I-T-E Imperial Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1975

216 N.L.R.B. 1076 (N.L.R.B. 1975)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electrical Fittings Corporation, a Subsidiary of I-T-E
Imperial Corporation and Edmundo Alicea. Case
29-CA-3700
March 14, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 30, 1974, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions with a supporting and answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,I and conclusions of the Administrative Law
Judge as herein modified.
1. Contrary to the Administrative Law Judge, we
agree with the General Counsel that Respondent
violated Section 8(a)(1) of the Act in warning
employee Edmundo Alicea against speaking out in
opposition to the proposed collective-bargaining
agreement tentatively reached with the Union.2
As noted by the General Counsel, the Administra-
tive Law Judge found that Alicea's immediate
supervisor, Shemtov, told Alicea, approximately 2
weeks after the ratification meeting at which Alicea
spoke out against the contract, that because of what
happened at the meeting he "did not think he could
get Alicea a nickel raise because Manager Eidelberg
called him (Shemtov) and asked who was Alicea and
what happened at the ratification meeting, that he
(Shemtov) told Manager Eidelberg about Alicea's
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have
carefully examined the record and find no basis for reversing his findings
The Administrative Law Judge inadvertently stated in the second
paragraph of the "Analysis and Conclusion" section of his Decision that
Shemtov , by his "own credible testimony," admitted to having made certain
remarks to employee Alicea in a conversation which he had with him
approximately 2 weeks after the ratification meeting at which Alicea spoke
out against the proposed contract. In its exceptions , Respondent correctly
notes that Shemtov denied making most of the statements which the
Administrative Law Judge found were made during this conversation.
However , we find that this error is not prejudicial to Respondent . It is clear
from the credibility findings which the Administrative Law Judge made at
fns. 3 , 4, and 7 of his Decision that he is crediting Alicea's testimony as to
what was said during this conversation , over the denial of Shemtov , who, we
note, did admit that he told Ahcea he did not think it appropriate " 'to ask
opposition speech; and that Manager Eidelberg said
the proposed -contract was almost ready to be signed
by the parties when Alicea's opposition speech `blew
it.' " Notwithstanding these fact findings, the Ad-
ministrative Law Judge found no violation because
(1) Shemtov merely - suggested to Alicea, in the
manner of "friendly advice," "rather than catagori-
cally [sic] advised Alicea," that he would not
recommend him for a raise, and his remarks,
therefore, did not amount to a threat of reprisal; and
(2) "even if Shemtov's suggestion and his failure to
recommend the raise were motivated by subtle union
animus, I nevertheless find that such action was so
subtle that even if it constituted a technical [sic]
violation of Section 8(a)(1) of the Act, it was so
negligible as to fall within the rule of deminimaes
[sic] and, therefore, was not a violation of the Act."
It is well settled that the test for determining
whether a violation of Section 8(a)(1) has been
committed is "whether the employer engaged in
conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights
under the Act." 3 "[N ]o proof of coercive intent or
effect is necessary."4 Here it is clear that Shemtov's
remarks to Alicea, regardless of intent, reasonably
would be understood to convey the message that
Alicea was not likely to be considered favorably for a
raise at this time because higher management learned
that it was his outspoken opposition to the proposed
collective-bargaining agreement at the ratification
meeting which "blew it." As such, it constituted a
clear threat of economic reprisal to Alicea for having
engaged in protected, concerted activities.
Contrary to the Administrative Law Judge's
findings, the impact of this threat on Alicea was not
diminished because Shemtov did not "categorically"
advise, but only "suggested," that this would be an
inappropriate time to recommend him for a raise,
and that this suggestion was communicated to Alicea
in the manner of "friendly advice." The fact remains,
for a raise' due to what happened during the contract." Accordingly, in
adopting the factual findings of the Administrative Law Judge regarding
this incident we have relied on the credited testimony of Alicea.
2 We reject Respondent's contention that General Counsel 's exceptions
do not cover the Administrative Law Judge 's dismissal of the 8(a)(1)
allegation relating to the threatened loss of a raise communicated to Ahcea.
Although it is true that General Counsel does not specifically refer to this
allegation in his exceptions, he does argue it fully in his brief, as does
Respondent. Moreover, the essential facts underlying the 8(axl) threat
allegation are the very same facts upon which rests the 8(a)(3) allegation
relating to Respondent's failure to grant Alicea a raise , and General
Counsel did specifically except to the Administrative Law Judge 's dismissal
of that allegation . See William Kahr and Leon Moh,1e d/b/a Hamilton News
Co, 129 NLRB 770, 771 ( 1960); Illinois-Ruan Transport Corporation, 132
NLRB 216, 218 (1961), and cases cited in In. 6 therein.
3 Munro Enterprises, Inc., 210 NLRB 403 (1974) at par. 4; Cannon
Electric Company, 151 NLRB 1465, 1468-69, fn. 6 (1965), and accompany-
ing text ; Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439,
1441 (1949), cases cited in In. 7 and accompanying text.
4 Munro Enterprises, Inc., supra.
216 NLRB No. 179
ELECTRICAL FITTINGS CORPORATION 1077
as the Administrative Law Judge himself found,
"that Shemtov was Alicea 's supervisor," and while
acting in his role as such , was clearly "placing the
inappropriateness of recommending him [Alicea I for
a raise upon Alicea 's recent concerted or union
activity." Moreover, a threat does not become less a
threat because it was communicated in a friendly
manner:
While it is true that [supervisor] Pearson spoke as
a friend and wished to help [employee] Wood by
speaking to her [about the likely "severe" conse-
quences of her conduct in joining the union], the
statements conveyed a threat and thus constituted
interference , restraint , and coercion of an em-
ployee in the exercise of her statutory rights to
join a union and to engage in union activity. The
impact of the statements , coming as they did from
a friend who was part of management, was
probably greater in view of the authenticity and
credibility of the source.5
Nor do we agree with the Administrative Law
Judge that the threat was de minimis in nature, and
therefore does not warrant the issuance of a remedial
order. Like the threat of discharge, threats of
economic reprisal for engaging in protected activi-
ties , such as the instant one, strike at the heart of the
Act and the rights intended to be protected therein.
Threatening an employee with loss or delay of an
anticipated raise because he opposed ratification of a
proposed collective-bargaining agreement ordinarily
would be enough to chill the exercise of such
protected rights by all but the hardiest and most
strongwilled employees. We will not permit such a
serious infringement on employee rights to go
unremedied.
For all the above reasons, we conclude, contrary to
the Administrative Law Judge, that Respondent
violated Section 8(a)(1) of the Act by threatening
employee Alicea with economic reprisals for having
engaged in protected activities .6
2. We also find merit in General Counsel's
exceptions to the Administrative Law Judge's refusal
to find 8(a)(3) and ( 1) violations in Respondent's
refusal to grant Alicea a raise.
The Administrative Law Judge apparently recom-
mended dismissal of this allegation mainly on the
ground that there was no "evidence that Alicea was
in fact entitled to a raise , that any of his immediate
coworkers had in fact received a raise , or that he
S Wichita Eagle & Beacon Publishing Co., Inc., 199 NLRB 360, 370
(1972).
e J. C. Penney Company, Inc., 202 NLRB 1108 (1973).
