Atlantic Foundry and Pattern Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 745 (N.L.R.B. 1971)

ATLANTIC FOUNDRY AND PATTERN CORP.
Atlantic Foundry and Pattern Corp . and Local 84,
International Molders and Allied Workers Union,
AFL-CIO. Cases 29-CA-2169, 29-CA-2169-2,
and 29-RC-1590
August 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On May 20, 1971, Trial Examiner Milton Janus
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices within the meaning of ' the
National Labor Relations Act, as amended, and
recommending that it case and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. With respect to
the three challenged ballots, the Trial Examiner
recommended that two of the challenges be over-
ruled and one sustained, that the former be opened
and counted by the Regional Director, and that he
issue a revised tally. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
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 proceeding 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 brief, and
the entire record in the proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the 'National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Atlantic Foundry and Pattern
Corp., Brooklyn; New York, its officers, agents,
successors, and assigns, shall take the, action set forth
in the Trial Examiner's recommended Order.
192 NLRB No. 108
TRIAL EXAMINER'S DECISION AND
REPORT ON CHALLENGED BALLOTS
STATEMENT OF THE CASE
745
MILTON JANUs, Trial Examiner : Local 84, International
Molders and Allied Workers Union, AFL-CIO, (hereafter
called the Union or Local 84) filed a charge in Case
29-CA-2169 on October 29, and in Case 29-CA-2169-2,
on November 2, 1970, against Atlantic Foundry and
Pattern Corp. (the Company or Respondent). A complaint
based thereon was issued on December 31, 1970, by the
Regional Director for Region , 29. The complaint, as
amended at the hearing, alleged that Respondent through
its president, Paul Fortomaroff, violated Section 8(a)(1) by
the interrogations , threats, and promises of benefits made
to certain employees in connection with their membership
in or activities on behalf of the Union, and that it violated
Section 8(a)(3) by discharging three employees, Joe
Watkins, Jesse Jones, and Stanley Kirkland, because they
had joined or assisted the Union or had engaged in other
concerted activities.
On October 2, 1970, the Union had filed a petition in
Case 29-RC-1590 for an election among the Company's
employees . The parties entered into an agreement for
consent election, which was approved by the Regional
Director on-October 14, 1970. An election by secret ballot
was held on November 2 in a stipulated unit of production
and maintenance employees , including patternmakers. The
tally of ballots showed that the approximate number of
eligible voters was eight, that two ballots had been cast for
Local 84, two against representation, and three had been
challenged. Two of the challenges had been by the
Company against the ballots of Stanley Kirkland and Jesse
Jones on the ground that they were not its employees on
the date of the election . The third challenge was that of the
Union against the ballot of Walter Blume, a patterninaker,
on the ground that he was a supervisor.
The Regional Director investigated the challenges and
on January 8, 1971, issued a report in which he concluded
that the eligibility of Kirkland and Jones to vote depended
on whether their terminations, shortly before the -election,
had been for discriminatory reasons,' and that Blume's
eligibility raised issues as to his supervisory status similar
to those presented in the unfair labor practice proceeding.
He therefore consolidated the two proceedings for the
purposes of hearing, ruling, and decision ' by a Trial
Examiner and ordered that Case 29-RC-1590 be severed
thereafter and transferred to him for further processing.
A hearing in the, consolidated proceeding was held
before me oil February 17, 1971 , at Brooklyn, New York.
All parties appeared and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to
introduce relevant evidence.' After the hearing, the
Company filed a brief with me.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor,-I make
the following:
1 Joe Watkins, one of the alleged discriminatees , had been served with
a subpoena to testify at the hearing on February 17 but failed to appear. I
denied the General Counsel's motion to continue -the hearing to the next
-(Continued)
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation, engaged at its
establishment at Brooklyn, New York, in_ the manufacture
and sale of castings and related products. During 1970, a
representative year, it manufactured and sold at its
Brooklyn, plant products Valued in excess of $50,000, of
which products valued in excess of $50,000 were furnished
to Cloth Laying Appliances Corp., which during the same
period purchased and had transported to it goods and
materials valued 'in excess of $50,000 directly from firms
located outside the State of New York. Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 84, International Molders and Allied Workers
Union, AFL-CIO, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company ,operates a small foundry and pattern shop
employing 10-12 employees . Except for the patternmaker,
Walter Blume, and a cutoff and; grinder man, they are
employed as molders , and helpers. Paul Fortomaroff, the
president of the Company, is in charge of all production
and does some manual work himself . He is over 80 years of
age, still vigorous from my observation of him at the
hearing (although he did not testify ), and, from the
testimony of all the witnesses, short-tempered and given, to
shouting as a' means of normal communication with his
employees.
