Consolidated Industries, Inc.

60 DECISIONS OF NATIONAL LABOR RELATIONA BOARD CONSOLIDATED INDUSTRIES, INC. and UNITED S T E E L- WORKERS OF AMERICA, CIO. Case No. 1-CA-1520. March 26, 1954 DECISION AND ORDER On January 7, 1954, Trial Examiner George A . Downing issued his Intermediate Report in the above-entitled pro- ceeding, 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 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner ' s findings , conclusions , and recommen- dations.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Consoli- dated Industries, Inc., West Cheshire, Connecticut, and its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, CIO, or in any other labor organization of its em- ployees by laying off employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment, or any term or condition of employment. 'The Respondent's request for oral argument is hereby denied because the record, excep- tions, and brief, in our opinion, adequately present the issues and positions of the parties. 2In support of the 8 (a) (1) allegation of the complaint, employee Stephen Varanko testified in part that General Manager Viviano told him, on August 14, 1953, at the close of a conversa- tion about Union activities, that he should get back to work, but "if I hear any more union talk out there, from the man I hear it, I'm going to fire him." The Trial Examiner dis- credited this portion of Varanko's testimony on the ground that it was uncorroborated and that "Viviano and Donnelly both denied making any statement concerning the discharge of employees on account of Union activities." An examination of Viviano's testimony fails to show any such specific denial. However, as the General Counsel has filed no exceptions to the Intermediate Report, we shall make no finding as to this alleged threat. Accordingly, our independent 8 (a) (1) finding, like that of the Trial Examiner, is based on the Respondent's interrogation of employees regarding their union affiliations and activities and Varanko's credited testimony that Viviano told him, during the same conversation, that "if you got a union in here, you would suffer in the end, because we'd get time study men in and cut down on a lot of other privileges that we're having, and it would come out of [your] backs in the end." 108 NLRB No. 14. CONSOLIDATED INDUSTRIES, INC. 61 (b) Interrogating its employees concerning union affiliations and activities, and warning them that union activities might cause the loss of privileges. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form, join , or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other 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 re- quiring membership in a labor organization as a condition 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: (a) Offer to Thomas Danieleski, Stephen Varanko, and John Varanko immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole, in accordance with the Board's usual remedial policies (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Co., 8 NLRB 440; F. W. Woolworth Co., 90 NLRB 289), for any loss of pay they may have suffered since August 21, 1953, by reason of the discrimination against them. (b) Post in its plant at West Cheshire, Connecticut, copies of the notice attached hereto and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Di- rector for the First Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall betakenbythe Respondent to 'insure that said notices are not altered, defaced, or covered by any other material. 3 The Respondent's unlawful activities, including the discriminatory layoff of Danieleski and the Varankos, go to the very heart of the Act and indicate a purpose to defeat self- organization of its employees. We are convinced that the unfair labor practices committed by the Respondent are potentially related to other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless the Board's order is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring the Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. N. L. R. B. v. Globe Wireless, Ltd., 193 F. 2d 748 (C. A. 9); N. L. R. B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4). 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, enforcing an order." 6Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the First Region, in writing , within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 United Steelworkers of America, CIO, or in any other labor organization of our employees by laying off employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning union affiliation and activities, or warn them that union activities might cause loss of privileges. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist United Steelworkers of America, CIO, or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all 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 National Labor Relations Act. WE WILL offer to Thomas Danieleski, Stephen Varanko, and John Varanko immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. CONSOLIDATED INDUSTRIES, INC. 63 All our employees are free to become or refrain from be- coming members of the above Union or any other labor organi- zation. CONSOLIDATED INDUSTRIES, INC., Employer. Dated ................ By .................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b), of the National Labor Relations Act, as amended (61 Stat. 136), was heard in New Britain, Connecticut, on November 9, 1953, pur- suant to due notice The complaint , issued on September 29, 1953, by the General Counsel of the National Labor Relations Board i and based on charges duly filed and served, alleged in substance that Respondent had engaged in -unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act ( 1) by laying off Thomas Danieleski , Stephen Varanko, and John Varanko, on August 21 , and thereafter failing to reinstate them, because of their Union membership and activity ; and (2) by interrogating employees concerning their Union affil- iation and warning employees to refrain from Union activity. Respondent by its answer denied the commission of unfair labor practices as alleged All parties were represented at the hearing by counsel and were afforded full opportunity to participate in the hearing and to file briefs and proposed findings of facts and conclusions of law. Respondent has filed a brief. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Connecticut corporation which maintains its principal office, place of business, and a plant at West Cheshire, where it is engaged in the manufacture, sale, and distribution of aircraft and commercial forgings, dies, castings, tools, etc During the past year it has purchased raw materials (brass, steel, aluminum, and other metals) from sources outside the State valued in excess of $ 2.50,000 and has made sales of finished products to out-of-State points valued in excess of $ 250,000. Respondent is therefore engaged in interstate commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED The onion is a labor organization which admits to membership employees of Respondent. iThe General Counsel and his representative at the hearing are referred to herein as the General Counsel, and the National Labor Relations Board as the Board Consolidated Industries, Inc., is referred to as Respondent, and the Charging Party as the Union. All events occurred in 1953. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The evidence Respondent was founded about 1948 by Edward S. Russell, who died on June 12, 1953, leaving the business in equal shares to Thomas Creaven, Joseph Viviano, and a Miss Jupson. Creaven, who had originally been Respondent's accountant and later its vice president and comptroller, assumed the presidency; Viviano, who had been vice president and general manager, retained those positions, and Miss Jtipson became secretary and treasurer The business was actively managed after June 12 mainly by Creaven and Viviano. James J. Donnelly, Jr., was their production supervisor in the plant, Bernard Dymond was foreman over the forgers in plant 2, and Kenneth Mongillo over plant 1, each with supervision over some 15 to 18 employees Union activity began the first or second week in August, and the evidence shows that Danieleski and the two Varankos were the leaders throughout 2 Danieleski had been foreman in plant 2 prior to August, but had been relieved of that position around August 3 However, he was requested to remain in Respondent's employ as a forger, and he consented to do so, although there was apparently no clear understanding as to his rate of pay. The initial Union discussions took place between Danieleski and the Varankos, and they subsequently sounded out other employees. Impetus was added to the drive on August 14, as a result of Danieleski's dissatisfaction with his first paycheck as a forger, received that day, and of his complaints to his fellow employees. The evidence shows that Respondent then became aware of the nature of the activity among the employees, and that on August 20 it learned not only that the or- ganizing campaign was continuing but also that Danieleski and the Varankos were leading it Stephen Varanko testified that on August 14 Donnelly took him from the shop to see Viviano, and that a 30-minute conversation ensued among the 3 of them Varanko testified that Viviano stated he would not hold any punches but would come right to the point, that he heard there was some Union activity in the forge shop, that Varanko's name was mentioned, and that was why they had called him in Viviano inquired as to the nature of the dissatisfaction among the men, and stated among other things that "if you got a union in here, you would suffer in the end, because we'd get time study men in and cut down on a lot of other privileges that we're having, and it would come out of [your] backs in the end." Viviano also stated that he knew everything that was goingonout in the plant and what Danieleski and the Varankos were doing As the conversation ended, Viviano told Varanko, "0. K., get back to work, and if I hear any more union talk out there, from the man I hear it, I'm going to fire him." Viviano and Donnelly admitted that they had called Varanko in and talked with him for some half hour concerning the nature of the disturbance and the disruption of operations which had occurred that