Dazzo Products, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1964

149 N.L.R.B. 182 (N.L.R.B. 1964)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date of posting, and must
not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone
No. 534- 3161 , if they have any questions concerning this notice or compliance with
its provisions.
Dazzo Products, Inc. and Local 810, Steel , Metals, Alloys & Hard-
ware Fabricators & Warehousemen, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America . Case No. 2-CA-9726. October f8, 1964
DECISION AND ORDER
On July 21, 1964, Trial Examiner W. Edwin Youngblood issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Decision.
Thereafter the Respondent filed exceptions and a brief in support
thereof, and the General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Sect ion 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, its of-
ficers, agents, snece,,,sors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
addition:
I The Regional Director, in his Decision and Direction of Election in Case No. 2-RC-
13099 , included Hernandez in the unit found appropriate therein, and no review thereof by
the Board was requested Moreover, the record herein does not show that the Regional
Director's determination was erroneous . In these circumstances , we find, contrary to the
Respondent ' s contention , that Hernandez is not a supervisor and include him in the unit
See Northwestern I'ublislhzng Company, 144 NLRB 1069 ( Member Leedom dissenting in
part on other grounds).
149 NLRB No. 7.
DAZZO PRODUCTS , INC. 183
Add as a separate paragraph under Section 2(b) of the Trial Ex-
aminer's Recommended Order the following :
"Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amend-
ed, after discharge from the Armed Forces."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed December 23, 1963, by Local 810, Steel , Metals, Alloys &
Hardware Fabricators & Warehousemen , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America (herein called the Union), a
complaint was issued against Respondent on February 10, 1964. The complaint
alleges that Respondent violated Section 8 ( a)(1) of the Act by interrogating its
employees, violated Section 8(a)(3) by discriminatorily discharging Benito Marti-
nez and James Bell, and violated Section 8 (a)(5) by refusing to bargain collectively
with the Union . The answer of the Respondent denies the commission of any un-
fair labor practices.
All parties were represented at the hearing which was held before Trial Exam-
iner , W. Edwin Youngblood in New York , New York , on March 23 and 24, 1964.
All parties were afforded an opportunity to be heard, to make oral argument, and,
to file briefs . Briefs have been received from Respondent and General Counsel
and have been duly considered.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a New York corporation , is engaged at its plant at 528 Park Avenue,
Brooklyn , New York, in the manufacture , sale, and distribution of awnings, awn-
ing parts , weather protection shelters, and related products . During the year end-
ing August 31, 1963, Respondent sold and shipped products valued at $41,150 di-
rectly to States of the United States other than New York, and furnished additional
products valued at $8,850 .75 to certain other enterprises each of which annually
produces and ships goods directly outside the State of New York valued in excess
of $50,000.
Upon the foregoing facts which are based upon undenied allegations of the com-
plaint and a stipulation of the parties, I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 810, Steel , Metals, Alloys & Hardware Fabricators & Warehousemen, In-
ternational Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Benito Martinez was employed by Respondent on February 15, 1963,' at an
hourly rate of $1.20 . On May 16, his hourly rate was increased to $1.25, and on
October 3 , his pay was increased to $1.35 an hour which was the rate he was re-
ceiving when discharged.'
Martinez worked as a general helper, receiving goods, making up orders , operat-
ing a power press, and making deliveries in Respondent 's station wagon when James
Bell was out.
James Bell was employed in June as a truckdriver but since the truck was not
used much , Bell worked in the plant doing generally the same work as Martinez.
1 Unless otherwise noted , all dates mentioned are in 1963.
' Based on a stipulation of the parties.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's only other employee is Mike Hernandez who has been in Respond-
ent's employ about 8 years and performs generally the same work as Martinez!
On Monday, November 18, Martinez and Bell were engaged in cleaning work
outside Respondent's building when Union Organizers Joseph Lovell and Dennis
Silverman appeared on the scene. After receiving negative answers to their in-
quiry as to whether Martinez and Bell were in the Union, they asked Martinez if
he would like to join the Union. Martinez, in turn, asked Bell if he was interested
and received an affirmative answer. Martinez then informed Lovell and Silverman
that they would like to join the Union and he and Bell were handed union cards by
Lovell. Martinez and Bell signed the cards and returned them to Lovell.'
