Garay & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1982

261 N.L.R.B. 490 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garay & Co., Inc. and Local 3128, Production and
Service Employees Union, United Brotherhood
of Carpenters & Joiners of America, AFL-CIO.
Case 2-CA-17302
April 29, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 19, 1981, Administrative Law Judge
Arthur A. Herman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge:
This case was heard before me on March 23, 24, and 25,
1981, at New York, New York. The charge was filed on
June 11, 1980,t and amended on June 30, by Local 3128,
Production and Service Employees Union, United Broth-
erood of Carpenters & Joiners of America, AFL-CIO,
herein called the Union. The complaint issued on August
8, alleging that Garay & Co., Inc., herein called Re-
spondent or Company, violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended.
More particularly, the complaint alleges that Respondent
violated the Act in the following manner: Section
Unless otherwise stated, all dates herein occurred in 1980.
261 NLRB No. 74
8(a)(1), by interrogation of, threats to, employees regard-
ing their union activities; Section 8(a)(3), by granting
wage increases to discourage employees from engaging
in union activities, by discriminatorily laying off employ-
ee Jean Thomas, 2 and by discharging employees Jeanine
Casale, John McGlyn, Donna Mitchell, Linda McLean,
Michele Parsons, and Raya Davidovich because of their
union activities and failing and refusing to reinstate them;
and Section 8(a)(5) by committing the above-described
violations and failing and refusing to recognize the
Union as the representative of Respondent's employees
following the Union's demand for recognition at a time
when the Union represented a majority of Respondent's
employees, thereby creating a coercive atmosphere
which has rendered the holding of a fair election impos-
sible.
Upon the entire record in this case, from my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation engaged in the
manufacture, sale, and distribution of belts at its plant lo-
cated in New York City. During the past year, Respond-
ent sold and shipped goods valued in excess of $50,000
directly to customers located outside the State of New
York. The complaint alleges, Respondent admits, and I
find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE APPROPRIATE UNIT
Respondent admits, and I find, that all of Respondent's
office clerical employees, employed by at its facilities at
33rd Street, and at 14 Street, New York, New York, ex-
clusive of all other employees and supervisors as defined
in the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section
9(b) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
As stated above, Respondent is engaged in the manu-
facture, sale, and distribution of belts. Prior to June 1980,
it was engaged also in the importation, sale, and distribu-
' The General Counsel presented no evidence to support this allega-
tion. Rather, on examination by Respondent, Thomas clearly stated that
after she approached Respondent and requested a week's vacation, Re-
spondent asked her to take it as a layoff in light of the Company's finan-
cial problems, and she agreed. Under the circumstances, the General
Counsel moved to withdraw the allegation, and added that it had no ob-
jection if I chose to dismiss it. Accordingly, I granted Respondent's
motion to dismiss this allegation.
490
GARAY & CO., INC
tion of handbags which it purchased from the Orient.
During the year 1979, and up to approximately June
1980, the Company occupied space in two buildings in
New York City. The 33rd Street facility contained a
showroom and office which housed most of the clerical
employees involved herein. On 14th Street the Company
occupied two floors, each of which measured 26,000
square feet. About one-fifth of one floor was used for the
manufacture of belts, and the balance was used for the
warehousing of handbags. The other floor was devoted
to the receipt of belt materials, and the manufacture,
storage, and shipment of belts. It also included the fac-
tory management offices, a few clerical employees, and
the design functions. In 1979, the Company processed
84,148 invoices with sales totaling $11,029,127.
