unilateral transfer
of the depressing and gauging department to the Oakville plant. On September 9
the employees at Respondent's Danielson and New Milford plants went on strike.
I have previously found that Respondent's conduct in each of the following
respects constituted unfair labor practices violative of the Act-
(a) Its repudiation of, and failure to sign, the agreement tendered by Connor at
the August 5 meeting as the completed agreement previously arrived at by the parties.
(b) Its unilateral action in opening the Oakville operation, transferring to it some
of the work at the Danielson plant and the depressing and gauging department at
the New Milford plant, and the resultant layoffs of 84 employees in the units
represented by the Union at the Danielson and New Milford plants, all without first
affording the Union an opportunity to bargain with respect to these matters in an
effort to prevent or mitigate the adverse economic effects upon the employees
involved
(c) Its conduct in the above respects, including the layoffs of the 84 employees,
was discriminatively motivated and hence unlawful.
(d) Its refusal on August 28 to bargain about the grievance regarding the layoff
of the 10 employees at the New Milford plant because unfair labor practice charges
had been filed with the Board.
Upon consideration of all the foregoing, and upon the entire record as a whole,
I am convinced and find that the strike of September 9 was caused and prolonged, at
least in substantial part, by one or more, if not all, of the foregoing unfair labor
practices. Accordingly, I find that the strike was an unfair labor practice strike 23
2 The refusal to reinstate the strikers upon their unconditional request
By letter dated November 16, 1959, Rogers notified Respondent that "all em-
ployees represented by this union are unconditionally available for work, and
request immediate reinstatement." Millar replied, by letter dated November 24,
that the strikers would be reemployed "when and if their jobs are available." A
number of strikers who had individually applied for reinstatement on prior occasions
were admittedly refused reinstatement at both the Danielson and New Milford plants
because they were strikers. As of the time of the hearing herein, the strikers had
not been reinstated
I find no merit in Respondent's contention that there can be no valid application
for reinstatement unless the strikers make individual application. The Board has
held that a union's request for reinstatement of the strikers is an effective request
for reinstatement on behalf of all the strikers, thereby dispensing with any require-
ment that the strikers thereafter make any individual applications for reinstatement 24
Moreover, as previously found, when strikers did apply individually for reinstate-
ment at both the Danielson and New Milford plants, at the time when the recall
letters were sent out, they were admittedly refused reinstatement, although openings
were then available, because they were strikers.
As the strikers were unfair labor practice strikers, Respondent was obligated to
reinstate them upon their unconditional request, discharging, if necessary, any
replacements in order to provide work for the strikers; Respondent Winchester's
failure to reinstate the strikers constitutes discrimination against them in violation
of Section 8 (a) (3) and (1) of the Act.25
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with their business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
23 See, e g, Spitzer Motor Sales, Inc, 102 NLRB 437, 452, Talladega Foundry &
Machine Company, 122 NLRB 125. 135 • The Jackson Press, Inc, 96 NLRB 897, 903;
Happ Brothers Company, Inc, 90 NLRB 1,513, 1.515: N L R R v Remington Rand, Iiae,
94 F 2d 862, 872 (CA 2), cert denied 304 US 576, 589
24 See, e g, California Cotton Cooperative Association, Ltd, 110 NLRB 1494, 1501
The TV T Rawlexgh Company, 90 NLRB 1924, 1926; The Jackson Press, Inc, supra
25 See, e g, Lewin-Mathes Company, et at, 126 NLRB 936
WINCHESTER ELECTRONICS, INC., ETC.
V. THE REMEDY
1323
Having found that Respondents Winchester and Pyne engaged in certain unfair
labor practices, I will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
I have found that one respect in which Respondent Winchester violated Section
8(a)(5) and (1) of the Act was its conduct in repudiating and refusing to sign the
agreement which became final and binding on both parties on July 17, 1959, and
mimeographed copies of which were presented to Rogers by Connor as the com-
pleted contract at the meeting on August 5, 1959 (General Counsel's Exhibit No. 6).
The record convinces me, and I find that this agreement was negotiated to cover
not only the Danielson plant of Respondent Winchester but also the New Milford
plant of Respondent Winchester and the New Milford plant of Respondent Pyne.
