Universal Camera Corp.

In the Matter Of UNIVERSAL CAMERA CORPORATION and HIRE CHAIRMAN Case No. 2-C-5760.-Decided August 31, 1943 DECISION AND ORDER On February 18, 1947, Trial Examiner Sidney L. Feiler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the complainant and counsel for the'Board filed exceptions and supporting briefs. The Respondent submitted a brief in support of the Trial Examiner's Intermediate Report. On March 4, 1947, the Board granted the request of the complainant and the Respondent for oral argument before the Board. On May 12, 1948, the Board reconsidered its action and rescinded its leave for oral argument, with leave to the parties to submit, within 20 days from the date of notification, a supplemental brief or written argument in lieu of oral argument originally requested. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* 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 briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings of fact with certain exceptions noted below, but reverses his conclusions and recommendations. The Trial Examiner found that the evidence failed to sustain the allegation of the complaint that Chairman was discharged in violation of Section 8 (4) of the Act.' We disagree. In our opinion, a pre- ' Chairman Herzog and Members Reynolds and Murdock. I The provisions of Section 8 (4) of the National Labor Relations Act, which the com- plaint alleged was violated, are continued in Section 8 (a) (4) of the Act as amended by the Labor Management Relations Act, 1947. 79 N. L. R. B., No. 55. 379 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ponderance of the evidence shows that Chairman's discharge was due to the Respondent's resentment against Chairman because he had testi- fied for the Union at a representation hearing on November 30, 1943. We believe that the Trial Examiner, in finding otherwise, failed to appreciate the strength of the prima facie case against the Respondent established by the evidence, and erroneously credited certain im- plausible testimony adduced by the Respondent in explanation of the circumstances leading up to Chairman's discharge 2 As fully detailed in the Intermediate Report, the record shows con- clusively that Chairman incurred the hostility of the Respondent, and especially of Chief Engineer Kende, who ultimately discharged him, by testifying favorably to the'Union's position, and unfavorably to the Respondent's at the Board hearing in a representation, case on November 30, 1943. Politzer, Chairman's immediate superior, warned Chairman in advance not to testify for the Union; a and a few hours after Chairman's appearance as a witness, Kende angrily upbraided him for testifying. On the following day, Kende, in conference with Politzer and Personnel Manager Weintraub, launched an investiga- tion of Chairman's record for the purpose of finding an excuse to discharge him. Both Kende's own testimony and Politzer's con- temporaneous statements to Chairman and Goldson show beyond any reasonable doubt that this search for a pretext was motivated by Kende's indignation over Chairman's testimony. The net result of this conference on December 1 was that neither of the causes for dis- charging Chairman then suggested by Kende proved feasible. Politzer assured Kende that Chairman was efficient and a few days later also reported, after making inquiry as he was instructed to do, that Chair- man was not a Communist. Nothing, therefore, was done about Chair- man at that time.4 ' It appears that the Trial Examiner in weighing the evidence in this case was guided by a standard more rigorous than was laid down in the Act for the guidance of the Board in performance of its fact -finding function . The Board is only enjoined to predicate its findings on a preponderance of the evidence , not a conclusive quantum , and it may , of course, draw reasonable inference as to such matters as motive which cannot in the nature of things be proved other than circumstantially (N L. R B. v Bird Machine Co, 161 F (2d) 589 (C. C A 1) ; N L R. B v. Abbott Worsted Mills, Inc , 127 F ( 2d) 438 (C. C A 1) N. L R. B. v. American Laundry Machinery Co, 138 F. (2d) 889 (C C. A. 2) ) 8 Politzer was in charge of the maintenance employees whose unit grouping was the issue in dispute in the representation proceeding Together with Chief Engineer Kende, he testified for the Respondent at the same hearing at which Chairman testified . Politzer knew that Chairman sympathized with the employees ' efforts to secure separate bargaining representation , and he told Assistant Engineer Goldson that "the Company knew" that Chairman was "with the men " Politzer was obviously in a position to know the Respond- ent's attitude and probable intentions regarding Chairman 's appearance as a witness for the Union, and we find that his warnings are evidentiary of the Respondent 's animus against Chairman . It is entirely immaterial that, as the Trial Examiner observed , Politzer's motives in warning Chairman were "friendly." 4 In finding that the conference of December 1 did not result in "any plan for Chairman's discharge," the Trial Examiner discounts the significance of that conference and Kende's UNIVERSAL CAMERA CORPORATION 381 In the face of this clear evidence of the Respondent's animus against Chairman and its desire and intention to discharge him because of his testimony at the Board hearing if a pretext could be found, it was incumbent upon the Respondent to go forward to show convincingly that when Chairman was actually discharged-by Kende himself-S weeks later, ostensibly because of an episode that was then stale, the real reason was something other than Chairman's appearance as a wit- ness.5 Contrary to the Trial Examiner, we find the Respondent's explanation of the discharge implausible. Kende ordered Chairman's discharge on January 24, 1944, ostensi- bly because of a complaint lodged against Chairman by Personnel Manager Weintraub, to the effect that Chairman had been guilty of "gross insubordination" in an encounter with Weintraub in the plant on the night of December 30, more than 3 weeks before. Politzer, who was Chairman's immediate superior, and was himself responsible directly to Kende, opposed Weintraub's demand for the discharge. Kende nevertheless ruled peremptorily in Weintraub's favor, with- out questioning Chairman himself or otherwise independently in- vestigating the December 30 incident. That episode itself was a heated argument between Weintraub and Chairman, precipitated by Weintraub's order that Chairman send home an employee whom Chairman had stationed on stand-by duty. The record shows that Weintraub's authority to give Chairman such an order was at least questionable. Moreover, whether or not Weintraub had this author- ity, the dispute ended with the two men shaking hands and agreeing to "forget" their differences. It was, at most, only a squabble between two supervisors, one of whom, Chairman, reasonably questioned the other's authority in the circumstances; it was not an instance of "gross insubordination" on Chairman's part. , During the next 31/2 weeks, the Respondent neither reprimanded Chairman for his supposed impertinence to Weintraub, nor took any disciplinary action against him. Indeed, Politzer, when Chairman reported the affair to him on December 31, assured Chairman that it was Weintraub, rather than Chairman, who had been "out of order." The only testimony offered by the Respondent in explanation of the long delay between Chairman's alleged misconduct and his punish- ment, is that of Weintraub and Politzer to the effect that Politzer as- sured Weintraub, within a day or two after December 30, that Chair- man intended to resign in about 10 days. The Respondent asserts that Weintraub thereupon lodged no complaint against Chairman until January 24 because he had in the meantime been expecting Chairman motivation as revealed by it. We do not adopt the Trial Examiner's appraisal of this incident 5 Cf. Montgomery Ward & Co v N L R B, 107 F. (2d) 555, 560 (C C. A. 7). 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to leave, and only noticed, on or about January 24, that Chairman was still at work. The Trial Examiner believed this testimony, although he flatly discredited Politzer's statement, contradicted by Chairman, that Chairman had in fact agreed to resign, and although he also found both Weintraub and Politzer to be unreliable witnesses in many respects. We cannot accept the Trial Examiner's finding that Polit- zer, in effect, invented the story that Chairman intended to resign in order to appease Weintraub and gain time for Chairman, for this finding is irreconcilable with the other related facts, and all the other evidence bearing on Politzer's behavior and attitudes at that time .6 We find, then, that the record contains no credible explanation of Weintraub's failure to call for disciplinary action against Chairman, on account of their quarrel on December 30, until about a month after the event. We think that on this record, Weintraub's revival of the December 30 episode as a basis for demanding Chairman's discharge, and Kende's summary ruling on that demand, despite Politzer's oppo- sition, are reasonably explained only by the other facts to which we previously adverted : The Respondent's extreme animus against Chairman because of his testimony at the Board hearing despite its prior warning, and its promptly conceived plan-which was initially frustrated, but not shown to have been abandoned-to find a pretext ,for discharging him.7 We find, on the entire record, that Chairman was discharged for testifying at the Board hearing, in violation of 6 There is also no plausible support for the Trial Examiner's conclusion that Weintraub "chose to make an issue" of the December 30 episode , which he had promised to "forget," "when he learned that Politzer was investigating his [Weintraub's] conduct." This finding, based on the testimony of Politzer , whom the Trial Examiner generally dis- credited , is in direct conflict with Weintraub 's own testimony concerning his alleged conversations with Politzer at that time ; and it is inconsistent with the testimony of Zicarelli, who was elsewhere specifically credited by the Trial Examiner where his testi- mony was in conflict with Weintraub 's, Zicarelli, who had mediated between Weintraub and Chairman during the December 30 encounter , testified that when he spoke to Wein- traub the next day, Weintraub assured him that the incident was "forgotten ." Wein- traub admitted the conversation , although he denied that this was what he said to Zicarelli. 7 The Trial Examiner found that there was insufficient "proof" to establish "an arrange- ment between Kende and Weintraub to penalize Chairman for testifying " ; also that Wein- traub's conduct on December 30, in his quarrel with Chairman, "was not actuated by reason of Chairman's pro-union testimony at the representation hearing ." We agree that, for all that appears , Weintraub's animosity toward Chairman , exhibited during, their apparently fortuitous encounter on December 30, was not specifically attributable to Chairman's testimony at the Board hearing. It is also true that there is no direct evi- dence of an explicit understanding between Kende and Weintraub , subsequent to the conference on December 1, that Weintraub would either create the December 30 inci- dent itself, or exploit that particular incident as the basis for Chairman 's discharge. However, the absence of direct and detailed evidence of such a conspiracy, as the Trial Examiner suggests and finds unproved , does not militate against our conviction that it was actually because of Chairman's testimony at the Board hearing , and only ostensibly because of the resurrected December 30 episode , that Weintraub and Kende brought about Chairman's discharge. On the evidence before us , we have no substantial doubt that discrimination occurred ; neither in this nor in any similar case is it necessary that we have positive proof blueprinting the method whereby that discrimination was planned and accomplished. UNIVERSAL CAMERA CORPORATION 383 Section 8 (4) of the Act. We therefore reverse Conclusion of Law No. 3 set forth in the Intermediate Report. The effect of the unfair labor practices upon commerce The activities of the Respondent set forth above, occurring in con- nection with the operations of the Respondent described in the Inter- mediate Report, 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. The Remedy The Respondent contends that Chairman's position was abolished upon Chairman's discharge, and that for this reason no reinstatement can be ordered, even if the Board finds that the Respondent dis- charged Chairman in violation of the Act. The record, however, does not support the Respondent's contention. Chairman's position was neither abolished nor substantially modified after his discharge. Chairman was replaced by maintenance mechanic Sebia, who was up- graded and made foreman in charge of Chairman's shift. In his new position Sebia directed and supervised the work of his crew. He worked with his hands part of the time, and did not work on engineer- ing plans. At the time of Chairman's discharge, the Respondent em- ployed three assistant engineers, each of whom was in charge of a shift of maintenance mechanics. After Chairman's discharge, only Chair- man's job was modified in name only while the duties of the other two assistant engineers remained substantially the same.,, As it has been found that the Respondent discriminated against Chairman for having given testimony under the Act and thereby violated Section 8 (4) of the Act, we shall direct that the Respondent offer him immediate and full reinstatement to his former or a sub- stantially equivalent position without prejudice to his seniority or other rights or privileges. We shall also order that the Respondent make Chairman whole for any loss of pay he may have suffered by reason of his discriminatory discharge by payment to him of a sum equal to the amount he would normally have earned as wages during the periods : from January 25, 1944, to the date of the Intermediate Report herein, and from the date of the Decision and Order herein s Assistant Engineer Goldson testified that he is presently in charge of the crew of maintenance mechanics on the 7 30 a. in to 4: 30 p m. shift and that he has a job equivalent to that of Chairman. Chief Engineer Kende testified that the scope of duties of the two maintenance engineers remained the same as Chairman's, after the latter's discharge. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the date of the Respondent's offer of reinstatement, less his net earn- ings during the same periods .9 Because of the Respondent's unlawful conduct we are persuaded that, unless enjoined, danger of the commission by the Respondent in the future of like and related unfair labor practices is to be antici- pated from the Respondent's conduct in the past. In order to effec- tuate the policies of the Act, we shall order the Respondent to cease and desist from discharging, or otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the rights of employees to file and prosecute charges and to give testimony snider the Act. The Respondent contends that as a matter of law because super- visors are excluded from the coverage of the Act, as amended by the Labor Management Relations Act, 1947, it would not effectuate the policies of the Act to order the reinstatement of Chairman, who at the time of his discharge occupied a supervisory position, and that the Board, in any event, is powerless to remedy unfair labor practices engaged in by the Respondent prior to the amendment of the Act on August 22, 1947, which ceased to be such after the amendments. For the reasons set forth in our opinion in Matter of Republic Steel Cor- poration (Upson Division) 10 we find no merit in the Respondent's contention. The Respondent also contends that the Board may not issue an- order directing reinstatement and back pay for Chairman in view of the provision of Section 10 (c) of the Act, as amended, which pre- cludes the Board from directing reinstatement, or back pay, for any employee who has been suspended for cause. We find no merit in the contention. Assuming that the provision has retroactive application to events that occurred prior to the effective date of the amendments to the Act, it is not applicable to the instant case, for Chairman's discharge, as we have found, was not "for cause," but for his having given testimony under the Act.` CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local #3, affiliated with American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 0 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the Respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work -relief projects shall be considered as earn- ings. See Republic Steel Corporation v N. L. R. B., 311 U. S. 7. 10 77 N. L R. B 1107; see also Matter of Briggs Manufacturing Company, 75 N. L. R B. 569. Cf. Matter of Westinghouse Electric Corporation, 77 N L R B 1058. UNIVERSAL CAMERA CORPORATION 385 2. By discharging Imre Chairman and failing to reinstate him because he had testified for International Brotherhood of Electrical Workers, Local #3, affiliated with the American Federation of Labor, at a representation hearing on November 30, 1943, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (4) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 8 (4) of the Act.'? ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of . the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Universal Camera Corporation, New York City, and its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from discharging or otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the right of employees to file and prosecute charges and to give testimony under the Act. ^. Take the following ;.ffirmative action which the Board finds will effectuate the policies of the Act : '(a) Offer In-ire Chairman immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make Imre Chairman whole for any loss of pay he has suffered because of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the following periods : from January 25, 1944, to the date of the Intermediate Report herein, and from the date of the Decision and Order herein to the date of the Respondent's offer of reinstatement,'less his net earnings during the same periods; (c) Post at its plant in New York City, copies of the notice attached hereto, marked "Appendix A`' Copies of said notice, to be fur- nished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, I The provisions of Section 8 (4) of the National Labor Relations Act, which the Board found were violated, are continued in Section 8 (a) (4) of the Act, as amended by the Labor Management Relations Act, 1947 "' In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ; (d) Notify the Regional Director of the Second Region in writing within ten (10) days from the date of this Order what steps the Re- spondent has taken to comply herewith. MEMBER REYNOLDS, dissenting : I disagree with the conclusion of my colleagues that Imre Chairman was discriminatorily discharged by the respondent in violation of Section 8 (4) of the Act. I am of the opinion, shared in by the Trial Examiner, that the evidence does not sustain a finding that the violent altercation which took place on December 30, 1943, between Chairman and Weintraub, respondent's personnel director, was actuated by reason of Chairman's testimony at the prior representation hearing, or that Chief Engineer Kende's motive in sustaining Weintraub's demand that Chairman be dismissed was based upon anything other than his evaluation of Weintraub's request. Accordingly, I would adopt the recommendation of the Trial Ex aminer that the complaint be dismissed in its entirety. 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, we hereby notify our employees that : WE WILL NOT DISCHARGE or otherwise discriminate against any employee because he has filed charges or given testimony under the Act. WE WILL NOT in any other manner interfere with the right of our employees to file or prosecute charges and to give testimony under the National Labor Relations Act. WE WILL OFFER to Imre Chairman immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay suffered as a result of the discrimination. ------------------------------ 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. 