American Sanitary Partition Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1969

178 N.L.R.B. 265 (N.L.R.B. 1969)

AMERICAN SANITARY PARTITION CORP.
American Sanitary Partition Corp . and Shopmen's
Local 455, International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO. Cases 29-CA-1557, 29-CA-1557-2,
29-CA-1557-3, and 29-CA-1557-4
August 29, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 9, 1969, Trial Examiner Sidney Sherman
issued his Decision 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 attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended the dismissal of such
allegations Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner as modified herein.'
Conclusions of Law
In place of the Trial Examiner ' s "Conclusions of
Law" we make the following Conclusions of Law:
1. American Sanitary Partition Corporation is an
Employer within the meaning of Section 2(2) of the
Act, and is engaged in commerce and business
affecting commerce within the meaning of Section
2(6) and ( 7) of the Act.
2. Shopmen ' s Local 455 , International
Association of Bridge , Structual and Ornamental
Iron Workers , AFL-CIO , is a labor organization
within the meaning of Section 2(5) of the Act.
'We find it unnecessary , and make no determination , regarding the Trial
Examiner's finding that Milord, Menard , and Rosa were not
discriminatorily selected for layoff on January 6, 1969, since we agree with
his findings that the layoff of these and other employees on that date was
violative of Sec 8 (a)(1) and (3) of the Act , and the remedy would be the
same, as provided herein The Respondent has excepted to the Trial
Examiner ' s credibility determinations After a review of the record, we
conclude that the credibility findings are not contrary to the clear
preponderance of all the relevant evidence and we find no basis for
disturbing them . Standard Dry Wall Products. Inc . 91 NLRB 544, enfd
188 F 2d 362 (C A 3)
265
3. By coercively interrogating employees about
their union sentiments or activities, and threatening
them with reprisals for such activities, Respondent
has violated Section 8(a)(1) of the Act.
4. By discharging Pedote, Perez, R. Figueroa,
Menard, Milord, and Rosa in reprisal for employee
union activities, Respondent has violated Section
8(a)(3) and (1) of the Act
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, American
Sanitary Partition Corporation, Long Island City,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified.
1. In the last indented paragraph of the notice,
delete the name "Felix" and substitute the name
"Felix Perez" therefor.
2. Add the following as the last indented
paragraph of the notice:
WE WILL notify the foregoing employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The initial charge
herein was served upon-Respondent on January 8, 1969 '
The consolidated complaint issued on February 17, and
the case was heard on April 1 and 2 The issues litigated
related to alleged violations of Section 8(a)(1) and (3) of
the Act. Briefs were filed by Respondent and General
Counsel.'
Upon the entire record,' including observation of the
demeanor of the witnesses, I adopt the following findings
and conclusions:
1. JURISDICTION
American Sanitary Partition Corp., hereinafter called
Respondent, is a corporation engaged at its plant in Long
Island City, New York, in the manufacture and sale of
metal partitions and related products . It annually ships to
out-of-State points products valued at more than $50,000.
Respondent is engaged in commerce under the Act.
'All dates hereinafter are in 1969 , unless otherwise stated
'Respondent' s brief contained a motion to strike certain evidence. That
motion is hereby denied.
'For corrections of the transcript , see the orders of May 7 , and June 2,
1969. After the hearing , a stipulation requested by the Examiner was
submitted , and is hereby received in evidence as TX Exhs . 1(a)-(e).
178 NLRB No. 45
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE UNION
Shopman 's Local 455, International Association of
Bridge, Structural , and Ornamental Iron Workers,
AFL-CIO, herein called the Union , is a labor
organization under the Act.
III THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues
I Whether Respondent violated Section 8(a)(1) by
interrogation, threats of reprisal for Union activity, and
admonitions to refrain from such activity"
2 Whether Respondent violated Section 8(a)(3) and (1)
by the discharge of six employees on January 69
A Sequence of Events
The business of Respondent has been operated since
1936' It has about 40 employees, most of whom are
engaged in the fabrication of Respondent's products, the
balance being engaged in spraying, packing, and
maintenance work Respondent's officers and sole
stockholders are Virtes, Birkenmaier, Galvani, and
Schmidt Virtes is the chief executive officer. Birkenmaier
maintains liaison between the administrative staff and the
production operation, and Galvani is the shop foreman,
and an admitted supervisor.' He is assisted by Barhold in
directing the personnel engaged in fabrication. Respondent
had until January 4, operated continuously on the basis of
a 56-hour week
On January 3, three employees, including Pedote and
Perez,6 met with the president of the Union, who gave
them about 40 authorization cards to distribute among the
employees The three divided these cards among
themselves, and early in the morning of the next day, a
Saturday, began to pass them out among the employees
Some more were distributed on Monday, January 6 At 5
p m , on that date six employees, including Perez and
Pedote, at least five of whom had already signed Union
cards,' were notified either that they were being laid off or
discharged None has been recalled On January 9, the
Union requested recognition by Respondent, which was
refused, and on January 10, the Union filed a petition for
an election. An election was held in which the ballots of
the six foregoing employees were challenged by
Respondent on the ground that they were no longer
employees Such challenges were sufficient in number to
affect the outcome of the election.
