Olin Industries, Inc.

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Election. OLIN INDUSTRIES , INC., WINCHESTER REPEATING ARMS IOJIPANY DIVISION and THE WINCHESTER CLUB, INC. and AMERICAN FEDERATION OF LABOR. Case No. 1-CA-436. November 29, 1951 Decision and Order On May 29, 1951, Trial Examiner George Bokat issued b is Inter- mediate Report in the above-entitled proceeding, finding that the Respondent, Olin Industries, Inc., Winchester Repeating Arms Com- pany Division, hereinafter called Olin Industries, had engaged 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. Ile also found that the Respondent, The Winchester Club, Inc., had not been timely served with a copy of the charge as required by Section 10 (b) of the Act, and therefore recommended that the complaint, with respect to it, be dismissed. Thereafter, Olin Industries filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings and recommendations of the Trial Examiner, with the following exceptions, additions, and modifications. The initial charge in this case naming Olin Industries was filed and served on May 16, 1949. Because of the limitation period in Sec- tion 10 (b) of the Act,' the complaint which might issue based upon The relevant portion of Section 10 (b) reads Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made 97 NLRB No. 26. OLIN INDUSTRIES, INC. 131 this charge could allege as unfair labor practices any activities of Olin Industries occurring not more than 6 months prior to May 16, 1949.2 However, on September 17, 1949, with the approval of the Regional Director, this charge was withdrawn; it was later reinstated by the Regional Director at the request of the charging party on October 11, 1949. The issue presented by these events is whether in view of the withdrawal of the charge, the reinstatement of the charge related back to the date the charge was originally filed and served, for purposes of computing the Section 10 (b) limitation period. If not, the discrimination pertaining to McManus, who was discharged on April 5, 1949, was improperly alleged in the complaint. The Trial Examiner found that the charge was mistakenly with- drawn by the charging party, and further that its reinstatement removed any infirmity caused by the withdrawal; he therefore used the date of filing and service of the original charge for computing the 6-month limitation period. We disagree. The Trial Examiner found that Miss Gillis, an AFL organizer, signed the request for withdrawal of the charge in the mistaken belief that she was signing an acknowledgment of a dismissal notice. In making this determination, the Trial Examiner credited the testimony of Miss Gillis that she signed the "Withdrawal Request" form without reading it and in the belief that it was an acknowledgment of a dis- missal. We believe that a substantial preponderance of the evidence in the record supports a reversal of this finding. The transcript reveals that Miss Gillis was a literate, intelligent person with 6 years' experience as an organizer for the AFL and that she was in charge of. the organizational campaign at Olin Industries. The NLRB "Withdrawal Request" form 3 which she signed is 8" x 5", contains very little printed matter, and the words "WITHDRAWAL REQUEST" appear at the top center in the largest and boldest type on the form. We do not believe that a person with Miss Gillis' back- ground who was deemed responsible enough by the AFL to conduct an important organizational campaign can reasonably be expected to have signed and returned a legal form sent to her by a Government agency without noticing the words "Withdrawal Request" in bold type at the top. Furthermore the Regional Director, immediately after the signed "Withdrawal Request" was received by him on September 7, 1949, allowed the withdrawal and mailed written notifications of the with- drawal to "The American Federation of Labor, 11 Beacon Street, Boston, Massachusetts, Attention: Michael J. Walsh, Regional Di- 2 Cathey Lumber Company, 86 NLRB 157, enfd 185 F. 2d 1021 ( C A 5), vacated on other grounds 189 F. 2d 428 (C. A. 5). 1 NLRB Form No. 601. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector," as well as to "American Federation of Labor, Labor Temple, 137 Goffe St., New Haven, Connecticut, Attention : C. Josephine Gillis, Organizer." Although Miss Gillis, who left New Haven before this notice was mailed, left a forwarding address, she testified that she never received a notice. However, the copy mailed to Walsh must be presumed to have been received by him in the absence of any denial of receipt in the record. Walsh was no stranger to the case. Indeed, - he had instructed Miss Gillis not to withdraw the charge sometime before she signed the "Withdrawal Request." Under these circum- stances we find it difficult to believe that, if the withdrawal of the charge had not been intentional, Walsh would have waited until De- cember 11, 1949, more than a month after the notification of with- drawal was mailed to him, before requesting reinstatement of the charge. For the foregoing reasons, we find that the charge in this case was not mistakenly withdrawn on September 7, 1949. Having -so found, we need not consider, as did the Trial Examiner in applying the rule of the Bentley Lumber case,4 the effect, if any, of a mistaken witliin- drawal on the Section 10 (b) issue. The Board has held that the proviso to Section 10 (b) enacts a 6-month statute of limitation.-5 In each case, the 6-month period is determined by the date of filing or service of the charge, whichever is the later. Thus a day 6 months earlier becomes the cutoff date and activities occurring before such date may not be alleged as unfair labor practices, and-what is important in this case-liability for those same activities is thereby terminated. The practical effect, and doubtless the intended effects of the proviso to Section 10 (b) is that, absent the existence of a properly served charge on file, a party is assured that on any given day his liability under the Act is extin- guished for any activities occurring more than 6 months before. The charge in this case was filed and served on May 16, 1949, making the Respondent liable for its activities occurring after November 16, 1948, but freeing the Respondent of liability for acts preceding that date. While this charge remained on file, November 16 remained the cutoff date. However, when on September 7, 1949, the Regional Director notified the parties that he had approved the withdrawal of the charge by the charging party, the situation changed. We believe that on that date, or on any date thereafter on which a charge was not on file, Respondent had the right under the statute to be assured AJ. A. Bentley Lumber Co., 83 NLRB 803, enf. 180 F. 2d 727 ( C. A. 5), where , through the error of a Board agent, the relevant charge was mistakenly withdrawn. We note that even assuming a mistaken withdrawal in the instant case, the Bentley case would not necessarily control, because here the mistake was that of a party. Cat hey Lumber Company, Supra. - I bid. OLIN INDUSTRIES, INC. 133 that it would not be held liable for activities occurring more than 6 months ago. Hence, when, on October 5, 1949, no charge was on file, the Respondent's liability for McManus' discharge, 6 months earlier, was extinguished by operation of law. To permit the October 17 reinstatement of the charge to revive that liability would amount to circumvention of the proviso to Section 10 (b). Accordingly, we shall dismiss the complaint insofar as it alleges the discriminatory discharge of McManus.' We perceive no defect in the complaint insofar as it alleges dis- crimination with respect to Short. The time limitation requirements of the proviso to Section 10 (b) are met by treating either the rein- statement of the charge on October 14, 1949,$ or the amended charge of January 5, 1950, as tantamount to a new charge, either date being within 6 months of August 13, 1949, the date on which the discrimina- tion involving Short occurred. For this reason, we find that the Trial Examiner properly considered the termination of Short's em- employment on its merits 9 and we adopt his findings and recommendations. