Dworkin Electroplaters

National Labor Relations Board - Board Decisions

Mar 27, 1962

136 N.L.R.B. 598 (N.L.R.B. 1962)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created, and have been for many years considered as being outside
the unit. Under all these circumstances, to regard them as accretions,
as the Petitioner contends, is not warranted. Accordingly, we shall
deny the motions.
[The Board denied the motions for clarification of certifications.]
Rubin Dworkin t/a Dworkin Electroplaters and United Retail
and Wholesale Employees Union, Local 115, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case No. 4-CA-2385. March 27, 1962
DECISION AND ORDER
On January 2, 1962, Trial Examiner Albert P. Wheatley issued his
Intermediate Report herein, finding that the Respondent engaged in
unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that Re-
spondent did not engage in certain other unfair labor practices and
recommended that the allegations of the complaint in respect thereto
be dismissed. Thereafter, both the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report, together with sup-
porting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and modi-
fications set forth below?
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (1) of the Act by its unlawful interrogation of em-
ployees. We further find, however, on the basis of testimony credited
by the Trial Examiner which is fully detailed in the Intermediate
1 The Respondent's request for oral argument is denied , since the record and the briefs
adequately present the issues and positions of the parties
' Contrary to the Trial Examiner , we believe that Chase should be included in the bar-
gaining unit of Respondent ' s production and maintenance employees He spends part of
his time making deliveries and pickups The remainder of his time , and the record in-
dicates that it is a considerable amount of time, is spent in the plant performing mis-
cellaneous jobs as needed His work brings him in contact with other employees in the
unit and he shares the same supervision with them. We find his interests are such as
to warrant his inclusion in the unit.
136 NLRB No. 15.
DWORKIN ELECTROPLATERS 599
Report, that Respondent also violated Section 8(a) (1) by threatening
employees with loss of employment because of the Union, by promis-
ing a wage increase to a prounion employee if he abstained from
voting in a Board-conducted representation election, and by telling
strikers that they would not be reinstated unless they gave up the
Union.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent Rubin Dworkin,
doing business as Dworkin Electroplaters, his agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith concerning
wages, hours, or other terms and conditions of employment with
United Retail and Wholesale Employees Union, Local 115, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as the exclusive representative of
the production and maintenance employees employed at his Phila-
delphia, Pennsylvania, place of business, excluding supervisors as
defined in the Act.
(b) Discouraging membership in the Union, or in any other labor
organization of his employees, by refusing to reinstate any employees
engaged in concerted activities as unfair labor practice strikers or
because of their union membership or activity, or by discriminating in
any other manner with respect to their hire or tenure or any term or
condition of employment.
(c) Unlawfully interrogating employees concerning their union
membership or activities in a manner constituting interference, re-
straint, or coercion within the meaning of the Act.
(d) Threatening employees with loss of employment because of the
Union.
(e) Promising economic benefits to employees if they abstain from
voting in Board-conducted representation elections.
(f) Telling strikers that they would not be reinstated unless they
give up union representation.
(g) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join the above-named labor organization or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection
or to refrain from engaging in any or all such activities except to the
extent that such rights may be affected by an agreement requiring
GOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-membership in a labor organization as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named Union
as exclusive representative of all employees in the appropriate unit
described above, and embody in a signed agreement any understanding
reached.
(b) Make whole the employees who were on strike as of June 7,
1961, for any loss of pay they may have suffered by reason of Re-
spondent's discrimination against them by paying to each employee
a sum of money equal to the amount which each normally would have
earned as wages during the period from June 7, 1961, to the date of
Respondent's offer to reinstate the employees, less his net earnings
during that period.
(c) Make whole Jose Candelaira and Getulio Salas Pagan for any
loss of pay which they may have suffered by reason of Respondent's
discrimination against them on June 22, 1961, by payment to each of
a sum of money equal to the amount which each normally would have
earned as wages during the period from June 22, 1961, to the date Re-
spondent offered reinstatement to said employees, less net earnings
during that period.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due in
accordance with the terms of this Order.
(e) Post in conspicuous places at Respondent's place of business in
Philadelphia, Pennsylvania, copies of the notice attached hereto
marked "Appendix." 3 Copies of said notice, to be furnished by the
Regional Director for the Fourth Region, shall, after being duly signed
by the Respondent, be posted immediately upon receipt thereof and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Order, what steps Respondent has
taken to comply herewith.
