Dayton T. Brown, Inc.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As provided in the Woolworth case, I recommend further that Respondent Company make available to the Board on request payroll and other records, in order to facilitate the checking of the amount of backpay due. As the contract was defective because of noncompliance with Section 9(f), (g), and (h) which have been repealed, because Respondent Company did not know that Local 600 was out of compliance when it entered into the September 4, 1959, con- tract, and because the Respondents' conduct in the past does not suggest the danger that other unfair labor practices will be committed in the future, I shall recommend a narrow cease-and-desist order rather than a broad form order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Industrial Rayon Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 600, AFL-CIO, is a labor organization within the meaning of the Act. 3. By entering into and giving effect to a union-shop contract at a time when Respondent Local was not in compliance with Section 9(f), (g), and (h) of the Act, Respondent Company and Respondent Local 600 have, at all times since September 4, 1959, engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act. 4. By attempting to cause and causing the discharge of, and by discharging Gregory J. Cudzilo, Sr., under an unlawful union-security contract, Respondent Company and Respondent Local 600 have, at all times since October 23, 1959, en- gaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) and Section 8 (b) ( 1 )(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dayton T. Brown, Inc. and Frank Tumminello. Case No. p2-CA- 6487. February 17, 1961 DECISION AND ORDER On April 25, 1960, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that the com- plaint be dismissed with respect to them. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs to the findings in the Intermediate Report and to the recommended order. 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 Rodgers, Fanning, and Kimball]. 130 NLRB No. 52. DAYTON T. BROWN, INC. 441 The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, as modified herein. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dayton T. Brown, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their membership in or activities on behalf of, the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1). 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Copiague, Long Island, New York, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region, in writing, within 10 days from date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it relates to the discharge of Frank Tumminello, and to violations of Section 8(a) (1) of the Act in other respects than as found herein, be, and it hereby is, dismissed. 1 The Trial Examiner found no violation with respect to certain of the 8 ( a) (1) allega- tions concerning the Respondent 's proposed pension plan and other benefits because they were not conditioned on employee renunciation of the Union and did not contain threats of reprisal or promise of benefit while adopting the Trial Examiner 's findings, the Board does not adopt the Trial Examiner 's rationale based on employee renunciation of the Union ( Intermediate Report, section B ) 2 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." 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their mem- bership in, or activities on behalf of, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in vio- lation of Section 8 (a) (1). All our employees are free to become, remain, or to refrain from becoming or remaining members in International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization. DAYTON T. BROWN, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed by Frank Tumminello , an individual, the General Coun- sel of the National Labor Relations Board, by the Regional Director for the Second Region, issued a complaint dated September 24, 1959, against Dayton T . Brown, Inc., herein called the Respondent , alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended , herein called the Act. The Respondent filed an answer dated September 29, 1959, in which it admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held at New York, New York , before the duly designated Trial Examiner, from November 9 through 13, 1959. During his case the General Counsel moved to amend the complaint . The motion was granted over the Respondent's objection. At the close of the whole case the Respondent moved to dismiss the complaint upon the ground that the General Counsel had failed to sustain the burden of proof. Ruling was reserved. The motion to dismiss is dis- posed of as hereinafter indicated . The Respondent also moved to dismiss the com- plaint upon the grounds that "the instant proceedings are defective under Section 102.19 of the Rules and the Administrative Procedure Act." Ruling was reserved. This motion to dismiss is hereby denied . The General Counsel moved to conform the pleadings to the proof as to minor variances and not as to substance. The motion was granted without objection . The Respondent filed a brief with the Trial Ex- aminer after the conclusion of the hearing. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: DAYTON T. BROWN, INC. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 443 The Respondent is a New York corporation, having its principal office and plant at 'Copiague, Long Island, New York. It is engaged at said plant in the manufacture, sale, and distribution of truck bodies and related products, and in the performance of various laboratory tests relating to national defense. During the year preceding the date of the complaint herein, the Respondent, in the course and conduct of its business operations, caused to be manufactured, sold, and distributed at and from said plant products valued at in excess of $50,000, which it shipped directly to States of the United States other than the State of New York. The complaint alleges, the Respondent's answer admits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, herein referred to as the Union, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The alleged discharge of Frank Tumminello Tumminello was employed by the Respondent from October 12, 1957, until his termination on March 16, 1959. He worked as a technician in the missile section. There were four technicians in the missile section at the times mentioned herein. It was supervised by Engineers Wallace McDonald and Halvorsen, McDonald's assistant.' Concerning his activity on behalf of the Union, Tumminello testified that about the beginning of February 1959, he obtained union authorization cards and pam- phlets from an officer of the Union; that he brought these cards and pamphlets to the plant and placed them on his toolbox "in full view of everyone"; that McDonald at times was in the area of his toolbox; that he placed some of the pamphlets in the pocket of his "lab coat" where he "carried them in full view of everyone"; that he distributed this union literature to employees "during coffee breaks and lunch periods" and "before and after work"; that he continued distribution in this manner until the day of his termination; that on a few occasions McDonald and some other supervisors were present when he distributed pamphlets during coffee breaks; and that on one such occasion Supervisor Edwards told the employees in his group to "throw the trash [pamphlets] in the waste basket." On direct examination Turn- minello testified further as follows: Q. Did you have occasion at any time to make mass distributions of litera- ture at the Dayton T. Brown gate or entrance? A. Yes. Q. When did these distributions take place? A. During the time I was employed for them, the various representatives of the union made mass distributions at the gate to make sure everybody got it, if I missed up that day, because I could not get around the whole shop in one day. Q. Did you make any distributions yourself at the entrance of Dayton T. Brown? A. While I was employed by them? Q. At any time. A. Yes. IL It was stipulated that all engineers are supervisory employees within the meaning of the Act. The General Counsel contends that Charles Johler, a senior technician in the missile section, also was a supervisory employee. There is considerable testimony on this question I do not believe that the evidence is sufficient to establish that Johler was a supervisory employee and so find. Like the other technicians, he was paid an hourly rate and punched the timeclock. He transmitted orders from McDonald and Halvorsen and might be classed as a group leader. As pointed out in the Respondent's brief, there would be one supervisor for each rank-and-file employee if Johler should be found to be a super- visory employee. -444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. When were these distributions made by you? A. After I was terminated from Dayton T. Brown. Q. Do you remember the day or days you made these distributions? TRIAL EXAMINER : He said after he was terminated. Q. (By Mr. ROSENTHAL.) After March 16? A. Yes. During cross-examination, however, Tumminello testified that on two or three occasions during February and March 1959, he distributed union literature to em- ployees outside the entrances to the plant either before or after work. When asked if he recalled "testifying yesterday that you did not distribute literature outside the plant until March 16th," Tumminello answered, "No, I don't remember." Tumminello had a conversation with Anderson Marshall Irving, "assistant head of test," on March 11, 1959. Concerning this conversation , Tumminello testified as follows: He started his conversation by saying that he had overheard rumors and people had told him that I didn't like the remark he made about outside in the missile section marking up the floors . I asked him why he didn't like it and he says, "because there is different visitors we get in here and it doesn't look good to have marked floors," which were just painted at the time. I asked him I don't believe it would be right to have the employees change their shoes because it didn't have nothing to do with our work. He said that was the way he felt and if I or anybody else didn't like it, they could leave any time. He then said that he had heard rumors that I was involved in union activities and that he felt, on his behalf and plus the company, that there would be venge- ful action taken against anybody involved in this. I told him why he felt that way about a union and he said he felt due to the fact that