This is apparent from the following undisputed facts, among others. Ross, plant
manager of both New Milford plants, was in the group consulted by Connor on the
wage issue at the latter's office on the night of July 16 after the meeting with Rogers,
and Ross' name also appeared on the cablegram sent to Burtt that night. The wage
and insurance benefits agreed upon were put into effect at all three plants on July 20
when the strikers returned to work, and the notice containing the union-security
provisions of the agreement was posted at all three plants about the same time.
Furthermore, Connor stated in his letter of July 20, enclosing a draft of the agree-
ment covering the Danielson plant, that "similar contracts will be prepared for the
Winchester, New Milford operation and Pyne-Molding Corporation." In addition,
the mimeographed draft presented to Rogers by Connor on August 5 as the com-
pleted contract contained blanks on the first page, indicating that it was intended
to cover more than one unit. And at the same meeting Connor, Ross, and Rogers
discussed the administration of various provisions of the agreement and their
application to the New Milford plant employees. Finally, if the negotiations were
not intended to encompass the New Milford plants, then Respondents' conduct in
putting the insurance benefits and wage increases into effect at these plants, without
prior negotiation with the Union, which was the statutory bargaining represenative
for these plants, would itself, under well-established principles, constitute uni-
lateral action violative of Section 8(a)(5) and (1) of the Act. I will therefore
recommend that, if requested to do so by the Union, Respondent Winchester forth-
with sign the agreement presented to the Union by Connor on August 5, 1959, to
cover the appropriate units at the Danielson and New Milford plants 26 and to be
effective for 1 year after date of execution thereof with the renewal clause con-
tained therein, and deliver at least three signed copies thereof for each plant to the
Union; and I will further recommend that if no such request is made by the Union,
then, upon request, Respondent Winchester be ordered to bargain collectively with
the Union as the exclusive representative of the employees in the appropriate units
at the Danielson and New Milford plants. and, if an understanding is reached,
embody such understanding in a signed agreement 27
I have also found that Respondent Winchester was discriminatorily motivated in
violation of Section 8(a)(3) and (1) of the Act in laying off its employees in July
and August 1959, at the Danielson plant and in August and September 1959, at the
New Milford plant, in transferring work from the Danielson plant to its Oakville
plant, and in transferring the depressing and gauging department from its New
Milford plant to its Oakville plant. I have further found that Respondent violated
Section 8(a) (3) and (1) of the Act by refusing to reinstate the unfair labor practice
strikers, upon their unconditional request, at the Danielson and New Milford plants
I will accordingly recommend that Respondent Winchester be ordered to transfer
back to the Danielson plant the work which had been transferred from there to the
Oakville plant, to transfer back to the New Milford plant the depressing and
gauging department which had been transferred from there to the Oakville plant,28
20 However, my recommendation will not include the New Milford plant of Respondent
Pyne because the complaint does not allege any 8(a)(5) violations with respect to that
Respondent
27 See, e.g, H J Heinz Company v N L.R B , supra, New England Die Casting Com-
pany, supra; see also Sheet Metal Workers Union, Local No. 65, AFL-CIO (Inland
Steel Products Company), supra; and N.L R.B. v. R D. Nesen, 211 F 2d 559 (C.A. 9),
cert denied 348 U S. 820
28 See, e g , Houston Chronicle Publishing Company, 101 NLRB 1208, 1217-1218;
The It. C Mahon Company, 118 NLRB 1537-1544; Dearborn Oil and Gas Corporation,
et at, 125 NLRB 645; and Smith's Van & Transport Company, Inc, et at, 126
NLRB 1059.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to offer to all the strikers and laid-off employees at the Winchester and New Milford
plants, who have not been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, discharging, if necessary, any replacements in order to
provide work for the strikers. I will further ecommend that Respondent Winchester
be ordered to make whole all laid-off employees and strikers, including those who
may have subsequently been reinstated, for any loss of earnings they may have
suffered by reason of the discrimination against them, by payment to each of a
sum of money equal to that which each normally would have earned as wages
from the date of the layoff, and from the date of the strikers' unconditional request
for reinstatement, to the date of their reinstatement or Respondent Winchester's offer
of reinstatement, as the case may be, less the net earnings of each, to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294.