Sometime in February or early March, Stephen Golub
was hired to be controller of the Company. He was in-
terviewed by a member of Respondent's board of direc-
tors, and was told that the Company was in financial
trouble. The former president and controller had been
dismissed, the Company was out of cash, and the records
were in a state of total confusion.3 On assuming his posi-
tion on March 17, Golub was immediately deluged with
telephone calls from creditors demanding payment of
past due debts. Within the next few weeks, Golub was
able to appraise the situation. He found out that the
Company had two computers, one which was not used
at all and another which was not operating correctly be-
cause it was improperly programmed; in addition, the
Company did not know its inventory position; there
were no summaries of what was being produced and
sold; the Company owed the bank about $500,000; cash
in the bank was virtually zero; accounts payable were
around $900,000; although the accounts receivable ledger
shown to Golub indicated S1 million due the Company,
the records were so confusing, it was very difficult to
determine just what the receivables were at that time;
and the handbag operation was in the process of being
discontinued.' In addition, belt sales were dropping.
However, Golub was advised by the sales force that
with the coming of the first market week in May, 5 sales
of belts would improve. This did not prove correct. The
day before the May market week commenced, a signifi-
cant portion of the Company's sales force left the Com-
pany, thereby leaving the Company unrepresented in a
I Golub was called to testify by the General Counsel, and the latter
was permitted to question the witness pursuant to Rule 611 (c) of the Fed-
eral Rules of Evidence. Inasmuch as no evidence was offered by the
General Counsel or the Charging Party's counsel to refute the factual
analysis presented by the witness, and since Golub impressed me as a
frank and honest witness with a great ability to relate succinctly the
events of 1980, 1 credit his testimony.
' According to Golub, the handbag operation was extremely unsuc-
cessful. It required a tremendous cash outlay. Shipments from the Orient
were made under letters of credit which were exercised when the hand-
bags arrived in the U.S. and automatically the bank drew a note payable
in 120 days. Thus, paying in advance for merchandise created a cash flow
problem. The Company therefore decided to discontinue the handbag op-
eration before Golub came on the scene, and the sale of the handbag in-
ventory continued until it was completely liquidated in June.
I It seems that the industry has two "market weeks" at which time
buyers come to the showrooms and place their orders for the coming
season. The first market week takes place during the first 2 weeks in
May, and the second market week is held during the first 2 weeks in
June.
large portion of the country. Still, the salesmen promised
an increase in sales during the June market week, but
this too did not materialize. Moreover, rumors started
that the Company was going out of business, so that
buyers did not place orders during market week for fear
that they would not get deliveries. The Company's
records show that for the second quarter of the year,
sales were down from $2,135,118 in 1979 to $840,537 in
1980, bookings were down from $4,439,516 in 1979 to
$903,515 in 1980, and the number of invoices processed
were down from 29,400 in 1979 to 2,922 in 1980.6
B. The Alleged Unfair Labor Practices
Faced with this condition, Golub testified that he had
to resort to various means to stem the tide of disaster,
and that it took him from April to June to accomplish it.
His first order of business was to schedule out accounts
payable, and then get involved in order processing. The
computer was used for whatever little help it could
offer. The idle computer was sold in April in order to
raise some cash. With the discontinuance of the handbag
operation, Golub realized that a consolidation of the
Company's two facilities would be more advantageous
both financially and for better coordination. And so, in
early May it was decided to close down 33d Street,
move the showroom to a better location on 5th Avenue,
and locate the clerical staff on 14th Street. Sometime
around June 15, Golub informed the clerical employees
about the impending move, and the actual move oc-
curred in the beginning of July. In addition, in June,
Golub entered into an arrangement with Dunn and Brad-
street whereby the latter would do the collection work
for the Company.
Concomitant with these various business moves was
the all important question of personnel. When Golub
began working for the Company in March, the Company
employed either 19 or 20 clerical employees;7 the 33d
Street office consisted of 2 accounts payable clerks, 2 ac-
counts receivable clerks, 3 credit and collection clerks
who logged in the orders and contacted customers for
payment,' 2 order processing clerks who coded the
orders for input into the computer, 3 keypunch operators
who fed the orders and shipments into the computer, I
payroll clerk, I data processing clerk who made sure the
right information went into the computer, I messenger,
and I receptionist; at 14th Street, the Company em-
ployed I purchasing clerk and I assistant and I file clerk
and I assistant in purchasing and inventory. Also, at 14th
Street, the Company employed approximately 80 produc-
tion and maintenance employees who were represented
' Testimony by several of the clerical employees confirmed Golub's
figures regarding the poor financial condition of the Company,
7 The parties stipulated to the names and titles of these individuals as
being employees of the Company from June 1 to June 27. (It. Exh. I.)
