Whitin Machine Works

WHITIN MACHINE WORKS 279 Accordingly, we find that all production and maintenance em- ployees at the Employer's South Mill No. 2 and North Mill No. 1, Terre Haute, Indiana, including truck drivers and temporary straw- stackers, but excluding inspectors, watchmen, storekeepers, office jani- tor, office clerical employees, and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate 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.] WHITIN MACHINE WORKS and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 1-CA-09. July 21, 1952 Decision and Order On December 28, 1951, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.,' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. 19 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations ' The Respondent's request for oral argument is hereby denied , as the record and brief adequately present the issues and positions of the parties. n Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Houston and Murdock]. The Trial Examiner's recommendation of dismissal of the allegations of the complaint with respect to Cahill's discharge, as well as his recommendation of a limited cease and desist order, are hereby adopted in the absence of exceptions by the General Counsel. 100 NLRB No. 52. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, Whitin Machine Works, Whitinsville, Massachusetts, 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 employees, by discrimi- natorily discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (b) In any like or related 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 United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization 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 Raymond M. Tancrell immediate and full reinstate- nient to his former or substantially equivalent position, without preju-• dice to his seniority or other rights or privileges. (b) Make whole Raymond Tancrell, in the manner set forth in "The Remedy" section of the Intermediate Report, for any loss of pay he may have suffered as a result of the discrimination against him. (c) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and other records necessary to determine the amount of back pay due and the right of reinstatement under the terms of this Order. (d) Post in its offices and place of business at Whitinsville, Massa- chusetts, copies of the notice attached as Appendix to the Intermediate Report.4 Copies of said notice, to be furnished by the Regional Di- rector for the First Region, shall, after being duly signed by Re- spondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for at least sixty (60) con- secutive days thereafter in conspicuous places, including all places ' This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof, the words "A Decision and Order." In 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." WHITIN MACHINE WORKS 281 where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, 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 the Re- spondent has taken to comply herewith. Ir:IS''FURTHER ORDERED that the complaint, except with respect to the discharge of Raymond M. Tancrell, be, and it hereby is, dismissed. Intermediate Report STATEMENT OF TILE CASE Upon an amended charge filed by the United Steelworkers of America, CIO, hereinafter called the Union, the General Counsel of the National Labor Re- lations Board, by the Regional Director for the First Region (Boston, Massa- chusetts), issued a complaint dated July 27, 1951, against Whitin Machine Works hereinafter called Respondent, alleging that the latter had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, as amended, 61 Stat. 136, 29 U. S. C., Supp. I, Sec 141, et aeq., hereigiifter referred to as the Act. With respect to the unfair labor practices, the complaint alleged, in substance, that on or about April 18, 1951, and on or about April 26, 1951, Respondent discharged Raymond M. Tancrell and Ethel Cahill, respectively, for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection of Respondent's employees. The complaint also alleged that on or about April 15, 1951, Respondent interrogated its employees concerning their union and concerted activities. By its answer duly, filed, Respondent denied the commission of any unfair labor practices but admitted that it had discharged Tancrell on or about April 18, 1951. The answer specifically pleaded that Tancrell was a supervisory employee of Respondent and that Mrs. Cahill had voluntarily resigned on or about April 20, 1951. Pursuant to notice, a hearing was held at Whitinsville, Massachusetts, on and between September 5-11, 1951, before the undersigned Trial Examiner. The General Counsel, Respondent, and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the issues was, accorded all parties. Since the close of the hearing, briefs have been received from the General Counsel and Respondent and have been duly considered. - Upon the entire record in the case, I make the following : FINDINGS OF FACT 1. THE BUSINESS AND ACTIVITIES OF RESPONDENT Whita(,n Machine: Works is a Massachusetts corporation engaged at Whitins- ville, Massachusetts, in the manufacture, sale, and distribution of textile ma- chinery. It annually purchases raw materials, consisting principally of steel, iron, and other metals, having a value in excess of $250,000, of which approxi- mately 90 percent is shipped to Respondent at Whitinsville, Massachusetts, from 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD points outside the Commonwealth of Massachusetts. Its annual sales exceed $250,000 in value, of which more than 90 percent is shipped to customers located outside the Commonwealth of Massachusetts. It was conceded and I find that Respondent is engaged in commerce within the meaning of the Act. II. TIIE LABOR ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization within'the mean- ing of Section 2 (5) of the Act. III. TIIE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of