National Co., Inc.

NATIONAL COMPANY, INC. 615 NATIONAL COMPANY, INC. and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO. Case No. 1-CA-1202. May 4, 1953 DECISION AND ORDER On November 14, 1952, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, in violation of Section 8 (a) (3) and (1) of the Act, 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 of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications2 and additions. We agree with the Trial Examiner that the Respondent discriminatorily discharged employees Lloyd M. Powers and James R. Starr in violations of Section 8 (a) (3) and (1) of the Act. Starr and Powers led the IUE organizing campaign at the Malden plant in 1952.' On the evenings of May 12 and 19 of that year, they both attended union meetings . At the latter meeting Powers and Starr obtained membership cards, union buttons, and stickers to be distributed to employees in the plant. The next morning Starr and Powers passed out these materials to other employees at the plant. They themselves posted 8 or 10 union stickers in their working areas . Starr, who worked in the welding department, glued several stickers to his press machine and nearby surfaces. Powers posted stickers on several chairs and 1 on the door of each of 4 or 5 fuse boxes near his machine. Before the shift began, Starr I 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 )Members Houston, Murdock, and Styles). 2The Intermediate Report contains a minor misstatement of fact which does not affect the Trial Examiner's ultimate conclusions of our concurrence therein. Accordingly, we note the following correction: The Trial Examiner , in referring to events occurring in the union campaign that took place a year before the campaign involved in the instant case, stated that they took place in 1950; the previous union campaign took place in 1951. a The background of this case reveals that Starr was active in the union organizational campaign that took place in the Malden plant in the spring of 1951. During that campaign he was called in by Bigelow and warned about the use of company materials and machines in making union campaign signs. Powers took no part in the 1951 campaign. However, in April or early May of 1952 he began wearing a large CIO button. Powers' foreman chided him about the button and Bigelow, sometime in April or May, noticing the button, questioned Powers about the likelihood of renewed union activity in the plant. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Powers also passed out union-membership cards, and during the morning many of the other employees signed and turned these cards back to them. Richard Moore, an employee in Foreman Sambuceti's welding department, testified that Sambuceti knew that he had turned a signed card over to Starr during the morning. And during the coffee break that morning, Powers received a signed card from Francis Palumbo in the presence of Sambuceti, who was admittedly aware of the nature of the transaction. That afternoon Powers and Starr were called, individually, into Bigelow's office where Bigelow accused each of them of having posted union stickers in the plant. Both employees initially denied, then admitted, having done so. Bigelow told them that by posting union stickers in the plant they were guilty of having defaced company property, and for that reason they were discharged. a The Respondent called only one witness to testify regarding the stickers posted in the plant and the conduct, or misconduct, of Powers and Starr on May 20, the day of their discharge. That witness was George Sambuceti, foreman of Starr's department, the department immediately adjacent to Powers' department. Sambuceti testified that when he arrived that morning he saw a large number of stickers on doors, walls, ramps, posts , windows, fire extinguishers , and fuse boxes, particularly in his department. He also saw Starr post a sticker and Powers prepare one, presumably with the intention of posting it. On cross-examination, however, he testified that he did not know who put up the stickers; he did not investigate, and was not interested in determining who posted them; he instituted no disciplinary action whatsoever; he spoke to no official of the Respondent that day concerning Powers or Starr; and when he left the job at noon on May 20, he did not know that Powers and Starr were to be discharged that afternoon. The Respondent contends principally,5 that Powers and Starr were discharged for having violated, by posting gummed stickers in the Respondent's plant, an unwritten but self-evident rule against defacing company property. However, as pointed out by the Trial Examiner and admitted by Bigelow on cross- examination, no rule against the posting of notices or circulars in the plant had been communicated to Respondent's employees generally before the discharge of the complainants. The Respondent theretofore had permitted liberal posting of various circulars with little or no restraint. Not until 2 days after Powers and Starr were discharged did the Respondent post a warning to its employees against "defacing" company 4 The testimony of Starr. Powers, and Bigelow reveals, without contradiction , that no other reason was given the complainants for their discharges. 