0 UNIVERSAL CAMERA CORPORATION 387 INTERMEDIATE REPORT Mr. Jerome I. Macht, for the Board. Kaye, Scholer, Fierman & Hays, Esqs., New York, N. Y., by Mr. Beryl H. Levy, for the respondent. Mr. Imre Chairman, the charging party, in person. Mr. John K. Lapham, New York, N. Y., for Local No. 3, International Brother- hood of Electrical Workers, A. F. L. STATEMENT OF THE CASE Upon a charge duly filed by Imre Chairman, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York, New York), issued its complaint, dated October 2, 1946, against Universal Camera Corporation, New York, New York, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent, Imre Chairman, and Local No. 3, International Brotherhood of Electrical Workers, A. F. L., herein called the Union. With respect to unfair labor practices, the complaint alleges in substance that the respondent discharged lire Chairman on or about January 25, 1944, and failed and refused to reinstate him because he gave testimony under the Act. In its answer, dated October 22, 1946, the respondent admits the jurisdictional allegations set forth in the complaint and the discharge of Chairman, but denies the commission of any unfair labor practices. The answer also alleges the affirmative defenses that (1) Chairman resigned, but reconsidered and that on discovering this fact the personnel manager ordered his discharge; (2) that the delay in issuing the complaint constitutes laches. Pursuant to notice a hearing was held at New York, New York, from October 28 through November 8, 1946, before the undersigned, Sidney L Feiler, the Trial Examiner designated by the Chief Trial Examiner. The Board and the respond- ent were represented by counsel. The dischargee appeared in person The Union appeared by a representative on the opening day of the hearing, but was not represented thereafter. Full opportunity to be heard, to examine and cross- examine witnesses , and to introduce evidence bearing on the issues was afforded all parties. During the hearing, counsel for the Board moved to amend the complaint by alleging an additional reason for the discharge ; namely, that Chairman was discharged for assisting the Union and engaging in other con- certed activities protected by the Act, said action being in violation of Section 8 (3) of the Act. The motion was denied. Counsel for the respondent moved to amend its answer as to the defense of lathes to allege that the delay in issuing the complaint and the delay of Chairman in filing a charge constituted laches. The respondent also included in its motion to amend a new defense that Chairman's position had been abolished. The motion was granted. At the conclusion of the Board's case-in-chief, counsel for the respondent moved to dismiss the complaint. This motion was denied. After all the testimony had been presented, counsel for the Board moved to conform the pleadings to the proof as to formal matters. This motion was granted without objection. Counsel for the respondent then renewed the motion to dismiss the complaint and 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument thereon was presented . Decision was reserved and said motion is disposed of by the findings, conclusions , and recommendations herein. Oppor- tunity was then afforded the parties to file briefs and/or proposed findings of fact and conclusions of law. The respondent submitted a brief containing pro- posed findings and conclusions , which are disposed of hereinafter Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation having its principal office and place of business in New York City, New York. where it has been and is engaged in the manufacture, sale and distribution of optical lenses, binoculars and related products. During the year preceding the issuance of the complaint, the re- spondent purchased materials valued in excess of $1,000,000, of which approxi- mately 50 percent was transported to its plant in New York from points outside the State of New York. During the same period, the respondent manufactured at its plant in New York products valued in excess of $1,000,000, of which ap- proximately 50 percent was sold and transported to points outside the State of New York. The respondent did not contest the jurisdiction of the Board and the under- signed finds that the respondent at all relevant times was and is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Local No. 3, International Brotherhood of Electrical Workers, affiliated with American Federation of Labor, is a labor organization admitting to member- ship employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The defense of lathes The respondent in its amended answer raised the defense of laches and relied on the alleged delays in Chairman's filing of a charge 'and the issuance of the complaint in this proceeding. Chairman was discharged on January 25, 1944 On January 28, 1944, the Union filed a charge on his behalf alleging that he had been discharged in viola- tion of Section S (1) and (4) of the Act. On January 25, 1945, the Union ad- dressed a letter to counsel for the respondent notifying them that it had with- drawn the charge, as of that date On February 3, 1945. Chairman filed a charge in his own behalf On February 7, 1945, a Board Field Examiner addressed a letter to the respondent notifying it of the Union's wlthdiawal of the charge, the filing of a charge by Chairman, quoting material from it, and concluding with the statement that the examiner had recommended issuance of a complaint. The respondent also received a letter from the Regional Director, dated February 10, 1945, advising it that with his approval the Union's charge had been withdrawn, without prejudice The complaint was subsequently issued on October 2, 1946. The record of the filing of two charges afoie-mentioned and the correspondence thereon shows that there was no delay in the presentation to the Board of the claim that Chairman was discriminatorily discharged Later, when the Union UNIVERSAL CAMERA CORPORATION 389 withdrew its charge, Chairman filed a charge on his own behalf within a week and the respondent was advised of the charge, the substance thereof, and of the intended recommendation that a complaint issue. It was not necessary that Chairman file the original charge and the undersigned finds that there was no laches in the presentation of Chairman's claim to the Board. Furthermore, the defense is not valid as to the lapse of time between the filing of the charges and the issuance of the complaint' B. The d ischai ge of Imi e Chairman 1. Organizational activity among the maintenance mechanics: the representation proceeding The general production employees at the respondent's plant had been repre- sented by a union from March 1942. A group of maintenance mechanics sought membership in that union, but their applications were refused. In the fall of 1943, some of these employees joined the Union herein which filed a petition for an election and certification of representatives. A hearing on the petition was conducted commencing November 26. 