Insulation Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1960

127 N.L.R.B. 1440 (N.L.R.B. 1960)

1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insulation Manufacturing Company, Inc. and District 65, Retail,
Wholesale and Department Store Union , AFL-CIO. Case No.
2-CA-6786. June 22, 1960
DECISION AND ORDER
On March 7, 1960, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, 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. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a brief in
support hereof.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
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, Insulation Manu-
facturing Company, Inc., Brooklyn, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or in any other labor organiza-
tion of its employees, by discharging employees, or by discriminating
in any other manner in regard to their hire or tenure of employment,
or any term or condition of employment, because of their membership
in or activity on behalf of any such organization.
(b) Discriminating against employees because they have filed
charges or given testimony under this Act.
(c) Interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form labor organiza-
tions, to join or assist District 65, Retail, Wholesale and Department
1 Since the record, exceptions , and brief in our opinion adequately present the positions
of the parties, the Respondent's request for oral argument is hereby denied.
127 NLRB No. 167.
INSULATION MANUFACTURING COMPANY, INC. 1441
Store Union, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Carmelo Garcia, Alphonso P. Domenech, Juan Gon-
zalez, Feliciano Martinez, and Juan B. Hernandez immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay suffered by reason of the
Respondent's discrimination against them, in the manner set forth
in section V, "The Remedy," of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board and its
agents, for examination and reproduction, all payroll records and
other data necessary to analyze and compute backpay and reinstate-
ment rights required by this Order.
(c) Post at its plant in Brooklyn, New York, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Second Region (New
York, New York), shall, after being duly signed by the Respondent or
its representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for 60 consecutive days there-
after 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.
(d) Notify the Regional Director for the Second Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the complaint to the
effect that the Respondent committed unfair labor practices by assign-
ing employees to more arduous and less agreeable job tasks be, and
the same is hereby, dismissed.
3In 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."
560940-61-vol. 127-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, we hereby notify our employees that :
WE WILL NOT discourage membership in District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, or in any
other labor organization, by discharging employees, or in any
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT discriminate against employees because they have
filed charges or given testimony under the Act.
WE WILL NOT interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organi-
zations, to join or assist District 65, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer Carmelo Garcia, Alphonso P. Domenech, Juan
Gonzalez, Feliciano Martinez, and Juan B. Hernandez full and
immediate reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority and other rights
and privileges, and will make them whole for any loss of pay
incurred as a result of their discharges.
All our employees are free to become, or refrain from becoming,
members of the above-named Union or any other labor organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
INSULATION MANUFACTURING COMPANY, INC.,
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.
INSULATION MANUFACTURING COMPANY, INC. 1443
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices filed on August 5, 1959, by District 65,
Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union,
against Insulation Manufacturing Company, Inc., Brooklyn, New York, herein
called the Respondent, the General Counsel issued a complaint dated October 14,
1959, alleging violation of Section 8 (a) (1) and (3) of the National Labor Relations
Act (61 Stat. 136) by the Respondent.
In substance the complaint alleged that: (1) On various dates in July 1959, the
Respondent through William Starke -and/or Walter Dunham, interrogated employees
concerning their membership or activities on behalf of the Union, warned employees
against membership in or assistance to or support of the Union, promised employees
economic and other benefits if they refrained from union membership, assistance, or
support, and interfered with the distribution of pamphlets and with other organiza-
tional activity; (2) about July 27 and 28, 1959, assigned Alphonso P. Domenech,
Juan B. Hernandez, and Juan Gonzalez to more arduous and less agreeable job tasks
because of their union affiliation or activity; (3) about July 20, 1959, discharged Car-
melo Garcia, and about July 28, 1959, discharged Hernandez, Domenech, Gonzalez,
and Feliciano Martinez, because they had joined or assisted the Union or engaged in
other concerted and protected activities.
Under date of October 23, 1959, the Respondent filed its answer denying the
commission of unfair labor practices.
Upon due notice a hearing was held before the Trial Examiner at New York,
New York, on various dates from November 16, 1959, to December 2, 1959,
inclusive. All parties were represented by counsel, and were afforded full oppor-
tunity to present and to meet relevant evidence, to examine and cross-examine
witnesses, to present oral argument, and to file briefs and proposed findings of fact
and conclusions of law. At the opening of the hearing the General Counsel amended
the complaint to allege that about September 1959, the Respondent by its executive
vice president, William Starke, in violation of Section 8(a)(4) of the Act, failed
and refused to complete an application of Alphonso P. Domenech to become a
taxicab driver, because Domenech had filed charges and given testimony under the
Act. The General Counsel and the Respondent engaged in oral argument on the
record. On January 18, 1960, the Respondent filed a brief which has been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Insulation Manufacturing Company, Inc, is a corporation duly organized under
the laws of the State of New York, maintaining its principal office, plant, and place
of business at 11 New York Avenue, in the borough of Brooklyn, New York, where
it is engaged in the manufacture, sale, and distribution of moulded plastic housings
and related products.