IT Is FIIItTxER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondent violated the Act other
than as found herein.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
DWORKIN ELECTROPLATERS 601
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are hereby notified that Dworkin
Electroplaters :
WILL NOT unlawfully interrogate employees concerning their
union membership or activities, in a manner constituting interfer-
ence, restraint, or coercion within the meaning of the Act.
WILL NOT threaten employees with loss of employment because
of the Union.
WILL NOT promise economic benefits to employees if they abstain
from voting in Board-conducted representation proceedings.
WILL NOT threaten strikers that they will not be reinstated un-
less they give up union representation.
WILL NOT discourage membership in United Retail and Whole-
sale Employees Union, Local 115, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, or any other labor organization, by discriminating
against employees with respect to their hire or tenure of employ-
ment or any term or condition of employment.
WILL NOT in any other mamier interfere with, restrain, or coerce
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Retail and
Wholesale Employees Union, Local 115, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, or any other labor organization, to bargain
collectively through representatives of their own free choice, or
to engage in any other concerted activity for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8 (a) (3) of the Act.
WILL bargain collectively, upon request, with United Retail
and Wholesale Employees Union, Local 115, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, as exclusive representative of the em-
ployees in the bargaining unit described below with respect to
rates of pay, hours of employment, or other conditions of em-
ployment, and, if an understanding is reached, embody such un-
derstanding in a written and signed agreement.
WILL make whole the employees who were on strikes as of
June 7, 1961, for any loss of pay they may have suffered by reason
of the discrimination against them by paying to each employee a
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum of money equal to the amount which each normally would
have earned as wages during the period from June 7, 1961, to date
of the offer to reinstate said employee less his net earnings during
that period.
WILL make whole Jose Candelaira and Getulio Salas Pagan for
any loss of pay which they may have suffered by reason of the
discrimination against them on June 22, 1961, by payment to each
of a sum of money equal to the amount which each normally would
have earned as wages during the period from June 22, 1961, to
the date they were reinstated, less net earnings during that period.
The bargaining unit is: All production and maintenance em-
ployees employed at the plant located at Philadelphia, Pennsyl-
vania , but excluding all supervisors as defined in the Act.
RUBIN DwoRKIN T/A DWORKIN ELECTROPLATERS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut & Juniper Streets,
Philadelphia, Pennsylvania, Telephone Number Pennypacker 5-2612,
if they have any question concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before me , Albert P.
Wheatley, the duly designated Trial Examiner, in Philadelphia , Pennsylvania, on
October 2, 3, 4, 5, 9, 10, 11, 12, and 13, 1961.' The issues litigated were whether
Rubin Dworkin trading as Dworkin Electroplaters , herein called Respondent, vio-
lated Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as
amended , herein called the Act. After the close of the hearing , the General Counsel
and Respondent filed briefs 2 which I have considered in the preparation of this
report.
Upon the entire record and observations of witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESSES INVOLVED
Rubin Dworkin , an individual proprietor doing business as Dworkin Electro-
platers, maintains his place of business in Philadelphia , Pennsylvania , where he
engages in the business of providing the service of electroplating for manufacturers
of various metal products and related materials. Gross annual sales approximate
$80,000 of which in excess of $50,000 represents sales to manufacturing enterprises
located in Pensylvania . Each of these manufacturing enterprises annually pur-
chases and transports to its manufacturing location within Pennsylvania from points
and places outside of Pennsylvania goods and materials valued in excess of $50,000
or produces and ships goods valued in excess of $50 ,000 to points and places outside
of Pennsylvania.
' The hearing was formally closed by telegram dated October 17, 1961.
2 The briefs were received in due course on December 4, 1961.
DWORKIN ELECTROPLATERS 603
Upon the basis of the foregoing facts, I find and conclude that Respondent is
engaged in commerce or a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.3
II. LABOR ORGANIZATION INVOLVED
United Retail and Wholesale Employees Union, Local 115, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent , herein called the Union , is a labor organization within the meaning of
Section 2(5) of the Act.
III. FACTS
During May 1961, the Union undertook to organize the employees of Respondent
and by May 15, more than a majority of Respondent's production and maintenance
employees (six of Respondent 's nine employees ) had signed cards designating the
Union as their representative for collective-bargaining purposes. By letter dated
May 15, 1961, the Union advised Respondent that a majority of his production
and maintenance employees had designated the Union as their collective-bargaining
representative and requested recognition and "the immediate start of bargaining."