5 To justify the dismissal of Powers and Starr. the Respondent makes additional charges against them , concerning horseplay, the creation of safety hazards, union activities on company time, and the enlistment of assistance of other employees in posting the stickers, all occurring on May 20, 1952. These charges find little support in the record and Sam- buceti's testimony shows that he considered these alleged offenses to be of no consequence. Bigelow did not mention them to Powers and Starr at the time they were discharged and, having been raised for the first time in its brief to the Board the charges appear to be patent afterthoughts on the part of the Respondent. NATIONAL COMPANY, INC. 617 property, and this ambiguous prohibition was not thereafter invoked to restrain the practices previously permitted by the Respondent. It does not appear from the record that any other employees were ever discharged or otherwise disciplined on the ground that they had defaced the Respondent's property. Atkinson, formerly a foreman in Respondent's Malden plant, testified that he knew of neither the existence nor the enforce- ment in any other instance of a rule against defacing company property. Foreman Sambuceti's testimony indicates that he considered the alleged offenses of such little consequence as to warrant neither disciplinary action on his part nor notification of the incident to his superiors. His testimony further indicates that in discharging Starr the Respondent entirely bypassed Starr's foreman and immediate superior. The Respondent asserts that both Powers and Starr had previously been warned against the posting of campaign literature in the plant. In support of this assertion it introduced into evidence a letter sent to employee Kendall during the 1951 union campaign which warned against the use of company materials to fashion union campaign items; Starr admitted having seen this letter. The letter, however, does not refute the testimony of either Powers or Starr that they had received no warning concerning the mere posting of stickers in the plant. Moreover, a rule designed to permit the posting of any notices or circulars except union materials would, in any event, afford no justification for the Respondent's conduct.6 We find, contrary to the Respondent's contention, that it had full knowledge of the union activities of both Starr and Powers at the time of their discharge. We further find on the basis of the foregoing and the entire record in this case, including the severity of the discipline accorded Powers and Starr, that the Respondent seized upon their alleged misconduct as a pretext to rid itself of the two most active union adherents in the plant for the purpose of crushing the Union's organizational campaign at its very inception. The Respondent thereby violated Section 8 (a) (3) and (1) of the Act. 2. We agree with the Trial Examiner that the Respondent unlawfully discriminated against Francis Keating by trans- ferring him to a degreasing job on July 8, 1952, and by laying him off on July 16, 1952. We do not, however, agree that Keating was discriminatorily laid off from May 21 to June 9, 1952, or discriminatorily denied overtime. As indicated in the Intermediate Report, Keating was the leader of the Union's organizational campaign at the Melrose plant from its beginning on May 20, 1952. He openly distributed union leaflets before the plant's single entrance and in the plant parking lot. He was active in signing up new members and in distributing union buttons, one of which he himself wore. It is apparent from the record, and we find, that the Respondent had knowledge of Keating's union activities at all times material herein. 0Standard- Coosa- Thatcher Company, 85 NLRB 1358, 1364, and cases cited therein. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 21, 1952, Keating was laid off by the Respondent on the ground that he had a contagious skin infection. The Trial Examiner found that this layoff was for the purpose of ridding the plant temporarily of its union leader. Although the matter is not free from doubt, we find, contrary to the Trial Examiner, that the evidence does not preponderate in favor of a finding that this layoff of Keating was violative of the Act. We also find that the evidence is not sufficient to warrant a finding that Keating was discriminatorily denied overtime. The events following these incidents, however, are in a different posture. Keating had been employed over a 2-year period successively by the Respondent as an assembler, an inspector, an assembler at $1.l0anhour,andas an assembler- instructor at $ 1.17 an hour. The work for which his assembly line operated was nearing completion during the latter part of June 1952. The record indicates that other assemblers in his department were gradually transferred to assembly lines on the second and third floors of the Melrose plant. Keating had not been transferred by the time his work was completed on July 8. On that date he was sent for reassignment to John A. Bigelow, manager of industrial relations for the Respondent. When Keating arrived at Bigelow's office in the Malden plant, the latter told him that there were only four jobs open in the Respondent's plants at that time: electronics technician, spot welder, toolmaker , and a degreasing job. Bigelow was aware that Keating was not qualified to fill any of the first three positions but nevertheless asked Keating specifically about each one. As to the degreasing job, Bigelow testified that "it was a job that I hated to offer him, I didn't think he was going to like it. . . .