Duroyd Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1985

276 N.L.R.B. 144 (N.L.R.B. 1985)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duroyd Manufacturing, Inc and Local 531, Interna
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America Cases
2-CA-19172 2-CA-19364, and 2-CA-19394
19 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 9 April 1984 Administrative Law Judge El
eanor MacDonald issued the attached decision
The Respondent filed exceptions and a supporting
brief, the Acting General Counsel filed limited ex
ceptions and a supporting brief to which the Re
spondent filed an answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified
The judge found that the Respondent did not
violate Section 8(a)(3) by discharging employee
Anthony Baker In dismissing this portion of the
complaint, the judge stated that she did not find
any evidence that Baker's discharge related to his
protected activity We do not agree
The Union began its organizing campaign in the
fall of 1982,2 at which time Baker signed an au
thonzation card On 29 October, when the Re
spondent closed its Annex at 11A Kimball Place,
Baker, who had been working on the saw, the mill
ing machine, and drill press, began working as a
janitor and production worker Baker was fired on
10 December after an argument with the Respond
ent's president John Pimentel, about leaving early
for lunch During this argument , both men used
foul language The judge found that the Respond
ent fired Baker for what it perceived as insubordi-
nation, concluding that because Pimentel was not
aware that Baker had signed an authorization card
for the Union, Baker s discharge did not relate to
his protected activity We do not agree with the
judge's conclusion Even if Pimentel did not know
that Baker had signed a card, we find, for the rea
sons set forth below, that the General Counsel has
r The Respondent has excepted to some of the judge s credibility find
mgs The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Ctr 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Unless otherwise specified all dates refer to 1982
clearly demonstrated that, under Wright Line,'
Baker s other protected activity was a substantial
motivating factor in his discharge We further find
that the Respondent has not shown that it would
have discharged Baker absent his union activity a
In holding that Baker was unlawfully dis
charged, we point first to the abundant evidence of
the Respondent's animus against the Union As the
judge found the Respondent was openly hostile to
the Union Specifically, the Respondent discharged
union supporter Walter Walag in violation of Sec
tion 8(a)(3) of the Act Further, Respondent,
through its president, unlawfully assisted employ-
ees in filing unfair labor practice charges, solicited
employees' help in filing these charges, and re
quested employees' help in getting nd of the
Union The Respondent coercively told its employ
ees that it was aware of their union activities and
threatened them with layoff and plant closure if
they supported the Union We find therefore that
Baker's discharge occurred against a background of
the Respondent's repeated violations of the Act
Secondly, there is no question that the Respond
ent knew of Baker's support for the Union prior to
his discharge Thus, the element of knowledge is
clear in view of Baker's credited testimony that he
went to Pimentel sometime after signing the au
thorization card and firmly refused to sign the
unfair labor practice charges against the Union,
which were being filed by some employees The
Respondent had further knowledge of Baker s
union activities when Pimentel met with Baker and
several others representing the Union at a bargain
mg session held on 11 November
The General Counsel's prima facie case is
strengthened by evidence of the Respondent's hos
tile treatment of Baker Baker credibily testified
that on 29 October, after the Annex was closed Pi
mentel attempted to lay him off with several other
employees Baker protested and told Pimentel that
he had 4 years' seniority and would not stand for
the layoff Baker added that if he was laid off, he
would go to the National Labor Relations Board
and take the Respondent to arbitration Baker then
left, telling Pimentel he would be at work on
Monday When Baker came into work, he was told
he had three choices to work as a janitor, get laid
off, or work on the sanding machine Baker chose
the janitor job and after 29 October performed
both janitorial and production duties The judge
credited Baker s testimony that from the time Pi
7 251 NLRB 1083 ( 1980) enfd 662 F 2d 899 (1st Ctr 1981) cert
denied 455 U S 989 (1982) approved in NLRB v Transportation Manage
merit Corp 462 U S 393 (1983)
* ibid
276 NLRB No 25
DUROYD MFG 145
mentel attempted to lay Baker off on 29 October
until Baker's 10 December discharge Pimentel was
constantly harassing Baker with foul language and
asking him when he was going to leave On one
occasion, Pimentel told Baker that Pimentel was
tired of looking at Bakers face and asked him
when he was going to quit At another time, Pi
mentel told Baker, 111 catch you yet and when I
do you re gone' On 10 December, Baker and Pi
mental argued about Baker s leaving early on his
lunchbreak When Baker returned from lunch, he
went to Pimentel and asked to be left alone Both
men used foul language, and Pimentel fired Baker
The judge found that Baker and Pimentel did
not get along and were accustomed to abusing
each other with foul language It is significant that
it was not until after Baker confronted Pimentel
over the attempted layoff on 29 October and h
mentel knew that Baker refused to sign, as a charg
ing party, the unfair labor practice charges against
the Union, and within a month of the 11 November
bargaining session, that Baker was discharged for
what Respondent claimed was the use of profanity
In view of the Respondent's established hostility
against the Union, its knowledge of Baker s union
support, its discharge of Baker soon after it became
aware of his union activity its failure to discipline
Baker for use of foul language in the past, and its
president's constant harassment of Baker after 29
October, it is clear that the General Counsel has
shown by timing, knowledge, animus, and hostile
conduct a prima facie case under Wright Line,
supra, demonstrating that a motivating factor in
Baker's discharge was his involvement in union ac
tivities 5
Because the General Counsel has presented a
prima facie case the burden of proof shifted to the
Respondent to show that it would have discharged
Baker even in the absence of protected activity
The Respondent attempted to demonstrate that it
discharged Baker for insubordination, specifically
for Baker's use of foul language during the argu
ment with Pimentel on 10 December The Re
spondent s defense was weakened by the judge's
finding that in the past Pimentel and Baker had
abused each other with foul language6 and the un
In dismissing the portion of the complaint relating to Bakers dvs
charge the judge found no sufficient connection between Baker s sign
mg of a card and his discharge In so finding the judge retied on her
finding that the Respondent was not aware that Baker had signed an au
thonzahon card In concluding that Baker s discharge related to protect
ed activity other than the signing of a card we find the judge s focus too
narrow since it is clear that the Respondent knew of Baker s other activi
ty in support of the Union namely his refusal to help the Respondent get
rid of the Union by signing an unfair labor practice charge and by his
attendance at a negotiation meeting on behalf of the Union
6 We note that Baker who was credited by the judge testified that in
his conversation with Pimentel on 10 December he did not use profanity
controverted testimony by Baker that the use of
profanity was not unusual at Duroyd, especially by
Pimentel himself Moreover, the Respondents ar
gument that it fired Baker for insubordination was
further undermined by Baker s unrebutted testimo
ny that other employees who had been insubordi
nate were not discharged Baker testified that he
had witnessed an employee who had been dunk
mg, throw a cup of coffee at Pimentel and he also
saw two other employees who were drunk at
work None of these employees were discharged
In view of the common use of profanity at the Re
spondent s plant, the Respondents tolerance of
Baker's past use of foul language, and its failure to
discharge other employees who were insubordinate
or used profanity, we find that the Respondent did
not rebut the General Counsel's prima facie case
and we conclude that the Respondent would not
have discharged Baker absent his union activities
Accordingly, we find that the Respondent, by dis
charging Baker, violated Section 8(a)(3) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Duroyd Manufacturing, Inc, Mt
Vernon, New York, its officers, agents, successors,
and assigns , shall take the action set forth in the
Order as modified
1 Substitute the following for paragraph 1(c)
(c) Laying off, discharging, or otherwise dis
criminating against employees because they support
the Union "
2 Substitute the following for paragraphs 2(b)
and (c)
(b) Offer Walter Walag and Anthony Baker im
mediate and full reinstatement to their former jobs
or if those jobs no longer exist to substantially
equivalent positions, without prejudice to their se
nionty or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision
(c) Remove from its files any reference to the
unlawful discrimination against Walag and Baker
and notify the employees in writing that this has
been done and that such action will not be used
against them in any way "
3 Substitute the attached notice for that of the
administrative law judge
until after Pimentel told him he was discharged while Pumentel who was
discredited by the judge testified that Baker used foul language before he
was fired
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through represents
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT solicit, incite, request, or assist
our employees to file unfair labor practice charges
with the object of ridding ourselves of the Union
WE WILL NOT lay off, discharge, or otherwise
discriminate against our employees because they
support the Union
WE WILL NOT tell our employees that we know
of their union activities, nor threaten our employ
ees with layoff and plant closure if they support
the Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
case of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Walter Walag and Anthony
Baker immediate and full reinstatement to their
jobs without prejudice to their seniority or any
other rights and privileges and WE WILL make
them whole for any loss of earnings and other ben
efits plus interest
WE WILL on request, bargain with the Union,
including supplying necessary information, and WE
WILL put m writing and sign any agreement
reached on terms and conditions of employment
for our employees in the following unit
All machine operators, quality control, porters
helpers, packers and shipping clerks of
Duroyd, excluding office clerical employees,
guards, and supervisors as defined in the Act
DUROYD MANUFACTURING, INC
Joel E Cohen Esq and Deborah Glass Esq for the Gen
eral Counsel
Robert M Ziskin Esq of Melville New York for the
Respondent
Sol Bogen Esq of New York for the Charging Party
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD Administrative Law Judge
This case was tried in New York New York on June 7-
10 and September 26-28 1983 The consolidated coin
plaint issued on February 28 1983 alleges that Respond
ent in violation of Section 8(a)(1) (3) and (5) of the
Act sought employee assistance in inducing employees
to revoke their support for the Union threatened its em
ployees with discharge and plant closure if they support
ed the Union initiated and encouraged its employees to
file charges again st the Union interrogated its employ
ees and instructed its employees not to discuss the
Union Respondent demoted discharged and laid off its
employees and imposed more onerous conditions on
them because they supported the Union refused to fur
rush information to the Union withdrew recognition
from the Union and granted a wage increase to its em
ployees without negotiation with the Union Respondent
denies the material allegations of the complaint
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent
on November 30 1983 I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a New York corporation is engaged in
the manufacture nonretail sale and distribution of
ground support systems aircraft hinges and related
products at its plant in Mt Vernon New York where it
annually purchases products .ialued in excess of $50 000
directly from firms located outside the State of New
York Respondent admits and I find that it is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2), (6) and (7) of the Act It is undisputed and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
In September 1982, Duroyd employed about 50 work
ers The General Counsel claims 43 are in the unit as of
October 5 1982 The president of Duroyd is John PI
mentel His son John Pimentel Jr is vice president his
wife is secretary treasurer, and his son in law Petrone is
comptroller
In September 1982 the Duroyd plant consisted of four
separate buildings 10 Kimball Place the main building
12 Kimball Place 11 A Kimball Place (the Annex) and
601 Columbus Avenue The buildings at 10 and 12 Kim
ball Place had been leased since the Company began op
erations in Mt Vernon Those leases expired in June
DUROYD MFG.
