Erving Paper Mills

In the Matter of ERvING PAPER MILLS and INTERNAT I ONAL UNION OF OPERATING ENGINEERS, A. F. OF L., Case No.1-CA-57.Decided March 29, 1949 DECISION AND ORDER On December 3, 1948, Trial Examiner C. W. Wittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Erving Paper Mills, Erving, Massachusetts, had engaged and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.-, To the extent that they are consistent with this Decision and Order, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner. 1. The Respondent urges in its brief filed with the Board that the complaint should be dismissed under Section 10 (b) of the Act because, as Respondent contends, it is based on the second amended charge, which was not served on the Respondent until after 6 months 'Hereinafter called the Union 2 Pursuant to the provisions of Section 3 (b) of the amended Act, the Board has dele- gated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [ Chairman Herzog and Members Houston and Gray]. 3 The Trial Examiner properly rejected the Respondent's contention that the service of the charges in this case upon the Respondent by the Regional Director alone was not suffi- cient, but that under Section 203 16 of the Board' s Rules and Regulations-Series 5, as amended, service should also have been made by the Union. We do not so construe that section of the Rules. We also concur in the Examiner's rejection of the Respondent's motion to dismiss, which motion was based on the failure of the Union to set forth in the charges the expiration date of the letter of compliance with Section 9 (f), (g), and (h) of the Act, issued to the Union by the Secretary of Labor. The inclusion of this date in the charge was required by Section 203 12 (f) of the Board's Rules and Regula- tions-Series 5 (prior to the amendment of August 18, 1948 ). The Respondent does not contend, however, that the Union was not, in fact, in compliance with Section 9 (f), (g), and (h ) at the time of the filing of the charges herein, and the Board has determined administratively that the Union was in fact in compliance at that time . Accordingly, the omis@jon of the aforesaid date from the charge was in no way prejudicial to the Respondent. 82 N. L. R. B., No. 47. 434 ERVING PAPER MILLS 435 from the occurrence of the unfair labor practices alleged therein. As disclosed by the record in this case, the pertinent facts are as follows : The original charge and the two amended charges filed in this case alleged that on or about December 9, 1947, the Respondent unlawfully discharged William Connell and Roland Gauthier and by these and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act 4 The original charge was served on the Respondent on January 27, 1948, the first amended charge was served on June 2, 1948, and the second amended charge on September 10, 1948. Only the last document was, therefore, filed after the expiration of the 6-month period of limitations pre- scribed in the proviso to Section 10 (b). The Respondent does not deny that the original charge and the first amended charge were timely served, but contends that the complaint was issued on the basis of the second amended charge, and that, as the second amended charge was untimely under Section 10 (b), the proceeding should be dismissed. This contention construes the proviso to Section 10 (b) as requiring that where amended charges are filed the 6-month period be computed from the date of the alleged unfair labor practices to the date of service of the last amended charge next preceding the issuance of the complaint, whether or not such unfair labor practices are sufficiently alleged in the prior charges or amended charges served on the Respondent. We do not agree. We believe that Section 10 (b), properly construed, requires that the 6-month period be computed from the date of the alleged unfair labor practices to the date of service on the Respondent of the first charge (or amended charge) relating to such unfair labor practices, which date in the case at bar was January 27, 1948. This view accords with a literal reading of the proviso to Section 10 (b)5 and with judicial practice in dealing with statutes of limitations generally.6 We find nothing to the contrary in the legislative history of the proviso 7 I There is no material difference between the original charge and the amended charges. The first amended charge merely deleted the name of a third employee from the list of those alleged to have been discriminatorily discharged, and the second amended charge merely changed the spelling of the names of Connell and Gauthier. 6 This proviso reads : Provided, that no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .. . (emphasis supplied). As the proviso does not differentiate between charges and amended charges, it seems clear that the six-month period would be tolled by appropriate service of a copy of any charge, original or amended , which relates to the unfair labor practices in question. When a pleading has been filed within the applicable period of limitations , amendments to the pleadings which do not add a new cause of action are not barred , even though filed after the limitations period has run. 54 Corpus Juris Secumdum. See 280. See also Rule 15 ( c) of the Rules-of Civil Procedure of the District Court of the United States. 