day, which had centered around his machine, and which had resulted from the fact that the forgers were neglecting their work and were standing around talking Viviano's testimony was that Varanko explained that the disturbance concerned Danieleski's dissatis- faction with his pay as a forger, though Viviano admitted that he explored with Varanko the question of the attitude of the forgers toward their working conditions generally. Donnelly specifically admitted at one point that Varanko had told them about the Union, but he then endeavored to qualify that answer by explaining that the word "Union" was not mentioned, and that Varankohad said that the men intended to straighten out, "by themselves," their grievances concerning Danieleski's demotion and cut in pay. However, Donnelly admitted at another point that he suspected that something of the nature of Union activities was going on because of the nature of the disruption, and he testified that Viviano informed Varanko that he wanted to ascertain the nature of the "unrest" among, and the "problems" which concerned, the forgers, and wanted to "straighten them out." Under all the circumstances, Varanko's testimony is credited that the discussions included the subject of Union activities, since the evidence in its entirety establishes that Viviano and Donnelly were well aware of the nature of the activity which was causing the disruption of operations with which they were concerned Indeed, Danieleski testified that, in a conversa- tion on August 14, Donnelly expressly referred to Danieleski's participation in Union affairs, and suggested that Danieleski "straighten out" and "cool off" and that he would be "foreman down below again " Varanko's testimony is also credited as to the references to a time study 2An employee named Grasiosa (referred to in the record as "Frankie, the Hat") accom- panied the 3 on 1 tour of solicitation outside the plant, but the evidence does not indicate that he participated otherwise. CONSOLIDATED INDUSTRIES, INC. 65 in relation to the Union activities and to the adverse effect on existing privileges and rates of pay, since Donnelly admitted that he mentioned a time study in connection with a possible "reorganization" to "straighten out" existing unrest and dissatisfaction among the em- ployees, and that he had stated that it might cost the workers more in the long run Varanko's testimony is not credited, however, as to Viviano's alleged threats to discharge employees if Union talk continued, since it stands without corroboration, direct or indirect, and since Viviano and Donnelly both denied making any statement concerning the discharge of em- ployees on account of Union activities Between August 14 and 19, Danieleski went to New Haven and procured authorization cards from the Union. On the morning of August 19, he distributed the cards at the plant gate as the employees came in to work, At the end of that workday, he and the Varankos drove around to the homes of some 26 of the employees and procured signatures During a part of that time they were accompanied by Grasiosa, as when they met and solicited Andrew Matusiewicz ( referred to frequently in the record as "Andy" and as "Matches"). Matusiewicz reported to Dymond early the next morning that he had been asked to sign a Union card and, upon Dymond's inquiry, stated who had solicited him. Dymond in turn reported to Viviano, who asked whether Dymond knew if there were other Union activities in the shop. Dymond replied that he had heard rumors of such, and Viviano directed Dymond to send in Matusiewicz. The testimony of Matusiewicz and Viviano is in substantial accord that Viviano questioned Matusiewicz concerning the Union and concerning what the latter had to do with it. Matusiewicz reported that he had been requested, or given a chance, to join the Union. Viviano inquired further who had solicited Matusiewicz, and Matusiewicz informed him that Danieleski and the Varnakos had, and also mentioned "Frankie, the Hat." On the same day, Danieleski and the Varankos continued at the plant their efforts to sign up additional employees. The next day (Friday) was payday, and the employees were paid, as usual , around noon for the previous week's work. Around 3:30 p.m., Danieleski and the Varankos prepared to leave early, as usual, to cash their paychecks and notified their respective foremen (Dymond and Mongillo) they were leaving. Mongillo returned in a few minutes with an envelope which he handed Danieleski and which contained 2 checks (covering the current week's work), 1 for Danieleski and 1 for Stephen Varanko, and 2 blue slips notifying the men they were laid off for lack of work. Mongillo said only, "I'm sorry, Red," and Danieleski asked him no ques- tions. In John Varanko's case, when he reported to Dymond that he was leaving, Dymond handed him an envelope which similarly contained a final paycheck and a blue layoff slip. Varanko testified that Dymond said, "Don't think that I had anything to do with it," and "I don't know if you done right by starting this union business " Dymond testified that although he did not know what was in the envelope, Varanko opened it in his presence; that