B Discussion
1. The 8( a)(I) conduct
There was testimony by Pedote, Perez, and Milord that
on January 6, between 3 30 and 4 30 p m they, as well as
other employees, were separately asked by Barhold
whether they had signed a union card Moise corroborated
Milord as to the incident involving him
'Although Respondent was not incorporated until 1960, this admittedly
did not involve any substantial change in the nature of the business or the
identity of the owners
'Schmidt is the treasurer of the corporation
'The third employee was not identified in the record
'The sixth employee , Rosa, testified that he signed his card on January
6, between 5 and 5 30, which was about the same time that he was
discharged
Gayton testified that either before or after the January
6 discharges Barhold asked him if he knew of a group
that was trying to bring in a union, and Paschell testified
that early in the morning of January 7, Barhold asked
him if he had signed a union card.
Barhold professed to have no recollection of
interrogating Milord or Moise on January 6, but
vacillated as to whether he might have done so on January
7 He admitted interrogating Gayton about the Union,
but, as to the date, alternated between a lack of
recollection and an insistence on January 7. He
acknowledged that he interrogated Paschell on the 7th.
Unlike the others, Moise, Gayton and Paschell were
not involved in the January 6 discharges, but were still
employed by Respondent and testified under subpoena.
On the basis of Barhold's own admission, it is found
that he interrogated Paschell and Gayton. Moreover, in
view of the mutually corroborative testimony of Milord
and Moise, and the vagueness of Barhold's denials as to
them, it is found that he interrogated them in the
afternoon of January 6
Barhold flatly denied questioning Perez Perez testified
that, when he was interrogated by Barhold, Cedeno was
present, and that a conversation ensued between Cedeno
and Barhold, which was partly overheard by the witness,
including a remark by Cedeno that "he didn't sign" and a
reference by Barhold to the fact that Cedeno had eight
children and could lose his job Barhold denied
interrogating Cedeno, but professed not to recall whether
he made any reference at that time to the size of Cedeno's
family e In any event, on the basis of demeanor, as well as
Barhold's manifest evasiveness and equivocation with
regard to the other interrogation incidents, I credit Perez
and find that he was interrogated by Barhold on the 6th.
Pedote testified that about 4 30 in the afternoon of the
6th Barhold asked him if he had signed a Union card, that
the witness falsely denied that he had, and that Barhold
accused him of lying, asserting that other employees had
admitted signing cards, that "the boss" was disappointed
in Pedote and that he was "behind this." According to
Pedote, the following colloquy ensued
He said, "Tonight eight guys they got to go " I said,
"Eight guys why? Because the Union?" He said, "The
boss, they don't care, they let them go twenty guys "
"How long you keep the work going for twenty men?"
"As long as you don't get the union inside," he says
"So he can fire twenty men, can keep the business
going for twenty men "'
I said, "I don't understand he is going to lay off so
many guys just to keep the union out " He said, "For
that reason, for the union, many guys, they sign the
card, so they get rid of the guys."