On the same date the letter was mailed by the Union to Respondent, the Union also
mailed a petition for certification to the National Labor Relations Board's Fourth
Region. (See Case No. 4-RC-4609.)
Upon receipt of the Union's bargaining demand letter, Dworkin interrogated his
employees concerning this letter. There is conflicting evidence as to whether
Dworkin went beyond mere interrogation concerning the employees' knowledge of
the letter. Dworkin testified his inquiry was limited to inquiries about the letter
and denied making statements attributed to him by various employees. Respond-
ent's employees testified the inquiries were not so limited. Thus Ramon Rodriguez
testified Dworkin interrogated him about the Union and whether he was in accord
with the Union. According to Rodriguez, he told Dworkin he (Rodriguez) "didn't
know anything about it" and then Dworkin said, "Well, what do you think of the
Union? Would you like a Union?" Rodriguez testified he (Rodriguez) then
indicated he was in favor of a union and he and Dworkin then discussed the possible
effects of union organization of Respondent's plant. According to Rodriguez, during
this discussion Dworkin told him that if the Union were successful in obtaining
more money, he (Dworkin) might have to lay some people off. Dworkin denied
that this conversation took place. Marcos Santiago testified Dworkin asked him if
he had signed the union card and that upon his (Santiago's) affirmative reply,
Dworkin told him the Union was good in that through the Union he "could earn
more money" but that a bad feature about the Union was that if he (Dworkin) did
not have any work employees would be sent home instead of to other sections of
Respondent's operations. Also, according to Santiago, Dworkin told him (San-
tiago) that "it didn't mean anything if [he] had already signed the card that when
the time came to vote on it [he] wouldn't have to vote and nobody would have to
know [he] didn't vote," and then Dworkin offered him (Santiago) a wage increase
if he (Santiago) abstained from voting. Dworkin denied making the statements
attributed to him by Santiago. Angelo Rios testified that Dworkin asked him
whether he knew anything about the union business and when he (Rios) answered in
the negative, Dworkin asked, "Do you known who brought the Union in?" Rios
,testified that he (Rios) answered he did not know and Dworkin then went over to
Harry Linden and remarked to him, "They went and got the Union." Rios testified
that later that day Dworkin told him (Rios) that "if the Union is here" you will
have to pay $5 a month and that he (Rios) could get the same thing the Union would
get without paying such sum. Dworkin denied making the statements or engaging
in the conduct attributed to him by Rios. Upon the basis of the observations of
witnesses and analysis of the record and probabilities in the light of those observa-
tions and the analysis, I credit the testimony of the employees noted above and find
that Dworkin made the statements and engaged in the conduct attributed to him.
On May 16 (the same date that Respondent received the Union's letter) Respond-
ent laid off Jose Candelaira and Getulio Salas Pagan. There is conflicting evidence
concerning these layoffs and what was said at the time of the layoffs.
According to Candelaira, at the close of business on May 16, Dworkin told a
group of employees (Candelaira, Getulio Salas Pagan, Angelo Rios, Marcos San-
tiago, and Ramon Rodriguez) "he didn't want no union here, he would rather
3 See Siemons Mailing Service, 122 NLRB 81; Operating Engineers Local Union No 3,
AFL-CIO (California Association of Employers), 123 NLRB 922; and R E. Smith et at.,
d/b/a Southern Dolomite, 129 NLRB 1342
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay us off, you know, or close the place before the Union came in the shop. So then
he lay me off, me and Getulio, told me the work was closed." Getulio Salas Pagan
testified that Dworkin attributed the layoff to union activities. However, the other
employees did not corroborate this version of the matter and from their testimony,
the testimony of Dworkin, and the entire record herein, it appears, and I find, that
work was slack and that that was the reason assigned by Dworkin for the layoff of
Candelaira and Getulio Salas Pagan, the two employees with the least seniority.
They were told to come in late the following morning in the hope that work would
be available, but it was not. Candelaira and Pagan reported their version of this
matter to Union Organizer Jose Diaz and shortly thereafter began picketing at Re-
spondent's place of business. In the meantime they went to the union place of
business and reported what had happened to the Union Secretary-Treasurer and
Business Agent John Paul Morris. As noted hereinafter, Morris telephoned
Dworkin.