In February 1970, more than 6 months before the events
of this proceeding, Local 84 had tried to determine the
interest of Company employees in self-organization., but
the attempt quickly ended when Fortomaroff came upon
their lunch-hour meeting at a local restaurant and began
shouting at them. Later that day, Fortomaroff accused
Kirkland , one of the employees who had been at the
meeting, of trying to organize for the Union . Some months
later Kirkland quit and went to work at a union shop
where Local 84 was the bargaining representative . About 2
months after , he quit, Fortomaroff called and asked him to
come back to work for him at $3 per hour, which was more
than Kirland was then earning . Kirkland returned to work
for the Company.
Late in September 1970 , Kirkland contacted Grant,
president of Local 84, about organizing the employees.
This time they met at Kirkland 's house and on September
30, according to Kirkland's testimony, he and four other
employees, Joe Watkins, David Duncan, Jesse Jones, and
Willie Reed, signed authorization cards for Local 84. On
October 2, the Union filed a petition for an election in a
day, since he had no assurance from Watkins that he' , would respond to
the subpoena then , while the General Counsel did not intend to seek its
enforcement.
production and maintenance unit, including patternmak-
ers.
B. Interference, Restraint, and Coercion
1. Before the election
A copy of the petition was received by the Company a
day or so later. Fortomaroff immediately asked Kirkland if
he knew anything about it, and Kirkland denied that he
did. At various times between receipt of the petition and
the election on November 2, Fortomaroff asked Kirkland,
Jones, Duncan, and Reed questions which were designed
to elicit whether they had signed papers for the Union, if
they were still in the Union, or knew anything about it or
the petition. This finding is based on the undenied and
uncontradicted testimony of Kirkland, Jones, Duncan,
Reed, and Bliss, all of them molders or helpers.2 Although
there are differences in detail in their testimony, its
cumulative effect clearly indicates that Fortomaroff made
numerous inquiries of the foundry employees as to what
they knew about the Union and where their sympathies
lay.
During this period of about a month between the filing
of the petition and the holding of the election, Fortomaroff
repeatedly told the foundry workers that he would sell or
close the plant or give it to the Salvation Army if the Union
got in, that no one else would run his shop, and that they
would be looking for jobs.
On one occasion before the election, Fortomaroff held a
meeting of the employees in the locker room and asked
them to sign' a paper saying they did not want the Union.
None of the employees would do so. Fortomaroff became
angry, cursed, and told them that they would all be fired
and that the shop would close at the end of the month.
Reed testified that about 2 weeks before the election
Fortomaroff, in passing through, the shop, informed all
within earshot that he would give them more money if they
didn't vote for the Union.-
Kirkland and Jones testified that they had' asked
Fortomaroff for raises early in September before the union
organizational drive had begun and that Fortomaroff had
told them that he couldn't afford to give them raises then.
About the middle of October, Fortomaroff called them
both into his office and promised them raises if they would
forget about the Union. Each received'a 10-cent-per-hour
raise a' week or so later.
On one occasion in October, Fortomaroff was telling his
employees that he didn't need them and that he could get
somebody else to do their work. He then had someone
from another foundry, identified as Charlie Lay, come to
the shop. Fortomaroff told him, according to Kirkland and
Jones who were there, that he was having trouble with the
Union, that the black people were trying to run his shop,
and he then gave Lay'some work to do outside of the shop.
Fortomaroff had never before had' anyone from the outside
do shop work.
The election was scheduled for the afternoon of
November 2. Fortomaroff discharged Watkins on October
26, Jesse Jones on October 27, and Kirkland on October
2 'As noted previously, Fortomaroff was not called as a' witness although
he was present at the hearing.