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent Olin Industries, Inc., Win- chester Repeating Arms Company Division, New Haven, Connecti- cut, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the American Federation of Labor, by discriminatorily discharging any of its employees, or by discriminatorily causing such unbearable working conditions as to force any of its employees to quit, or by discriminating in any other manner in regard to their hire and tenure of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist 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, or to refrain from any or all such activities except ' Member Houston would affirm the Trial Examiner's finding that the withdrawal was mistakenly requested and that the discriminatory discharge of McManus was properly alleged in the complaint. He would therefore consider that allegation on its merits. "All the parties were notified by the Regional Director of the `reinstatement in a letter dated October 14, 1949. 9 Member Houston would find that the allegation with respect to Short's discrimination was properly included in the complaint on the basis of the original charge. See footnote 7, eupra. 986209-52-vol. 97-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, and as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer George Short immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or any other rights and privileges. (b) Make whole George Short in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered by reason of Respondent Olin Industries' discrimination against him. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, time cards, personnel records and reports, and all other records neces- sary to analyze the amounts of back pay and the right of reinstate- ment under the terms of this Order. (d) Post at its plant at New Haven, Connecticut, copies of the notice attached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent Olin Industries or its repre- sentative, be posted by Respondent Olin Industries 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 Respondent Olin Industries to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order, what steps Respond- ent Olin Industries has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleged that Respondent Olin Industries engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act by its discharge of McManus, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, insofar as it per- tains to the Respondent, The Winchester Club, Inc., be, and it hereby is, dismissed. MEMBER REYNOLDS took no part in the consideration of the above Decision and Order. 10 In the event that this Order is enforced by a 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." OLIN INDUSTRIES, INC. 135 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 of our employees in the AMERICAN FEDERATION OF LABOR, or in any other labor organiza- tion, by discriminating in regard to their hire and tenure of em- ployment, or by discriminatorily causing such unbearable working conditions as to force any of our employees to quit, or in any other manner discriminating in regard to any other terms or conditions of employment. WE WILL offer George Short immediate and full reinstatement to his former or substantially equivalent position without preju- dice to any seniority or other rights and privileges previously enjoyed, and we will make George Short whole for any loss of pay suffered as a result of the discrimination aginst him. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist the 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, or to refrain from any or all of such activities except to the extent that such right may be permitted by the provisions of Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named union or any other labor organization except to the extent permitted by the provisions of section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employees because of membership in or activity on behalf of any such labor organization. OLIN INDUSTRIES, INC., WINCHESTER REPEATING ARMS COMPANY DIVISION, Employer. By ------------------------------------------------- Dated -------------------- (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. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report STATEMENT OF THE CASE Upon an amended charge filed by the American Federation of Labor, herein called the AFL, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued his complaint, dated July 17, 1950, against Olin Industries, Inc., Winchester Repeating Arms Company Division, herein called Respondent Olin or Olin, and The Winchester Club, Inc., herein called Respondent Club or Club, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the amended charge and the complaint were served on all the parties. With respect to the unfair labor practices, the complaint alleged in substance that Respondent Club is the agent of Respondent Olin and that as employers within the meaning of Section 2 (2) of the Act, both Respondents discharged John B. McManus in violation of Section 8 (a) (1) and (3) of the Act. The complaint further alleged that Respondent Olin discharged George Short in viola- tion of Section 8 (a) (1) and (3) of the Act. Both Respondents filed answers denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held on August 7, 8, and 9, 1950, at New Haven, Connecticut, before George Bokat, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All the parties were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. During the hearing motions were made by both Respon- dents to dismiss the complaint an the merits as well as on other grounds. Decision having been reserved on some of these motions they are disposed of in accordance with the findings and recommendations hereinafter made. Although the parties waived their right to present oral argument, all availed themselves of the oppor- tunity to file briefs with the undersigned. In addition, the Respondent Club submitted proposed findings of facts and conclusions of law. Upon the entire record in the case and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Respondent Olin, a Delaware corporation, with its principal office in East Alton, Illinois, is engaged in the city of New Haven, Connecticut, at a plant known as the Winchester Repeating Arms Company Division, the only plant here- involved, in the manufacture, sale, and distribution of firearms, flashlights and flashlight batteries, and other allied products. , In the manufacture of such products at the New Haven plant, Respondent Olin consumes raw materials in excess of $1,000,000 annually of which more than 50 percent comes from points outside the State of Connecticut. Olin's finished products exceed $1,000,000 in 'annual value, of which more than 50 percent is shipped to points outside the State of Connecticut. Olin concedes, and I find, that it is engaged in commerce within the meaning of the Act. At all times material herein, Olin, had in its employ at its New Haven plant about 5,000 employees. 'OLIN INDUSTRIES, INC. - 137 The Respondent Club, incorporated in the State of Connecticut in May 1922, is a nonprofit organization existing according to its charter "for the purpose of promoting indoor and outdoor sports, entertainment, 'social intercourse and other activities of mutual benefit to the employees of the Winchester Repeating Arms Company." The Club denies that it is engaged in commerce within the meaning of the Act or that the Board has any jurisdiction over it. The evidence shows that the -Club performs an essential service for Olin by operating the cafeteria which serves meals on the latter's premises to Olin employees . In view of this fact and the relationship of the Club to Olin as is more fully described hereinafter 1 find this contention to be without merit. II. THE LABOR ORGANIZATION INVOLVED The American Federation of Labor is a labor organization within the meaning •of the Act admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The motions to dismiss The first charge was filed on May 16, 1949, against Olin only, claiming 'discrimination as to four named employees but not including either McManus or Short, who are named in the complaint herein. On September 8, 1949, the First Regional Office of the Board received a request from C. Josephine Gillis, an AFL organizer, on a form submitted by that office to Gillis, asking withdrawal of the above charge "without prejudice." The Regional Director .thereupon advised the parties of the withdrawal of the charge without prejudice. On October 11, 1949, Michael J. Walsh, New England director for the AFL, and Gillis' superior, wrote to Bernard L. Alpert, the Board's Regional Director, informing him that "Miss Gillis . . . signed the withdrawal through error, -on the assumption she was signing an acknowledgment of a dismissal notice," and after previously having been instructed by him not to withdraw the charge.' Walsh requested that the charge be reinstated. On October 14, Alpert notified the parties "that the charge in this case is reinstated." On November 1, 1949, Alpert notified the parties that after investigation of the charge of May 16, he refused to issue a complaint. The AFL appealed this action to the General Counsel and while this appeal was pending, the AFL, on January 5, 1950, filed an amended charge which, in addition to naming McManus and Short for the first time, also named the Club as an employer. On January 6, 1950, and before any ruling on the appeal, Alpert notified the parties that he was withdrawing his refusal to issue a complaint. Copies of the amended charge were served on Olin on January 11, 1950. The Club apparently was not served with a copy of this charge until July 17, 1950. Based on these facts and bearing in mind that McManus was discharged on April 5, 1949, and that Short's employment was terminated' on August 13, 1949, Olin moved to dismiss the complaint on the ground that: (1) The complaint is based upon an amended charge that is a nullity because the Board has no published procedure as required by the Administrative Procedure Act giving a Regional Director authority to reinstate a charge after it has been withdrawn ,or dismissed ; and (2 ) even if the amended charge of January 5, 1950, 'The evidence supports these assertions by Walsh and I find them to be an accurate reflection of the facts. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be considered as a new charge, that under Section 10 (b) of the Act "the unfair labor practices alleged occurred more than six months, prior to the service of a copy of the charge upon Respondent Olin." The Board has consistently followed the principle laid clown in Cathey Iiuntber Company 2 that "the proviso to Section 10 (b) merely extinguishes liability for those unfair labor practices which were committed more than 6 months prior to the filing and service of the charge initiating the case, and . . . a complaint may lawfully enlarge upon a charge if such additional unfair labor practices were committed no longer than 6 months prior to the filing and service of such charge." It follows therefore that once the Board's jurisdiction is properly invoked by the timely filing and service of a charge, any unfair labor practice uncovered while the charge is being investigated and which occurred within 6 months of the filing and service thereof, can be properly alleged in the complaint even though not particularized in the charge. And this is also true of unfair labor practices uncovered which occurred after the filing and service of the charge. So unless the initial charge of May 16, 1949, is a nullity, the cases of McManus and Short were properly included in the complaint.' I disagree with Olin's contention that the May 16 charge having been withdrawn without prejudice and by error it could not thereafter be reinstated by the Regional Director. The Board obtained jurisdiction by the filing of this charge, and service of a copy thereof on Olin effectively tolled the 6-month period. Having once obtained jurisdiction the Board did not lose such authority, acting as it does in the public interest and not for the adjudication of private rights, to reinstate a charge mistakenly withdrawn. It has inherent authority under such circumstances and would have been remiss if it had not done so, particularly where as here, Olin was in no way prejudiced by the reinstatement of the charge.' The motion of Olin to dismiss on these grounds is hereby denied. A different problem, however, is presented by the conceded failure of the Club to receive a copy of the charge within 6 months of the discharge of McManus. The Club moves to dismiss the complaint as to it on this ground. The General Counsel contends, however, that since, as is more fully discussed hereinafter, the Club is the creature or alter ego of Olin, service of tale charge upon Olin was service upon the Club. I find no merit in this contention. When the original charge was served on Olin, it named only Olin as the employer, and the Club was not named until the amended charge was filed, service thereof being made on Olin on January 11, 1950, or more than 6 months after the discharge of McManus. Assuming that the Club is the alter ego of Olin, I am nevertheless persuaded, since the com- plaint alleges that the Club as a respondent and a separate entity violated the 2 86 NLRB 157, enforced 185 F. 2d 1021 (C. A 5). One of the Board's latest decisions applying the Cathey doctrine is to be found in Ferro Stamping and Manufacturing Co., 93 NLRB 1459. 3 In any event I would find that the charge of January 5, 1950, was sufficient to support the complaint as to Short, since Olin received a copy of this charge within 6 months after the termination of Short's employment. 4 See Jersey City Welding it Machine Works, Inc., 92 NLRB 510, footnote 2 ; also J. A. Bentley Lumber Company, 83 NLRB 803, enfd. 180 F. 2d 727 (C. A 5). In the latter case the court said, "That the charge , alleging illegal discharges in March and April of 1946, and filed August 25, 1946 , was dismissed without prejudice, August 15 , 1947 and was reinstated by the Regional Director May 28 , 1948 when it was ascertained that the dis- missal resulted from an administrative error, the nature of which appears from the record , does not require the complaint 's dismissal . Petitioner alleges that it was lulled into a false sense of security , but fails to show legal prejudice resulting from the reinstate- ment of the charge." OLIN INDUSTRIES, INC. 139 Act that it is entitled as such, pursuant to the requirements of Section 10 (b), to receive a copy of a charge within 6 months after the commission of the alleged unfair labor practice. The General Counsel seeks a cease-and-desist order against the Club as a party respondent requiring that as such it take certain affirmative action designed to effectuate the policies of the Act. The Club is a "person" as defined in Section 2 (1) of the Act. The proviso to Section 10 (b) states, "That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, ..." (emphasis supplied). Regardless therefore of any legal liability on the part of Olin for the actions of the Club, the Club, under the clear and plain wording of language just quoted, was entitled to timely service of a charge where it is named as a separate and distinct party respondent to the complaint. I will accordingly recommend that the complaint be dismissed as to the Club.' B. Relationship of the Club to Olin The General Counsel contends that Olin and the Club are, within the meaning of the Act, joint employers of John McManus, whose discharge is an issue herein, based upon the theory that the Club is the agent, creature, or alter ego of Olin. The Respondents take issue with this contention. They assert that the Club, as a distinct corporate entity in no way under the control of Olin, is the sole employer of McManus, and that the legal relationship of the Club to Olin is that of an, independent contractor. The purpose of the Club has been described above. In a booklet dated August 1947, entitled "HELPFUL INFORMATION FOR MEMBERS OF THE WINCHESTER FAMILY" distributed to all Olin employees, Olin describes the Club as follows : 11-FOR YOUR PLEASURE (Employee Recreation Facilities) WINCHESTER EMPLOYEES CLUB: Every employee is a member of the club. The club is maintained and operated for the benefit of all members, Male and Female. The administration of the affairs of the club is in the hands of a Board of Governors (10 members) five elected each year for a period of two years. The Board of Governors employs a manager i who has general supervision of all club activities. The club endeavors to provide members with whatever service is possible and practical and welcomes suggestions from its members. Present ac- tivities and services include a cafeteria with prices as near cost as possible, private dining room for women (Ladies' Lounge), a coffee making station (in the plant) to provide coffee and crullers for sale at rest periods. Ice cream is sold in the plant at various locations at special times and vending machines for candy, gum and peanuts are located throughout the plant. CLUB STORE: Cigarettes, cigars, tobacco, candy and numerous other articles can be purchased at reduced prices. Company made products may be purchased e See Seamprufe, Incorporated, 82.NLRB 892, where the Board dismissed a complaint against a respondent union because the charge was directed against "Mavis Lane, Repre- sentative of the ILGWU." Cf. N. L. R. B. v. Hopwood Retinning Co, 98 F. 2d 97 (C A 2). 