1983. The lease on 601 Columbus had a term from mid-
1982 until June 1983. That building was leased in 1982
when Pimentel believed that loans which he was count-
ing on to renovate a projected new company location on
Lawton Street in Yonkers, New York, would not be
forthcoming. In the event, the Company signed a lease
for the Yonkers building in December 1982. The lease
for 11A Kimball expired in October 1981. Pimentel had
wanted to retain that building but was unsuccessful in
negotiating with the landlord. Through negligence of
counsel, according to Pimentel, an option to renew the
lease was not exercised. Pimentel was surprised by this
as he had intended to keep the location. Through the use
of various delaying tactics, the Company managed to
retain possession of 11A Kimball Place until , October
1982, when Duroyd was finally evicted from that loca-
tion. This coincided with the ' completion' of work on a
government contract.
In October 1982, Duroyd -got two.government con-
tracts totaling almost $3 million. No money was received
for several months on these contracts although produc-
tion started in 120 days. The testimony of the witnesses
establishes that there was discontent in the shop in
summer 1982, as the employees realized they would not
be receiving a wage increase, and there was talk of a
walkout. On September 27, 1982, John Pimentel met
with the employees at their requests to discuss the ques-
tion of raises . Pimentel said he had no money for raises.
He said he was thinking of layoffs but that people were
being kept- on because he was going to Chicago to see
about a new defense contract. Pimentel said he knew a
lot of people were thinking about a union and that a
union had been hanging around; he suggested that, if the
employees thought they needed it, he had a friend who
had a union and he would have his friend over to meet
the employees. He also stated that he would' show the
employees literature to prove that , unions drained money
from employees. )
A number of Duroyd's employees are Polish immi-
grants who speak very little English; they communicated
through employee Walter'Walag at this meeting .2 Others
at Duroyd who spoke both Polish and English were
Isaac Weitzman, Piotr°(or Peter) Szayer, and Ed Berger.
Weitzman had been an employee of Duroyd but by the
time of the relevant events he had become a consultant
engineer . Instead of a salary, he was receiving an annual
fee. The testimony of many, witnesses shows that Pimen-
tel, when speaking to the Duroyd employees, referred to
him as "a full-time -partner here" and that Weitzman was
regarded as part of management by both Pimentel and
the Duroyd employees. Pimentel chose Weitzman to be
1 Punentel testified that in mid-September 1982, Foreman Ed Berger
and General Manager Barry Veloski told him that they had heard talk
about a union and that Thomas Walker was handing out cards. In late
September, employee Joyce Reed told him there,were union people out-
.side the plant handing out leaflets. Various other supervisors reported to
Pimentel that union agents were outside
2 Walag speaks both Polish and English'. He operated an engine lathe
at Duroyd. Walag's work location was in the so-called Annex, at 1IA
Kimball Street. Walag has no authority to hire, fire, evaluate, or disci-
pline employees nor to grant time off. He sometimes conveyed work as-
signments to Polish employees on behalf 'of non-Polish-speaking supervi-
sors. I find that heewas not a supervisor under the Act.
147
on his negotiating team, Weitzman signed payroll checks
for Duroyd employees in Pimentel 's absence , and Weitz-
man "'hollered" at the workers whenever he saw fit with
Pimentel's approval . I find that Weitzman was an agent
of Respondent . There is a dispute as to the status of
Berger and Szaver . Pimentel testified that during negoti-
ations with the Union , he called both of these men in to
be on his team . He described Szayer as a "foreman" and
"supervisor." He testified that both Berger and Szayer
assigned work to other employees and reported on their
progress to management . However , Respondent appar-
ently claims that Berger and Szayer are unit employees,
and Pimentel changed his testimony about the status of
these two men. Based on Pimentel 's testimony and on
the fact that he chose ' them to assist in negotiations,. I
find that Berger and Szayer are supervisors.
B. Organizational Effort, Recognition, and Bargaining
Louis A. De Angelis , president of Local 531 , testified
that he telephoned Walter Walag, an employee of
Duroyd, on September 27, 1982, about the possibility of
representing Respondent 's employees . A meeting ' was
held on Friday, October • 1, 1982, where De Angelis gave
Walag and a few other employees blank- authorization
cards . By 5 p .m. of the same day, Walag had returned a
number of signed cards,to De Angelis at a meeting also
attended by about 10 of Respondent 's employees . At this
meeting, other cards were signed and, De Angelis ex-
plained procedures for voluntary recognition , petition for
election , and the strike . The men decided to talk further
about ways of gaining recognition for the Union. How-
ever, on Monday, October -4, Walag called De Angelis
and informed ' him that the Employer was questioning
employees and as a result De Angelis decided to seek
voluntary recognition on Tuesday , October 5, 1982.
On October 5, De Angelis , accompanied by James
Demis, business agent, and union employee Anthony De
Angelis, met Walag , Steven Lewis, and some other em-•
ployees at, the plant . Walag and Lewis had been fired.