Brown was so small they could not bid for contracts if the union got in and raised the wages and plus the fact that if the union did get in and a slowdown came, personnel working for them at the time could not be reclassi- fied in other sections and would have to be laid off. * * * * * * * Whenever we had a slowdown or lack of work in one department, we would be borrowed or there would be loaned to us a man or two men from different sections to help us in various other groups. He said that once'the union got in, certain sections would have a classification . In other words, if you were a missile man, you were a missile man and if you were armament, that is the way it was. If the lack of work was in armament , you would have to be laid off; you could not go in the missile section. Irving admitted having a conversation with Tumminello about 1 or 2 weeks before the latter's discharge. Irving testified that he initiated a talk with Tumminello because he had heard that Tumminello "was extremely upset by a commonplace comment I had made about people in the laboratory wearing shoes that would mark up a freshly painted floor." In this connection he was questioned and testified as follows: Q. Did you ever discuss the union with Mr. Tumminello? A. Yes, I did. Q. When was that? A. That was at the same time. Q. How did this discussion come up? A. This discussion came up because Mr. Tumminello asked me at the con- clusion of my comments on the shoe episode, he didn't ask me, he told me that he thought I had come down to talk to him about the union. Q. And what did you say? A. I said that I hadn't come to talk to him about the union , but as long as he had brought it up would he be interested in hearing my views on the union. Q. What did he say? A. He didn't stop me, so 'I expressed my views on the union. Q. And what did you say? A. I pointed out to Mr. Tumminello that in a small outfit such as ours my personal feeling was that the union would not be a desirable thing, and I predicted that we might have to shut down operations if the union got in. * * * * * * * Q. (By Mr. LEWIS. ) Do you recall any further conversations with Mr. Tumminello with regard to a union activity? DAYTON T. BROWN, INC. 445 A. I asked Mr. Tumminello at that time if he had anything at all to say to me about the union. He had nothing to say. Q. Did you ever tell Mr. Tumminello that the company would take ven- geance anainst anybody supporting the union? A. I have never made any such statement. Q. Have you ever used the words "vengeful action"? A. No. * * * * * * * Q. What did you say exactly? A. I told him that I thought in a small laboratory such a union would be a bad thing for us. Q. What else did you say? A. That they would jeopardize our competitive position. Q. Did you tell him that the plant might have to shut down as a result? A. I told hun it was quite possible we might lose our testing business as a result of this, and we would all be out of a job. I credit Irving's version of the above conversation . He impressed me favorably as a witness. Tumminello was evasive and there are serious contradictions in his testimony. Further, there are conflicts between his testimony and that of other witnesses called by the General Counsel.2 I do not find that Irving's statements, as found above, are violative of the Act. From his remarks, taken as a whole, it is clear that he "predicted" that "we might have to shut down operations if the union got in" or "we would all be out of a job" because of economic considerations resulting from union organization ; and that he was not making a threat of reprisal. Tumminello was discharged on March 16, 1959. He testified that about 3:15 p.m. that day he had a conversation with McDonald; and that "He [McDonald] said that I was a known union organizer in the office upstairs and that my work had improved and he would have liked to have put me in for a raise, but he would be sticking his neck out. He asked me if I would stop my union activities and I said I thought I had the right to continue the union activities and he said , 'If you would stop, I would put you in for a raise, but it would be very foolish for me to put you in for a raise if you are a known union organizer. It would make me look very silly.' . . . I asked him what he thought of the union and he said that he thought the plant was too small and that they could not bid for the contracts and in case of a slowdown we could not be reclassified and would have to be laid off. . . . He says that the previous day he had been called by Mr. McLean into the office and told I was sup- posed to be fired and he asked if I could be given another chance and Mr. McLean said yes." McDonald admitted having a conversation with Tumminello during which a recommended increase was mentioned; but testified that he believed it was on March 13 about 3 p.m. during a coffee break and that several other employees were present. Concerning the conversation McDonald testified: I told him that I had submitted him for a wage increase . I don't know if I told him how much it was for or not. I know the conversation did eventually dead to a discussion about unions, but there was nothing unusual about that, because every conversation at that time during coffee break eventually turned into unions. At that particular time that was the topic of conversation . During the con- versation I told either him or someone else in that group around the desk that there were three things in any opinion that anyone could do about this union activity. They could talk against it, talk for it or just be neutral. McDonald denied knowledge of any union activities on Tumminello 's part before his discharge. He also denied the statements attributed to him by Tumminello. 