The six claimants were in fact discharged within the
next half hour. Barhold denied interrogating Pedote, but
as to the foregoing warnings of discharge for Union
activity Barhold alternated between flat denials and a lack
of recollection At any rate, on the basis of demeanor and
the circumstantiality of Pedote's testimony, I credit him
as to the interrogation and threats
'Cedeno was not called to testify The General Counsel explained that
Cedeno had not replied to letters from the General Counsel Respondent
offered no explanation for not calling him, although he was admittedly still
in its employ
'Respondent had about 40 production employees
AMERICAN SANITARY PARTITION CORP
Respondent contends that, in any event, it was not
responsible for Barhold's conduct because he was not a
statutory supervisor His official designation was working
foreman, and the General Counsel does not dispute that
he spent part of his time doing production work
However, it is also undisputed that he assisted Galvani, an
admitted supervisor, in directing the work of the 25
fabricating employees, and that during Galvani's frequent,
and regularly recurring, absences, Barhold took over for
him Nevertheless, Respondent contends that even during
such periods Barhold's discretion was limited by the
instructions he received from Birkenmaier relating to the
scheduling and assigning of work, and that contention is
supported mainly by Birkenmaier's testimony '" However,
both Barhold and President Virtes admitted that even at
times when Galvani is present Barhold determines job
priorities and selects men for particular assignments on
the basis of his judgment of their ability. And, Virtes
admitted that on two evenings a week and on Saturdays
up to 30 men work overtime under Barhold, in the
absence of both Galvani and Birkenmaier, that on those
occasions Barhold would be the only one who could pass
on an employee's request for time off, and that on days
that Galvani is absent Barhold participates with
Birkenmaier in the selection of men for overtime work
Barhold's hourly rate is $5 85, which is $1.65 more than
that of the next highest paid production worker
Under all these circumstances, it is found that Barhold
was at all times here material a statutory supervisor, and
that by the interrogation and threats found above
Respondent violated Section 8(a)(I).
2 The discharges
About 5 p m., on the 6th, President Virtes discharged
all six men here involved," telling at least some of them
that they were being laid off because of a decline in
business 1z There was conflicting testimony as to whether
the others were told they were being discharged for
unsatisfactory work, or whether they, too, were told only
that the reason was poor business At any rate, Virtes
asserted that, whatever he may have told the claimants,
the truth was that Respondent was faced at the time with
a need to reduce its work force for economic reasons, that
the six were selected because of their shortcomings as
employees, and that because of such shortcomings
Respondent had no intention of rehiring them even if
business did improve As already noted, the claimants
subsequently voted in the Board election under challenge.
The General Counsel contends, alternatively, (1) that
Respondent's decision to reduce its force on January 6
was prompted by the Union organizing campaign, and
was designed to stall that campaign, and (2) that, even if
the decision to cut back on personnel was economically
motivated, the selection of particular employees for
termination was based on their Union activity
In support of these contentions, the General Counsel
points to the following
All six claimants signed union cards on January 4 and
6. The discharges took place almost immediately after
Barhold, as found above, asked three of the claimants
whether they had signed cards, admitted to Pedote that he
"Some support therefor is found also in the testimony of Virtes and
Galvam
"They are hereinafter referred to as the "claimants"
"Vines did not controvert the testimony of these employees that he
promised to recall them when business improved
267
had obtained information from other employees about
their involvement in the matter, accused Pedote of being
the instigator of the Union movement, and predicted that
there would be a mass discharge that day in reprisal for
the employees' card signing activity.
To counter this, Respondent adduced evidence, inter
alia, that the decision to reduce the work force was made
early in the afternoon on January 4, that the actual
selection of employees for termination was made in the
morning of the 6th, and that the claimants' final checks
were prepared early that afternoon. All these events,
Respondent points out, occurred before the interrogation
of employees by Barhold, and, hence, before Respondent
could have acquired any information about employee
Union activity on the basis of such interrogation
However, this contention assumes that the sole source of
Respondent's knowledge of employee Union activity was
the interrogation conducted by Barhold In fact, such
interrogation, in itself, had little value as a means of
identifying Union adherents, since all those interrogated
denied, albeit falsely, any involvement with the Union.
Such interrogation in the afternoon of the 6th is more
significant as evidence that Barhold had at some earlier
point in time learned, or been led to suspect, that cards
had been signed and, as his remarks to Pedote indicated,
had already ascertained the identity of at least some of the
employees so involved and that Pedote was, himself, a
prime mover in the matter Thus, there is nothing in the
timing of Barhold's interrogation to foreclose the
inference that Respondent learned of the employees'
Union activity even before the meeting early in the
afternoon of January 4,13 at which it was allegedly decided
to effect the terminations.
In any case, it having been found that Barhold admitted
to Pedote that the impending discharges would be in
reprisal for the signing of Union cards and for the purpose
of keeping the Union out, such admission is, in itself, at
least prima facie evidence that Respondent knew of the
employees' Union activity when it decided to effect the
discharges, and there is no need to speculate as to the
source of such knowledge " Such admission is, moreover,
prima facie evidence of the reason for the discharge
action
As against the foregoing considerations, Respondent
adduced testimony by Barhold and those responsible for
the discharge decision (1) that they had no knowledge of
the employees' union activity until January 7, and (2) that
such decision, as well as the selections for discharge, were
based solely on legitimate, business considerations.