See, e.g., Lowery Trucking Company, 200 NLRB 672 (1972). Moreover,
the amount of economic loss, if any , is a matter appropriately left to be
determined in the compliance stage of these proceedings . See, e .g., J. C.
would have received a raise if Foreman Shemtov had
recommended him for such a raise ." However, it is
well established that it is not necessary to prove
actual economic loss by the employee in order to
make out a prima facie case of unlawful discrimina-
tion.7 It is merely required that there be evidence that
(1) the alleged discriminatee was treated differently
from other employees and (2) the difference in
treatment was motivated, at least in substantial part,
by the employee's participation in protected, concert-
ed, or union activities .8 Here, we believe that General
Counsel has made out such a prima facie case.
The Administrative Law Judge credited Alicea,
over Shemtov's denial, that Shemtov told him
approximately 2 weeks after the Union's contract
ratification meeting at which he spoke out that at
that time he did not think he could get Alicea a
nickel raise after what had happened at the ratifica-
tion meeting. Implicit in that statement is not only
the threat of economic reprisal, which we have
already found above, but also the decision not to
consider Alicea on the same basis as any other
employee for a raise . The very statement itself
contains an admission of discriminatory treatment.
The remarks also make clear that the motivation for
treating Alicea differently from the other employees
for a raise stems from his speaking out against the
proposed contract at the Union's contract ratifica-
tion meeting, and nothing else.
Consequently, both elements necessary to make
out a prima facie case for finding that Alicea was
denied consideration for a raise because of his
protected concerted activity are satisfied by the
credited evidence on the record. And inasmuch as
Respondent failed to introduce any evidence which
would tend to rebut the evidence of discriminatory
treatment with respect to Alicea's consideration for a
raise , we accordingly find that Respondent violated
Section 8(a)(1) of the Act. Moreover, since such
discrimination is inherently destructive of employees'
rights to engage in union-related activities, we also
find Respondent's discrimination to be violative of
Section 8(a)(3) of the Act .9
The Remedy
Having found that Respondent interfered with,
restrained, and coerced its employees in the exercise
of their Section 7 rights, we shall order Respondent
to cease and desist therefrom and take certain
affirmative action, detailed in our Order infra, which
Penney Company, supra at 1111 , fn. 18.
s Lowery Trucking Company, supra at 676-677.
9 See Red Cab, Inc., 194 NLRB 279, 290 (1971); Nu -Car Carriers, Inc., 88
NLRB 75, 76-77 (1950), enfd. 189 F.2d 756 (C.A. 3, 1951 ), cert. denied 342
U.S. 919 (1952).
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find necessary to effectuate the policies of the
Act. Since we have also found that Respondent's
unfair labor practices were serious in nature and
struck at the very heart of the rights intended to be
protected in the Act, we will issue a "broad" cease-
and-desist order requiring Respondent to cease and
desist from in any manner infringing upon employee
rights. N. L. R. B. v. Entwistle Mfg. Co., 120 F.2d 532,
536-537 (C,A. 4, 1941); California Lingerie Inc., 129
NLRB 912, 915 (1960).
Having also found the Respondent discriminatorily
denied employee Edmundo Alicea equal considera-
tion for a wage increase, and as Alicea is no longer
employed by Respondent for economic reasons, we
shall order Respondent to make him whole for any
wages he may have lost by the reason of Respon-
dent's unlawful refusal to consider him for a raise up
to the date that his employment was terminated, with
interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB
716 (1962). The question of whether or when Alicea
would otherwise have received a raise and the
computations necessary in this regard can best be
made at the compliance stage of this proceeding. To
facilitate such computations, Respondent will be
ordered to preserve and, upon request, make availa-
ble to authorized agents of the Board all records
necessary or useful in determining compliance with
the Board's Order, or in computing the amount of
backpay due.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Electrical Fittings Corporation, a Subsidiary of I-T-E
Imperial Corporation, Farmingdale, New York, its
officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing em-
ployees by threatening them with economic reprisals
for engaging in protected concerted activities.
(b) Discriminating against employees for having
engaged in protected concerted or union-related
activities by refusing to consider such employees on
the same basis as other employees for wage increases,
or otherwise discriminating against them in their hire
or tenure or any term or condition of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Make whole Edmundo Alicea for any wages he
may have lost by reason of its unlawful failure to
consider him for a wage increase on the same basis as
other employees, to be computed in accordance with
the manner set forth in "The Remedy" section
above.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Farmingdale, New York,
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties participated and
had an opportunity to present their evidence, it has
been found that we have violated the National Labor
Relations Act by threatening employee Edmundo
Alicea with possible delay or denial of a wage
increase because of his activities in opposing ratifica-
tion of a proposed collective-bargaining agreement,
and by refusing to consider him for such an increase
on the same basis as other employees. To remedy
these violations, we hereby advise you that:
WE WILL NOT threaten our employees with
economic reprisals for voicing their opposition to
proposed collective-bargaining agreements or for
otherwise engaging in protected, concerted, or
union-related activities, nor will we deny them
ELECTRICAL FITTINGS CORPORATION
equal consideration for raises because of their
having engaged in such activities. `
WE WILL give Edmundo Alicea any backpay
that may be due him because we denied him a
raise or consideration for a raise which he would
have otherwise received but for his opposition to
the proposed collective-bargaining agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed by Section 7 of the National
Labor Relations Act, including the right:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
ELECTRICAL FITTINGS
CORPORATION, A
SUBSIDIARY OF I-T-E
IMPERIAL CORPORATION
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge of unfair labor practices filed on January 21, 1974,
by Edmundo A. Alicea, an individual, herein called the
Charging Party, against Electrical Fittings Corporation,
herein called the Respondent, the General Counsel of the
National Labor Relations Board issued a complaint
against Respondent on May 10, 1974, alleging that
Respondent had engaged in unfair labor practices in
violation of Section 8(axl) and (3) because Respondent
warned and directed Alicea not to speak to other
employees in opposition to its proposal for a new contract,
and because Alicea did speak to such employees Respon-
dent refused to give him a wage increase and, thereafter,
ultimately laid off and discharged Alicea. Respondent
timely filed an answered denying the alleged unlawful
conduct.
The hearing in the above matter was held before me at
Brooklyn, New York, on June 24, 25, and 26, 1974. Briefs
have been received from counsel for the Respondent and
counsel for the General Counsel, respectively, and have
been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now , and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of New York. At all times
material herein , Respondent has maintained its principal
office and place of business at 123 Smith Street, in the
town of Farmingdale, County of Suffolk, and State of New
York, herein called the plant, where it is and has been
1079
engaged in the manufacture, sale, and distribution of
electrical conduit fittings and related products.
During the past year, a representative period, Respon-
dent, in the course and conduct of its business operations,
purchased and caused to be transported and delivered to
its plant, machine parts, metal screws, and other goods and
materials valued in excess of $50,000, which goods and
materials were transported and delivered to its plant in
interstate commerce directly from States of the United
States other than the State of New York.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Local 3, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
At all times material herein, the Respondent has been
engaged in the manufacture, sale, and distribution of
electrical conduit fittings and related products at its
Farmingdale plant, where it employs some 500 employees,
over 300 of whom are engaged in the manufacturing
operations on three 3 working shifts. Respondent and the
Union have been parties to a collective-bargaining agree-
ment for over 20 years, and on July 31, 1973, its most
recent agreement was to expire and the parties, during the
month of July 1973, were engaged in negotiations for a new
contract.
In September 1972, Alicea, the Charging Party herein,
was in the employ of the Respondent in the Bodine
department. In November 1972 he was discharged from
that department but was immediately hired by Toolroom
Foreman Shemtov, where he thereafter performed work as
a "toolmaker" and "machinist first class" in the toolroom.