events Respondent is one of the largest textile machinery manufacturers in the coun- try and, at the time of the hearing, engaged the services of approximately 5,600 employees. Of this number, about 3,200 production and maintenance employees were represented for collective bargaining purposes by the United Steelworkers of America, and approximately 50 by the Patternmakers Association. The mat- ters with which we are here specifically concerned, however, involve only em- ployees in Respondent's accounting department which normally employs ap- proximately 150 persons, supervisory and clerical. In February 1951,' a number of employees in the accounting department, in- cluding Raymond Tancrell, signed and presented a petition to management re- questing an increase in pay and asked that they be placed on a regular salary rather than the existing hourly rate basis. Shortly thereafter, Tancrell was told by Garcelon, his immediate supervisor, that Max Thompson, Respondent's con- troller in charge of the entire accounting department, was "very much disap- pointed" in Tancrell because he had signed the foregoing petition and "as far as Mr. Thompson was concerned, [Tancrell] was all done." The petition bringing no immediate results, a number of the employees, early in March, determined to seek admission to and the aid of the Union. Tancrell obtained 175 application cards for such union membership, personally dis- tributed approximately 50 to that many individuals and received 30-40 signed applications. The remaining 125 cards he delivered in quantities of 10 to 20 to those who assisted him in the drive. The fact that he was engaged in such organizational work "came out" in a conversation he had shortly thereafter with Garcelon. On March 21 Thompson caused a memorandum to be distributed among the employees in that department informing them that following the petition afore- mentioned, he "had recommended increases for some individuals" and that "top management . . . is giving . . . very sympathetic consideration . . . to the question of salary pay vs: hourly pay." The memorandum expressed will- ingness by Thompson to personally discuss the wage problem with any of the employees in the department. Tancrell sought and obtained an interview with Thompson on March 22, during the course of which Tancrell questioned Thomp- son about the remark attributed to the latter by Garcelon that so far as Thompson was concerned, Tancrell was "done." Thompson replied that "he was dis- appointed because [Tancrell] signed the petition because he was an assistant supervisor; . . . that [Tancrell] lacked character to stand on his own two feet to get what he wanted, but rather saw the labor organization to- attain [his] aims ; that [Tancrell] was 5,000 miles away in [his] thinking and attitude toward the Company." Tancrell stated "that the Union in the shop had attained more 1 All references to dates herein are to the year 1951 , unless otherwise noted. WHITIN MACHINE WORKS 283 for [the production] employees in the last year than the office employees had ever attained." Thompson replied "that if [Tancrell] was not satisfied with [his] position at Whitin Machine Works, then the best thing for [him] to do was to go seek a position elsewhere." 2 On April 12, Tancrell, who was employed in the statement section of the accounting department, met Ethel Cahill, a clerk-stenographer in the methods department, and asked her to secure for him a list of the names and addresses of the persons in her department. When she inquired as to the purpose for his request, he told her that it was a personal reason. She persisted, however, and he then told her it was to be used as a mailing list by the Union. Mrs. Cahill agreed to secure the list and prepared a document on which she typed "Please sign your name and address." She presented it to a number of em- ployees, asked them to sign it, and in several instances requested that they pass it on to others for the same purpose. When some of the employees asked her why, or for whom, the list was being circulated, she gave varying answers. Frank DeHass was told that the list was for the payroll department; William P. Boyd, Edward C. McNamee, Joseph Smolinski, and Albert Charbonneau were told it was for office records ; Alfred Arterton, that it was for "some office in- formation"; Edward H. Newbegin that it was wanted by the office ; Jennie Palek that it was for office or personnel use. When William Neulieb inquired about its purpose, Mrs. Cahill pointed over her shoulder in the direction of the offices occupied by supervisory personnel and management and said : "They want it in there." She told Avis Hawkins that Tancrell was going to send "some information to the Union" and Mary E. Anderson that it might be "for the office or . . . for the Union" and that the list was being circulated for Tancrell8 After securing 47 names and addresses, she turned the list over to Tancrell on the following day, Friday, April 13. Mrs. Cahill was ill on Monday, April 16, and never reported again for work at the office. On April 16, Francis Mateer, Mrs. Cahill's supervisor in the methods depart- ment, inquired of George B. Estes, industrial engineer in charge of that entire department, whether the latter had requested or authorized the list which had been circulated in his department the previous Thursday and Friday. Not having done so, and being unable to contact Mrs. Cahill, Estes, on April 16 and April 17, interviewed a large number of employees in his department concerning _ the circulation of the list. From them he learned that Mrs. Cahill had made the representation as to its purpose, found above. He contacted Thompson and ascertained that neither he nor his assistant supervisor, Garcelon, had au- thorized the circulation of the list. From Mrs. Anderson and Mrs Hawkins he ascertained, and satisfied himself, that the list "was connected in some manner with union work" and that it was Tancrell "who asked [Mrs. Cahill] to get the list." Estes reported to Thompson that a "fraud" had been perpetrated on the men in the methods department and that Tancrell was "the fellow in back of the list ... and the manner in which it had been passed out to the people." 