However, as to (1) for reasons already related, I do not
credit Barhold's disclaimer, and, since he has been found
to be a statutory supervisor, it is proper to infer that he
imparted his knowledge to other members of
management This inference is fortified by an evaluation
of the testimony of the latter Although Galvant claimed
to have heard nothing about the Union until January 7,
his credibility was impaired by an obvious lack of candor
in his demeanor, as well as by evasions and apparent
conflicts in his testimony.15 Birkenmaier, who also claimed
to have first heard about the Union on the 7th, was, vague
as to who his informant was
"As already related , the distribution of union cards in the plant began
early in the morning of the 4th
"Under Board precedents , such knowledge may be inferred, in any
event , from the small size of Respondent ' s plant complement Wiese Plow
Welding Co , 123 NLRB 616
"He at first refused to say who told him about the Union on the 7th,
asserting that he did not wish to " incriminate" anyone, and then insisted
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For all these reasons, it is found that Respondent knew
of the employees' union activities when the discharge
decision was made.
As to the reason for that decision, Virtes testified that
at the meeting of Respondent's officers on January 4,
Respondent's yearend records pertaining to 1968 order
backlog and shipments were reviewed; that, upon
consideration of such records, in conjunction with the
unfavorable outlook for future business, it was determined
that it would be prudent to reduce expenses by eliminating
overtime work and discharging six employees; and that at
a subsequent meeting in the morning of January 6,
selection was made of those employees who were
considered least valuable to Respondent. As to the
allegedly unfavorable economic situation of Respondent,
as revealed by the foregoing records, Virtes initially cited
the decline in the backlog of orders between the end of
1967 and the end of 1968, which, the record shows,
represented a drop in value from $402,000 to $338,000.16
Subsequently, when it was pointed out to him that his
records showed that by far the sharpest drop in order
backlog in the latter part of 1968 occurred in November,
as shown by the backlog figure as of the end of that
month, Virtes explained that no action to reduce expenses
was taken in December because shipments in November
had continued at a relatively high rate, whereas in
December both backlog and shipments declined. The
implication of this seems to be that, in planning for the
future, Respondent gave more weight to the volume of
monthly shipments than to backlog and that, despite the
sharp drop in backlog as of November 30, the high rate of
shipments during that month deterred Respondent from
retrenching early in December.
However, in pointing up the importance of monthly
shipments, Virtes inadvertently exposed the fallaciousness
of Respondent's alleged reliance on 1968 yearend backlog
as an index of future production needs. While it is true
that the value of such backlog was $64,000 less than the
corresponding item for 1967, this was clearly not the
result of any decline in the volume of new orders but of
the relatively heavy volume of shipments during the last
half of 1968 as compared with the last half of 1967. Such
6-month volume for 1968 exceeded the 1967 figure by
$120,000. This indicates that in the 1968 period there was
a more rapid conversion of backlog into shipments
(presumably, because of tighter delivery schedules).
That this was in fact the principal reason for the 1968
yearend drop in backlog is conclusively shown by the fact
that, as revealed by Respondent's records, in 1968, value
of new orders received in December was $132,000, which
was only slightly less than November's $136,000,
substantially more than February's $117,000, and only
$7,000 to $10,000 less than the figures for March, April,
and May." And, had Respondent compared the value of
new orders for December 1968 with that for December
1967, it would have found that the 1968 figure exceeded
that for 1967 by $27,000.
that he merely overheard a conversation among several employees, whom
he could not see and whose voices he did not recognize.
"Here, as elsewhere , figures have been rounded to the nearest thousand.
