Rome Specialty Co., Inc.

In the Matter of ROME SPECIALTY Co., INC. and MARY TnFar.r AND MARJORIE WHITBECK ( EDICK), INDIVIDUALS Case No. 9-CA-5.Decided June 9,1949 DECISION AND ORDER On June 25, 1948, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent 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 Inter- mediate Report attached hereto.' He also recommended that the com- plaint be dismissed insofar as it alleged that the Respondent engaged in certain other unfair labor practices. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.2 The Respondent excepts to the Trial Examiner's ruling that the complaint in the instant case was validly issued under Section 10 (b) of the amended Act. In support of this exception, it contends that the complaint should not have been issued because the charge was not filed and served before September 12, 1947, more than 6 months after the occurrence of the alleged unfair labor practices. The Board has held that Section 10 (b) of the amended Act imposes no limitation on the issuance of complaints in cases where the charges were filed and served within 6 months of August 22, 1947, the effective date of the amended Act.3 At the time of its transfer to the Board, the record in the instant case did not contain proof of timely service of a copy of the charge upon the Respondent. Subsequently, attorneys for the General Counsel submitted to the Board an affidavit of a Board employee in the office of the Regional Director for the Third Region wherein the I Section 8 ( 1) and ( 3) of the National Labor Relations Act, which the Trial Examiner found was violated , is continued in all respects here material in Section 8 (a) (1) and (3) of the, Act, as amended 2 No exceptions were filed by any party to the findings and recommendations of the Trial Examiner to dismiss certain allegations of the complaint 3 Matter of Itasca Cotton Manufacturing Company, 79 N L R B 1442; Matter of S W. Evans & Son, 81 N. L R B. 161. 84 N. L. R. B., No. 9. 55 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiant stated that on September 12, 1947, she personally mailed a copy of the charge addressed to the Respondent. A true copy of this affi- davit was attached to the Board's "Notice to Show Cause" of March 18, 1949, in which the parties were given notice that such proof of service would be made a part of the record in this case unless sufficient- cause to the contrary was shown in writing. The Respondent, reply- ing in the form of an affidavit by its president, does not deny the truth or authenticity of the Board employee's affidavit; nor does it deny actual receipt of the copy of the charge mailed on September 12, 1947. It contends that such service was defective because it did not conform to the manner of service provided in the Rules and Regulations of the Board.4 The Board employee's affidavit reveals that service in this case was made by regular rather than registered mail. However, we do not regard this technical defect as sufficient in and of itself to affect the validity of such service. The Board has held that procedural requirements with regard to proof of service should be liberally con- strued.6 We are satisfied that the Respondent in fact received the copy of the charge addressed and mailed to it on September 12, 1947, in the normal course of the mails. Accordingly, the afore-mentioned evidence of service is hereby incorporated in the record. We find that the charge in the instant case was timely filed and served in accordance with the requirements of Section 10 (b) of the amended Act. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [Members Houston, Reynolds, and Murdock]. The Board has reviewed the other rulings made by the Trial Exam- iner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the modi- fications and additions noted herein. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (3) and (1) of the Act by discharging employee Mary Theall because of her prominent role in the formulation and circulation of the employees' petition for a wage increase on February 4 Section 203 84 of the Board's Rules and Regulations provides that service shall be made by "registered mail or in any manner provided for the service of papers in a civil action by the law of the State in which the hearing is pending." 5 Matter of Old Colony Box Company, 81 N. L R. B 1025 Section 203 85 of the Board's Rules and Regulations provides that "Failure to make proof of service does not affect .the validity of the service." ROME SPECIALTY CO., INC. 57 4 or 5, 1947, and the subsequent work stoppage February 18, 1947. Theall was an active leader of the Respondent's employees in their efforts to secure a wage increase. At the time of her discharge, the day following the work stoppage of February 18, she was informed by Butts, the president of the Respondent, that she was the "in- stigator of making trouble" and that without her "trouble will cease." The respondent contends that Theall was discharged because she was interfering with the work of other employees and was not working at her bench at the conclusion of the work stoppage. The record reveals, however, as the Trial Examiner found, that she did return to work within a reasonable period after the work stoppage terminated and reported to the plant the next day at the usual hour. The decision to discharge her was made summarily after the work stoppage occurred and with no previous warning that her conduct in the plant was otherwise objectionable to the Respondent. Under these circumstances, we are persuaded that the Respondent believed her to be primarily responsible for the concerted activities of the em- ployees in the plant and agree with the Trial Examiner that she was discharged for this reason. As we have heretofore held, the type of activities engaged in by Theall and other employees in the plant are clearly protected under the Act and a discharge for engaging in such activities violates not only Section 8 (1), but also discourages membership in a labor organization in violation of Section 8 (3).e Moreover, whether the discharge be regarded as a violation of Section 8 (1) or (3) of the Act, we find it necessary to order that Theall be reinstated with back pay in order to effectuate the policies of the Act. 2. We also agree with the Trial Examiner that the discharge of Whit- beck (Edick), Theall's daughter, was motivated by her relationship to Theall and was intended as a reprisal for the latter's participation in the concerted activities referred to above. We find no merit in the Respondent's contention that Whitbeck (Edick) was discharged be- cause she had not been meeting the minimum production schedule. According to the testimony of the Respondent's superintendent, Rundle, it was customary to warn an employee about 10 times that her work was unsatisfactory before discharging her. The record reveals that Whitbeck (Edick) was not warned once by the Respondent with regard to the quantity or quality of her work before the work stoppage occurred. The record shows further that other employees in the plant were not meeting the minimum production schedule. Not until 10 minutes after 3 o'clock on the afternoon of February 18, the date of the 6 Matter of Kennametal, Inc, 80 N L. R. B. 1481 ; see, also, Matter of Westinghouse Electric Corporation, Ansonia Plant, 77 N. L. R. B. 1058, and cases cited therein. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work stoppage, did Rundle recommend to Butts that Whitbeck (Edick) be discharged. Her discharge, like that of her mother, Theall, was effected the next day in a summary and final manner. In view of these facts, we find that Whitbeck (Edick) was discriminato- rily discharged in violation of Section 8 (3) of the Act and shall order that she be reinstated with back pay, as recommended by the Trial Examiner.7 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, Rome Specialty Co., Inc., Rome, New York, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees by discharging or in any other manner discriminating in regard to the hire or tenure of employment of its employees or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or form labor organizations, to bargain collectively through represent- atives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and 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 in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Offer Mary Theall and Marjorie Whitbeck (Edick) immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make each of them whole for any loss of pay each may have suffered by reason of discrimination against them by payment to each of them of a sum of money equal to the amount determined in the manner set forth in the section of the Intermediate Report entitled "The remedy" ; ° See Matter of Califruit Canning Company, 78 N. L R B . 112, where the Board held that the discriminatory discharge of a wife because of the union activities of her husband constituted a violation of Section 8 (3) of the Act. ROME SPECIALTY CO., INC. 59 (b) Post immediately at its plant in Rome, New York, copies of the notice attached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of the receipt of this Order what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent committed unfair labor practices by interrogating its employees concerning their concerted activities; by threatening and warning its employees not to become affiliated with labor unions or any other organization designed for the purposes of collective bargaining in regard to wages, hours, and working conditions; and by threaten- ing its employees with discharge or other disciplinary action if they engaged in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, be, and it hereby is, dismissed. 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 discourage membership in any labor organization of our employees by discharging or in any other manner discrim- inating in regard to the hire or tenure of employment of our employees or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring mem- I In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words. "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING," 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Rela- tions 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 the discrimination. Mary Theall Marjorie Whitbeck (Edick) All our employees are free to become or remain members of any labor organization of their own choosing. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization, or because he has engaged in concerted activities for the purpose of collective bargaining or in other mutual aid or protection. ROME SPECIALTY Co., INC., Employer. Dated--------------------- By-------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs. Richard Lipsitz and John C. McBee, for the General Counsel. Evans & Evans, by Mr. Arthur S. Evans, of Rome, N. Y., for the Respondent. STATEMENT OF THE CASE Upon a charge duly filed on September 11, 1947, by Mary Theall and Marjorie Whitbeck (Edick),' individuals, herein called respectively Theall and Whitbeck, the General Counsel of the National Labor Relations Board,2 on behalf of the Board, caused the Regional Director for the Third Region to issue a complaint dated April 29, 1948, against Rome Specialty Co., Inc., herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, and as reenacted in Section 8 ( a) (1) and ( a) (3) and Section 2 (6) and (7) of the Act as amended by Labor Management Relations Act, 1947,3 herein called the Act. Copies of the i During her period of employment with the Respondent and at the time of the alleged unfair labor practices, Marjorie Whitbeck was known under the said name. Since that time, she has married and is presently known under the name of Marjorie Whitbeck Edick. 2 The General Counsel and his representatives at the hearing are referred to herein as the General Counsel , and the National Labor Relations Board as the Board. 8 Public Law 101, 80th Congress, Chapter 120 , 1st Session , June 23, 1947. ROME SPECIALTY CO., INC. 61 complaint, charge, and notice of hearing thereon were duly served upon the Re- spondent and Theall and Whitbeck. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent: (1) since on or about February 7, 1947, by (a) interrogat- ing its employees regarding their concerted activities, (b) threatening and warn- ing its employees to refrain from engaging in concerted activities, (c) threatening and warning its employees not to join or become affiliated with labor unions or any other organization which is designed for purposes of collective bargaining in regard to wages, hours, and working conditions, (d) threatening its employees with discharge or other disciplinary action if they engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection; (2) on or about February 19, 1947, by discharging and thereafter failing and refusing to reinstate Mary Theall and Marjorie Whitbeck (Edick) because they engaged in concerted activities with other employees for the purposes of collective bar- gaining and other mutual aid and protection; and (3) by the foregoing conduct, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and as reenacted in the same section of the amended Act, in violation of Section 8 (1) and (3) of the Act, and as re- enacted in Section 8 (a) (1) and (a) (3) of the amended Act. The Respondent's answer duly received admits certain allegations of the com- plaint concerning its corporate structure, its business activities, and the fact that it is engaged in interstate commerce, but denies that it engaged in unfair labor practices. In addition, the answer sets up two separate and distinct defenses to the complaint as follows: (1) that the unfair labor practices upon which the complaint is based occurred more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the Respondent within the meaning of Section 10 (b) of the Act, as amended ; and (2) that Mary Theall and Marjorie Whitbeck ( Edick ) were discharged for cause within the meaning of Section 10 (c) of the Act, as amended. Pursuant to notice, a hearing was held at Rome, New York, on May 12, 1948, before the undersigned, the Trial Examiner designated by the Chief Trial Ex- aminer. The General Counsel and the Respondent were represented by counsel. Theall and Whitbeck appeared in person. Full opportunity to be heard, to ex- amine and cross-examine witnesses , and to introduce evidence bearing on the is- sues was afforded all parties. At the outset of the hearing, counsel for the Re- spondent moved to dismiss the complaint under Section 10 (b) of the Act, as amended, on the same grounds as set forth in the answer referred to supra. The motion was denied.` At the close of the hearing the General Counsel moved to 4 The Respondent contended at the hearing and in its brief that since no charge was filed and no complaint issued prior to the enactment of the Labor Management Relations Act, 1947, and sufficient time having remained for the charging parties to meet the require- ments of the Labor Management Relations Act, 1947, and the charging parties having failed to meet such requirements, the General Counsel had no power or authority to issue the complaint herein, and it therefore should be dismissed . It was further contended in the Respondent 's brief that any rights the charging parties may have had under the Act to have a complaint issue upon the charges filed expired with the enactment of the Labor Management Relations Act, 1947, unless the rights survived by special provision of the latter Act. It is the opinion of the undersigned that Section 10'(b) of the amended Act imposes no limitation upon the issuance of complaints in any case in which the charges have been filed within 6 months after August 22, 1947, the effective date of the amend- ments. The charge herein was filed September 11, 1947. See Smartley v Pennsylvania Sugar Company, 108 F. (2d) 603 (C. A 4) ; Anderson v General, etc., 134 Minn 21, 158 N W. 715. The Respondent also set forth in its brief and argued at the hearing that since the charge did not specifically allege discrimination in regard to the hire and tenure of employment of Theall and Whitbeck , the General Counsel had no authority to issue a 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conform the pleadings to the proof as to formal matters; this motion was granted without objection. Although afforded an opportunity to argue orally on the rec- ord, the General Counsel and counsel for the Respondent waived this privilege, indicating instead their intention to file a brief. Briefs were duly received from the General Counsel and from counsel for the Respondent. 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; Rome Specialty Co., Inc, is a corporation duly organized under the laws of the iState of New York, with its plant and principal office at Rome, New York, where it is engaged in the manufacture of fishing tackle, novelties, leather goods and related products. During the year 1947, the Respond- ent purchased raw materials consisting principally of leather and metal products valued at approximately $350,000, of which approximately 90 percent was pur- chased from points outside the State of New York, and shipped to Respondent's plant in Rome, New York. During the same year, the Respondent's sales were' valued at approximately $700,000, of which approximately 95 percent represented sales to customers in States other than the State of New York. For the purposes, of this proceeding, the Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES' A. The discriminatory discharge of Mary Theall 1. Background, circulation of petition for wage increase, the strike, and discharge of Theall Mary Theall was in the Respondent's employ from March 1946 until on or about February 19, 1947, the date of her discharge. Theall's work consisted of operat- ing the touch press and the hand swivel machines, and at times when the ma- chine on which she was working broke down, she was assigned to do odd jobs in the plant such as sorting pins. The Respondent paid its employees on a piecework rate basis, or if they did not produce in any one clay in accordance with the piecework schedules in effect for their machines, they were paid a basic rate of 55 cents per hour on a day rate- basis. The method of determining whether an employee met her piecework schedule for the day was by weighing each employee's completed production after the close of work. Theall testified that at the end of her shift and immediately before leaving the plant, she took her completed work to the head of the stairs complaint containing allegations of discriminatory discharge That every single element in a complaint issued by the Board need not be covered by a charge filed with the Board has been expressly decided by the Supreme Court National Licorice Co. v. N L. R. B., 309 U S. 350 Furthermore, as Mr. Justice Jackson stated in N. L. R B. v Indiana and Michigan Electric Company, et at , 318 U S 9, " . The charge is not proof, it merely sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the truth of its accusations . The charge does not even serve the purpose of a pleading. (Emphasis supplied ). See also Matter of Sewell Manufacturing Company, 72 N. L. R. B 85. 