-7 Bigelow offered either to put Keating on the degreasing job until a more suitable one turned up or to put him on a preferred hiring list and recall him when a more suitable job was available. Keating expressed displeasure with the cut in pay, from $1.17 an hour he had been receiving as an assembler-instructor to $1.02 an hour for degreasing, but he decided to take the degreasing assignment rather than be laid off. Bigelow permitted Keating to continue for the remainder of the week at $1.17 an hour but told him that he would receive the regular $ 1.02 rate after that. Keating worked in degreasing the remainder of that week. On Tuesday of the following week he became ill at work. He was told to see Bigelow the next day about another job and then sent home. The following day, July 16, Keating saw Bigelow and asked for another job, stating that he didn't care to go back to the degreasing job because it would probably make him ill again. Bigelow told him there were no other jobs available at that time and put Keating on layoff status, saying that he would recall Keating when there was an opening in a position for which Keating was qualified. Since the time of his termination, Keating has not been contacted by the Respond- ent nor offered reemployment in any position whatsoever. 7 Bigelow conceded at the hearing that he may have characterized the job as "dirty." NATIONAL COMPANY, INC. 619 At the hearing Bigelow testified on direct examination that when Keating was transferred to degreasing , "We were perfectly willing to offer him anything he was capable of doing," but "there was no work in the particular occupation that he was experienced in or had had experience in," except for the "four jobs." He also stated that he didn't believe that the Respondent had, since July, hired anyone for jobs Keating was capable of performing. As described above, Bigelow told Keating at the time of his transfer and layoff that there were no jobs available, other than the four offered him. However, Bigelow admitted, on cross-examination, that at the time of Keating's transfer and termination the Respondent was advertising for new assemblers, trainee assemblers, and inspectors.$ He further admitted that at that time the Respondent needed, and there was work available for, inspectors, trainee assemblers and class Aassemblers,19 the latter classification paying $1.107 an hour. Finally, Bigelow admitted that since the time of Keat- ing's termination on July 16, the Respondent had hired new employees in jobs which Keating was capable of performing, including assemblers and trainee assemblers. The record shows, and Bigelow further admitted in his testimony, that at the time of Keating's transfer and layoff, Keating had more seniority than employees employed by the Respondent as assemblers in other departments. The record also shows that it was the policy of the Respondent in laying off employees to release those with the least seniority, without regard to departmental lines. On the basis of these facts we are persuaded, and find, that a job as an inspector or assembler was open at the time Keating was offered the less desirable job of degreasing and that he would have been transferred to one of the former jobs but for his union activities. We find that, by transferring Keating to the degreasing job and eventually laying him off, the Respondent discriminated against him for the purpose of discouraging union activities in its plant and thereby violated Section 8 (a) (3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices as set forth above, we shall order that it cease and desist therefrom and that it take 9At one point in his testimony Bigelow justified his failure to offer Keating a job as an assembler on the ground that Keating had indicated an intention to accept only a job paying $1.17 an hour or more and that Keating would therefore not have considered an assembler's job at $1.10 an hour . This position is untenable because Bigelow did offer Keating a less desirable job paying only $1.02 an hour , which Keating accepted and only later gave up because he thought it made him ill. 9 Although these admissions were specifically made by Bigelow, when pressed on cross- examination as to whether he told Keating that a job as an inspector was open, Bigelow replied, "No, because it wasn't vacant." His testimony in this and other respects was self-contradictory and singularly lacking in candor . However, Bigelow appeared and testified as a responsible official of the Respondent; we shall therefore accept so much of his testi- mony as'may be considered admissions against interest. 