About 15 minutes after the above incident occurred, Silverman and Lovell went
to see Errol P. Dazzo, Respondent's president. They identified themselves, told
Dazzo they were from the Union, stated that the Union represented a majority of
Dazzo's employees, and asked for recognition. Dazzo inquired what they wanted
from him and suggested they "organize the shop across the street, Detecto Scales."
Silverman replied that they had a contract with Detecto, that they had signed up the
employees in Dazzo's shop, that the employees wanted a union, and that they were
there to ask for recognition . Dazzo said , "I don't want any union in my place.
Before I have a union in my shop, I'll fire those two fellows downstairs and sell
from the catalog ." Silverman suggested that Dazzo might want to consult with his
lawyer. Dazzo replied that he was his own lawyer. A discussion ensued about
what the Union could do for the people, and the union representatives advised
Dazzo that they had a welfare plan. Silverman then said, "Here are the cards"
and placed the union cards signed by Martinez and Bell on Dazzo's desk. Dazzo
said that he was not interested and pushed the cards aside. Dazzo then picked up
his telephone, called downstairs and said, "Mike, did you fellows sign any cards?"'
Dazzo then slammed the telephone down and said , "I don 't want any union in my
shop . I used to be an organizer . I never organized small shops . We went after
big shops." Lovell said that one or two men were just as important as two or
three hundred and if the men wanted a union it was their job to give them the
Union. Dazzo then put his coat on and walked outside. Silverman and Lovell
followed him and when they all got outside Dazzo rushed back inside and slammed
the door. °
Later the same day that Martinez and Bell signed the union cards and while they
were working downstairs , Dazzo called Martinez , Bell, and Hernandez together and
asked Martinez and Bell if they had signed cards for the Union. Martinez, Bell,
and Hernandez all said "no," and Martinez and Bell denied knowing anything about
the Union.'
On November 20, the Union filed its petition seeking certification as bargaining
representative of Respondent's employees' On November 21, the Regional Director
issued his "Notice of Conference" with respect to the petition which was received
by Respondent on November 22.°
'4 Based on the credited and undenied testimony of Martinez, a stipulation of the parties,
and the Regional Director's Decision and Direction of Election (General Counsel's Ex-
hibit No. 2(c)), which referred to Hernandez as "Frank "
These cards were received in evidence as General Counsel's Exhibits Nos 3(a) and (b).
The foregoing is based on the credited and undenied testimony of Martinez and Bell.
r "Mike" refers to Mike Ilerandez
° The foregoing is based on a composite of the credited and mutually corroborative testi-
mony of Silverman and Loiell which is substantially undenled. Dazzo admitted refusing
to talk to Silverman and Lovell, and asserted that he did not believe the Union represented
it majority of his employees. Dazzo testified lie did not recall seeing Martinez' and Bell's
union cards To the extent that this constitutes a denial that they were placed on his
desk, the denial 14 not credited
'Based on the credited testimony of Martinez and Bell Dazzo's version of this con-
versation was somewhat similar to that of Martinez and Bell Dazzo, however, placed the
conversation as having occurred upstairs, denied asking the employees if they had signed
cards, and asserted he asked if they wanted to loin the Union, and that Martinez replied
in answer to his question that he had joined the Union. According to Dazzo, he then said
to Martiinez, "lieu, you were fired quite some time ago What are you trying to make me
say, you are fired now." Martinez' and Bell 's testimony was mutually consistent Bell,
who is still employed by Dazzo, testified in a candid and sincere way. On the other hand,
I was not similarly impressed with Dazzo's testimony which was at times confusing and
evasive Accordingly, I have credited the testimony of Martinez and Bell.