During the past year the Respondent, in the course and the conduct of its business
operations, caused to be manufactured, sold, and distributed at said plant, products
valued in excess of $100,000 of which amount 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.
The Respondent Company is, and at all material times has been, engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
District 65, Retail , Wholesale and Department Store Union , AFL-CIO, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
The case turns basically on issues of credibility. The evidence, in the main, is
sharply disputed. In arriving at the factual findings detailed hereinafter all the
testimony has been evaluated in the light of the other evidence and my estimate as
to credibility based on observation of the witnesses and their demeanor. Where
bottomed on testimony, the findings are in part from that of witnesses for the
General Counsel, generally corroborative; and in part from the testimony of
witnesses for the Respondent, though more substantially from the former.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The case involves the discharge of five employees within a few weeks after they
had taken steps to organize a union among the Respondent 's employees. The
principal persons referred to hereinafter are:
The five dischargees : Alphonso P . Domenech , Juan Gonzalez , Carmelo Garcia,
Feliciano Martinez , and Juan B . Hernandez.
Albert R . Turbane, Andy Bellemare, and Robert Burke , officials of the Union
during the period of time involved.
George W. Starke, executive vice president of the Respondent.
Walter Dunham, the Respondent 's principal supervisor , referred to herein as
Superintendent Dunham.
Knud W. Peters, the Respondent's office accountant.
Arthur Frey, a foreman for the Respondent.
The Dischargees Join the Union
In the latter part of June 1959 Alphonso Domenech and Juan Gonzalez contacted
the Union to be the collective -bargaining representative of the Respondent's em-
ployees. Domenech and Gonzalez also interested Martinez, Garcia, and Hernandez
in the project. As a consequence the five employees met with officials of the Union
at the union headquarters on July 6, 1959, at which time all signed application
cards. The group was given union literature for distribution to employees . During
succeeding weeks employees were spoken to outside the plant and cards and literature
distributed.
Dunham Talks to Domenech
From July 6 to 20 Alphonso Domenech was on vacation. On or about July 9,
according to the credited testimony of Domenech 's wife, Superintendent Dunham
came to the home of Domenech in the Bronx Dunham told Mrs. Domenech that
he wished to speak to Domenech. She said that her husband was not at home.
Dunham asked if Domenech was at the union headquarters. Mrs. Domenech replied
that she did not know. Dunham told her to tell Domenech that Dunham wished to
talk to him about the Union. Dunham then left.
On the following day Domenech and his wife went to the plant . While Mrs.
Domenech sat outside in the car , Domenech went into the plant and spoke to
Dunham.
Domenech 's credited testimony is that Superintendent Dunham told him that he
did not want Domenech to join the Union . Dunham further said that he liked
Domenech, that Domenech had been there for 8 years and was a good worker, and
that Dunham had him in mind for an assistant foreman's job. In concluding,
Dunham told Domenech to think the matter over . During the conversation
Domenech showed Dunham a letter of recommendation which Domenech had
received from an employer for whom Domenech had worked in Puerto Rico some
years before.
At the conclusion of this conversation Domenech sought out Juan Gonzalez at
Gonzalez' work place, gave Gonzalez two blank union cards, and sometime there-
after left the plant.
Dunham Talks to Gonzalez
Gonzalez' credited testimony is that, immediately after Domenech had given
him the union cards, Superintendent Dunham came to Gonzalez at his machine and
told Gonzalez that he (Dunham) knew what Domenech had come to Gonzalez
to talk about . Dunham suggested that Domenech had given Gonzalez material
from the Union. Because of concern for his job Gonzalez did not tell Dunham the
truth. Dunham then proceeded to discuss the Union with Gonzalez. Dunham said
that Gonzalez should not associate with Domenech , because Domenech wished to
bring in the Union . In that connection Dunham intimated that Domenech was not
really interested in the employees but had personal interests to further to the detri-
ment of the job. Dunham further said that Domenech was getting relief payments
while working and driving an automobile , and that Dunham proposed to report this.
Dunham went on to tell Gonzalez that Martinez, who was Gonzalez ' brother-in-law,
was only a temporary employee, and that if Martinez tried to follow the others with
respect to the Union he would be fired or laid off. However , Dunham said that he
would give Martinez a letter of recommendation.
Dunham also warned Gonzalez about Hernandez , saying that Hernandez was not
a steady employee and could not be depended upon. Dunham further said that
if the employees wanted a union the Respondent did not care , but that if they joined,
INSULATION MANUFACTURING COMPANY, INC. 1 445
the Respondent would take away the holidays and perhaps vacations , and that the
Union was not going to give the employees those things.'