6 Unless otherwise indicated , all findings of facts are based upon either admitted or uncontroverted evidence. ROME SPECIALTY CO., INC. 63 and a male employee carried it downstairs to the weighmaster. She did not see her completed day's work weighed. On Saturday mornings she received a slip of white paper which contained notations of the number of hours worked or the total number of gross completed daily if she produced or exceeded her piece- work schedule. Theall received the piecework rate of 111/2 cents per gross when she began her employment and after a month she was given an increase to the prevailing rate of 12 cents per gross. Her basic hourly rate throughout her period of employment was 55 cents. In December 1946, Theall and a number of other employees of the second floor of the plant began to talk among themselves about the need for an increase in the basic hourly rate and that they were not being credited with the full amount of their piecework. On or about February 4 or 5, 1947, while thus engaged in conversation with several employees concerning the rates of pay, Theall voiced her opinion that there was no use talking about a raise, but suggested rather that a petition ask- ing for a 10-cent raise be drafted, and submitted to Jerrold Butts, the president of the Respondent. In accordance with her suggestion, Theall and another employee, Helen Sobik, wrote the following inscription on a piece of brown wrapping paper : "We want a 10¢ raise including piece work." During her lunch hour that day Theall signed the petition and canvassed several other girls on the second floor, for their signa- tures. Upon their return to work at the finish of the lunch hour, Helen Sobik took the petition around to the other girls on the floor and asked them to sign. The petition containing the signatures of 25 employees, was delivered to Butts. The following morning, Charles Rundle, the Respondent's plant superintendent, came up to the second floor and talked with each employee individually. Rundle asked Theall if she would give Butts 2 weeks to figure up his accounts before acting on the wage increase demand. Theall replied that it was no more than fair that the Respondent have 2 weeks to go over its books and figures e On February 18, Rundle again talked with Theall and told her that Butts would like another 2 weeks to figure the rates of pay to determine if he could grant an increase. Theall told Rundle that since there were only 100 employees in the plant, she did not think that so much time was necessary to figure on an increased wage, adding that she did not think it was fair, as the employees had already waited 2 weeks. Rundle then told Theall that if she did not like the idea, she could go downstairs, pick up her pay and go home. Theall answered that that would not be so easy. Rundle thereafter walked around the second floor and again talked with each girl individually. After Rundle left the second floor, Sobik as well as some of the other girls talked with Theall. Theall suggested to each that if all the girls were in agree- ment, they should call a strike. After canvassing the girls and determining that they were willing to participate in a strike, Theall called the girls from their O Rundle admitted talking to the girls individually after the receipt of the petition by Butts Rundle testified that his purpose in talking with the girls was to determine what grievances they had Rundle did not deny the conversation with Theall. He stated that, on a subsequent occasion , about a week after his first series of conversations with the girls , he was asked about the increase while he was on the second floor and he told the girls that if there were any raises to be given they could not all have them and that they would have to wait for nearly 2 weeks because the Respondent had to go through its figures. The undersigned is of the opinion that Rundle was in error as to the date of this latter conversation and credits Theall's version of the conversation with Rundle. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machines at 12 noon.' The girls left their machines and congregated in a group on the second floor of the plant. Theall, addressing them, said that since Butts could not see their position on the wage increase , they should make an effort to bring a union into the plant to try to help the girls get an increased wage. At the same time another petition was drafted with the following inscrip- tion : "If one girl gets fired, all the rest go too." This petition was signed by Theall, Sobik, and about 25 other employees. Butts was out of the plant when the work stoppage began. Upon receiving a telephone call advising him of what was going on, he came back to the plant immediately, arriving at about 12: 30 p. in., and saw the girls who were still engaged in the work stoppage, standing around the second floor. Butts asked what their trouble was, and one of the girls answered that they were not satisfied with Bundle's statement to them that morning, and they refused to work until they received an answer to their petition regarding the increased wage. Butts said that any girl who was not satisfied was to report to the office, get her check, and go home. Whereupon one of the employees remarked that if one girl was fired, they would all walk out. Butts' answer to this was, "All right, you are all fired." However, none of the girls left. Butts came around to where Theall was standing and she said to him, "I can't see how you expect girls to make piece work when they have to carry their work downstairs, wait for it to be weighed, carry it back up and when the machine breaks down, you have to wait five to fifteen minutes for a man to come fix your belt or do whatever you have got to do, and still you expect the girls to get a good rating for piece work." Butts accord- ing to Theall replied, "We are not making a barrel of money around here." Butts then told the girls that he would give them a few minutes to make up their minds as to what they were going to do and went downstairs to his office.' A short time thereafter, two employees allegedly leaders of the strikers, ap- peared in Butts' office,° stating that the striking employees were then willing to return to their jobs. Butts told them that if they would go back to work he was 4 The girls on the 8 a in to 5 p in. shift had their lunch hour from 12 to 12: 30 p. in. Theall and the other girls from the 7 a . in. to 3 p. in shift who participated in the work stoppage left their work 8 Butts, testifying regarding his version of the incidents in the plant during the work stoppage, stated that he arrived at the plant after 12 : 30 p in., when the employees should have been working, and ascertained that they were on strike . After some further con- versation which he could not remember, he told all of the striking employees to come to his office to receive their pay. He returned to his office prepared to make out pay checks, but none of the employees reported to him. As a result Butts went back to the second floor and found the employees still standing around. He was asked a number of questions and told the group that if he was going to increase their pay it would mean that they would all "have to make out" on piece work, since