1943. The Board, in its decision, directed that an election be conducted among the maintenance employees 2 The Union was successful and thereafter entered into a contract with the respondent. Subse- quent relations between the Union and the respondent have been satisfactory Imre Chairman took part in the representation proceedings and the events pre- ceding it. He was employed by the respondent on August 22, 1943, in a super- visory capacity as an assistant or maintenance engineer and was placed in charge, of the maintenance mechanics on the shift from 4 p in to midnight. At the time Chairman was hired the maintenance workers were actively discussing prob- lems of self-organization Chairman was invited to and did appear at several meetings of these employees and gave advice and assistance. He also appeared at their request at the November 26 and November 30 sessions of the representa- tion hearing. While the proceeding was non-adversary in nature the parties. advanced opposing contentions and extensive testimony was adduced. These- contentions were summarized by the Board in its decision, as follows: The I. B. E W. [the Union herein] contends that all maintenance mechanics, maintenance mechanics' helpers, and carpenters, constitute an appropriate unit The Company and Local 208 contend (1) that the employees in the, I. B. E. W unit are covered by the existing contract, and (2) that such employees do not constitute an appropriate unit because (a) they properly belong in an industrial unit, and (b) the I. B. E. W. unit encompasses two. groups of maintenance employees, "optical" and `building" having nothing in common with each other. Chairman attended the November 26 session of the representation hearing at the request of the maintenance mechanics, but did not testify. Chairman testi-_ fled in the instant proceeding that after that session, but before the second session on November 30, he had a conversation with his immediate superior,. Plant Engineer Benjamin Politzer, in which Politzer cautioned him that it I N L R B v Electric Vacuum Cleaner Co., 315 U S 685, reversing 120 F (2d) 611 (C C. A 6), setting aside 18 N L It B 591: N L. R B v Berkshire Knittsnq Mills, 121 F (2d) 235 (C C A 3), remanding 17 N L R B 239, Tiiplea Screw Co v. N L R B„ 117 F (2d) 858 (C C A 6), entoicing 25 N L R B 1126 ' flatter of Unii,ei sal Camera Corporation, 54 N L R B 1037 509095-49-vol 79 26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not do him any good to testify. Politzer denied making this statement, but his denial is not credited. During the same period Chairman spoke with Harry Goldson, an employee who had the same duties as Chairman and who supervised the shift prior to Chairman's. Goldson told Chairman that the respondent knew that Chairman was "with" the men and that if he testified it might not help him with the company a Despite the warnings he received, Chair- man attended the November 30 session of the representation hearing and testified. The transcript of the representation hearing shows that Chairman testified at length and in support of the Union's position as heretofore quoted from the decision of the Board. He testified during the morning session and also during the early part of the afternoon session which began at 1: 45 p. M. Testimony was also given by three officials of the respondent, Vice-President Jacob J. Shapiro, Chief Engineer George Kende [Politzer's immediate superior], and Politzer. Kende and Politzer testified that they attended the hearing on short notide and without prior preparation, but their testimony supported the position advanced by the respondent and differed substantially from Chairman's. After he testified, Chairman went to the plant and began working on his regular shift. At about 7 p. in. he left the plant with Goldson for his dinner. They met Kende on the steps outside the plant and Kende and Chairman engaged in an acrimonious exchange over the testimony that had been given at the hearing In the course of the discussion Kende told Chairman that he had perjured himself.' Chairman said that Kende was a liar and inquired whether Kende was a professional engineer and when Kende said he was not, Chairman told him that he was the ranking engineer at the plant and would support the men. The next day Kende sent for Chairman's application for employment and also summoned Politzer to his office. Kende described his state of mind in the following language : And I repeat, here is this man who had been with us only a few weeks, in a responsible position, in charge of one shift of mainenance mechanics, who seemed to be; I was quite certain of this, seemed to be either ignorant of the true facts regarding the organization within the company, responsibility of employees of supervisors or if that was not the case, then lie was delib- erately lying, not in one instance but in many instances, all afternoon I felt, therefore, that there was definite doubt regarding his suitability for a supervisory position of that nature. 8 Goldson and Chairman were in substantial agreement as to the substance of this con- versation. Goldson further testified that Politzer told him to pass that information on to Chairman and that it was meant as a friendly warning This testimony is credited. * It is evident from the test?mony of Chairman, Kende, and Goldson that the encounter was brief and very heated The undersigned has not accepted the full testimony of any of -these witnesses as to the incident, but bases his findings on an evaluation of the complete testimony. 5 There is a dispute among the witnesses as to whether Kende actually heard Chairman testify at the afternoon session. Chairman testified that he left the healing room in mid- afternoon and met Politzer and Kende in the lobby of the building on their way to the hearing room, and that Politzer then introduced Chairman to Kende since they had not yet met. Kende testified that he and Politzer arrived at the hearing room at or near the start of the afternoon session and heard Chairman testify. Politzer had no clear recollection of when he got to the hearing or whether he saw Chairman on that day. The transcript of the hearing shows that Chairman testified shortly after the beginning of the afternoon session and that Kende and Politzer were the last two witnesses and testified much later. In addition, Kende was uncertain as to the identity of other witnesses who testified that Afternoon. The undersigned credits Chairman 's testimony. UNIVERSAL CAMERA CORPORATION 391 Politzer told Kende that Chairman's work was satisfactory. Then Personnel Manager Irving Weintraub arrived with Chairman's file and Kende proceeded to study the application for employment. Kende referred to