he realized that the check and the blue slip signified a termination of some sort, and that he told Varanko he "figured [Varanko] stuck his neck out too far," and "I'm sorry." He denied having told Varanko he had been let go because of Union activities. Creaven and Viviano testified that they had under consideration as far back as late June the question of effecting economies in the operation of the plant, that a reduction in forgers was one of the avenues considered, but that no definite decision was formulated until August 21, when they decided to lay off 3 forgers and 3 pressmen They decided further that a lottery would be the fairest method by which to make the selection for layoff, and Creaven personally prepared the lottery slips for all employees in the forge shops and placed them in a cardboard box Thereupon, while Viviano held the box, Creaven withdrew 3 slips, which happened to bear the names of Danieleski and the 2 Varankos. The same procedure was followed in selecting the pressmen, though the record is silent concerning their identity; and no question is presented herein as to their layoff Neither Donnelly nor the foremen were informed of the impending layoff, and they were not consulted for recommendations or suggestions either as to the departments to be affected or as to what employees should be laid off or retained. In fact, they had no knowledge that a layoff was to be made and took no part whatever in making it, save that Dymond and Mongillo delivered the envelopes which contained the final checks and the layoff notices. Creaven and Viviano admitted that no questions of misconduct or of efficiency or ability were involved and testified that the single circumstance accounting for the selection of the three men was their ill fortune in the lottery. Indeed, the evidence shows that the three men were all good workmen, that they had received no criticisms or warnings of any kind concerning their work and none otherwise save those which emanated from their Union 339676 0 - 55 - 6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities beginning around August 14, and that they had seniority over all or most of the forgers and helpers. Furthermore, there were currently on Respondent's roster a number of forgers termed "extras," who were conceded by Viviano to constitute "an extravagance," and it was they whom Respondent used to replace Danieleski and the Varankos. B. Concluding findings The evidence establishes that in the midst of an organizing campaign, Respondent's man- aging officers, acting with full knowledge of the Union activities and of the identity of the leaders, abruptly laid off those leaders without warning and without consultation with the production supervisor or the foremen, who were in fact without knowledge either that a lay- off was contemplated or what departments were to be affected or which employees were involved. Moreover, the action was taken against an immediate background of investigation by Respondent concerning the organizing campaign and its leadership and of statements which were calculated to impede and restrain the continuation of the activities. *The fore- going circumstances plainly impel the conclusion that Respondent's selection of the three men in question was motivated by their leadership of the organizing campaign, unless it can be found that Respondent's evidence was sufficient to overcome the force of those circum- stances. Cf. Law & Son v N. L R. B., 192 F. 2d 236 (C, A. 10), citing Montgomery Ward & Co v. N. L R B., 107 F. 2d 555, 560 (C. A. 7), Sixteenth Annual Report of the National Labor Relations Board (1951), p. 162; Seventeenth Annual Report of the National Labor Relations Board (1952), p 135. Respondent's defense was that the layoff was made for the purpose of effecting economies in operations and that the selection was made by lot, but Respondent's evidence and its explanations disclosed such glaring inconsistencies that they serve only to confirm the inference, naturally following from the sequence of the events, that Respondent acted from discriminatory motivations in making the selection which it did 3 Thus, Creaven and Viviano were agreed that they began first to consider the question as far back as June 21, that is, about the time they assumed the management of the business. Yet the evidence shows that late in July they put into effect increases in pay which affected all, or, practically all, production employees If economies in operation were the desired objective, it seems inconceivable that general pay raises would have been given at that time Certainly such raises would not have been made without first having laid off or dis- charged unnecessary or inexperienced or inefficient employees It is also inconceivable that Creaven and Viviano did not discuss with Donnelly, at least, the alleged necessity for making the layoff, the departments and the employees to be affected thereby, and the means by which Donnelly would replace those chosen to go Those were matters which plainly required careful consideration in view of the fact that it was the wide disparity between the quality and quantity of production of individual employees