the Respondent's products were highly competitive and it did not make so much money that it could afford to pay people who did not produce more than their minimum base pay. Butts testified further that he believed he told the group that his secretary had been ill, with the result that the Respondent had been held up in changing its piecework rates, but that it would raise them as soon as it was physically possible to do so Butts then asked the employees whether they were going to return to work, and they replied that they wanted time to think it over Butts granted them 5 minutes and told the group that he would be in his office waiting for their answer. Butts' testimony is at slight variance with Theall's testimony. Theall denied that Butts told the group that any pay increase would be dependent upon investigation of the pro- duction of various individuals or that it would be necessary for the Respondent to continue employing only those workers who could produce sufficiently to enable the Respondent to pay a higher rate on highly competitive products. As noted above, Butts was not certain as to exactly what he told the striking employees. From his observation of the witnesses and upon the entire record, the undersigned credits Theall's denials. ° Butts did not name the two employees who came to his office but described them as "spokesmen for the group." ROME SPECIALTY CO., INC. 65 satisfied and "would let it go at that time." One by one the girls with the exception of Theall and Sobik returned to their jobs at or about 1 p. in. Theall testified that she and Sobik continued talking to Floorlady Miller about a union in the plant until 2 p. in., when Theall remarked, "I guess we might as well go back to work, everybody else has, . . . there is nothing else we can do." Theall returned to her job then, and worked the remainder of the shift until 3 p. m. when she left the plant. Upon leaving the plant, Theall talked with her daughter, Marjorie Whitbeck (Edick) 10 who was employed on the 3 p. m. to 11 p. in. shift. Theall told Whitbeck that Butts had refused to give the employees a raise and wanted more time and that the girls had called a strike that afternoon. Theall asked Whitbeck if she could help organize the girls on her shift into a union. The conversation between Theall and Whitbeck took place in the presence of Floorlady Miller who was seated about 2 feet away. Theall reported for work at the regular time the next day and worked for 1 hour when Helen Miller told her she was wanted in Butts' office. Theall saw Butts in his private office where the following conversation ensued : Butts said, "I thought this thing was settled." Theall replied, "As far as I know, it was." Butts said, "You did not go back to work yesterday when the girls did." Theall answered, "I did not say I would." Butts told Theall that the production figures showed that on the previous Monday she had completed 493/4 gross and on Tues- day only 25 gross. Theall remarked that it was unfair to compare Tuesday's work with Monday's, since they were on a work stoppage for about 2 hours on Tuesday during which time they did not work. Butts then said, "I think you'd better pick up your pay." Theall asked him what he meant and Butts replied, "It means you are fired, you are through." Theall remonstrated and stated that she was not the only girl who took part in the work stoppage, where- upon Butts said, "You are the instigator of making trouble. With you out of the 'way, trouble will cease." Butts then left his office and told his secretary to make up Theall's check, which she received on her way out of the plant. That afternoon Theall, in the company of Sobik, Whitbeck, and several other employees, went to the office of the United Electrical, Radio and Machine Workers of America to confer with union representatives.11 Theall never personally requested reinstatement thereafter. 2. Reasons for Theall's discharge advanced by Respondent; conclusions In its answer, the Respondent averred that Theall was discharged for cause within the meaning of Section 10 (c) of the amended Act. At the hearing herein, Butts gave the following reasons for discharging Theall: (1) because after the strike she refused to go back to her job; (2) that she interfered with the work of the other employees who were in her department while they were supposed to be working; and (3) on company time she would bother the other employees to some extent, resulting in a decreased production for all employees. Butts testified that he concluded that Theall did not return to work the day of the strike only from his investigation of the weight records. Other than Butts' testimony, the Respondent did not adduce any proof that Theall had not returned to her job as she testified she did at 2 p. in. and worked until the end of her shift at 3 p. in, the day of the strike. The undersigned credits Theall's 10 whitbeck's discriminatory discharge will be discussed hereinafter. "The record reveals that Sobik was also discharged by the Respondent that day. The complaint does not allege her discharge to have been in violation of the Act. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony in this regard. The fact is that she again returned to work at her regular time at 7 a. m. on Wednesday, February 19, and worked for 1 hour before she was called to Butts' office and told that she was discharged. With respect to the other reasons given by Butts for Theall's discharge, Butts admitted that either Rundle or Helen Miller told him that Theall, after the strike was sup- posedly called off, went from one worker to another, talking to them and disturbing them the remainder of the afternoon while they were trying to work. He further admitted that Theall's disturbing tactics among the employees applied only to the afternoon of the strike. Butts admitted that prior to the strike he had never checked Theall's work record, nor had he ever spoken to her about her work. Theall's undenied, credible testimony is that during her entire period of employment she was never warned regarding her work, nor had she received any complaints about her work, nor was she ever told that she was behind in the established piecework schedules. The fact is that a check of the records of earnings by Butts for the week of February 15, of the 25 employees who signed the first petition asking for an increase in pay, revealed that Theall received higher wages than did 15 other employees on the said list. Rundle admitted that it was a daily occurrence for the girls to shout across the room at each other. Rundle further admitted that if an employee is retained by