9 General Counsel's Exhibit No 2(c) and the credited testimony of Silverman.
9 Based on General Counsel's Exhibit No. 2(b) and a stipulation of the parties.
DAZZO PRODUCTS, INC. 185
On November 22, which was a Friday , Martinez, Bell, and Hernandez were called
on the intercom by Dazzo who said he wanted to see them upstairs . Dazzo further
said that they were going to have a vote to find out whether the Union would come
in. When Martinez , Bell, and Hernandez arrived upstairs , no vote was taken; in-
stead Dazzo asked them if they wanted the Union . Both Martinez and Bell an-
swered Dazzo's inquiry in the affirmative . Martinez stated he had signed a union
card; however, Bell said that he had not signed one . Hernandez said nothing and
left the room . Dazzo then told Martinez and Bell that they were fired. He did
tell them, however, that they could work out the day and then they were "finished."
An argument ensued between Martinez and Dazzo about Martinez ' joining the
Union, during which Dazzo told Martinez that he would not have "a union in the
shop." 10
About 2 or 3 hours later that day, Dazzo spoke to Bell and said that he had de-
cided to keep Bell on, that he could not keep both Martinez and Bell and he had
decided to keep Bell because he had a chauffeur 's license, and let Martinez go be-
cause he did not have a chauffeur 's license. Bell, as previously stated, is still em-
ployed by Respondent11
On November 27, a conference was held at the Board's office. After the con-
ference ended , Dazzo, Silverman ; and Lovell had a brief conversation . Dazzo said
that he was sorry for what happened at the conference , explaining that he thought
the union representatives had bothered the employees and now he had found out
that the employees wanted the Union . Dazzo asked what the Union wanted, to
which Silverman replied that they wanted a contract , and mentioned several clauses
which the Union had in contracts . Silverman said the Union would want an in-
crease in pay, more holidays, and a health and welfare plan to which the employer
would contribute 4 percent . At that point Dazzo said that was too much money and
he could not afford it. Silverman gave Dazzo his card saying , "Well, you can get in
touch with us, here is my card."
In the latter part of December , Silverman explained the situation to Edward
Robinson , the Union 's head organizer . Robinson called Dazzo toward the end of
December and asked for a meeting to "discuss the problem that was confronting
us." As Silverman put it, he called Dazzo to find out why he was objecting to
meeting with the Union to negotiate a contract . Dazzo became very excited,
claimed that the Union did not have jurisdiction over his employees , and said he
would not bargain with the Union."
On December 4, notice of hearing was issued by the Regional Director in Case
No. 2-RC-13099; on December 9, Dazzo wrote the Union (General Counsel's
Exhibit No . 4) relative to their request for recognition asking to be informed if the
Union was authorized by its charter to organize awning trade companies, and a
hearing was held on December 12 which Dazzo walked out of before it was over.13
On December 23 the Regional Director issued his Decision and Direction of
Election (General Counsel 's Exhibit No. 2(c )) in which he found appropriate the
unit as described in the complaint herein . On February 27 the Regional Director
issued an Order permitting withdrawal of the petition in the representation case
(General Counsel's Exhibit No. 2(d) ).
It is apparent from the foregoing facts that General Counsel has made out a
strong prima facie case that Respondent has violated Section 8 ( a)(1), (3), and (5)
of the Act . Let us now consider the testimony in support of Respondent 's case.
Dazzo testified that he told Martinez sometime in April or May, before Bell was
hired , that when business slowed down he might have to cut down . Dazzo added
that he told Martinez if he had a chauffeur 's license, he could drive both the truck
and car. Further, Dazzo testified that he might have told Martinez substantially the
same thing in September . Martinez took the chauffeur 's test and failed and Dazzo
testified he told Martinez since he did not have a chauffeur 's license, "When things
quieten down ," he might have to let Martinez go and keep Bell .14 Dazzo also testi-
fied that he decided on October 25 approximately to discharge one man. Accord-
ing to Dazzo's testimony , Respondent 's business had been declining for 5 or 6 years
and Dazzo himself was only drawing a salary of $95 a week.
10 The foregoing is based on the credited and mutually consistent testimony of Martinez
and Bell Dazzo did not specifically testify about a conversation with Martinez and Bell
on November 22 I have construed his testimony , however , which is set forth herein, as
being tantamount to a denial of Martinez' and Bell ' s version.
