Heat Timer Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1959

124 N.L.R.B. 1256 (N.L.R.B. 1959)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in, or induce or encourage the employees of Troy
Warehouse Corporation, Wilson and Company, Tobin Packing Company, Cen-
tral Warehouse Company, or the employees of any employer, other than K-C
Refrigeration Transport Company, Inc., to engage in, a strike or a concerted re-
fusal in the course of their employment, to use, manufacture, process, trans-
port, or otherwise handle or work on goods, materials, or commodities, or to
perform services, where an object thereof is to force or require any such em-
ployer or any other person to cease using , selling, handling, transporting, or
otherwise dealing in the products of, or to cease doing business with, K-C
Refrigeration Transport Company, Inc.
LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
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.
Heat Timer Corporation and International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Local 463. Case No.
2-CA-5719. October 19, 1959
DECISION AND ORDER
On May 28, 1959, Trial Examiner Thomas A. Ricci issued his In-
termediate Report in this case, finding that the Respondent had en-
gaged in and was engaging in unfair labor practices in violation of
Section 8 (a) (1), (3), and (5) of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. He also
found that the Respondent had not engaged in certain other violations
of Section 8 (a) (3) alleged in the complaint and recommended dis-
missal of these allegations.' Thereafter, the Respondent filed excep-
tions to the Intermediate Report with a supporting brief, requesting
oral argument thereon.'
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 [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner,' with the following additions and modifications.
' No exceptions were taken to the Trial Examiner's recommendation, which we adopt,
that the complaint be dismissed insofar as it alleges unlawful discrimination with respect
to Bernadetta Allen, Sol Feingold, and John Eppinger.
2 The request for oral argument is denied because the record, exceptions, and brief, in
our opinion, adequately present the issues and positions of the parties.
3 The Intermediate Report contains certain minor inaccuracies. However, these in-
accuracies do not affect the Trial Examiner's findings and conclusions , nor our con-
^currence therein.
124 NLRB No. 176.
HEAT TIMER CORPORATION 1257
1. The Respondent has excepted to unfair labor practice findings
of the Trial Examiner, which we have adopted, on the ground that he
erred in his credibility resolutions. However, it is well established
that the Board will not overrule a Trial Examiner's resolution as to
credibility unless a clear preponderance of all the relevant evidence
convinces the Board that such resolution was incorrect.' No such
conclusion is warranted in this case. We have, therefore, adopted the
Trial Examiner's credibility findings.
2. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (5) by refusing to recognize and treat with the
Union as the bargaining representative of its employees in an ap-
propriate unit on January 23,1958. As found by the Trial Examiner,,
this refusal to recognize the Union was not motivated by any bona
fide doubt of the Respondent as to the Union's majority status among
its employees. This is amply demonstrated by the Respondent's con-
duct beginning on the very next day when, as fully detailed in the
Intermediate Report, the Respondent embarked on a course of action,.
involving discriminatory treatment of employees in violation of Sec-
tion 8(a) (3) of the Act, designed to choke off the employees' union
resolve and thus thwart and undermine the Union. The Respondent's
resort to such tactics indicates to us that it entertained no genuine
doubt as to the majority status of the Union on January 23, 1958. In
the circumstances, the Respondent's refusal to recognize the Union
cannot be justified.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Heat Timer Cor-
poration, New York City, its officers, agents, successors, and assigns,,
shall:
1. Cease and desist from :
(a) Discharging, laying off, or otherwise discriminating against
employees because of their exercise of the right to self-organization or
to join labor organizations.
(b) Refusing to bargain collectively with International Union of
Electrical, Radio and Machine Workers, AFL-CIO, Local 463, as.
the exclusive bargaining representative of all employees of the Re-
spondent Company in the appropriate bargaining unit with respect to,
rates of pay, wages, hours of employment, and other terms and condi-
tions of employment.
4Standard Dry Wall Products , Inc., 91 NLRB 544 , enfd. 188 F. 2d 362 ( C.A. 3)
Baltimore Steam Packet Company, 120 NLRB 1521, 1524.
5 See Joy Silk Mills, Inc . v. N.L.R.B., 185 F. 2d 732 , 741 (C.A., D.C.), cert. denied:
341 U.S, 914.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening its employees with layoffs because of their union
activities, soliciting them to abandon the Union, and to present their
grievances for adjustment directly to the Respondent.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or mutual aid or protection, as guaranteed in Section 7 of the
Act, or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized 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 International Union
of Electrical, Radio and Machine Workers, AFL-CIO, Local 463, as
the exclusive representative of all employees in the appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Offer to the following named individuals immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges pre-
viously enjoyed, in the manner set forth in the section entitled "The
Remedy" in the Intermediate Report :
Della James Marquetta Brown
Annie McDaniels Julius Sellers
Carmela Giardino Velia Aguilo
Marie Giardino Ella Miller
Jeanette Lizardi
(c) Make whole the following-named employees for any loss of pay
they may have suffered by reason of the discrimination against them
in the manner set forth in the section entitled "The Remedy" in the
Intermediate Report :
Minnie LaRocca
Florence Williams
Muriel Brown
Della James
Annie McDaniels
Carmela Giardino
Marie Giardino
Harold Goldberg
Hippolito Aponte
Leo Vetere
Marquetta Brown
Julius Sellers
Velia Aguilo
Ella Miller
Jeanette Lizardi
HEAT TIMER CORPORATION 1259
•(d) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Post at its plant in New York City copies of the notice attached
hereto marked "Appendix." 6 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being
duly signed by an authorized representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Second Region in writing,
within 10 days from the date of the receipt of this Order, what steps
it has taken to comply herewith.
IT IS FURTIIER ORDERED that the complaint'herein.be, and it hereby is,
dismissed as to the allegations of unlawful discrimination with respect
to Bernadetta Allen, Sol Feingold, and John Eppinger.
U 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."
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 , we hereby notify our employees that :
WE WILL NOT discourage membership by any of our employees
in International Union of Electrical , Radio and Machine Work-
ers, AFL-CIO, Local 463, or in any other labor organization, by
discharging , laying off, or in any other manner , discriminating
against any employee in regard to his hire, tenure of employment,
or any other term or condition of employment , except as author-
ized by Section 8'(a) (3) of the National Labor Relations Act.
WE WILL NOT threaten our employees with layoffs because of
their union activities or solicit them to abandon their adherence
to the Union and to present their grievances for adjustment
directly to us.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form , join, or assist any labor organization , to join or
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist International Union of Electrical, Radio and Machine
Workers, AFL-CIO, Local 463, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,.
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the National
Labor Relations Act.
WE WILL, upon request, bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO, Lo-
cal 463, as the exclusive bargaining representative of all employees.
in the following bargaining unit with respect to rates of pay,.
wages, hours of employment, and other conditions of employment,
and if an understanding is reached embody such understanding in
a signed agreement. The appropriate unit is:
All production and maintenance employees in our Broad-
way, New York City, plant, excluding outside salesmen,
office clerical employees, technical employees, professional
employees, and all supervisors as defined in the Act.
WE WILL offer the following employees immediate and full
reinstatement to their former, or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges.
Della James Marquetta Brown
Annie McDaniels Julius Sellers
Carmela Giardino Velia Aguilo
Marie Giardino Ella Miller
Jeanette Lizardi
WE WILL make whole the following employees for any loss of
pay they may have suffered as a result of the discrimination
against them.
Minnie LaRocca Harold Goldberg
Florence Williams Hippolito Aponte
Muriel Brown Leo Vetere
Della James Marquette Brown
Annie McDaniels Julius Sellers
Carmela Giardino Velia Aguilo
Marie Giardino Ella Miller
Jeanette Lizardi
All of our employees are .free to become, remain, or refrain from
becoming or remaining, members of any labor organization, except
HEAT TIMER CORPORATION 1261
to the extent that this right may be affected by an agreement in con-
formity with Section 8 ( a) (3) of the National Labor Relations Act.
HEAT TIMER CORPORATION,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in New York City on various dates beginning on December 9, 1958,
and ending in February 19, 1959, on complaint of the General Counsel and answer
by Heat Timer Corporation, herein called the Respondent or the Company. The
issues litigated were whether the Respondent had violated Section 8(a)(1), (3),
and (5) of the Act.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Heat Timer Corporation is a corporation duly organized and existing under the
laws of the State of New York. It maintains and operates its principal office and
place of business in New York City, where it is engaged in the manufacture, sale,
distribution, and servicing of electronic heating controls, recording devices, valves,
and related products. During the past year, the Respondent manufactured, sold,
and distributed at its New York City plant products valued at in excess of $750,000,
of which products valued in excess of $50,000 were shipped from said plant in
interstate commerce directly to States of the United States other than the State of
New York. I find that at all times material herein the Respondent is and has been
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local
463, herein called the Union, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues in perspective
There has never been collective bargaining among the employees of the Respond-
ent's plant, which has been in existence for over 10 years. Self-organizational ac-
tivities, aimed at membership in IUE, Local 463, began in January 1958. Aware
of this activity, President Harry Zeitlin called a group of employees in his office and
discussed their union activities with them on January 22. The next day the business
agent of Local 463 claimed majority representation among the employees, and de-
manded recognition of the Respondent. The Respondent refused to recognize the
Union, questioned its majority status, and agreed to a representation election to be
conducted by the National Labor Relations Board. The next day the Respondent
".laid off" eight employees; on February 7 it "laid off" an additional group. The
Company also discharged one John Eppinger, on February 20, 1958. Contending
that the Respondent's conduct, starting on January 22, 1958, and continuing there-
after, including the discharge of the employees, made an uncoerced test of the
Union's representative status impossible, the Union withdrew its representation peti-
tion and in its place filed charges of unfair labor practices.