De Angelis and his two associates went to Respondent's
.office and introduced themselves to John Pimentel , presi=
dent of Respondent . De Angelis stated that he represent-
ed a majority of the Respondent 's employees and he re-
quested recognition and bargaining. Pimentel told De
Angelis that he disliked unions, that unions "sponge off
the society," and that unions were what was wrong with
America .''De Angelis responded that he did not wish to
become personal on this issue, and he offered to demon-
strate his majority status ., Pimentel asserted that the
Union did not represent it majority of the employees and
De Angelis said he could prove that it did and that "if
you agree to- recognize the union . . . I'll show you
those cards ." A dispute about the significance of .viewing
the cards arose and De Angelis asserted that if Pimentel
looked at the cards , he would have to recognize the
Union . De Angelis called the Regional Office for clarifi-
cation' on this point . Pimentel - stated his preference for an
election. At some point in the meeting , De Angelis said
he might be forced to demonstrate the Union 's majority
status. by putting up a picket line. De Angelis was 'ready
148 DECISIONS OF NATIONAL LABOR RELAT IONS BOARD
to leave after he said this but Weitzman asked him to
stay and discuss the Union s majority
De Angelis then entered an office with Pimentel and
Weitzman whom Pimentel identified as his partner and
De Angelis again stated that he had signed authorization
cards to prove his assertion of majority status The three
discussed their options Pimentel asked if the Union
would consent to an election and De Angelis stated that
it was a possibility but that he would not agree to that at
that point De Angelis told Pimentel that if he showed
Pimentel the cards the latter could sign a recognition
agreement but Pimentel refused De Angelis said that a
third option was a strike but that he did not really want
a strike Weitzman began asking questions about wage
scales De Angelis was not prepared with actual figures
but he said the contract would be comparable to others
in the same industry De Angelis outlined fringe benefits
that might be included in a collective bargaining agree
ment
After about 1 hour of talk Pimentel and Weitzman
asked to caucus separately De Angelis left the room he
was called back in 20 minutes and he took with him
Joseph Biasucci secretary treasurer of the Union who
had just arrived at the plant Again the men discussed
the available courses of conduct open to them Biasucci
tried to convince Pimentel that the Unions demands
would be reasonable and he offered to give Pimentel the
names of local companies whose employees the Union
represented so that Pimentel could confirm that the
Union was fair in its dealings with employers Pimentel
then told De Angelis that he knew who had sent him
and Weitzman said that he knew what was going on and
that the Union did not represent a majority of the em
ployees Weitzman said he was certain that this was so,
and at that point Pimentel asked to see the cards De An
gelis asked If I show you these cards will you recog
fuze me and Pimentel responded Yes Then De An
gelis gave the cards to Pimentel and the latter spread
them on the table and arranged them in some sort of
order Pimentel then obtained payroll records and pro
ceeded to compare the cards with the payroll sheet He
checked some of the names with Weitzman and after 15
minutes Pimentel said They have us they have the
cards De Angelis gave Pimentel a recognition form to
sign On this form De Angelis had filled in the date and
name of the Company and the fact that Pimentel had
asked to see the authorization cards He also defined the
unit a subject which the parties had just discussed and
agreed upon 3 After looking at the form Pimentel gave
it to Weitzman asking him to sign it and the latter
signed his name and title V P
After Weitzman had signed the recognition agreement
De Angelis suggested that they all go to the factory
floor to tell the employees that Pimentel had recognized
the Union and that negotiations would be undertaken
During this meeting Pimentel referred to a book on
the shelf behind him that purported to show what
unions had done to America and he said that De Ange
Its was un American De Angelis disputed that assertion
and pointed out that Biasucci was a veteran of the armed
services
The union agents also asked for the reinstatement of
Walag and Lewis Pimentel ageed to take Walag back on
condition the union representatives would speak to
Walag
The group went downstairs to the factory floor where
the employees were gathered James Demis brought in
Lewis and Walag but Pimentel objected to their pres
ence and the two men left De Angelis testified that an
nouncements were then made to the group in English
and that these were subsequently translated into Spanish
and Polish Pimentel announced [T]his is your union
that represents you this is what you wanted and now
you have itl Several employees made comments
among them Joyce Reed who asked about the minon
ty of employees who did not want a union De Angelis
said the Union would represent all the employees fairly
and that a negotiating committee would be formed
After the meeting with the employees De Angelis
Biasucci Pimentel Walag and Lewis conferred outside
the pant Pimentel agreed to reinstate Walag but told
him his work had to be up to par and that if it was not
he would be discharged Pimentel also reinstated Lewis
on condition that he correct his absenteeism Then Pi
mentel told De Angelis that someone would contact him
Before De Angelis left the premises he and Pimentel
cop ed the recognition agreement on the office copying
machine De Angelis kept the original
De Angelis stated that he had been under the impres
sion that Pimentel was a gun manufacturer and that Pi
mentel had explained that this was not so When De An
gelis referred to Biasucci s military service there may
have been some reference to differing views on gun con
trol but other than that there was no reference to guns
nor were any displayed according to De Angelis
On being called as an adverse witness by the General
Counsel Pimentel testified that he told Weitzman to sign
the recognition agreement because he wanted to fool the
Union into believing Weitzman was an officer of Re
spondent and get some time on [his] side According
to Pimentel when De Angelis came in he said [I]f you
don t recognize the union we will pull a strike we will
stop all the trucks we 11 make sure that you close up
De Angelis repeated his threats to close the Company
and Biasucci said [W]e re going to come down very
hard on you Biasucci pulled his trouser leg up and
showed a gun to Pimentel and Weitzman 4
After this De Angelis shuffled some cards and said he
had more than 30 When Pimentel expressed his doubts
De Angelis said [Y]ou don t believe it and you don t
want to look at the cards and you won t give us recog
The paragraph added by De Angelis reads
The Employer has requested to see the signed membership cards
representing a majority of the unit employees of Duroyd The unit
shall include all machine operators quality control porters helpers
packers shipping clerks etc but not to include any clerical workers
4 This came about when De Angelis thought Respondent made guns
and he said that he did not like guns Ptmentel responded that to a milt
tary man a gun is better than his wife Biasucci said he had a gun and
he showed it to them
DUROYD MFG. - ^
' 149
nition, we're going to go out right now." Pimentel asked
be Angelis'to show* him•the cards, and De Angelis gave
him the cards one at 'a, time . Pimentel asked if he could
compare the signatures with W-4 forms. De Angelis did
not say no, -he said, "[Y]ou've looked at the cards now
you have to sign the agreement." Pimentel testified that
he did not check the cards against any payroll books. At
this point, he still refused to sign the recognition agree-
ment.
Pimentel• maintained that he asked De Angelis for time
to make a phone call, and talk to counsel, but the union
agents refused. However; Pimentel testified, De Angelis
and Biasucci did leave his office for 10 or 15 minutes and
he spoke to Weitzman privately, and concocted the
scheme to have Weitzman sign the recognition. While he
was alone with Weitzman, Pimentel tried to call a friend
of his and his corporate, counsel, but both were out.
On presentation of Respondent' s case , Pimentel was
called as a witness by counsel for Respondent. He testi-
fied that on the morning of October 5, 1982, De Angelis
walked into his office and told him that he represented a
majority of the people at the plant. Then Biasucci came
in. The union representatives told Pimentel that if he did
not recognize the Union; the employees would go out on
strike and stop all the trucks coming to the plant. When
Pimentel asked for time to gather his thoughts, the
Union refused and said, "[N]o, we are going to pull the
people off right now." Then Weitzman came into the
office. De Angelis was holding a number of authoriza-
tion cards and he kept saying that he would call a strike
if the Union were not recognized immediately. De Ange-
lis mentioned -that Duroyd was a gun manufacturer and
said that he was against guns. Biasucci said he liked guns
and" "he pulled up his pants leg and showed us a gun."
Then the union representatives again threatened to call a
strike.
Pimentel asked the union agents to leave the room so
he-could consult with Weitzman. They left for 5 minutes
and Pimentel and Weitzman tried to call a friend- of
Weitzman's who knew a lawyer. This friend was not in
and Pimentel decided that in order to • stall the Union,
Weitzman would sign the paper. Then De Angelis and
Biasucci returned and, put a recognition form on the desk
and demanded a signature . Pimentel refused but told
Weitzman he could sign. Weitzman told them he - was
"the Vice-President" and - he signed the document. Pi-
mentel had - not examined the cards 'when Weitzman
signed, but afterwards Pimentel looked at the cards brief-
ly one at a time for about 90 seconds only. Pimentel had
no documents , payroll records, or W-4 forms to use for
comparison when he examined the cards. After Pimentel
,looked at the cards, De Angelis, wrote that fact on the
recognition agreement along with the, unit description.
De Angelis asked to speak to the employees so Pimen-
tel convened them in the downstairs shop. De Angelis
told the employees that Duroyd had recognized , the
Union and there was some discussion with various em-
ployees., After the meeting , De, Angelis asked Pimentel
to reinstate Walag and Lewis and he agreed to do so if
they correcied their attendance problems. Later that day,
Pimentel testified, he was given' the name of `a labor law
specialist , a Mr. Sulds.
Isaac Weitzman testified . that he is a consultant to
Duroyd.' He, was called to Pimentel's office on October
5, 1982, and there, he saw De Angelis and Biasucci. He
and Pimentel discussed what decision to make; he could
not recall who was in the room during this discussion.
Pimentel told him about the strike threat. After Pimentel
explained the available choices, the two' men tried to
contact a lawyer-or advisor. Then Pimentel'left; Weitz-
man stated, "[H]e was very upset and left and gave me
the choice to sign."- Weitzman signed the recognition
agreement as "V.P." even though-he was not an officer
of Duroyd. Pimentel ' left the decision up to 'Weitzman
because Pimentel did not want to sign . The `matter about
the cards and the unit was not on the form when he
sighed, according to Weitzman. After, the signing De
Angelis showed Pimentel the cards briefly; Weitzman
could not'recall how Pimentel looked at them. No signa-
tureswere compared with payroll books. Weitzman testi-
fied that De Angelis and Biasucci thought Duroyd man-
ufactured guns. After Weitzman signed the recognition
agreement, Biasucci showed the group a gun on his leg.