2 Tumminello testified that before he was discharged employee Henry Garcia helped him to distribute union literature within the plant . This was denied by Garcia . Further, Garcia, who it appears was one of the instigators of the Union's campaign to organize the employees, testified that he did not see Tumminello distribute union literature before his discharge, either inside or outside of the plant Employee William Siele testified that "once or twice" he saw Tumminello distribute union literature "around the lab . . . dur- ing coffee breaks and lunch hours, " but that he never did see him do this outside of the plant's gate before his discharge . Employee Joseph Daley testified that he saw Tumminello distribute union literature after his discharge but not before. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From his demeanor as a witness, McDonald impressed me as a reliable and credible witness. After a review of the record I find no reason for changing my original opinion. Tumminello heretofore has been found to be an unreliable witness. Accordingly, I credit McDonald's version of the above conversation. Tumminello was discharged by Ernest Tealey, Respondent's "head of test" at the time. Tealey told him that the reason for the discharge was that "the missile pro- grams which we had anticipated had not materialized. We had decided to reduce the work force and I had made the decision that he would be the first man that I would have to take off the payroll from that particular group." Concerning Tumminello's discharge, Tealey testified, in substance, that in the reduction in force he had a choice between employee Glass and Tumminello; that the "technical ability" of these two employees was "equal"; that he chose Tumminello because he was "inclined to be hot headed"; that he did not know that Tumminello was engaged in any union activity; that he discussed the reduction in force with William McLean, vice president of Respondent, and Irving Chiring during the latter part of February and the first week of March; nand that during the morning of March 16 he told McDonald that he had decided "to lay Mr. Tumminello off." 3 Irving testified that before Tumminello's discharge he saw pamphlets "distributed at the gate" by three different unions, two of which were "a carpenters' union" and the Union involved herein; that he did not know of any union activity by Tumminello before his discharge; that "in the beginning of 1959" he had discussions with Tealey, McLean, and McDonald about the "work load" in the missile section ; that "when it developed that the work load was not sufficient to carry the people we had in the group, the question was brought up as to who should be let go"; that "probably within a week" before March 16 he recommended to Tealey that Tumminello be selected for discharge; and that his recommendation was based "on the fact that I had serious doubts as to whether he was the type of technician that we wanted to keep in the laboratory. . . My investigations into this man indicated that he tended to be hot headed, and I had seen evidences of this personally." 4 As of the date of the hearing herein, Tumminello had not been recalled to work by the Respondent. Tumminello filed the charge in the case on March 17, 1959. Under date of March 31, 1959, a letter from the Respondent to the Board states in part as follows: As stated in our telephone conversations, Mr. Tuminello was separated from this firm in line with the general reduction in force which has become necessary because of lack of work in his particular section at this time. Since the beginning of the year, there have been two engineers who have been separated from this firm and they have not been replaced. In addition, we have had 13 technician separations during the first three months of the year with 4 of these separations in the missile section where Mr. Tuminello was employed. In that time we have only replaced one person in the missile section leaving a net reduction of 3 employees in that unit. It is anticipated, at this time, that the work load in this section will pick up toward the end of May. At that time we shall be happy to offer re-employment to Mr. Tuminello. In answer to your query as to whether or not we have laid off anyone after Mr. Tuminello's separation, we wish to advise that we have not been forced to do so as yet. However, we feel there is a possibility that we may have to temporarily layoff one or two more people before the end of May when we expect the work load to pick up. By letter dated May 28, 1959, the Regional Director advised Tumminello, "As a result of the investigation, it appears that, because there is insufficient evidence of any violation of the Act, further proceedings are not warranted at this time. I am, therefore, refusing to issue complaint in this matter." A copy of this letter