A.P.W. Products Co., Inc.

A.P.W. PRODUCTS CO., INC. 25 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 of commerce. V. THE REMEDY Since it has been found that the Respondent has committed certain unfair labor practices 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 interfered with the rights guaranteed its employees in Section 7 of the Act by constructively discharging its supervisor, Steven Adams, because of his failure and refusal to commit unfair labor practices on behalf of Re- spondent, it will be recommended that the Respondent offer to Adams immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his former rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount he would normally have earned as wages, from the date of his discharge until his reinstatement as described above, less his net earnings during this period. The loss of earnings shall be computed in accordance with the Woolworth formula, F. W. Woolworth Company, 90 NLRB 289, 291-294. In view of the nature and extent of the unfair labor practices hereinfound, I am convinced that the commission of similar and other unfair labor practices by Re- spondent reasonably may be anticipated. I will therefore recommend that Re- spondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 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. United Wire and Supply Corporation is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from. publication.] A.P.W. Products Co., Inc. and United Papermakers and Paper- workers, AFL-CIO. Case No. 1-CA.-3354. May 2, 1962 DECISION AND ORDER On June 2, 1961, Trial Examiner James F. Foley issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report, together with supporting briefs. The Respondent filed a brief in support of the Intermediate Report. 137 NLRB No. .7. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case. We find merit in the exceptions and accordingly adopt the findings and con- clusions of the Trial Examiner only to the extent consistent with our decision herein. The Trial Examiner found that the Respondent was not aware of employee Dagan's union activities and that it did not discharge her for such conduct in violation of Section 8(a) (1) and (3) of the Act. We do not agree. At the beginning of the lunch period on October 19, 1960, Frank Kahn, the Respondent 's production manager, saw Union Representa- tive Riley distributing union hand bills to employees at the door of the plant and ordered him to leave the premises. Subsequently, Kahn observed Riley talking to Dagan, who was sitting in her car in the Respondent's parking lot. Later the same day, after she had finished work, Dagan met Riley at the railroad station where she gave him her signed union authorization card and received 25 blank authorization cards from him. She obtained signatures on 15 of the cards within the next 10 days and mailed them to Riley or the Union as she secured the signatures. On October 24, 1960, Dagan and two other employees at- tended a union organizational meeting which Dagan had asked at least six employees to attend. On October 26, 1960, Fred Quinn, converting foreman, whom the parties stipulated to be a supervisor within the meaning of the Act, asked Dagan if she knew when the next union meeting would be held. Dagan replied that she did not know, that perhaps Quinn would know before she did; in which case, she would like Quinn to inform her. Quinn told her that he knew she was for the Union even though she would not admit it. Employee Dagan said that was pretty rank union talk coming from a company man, and that "they had not ought to be talking union on company time." Quinn answered that they could talk union all they wanted, the Company did not object , as long as they were talking against it. On October 28, 1960, the Respondent posted a notice on the bulletin board at the Brattleboro plant, announcing that effective October 31, 1960, Respondent was installing a bonus system at this plant. On October 31 , Respondent posted a notice on the same bulletin board, an- nouncing that at 3:30 p.m. on November 2, 1960, there would be a meeting of the employees of both shifts in the cafeteria. At the meeting, Production Manager Kahn informed the assembled em- ployees that the meeting had been scheduled to discuss company policy on benefits, grievances, and a bonus system; but that, because Re- spondent had received a letter from the Union at 1:30 o'clock that A.P.W. PRODUCTS CO., INC. 27 afternoon claiming majority representation and requesting bargain- ing, the Respondent's official would not discuss the subjects scheduled for discussion until they knew whether or not the employees wanted a union. Vice President Seymour Baum told the employees that he could not discuss figures with them because of the letter, that until he received the letter he thought everyone was happy. He stated that he realized the employees did not have a number of benefits other plants had, but due to relocation costs, setting-up costs, and training costs, Respondent was running in the red. He also said that the Respondent did not care whether the employees wanted or did not want a union, as it always got along with unions. After Kahn and Baum spoke, there was a 30-minute question-and-answer period. Dagan took up 20 minutes of this period asking management about accident and health insurance, shift differentials, and daily standard production. Afterwards, Kahn and Dagan privately discussed the bonus plan as it applied to her job, and she told him that she thought the bonus plan was for the benefit of management rather than the employees. During the second shift on the evening of November 10, 1960, Fore- man Ben Carter,' during the course of a conversation about the Union, advised employee Garfield that the day operator of the machine as- signed to Garfield would be on her way out if she did not watch her step. The day operator was Dagan. On November 11, 1960, at the end of the first shift, Dagan was told by management that she was discharged because she was not with or for the Company. The Re- spondent admitted that her work and attendance were satisfactory. The foregoing facts were developed by the General Counsel's wit- nesses. The Respondent limited its defense mainly to attacking the credibility of employees Dagan and Garfield who were witnesses for the General Counsel.' On our consideration of the record as a whole, we find, contrary to the Trial Examiner, that the Respondent was aware of employee Dagan's union activity before her discharge. We note that : (1) Production Manager Kahn observed Union Representative Riley talk- ing to Dagan just after Kahn had ordered Riley from the premises; (2) Supervisor Quinn told Dagan that he knew she was for the Union even though she would not admit it; (3) Dagan questioned manage- ment about employee benefits and production standards for 20 min- utes of a 30-minute question-and-answer period at a company-called i we do not agree with the Trial Examiner 's finding that Ben Carter was not a super- visor within the meaning of the Act As Carter was the only foreman on the second shift on which some 30 employees were employed, and as he directed the work assignments and transfers of these employees, we find that Carter was a supervisor The Trial Examiner did not discredit Garfield's testimony, nor do we while em- ployee Dagan cashed a check drawn to her order which was inadvertently sent to her by the Respondent after her discharge , her failure to return the check does not cause us, nor did it cause the Trial Examiner , to discredit her testimony . Nor do we find Dagan's con- duct here such as would disqualify her for reinstatement. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting attended by most employees; (4) Dagan told Respondent's officers that its bonus plan favored management rather than the employees; and (5) the Respondent's Brattleboro plant, where these events took place, was a small one? The Respondent's awareness of and its opposition to Dagan's union activities is also evidenced by Supervisor Carter's statement to employee Garfield, in the course of a conversation about the Union, that the day operator (Dagan) of the machine assigned to Garfield would be on her way out if she did not watch her step. The Respondent also manifested its union hostility by Supervisor Quinn's statement to employee Dagan that they could talk union all they wanted, the Company did not object, as long as they were talking against it. Finally, the reason given to Dagan for her discharge-her interests were not with or for the Company-when viewed in light of the Respondent's opposition to Dagan's union activities, compels the conclusion that Dagan was discharged because of her union activities. Accordingly, we find that the Respondent dis- charged Dagan in violation of Section 8(a) (1) and (3) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE We find that the unfair labor practices set forth above, occurring in connection with the operations of the Respondent described in the Intermediate Report attached hereto, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent has violated the Act, we shall order that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. As we have found that the Respondent has discriminatorily dis- charged employee Bernice Dagan, we shall order the Respondent to offer her immediate and full reinstatement to her