According to Union Organizer Jose Diaz and union member Walter Malloy,
shortly after the picket line was established Dworkin called them into his office and
asked what was happening. Their version of what was said is not consistent except
that both attributed antiunion comments to Dworkin. Dworkin denied that such
a conversation took place. Although I have considerable doubt about the matter
in view of the record as a whole, I credit Dworkin's denial.
As noted above, on May 17 , Union Business Agent Morris telephoned Dworkin.
The evidence is conflicting as to what was said during this conversation and the one
the next day . According to Morris , these conversations concerned in the main
Dworkin 's interrogations and the layoffs previously noted and Dworkin admitted
engaging in this conduct and that the layoffs were because of union activity and
stated he intended to take a different attitude toward his employees in view of their
union activities . According to Dworkin , Morris asked if he had received the Union's
letter and what he was going to do . Dworkin testified he told Morris he had referred
the letter to his attorney . According to Dworkin, Morris in the course of his con-
versation accused him of violating the law in discharging Candelaira and Pagan be-
cause of union activity and he told Morris he had not discharged anybody but laid
them off temporarily due to lack of work. Dworkin denied telling Morris that the
layoffs were because of union activity and denied making other antiunion statements
attributed to him by Morris. In the light of the entire record and observations of
witnesses , I believe Dworkin 's version of these conversations more reliable than
Morris' even though Morris' version is corroborated in substantial part by his
secretary who testified she listened to the conversations via an extension telephone.
As noted above, Candelaira and Pagan commenced picketing on May 17. It is not
clear what legend appeared on the picket signs but apparently they read "Local 115
on strike against Dworkin Electroplaters and "Local 115 on strike for recognition
and against unfair labor practices." After lunch that day Amalio Nazerio and Ramon
Rodriguez joined the picket line. Because of lack of work they had punched out at
noon with instructions from Dworkin to report the following morning. The four
named employees continued picketing on May 18 and 19 with the exception that
on Friday, May 19, Nazerio and Pagan returned to work for a few hours. When
work became available Dworkin offered it on a seniority basis to the strikers. After
working a few hours Nazerio and Pagan again joined the picket line when work
again became slack.
On Monday, May 22, Dworkin received a telephone call from Union Business
Agent Morris who asked him (Dworkin) if he had as yet heard from his attorney.
Dworkin replied that he had not and Morris then asked what Dworkin was going to
do and Dworkin replied, "Nothing." Morris then said, "Well, in that case we are
going to close you up and pull all of your men out of the shop." That afternoon
Marcos Santiago and Angelo Rios joined the pickets, making a total of six of Re-
spondent's nine employees on strike. At this time Nazerio, Rios, and Santiago were
told by Dworkin if they were not going to work, he would have to replace them.
There is disputed testimony as to whether that afternoon Dworkin announced to the
strikers, "O.K., all of you stay there, all of you [are] fired." Union Organizer
Diaz so testified . Dworkin denied making such a statement . I credit Dworkin's
denial.
Employee Candelaira testified that 5 or 6 days after May 17, Dworkin said he was
not going to reinstate the strikers unless they gave up the Union . Dworkin denied
making the statement attributed to him and denied that he ever conditioned employ-
ment on lack of union membership . In the light of the credited testimony and the
entire record herein , I reject Dworkin 's denial.
DWORKIN ELECTROPLATERS 605
The three most senior pickets (Nazerio, Rios, and Santiago) were replaced on
May 24, 25, and 26.
By letter dated June 5 (received by Respondent on June 7, 1961) Candelaira,
Santiago, Nazerio, Rodriguez, Pagan, and Rios unconditionally requested reinstate-
ment. Respondent did not honor this request.
Rodriguez testified that after picketing for about 4 weeks (after the letter requesting
reinstatement) he told Dworkin he needed work and Dworkin said no because he
belonged to the Union. Rodriguez further testified that on several other occasions
he (Rodriguez) with other strikers asked for reinstatement and that on each occasion
Dworkin refused to reinstate them because they were in the Union. Dworkin denied
making the statements attributed to him by Rodriguez.