'The legislative history refers only to "charges." Nothing is said about amended charges. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We, accordingly, reject the Respondent's contention that the com- plaint in this case is barred by Section 10 (b). 2. The Trial Examiner found that LeBlanc, a supervisor, about September 6, 1947, unlawfully interrogated Fremon Cloukey concern- ing his union activity, that on that date LeBlanc similarly interrogated Connell and Gauthier, threatened reprisals by the Respondent if the plant was organized, and promised benefits to the employees if they re- jected the Union. We agree with the Examiner that the Respondent thereby violated Section 8 (a) (1) of the Act. In view of the Trial Examiner's findings, which we adopt, that Con- nell and Gauthier were the only employees engaged in soliciting mem- bers for the Union, that on December 9, 1947, they were summarily "laid off" in the middle of a work assignment, that the reasons given by the Respondent for the "lay off" are conflicting, that Connell and Gauthier were interrogated by LeBlanc concerning their union mem- bership only a few days before their "lay off," a we are convinced by the record, and find, that the Respondent on December 9, 1947, was aware of their union membership or activities and discharged them on that account. Accordingly, we find, as did the Trial Examiner, that such discharges were discriminatory and in violation of Section 8 (a) (3) and (a) (1) of the Act. THE REMEDY The Respondent's fixed intention to defeat its employees' efforts toward self-organization, as manifested by discharges, interrogation, threats of reprisals against the employees if the plant was organized, and promises of benefits if the employees rejected the Union, indicates such a disregard of its employees' rights under the Act as to convince us that there exists a danger of the repetition of such violations, and of the commission of other unfair labor practices proscribed by the Act. Unless the order is coextensive with the threat the preventive purposes of the Act will be thwarted. Accordingly, in order to ef- fectuate the policies of the AGt, to make more effective the interde- pendent guarantees of Section 7, and to deter the Respondent from future violations of the Act, we will order the Respondent to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act, as amended. e Connell testified on this point : "So, he (LeBlanc ) says, 'Did you join the Union Y' I said, "That 's my business"' Gauthier testified that he refused to answer LeBlanc's questions as to who had "started the Union," and as to whether Gauthier had Joined. These evasive answers could not have failed to persuade LeBlanc that Connell and Gauthier were both members of the Union. ERVING PAPER MILLS 437 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, Erving Paper Mills, Erving, Massachusetts, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engineers, A. F. of L., or in any other labor organization of its em- ployees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) Interrogating its employees concerning their union affiliations, activities, or sympathies, or 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 Inter- national Union of Operating Engineers, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to re- frain from any or all of 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 guaranteed by Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William T. Connell and Roland Gauthier immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, and privileges, and make them whole in the manner set forth in Section V of the Intermediate Report, entitled "The Remedy"; (b) Post at its Erving, Massachusetts, plant copies of the notice attached hereto and marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the First Region, after being signed by representatives of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding 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; 9If this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice, before the words "A DECISION AND ORDER," the words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 838914-50-vol. 82-29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. of L., or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of discrimination. William T. Connell Roland Gauthier All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition in or activity on behalf of any such labor organization. ERPING PAPER MILLS, Employer. Dated------------------------- By-------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. ERVING PAPER MILLS INTERMEDIATE REPORT 439 Messrs. Joseph Lepie and Albert Allen, for the General Counsel. Messrs. James H. DuJ/in, of Boston, Mass. ; C. Edward Rowe and J. Walter Mead, of Athol, Mass., for the Respondent. Mr. Cornelius J. Ryan, of Boston, Mass., for the Union. , STATEMENT OF THE CASE Upon a second amended charge filed on September 9, 1948, by International Union of Operating Engineers, A. F. L., herein called the Union, the General Counsel of the National Labor Relation Board,' by the Regional Director for the First Region, (Boston, Mass.) issued his complaint dated September 10, 1948, against Erving Paper Mills, Erving, Massachusetts, herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and of Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the