The complaint alleges that the layoffs or discharges of the employees named in
the complaint was motivated by a desire to discourage the employees' continued
adherence to the Union; that the refusal to recognize the Union on request was an
act of bad faith, to win time to undermine the Union's standing; and that a number
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of statements made by the Respondent's president to employees coerced and restrained'
them in the free exercise of their right to self-organization-all this in violation,
respectively, of Section 8(a)(3), (5), and (1) of the Act.
In defense, the Respondent contends that all the layoffs or discharges were occa-
sioned by economic necessity, that it questioned the Union's majority claim in good
faith-a privilege allowed by statute to any employer, and that the record evidence
does not affirmatively establish the expression of any threats or unlawful statements
to any employees. It also contends that even if its refusal to bargain -should appear
a calculated strategy, no finding of a violation of Section 8(a)(5) can be made be-
cause it is impossible to delineate any appropriate bargaining unit on this record, and
because, even assuming a bargaining unit determination, the Union never in fact
represented a majority in any unit.
B. The principal events
The evidence can best be appreciated with an understanding of the physical prop-
erties of the Respondent's plant and the type of work that is carried on there. In
January 1958 the Company occupied two floors in a building in New York City,
where it developed, designed, and produced various types of heat control devices..
These include what are called heat timer units, valves, smoke alarm controls, and,
so forth. Most of these products are manufactured by repetitive operation in great
numbers; a not insubstantial quantity of the products are specially designed recording
instruments or totalizers made on special orders to meet the particular requirements
of specific customers. In many instances the engineers working for the Company
conceive, design, and produce the very article sold.
The bulk of the employees are production operators having very little skill; they
work on assembly lines, putting together the final product from component parts,
adding wire, doing soldering, and testing the end product in great numbers. Their
limited skill is such that they are regularly shifted from one operation to another
to meet changing requirements. Most of the production employees work on the
fifth floor, under Ramon Aponte, their supervisor. Some of the production work
is also performed on the fourth floor, sometimes as a form of assistance to machine
shop or engineering employees who are doing special production jobs, and some-
times as repair or testing of the main flow of products.
In addition there is a machine shop-often referred to in the record as the engi-
neering department. Here there are highly skilled workmen, including technicians
or draftsmen and engineers. In their work they use many of the usual machines
found in a machine or tool shop-such as lathes, drill presses, and saws. Here new
or special products are conceived, developed, designed, and even produced. Much
of this work is on a nonrepetitive basis. These employees also are engaged in devel-
oping improvements of an engineering type in the design of those of the Company's
products which are sold in considerable numbers to the bulk of the customers. In
immediate charge of the machine shop and these engineers is Leighton, who acts both
as chief engineer and overall plant manager.
Also on the fourth floor there is a small shipping department where, in January
1958, two employees worked. They performed the usual shipping duties and much
of their time was devoted to stockroom work.
A fourth and last segment of the employee group constitutes the office, mostly
situated on the fourth floor. Here Fass is the head bookkeeper and Josephson is
the office manager. Pomerance is generally in charge of personnel matters; he also
functions as an assistant to Leighton and as general purchasing agent.
Many of the witnesses spoke of various departments, indicating their impression
that the large bulk of production employees might be in turn subdivided. Thus, they
referred to the assembly department at times, then again to the assemble and wiring
department, or the testing department or the testing and repair department. The
totality of the evidence shows clearly that there is no definable departmental delinea-
tion within the large group of production employees. Testing seems to be a kind
of work that most production employees can and often do. Repair work seems to
be somewhat more skilled than routine production; there is a group of employees
who, during the winter months, are devoted largely to repairing products which
have been sold and are in the hands of customers. At times they spend much of
their working hours away from the plant making trouble calls to repair such products.
They may also bring them back to the shop to repair if necessary. But these so-
called repair employees also do production or testing work in the plant when the
need for outside repair work ebbs. In short, the record does not establish the
sometimes asserted fact that there are subdepartments other than the four group-
ings described above.
HEAT TIMER CORPORATION 1263
Concerning the main pertinent events-what was said and what was done during
the critical time-there is no substantial dispute between the parties. Much of this
very extended record resulted-from bickering disagreement over precisely what
words were used in, and very detailed minor aspects of, important conversations.
Although there would appear to be serious disagreement among the witnesses, in
almost all instances the substance of the testimony of each group, or certain admis-
sions in- the testimony, reduce the apparent conflict to matters of insubstantial
importance.
All of the union membership cards were obtained during the month of January
before the 23d. The record as a whole shows that Hippolito Aponte, together with
an employee named Vetere, were the principal actors in organizing the employees,
distributing union leaflets, and gathering membership cards. Caputo, the union
business -agent, prepared and distributed leaflets almost every week for several
months starting the morning of January 24. Hippolito assisted him in the distri-
bution for the first six or seven times. He testified without contradiction that
Zeitlin and Leighton saw him distribute the leaflets in front of the building.
On Wednesday, January 22, at the noon lunch break, Ramon Aponte, in charge
of the bulk of the unskilled production employees, called a meeting of all the em-
ployees on the floor of the production area. Eleven witnesses testified concerning
what he said; their recollections varied slightly but the import of their testimony is
quite clear. According to Ramon, President Zeitlin told him he wanted to learn
whether the people wanted a union-"If they have to say anything about it, to come
down to his office. .. Ramon testified he told this to the assembled employees.
The employees recalled his words in various phrases. Hippolito Aponte, called Polo
on the record, quoted his brother as having said, "Zeitlin wanted to know whether
the people wanted the union or not, and if they did they would go down stairs and
talk it over with him." According to other witnesses: Rafa-Ramon said "before
we do anything, some of us should go down and see Mr. Zeitlin and listen to what
he had to say"; McDaniels-"he told us the boss had heard about the Union. He
told him to tell us that first the work was going to get slow, and eventually some
people were going to get laid off, to make a decision one way or the other as to
what we were going to do concerning the union problem. "; C. Giardino-
Ramon said "it could be the boss' privilege to lay us off"; D. James-"He said
that they [the employees] should form a committee to go down and talk to Mr.
Zeitlin." Ramon also told the employees that they could do as they pleased with
respect to choosing or not choosing a union.
As a witness, Zeitlin denied having told Ramon to suggest a committee. Accord-
ing to his testimony he told Ramon: "If someone wants to come down and talk to
me, I will be glad to see them in my office . " "to get the people that wanted to
talk to me to come to my office." His earlier affidavit, received in evidence, reads:
"I told him [Aponte] to have the people select someone from each department to
come to my office."
In the light of Ramon's testimony and of Zeitlin's virtual agreement with the
testimony of the employees, I find that, pursuant to Zeitlin's instructions, Ramon
Aponte told the assembled employees that Zeitlin wished to know where they stood
concerning the Union, that they were to form a committee to discuss the matter with
Zeitlin, and that the committee was to go to the office. Having in mind the con-
versation that ensued shortly later when Zeitlin spoke to the employees in his
office, I also credit the uncontradicted testimony of McDaniels and C. Giardino
that Aponte also said Zeitlin might lay them off.
As told by the supervisor, a group of eight or nine employees together with
Ramon then proceeded from the upstairs meeting to Zeitlin's office downstairs.
Again there are variations in the testimony of the witnesses as to the language used,
but no real disagreement on the substance of the conversation. The meeting opened
with Zeitlin raising the subject of the Union and asking why the employees had
started this "thing" without first coming to him. The principal reason voiced by
the employees was a desire for raises. In turn, according to Ramon, Zeitlin said,
"If they have complaints, to come to him, don't go around the place spreading com-
plaints . . . because he was the main who can solve problems in the shop."
Florence Williams testified that Zeitlin said "he was planning to give raises to the
people . and that he just hadn't gotten around to it, but it was all planned, and
that he had no idea we had a grievance of raises and other things."
While on the subject of raises, Zeitlin raised the possibility of layoffs; he spoke
of business being slow and raises not warranted. He explained his thoughts respect-
ing possible layoffs in terms of the relationship between unions, or union contracts,
and layoffs. According to Florence Williams, Zeitlin "said that ordinarily, as things
were without a union, that we could be switched from one department of work to
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other, that wherein if we had a union we could not be changed from one depart-
ment to the other. If in one department there isn't any work, then he automatically
under union contract would have to let us go home." Carmona corroborated Wil-
liams.'
Zeitlin went on to voice his regret that he might be compelled to abandon his past
practice and to lay off people, instead of rearranging their work and keeping them
on steadily. Ramon : . he was afraid . . . to have some layoffs . . . he also
said that he was doing that, if he had to do it, against his will. It was against his
will to do that, because we had the people doing something else before." Accord-
ing to Williams: "He did say that our type of work is more seasonable and there
have been times that the employees worked that there could have been a layoff, and
yet we worked in the summertime to make stock, and that if we had a union there
would be times that we would have to be laid off and there would be nothing
that he could do about it."
With all this, as Ramon and Krosky testified, Zeitlin also told the employees they
were free to have a union if they wished.
Zeitlin's testimony is fairly in accord with almost all of the foregoing quotations.
He said he told the employees that "if they felt they had any grievance . . . they
could select their own spokesmen and come down individually or in a group to talk
to me," and "I told my employees that in the past our relationship had been one
where I had sole discretion of what was done and what was not done, what was
to be done and what was not to be done. If they had a union as their bargaining
agent, there would be a union contract; we would have certain terms and conditions
embodied in that contract. I would live up to them and they would have to live
up to them. That would be the way we would operate from that time on." At the
hearing, Zeitlin explained that he had believed that the mere existence of a union
in the plant would, with nothing more, have limited his freedom to act as in the
past. According to his affidavit, he "suggested that they select a committee of eight
employees to sit down with me once a month to discuss their grievances."
I have no reason to discredit the testimony of Ramon and the other employees
as to the conversation that took place at this meeting. I therefore find that it pro-
ceeded as they recalled at the hearing.
On the morning of Thursday, January 23, Caputo, business representative of the
Union, called on Zeitlin, said he represented an overwhelming majority of the em-
ployees, and requested that he sign a recognition agreement in favor of the Union.