11 Based on the credited testimony of Bell which was not specifically denied by Dazzo.
12 Based on the credited and undenied testimony of Silverman and Robinson
13 Based on a stipulation and the credited testimony of Dazzo.
14 The date that this conversation occurred is not established.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October II Dazzo received a call from Martinez' family advising that Mar-
tinez had been in an automobile accident and needed $75 for bail money. Dazzo
then loaned Martinez $75. When Martinez returned to work Dazzo asked about
the incident and Martinez explained that he had let his insurance expire and there-
fore when he was involved in the automobile accident he needed the $75. A stipu-
lation of the parties and Respondent's Exhibits Nos. 2 and 3 establish that Martinez'
license was suspended on October 11 for 60 days because he was convicted of
driving while his ability was impaired by alcohol, and that his license was restored
on December 9. On October 25 Dazzo received information that Martinez did not
have a driver's license and therefore inquired of Martinez about the matter. Mar-
tinez admitted that his license had been suspended. Dazzo said to Martinez, "That's
a lousy thing to do. Here I have been giving you the car and if you get caught
without a license, you can cause me trouble with the insurance people " Dazzo
then called his insurance broker and told him what had happened. On October 28
Dazzo received a letter from his insurance broker (Respondent's Exhibit No. 5) in
effect advising that if Martinez diove Respondent's car without a license, Dazzo's
automobile policy would be canceled and that a new one would cost considerably
more. Dazzo testified that he then decided that he "would have to lay [Martinez]
off, at least if it came to driving a car." Further that he informed Martinez of
this decision on or about October 28 but that he did not discharge Martinez at that
time because Martinez owed him $75. Instead, Dazzo testified that he decided to
discharge Martinez on November 21, by which time the loan would have been re-
paid. According to Dazzo, on November 21 when the loan had been repaid, he
told Martinez, "It's slow, I don't need you no longer." Bell was also present but
Dazzo said nothing to him. However, he told Martinez, in effect, that since he did
not have a chauffeur's license and Bell did, Bell was more valuable to him and
therefore he was keeping Bell. According to Dazzo when he paid Martinez off,
Martinez commented that Dazzo had taken out the remaining $8 that he owed.
Martinez then asked for another loan of $20 and Dazzo agreed to let Martinez work
the next day on the job for Respondent and also on his extra job of firing boilers
for 528 Park Avenue, Inc." In other words, according to Dazzo, he let Martinez
work 1 more day after he was discharged so as to earn approximately $14 of the
$20 he wanted to boirow. Martinez repaid the $20 loan in full about December 12
by paying Dazzo approximately $6 which was the balance outstanding on the
loan. Dazzo further testified that he did not regard Martinez as qualified to be
rehired insofar as driving a car was concerned. Further, Martinez came to see him
about a month or so after his discharge and displayed a license bearing the name
of Benito Martinez Perez. The parties stipulated that a chauffeur's license was
issued to Martinez in the name of Benito Martinez Perez on March 18, 1964, that
the birth certificate of Martinez bears the name "Benito Martinez Perez," and that
Martinez' chaufleur's license does not reflect any traffic violations. The parties
further stipulated that two social security cards bearing the same number had been
issued in the names of Benito M. Perez and Benito Martinez, Jr.
Martinez testified in rebuttal that he was paid as usual on Thursday before his
discharge on Friday, and that nothing was said to him on Thursday about being
fired. Further, Martinez denied that Dazzo ever told him he was going to be laid
off prior to Friday, November 22. Martinez admitted, however, that Dazzo had
told him in October that business was getting slow but denied Dazzo's mentioning
this either on November 21 or 22 Further, Martinez admitted receiving a loan of
$75 on about October 11 but testified it was paid off in about 4 weeks Martinez
further testified that there was a period of at least a week in between the time that
he paid off the $75 loan and the making of the $20 loan.16
As noted above, the testimony of Martinez and Bell about the events of Novem-
ber 18 and 22 was mutually corroborative and I have credited their testimony and
discredited the contrary testimony of Dazzo. Similarly, I cannot accept Dazzo's
testimony set forth above where it is contradicted by Martinez, whose testimony I
credit. For example, I reject Dazzo's testimony that he fired Martinez on Novem-
ber 21, that he did not discharge Bell, that he told Martinez prior to November 22
that he might be laid off, and that the $75 loan was paid off on November 21.