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by employees for their personal use only. These products must not be resold under any conditions. Bowling alleys and billiard tables are for members' use at reduced prices. The athletic program consists of many leagues of intershop competition in the following sports : Basketball , bowling, golf, hand-ball, horseshoes, softball and volley-ball. Facilities are available for members to play bad- minton, cards, checkers and table tennis. Classes for instruction in Archery, Physical Education and Rifle Shooting are conducted by competent teachers. OTHER SERVICES : Include a booth in the club to enable members to pay their electric, gas and telephone bills on Monday and Friday of each week. During the fall and winter seasons competent instructors conduct classes in sewing and Spanish. The Ladies' Lounge is available for showers , parties and other employee activities. Members in general are invited to use the clubhouse and its facilities for banquets, testimonials, socials, dances, and other forms of employee recreation. For additional information regarding the clubhouse and its activities, and for the purpose of arrangements for the use of the club on special occasions , you are requested to contact the Clubhouse Manager. The only writing indicative of the working arrangement between Olin and the Club between 1922 and June 1950 when the parties for the first time executed a formal lease, is a letter found in the files of the Club dated October 11, 1922, as follows : To THE WINCHESTER CLUB, INC. The Winchester Club having been incorporated for the furtherance of social relations among the employees of the Winchester Repeating Arms Company, in order to provide a working arrangement between the Company and the Club, and for purpose of record, the following statement of mutual relations is made. If this conforms to your understanding, please signify acceptance of same by letter. The Company will give the use of its buildings known as L 1 , L 2 and L 4, located on Henry Street , for the use of the Club in the interest of the Club members and the Winchester Repeating Arms Company , and will furnish to the Club , without cost, such water, light, heat and fuel as is needed for the operation of the Club activities in these buildings . It will maintain these buildings and premises in suitable condition , but not such equipment as is the property of the Club. The Company will carry adequate insurance on the buildings and contents, and will pay the premiums thereon. It is the understanding of the Winchester Repeating Arms Company that the Club desires to become, ultimately, self-supporting. In order to assist the Club, prior to the period when it shall accomplish this purpose, the Company will contribute not to exceed $6,000 annually to assist in meeting administration and operating expenses, the contribution to be paid in quarterly installments and in amounts requested by the Club and ap- proved by the Company's representative, not to exceed $1,500 in any one quarter. 0 The books of the Club shall be open at all times to inspection by the representative of the Winchester Repeating Arms Company. OLIN INDUSTRIES, INC.- 141 The Factory Manager will represent the Company officially, and all mat- ters connected with this agreement or relating to the mutual interests of the Winchester Club and the Winchester Repeating Arms Company, shall be taken up with him by the Club. The Company will set aside definite accounting symbols and sub-divisions for use in its accounting in connection with Winchester Club matters, and any charges it may have against the Club will be billed to the same at the end of each month. The Winchester Club shall not sub-let any portion of the buildings men- tioned above, or of the facilities therein, without the written approval of the Winchester Repeating Arms Company of all details of the agreement governing such subrental. Agreement already in existence between the Win- chester Repeating Arms Company and the Quinnipiac Rifle Club shall con- tinue until cancelled by either party concerned, and the income resulting from such agreement will be turned over to the Winchester Club for its use. Upon request and approval of the Company representative, the Company and Company organizations shall have the right to use the buildings men- tioned above and the club facilities therein, at any time for official purposes or gatherings without cost other than the actual additional cost of operating for the time used. The terms of this agreement may be modified with the consent of both parties thereto, and the agreement may be terminated at the option of either party on 90 days' notice. The Winchester Repeating Arms Company re- serve-s the right to terminate the agreement relating to the use of the above mentioned buildings, without notice, at any time if it shall appear that these buildings are being used for purposes detrimental to the Company's interest, or in violation of the law. HENRY BREWER, Vice President. While none of the witnesses familiar with the operation of the Club was able to state that in fact the 1922 letter actually formed the basis of the arrangement between Olin and the Club, it is clear from the evidence that the Club continued to function until the lease of 1950 substantially in conformance with the provi- sions of the letter. The evidence indicates, however, that at least since 1937 the books of the Club have not been open to inspection by Olin, and the Club, has been, on the whole, except for being charged no rent by Olin, self-supporting. The Club derives its revenue from the cafeteria, the sale of coffee, profits from various vending machines placed throughout the plant, the 5 percent commis- sion it earns on the sale of Olin products in the club store, and fees for the use of its recreational facilities. In addition, the Club receives a yearly donation from an organization known as the Winchester Fund on the basis of 1 dollar a year per employee. Olin established the Fund in 1928 "to eliminate the neces- sity of conducting drives each year for each charity." Payroll deductions of about four-tenths of 1 percent are made from the gross earnings of each em- ployee and turned over to the trustees of the Fund, composed of supervisory and nonsupervisory employees of Olin. Quite recently the Club contracted to remodel part of the premises it occupied, at a cost of $38,500. Olin agreed to pay $18,000 of the amount and the Fund $19,000. The Club employs about 17 _or 18 employees and has a full-time paid manager named Albert Weirsman who worked for Olin for 17 years before taking up the post of club manager. All club employees work on the premises of Olin and ' are subject to the same rules applicable to Olin employees. They are eligible 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to participate in the group insurance plan made available to Olin employees and to receive first-aid treatment at the hospital facilities maintained by Olin on its premises. But they do not have the benefit of Olin's pension plan. Club employees are entitled to use the club facilities which are otherwise limited to Olin personnel. However, in other respects Olin and the Club operate as sep- arate legal entities, the Club maintaining its own set of books and bank account and paying its own employees after making the necessary social security and tax deductions, besides carrying its own workmen's compensation insurance. Normally, the Club does its own hiring and firing of its employees. However, Olin reserves to itself the right to bar from its premises any employee of the Club as well as the employee of any independent contractor that may be on its premises. Since all club employees work on the premises of Olin the exercise of this right by Olin means, in practical terms, that the Club would be com- pelled to discharge any club employee barred by Olin from its premises. This happened in the case of club employee McManus, more fully discussed later. Passes are also issued to all Club as well as Olin employees for the