In his pocket Caputo carried the applications for membership signed by employees.
Asked to establish his identity and his authority to speak on behalf of any em-
ployees, Caputo suggested that Hippolito Aponte and Vetere be called in; the two
employees were brought to the office by Leighton, the plant manager. They answered
"Yes" when Zeitlin asked: Does this fellow represent you? Are you fellows signed
up with him?" Zeitlin then said he would recognize the Union if Caputo could
persuade him that in fact the employees had signed authorization cards, and that the
signatures were authentic and uncoerced. Caputo took the position that he would
not reveal the identity of the employees until Zeitlin had first signed the recognition
agreement. With Zeitlin insisting he would not "sign a blank check," Caputo pro-
posed a Board proceeding and a Government controlled secret election. He ex-
plained the procedure, Zeitlin agreed to it, and the Union filed a petition for an elec-
tion in the Regional Office the next day.
On Friday, January 24, the Respondent laid off eight employees. These persons
had no advance notice of any imminent discharge or layoff; they first learned of the
action when they received their pay money at the end of work that day. In like
fashion, on February 7, 1958, the Respondent laid off an additional group of em-
ployees.
The Respondent and the Union met again on February 20, 1958, in the office of
Board Field Examiner Knowlton, who scheduled a conference to explore the possi-
I Carmona testified as follows respecting Zeitlin's statements :
He said that he has never given anybody a layoff inside the plant, though it might
have been very slow. He has seen many people just sitting idle. He didn't say
anything because he had pleasure in knowing that people take a full pay every year
home and they don't have to worry about if they have to be working next month or so.
With a union inside, even ho could, by the law, if things are getting slow or any-
thing like that, lay off people, if necessary, and that never happened before, that the
conditions that existed in other places the people weren't sure exactly how much at
the end of the year they might have. They might have a higher pay, or something
like that, but they might be laid off next week. In his place in all the years he
operated his place nobody had to worry about it.
HEAT TIMER CORPORATION 1265
bilities of a consent election and the mechanics for holding it. Zeitlan was accom-
panied by his lawyer, Mr. Rubin. Caputo was accompanied by Mr. Lewis, also an
attorney. Polo and Vetere were invited to the conference by the Union and arrived
about a half hour after the others; they therefore participated in the conversation to
a more limited extent.
The conference was not a long one. Knowlton started by inquiring whether the
unit set out in the petition was generally agreeable. Without anyone raising any
questions concerning the composition of the unit, it quickly developed that the
Company was not disposed to agree to an immediate election. Zeitlin and Rubin
said that more layoffs were imminent and that there would not be a representative
complement of employees until sometime in July or August. The Union disputed
this contention and argued that the employees laid off during the past weeks should
be deemed eligible to vote, and that therefore there was an adequate group of em-
ployees to warrant a quick election.
The testimony relating to what was said at this conference extends over an in-
ordinate length of this extended record. It consists very largely of belabored and
repetitious examination of Zeitlin, Caputo, and Attorney Lewis. Attorney Rubin
and Knowlton did not testify. Vetere died before the hearing. Polo, whose testi-
mony in its entirety was clearly evasive and showed unmistakable reluctance, added
nothing to enlighten the record; he only admitted-indirectly-that he recalled
having been present. In consequence of the prolonged and largely tangential ex-
aminations, it is virtually impossible to reconstruct the precise conversations as they
occurred. Certain portions, however-those which bear a true pertinence to the
issues of this case-are unmistakable.
Between the date of Caputo's call on Zeitlin and the conference in Knowlton's
office, Polo and Vetere had been temporarily laid off several times, assertedly for
lack of work. They were alternated 2 days at a time. Polo also testified that on
one occasion he had been laid off on the very day he had distributed union litera-
ture in front of the building. Also, Vetere, who for months had been accorded
the privilege of arriving 30 minutes late and leaving 30 minutes earlier without
loss of pay because of a heart condition, found himself being docked for such time
away from work. Both Caputo and Lewis testified that in Knowlton's office Zeitlin
became angry at Polo and Vetere for having joined the Union. They quoted Zeitlin
as saying that he had paid their salaries for 8 and 5 months during their illnesses, and
therefore felt that they had been disloyal, and that he had received a "stab in the
back." Vetere asked why he had suddenly been docked for tardiness, and, as
Lewis testified, Zeitlin replied: "You can't expect a continuation of these lenient
practices if you have the Union."
In the course of the conversation, there was talk of the layoffs that had taken
place. Zeitlin said they were caused by a seasonal slump. Lewis testified that
when Vetere spoke up to say this had not been the Company's past practice, Zeitlin
"replied that that was before the Union was in the picture, that you cannot have
security and the Union both, and that whereas he had provided for full employment
for people in the past, he was not prepared to do so under the present circum-
stances." 2 As Caputo recalled, Zeitlin said: "My workers have been receiving
52 weeks of employment every year. If they want a Union, I won't do that any-
more, because they can't have it two ways. If I have no work, I won't find work
for them to do, as I have in the past."
Zeitlin related that about 6 months before he had told Vetere the latter could
arrive 30 minutes late and leave 30 minutes earlier without losing pay because of
his health. He also said that in Knowlton's office he reminded both Polo and Vetere
of past favors-including long periods of illness for which they had been paid, and
expressed surprise "that they, of all people, . . . should have been the ones that were
in this organization." At one point in his testimony he said he had never withdrawn
the late arrival privilege from Vetere; the next day he said the privilege had expired
6 months before. He finally admitted telling Vetere at the conference that "he
couldn't be an exception to a union contract. If there were a union contract, every-
one would be the same." Concerning the discussion of the general layoff, Zeitlin
also admitted he told Lewis and the others that in the past it had been the Com-
2 Despite extended cross-examination that consumed an entire day of the hearine, Lewis
did not deviate from his testimony in any substantial respect. He quoted Zeitlin a second
time as : "Yes, sir, it is true that I would not have laid these people off if the Union had
not been in the picture. In the past, I have always provided 52 weeks of employment for
my employees, regardless of slack periods, and I would have done so this year also had it
not been for the Union being in the picture."
525543-60--vol. 124-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's practice to provide 52 weeks' employment to is employees. He denied having
said the advent of the Union had caused a change, or that the employees could not
have both security and a union.
I credit the testimony of Caputo and Lewis and find that at this conference Zeitlin
made clear to the two employees and to the union representatives that Polo and
Vetere were subjected to systematic layoffs, Vetere was deprived of his former privi-
leges, and the employees laid off in January and February suffered a loss of employ-
ment, all because of the employees' activities in attempting to establish a union
in the plant. Most of the testimony so credited is in substance, directly or indirectly,
supported by Zeitlin's own admissions. However, to the extent that there is a con-
flict in testimony as to what transpired at this conference, or with respect to any
other evidentiary issue presented in this record, I do not credit the testimony of
Zeitlin.
Much of Zeitlin's testimony is devoted to altering the phrasing of things he is
reported to have said, but which in substance he admits was spoken by him. And
among them are some which clearly reveal an underlying purpose of changing his
management policy adversely to the employees in consequence of union activities.
Where the substance is admitted, attempts at shadings suggest deliberate evasion.
In some respects, as, for example, the story of Vetere's privilege having or not
having been taken away, he changed his testimony. He called the employees into his
office on January 22 because, as he testified in December, he had learned of their
union activities. At the resumed hearing 2 months later, he said he knew nothing
about it before Caputo's visit on the 24th. Of great significance to me in this matter
of credibility is the further fact that Zeitlin insisted he could not identify the very
exhibits-regularly kept by his Company-which he himself produced for the General
Counsel pursuant to subpena. After much hesitation, all he would say about the
company payrolls was, "They look very familiar, sir." About the original time-
cards, "they look like it." He refused to identify his own timecard.
Further, he was asked whether certain words on a document were in his hand-
writing and replied he was not able to recognize his own handwriting-it looks like
my type of scratching. He even added he could not be positive about the
signature on his own checks. And, finally, on two occasions in the hearing room-
once while a handwriting expert was testifying and once while he was in the witness
chair-Zeitlin refused to make a sample of his handwriting at the General Counsel's
request, despite the Trial Examiner's direction. On all these facts, on careful consid-
eration of the whole record, and on the basis of Mr. Zeitlin's entire demeanor on the
stand, I am unable to credit his testimony.
In attacking Caputo's credibility, Respondent's counsel brought out the fact that
on about April 11, 1958, Caputo drafted and distributed a union leaflet in which
he misrepresented the Respondent's position respecting the pending charges and
petition. The leaflet, expressly quoting Board Field Examiner Lurie, stated that the
Respondent had offered to recall the laid-off employees as needed and to concede
their eligibility to vote in an immediate election. A letter from Lurie, written 4
days later and sent to all parties, denied he had given any such information to Caputo
and said that the leaflet was false in this respect. In an attempt to justify his leaflet,
Caputo went on to testify that in a later telephone conversation with Lurie, the
latter had belittled his own letter on the ground that he had only written it to placate
Zeitlin and to cover himself. Counsel for Respondent then requested and received
a subpoena ad testificandurn for Field Examiner Lurie, the General Counsel refused
permission for him to testify, and the Trial Examiner granted a motion to revoke
the subpena. (See Section 102.95 of Board's Rules and Regulations, as amended.)
The General Counsel's refusal to permit Lurie to testify denied to the Respondent
any opportunity to inquire further into the truth or falsity of Caputo's testimony
about his telephone conversation with the field examiner. For that reason, I have ex-
cluded from my consideration of this case all of the evidence relating to that tele-
phone conversation. On this matter of the April 11 leaflet I treat the record as show-
ing only that Caputo distributed a leaflet which misrepresented the Company's posi-
tion, and that a letter from the field examiner proves the fact. On the entire record,
however, I am not satisfied that the single incident of misrepresentation in the course
of a union organizational campaign suffices to destroy Caputo's reliability as to those
matters which constituted the substance of his testimony. A certain amount of
exaggeration, and perhaps even misrepresentation in pep-talk pamphlets distributed
by union organizers are almost to be expected and hardly reflect inherent dishonesty.