a reference from an employee of a foreign language newspaper and said he thought that the news- paper was communistic He also stated that he thought that Chairman was a Communist. Weintraub replied that that made no difference. The conference concluded when Kende told Politzer to keep an eye on Chairman 8 A few days later Politzer told Kende that lie had checked with Goldson and had been told that Chairman was not a Communist Word of the confer;ence was relayed to Chairman Barkins, an employee, told Chairman that Kende had asked for his application. Politzer told him that Kende was angry and wanted him to apologize and that he had better do so and that "they" were after his scalp and would try to get something on him to dis- miss him! Politzer also told Goldson about his conference with Kende and Weintraub, said that he thought some method would be used to discharge Chair- man and told Goldson to tell Chairman of it. Goldson did so.' 2. The incident on December 30, 1043 On the night of December 30, 1943, Personnel Manager Irving Weintraub was at the plant and patrolled the various departments . His purpose in doing so, Weintraub testified, was to make sure that there was no slackening of work during the holiday season since the respondent was then engaged almost exclu- sively in war production. During the evening Weintraub passed Frank Kollisch , a maintenance mechanic, several times and noticed that he was standing in the doorway of the mechanics' shop apparently doing nothing . Weintraub then took Kqllisch to Chairman who was in Politzer's office. Weintraub told Chairman that he had seen Kollisch loafing and wanted him sent home. Chairman said that Kollisch was standing by for emergency duty. When Weintraub insisted that Kollisch be sent home, 6 The above description of the conference of Kende, Politzer, and Weintraub is based on their testimony which was in substantial agreement. Politzer and Kende differed as to whether Politzer had volunteered to keep an eye on Chairman or whether Kende had sug- gested it. Kende and Weintraub differed as to whether Kende actually called Chairman a communist. However the general course of the conversation is clear Politzer testified in detail as to his state of mind during this period. He testified that the maintenance men spoke to him concerning their treatment and that some of them said that the company was not fair and that he agreed with them. He also stated that be felt resentment against the company because he was not consulted by top management concern- ing the men under his supervision He further testified that prior to this hearing he had reconsidered his position and felt that he had been wrong in his attitude towards the com- panv and that his feelings might have led him to color the truth in 1943 and 1944. The testimony does show that at the time of the incidents herein Politzer was friendly with Chairman and did try to help him. It is undenied also , as appears later, that Polltzer opposed Chairman 's discharge. However, Politzer was uncertain and confused in his testimony. The undersigned found his testimony in many respects to be vague and unreliable. As to his warning to Chairman, Politzer testified that he might have used language to the effect that the company was trying to "get" Chairman for testifying , but that he could not recall it. He denied that he was ever told this by any company official. 8 Chairman also testified that Goldson told him that he had overheard a conversation between Kende and Vice-President Shapiro to the effect that they would find a pretext to discharge him. Goldson denied this and his denial is credited . Goldson testified that he did tell Chairman that his testifying would not do him any good with the company and that he might have used Shapiro 's name in that connection because, in his mind, Shapiro and the company were synonymous 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chairman said Politzer was his superior, that he would only take his orders from him, and refused to carry out Weintraub's order After a further exchange of words during which, Chairman testified, Weintraub said he had power from the War Department to kill him, Chairman said to Weintraub, "if you are drunk, please go home and sleep it off." Weintraub then ordered Chairman to leave and the latter refused. Weintraub attempted without success to telephone a guard. He then rushed out of the office. Weintraub i eturned in a short while with Al Salinsky , a uniformed guard. Joseph Zicarelli, a maintenance mechanic and shop steward for the Union, had heard some of the prior conversation between Chairman and Weintraub. He intervened when Salinsky entered Chairman's office and remonstrated with Chairman and Weintraub. He was able to get both men to agree to shake hands and forget the incident. There is complete disagreement between the witnesses for the Board and the respondent as to what took place immediately thereafter . Zicarelli and Chair- man testified that Weintraub and Salinsky left and that they completed their shifts without further incident. Chairman testified that he closed windows and locked things up because there would be no work the next two night shifts.' Weintraub testified that after he had shaken hands with Chairman he started to leave and then heard Chairman again say that he was drunk. Then, Wein- traub, testified, he ordered Salinsky to put Chairman out of the plant and this order was carried out in spite of protestations from Zicarelli 10 Salinsky testi- fied that he put Chairman out of the plant at Weintraub's order. Sam Pearl, foreman of an optical department shift, testified that he saw part of the afore- mentioned events from outside Chairman's office and that lie saw Weintraub come up to the office with Salinsky and heard him say "there's your man," anal that a minute or two later he saw Salinsky come out with Chairman with Zicarelli and Weintraub following them. Salinsky's version of the events of December 30 differed markedly from the testimony of Weintraub. Salinsky testified that he did not go to Chairman's office with Weintraub ; Weintraub testified to the contrary . Salinsky could not recall Chairman and Weintraub shaking hands and the circumstances surround- ing it ; Weintraub and the witnesses for the Board were in substantial agreement on that point The respondent contends that in spite of these divergencies, which it attributes to Salinsky's nervousness at the time of the incident . Salinsky and Weintraub were in agreement that Chairman was ejected from the plant and that this version was the correct one. However, the inconsistencies in the testimony of Salinsky and Weintraub cast doubt on the reliability of their testimony. On the other hand, the undersigned was impressed with Chairman's testimony as being a correct recital of events as they transpired. In