Stocker Manufacturing Co.

In the Matter Of STOCKER MANUFACTURING COMPANY and AMERICAN FEDERATION OF LABOR Case No. 4-CA-141.-Decided October 21,1949 DECISION AND ORDER On June 21, 1949, Trial Examiner C. W. Whittemore 1 issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and 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, and a supporting brief. The Board 2 has considered the rulings of Trial Examiner Donovan at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,' the exceptions and supporting brief filed by the Respondent, and the entire record' in the case, and hereby adopts the findings, conclusions, and recommendations of Trial Examiner Whit- temore, with the following modifications and additions : 1. We agree with Trial Examiner Whittemore's finding that Super intendent Modick's quoted remarks to the assembled employees on September 17 constituted implied promises of benefit to the employees 1 As Trial Examiner Donovan, who had died in the interim , was not available to prepare the Intermediate Report herein , we find without merit the Respondent's exception to the preparation of the Intermediate Report by Trial Examiner Whittemore. Administrative Procedure Act, Section 5 (c), 5 U. S. C. Sec. 1004 ( c). See N. L. R. B. v. Dixie Shirt Com- pany Inc., 176 F. 2d 969 (C. A. 4) ; Matter of National Electric Products Corporation, 80 N. L. R. B. 995. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Houston and Gray]. • The Respondent excepts to the consideration as evidence by Trial Examiner Whitte- mote of certain testimony adduced by the General Counsel pursuant to an offer of proof, which testimony and offer were rejected by Trial Examiner Donovan. As it does not appear that Trial Examiner Whittemore considered such testimony in the preparation of his Intermediate Report, we find this exception to be without merit. In any event , we have not considered the rejected testimony in making our findings in this case. A As the record and the Respondent's exceptions and brief fully present the issues involved herein, the Respondent's request for oral argument is hereby denied. 86 N. L. R. B., No. 96. 666 STOCKER MANUFACTURING COMPANY 667 if they refrained from protected concerted activities, and implied threats of reprisal if they continued such activities. 2. We agree with Trial Examiner Whittemore that the poll of September 17 and the subsequent solicitation of signatures violated the Act.S As the Board recently stated:' .. , interrogation of employees as to union matters constitutes, at the very least, interference with the rights protected by Section 7. Whenever an employer directly or indirectly attempts to secure information concerning the manner in which or the extent to which his employees have chosen to engage in union organiza- tion or other concerted activity, he invades an area guaranteed to be exclusively the business and concern of his employees. This Board, with the approval of the courts, has long recognized this right to privacy in condemning as. unlawful interference such indirect attempts by an employer to secure information about the union activities of employees as resort to espionage or surveillance. When espionage is successfully concealed, "restraint" and "coercion" may perhaps be absent, but conduct is nevertheless vulnerable on the ground of "interference", if on no other. So it is in the case of interrogation. The employer may not legally seek information on those subjects which the statute makes the sole concern of his employees.' For the same reasons, the poll of September 17, although by secret ballot, constituted an unlawful infringement upon the statutory rights of the Respondent's employees 8 Moreover, the subsequent solicita- tion of signatures, by means of which Modick attempted to secure from the individual employees, identifiable information as to their choice of a bargaining representative constitutes a violation of Section 8 (a) (1) of the Act.9 3. Although we agree with Trial Examiner Whittemore that Whelan's discharge violated Section 8 (a) (1) and (3) of the Act, we do not agree that it also violated Section 8 (a) (4). Except for Whelan's reporting of the testimony given by Budd at the hearing on challenged ballots, the record is devoid of evidence that Whelan's dis- a Although we agree with the Trial Examiner that the Brown-Brockmeyer case cited by the Respondent is not in point , we do not find it necessary to rely on the case cited by Trial Examiner Whittemore in support of this finding. e Matter of Standard-Coosa-Thatcher Company, 85 N. L. R. B. 1358, issued September 19,, 1949. 7Footnotes in original omitted. 8 See also, Matter of Granite State Machine Company, Inc ., 80 N. L. R. B. 79 ; Matter of Ames Spot Welder Co., Inc., 75 N. L. R. B. 352; Matter of Van De Kamp's Holland-Dutch Bakers, Inc., 56 N. L. R. B. 694; enf. 152 F. 2d 818 (C. A. 9). . e Matter of Standard-Coosa-Thatcher Company, supra.. See also, Matter of Harris- Woodson Co., Inc., 70 N. L. R. B. 956; Matter of Trans -Oil, Inc., 86 N. L. R. B. 136. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge was motivated by any activities of Whelan related to the filing of charges or the giving of testimony under the Act. 