In this capacity, 80 percent of Alicea's time was spent
making lead screws and the remaining 20 percent of his
time was spent repairing lead screws and making "hold-
ers." During the contract negotiations in July 1973, Alicea
stood up in a union meeting and vociferously opposed a 2-
year contract proposed by the Respondent. His vocal
opposition to the proposal created such widespread
division and dissension amongst the employees that they
were not able to vote for ratification of the contract, but
instead , dispersed without voting upon the proposal. Prior
to the ratification meeting, Alicea was talking to many of
the Spanish-speaking people and voicing his opposition to
the proposed contract to the extent that he was summoned
by the union negotiating committee to voice his position to
them with respect to the proposed contract.
Alicea now alleges that since he was warned and directed
to refrain from speaking to fellow employees in opposition
to Respondent's contract proposal he was refused a wage
increase as promised prior to his opposition to the
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed contract, and nearly 5-1/2 months later was laid
off and not recalled by Respondent; and that such conduct
on part of the Respondent was coercive and discriminatory
in violation of the Act. While the Respondent admits that
it laid off Alicea as alleged, it nevertheless denies that he
was laid off because of any concerted or union activity on
his part , and it counter-alleges that Alicea was laid off
during a major layoff of about 70 employees, and because
his job of making lead screws was eliminated by a decision
on the part of Respondent to purchase such lead screws
from the Kaufman Manufacturing Company.'
Issues
The principle issues raised by the evidence are: whether
Respondent had knowledge of Alicea's vocal opposition to
the Respondent's proposed contract during the negotia-
tions in July 1973; did Respondent in fact warn and direct
Alicea to refrain from expressing his opposition to the
proposed contract to his fellow employees ; and whether
Respondent refused to give Alicea a raise and eventually
laid off Alicea and failed or refused to recall him on
account of his vocal opposition to Respondent's proposed
2-year contract.
B. Negotiations for a New Bargaining Contract and
Alicea 's Concerted Activity
Edmundo Alicea creditably testified that he was in the
employ of the Respondent as a toolmaker in September
1972; that he was discharged and immediately rehired in
November 1972, as a toolmaker and machinist first class,
where he worked on the 7 a .m. to 4 p .m. shift until January
11, 1974, when he was laid off. Alicea further testified that
he made lead screws about 80 percent of the time and he
did tooling (making holders for small tools ) the remaining
20 percent of the time . He was a member of the Union and
during the negotiations for a new contract in July 1973
when he and other employees learned from Union Steward
Ralph Thristino that the Company's proposed contract
provided for a 2-year contract with a 25-cent -an-hour raise
for the first year, a 25-cent raise for the second year, and
an extra day's sick leave for the first year, and an extra
day's sick leave for the second year or for vacation, for
employees with more than 8 years ; that he thereupon
proceeded to discuss the proposed contract with the
Spanish-speaking employees by explaining to them his
understanding of the contract and pointing out to them
that it would be better for the Union to procure a 1-year
contract, rather than a 2-year contract , because their
bargaining power would be thereby enhanced ; and that he
asked the workers did they understand what 5 .5 meant and
most of them did not understand the 5.5 wage freeze
limitation.
Subsequently , about 11 o'clock one morning he received
a telephone call from Mrs. Piat in the personnel office,
informing him that he was wanted in Manager Eidelberg's
office ; that he thereupon reported to Mr . Eidelberg's office
where he found Union Steward Ralph Thristino and the
union committee , including Watson Miller, Joe Anastasia,
a lady called Joyce Delores, and two other ladies whose
names he did not recall; that Thristino said to him, "we
want to know what you think about the contract." Alicea
said he then asked why was he selected from the 250
employees to be asked such a question but Thristino did
not answer him; that he then said he told Thristino he was
probably called in because the Union knew he speaks to
many of the Spanish-speaking people and they knew he
had previously served as union representative and, there-
fore, knew what he was doing; and that Thristino then
said, "yes that's right."
Alicea said he then asked Thristino what was the wage
rate of the average employee and the latter replied about
$2.95;'that he (Alicea) then calculated 5.5 percent of that
rate to be 1§.5 cents, which he stated was the maximum
wage rate allowed under the wage freeze, and pointed out
that since the Union was proposing a 25-cent raise it was in
violation of the freeze; that if the Union (the employees)
accepted the 5.5 proposed raise under the 2-year contract
and the freeze was shortly thereafter lifted before expira-
tion of the 2-year contract, the employees would be stuck
with it, whereby if the contract were for 1 year, the
employees would have more bargaining power and would
not be bound by the freeze rate after the 1 year; and that
he therefore recommended a contract for I year.
Alicea's testimony continued as follows:
And he said to me, I heard that you are going
around telling people mostly Spanish people, putting
things in their head.
And I said in the first place I haven't left my lathe all
morning-maybe five minutes to go to the bathroom
now people have passed by me, yes, and I have talked
to them, yes.
And I said, "You can't stop my freedom of speech."
He says-
Q. Repeat what you just said?
A. He did not want me to put ideas in the mind.
And I said to him I heard that Joyce is going around
with a paper explaining to the Spanish people, paper in
Spanish, what contract is about.
And Ralph says yes, that's right. Would you like to
see it? I says yes , I would like to see it.
Now what I read the paper, in the paper said that we
were going to get an extra day vacation.
Now I said to him, this paper is wrong because
according to what you told us about the contract only
people with eight years or more seniority are going to
fet an extra day.
So, he says, "Well, I'll fix the paper."
I remember saying to him, I said, "Ralph , I told you
one time if you need an interpreter or anything done in
Spanish I will do for you."
He said, "No thank you, we have an interpreter.
About that paper in the afternoon, I have to talk about
that paper. Ralph came-he had a new one made and
he showed it to me."
I says that's correct now. He corrected that paper
Well, he said to me , you know, he is going to correct
the paper.
I The facts set forth above are undisputed in the record.
ELECTRICAL FItI INGS CORPORATION
Just before leaving the office Alicea said he told Thristino
he was going to tell the employees what they talked about
because he did not want the employees to think that he
bought the Respondent 's proposed contract.
On the same afternoon , following the office meeting with
the union committee , the Union held a meeting of the
employees during which time Mr. Stein , the Union's
president or business manager, proceeded to tell the
employees about the sacrificial efforts the union committee
had made trying to reach an agreement on the new
contract . Then he told them about the proposed 25-cent
raise under a 2-year contract and how good a contract it
was going to be. AliCea said ' he then raised his hand and
stated that he wanted to say something but Mr. Stein
permitted the Union 's interpreter to tell the employees
what "he Stein" had said first . Then he (Alicea) said:
So I got up and said , "If you try your best those
three days trying your best for our contract" and I said,
"Why do you want to sign two-year contract?"
I said, "Do you know when the freeze is going to be
over?"
So Mr. Stein says "Not even Nixon knows that."
Then I said to him, exactly like I said %o Ralph, I
said , "Well, if you don 't know when the freeze is going
to be over, why don't we try for a one-year contract,
that way if the freeze is over before the year we have
more bargaining power for the following year, we don't
have to be stuck with a quarter."
Now, in the meantime people were leaving.
Q. How many people left?
A. I can't say how many. A lot of people were
leaving and I said to him, I kept saying, "Mr . Stein,
please call them back and have your Spanish interpret-
er tell them what I said ," right.