the Re- spondent after the first 3 months of her employment, she is usually sufficiently competent to stay on In view of the foregoing, it is clear that Theall was discharged by the Respondent because she engaged in concerted activities with other employees in connection with the formation and circulation of the petition for a wage increase on February 4, and.in connection with the work stoppage on February 18 It is apparent that whatever complaints the Respondent may have had regarding Theall's alleged interference with the employees, are those immediately prior to and coincidentally with her concerted activity in respect to the petition for a wage increase and the work stoppage. As heretofore found, Theall did return to her work shortly after all of the other employees who were engaged in the work stoppage returned to their work. It follows that the reasons advanced by the Respondent for the discharge of Theall are without merit. It is significant that Theall was discharged without any prior warning, for conduct alleged by the Respondent to have motivated her discharge. It is more significant that Butts did not undertake to investigate Theall's work record until after the work stoppage. Most significant, however, as to the Respondent's motivation for Theall's discharge, was Butts' statement to her, which is undenied in the record, that she was fired because she was the instigator of the trouble and that without her the trouble would cease. Upon the basis of the foregoing and upon the entire record, the undersigned concludes and finds that the Respondent discharged Mary Theall because of her concerted activities in regard to the formation and circulation of the petition for, a wage increase on February 4 or 5, 1947, and for her concerted activities in the work stoppage of February 18, with the resulting effect that the Respondent has discriminated in regard to her hire and tenure of employment and dis- couraged the formation of and membership in a labor organization in violation of Section 8 (3) of the Act,12 as reenacted in Section 8 (a) (3) of the Act, as amended. 12 See Matter of Worthington-Creamery and Produce Company, 52 N L R B 121, it case involving discharges of employees because of their concerted activities , wherein the Board stated, "We are of the opinion and we find that, irrespective of whether such con- certed activity resulted from any interest or activity in a labor organization , such dis- ROME SPECIALTY CO., INC. 67 B. The discriminatory discharge of Marjorie Whitbeck (Edick) 1. Background ; facts leading up to Whitbeck's discharge Marjorie Whitbeck (Edick), the daughter of Mary Theall, was initially em- ployed by the Respondent in June 1946. Because of illness, in November 1946 she voluntarily terminated her employment with the Respondent for several days, but was rehired by Butts;' andiremained in the Respondent's employ until she was discharged on February 19, 1947. Whitbeck worked on the 8 a. in. to 5 p. in. shift for several months and then transferred to the 3 p. in. to 11 p. in. shift until her discharge. She worked on the swager and punch press machines in the plant as well as at odd jobs when her machine broke down. On February 18, 1947, Theall talked with Whitbeck at about 3 p. in. about the work stoppage of the day shift employees which had taken place that after- noon, and asked her if she would help to organize the employees on her (Whit- beck's) shift into a union. Whitbeck worked the whole shift on February 18. During the course of the shift, Whitbeck talked with Glendora Van Loan, the floorlady on the night shift, and told Van Loan that she was not going to talk to any of the night girls about joining a union because she did not want to stick her neck out and be discharged. On February 19, at about 3 p. m., Whitbeck accompanied Theall and two other employees to the headquarters of United Electrical, Radio and Machine Workers of America, and did not report for work until 4: 15 p 11114 She looked for her time card but it was removed from the rack. Whitbeck asked Helen Miller where her time card was, and she was told that she was wanted in Butts' office. Whit- beck was wearing an organizing committee button of the United Electrical, Radio and Machine Workers of America, on her lapel. When Whitbeck entered Butts' office he said, "We have been waiting for you." Rundle upon spying the union button on her coat said, "You are well decorated, aren't you?" Butts then in- quired, "Whose idea was that9" Whitbeck stated that she would not mention any names, whereupon Rundle said, "You think you are pretty cute, don't you? We have got your check, you go out and wait in the other office " Whitbeck sat down in the outer office to wait; Butts and Rundle put on their coats and went out. They returned in about 15 or 20 minutes and called Whitbeck back into the office. Butts told her that she had not been making her piecework schedules and proceeded to show her books which revealed that she had dropped in her piecework production Butts then stated, "The reason you are getting fired is because you haven't been making your piece work." 2. Respondent's reasons for Whitbeck's discharge ; conclusions In its answer the Respondent averred that Whitbeck was discharged for cause within the meaning of Section 10 (c) of the Act, as amended. At the hearing, crimination has the effect of discouraging the formation and membership in a labor organi- zation, which is the customary instrument utilized by employees in exercising the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act, and constitutes an, unfair labor prac- tice within the meaning of Section 8 (3) of the Act " See, also, Matter of Rockingham Poultry Marketing Cooperative, Inc, 59 N L R B 486; Matter of Phoenix Mutual Life Insurance Company, 73 N L R B 1463 13 Whitlock testified credibly and without contradiction that because the swager machine on which she was then working continually broken down, she became very nervous and terminated her employment 14 Whitbeck testified -,iithout contradiction that she had never previously reported to work late 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butts testified that Whitbeck was discharged because her production for several weeks prior to her discharge was way below par, and further because she was disturbing other employees while they were supposed to be working, by talking to them. Butts admitted that the only occasion upon which he had to check Whitbeck's work, during her entire period of employment with the Respondent, was after the work stoppage in the plant on February 18. He also testified that after