"Daz•r o is president of both corporations The latter corporation is a real estate corpo-
ration which owns the building that houses Respondent.
ie Martinez ' testimony indicated he thought he received the $20 loan sometime prior to
November 21 However , General Counsel later joined in a stipulation that the $20 loan was
made on November 21
DAZZO PRODUCTS, INC. 187
Discussion and Concluding Findings
The Discharges of Martinez and Bell
Respondent contends that Bell was not discharged. In view of the credibility
findings made above, this contention is rejected. It is clear from all the circum-
stances that Bell was discharged because of his union activities. Indeed, Respond-
ent offered no other defense to this allegation other than the bare contention that
Bell was not discharged at all. The timing and circumstances of the discharge
conclusively demonstrate the unlawfulness of Bell's discharge. When Dazzo ques-
tioned Martinez and Bell on November 18, both denied signing union cards or
knowing anything about the Union and they were not discharged. Significantly,
however, when Maitinez and Bell were called upstairs on November 22 and in
response to Dazzo's question stated that they wanted the Union, Dazzo immediately
discharged them both In addition, it will be recalled that November 22 was the
day Respondent received from the Board a notice of conference in connection with
the petition filed by the Union. Accordingly, I find that Bell was discharged
because of his union activities in violation of Section 8(a)(3) of the Act. Since
Martinez and Bell were both discharged at the same time and under the same
circumstances, there is a strong pi mia facie case that Martinez was also discharged
for his union activities
Respondent contends, howevei, that Dazzo had decided to discharge Martinez
about October 28, which was before the union activities started. Dazzo testified he
made this decision because Maitinez had been arrested for driving while intoxicat-
ed, his insurance broker advised that the suspension of Martinez' license would have
an adverse effect on Respondent's automobile insurance rates, and Respondent's
business was slow. Dazzo testified fuithei that he did not discharge Martinez at
that time because Martinez owed him money and he decided to wait until the loan
was repaid, and until business was slack before he let Martinez go. I have found
above, however, that a period of at least a week went by when Martinez owed no
money to Respondent. Significantly, Martinez was not discharged in this pe-
riod. Moreover, Dazzo's other testimony is inherently inconsistent with the forego-
ing testimony. It will be recalled that Dazzo testified that he made another loan
to Martinez on November 21, after Martinez was discharged. It is extremely
unlikely that Dazzo would delay discharging Martinez for about a month because
Martinez owed him money, discharge Martinez on November 21 and immediately
make Martinez another loan, albeit foi a relatively small amount. Moreover, it is
significant in evaluating Respondent's defenses to consider Dazzo's letter to the
Board, dated December 26, which purported to give Respondent's reasons for the
discharge of Martinez. Nowhere in this letter is there a reference to what Dazzo
was informed by his brokci regarding automobile insurance, yet Dazzo testified it
was after he received this information from his broker that he decided to discharge
Martinez. Under all the circumstances, I cannot accept Dazzo's testimony with
respect to the reasons foi Mai Linea' discharge, and reject Respondent's contention
that the decision to discharge Martinez was made before the union activities
started
Respondent's animas toward the Union is clearly demonstrated by, inter alia,
Dazzo's threat to fire employees before he would have a union, which was made to
Lovell and Silver man on November 18, and Dazzo's argument with Martinez about
the Union in the convei sation in which Martinez and Bell were fired. The timing
and circumstances of Martinez' discharge together with the above factors conclu-
sively establish that Martinez was discharged because of his union activities just as
Bell was I believe that Dazzo became so incensed after learning that Martinez
and Bell were for the Union that he fired them both on the spot and for the same
reason. Then after some reflection, Dazzo decided he could not do without both
employees and rescinded his discharge of Bell . This, however, does not detract
from the unlawfulness of the discharges of both Martinez and Bell.