ATLANTIC FOUNDRY AND PATTERN CORP
30, under circumstances which will be gone into later. On
the morning of the day Jones was discharged , in the course
of a conversation with Fortomaroff about the involvement
of Jones and Kirkland in the Union, Fortomaroff asked
him what he expected if the Union got in. Jones said the
Union would give them more benefits and holidays and
Fortomaroff told him' he would also give them holidays
and more pay if they would let the Union alone.
2. The day of the election
The election was scheduled for the afternoon of
November 2. Jones, who had been discharged on October
27, returned to the plant a few hours before the election
and asked Fortomaroff if he could talk to some of the men,
Fortomaroff gave him permission to do so. According to
the testimony of Jones, Fortomaroff told him he could
come back at 4:30, after the election, and get his job back.
Duncan and Reed overheard this conversation and
corroborated the essential elements of Jones' story, that
Fortomaroff promised to consider him for a job if he did
not vote in the election that day.
3. After the election
After his discharge late in October, Jones was unem-
ployed for about a month and a half. About December 15,
he called Fortomaroff and asked if he could have his old
job again. Fortomaroff told him to start the next day.
When Jones returned the next morning, Fortomaroff asked
him if he was coming back to work or to sabotage the
fo{lndry . Jones said he needed the money and he would
work. Fortomaroff then asked him what he and the others
expected to get from the Union, and Jones answered that it
was for better benefits, a raise, and vacation.
A few days later, Jones asked Fortomaroff for some
money, and Fortomaroff told him he would have to sign a
paper that he hadn't been fired because of his union
activity. Jones refused to do so, and Fortomaroff then told
him to go back to work. A while later, Fortomaroff came
down from his office where this conversation had taken
place and gave Jones $5.
A week or so later, Jones again needed some money and
asked Fortomaroff for it. Fortomaroff had received some
indication (probably from the Board) that Jones and
Kirkland were claiming that Blume was a supervisor, and
Fortomaroff promised him another $5 if he and Kirkland
would sign a paper saying that Blume was not their
supervisor. Jones first said he wouldn't sign but then did
and got the five dollars.
Jones also owed' Fortomaroff small amounts of money
which he had borrowed around Christmas, and between
that time and the date of the hearing in February
Fortomaroff on various occasions offered to forgive these
debts if Jones would not testify against him and threatened
to fire him if he did.
3 Farner-Bocken Company, 181 NLRB No. 56. Compare N.LRB. v.
River Togs, Inc., 382 F.2d 198,201-202 (CA. 2).
4 The complaint, issued on December 31, 1970, does not name Eugene
Jones as a discriminatee, and on January 13, 1971, the Regional Director
747
C. Concluding Findings as to Section 8(a)(1)
In its brief, - Respondent admits that Fortomaroff had
frequently informed employees that , if the Union ^ success-
fully organized the plant , it would go out of business, but
nevertheless contends that it did not thereby violate
Section 8(axl) because it had a right to make such a
prediction under the Supreme Court's holding in Textile
Union of America v. Darlington, 380 U.S. 263. The Respon-
dent's reliance on this case is clearly misplaced. Darlington
held that an employer does not , commit an unfair labor
practice/by closing hisentire business even if the liquidation
is motivated by vindictiveness -towards a union, but it just
as definitely held, in footnote 20 at page 274, that nothing
in the opinion justifies an employer's interfering with
employee organizational activity by threatening to close his
plant. Here, Fortomaroff stated over and over again that
he would sell or close the plant or give it to the Salvation
Army if the Union got in, and that the employees wouldbe
looking for jobs . The threats were explicit, without even a
veneer of justification that closure of the plant might be
brought about -by economic factors beyond his control.3
Nothing' is to be gained by repeating the testimony
already set out -above. I find that the testimony of
Kirkland, Jones, Duncan, Reed, and Bliss ' is mutually
consistent with respect to Fortomaroff's statements which I
have related. Whatever the reason for Respondent not
having called Fortomaroff, perhaps because of his ad-
vanced age or his temperament,- the fact is that there is no
testimony contradicting that of the witnesses for the
General Counsel as to the alleged violations of Section
8(axl). I find therefore- that Fortomaroff on, numerous
occasions before the election , as well as thereafter,
threatened employees that he would close the foundry and
thereby deprive them of their employment if the Union
came in; promised them raises and other benefits, if they
would abandon or vote against the Union and actually
gave raises to Jones and Kirkland -in' order to influence
their votes; rehired Jones on his promise that he wouldn't
try to "sabotage" the foundry , meaning thereby that he
would forego his right to engage in union organization;
subcontracted out some work in order to discourage
adherence to the Union; and paid Jones various sums of
money to induce him to support Respondent's position in
this porceeding.