It is apparent that there are four different and conflict-
ing versions of how the Union obtained recognition from
the Respondent; one given by'De Angelis, one by Weitz-
man, and two by Pimentel.
In Pimentel's first version, the Union enters and threat-
ens a strike if a recognition agreement is not signed im-
mediately, Biasucci shows a gun, De Angelis permits Pi-
mentel to look at the cards, Pimentel asks to compare
the signatures but for some reason he does not do so, and
then Pimentel and Weitzman confer alone for 10 or 15
minutes during which, they try to reach both Pimentel's
friend and his counsel but are unable to do,so. After this,
Weitzman signs the, recognition agreement as part of a
plan to fool the Union. In Pimentel's second version, the
Union enters and threatens a strike if a recognition agree-
ment is not signed immediately, a gun is displayed, the
union agents , leave the,room for 5 minutes while Pimen-
tel and Weitzman try unsuccessfully to call, Weitzman's
friend and then concoct the scheme to fool the Union,
Weitzman signs the recognition form and then DeAnge-
lis permits Pimentel to look at the cards. Following this,
De Angelis writes the scope of the unit on the form. It is
evident that Pimentel did not testify consistent about the
events of October 5, in that he contradicted himself
about the crucial matter of when he examined the cards
with relation to' his attempts to reach counsel on the tele-
phone and to the time of Weitzman's signing of the rec-
ognition agreement. Also, Pimentel quotes De Angelis as
saying, "[Y]ou don't want to look at the cards," a state-
ment inconsistent with Pimentel's contention that he was
refused permission to see them until after he signed. In
view of the inconsistencies in his.testimony, I find that
Pimentel is not a reliable witness.- Further, Weitzman's
testimony did not support Pimentel's; Weitzman did not
testify that he signed the recognition agreement 'as- the
result of some plan to fool the Union but rather because
Pimentel was "upset" and left the decision to Weitzman.
In •Weitzman's version, the alleged gun incident did not
occur until after the cards. had been examined and the
recognition ' agreement signed . Weitzman's testimony
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not support Respondents theory of the case Ac
cording to him the gun was not used as a silent induce
ment to obtain a signature on the recognition agreement
and he clearly signed as an agent of Respondent without
giving notice to the Union of his true position with
Duroyd
De Angelis testimony was consistent and I have de
cided that his version of the circumstances surrounding
the signing of the recognition agreement is credible
Thus I find that on October 5, 1982 De Angelis de
manded recognition and told Pimentel that he would
show a majority of signed authorization cards if Pimentel
agreed to recognize the Union once majority represents
tion had been proven The parties discussed recognition
the possibility of an election or a strike and wage scales
and fringe benefits After Pimentel and Weitzman cau
cused the parties met again and Biasucci arrived at the
plant and joined the discussions Finally Pimentel asked
to see the cards and agreed to recognize the Union if the
cards proved its majority status Pimentel compared the
cards with some records of the Company Pimentel
looked at the recognition agreement and gave it to
Weitzman who signed, giving his title as V P
I can find no illegality in the Union s demand for rec
ognition nor in its suggestion that it might strike and
picket to demonstrate majority support among the em
ployees Having signed the recognition agreement Re
spondent was bound by it Snow & Sons 134 NLRB 709,
710 (1961) enfd 308 F 2d 687 (9th Cir 1962)
The General Counsel introduced into evidence the 25
cards shown to Pimentel and Weitzman Although Re
spondent does not challenge the authenticity of the sig
natures on the cards 3 Polish speaking employees were
called by Respondent in an attack on the validity of the
cards signed by each of these witnesses
Waclaw Brejnakowski, who testified through an inter
preter stated that he does not read English or Spanish
the languages in which the Union s authorization cards
are printed and that no one read or explained the card
to him before he signed it Brejnakowski stated that the
card was lying on a table at work and that he signed it
and left it there He somehow knew where to print his
name and where to sign his name on the authorization
card He maintained that he had never heard talk of a
union in the shop and that he was never asked anything
by anyone about the circumstances under which he
signed his card This witness also signed charges again st
the Union but again the coworker who asked him to
sign the documents did not explain them
I do not credit Brejnakowski s testimony because it is
too implausible Although claiming neither to understand
the card nor to have had any explanation about it he
nevertheless knew how to fill in the blanks correctly
Although appearing at the trial to give testimony favor
able to Respondent he claimed never to have told
anyone the facts surrounding the signing of the card
Brejnakowski an immigrant who must be fairly conver
sant with the gravity and care required in executing the
forms which permit residence and employment in the
United States would have us believe that he made a
habit of signing documents without knowing their pur
pose These assertions are not worthy of belief Further a union they should sign a card
more having observed the great care and considerable
skill with which counsel for Respondent presented his
case it is clear that he did not call witnesses on a mere
whim but that Brejnakowski must have told his story
about the card to some agent of Respondent before he
was called to testify I will not credit any of Brejnakows
ki s testimony
The same conclusions apply to the testimony of Andr
zej Bylecki another witness testifying through a Polish
interpreter He also claimed that he printed his name and
then signed it on the authorization card although no one
had read it nor explained it to him Bylecki claimed to
have received his card from a stranger and thought that
he might receive chocolate if he signed it He stated that
he never discussed a union with anyone and that he
does not know what a union is
Jaroslaw Dabrowski also began by giving the same
testimony as Brejnakowski and Bylecki He does not
read English or Spani sh no one explained the authoriza
tion card before he signed it and he signed the card be
cause he saw his coworkers signing However under
persistent questioning Dabrowski elaborated on his testi
mony He stated that he understood some English and
that he often acted as a technical interpreter for the
other employees at Duroyd He recalled that a little
while after he signed the card he learned that it was a
union membership card Under further questioning, he
recalled that before he signed his card there was lunch
time talk among the employees about a union Finally in
response to questions posed by counsel for the Union
Dabrowski recalled that the day he signed the card
about 10 Polish employees were in a group speaking to
Walag at lunchtime and Walag said signing the card is
joing the Union s Dabrowski also signed the charges
again st the Union but he could not recall who asked him
to do so
As indicated above the testimony of Brejnakowski
Bylecki and Dabrowski does not make a case for mvali
dating their signed authorization cards
Further the testimony of Janusz Zynis and Zbigniew
Mahszewski shows that there was much discussion of the
Union among Polish speaking employees during the
union card signing campaign Zyms testified that he
knew he was signing a card to join the Union and im
prove conditions Malszewski testified to the same
effect stating that among the Poles there was talk
about forming a union it was said that if they signed
these cards their conditions would be better About 12
Polish speaking employees were employed at Duroyd at
that time and Malszewski spoke to 5 or 6 of them about
the Union Opinions in the shop were very much divided
about the Uion Maliswski testified convincingly that he
knew he was joining the Union by signing the card
In its brief Respondent contends that there were 44
employees in the appropriate unit in October 1982 in
cluding Ed Berger and Piotr Szayer and excluding
Walter Walag as an alleged supervisor The Union had
25 authorization cards The evidence shows that Re
S Walag testified that he told the Polish employees that if they wanted
DUROYD MFG.
spondent considered Berger and Szayer to be on man-
agement 's team and I have found that they were supervi-
sors . Further , F do not find that Walag was a supervi-
sors Thus , at the time of recognition , the unit consisted
of 43 employees and the Union 's 25 cards were a clear
majority. -
De Angelis testified that on October 28, 1982 , Biasucci
and Union Attorney Sol Bogen met with Pimentel and
his attorney Jonathan Sulds . The Union presented a xe-
roxed list of demands *and. explained each of the items
orally . Sulds stated ` that the Company wouldrespond at
a later meeting . A.second meeting was held on Novem-
ber 11; 1982 , with a larger group , including an employee
committee . Pimentel said that he could not "meet any
economic demands" and that the Company could not
give any increase due to its "financial condition .", Pimen-
tel also stated that he had just heard that a pending bank
loan would not be forthcoming and that he could there-
fore make no offer to the Union . A number of employ-
ees, including Walag , had been laid off and seniority in
layoff was discussed . Pimentel claimed that ,Lewis had
been and discharged for absenteeism after his reinstate-
ment on October ' S. The Union requested the books and
records of Respondent on the question of the Company's
financial condition . After a caucus , the Union again re-
quested that the.books and records be examined by an
accountant whose name would be. furnished to Sulds.