More important, Caputo's testimony in this case conflicts with that of the Respond-
ent's witnesses only in minor part; in its substance it is not disputed.
HEAT TIMER CORPORATION
Evidence as to Layoffs or Discharge
1267
The complaint sets out the names of eight employees allegedly laid off on January
24 and seven others laid off on February 7. In addition it names Hippolito Aponte
and Leo Vetere as having been deprived of work or earnings after January 24. Only
some of these persons testified at the hearing, and, at the close of the case, the
Respondent moved for dismissal as to certain of the named individuals on the
ground that there was no proof of any layoffs, permanent or otherwise, as to them.
Of the January 24 group, Florence Williams, Marquetta Brown, C. Giardino, and
M. Giardino testified that they were sent home. Their timecards show that each
of them worked on January 24, but not on January 27, 28, or 29. Each timecard
spans a workweek starting with Thursday (in this instance January 23) and ending
the following Wednesday (here January 29). The timecards of Muriel Brown, Velia
Aguilo, Ella Miller, and Julius Sellers, also named in the complaint as laid off on
January 24, show that they, too, ceased work on January 24. Moreover, Zeitlin
said as a witness that Muriel Brown, Velia Aguilo, and Julius Sellers had not been
recalled. He added that Ella Miller had been recalled but did not respond. I find
this evidence sufficient to prove that all eight of these employees were laid off on
January 24.
All of the seven employees named in the complaint as having been laid off on
February 7 appear on the January 24 payroll. Of these McDaniels, LaRocca, and
D. James testified that they were in fact laid off. No payrolls or timecards for weeks.
subsequent to January 24 were placed in evidence. Zeitlin corroborated this testi-
mony by saying that McDaniels and James were not recalled and that LaRocca lost
only a few days' work. I find, as alleged in the complaint, that McDaniels, LaRocca,
and James were laid off on February 7, 1958.
Lizardi and Goldberg, also allegedly laid off on February 7, did not testify.
Pomerance, the personnel manager, testified he had "laid off" Lizardi, and Zeitlin
said he had not recalled either Lizardi or Goldberg. His comment regarding Gold-
berg, as was the case also with respect to the other employees, came in response
to his attorney's question (had the employees been recalled?) after the latter had
called Zeitlin's attention to the specific complaint allegation regarding these em-
ployees. Considering the context in which Zeitlin was asked, and in view of the
necessary implication in the phrase "he was not recalled" (had Goldberg quit he
could not be recalled), I find that Lizardi and Goldberg also were laid off on
February 7.
The last two employees named in the February 7 allegation of the complaint are
Bernadette Allen and Sol Feingold. They, too, did not appear at the hearing.
The only reference as to them is Zeitlin's statement, when asked whether they had
been recalled, that neither of them had been laid off, but that instead they had quit
to accept other employment elsewhere. As there is no evidence showing that Allen
and Feingold were laid off at all, I shall dismiss the complaint as to them.
C. The appropriate unit
The Union claimed majority representation and demanded recognition of Zeitlin
on January 23, 1958, a Thursday, when Caputo called on Zeitlin. Pursuant to sub-
pena, the Respondent produced a number of its payroll lists, including the list of
named employees for the workweek ending January 29. This document, received
in evidence, contains 59 names. Eight employees who were laid off on January
24 do not appear on that list. The record therefore establishes that, during the
workweek of January 23, when the demand and a refusal occurred, 67 persons
worked for the Respondent.
The recognition agreement which Caputo asked Zeitlin to sign described the unit
sought as "production and maintenance employees exclusive of clerical employees
and supervisors." The representation petition which Local 463 filed the next day
also describes the unit as "all production and maintenance employees, excluding office
clerical, guards and supervisors." It does not appear that the parties at any time
thereafter agreed upon any bargaining unit, or that the Union at any time proposed
any variation from the standard production and maintenance group.
At the close of the hearing, the General Counsel specified which employees he
thought should be included or excluded. Except for one or two stipulations clearly
falling within the statutory supervisory definition, the Respondent took no position
whatever as to what should constitute either the bargaining unit or an appropriate
bargaining unit in this case, the proper classification of any employees, or inclusion
or exclusion of a single employee with regard to any possible unit arrangement.
No job descriptions were put in evidence and most of the factual information about
what skills or training employees possess and what their duties are, was elicited from
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of management whose attitude was clearly to offer as little informa-
tion as possible.
Of the 67 names to be considered, there is a number which clearly on the record
are to be excluded as managerial or supervisory employees. Harry Zeitlin, the presi-
dent, Edward Zeitlin, his brother and vice president, Leighton, the plant manager,
Pomerance, the personnel manager, purchasing agent, and assistant to Leighton,
Fass, the head bookkeeper, Ramon Aponte, the supervisor over the bulk of the pro-
duction employees, and Josephson, the office manager, are clearly supervisory em-
ployees within the meaning of the Act and therefore not to be counted in the pro-
duction and maintenance unit. Four employees are clearly office clericals, who
work in the office doing desk work. Lliteras, Gewirtz, Zuta, and Dailey are therefore
excluded as office clericals.
Pearlman was variously described by different witnesses. Zeitlin testified that
Pearlman does art work, "assists me with decisions on advertising," works on the
printing press, "he does various jobs around, and sometimes even with production
if there is nothing to do in his department." Pomerance, the personnel manager,
said that Pearlman assists the regular printing press operator at times; Fass, the office
manager, said unequivocally that Pearlman has a desk in the office and prepares
advertising setup most of the time. He added that Pearlman is "in charge of ad-
vertising." On these facts I find that Pearlman is essentially an office employee,
whose interests are not in common with the production and maintenance group. I
shall therefore exclude Pearlman from the bargaining unit.
Gitlow is a clerk; Zeitlin said that he "helped in inventory-assembly-unpacking."
Fass, the office manager, said that Gitlow is "more of an office worker." I find that
Gitlow is primarily an office employee and therefore also excluded.
All the record shows concerning Micelli is Zeitlin's statement: "He is our outside
salesman." I shall exclude him.3
Robert Zeitlin, the president's son, appears on the critical payroll. In January
1958, he was a student at Boston University in Boston. Fass, the office manager,
referred to him as an outside salesman; President Zeitlin said that his son made
repairs for the Company in the Boston area. Fass added that he sometimes sends
Robert's paycheck to him by mail and sometimes delivers the cash to the boy's
father in New York. I am satisfied that Robert Zeitlin does not have sufficient in-
terest in the regular production and maintenance unit in this plant and shall therefore
not count him.
Excluding the employees discussed above, the total number remaining to be
considered on the January 29 payroll is reduced to 52 persons. The General
Counsel urged the further exclusion of 5 employees variously described in the record
as working in the "engineering department," or the machine shop, or the research
development activities of the Company. Nankovich, a draftsman, "works on a
drawing board-makes sketches." Goan, called a technician by Zeitlin, "works from
blueprints"; does development work and produces special equipment, according to
Leighton. He does not have a college degree, but is a student. Herman was called
an engineer by one witness, a machinist in the factory by Zeitlin. He has an engi-
neering degree. Holby is a graduate engineer who makes model pilots. Nesslinger
was called a foreman in the machine shop by Zeitlin; described as a setup man by
Leighton, "works with his hands and his head." He does not have a degree.
Pressed to give more particular information concerning the details of the work
performed by these employees, Leighton, being the chief engineer, started by
describing the work of Goan. He said that Goan makes special controls, does
development work, does production work on all special equipment. A considerable
amount of the Company's industrial business is dedicated to special products where
a manufacturer has a certain particular problem that is not general to all plants. He
(Goan) designs it and constructs it; he makes drawing and develops and actually
constructs it. Leighton then said that Herman, who has an engineering degree, works
like Goan: "He designs, he develops and he builds." Leighton also likened Holby
to Goan with respect to work performed. A final general description given by
Leighton of this group is: "Some of them have engineering ability. When we hire a
man, he must have not only academic skill. He must have manual skill. He must be
able to construct and put things together and do his own development work as an
individual entity."
The General Counsel urged exclusion of the foregoing group as professional em-
ployees, or as technical employees? The record as a whole does establish that the
3 D ependable Parts, Tvc.. 112 NLRB. 581.
4 The transcript at page 1946 incorrectly quotes the General Counsel as having re-
quested inclusion of technical employees. It is hereby corrected accordingly.
HEAT TIMER CORPORATION 1269
work of these men is not standardized, calls for much independent judgment, does
not include repetitive work, and requires high skill and considerable training. The
fact that they design and develop their own products, working from schematic draw-
ings which they themselves prepare, shows clearly that theirs is not a production
type of work essentially but rather a responsibility requiring a high degree of intelli-
gence and independent judgment. In contrast to the general wage scale of the pro-
duction employees, from about $40 to about $60 weekly, these men are paid much
more. Nankovich makes $66 weekly; Herman $160, Goan $122, Holby $175,
and Nesslinger $150. I find it unnecessary to decide whether any of this group are
professional employees; it is clear and I find that all of them are at least technical
employees within the Board's definition of the term.5 Accordingly, they are not to
be counted in the appropriate bargaining unit.
As stated above, the Respondent made no specific contention concerning inclusion
or exclusion of any individual. I infer, however, from the nature of the evidence
elicited by the Respondent's counsel during the trial, that he intended to raise a
question respecting the possible supervisory status of Murley. Murley worked in
the shipping department with Manegold. Zeitlin said Murley is "in charge of the
shipping department," and that he is over from three to six employees. Manegold
said that occasionally there will be another person doing shipping work. Murley was
sure there had never been six in the shipping room and that "once in a great while"
there were as many -as three, three being the highest there ever were. Murley also
testified the employees must obey him, that he instructs those who work with him
pursuant to orders he receives from his superiors, and that if any employee in the
shipping room wants time off, he goes to Zeitlin for permission, and not to Murley.