Furthermore, Fortomaroff's inquiries of Kirkland, Jones,
Duncan, and Reed, about what they knew of the Union
and its activities, if they had signed papers for it, and if
they were still in it, were coercive in view of the threats of
reprisal and promises of benefits noted above.
D. The Alleged Violations of Section 8(a)(3)
Within the week preceding the election, Fortomaroff
discharged four of his foundry employees: Joe Watkins on
October 26, Jesse Jones on October 27, and Stanley
Kirkland and Eugene Jones on October 30.4 The three
approved withdrawal of the portion of the charge relating to him. There is
nothing in the record to indicate the reason for his termination or that he
was a Union adherent . Eugene Jones had worked for the Employer 2 or 3
weeks and, according to Kirkland 's undenied testimony, was discharged
(Continued)
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged discriminatees Were among the five foundry
employees who had signed union authorization cards on
September 30., All, five of them are black, as is Grant
president of Local 84. I am, satisfied that Fortomaroff, was
well ,aware that some of his black employ-ees.,were actively
seeking to'-have the Union-represent,,the production,an¢
maintenance unit which the Union had petitioned ,for.
1. Watkins
As noted above, Watkins failed to respond to the
subpoena served on him by the General Counsel and did
not testify. The evidence "as to .the circumstances of his
discharge by Fortomaroff on October 26 was given by
Kirkland, Jesse Jones, ,Duncan, and Blume, the pattern-
maker who, General Counsel contends, is _ a supervisor.
Watkins had been employed a little over 2 months when
he was discharged. According, to Kirkland, who was
present at the time, Fortomaroff called Watkins over about
4 p.m. on October,26 and handed ,him a check telling him
that he was being laid „ off. Watkins asked' him why.
Fortomaroff then told; him that Blume had said he had
been standing around in the back doing nothing and-that
was i why-he was being laid off. Watkins said to him "That's
not the reason; why , are you' laying, me off" and Fortoma-
roff i,then, said according to Kirkland, "I'm having trouble
with the Union and I got,to lay you off." Jesse Jones then
came over and asked 0ortomaroff why he was laying
Watkins off. Fortomaroff answered him that it was none of
his business, that no black people were going to tell him
how to run his shop. -
Kirkland also testified that-he had,driven Fortomaroff to
a conference at the Board's Regional Office before the
election, and that on the way there Fortomaroff had told
him that Local 84 was no good but that he wouldn't object
to the, right union. In the same conversation, Fortomaroff
also told Kirkland that he wanted him to fire Watkins
when they got back to the shop, and that-Kirkland refused
to do so.6
Jones -testified that on the Friday preceding Watkins'
discharge Blume and Watkins, got into ` an argument
because Watkins was makingisome kind of ameapon for
his personal use- with foundry material. According to
Jones; Blume , wanted to fire, him then, but Fortomaroff
said they were short of helpers. On Monday, Fortomaroff
accused Watkins of not working hard, enough. Jones, who
was working in the same area, said that Fortomaroff told
him that Watkins would not be there long. In the
afternoon, Jones saw Fortomaroff take: Watkins' card out
of the rack, and at quitting time Fortomaroff handed
Watkins his pay. Watkins asked him why, and Fortomaroff
told him he was fired. Watkins remonstrated with him,
saying that he shouldn't be fired without a reason and,
according to Jones, .Fortomaroff then said to him that he
didn't like'his face. Watkins then asked him if he was being
fired because of the Union, to which Fortomaroff replied,
"Union or not, you're still going to , get, fired."
because he had told Fortomaroff that he wanted more money if he was
required to do all the work assigned to him.