former or substan- tially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of pay she may have suffered by reason of such discrimination, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of Re- spondent's offer of reinstatement, less her net earnings during that period, such sum to be computed in accordance with the formula set forth in F. TF. Woolworth Company, 90 NLRB 289, 291-294. The Board's customary practice in cases of this type, where the Trial Ex- aminer has not found the discriminatory discharge as alleged and the s In finding that the Respondent was aware of employee Dagan's union activities, Member Rodgers does not rely upon the smallness of the Respondent 's Brattleboro plant. A.P.W. PRODUCTS CO., INC. 29 Board thereafter finds the violation, has been to exclude from the com- putation of backpay the period between the date of issuance of the Intermediate Report and the date of the Board's Order. We have given extensive consideration to the practice of tolling monetary awards, such as backpay, in these circumstances as part of our study of the adequacy of the Board's remedial orders .4 The purpose of such orders is to effectuate the policies of the Act by redressing as com- pletely as possible statutory wrongs-unfair labor practices-which have been committed. For the reasons set forth infra, we are con- vinced that far from furthering this salutary aim, the practice of toll- ing monetary awards undermines it, and should, absent unusual circumstances, be discontinued. There is a substantial body of Board decisions warranting the char- acterization of tolling as a customary Board rule.' However, quite inconsistently, the rule does not appear to have been adopted as a general practice where a Trial Examiner has found an 8(a) (3) vio- lation but the Board has not and, upon reversal by a United States Court of Appeals, the Board has thereafter ordered reinstatement and backpay.6 The sole and, in our view, unpersuasive reason given when the practice of tolling backpay was instituted was that "in view of the Trial Examiner's recommendations, respondent could not have been expected to reinstate the discharged men after it received the Inter- mediate Report . . . and therefore it should not be required to pay backpay from that time to the date of this decision." 7 While this reasoning at first glance may appear to have an equitable basis, it does not bear analysis. Rather, its real thrust is in the direction of benefiting the wrongdoer at the expense of the wronged-a result 4 See report of Chairman McCulloch ' s remarks before a session of the Federal Bar Association national convention during the week of September 10, 1961 , 48 LRR 657-658 6 See, e g, E. R. Hafelfinger Company, Inc., 1 NLRB 760 , International Union of Elec- trical, Radio it Machine Workers, AFL-CIO, Frigidaare Local 801 (General Motors Corporation, Frigidaire Division), 130 NLRB 1286 , R E. Smith and Florence B. Smith, a partnership, d/b/a Southern Dolomite, 131 NLRB 513; Tame-O-Metic, Inc., 121 NLRB 179 Cf Willard, Inc, 2 NLRB 1094, 1108, in which backpay was not tolled where the Trial Examiner recommended reinstatement despite the fact he found no unfair labor practices and dismissed the complaint; and American Potash and Chemical Corporation, 3 NLRB 140 , which applied Bell Oil and Gas Company, 1 NLRB 562 (which did not toll the backpay ) rather than Haffelfinger, supra, because the Trial Examiner found the un- fair labor practices and recommended reinstatement although he dismissed the complaint on jurisdictional grounds. 6 See, e.g, Modern Linen it Laundry Service, Inc , 110 NLRB 1305 , and 116 NLRB- 1974 ; B.V D. Company, Inc., 110 NLRB 1412, and 117 NLRB 1455 But see Oregon Teamsters' Security Plan Office, et al, 113 NLRB 987, and 119 NLRB 207. PE R Haffelfinger Company, Inc , supra. While Willard and American Potash, supra, are distinguishable from Haffelfinger in that the Trial Examiner recommended reinstate- ment in each case, we are unable to see why the respondents in those cases could have been expected , any more than the respondents in Haffelfinger and cases following it, to have reinstated the discriminatees once they were notified that the complaints had been dismissed On the contrary , the Board has held that a recommendation of dismissal because of the lack of jurisdiction is tantamount to a finding that the respondent did not violate the Act Interior Enterprises , Inc, 125 NLR]3 1289 ; R. E. Smith and Florence B Smith, a partnership, d/b/a Southern Dolomite, supra. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antithetical to the fundamental aim of the Board's remedial authority and powers.' Specifically, the blameless discriminatees are not made whole for their monetary loss for the full period of the discrimination and are to that extent punished for exercising their statutory rights under Section 7, solely because of the erroneous conclusion reached by the Trial Examiner. On the other hand, the particular respondent, who is responsible for the wrong committed, is, to the extent of the tolling, relieved of its obligation to restore the discriminatees to the status quo ante and thus is permitted to profit by its violations of the Act-the respondent's benefit being both in the monetary sense and in the advantage it may enjoy by reason of the delay in returning un- wanted employees to the plant. In contrast with the Board's practice of tolling, we know of no other legal proceeding in which a similar benefit is given to the offend- ing party by reason of an earlier recommendation or finding in that party's favor. Thus, in private litigation before the courts, a de- fendant who has won in the court below is afforded no advantage thereby if that judgment is reversed on appeal and a later decision is reached in favor of the plaintiff. If damages are liquidated, interest continues to run for the entire period during which payment of the fixed sum has not been made. And where additional damages accrue by reason of a failure to comply with a lower court order during the period when the effect of that order is stayed for purposes of an appeal, the benefiicary of the lower court decree is entitled, on af- firmance of the award in his favor, to recover for such accrued damages.' In sum, we are convinced, on the basis of our examination of the equities of the situation, an analogy to court procedures, and our ex- 8 We have no doubt that our dissenting colleagues will agree that, notwithstanding the importance of the Trial Examiner's role as the statutory agent of the Board in hearing unfair labor practice cases, his findings and recommendations are subject to review by the Board upon the filing of timely exceptions And they will doubtless also agree that, upon such review, if the Board finds that the Trial Examiner's conclusions were erroneous, it has authority to make contrary findings and to issue an appropriate order to remedy them . But the dissenting Members disagree with us in that they would give conclusive finality to the erroneous recommendation of the Trial Examiner on the very findings on which the Board is reversing him. It is thus apparent that they take a wholly incon- sistent position which is totally at odds with the very concept of appeal and review. Moreover, we are unable to see how the exercise of our own authority is in derogation of the Trial Examiner 's important role in our proceedings On the contrary , we believe that the dissenting view derogates from the Board 's authority and would give a Trial Examiner's conclusions superior effect to those of the Board itself Contrary to the implication of footnote 16 of the dissenting opinion herein , there has never been any indication of an intention by the advocates of the President ' s proposed Reorganization Plan No . 5 (which was, of course, rejected by the Congress ) to preclude Board review of erroneous findings or recommendations of Trial Examiners upon proper exceptions or to prevent the Board's entering an appropriate order consistent with its own findings upon such review. 6 See , e g, MacDonald v Winfield Corp, 104 F . Supp 609. Although the Board en- forces public rights and does not redress private wrongs , consideration of the nature of court judgments is pertinent to discussion of the adequacy of Board Orders and the advisability of continuing the practice of tolling. A.P.W. PRODUCTS CO., INC. 31 perience, that the Board's practice of tolling monetary awards from the date of an Intermediate Report recommending dismissal of 8 (a) (3) allegations to the date of a Board Order finding such viola- tion does not effectuate the policies of the Act and should be abandoned.10 Accordingly, we now hold that in this case and in all similar cases hereafter decided, where backpay or other reimbursement is part of the appropriate remedy, we shall make such award for the full period from the date of the discrimination to the date of an offer of reinstate- ment, placing on a preferential hiring list, or other cutoff date found in the particular case, regardless of the nature of the Trial Exam- iner's recommendation. Needless to say, all the reasons given herein which dictate elimination of the tolling practice in cases arising under Section 8(a) (3) apply equally to proceedings involving violations of Section 8(b) (2), and the award for the full period of discrimina- tion will be made in the same manner in both types of situations. The Haffelfinger case and all similar cases are hereby overruled to the extent they are inconsistent herewith. We shall further order that the Respondent, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to enable the Board to analyze and compute the amounts of backpay due. Because the discriminatory discharge of Dagan evinces a studied intent to thwart the rights of employees in freely selecting their collective-bargaining representa- tive, we shall issue a broad cease-and-desist order. North Texas Pro- ducers Association, 131 NLRB 146. 