which had led to the new job ratings and the increases in pay made in late July Obviously, if Respondent's explanations for making the layoff were to ring true, it would have wished to retain its most efficient and most experienced employees, and it would have taken pains to secure their retention Yet, under its explanations, it left the matter to blind chance; and this despite the fact that there were present on its roster of employees a number of "extra forgers, who were admitted by Viviano to constitute an extravagance. The circumstances also expose Respondent's claim that it settled on the lottery as the fairest way to make the selection Certainly so far as the employees were concerned, the fairest method would have turned largely on considerations of seniority and job experience in such departments as were overstaffed The presence of the extra forgers, candidly con- ceded to represent an extravagance, clearly dictated their selection for layoff in any bona fide reduction, over regular permanent employees of greater seniority. And if it was fair- ness to itself with which Respondent was concerned, it would obviously have retained the employees with the greatest training and efficiency, for otherwise it risked losing, by 3Cf. N. L. R B. v. E C. Brown Co., 184 F. 2d 829 (C. A. 2), enfg. 81 NLRB 140. The giving of varied or contradictory reasons for a discharge may of course, be considered in determining the real motive, N. L. R. B. v. Condensor Corp of America, 128 F. 2d 67; (C. A. 3); and the employer's inconsistent explanations of a discharge is a circumstance indicating its antiunion motivation. N. L. R. B. v, Somerset Shoe Co., 111 F. 2d 68; (C. A 1); and see Mooresville Mills, 99 NLRB 572; Sandy Hill Iron and Brass Works, 69 NLRB 355, enfd, 165 F. 2d 660 (C. A. 2); Lewis & Holmes Motor Freight Co., 63 NLRB 996. CONSOLIDATED INDUSTRIES, INC. 67 chance, its most valuable employees, thereby defeating its claimed objective of efficiency and economy of operations Finally„ it is fantastic under all the evidence that chance alone would have accounted for the selection, in any bona fide lottery, of the 3 employees whose leadership in the Union Respondent had been at pains to confirm the preceding day. Thus the evidence indicates that at the time of the layoff there were 28 to 30 employees in the 2 forge shops. The mathe- matical odds that Danieleski and the 2 Varankos would have been chosen by lot were over 4,000 to 1 if 30 names were placed in the box, and over 3,300 to 1, if there were 28. It is therefore not material, as Respondent argues, that there was no direct refutation of the Creaven-Viviano testimony that the selection for layoff was made by lottery, since the circumstances as a whole refute the claim. Respondent's further argument that its defense is supported by the fact that it did not include Grasiosa in the layoff is also clearly without merit, for Grasiosa was not shown by the evidence to have been a leader in the Union's campaign, as were Danieleski and the Varankos Aside from that, the force of the evidence of discriminatory motivation as to the three latter employees is not diminished by the circumstance that Respondent may not have chosen to eliminate all employees who were in any way connected with the Union movement. It is, therefore, concluded and found on the basis of the entire evidence that by laying off Thomas Danieleski, Stephen Varanko, and John Varanko on August 21, 1953, Respondent discriminated against them because of their Union membership and activities, to discourage membership in the Union. It is also concluded and found that by interrogating its employees concerning Union affilia- tions and activities and warning employees that Union activities right cause the loss of privileges, Respondent engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Respondent's activities set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 4 By discriminating in regard to the hire and tenure of employment of Thomas Danieleski, Stephen Varanko, and John Varanko, thereby discouraging membership in the Union, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY It having been found that Respondent engaged in unfair labor practices, it will be recom- mended that it cease and desist therefrom and that it take affirmative action designed to effectuate the policies of the Act. [Recommendations omitted from publication.] 4 Much of the General Counsel's questioning of witnesses was devoted to establishing that the action in fact constituted a discharge; and he also argued orally that the evidence es- tablished a discharge rather than a layoff. Respondent's evidence was generally to the effect that a layoff was intended, though some of the Creaven-Viviano testimony on the subject was indefinite and inconclusive. For practical purposes the point is immaterial in view of the finding that the Respondent's action was discriminatorily motivated, since the remedial action would be identical in either case. However, inasmuch as the complaint charged a layoff, and as the General Counsel at no time sought to amend, the finding herein has been conformed to the issue tendered by the pleadings.