important aspects, Chairman's testimony was corroborated by witnesses for the respondent. While the undersigned has not fully credited his version of certain conversa- ° Maintenance mechanics Joseph Morano and Ernest Werneburg testified that they were on the shift following Chairman's and that they worked the shift starting midnight December 30, 1943, and ending in the morning of December 31 The respondent also intro- duced in evidence a notice which had been posted notifying that shift that it would be paid in the morning of December 31 10 John E Kearns testified that he had investigated the charges herein while serving as Field Examiner for the Board He testified that he talked with Weintraub with reference to obtaining Chairman's time card and that the latter had told him that Chairman had completed his shift on the night in question However, he also testified that Weintraub said that Salarsky escorted Chairman from the building All witnesses agreed that the incident occuiied near the end of the shift UNIVERSAL CAMERA CORPORATION 393 tions, the undersigned does credit his version of the events on the evening of December 30, 1943, as corroborated by Zicarelli, and concludes that Chairman was not elected from the plant. 3. Events between December 31, 1943. and January 24, 1944 The day after his encounter with Weintraub, Chairman spoke to Politzer. Chairman, according to his testimony herein, gave Politzer his version of the events of the previous evening, told Pohtzer that Weintraub had been drunk, and asked Politzer whether Weintraub could give him orders. Politzer, Chairman further testified, replied that Weintraub was acting "out of order" and said that he would see to it that Weintraub kept his promise to forget the incident. Politzer denied the substance of Chairman's testimony. He testified that Chair- man had told him that Weintraub had had him put out of the plant and asked whether Weintraub could discharge him. Politzer, continuing his testimony, stated that he told Chairman that Weintraub did not have the right to discharge him and that he would support him. Politzer testified that he then questioned several employees, but could not obtain corroboration of Chairman's claim that Weintraub was drunk and reported this to Chairman later in the day. The undersigned credits Chairman's testimony especially since lie continued working without interruption and concludes that lie did not tell Politzer that he was ejected. Politzer also spoke with Weintraub about the incident. Weintraub testified that he saw Politzer the morning after the incident, and started to tell Politzer about it, but Politzer said that he already knew of it, that Chairman was re- signing and would leave in 10 days or 2 weeks Weintraub testified that he replied that that would be satisfactory, and that he would not press the matter, but that Politzer should make sure that Chairman left at that time. Politzer testified that he first spoke with Weintraub on the morning of the second work day after the incident and that the conversation was as follows : He said, "I hear you have been investigating me as to whether I was drunk or not " I said, "Yes." He said, "You ought tn.know me better than that, that I don't drink. I was dead tired that night-the night of December 30-and I had been on my feet all day and that was late in the night and there was a lot of pressure on me and I was then e under explicit order of Mr Githens " Q. Who is that? A. Mr. Githens? Q. Yes. Spell that. A. G-i-t-h-e-n-s. Q. Who is Mr. Githens? A. The president'of Universal Camera 0. Yes? A. "You know damn well that I wouldn't drink under conditions like that. I was here to see that there was no drinking" This is Weintraub talking. "I was going to forget this whole matter with Imre but since he is raising the issue of drunkenness, I want him fired." Politzer further testified that he argued with Weintraub over this decision, but Weintraub was adamant. Continuing his testimony. Politzer stated that when he told Chairman of this conversation, Chairman said that the men were k 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not backing him up and that he would quit in about ten days and submit his written resignation in a few days. Politzer then relayed this information by telephone to Weintraub who agreed to abide by the arrangement. The testimony of Politzer as summarized above differed in important respects from that of Weintraub. The undersigned from his observation of the witnesses credits Politzer's version rather than Weintraub's as more in accord with the prior events. However, the undersigned rejects Politzer's testimony that Chair- man said that he would resign. Chairman clearly felt that he was in the right in his argument with Weintraub. His insistence on testifying in the representa- tion hearing in spite of contrary advice and warnings from his associates indi- cates that he would not be swayed by the opinion of others when he had fixed ideas. In addition, although Politzer testified that Chairman agreed to submit a written resignation in a few days, there is no proof that he submitted one or was asked to submit one. This is not to say that the subject of resignation was not discussed by Politzer and Chairman. According to Chairman's credited testimony, he had another conversation with Politzer around January 11 or 12, 1944, in which Politzer said that Weintraub was still angry and wanted to bring the incident up again and Politzer then asked whether Chairman would not consider resigning. Chairman refused. Weintraub testified that on January 24, 1944, he first noticed that Chairman had not resigned within the prescribed time and asked Politzer why Chairman had not left 11 Politzer replied that Chairman had changed his mind and would not resign. Weintraub insisted that Chairman leave, declaring that it would lower his prestige if he could be called "drunk" without any punishment. Then Politzer questioned Weintraub's authority to order Chairman's discharge Pol- itzer and Weintraub went to Kende, Politzer's superior, and told him of their dispute, including the surrounding circumstances. Kende upheld Weintraub. Politzer then returned to his office and filled out a termination slip for Chairman noting that he was discharged for "misconduct" and that the discharge was effective as of January 25. On January 25 Chairman was stopped by a guard as he attempted to,enter the plant and was sent to Weintraub's office. Weintraub told him that he was discharged for misconduct, but refused to give Chairman a written statement to that effect. Chairman then said, "For your misconduct, you fired me. So long." Chairman was then escorted to Politzer's office by Salinsky, the guard, and picked up his personal possessions. While there, he spoke with Politzer and the latter assured him that he had been satisfied with his work and did not want to discharge him. Conclusions While there was a great deal of conflict among the witnesses as to the cir- cumstances leading up to Chairman's discharge the basic events are discernible. Chairman, shortly after his employment, interested himself in the efforts of the maintenance mechanics to secure union representation. He appeared at the representation hearing and gave testimony favorable to the position which a majority of those mechanics were advocating and which was opposed to the position taken by the respondent. 