Even assuming Respondent's business was slow,17 under all the circumstances I
am persuaded and find that Respondent 's asserted reasons for discharging Marti-
17 Respondent offered a profit and loss statement (Respondent's Exhibit No. 4) for the
years ending August 31, 1902, and August 31, 1963. In support of this contention. This
statement sliows a gross profit of $50 454 01 for 1962 and $49,951 83 for 1963 This does
not appear to be a significant decline in gross profits Although there was a sharp decline
in net profits reflected in the statenumt this appears to he amounted for by corresponding
increases in office siii ii' M and advertising and selling expenses.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nez are mere pretexts and that the real reason for his discharge was his union
activity. Accordingly , I find that Martinez was discharged for union activity in
violation of Section 8 ( a)(3) of the Act.
Respondent contends that its refusal to reinstate Martinez was not an unfair labor
practice. In support of this contention , Dazzo testified that Martinez came to see
him a month or so after his discharge and showed him a license issued in the name
of Benito M. Perez. The parties stipulated that this chauffeur 's license did not
indicate any prior traffic violations . Dazzo further testified that he did not consider
Maitinez qualified to he rehired insofar as diiving a car was concerned . In short,
it is Respondent 's position, as stated in its brief , that Dazzo concluded that Martinez
had not acted honestly with respect to the chauffeur 's license and that Dazzo
refused to reinstate him for this reason and because no job vacancy existed. Mar-
tinez credibly testified that it was customary in Puerto Rico, his native country, for
an individual to use both his father 's and his mother 's names.
I have previously found that Dazzo 's asserted reasons for discharging Martinez
were mere pretexts and that the real reason for his discharge was his union
activity . Similarly, I am persuaded and find that Dazzo did not reinstate Martinez
for the same reason that he fired him in the first place, i.e., his union activity. Ac-
cordingly , this contention is rejected and I find, as alleged in the complaint, that
Respondent violated Section 8(a)(3) of the Act by refusing to reinstate Martinez.
The Refusal To Bargain
No issue exists as to the appropriateness of the unit as alleged in the complaint
which is the same unit found appropriate by the Regional Director in his decision,
to which no request for review was made, and I find it to be an appropriate unit
for the purposes of collective baigaining It is well settled that an employer has
the statutory obligation to bargain in good faith with the representative selected
by a majority of his employees in an appropriate unit, and that the duty to bargain
arises when the employees ' majority representative requests the employer to recog-
nize it and negotiate about matters which are subject to bargaining under the
Act. In its brief, Respondent contends , however, that Dazzo had a good-faith
doubt that the Union represented a majority when the union representatives called
on Dazzo on November 18, and thus Respondent had a right to refuse to bargain
with the Union . Dazzo's course of conduct subsequent to the Union 's demand for
recognition leaves little room for doubt that he completely rejected the bargaining
principle . For example , as soon as Martinez and Bell admitted on November 22
in response to Dazzo's questioning that they were in favor of the Union , they were
immediately discharged . This act is not consistent with the act of a man who
refused to recognize and bargain with the union simply because he doubted the
union 's majority. Dazzo's conduct on November 18 and subsequent thereto was in
flagrant disregard of Respondent 's statutory duty to bargain with the Union and
with the rights of employees guaranteed under the Act. Moreover , Dazzo did not
even raise the question of the Union 's majority on November 18. I find that
Respondent 's failure to recognize and bargain with the Union was not based on
good-faith doubt of the Union's status as majority representative , rather it was
based on a rejection of the collective -bargaining principle . Accordingly, this
contention is rejected.' 8
Respondent contends further in its brief that its refusal to bargain with the
Union was not unlawful because there was only one employee eligible to be
included in the unit when the Union made its demand for recognition . It will be
recalled that Respondent had three employees at that time , namely, Hernandez,
Martinez , and Bell . Respondent argues that Martinez was a temporary employee
when he signed the union card because he had previously been told by Dazzo that
he was going to be laid off . Respondent argues that Hernandez was a supervisor
and therefore ineligible , thus leaving only Bell as eligible to be included in the
unit. I have previously found that Martinez was not told that he was going to
be laid off until November 22, and that he was in fact discharged because of his
union activity. Accordingly , the contention that he was a temporary employee
and ineligible is rejected . As there were at least two eligible employees in the
18 In view of this finding , I also reject Respondent 's contention that it acted in good
faith in doubting the Union's majority status because of the Regional Director's Decision
and Direction of Election and the subsequent withdrawal by the Union of its petition.