5 Kirkland, Jesse Jones, Duncan, Reed, and Grant were present at the
hearing. Watkins was , not, and although no one identified him as ,a black I
am, certain from remarks made by Fortomaroff' that he regarded Watkins as
Jones says he asked, Fortomaroff, , not to fire Watkins
because he was a good man, and that Fortomaroff told him
he wasn't the boss and that he:would be fir_edFtoo. Jones
then told Fortomaroff to make out his pal too, but
Fortomaroff wouldn't do it, repeating however that Jones
would also be fired. Watkins then, asked for a layoff, slip
which Blume prepared. It said that Watkins had-been fired
because he was "unproductive."
Duncan's testimony as to Watkins' discharge is less
detailed. He said that when Watkins asked Fortomaroff
why he was being discharged, Fortomaroff told him that he
was having problems with the Union.
Blume was not present when Fortomaroff fired Watkins,
but testified as to the incident the previous Friday when
Watkins was making his weapon . Blame's ' testimony is that
Fortomaroff told Watkins that he, wasn't to do it on
company time.,
2. Jesse Jones'
The next afternoon, Tuesday, October 27, Fortomaroff
discharged Jesse Jones. Jones testified that he had come in
very early that morning and Fortomaroff had asked him
why. Jones said he did so to save the foundry, and
Fortomaroff had then said he shouldn't try to cool him off,
he knew that Jones and Kirkland-were for the Union and
he was going to fire Kirkland because he owed him money.
That morning there were two jobs, to be done in the
foundry, a big one and a- little one. Jones was working on
the big job but needed a core for it. Fortomaroff wanted
him to continue on that job and start on the small, one, and
Jones told him that it was impossible to do both jobs at
once. Fortomaroff told him to work on both at once, but
Jones continued what he was doing on one job, intending
to start the other when that was completed.
After lunch, Fortomaroff again returned, saw , that the
small job hadn't been started yet, and told Jones he was
through. Despite, the previous day's argument over Wat-
kins, Jones, did not think that Fortomaroff , actually
intended to discharge him, but about 2 p.m. he saw
Fortomaroff take his,card out of the rack. Jones then told
Fortomaroff to pay . him off through that afternoon.
Fortomaroff then brought him his, pay and Jones asked
him if, he was being fired because of the Union.
Fortomaroff said to him, "All you f-people think about
is the Union. Get out of here." " Then he smiled and asked
Jones if he thought the. Union could win now. As Jones
was leaving, Fortomaroff told him to -come back after
November 2.
Kirkland's testimony on Jones' discharge is essentially
the same. Kirkland does say that when Fortomaroff told
Jones to do both jobs or get out, Jones had told him "I
know you want me to quit, but I won't" and that
Fortomaroff had then replied, "I know you won't quit
because all you black people think you're going to win on
Monday" Fortomaroff then told Jones he was fired.
Blume testified that he had not been present when
one of those who were involved with the Umon.
6 Why Fortomaroff should ask Kirkland,,a rank-and-file employee, to
fire another, is perhaps explicable only in view of Fortomarofrs unpredicta-
ble moods.
ATLANTIC FOUNDRY AND PATTERN CORP. 749
Fortomaroff fired Jones, but that he knew about the two
jobs in the foundry that day. He said that Jones was not
required to do them both at the same time but that he
could have cleared his bench when he was short of cores on
the big job and started on the small one. He said he did
hear Fortomaroff shouting at Jones about not doing the
smalljob.
3. Stanley Kirkland
The following Friday,- October 30, Kirkland's employ-
ment was terminated. According to , Kirkland, he had
gotten permission from Fortomaroff the day before to
leave work early and had gone to the Board's Regional
Office to file charges for the previous dismissals of Watkins
and Jesse Jones. About 1 p.m. on Friday, Fortomaroff
came to him and told him that Grant (president of Local
84) would be the cause of his losing a good job. About 3
p.m., Fortomaroff came back and told him that he was
going to be laid off that afternoon. Kirkland says he asked
him why, and that Fortomaroff said he didn't have to'tell
him. Kirkland again asked Fortomaroff and this time he
said, "I could tell them that you left yesterday without
telling me that you were leaving." They then got into an
argument about whether Kirkland would finish the job he
had been working on. Kirkland refused to and said that
since he was being laid off, he wanted to be paid off
immediately. Kirkland denied that he told Fortomaroff to
pay him off before Fortomaroff told him that he was being
laid off. -
According to Blume, Kirkland had refused to have his
molds poured, and Blume made a disparaging remark to
him about it and then walked away in disgust. There is no
indication how long Blume remained away from the scene,
but fortuitously he returned just in time to hear Kirkland
tell Fortomaroff to pay him off. Fortomaroff then told
Blume to get Kirkland's timecard and make out his check.