Santiago testified that after signing the request for reinstatement he called upon
Dworkin and asked for work and Dworkin refused to reinstate him because of the
Union and he (Dworkin) did not want any problem with the Union. Santiago
testified that on another occasion he (Santiago), Angelo Rios, and Amalio Nazerio
sought reinstatement and Dworkin told them they could have their jobs if they
severed their connections with the Union. Rios corroborated Santiago. Dworkin's
testimony on this issue is not clear. He denied making the statements attributed to
him but admits making some statement to the employees that as long as they were
tied up with the Union, he was, by law, not permitted to talk to them, only to the
union representatives. In any event, I credit the testimony of the employees
(Rodriguez, Rios, and Santiago) noted above.
Candelaira and Pagan were reinstated on June 14, 1961. The other four pickets
were reinstated between June 16 and 20, 1961, after assuring Dworkin they were
willing to give up the Union.
At the time Rios was offered reinstatement Dworkin told him he "did well forgetting
about the Union because if you had won, I would have moved to California."
Dworkin added, he could have closed the shop and worked for a relative out there.
Dworkin also informed Rios that if the Union were to win, he (Rios) would prob-
ably be made steward and he (Dworkin) would not like that. The foregoing findings
of fact are based upon the testimony of Rios. Dworkin denied making the state-
ments attributed to him by Rios.
With regard to the Union's pending bargaining request, it was not until June 9, 1961,
at a conference called by the Fourth Region of the Board in connection with the
pending representation petition, that Respondent (Dworkin and his attorney) met
with union representatives for the first time. There is conflicting testimony as to
what occurred at this meeting, but no useful purpose is apparent for detailing the
various versions of what occurred. It is clear from the entire record, however, that
the parties did discuss whether two of Respondent's nine employees should be excluded
from the unit and eligibility of strikers and replacements to vote in any election which
might be held. Accord on the first issue was not reached but was on the second.
There is a dispute as to whether Respondent raised an issue concerning the Union's
majority status. In the light of the entire record herein, I find that such an issue was
raised. There is also a dispute as to what was said about Respondent's conduct noted
above but a resolution of this issue does not appear necessary or desirable herein .4
The conference concluded without agreement and with a hearing in prospect. At the
conclusion of the conference arrangements were made for a meeting between Re-
spondent's attorney and the union attorney to study the Union's contract proposals.
Such a meeting was held on June 13, 1961.
At the meeting on June 13, the two attorneys discussed in detail the Union's
contract proposals and at the conclusion of the meeting, it was agreed that Respond-
ent's attorney would present the Union's proposal to Dworkin for his approval or
rejection. There is disputed testimony as to whether at this meeting Respondent's
attorney disputed the Union's majority claim but nevertheless agreed to talk about
contract terms subject to the Union's establishing its majority status. In the light
of the entire record herein, it appears likely such a position was taken by Respond-
ent's attorney and I so find
The parties next met on June 19 for a hearing then scheduled for that date in the
representation case. Prior to this date the Union had not been informed of Dwor-
kin's position concerning the Union's contract proposals. Immediately prior to the
scheduled hearing, some comments were made concerning the union contract pro-
posals but there is sharp conflict as to what was said. Nevertheless, it is clear that
regardless of precise language used, Respondent did not accept the Union's contract
4 Nevertheless, the testimony concerning this matter has been considered in making the
credibility resolutions made in this report
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposals and as a result thereof, the Union at the scheduled hearing withdrew the
representation petition and announced an intention to file charges alleging unfair
labor practices. The instant charge was filed on June 28.
On June 22, 1961, Candelaira and Getulio Salas Pagan were again laid off. New
employees, Hayman and Ratley, were retained. At their layoff Dworkin informed
Candelaira and Pagan that he believed they had brought the Union in and that the
new employees were being retained instead of them because they had helped out
during the strike.5 Candelaira was requested by Respondent to return to work on
August 15 or 17 and returned to work on August 21. Pagan was recalled on
August 7.
IV. UNIT
The parties herein agree that all production and maintenance employees of Re-
spondent employed at Respondent's Philadelphia, Pennsylvania, place of business,
exclusive of all supervisors as defined in Section 2(11) of the Act constitute a unit
appropriate for the purposes of collective bargaining. However, there is a dispute
as to whether two employees (Chase and Linden) are to be included in or excluded
from the unit. Since an issue has been raised which may be an obstacle to future
bargaining, their unit placement is determined herein, although the Union's majority
as of the date of the request to bargain is unaffected by their inclusion or exclusion.6
Chase is primarily a truckdriver who makes daily deliveries and pickups. When
not engaged at truckdriving he is a utility man doing whatever jobs that need to
be done.