The General Counsel contends and Respondent denies that Alice Es-
teves, listed on the exhibit as "Accounts Payable, Payroll, insurance," is
the office manager, and therefore a supervisor of Respondent. Her duties
shall be discussed, infra
I One credit and collections clerk (Lipnick) was terminated by Golub
in April, and, about the same time, Golub hired O'Hagen, an accounts
payable clerk because accounts payable had been taken off the computer
and Golub needed someone with O'Hagen's ability to handle the manual
accounts payable functions.
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Local 40, International Ladies' Garment Workers'
Union. 9
On April 17, Golub discharged the office manager,
Phoebe Chu, and assumed the responsibility of supervis-
ing all of the office clerical employees. He testified that
he "had no one else on the staff who [he] was aware of
who could fulfill those duties, and one of the things [he]
hoped to learn by talking to and being with these people
a little bit more was to find out who the most valuable
members of [his] staff were." Golub further testified that
within minutes of his discharge of Chu, which occurred
in late afternoon, he saw other clerical employees ex-
tremely upset over the discharge and preparing to leave,
never to return. Golub held an impromptu meeting with
these employes and found out that they were discontent
on two counts: First, because of their fondness for Chu,
and secondly, they were upset with the way things were
going with the Company-the president and former con-
troller had been discharged; they felt very insecure about
the future of the Company; they had been given prom-
ises by the president, controller, and Chu that pay rates
would be increased, and now with Chu gone they doubt-
ed if they were going to get wage increases. Golub testi-
fied that he assured them that now he would get to
know them better and that as soon as possible he would
review the salary structure, and that the Company would
honor those promises to the extent that it could.'°
According to Golub, he worked with the clerical em-
ployees for about a month following Chu's discharge,
and became well aware of who was most competent and
what their skills were. Whereupon, on Saturday, May
24,1 after receiving notice from one of his showroom
personnel on May 23 that she was leaving the employ of
the Company 2 weeks later,'2 and despite the deteriorat-
ing financial position of the Company, Golub reviewed
the personnel records of all of the clerical employees, the
sales people and factory management, with a view to
seeing what kind of increases could be given with the
money saved by the individual leaving. In all, Golub re-
viewed 29 employees' personnel records and concluded,
on May 24, that he would give wage increases ranging
from $15 to $20 to each of 12 employees selected,' 3 by
dividing up the earnings of the person who was leav-
ing. " The announcement of these raises, and their effec-
tive date, occurred simultaneously on June 6 and coin-
cided with the last day of employment of the showroom
employee.
With this as background, we come now to the organi-
zational activities of the Union vis-a-vis the Company.
Jeanine Casale, a credit and collections clerk for the
Company, and a daughter of the president of the Union,
testified that she approached her father sometime in
April, and requested that he assist her in organizing the
By June, this number had dwindled to 55.
'I Two employees called to testify by the General Counsel, Jeanine
Casale and Donna Mitchell, confirm Golub's account of the meeting.
" Golub kept referring inadvertently to that Saturday as May 23. Inas-
much as I find no particular significance attached to the exact date, I am
correcting it accordingly to conform with the calendar.
"This employee, Marusy, was earning S200 per week.
" They were primarily office clerical employees.
" It is Golub's uncontroverted testimony that if the showroom em-
ployee had not left, no increases would have been given.