"The foregoing figures as to new orders have been derived by
subtracting the value of shipments for a particular month from the value of
backlog at the beginning of the month, and subtracting the result from the
value of backlog at the end of the month. Thus, as of December 1, 1968,
backlog was $348,000, and December shipments amounted to $142,000. If
one subtracts the latter from the former, the resulting backlog would be
$206,000, at the end of December . However, since actual backlog on
December 31, as shown by the record , was $338,000, the difference of
Moreover, if one looks at another commonly accepted
index of the trend of business activityi--Respondent's gross
revenue from sales in 1968 as compared with 1967-one
cannot fail to be impressed by the fact that, as shown by
the record of monthly shipments, the results for both
years were approximately the same until the last 2 months
of 1968 when, in November, there was a 30 percent
increase from $137,000 to $179,000, and, in December, a
42 percent increase from $100,000 to $142,000.18'
Accordingly, it is difficult to understand how any
realistic analysis of Respondent's business records could
lead one to take a dim view of Respondent's near-term
business prospects
Finally, although Respondent's records show that its
inventory rose in value from $240,000 on September 30,
to $264,000 on December 31, Virtes admitted that the
latter figure was not excessive, comparing favorably with
the 1967 yearend figure, which, as shown by the record,
was $280,000. Moreover, on the basis of Virtes' own
initial testimony that, ideally, inventory should equal the
total shipments for the preceding 3 months, Respondent
would have been justified in devoting the entire month of
January 1969, to production for inventory alone."
As to prior layoffs, Virtes at first testified that the most
recent reduction in force by Respondent for economic
reasons had occurred in 1963, but he later amended this
date to 1958, explaining that such action had been
necessitated by a steel strike. Thus, so far as the record
shows, apart from the foregoing occasion, involving a
general, prolonged shutdown of its major suppliers,20
Respondent's management in 30 odd years had not found
it necessary to effect any discharges or layoffs because of
economic conditions.
Nevertheless, Virtes insisted that his decision on
January 4 to retrench was based on economic conditions,
including not only the data discussed above relating to
backlog and shipments, but also the unfavorable outlook
for Respondent's principal customer - the construction
$132,000 ($338,000 minus $206,000) necessarily represents the value of new
orders received during December.
"No evidence on net profits was submitted at the hearing, Respondent
contending that they were confidential and, in any event, not relevant,
since they were not a factor in the decision to retrench (See TX Exh.
1(b)) Absent any evidence to the contrary, it is fair to assume that net
profit rose in proportion to gross revenue
"Value of yearend inventory was less by about $230,000 than the value
of total shipments for the last quarter of 1968, and, it appears from an
analysis of Respondent's records in evidence pertaining to size of inventory
and monthly shipments that the value of Respondent's average monthly
production in that quarter was only about $170,000. (Total production for
the quarter was obtained by adding the increase in inventory over the
preceding quarter to total shipments for the quarter.) Thus it would have
taken more than an entire month's production to make up the foregoing
deficit in inventory.
At a later point, Virtes shifted to the position that inventory should
equal total shipments for the 2 latest months. Even on this basis, 1968
yearend inventory would have been short by about $60,000. Finally, upon
returning to the stand the next day, Virtes offeredstilladiffeient standard-
namely, that inventory should equal one half the value of shipments over a
3-month period. By this test, 1968 yearend inventory would be about
$15,000 over the mark. However, the validity of this criterion is impeached
not only by Virtes' foregoing vacillation but also by the fact that the value
of Respondent's inventory for the last quarter of 1967 and the first two
quarters of 1968 exceeded this standard by anywhere from $70,000 to over
$140,000.
"Steel is one of Respondent's principal raw materials. There was no
steel strike in 1958, and Virtes presumably had reference here to the
industrywide strike in 1959, which closed down all major basic steel
producers for a period of 116 days. See Bulletin No 1482, U.S. Bureau of
Labor Statistics.
AMERICAN SANITARY PARTITION CORP.
industry. As to the latter point, Virtes testified that
construction activity was "down" on January 4, and all
reports "indicated that it would continue to go down."
The only other references to this matter were contained in
Galvani's testimony that "by reading all the papers ... .
listening to the stock market, things were going off ... "
and in Birkenmaier's testimony that the decision to
retrench was influenced by "news in general, that building
would be off." In its brief, Respondent requests that
notice be taken of predictions by government agencies
"prior to January 1, 1969, that business was due to
decline as a direct result of government efforts to `cool
down' the economy; i.e., comments of Treasury, Council
of Economic Advisors, and Federal Reserve Board
officials."