Linden commenced employment with Respondent in August 1946 and has more
seniority than any other employee. He employs special technical knowledge with
respect to processing work. Respondent refers to Linden as a plater and to the other
employees as shop helpers. The shop helpers are not skilled or semiskilled workers.
When Respondent is out of the plant, which occurs daily, Linden is in charge of
Respondents' plant. Linden receives a much higher wage rate than any other
employee (60 cents higher). Other employees generally refer to Linden as the
foreman and he instructs and corrects other employees.
It is believed that Chase's and Linden's interests are not identifiable with those of
Respondent's other employees and that they should be excluded with the unit.
Conclusions
Respondent's interrogations of employees immediately upon receipt of the Union's
bargaining demand went beyond inquiries for the purpose of determining the
Union's majority status and were for the purpose of interfering with the employees'
union activities and were designed to dissipate the Union's majority status. That
such is the case is apparent from the statements made and from Respondent's conduct
thereafter.
Respondent's refusal to recognize the Union and insistence that it should first be
certified violated the Act since the Union represented a majority of the employees
in an appropriate unit at the time it requested bargaining and Respondent did not
have a good-faith doubt of its status. In the light of Respondent's conduct under-
mining the Union I cannot find that Respondent had a good-faith doubt of the Union's
majority status.
As noted above, I am of the opinion, and find, that the layoff of Candelaira and
Pagan on May 16 was because of lack of available work and not because of their
union activities. Nevertheless, the strike, which began the next day, was because of
Respondent's antiunion interrogations made earlier and because of Respondent's
failure to heed the Union's demand for bargaining. Furthermore, Respondent's
continued refusal to bargain and continued attempts to dissipate the Union's ma-
jority status prolonged the strike. Under these circumstances the strike was an
unfair labor practice strike and the strikers were unfair labor practice strikers en-
titled to immediate and full reinstatement upon their unconditional applications to
return to work. Nevertheless, they were denied reinstatement until after they
renounced the Union.
It is apparent from the credited evidence that Candelaira and Pagan were laid off
on June 22, 1961, because of their union activities.
5 Based upon the testimony of Candelaira and Pagan Dworkin denied that he told
them the new employees were being retained instead of then because they had been helpful
to the factory during the strike
°The propriety of making this determination is supported by Allegheny Pepsi-Cola
Bottling Company, 134 NLRB 388
MAGIC SLACKS, INC. 607
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of the Act, I recommend that Respondent to effectuate the policies of the Act cease
and desist therefrom and take the affirmative action herein specified.
CONCLUSIONS OF LAW
In summary, I find and conclude:
1. The evidence adduced in this proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2. United Retail and Wholesale Employees Union, Local 115, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
Independent , is a labor organization within the meaning of the Act.
3. The following employees of Respondent constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of the Act.
All production and maintenance employees of Respondent employed at Respond-
ent's Philadelphia, Pennsylvania , place of business exclusive of all supervisors as
defined in Section 2 (11) of the Act.
4. At all times since May 16, 1961 , the Union has been the exclusive representa-
tive of all the employees in the aforementioned unit for the purposes of collective
bargaining with respect to rates of pay, wages , hours of employment, and other
conditions of employment.
5. The evidence adduced establishes that Respondent violated Section 8(a)(1)
of the Act by interrogating employees and inducing them to bypass the Union.
6. The strike which began on May 17, 1961, was an unfair labor practice strike.
7. The strikers mentioned in the preceding paragraph made unconditional applica-
tion for reinstatement on June 7 and thereafter which Respondent failed and
refused to honor until after the strikers renounced the Union and Respondent thereby
engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of
the Act.
8. The evidence adduced establishes that on June 22, 1961, Respondent laid off
Jose Candelaira and Getulio Salas Pagan because of their union activities and thereby
violated Section 8 (a) (i) and (3) of the Act.
9. The evidence adduced establishes that Respondent refused to bargain in good
faith and thereby engaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
10. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Magic Slacks, Inc. and International Ladies' Garment Workers'
Union, AFL-CIO. Case No. 13-CA-4233. March 27, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other alleged unfair labor practices, and recommended that
those allegations of the complaint be dismissed. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report together with supporting briefs.
136 NLRB No. 56.