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, A.P.W. Products Co., Inc., Brattleboro, Vermont, its officers, agents, successors, and assigns, shall : 10 The fact that Congress and the courts have not commented upon the Board's tolling practice does not, contrary to the statement of our dissenting colleagues, necessarily indicate unqualified approval of this practice. The Board has wide discretion to fashion appropriate remedial orders The failure to comment merely reflects recognition of this broad discretion and indicates at most that the Board has not exceeded its authority while quoting the Supreme Court's approval of the Board's flexibility in making awards, the dissenting Members herein would have us adhere to the completely inflexible formula used in the past of tolling monetary awards merely because a Trial Examiner has reached an erioneous conclusion . we see no warrant for such a rigid rule and view the approach which we now adopt as a more appropriate exercise of the "freedom given by Congress to attain just results in diverse, complicated situations " Phelps Dodge Corp. v NLRB, 313 U S. 177, 197. For, as indicated above, under this rule our mone- tary awards will be granted in the light of the facts of each case and may be tolled as in the past where the circumstances warrant it 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in United Papermakers and Paper- workers, AFL-CIO, or any other labor organization of its employees, by discharging, refusing to reinstate, or in any other manner dis- criminating against them in regard to their hire or tenure of employ- ment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Bernice Dagan immediate and full reinstatement to her former or to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of the dis- crimination against her, in the manner and to the extent as set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Brattleboro, Vermont, copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. "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." A.P.W. PRODUCTS CO., INC. 33 MEMBERS RODGERS and LEEDOM, dissenting in part : We dissent from the majority's decision to abandon the Board's long-standing "tolling" practice. The Board was established in 1935. The Board practice of tolling monetary awards, such as backpay, for the period between a Trial Examiner's dismissal of the related complaint and a subsequent Board reversal, was initiated in 1936 and is reported in a case appearing in the very first volume of the Board's published reports.12 The practice stems from a recognition by the Board of the desirability of striking an equitable balance between a respondent's reliance upon a determina- tion by a Trial Examiner-the Board's "designated agent" for the pur- poses of a hearing 13 that the Act has been violated-and the salutary principle of granting appropriate remedial relief where in fact a viola- tion has occurred. This practice has been accepted, and applied by the Board,'' as "sound law" for some 26 years, and we can see no cogent reason for abandoning it. We know of no instance in which a circuit court has refused to en- force a Board Order because the monetary award has been tolled. Nor are we aware of any case in which a court has even criticized the Board for its tolling practice, despite the fact that the Board's remedial poli- cies and practices have frequently been scrutinized by many tribunals, including the Supreme Court.15 In fact, each of the 11 circuit courts of appeal has uniformly approved the practice without comment.16 The United States Supreme Court, itself, has cited with approval the very case which initiated the practice, stating : 12 E. R Haffelfinger Company, Inc , 1 NLRB 760 i3National Labor Relations Act, as amended, Section 10(b). 14 Since its inception , the Board has applied the principle with almost complete regu- larity Where tolling was not ordered , the omission was clearly inadvertent, or involved a distinguishable case. For example, in Wix Corporation, 132 NLRB 1059 , an amending order was issued on October 20, 1961, which corrected the earlier oversight See also the "Cf " cases cited by our colleagues in their footnote 5. Bell Oil and Gas Company, 1 NLRB 562, which is also cited by our colleagues , predated the Haffelfinger case, 1 NLRB 760, wherein the practice originated. 15 See, for example, N.L.R B. v Seven-Up Bottling Company of Miami, Inc , 344 U.S 344; Virginia Electric and Power Company v. NLRB, 319 U.S. 533; NLRB v Electric Vacuum Cleaner Company , Inc., 315 U.S 685; Phelps Dodge Corp v N.L R B , 313 U S. 177. 16 For example, Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629, enfd. as modified sub nom Local 357, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, 275 F. 2d 646 (CAD C ), revd on other grounds 365 U S. 667; Puerto Rico Rayon Mills, Inc., 117 NLRB 1355, enfd as modified 293 F 2d 941 ( CA. 1) ; Pyne Moulding Corporation, 110 NLRB 1700 , enfd. 226 F. 2d 818 (C.A. 2) ; Vogue Lingerie, Inc, 123 NLRB 1009, enfd 280 F. 2d 224 (CA 3) , Virginia Electric & Power Company, 44 NLRB 404, enfd. 319 U S. 533, 132 F 2d 390 (C.A 4) ; Akin Products Company, 99 NLRB 1270, enfd 209 F. 2d 109 (C.A 5) ; The Kentucky Firebrick Company, 3 NLRB 455 , enfd 99 F 2d 89 (C A 6) , Time -O-Matic, Inc, 121 NLRB 179, enfd. as modified 264 F 2d 96 (CA. 7) ; New Madrid Manufacturing Company, a corporation, and Harold Jones, an individual, d/b/a Jones Manufacturing Company, 104 NLRB 117, enfd as modified 215 F. 2d 908 (CA. 8) ; Morrison-Knudsen Company, Inc , 122 NLRB 1147, enfd. as modified 276 F. 2d 63 (CA. 9) , R. C. Hoiles, et at, 13 NLRB 1122, set aside on other grounds 113 F. 2d 939 (CA. 10). 649856-63-vol. 137-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . in applying its authority over backpay orders, the Board has not used stereotyped formulas, but has availed itself of the freedom given by Congress to attain just results in diverse, complicated situations.17 Nor are we aware of any published criticism of the doctrine by either management or union circles. We likewise know of no criticism di- rected at the practice by the Congress. In fact, in view of the number of times since 1935 that the Congress has reviewed the Act and the Board's decisions and practices with respect to it, the silence of the Congress, its committees, and its members, with respect to the tolling practice is indicative, not of congressional disapproval, but of unquali- fied congressional approval of this Board policy. Nor do we agree that our colleagues are on sound ground when they justify the change they are making by analogy to private litigation. This analogy is not at all persuasive for, in the language of the Su- preme Court : The instant case [a Board complaint case] is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding.1' [Emphasis supplied.] Moreover, in N.L.B.B. v. Newark Morning Ledger Co.,19 the court, in ruling on the validity of a Board order for reinstatement and backpay, specifically rejected the analogy to private litigation. As stated by the court, after pointing to Supreme Court opinions 20 making clear that the Board was established to effectuate public policy and not to enforce private rights : We are thus not called upon to determine whether [the dis- criminatee] has an individual right to secure redress for wrong- ful discharge or whether the law of New Jersey affords her a forum for the appropriate redress of her grievance. The existence of such a private right in [the discriminatee] in no way affects the public right or the exclusive jurisdiction of the Board to en- force it. This is clear from the express provision of Section 10 (a), 29 U.S.C.A. § 160(a), that the power of the Board to prevent unfair labor practices "shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise." A misconception of the nature of the Board's process may arise from the fact that in the enforcement of the public right to have the 14 Phelps Dodge Corp v. N L R B , 313 U S 177, 198 is N T R B. v Jones & Laughlin Steel Corporation, 301 U S 1 " 120 F 2d 262 , 266 (C A. 3) ( on rehearing ), cert denied 314 U S 693 20 By DIr Chief Justice Hughes in Amalgamated Utility Workers, etc v Consolidated Edison Company of New York, Inc, 309 U S 26i , 265, 267 , 268; and by Mr Justice Stone in National Licorice Company v. N.L.R B., 309 U S . 