Company's office clerical employees. The record estab-
lishes that June 2 was the earliest date that any of the
Union's authorization cards were signed; that as of June
5, nine employees had signed cards for the Union; that
on June 9, one more card was signed, on June 26 an ad-
ditional card was signed, and on June 27, two more were
added. 15 As stated above in footnote 7, in dispute is the
supervisory status of Esteves. Esteves was employed on
a full-time basis sometime in 1978, doing accounts pay-
able and keeping records of insurance, disability, and ab-
senteeism for payroll purposes. After Chu was dis-
charged, Esteves' duties increased to the extent that she
now ordered supplies, kept attendance, trained other em-
ployees, and upon instruction from Golub, assigned work
to employees named by Golub. Esteves credibly testified,
without refutation, that she had none of the supervisory
indicia contained in Section 2(11) of the Act, and Casale,
on cross-examination, admitted that she stated in her affi-
davit to the Board agent, that Golub was her immediate
supervisor and he was the person who gave orders to the
office clerical employees. In find, therefore, that Esteves
did not possess the attributes of a supervisor under the
Act. Any authority she exercised over employees in di-
recting or assigning work had already been designated
by Golub and did not require the use of independent
judgment. I find, further, that by virtue of her skills, Es-
teves was a leadperson. Accordingly, I find that Esteves
was not a supervisor within the meaning of the Act, and
shall be included in the unit. Under the circumstances, I
find that the unit consisted of 20 employees, and that the
Union did not achieve majority status until June 26, the
day the 1 Ith employee signed a card. 16
Golub creditably testified that the first time he learned
of the Union's interest in the Company's employees was
on June 5 when he was told by Seversky, a company
vice president, that he had been approached that day by
a union representative who told him that the Union rep-
resented a majority of the office clerical employees and
requested recognition. Golub stated that he then contact-
ed the Company's labor counsel and advised him of the
Union's presence on the premises. Golub told his counsel
that he had planned to give raises to several of his em-
ployees the very next day, June 6; that he had promised
the employees in April to review the salary structure and
adjust it; that the plan had been formulated on May 24;
and that a written list existed since that date which con-
tained the names of the employees and the amounts that
they were to receive. Whereupon counsel advised
Golub, "Well, if you were planning to give them, then
you have got to give them. If you were not planning to
give them, then you can't go ahead and do it now, but
1s The employees signed in the following chronological order: On June
2-Jeanine Casale, Linda McLean, Rays Davidovich, Jean Hines
(Thomas), Patricia Lloyd, and Donna Mitchell; on June 3-Sofya Davi-
dovich and Michele Parsons; on June 4-Carmen Acevedo; on June 9-
John McGlyn, Jr; on June 26-Maxwell Kuetey; and on June 27-Mil-
dred Scantlebury and Marsha Poe. A question arose at the hearing as to
the admissibility of Sofya Davidovich's card. After close scrutiny of the
Fed. Rule Evid. 901(bX3), and the pertinent case law, I conclude that the
card is admissible in evidence and is being counted, as shown above.
'' The General Counsel added inaccurately when he contended, in his
brief, that 11 employees had signed authorization cards for the Union by
June 9. The correct figure is 10.
492
GARAY & CO., INC.
whatever you were planning to do, you have to continue
to do and you are not allowed to change your plans be-
cause a union is suddenly present on the scene."" And
so, on June 6, in the late afternoon, Golub called the em-
ployees into his office, one at a time, and told them the
increases they were to receive, effective immediately.i s
Golub stated that his selection of these employees for in-
creases was based on two criteria: The length of time
since the individual's previous raise, and the imposition
of additional duties on some of these employees. Golub
contended that he chose June 6 as the day to announce
the increases because he had decided on that day on
May 24 when he formulated the plan, the sales force had
advised him to expect a flood of orders from June
market week and therefore there would be much work
for the clerical employees, and with the showroom em-
ployee, Marusy, leaving on June 6, the money became
available for distribution among other employees.