At the start of his testimony, Murley called himself the boss and said he had laid off
half a dozen employees for incompetence. On further questioning, he explained that
by "laying off" people, he meant that Zeitlin, or his brother, the vice president,
decided whether or not certain employees were laid off, and that it was the Zeitlins
who did the laying off. He concluded by saying he was not the supervisor-"I am
just there to show them what to do."
I deem the foregoing evidence insufficient to establish that Murley is a super-
visory employee. In the light of his total testimony, I find the suggestion that he
effectively recommends discharges totally unpersuasive. It appears in the record as
strictly a nodding agreement with two out-and-out leading questions by Respondent's
counsel 6 His authority and responsibility appear limited instead to routine handling
of instructions determined by others. I shall therefore treat Murley as included in
the production and maintenance bargaining unit.
At the close of the hearing the General Counsel also requested exclusion of Arbus,
Dinolfo, Phillips, Herman, Kerekes, and Goland as supervisory employees.
Throughout the extended record there are many instances where employee witnesses
referred to some of these persons as "my foreman," "my supervisor." Leighton, also,
in his testimony referred to Dinolfo, Phillips, Stuger, and Goland as working fore-
men. It is also quite clear, however, that all of these employees are the more
skilled and older production workers who, primarily because of their higher skill
and seniority, do a certain amount of directing of other employees. Despite certain
loose language in the testimony indicating that some of them may recommend trans-
fer of employees for incompetence, the record as a whole shows definitely that what
this means is that if an unskilled worker cannot do a particular job, the matter
is called to the attention of one of the true supervisors and the employee transferred
to another operation which he can do. There is other language in the testimony
indicating that the employees in question are not true supervisors. Thus Goland "is
his own group," Arbus: "he being the oldest, they come to him for information-
where the parts are," Kerkes "works by himself," Arbus produces products himself.
6Westinghouse Air Brake Company (Air Brake Division) and Undustrial Products
Division), 121 NLRB C136; Convair, a Division of General Dynamics Corporation (Fort
Worth), 120 NLRB 322; Westinghouse Air Brake Company, Union Switch 4 Signal
Division. 119 NLRB .1393. See, also, Pollock Paper Corporation (Waterproof-Ohio
Division), 115 NLRB 231.
Hurley testified :
Q. In other words, you only had the power to recommend their discharges?
A. That's right.
s s s s s s s
Q. So that you in the past recommended to the different Mr. Zei-tlins that certain
people were incompetent, as a result of which they were fired?
A. Yes.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the totality of the evidence it does not appear that any one of these employees
possesses and exercises the authority of a true supervisor within the meaning of the
Act. I shall therefore count all of them in the bargaining unit.
Exclusion of the 20 employees listed above , reduces the total number of employees
properly falling within the production and maintenance unit to 47 as of January
23, 1958.
Accordingly , on the entire record, I find that all production and maintenance
employees at the Broadway , New York City , plant of the Respondent , excluding
outside salesmen , office clerical employees, technical employees , professional em-
ployees, and all supervisors as defined in the Act , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act.
D. The Union 's majority status
Thirty applications for membership in the Union were received in evidence. All
but one bear signatures appearing to be the names of persons listed on the Company's
payroll of January 29.' Eighteen employees appeared as witnesses and personally
identified their signatures on these cards , each of which is dated before January 23,
1958. Their testimony was unequivocal and suffices to establish those 18 cards
as valid designations of the Union for representation purposes in this proceed-
ing.8 There was also received in evidence the original timecards of all the employees
who worked that week, as well as all the timecards for all employees for the other
4 workweeks ending in the month of January 1958. Each of these cards , admittedly
kept in the course of business , also bears at the bottom a signature appearing to be
the name of the employee whose card it is. To prove the authenticity of the signa-
tures on the remaining 11 union application cards , the General Counsel relies in part
on a comparison with the signatures on the timecards.
As stated above, part of the Respondent's defense is that the record in its entirety
does not show affirmatively that a majority of the employees had authorized the
Union to represent them. It does not affirmatively assert either that the signatures
on the application cards are not genuine , or that what appears to be the employees'
signatures on the timecards are not what they purport to be. It rests entirely on the
contention that the General Counsel has not satisfied the affirmative burden of proof
resting upon him to establish employee authorization of the Union by the cards in
question.
Head Bookkeeper Fass testified that he is in charge of the payroll , and that his
long-standing method for distributing the cash is to walk through the plant with the
pay envelopes and the timecards . He or his assistant leaves the appropriate timecard
and envelope at the desk of each employee and then returns to pick up the timecards.
If an employee is absent he will deliver the pay envelope to another employee who
either gives him a signed note from the absentee or signs for her. Asked whether
the system requires employees to sign the cards, he said flatly: "They have to sign."
He then equivocated by adding they do not necessarily sign in "front of me," and
he does not "look over their shoulders" to see each one sign. He concluded: "If
there is something signed, it is good enough for me." Both Zeitlin and Leighton also
said they believed the employees were required to sign.
This testimony , plus the fact the employees are paid in cash , the cards are regular
company records , and they bear what on their face appears to be the signature of
the employees , establishes, and I find, that the timecards in evidence in each instance
bear the signatures of the employees.
7 The 30th card is in the name of Carmen Ruiz. There is no such person listed on the
payroll covering the workweek starting January 23, 1958 , the day the demand for
recognition was made. Nor do the timecards for that week include one in her name.
She was employed during the prior weeks a nd her timecard for the workweek ending
Wednesday , January 22, bears the notation "terminated ." As she does not appear to have
been an employee on January 23, I shall not count her card in determining the Union's
strength on the critical date.
8 Of these 18, Rafa said that she did not really mean to authorize the Union, but
intended to vote against it at any election that might take place later. As she reads
English, testimony as to her hidden intent does not invalidate her card . See, Kelly A.
Scott, 93 NLRB 654. Another of the 18, LaRocca, said that after signing the card, she
left it in her tool box, and did not know who took it . She added : " I don't remember
what I did with it-if I gave it to someone ." LaRocca's card was 1 of the group of 30
which funneled primarily through IIippolito Aponte and Leo Vetere, to Union Agent
Caputo , who received them all from Aponte and placed them in evidence . In these cir-
cumstances , I do not consider LaRocca 's equivocal testimony sufficient to discredit the
card, which she signed , as an authorization of the Union.
HEAT TIMER CORPORATION 1271
Mrs. Hanna F. Zulner, a handwriting expert whose qualifications were not disputed
by the Respondent, testified, after examination of the documents, that the application
cards of five employees-Julius Biles, Marquetta A. Brown, Michael Catenaccio,
Jeanette Lizardi, and Julius Sellers-were signed by the same persons who signed
the timecards bearing the same names. She stated that she was unable to state
definitely whether or not the signatures reading Ella Miller, Mary Taylor, and Leo
Vetere on both sets of cards matched.
In the total circumstances of this case, and in the light of all the record evidence,
I am satisfied and I find that the cards of Julius Biles, Marquetta Brown, Michael
Catenaccio, Jeanette Lizardi, and Julius Sellers are valid designations of the Union
and should be counted in judging the Union's majority status on January 23, 1958.
I reach the same conclusion as to the cards of Ella Miller, Mary Taylor, Leo Vetere,
Bernadette Allen, and Velia Aguilo. Like the rest of the cards, these five are also
dated the month of January 1958; in the same single group they were gathered by
the few employees active with Hippolito Aponte during the short period of organiza-
tional activities in the Respondent's plant, and delivered by Aponte to Union Business
Agent Caputo. There was nothing in the entire record to indicate that they are not
genuine, and comparison of the signatures on the five application cards with those
appearing on the corresponding timecards very strongly suggests that the signatures
in question are those they purport to be.9 In reaching this conclusion, I have con-
sidered Mrs. Zulner's inability to state categorically without consideration of all the
other pertinent facts in the case, that three of the signatures match precisely. My
ultimate conclusion rests on the totality of the record, including a very careful study
of the several signatures of each of these employees on their timecards and those
on the union applications.10
The 29th application card is signed in the name of John Eppinger. He was a
witness but was not asked to identify his signature. Comparison of the writing on
his card with the signature appearing on his timecards and on the back of his final
paycheck shows conclusively that he did not himself sign the union application card
bearing his name. Absent any evidence showing that he otherwise authorized his
signature, I shall not count the Eppinger card.
Accordingly I find that on January 23, 1958, when Caputo on behalf of the Union
demanded recognition of Zeitlin for the Union and was refused, the Union repre-
sented 28 employees included in the appropriate bargaining unit. As the total
number who comprised the unit at that time was 47, I find that the Union on that day
and at all times pertinent thereafter represented a majority of the employees in the
appropriate bargaining unit.
E. Analysis and conclusion
1. Unlawful discrimination
The salient facts point very persuasively to a causal relationship between the
widespread signing of union application cards by the production employees and the
precipitate mass discharges. Before January 22, the Respondent had given no indi-
cation whatever to any of the employees that a reduction in force of any kind was
imminent, or that the Company had been considering such action. The first mention
of discharges came from Zeitlin himself at the very moment he inquired of the
employees their reason for trying to deal collectively with him; it was in response to
their explanation of their purpose in joining Local 463. Practically in the same
breath in which he referred to a possible decline of business as a cause for dis-
charge, he told them clearly they would suffer economic disadvantages in direct con-
sequence of their union activities. They knew, as he then retold them, that in the
past he had so arranged production schedules as to avoid any layoffs. Most pointedly,
he reminded them that there had never been temporary layoffs, that employees had
been assured of continued work, and had been shifted about the plant from assign-
ment to assignment, and then he warned them directly that he would do differently
in the future if there should be a union. His expression of regret only served to
emphasize to them all the more the immediate connection between persistence in
union adherence and danger to employment.