purpose of entrance to and exit from the plant. As indicated above, sometime in June 1950, at the request of Olin, the Club executed its first formal lease, whereby for a period of 10 years and for the consideration of 1 dollar, Olin leased certain of its buildings to the Club. Olin can terminate the lease on 30 days' written notice. Prior to the lease Olin pro- vided these buildings to the Club free of charge together with certain utility services. Olin maintains the exterior of the Club premises while the Club main- tains the interior The affairs of the Club are administered by a board of governors, all em- ployees of Olin, elected at an annual meeting. During recent years, the board and the club officers have included both supervisory and nonsupervisory em- ployees. For example, Francis L. McOartin, president of the Club for the past 8 years is also chief of plant protection for Olin, and from 1946 to June 1950 the office of club secretary was occupied by Olin's personnel manager. Club officials other than the manager receive no salary, but the time spent during Olin working time by hourly paid employees on club business is charged to the Club, whereas the nonhourly paid employees' time such as the supervisors is absorbed by Olin. The General Counsel contends that, based on the above facts, not only is Olin a joint employer with the Club of club employees, within the meaning of Sec- tion 2 (2) of the Act ° but that in reality the Club is a corporate fiction, and that Olin is acting for itself through this separate organization. For an employer to maintain friendly relations with its employees, to make its plant a more attractive place to work by providing recreational and other facilities and good food at a modest cost, is indeed a laudable objective. But it is a management function essentially-one that Olin undoubtedly performed itself prior to the advent of the Club, and thereafter continued to perform through the instrumentality of the Club, existing as it does solely to serve Olin em- ployees. The relationship between the Respondents is not the intermittent, contractual kind normally entered into between an employer and an independent contractor It is a relationship which has existed for some 28 years and which will probably continue to exist so long as Olin believes it and its employees will benefit thereby. Olin created and supported the Club and gave its employees a 6 "The term 'employer' includes any person acting as an agent of an employer, directly or indirectly ..." OLIN INDUST LTES, INC. 143 -voice in these matters by giving the Club a good deal of autonomy-again an entirely legitimate and worthwhile purpose. But what Olin gave it could control or take away-and this is the nub of the controversy as I see it, in determining whether the employees of the Club were also the employees of Olin. I am persuaded and find , based upon the particular facts here disclosed, that Olin is a joint employer together with the Club of the latter's employees. This is based upon factors already described plus the power of Olin effectively to control the hire and discharge of club employees , even though there is no evi- dence in the record that Olin exercised this power in regard to the hiring of club employees . The fact remains that Olin could exercise it by means of its pass system . Since the Club, as an instrumentality of Olin, has no function other than to serve the employees of Olin and because all club employees work on Olin's premises, Olin could effectively prevent the employment of any indi- vidual that the Club wanted to hire simply by refusing to issue a plant pass to the potential club employee . Similarly , Olin has the power effectively to cause the termination of employment by the Club of any of its employees by barring a club employee from its premises. There are other facets of the relationship between the Respondents that point up the realities relevant to the purposes of the Act. Membership in the Club is limited to employees of Olin. Therefore the officers and board of governors of the Club hold their positions therein solely because of, and only as long as • they are, Olin employees. By its right to discharge Olin employees, Olin has the power, if it wanted to exercise it, of effectively controlling the policies, em- ployment or otherwise, of the Club. The test is the right or power to exercise control. rather than control exercised in fact In still another way the tenure of club employees, besides being controlled by the same plant rules applicable to Olin employees, is subject to the will of Olin. The Club would have to dis- charge its employees whenever Olin decided by a 30-day notice to terminate its present arrangement with the Club. While the term "employer" as defined by the Act nicludes any person acting as an agent of an employer, directly or indirectly, it does not, in my opinion, preclude a finding that a person may be an employer, although not an agent, under circumstances such as here disclosed . Therefore regardless of technical niceties involved in the use of the words "agent" or "independent contractor" the real issue as I see it is whether the Respondents are joint employers of club employees or whether the Club is the sole employer. Since I am satisfied, based upon a preponderance of the evidence taken as a whole, that the Re- spondents are joint employees of the club employees , I find it unnecessary to consider the alleged corporate fiction between them.' C. The discharge of McManus McManus worked for the Club from December 1943 until his discharge on April 5, 1949. When hired by Club Manager Weirsman , McManus was not given a copy of the booklet that Olin distributed to its new employees containing helpful information and certain rules and regulations. Although McManus knew that he was subject to these rules no one ever told him what they were, Weirsman telling him only that he was to conduct himself in "a businesslike manner." McManus was in charge of the coffee room where coffee and crullers were prepared for Olin employees. This room was located in the barrel shop, in a 4 See V L R. B v Condenser Corp., 128 F . 2d 67 (C. A. 3). 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD building separate from the clubhouse. When hired, McManus was given a pass marked "Outside Contractor Tract A" with his photograph on the reverse side. The buildings occupied by the Club were designated by Olin as Tract L, but since some of McManus' duties took him to other buildings of Olin his Tract A pass gave him such authority. McManus had a man working with him who actually prepared the coffee. McManus kept charge of all supplies and cash receipts and assessed the needs of the about 30 to 37 departments that send runners to the coffee room sometime between 9: 30 to 10 each morning to pick up coffee and crullers for their respective departments. The same procedure took place between 3 to 3: 30 in the afternoon for the several departments that worked the :bight shift. McManus occasionally would visit various departments to check on the service and other problems that might arise. The AFL laid plans to organize Olin's employees in September 1948 and held its first organizational meeting in October at the Labor Temple on Goffe Street in New Haven! Weekly meetings were thereafter held at the Labor Temple. On January 20, 1949, McManus received from the AFL a reply to a letter he had written "asking just what status the clubhouse would have in the cam- paign . . . ." The reply stated in part : I'm glad to say that you would come under the jurisdiction of this cam- paign, as you are definitely employed by the Winchester Arms Co. Am taking the liberty of enclosing some authorization cards in the hope you may get some of your fellow workers to sign same and return to us. For your protection do not have them signed on company time. Do it before or after your working hours, or lunch period. Beginning at about this time McManus became active in the AFL campaign by attending all the weekly meetings held at the Labor Temple and by occasionally visiting there during the week. Sometime during the morning of April 5, 1949, Thomas Boak, who was then works manager for Olin and at the time of this hearing was no longer in its employ, summoned Club Manager Weirsman and Francis McCartin, Club president and Olin's plant protection chief, to his office. Boak informed them that "McManus would not be allowed on the Winchester property . . . for