Sulds agreed to make arrangements for examination of
the books and records of Duroyd.
On Friday, November 12, about 6 :45 p.m ., De Angelis
received a call from Pimentel . Pimentel said that he had
put on a big act to protect himself and that he would like
to have a meeting to' come to terms with the Union. De
Angelis replied that he had to discuss the matter with his
"partner," meaning Biasucci , and his attorney, and that
he would call Pimentel the following week. Next
Monday or Tuesday , De Angelis called the Company
',and left a message . After another call, Pimentel called
De Angelis and informed him .that he was no longer in-
terested in meeting and that certain acts of violence had
occurred on the premises . He said tires had been slashed
and a threat' made "and as a result , the people no longer
wanted a union , and he was not going to meet with me
to discuss anything further."7
Later in November 1982, De Angelis tried to contact
Pimentel again , but was unable to speak to him. The
books 'and records of the Company were not' made avail-
able to the Union.
Jonathan L. Sulds, Esq., a specialist in labor law repre-
senting management , testified that he represented
Duroyd from September or October 1'982 through the
end of that year . Sulds attended two meetings with union
representatives and union counsel . At the first meeting,
6 No credible evidence supports this assertion. Furthermore, Respond-
ent did not assert that Walag was a supervisor dung the Union's cam-
paign, during the card check, nor when the Union sought his reinstate-
ment on October 5, 1982 This assertion is an afterthought by Respondent
and I reject it
7 I note that Respondent does not contend in his proceeding that the
Union has forfeited any of its rights due to threats or violence. Nor has
Respondent, sought to prove that a majority of employees have with-
drawn from the Union and no longer wish the Union to represent them
.151
on October 28, 1982, the Union presented its demands in
detail and management listened and may have asked one
or two questions. Management responded that it would
take the demands under advisement. The second meet-
ing, on November 11, 1982, -was held in Pimentel's
office, at the Duroyd premises. Sulds, Pimentel, his .son,
and Supervisor Ed Berger attended for the. Company.
Bogen, Biasucci, De Angelis, Walag, Andino, ;and Baker
were there for the Union. Sulds stated that the meeting
"was a day to have further explanation of Union de-
mands and to give any kind of responses that ' manage-
ment had." Sulds went over certain questions raised, by
Pimentel in response to the Union's demands.' Sulds re-
sponded in detail to each of the union demands. Pimentel
then' stated that, he could not afford any of the Union's
demands. At that point, at the •suggestion `of union coun-
sel, a caucus was held and afterwards Sulds also stated
that the Compahy could not afford to meet any of the
demands. A discussion ensued about the legal -implica-
tions of that assertion and the Company agreed that a
union 'auditor would verify the claim by examining the
Company's books. Sulds said the auditor would have to
sign a pledge of confidentiality and Bogen agreed to fur-
nish Sulds with the name of the 'auditor designated by
the Union. Sulds was given this name. He is not aware
whether an audit ever took place..
Sulds did not recall saying at either of the meetings
that there was a question about the signing of the recog-
nition agreement. -.
On being called as an adverse witness by the General
Counsel, Pimentel testified that he attended a meeting
where his labor counsel spoke to counsel for the Union.
Pimentel claimed not to know why his lawyer had asked
him to come to the meeting, what the purpose was, or
even what was discussed there. 8 He never asked counsel
what the purpose of the meeting was. Notwithstanding
this lack of knowledge on his part; Pimentel agreed to
attend another such meeting. Pimentel claimed that. at
the second meeting counsel for the Union said, "[W]e are
an easygoing union, and- we like to do things : in the
proper manner, but we can get physical' if we want to."
Contract terms were discussed at this meeting. Pimentel
recalled that Sulds.stated that the Union's demands could
not be met due to the financial condition of the Compa-
ny and that Bogen then - asked to see the Company's
books.
After Pimentel spoke to a friend of his and received
advice that "the last 'thing you should have done was' sat
with-the union," Pimentel decided that he would not
speak further with the Union and he acquired-new labor
counsel.' Pimentel stated that Biasucci telephoned him
after this and called him an "asshole" when he refused to
meet and negotiate further.
Pimentel testified that he did not know why he was no
longer negotiating with the Union and that it was based
on advice of counsel. He never inquired whether his em-
ployees understood the authorization cards they signed.
9 Pimentel recalled that at this meeting Sulds stated . that the recogni-
tion agreement was illegal or improper . - ,
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On being called by counsel for Respondent Pimentel
testified that at the meeting of October 28 , Sulds began
by stating that there was a question as to the validity of
this recognition At the meeting of November 11 Sulds
mentioned a tremendous expense in putting up a new
building After Bogen demanded to see the Company s
books Sulds said I didn t say we couldn t afford it
Plmentel did not comment on this subject at all at the
meeting 9
I credit the testimony of Sulds who testified with the
aid of notes taken at each of the meetings I note that De
Angelis testimony was entirely consistent with that of
Sulds and I credit it as well I also note that Pimentel s
testimony was incredible Although he attended two ne
gotiating sessions , he claimed not to know why he was
there nor to have asked his counsel for any enlighten
ment He also claimed not to know why he had with
drawn recognition from the Union Further in contra
diction to the reliable testimony of Sulds and De Ange
Its Plmentel claimed that he did not say anything at the
second meeting about the financial inability of the Com
pany to meet with the Union s demands I do not credit
Plmentel s testimony and I specifically do not credit Pi
mentel s assertion that counsel for the Union told him at
the second meeting that the Union can get physical if
we want to I also do not find that Sulds raised any
question to the Union as to the validity of the recogm
tion agreement
The evidence shows that Pimentel an experienced
businessman with a company employing about 50 em
ployees who as will be seen below was accustomed to
negotiating defense contracts worth over $ 1 million
having retained distinguished labor counsel to represent
him attended two negotiating sessions with the Union
and participated in the give and take of bargaining This
conduct is in keeping with the fact that his counsel did
not dispute the validity of the recognition aggreement
To sum up I find that the recognition agreement was
validly executed by an agent of Duroyd with apparent
authority to commit the Company after Pimentel had ex
amined the authorization cards and concluded that the
Union represented a majority of his employees
Plmentel and Weitzman could have refused to accept a
card check as a basis for signing the recognition agree
ment and they could have insisted on an election How
ever once they agreed upon the method of determining
majority status they were bound thereby Snow & Sons
134 NLRB 709 710 ( 1961) enfd 308 F 2d 687 (9th Cir
1962)
I further find that Respondent negotiated with the
Union raised an argument of financial inability to meet
with the Union s demands and agreed to submit its
books for union inspection but then refused to allow its
books to be inspected and refused to negotiate further It
is well settled that once validly recognized the Union en
,toyed an irrebuttable presumption of continuing majority
status for a resonable period of time Therefore Re
spondent violated Section 8(a)(1) and (5 ) of the Act by
Pimentel recalled that when he saw the Union was supported by an
employee committee at the November meeting he called people in to be
on his team including Ed Berger and Piotr Slayer
refusing to negotiate further after having held only two
negotiating sessions with the Union 10
Plmentel testified that he has a general practice of
giving wage increases twice a year depending on circum
stances Raises were given in August 1982 In September
1982 he told the employees he could not afford to grant
a wage increase he was just about to obtain a very large
contract and he had leased a new machine to produce
parts for the contract In January 1983 he granted a
wage increase and employees received an amount geared
to merit
I have found above that Respondent had recognized
the Union and was under a duty to negotiate with it
Therefore the granting of a wage increase without con
sultmg the Union was a violation of Secion 8(a)(1) and
(5) of the Act
C The Filing of Unfair Labor Practice Charges by
Various Employees
The General Counsel contends that Pimentel instigated
the filing of unfair labor practice charges by employees
of Respondent The 8 (a)(1) and (2) charges state
Since on or about Oct 5 1982 the Company by its
authorized agents and representatives have in
fringed and breached employees rights under sec
tion 7 of the National Labor Relations Act by un
lawfully providing support to the Local 531 I B T
and recognizing Local 531 as the collective bargain
ing representative of Duroyd employees Where
Local 531 is not the choice for collective bargaining
Representatives of an uncoerced majority of
Duroyd employees [sic]
The 8(b)(1)(A) charges state
Since on or about Oct 5 1982 Local 531 I B T by
it s [sic] authorized agents and representatives have
coerced and restrained Duroyd employees in the ex
ercise of rights guaranteed in Section 7 of the Na
tional Labor Relations Act in that Local 531 has
demanded recognition as exclusive bargaining repre
sentatives where Local 531 does not represent an
uncoerced majority of Duroyd employees i i
Joyce Reed has been a shipping clerk and packer at
Duroyd since about 1980 Reed is vehemently opposed
to unionization of the plant 12 In response to questions
posed by the General Counsel Reed stated that she saw
union officials talking to employees in the street near the
plant on a Friday Among these she observed Walag
10 NLRB v Cayuga Crushed Stone 474 F 2d 1380 (2d Cir 1972)
11 These charges were signed and filed by employee Joyce Reed and a
number of other employees
11 Having been called by the General Counsel Reed was questioned
pursuant to Rule 611(c) and the counsel for the Union commenced his
questioning of Reed Before Reed s testimony could be completed, an ad
journment was had in the instant trial and Reed was instructed where
and when the trial would resume She did not return however and while
efforts were being made to secure her attendance William Tillman testi
fled His testimony will be described below After Tillman testified Reed
completed her testimony
DUROYD MFG
Thomas Walker, Felix Andino, Stephen Lewis, Larry,
and, Anthony Baker. Reed told Pimentel there were
union people, speaking to the employees, and he said it
was fine as long as they did not enter the plant premises.