11 The findings as to the events leading up to the decision to discharge Chairman are based on the testimony of Weintraub and Politzer primarily, and also the testimony of Kende and Chairman as to later developments. Weintraub and Politzer did not agree on important details and the findings are based upon a reconciliation of their testimony. UNIVERSAL CAMERA CORPORATION 395 Chairman received warnings from Goldson and Politzer both before and after testifying that his conduct would bring him into disfavor with the respondent. However, Politzer, although Chairman's immediate superior, was clearly dealing with Chairman as an equal and was giving him his personal opinion meant as a friendly warning. Politzer supported and defended Chairman throughout his employment and while his recollection as to past events has not been fully credited there is no dispute as to this background fact. In any event, there is no proof that Politzer ever had any information or instruction from his superiors as to the respondent's attitude toward Chairman before his conference with Kende and Weintraub, on the day following the November 30 session of the representation hearing. Kende was aroused by Chairman's testimony which differed from his own. He spoke to Chairman and the two had a violent quarrel. The next day Kende called for Chairman's application and reviewed it with Politzer and Weintraub. He was clearly very angry and dissatisfied with Chairman. However, Politzer said that Chairman's work was satisfactory and Weintraub brushed aside Kende's voiced belief that Chairman was a Communist. While Politzer felt after this conference that Chairman's position was in jeopardy, and told Chairman so, there is no proof that the conference resulted in any plan for Chairman's discharge. Nothing happened after that conference for almost a month. Then Chair- man and Weintraub had their encounter on the night of December 30. While the Board contended that Weintraub brought on the argument as part of a pre-arranged plan to effect Chairman's discharge, the facts and circumstances point to the opposite conclusion and indicate that the two principals had a violent and sudden clash of tempers. The undersigned deems it unnecessary to decide whether Weintraub was actually drunk, as Chairman claimed. Nor is it necessary to decide the precise scope of Weintraub's authority on the night of December 30, 1943.12 Again, whether Weintraub was morally justified in acting as he did is beside the point. The undeisigned concludes that his conduct that night was not actuated by reason of Chairman's pro-Union testimony at the representation hearing. The exact sequence of events thereafter is not very clear chiefly because Politzer, who occupied the key position and was in a position to know the stands taken by Weintraub and Chairman, gave testimony which the undersigned found was not wholly reliable. Although Chairman and Politzer discussed the question of resignation, the undersigned is convinced that Chairman did not tell Politzer that he would resign. However, Politzer did tell Weintraub that Chairman was resigning Whether he wag, motivated therein by an honest mistake or by the thought that the quarrel between Weintraub and Chairman might be soon forgotten if action was delayed, is not clear. On January 24,. Weintraub insisted on the termination of Chair- man's employment and was upheld by Kende. The Board contended that the incident of December 30 had been settled ami- cably by Chairman and Weintraub and that it had been revived several weeks later and used as a pretext for Chairman's discharge when the actual reason was that he had testified at the representation hearing. Chairman and Wein- traub had shaken hands on December 30, but the credited testimony indicates that Weintraub did not dismiss the incident from his mind, but chose to make an issue of it when lie learned that Politzer was investigating his conduct. "Chairman knew Weintraub as the personnel manager. However, the scope of Wein- traub's authority had never been delimited , as Politzer Indicated in his own testimony. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chairman also testified that about the middle of January Politzer told him that Weintraub was making a personal issue of the dispute. After considering the entire testimony, the undersigned is not persuaded that the allegation of Chairman's discriminatory discharge has been established. The contention of the Board that Kende and Weintraub entered into some ar- rangement to discharge Chairman on a pretext has little basis in the actual testimony and rests principally on surmise. Kende had shown animus toward Chairman after his encounter with Chairman on November 30, but there is not sufficient proof to establish an arrangement between Kende and Weintraub to penalize Chairman for testifying. A final consideration is Kende's motive in upholding Weintraub's demand that Chairman be discharged In view of all the facts and circumstances the undersigned is not persuaded that Kende based his decision on any animus toward Chairman for testifying rather than on an evaluation of Weintraub's request based upon its merits. It will therefore be recommended that the complaint be dismissed. Upon the basis of the foregoing findings of fact " and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, Universal Camera Corporation, constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local No. 3, affiliated with American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The respondent has not engaged in unfair labor practices, within the mean- ing of Section 8 (1) and (4) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the complaint against Universal Camera Corpora- tion, New York, New York, be dismissed. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the ;s 13 The respondent submitted four proposed findings of fact. Of these, items 1 and 2 are accepted, item 3 is rejected, and it is unnecessary to rule on item 4 in view of the findings herein. Respondent submitted a proposed conclusion, of law and this has been accepted. UNIVERSAL CAMERA CORPORATION 397 other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board , request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. SIDNEY L. FELLER, Trial Exum'irier. Dated February 18, 1947.