'And as this one aspect of the Respondent's motivation related to the reporting of testi- mony given by another,"' and not to the testimony given by Whelan himself, it does not come within the purview of Section 8 (a) (4). Accordingly, we shall dismiss the allegations of the complaint that the Respondent, by discharging Whelan, violated Section 8 (a) '(4) of the Act.1' ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Stocker Manu- facturing Company, Netcong, New Jersey, and its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by dis- criminating 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 rights to self-organization, to form labor organizations, to join or assist Ameri- can Federation of Labor 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, or to refrain 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 condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 10 We find that, under the circumstances of this case, Whelan , in reporting Budd's testi- mony, was engaging in protected activity under Section 7 of the Act. n This does not affect the provisions of the order requiring reinstatement and back pay. The Respondent excepts to the back-pay provisions of the recommended order, on the grounds that Whelan did not make a sincere effort to obtain other employment , that Whelan was unable to perform his duties during at least a portion of the period in issue, and that consideration should be given to any sums which Whelan may be entitled to receive as compensation for an alleged injury suffered during the course of his employment at the Respondent's plant . As these matters were not litigated at the hearing, and as the parties may be able amicably to adjust the amount of back pay due Whelan , we shall not consider this exception at this time. This ruling is, however, without prejudice to the Respondent's right, in the event that the amount of back pay is not amicably adjusted , to apply for leave to-adduce additional evidence as to Whelan 's efforts to secure employment -and.hisability to perform his duties . Matter of The Cuff man Lumber Company, Inc., 82 N. L. R. B. 296. STOCKER MANUFACTURING COMPANY 669 (a) Offer to William Whelan immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstate- ment, less his net earnings 12 during said period; (b) Post at its plant in Netcong, New Jersey, copies of the notice attached hereto and marked Appendix A.13 Copies of said notice, to be furnished by the Regional Director for the Fourth 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, 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 Fourth Region in writing, within ten (10) days from the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FTEREBY FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated Section 8 (a) (4) of the Act, 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 AMERICAN FEDERATION OF LABOR or any other labor organization of our employees, by discharging, laying off, or refusing to reinstate any of our em- ployees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. By "net earnings" Is meant earnings less expenses , such as transportation , room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the Respondent, which would not have been incurred but for the unlawful dis- crimination and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work per- formed upon Federal, State , county, municipal, or other work-relief projects shall be con- sidered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 19 In the event 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." 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees concerning their union affiliation, activities, or sympathies, or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist AMERICAN FEDERA- TION OF LABOR or any other labor organization, to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose 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 membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employee named below immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. William Whelan All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard' to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. STOCKER MANUFACTURING COMPANY, 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 Mr. Julius Topol, for the General Counsel. Mr. Milford Salny, of Netcong, N. J., for the Respondent. Messrs. Joseph P. Dunn and Samuel R. Isard, for the A. F. L. STATEMENT OF THE CASE Upon charges duly filed by American Federation of Labor, herein called A. F. L., the General Counsel of the National Labor Relations Board,' by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued a complaint dated December 20, 1948, against Stocker Manufacturing Company, Netcong, New Jersey, herein called the Respondent, alleging that the Respondent 'had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (4) and Section 2 (6) and (7) 1 The representative of the General Counsel is herein referred to as General Counsel ; the National Labor Relations Board as.the Board. STOCKER MANUFACTURING COMPANY 671 of the National Labor Relations Act as amended by Public Law 101, Chap. 120, herein called the Act. Copies of the charges, the complaint, and notice of hearing were duly served upon the Respondent and A. F. L. With respect to the unfair labor practices the complaint alleged, in substance, that the Respondent: (1) in October 1948, discharged William Whelan because (a) he joined the A. F. L. and (b) he gave testimony under the Act; (2) threat- ened and questioned employees because of their union activities; (3) conducted a poll among its employees concerning their representation at a time when the Board was determining the representation question; and (4) by these acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. In its answer, duly filed, the Respondent denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held on February 1 and 2, 1949, before Charles S. Donovan, a Trial Examiner duly designated by the Chief Trial Exam- iner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues. All parties waived an opportunity to argue orally before Trial Examiner Donovan; the Respondent and General Counsel availed themselves of the opportunity to file briefs. On May 9, by order of the Chief Trial