the work stoppage he talked with Vats Loan about Whitbeck, and that Van Loan told him that Whitbeck was leaving her machine and going around talking to other girls. Butts admitted that he had never before received such a report regarding Whitbeck, from Van Loan or any other supervisory employee. He also admitted that he had never talked with Whitbeck about her work, about absences, or about anything else pertaining to her employment prior to the time that he discharged her, nor did he request Van Loan or any other supervisor to talk with her. Whitbeck admitted that her production record for several weeks before the date of her discharge may have been lower than the average, but explained that this was due to the many jobs she was shifted to during the 6 weeks before her discharge, because the swager machine on which she regularly worked was being repaired.15 This testimony which was undenied is credited. There is no evidence in the record that Whitbeck's work record was in any manner more un- satisfactory than any of a number of other employees. In fact, Rundle acknowl- edged that during the week of February 15, there could have been 26 or 76 employees whose records had fallen below the minimum production schedule. It is significant, as Rundle testified, that the decision to discharge Whitbeck was made on the night of February 18, and her pay check was made out the following morning, several hours before she was to report for work. It is also significant that when Whitbeck reported for work at 4: 15 p. in., on February 19, her time card was missing and Butts and Rundle told her they had her pay check. It was not until later, after Butts and Rundle had gone out of the plant and returned in about 20 minutes, that she was told, ". . . because you haven't been making your piece work," she was fired. In the opinion of the undersigned, Butts' reason for discharging Whitbeck was merely an afterthought, and he so finds. It is clear from the testimony of Butts and Rundle that to all practical pur- poses Whitbeck had already been discharged by the Respondent before she had arrived at the plant on February 19. Nothing remained to be done but to notify her formally of the existence of an accomplished fact. It is evident that the reason for Whitbeck's discharge was her relationship to Mary Theall. Her sepa- ration merely implemented Theall's discharge. It was thus a reprisal for Theall's concerted activity and an interference with the right of self-organization and a deterrent to membership in a labor organization 16 The undersigned therefore finds that Marjorie Whitbeck (Edick) was dis- charged on February 19, 1947, because of the concerted activities of Mary Theall and that the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, dis- criminated in the tenure of her employment, and discouraged membership in labor organizations 17 15 Whitbeck also testified without contradiction that practically all jobs to which she was assigned while the swager machine was being repaired, were jobs on which she had never worked before 16 See Matter of Memplos Furniture Mfg Co , 3 N L. R B 26 at 33, enfd. 96 F. (2d) 1018 (C A. 6) cert denied 305 U S. 627 17 See Matter of Texas Textile Mills, 58 N L R B. 352 ROME SPECIALTY CO., INC. C. Other alleged interference, restraint and coercion 69, The complaint alleges that Respondent by its officers, agents, and supervisory employees from on or about February 1, 1947, to date, interrogated its employees concerning their concerted activities ; threatened and warned its employees to- refrain from engaging in concerted activities ; threatened and warned its em- ployees not to become affiliated with labor unions or any other organizations designed for the purposes of collective bargaining in regards to wages, hours and working conditions ; and threatened its employees with discharge or other dis- ciplinary action if they engaged in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection. Thus, the General Counsel adduced testimony from Theall that on the Saturday after the pay-raise petition- ,was submitted to the Respondent, Helen Miller told Theall that Butts did not want a union in the plant and would fire anybody caught trying to bring the union in or talking union to the employees. Theall also testified that during the period when the work stoppage was in effect she and Sobik were talking with Miller about a union coming into the plant, and Miller said she thought Butts- would close the plant if a union came in. It is the Respondent's contention raised at the hearing that Miller was a strawboss and not a supervisor within the definition of the Act 1B The Respond- ent admitted that among Miller's duties were the assignment of employees to their jobs, instructing employees in their jobs, and the weighing of employees' work to determine the amount of piecework they produced in any one day. Mil- ler, in addition to these duties, regularly worked on production, and was paid one an hourly basis. The record is barren of any evidence that Miller had the right to hire, fire, or discipline employees or that she could even recommend that em- ployees be hired, fired, or disciplined. It appears to the undersigned that Miller was used mainly as a means of conveying information and instructions between Butts and Rundle and the employees, and was not clothed with the commonly .known duties of supervisors. In the undersigned's opinion the General Counsel has failed to establish that Miller was a supervisor within the meaning of the Act, and he so finds. Furthermore, the record fails to establish that the Respond- ent had inspired or instigated the anti-union statements made by Miller to Theall and Sobik, nor did the Respondent ratify them. In addition, it is the undersigned's opinion that the General Counsel failed to prove by substantial evi- dence that when Miller told Theall and Sobik that she thought Butts would close the plant if a union came in, she was not considered to be representing management. This becomes more evident when it is considered that the record. reveals that Miller could not and did not act on employees' requests to her, such as for a pay raise, to leave the plant before the end of the regular shift, or to work overtime, until she cleared with either Butts or Rundle. Under the cir- cumstances, and upon the record as a whole, the undersigned finds that the Respondent is not chargeable for Miller's statements to Theall and Sobik. It wily accordingly be recommended that the said allegation of the complaint be, dismissed. ie Supervisor is defined in the Act Section 2 (11) as follows : "The term 'supervisor' means any individual having authority in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to'direct them, or to adjust their grievances, or effectively to recommend, such action, if in connection with the foregoing the exercise of such authority is not of at merely routine or clerical nature, but requires the use of independent judgment." 