Reed denied that she told Pimentel who was talking to
the Union and who had union cards. She acknowledged
asking Pimentel from time to time if a union was coming,
to.the,plant, but.Pimentel said he did not know.
Three weeks after the Union's organizational drive
Reed found a - note and her tires were cut.' a • . Reed
showed Pimentel the note but he said there was nothing
he could do. Reed suspected that the Union, and its sup-
porters among the employees were responsible for the
note and tire slashing but she claimed that she did not
make any comment to Pimentel about the Union.
A few weeks after the union cards, were signed, Reed
decided to file charges against the Union and the Com
pany because she wanted to help employees who did not
want the Union. She asked various employees' if they .
supported the Union. Reed said she never heard that the
Company had recognized the Union, although the
charges she filed allege unlawful recognition. Reed main-
tained that she did not ask Pimentel what was happening
with the Union until after she filed the charges against
the Company and=the Union.-
Reed- testified that she typed the charges filed by her-
self and the other employees. She xeroxed them down-
stairs at work. She stated that employees were permitted
to use the downstairs machine,, and that she rarely used
the xerox machine upstairs in the office because employ-
ees were not allowed to do so. Reed solicited signatures
on the charges with the help of Szayer who translated
for the Polish immigrants. Reed approached six or seven
employees; Szayer approached others and obtained about
eight signatures from Polish-speaking employees.
Reed testified that she' drafted the language of the
charges with the aid of "literature" obtained at the Re-
gional Office. A,Board agent told her that she could not
file a charge unless a majority of the people did not want
the Union and he offered to help Reed fill out the
charge, but she preferred to take a blank form and fill it
out herself. On being asked who explained about Section
8(a)(1) and (2), Reed said she could not recall. The Gen-
eral ,Counsel pressed further on this issue and again Reed
said she could not recall. After a few more questions, in-
cluding a question whether someone at the Company
told Reed about Section 8(a)(1) and (2), Reed, for the
first time, said that a girlfriend, Juanita Smalls who was
visiting from California, read the literature and, helped
Reed word and, type the charges.' 4 Reed said Juanita
had the literature or maybe she herself had it at home.
Reed' claimed that she never discussed the charges with
Pimentel or any managerial employee of Respondent.
In response, to questions , by ' counsel for the . Union,
Reed stated that after she visited the Labor Board and
got a blank charge.she asked employees on her break-
time whether or not` they wanted the Union. Those will-
'-s The note read , "Next time I'm gonna kick your ass!"
14-Reed said she heard about the Labor Board from Juanita who also
gave her instructions on how to get there by train At first Reed did not
want to go because it meant taking a day off without pay.
153
ing to respond wrote their names under the' "yes" or
"no" 'column as on a sheet ' of paper. The questioning
took about 1 'week and was conducted after the Compa-
ny recognized 'the Union. Then Reed contacted her girl-
friend to help draw up the charges. .
Reed stated that she typed ,the 8(b)(1)(A) charge her-
self at home. Reed claimed- that the language of ' the
charge was copied, more or less, from literature that she
obtained at the Regional Office. She made photocopies
of 'the charge 'before it was, signed at the downstairs
xerox at work. These copies she distributed to about
eight of her English-speaking coworkers. She also gave
one to Pio'tr Szayer and Edmund Berger. Some were re-
turned to her and she brought them down to the Region-
al Office.
Reed was questioned extensively , as to how many
charges she typed and she was sure that she only typed
up, one-against the Union . This charge was signed Oc-
tober 27, 1982. she also filed and signed an 8(a)(1) and
(2) "charge against the Company but she did not recall
that one at all.
At the close of the hearing on June 10, 1983 , the day
Reed first testified , she was advised that "it will be your
responsibility to return here " at the date and time agreed
upon for resumption . Despite this clear direction , she did
not return on the next hearing date, September 26, 1983.
Both counsel for Respondent and Pimentel stated on the
record that Reed had been called at the plant three times
that morning and asked to leave immediately for the
trial. Pimentel spoke to Reed directly - on two of these
occasions and Mrs. Pimentel spoke,to her on another oc-
casion between 9:35 and 11 a.m. According to statements
made on the record by counsel for Respondent and by
Mr. and Mrs. Pimentel, Reed told them that she had not
come to testify because her car broke down and she had
no money for the train . Arrangements were made , alter-
natively , for money to be advanced to 'Reed or for some-
one from the plant 'to drive her to the trial. However,
when Reed finally arrived at , the trial , a full 4 hours later
than she had been instructed by the judge , she stated that
she had gone to work that morning because she thought
she was supposed to get a subpoena to appear . She fur-
ther stated , in response to questions posed by the judge,
that,she had received no phone calls that morning in-
structing her to go to court, only a question from the
bookkeeper as t6 whether she was supposed to go the
trial. Reed stated that she had traveled to the trail by
train because her car was being repaired and that she
had always had enough money to travel to the court-
room.
When questioning by counsel for the Union resumed,
Reed denied that she gave copies of the `charges to Piotr
Szayer or Ed Berger to distribute to the employees for
signature. However, she then changed her testimony
again when reminded of her, former testimony and,she
stated that she gave Piotr - Szayer some copies for the
Polish immigrants to sign.'