Starke Speaks to Domenech
Domenech 's vacation ended on July 20. Domenech 's credited testimony is that
he was thereafter called to the office by Vice President Starke who spoke to him
about the Union . This was about July 24.
In substance Starke told Domenech the following : Starke said there was a union
activity in the plant and that he wished to know who was behind it. Starke referred
to Domenech 's long employment with the Respondent , said that Domenech was a
very good man, and that he (Starke ) had once considered giving Domenech a job
as assistant foreman . Starke went on to suggest that Domenech could continue to
work for the Respondent "all his life" if he "used his mind." At that point Superin-
tendent Dunham came in with two union pamphlets , which he said he had just taken
from Carmelo Garcia outside the plant.
Starke Speaks to Gonzalez
Sometime between July 10 and 28 Vice President Starke also spoke to Gonzalez
about the Union.
Gonzalez credibly testified that Starke came to him at his work place and directed
Gonzalez to stop the press and look at his face, saying that he wanted to talk to
Gonzalez. Starke asked Gonzalez if Gonzalez knew who wanted to bring the
Union into the plant . Gonzalez replied to the effect that it was all the employees.
Starke asked , "How about you?" Gonzalez replied that he would have to follow
the majority . Starke asked why. Gonzalez responded that Starke had once said,
in substance , that if anyone wished a wage increase he would have to start working
before shift time and produce more parts . Starke told Gonzalez that that had been
a "slip of the tongue" and "rash talk" on his (Starke 's) part. Starke further said
that Gonzalez was one of the "best fellows here," and that Gonzalez had therefore
"better think carefully what you are going to do." In conclusion , Starke suggested
that Gonzalez had time to consider the matter , and that they would talk further on
the following Monday. As will be seen , Starke spoke to Gonzalez on the subject
of union activity in the plant on Monday , July 27 2
I Superintendent Dunham denied the testimony of Domenech ' s wife as to his visit to
Domenech ' s home , the testimony of Domenech as to the substance of the conversation be-
tween Domenech and himself at the plant , and Gonzalez ' testimony as to Dunhani's con-
versation with Gonzalez about Domenech and the Union . I credit the testimony of
Domenech , his wife , and Gonzalez.
2 The findings as to Starke ' s conversation with Domenech and Gonzalez about the Union
are based on the testimony of Domenech and Gonzalez , which is denied by Starke The
latter testified that he was not in the plant on July 24, the date Domenech placed the talk
between himself and Starke . Whatever the date, I find that the incidents related above
occurred substantially as testified to by Domenech and Gonzalez.
Both Starke and Dunham admitted having had conversations with Domenech and
Gonzalez from late June to the time of the subsequent discharges , but insisted that these
conversations related to unusual behavior on the part of those two employees , hitherto
satisfactory , and had nothing to do with union matters . Indeed, Starke and Dunham
denied having any knowledge of the union activity before about July 29 or 30 In the light
of the record facts I cannot credit that testimony . In sum, Starke and Dunham asserted
that there was "unrest" in the plant beginning in late June , which they could sense but
not identify, seemingly centered about Domenech and Gonzalez , evidenced by apparent dis-
satisfaction on the part of Domenech with his pay, by a more somber and unsmiling
attitude on the part of the hitherto happy-go -lucky Gonzalez, and by a sudden camaraderie
between these two who had formerly not been friendly ; this reflected upon their work,
but efforts to ascertain the causes of the difficulty from supervisors and talks with the
employees themselves were unsuccessful because they could not "get through" to Domenech
and Gonzalez I do not credit these versions of the events The "unrest" to which
Starke and Dunham referred was plainly the union activity . I consider it incredible in the
circumstances and evidence of the case that the Respondent ' s responsible officials were not
aware of the union activity . The evidence is substantial that they sought to checkmate it.
In my opinion the testimony of the employees , though it may not be perfect in all particu-
lars , substantially reflects what occurred.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Dunham's Encounter With Garcia
On July 20, under circumstances related in more detail hereinafter, Superintendent
Dunham discharged Carmelo Garcia. Juan Gonzalez thereupon gave Garcia a
supply of union application cards and union literature which Gonzalez had received
from the Union. Thereafter Garcia distributed literature and cards outside the
plant on several occasions.
Some days after Garcia's discharge (and apparently on the same day that Starke
first spoke to Domenech, as related above), at the time of shift change in the late
afternoon, Garcia was engaged in the distribution of cards and literature about 2
blocks away from the plant.
Garcia's testimony, credited in its substantial particulars, is as follows.
As Garcia was engaged with three employees who had begun to sign application
cards, Superintendent Dunham approached. Seeing him, the employees put the
literature into their pockets. Dunham asked the employees whether they "followed"
Garcia. They responded that they did not. At that moment it began to rain.