Examiner, the undersigned was des- ignated to prepare an Intermediate Report in this case, due to the death of Trial Examiner Donovan. Upon the entire record in the case, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Stocker Manufacturing Company, a New Jersey corporation, has its principal place of business in Netcong, New Jersey, where it is engaged in the manufac- ture, sale, and distribution of gummed tape and converted paper products. In the course of its business operations the Respondent annually uses raw materials valued at more than $100,000, of which more than 90 percent is trans- ported to it from States of the United States other than New Jersey. Its annual sales and distribution of finished products exceed $100,000 in value, of which more than 90 percent is shipped from its plant to and through States of the United States other than New Jersey. II. THE ORGANIZATION INVOLVED American Federation of Labor is a labor organization admitting to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and issues The Respondent's employees were not organized until 1947. In that year the Respondent entered into a contract with the United Mine Workers, District 50. The contract expired about September 17, 1948. About a month before expiration of the contract A. F. L. sought membership among the employees. On August 23 it filed a petition with the Board for "Cer- tification of Representatives." On September 17 Superintendent Modick as- 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sembled the employees and caused them to vote as to their union preference. Modick's conduct on this occasion is in issue. The Board conducted an election among the Respondent's employees on October 1. The Tally of Ballots showed 35 in favor of A. F. L., 34 opposed, and 3 challenged ballots. Employee William Whelan served as A. F. L.'s observer at the election. To determine the merit of the three challenges, made by Whelan, the Regional Director held a conference on October 20 with representatives of the parties. Whelan was present, and testified in support of his challenges. A few days after the meeting at the Regional Office of the Board, Whelan was discharged by Carl MacLeod, assistant superintendent. Whelan's dis- charge is in issue. B. The Respondent's polls of September 17 and 19 The credible testimony of several witnesses, including Superintendent Modick, is in substantial agreement, and it is found, that during working hours on September 17 Modick: (1) assembled the employees in the plant; (2) referred, at least by clear implication, to the fact that on that day the contract with District 50 expired, and said that the employees had let "everything they had in their hands slide out" ; z (3) declared that apparently they had agreed to disagree, some wanting one union and some another; (4) said that he dared not ask Stocker for raises because the latter had said that the men did not know what they wanted; (5) announced that if any employee was dissatisfied "he would give them the ticket to go on," and that he had Stocker's permission to shut the plant down and start "from the bottom" ; and (6) then told the men to cast ballots to indicate whether they wanted "District 50, the A. F. of L., or nt. union at all."' Upon his instructions the men cast ballots. Whelan voiced vigorous protest because some of them put two or three ballots into the box. Modick yielded to the protest, and another vote was taken. The evidence is in dispute as to whether the second vote was counted ; the point is immaterial. Whether actually counted or not, Modick called President Stocker to the meeting, who then told the employees that now that they had decided not to have any union, they could return to "the same old basis of giving bonuses and turkeys," and that raises which the "union" had been preventing could now be given.' Two or three days later, according to his own testimony, Modick went to each employee, with three or four exceptions, with the employee's pay envelope, and asked him to sign his name under one or the other of the following questions : "I do want an election for A. F. of L.," and "I don't want an election for A. F. of L." As a witness Modick claimed, and in his brief counsel for the Respondent urged, that the superintendent called the meeting of employees on September 17 and conducted a poll because he was, in his words, "faced with a definite slow down, a definite problem of poor material" and because he believed the "slow down" was caused by the fact that the men did not know "whether they wanted a union or whether they did not want a union." Modick's testimony is confused and self-contradictory as to why he polled the employees with their pay envelopes. On direct examination he testified that his purpose was "to help myself in determining whether we could not get a speedier 2 The quotation is from employee Ferrell 's testimony. 8 These quotations are also from Ferrell's testimony. 