E. Concluding Findings as to Section 8(a)(3)
Fortomaroff's conduct as soon as he learned of the filing
of the petition reveals his outspoken opposition to the
desire of his employees to select a representative of their
own choosing. His interrogations as to the extent of the
Union's organization, his repeated threats to close the
foundry if the Union won, and the wage increases given to
Kirkland and Jesse Jones indicate his intention to defeat
the Union, one way or another.
In view of the small size of the employee complement
and Fortomaroff's expressed belief that it was the blacks
among them who ,were trying to take over the plant, I am
satisfied that Fortomaroff knew or suspected that Kirkland
and Jones (who were brothers-in-law) were leaders in the
effort to organize his employees. Fortomaroff knew that
they had worked for a foundry where Local 84 represented
the employees after the abortive attempt of Local 84 in
February 1970 to organize his employees. Moreover, Jones'
testimony is uncontradicted that Fortomaroff told him on
the day of his discharge that he knew that Jones and
Kirkland were for the Union.
The reasons advanced in Respondent's brief for dis-
charging Jones and Kirkland are particularly suspect in
view of Fortomaroff s hostility to them and his opposition
to the Union . As, to Jones, Respondent argues that it was
justified in discharging him for disobeying an order of
Fortomaroff to work on -a particular job, Jones testified
that , Fortomaroff wanted him to work on two jobs
simultaneously and that Jones had told him it was
impossible to do so. Even Blume, whose testimony -favored
Respondent, seems to agree with Jones, in saying, that the
two jobs were not to be done ,;simultaneously, that one
would have to be put aside =when the other one was-started.
The arbitrariness and seeming impossibility of carrying out
Fortomaroff's order, coupled with his open opposition-to
the Union and his desire that it lose the election , lead me to
find that Fortomaroff discharged Jones shortly before the
election for discriminatory reasons.
Respondent argues that Kirkland was not discharged but
quit voluntarily by telling Fortomaroff to pay him off. This
is based on Blume's testimony that.heheard Kirkland ask
to be paid off. Blume, however, had not heard all of the
conversation between Kirkland and Fortomaroff, and I
credit Kirkland's testimony that he asked to be paid- off
immediately only after Fortomaroff told him earlier that
afternoon that he was going to be laid off. Here-too, as in
the case of Jones , the timing of the discharge shortly before
the election, its lack of reasonableness, and Fortomaroff's
open reference teat , the Union would -be the cause of his
discharge lead me to conclude that Fortomaroff intended
to get rid of enough employees to, ensure that the Union
would lose the election.
If I were to consider Watkins' discharge by itself, without
regard to the subsequent discharges of Jesse Jones and
Kirkland the same week, there would be some question in
my mind whether the General Counsel -had proved its
unlawfulness . However, the lack of substantiation of the
reason given for the discharge ,. Fortomaroff s. equivocation
in answering Watkins, Jones, and Kirkland as to why he
was discharging Watkins, and his references to union
troubles and to black people trying to run his shop
strengthen the inferences, based on the discharges of Jones
and Kirkland, that it was the coming election and the
Union's campaign which induced Fortomaroff , to dis-
charge Watkins.
I conclude therefore that Fortomaroff discharged Wat-
kins, Jones, and Kirkland because he believed -that they
were in favor of the Union, and .that by discharging them
before the election he, would reduce the number of
employees who might vote for it. -
Jones was reinstated to his former°position ,on December
15, 1970, and Kirkland on February 11,;1971: -Watkins was
offered reinstatement on February 10 but failed to return.
N. THE CHALLENGED BALLOTS
The Employer challenged the.ballots- of Jesse Jones and
Stanley, Kirkland on the ground that they were not in its
employ on, the date of the election. Since I have found that
they werediscriminatorily discharged beforethe election,, it
follows that they were eligible to vote and the challenges to
their ballots must be overruled.