complaint, the second amended charge, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondent: (1) questioned its employees regarding Union activities, threatened to demote and to withhold from its employees a Christmas bonus if the Union were successful and promised them benefits if the Union was not successful; (2) on December 9, 1947, discriminatorily discharged William T. Connell and Roland Gauthier and since then has failed to reinstate them be- cause of their Union activities; and (3) by these acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. In its answer dated September 20, 1948, the Respondent denied that it had engaged in the unfair labor practices alleged, and affirmatively alleged that the two employees were discharged for "entirely different reasons" than set out in the complaint. Pursuant to notice, a hearing was held at Greenfield, Massachusetts, from September 27 to 30, 1948, inclusive, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Re- spondent were represented by counsel, and the Union by an international official. All parties participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence upon the issues. At the opening of the hearing, the Trial Examiner denied motions of the Re- spondent: (1) to dismiss the complaint; 2 (2) to strike therefrom certain paragraphs;' and (3) to file interrogatories addressed to the charging Union and/or its representative, Cornelius J. Ryan.' A motion by the Respondent for certain specifications was granted in part and otherwise denied. ' The General Counsel and his representatives at the hearing are herein referred to as the General Counsel , and the National Labor Relations Board as the Board. 2 The motion to dismiss was grounded upon the claim that the second amended charge was faulty in several respects and had been improperly served 8 The motion to strike was grounded upon the absence in the same charge of certain specific matters alleged in the complaint. 4 This motion was denied after assurance had been given by General Counsel that Ryan would be his first witness. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the close of the hearing the Trial Examiner denied the Respondent's motion to amend its answer by striking its reference therein to the "discharge" of Con- nell and Gauthier and substituting therefor the word "lay Doff." Also at the close of the hearing an unopposed motion was granted to conform the pleadings to the proof in minor matters. Both counsel waived the opportunity to argue orally. Leave was granted to file briefs, proposed findings of fact, and conclusions of law with the Trial Examiner. Briefs have been received from the Respondent and from the General Counsel. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Erving Paper Mills, a Massachusetts corporation, is engaged in the manufacture and converting of paper at its main plant, located in Erving, Massachusetts. It also operates a plant in the neighboring town of Orange, Massachusetts. During the 12-month period before the hearing the Respondent purchased raw materials valued in excess of $100,000, of which more than 50 percent was shipped to the Erving plant from points outside the Commonwealth of Massachusetts, and during the same period manufactured finished products valued in excess of $200,000, of which more than 50 percent was shipped by the Respondent from its Erving plant to points outside the Commonwealth of Massachusetts. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, A. F. L. is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and major issues' It appears that the first efforts to organize the Respondent's maintenance em- ployees, as a group and in number about 20, began early in December, 1947. On December 2, Cornelius Ryan, an International Representative of the Union, visited the plant in Erving, talked with employees in the power plant during their lunch period, and arranged a meeting to be held after working hours. About 20 employees then gathered at a small restaurant in the village of 600 or 700 population. Interest in organization was displayed, and William T. Con- nell, a carpenter, volunteered to receive authorization cards to be forwarded by Ryan and to have them signed by the individuals A supply of authorization cards was received, through special delivery, by Connell early Saturday morning, December 6 Before work and at lunch hour that day Connell distributed the cards among the maintenance men During the day he picked up about 14 signed cards, while his son-in-law, Roland Gauthier, collected about 6. Early the following week, Connell mailed the signed cards back to Ryan, at his office in Boston. 