Now, what I-well, when I was saying that, Mr.
Stein came over to me and the other man-the other
union man , our representative , they surrounded me and
they started asking me questions and telling me about
this and about the contract.
Q. What did they ask you?
A. About why I did not like the contract. I
explained to them . I repeatedly explained to them why
I did not like it.
Q. Why did you tell him?
A. I tell them that the 5 .5 it didn't make sense. I
told them that the quarter was more than 10.5 cents.
I say, if we-if we violate-if we violate-if they are
going to violate any law, you already violating by going
to a quarter.
And one thing he said to me, he said , "If we sign a
one year contract , will you be happy?"
Q. Who said that to you?
A. Mr. Stein.
Q. What did you say?
A. I ask Mr. Stein , how many people work in the
plant . He said approximately about 300.
And I say, "Well , what the hell is wrong with the
other 299 people, don't they count?
"You try to make me happy."
He says, "Well, you are making a whole big fuss."
He say, "Why you making all this fuss. All this fuss."
1081
Finally, Mr. Stein started calling the employees back and
about 70 or 75 out of the 200 employees who were
originally in the room returned to the meeting. After Alicea
explained his position to those employees, advocating a 1-
year contract, Mr. Stein said maybe the 1-year contract
was a good idea and the committee would try to get one.
The next morning Thristino and Joyce Thristino came to
Alicea's desk and informed him they were going to try to
get a 1-year contract. However, on the following morning,
Joe Anastasia came into the toolroom and tried to tell him
what the Respondent had to say about a 1-year contract,
but Alicea said he did not want to learn about the
Company's respotise on an individual basis, but only in a
meeting with other employees. Subsequently, the employ-
ees were informed by a notice on the bulletin board and by
oral communications from Thristino, that the Respondent
had agreed to a 1-year contract on one condition, a 16-cent
raise and nothing else. The Union then called for a strike
- ho-strike vote that afternoon, during which time all but
35 or 37 employees voted against a strike and to accept the
2-year contract as proposed a few days before.
Alicea said about 2 weeks later Shemtov passed his lathe
and he noticed that he did not look or act quite like
himself, "so he (Alicea) asked him was something wrong"
and the following conversation ensued:
So he said to me, you know, "about that raise that I
offer you before."
I said, "Yes?"
He said, "I don't think I can even get you a nickel
now."
He say about the contract, you know, Jonahs [sic]
called me and asked me who was Tony Alicea, and I
told him.
He says he wanted to know, what happened in the
meeting. So Sam says to me, Sam says , "I told Jonahs
[sic] that all you did was phrase your opinion, but still
they got your name in the office because like Jonas
says, everything was ready to be signed and you blew
it.-
In other words, the contract, "You blew it."
Q. Well, did he say that, that the contract was
ready.
A. He said Jonas told me that everything was
almost ready to sign.
Q. You made reference to Jonas, who is that?
A. Mr. Eidelberg.
Q. Was arything else said during that discussion
between yourself and Mr. Shemtov?
A. I said to him, "Well, if I can get the raise, I said
one thing that you cannot stop me from speaking out
you know, you cannot stop my freedom of speech,
nobody can." And I tell him why I spoke, and Sam said
to me, "you know, Tony you can't have everything in
life." And I guess that was it.
Alicea said he then asked Shemtov were union officials and
the Respondent trying to get rid of him and he said: "If we
want to get rid of you, all we have to do is lay you off
because you got no seniority."
In or about November 1973, Alicea said he had the
following conversation with Shemtov:
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said to him, I said, "Sam, how long am I going to
be punished?"
He said, he laughed , "What do you mean by
'punished' "?
I said I am not going to get my raise because I have
been punished because what I did during contract time,
but that thing is a long time already, I should get my
raise.
He said to me , "Don't worry about it, Tony. You'll
get your raise, but first we have to give Hector Munoz a
raise first, and then you get yours."
On January 11, 1974, Shemtov , the toolroom foreman
and supervisor of Alicea, called Alicea into his office and
advised him that he had bad news for him. Alicea said he
asked what it was and Shemtov said , "Well, you are going
to get laid off today." He further advised Alicea that the
latter knew that a lot of people got laid off in line
production; that he (Alicea) then said what does that have
to do with him and Shemtov said Respondent had to cut
the overhead and a guy from the office , a hi-lo driver, and
Alicea were being laid off; that when asked would he
(Alicea) be out for a long time, Shemtov said "No, the most
is 2 weeks ." Alicea further said that he was not given a
layoff notice before he was actually laid off and although
he asked for a notice in writing he was told he did not need
one then. He had been advised to call Shemtov on
Thursday, which Alicea said he did but Shemtov was not
around the shop. However, when he went to pick up his
check on Friday, he saw Shemtov coming out of the office
and he asked him what was the story, at which time,
Shemtov advised him that Respondent was not going to
call him back to work, and he did not know why since he
was not the boss . Alicea said he was never recalled to work
by the Respondent . On cross-examination Alicea said his
salary was $4.10 an hour at the time he was laid off. He
admitted that he knew Siegman and knew that the latter
did make lead screws before he (Alicea) came to the
toolroom; that Joyce Delores, the interpreter for the union
committee, does not speak Spanish too well in his opinion;
and that he received a 60-cent-an-hour increase in his
salary when he was discharged from the Bodine depart-
ment and hired in the toolroom on the same day
(November 1973 ); and that he did not do diemaking or
modelmaking.2
Ralph Thristino credibly testified that he has been
employed by the Respondent for 20 years and is a tool
2 I credit the testimonial account of Alicea , including his statement that
Thristmo warned and directed him to refrain from expressing his opposition
to the proposed contract to the Spanish-speaking people , not only because I
was persuaded that he was telling the truth but also because his testimony is
otherwise essentially corroborated by Thristino and other witnesses.
However, assuming that I were to discredit Alicea 's statement about
Thnstino warning him about expressing his opposition to the proposed
contract , I am nevertheless persuaded by the evidence that said statement is
of no probative value in determining whether Respondent committed the
alleged unfair labor practices, since it is not shown that Thristino is a
supervisor or that he was talking on behalf of management.
J As to the testimonial accounts of Thrutino , Shemtov, and Alicea, I
credit the testimonial account of Alicea with respect to his outspoken
opposition to the proposed 2-year contract before and dung the
ratification meeting ; the statement by Thristino that he beard Alicea was
putting ideas about the proposed contract in the heads of the Spanish-
speaking people ; the statement by Foreman Shemtov that the latter did not
grinder by trade and a toolmaker; that he works in the
toolroom and is and has been shop steward for the Union
for 7 years; that in that capacity he has a committee of
seven other employees including Joyce Delores Steel,
Watson Miller, Joe Belifiore, Mary Stuckey, and Roman
Pacheco; that the function of the committee is to bargain
with the Respondent and keep the employees informed
thereof. He corroborated the testimony of Alicea with
respect to the respective positions of the Respondent and
Alicea, regarding the duration and contents of the
bargaining contract, about what transpired at the union
meeting when Alicea opposed the proposed contract, and
the substance of what transpired in the office meeting
when Alicea was summoned to meet with the committee.
However, he denied that he told Alicea to keep his
opinions about the opposed contract to himself and not to
speak to the Spanish-speaking employees. He also denied
that he told any company representative or official about
Alicea's opposition to the proposed contract.