breaking company regulations." They were not informed of the regulation McManus was supposed to have violated. McCartin asked Boak if they "couldn't continue Mr. McManus' time until he had completed his day's work, . . . and Mr. Boak said, 'Yes."' This was the first time that Olin had seen fit to bar a club employee from its premises. There had been no previous complaint by Olin about McManus. Although McManus was a "very good workman" about whose work there had been no complaints it was decided to discharge him, to quote Weirsman, "in view of the fact that he was not to be allowed on the Company premises, which was the entire club in the factory, why it left us no other . . . recourse because all our workers work on the Winchester Repeating Arms property, see." McManus' termination notice reads, "Permission to enter The W. R. A. Co. property revoked." Later that afternoon McManus was informed of his dis- charge. He tried to ascertain from Weirsman and McCartin the reason there- $ The United Electrical , Radio & Machine Workers of America had , over a period of years, previously made an unsuccessful effort to organize the employees of Olin See the Board 's Decision and Order in Olin Industries, Inc., 86 NLRB 203. OLIN INDUSTRIES, INC. 145 for but other than learning that Olin had barred him from its premises McManus could not get any specific information At about this time Boak happened to walk by and McManus asked Boak the reason for his discharge. Boak's and McManus' version of their conversation is, as to the crucial part of it, in sharp conflict. A careful analysis of their testimony, their demeanor while testifying, and the fact that McCartin, who overheard most of the conversation, substantially supports McManus' version, has led me to the very definite conclusion that I cannot credit Boak's account. Since Boak's credibility is involved in other issues to be discussed later, I shall observe now, that in general I have not been able to credit Boak's testimony where it conflicts with that of other witnesses I believe to be more reliable. In reaching this conclusion I have given absolutely no weight to the credibility findings in the prior Olin case, mentioned above, although I have taken judicial notice of that Decision and Order. In quoting as follows from McCartin's testimony about this incident, I am finding that it occurred substantially as stated by him. McManus asked Boak, "How come I'm being let out?" Boak replied, "You know why . . . McManus asked, `Well, just what is it all about?' And Boak again reaffirmed his state- ment that, `You know what it's all about.' " Boak "then told McManus that he didn't like the company he kept on Goffe Street." McManus said, "The Armory is on Goffe Street." Boak replied, "I don't mean the Armory. You know what I mean." 10 Boak testified, on direct examination, that on the morning of McManus' dis- charge, a foreman, whose name he did not recall, had told Boak "that his man, who went to the central coffee dispensing place to get coffee for that depart- ment, had reported" that McManus had solicited him to join the AFL. On cross-examination, Boak testified that the foreman had told him, in effect, "That fellow over in the coffee room is passing out AFL cards and asking the men to sign them," and did not further identify the man in the coffee shop, except that the solicitation had taken place that morning at the usual time that coffee was distributed. According to Boak, he then went over to the coffee room, saw only McManus there, and assumed therefore that he had engaged in the solicitation. It should be remembered that two men normally worked in the coftee room. Boak then decided, without speaking to McManus and without further investigation, to bar McManus from the premises because of a violation of rule 19 of the company regulationsl1 McManus, like the employees of any outside contractor working on Olin property, was subject to Olin's regulations. Although McManus had never been given a copy of these regulations he had been warned by AFL organizers not to solicit on company time and property. He testified that he had never done so. I credit his denial. u McCartin testified that McManus "wanted to know what he had done. I told him at that particular time I did not know what he had done " The evidence indicates that while McManus possibly might have been informed that he had violated a rule it is clear that neither McCartin nor Weirsman knew what rule had been violated I find it unnec- essary to resolve what I consider to be relatively minor conflicts in testimony between McManus, and McCartin and Weirsman. '" Boak admitted knowing that both the Labor Temple and the Armory were on Goffe Street He flatly denied making any reference to that street . Boak admitted saying that he did not like the company McManus kept and gave an implausible explanation of what he meant in denying any intent to refer to the AFL. 31 "Engaging in propaganda or organizing activities during working hours or engaging in such activity on the company property during the working hours of other employees, -or interfering with or molesting employees during their working hours " 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The company regulations provide that "Violation of any rule of the Company is regarded as grounds for disciplinary action ranging from reprimand to im- mediate discharge. Company policy will be applied equally in this respect." Boak testified that if an Olin employee was charged with a violation of any regulation there would be a complete and thorough investigation and a hearing before disciplinary action was imposed, and that he was "very tolerant." In. the case of O1in employee George Short, discussed later, although Olin, claimed there had been complaints about Short soliciting employees on company time, it dropped the matter after calling the rule against solicitation to Short's atten- tion. Boak explained, however, that he felt under no obligation to treat em- ployees of an outside contractor with the same considerations as Olin employees. I am convinced that Boak barred McManus from Olin's property because Mc- Manus was assisting in organizing Olin employees and not because he solicited any of them on company time and property in violation of a company regulation. While I have found as a fact that McManus did not violate this rule, even if it be assumed that Boak believed that he had, I am still persuaded that Boak was not motivated by this belief but by his opposition to the AFL. Boak, in telling McManus the reason for his action, said he did not like the company McManus kept on Goffe Street ; in other words, Boak was barring McManus from Olin premises because of McManus' association with the AFL. Since I have found Olin to be a joint employer with the Club of McManus, it is concluded that Olin discharged McManus within the meaning of Section 8 (a) (3) of the Act. Even if it be assumed however, that Olin is not an employer of McManus, I would still find that Olin independently violated Section 8 (a) (1) of the Act by interfering with, restraining, and coercing its own employees in the exercise of the rights guaranteed them in Section 7 of the Act. Olin's em- ployees had the right if they so desired to join a union, and therefore enjoyed the right to be organized by others. Olin could not interfere with the rights of its own employees under the Act by preventing legitimate efforts on the part of the AFL to organize them. Opportunity and freedom to organize is guaranteed by the Act. McManus, even if a stranger to Olin, was helping the AFL to organ- ize Olin employees. By impeding and hampering the entirely legitimate activi- ties of McManus, Olin was thereby interfering with the right of its own employees to full freedom of association in violation of Sections 7 and 8 (a) (1) of the Act. And whether the discharge of McManus or his being barred from Olin property be viewed as a violation of Section 8 (a) (1) or 8 (a) (3) of the Act, I would still find it necessary in order to effectuate the policies of the Act that Olin take the affirmative action hereinafter recommended .12 12 See Republic Aviation Corp. v. N L. R. B., 324 U. S. 793, where the Supreme Court said that the Act did not undertake the impossible task of specifying in precise and unmistakable langu- age each incident which would constitute an unfair labor practice. On the contrary that Act left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as