When a number of employees were laid off 2 days later, M. Giardino was told she
would be recalled. Her sister was given the "change of panels" as the reason for
her layoff, a good implication she, too, would be out of work only for ,a time. On
February 7, D. James and McDaniels were sent home and also assured they would
0 See Combined Metal Mtg. Corp., 123 NLRB 895.
101. Taitel and Son, 119 NLRB 910.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be recalled . LaRocca was off only 2 days and called back . All of this was precisely
what Zeitlin had predicted and what had never happened before. But there was no
union in the picture ; Zeitlin was in no way obligated to go contrary to his professed
desire to continue business as usual. Rather than appearing as a matter of regret
to him, the broadside layoff innovation could only have looked to the employees as
the Respondent 's reaction to their desire for future unionization of the plant. Quite
apart from the fact that a union contract would not necessarily have drawn rigid
barriers around small groups of these production employees-particularly in view
of the unskilled character of their work-Zeitlin jumped the gun on an imaginary
justification for a direct economic discrimination which, it would appear, could
only have been intended as a means of dissuading the employees from their resolve
and weakening their confidence in the Union 's ability to protect their interests. That
the action necessarily had this effect cannot be doubted , and that such end result
was its underlying motive arises as a very persuasive inference.
The timing of the events , of course, only adds greater persuasion to )a conclusion
of unlawful motivation . Zeitlin tells the employees-through a committee he him-
self suggested should confer with him-that this could result from their union
activities ; the next day Caputo, on behalf of the employees , asks representation for
the Union-with Hippolito and Vetere present to vouch for his authority to speak;
and on the day immediately following the group discharges start. Vetere , without
warning , finds himself docked for late arrival , despite Zeitlin 's past assurance of the
privilege , which had never been withdrawn ; both Vetere and Hippolitio , among the
better qualified employees , are soon subjected to temporary layoffs, not once, but as
a repetitive practice-2 days on and 2 days off . Accused of having done all this
unfairly , Zeitlin practically admits the connection between the layoffs and the union
activity when he says the employees could not have both security and the Union and
that lenient practices could not be expected with a union in the picture.
In disputing the inference of unlawful motivation that emerges from these facts,
the Respondent advances two separate broad and cumulative economic affirmative
justifications for the layoffs . It first contends generally that the business recession
of the times and 'a serious decline in its business necessitated this reduction in the
staff. It also asserts that the mass discharges were a direct result of an engineering
change in its major product , which brought about a curtailment of operations in large
part precisely in the month of January 1958. As a third, sort of moreover asser-
tion, the Respondent als. contends that substantial discharges are a normal annual
experience of the Company in its regular operations.
The basic props for these affirmative assertions of economic necessity are broad
self-serving generalities expressed by Zeitlin in all embracing language and para-
phrases of repetitive leading questions put by his counsel. Speaking of the decline in
the Respondent 's business as a major contributing factor, he testified that "in the
latter part of 1957 . . I began to see a dropping off of our rising curve ," "orders
weren't coming in," "our dollar volume of current sales was down." In proof of
this conclusory statement Zeitlin offered only a single set of figures . These show
that the number of Model E heat timer units sold during the month of December
1957 and January , February, March, April, and May, 1958, were . substantially below
the comparable monthly periods of prior years. What the Company 's experience was
during the month of November 1957, when, according to Zeitlin 's and the plant
manager's unequivocal testimony, it was definitely decided to release a substantial
number of people, was not shown. It also appears that dollar-wise the Model E prod-
uct constitutes 75 to 80 percent of the Respondent 's business.
Using only the prepared summary which Zeitlin brought to the hearing as an aid
for his direct testimony , the General Counsel brought out on cross-examination
that for the full year 1957 dollar sales of the Model E totaled $327, 000 is compared
to $295 ,000 for 1956 ; that dollar sales of valves , a different product, also advanced
from $61 ,000 for 1956 to $67 ,000 for 1957; and that monthly dollar sales of smoke
alarms, still another of the Company's products , rose continuously from January
1956 to April 1958. These figures, although far from conclusive , strongly indicate
that the very limited and selective data introduced by the Respondent does not
reveal a reliable picture of the Company 's changing economic position during the
period when , according to its president , the outlook was so bleak as to require the
layoff of about one-third of its production personnel . The only other concrete
facts available about the Respondent 's general business situation during 1957 is that
in the beginning of that year it borrowed $45,000 to produce inventory and in
September bought a new machine on which it borrowed $30,000 more.
Explaining the connection between an engineering change in the internal structure
of the Model E and the discharges , Zeitlin testified that the plans to make the
changes were started 2 years earlier. He added that continued studies and experi-
I
HEAT TIMER CORPORATION 1273
ments led to a pilot model of the new design in the summer of 1957 and that in
November of that year he and Leighton , who was also the chief engineer , decided
to stop ordering parts for the old model, "to cut down the staff," "we decided to shut
down the line and wait for new parts ." The new models did not go into produc-
tion until July or August 1958. Pomerance , who also acted as purchasing agent,
corroborated Zeitlin by saying that the layoffs were due in part to the changeover
and that he stopped buying parts for the old model in November 1957.
Both Zeitlin and Leighton testified that in November or December , when they
decided to reduce operations , they discussed the matter with Ramon Aponte, in
charge of the production employees and best informed about their relative value to
the Company . They asked him to prepare a written list of employees for layoff, to
select those who in his opinion were less desirable , and to arrange their names in
the order of his preference. They also said that Aponte did this, and delivered such
a list to them; that they discussed it with Pomerance , the personnel man, to whom
they gave the list; and that the three in concert then juggled the names and made the
final determination as to whom to select . The list was not produced at the hearing.
Aponte, who was a witness in December 1958, 2 months before Zeitlin and
Leighton testified on this subject, said flatly that he was not consulted at all about
the layoffs, that he had nothing to do with the selection , that he first learned of them
when the employees opened their pay envelopes on January 24, that he did not know
then-or even at the hearing-why the employees were laid off, and that on January
24, 1958, "everybody was working."
Pomerance started by saying that the discharges were due to decline in business
orders generally and in particular to the changeover in the Model E product. He
proceeded to say that Leighton asked him to report on the work competence and
personal habits of individual employees , that he relied on his personal knowledge of
these matters because he was in a position to know, that he inquired of Aponte con-
cerning performance records, and finally reported back to Leighton . He made no
mention of any list of selected persons having been prepared by Aponte . He then
shifted his story and insisted he had not asked Aponte for any recommendations
about layoffs , and that he had not even discussed with the supervisor the relative
value of individuals working on this occasion.
Of these four witnesses , the only one who impressed me as reliable was Ramon
Aponte. When he knew the answers to questions put to him, he replied directly and
unhesitatingly ; when he did not , he clearly said so without equivocation . His knowl-
edge of internal management affairs was scanty and he made no effort to pretend
otherwise . I credit his testimony on this subject fully. Pomerance and Leighton,
on the other hand, very obviously held back when asked purely objective questions
concerning their duties and details about the operation of the plant . They evaded
direct answers and on a number of occasions sparred over the meaning of a word
in their effort to offer as little information as possible . Zeitlin I have already dis-
credited , and the conflict in the testimony among the very members of his manage-
ment team hardly serves to rehabilitate him in my opinion. On the entire record-
and it contains many more repetitive rephrasings of the testimony highlighted above-
I find that Ramon Aponte was not consulted respecting the discharges , and that the
wholesale layoffs took him as well as the employees by complete surprise . I do not
credit the testimony of the three company representatives about having surveyed the
employees to base a selection upon relative merit. " The fact that the unannounced
layoffs, made 2 months after a definite decision was purportedly reached, came ex-
actly the day after the employees tried to obtain recognition of their collective-
bargaining representative , was, according to the Respondent , the sheerist coincidence.
The third of the cumulative assertions of economic explanations is that multiple
discharges are a normal aspect of the Company 's method of operations . Zeitlin
said that almost each year there are layoffs in January and mid -February-"We drop
people every year." He specified that each year at about this time from 4 to 10
people are released. Leighton corroborated by saying that at the start of each year
"we have a general layoff . . . 6, 8 or 10 people are let go, it happens every year."
n Despite its contention that the poorer employees were selected for layoff, the Re-
spondent called no witnesses to establish the assertion with fact or figures ; it produced
no company records of attendance , tardiness , seniority , or work performance . The only
proof it offered , if such it can be called , consisted of cross -examination of employees called
by the General Counsel , in which the experience of individuals was brought out. But
there is nothing definitive permitting a comparison , in these respects , between employees
laid off and retained . On the record, therefore , Ramon Aponte 's conclusory testimony, a
year after the event , that the employees who had been recalled were good, and those not
recalled poor , is of no real value.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He added it was company policy to give 52 weeks' work each year to the persons
who were retained. Leighton fortified his testimony by adding that the Company's
records were available and would show the layoffs each year-"usually done at one
particular time." Despite these witnesses' assurances for the witness stand that the
Company's record would support, with dates and figures, the general assertions, no
records of the Company were produced in evidence. The total number of employees
who have worked for this Company each year for the past few years totaled only
little more than 100. Production of discharge records therefore would not have
been a burdensome problem. A great number of employees testified and were ques-
tioned as to various aspects of the Company's operations and their experience in
employment. There is no indication in their stories about periodic reductions in
force in January of each year or of any January "day of reckoning," as Zeitlin put it.
In. these circumstances, the flat and therefore unsupported statements of Zeitlin and
Leighton appear as no more than rewording or rephrasings of the principal conten-
tion that the discharges were economically motivated rather than made for an un-
lawful purpose.
Seemingly in conflict with the Respondent's claim now that January is the
annual reduction-in-force time, the entire record shows quite clearly that the slow
season of the year for this Company is the summer. The Company's products are
very largely heat control and heat recording devices; the business therefore goes
into high gear in October, with the advent of cold weather. New products are sold
and installed in the ensuing months, and business reaches a peak in December each
year. Both the Respondent's representatives, as well as a number of employees,
testified that during the summer months employees have been kept busy producing
stock for the coming winter season. Indeed, Zeitlin explained that at that time
he shifted employees from one operation to another, making every effort to keep
them on the payroll in order that his employees might not suffer temporary loss
of work.