In response to further questions posed by counsel for
the Union , Reed stated that she had used public transpor-
tation to travel to the Regional Office but that a friend
drove her downtown the first time because her tires had
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been slashed She was upset about the tire slashing and
I went upstairs and told my boss about that that I
wanted to come down here and file charges against the
Union For the first time in her lengthy testimony Reed
mentioned that a friend of hers Mr Tillman had driven
her down to the Labor Board 15 Reed said that about a
week after her tires were slashed she asked Tillman to
drive her downtown and he agreed to do so Reed
denied telling Tillman that Pimentel had agreed to pay
him for driving her downtown and she denied telling
Tillman that Pimentel wanted Tillman to drive her
downtown Reed stated that she gave Tillman cash to
pay for the gasoline and parking lot charges She
claimed that Tillman only drove her downtown once
In response to questions posed by counsel for Re
spondent Reed stated that her tires were slashed after
Pimentel announced Local 531 would represent Dur
oyd s employees and a note was left under her tire She
gave the note to Pimentel and he kept it until the trial
William Tillman is a machinist at Duroyd He testified
that on a Monday in fall 1982 Reed told him that Pi
mentel wanted him to drive her downtown to the Labor
Board the next day At first Tillman did not believe her
nor that he would be paid for doing this but when he
asked Pimentel the latter confirmed Reed s assertion Pi
mentel told Tillman not to clock in and that Charlie the
bookkeeper would pay him off the books Tillman drove
Reed downtown in his car on 2 consecutive days he was
paid for the 2 days and reimbursed for his expenses
Tillman stated that on the first day he and Reed went
to the Regional Office Reed told Tillman she was going
to make a complaint against the Union and Duroyd be
cause she did not want the Union According to Tillman
nothing happened that day because he told the Board
agent he was getting paid and the guy [Board agent]
said we were paid to come down by the boss the boss
was in error Then Reed sad they were not getting
paid and now we re coming for information The next
day Reed told Tillman to wait for her at the reception
desk and she spoke to the Board agent alone Tillman
testified that he had met Pimentel in the restaurant
where both regularly have coffee before work on the
morning of the second day he was to drive Reed down
town Tillman told Pimentel they had been to the Labor
Board Pimentel said to Tillman that he couldn t have
the Union coming in there right now because he did
not want a strike Pimentel also told Tillman that Reed
had to return to the Labor Board and that she should not
punch in but should see the bookkeeper about getting
paid Pimentel said Reed knew what to do
Tillman acknowledged that there was some question
about how many vacation days he was entitled to at
Duroyd However from his answers and his demeanor I
do not find that this problem impinged at all on his
credibility as a witness Tillman had good recall, was co
operative in answering questions and was a careful wit
ness I credit his testimony
Two employees testified that Pimentel had urged them
to sign an antiunion petition for Reed Felix Andmo
15 Tillman had testified just prior to Reed s second appearance
testified that Reed asked him to sign some papers against
the Union but that he did not do so Then Pimentel
called him up to the office and asked him why he had
not signed the document for Reed Andmo replied that
he did not wish to I credit Andino s testimony Anthony
Baker testified that a few days after he signed a card for
the Union he met Reed after work and she said If the
Union gets in there we re fucked Baker told Reed he
had nothing to do with it Pimentel later said to Baker
[Y]ou re not one of these young malcontents and I
want you to help me to get rid of this Union Baker
told Pimentel he was in a hurry and would see about it
some other time but Pimentel did not raise the subject
again Later Reed gave Baker an antiumon petition to
sign Baker read the petition and took it to Pimentel s
office he told Pimentel he would not sign it Pimentel
denied any knowledge of the petition During this con
versation Baker could see Reed at the office xerox ma
chore xeroxmg the petitions 16
Baker was an intelligent well spoken witness He
seemed to be a belligerent person and he was clearly
angry over the circumstances of his discharge described
below However I have decided to credit Baker s testi
mony
It is clear to me from observing Reed at the trial and
from reading her testimony in the record that Reed was
determined to testify that she had composed the Ian
guage of the charges without assistance 17 When it
became clear through questioning by the General Coun
sel that her testimony that she prepared the charges un
aided and especially without company assistance was
open to some doubt Reed suddenly remembered the
helpful friend from California This friend was not men
tioned until quite a bit of probing by counsel I find
Reed s story incredible I also note the many inconsisten
cies and contradictions in Reed s testimony including
but not limited to whether or not she told Pimentel she
was going to file charges against the Union whether or
not she asked Berger and Szayer to solicit signatures on
the charges from the Polish workers who was responsi
ble for her transportation to and from the Regional
Office to file charges when and for what reason she ac
tually decided to file the charges and all of the circum
stances relating to Reed s initial failure to appear at the
trial herein in September 1982
Further I find Tillman s testimony credible and reh
able Tillman s testimony shows that Pimentel paid him
for twice taking Reed to the Regional Office to file
charges again st the Union
The conclusion is inescapable that Reed received as
sistance from Pimentel in filing the charges I infer also
that Pimentel aided Reed to compose the charges none
of Reeds explanations as to how she arrived at the
wording of the charges is in the least bit credible and in
view of the assistance clearly provided by Pimentel and
16 By petition Baker meant the charges
17 Reed testified in a rough and ready manner Her choice of words
was unsophisticated and relatively unlettered her grammar was not
always correct and she did not give the impression of being comfortable
with technical or legal phraseology Yet the wording of the charges
quoted above is highly technical and sophisticated
DUROYD MFG.
his agents for the actual signing and filing of the charges,
it is fair to assume that 'he also initiated the idea of filing
the charges.
It follows ' that I do not credit Pimentel's testimony
that he. had no knowledge of how the charges came to
be filed and his denials of the testimony of' Tillman,
Andino, and Baker.
I find that Respondent violated Section 8(a)(1) of the
Act when - Pimentel initiated , supported , and assisted
Reed in filing unfair labor practice charges and when Su-
pervisors Berger , and Szayer asked employees to sign the
charges, -when Pimentel asked Andino to - sign the
charges, and when Pimentel asked Baker , to help him get
rid of the.Union. t s
D. Discharge and/or Layoff of Walag, Whittlesey,,
Lewis, Lawrence, -and Baker
Walag testified that he met with De Angelis on Octo-
ber 1 , 1982, and obtained authorization cards to distrib-
ute to his fellow employees : His coworkers Andino,
Thomas Walker , and Anigo also took some cards. Walag
obtained ' a number of signatures on, the cards and he
gave , these to Andino for transmittal to the Union. On
Monday, October 4, Weitzman called Walag away from
his machine and told him he was fired . According to
Walag , Weitzman said, `,`I don't need no partner. I know
you explained _ to the Polish • people about the union
cards . I also know you signed a card ." Walag left the
plant and notified De Angelis of his discharge. As de-
scribed above , Walag was reinstated through the inter-
vention of the Union . He was laid off for 3 days for lack
of work beginning October 8 , 1972: When he returned to
work on October 14, he noticed an employee named Mi-
chael Newhard performing the same type of work he
himself performed , and he noticed a large pile of work to
be completed . On October 29 Walag was called up, to Pi-
mentel 's office where he and others were told they were`
laid off for'lack of work . Walag said there had been no
drop in the amount of work at the plant. At this meeting,
Walag ,told Pimentel that he was not laying off accord-
ing to seniority, but Pimentel said he had already- notified
the Union that the layoff would be by seniority.
Respondent contends that Walag was "laid off' on
October 3 due to ., poor attendance and d ' lack of work
and that he was again laid off on October 29 because the
Annex at 11A Kimball Place had to be vacated and there
was a lack, of work. I 9
In analyzing the evidence relating to the' layoffs
and/or discharges Ishall rely on 'the testimony of Walag
whom I found to be a consistent, forthright , and credible
witness . I- have already found that ' Pimentel did not have
an acurate or consistent recollection of the events occur-
ring in October and November 1982. Further, I do not
credit Weitzman's testimony where it conflicts with that
of other reliable witnesses. Weitzman was very quick 'to
testify that he could "hot-recall" many things on cross-
.'
's Distribution Services West, 262 NLRB 764 ( 1982), Texaco, Inc.' 264
NLRB 1132 ( 1982). •
19 This contention is apparently at odds with Pimentel 's assertion to
the Union on October 5 that Walag was fired for a poor attendance
record or for low quality work.
i55
examination ; indeed, I observed that often Weitzman
rushed in, to say he could not recall before opposing
counsel had completed posing the question. It was clear
to me from observing this witness that he wished to
recall only that which was favorable to Respondent's
case.
As a result , I credit Walag's testimony that Weitzman
referred to Walag's union activities when Walag was dis-
charged on October 4, 1982, and I find that Respondent
was fully, aware of. Walag 's extensive union activities.
Pimentel testified that when the Annex was closed,
Walag, Thomas Walker , Anthony Baker, James Whittle-
sey, Lorenzo Lawrence , and •a number of Polish -speak-
ing employees had been working in that location . He laid
off Walag, 'Lawrence, and Whittlesey. The Polish em-
ployeeswere moved to 10 Kimball place where they did
menial work on a sandblasting machine . Walag 's lathe
was put into storage because it could not be set up in 10
Kimball Place and his work was subcontracted out.
There was no suitable work for Walag , who was a lathe
machine operator , and Pimentel testified that he did not
want to ' offer an employee of Walag 's "stature" any
menial work. The menial work was offered to Baker and
Walker .-and the Polish immigrants but not to Lawrence
and Whittlesey because it was too advanced for them. A
new lathe -operator was hired in early '1982. According
to Pimentel , Walag was not recalled for this job because
the pay was low. In addition , Pimentel advertised for. a
lathe operator - in April 1983, but did not recall Walag.
Pimentel acknowledged that Michael Nemhard was kept
on as a lathe operator but explained that this was because
his pay was lower'than Walag's and because he was will-
ing to do menial work.
I conclude that the evidence supports a finding that
Walag was laid off on October 29 because he supported
the Union . I have found above that Respondent was
aware that Walag was very active on behalf of the
Union and that he was instrumental in signing up the
Polish-speaking workers . Both Pimentel and Weitzman
had expressed their hostility to the Union . Pimentel gave
shifting reasons for Walag's layoff, of October 4. Further,
there was no- rational explanation for the failure to offer
Walag Nemhard 's lower paying job on October 29 or to
recall Walag instead of hiring a new lathe machine oper-
ator in early 1983 . Pimentel did not inquire whether
Walag would accept a, lower paying job . Thus, I find
that by laying off Walag on October 29 , 1982, Respond-
ent ,violated Section 8 (a)(1) and (3) of the Act. I also fwd
violative of Section 8(a)(1) Weitzman's statements to
Walag on October , 4 that he knew about Walag 's union
activities , and that he did , not need a "partner." These
statements constitute interference and coercion in that,
they conveyed to Walag that he was being, laid off at
that time, due to his support of the Union.