viola- tive of its terms. Thus a "rigid scheme of remedies" is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the domi- nant purpose of the legislation. Phelps Dodge Corp v. N L. R B , 313 U. S. 177, 194. So far as we are here concerned that purpose is the right of employees to organize for mutual aid without employer interference. Cf. N. L. R. B. v. May Department Stores, 154 F. 2d 533 (C. A 8) ; cert denied 329 U. S. 725, where the court, at p. 539, discusses the case of a demonstrator named King, who demonstrated and sold the goods of a certain manufacturer at the May store and whose remuneration was paid by the manufacturer. The court affirmed the Board's find- ing that the May store was responsible for causing the manufacturer to terminate King's services because she had joined a union. OLIN INDUSTRIES, INC. D. The termination of Short's employment 147 George Short was employed by Olin continuously from March of 1922 until August 13, 1949, when his employment ended under circumstances herein de- scribed. Short was employed in the transportation department as a truck driv- er's helper and for the 5-year period preceding his termination worked with the same truck driver, Edmond Condon. In 1942 the United Electrical, Radio and Machine Workers of America began to organize Olin's employees. Short became active in the campaign and in Sep- tember 1942 became president of a local of this union. He continued as presi- dent until July 1947 when the union withdrew its campaign and the local dissolved. When the AFL began to organize Olin employees in the fall of 1948, Short became a very active participant and attended all meetings of the AFL at the Labor Temple. Beginning late in 1932 there developed a rather unusual relationship between Short, the truck driver's helper, and Boak, the works manager of Olin. Short reported for work shortly before 7 a. in. each day. Boak, who came to the plant at about the same time and parked his car in the garage where the transporta- tion department was located, would see Short practically every morning and converse with him. From then until 1942 when Short became active in union affairs, the topic of discussion often turned to politics, Short being a staunch Democrat and New Dealer and Boak just as strong a Republican They "kidded" each other in a friendly vein about their political views, Short giving as good as be received. Unionism was not discussed until Short became active in the campaign of the United Electrical Workers Union and was elected president of the local. The tenor of the conversations thereafter gradually became more serious and less friendly, with Boak constantly bringing up the subject of unionism and "riding" Short on the subject. For example, Boak would refer to Short's presi- dency of the local by addressing him as "Mr. Presi-dump." Or on an occasion while Short was loading brick, Boak remarked, "That's a hell of a job for a big official like you to be doing." Each would get sufficiently riled on occasion to lose his temper. But "I don't fly off the handle like Mr. Boak does," testified Short. "He used to get so riled, he'd take that overnight bag and throw it up in the air and go over and stamp on it, and he'd start calling me a lot of names. I'd walk away." There is not too much dispute in the testimony of Short and Boak as to their relationship and conversations up until the time Short became active.in the AFL. As to what happened from then on and particularly as to the events of the morning of August 13, 1949, their testimony is in sharp conflict. I have already indicated that I could not credit Boak's testimony in the face of what, after careful analysis, I considered to be more reliable testimony. Short's recital of the events of August 13 is corroborated in substance by Condon, still presently employed by Olin as a truck driver. It is my considered judgment that both Short and Condon are more reliable witnesses than Boak. In view thereof it would serve no useful purpose in reciting the following events to detail the conflicting testimony. It is based primarily upon the testimony of Short and Condon and is denied in its essential details by Boak. To give the flavor of the kind of remarks Boak was making to Short after the AFL campaign started I am compelled to refer to several made prior to August 13, 1949. One morning in November 1948, when the female AFL or- ganizer previously adverted to was passing out leaflets at the plant gate, Boak, holding up a leaflet in his hand, said to Short, "I see your girl friend out there 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the job, Georgie . . . How is she ? Is she as good -a piece of - as satchel -?" I have inserted dashes for the word actually appearing in the transcript, and while I have no desire to offend the sensibilities of who- ever may happen to read this decision in reporting the kind of'obscenity used by Boak to Short on this and on later occasions which I will describe, nevertheless, since it is the theory of the General Counsel that Short was compelled to quit his job on August 13 because of the actions and statements of Boak, paraphras- ing Boak's language will not give an accurate picture and therefore my apologies to the reader. "Satchel --" referred to above was a term sometimes used to describe a female organizer of the United Electrical Workers. On another occasion Boak again referred to the AFL organizer when he said to Short, "I always knew that you were a tight - of a - [but] I didn't think you were so tight you'd let a lady pay for your fees " Just prior to this incident, on an occasion when Short had coffee with the AFL organizer following a union meeting, she had paid the check. Sometime late in 1948, Boak said to Short while the latter was loading a truck, "you wouldn't have to be wearing them overalls and jumper . . , if you give up this foolish stuff you're doing with that organization." On April 22, 1949, Short was summoned to the personnel office where he was informed by Louis Izzo, a personnel supervisor, that complaints had been re- ceived that Short had been soliciting for the AFL on company time and property. Short denied the charge and asked that the informers be produced. Izzo said it was unnecessary, that he did not know whether Short had solicited or not but called Short's attention to the rule forbidding that kind of solicitation. On August 12, 1950, the Board held an election for Olin employees. Short served as an AFL teller. The AFL lost the election. There were 1,392 votes for, and 2,897 votes against, the AFL. The next day Short reported for work. He met Condon on the street and they entered the plant premises together. As they entered the garage Boak stepped up to Short and said, "I didn't think you'd have nerve enough to come in here and face a group of good living people, you of a -. " Short made no reply and continued to walk toward the time clock in order to check in with Boak walking alongside of him. As they walked Boak continued to taunt Short about the loss of the election the day before. Whatever the cause, maybe Short's continued silence, but Boak's anger mounted until he was in a fury and he completely lost control of his temper. He shouted vile and obscene remarks at Short to such an extent, that after punching the time clock," Short turned to Boak, pulled out his company pass and asked Boak if he wanted it.14 Boak replied that he did not. 1s The time card records show that Condon clocked in at 6: 54 a . in. and Short at 6: 57 a. in. 14 Short testified that Boak was in such a "fury" that "I thought he wanted me to quit" and that is why he offered Boak his pass . Boak admitted that Short offered him his pass but denies losing his temper or castigating Short with vile and obscene names. Boak testified that he told Short, "You have a lot of nerve coming in here this morning to go to work after the beating you and your friends took yesterday"; that Short just "grunted" and Boak again said , "I'd think you 'd be ashamed to come in here after getting such a beating and go to work" ; that Short did not reply , whereupon Boak said, "Well, I'm awfully glad to know that there are a lot of people in this plant who have a lot of common sense and who know what the score is, and I think that three to one licking you fellows got yesterday indicates that the plant is satisfied with conditions as they are." According to Boak , Short then offered his pass and after refusing to accept