5 Unless otherwise stated, all events described occurred in 1947. The record contains little or no dispute as to the facts narrated in this Section. ERVING PAPER MILLS 441 In issue but generally denied (the disputed facts will be discussed in a fol- lowing section) are certain remarks made to Connell and Gauthier on December 6, by their foreman, Desmond LeBlanc. It is undisputed, however, and the Trial Examiner finds, that about the same date LeBlanc asked employee Fremon Cloukey, also under his supervision: (1) if he had attended the Union Meeting above referred to ; (2) whether or not "most of the guys" were "for" the Union or not; and (3) who had started the Union. On Monday, December 8, Connell and Gauthier were assigned to build a "hydrant house," as insulation for a part of the sprinkler system, a job requiring about a week's labor. Although the framing of the building had not by then been completed, LeBlanc called the two employees to his office the following day, December 9, and dismissed them. The discharges of Connell and Gauthier are the major issues in the case. In mid-January Ryan interviewed David Housen, president of the company, concerning the discharges and Union representation. Housen declined to discuss the matter at that time, but referred Ryan to counsel, C. Edward Rowe. Early in March Ryan met with Rowe and Housen. At the latter meeting Rowe informed Ryan that the Respondent would not reinstate Connell, because of lack of work and because he was irresponsible and a trouble-maker. Ryan was told, however, that Gauthier might be rehired. Rowe and Housen also informed Ryan that there was no union organization in the "valley," that they wanted none, and would do everything in their power to see that there was none. They further declared that they had secu}ed the "good will" of the people In that section by donating money to churches,-specifying that they had contributed $5000 to the two dif- ferent churches e B. The discriminatory discharges of William T. Connell and Roland Gauthier; interference, restraint and coercion 1. Events and evidence bearing upon General Counsel's contentions. Connell was hired the latter part of July, and Gauthier early in September, 1947, by LeBlanc and Personnel Manager Justin Waite. Both employees were told by Waite that their jobs would be permanent. Connell, who has been a carpenter for about 30 years, was employed mainly to repair and maintain com- pany-owned houses, work which previously had been done by independent con- tractors. From records introduced at the hearing it appears that about 40 per- cent of his time thereafter, however, was actually spent in work at the mill itself. Gauthier frequently assisted his father-in-law in the "tenement" repair work, and for about the same percentage of his time was engaged in carpentry work in and about the mill at Erving. About mid-afternoon on Saturday, December 6, the day he and Connell collected union cards, Gauthier was refused permission by LeBlanc to leave the plant to do Christmas shopping. An argument followed, during which the foreman declared that all the men must put in 54 hours and that there was work enough ahead to last 2 years. At this point Connell came upon the scene, and the fore- man began querying the two employees about the Union, which he said he had heard was being started. In substance LeBlanc : (1) asked if they had joined and how many others had joined; (2) told them that if they did get a union in the plant he would reduce the carpenters and mechanics to helpers and cut their pay; 6 Ryan's testimony as to this conference, upon which the above findings rest, was either corroborated by Rowe or undisputed. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) said that Housen would spend a million dollars to stop organization ; and (4) promised that if the men would reject the Union the Company would make their jobs the highest paying in the vicinity.? During the following Monday Connell and Gauthier were assigned the task of building a hydrant house. At the close of working hours on Tuesday LeBlanc suddenly dismissed them, although their assignment required another week to complete. They were told that no more carpentry work was to be done and that "Morris," David Housen's brother, wanted five or six more men in LeBlanc's crew laid off." When Connell remarked that he guessed they were "getting the brush off," LeBlanc insisted that he had too many men and must lay off five others. Despite LeBlanc's explanation to Connell, which is undenied by the foreman, there were no other lay-offs among carpenters or helpers in this department until 21/2 months later. Waite, testifying from company records, cited the first such lay off after that of Connell and Gauthier as being on February 22, 1948, and admitted that this employee left voluntarily to enlist in the service.' Neither Connell nor Gauthier has been offered reinstatement. 2. Events and evidence bearing upon the Respondent's contention. Replying to the Regional Director's notice that a charge had been filed as to Connell and Gauthier, Counsel Rowe wrote as follows, in part, on January 30, 1948: Connell and Gauthier were hired for temporary work. The Company understood that the termination was on a friendly basis with the feeling at the time of the termination that, if it was necessary to re-employ these men, the Company would be glad to call them back to work and they would be glad to work for the Company. In its answer, signed on September 20, 1948, by David Housen, it is claimed that the two employees were discharged for "reasons well known" to them, but no specific reason is set out. At the hearing, Attorney J. Walter Mead, Rowe's associate and also counsel of record for the Respondent in these proceedings , stated as follows, concerning Connell : ... he was discharged for cause , first, because at that particular time substantially all the work that he was engaged to do had been caught up. I also submit that because of the business recession at this plant many employees were laid off, and some of