350, 362 A.P.W. PRODUCTS CO., INC. 35 channels of interstate commerce freed from obstructions result- ing from unfair labor practices a private right of an employee may incidentally be protected or enforced. Even though private relief is thus afforded it nevertheless remain true that the Board's powers may be invoked only when there is a public right to be protected and that its processes are never available to a private suitor.,' Finally, we think that our colleagues are overlooking the im- portant role Trial Examiners play in the administration of the Act. The Trial Examiner is the statutory agent of the Board in the hearing of cases. He is not a hollow conduit, serving only to pipe cases to the Board. He makes important factual and legal decisions. On numerous matters of discretion, and in the resolution of credibililty issues, his decisions are virtually final. The important role of the 'Trial Examiner in the Board's adjudicative process should not now be weakened by undermining this long-standing rule which affords a measure of finality to the Intermediate Report 22 Nor, as a matter of public policy, is it equitable to penalize a respondent for reliance ,on the official recommendations of the public officer charged with making such determinations. Additionally,• in these cases in which the Trial Examiner is thereafter affirmed, this policy change will result in pressuring the party or parties complained against to rein- state a properly discharged employee during the period between the Intermediate Report and the Board's Decision and Order. Since we perceive no sound or compelling reason to abandon this -salutary and equitable doctrine, we would adhere to-the Board's pres- ent tolling practice. zi N L R B v. Newark Morning Ledger Co , Supra, at 268 22 The importance of the Trial Examiner in the adjudicative process was recognized by the Board in 1961 when it unanimously supported the President 's Reorganization Plan No. 5 then pending before the Congress. That plan would have given greater, rather than less, finality to the Intermediate Reports of the Trial Examiners . But now our colleagues are apparently reversing their earlier view by in fact lessening to a degree the status of Intermediate Reports Hearings before Subcommittee, House Committee on Gos'ernment Operations , 87th Cong , 2d sess , June 12, 19, 1961 Contrary to our colleagues ' statement, we would not, of course , give conclusive finality to an erroneous recommendation of a Trial Examiner . We would simply hold, as the Board for many years has held, that a respondent is entitled to rely upon the recom- mendations of a Trial Examiner during the period when those recommendations are out- standing, 1 e , between the date of the Intermediate Report and the date of the Board's Decision and Order . Our position does not in any way contemplate abandonment of present practice , under which a respondent is liable for any losses suffered prior to the date of the Intermediate Report and after the date of the Decision and Order 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, we hereby notify our employees that: 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in or activities on behalf of United Papermakers and Paperworkers, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating against our employees in regard to their hire and tenure of em- ployment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist United Papermakers and Paperworkers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Bernice Dagan immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and will make her whole for any loss of earnings suffered as a result of the discrimination against her. All our employees are free to become or to refrain from becoming- or remaining members of United Papermakers and Paperworkers, AFL-CIO, or any other labor organization. A.P.W. PRODUCTS Co., 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. Employees may communicate directly with the Board's Regional Office (24 School Street, Boston 8, Massachusetts; Telephone Number, LAfayette 3-8100) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This case , Case No. 1-CA-3354, was brought under Section 10(b) of the Na- tional Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed on November 17, 1960, by United Papermakers and Paper-workers, AFL-CIO, herein called Union. On December 29, 1960, the Gen- eral Counsel issued a complaint premised on the charge , and A.P.W. Products Co., Inc., herein called Respondent, filed an answer on January 6, 1961. A hearing on complaint and answer was held in Brattleboro, Vermont, before the duly designated' Trial Examiner on February 14 and 15, 1961. A.P.W. PRODUCTS CO., INC. 37 The complaint alleges and the answer denies that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discharged on November 11, 1960, and refused to reinstate thereafter, Bernice Dagan, employed at its Brattleboro, Vermont, plant, because she joined or assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid or protection. Respondent, General Counsel, and the Charging Party were represented at the hearing. All parties were afforded an opportunity to be heard, to introduce evidence, to make oral argument, and to file briefs. Counsel for all parties filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a New Hampshire corporation, with a principal office and manu- facturing plant in Brattleboro , Vermont, is engaged in the manufacture , sale, and distribution of paper products. Respondent in its answer admits the allegation of General Counsel's complaint that annually it ships from its plant in Brattleboro, Vermont, to points outside the State of Vermont products valued in excess of $50,000, and receives at Brattleboro from points outside Vermont products valued in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General background The Respondent has manufacturing plants in Ashland and Hinsdale, New Hamp- shire, and Union, New Jersey, as well as at Brattleboro, Vermont. While it does not have collective-bargaining relations with the Union for employees at the Brattleboro plant, it does bargain with the Union with respect to employees at its Hinsdale and Union plants, and bargains with the Pulp and Sulphite Workers Inter- national Union with respect to employees at its Ashland plant. When it operated plants at Albany and Warrensburg, New York, it bargained collectively with the Union on behalf of the employees of these plants . Walter H. Riley, International representative of the Union, who has acted on behalf of the Union since 1957 in connection with its duties as collective-bargaining representative of employees at the Hinsdale plant, testified that there have been no unfair labor practice charges or arbitration cases involving that plant while he has represented the Union there. Respondent's plant at Brattleboro is a relatively recent operation . It employs approximately 70 hourly wage employees. The Union began organizing activity there on October 19, 1960. It forwarded a letter dated November 1, 1960, to Re spondent's Brattleboro plant, in which it stated that it represented a majority of the employees at this plant, and requested Respondent to bargain collectively with it on behalf of these employees. This letter was received on November 2, 1960. B. The discharge Bernice Dagan was discharged on November 11, 1960, at or about 3 : 30 p.m., the end of the day shift. At that time she received a check for a week's earnings in the amount of $40.63. Mrs. Dagan testified that her supervisor , Robert McGrath, plant foreman, sent a note to her at or about the end of the shift to the effect that he would like to see her in his office alone, and that upon her going to his office and telling him she had found his note on her timecard, he told her that Mr. Kahn and Mr. Baum and himself had arrived at the conclusion that her interests were not with or for the Company, and for that reason A P.W. Products Company and her were going to part company. Frank Kahn is production manager of Respondent's Brattleboro plant and Seymour Baum is its vice president . Dagan also testified that McGrath agreed with her that there was nothing wrong with her work, and that she had been absent only 1 day, had not been tardy, did her work as well as any other operator, and had top production. Bernice Dagan began work for Respondent on September 20, 1960 , on the day shift, 7 a.m. to 3:30 p .m. She began as a trainee on a task connected with the operation of a machine converting paper to paper towels . After 3 days, she was given a day-shift assignment connected with the operation of a semiautomatic low- 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fold banding machine converting paper to paper napkins. There she remained until discharged on November 11. The napkins came out of the machine on trays with a marker at every 200 of them. Dagan's job was to take each 200 and put them in a box. The boxes were placed on a side conveyor leading to the main conveyor. Mrs. Irene Rogers had a similar assignment connected with a machine of the same type and purpose located 30 to 40 feet from the machine at which Dagan was working. Rogers placed her boxes of napkins on the main conveyor. Francis Shallow, also on the day shift, performed tasks connected with the operation of three machines converting paper to paper towels. These machines were located near Dagan's machine. When Dagan and Shallow were at their respective job loca- tions, they were facing each other. 