2 Thompson's version of the conversation did not differ substantially from that of Tancrell, quoted in the text. According to Thompson, he made no reference to a "labor organization," but merely objected to Tancrell's participation, as a supervisor, in "group activity." l 8 The findings concerning the circulation of the list are made on the credited testimony of the persons named in the text, other than Mrs. Cahill. She testified on direct examination that in response to inquiries concerning the purpose of the list she only stated that she "did not know." On cross-examination , however, she admitted she might have told Boyd that somebody in the office wanted the list. I find it incredible to believe that Mrs. Cahill, and those whom she asked to circulate the list, would have secured the 47 signatures that were finally obtained if she had feigned ignorance as to the use to be made thereof. I 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 18, Thompson called Tancrell to his office and, without questioning him as to his connection with the list circulated in the methods department, told him "that he had made an error ... in hiring him [on January 10, 19471.... that he showed no talent as a supervisor and . . . that [he] had to let him go." Tancrell asked Thompson whether he "discharge[d] all employees who do not have supervisory ability" and Thompson replied that he did not, "only supervisors." He then instructed Garcelon to escort Tancrell out of the plant. On April 19 Mrs. Cahill returned to the plant and went to the office of Mrs. Hutcheson, the women's employment director, for the purpose of securing a leave of absence due to illness. She was directed to go to the office of Frank N. Stone, Respondent's personnel director, where she was questioned by Stone concerning her activity in circulating the list. She stated she did not know why it was circulated but admitted it was not for company purposes. Stone told her that her fellow employees were incensed with her over the false reasons assigned for obtaining the list, that he did not believe it expedient to allow her to return to the department to work, and suggested that she resign. She agreed that "the atmosphere was not pleasant" but did not respond to the sug- gestion that she resign . Stone then told her to consider herself suspended and that she would subsequently hear from him. She left the office- immediately thereafter. On the following day, Mrs. Hutcheson called at Mrs. Cahill' s home with the personal belongings that the latter had left at the office, and a prepared type- written resignation which she asked her to sign. According to Mrs. Cahill's own testimony, Mrs. Hutcheson merely asked if she cared to sign it and put no "pressure" on her. She thought about the matter for a few minutes and signed the resignation. The illness which prompted her to go to the office on April 19 for the purpose of securing a leave of absence persisted to the time of the hearing, at which latter time she was still unable to work. B. Concluding Findings 1. Tancrell's discharge The evidence establishes conclusively that Tancrell's connectt onowith the circulation of the list for the Union was the precipitating 'cause for- his dis- charge' Regardless of any impropriety or "fraud" that may have characterized Mrs. Cahill's conduct in securing the names and addresses on the list, Tancrell's activity in securing the information had for its purpose the grant of assistance to the Union and was therefore an activity protected by Section 7 of the Act.' There is not a scintilla of evidence that Tancrell participated with or prompted Mrs. Cahill to make the misrepresentations in which she indulged. Neither when Tancrell and Mrs. Cahill were discharged, nor at any other time, were they questioned as to the means and methods which Mrs. Cahill was instructed by Tancrell to employ in securing the list.' Indeed, the record discloses that Tan- crell gave her no instructions at all as to the manner in which the list was to be obtained. For all that was apparent to management, Tancrell might well 4 Thompson admitted that it "accelerated" the discharge. 4( ' in pertinent part, the section reads as follows : "Employees shall have the right to self-organization, to form, Join , or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." e Thompson categorically denied he asked Tancrell what instruction he had given Mrs. Cahill. He was not "interested in Mr . Tancrell's . . . explanations." He drew an "in- ference" only that Tancrell had a part in the deception. WHITIN MACHINE WORKS 285 have instructed Mrs. Cahill to secure the list without indulging in any impro- priety. And, because the record establishes conclusively that management entered no objection to numerous other solicitations and activities by employees during the work period and not related to their work, I can only come to the conclusion that Respondent deemed it sufficient ground to discharge Tancrell on April 18 because he had caused Mrs. Cahill to circulate the list for union purposes! Respondent, however, contends that Tancrell was discharged for valid cause and that, in any event, be was a supervisor and therefore not entitled to the protection of the Act. I find no merit in either contention. The only reason assigned by Thompson when he discharged Tancrell, ac- cording to the former's own testimony, was that he "showed no talent as a supervisor." 