was sent to the Respondent. Employees Richard Forbes and John DeVeau were hired as technicians by the Respondent for the missile section or Tune 18 and 23, 1959, respectively. Forbes filed an application for employment with the Respondent on March 13, 1959. He testified without contradiction that he was interviewed at the time by McDonald, 'McDonald testified that "late in the afternoon, somewhere around 4 o 'clock" on March 16 he was told by Tealey that Tummineilo was to be discharged He also testified that the "work load was low" in the missile section at the time 4 It is undisputed that at some time before December 1958, Tumminello was suspended for 2 days as punishment for getting into an argument with a Mr Eugene , apparently a supervisory employee at the time. DAYTON T. BROWN, INC. 447 McLean, and Johler; 5 that McDonald did not state "that there definitely was [an opening in the missile section], but he said he was interested and he might be able to use me"; and that McLean stated "that he would contact me if he could use me" and that "the union was trying to organize the plant." DeVeau filed an application for employment and was hired on June 11, 1959. Richard Anzalone, Respondent's assistant personnel manager, testified, in sub- stance, that the Respondent had no policy on recalling laid-off employees; that the Respondent did not maintain "seniority or recall lists"; that laid-off employees had no recall rights; that when filling jobs "we might give [laid-off employees] the same consideration that we would give to outside people-new employees"; that during October 1958 in the truck department about 14 employees were laid off; that sub- sequently about 23 men were hired for the same work classifications, only 4 of whom were employees who had been laid off in October; and that he first knew of Tumminello's union activity about 1 or 2 weeks after his discharge. The Respondent contends that it did not have knowledge of Tumminello's union activity before his discharge. According to Tumminello, he distributed union literature in and outside of the plant and was otherwise active on behalf of the Union from about the end of January 1959, until his discharge. He testified to the effect that he engaged in this activity openly and that supervisory employees at times were present. However, Tumminello has been found to be an unreliable witness. The General Counsel called only one witness who gave testimony in support of Tumminello. Siele testified that he saw Tumminello distribute union literature "once or twice" in the plant during "coffee breaks and lunch hours." He did not testify that any supervisory employees were present at the time. There is no claim by the Respondent that Tuner inello had been remiss in his duties as an employee. The fact that during his employment he had received wage increases and that McDonald had recommended him for another increase before his discharge shows that he was a satisfactory employee insofar as his ability to perform the work was concerned. The Respondent contends that it was necessary to reduce the work force in the missile section for economic reasons and that Tumminello was selected for discharge for the reason that he was considered to be the least desirable employee. When questioned as to why employee Glass 6 was not chosen for layoff instead of Tummmello, Tealey testified that Glass "had two years of college to back him up." It also is undisputed that the employees in the missile section performed overtime work before and after March 16, 1959. Tumminello testified that he was scheduled to perform such work on the day of his discharge. The General Counsel apparently contends that there was no general reduction in the work force in the missile section, the contrary being claimed by the Respondent, in view of such overtime work. In this connection Tealey testified to the effect that the contracts with the United States from which the Respondent receives its workload is the open end type of contract with work released by the Navy from time to time; and that the testing work involved will vary and at times will require overtime work in spite of the fact that the work force is at a level commensurate with the expected volume of work from the contracts held at the time. I find that the General Counsel failed to sustain the burden of proving that the Respondent discharged Tumminello in violation of the Act. This conclusion is based on the finding that there is no evidence of knowledge on the part of the Respondent of Tumminello's union sympathies and activity, since for reasons stated above I am unable to credit Tummmello's testimony concerning such activity. Further, I can find no substantial reasons for discrediting the above testimony of Tealey, McDonald, and Irving. Their testimony establishes the economic necessity for a reduction in the work force. The only evidence to rebut this is the testimony of DeVeau and Forbes to the effect that they performed overtime work and that at times employees from other departments were called into the missile section to help out. I do not believe that this evidence is sufficient in view of the fact that no employee was hired to replace Tumminello until the middle of June, and that the testimony of DeVeau and Forbes relates to conditions as they were more than 3 months after Tumminello's discharge. Also, there is no evidence to indicate that more overtime work was per- formed immediately after the discharge than before. The evidence shows that the Respondent knew of Tumminello's union activity after his discharge. The questions remains as to whether or not the Respondent failed and refused to reemploy him because of such activity, as alleged in the complaint. It has been found above that Johler was not a supervisory employee, e The record shows that Glass had been employed for only about a month prior to March 16, 1959. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anzalone's testimony, to the effect that the Respondent maintained no recall list and has no policy in recalling employees who are laid off, has been set forth above. This testimony stands uncontradicted. A termination slip for Tumminello dated March 16, 1959, and signed by Tealey recommends Tumminello's reemployment. Also, the Respondent's letter to the Board, dated March 31, 1959, states, "It is an- ticipated, at this time, that the workload in this section will pick up toward the end of May. At that time we shall be happy to offer reemployment to Mr. Tumminello." The evidence does not show that the Respondent offered reemployment to Tummi- nello or that Tumminello at any time made application to the Respondent for reemployment. In this connection, Tealey testified that DeVeau was hired as Tumminello's "re- placement"; that Forbes was hired as a "trainee . . . a different level, because we had a level of work that did not require the high skills of a college background or two or three years laboratory experience"; and that although Tumminello was con- sidered at the time, DeVeau was chosen because of his "college background." I do not find that the Respondent's failure to recall Tumminello was violative of the Act. The evidence conclusively shows that the Respondent does not have any policy with respect to recalling employees who are laid off. Since it has been found that the discharge was not discriminatory, it follows that the Respondent was not obligated to recall Tumminello to work. In my opinion, an inference of illegal motivation in the failure to recall is not justified on the basis of the record as found above. B. Interference, restraint, and coercion On about March 9, 1959, Dayton T. Brown, president of Respondent, made a speech to all employees. He told them in substance, that deductions for State income taxes were going to be made; 7 and that all employees would receive wage increases to cover the deductions. At some time during March 1959, and after the above meeting, Brown called Daley and about eight other employees to his office. In this connection, Daley testi- fied credibly and without contradiction that Brown asked the employees if they had any complaints, and that ". . [Brown] said when he was an official of Brewster the union organized it and that was during war time, and after that there was cancellation of contracts, and consequently the company went broke, and that he wouldn't like to see it happen here. . . . He talked, if I rightly remember about a pension plan, that they were waiting for word from the State or Federal Govern- ment, and of course guys questioned on how it would work, and he explained it to them. . He said that he would look into our complaints and see what he could do about them, though he couldn't promise us anything." About the same time brown held a meeting in his office with another group of about nine employees, including Garcia. As to this meeting, Garcia was questioned and testified without contradiction as follows: Q. What did Mr. Brown say when you came into the office? A. He said "Sit down. I understand you fellows have some gripes." He said "I want to try to iron them out or see what I could do about them," so we all sat down after awhile. Q. What did he say about the union? A. He said that he didn't think a union would be wise, because the only thing the union could do would be that he would have to jack up his prices and that would kill the company. Q. What do you mean kill the company? Is that the phrase he used? A. More or less. I think that is what he said. I am not sure of killing the company, but would ruin it on account of he would have to jack up his prices, he would not be able to compete with other companies. Q. Did he say what would happen to the company as a result of that? A. He gave you to understand that it would hurt it and we would be out of jobs. * * * * * Q. Did he mention anything about a pension? * A. Oh yes, about the pension he said that they were working on it. That they had to wait to hear from Washington to know whether the pension would be in effect or not. * * * * * * * 7It was stipulated that the New York State withholding tax became effective April 1, 1959. DAYTON T. BROWN, INC. 449 Q. Did he mention the union at the beginning of the meeting when you came in and he asked you about the gripes? A. I think he did say something about he didn't like a union, on account he said the people right across the street from us, he said look at them, they had a union and look what happened to them, they had to close down on account of the union. Q. (By Mr. ROSENTHAL.) Did he say anything about whether or not he was aware of the union