Thristino said Shemtov had advised him on the morning
of Alicea's layoff that the latter would be laid off and he
later received a copy of the separation notice addressed to
Alicea; that on or about January 16, 1974, Alicea came to
him and informed him that he had been laid off; that he
explained to Alicea that there were quite a few people in
the shop besides himself who were being laid off; and that
Shemtov advised him that if Respondent hired another
lathe hand Alicea would be given first consideration based
upon his seniority.
He further stated that Shemtov did not discuss Alicea's
layoff with him before actually laying him off; and that
after the Respondent rejected the Union-proposed 1-year
contract, the employees voted 169 for, and 39 against, the
proposed 2-year contract. Although supervisors are and
have been for many years members of the Union, he did
not observe the presence of any supervisors at the
ratification meeting where Alicea voiced his opposition to
the 2-year contract. He further explained to Alicea that the
Respondent did not hire any machinists or lathe hands to
replace him although Respondent had hired three tool and
diemakers who did tool and die work only. He emphasized
that they made no lead screws. After January 16, 1974, the
entire third shift, which works primarily on the Kaufman
machine, was laid off although most of them were recalled
on the basis of seniority 2 or 3 weeks later.3
Sami Shemtov credibly testified that he has been
employed in the toolroom for 6 years and was foreman of
think he could get Ahcea a nickel raise because Manager Eidelberg called
hun (Shemtov) and asked who was Alicea and what happened at the
ratification meeting; that he (Shemtov) told Manager Etdelberg about
Alicea's opposition speech ; and that Manager Eidelberg said the proposed
contract was almost ready to be signed by the parties when Ahcea's
opposition speech "blew it." I credit Alicea's version of these events over the
versions of Manager Eidelberg and Shemtov , not only because I received
the distinct impression that Ahcea was telling the truth, but because his
version is in concurrence with the logical consistency of all of the evidence
which related to the negotiations and the ultimate signing of the collective-
bargaining contract in July and August 1973. 1 discredit Manager
Eidelberg's and Shemtov's version in these respects because I received the
impression that they were not telling the truth in denying the contents of the
conversation related by Shemtov to Alicea and because Manager Eidelberg
remembered Alicea's name too well , without logical supporting reasons, on
August 25 when the intercom incident occurred.
ELECTRICAL FITTINGS CORPORATION
the toolroom in January 1974. He also corroborated
previous and undisputed testimony that plant foremen are
members of the Union and that he observed the presence
of Foremen or Supervisors Sal Lofredo, Bill Pedota,
Stanley Chepinski, and Walter Jakowski at the union
ratification meeting in July 1973. Shemtov corroborated
the testimony of Thristino and Eidelberg to the effect that
no lathe hand or machinist has been hired in the toolroom
since Alicea's layoff. Shemtov also stated that he had no
authority to lay off employees and that Mr. Eidelberg has
never asked him what went on in a union meeting. He
denied that he ever told Alicea that Alicea blew the
contract or that his name was on a list in the office . He also
denied that he told Alicea that if Respondent wanted to get
rid of him they could do so because he had no seniority;
and that in August he did not envision a company layoff.
However, he admitted having the following conversation
with Alicea:
Did there come a time in approximately August 1973
where you had a conversation with Mr . Alicea about a
raise?
A. Yes, I did.
Q. How did that conversation come about?
A. He came to my office and asked, 'What about
my raise?'
So I said, 'I don 't think it's a good time now to ask
for a raise because what happened during the contract!
Q. And what did he say and what did you say, if
anything?
A. I didn 't say anything else.
Q. Did you say anything to him else about a raise?
A. Well, I told him he wouldn't get a raise now
anyway because he just got one from the union.
Q. I believe you testified you were a union
member , is that correct , at that time?
A. Yes.
Q. And how many years had you been a union
member?
A. Five.
Q. And for how many - over these years, have
you gone to union meetings?
A. Yes.
Shemtov said he simply suggested to Alicea as a friend,
"That it is not the right time now to ask for a raise because
what happened during the union contract "; and he
corroborated the testimony of Mr . Eidelberg that he
(Shemtov) issued the warning notice (Resp. Exh. 5)
pursuant to instructions from Mr . Eidelberg. He said he
did not have authority to grant a raise but he could
recommend an employee under his supervision for a raise;
and that if he made such a recommendation it would have
been to Mr. Goldsobel . However, he stated categorically
4 f credit the above testimony of Shemtov except his denial that Mr.
Eidelberg has never asked him what went on in a union meeting and that he
never told Alicea that he (Shemtov) or Mr . Eidelberg ever said Alicea blew
the proposed contract . In this regard, I credit the testimonial version of
Alhcea , not only because he appeared to be telling the truth and Shemtov
1083
that he did not tell either Mr. Goldsobel or Mr. Eidelberg
that Alicea was asking for a raise. He further testified that
he completed and signed the requisition to order lead
screws from Kaufman Manufacturing Company dated
January 18, 1974 (G.C. Exh. 11). He corroborated Alicea's
testimony that he first received $3.85 when he was hired in
the toolroom and that was 60 cents more than Alicea had
received when he worked at Bodine.4
Mr. Dave Eve credibly testified that he is an employee
of Triplex Machine Tool Corporation, East Rutherford,
New Jersey, and a sales representative of Kaufman
Machine Company of Manitowoc, Wisconsin; that Mr.
Howard Wiggins, the sales manager for the Kaufman
Company, and himself visited Respondent's plant on
several occasions; that in the fall of 1973 they talked with
Mr. Eidelberg and other company officials concerning the
problems with downtime freezing (defective lead screws) in
the Kaufman Machines; that after inspecting some
defective lead screws the witness and Mr. Wiggins told
Respondent it was crazy for making its own lead screws
and suggested that it buy them from Kaufman, since
Kaufman provided (sells) that service without profit for
between 76 and 85 cents. The witness said he first
suggested, in general, that Respondent purchase its lead
screws from it in early 1970, again in 1971, and again in
1972.
Mr. Eve continued to testify as follows:
When I say "in general," I mean EFCOR manufac-
tured-or, assembled their own machines. They bought
components from us, assembled their own machines
and manufactured lead screws-I assumed they did; I
don't know for sure.
But we had been trying to impress upon them that
they should but the machines completely assembled
from Kaufman since it was their business to manufac-
ture machines completely, and the lead screws went
along with that.
Mr. Eve said he and Mr. Wiggins then asked Respondent
to try some of their lead screws and Respondent said it
would talk about it. A few months later when Respon-
dent's need for lead screws occurred, Respondent ordered
some lead screws showing that such orders were dated
6-7-73, 6-11-73, 11-21-73, and 1-21-74, 1-30-74,
1-31-74, 4-11-74,4-19-74,4-24-74, 5-16-74,6-3-74, and
6-7-74 (Resp. Exh. 2A-H). All of the dates heretofore
referred to are designated as dates of shipment of lead
screws.5
Division Manager John Eidelberg credibly testified that
he first came to know Alicea about November 1972, when
the latter had a mechanical problem with his automobile
on the plant's parking lot; and that his second contact with
Alicea occurred on Saturday, August 25, 1973, while he
was checking the attendance of the employees in the
toolroom and maintenance department when the intercom
incident described by the witness occurred as follows:
did not, but also because Alicea's version is in concur rence with the logical
consistency of all of the evidence of record.
5 I credit the testimony of Mr. Eve not only because it is undisputed but
because it -is also consistent with the testimony of Mr. Eidelberg and all of
the other evidence of record.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I inspected the production personnel , I heard a very
loud noise over the intercom , someone mimicking in a
voice calling for a maintenance many [sic ] by the name
of Willie Meyers.