62 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent, by the discharges described above, has discriminated against Lloyd M. Powers and James R. Starr. We shall order the Respondent to offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of pay they may have suffered by reason of the 'discrimination, to be computed in the manner set forth in the section of the Intermediate Report entitled "The Remedy." We have found that the Respondent did not unlawfully dis- criminate against Francis Keating by temporarily laying him off between the dates of May 21 and June 9, 1952, and by denying him overtime work. We shall not therefore order that Francis J. Keating be made whole for any loss in wages he may have suffered as a result of this conduct. We have found that the Respondent discriminated against Francis J. Keating by failing to offer to him certain positions of employment on July 8 and at various times thereafter, as described above. We shall therefore order the Respondent to offer him employment in the position, or one substantially equivalent thereto, which he would have had if the Respondent had not discriminated against him on July 8, 1952, without prejudice to his seniority or other rights or privileges, and to make him whole for any loss of pay he may have suffered by reason of the discrimina- tion, which sum shall be computed in the manner set forth in the section of the Intermediate Report entitled ''The Remedy." We have found that the Respondent has violated Section 8 (a) (3) and (1) of the .Act. In our opinion, the commission of unfair labor practices generally is reasonably to be anticipated from this unlawful conduct in the past. We shall, therefore, order the Respondent to cease and desist not only from the unfair labor practices herein found, but also from inany other manner infringing upon the rights of the employees guaranteed in Section 7 of the Act. ORDER Upon the basis of the above findings of fact and the entire record in this case, and pursuant to Section 10 (c) of the N :`ional Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, the National Company, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Electrical, 4Radio and Machine Workers, CIO, or any other labor organization of its employees, by disc riminatorily laying off or discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, 6r-,any term or condition of employment. NATIONAL COMPANY, INC. 621 (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 International Union of Electrical, Radio and Machine Workers, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized inSection8 (a) (3) of the Act, 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 to Lloyd M. Powers and James R. Starr immediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority and other rights and privileges. (b) Offer to Francis J. Keating immediate employment in the position, or one substantially equivalent thereto, which he would have had if the Respondent had not discriminated against him, without prejudice to his seniority and other rights and privileges. (c) Make whole the same employees, in the manner set forth in the section above entitled "The Remedy," for any loss of pay they may have suffered as a result of the discrimination against them. (d) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (e) Post at its plants in Malden and Melrose, Massachusetts, copies of the notice attached to the Intermediate Report and 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 the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days in con- 10 This notice, however, shall be, and it hereby is, amended, first, by striking from the first paragraph thereof the words , "The recommendations of a Trial Examiner " and sub- stituting in lieu thereof the words, "A Decision and Order," and, second, by substituting for the last sentence of the first paragraph thereof the following sentence: WE WILL offer to Lloyd M. Powers and James R. Starr immediate and full rein- statement to their former or substantially equivalent positions, and to Francis J. Keating employment in the position, or one substantially equivalent thereto, which he would have had if we had not discriminated against him , without prejudice to their seniority and other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. 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. " 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Decision and Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges violations of the Act different from those found in this Decision and Order, be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Charges having been duly filed and served , a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named company, herein called the Respondent , a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended , 61 Stat . 136, herein called the Act, was held in Boston, Massachusetts, on October 1 and 2, 1952, before the under- signed Trial Examiner In substance the complaint , as amended , alleges and the answer , as amended , denies that: (1) On May 20, 1952, the Respondent discriminatorily discharged employees Lloyd M. Powers and James R. Starr , and discriminatorily laid off, transferred , and thereafter discharged, on May 21, July 8, and July 16, respectively, employee Francis J. Keating, because of their union activity ; and (2) by said conduct and by interrogation, threats , and sur- veillance interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by the Act. At the hearing all parties were represented, and were afforded full opportunity to be heard , to examine and cross -examine witnesses , to introduce evidence pertinent to the issues , to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law . A brief has been received from the Respondent. Disposition of a motion to dismiss the complaint , made at the close of the hearing , is made by the following findings , conclusions , and recommendations . Allegations as to surveillance were dismissed , upon motion, during the hearing. Upon the entire record in the case , and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT National Company, Inc., is a Massachusetts corporation engaged in the manufacture of radio and radar type of equipment. It operates 2 plants, one in Malden, the other in Mel- rose, both in Massachusetts. The Respondent has gross sales of more than $ 1,000,000 annually , and products valued at more than $ 100,000 are annually shipped directly to points outside Massachusetts . The Respondent is extensively engaged in defense work for the United States Government. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical . Radio and Machine Workers , CIO., is a labor organiza- tion admitting to membership employees of the Respondent. NATIONAL COMPANY, INC. III. THE UNFAIR LABOR PRACTICES A. Facts and issues 623 All major issues arise from an organization campaign openly begun by the Union at both plants on May 20, 1952. At the Maiden plant the employee leaders were Lloyd M. Powers and James R. Starr . while at the Melrose plant the employee leader was Francis J . Keating. Before working hours on May 20, at the Malden plant Powers and Starr passed out union campaign material to other employees and also pasted several stickers , measuring about 31 by 4 inches, in various places near and on their machines . The stickers bore the printed legend "Let's Go. IUE-CIO, IUE-CIO-GE Organizing Committee." Both Powers and Starr were summarily discharged during the afternoon of May 20 by John A. Bigelow, manager of industrial relations. Bigelow told each he was being dismissed for "defacing " company property. On May 20, also, the organizing campaign began at the Melrose plant with Keating as chairman' of the employees' committee. During the lunch hour that day Keating busied him- self in and around the plant passing out union cards . The next day the Melrose plant manager, Harold F. Watts , through the company nurse , ordered Keating to go to see the company doctor, Dr. Lynch, despite the employee' s protest that he had , but a few days before, been to the same clinic upon ,his own volition and the company nurse's advice , and by that doctor's written clearance, brought back to the nurse , had been permitted to return to work. It appears that Keating had some type of fungus infection on his hand . The doctor whom he first visited, upon the company nurse's instructions , told him only to cover his hands, and put salve upon them. The Company provided him with gloves , which he wore until Watts sent him back to the doctor. This time Dr. Lynch gave him the same treatment provided by the other doctor, but advised the Company , in effect , that Keating should not be permitted to work. In his letter to the Company, dated May 21, Dr. Lynch stated that he had examined Keating "at your request." When Keating returned from the doctor 's office on May 21, however , he was told by the company nurse that Watts had already been informed of the doctor's "advice," and he was immediately sent to see Bigelow , at the Malden plant . Bigelow gave him his check and laid him off. After a couple of weeks of the treatment prescribed by Dr. Lynch, which failed to clear the trouble, Keating went to another doctor , of his own selection , and the infection promptly was cured . Dr. Lynch finally permitted him to return to work about June 9. During the period of his layoff Keating had continued his union activity outside the plant . On Friday of the week of his return he asked his foreman, Herbert Thomp- son, for overtime work the next day, since he had been laid off so long . Thompson told him that Watts had instructed him not to give Keating any more overtime , ' and said that while Watts had not mentioned it, he figured it was because Keating was too wrapped up in the Union. The foreman advised him he had better "get another job." At this time Keating was an assembler -instructor on an assembly line . Early in July the contract covering the material being assembled on that line ran out . A number of other employees on the line were transferred to other departments . Keating was instructed to "stay around" and when the job was completed he would be put in the stockroom to help with inventory. When the job was finished , however, Watts sent him to Malden to see Bigelow. Bigelow told him, despite the fact that , according to his own admission , the Company was at the same time advertising for assemblers and inspectors for work which Keating had per- formed before being promoted to instructor , that hehad only one job open for him, so "dirty" he probably would not want it . It was a "degreasing" job, working over acid fumes. Keating took the job, despite its considerable reduction in pay. Within a few days, how- ever, after having given blood to the Red Cross, on July 14, the fumes made him ill and he had to go home on July 15. He came in the following morning and told Bigelow that he would be sick again if he had to return to the degreasing room . Bigelow replied that there was no other work available, and laid him off. Although Bigelow, as a witness , admitted advertising for new help and admitted that since Keating's layoff in July there have been vacancies Keating is capable of filling, the employee has not been offered reemployment in any capacity. The treatment accorded to the three union leaders is in issue. B. Conclusions It is concluded and found that before the Respondent took any action against the 3 employees it was aware of their union activities . All 3 engaged openly in such activities on May 20. 