Cf. Permacold Induati ies , Inc., 147 NLRB 885.
DAZZO PRODUCTS, INC. 189
unit, namely, Martinez and Bell , when the Union made its demand . Respondent's
contention is clearly without merit and is rejected. It is therefore unnecessary to
pass upon Respondent's contention that Hernandez is a supervisor.19
I find that at all times material herein the Union has been designated
repiesentative of a majority of the employees in a unit appropriate for the purposes
of collective bargaining and therefore was and is the exclusive statutory represen-
tative of all employees in the bargaining unit. I further find that Respondent,
since on or about November 18, has refused to recognize and bargain with the
Union as the exclusive representative of its employees in an appropriate bargain-
ing unit in violation of Section 8(a) (5) of the Act.20
Interference, Restraint, and Coercion
As found above, Dazzo interrogated Martinez and Bell about their union activi-
ties on November 18 by asking them if they had signed cards for the Union, and
again on November 22 by asking them if they wanted the Union. In its brief,
Respondent points to the Union's demand for recognition made on November 18
and contends that Dazzo's questions were merely "spontaneous responses" to the
Union's demand and that Dazzo was legally justified in engaging in this conduct
in order to ascertain the validity of the Union' s claims. It is clear, however, that
Dazzo did not question Martinez and Bell in order to determine what his reply
should be to the Union's demand. This is shown by, among other things, the fact
that he had already rejected the Union's demand and also by his precipitant dis-
charge of Martinez and Bell on November 22. In the context of the other viola-
tions by Respondent, I find that Respondent violated Section 8(a) (1) of the Act by
its interrogation of Martinez and Bell on November 18 and 22.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain affirma-
tive action which I find necessary to effectuate the policies of the Act.
Having found that the Respondent engaged in unfair labor practices by refus-
ing since on or about November 18, 1963, to bargain with the Union as the
exclusive representative of its employees in an appropriate unit, I shall recommend
that the Respondent cease and desist therefrom and, upon request, bargain collec-
tively with the Union and, if an understanding is reached, embody such understand-
ing in a signed agreement.
Having found that the Respondent engaged in unfair labor practices by interro-
gating and discharging its employees, I shall recommend that the Respondent
cease and desist thereform or from in any other manner infringing upon the
rights of its employees guaranteed in Section 7 of the Act.
Having found that the Respondent engaged in unfair labor practices by dis-
charging Benito Martinez on November 22, 1963,22 I shall recommend that the
Respondent offer him immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he may have suffered by
reason of the Respondent 's discrimination against him . Backpay, with interest at
is In any event the Regional Director's decision finding I-Iernandez (erroneously referred
to in the decision as "Frank") to be in the unit together with the Regional Director's
denial of Respondent's request for reconsideration would be dispositive of this issue.
20 Certified Casting if E'nginccring, Inc., 145 NLRB 572
21Rocky Mountaiin Nataial Cas Company, Inc., 140 NLRB 1191, 1192; cf also Blne
Flash Empress , Inc, 109 NLRB 591, 594
22 As Hell was almost immediately reinstated after his discharge and lost no worktime, the
usual reinstatement and backpay order Is unnecessary.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rate of 6 percent per annum, shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Dazzo Products, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization as defined in Section 2(5) of the Act.