1. General Counsel's case General Counsel and the Charging Party contend that the reason McGrath gave Dagan on November 11, 1960, for her discharge, namely, that her interests were not with or for the Respondent, discloses that Dagan was discharged for joining and assisting the Union and engaging in other conduct for mutual aid and protection when appraised against evidence of record they assert shows union and other con- certed activity in October and November 1960, the Respondent's awareness or knowledge of this organizational and concerted activity and Dagan's participation in it, a disclosure by an alleged supervisor that Respondent was watching Dagan with a view to firing her because of her union and other concerted efforts, and an animus on the part of Respondent with respect to the organizational and other concerted activity that could result in a discharge of an able employee, like Dagan, who participated in such activity. 2. Respondent's defense Respondent does not seriously dispute Dagan's testimony of what McGrath said to her when he discharged her on November 11. It contends, however, that General Counsel has not made a prima facie case, and, therefore, should not prevail. It supports its contention by attacking the credibility of Dagan and Wesley Garfield, two of General Counsel's three witnesses, and by the position that even if the testimony of these two witnesses on direct and cross-examination was credited, it fails to support the allegation of a discriminatory discharge. The only affirmative evidence Respondent offered was brief oral testimony of an employee dealing with the handwriting in the upper left hand corner of the check Dagan was handed when discharged on November 11; this check of November 11 and a check Respondent in error sent to Dagan on November 17, 1960; a schedule of bonuses effective October 31, 1960, for employees like Dagan; and the Union's letter to Respondent of November 1, 1960, claiming that it represented a majority of Respondent's em- ployees and requesting collective-bargaining negotiations. With the exception of the Union's letter, this evidence relates to Dagan's credibility. The Union's letter was offered in support of Respondent's position that its officials in their statements to assembled employees on November 2, 1960, displayed no antiunion animus, but on the other hand showed an effort to refrain from discussing or placing in effect a bonus program or other programs which might tend to impede the organizational efforts of the Union. 3. Evidentiary findings It is undisputed that at the beginning of the lunch period on October 19, 1960, International Representative Riley passed out union handbills at the door of the plant which was an employee entrance and exit. Attached to the handbill was a union authorization card and an addressed envelope bearing in some instances Riley's home address in Webster, Massachusetts, and in others the address of the Union's Regional Office in Springfield, Massachusetts. Also undisputed is the evidence that Frank Kahn, Respondent's production manager, saw Riley passing out the handbills, after Plant Foreman McGrath reentered the plant to draw Kahn's attention to Riley's activity. McGrath had taken a handbill before reentering the plant. Likewise undisputed is the testimony of Riley that Kahn called him into his office and ordered him off the premises. No probative evidence was offered to show that Riley could not have distributed the handbills at or near the entrance to Respondent's property. Riley and Dagan testified that Riley then proceeded to Respondent's parking lot where he had parked his automobile, and stopped to talk to Dagan and Olga Klowan who were sitting in Dagan's automobile in the parking lot. According to Dagan, he talked to them about 3 minutes, and then entered his automobile and drove off. A.P.W. PRODUCTS CO., INC. 39 Dagan testified that she saw Kahn looking in their direction while she was conversing with Riley. Nothing passed between them at this time. There is no evidence that any part of the conversation was conveyed to Kahn by Dagan, Riley, or Klowan. Respondent does not dispute the evidence that this conversation was held, or that Kahn witnessed it from a distance. Dagan also testified that she met Riley in the railroad station that afternoon some- time after the end of the first shift at 3:30 p.m., that she gave him her signed authori- zation card and received from him 25 blank authorization cards, that she succeeded in obtaining signatures on 15 of them within the next 10 days and mailed them to Riley or the Union as she obtained the signatures. She recalled mailing the last of the cards in the first part of the week containing the first day of November. At that time she also handed some of the cards to Riley personally. It was also Dagan's testimony that she attended an organizational meeting at Gill, Massachusetts, on October 24. She testified that only two other employees, Joannie Coolbreth and Wesley Garfield, were present, and that she set up the meeting, and asked six other employees to attend. They were Jackie Holden, Francis Shallow, Donald Backus, Lillian Bickford, Albert McGee, and Mildred Allen. There is no evidence that Respondent had knowledge of this organizational activity by Dagan. According to Dagan, Shallow came to her machine on October 25, about 8 a.m., placed his arm around her shoulder, asked her how the meeting went, if it was held at Gill as scheduled, who attended, and what took place, and she replied that if he wanted information pertaining to union meetings he should attend them himself and not get it secondhand. She testified that Foreman McGrath stood facing them at a distance of 6 to 8 feet away. She indicated to the Trial Examiner the distance she considered to be 6 to 8 feet. This distance was measured. The measurement showed it was greater than 10 feet, and I so find. I further find that no evidence was offered as to whether Dagan's machine and other machines were running at the time of the conversation. Since Dagan's shift began at 7 a in , I find in the absence of evidence to the contrary, that Dagan's machine, Shallow's three towel machines, and other machines on the same floor, were running. I further find that McGrath, a supervisor, would be expected to watch a situation wherein an employee left his three machines during their running, approached another employee at her machine while it was running, and placed his arm around her shoulders and engaged her in a conversation. His watching this scene from a distance of 10 feet or greater amid the noise of running machines does not provide any basis for an inference that he heard the conversation. Dagan testified that on October 26, 1960, she and Fred Quinn, converting foreman, had a conversation. The time was midmorning, around 10 a m., shortly after the coffee break at 9:30 a.m. According to Dagan, Albert McGee, Wesley Garfield, and Mildred Allen were present. McGee was the operator of the machine, Allen was a trainee for a job like Dagan's, and Dagan was supervising her. Garfield until sometime in November was the setup man for Dagan's machine on the day shift. He changed the paper, threaded the machine, fixed it if it was jammed, and kept Dagan supplied with boxes and sleeves for the napkins. In November, he performed this work on the second or night shift for the same machine. At that time, Mildred Allen became the counterpart of Dagan on the second or night shift. Counsel for the parties at the outset of the hearing stipulated that Quinn was a supervisor within the meaning of the Act. However, the stipulation was silent as to the nature of Quinn's duties, or the extent, if any, to which he supervised employees, or participated in the making of company policy. Dagan testified that Quinn asked her if she knew when the next union meeting was, and she replied that she did not know, that perhaps he would know before she did, and if he found out, would let her know. She also testified that "Mr. Quinn told me that I was smarter than I made off to be, and I was shrewd. I asked him what he meant; and he told me that he knew I was for the Union even though I would not admit it. He told me that we certainly needed a union, but that we were going after it too soon. I told Quinn that that was pretty rank union talk coming from a company man, and that we had not ought to be talking union on company time. Mr. Quinn stated that even though he was a company man he held a union card. He told me that we could talk union all we wanted, the company did not object, as long as we were talking against it; and Mr. Quinn left me." However, this testimony, which appears to show Respondent interrogation and strong antiunion bias, has a different impact when viewed with the version of it contained in Dagan's written statement to Attorney Walsh, counsel for the General Counsel, on January 27, 1961. The following was contained in that statement: On or about Wednesday, October 26, sometime after our coffee break, I had a conversation with Fred Quinn, converting foreman, at my machine while he 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was repairing my machine. After repairing my machine, Quinn and I watched the machine while my trainee, Mildred Allen, was operating the machine. While watching the machine operate, Quinn asked me, "How goes everything?" I said, "Fine." He asked me "What's new with the Union?" I said, "I wouldn't know." He said we needed a union but were going after it too soon. I told him that for a company man he was talking pretty rank union talk. He said he was a Com- pany man but held a union card. He asked me "if there was another Union meeting for organization purposes." I told him that I didn't