On June 11, the Union filed a representation petition
with Region 2 of the Board seeking an election in a unit
of office clerical employees employed by the Company,
and on June 24 a conference was held at Region 2 to dis-
cuss the petition. In the interim, Esteves is alleged to
have interrogated John McGlyn regarding union activity
in the office. McGlyn, a computer operator, testified that
Esteves asked him if he had heard anything about the
employees trying to join a union, and when he replied
negatively, she told him that if the employees went
through with it, they could possibly lose their jobs or
put the Company out of business. Esteves categorically
denied having such a conversation with McGlyn.' 9 In
addition, testimony was elicited from Casale to the effect
that on June 13 and 20, the Company gave parties to the
employees at 4 o'clock in the office, and that at the first
party, Golub brought some cake in.20 That is the sum
"The General Counsel, in its brief, attempts to show the implausibility
of such an exchange, by citing J. J. Newberry Co v. N.LR.B., 645 F.2d
148 (2d Cir. 1981), in which the employer was advised by the very same
labor counsel as here, not to implement an unannounced but scheduled
wage increase in the face of a petition. The General Counsel should note
however that the Board decision in the Newberry case, which issued on
June 2, 1980 (just 3 days before counsel gave its advice in the instant
case), found that the Employer, by withholding the wage increase, had
violated the Act. Under the circumstances, such an exchange between
Golub and his counsel was entirely plausible. However, in any case, reli-
ance upon the advice of counsel has never been viewed by the Board as
a mitigating circumstance in assessing a violation under the Act. I merely
credit Golub with having the conversation.
" The following are the employees who received wage increases:
Margaret Baptiste and Jeanine Casale, S20 each; Sophia Davidovich,
Carmen Acevedo, Pauline Kaplewicz, Alice Lasher, Pat Lloyd, Linda
McLean, Donna Mitchell, Francis O'Hagen, Daisy Ringwater, and Jean
Thomas, $15 each.
'' This allegation and the recital of the facts pertaining thereto, no
doubt are predicated on the General Counsel's assumption that Esteves is
a supervisor and that, therefore, such interrogation and threats are viola-
tive of Sec. 8(aXl) of the Act. While I am inclined to disbelieve
McGlyn's testimony and credit Esteves in light of the total picture which
I shall discuss, infra, at this point, I shall dismiss the allegation merely on
the grounds of my previous finding that Esteves is not a company super-
visor, and therefore cannot bind the Company by the alleged incident.
' On cross-examination, Respondent's counsel asked Casale if she
knew that June 13 was Golub's anniversary. To this, Casale replied that
she did not attend the party.
total of the evidence regarding the two parties. 2' Also, as
stated previously, about mid-June, Golub advised the
employees of the impending move from 33d Street to
14th Street. The June 24 conference failed to result in a
consent election agreement, and so a hearing was set to
commence on June 30.22
Christine Kerber, the organizational director for Local
40, ILGWU, was called to testify by the General Coun-
sel. She stated that in June an anonymous phone call was
received in her office from a female who identified her-
self as an office clerical employee of the Company; that
the female said that "the carpenters were organizing or
trying to organize the office workers, but that since we
had a contract with the production workers, they were
interested to hear what kind of benefits that we had and
could we send somebody down to speak to them."
Whereupon Kerber assigned Jose Rivera and Pasquale
Fonseca to organize the Company's clerical employees.
Fonseca testified that he saw Rivera obtain signatures
from employees on ILGWU authorization cards. 23
Donna Mitchell, an employee, testified that she saw a
man fitting Rivera's description, in Golub's office on
June 26.
On Friday, June 27, the Company told its factory em-
ployees that it was shutting the plant down for 2 weeks,
effective immediately. Ninety percent of the factory em-
ployees were laid off and six office clerical employees
were terminated. Golub testified that this occurred as a
result of the poor June market week that the Company
experienced. The active accounts of the Company fell
from 3,000 to 700, and the closing down of the handbag
operation removed most of the small retailers from the
account ledger. Golub decided then to sell the second
computer because he felt that with 700 accounts the use
of a computer became unnecessary. Not having a com-
puter, the need for computer operators or keypunch op-
erators no longer existed and Golub determined that he
would eliminate the department. This necessitated the
discharge of the three keypunch operators: McGlyn,
McLean, and Raya Davidovich. McGlyn testified that he
had signed a card for the Union at a restaurant and given
the card to the president of the Union; that he had not
gotten an increase in wages on June 6; that Golub had
called him into his office on June 27 and discharged him
after telling him that he was getting rid of the computer
and he had no place to put McGlyn. Neither McLean
nor Davidovich was called to testify. Golub further testi-
fied as to the discharges of the three credit and collec-
tions clerks, Jeanine Casale, Michelle Parsons, and
Donna Mitchell. He stated that he had contracted out
the collection work to Dun and Broadstreet in June, and
there was, therefore, no further need for these employ-
ees. Mitchell testified that she, Casale, and Parsons were
called into Golub's office on June 27 and told that the
11 Inasmuch as the complaint does not allege these parties to be viola-
tive of the Act, I can only assume that the evidence was adduced to
show a pattern of something. But, of what?