it, Boak then left the garage But according to Short's credited - testimony, corroborated by that of Condon, which I am now about to relate above, Boak did not then leave the garage and the final incident occurred that made Short quit. OLIN INDUSTRIES, INC. 149 Short then turned and walked the 35 to 40 feet where his truck was located. Boak continued to follow him still shouting imprecations . "They got down to the truck, and George started to get on the truck," testified Condon. "Soak said, `No, you're not getting on that truck.' . . . `But you'll work you - of a -. You'll work until the sweat and blood comes down your back , you -. " It was at this point that Short decided to quit his employment and started towards the door of the garage with Boak still following and cursing him. When they reached the door Boak told Short to go down to the hotel where the female organizer lived and made a lewd remark as to what Short could do with her all day. Short has not returned to the plant since that day. It is the contention of the General Counsel that Short, because of his AFL activities, was forced to quit his employment and that if he remained his condi- tions of employment would be made intolerable. Olin on the other hand con- tends that Short voluntarily quit and even if his version of the events of August 13 be accepted that it does not add up to a constructive discharge. "The only reasonable interpretation of the incident," says Olin , "is that Short, greatly upset by the loss of the election , could not take the riding Boak was giving him, in accordance with fheir usual practice , and quit." The evidence does not support the latter contention of Olin. While Short felt badly because of the loss of the election , he "got over it that night." He testi- fied, "If I was ashamed or felt badly, I wouldn't have gone into the plant" the next morning. He denied , and I believe him, that he did not have a "chip on his shoulder" because the AFL lost the election . "If I had a chip on my shoulder, I would have said something" to Boak, Short testified. If Boak had ceased abusing Short after Boak had declined Short's pass and then Short had quit, a much more difficult problem would have been presented. But not only did Boak continue to abuse Short , he also refused to let him get on the truck and threatened to make Short 's future working conditions so intoler- able as to cause "the sweat and blood " to come down his back. Under these circumstances, I am persuaded and find that Boak forced Short 's resignation regardless of whether it be considered as the result of a coldly planned stratagem or as an explosive fit of temper. In either event it was brought about primarily because Short openly and actively espoused the cause of unionism among Olin's employees. Short demonstrated remarkable restraint under great provocation. Except for offering Boak his pass , Short did not answer Boak and continued to walk away from him and go about his assigned duties but Boak pursued him with taunts about the loss of the election and a torrent of obscene invective. When it reached the point where Boak would not let him get on the truck and made the-sweat and blood threat, Short had enough , he could not take it any more and quit. What else could a decent and self-respecting employee-one who had been in the employ of the company for 22 years-do? An employer cannot avoid his responsibilities under the Act by creating a situation so unbearable to an em- ployee because of his union activities , and so detrimental to harmonious and constructive working conditions , that the employee is forced to relinquish his position rather than continue in such a situation. I find that by constructively discharging George Short, Olin violated Section 8 (a) (3) and (1) of the Act. And whether Short's discharge be viewed as a violation of Section S (a) (1) or 8 (a) (3) of the Act, I would find it necessary in order to effectuate the policies of the Act to recommend that he be reinstated with back pay. 986209-52-vol. 97-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Olin set forth in Section III, above, occurring in connection with the operations of Respondent Olin described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce, and the free flow of commerce. V. THE REMEDY Having found that Respondent Olin has engaged in the unfair labor practices set forth above, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since McManus does not desire reinstatement it will be recommended that Olin make him whole for any loss of pay from April 5, 1949, the date of his dis- charge, to September 25, 1949, the date when he obtained his present employment16 It will be further recommended that Olin remedy its discrimination against Short by offering to him immediate and full reinstatement to his former or sub- stantially equivalent position 19 without prejudice to his seniority or other rights and privileges. It will be recommended further that Olin make him whole for any loss of pay that he may have suffered by reason of Olin's discrimination against him. In accordance with the Board's policy,1' I shall recommend that the loss of pay for both McManus and Short be computed on the basis of each separate calendar quarter or portion thereof during the period from the respec- tive discriminations to the date of a proper offer of reinstatement in the case of Short, and to September 25, 1949, in the case of McManus. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each of the employees discriminated against would normally have earned for each quarter, or portion thereof, less his net earnings,1° if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due.19 The violations of the Act which Olin committed are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- 16I would recommend the same remedy on the alternative theory found above that Olin violated Section 8 (a) (1) even if Olin was not a joint employer of McManus The Supreme Court has held that the term "employees" in Section 10 (c) of the Act, standing as it did "unqualified and undifferentiated," Included members of the working class whether or not they stood in the proximate relationship of employee with respect to any particular employer. See Phelps Dodge, footnote 12, supra. 38 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 equivalent position." See The Chase National Bank of the City of New York, an Juan, Puerto RICO, Branch, 65 NLRB 827. 17 F. W. Woolworth Company, 90 NLRB 289. 38 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for this unlawful discrimination , and the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 440 . Monies received for work performed upon Federal , State, county, muni- cipal , or other work-relief projects shall be considered earnings. Republic Steel Corpora- tion v. N. L R. B., 311 U. S 7. 19F. W. Woolworth Company, supra. COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. 151 mission in the future is to be anticipated from Olin's conduct in the past 20 The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to preventva recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that Olin cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record of the case, I make the following : CONCLUSIONS of LAW 22 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. Respondent -Olin is a joint employer together with Respondent Club of John McManus. 3. By discriminating in regard to the hire and tenure of employment of John McManus and George Short, Respondent Olin has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By such discrimination and by interfering with, restraining, and coercing its employees in the exercise of the 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. 6. Respondent Club has not been timely served with a copy of a charge as required in Section 10 (b) of the Act. [Recommended Order omitted from publication in this volume.] 20I would recommend this type of order regardless of the Board's prior finding that Olin had violated the Act. 21 Since I have recommended that the complaint against the Respondent Club be dis- missed, I find it unnecessary to pass upon the Club's proposed findings of fact and con- clusions of law. COCA-COLA BOTTLING COMPANY OF ASHEVILLE, N. C. and UNITED FURNITURE WORKERS OF AMERICA, CIO. Case No. 34-CA-252. November 29, 1951 Decision and Order On July 13, 1951, Trial Examiner Henry J. Kent 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 97 NLRB No. 27.