On the basis of all that appears in the record-the patent inconsistencies in the
testimony of the management personnel, their failure to produce supporting material
from the Company's records, the deviations that appear to have occurred in January
1958 from the Company's past practices, and the demeanor of Zeitlin, Leighton,
and Pomerance on the witness stand, including their evasive, reluctant, and almost
truculent responses to the simplest questions put to them-I do not credit their
testimony to the effect that the Company's business in general was in great decline,
that the Company in the past in fact discharged a number of employees each year
in the month of January, or that they discussed and planned the mass layoffs a month
or two before the event as a problem necessitated by the change in the structural
design of the Model E. I am satisfied on the entire record, and I find, that the
mass discharges, including the temporary layoff of Vetere and Polo, were not
caused by economic requirements of the Company.
There are other minor details of evidence lending support to the essential allega-
tion that these mass layoffs resulted from the union activities rather than economic
pressures. If, for economic reasons, the poorer employees were sent home, why
were Polo and Vetere, admittedly among the more desirable workmen, deprived of
work at all? How reconcile the conflicting testimony of Pomerance, who said Polo
and Vetere were working on photo electric controls, which were in decline, and of
Leighton who insisted these two were not working on those products? Why, about
a month after January 23, did Zeitlin say to Manegold, according to the latter's
perfectly credible testimony, that Zeitlin might have to lay him off "on account
of the union," and that if there were no union, he might find other work to be done
as he had in the past? At the February 20 conference Zeitlin and Attorney Rubin
drew a black picture of more layoffs in the offing, and said a drastic reduction was
imminent, with maybe only six employees left in a month. Instead there were
more employees in March Ihan in February, and the complement continued to in-
crease successively in the following months. Could it be that the temporary inter-
ruption in production of the Model E product-not resumed until July or August-
was no more than a regular incident (albeit probably an unusually substantial
change in a line product) of the Company's operation? Development and marketing
of new products was shown to be the very basis upon which this Company has
grown over the years, and despite successive improvement changes in both the
quality and type of its products, as occurred in the Model E, the total complement of
workers has grown consistently from year to year.
In view of all the foregoing, and on the basis of all the records, I conclude and
find that the Respondent laid off eight employees on January 24, 1958, and five
more on February 7, intermittently laid off for short periods Hippolito Aponte and
Leo Vetere, and reduced Vetere's pay for days worked, all of the purpose of discour-
HEAT TIMER CORPORATION 1275
aging the union activities generally of its employees, and that such action con-
stituted violations of Section 8 (a) (1) and (3) of the Act. And it matters not that,
apart from Aponte and Vetere, the Respondent may not have known the identity of
particular employees who favored the Union or had signed membership application
cards. Nor, indeed, that one or more of the employees subjected to the discrimina-
tion in employment were not shown to have participated in the union activity. The
Respondent resorted to the reduction-in-force to thwart the Union; thus its entire
act was illegally motivated. It is immaterial therefore that in carrying it out
"some of the victims of the Respondent's discrimination may not have been union
members or that the Respondent had no knowledge of their union membership or
activities." 12 Zeitlin knew that the employees had been joining up with the Union.
He called them to discuss this matter with him, and a large number explained their
actions to him. It can be no defense to the massive retaliation to show that the
Respondent did not in fact know the names of the employees who had signed up.13
The overall unlawful purpose, and the broad, embracing action was designed to
bring about, and necessarily caused, discouragement from self-organization in all
the employees.
It may also well be that, had there not been organizational activities in January
1958, and had the Respondent not engaged in the unlawful conduct found, some
employees might nevertheless have been released because of a lull in production
occasioned by the change of design in the model E. Whether any employee would
have been released at all, or which of them might have been chosen, I, for one, am
unable to discern on this record. The Respondent made no effort to show affirma-
tively what the situation would otherwise have been, or what would otherwise have
occurred. As it was the Respondent's own unlawful conduct which created this
situation, it behooves it to disentangle the unlawful acts from what undefined por-
tion of its conduct might still have been lawful.14
2. The discharge of John Eppinger
John Eppinger worked for the Respondent as a porter-messenger from 1946 until
the month of February 1958, when he was discharged, alledgedly to discourage
union activities. There is no conflict in the testimony as to the facts relating to this
aspect of the case.
Eppinger is very obviously a sick man who suffers greatly from arthritis. He testi-
fied, all without contradiction, that he fell sick on Friday, February 7, with
pneumonia. The following Monday he telephoned the Respondent, reported him-
self ill, and said he would be out for 2 weeks pursuant to a doctor's advice. The
office replied to him by saying "ok." He returned to work on Monday, February 24,
when Pomerance, the personnel manager, told him he had been laid off because the
place was untidy and it had been necessary to obtain some one else in his place.
Eppinger accepted this statement without objection. He went on to say that because
of his severe arthritic condition he had often been absent and often late; indeed, he
was late more often than he had been on time for work. He added that Pomerance
had spoken to him about his lateness on a number of occasions, and had told him
that he must "check up" on this lateness business.
When Eppinger returned on the 24th, Pomerance told him a discharge notice
with a terminal check had been sent to him; Eppinger denied to Pomerance that he
had received such a notice. He continued to testify that he thereupon proceeded to
the post office where he picked up a registered letter from the Company in which he
found a terminal check and then cashed it. Eppinger was obviously confused as
to dates. As appears from his signed registered mail receipt he received the letter
on February 17, and cashed the check by February 19.
Zeitlin testified that Eppinger had been warned repeatedly about his absences
and lateness, and was discharged because of such a record and because, when he
was absent for a 2-week period, the Company had no choice but to replace him
ls.4m.erican Bottling Company, 99 NLRB 345, 352, enfd. 205 F. 2d 421 (C.A. 5), cert.
denied, 346 U.S. 921. See, also, Wood Mane factoring Company, 95 NLRB 633: "Non-
union victims of an unlawful shutdown are entitled to the same relief as union members."
is Capital City Candy Company, 71 NLRB 447. "Inasmuch as the Respondent's objective
was violative of the Act, it is immaterial that, in carrying it out, sonic of the victims
of the Respondent's discrimination may not have been union members. Discrimination in
regard to the hire or tenure of employment of a group of employees, including nonunion
members of a group, tends to discourage union membership and activities no less than
discrimination against union members alone."
14 N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862 (C.A. 2), cert. denied 304 U.S. 585.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-with a more regular employee. In fact , when Eppinger returned on February 24
be saw a new employee in the shop doing his work.
The only evidence of union activities by Eppinger is his statement that he signed
a union card in February before his discharge . There is nothing to indicate that
the Respondent was aware of this. Eppinger 's own testimony shows that the
Respondent had ample justification for discharging him when it did and in itself in-
dicates quite persuasively that the Respondent in fact discharged him because of
his excessive absenteeism and tardiness . There is nothing in the entire record tieing
the discharge of this man with the group layoffs described above or with any of the
other events pertinent to the other allegations of unlawful conduct set out in the
complaint . I deem the evidence insufficient to support the complaint assertion of
unlawful discharge with respect to Eppinger , and shall therefore recommend dis-
missal of the complaint as to him.
3. The refusal to bargain
When Zeitlin refused, on January 23 , to recognize the Union as the representative
of his employees , he stated his reason to be a doubt in his mind as to whether a
majority of the employees had authorized the Union to deal for them. As matters
stood at that moment , with the Union 's business agent refusing to permit him to
examine the signatures unless assured of cooperation Zeitlin's was not an unreason-
able position . He also expressed a concern over the possibility that even if Caputo's
cards did bear the employees ' signatures , they might not have been freely signed
but instead obtained by intimidation . In any event , Zeitlin agreed to Caputo's pro-
posal that all doubt be dispelled with a secret election . It is now well settled that
when an employer, confronted with a demand for exclusive recognition , doubts
the fact of majority status, he need not rely upon cards and may insist upon a
regular election.15
The Board has also long held, however , that an employer may not use an ostensible
doubt of majority as a device for gaining time in which to undermine the union's
standing with the employees or otherwise unlawfully interfere with their freedom to
bargain collectively , if they so choose. The privilege, which the statute as a whole
makes available to the employer-either by the filing of an employer petition under
Section 9(c) (B) of the Act or by insistence that the demanding union itself request
a Board election , as did Caputo-exists primarily as an administrative procedure
for resolving questions of majority status , or to assure that collective bargaining
proceeds on the basis of majority representation . It cannot be used as a delaying
tactic to bring about defeat of the Union at an eventual election . Where the em-
ployer's entire conduct, apart from the seeming innocuous raising of a majority
question , reveals affirmatively such an underlying unlawful resolve , the Board and
the courts have concluded that the employer acted in bad faith, found the refusal
to bargain to have been unlawful , and ordered the employer to bargain with the
union without requiring an election.16
In the course of the hearing in the case at bar, held a year after Zeitlin expressed
uncertainty whether a majority of his employees favored the Union , it was perfectly
obvious, from the demeanor of a number of employees who had signed union appli-
cation cards, that they were unwilling witnesses of the General Counsel and had
changed attitude towards the Union . If the Respondent's conduct had the necessary
tendency of bringing about such disaffection , its act must be called one of bad faith,
and it must be ordered to bargain with the Union now.17 The sole issue of this
aspect of the case, therefore , is whether Zeitlin acted in bad faith on January 23.
Inquiry into a Respondent 's true motive in a refusal to bargain case of this type
always means consideration of all the related facts , which together either do or do
not supportthe complaint allegation , essentially in inference , that the issue of major-
ity was raised yin bad faith . Here the facts which truly pertain to this question are
simple, direct , and few. Immediately upon learing that the employees were joining
the Union , Zeitlin told them in his office that if they were to cease dealing with him
individually and directly and have a union do so instead, there would result an
economic disadvantage to them. He did not say disadvantage might or might not
1B A. L . Gilbert Company , 110 NLRB 2057 : KTRH Broadcasting Company, 113
NLRB 125.