However, governmental efforts to dampen the economy
were nothing new in January 1969. They had been under
way for several years, and during those years Respondent
had been hard put to meet the demand for its product,
operating continuously 56 hours a week.31 There was no
evidence of any dramatic change in the general economic
situation on or about January 4, 1969, nor was any
reference made to any specific news item or article in the
public press or trade journals that might have convinced
Respondent that any new governmental measures would
have any more adverse effect on its business than had
been the case in the past, or that there would be any
further decline in construction activity of such a drastic
and imminent nature as to require the immediate
discharge of 15 percent of Respondent's work force, in the
middle of a pay period, and without any prior notice. The
fact of the matter is that Respondent's alleged fear for the
future proved groundless, since business admittedly
improved within the next few months.22
To sum up, Respondent would have one believe that the
coincidence in timing between the inception of the Union
campaign and the discharge decision was merely
fortuitous, and that it was purely a matter of chance that
at that very time Respondent became so pessimistic about
the future that it precipitately took an action that was, so
far as the record shows, virtually unprecedented in
Respondent's 33 years of operation. Analysis of
Respondent' s business records does not reveal any
dramatic change in backlog23 or shipments during
December 1968 in comparison with prior months; and, in
fact, total sales for 1968, and presumably, net profits,
compared favorably with 1967.24
"According to information from the Federal Reserve Board , prior to
January 1969, that Board's rediscount rate had risen steadily (except for
two relatively brief cutbacks ) from 4 percent in September 1965 to 5 1/2
percent in December 1968, and the current tightness in the money market
dates back at least to October 1966. Yet , not only did Respondent
continue to operate on a 56-hour week to January 6, 1969, but it also
added to its work force as late as December 15, 1968.
"At the time of the hearing (April 2, 1969), backlog had admittedly
returned to a high level, and Respondent's records (Trial Examiner's
Exhibit l(c)) show that backlog improved substantially in January, and in
February and March reached even higher levels.
"The backlog figure on December 31, 1968, although substantially less
than the 1967 yearend figure , was slightly higher than that for January 31,
1967, and only about 3 percent less than on November 30, 1968
"For the first quarter of 1969, Respondent 's records show ( 1) that
monthly shipments were substantially below average , (2) that inventory at
the end of March declined to $222,000 from $264 ,000, at the end of
December and (3) that order backlog rose to $361,000 in January,
$424,000 in February , and $433,000 in March.
The fact that , as the record shows, Respondent did not throughout that
quarter replace the claimants and operated on substantially reduced
overtime until late in February is but equivocal evidence of the good faith
269
Upon consideration of all the foregoing matters, it is
concluded that the evidence in support of Respondent's
economic defense is not sufficiently persuasive to rebut the
General Counsel's prima facie case, particularly the
evidence as to the timing of the discharges in relation to
the inception of the employees' Union activity, and
Barhold's admission that there would be a mass layoff on
the 6th in reprisal for such activity; and, it is found that
the General Counsel has established by the preponderance
of the evidence that Respondent early in January decided
to reduce its work force because of its displeasure over the
employees' adherence to the Union and in order to
dampen their ardor for the Union, and that by discharging
the six claimants for that reason Respondent violated
Section 8(a)(3) and (1) of the Act.
In view of this finding, it may not be thought necessary
to consider the General Counsel's further contention that,
in any event, Respondent should be found to have based
its selections for discharge on discriminatory
considerations. However, to provide for the contingency
that a reviewing authority may not agree with the
preceding finding, this contention will next be discussed.
As to Pedote, there seems to be little reason to doubt
that his selection was discriminatory. He had been in
Respondent's employ since 1955, as a welder, which was
one of the two most skilled jobs in Respondent's
operation, he was admittedly a good welder, and he had
received a merit increase as late as December 1968, only a
few weeks before his discharge. Moreover, as found
above, it was Pedote who was taxed by Barhold, only
minutes before his discharge, with having signed a Union
card and with being the instigator of the Union. In
addition, according to Pedote's credited testimony, he was
told by Barhold at that time that Respondent was
disappointed in Pedote because of his sponsorship of the
Union, and, at the conclusion of their conversation,
Barhold directed Pedote to go to the office, explaining
"they want to talk to you because they disappointed about
you." Upon complying with this instruction, Pedote was
notified of his termination.
Respondent's defense as to Pedote was that, while he
was a good welder, he did not like to work with others,
preferring jobs that he could handle by himself. However,
Virtes admitted that this situation had existed for the past
2 years, and, despite this alleged shortcoming, Pedote, as
already noted, received a merit raise in December 1968.