853390-50-vol 84-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section II, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. IV. THE REMEDY - Having found that the Respondent has engaged in certain unfair labor prac- tices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the Respondent discriminated in regard to the hire and tenure of employment of Mary Theall and Marjorie Whitbeck (Edick). The undersigned will therefore recommend that the Respondent offer each im- mediate and full reinstatement to her former or substantially equivalent posi- tion 19 without prejudice to her seniority or other rights and privileges and make each whole for any loss of pay she may have suffered by reason of such discrimi- nation by payment to each of a sum of money equal to that which each would have earned as wages from the date of her discriminatory discharge to the date ,of the offer of reinstatement less her net earnings 20 during such period. These violations as set forth above clearly indicate that the Respondent's purpose was to defeat the exercise by employees of their rights to self-organiza- tion. Because of the Respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persua- sively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the Respondent's con- duct in the past?' The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, the under- signed will recommend that the Respondent cease and desist from in any manner infringing on the rights guaranteed in Section 7 of the Act. 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. By discriminating in regard to the hire and tenure of employment of Mary Theall and Marjorie Whitbeck (Edick) thereby discouraging the formation of and membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, as reenacted in Section 8 (a) (3) of the Act, as amended. 10 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, but if such position is no longer in existence then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 N L R B 827 20 See Matter of Crossett Lumber Company, 8 N L R B 440, 492-498. 21 See N L R. B. v. Express Publishing Company, 312 U S 426, May Department Stores Co. v. N. L. It. B., 326 U S. 376. ROME SPECIALTY CO., INC. 71 2. By said acts, the Respondent has interfered with, restrained , and coerced Its employees in the exercise of -the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act, as reenacted in Section 8 (a) (1) of the Act, as amended. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. 4. The Respondent has not committed unfair labor practices by interrogating its employees concerning their concerted activities ; by threatening and warning its employees to refrain from engaging in concerted activities ; by threatening and warning its employees not to become affiliated with labor unions or any other organization designed for the purposes of collective bargaining in regard to wages, hours, and working conditions ; and by threatening its employees with discharge or other disciplinary action if they engaged in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Rome Specialty Co., Inc., Rome, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees by discharging or in any other manner discriminating in regard to the hire or tenure of employment of its employees or any term or condition of their employment ; (b) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the right to self-organization , to join or form labor organizations , to bargain collectively through representatives of their own choos- ing and to engage in concerted activities for the purposes 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 undersigned finds will effectuate the policies of the Act : (a) Offer Mary Theall and Marjorie Whitbeek (Edick) immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make each of them whole for any loss of pay each may have suffered by reason of discrimina- tion against them by payment to each of them of a sum of money equal to the amount determined in the manner set forth in the section entitled "The remedy," above; (b) Post immediately at its plant in Rome, New York, copies of the notice at- tached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Third Region, shall , after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps ,the Respondent has taken to comply herewith. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that the complaint be dismissed, insofar as it alleges that the Respondent committed unfair labor practices by interrogating its em- ployees concerning their concerted activities; by threatening and warning its employees to refrain from engaging in concerted activities ; by threatening and warning its employees not to become affiliated with labor unions or any other organization designed for the purposes of collective bargaining in regard to wages, hours, and working conditions ; and by threatening its employees with discharge or other disciplinary action if they engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection. It is further recommended that, unless the Respondent shall within ten (10) days from the receipt of this Intermediate Report notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, 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 Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies on, 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. 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. 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 Sec- tion 203.46, 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and rec- ommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. SIDNEY LINDNER, Trial Examiner. Dated June 25, 1948. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ROME SPECIALTY CO., INC. 73 activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full re- instatement 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 dis- crimination. Mary Theall Marjorie Whitbeck (Edick) All our employees are free to become or remain members of any labor organl• zation of their own choosing. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any labor organization, or because he has engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. ROME SPECIALTY Co., INC., Employer. Dated-------------------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.