Anthony H. Baker testified ' that he was employed at
Duroyd from April 1979 to - December 10, 1982. He
worked on various machines such as the saw, the milling
machine, and the drill press, and he swept the floor: Pi-
mentel tried to include Baker in the October layoff, but
Baker argued that he had 4 years' seniority and said he
would complain to the Labor Board . Pimentel then gave
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker a choice of working on segment columns or of
doing janitorial work Baker thereafter worked both as a
janitor and as a production worker Baker stated that Pi
mentel was constantly harassing him with foul language
and asking him when he was going to quit On Friday
December 10 1982 Pimentel and Baker had an alterca
tion about Bakers use of time prior to lunch foul Ian
guage was used by both men and Baker was discharged
Baker testified that when the Annex was closed the
Polish workers were moved to the main building and to
the garage where work was found for them They did
not perform grinding work and only one of them per
formed work similar to that performed by Whittlesey
and Lawrence However a new Jamaican employee
(Nemhard) performed work similar to Walag s work on
a lathe in the main building
According to Pimentel Baker came to Pimentel s
office after the recognition agreement was signed and
said he did not want to join the Union Pimentel re
sponded that he could not help him it was up to the in
dividuals Pimentel was not aware that Baker had signed
a card for the Union He denied that he ever asked
Baker for help in getting rid of the Union
I credit Baker s testimony I have found above that Pi
mentel who was unaware that Baker supported the
Union had asked the latter for help in getting rid of it
However I do not find a sufficient connection between
Baker s signing of a card and his discharge on December
10 1982 It is clear that Baker and Pimentel did not get
along and were used to abusing each other verbally in
vile language However it seems that Pimentel fired
Baker for what he perceived as insubordination Another
employer may not have taken the same action but I do
not find any evidence that it related to protected activity
on Baker s part
James Whittlesey was employed from March 14 to the
end of October 1982 on the drill press and sanding ma
chine He usually worked in the Annex Whittlesey
signed a card for the Union in early October 1982 and
he solicited signatures on two cards which he gave to
Thomas Walker for transmittal to the Union On
Wednesday October 27 1982 Supervisor Barry Veloski
told Whittlesey that he and Lorenzo Lawrence would be
laid off because Duroyd had lost the lease on the Annex
and the machines would have to be put into storage
Whittlesey offered to do a different job but Veloski said
there were no other jobs However the two were given
a job for a few days moving things to other buildings
Thomas Walker also performed this work Then Pimen
tel called in Lawrence Walag Anthony Baker and
Whittlesey and said they were laid off The men asked
about the new sanding machines but Pimentel said only
one could be kept and he suggested the men should
decide which of them would stay and work The men
did not want to do this
Lorenzo Lawrence Jr worked at Duroyd from Janu
ary or February 1982 until October 29 1982 operating a
deburring machine a grinding wheel and a sandblaster
in the Annex He also constructed a mount assembly
Lawrence signed a card for the Union He was laid off
when the Annex closed and was recalled 3 or 4 weeks
before the trial He quit soon after
Pimentel testified that Whittlesey s work on the sand
blasting machine was finishing up and that there was no
other area to tram him in Pimentel testified that Whittle
sey along with Lorenzo Lawrence had no capacity to
learn a new job He also testified that Whittlesey was not
trained to do the menial jobs done by the Polish employ
ees after the layoffs of October 1982 However he then
acknowledged that employees at Duroyd were constant
ly being retrained for new jobs Pimentel did not offer
Lawrence a job for which he was trained because he had
once refused a similar job Pimentel recalled Lawrence
on May 1 1983 because he noticed that Lawrence s dog
training business was declining and he thought Lawrence
might want a job 20
The General Counsel urges that Whittlesey and Law
rence were laid off because they were the young mal
contents to whom Pimentel had referred as being sup
porters of the Union However in the absence of other
evidence that they were discharged for union activity I
am not convinced that they were laid off in violation of
the Act
Steven R Lewis worked for Duroyd from February
to October 1982 He worked in the Annex on a grinding
machine sandblaster deburrer and segment columns On
October 1 1982 he signed an authorization card given to
him by Walker After this Weitzman told him he was
laid off for lack of work Through the intervention of
the Union Pimentel agreed to take Lewis back if he cor
rected his lateness and absenteeism Sometime after this
Lewis was sick and his brother in law Lorenzo Law
rence another Duroyd employee called in for him
When he returned to work he was discharged for failing
to call in Although Pimentel was told that Lawrence
had indeed called in for Lewis Pimentel fired Lewis for
not phoning in himself Lewis acnowledged taking 8 full
days off from work prior to his layoff on October 4 but
he denied that he was discharged for lateness and absen
teeism on October 4 Lewis denied ever being warned
about his absences before October 4 and he denied ever
being told not to have Lawrence report on his absence
but to call in himself
Pimentel testified that Lewis was fired for absenteeism
on October 4 1982 and that he was discharged again on
October 12 for being absent and failing to call in person
ally as he had been instructed to do Based on Lewis ex
tensive absenteeism I do not find that his discharge was a
violation of the Act
E Testimony of Thomas E Walker
Thomas E Walker testified that he has worked for
Duroyd for over 4 years Walker signed a card for the
Union and distributed blank cards to his coworkers
Weitzman told him that he must be again st the Union if
I want to go to the new building On a subsequent oc
casion Weitzman called him up to the office and said
that if the Union came in Walker would be personally
held responsible for it and the plant would close in 24
hours
zo Lawrence lived near Respondents plant and performed dog training
m his spare time
DUROYD MFG
I credit Walker s testimony concerning Weitzman s
threats and I find that these violated Section 8(a)(1) of
the Act
CONCLUSIONS OF LAW
1 By refusing to negotiate with the Union since No
vember 1982 by refusing to permit the Union to inspect
its books and by granting a wage increase in January
1983 without negotiating with the Union Respondent
has violated Section 8(a)(5) and (1) of the Act
2 By soliciting inciting requesting and assisting em
ployees to file unfair labor practice charges to help rid
itself of the Union Respondent has violated Section
8(a)(1) of the Act
3 By laying off and failing to recall Walter Walag
since October 29 1982 because of his support for the
Union Respondent has violated Section 8(a)(3) and (1)
of the Act
4 By telling its employees it knew of their union ac
tivities and threatening its employees with layoff and
plant closure if they supported the Union Respondent
has violated Section 8(a)(1) of the Act
5 The unfair labor practices found above affect coin
merce within the meaning of Section 2(6) and (7) of the
Act
6 The General Counsel has failed to prove any other
violations of the Act
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I find it necessary to order it to
cease and desist and to take certain affirmative action de
signed to effectuate the policies of the Act
Respondent having discriminatorily laid off an employ
ee it must offer him reinstatement and make him whole
for any loss of earnings and other benefits computed on
a quarterly basis from the date of layoff to date of proper
offer of reinstatement less any net interim earnings as
prescribed in F W Woolworth Co 90 NLRB 289 (1950)
plus interest as computed in Florida Steel Corp, 231
NLRB 651 (1977)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed21
ORDER
The Respondent Duroyd Manufacturing Inc Mt
Vernon New York its officers agents, successors and
assigns shall
I Cease and desist from
(a) Refusing to negotiate with the Union refusing to
supply information to the Union and granting wage in
creases without negotiating with the Union
21 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
157
(b) Soliciting inciting requesting and assisting em
ployees to file unfair labor practice charges with the
object of nddmg itself of the Union
(c) Laying off or otherwise discriminating against em
ployees because they support the Umon
(d) Coercively telling its employees it is aware of
union activities and threatening its employees with
layoff and plant closure if they support the Union
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the At,
(a) On request bargain with the Union as the exclusive
representative of the employees in the following appro
priate unit concerning terms and conditions of employ
merit and if an understanding is reached embody the un
derstanding in a signed agreement
All machine operators quality control porters
helpers packers and shipping clerks at its plant ex
eluding office clencal employees guards and super
visors as defined in the Act
(b) Offer Walter Walag immediate and full reinstate
ment to his former job or if that job no longer exists to
a substantially equivalent position without prejudice to
his senionty or any other nghts or privileges previously
enjoyed and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimma
tion against him in the manner set forth in the remedy
section of the decision
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against hum in any way
(d) Preserve and, on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards,
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its premises copies of the attached notice
marked Appendix 22 Copies of the notice on forms
provided by the Regional Director for Region 2 after
being signed by the Respondents authorized representa
tive shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered defaced, or covered by any other maters
al
22 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20 IT IS FURTHER ORDERED that the complaint is dis
days from the date of this Order what steps the Re missed insofar as it alleges violations of the Act not
spondent has taken to comply found herein