Galvani acknowledged that merit raises such as Pedote
received were reserved for those employees who showed
"exceptional talent." Neither Galvani nor Virtes
attempted to explain why they did not regard Pedote's
alleged reluctance to work with others as a reason to deny
him a merit increase but did consider it a sufficient reason
to discharge him after 14 years of service, and despite the
admitted difficulty of replacing even unskilled help in the
of its retrenchment program While such sustained curtailment of
Respondent 's production effort was consistent with a genuine belief that
the business outlook was unfavorable , it was also consistent with a plan to
simulate such belief for the purpose of the instant litigation, by continuing
to limit production for a reasonable period after the discharge of the
claimants, compensating for any deficiency in output by drawing on
inventory . The latter interpretation is, if anything , reinforced by the fact
that Respondent persisted in its retrenchment program despite the
mounting volume of orders which in March reached the highest level in
over 2 years. Such a course of conduct bespeaks either an apparently
unrealistic refusal to recognize the need for resuming full production,
despite declining inventories and soaring backlogs, or a reluctance to take
action that might reflect adversely on Respondent' s economic defense in
the present litigation
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existing tight labor market
R Figueroa, who had worked as a machine operator
since February 1966, received the same merit increase as
Pedote in December On January 4, he signed a card
handed him by Pedote Respondent's defense as to him
was that he had shown no capacity for "development,"
and was hard to communicate with However, when asked
why, in view of these deficiencies, Figueroa was given the
foregoing merit increase, Virtes offered no explanation
other than that it was "just decided" to give it to him
Galvani testified that, although Figueroa had been doing a
good job, he "loused up" some work about a month and a
half before his discharge However, since that would have
happened before the granting of the merit raise, it could
not have been regarded as sufficiently serious to warrant
denying Figueroa such increase Moreover, as already
noted, Galvani acknowledged that the merit raises were
given in recognition of exceptional talent, and there was
no explanation of how an employee could be deemed at
the same time to have exceptional talent and to have no
capacity for development Nor, was it explained why
considerations that did not preclude the granting of a
merit increase should be regarded as sufficient cause for
discharge.
Perez, a welder and shear operator, had been employed
for over 4 years He signed a card on January 4, and
participated in the distribution of the cards. On the
afternoon of the 6th, Barhold asked him if he had signed
a card, eliciting a denial At the end of the workday Virtes
notified him he was being laid off because business was
slow Virtes explained that, although Perez had been a
good worker apparently until about September," he at
that time began to get involved in "difficulties" with other
employees and Virtes described him as unable to work
with others Barhold acknowledged that Perez was "a very
good" shear operator, but, also, described him as a
difficult man to work with While admitting that Perez
was "better than the other fellows I had," Galvani insisted
that he was a "troublemaker," had always been "a little
bit of a nuisance," and could not work with others. Yet,
despite Perez' alleged idiosyncracies, which had admittedly
manifested themselves at least several months earlier, he
was given a merit increase in December. Here, again,
deficiencies, which were not deemed serious enough to
disqualify the employee for a merit raise, were regarded as
sufficient cause for discharge.
In view of the apparent incongruity of Respondent's
decision to discharge Figueroa and Perez within a few
weeks after awarding them raises in recognition of
outstanding performances, it is found that they, like
Pedote, were selected for discharge because of their known
or suspected involvement with the Union
As to Milord, Menard, and Rosa, none of whom
received merit raises in December, and none of whom had
any special skills, being classified as helpers, the matter is
not so clear Virtes explained that all three were selected
because they were not "developing " Milord had worked
as a helper since 1961, Menard since 1967, and Rosa since
June 1968. In addition, as to Rosa, Respondent's
witnesses cited the fact that he was attending barber
school during off hours and was therefor not available for
overtime work, and as to Milord it was pointed out that
due to the cumulative effect of wage increases received by
him over 7 years his rate was higher than that of his
leadman,r° which circumstance was a cause of dissension
"In testifying on April I, 1969, Virtes gave the date of this incident as
about "6 or 8 months ago "
among Milord's fellow employees.