8 Why that fact should have resulted in Tancrell's precipitate dis- charge on April 18, 1951, was not satisfactorily explained. Garcelon, Tancrell's immediate supervisor and the man whom Thompson expected Tancrell would ultimately succeed as supervisor, was a younger man and Thompson "had no reason to believe that he would leave his position soon." Thompson testified that since,the'sunoner of 1948 he felt that Tancrell was not showing any progress in development as a supervisor, but admitted that he never spoke directly to him about it. Nor did Thompson discuss the discharge with Garcelon prior to making it effective, and though Garcelon had daily and constant contact with Tancrell, and was his immediate supervisor, he was not called as a witness! Notwithstanding Tancrell's alleged shortcomings, his salary was increased from 85 cents an hour in January 1947 to the time of his discharge as follows : March 31,1947--------------------------------------------------- $0.95 May 19, 1947---------------------------------------------------- 1.00 September 29,1947------------------------------------------------ 1.10 June 7, 1948----------------------------------------------------- 1.20 May 1,1050------------------------------------------------------ 1.30 November 20, 1950----------------------------------------------- 1.40 While five of these raises were general increases, the raise of May 1, 1950, from .$1.2O to,$1.30, was a,merit increase approved by Thompson at Garcelon's request. This, notwithstanding that Thompson had allegedly made up his mind in October 1949 that Tancrell was not supervisory material and did not have "the ability to handle the fob." Though Thompson testified vaguely about certain "misconduct," and "leakage of confidential material and trade secrets" as part of his total case against Tancrell, no credible testimony establishing such conduct was offered. Not only did Thompson admit that he had no proof to support these accusations but, according to his own testimony, when he interviewed Tancell toward the end of March 1951, following the petition for an increase in salary, the only complaint he voiced was Tancrell's resort to "group activity." w The latter's 'On April 17 Estes told Thompson that the list "probably was for union purposes." On that day Thompson's course seemed "obvious ... [to him] immediately." And in its brief, Respondent likewise states that "the actual cause of Tancrell's dis- charge on April 18, 1951, was his failure to measure up to the standards and qualifications of one holding a supervisory position." • It is well settled that failure to bring forward available evidence creates a presumption that, if produced, it would have exposed facts unfavorable to the party. N. L. R. B. v. Remington-Rand, Inc., 94 F. 2d 862 (C. A. 2) ; N. L. R. B. v. Ohio Calcium Co., 133 F. 2d 721 (C. A. 6) ; 2 Wigmore Evidence, (3rd Ed.) Sec 285. Respondent's Exhibit 4, its Organization Chart," dated August 1951, still shows Garcelon as supervisor. m Thompson's criticism of Tancrell's connection with the petition was based on the latter's alleged status as a supervisor, a status which it is hereafter found Tancrell did not possess. It was shortly after that activity, however, that Garcelon Informed Tancrell that "as far as Mr. Thompson was concerned, [Tancrell] was all done." 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that Thompson then told him that, other than his "attitude, . . . he had been satisfied with [his] work," was undenied.11 According to Thompson, he had become so dissatisfied with Tancrell's progress as an assistant supervisor by October 1949 that he came to the "realization, upon reflection, . . . after adding up all things, that he couldn't trust him for the job and that [he] -knew, as of then, he would either have to improve or be re- placed." The record compels the conclusion, however, that Thompson in May 1950 must have satisfied himself that Tancrell had improved, for he then ap- proved a merit increase of 10 cents an hour. And when Thompson was asked to specify what occurred after October 1949 to make effective his determination that Tancrell was incompetent to hold his position, he pointed only to an inci- dent in 1950, the more exact time of which he was unable to fix, when Tancrell "rubbed" his face against that of one or more girls in the office. Though Thomp- son observed the incident "with [his] own eyes," it could not have been consid- ered by him to be a serious impropriety, for no testimony was offered that he criticized or even spoke to Tancrell about it. Other than that, Respondent offered no testimony of misconduct by Tancrell until he was discharged on April 18, 1951. Notwithstanding the finding just made, Thompson testified that in December 1950 he "finally and fully determined" that Tancrell should be replaced. When asked what then caused him to arrive at that determination, he testified as follows : A. Well, I'd say re-valuation of the position that I was in, faced by a man that wasn't measuring up, and finally making my decision as to what I was going to do about it. In other words I just brought it to a head in my own thoughts. Q. What brought it to a head? A. I brought it to a head with my own thoughts on the matter. It was in December 1950, according to Thompson's testimony, that he com- menced, and continued until Tancrell was discharged, to give personal instruc- tions to Shaw during "odd moments" so that the latter could replace Tancrell and that he, Thompson, made use of the following 5 months to train Shaw as such replacement. During this entire period, however, Tancrell was not ap- prised or made aware of the fact that Shaw was being trained to replace him, nor was Shaw called as a witness to testify as to what training he required" ' When Thompson hired Tancrell as an allbged assistant supervisor in 1947, the latter was installed in that position without any training whatsoever and ap- parently without the slightest knowledge of the operations of any of the divisions of the accounting department. Why Shaw, who was already an experienced and apparently satisfactory assistant supervisor in the budget section of the account- ing department, could