the projects that they may have had in mind were discontinued, and the quality of work which Mr. Connell did did not justify them in keeping him on in the classification that he was engaged for. He did not measure up to that kind of a carpenter whom you would like to have on your house. The following excerpt, relevant to the reasons offered for the discharges, is quoted from Rowe's testimony, as a witness for the Respondent, and relates to his conference with the Union representative early in March, 1948: 7 The findings above rest upon the credible testimony of Connell and Gauthier. LeBlanc merely denied making "any such statement" as he had heard the two employees attribute to him in their testimony, and further said that he did "not remember of any such con- versation " That LeBlanc had also questioned Cloukey a few days before is in no way controverted. 6 Waite testified that an oiler was discharged for cause on December 28, 1947, and that one laborer was laid off the same day. He testified as to no one in LeBlanc's department, whatever the classification, as being laid off, discharged or a voluntary quit, from Decem- ber 9 to 28. ERVING PAPER MILLS 443 I was pretty flat-footed on Connell, that the Company at any time would be glad to re-employ Gauthier when they had work for them, but that so far as Connell was concerned it would be my recommendation to the Com- pany that under any circumstances to fight the employment of Connell... . We went through the Connell and Gauthier story quite a bit in detail. The matter of the lay off, and then a subsequent bitter fight apparently with words that took place between Connell and LeBlanc at a later time, and from the standpoint of management, you couldn't permit a man of that type to come to work for the Company, the language that was used in the plant. Then I also told Mr. Ryan of some matters about Connell, general reputation, reliability, that I knew about,° and further reasons why I would advise this Company against having him in their employ. The Trial Examiner denied a motion made by counsel for the Respondent after all evidence was in to change the word "discharge" to "lay off" in the answer. In his brief after the hearing, James J. Duffin, also counsel for the Respond- ent, claims, in effect, that after Waite had received orders, in the late fall of 1947, to "start laying off men," Connell was "let go" because of "his lack of ability as a carpenter and his generally troublesome disposition." It appears to the Trial Examiner that there is more than slight inconsistency in the reasons advanced, at various times, by various counsel for the Respond- ent. And the introduction by the Respondent of a great deal of testimony in apparent support of these inconsistent claims has not dispelled the confusion. Rowe testified that before he wrote to the Regional Director the letter above- quoted, he had discussed the "whole matter" of the two discharges with company officials and Waite. That he did so is reasonable to believe and is found. As a witness for the Respondent Rowe declared that the statements made in his letter were true at the time of its writing, late in January, 1948. If, as Rowe then claimed, (1) the two had only been hired for temporary work, (2) they left "on a friendly basis," and (3) the Company would be "glad to call them back," then practically the entire case as presented by the Respondent at the hearing is negated and discredited. Contrary to the claim of "temporary" hir- ing, Waite testified that he told both Connell and Gauthier, when hired, that their jobs were permanent. Contrary to the claims that Connell, at least, left "on a friendly basis" and that the Company would be glad to call him back, is (1) Rowe's own version of his statement to the Union representative in early March as to Connell's "bitter fight" with LeBlanc; (2) LeBlanc's testimony to the effect that when Connell came for his pat with Gauthier, a few days after their discharge and he had refused to pay a bill for personal work submitted by Connell, which he admittedly owed, Connell had said to Gauthier, "Come on, the hell with them sons-of-bitches," and (3) the fact that Connell's employment record bears the notation, made by Waite 2 or 3 weeks after his discharge, that Connell is not eligible for rehire. Attorney Duffin who, in large part, presented the case for the Respondent, was apparently aware of the contradiction in claims and evidence. He objected to the receipt of Rowe's letter into evidence, stating: I don't know what Judge Rowe has written necessarily binds the com- pany, expressing his views, it is true after some investigation. What Rowe "knew about" Connell's reliability and general reputation was not revealed, nor did any company official advance, as a reason for refusing to reemploy Connell , Rowe's opinion of him. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rowe, however, according to President Housen, was counsel for the Company at the time he wrote the letter, and appeared as counsel for the Respondent at the hearing. Furthermore, at serious variance with all other claims, is Attorney Mead's claim, also as counsel for the Respondent, that Connell was discharged for cause. In summary, between the covers of the same record, the Respondent in effect claims : (1) • that the employment of Connell and Gauthier was both temporary and permanent; (2) that their "termination" was on a friendly basis although, as to Connell, after a "bitter fight," (3) that the Company would be "glad" to rehire both of them and yet, under any circumstances would "fight" against re- employing Connell and he is not eligible for rehire ; and (3 ) that Connell was both laid off temporarily and discharged for cause. Considering this state of claims and contentions, it hardly seems necessary to review and appraise in detail the vast amount of conflicting and contradictory testimony on these points. Certain items, however, are noted. According to LeBlanc, who actually discharged the two employees, he told them that "work was caught up" and he would have to "lay them off for three or four days" while "waiting for mater al." He further grid that the "hydrant job" was abandoned and was not completed until the following April. Other evidence refutes LeBlanc's testimony on this point. Connell and Gauthier had, only the day before their discharge, been assigned to a job requiring a week or more to complete. They were removed from an unfinished job-not at a time when "work was caught up." And Fred Foster, who relieved LeBlanc in January, 1948, as foreman of the tenement repair crew, testified as a witness for the Respondent that the work on the "hydrant house" was in fact com- pleted, under LeBlanc's supervision, "around Christmas time," in 1947-about two weeks after Connell and Gauthier were dismissed. At no point in his testimony did LeBlanc testify as to having received orders from any superior to reduce his crew. On the contrary, the foreman said flatly that the lay offs were on his own responsibility and he received orders from no one on this matter. Waite testified that he issued no instructions to LeBlanc for the lay offs. David Housen testified that "probably during the month of December, prob- ably the latter part of November, as we were looking toward the end of the year's business" . . . "we felt we should retrench, and that was our reason for asking the foremen to cut back on some of the overhead." There is no evidence, however, of any specific orders issued to any foreman. As noted immediately above, LeBlanc claimed that no such instructions reached him. Personnel Manager Waite added even another reason for dismissing Connell and Gauthier. According to his testimony, "it just so happened, . . . the ex- treme cold weather prevented the Company from going ahead with a good many of their projects . . . they discontinued some of them until warm weather so the two men that had been working on these projects were the logical men to lay off." Waite's claim clashes head-on into that of LeBlanc to the effect that work and material ran out-and both claims are refuted by the testimony of Foreman Foster which establishes that the work Connell and Gauthier were engaged in was halted neither by material shortage nor by cold weather, since it was in fact completed within the next couple of weeks by other men, under LeBlanc's supervision. In his brief, counsel for the Respondent also contends, in effect, that Con- nell, at least, was laid off because of his unsatisfactory work. The evidence, ERVING PAPER MILLS 445 however, does not support this contention. LeBlanc who, as a witness, assumed full responsibility for the discharge, testified that Connell's work in his opinion was unsatisfactory, but made no claim that this was in whole or in part the reason for the lay offs. On the contrary, the only reason advanced by him was that which he had told the employees themselves, when he said they would be off for a few days. Furthermore, even if unsatisfactory work on Connell's part had been claimed by LeBlanc as the reason for his action, the record is barren of either claim or evidence that Gauthier, discharged at the same moment and under the same circumstances, was "unsatisfactory." In fact LeBlanc testified that Gauthier was a "very nice worker." As to the name-calling incident, undisputed, the evidence establishes that it occurred after Connell had been discharged, and that it was neither the cause of the discharge nor a reason for failing to reinstate him. LeBlanc himself admitted that he paid no attention to it, and shrugged it off. Furthermore, ac- cording to Waite's testimony at one point, Connell has never been discharged, and he "assumes" that he will be hired when a carpenter is needed. Promptly after the dismissals of Connell and Gauthier, two carpenters, Fred Foster and Albert Rudd, who until then had been assigned regularly to the Orange plant, and had not been in LeBlanc's crew at Erving, were brought to the Erving plant for maintenance work. In January Foster was made fore- man in charge of all tenement repair work. Thus it is plain that building repair work did in fact continue after the dismissals of Connell and Gauthier, and that the vacancies caused by the discharges were promptly filled by trans- fers from another plant. From the confusion of conflicting claims and contradictory testimony the Trial Examiner is able to draw but one reasonable conclusion. It is concluded and found that there is no merit in any of the various contentions advanced by the Respondent as to the dismissals of Connell and Gauthier. 