While all three had signed union cards before, or, in the
case of Rosa, about the time of their discharge, the record
does not show what proportion of Respondent's employees
had done so nor whether there were, in fact, any who had
not signed cards Thus, for all that appears in the record,
all, or nearly all, of Respondent's employees might have
signed cards, in which case the fact that a particular
dischargee had signed a card, or that all those discharged
had done so, would have little value, in itself, as evidence
that he or they had been selected for discharge for that
reason " Moreover, the reasons given by Respondent for
the selection of the three instant claimants are not on their
face implausible Finally, of all three, only Milord was
interrogated by Barhold, to whom he denied signing a
card While it may be inferred from such interrogation
that Barhold suspected Milord of being a Union adherent,
and did not give any more credit to Milord's denial than
he did to Pedote's, I do not believe that such inference
along warrants rejection of Respondent's explanation for
selecting Milord Accordingly, I do not find a
preponderance of evidence that, had Respondent made its
selections on a nondiscriminatory basis, it would not have
selected Milord. For like reason, the same result is
reached as to Menard and Rosa. It follows that, as to
these three, the ultimate finding of discrimination is based
solely on the fact that they were discharged pursuant to a
management decision to reduce the work force in order to
stem the tide of Union sentiment
IV THE REMEDY
It having been found that Respondent violated Section
8(a)(1), and (3) of the Act, it will be recommended that it
be required to cease and desist therefrom and take
appropriate, affirmative action Such action shall include
an offer of reinstatement to all six claimants and their
reimbursement for any loss of earnings suffered since
January 6, 1969, by reason of the discrimination against
them Backpay shall be computed in accordance with the
formula stated in F W Woolworth Company, 90 NLRB
289, interest shall be added to backpay at the rate of 6
percent per annum (Isis Plumbing & Heating Co , 138
NLRB 716).
In view of the language barrier, it will be recommended
that the usual posted notices be accompanied by French
and Spanish translations
In view of the nature of the violations found herein,
particularly the discriminatory discharges, a threat of
future violations exists, which warrants a broad cease and
desist provision
CONCLUSIONS OF LAW
I By coercively interrogating employees about their
union sentiments or activities, and threatening them with
reprisals for such activities, Respondent has violated
Section 8(a)(1) of the Act
2. By discharging Pedote, Perez, R Figueroa, Menard,
Milord, and Rosa in reprisal for employee union
activities, Respondent has violated Section 8(a)(3) and (1)
of the Act
"This was apparently Moise , who had worked 4 years for Respondent,
and whose rate was only $2 50 an hour as compared with Milord's $2 75
"For this reason, in the case of Figueroa I attach more weight to the
implausibility of Respondent's explanation for his selection rather than to
the mere fact of his having signed a card In the case of Perez, I also give
more weight to the same factor, as well as to the fact that he participated
with Pedote in the distribution of the cards
AMERICAN SANITARY PARTITION CORP.
RECOMMENDED ORDER
Upon the entire record in the proceeding and the
foregoing findings of fact and conclusions of law, it is
recommended that American Sanitary Partition Corp.,
Long Island City, New York, agents, successors, and
assigns, shall be required to
l Cease and desist from.
(a) Discouraging membership in, and concerted
activities on behalf of, Shopmen's Local 455, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, or any other labor organization, by
discriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment
(b) Threatening employees that it will discharge them
because of their concerted or union activities
(c) Coercively interrogating employees about their
union sentiments.
(d) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist the above-named
Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid of protection,
or to refrain from any or all such activities, except to the
extent permitted by the provisos in Section 8(a)(3) of the
Act
2 Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Make whole Frank Pedote, Felix Perez, Rolando
Figueroa, Eugene Milord, Emile Menard, and Julio Rosa,
in the manner set forth in the Section of the Trial
Examiner's Decision entitled "The Remedy," for any loss
of pay they may have suffered by reason of the
Respondent's discrimination against them, and offer them
immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges
(b) Notify the foregoing employees if presently serving
in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Selective Service Act, as amended, after discharge
from the Armed Forces
(c) Preserve, and, upon request, make available to the
Board or its agents, for examination or copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(d) Post at Respondent's plant in Long Island City,
New York copies of the attached notice marked
"Appendix," together with a companion notice containing
French and Spanish translations thereof.28 Copies of said
notices, on forms to be provided by the Regional Director
for Region 29, shall, after being duly signed by
Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and 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
Respondent to insure that such notices are not altered,
defaced, or covered by any other material
271
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Order,
what steps Respondent has taken to comply herewith.39
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words, "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended, we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence , the Trial Examiner decided that we violated the
National Labor Relations Act , and ordered us to post this
notice.
The Act gives all employees these rights
To engage in self-organization
To form, join , or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection, and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT' fire, or threaten to fire, employees
because of their membership in or support of a union.
WE WILL NOT ask you whether you are for the union
or how you feel about the union.
WE WILL offer to take back Frank Pedote, Felix
Perez, Rolando Figueroa , Eugene Milord, Emile
Menard and Julius Rosa at their old jobs and pay them
for all the wages they lost because we discharged them
on Janaury 6, 1969
All our employees are free to belong, or not to belong
to Shopmen 's Local 455 , International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO
Dated By
AMERICAN SANITARY
PARTITION CORP.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor Brooklyn, New York, Telephone
212-596-3535.