Heat Timer Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 19, 1959124 N.L.R.B. 1256 (N.L.R.B. 1959) Copy Citation 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. Copy with citationCopy as parenthetical citation