1 Thompson, still a foreman at the plant, admitted that he had told the employee Watts had given such instructions. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no dispute as to the facts that Powers and Starr were discharged by Bigelow and that his action followed their putting up, in the plant, stickers advertising the Union. The Respondent claims that such discipline was involved because the stickers "defaced" company property; General Counsel contends that it was exercised to discourage union membership. Severe doubt upon the validity of the Respondent's claim is cast by the fact that the Com- pany had long permitted, and continues to permit, the posting of many kinds of notices at various places on walls and doors, other than bulletin boards., Such material includes notices regarding the Red Cross, fund-raising drives, baseball pools, barroom advertising, an- nouncements by employees of personal property for sale, campaigns by individuals for votes in seeking office on recreation committees, bowling scores, and newspaper clippings. Such notices are put up by thumbtacks, scotch tape, and nails. The preponderance of evidence establishes, and the Trial Examiner finds, that the Respondent discriminated as to the type of material it permitted employees to put up. Credible evidence establishes, and it is also found, that until after the discharge of Powers and Starr, the Respondent never informed employees generally that it objected to the posting or pasting up of any kind of notices elsewhere than on bulletin boards. On May 22 Bigelow posted a notice stating in part: In accordance with Company policy any employee who is found defacing Company property will be subject to immediate discharge. It appears that "Company policy," if any , was established on May 20, in discharging Powers and Starr , and that the "defacement of" company property was to be considered by employees to mean only the posting of union stickers . The evidence is clear that no one else has ever been fired for posting anything else, and other types of material have continued to be posted generally. If the definition of "defacement" is to be limited , as apparently it has been by the Respondent , to include only the posting of union stickers , then the rule as inaugurated on May 20 is discriminatory and illegal. Such being the case, small space need be devoted here to the Respondent ' s claim that Bigelow warned both Powers and Starr , individually , before the event , that no signs must be hung "around the plant." Bigelow was an untrustworthy witness on this point. As to Powers , he said he "thought" he had warned him, and he could not remember when it was. As to Starr , he said warning was given sometime in 1950 . During the 1950 organizational campaign no stickers were used and no occasion would have arisen for such a warning. Finally, had any occasion actually arisen for the giving of specific warnings , before the event, it is reasonable to believe that Bigelow would have made the warning general and would have posted a notice. Yet no notice was posted until after the discharge of Powers and Starr . The Trial Examiner specifically finds that neither Powers nor Starr was warned that his job would be in jeopardy if he pasted up union stickers. The preponderance of credible evidence establishes , and the Trial Examiner finds, that Powers and Starr were discriminatorily discharged on May 20. 1952 , in order to discourage union membership, and that by such action the Respondent interfered with , restrained, and coerced employees in the exercise of rights guaranteed by the Act. Equally summary treatment, although of a different nature, was visited upon Keating at the Melrose plant, the day after he openly began the organizational campaign there. No credible explanation was adduced by the Respondent for Watts ' orders that he be sent back to see the doctor. Only Bigelow , whose office was at the other plant , said he had been "ad- vised" by the nurse at Melrose that Keating had not been " following the treatment pre- scribed" and 'that because a "number of people" working beside Keating "were disturbed," "we" sent him back to the doctor . Bigelow has already been found to be an untrustworthy witness . His testimony on the matter finds no support in surrounding circumstances, since he was at the Malden , not the Melrose, plant ; and no one at the Melrose plant whom Bigelow involved in his testimony--the nurse , the foreman , the doctor, or any employee--was called to testify on the matter. The Trial Examiner is aware that two doctors may honestly disagree as to treatment of the same patient. Where neither doctor is brought forward , however, as a witness, the credibility of neither is possible of determination. Bigelow, the one company witness, on the matter, is discredited by his own confused and contradictory = testimony. The facts 2 At one point in the record, within a space of 3 or 4 questions, Bigelow both denied and admitted hiring new men for jobs which Keating is capable of performing . At another point. within the space of 8 answers, he both admitted and denied there were vacancies open for inspectors, at about the time of Keating's final layoff. NATIONAL COMPANY, INC. 625 as related by Keating stand without credible refutation. From them the inference is clear, and the Trial Examiner finds, that it was at the Respondent's "request" that Dr. Lynch provided it with the letter of May 21, and with a pretext to rid the plant temporarily of its union leader. It is therefore found that the layoff beginning May 21 was discriminatory, to discourage union membership. Support for the foregoing conclusion is found in the fact, admitted by his foreman, that upon his return to work he was told Watts had ordered that he be given no more overtime The state of the record is such, however, that the Trial Examiner is unable to determine precisely how much, if any, overtime Keating was thereafter actually deprived of. No recommendation as to back pay for such overtime will be made. Thompson's statement to Keating, however, that he was not to be given overtime on Watts' orders, and Thompson's advising him that he "figured" it was because he was "wrapped up" in the Union, and his recommending that the employee seek another job, all and separately constitute interference, restraint, and coer- cion. The Trial Examiner concludes and finds that Keating was discriminatorily transferred, on or about July 8, 1952, to the admittedly dirty and lower-paid job as a degreaser, in order to discourage his union activity. The Respondent was advertising for new help, at this time, on jobs Keating was capable of filling. As to the ultimate and final layoff of Keating, the conclusion is inescapable that the Re- spondent, failing by other methods of discrimination to discourage Keating's continued union activities, finally forced him into a dirty and disagreeable job at reduced pay, resulting in illness. Discrimination in the layoff is established beyond question. Keating had been long trained in assembly work; he was of sufficient capability to have been recommended by his foreman as a leader , and had been serving as an instructor. Yet he was let go, from a plant admittedly engaged in defense work, at a time when the Respondent was advertising for men to do and to learn precisely the sort of work which Keating had long and satisfactorily been performing. The layoff of Keating on July 16, 1952, was, in effect, a discriminatory dis- charge, for the purpose of discouraging union membership, which thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY It has been found that the Respondent has engaged in and is engaging in unfair labor prac- tices It will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent, by the layoff, transfer, and discharges described above, has discriminated against certain individuals in regard to their hire and tenure of employment. It will therefore be recommended that the Respondent offer Lloyd M. Powers, James R Starr, and Francis J. Keating immediate and full reinstatement to their former or substantially equivalent positions, 5 without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to that which he would normally have earned less his net earnings, 4 which sum shall be computed on a quarterly basis during the period from the discriminatory discharge to the date of a proper offer of reinstatement. 5Also, in the case of Keating, payment to him shall include a sum equal to that which he would normally have earned during the discriminatory layoff beginning May 21, less the amount of insurance received by him, this amount to be returned to the insurance company. It will also be recommended 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. The discrimination found herein indicates a purpose to limit the lawful rights of the Respondent's employees. Such purpose is related to other unfair labor practices, and it is SThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 4Crossett Lumber Company, 8 NLRB 440. 5F. W. Woolworth Company, 90 NLRB 289. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that the danger of their commission is reasonably to be apprehended . It will therefore be recommended that the Respondent cease and desist from in any manner interfering with, restraining , or coercing its employees in,the exercise of rights guaranteed by the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union of Electrical , Radio and Machine Workers, CIO, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Lloyd M. Powers, James R. Starr, and Francis J Keating, thereby discouraging membership in a labor or- ganization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by 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. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication. ] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Union of Electrical , Radio and Machine Workers , CIO, or in any other labor organization of our employees , by dis- criminatorily laying off, discharging , and refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any 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 , the_ above-named union or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose (if, collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Lloyd M. PowersJames R. Starr , mill Francis J. Keating immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority and other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above -named union of any other labor organization. We will not discriminate in regard tb their hire and tenure of employment or any term and condition of employment because of membership in or activity on behalf of any such labor organization. NATIONAL COMPANY. 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.