The Union challenged the ballot of Walter Blume on the
ground that he is a supervisor. Blume's classification is that
of patternmaker, a classification ' specifically -included by
71 1 o DECISIONS OF NATIONAL LABOR RELATIONS
the arties in the stipulated unit., Blume is in fact the only
pot ernmaker.in the shop; However, 1he e, intention of the
es, as 'evid'enced in their agre ent- for consent
el lion, - to ' include ` patternmakers the unit is not
ss ositive as to Blume's, eligibility, ^ s' de his `status as a
supervisor can properly bbe raised by a challenge, at the
election.7
Blume spends- a good part of his time in his patternmak-
ing i duties. -He"` works" in -'an enclosed area bf the ., plant
separated from the foundry by a wall with a door between
the two- areas . He'has been employed at the plant about 25
years. He clocks in and out like the other employees, works
the same hours =as they, and has the same fringe benefits.
He is ' paid ' $3.43 per hour or roughly 30 cents per hour
more than Jones and Kirkland were `getting after` their
raises in October ` just before they` were discharged.
-Fortomaroff has'an officeron"the-second floor, of the
plant and he and Blume are in frequent consultation with
each other either in the office of-in the plant area, Blume
takes orders over the phone from customers and "orders
supplies, mainly for material used in his work as pattern-
maker, and-directs' Fortomaroff's attention when supplies
for the foundry need replenishing.
'According to ^ Kirkland and 'Jones, Blume assigns
particular' jobs in the foundry to the molders and changes
their' assignments as^he see fit. According to Blume, he is
merely a conduitL"from Fortomaroff to the molders,
relaying, Fortomardff's instructions to particular molders
as jobs come in or when a reassignment is needed. He also
testified that he never assigned work' to Kirkland or Jones
because Fortomaroff tdok pare of them himself. However,
Blume also, testified at he assigns work on his own
responsibility when, Fo omaroff is upstairs in his office,
and that this occurs several times a week.
Blume also plays some part in the hiring and discharge
process, although' its , extent and effectiveness 'are in
dispute. According to Blume, he dues not do "thehiring but
has some influence on Fortomaroff's decision to hire or not
to hire an applicant. Thus, Blume testified that Jesse Jones
was hired at ' the request of Jones' brother who was already
working there, that Fortomaroff at first said-he did not
need anyone but then hired Jones when Blume said that he
seemed "all= right and he ought to 'try him out. Blume also
said that he had used his influence withFortomaroff on
occasion, 'apparently in order to grant' employee requests
which employees had-made of him.'
Two instances of employees being discharged were
referred to by` some of the witnesses, those of Merriweather
and Carolina, where Blume is, said- to' have played an
effective role. Blume admitted that he had had personal
differences with Merriweather but denied that he ever told
anyone about .hem. Carolina, he said, had been discharged
on the recommendation of someone else.
Con'sidering' that there are about '10 molders and helpers
in the plant and that Fortomaroff spends some time in his
office,- it seems , to me that Blume's role in supervision
cannot be as minimal 'as he tried to have it appear. I believe
that the `testimony of Jones and Kirkland as to Blume's
responsibility in helping Fortomaroffrun the shop indicate
r Lake Huron Broadcasting Corporation, 130 NLRB 908.
BOARD
that-his duties in assigning and overseeing moldeW work is
based on authority delegated to,him-byFortom4roff, and
that `,the employees, regard him assomeone Whose requests
or instructions are to be obeyed., I am also"satisfied that
Blume exercises an effective role in hiring by being allowed
a veto-on Fortomaroff'spreliminary decision to'hire or not
to hire someone.
The foregoing establishes that Blume is a supervisor
within the meaning of the Actand°that-the challenge to his
ballot must be sustained.