know. He asked me if I found out would I let him know. I told him that he would probably find out before me and to let me know. He told me "that I was smart and knew more than I was admitting." I told him that we shouldn't be talking Union during Company time. He said that, "You can talk Union on Company time as long as you're talking against it." I laughed and said, "I know what you mean," and wished to remain neutral.' The recorded past recollection of Dagan does not record that Quinn said he knew she was for the Union, even though she would not admit it, or that she was smarter that she made off to be, and ". . . was shrewd." Nor does it record that he said "the company did not object" in the midst of his statement that they could talk union on company time as long as they talked against it. This last purported statement would be sheer hearsay, in any event, unless Quinn was expressing Re- spondent's policy. I find both the version in Dagan's testimony and the version in her past recollection recorded to be sheer hearsay and a conclusion of Quinn, upon consideration of both versions with the disclosure in the past recollection recorded that Quinn's duties, at least in part, were those of a repairman, that Dagan and he were engaging in a personal friendly conversation as two union members, and that McGee, Garfield, and Allen were not included in the conversation. It is also to be noted that the juxtaposition of the various statements attributed to Quinn by Dagan in her testimony, in contradiction of their positions in the past recollection recorded, largely contributes to the inference of antiunion animus that flows from Dagan's testimony. The evidence will support only a conclusion that Converting Foreman Quinn was at most a minor supervisor with routine duties which excluded any par- ticipation in determination of company policy, and who had a friendly personal conversation with Dagan on October 25 as a union member talking to another union member. Counsel for Respondent in his brief queried why General Counsel did not charge Respondent with illegal conduct other than the discharge in view of the purported evidence contained in Dagan's testimony regarding her conversation with Quinn. The answer is that Dagan's version of the conversation contained in the statement she gave to Attorney Walsh on January 27, did not show a violation, and the two prior statements given to General Counsel by Dagan, November 21 and December 28, 1960, respectively, were silent as to this conversation. The failure of General Counsel, or the Union as Charging Party, to corroborate Dagan's testimony by the testimony of Garfield, who appeared as witness on other matters, or McGee or Allen, lends support to my finding that they did not hear the conversation. On October 28, 1960, Respondent posted a notice on the bulletin board at the Brattleboro plant that effective October 31, 1960, it was installing a bonus system at this plant. On October 31, it placed a notice on this bulletin board that on November 2, 1960, at 3:30 p m., there would be a meeting of the employees of both shifts in the cafeteria. Approximately 70 employees assembled in the cafeteria at 3:30 p.m. on November 2, 1960. They were addressed by Production Manager Frank Kahn and Vice President Seymour Baum. Baum's brother, also an official of Re- spondent, and Superintendent Bullock of the Hinsdale plant, were present. 1 Emphasis has been supplied by the Trial Examiner General Counsel offered this statement, and two others, in evidence On objection of Respondent's counsel, I rejected them on the ground that they were not affirmative evidence (G & H Construction Company, 130 NLRB 923), and that no showing was made that counsel for Respondent referred to them in the course of cross-examination, thereby making them admissible for proper evaluation of the references relied on for impeachment purposes (J G Biavn Company, 126 NLRB 368, 369, footnote 3) Attorney Walsh moved for inclusion of the affidavit in the rejected exhibit file, and I granted the motion. On my own motion, I now receive the January 27, 1961, statement in evidence to the extent that it relates to and is in impeach- ment of Dagan's testimony of her conversation with Quinn on October 26, 1960. My previous ruling on Attorney Walsh's offer is vacated and set aside to the extent it is in- consistent with this ruling. Dagan's other two affidavits, dated November 21 and December 28, 1960, respectively, contain no references to her October 26 conversation with Quinn. A.P.W. PRODUCTS CO., INC. 41 Dagan testified that Kahn stated to the assembled employees that the meeting had been scheduled to discuss company policy on benefits, grievances, and a bonus system, but that the Union's letter of November 1 claiming majority representation and requesting bargaining negotiations was received at 1:30 that afternoon, with the result that Respondent's officials would not discuss the subjects scheduled for dis- cussion until they knew whether or not the employees wanted a union. Baum then addressed the assembled employees by reading the Union's letter, and stating he could not discuss figures with them because of the letter, that until he received the letter he thought everyone was happy, and that he realized the employees did not have a number of benefits other plants had, but due to relocation costs, setting up costs, and training costs, Respondent was running in the red. Baum also stated that the Respondent held a pat hand but so did the Union, and if the bonus figures were discussed the information could be relayed to the Union, and thereby enable it to outbid the Respondent on this program. Baum further stated that the Union represented the employees at Respondent's Hinsdale plant, and the Pulp and Sulphite Workers represented Respondent's Ashland plant employees, and that Respondent did not care whether the employees wanted or did not want a union, as it always got along with unions. After Kahn and Baum spoke, there was a question and answer period of half an hour. According to Dagan, she took up 20 minutes of this period. She asked if Respondent had accident and health insurance for employees on and off the job, whether there was a shift differential, and what was the daily standard production. Production Manager Kahn answere no to the first two inquiries, and discussed Dagan's daily production standard with her. Near him were Vice President Seymour Baum and Bullock, superintendent of the Hinsdale plant. Other employees were not in- cluded in the conversation. It took place in a corner of the cafeteria. Kahn went to his office and obtained a document containing the bonus plan for her job and discussed it with her. Dagan then remarked that from what she saw of the bonus program it was for the benefit of management rather than the employees. Accord- ing to Dagan, she and Kahn discussed this point, and then Kahn refused to discuss it any further. He claimed he had answered her questions sufficiently. She testified that his facial expression and his abrupt manner caused her to believe that he had become irritated. Their discussion of the bonus program, according to Dagan, took place in the same corner of the cafeteria and involved only her and Kahn. Dagan then testified that as she was leaving the cafeteria shortly afterwards, she noticed a group opposite the door in the hallway comprised of Kahn, Seymour Baum, his brother, Bullock, Foreman McGrath, and employees Shallow and Holden. McGrath was writing on a pad of paper, and Shallow was saying to him "Joan Cool- breth and Bernice Dagan." As she walked passed the group, she observed that McGrath had written on the pad "Joan Coolbreth" and "Bernice." McGrath was one person away from her. They were separated by the person of Shallow. Dagan made no attempt then or thereafter to inquire as to the reason her name was mentioned to, or written down by, McGrath. Dagan next testified that about 8 o'clock the next morning, November 3, 1960, employee Irene Rogers left her machine and came to her machine and engaged in a conversation with her. She said that Foreman McGrath was the same 6 feet away that he was when Shallow engaged her in a conversation on October 25. 