not have assumed Tancrell's position in 1949, or in December 1950, when Thompson had not only definitely made up his mind that Tancrell should be replaced, but was allegedly "suspected" of responsibility "The only other specific complaint concerning Tancrell was Estes' criticism and report to Thompson , 3 or 4 months prior to April 1951, that he had discovered Tancrell eating his lunch during a rest period while resting his feet on a desk and reading a newspaper. Estes, who had no jurisdiction over Tancrell, reported this to Thompson as unbecoming conduct. Though Tancrell had never before been criticized for such conduct, he abstained therefrom thereafter.. While Estes had observed other employees similarly, he could not recall ever reporting any other person. And though he drew a distinction between the propriety and impropriety of such conduct depending on the offender 's status as supervisor or employee, he did not know Tancrell's status at the time. ss See footnote 9, supra. Respondent's Exhibit 4 shows Shaw as assistant supervisor of statements in August 1951. WHIT1N- MACHINE- WORKS 287 for leakage of "confidential material and trade secrets," was not satisfactorily explained. On the entire record I am unable to credit Thompson's testimony that he fully determined in December 1950, or at any time thereafter until April 17, 1951, " to discharge Tancrell, or that he commenced training Shaw as a re- placement in December 1950. In sum, therefore, if Tancrell's termination was effectuated for the reasons now urged by Respondent, no satisfactory explanation was offered why it was not made effective earlier when all the alleged causes upon which Respondent now relies came into existence. Apparently not any one, or even the aggregate, of Tancrell's alleged shortcomings were deemed sufficient cause for discharge. It was only after Garcelon was apprised of Tancrell's organization work in behalf of tie Union and when Thompson satisfied himself that Tancrell was responsible for the circulation of the list in behalf of the Union, that he was summarily dis- charged in the middle of a pay period. - Nor is it without significance that Tancrell's discharge was discussed with J. V. Bolton, Sr., president of the corporation, during a conference attended by Bolton, Thompson, and Stone at about the time of Tancrell's discharge. Accord- ing to Stone, "Mr. Thompson merely reported that he felt obligated to let Mr. Tancrell go. He indicated that he was very much dissatisfied with [Tancrell's] services, that he was not acting as a supervisor should and felt that he should be dismissed." I find it difficult to believe that the routine dismissal of an alleged assistant supervisor, earning $1.40 per hour in a division employing a permanent complement of only 4 persons, should be discussed with the president of a corporation employing approximately 5,600 people if the only reason for discussing the discharge was as testified by Stone." In any event, and even if it be assumed that on April 18 some justifiable ground for Tancrell's discharge existed, it would constitute no defense unless it was the moving cause. Wells, Inc. v. N. L. R. B., 162 F. 2d (C. A. 9) ; N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3). Here, I am convinced that Tancrell would not have been discharged on April 18 were it not for his connection with the circulation of the list for the Union. Indeed, Thompson admitted that it "accelerated" the discharge" "Accordingly, it is immaterial that [Tancrell's shortcomings] may have been an added consideration which may have contributed to the Respondent's decision to discharge [him]." Supreme Bedding c Furniture Co., Inc., 93 NLRB 1616, footnote 17 and cases cited therein. Similarly if it be assumed, as Respondent urges the record has established, that it was not motivated by union animus in discharging Tancrell, would that factor alter the conclusion that Respondent violated the Act in discharging Tancrell for the assistance he granted the Union, or because he had engaged in other concerted activities protected by the statute. The right to engage in concerted and union activities guaranted in Section 7 of the Act, when exercised within legal bounds, does not depend upon the subjective frame of mind of the employer. Any other condition would make illusory the rights expressly guar- anteed by the Act. Once it is established, as it has been here, "that an employee's statutorily protected rights have been trenched upon by his discharge, it is is Thompson testified he made up his mind to discharge Tancrell on April 17, but decided to "sleep on it" overnight. i' Stone was not certain who brought up the subject of Tanerell at the conference with Bolton. He testified it "may have been" Bolton, who might "have . . . been informed of Mr. Tancrell and the situation as to him," and that he (Stone) "had occasion to discuss it with him." 25 In its brief, Respondent similarly concedes that "Tancrell's participation in the circula- tion of the list . . . merely accelerated [his] discharge by perhaps a few weeks." 