3 All production, maintenance, shipping and receiving employees, and chauffeurs
at Respondent's Brooklyn, New York, plant, excluding office clerical employees,
professional employees, guards, watchmen, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union at all times material herein has been, and now is, the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing, since on or about November 18, 1963, to bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
6. By unlawfully discharging Martinez and Bell and unlawfully refusing to
reinstate Martinez, Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
7. By unlawfully interrogating its employees about their union activities, Re-
spondent has engaged in unfair labor practices within the meaning of Section
8 (a)( I) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning on Section 2(6) and-(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I recommend that Dazzo Products, Inc., its
officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, rates of pay, hours of
employment, and other conditions of employment with Local 810, Steel, Metals,
Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of all its employees in the following appropriate unit:
All production, maintenance , shipping and receiving employees , and chauffeurs
at Respondent's Brooklyn, New York, plant, excluding office clerical employees,
professional employees, guards, watchmen, and supervisors as defined in the
Act.
(b) Interrogating employees concerning their union membership, activities, or
sympathies, in a manner constituting interference, restraint, or coercion within the
meaning of Section 8 (a) (1) of the Act.
(c) _Discouraging membership in and activity on behalf of the above-named
Union, or any other labor organization of its employees, by discharging Benito
Martinez, James Bell, or otherwise discriminating against them or any of its
employees, in regard to their hire or tenure of employment or any term or condi-
tion of employment, except as permitted by the proviso to Section 8(a)(3) of the
Act.
(d) In any other manner interfering with, restraining, or coercing its em-
ployees-in the exercise of the rights guaranteed to them in Section 7 of the Act,
except to the extent that such right may be affected by an agreement requiring
membership in Section 8 (a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
DAZZO PRODUCTS, INC. 191
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively concerning wages, rates of pay, hours of
employment, and other conditions of employment with Local 810, Steel, Metals,
Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of all employees in the above-described unit and, if an understanding
is reached, embody such understanding in a signed agreement
(b) Offer to Benito Maitinez immediate and full ieinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him, together with interest at the
rate of 6 percent per annum, in the manner set forth in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board and its agents,
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary or useful
to determine the amount of backpay due and the rights of reinstatement under
the terms of this Recommended Order.
(d) Post at its plant copies of the attached notice marked "Appendix." 23 Copies
of said notice, to be furnished by the Regional Director for Region 2, shall, after
being duly signed by the Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith= t
It is further recommended that unless on or before 20 days from the date of
the receipt of this Trial Examinet's Decision, the Respondent notifies the said
Regional Director in writing that it will comply with the above recommendations,
the National Labor Relations Board issue an Order requiring it to take such action.
zi If this Recommended Order be 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 be 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"
2; In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notlfv 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 Boatd, and in oider to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with Local 810, Steel, Metals, Alloys &
Hardware Fabricators & Warehousemen, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive
representative of all the employees in the bargaining unit described below
with respect to wages, rates of pay, hours of employment, and other condi-
tions of employment , and, if an understanding is reached, embody such un-
derstanding in a signed agreement . The bargaining unit is:
All production, maintenance , shipping and receiving employees, and
chauffeurs at Respondent's Brooklyn, New York, plant, excluding office
clerical employees, professional employees , guards, watchmen , and super-
visors as defined in the Act.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees concerning their union member-
ship, activities, or sympathies, in a manner constituting interference, restraint,
or coercion within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT discourage membership in the above- named union or any
other labor organization, by discharging or otherwise discriminating against
our employees in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL offer to reinstate Benito Martinez to his former or substantially
equivalent position, without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay he may have suffered as
a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed to them in Section 7 of
the Act, 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 National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become and remain or to refrain from becoming
or remaining members of the above-named Union or any other union.
DAZZO PRODUCTS, INC.,
Employer.
Dated------------------- By--------------------------------------------(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces..
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.
Employees may communicate directly with the Board's Regional office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any
question concerning this notice or compliance with its provisions.
Aerodex, Inc. and Charles Paglianite . Case No. 12-CA-2651.
October 28, 1964
DECISION AND ORDER
On June 8, 1964, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that allegations of other unfair
labor practices set forth in the complaint had not been sustained.
The Respondent filed exceptions to the Trial Examiner's Decision,
with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
? Respondent's request for oral argument is hereby denied, as the record and brief ade-
quately present the issues and positions of the parties.
149 NLRB No. 25.