4 The quotation is from employee Kunkel's testimony. STOCKER MANUFACTURING COMPANY 673 election: In other words, what I wanted, I wanted to get this ; if the men felt they wanted an election, I wanted it over with and wanted it over with in a hurry." On cross-examination he flatly denied having given the above-quoted testimony, and claimed that he took the poll as a means of "improving the quality of materials and production." The difficulty of attaching credence to Modick's claimed reason for polling the employees on either occasion is increased by the fact that much of his other testimony is also confused and self-contradictory. Although testifying that he asked employees on September 17 to indicate on their ballot whether or not they wanted the A. F. L. to represent them, he denied knowing that the A. F. L. was organizing in the plant. He claimed that it was not until after the September 17 meeting that Stocker told him of the A. F. L.'s interest. If Modick's claim is believed, there is no reasonable explanation for his having placed the A. F. L. on the September 17 ballot. Furthermore, Stocker testified that lie told Modick of A. F. L.'s interest in August, and instructed the superintendent to "get to the bottom of it." No documentary evidence was offered to support the claim that either the quan- tity or quality of production was "down" on September 1.7. Under the circum- stances, particularly Modick's contradictory testimony, the undersigned cannot accept as accurate his claim of purpose for this conduct. Counsel for the Respondent cites Brown -Brockineyer (143 F. 2d 537) to support his contention that polls of this nature are not violative of the Act. That case is not at point. In the cited instance a poll was taken to discover the attitude of employees upon matters not covered by a contract between the employer and a union. Here the vote was taken by the employer with the avowed purpose of determining each employee's desire as to being represented by one union or another, or by none. Such conduct has previously been found by the Board to be violative of the Act. In Maurice Eanet and Ben Rich, (74 N. L. R. B. 809) the Board said : Such an employer-directed poll of the employees' choice of representative is in itself an illegal interference by the Employer in what is exclusively a concern of the employees. It is coercive because it requires the individual employee to declare himself and thus risk exposure to employer reprisal. It is therefore concluded and found that by Modick's quotel remarks to and polling of the employees on September 17, by ballot, and by his solicitation of their signatures upon pay envelopes 2 days later, the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. It is also concluded and found that Stocker's remarks to the assembled em- ployees on September 17, under'the circumstances described, constituted clear promises of benefit if the employees would vote against the A. F. L. The remarks preceded, by 2 days, Modick's second poll of the employees, and by about 2 weeks the election conducted by the Board. Such promises of benefit are not privileged under Section S (c) of the Act, but constitute interference, restraint, and coercion. C. The discharge of William Whelan 1. Events leading up to the discharge William Whelan had been working for the Respondent about a year when lie was discharged October 29, 1948. He was a member of the District 50 negotiat- ing committee in August, before the filing of the A. F. L. petition. Sometime 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in mid-September Whelan asked Modick for a raise. Modick discouraged the request, saying that the "big boss" was on the warpath because of A. F. L. activity, and suggesting that Whelan go in and finish negotiations with Stocker, since he liked District 50. Modick further said that District 50 was then "at the top," and asked Whelan why the men wanted to "start all over again at the bottom with the A. F. of L." At about the same time Stocker came to Whelan and said that he had heard he was "bringing the A. F. of L. in." When the employee claimed that about 92 percent of the men had signed AFL cards, Stocker said that if the A. F. L. came in, he would meet his "competitor's" demands and nothing else. From the foregoing findings, based upon the employee's uncontradicted testi- mony, it is clear that both Modick and Stocker considered Whelan to be active in the A. F. L. organization, endeavored to persuade him to revive the District 50 negotiations, and expressed preference for dealing with the latter organization. According to the testimony of Assistant Superintendent MacLeod, Whelan "ob- jected to the ballot in general" on September 17, when Modick polled the employees as described above. At the Board election, held on October 1, Whelan served as the only A. F. L. observer. He challenged three ballots because he considered them to have been cast by supervisors. On about October 20 a hearing was held at the Regional Office of the Board as to the exact duties and authority of the three individuals casting the challenged votes. Whelan testified on this occasion as to his reasons for challenging the ballots. At the same investigation John Budd, in charge of the shipping and receiving department, gave information as to the authority of the three voters, stating that they had no "particular authority" granted them by the company, but had been "designated" by him to "kind of help him out" because the "employees generally" were "more or less illiterate." After the conference at the Regional Office Whelan told some of the other employees of Budd's comments as to their literacy. Modick and MacLeod called Whelan to the office and reprimanded him for repeating what Budd had said, in- sisting that what had been said at the Board conference was "confidential." Whelan pointed out that he had not considered the matter confidential. Modick then told Whelan that they would let "bygones be bygones" ; MacLeod warned him to pay attention to business and stop interfering with other workers; and the employee was permitted to return to work. A few days later, on October 28, an incident occurred which served the Re- spondent as a claimed basis for Whelan's discharge. Whelan was working as a helper for a machine operator, much of his time being spent at a table. Work- ing at the next table was a helper by the name of Bisbane. Sometime during the day of October 28 Eisbane came to Whelan's table to borrow a broom to sweep up around the machine where he worked. Whelan reached