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immaterial to a finding that the law has been violated that the discharge was not motivated by union hostility or ill intentions." Cyril De Cordova & Bro., 91 NLRB 1121.'o Indeed, under such circumstances, neither the Board nor the courts may "inquire into [the employer's] motives." f7 I further find that Tancrell was an "employee" and entitled to the protection of the Act, and not a "supervisor" as pleaded by Respondent. Certainly, neither- because he was'designated as an assistant supervisor on Respondent's records, nor the fact that he may have been told when he was first hired that he was to be an assistant supervisor, is relief foreclosed herein. Determination of status under the Act is based, not on titles bestowed by an employer, but on "the actual duties and functions of the persons alleged to be supervisors, taking into account all relevant factors, including such matters as type of work done, responsibility exercised and . . . the relative number of employees and supervisors." Silver- wood's, 92 NLRB 1114. Tancrell was employed in Respondent's statement division, one of the smallest of six or seven divisions in the accounting department. Its entire staff con- sisted of Garcelon as supervisor, Tancrell, and two female clerks. The pro- cedures and practices of the division were prescribed by an Ernst & Ernst accounting manual, and Tancrell's work, as well as that of the two female clerks, was, for the most part, routine. What specific instructions he and the girls received were generally given by Garcelon, although on occasion they came from Thompson. During Garcelon's absence from the division during the work- day, while he was ill or on vacation, and during a 2-month period in 1948 when he was engaged on a project not connected with his division, Tancrell was in charge. While Thompson testified that all "supervisory personnel in the depart- ment generally," in which category he included Tancrell,18 had authority to hire, fire, and transfer personnel, no testimony was offered that he was ever told that he had such authority. On the other hand, Thompson corroborated Tan- crell's testimony that the latter had never exercised such authority or made any recommendations in that field. Indeed, the evidence is undisputed that he was never consulted on the hiring or disciplining of any employees in his division. Though Tancrell on occasions gave instructions to the two clerks, he merely did so as a conduit for Thompson or Garcelon, and while he occasionally assisted these girls when they required help, this assistance was only of the type that any more experienced employee would give to a junior employee. Nor am I persuaded that the work of the two female clerks, neither one of whom was called to testify, was so difficult or technical as to require a supervisor for each of them. On all of the testimony I find that Tancrell was a mere employee and that the occasional and sporadic exercise of supervisory duties during Garcelon's absence, is not sufficient to establish his status as a supervisor within the meaning of the Act. Diamond Bros. Company, 96 NLRB 1420; Ball Brothers Company, Inc., 96 NLRB 265; Republic Steel Corporation, 94 NLRB 1294; Quincy Steel Castings Co., Inc., 93 NLRB No. 174; Automatic Electric Co., 78 NLRB 1057. On the entire record I conclude, and find, that Respondent discharged Tancrell on April 18, 1951, because he had engaged in activities protected by the Act, and 1e See also N. L. R. B. v. Le Tourneau Company, 324 U. S. 793 ; American Shuffleboard Co. v. N. L. R. B., 190 F. 2d 898 (C. A. 8) ; Republic Aviation Corp. v. N. L. R. B., 142 F. 2d 193, affd. 324 U. S. 793; N. L. R. B. v. Gluck Brewing Co., 144 F. 2d 847, 853 (C. A. 8) ; The Office Towel Supply Co., Incorporated, 97 NLRB 449. 17 N. L. R. B. v. Gluck Brewing Co., supra. 11 Also included in this group was one Gendron, an alleged assistant supervisor of budget, who, though he held that title, was occupied solely in feeding documents to a microfilm camera. WfIITIN MACHINE WORKS 289 that by such discharge, Respondent violated Section 8 (a) (3) thereof. By that discharge Respondent also interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby violated Section 8 (a) (1) thereof. 2. The alleged unlawful discharge of Mrs. Cahill Two issues are presented by this phase of the case, first, did Mrs. Cahill voluntarily resign as alleged by Respondent, or was she discharged as pleaded by the General Counsel, and second, if she was discharged, was that termination effectuated because she had engaged in activities protected by the Act. While the evidence is undisputed, and it is accordingly found, that Mrs. Cahill executed a written resignation at her home on April 20, and that Mrs. Huheson exerted no "pressure" on her at the time, those facts are not determi- native of the first issue. It is only if the foregoing findings were to be con- sidered in isolation that such a disposition could be made. The record, however, discloses other undisputed facts occurring on and prior to April 20, facts in- extricably interwoven with the actual termination and which must be con- sidered before final resolution of the issue can be made. Thus, and without regard as to the reason therefor, the record is conclusive that Respondent on April 19 was desirous of terminating Mrs. Cahill's services. Stone himself testified that he "suggested" to her on that day that she resign 19 Not receiving a favorable reply, he then told her to consider herself suspended and that she would subsequently hear from him. The message which she was told to expect and the next event which sheds light on the issue, was the appearance of the women's employment director within 24 hours, at the home of Mrs. Cahill, with another demand for her resignation and the delivery of her personal belongings. I do not perceive how the sum total of the events just found can lead to any other conclusion than that Mrs. Cahill was to consider herself discharged. The additional signed resignation perhaps enabled Respondent to so characterize the termination on its records, but in legal contemplation it was a nullity-Mrs. Cahill had already been discharged. No other significance can be attached to the delivery of her personal belongings accompanied by the repeated demands for her resignation. The disposition I have made of the signed resignation was dictated in sub- stantial part by the impression made upon me by Mrs. Cahill as a witness. Advanced in years, her bearing and demeanor at the hearing disclosed her to be of an extremely timid nature. I am convinced that she recognized Stone's determination to discharge her and realized that if she did not sign the resigna- tion her employment record would be marred by her immediate discharge. As she herself expressed it, though