1 find the distance to be 10 feet instead of 6 feet. The record is silent as to whether the ma- chines were running, but since the time was 1 hour after starting time, I find they were running, and were making the noise and din usually made by running machines. She then testified that Rogers asked her for the dates and places of the union meet- ings, the number of persons who attended, their names, and what took place. Dagan told Rogers she did not have the information, after asking her why she wanted the information and receiving the reply that she wished to give it to someone. Rogers, according to Dagan, then accused her in a loud voice of printing union notices, and posting them in the lunchroom and the ladies' room.2 Rogers further stated according to Dagan, that everyone knew she was trying to get a union in the plant. Dagan testified that she thereupon asked Rogers if she ever saw her printing or posting notices, and on her replying in the negative, asked her not to say she did, and to leave because she was bothering her, as she, Dagan, wished to do her work. Dagan then testified that at this point in the November 3 conversa- tion, McGrath nodded to Rogers to return to her machine. I find at this point that the evidence does not show that McGrath overheard this. conversation. McGrath could see from where he was standing that some kind of a 2 The Trial Examiner had lust remarked that as in the case of the October 25 conversa- tion he could not understand how McGrath could have overheard this conversation 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heated conversation was taking place, and consistent with his minimal responsibilities as a supervisor, motioned Rogers to return to her machine and her work, where she belonged . There is no evidence that Rogers colluded with McGrath to set a trap for Dagan. On Cross-examination and on redirect examination , Dagan testified that on the afternoon of November 3, Irene Rogers came to her machine and called her a "G. D. bitch," a "G. D. son of a bitch ," and "money hungry," and "blamed her because the conveyor had plugged up." She further testified she laughed when Rogers spoke to her in this manner, that she had nothing to do with the conveyor being jammed, and she did not know why Rogers blamed her. Dagan testified that prior to this conduct of Rogers she overheard Foreman McGrath say to employee McGee "to 'back up the cases on the main conveyor beyond Irene Rogers to free my side con- veyor so that I could continue to work." She testified on examination by Attorney Walsh for the General Counsel that Foreman McGrath and employees were present .during the name calling. Dagan later stated during the same examination by Walsh that McGrath was not present. At 3:30 p.m., the end of the first shift, Dagan went to Foreman McGrath 's office, .accompanied by employees McGee and Coolbreth, and complained of employee Rogers' profanity that afternoon , and her leaving her machine and bothering her while she was working. According to Dagan, McGrath laughed and said that she and Rogers would have to settle the matter by themselves . She further stated that when McGee asked McGrath if he would expect his wife to take what Dagan was taking from Rogers and not want her foreman to do something about it, McGrath replied that the matter was purely between Rogers and Dagan, and that the latter would have to settle it with Rogers . Dagan also testified that at this meeting with McGrath, employee Coolbreth complained to him that employee Shallow was not doing the things that he had been instructed to do for her . He was not changing the paper, obtaining glue, checking her machine to see if it functioned , and relieving her .3 Employee Garfield, who had left Respondent 's employ about January 15, 1961, testified for the General Counsel that he had a general conversation about the shop, the machinery, and the Union with a Ben Carter during the second shift the evening of November 10, 1960, in which Carter stated that the machinery at Ashland ran better, and the plant was too young for a union then , but in the future it might help. Garfield also testified that in the course of the conversation, Carter stated that the day operator of the machine would be on her way out if she did not watch her step. The day operator was Dagan . Garfield identified Carter as the only foreman present at the time to supervise the 30 employees on the night shift, and who directed the work assignments and transfers of these employees. On cross-examination, Garfield testified that Carter spent more than 50 percent of his time instructing and showing employees how to operate the machines and 30 per- cent of his time in seeing that the machines were in good repair and maintaining them Dagan testified that Carter was employed at Respondent's Ashland plant, and was assigned to the Brattleboro plant to train employees, and that when he worked on the day shift, he would watch her, asked her how her machine was working, and one thing or another. He only engaged her in general conversation. He did not direct or advise her about her work. In her testimony Dagan referred to Carter as a "second shift temporary employee." Garfield testified that Carter returned to the Ashland plant sometime in November 1960 Garfield also stated on cross-examination that Carter came over to check the machine, as he did three times a night, and began the conversation with an inquiry as to how the machine was running, and that this inquiry led to a discussion of other things . It is Garfield 's testi- mony that Mildred Allen was taking the napkins off the machine and boxing them, and did not join in the conversation. On the evidence of record , Carter appears to have had a minor supervisory status, and was engaged like Quinn in training employees and in watching the opera- lion and maintenance of the machines . Garfield had no difficulty in remembering the date of the conversation he had with Carter, but, on the other hand, could not recall the dates he began and terminated his employment with Respondent. He admitted being a good friend of employee Dagan. Significant also is Garfield's testimony that Carter's reference to union organization is in substance the same as Dagan's testimony as to the reference Quinn made to it in his conversation with her on October 25, namely, that the plant was too young for a union but that it might 8 On cross-examination, Dagan admitted that employee Shallow complained to McGrath in early October 1960 that she was staring at him as they stood facing each other while operating their machines Dagan testified that she told McGrath she was not staring, but merely had a smiling and happy face and could do nothing about it. A.P.W. PRODUCTS CO., INC. 43 help in the future. Carter chatted with Garfield in the course of his checking the operation of the machine just as Quinn chatted with Dagan on October 25 in the course of his checking the operation of her machine. The most that can be gleaned from the statement by Carter, if Garfield is credited, is that Carter expressed the opinion that Dagan would lose her job if she did not watch her conduct. Garfield's testimony does not show that Carter said she might lose it because of her union activity or other concerted activity. The evidence does not show that Carter had anything to do with the determination of respondent's policy or that by reason of his position, his opinions were binding on the Respondent. As found above, Dagan testified that she was discharged the following afternoon at the end of the first shift, and the reason McGrath gave her was that Respondent's officials had reached the conclusion she was not for the Company. Dagan testified, preliminary to her testimony of McGrath's notice to her of the discharge, that before talking to McGrath she had been apprised by Garfield of his conversation with a "temporary second shift employee" whom she identified as Carter on the evening ,of November 10, and that Garfield had told her Carter informed him in the course of the conversation that she and another day-shift operator were to be discharged for their union activity. However, Garfield testified that he did not inform Dagan of the conversation he had with Carter until the evening of November 11. This means that he informed her of it, if at all, after she was discharged. Garfield's testimony is silent as to what he said to Dagan during the evening of November It. His testi- mony does not disclose that Carter told him that Dagan and another day-shift operator were to be discharged for union activity.4 Dagan on cross-examination admitted that Respondent on November 17, 1960, sent her a check in the amount of her weekly wage of $40.63. The voucher attached to the check stated the check was for the week ending November 13, 1960. Novem- ber 13, a Sunday, was 2 days after the date she was discharged. As found above, when Dagan was discharged on November 11, 1960, she received a check for $40 63 for the 5 days from November 7 to 11. It was drawn on the petty cash account in the Vermont Bank and Trust Company, Brattleboro, of White-Washburne Corpora- tion, a subsidiary of Respondent located nearby in Hinsdale, New Hampshire 5 Dagan admitted cashing the check dated November 17, 1960. She testified that on December 9, 1960, she called Respondent's Brattleboro plant, and to the person answering the telephone stated she wished to speak to someone in cost and payroll The person answering the telephone, according to Dagan, did not transfer the call, but said that perhaps she could help her. Dagan testified she then told her about the November 17 check, and the woman after asking whether it was for a full week stated that the Respondent must have felt it was due her because it had never been known to overpay anyone.6 Dagan's testimony was that her brother and sister-in- law were with her when she called about 11 a.m, and that same day she and her sister-in-law drove to the bank where she had the check cashed at the outdoor window. She claimed she never spent the $40 63 she received in cash for the check. The canceled November 17 check was placed in evidence by Respondent It had been endorsed by Dagan to Guy X. Boucher & Son, a company that operated a garage. The check was drawn on the payroll account of Respondent in the Vermont Bank and Trust Company, Brattleboro, by Respondent's office at its plant in Union, New Jersey, but it was cashed by the Vermont National Bank of Brattleboro In response to the Trial Examiner's question, Dagan stated that she might have given the check to the garage in payment of repairs to her automobile. The stamp of the bank on the reverse side of the check showed that it was received by the bank that cashed it on December 9, 1960. It would appear that she endorsed the check to the garage prior to the purported telephone call of December 9. After cross- a Dagan testified on cross-examination that there was nothing she had done which would give Respondent grounds for believing she was engaging in union activity Riley testified that there were union meetings in early November 1960, as well as the October 24, 1960, meeting Dagan testified there was a union meeting on November 2 1960 There is no evidence that Dagan attended these meetings other than the one of October 24, or that Respondent had any knowledge of them 5 Dagan had been paid on November 10. 