for the broom, told Bisbane to take it easy since he had a stiff neck, and that he would do the sweeping later. A little later the operator for whom Bisbane was a helper returned to his machine, having been away from it at the time of the above in- cident, and inquired as to why Bisbane had not swept. Upon learning from Bis- bane that Whelan had advised him not to, the operator reported the matter to MacLeod. In the meantime Bisbane returned to Whelan's table, obtained the broom, and swept around the machine. The next morning MacLeod called Whelan to his office, discharged him, and asked if he would deny that he had taken the broom from Bisbane. Whelan re- plied that he would deny nothing. MacLeod then asked if Whelan would deny having told a specific employee about Budd's remarks at the Board conference. STOCKER MANUFACTURING COMPANY 675 Whelan said he would not deny it, and asked if he was being let go on this "flimsy charge." MacLeod answered that this was the reason. Whelan went to Modick, who refused to intercede. The employee went to Stocker, and protested against being let go on the "flimsy charge." Stocker poked the employee in the chest with his finger, accused him of trying to get the employees to join the A. F. L., asked why they had not kept District 50 in the plant, and refused to countermand the discharge. A few days later Whelan was given a "Notice of Separation," upon which the reason for the action was noted as "Laid off for agitation among workers in the plant." 2. The Respondent's contentions as to Whelan's discharge The testimony of MacLeod, Modick, and Stocker about the discharge events is so confused, inconsistent, and in many respects contradictory, that a coherent sum- niary is difficult if not impossible to present. In his brief, counsel for the Respondent urges that Whelan was discharged "to restore order and peace in the factory," and lists as reasons for the action, given by MacLeod in his testimony, the following items of conduct on the part of Whelan : a. shouting around the plant b, absence from his work c. "spreading" the "Budd" remarks d. the broom incident Although MacLeod testified in expansive generalities about the "several times" he had warned Whelan for uttering "a hoot or a whoop" in the "pretty large" plant, and for departing from a "certain defined path from his table to the store- room" he was supposed to follow in carrying out his duties, at no point in his tes- timony did the assistant superintendent contend that these alleged derelictions, singly or collectively, were the actual factors considered by him in determining to discharge Whelan. He did testify to the effect that before dismissing the employee he told Stocker about Whelan's "hollering" and "coasting around" and about the "broom incident," and asked Stocker if "all these reasons were sufficient" for firing. The general untrustworthiness of MacLeod's testimony is so marked by the record, however, as to provide thin ground for a finding that he actually con- sulted Stocker before the discharge. It was not until the second day of his testify- ing, on redirect examination, that MacLeod made mention of his first bringing this matter before Stocker. On the first day of his testimony MacLeod said that after being informed of the "broom incident" he "went and got" Whelan, told him to "pick up his pay in the office," and leave the plant. Further doubt upon the accuracy of MacLeod's recollection is cast by his inconsistent account of how Whelan received his pay. He testified both that : (1) he told the employee to pick up his pay "at the office," and (2) he took the check from his own shirt pocket and gave it to Whelan. Even if MacLeod's testimony be believed-to the effect that he consulted Stocker, and asked him if "all these reasons were sufficient" for firing, the actual cause of or motive for the discharge would not thereby be established. As Dr. Wertham, famed psychiatrist, has said : 5 Nor does MacLeod's testimony on this point find other than questionable support In that of Stocker, who candidly admitted having a faulty memory. Stocker, testifying after MacLeod, repeated in substance what the assistant superintendent had said about the predisccharge conference, but insisted that it occurred ova the same day that Whelan was given his "separation" slip. A certified copy of that notice, in evidence, establishes that it was not made out until November 2. 676 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reason is the conscious explanation a man makes for himself or an outsider makes for him before, during, and after a deed. Motive is the real driving force which is at least partly unconscious and which can be understood only as part of a continuing and developing process e Furthermore, the likelihood that the "shouting" or "wandering" incidents served as anything more than pretexts consciously selected is dissipated by MacLeod's testimony that all of them occurred before the Board election, and that the last occasion he could recall was 6 months before the end of the "contract," which expired on September 17. The broom incident was plainly trivial. The testimony of Whelan is un- disputed that the broom involved was at Whelan's machine, and that at most there was no more than a few minutes' delay in Bisbane' s carrying out nis instructions to sweep. No production was interrupted ; the machine where Bisbane worked as a helper was apparently idle, since the operator had gone for a machinist to fix it. Whelan's effort to help out a fellow-employee who had a stiff neck neither was intended to, nor in fact did, interfere with production. As to Whelan's reporting to his fellow-employees the uncomplimentar y remarks made by Budd at the Board conference, the testimony