2 It was at the June 24 conference that Golub learned for the first time
that Jeanine Casale was the daughter of the president of the Union.
23 Four such cards were introduced into evidence, three of which were
dated June 26, and one June 27. None of the signers had previously
signed cards for the Union.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company was suffering from great financial strain, and
that Golub saw the only way to keep it going would be
in letting the employees go. Casale stated that Golub
told them he was closing the computer system and he
was trying to cut the real estate in half by moving down
to 14th Street, and he fired the three employees.24
Analysis and Conclusions
The essential facts in this case are not in dispute. The
overwhelming and uncontroverted evidence establishes,
without a question of a doubt, that the Company was on
the verge of financial disaster when Golub was hired in
March 1980 to attempt to stem the tide of collapse. The
record reflects, without contradiction, that the Company
experienced a tremendous drop in sales, bookings, and
the number of invoices from 1979 to 1980. Golub was
faced with the monumental task of trying to turn the
business around so that it could survive, and it was a task
that could not be accomplished overnight. Golub's first
several weeks on the job were devoted to assessing the
situation. His first major personnel act was the discharge
of the office manager on April 17. When this brought re-
percussions from the office clerical employees, Golub
met with them, listened to their gripes, and promised, as
soon as possible, to fulfill prior promises that had been
made to the employees regarding wage increases. And,
on May 24, having now had a sufficient opportunity to
review personnel records and to personally oversee the
work of the office clerical employees, and armed with
the resignation of an employee to take place 2 weeks
hence, he compiled a list of 12 employees, selected to get
wage increases, among whom he would split the salary
of the departing employee. All of the above occurred
prior to any inkling on management's part that the Union
was attempting to organize the employees. In fact, the
evidence shows that the first authorization cards signed
by any employee was dated June 2. Although Jeanine
Casale testified that the Union began its campaign in
April, I find, in light of the fact that Casale is the daugh-
ter of the Union's president and was instrumental in
having the Union organize, and her card is dated June 2,
that the campaign did not start until June 2. However,
fortified with 9 cards, the Union made its demand on the
Company on June 5, and on June 6, as planned, Golub
announced the wage increases to the 12 employees.
The General Counsel and the Union's counsel argue
that this grant of a wage increase was the Company's re-
sponse to the Union's demand for recognition and, as
such, constituted a violation of the Act. Respondent
counters by saying that the granting of the increase was
merely the implementation of a prior decision that was
awaiting the proper time to occur. The General Counsel
relies totally on the timing of the announcement of the
increase. He offers not one shred of evidence to show
union animus on the part of Respondent, nor company
knowledge of who among the employees supported the
Union and were they the same who received the wage
increase. In fact, Golub creditably testified that he never
saw any of the authorization cards nor did he know
which of the employees had signed cards. All that the
"4 Parsons confirmed the testimony of Mitchell and Casale.
General Counsel does is surmise and conjecture over the
act of the Respondent. Yet, on cross-examination of the
employees who testified and who were present at the
April 17 meeting, these employees stated that Golub had
promised to review the wage structure and to give in-
creases accordingly. And further, the General Counsel
offers no evidence to refute Golub's testimony that the
decision to give the increases was arrived at on May 24
to be implemented when the money was available (2
weeks later). Rather, the General Counsel merely im-
pugns the integrity of Golub by doubting that such was
the case. It seems to me that the burden of proof lies
with the General Counsel to verify and pinpoint the evi-
dence necessary to sustain the allegation of a violation.