This call continued for quite a while and I ran from
area to area to determine who was picking up the
intercom and creating this disturbance in the shop, as
everybody near me just stopped working.
I ran from area to area . I entered the tool room and I
found Alicea still holding the intercom in his hands and
continuing to page over the intercom , in a joking
manner, 'Willie Meyers,' of the maintenance depart-
ment.
By "joking," Mr. Eidelberg said he meant Alicea
sounded like Donald Duck's voice superimposed with a
Mickey Mouse type of voice, which caused complete work
stoppage in the plant . He then approached Alicea,
addressed him by his name , and the latter said , "Oh you
know my name because I was against the contract"; that
he reminded Alicea where they met previously on the
parking lot and asked him to hang up the intercom and
punch out for the day. When he asked Alicea why was he
doing this , Alicea said that he was trying to reach Willie
Meyers ; Alicea then followed him to the hallway and
asked him if he did not think ordering him to punch 'out
was too harsh a penalty for what he had done. Mr.
Eidelberg said no he did not think so because he was quite
concerned about that kind of conduct which was disrupt-
ing the work of many of the employees in the plant.
However, since the shop steward and toolroom foreman
were not at work that day, Mr. Eidelberg said he would
like to think about it . Alicea then asked him whether he
would consider issuing him a warning since this was the
first time he violated any company rule; and he (Eidelberg)
said he agreed and permitted Alicea to continue working.
On Monday , he had Toolroom Foreman Shemtov issue a
written warning to Alicea e
C. Alicea Laid Off By Respondent
Mr. Eidelberg credibly testified that although the
Respondent had never had a layoff during his 21 years'
employment, nevertheless , in early January 1974 it was
advised by Nelkin Plating Company that the latter would
not be able to supply it with plating services as a result of a
strike ; that Respondent was also advised by some major
suppliers of castings from foundries that they too would
not be able to supply Respondent with castings as a result
of a truck strike ; and that consequently, after evaluating its
supplies of these items, Respondent reluctantly decided
that it had to order a major layoff of about 70 employees.
On the morning of Friday, January 11, 1974, Mr.
Eidelberg said that he called Shemtov into his office and
advised him that as a result of the general layoff in the
shop Respondent would have to reduce its work force in
the toolroom by one or two men, and thereupon instructed
him to lay off one man in the toolroom immediately.
Although he did not mention Alicea by name, he admitted
that he knew that Alicea was the toolroom worker with the
6 I credit the testimony of Manager Etdelberg not only because I
received the impression that he was testifying truthfully but also because his
least seniority . Shortly thereafter , on or about January 14,
1974, Mr . Eidelberg said he was informed that Richard
Siegman , a mechanic who could also make lead screws and
work on the grinding machines and perform other related
work , had announced that he would quit in about 2 weeks.
Siegman did in fact quit the employ of Respondent on
January 28, 1974.
On or about January 18, 1974, when Alicea came either
to pick up his check or to inquire of Shemtov or of the
personnel department (Irene Piat) whether or not he could
be reinstated , he was advised by Mr . Eidelberg, through
Miss Piat, that Respondent had no intention of reinstating
the lathehand in the toolroom . Therefore, in accordance
with normal company practice Mr. Eidelberg said that
Miss Piat upon his instructions issued a separation notice
to Alicea. He further stated that his decision to abolish the
lathehand job was based upon the fact that the Respon-
dent was going to purchase its lead screws from Kaufman
Company in the future , that the third shift was being
dissolved , and that the need for lead screws in the
Kaufman department had been substantially reduced
while having had a sufficient supply on hand. He said he
has not permitted the position of either Alicea or Siegman
to be replaced . However, he said tool and diemakers have
been hired and they do not make lead screws.
Respondent's third shift was reinstated on April 2, 1974,
when supplies of casting became available again as a result
of cessation of the strike, which ended in January. Mr.
Eidelberg said that he did not reinstate the third shift until
he was confident a predicted economic slowdown was not
in progress . Prior to the strike he said approximately 18 to
20 employees were on the third shift.
Other than Alicea's own statement to him about
opposing the proposed contract during the intercom
incident, Mr. Eidelberg said he did not know anything
about Alicea's union activity and that no union representa-
tive ever told him what Alicea said at the ratification
meeting. He denied having any knowledge about Alicea's
position on the contract and he also denied that he said
that Alicea blew it or nearly blew it (the proposed
contract); or that he had Alicea 's name on a list in his
office and that the Company wanted to get rid of him. He
said he considered the August intercom incident a major
offense but that it had nothing to do with the layoff of
Alicea ; that on the morning of January 11, 1974, he
discussed the layoff in the toolroom with the toolroom
foreman , Shemtov. His explanation for the discrepancies
between January 11, the day Alicea was laid off, and
January 16, the issue date of Alicea 's blue slip notice of
layoff , was that it was probably due to the fact that the
Company was catching up with it's paperwork after the
Martin Luther King holiday on January 15. The layoff was
actually effective on January 11, 1974. Although he had
advised Shemtov to lay off one or two men in the
toolroom , it never became necessary to lay off the second
man because the second man, Siegman, quit and the strike
did not last longer than a week and a half . He denied that
he decided to discharge rather than lay off a man in the
toolroom. In notifying the various departments other than
testimony in this respect is essentially consistent with that of Alicea.
ELECTRICAL FITTINGS CORPORATION
the toolroom about the layoffs, Mr. Eidelberg said he
called in the plant foreman and shop steward but on his
request to lay off two people in the toolroom , he called in
only the foreman.
The testimonies of Mr . Eidelberg and Mr . David Eve on
Respondent 's eventual purchase of lead screws corroborate
each others . Mr. Eidelberg testified that he had been
considering the purchase of lead screws from Kaufman
Company since sometime in 1972; that the decision to
purchase lead screws from Kaufman started to evolve
during its first consideration in early 1970's and was
ultimately made in December 1973, or January 1974; and
that lead screws were first ordered by Respondent after
Alicea's layoff on January 21, 1974. To support his position
he further testified that lead screws were ordered and the
Respondent received lead screws from Kaufman Manufac-
turing Company in Manitowoc , Wisconsin , on the follow-
ing dates , respectively: 6-6-73, 6-7-73 and 6-7-73;
11-21-73, 1-21-74 and 1-30-74; 1-23-74 and 1-31-74;
4-11-74, 4-11-74 and 4-19-74; 4-19-74 and 4-24-74;
5-13-74 and 5-16-74; and 6-3-74, 6-3-74 and 6-7-74
(Resp . Exh. 2A-H). Respondent had not ordered lead
screws from Kaufman prior to 673 because lathehands
in the toolroom provided them . Moreover , he continued,
the Respondent does not purchase lead screws for its five
or six Pottstown machines but in fact still makes lead
screws for those machines , which are different from the
Kaufman lead screws . Respondent has not done any repair
work on Kaufman lead screws since 3 or 4 weeks
subsequent to Alicea's layoff. Mr. Eidelberg said he went
to the Kaufman Company in Wisconsin in April 1974, and
thereafter, on 4-16-74, made a positive decision and
instructed Shemtov to purchase Kaufman lead screws from
then on.7
Irene Piat credibly testified that she has been employed
by the Respondent ' for 6 years and now works as a
supervisor of personnel ; that in July 1973, after a meeting
of the employees held in the cafeteria, she observed
employees leaving the meeting and overheard them talking
about the proposed contract and Alicea's objections (the
specifics of which she did not hear) to the contract. She
further testified that she did not report the conversation of
the employees she overheard to any management officials
because it made no difference to her that Alicea opposed
the contract and she was not involved in the bargaining
negotiations . She identified the General Counsel's Exhibit
3, the separation notice issued to Alicea dated January 16,
1974, marked "layoff" and stamped "discharged" with a
check by discharged with the reason stated : "Because of
reduction in force."