1960, for the 5 days of October 31 to Novem- ber 4 she worked in the prior week Dagan testified that the handwriting in the upper left-hand corner of the November 11 check containing the information that the check was for the 5 days ending November 11, was not on the check when she received it. Employee Irene Thompson of White-Washburne Corporation who prepared the check testified for Respondent that she placed it there at the time she prepared the check. I credit Thompson O This November 17 check had been made out by Respondent's Union New Jersey office which handled the payrolls for the Brattleboro and other plants of Respondent Appar- ently, it was made out as a routine matter before that office was notified of the discharge. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examination , Dagan took the position that her actual disposition of the check in December 1960 could have escaped her memory and that the firm testimony she gave as to how she had it cashed on December 9, 1960, could have been in error. Dagan further testified that in January 1961, she received a telephone call from a clerk in the Brattleboro plant about the November 17 check. The clerk said that the Brattleboro plant had received a letter from Respondent's office in Union, New Jersey, to the effect that Dagan owed Respondent $40.63, and wished to know whether she wished to make any statement in regard to this claim against her. Dagan testified she told her that she did have a sum of money, $40 63, belonging to Respondent, but Respondent owed her some of this amount as it had failed to pay her the bonus she had coming to her under the bonus system effective October 31, 1960, for the period from that date until November 11, 1960, when she was dis- charged, or give her the automatic increase due her 30 days after she began em- ployment. Although Dagan testified that she discussed the November 17 check with Field Examiner Burgoon when he interviewed her on November 21, 1960, and with Attorney Smith when he interviewed her on December 28, 1960, her sworn statements of those dates are silent as to these checks. ? She admitted making no mention of the checks to Attorney Walsh when he interviewed her on January 27, 1961. C. Analysis and concluding findings I find from an analysis of the above evidentiary findings a lack of evidence dis- closing that Respondent had a knowledge of Dagan's union activity or membership While the findings with respect to what occurred on November 2, 1960, at the question and answer session and outside the cafeteria following the talks to assem- bled employees by Production Manager Kahn and Vice President Baum does disclose the possibility that Dagan was discharged on November 11, 1960 , for concerted activity during the question and answer session on November 2, such a possibility is too remote to provide a basis for an inference that the discharge had this illegal motive. The November 2 incident was followed by a payday on November 3. If Kahn and Seymour Baum resented her saying that the bonus system was for the benefit of management rather than employees the reasonable calculation is that she would have been given notice on November 3 or 4 before their resentment, if they had any, had begun to cool. The evidence of the colloquy between Rogers and Dagan on the morning of November 3 does not disclose that Foreman McGrath heard it. But assuming con- trary to the evidence he did hear it, I could not find that McGrath or other officials would act on the accusations of Rogers since to them they could have lacked foundation in fact Dagan testified that she had done nothing that would disclose to Respondent's officials that she had been engaged in union activity. Dagan's testimony discloses that on the afternoon of November 3, Foreman McGrath instructed McGee to back up the napkins on the main conveyor beyond Rogers' machine. This action favored Dagan as much as it did Rogers. McGrath's decision later that afternoon to let Dagan and Rogers settle their differences by them- selves rather than for Respondent to intervene could well have been the wise decision for a supervisor to make in the particular circumstances. McGrath's decision to remain neutral and to refuse to intervene on behalf of Dagan, as Dagan requested, does not show any illegal motive It was the burden of General Counsel to fill in the gap between the incidents of November 3 and the discharge on November 11. He attempted to do so by evidence of a conversation between Garfield and Ben Carter on the evening of November 10 I have previously found that this evidence does not disclose any antiunion motive or any intention on Respondent's part to discriminate against Dagan. Respondent did not have the burden of furnishing evidence to show that Dagan had engaged in conduct during the period from November 3 to 11 warranting her discharge for cause. No evidence was offered by General Counsel that the statement that Dagan was not for the Company made by McGrath when he discharged her carried exclusively the special meaning that she had joined the Union or had engaged in union activity or other concerted activity , or placed the burden on Respondent to neutralize a pre- sumption that it carried this meaning . This expression could have been used by McGrath to express his opinion or judgment that conduct by Dagan completely divorced from any connection with union activity and membership or other concerted 7 Since there was testimony on behalf of Respondent as to the silence of the statements of November 21 and December 28, 1960, with respect to the November 17 check, I hereby set aside and vacate my ruling rejecting them on General Counsel's offer and receive them in evidence insofar as they relate to this issue. LOCAL 1066, INT'L LONGSHOREMEN'S ASS'N, ETC. 45 activity, showed that it was not to Respondent's interest that she be retained in its employ. The record made by General Counsel does not warrant a holding that in the context of this case the words stated by McGrath carried the special meaning that she had joined the Union or had engaged in union or other concerted activity. There was no burden on Respondent to show that the words did not have this special meaning. Dagan's testimony in regard to her disposition of the check Respondent sent to her in error discloses to the Trial Examiner that her credibility was not of the caliber that would justify accepting her testimony at face value , but, on the other hand, was of a nature that calls for a careful analysis of testimony . Garfield's testimony did not strengthen General Counsel's case . Riley's testimony at most showed that the Union was engaged in organizational activity and that Respondent was aware of it. It did not disclose that Respondent had knowledge of Dagan 's participation in it. In sum, my evidentiary findings show that while the evidence discloses there could have been an illegal motive as well as a legal motive behind the discharge, it fails to disclose that an illegal motive was present. For the above reasons, I conclude and find that General Counsel has failed to prove the allegations of his complaint by substantial evidence on the record con- sidered as a whole . I will, therefore, recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent A.P.W. Products Co., Inc., is engaged in commerce within the meaning of Section 2(6) of the Act, and United Papermakers and Paperworkers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent has not engaged in conduct violative of Section 8(a) (1) and (3) of the Act, as alleged in the complaint. [Recommendations omitted from publication.] Local 1066, International Longshoremen's Association, AFL- CIO, and its agents Edward Dalton and Paul Callinan and Wiggin Terminals, Inc. Case No. 1-CC-290. May 2, 1962 DECISION AND ORDER On November 17, 1961, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Local 1066, had engaged in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and briefs in support thereof. 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 entire record in this case, including the Intermediate Report and the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications.' The General Counsel excepts to the omission of Edward Dalton and Paul Callinan from the recommended order and notice. Since Dalton and Callinan were the principal actors in the dispute with Renault which culminated In the slowdown against Bay State, we find merit In this exception and, accordingly, amended the conclusions , order, and notice to hold Dalton and Callinan individually liable. 137 NLRB No. 3.