I therefore recommend that the Regional Director open
and count- only the ballots of Jesse Jones ' an Stanley
Kirkland, and that he thereafter, issue a revised tally of
ballots and take such further action as is appropriate.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Joe Watkins on
October 26, Jesse Jones on October 27, and Stanley
Kirkland on October 30, 1970, thereby discouraging
membership in Local 84, International Molders and Allied
Workers Union, AFL-CIO, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
2, , By interrogating employees in a coercive manner, by
threatening them that it would close its plant if the Union
got in, by promising and granting raises-to employees to
influence their ,votes in,a Board election, by requiring an
employee to promise to forego his right to engage in union
organization as the price fob reinstating him, by subcon-
tracting out work in order td discourage adherence to the
Union, and' by paying an employee money to influence his
testimony in this proceeding, Respondent has engaged, in
unfair -labor, practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices -are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
The 'Remedy
In order to effectuate the policies 'of the Act, I find it
necessary that the' Respondent be ordered to, cease and
desist from the unfair labor practices found and from other
invasions of the employees' Section 7 rights; take certain
affirmative' action, including the payment of backpay to
Joe Watkins, Jesse Jones and Stanley Kirkland, computed
on a quarterly basis, as prescribed 'in F. W"Woolworth
Company, 90 NLRB 289, from the'd'ates of 'their discharges
to-the'dates'on which each either-'accepted or rejected the
offer of reinstatement made to him by the Respondent,
interest on the amounts of backpay du' to 'be paid at the
rate of 6 percent per annum, in, accordance with Isis
Plumbing, & Heating Co., -138 NLRB 716;' and post
appropriate notices.- -
Upon' the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:8
the Rules and Regulations of the National Labor Relations Board; the
8 In the event no exceptions are filed as provided by Section 102 .46 of findings, conclusions , and recommended 'Order herein shall, as provided in
ATLANTIC FOUNDRY AND PATTERN CORP. 751
ORDER
Respondent, Atlantic Foundry and Pattern Corp., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 84,, International
Molders ,and Allied Workers Union, AFL-CIO, or in any
other labor organization of its employees, by discriminato-
rily discharging, terminating, or laying off any employee,
or in any other manner discriminating against any
employee in regard to hire, tenure, or any other, term or
condition of employment.
(b) Interrogating its employees in a coercive manner,
threatening them that it would close its plant if the,Union
got in, promising and granting raises to employees to
influence their votes in _a Board election, requiring an
employee to promise to forego his right to engage in union
organization as the price for reinstatement, subcontracting
out work in order to discourage adherence to the Union,
and paying an employee money to influence his testimony
at an unfair labor practice-proceeding.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named labor organization, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing„ to engage in other concerted
activities for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Joe Watkins, Jesse Jones, and Stanley
Kirkland for any loss of earnings suffered by them because
of the discrimination practiced against them, in the manner
set forth 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,
and personnel records and reports necessary to analyze the
amount of backpay due.
(c) Post at its shop and office in Brooklyn, New York,
copies of the attached notice marked "Appendix." 9 Copies
of the notice, on forms provided by the Regional Director
for Region 29, after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within' 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.1A
IT Is ALSO ORDERED that Atlantic Foundry and Pattern
Corp., Case 29-RC-1590, be severed from this proceeding
and transferred to the Regional Director for Region 29, in
accordance with his Report on Challenged Ballots and
Order Consolidating Cases dated January 8, 1971.
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall
be changed ld read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
10 In the event that this recommended Order ii adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 29 , in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects , employees in
their right to form, join, or assist labor'unions, or to refrain
from such activity.
WE. WILL make whole Joe Watkins, Jesse Jones, and
Stanley Kirkland for any loss of pay they may -have
suffered because of our discrimination against them.
WE WILL NOT question employees as to their union
membership or activity, or that'of their fellow employ-
ees.
Wit WILL NOT threaten our employees with closing
the plant if the Union gets in.
WE, WILL NOT promise , or give raises to our
employees in order to influence their votes in a
National Labor Relations Board election.
WE WILL NOT ask employees to forego their right to
engage in union organization-its the price for reinstat-
ing them to their former jobs.
WE WILL NOT subcontract out work in order to
discourage adherence to the Union.
WE WILL NOT pay employees to influence their
testimony_ in proceedings conducted by the National
Labor Relations Board.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to form, join, or assist any labor organization.
ATLANTIC FOUNDRY AND
PATTERN CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this Notice of compliance
with its provisions, may be directed to the Board's Office
Fourth Floor, 16 Court Street, Brooklyn, New York 11201,
Telephone 212-596-3535.