"See ,Toy Silk Mills , Inc. v . N.L.R.B.. 185 F . 2d 732, 741 (C.A., P.C.), where it was
held that when the refusal to recognize is "due to a desire to gain time to take action to
defeat the Union's majority, the refusal is no loneer justifiable and constitutes a violation
of the duty to bargain set forth in Section 8(a) (5) of the Act."
17 Franks Bros . Company v . N.L.R.B., 321 U .S. 702.
HEAT TIMER CORPORATION 1277
eventuate , depending upon future union demands or contract provisions later to be
negotiated ; he made the prediction in definite terms. For years in the past employ-
ment in this shop had meant steady continuous employment ; on January 22 Zeitlin
told the employees if they brought a union into the plant there would be layoffs
when there had been none in the past . This was a direct threat of economic retalia-
tion for continued adherence to the Union , and, I find, a violation of Section 8 (a) (1)
of the Act by Zeitlin attributable to the Respondent.is
As portrayed piecemeal in this long record, the conversation in Zeitlin 's office
may at times have appeared a friendly discussion , for Zeitlin also told the employees
they should feel free to have a union if they so desire it . There was a more signifi-
cant message conveyed , however. The employees responded to Zeitlin 's inquiry by
saying they had "grievances " and sought raises. When Zeitlin heard this, he urged
them to deal directly with him instead , and to select representatives among the
employees in the shop , from the departments , to meet periodically with him , "because
he was the man who can solve problems in the shop ." His total language was a
clear message to them saying their grievances would be well received . This con-
duct "was reasonably calculated to interfere with the exercise by the employees
of the rights guaranteed in Section 7 of the Act ." 19 It therefore constituted a viola-
tion of Section 8 (a) (1) thereof , and I so find.
As a minimum, the combination of ideas-you will be hurt if you continue this
"thing," and come to me with a committee selected right here in the shop-left
no doubt the Company opposed the idea of a union , which was its right , and was
resolved to do something about it economically-which the statute forbids.
If any of the employees present at the meeting in Zeitlin's office, or those to
whom they reported upstairs , misunderstood his words and formed the notion
layoffs was something a union , as distinguished from Zeitlin , might cause, their
doubts were dispelled 2 days later, on Friday , when , without any union to make
Zeitlin act "against his will ," he gave effect to his threat. All that had happened
in the short interval was that Caputo called during the intervening Thursday. The
employees knew this , for at 5:30 p.m. the very day before the January 24 layoffs,
they held a meeting in a nearby hall where Zeitlin 's reply to Caputo was explained
to them . As many of the production employees , among whom all the layoffs seemed
to have occurred , testified , it became clear they did only slightly skilled work and
had not had the advantages of higher education . They nevertheless appeared quite
intelligent and alert; they could not have missed the point in Zeitlin 's precipitate
action in implementation of his stated intent. Two weeks later about five more em-
ployees were released , among them again a number who were "laid off" temporarily.
This was again the unprecedented disadvantage in employment which Zeitlin had
said was an inseparable incident of union activity.
When Zeitlin announced at the February 20 conference that he had changed his
mind-that he would no longer agree to an immediate consent election-he gave
inconsistent reasons. He said there were not enough employees-there would soon
be only five or six. Instead the complement rose continuously thereafter . He also
said it was because the employees had told him they had changed their minds about
the Union . Of this there is no evidence in the record, but Zeitlin did not need any,
for nothing is more likely to cause a change of heart in these matters than losing
work. Having imposed a most direct incentive for disaffiliation from the Union,
Zeitlin could well assume the results . But this is precisely the type of conduct
which the Board holds indicative of an employer 's bad faith in refusing to bargain
without an election proof of majority . Zeitlin's conduct made it impossible to hold
a fair election , one in which the employees could be said to voice an untrammelled
or free expression of choice regarding their desires about collective bargaining.20
The two group layoffs and the refusal to bargain are clearly related, enmeshed
events in this case . They also separately formed the basis for distinct allegations of
unfair labor practices-unlawful discrimination in employment and unlawful refusal
to bargain. Mass discharges or layoffs of groups of employees , for the very purpose
la According to the credited testimony of Manegold , a shipping clerk, about a month
after January 23 , Zeitlin said to him " that he doesn ' t like to lay off people , but he might
have to, because the business gets slow during certain times of the year, that when the
union comes in, they might be forced to, but if the union doesn 't come, he might find
work for me out of the shipping department ." I find this threat also to have, been a
violation of Section 8(a) (1) -of the Act.
10 Ore-Ida Potato Products , Inc. and Oregon Frozen Foods Company, 123 NLRB 1037.
See, also, Clark and Lewis Co., 122 NLRB 865.
20 The Jefferson Company, Inc., 110 NLRB 757; Safeway Stores, Incorporated, 110
NLRB 1718.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of choking off their union resolve, in violation of Section 8(a) (3) of the Act, leads
automatically to a conclusion of violation of Section 8(a) (5). In this instance, how-
ever, so far as the latter element is concerned, even assuming, contrary to the fact,
that a large numbr of employees had to be released at this time for strictly economic
reasons, the manner in which the reduction in force was carried out -a departure
from past practice , announced for the very purpose, and hurting more people than
would otherwise have been the case-would have been quite enough to cause the
employees to conclude that their continued adherence to the Union meant continued
economic hurt at Zeitlin 's hands. As the Board has said: "The fortuitous coincidence
of a slackening season cannot serve as a license for the employer to engage in dis-
criminatory conduct clearly violative of the proscription of the Act." 21
I conclude on the entire record that Zeitlin questioned the Union 's claim of
majority on January 23, 1958, in bad faith. Accordingly I find that the Respondent's
refusal to recognize the Union on demand, at a time when it represented a majority
of employees in an appropriate unit, was an unlawful refusal to bargain in violation
of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with its operations set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It has been found that on January 23, 1958, and at all times thereafter the Union
was the authorized and exclusive representative of the Respondent 's employees in
an appropriate unit for the purpose of collective bargaining , and that on and
after said date the Respondent refused to bargain with said representative in viola-
tion of the Act . Accordingly , I shall recommend that the Respondent , upon re-
quest, be ordered to bargain with the Union as the authorized and exclusive repre-
sentative of its employees in the appropriate unit.
Having found that the Respondent discriminated against 15 of its employees with
respect to their hire and tenure of employment , I will recommend that it take ap-
propriate action to undo the effects of these unfair labor practices . Minnie LaRocca,
Florence Williams, Muriel Brown, Harold Goldberg , and Hippolito Aponte have
been recalled to work. Vetere has died. Della James, Annie McDaniels, Carmela
Giardino, Marie Giardino, Marquetta Brown, Julius Sellers, and Velia Aguilo were
never recalled , and I will recommend that the Respondent be ordered to offer them
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges. Ella Miller
and Jeanette Lizardi did not testify and President Zeitlin said, without explanation,
that they had been recalled . I will recommend like reinstatement as to them also,
but subject to compliance investigation . If in the compliance stage of this pro-
ceeding it appears that these two employees have been recalled in a manner in
keeping with the Board 's usual concept of adequate reinstatment , the Respondent
shall be under no obligation to offer them employment under this order.
I shall also recommend that the Respondent be ordered to make all of the above-
named employees whole for any loss of earnings they may have suffered because
of the discrimination against them , by payment of a sum of money equal to the
amount they normally would have earned as wages from the date of their discrimina-
tion to the date of the offer of reinstatement , less their net earnings during said
period, with backpay computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. As to the dis-
crimination practiced against Leo Vetere, I will recommend that any amounts due
under this recommendation be paid to the personal representative of his estate 22 I
will also recommend that the Respondent make available to the Board upon request,
payroll and other records to facilitate the determination of the amounts due under
this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
n Akin Products Company, 99 NLRB 1270 , enfd. 209 F. 2d 109 ( C.A. 5).
23 Raymond Pearson, Inc ., 115 NLRB 190 , enfd. as mod . 234 F. 2d 417 ( C.A. 2).
DUVAL SULPHUR & POTASH COMPANY 1279
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, AFL-CIO,
Local 463, is a labor organization within the meaning of Section 2(5) of the Act.
2. Heat Timer Corporation is an employer within the meaning of Section 2(2)
of the Act.
3. All production and maintenance employees at the Broadway, New York City,
plant of the Heat Timer Corporation, excluding outside salesmen, office clerical
employees, technical employees, professional employees, and all supervisors as
defined in the Act, constitute, and have at all time material to this proceeding
constituted, a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. International Union of Electrical, Radio and Machine Workers, AFL-CIO,
Local 463, was, on January 23, 1958, and at all times since has been, the exclusive
representative of all the employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By discharging, laying off, or otherwise discriminating against its employees,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
6. By refusing to bargain collectively with the Union, as the exclusive representa-
tive of the employees in the aforesaid appropriate unit, as found above, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
7. By the foregoing conduct, by threatening employees with layoffs, and by
soliciting its employees to abandon the Union and to present their grievances for
adjustment directly to the Respondent, the Respondent has interfered with, re-
strained, and coerced employees in the rights guaranteed in Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Duval Sulphur & Potash Company and International Union of
Operating Engineers, Local No. 428, AFL-CIO,' Petitioner
Duval Sulphur & Potash Company and International Brother-
hood of Electrical Workers, Local Union 570, AFL-CIO,'
Petitioner
Duval Sulphur & Potash Company and International Union of
Mine, Mill & Smelter Workers, Independent,' Petitioner. Cases
Nos. 21-RC-5851, 21-RC-58792, and 21-RC-5943. October 19,
1959
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
James W. Cherry, Jr., hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Herein called Operating Engineers.
Herein called IBEW.
3 Herein called Mine Mill.
124 NLRB No. 170.