In view of the nature and extent of the unfair labor practices hereinfound, and
the fact that Respondent Pyne has been found to have violated the Act in the past,29
I am convinced that the commission of similar and other unfair labor practices by
Respondents reasonably may be anticipated. I will therefore recommend that Re-
spondent be ordered to cease and desist from in in any other manner infringing upon
the rights guaranteed to employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees of Respondent Winchester Elec-
tronics, Incorporated, employed at its Danielson, Connecticut, plant, exclusive of
office clerical employees, nurses, guards, professional employees, and all super-
visors as defined in Section 2(11) of the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9(b) of the Act.
2. All production and maintenance employees of Respondent Winchester em-
ployed at its New Milford, Connecticut, plant, exclusive of office clerical employees,
guards, professional employees, and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
3. At all times since April 1 and May 21, 1959, International Brotherhood of
Electrical Workers, AFL-CIO, had been, and now is, the exclusive representative
of all the employees in the aforestated appropriate units, respectively, for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By repudiating and refusing to sign the agreement which Connor, attorney
for Respondent Winchester, presented to Union Representative Rogers on August
5, 1959 (General Counsel's Exhibit No. 6); by making layoffs of employees at the
Danielson and New Milford plants in July, August, and September, 1959, opening
a new plant at Oakville, Connecticut, during August 1959, and transferring to the
Oakville plant work performed at the Danielson plant and the depressing and
gauging department of the New Milford plant, all without prior notice to or con-
sultation with the Union; and by refusing to bargain with respect to a grievance
raised by the Union in connection with some of its laid-off employees from the New
Milford plant because the Union had filed unfair labor practice charges with the
Board, Respondent Winchester has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the em-
ployees laid off at the Danielson and New Milford plants in July, August, and Sep-
tember, 1959, by opening the Oakville plant during August 1959, and transferring
to it the work performed at the Danielson plant and the depressing and gauging de-
partment of the New Milford plant, all because of its opposition to the above-named
Union, thereby discouraging membership in said labor organization, Respondent
Winchester has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act
6 The strike, which commenced on September 9, 1959, was caused and prolonged
by Respondent Winchester's unfair labor practices and hence was an unfair labor
practice strike.
7 By refusing immediate reinstatement to the unfair labor practice strikers, upon
their unconditional request, Respondent Winchester has discriminated in regard
to their hire and tenure of employment, thereby discouraging membership in the
'Pyne Moulding Corporation , 110 NLRB 1700, enfd 226 P 2d 818 (C.A 2).
BARNEY'S SUPERCENTER, INC. 1325
aforestated labor organization , and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
8. By engaging in the conduct detailed in section III, D , supra, Respondent Win-
chester and Respondent Pyne have each interfered with, restrained , and coerced their
employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
have each engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a)( 1 ) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Barney's Supercenter, Inc. and Retail Clerks International
Association , Retail Clerks Employees Local Union 1407, AFL-
CIO. Case No. 6-CA-1483. August 26, 1960
DECISION AND ORDER
On September 15, 1959, Trial Examiner Reeves R. Hilton issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in and was not engaging in the
unfair labor practices alleged in the complaint and recommending
that said complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report, together with a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
proceeding, and finds merit in certain of the exceptions of the General
Counsel. Accordingly, the Board adopts the findings, conclusions,
and recommendations of the Trial Examiner, only to the extent con-
sistent herewith.
The Respondent is a retail dealer of paint, tile, and plumbing
fixtures. On May 22, 1958, when the Union began its organizational
efforts, there were 16 full-time employees (including Ruark and
Pollack whom the Trial Examiner found not to be supervisors) and
10 regular part-time employees. By May 26 the Union had in its
possession only 10 authorization cards, but nevertheless requested
recognition of the Employer. The same day, it filed a petition for
representation with the Pennsylvania Labor Relations Board. Be-
tween May 26 and June 6 the Union acquired 6 additional cards,
making a total of 16. As of that date 3 new employees had been hired,
making a total of 29 employees, and giving the Union a majority as of
that time. No union official attempted to contact the Respondent after
their first meeting on May 26, and it was not until June 6 that the
128 NLRB No. 120.