she "wasn't going to [sign] it as first," she then concluded : "Well, what's the use, I might as well." I find that Respondent discharged Mrs. Cahill on April 20. The second question posed by Mrs. Cahill's discharge is whether it was im- posed because she had participated in activities protected by the Act. The record is conclusive that the only union or concerted activity in which she par- ticipated was the circulation of the list at Tancrell's request. She had never made application to join the Union and, so far as the record discloses, was not otherwise active or interested in its affairs. Nevertheless, the actual circula- tion of the list was an act of assistance to the Union and, if properly exercised, was an activity protected by Section 7 of the Act. If, therefore, Mrs. Cahill's 1014s. Cahill testified Stone told her that if she did not sign the resignation, he would have to fire her. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services were terminated because she had been so engaged, her discharge would be violative of Section 8 (a) (3) of the Act. Respondent, however, contends that her employment was terminated because of the deception under which she circulated the list and the effect that deception had on those who had been deceived. In support of that defense, Frank DeHaas, Wm. P. Boyd, Wm. Neulieb, Alfred Arterton, Edward C. McNamee, Everett -New- begin, Joseph Smolinski, and Paul Wheeler, all of whom signed the list, testified convincingly as to their strong resentment against the manner in which their signatures were obtained. All of them also testified that they were either un- willing, or extremely reluctant, after the event in question, to trust Mrs.•Cahill with their dictation or other work which they would normally assign to her.-' In approaching a solution of the problem, I am not unmindful that in the administration of the Act, the Board must constantly make certain that the freedom to, engage in protected activities be not defeated by subterfuge or, unsubstantial matters screening reality. On the other hand, the Board must, ,with equal zeal, protect the rights of an employer to discharge his employees for any valid cause, or indeed without cause, so long as the termination is not brought about because the employee has engaged in an activity protected by the statute." The Act imposes no duty on an employer to retain the services of an employee who has lied to him about an activity carried on during working hours on the employer's premises, or who has so conducted herself as to become persona non grata to her fellow workers. N. L. R. B. v. Wytheville Knitting Mills, 175 F. 2d 238 (C. A. 3). And in arriving at a resolution of the issue presently posed, it must be remembered that the burden of proof rests on the General Counsel to establish by a preponderance of the evidence that Mrs. Cahill was discharged because she had been of assistance to the Union. If the scales are evenly balanced between such proof and that offered in support of Respondent's contention, the allegation of discriminatory discharge has not been sustained and must be dismissed. Applying the foregoing principles, I find that the General Counsel has not sustained the burden resting on him as above described. On the contrary, the entire record and my observation "of the witnesses convinces me, and I accordingly find, that Mrs. Cahill was discharged because of the deception she practiced on management and her fellow employees, and the latter's resultant refusal or reluctance to have her do any further work for them. The testi- mony and demeanor of the group of eight witnesses named in the second preced- ing paragraph convince me that their resentment was genuinely motivated by the deception that had been practiced on them, and not otherwise. Nor am I convinced that the testimony of Mrs. Cahill, Estes, Stone, or any other witness, standing alone or collectively, establishes other than that Mrs. Cahill was dis- charged because she had lied to management concerning what she had told prospective signers of the list, and because of the deception she had practiced on her fellow employees together with the consequent mistrust engendered in their minds. And, though a suspicion of illegal discrimination may be aroused because the deception of which she has been found guilty was connected with a protected activity, the entire record does not convince me that Mrs. Cahill was 20 Though the record discloses that, to the time of Mrs. Cahill's discharge, only Neuliea, Arterton, and Newbegin told Estes of their objection to the assignment of further work to Mrs. Cahill, a failure of proof in this respect as to the remainder is without controlling significance. u Associated Press v. N. L. R. B., 301 U. S. 103. WHITIN MACHINE WORKS 291 discharged because she had been of assistance to the Union 2' Accordingly, it will be recommended that the allegations of the complaint charging that Re- spondent discharged Mrs. Cahill in violation of Section 8 (a) (3) of the Act be dismissed. 3. Interrogation of employees The General Counsel contends that by questioning its employees whether "they had signed the list and if [they] knew the purpose for which the list was circu- lated," Respondent interfered with the rights of employees to engage in concerted activities in violation of Section 8 (a) (1) of the Act. I do not agree. Inasmuch as the circulation of the list took place during working hours on company prop- erty, and was represented by Mrs. Cahill as being requested by management, Respondent had a right to investigate the facts and determine whether any of its employees were guilty of a breach of trust;' or deception. I, therefore, find that Respondent did not violate the Act by interrogating its employees for the purpose just described. Pure Oil Company, 75 NLRB 539; Association of Motion Pictures Producers, Inc., 79 NLRB 466, 496. Nor do I find any credible evidence estab- lishing that Respondent "on or about April 15, 1951, [otherwise] interrogated its employees concerning their union and concerted activities" as alleged in the com- lilaint. I will, therefore, recommend that that entire allegation be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment of Raymond M. Tancrell, I will recommend that, in order to effectuate the purposes and policies of the Act, Respondent offer him immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. It will also be recommended that Respondent make Tancrell whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by pay- ment to him of a sum of money equal to the amount he would normally have In Even if it be assumed, arguendo, that the discharge was imposed because Mrs. Cahill had been of assistance to the Union , a serious question would arise as to whether or not her deception in connection with that activity deprived her of the protection which Section 7 of the Act otherwise provides. The guarantees found in that section are not absolute Cf. N. L. it. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240; Scullin Steel Company, 65 NLRB 1294 , 1317, enfd. in 161 F. 2d 143 (C. A. 8) ; Jefferson Standard Broadcasting Company, 94 NLRB 1507. See also American Shuffleboard Co., 92 NLRB 1272, enfd. 190 F. 2d 898 (C. A. 3), and Westinghouse Electric Corporation, Ansonia Plant, 77 NLRB 1058, enforcement denied on other grounds, 179 F. 2d 507 (C. A. 6). In both of the latter cases, while the Board found the employees involved to have been discriminatorily discharged notwithstanding that they had falsely reported to fellow employees statements mode by management at conferences between the two groups, the Board pointed out in the Shuffle- board case that the statements were not "deliberately or maliciously false," and in the Westinghouse case that there was no "deliberate intention to falsify." In the case of Mrs. Cahill, no such finding could be made. 23 Mrs. Cahill had on earlier occasions circulated similar lists the circulation of which had, however, been authorized or approved by management 22,7260--53-vol. 100--20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned as wages from the date of his discharge, to the date of Respondent's offer of reinstatement, less his net earnings during that period" Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent 's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters,, shall-begin with the first, day of January, April, July, and October. 'Loss oft pay shalt be determined by deducting from the sum equal to that which Tancrell would nor- mally have earned for each such quarter or portion thereof, his net earnings, 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. It will also be recommended that Respondent , upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as back pay. , , Since I have found that Respondent did not discharge Ethel Cahill'becapse she had engaged in any activity protected by the Act, and that it did not on or about April 15, 1951, interrogate its employees in violation of Section 8 (a) (1) of the Act, it will be recommended that the allegations of the complaint per- taining to both these matters be dismissed. Though a discriminatory discharge for engaging in union activities is one of the most serious violations of the Act and has frequently been regarded by the Board as sufficient to justify a broad cease and desist order, I am not "per- suaded, upon this record, that Respondent has demonstrated a general intent to defeat self-organization and an attitude of opposition to the purposes of the Act. [I am] particularly mindful in this regard of the Respondent's past amica- ble relations with [the Union] and the fact that [it] had been dealing with the Union [as representative of over 3,000 of its production and maintenance em- ployees] under a collective bargaining agreement. Under all the circumstances I believe that the policies of the Act will be adequately effectuated by ordering the Respondent to cease and desist from the unfair labor practices found and from any like or related conduct." Leadbetter Logging d Lumber Co., 89 NLRB 576. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS oB' LAw 1. United Steelworkers of America, CIO, is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ray- mond M. Tancrell, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent did not violate Section 8 (a) (3) of the Act by discharging Ethel Cahill. 6. Respondent did not violate Section 8 (a) (1) of the Act by interrogating its employees on or about April 15, 1951, as alleged in the complaint. [Recommendations omitted from publication in this volume:] u See Crossett Lumber Co., 8 NLRB 440. 21 F. W. Woolworth Company, 90 NLRB 289. SCRIPPS-HOWARD RADIO, INC. 293 Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, 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 discharging or refusing to reinstate any of our employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor ,Organizations, to join or assist UNITED STEELWOIttIcERS OF AMERICA, CIO, ors any other labor organization, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Raymond M. Tancrell immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. WHITIN MACHINE WORKS, Employer. Dated------------------------------ By----------------------------------- (Representative) (Title) This notice must remain posted 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SCRIPPS-HOWARD RADIO , INC. and TELEVISION AUTHORITY, PETITIONER." Case No. 8-RC-1510. July 21,1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Carroll Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. "The American Federation of Radio Artists intervened in this case and joined with the Petitioner in seeking an election. The intervention is based on their proposed merger into one organization, to be called American Federation of Television and Radio Artists, which was to become effective on or about July 1, 1952. 100 NLRB No. 53.