Irene Piat testified that she personally completed
Respondent 's standard "Employee Warning Notice" to
Alicea pursuant to instruction from Foreman Shemtov on
7 1 discredit Manager Eidelberg's testimony , with respect to his denial of
knowledge about Ahcea 's expressed opposition to the proposed contract,
that no union representative ever told him what Alicea said at the
ratification meeting, or that he said that Alicea blew the proposed contract
because Alicea credibly testified that Shemtov told him about these matters
which are consistent with the logical sequence of the evidence. However, I
credit Manager Eidelberg's testimonial version otherwise , because it is
essentially consistent with the general tenor of all of the evidence and
partially corroborated by Ahcea 's testimony. With respect to the Respon-
1085
Monday, August 28, 1974, but she dated the notice
January 25 because that was the date of the incident, which
is in accordance with usual company procedure; and that
the original notice goes to the employee and a copy to the
shop steward. She further stated that notices of layoffs in
January were posted in the plant to all employees affected
by the layoff (Resp. Exh. 6); more particularly, the notice
dated January 10, 1974, addressed to all shop employees
on the third shift, entitled "Layoff," provided as follows:
As a result of a material shortage and lack of plating
services, we are forced to temporarily lay off all the
personnel on the Third Shift. The last working day will
be Friday, January 11, 1974. The Third Shift will not be
working on Monday, January 14th, and until further
notice.
Employees on the Third Shift are requested to call the
Personnel Department on Friday, January 18th, to be
advised whether or not their shift will resume work on
Monday, January 21st.
Personnel on the Third Shift will be given an
opportunity to work on either the First or Second shift,
depending on their classification and seniority within
the Union. Anyone who would like to apply to be
considered for either the First or Second Shift should
contact the Personnel Department.
We regret that conditions beyond our control cause us
to lay off shop personnel and we would like to assure
you that we will continue to search for new services in
order to resume our operations as soon as possible.8
Hector Ortiz credibly testified that he has been employed
by Respondent for 4 years as a tool and die man and
presently earns $5 an hour; that he believes that Alicea was
hired to do lead screw work. He attended the union
meeting in July, at which time he, too, along with some
employees, voiced their opposition to the proposed
bargaining contract. However, he stated that Alicea was
the most outspoken employee opposing the contract; that
he (Ortiz) received his periodic salary increases in
accordance with the bargaining agreement and he is still
employed by Respondent .9
Marie Harrison credibly and undisputably testified that
she is supervisor of payroll (weekly) accounts payable and
receivable; that she keeps attendance records and time-
cards and she explained that although Respondent's
Exhibit 13 is stamped "discharged" and "resigned,"
Respondent does not have a stamp marked layoff and
therefore she writes layoff on the timecard. When the
employee is terminated it is stamped "discharged,"
meaning he is taken off the payroll. This explanation was
given along with the timecard of Alicea for the week
dent's study and evaluation of the lead screws problem and his ultimate
decision to purchase them from the Kaufman Company, I credit Manager
Eidelberg's account because, not only is it undisputed by the charging party
but it is substantially corroborated by the credited testimony of Mr David
Eve and further supported by documentary evidence (Resp. Exh. 2A-H).
8 I credit the testimony of Irene Piat because it is not disputed and she
appeared to be telling the truth without any hesitation or reservations.
9 I credit the testimony of Ortiz because it is consistent with all of the
evidence of record and because he appeared to be testifying truthfully.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ending January 14, 1974, which was marked "Layoff."
(Resp. Exh. 14.)10
Although Hector Ortiz has witnessed other employees
use the intercom system as Alicea did, he admitted that he
did not observe such use by employees in the presence of
Mr. Eidelberg or other company officials.
Analysis and Conclusion
In relating the credible evidence of record to the issues
presented for decision in the instant proceeding, it is
readily observed that the one factor on which there is
unanimity in testimony is the fact that Emundo Alicea
adamantly opposed the proposed contract of the Union
and the Respondent during the ratification meeting in July
1973. While it is also well established by the evidence that
foremen are, and for several years have been, members of
the Union and were in attendance at the ratification
meeting in July 1973; a crucial question raised by the
evidence is whether the foremen who attended the
ratification meeting communicated their knowledge of
Alicea's opposition to the proposed contract to other
management personnel of the Respondent ; or whether
their respective knowledge of Alicea's opposition is and
should be imputed to the Respondent . In this regard, it is
well established by the credible testimony, including
Shemtov's own testimony , that he, as the toolroom
foreman and the supervisor of Alicea , was "present" at the
ratification meeting.
Under the above circumstances Shemtov's knowledge of
Alicea's concerted activity (opposition to the proposed
contract) is knowledge of Respondent . However, even if
Shemtov's knowledge of such fact were not imputed to
managerial personnel of the Respondent , the evidence is
clear herein by Shemtov's own credible testimony, when he
told Alicea that he did not think he could get him a nickel
raise because Manager Eidelberg called him (Shemtov) and
asked who was Alicea and what happened at the
ratification meeting ; that he told Manager Eidelberg about
Alicea's opposition speech; and that Manager Eidelberg
said the proposed contract was almost ready to be signed
by the parties when Alicea's opposition speech blew it.
Thus, it is clear that in either event, the Respondent
through Foreman Shemtov as well as through Plant
Manager Eidelberg had actual knowledge of Alicea's
concerted or union activity during the ratification meeting
in July.
The above statements by Shemtov to Alicea , in response
to Alicea's inquiry about a raise, implied a subtle threat of
reprisal or restraint against Alicea 's rights protected by
Section 7 of the Act, since Shemtov was Alicea 's supervi-
sor. Even though it is not established by the evidence that
Alicea was in fact entitled to a raise , that any of his
immediate coworkers had in fact received a raise , or that
he would have received a raise if Foreman Shemtov had
recommended him for such a raise , the subject statements
by Shemtov nevertheless might very well have restrained
Alicea or any employee from further expressing his
opposition to factors which are the proper subject of
collective bargaining and protected by Section 7 of the Act.
Although Shemtov, in denying Alicea's version of the
subject statements, said he was merely talking to Alicea as
a friend in pointing out why it was perhaps not appropriate
to request a raise at that particular time, the fact remains
that Shemtov was Alicea's supervisor, and as such, was
therefore placing the inappropriateness of recommending
him for a raise upon Alicea's recent concerted or union
activity. This explanation by Shemtov is not only an
acknowledgement that superior managerial authority knew
about Alicea's concerted or union activity and probably
looked upon it unfavorably, but it is also clear evidence
that Shemtov and other managerial staff had a somewhat
negative, if not animus, attitude towards Alicea's concerted
or union activity (vociferously opposing the proposed
contract) protected by Section 7 of the Act. Hence,
Shemtov, as supervisor having suggested to Alicea that he
(Shemtov) should not recommend, or that he on his own
thought it inappropriate to recommend Alicea for a raise,
based upon Alicea's previous concerted or union activity,
appears to make such suggestion , failure on refusal to
recommend, a violation of Section 8(a)(1) of the Act.