The mere timing of the act alleged is insufficient. I am
convinced that the action of the Company in granting
the increases, coming at a time when the Company was
attempting to "stay alive", was not an act to defeat the
organizational effort of the Union, but was the fulfillment
of a promise made previously to the employees whom
this Company needed at that time. I am firmly of the
belief that the action of the Company in implementing on
the wage inrease decision June 6, arrived at on May 24,
would have taken place even in the absence of the
Union's demand for recognition on June 5. 1 find there-
fore that the granting of the wage increase was not vio-
lative of the Act.
Subsequent to June 6, the Company's economic pic-
ture continued to look bleak, necessitating additional cut-
backs. Plans for the consolidation of the Company's op-
eration at 14th Street were proceeding apace, transfer of
the collection function was passed on to Dunn and
Broadstreet, and the sale of the second computer was
planned for July. Under the circumstances, Golub now
resorted to a reduction in staff. With the sale of the com-
puter, he no longer needed keypunch operators, and with
Dunn and Broadstreet handling collections, he no longer
needed collection clerks. And so, he decided to do away
with those two departments and discharge the employees
therein. This occurred on June 27, at the same time that
he laid off the factory employees for a 2-week period.
The General Counsel contends that the discharges of the
six office clerical employees was a direct result of the
Union's organizational activities. Respondent claims that
this was merely a continuation of an ongoing process to
keep the Company functioning. The General Counsel
again relies on the timing of the discharges which fol-
lowed closely the June 24 meeting at Region 2 where
Golub discovered for the first time the relationship of
Casale to the president of the Union. The General Coun-
sel, while acknowledging Respondent's severe financial
condition, questions either Respondent's business acumen
in discharging Casale, an employee who had previously
been given a raise, or wonders whether it was not done
because of her union activity, and applies similar reason-
ing to the other discharges. Yet, the Board has affirmed
Administrative Law Judge John C. Miller who stated in
Daniel Construction Company, a Division of Daniel Inter-
national Corporation, 236 NLRB 193, 197 (1978), "While
one may question whether the layoffs were premature in
view of the 2 weeks of work remaining, this falls within
494
GARAY & CO., INC.
the area of reasonable managerial judgment that I am not
prepared to second guess, absent clear evidence of dis-
criminatory motivation." That, too, applies to the instant
case. No where in the entire record does the evidence
reveal an antiunion motivation by Respondent. Except
for the alleged Esteves-McGlyn incident, which I have
disposed of, supra at fn. 19, to support the General Coun-
sel's theory of discrimination, there is a total failure on
the General Counsel's part to produce even a trace of
evidence of any union animus. Rather, Respondent was
knee-deep in financial problems, and resorted to various
means to accomplish its purpose, none of which I find
discriminatory. As the Board stated in Wright Line, Inc.,
a Division of Wright Line, Inc., 251 NLRB 1083 (1980):
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Even assuming, and I have my doubts, that the General
Counsel in the instant case, has made such a prima facie
showing, I believe that the Company has more than
amply demonstrated that its paramount concern was the
financial welfare of the Company and that the discharges
would have occurred in any event. To me, the evidence
presented by the General Counsel was too dependent
upon supposition and presumption to be probative.
Therefore, I conclude and find that Respondent has not
violated the Act by discharging employees Casale, Par-
sons, Mitchell, McGlyn, Davidovich, and McLean.
Based on the weight of the credible evidence, I find
and conclude that by discharging the above-named em-
ployees, by granting wage increases, and by withholding
recognition of the Union, Respondent did not engage in
violations of Section 8(a)(1), (3), and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1), (3), and (5) of the Act have not been
supported by the evidence.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10O(c) of the Act, I hereby issue the following
recommended:
ORDER 2s
The complaint herein be, and the same hereby is, dis-
missed in its entirety.
2" In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
495