3. Conclusions as to the discharges ; interference, restraint and coercion The Respondent introduced a great deal of evidence to rebut testimony of Connell that he had done no manual labor on a house he had contracted to build for a resident in another town long before he was employed by the Re- spondent. Its introduction was for impeachment purposes since the facts, whatever they may have been, were immaterial to the issues in this case. While the Trial Examiner is satisfied that Connell did, in fact, work on the house in question, he is not of the opinion that all of his testimony is therefore dis- credited. However, on all crucial points as to the discharges and the coercive remarks of LeBlanc, Gauthier's testimony supports that of Connell, and Gau- thier's credibility was unshaken.1° Apart from disputed testimony and evidence, two events, unchallenged and uncontroverted, reveal the setting in which Connell and Gauthier were dismissed, and point directly to the Respondent's real motive in ridding itself of them. A few days before the dismissals LeBlanc asked Fremon Cloukey if he had at- tended the Union meeting, if others were "for" the Union, and who had started it. Cloukey is a millwright, still employed by the Respondent. Early in March, 1948, the Respondent's chief official, David Housen, and Counsel Rowe bluntly 1° At one point Waite claimed that Gauthier had failed to note, on his application for employment, the name of his immediately preceding employer. However, upon later exam- ination, it developed that Waite himself actually filled out the application, asking Gauthier questions and putting down the answers . And Waite's own testimony makes it plain that he varied his oral questions from those appearing upon the form. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told the Union representative that there was no union in the vicinity, that the Company wanted none, and would do everything in its power to see that there was none. The Trial Examiner is convinced by the preponderance of credible evidence and finds that Connell and Gauthier were discriminatorily discharged on De- cember 9, 1947, because of their activities on behalf of the Union. By these discharges, and by LeBlanc's questioning of and threatening remarks to Connell, Gauthier and Cloukey, above-quoted, the Respondent had interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, in connection with its 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged William T. Connell and Roland Gauthier because of their Union activity. It will therefore be recommended that the Respondent offer to these two employees immediate and full reinstatement to their former or substantially equivalent positions," without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. International Union of Operating Engineers, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of William T. Connell and Roland Gauthier, thereby discouraging membership in Interna- tion Union of Operating Engineers, A. F. L., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 11 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible and if such position is no longer in existence then to a substantially equiva- lent postion." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L R. B 827. ERVING PAPER MILLS 447 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the above findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10 (c) of the amended Act, the Trial Examiner recommends that Erving Paper Mills, Erving, Massachusetts, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engineers, A. F. L, or in any other labor organization of its employees, by discriminato- rily discharging, refusing to reinstate, or by discriminating in regard to their hire or tenure of employment, or any term or condition of employment ; (b) Interrogating its employees concerning their union affiliations, activities, or sympathies, or in any manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist International Union of Operating Engineers, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action,' which the Trial Examiner finds will effectuate the policies of the Act : (a) Offer to William T. Connell and Ronald Gauthier immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in Section V above, entitled "The remedy" ; (b) Post at its plant in Erving, Massachusetts, copies of the notice attached hereto and marked "Appendix " Copies of said notice, to be furnished by the Regional Director for the First Region, after being signed by representatives of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) 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 ; (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the inter- mediate Report and Recommended Order 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 six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203 46 should any party aesire 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. In the event no Statement of, Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 3rd day of December 1948. C. W. WHITTEMORE, Trial Examiner. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION OF OPERATING ENGI- NEERS, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. William T. Connell Roland Gauthier All our employees are free to become or remain members of the above- named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. ERVING PAPER MILLS, 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.