activities going on at the time? A. Oh yes, he did say that he knew that the union was trying to get into the place and that is when he said that he didn't think it was a good thing. From the above, it is clear that Brown implied that the demands of the Union, if it succeeded in organizing the plant, might force the Respondent out of business. His statements concerning the pension were not conditioned upon renunciation of the Union by the employees. Under the circumstances, I find that Brown's remarks did not contain threats of reprisal or promises of benefit and were, therefore, not violative of the Act. Employee Siele and about seven other employees were called to McLean's office on April 7, 1959. Concerning the meeting, Siele was questioned and testified with- out contradiction as follows: Q. What did Mr McLean say when you first came into his office? A. He gave us greetings and he said, well, he explained what it was all about. He asked us what our grievances were, and he wanted to find out what we had, what was wrong, why we were seeking a union and he wanted to know all the things about the things that were bothering us to make us want to seek a union. Q. Do you remember what Mr. McLean said in answer to those gripes? A. Well, he said that we are going to have a pension plan, that he is thinking of better insurance policy and about a communication problem, he will take care of that, and put out a monthly pamphlet to keep the employees informed as to what is going on, and about the rest he will see as time went on. He couldn't make any promises. Q. Did he say anything else about the union? A. Yes, he told us the story about Mr. Brown's hardship in being employed in another company that had union trouble, and he was afraid the same thing was going to happen to this company. Q. Do you remember exactly what he said with respect to that incident? A. The exact words I don't remember. Q. To the best of your recollection? A. The things he brought out were the fact that the company across the street folded up because of union activity, and that this Brewster folded up, because unions were so bad and so demanding. That was about the crux of it. * * * * * * Q Do you recall whether or not Mr. McLean mentioned anything about what would happen if the union successfully organized the plant? A. Yes, he used Brewster as a reference and said the plant would-we would have difficulties in securing our Navy contracts, because the Navy does not like to have union troubles, and this might cause us to lose contracts and work. * * * * * * * Q. What do you remember about that meeting now9 A. One statement he was very strong on was if anybody was dissatisfied with Dayton T. Brown and they felt these grievances were really making them dis- satisfied and that they wanted more money and such, there are many places on Long Island that do the same type of work we do, that they could go elsewhere and find employment. He mentioned a few places. He mentioned Republic and 11 believe it was Armour. For the same reasons stated in connection with the meetings held by Brown, I find that the above remarks of McLean were not violative of the Act. At some time after the meeting discussed above, Siele was called to McLean's office. As to this conversation, Siele testified credibly and without contradiction that McLean interrogated him with respect to his own "feelings" and "the general feelings throughout the shop toward the union"; and that McLean told him that he had been. 597254-61-vol. 130-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speaking "to a lot of people about it." 8 I find that McLean's interrogation of em- ployees concerning their union sympathies was violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its business operations described in section I, above, have a close, inti- mate, 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 thereof. V. THE REMEDY McLean's interrogation of Siele does not appear to be an isolated incident , in view of Siele's uncontradicted testimony that McLean told him that he had been talking "to a lot of people ." Accordingly, it will be recommended that the Respondent cease and desist from interrogating its employees concerning their union membership and activities, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discharging Frank Tumminello and thereafter by failing to recall and re- employ him the Respondent did not engage in any unfair labor practices within the meaning of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 Siele testified further concerning speeches made by both Brown and McLean about the time of a representation hearing held by the Board (May 11, 1959) and before the election conducted by the Board It is clear from this testimony as a whole that the Respondent was campaigning against the Union within permissible bounds and that its conduct was not violative of the Act For example, during a speech to employees about June 15, 1959, Brown stated, "He was going to fight the union with the truth and for every pamphlet that the union put out he was going to put one out " Essex Wire Corporation and United Steel Workers of America, AFL-CIO. Case No. 10-CA-4076. Febrtcamy 17, 1961 DECISION AND ORDER On April 18,1960, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 130 NLRB No. 38.