of both MacLeod and Modick is to the effect that he was reprimanded for this a week before the dis- charge and after the reprimand was sent back to his work. There is no evidence that management had reason to complain of Whelan on this point after the reprimand. The extravagant but incredible magnification of Whelan's minor misdeeds is demonstrated by MacLeod's testimony : I felt that he was directly responsible for the slow down by his shouting and wandering around, that those things all break down the discipline in the plant, many boys think they are there for a vacation if the people continue to get away for-with that. when such testimony is appraised in the light-of his other admissions that the last of such incidents had occurred 71/2 months before his discharge. The undersigned concludes and finds that there is no merit in the Respondent's contentions as to Whelan's discharge. 3. Conclusions as to Whelan's discharge The undersigned is convinced by the preponderance of credible evidence that Whelan was discriminatorily discharged because of his activities on behalf of the A. F. L., including his participation in and reporting to employees about the Board post-election conference. By thus discharging Whelan, the Respondent has interfered with, restrained, 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, 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 obstructing commerce and the free flow of commerce. 6 "The Show of Violence," Doubleday & Company, 1949. STOCKER MANUFACTURING COMPANY 677' V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom. and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged William. Whelan because of his activity on behalf of the A. F. L. and because he gave: testimony under the Act. It will therefore be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equiv- alent position,' without prejudice to his seniority or other rights and privileges,. and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to 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, the undersigned makes the following : CONCLUSIONS OF LAW 1. American Federation of Labor 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 Whelan, thereby discouraging membership in the American Federation of Labor, 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 discriminating in regard to the hire and tenure of employment of William Whelan because he gave testimony under the Act the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act. 4. 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. 5. 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 entire record, upon the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the amended Act, the undersigned recommends that Stocker Manufacturing Company, Netcong, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or in any other labor organization of its employees, by discriminatorily discharging, refusing to reinstate, or by discriminating in regard to their hire or tenure of employment, or any term or condition of employment; 7 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 position." See Matter of The Chase National Bank o f the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 867351-50-vol. 86-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discharging any of its employees because they give testimony under the Act ; (c) Interrogating its employees concerning their union affiliations, activities, or sympathies, or in any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist American Federation of Labor, 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 by Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to William Whelan immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or" other rights and privileges, and make him whole in the manner set forth in Section 1 7, above, entitled "The remedy" ; (b) Post at its plant in Netcong, New Jersey, copies of the notice attached hereto and marked Appendix. Copies of said notice, to be furnished by the Regional Director for the Fourth 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, including all places where notices to employees are custom- arily 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 Fourth Region in writing, within twenty (20) days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. It is further recommended that, unless the Respondent shall, within twenty (20) days from the receipt of this Intermediate Report, notify said Regional Direc- tor 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, 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 filed with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (in- cluding 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. 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 desire permission to argue orally before the Board, request therefor must be made in writing to the Board STOCKER MANUFACTURING COMPANY 679 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 thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 21st day of June 1949. 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 em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. WE WILL OFFER to the employee named below immediate and full rein- statement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. William Whelan All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in 'regard to hire or tenure of employment or any term or condition of employment against any employeee because of membership in or activity on behalf of any such labor organization, or because he gave testimony under the Act. STOCKER MANUFACTURING COMPANY, Employer. Dated ---------------- By ------------------------------ (Representative ) (Title) NoTE: Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.