However, in view of the fact that the evidence is
uncontroverted that Shemtov suggested it inappropriate,
rather than categorically advised Alicea, that he would not
recommend Alicea for a raise, does not constitute a threat
on Act of reprisal. In fact the undisputed credible
testimony of Shemtov was that he made the suggestion as
friendly advice to Alicea, and the record does not show
that Shemtov's relations with Alicea was not friendly or
antagonistic . However, even if Shemtov's suggestion and
his failure to recommend the raise were motivated by
subtle union animus , I nevertheless find that such action
was so subtle that even if it constituted a technical
violation of Section 8(axl) of the Act, it was so negligible
as to fall within the rule of de minimis and, therefore, was
not a violation of the Act.
With respect to the Respondent's decision to abolish the
manufacture of its own Kaufman lead screws and purchase
the same from the Kaufman Manufacturing Company, the
record is replete with credible evidence that the Kaufman
Company had been urging Respondent to purchase its
Kaufman lead screws from the Kaufman Company, and
the Respondent had been considering such suggestion
since 1971, if not sooner. More particularly, the record
shows that Respondent had considerable problems with its
manufacture of the Kaufman lead screws and in this
regard, conferred with representatives of the Kaufman
Manufacturing Company in the fall of 1973, at which time
it was again urged to purchase its lead screws from
Kaufman; that the Respondent then indicated it would like
to think about it, and the Kaufman Company thereupon
suggested Respondent try some of its lead screws. The
record shows that Respondent made purchases of Kauf-
man lead screws in June and November 1973, and more
specifically on January 21, 30, and 31, 1974, and in April,
May, and June 1974. The dates of these purchases support
the testimony of Manager Eidelberg when he stated that
10 1 credit the testimony of Maime Harrison because be appeared to be
testifying truthfully and her testimony is undisputed in the record.
ELECTRICAL FITTINGS CORPORATION
Respondent's decision to purchase Kaufman lead screws
started to evolve in about 1971, but that it made a definite
decision in about December of 1973 to purchase lead
screws from the Kaufman Company. He later stated that
this decision became absolutely permanent in April 1974.
In any event, the record of purchases of lead screws from
the Kaufman Company further supports Mr. Eidelberg's
testimony Respondent did not intend to manufacture its
own lead screws . Moreover, this position is further
supported by the evidence when it is noted that Respon-
dent did not replace either lathe hand position, previously
held by Alicea and Siegman , after Alicea was laid off on
January 11, 1974.
The record is further documented that the Respondent's
decision to purchase lead screws was an outgrowth of the
problems from occasional imperfection in its manufacture
of lead screws, which caused the Kaufman machines to
become inoperative resulting in a substantial slowdown in
production. Although it can be inferred from the evidence
of record that the Respondent laid off Alicea because of
his adamant opposition to the proposed contract which
was ultimately accepted by the employees 5-1/2 months
prior to his layoff, a comprehensive review of all of the
evidence of record renders such an inference insufficient to
conclude that Alicea's layoff was motivated by his
concerted and union activity 5-1/2 months before.
It is further well established by the evidence that owing
to several strikes which affected the flow of necessary
goods for manufacture, the Respondent was forced to have
its first major layoff of employees on or about January 11,
1974; that Alicea was one of some 70 employees laid off at
that time ; and that although nearly all of the employees
laid off were recalled except Alicea , it is particularly noted
that Alicea's job was the only job that was abolished by the
Respondent for the economic reasons hereinbefore estab-
lished by the evidence . Of course it is possible that the
Respondent (through Supervisors Eidelberg and Shemtov)
was unfavorably provoked by Alicea's strong opposition to
the proposed contract in July, thereafter harbored animus
towards him for such opposition and was thereby motivat-
ed to use the major layoff in January 1974, as a subterfuge
to terminate him for his concerted or union activity in July.
However, I am persuaded by a comprehensive review of all
of the evidence that such a possibility is merely inferential,
and therefore insufficient to support a conclusion and
finding that Alicea's termination by the Respondent was
motivated by his adamant opposition to the proposed
union contract . I believe that his view is amply supported
by the following factors:
a. After hearing Alicea's opposing position to the
contract, the Union at least took Alicea's proposal for a 1-
year contract to the Respondent , which was accepted by
the Respondent with qualifications.
b. The Respondent's qualified 1-year proposal was
submitted to the employees who voted against it.
c. The employees ultimately accepted the original 2-
year proposed contract.
d. Since the Union and the Respondent were victorious
in consummating their originally proposed 2-year contract,
it appears very unlikely that Respondent would have
1087
harbored animus towards one employee (Alicea) who was
its strongest opposition for 5- 1/2 months thereafter.
e. The record is barren of any evidence that Alicea was
entitled to a raise or that he was discriminatorily denied a
raise as a consequence of his opposition to the proposed
contract or other concerted or union activity.
f. The record is also barren of any evidence showing
that Alicea was discriminated against in any way after
making his opposition to the proposed contract known.
g. In fact the evidence shows that when Alicea got in
trouble with the intercom system on August 24 Respon-
dent did not try to terminate him but , upon his suggestion,
changed and reduced the disciplinary action (told to punch
out) it had previously issued.
h. The record is replete with evidence that the Respon-
dent had been seriously considering purchasing Kaufman
lead screws instead of manufacturing them for at least 3
years prior to Alicea's layoff.
i. Respondent decided to purchase lead screws in late
1973 in an effort to minimize or eliminate defective lead
screws which rendered its machines inoperative and slowed
down production.
j. Due to the unavailability of necessary materials to its
manufacturing process in January 1974, the Respondent
was forced to abandon its third shift and layoff approxi-
mately 70 employees.
k. The layoff was a real and reasonable economic
measure taken by Respondent and Alicea was included
among the employees laid off.
1. While some of the employees were recalled to work
after a week or two, the third shift was not reinstituted
until the first part of April.
m. A few days after Alicea was laid off in January,
Respondent decided to abolish the two lathehand positions
in the toolroom, of which fact Alicea was so advised, and
the other lathehand resigned January 28.
n. Alicea was not recalled by Respondent since his
lathehand position was abolished because the Company no
longer manufactured Kaufman lead screws.
o. A little lead screw work was performed by employee
Ortiz for about 3 weeks after Alicea was laid off.
p. Since that time no lead screws have been manufac-
tured by any employee of Respondent and no welders and
assemblers have been hired to fill the position Alicea had
occupied.
It is particularly observed that the evidence of record
does not support the allegations that Alicea was warned or
directed by Respondent to refrain from expressing his
opposing views on the proposed contract to the Spanish-
speaking employees; that Respondent actually refused
Alicea a wage increase; or that Respondent terminated
Alicea and refused or fail to recall him on account of his
concerted or union activity (opposing the proposed 2-year
contract) in violation of Section 8(a)(1) or Section 8(a)(3)
of the Act; and therefore allegations 7, 8, and 11 of the
complaint should be dismissed.
Upon the above findings of fact and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Electrical Fittings Corporation , the Respondent, is
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, is, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
3. By failing to recommend Alicea for a wage increase
and subsequently laying him off and terminating his
position , the Respondent has not engaged in unfair labor
practices in violation of Section 8(a)(1) and 8(a)(3) and (1)
of the Act.
[Recommended Order omitted from publication.]