The group dispersed, Garcia going into a nearby candy store, and Dunham and
the three men going into a protected areaway or hallway. After the rain ceased
Dunham came out of the areaway with some union pamphlets in his hand, at the
same time tearing up some other pieces of paper, presumably the application cards.
At this time Dunham told Garcia that it was "not safe" for Garcia to be in that
neighborhood.3
Starke's Second Conversation With Gonzalez
On Monday, July 27, as Gonzalez was changing his clothes at his locker at
quitting time, Vice President Starke came to Gonzalez and said that he did not want
Gonzalez or Domenech to be "fooling around with the Union" in the plant. Starke
further said that such activities should be confined to the outside-and on the
employees' own time. Gonzalez replied, in effect, that if he engaged in any such
activities it would be done in the street.
The Transfers
On July 27, 1959, the day before his discharge, Alphonso Domenech, who ordi-
narily worked on a manual or hand-operated press, was transferred to a double-base
press, which is an automatic or semiautomatic. On the following day, the day of
their discharges, Juan Hernandez and Juan Gonzalez were also transferred to dif-
ferent machines. Hernandez, who was operating a hand machine, was transferred
to Domenech's hand machine. Gonzalez, who was also working on a handpress, was
transferred to an automatic press making toilet seats, a job which he had formerly
performed.
The General Counsel contends that these transfers were discriminatory, an issue
resolved in the conclusions hereinafter.
The Discharges
1. The discharge of Garcia
Garcia had been employed by the Respondent at intervals over a period of 10
years, starting at 85 cents per hour. When he was terminated he was earning $1.60
per hour.
On July 9, 1959, Garcia went on his vacation. On July 20 he returned to work
and was discharged under the following circumstances, as reflected in the testimony
of Dunham, in this respect credited.
The starting time of Garcia's shift was 8 a.m. Garcia was seldom if ever late for
work. On the morning of July 20, however, Garcia was several minutes late. At
8.05 a in. Superintendent Dunham checked the timeclock and found that Garcia's
3 Dunham's version of this conversation, not credited, is that he merely asked the three
men what business Garcia had with them, stating that Garcia was no longer employed by
the Company, and inquiring whether Garcia ii.is trying to borrow money from them.
Dunham's explanation was that some weeks previously an employee had borrowed money
from other employees and then had left his employment, and that the employees who had
loaned the money blamed Dunham for not informing them beforehand of the departure
Dunham further incredibly testified that he was not aware of what Garcia was doing in
the neighborhood It has been seen that during Vice President Starke's conversation with
Domenech, related heretofore, Dunham brought in some union literature to Starke, saying
that lie had just taken it from Garcia outside the plant.
INSULATION MANUFACTURING COMPANY, INC. 1447
card had not yet been punched in. Dunham thereupon took Garcia's card from
the time rack and left to do something else. When he returned some 5 minutes
later Garcia was standing at the timeclock looking for his timecard. Dunham
remarked that Garcia was late. Garcia replied, "So I'm late." Dunham asked
Garcia why he was late. Garcia declined to give him -a reason, saying that he did
not have to. Dunham, in sum, then told Garcia that he could not use him anymore,
and sent him to the office to get his pay. Garcia went to the office where after some
delay he was given his pay and escorted from the plant.
2. The other discharges
On the afternoon of July 28 around 3 p.m., according to the testimony of Vice
President Starke-corroborated by Foreman Arthur Frey-and in this respect
credited, Domenech, Gonzalez, and Martinez were seen by Starke at the water
fountain. Starke asked them what was going on, saying that he had talked to
them before about walking around and talking during working time. At that point
Hernandez, who was working nearby, came up and asked what was going on.
Starke said that the matter did not concern Hernandez and that Hernandez should
go back to his press. Hernandez insisted that he wanted to know what was going
on and, according to Starke, asked, in effect, what Starke was going to do about it.
About the same time, according to Starke, he heard other voices, which he could
not identify, inquiring what he was going to do about it. Starke said that they would
see, and went to the office and ordered the pay of all four of the employees made
up. The shift knocked off about 3:40 or 3:45 p.m. At that time Starke called the
group into his office and discharged them. The reasons given by the Respondent
for the discharges are described in more detail hereinafter.
The Union Calls on Starke
On Thursday, July 30, 1959, Andy Bellemare and Albert Turbane, union officials,
accompanied by Domenech, called on Starke at his office in the plant. The union
officials told Starke, in substance, that they represented the discharged and other
of the Respondent's employees and asked for reinstatement of the dischargees. The
union officials further asked for an appointment to negotiate a collective-bargaining
contract. Starke replied, in substance, that it was about time that the union officials
got there, saying that he had been trying to "flush" them "out of the bushes" and
that this in fact was why he had discharged the employees. Starke further indicated
doubt that the employees had designated the Union. Attempts to reach the Re-
spondent's attorneys by telephone were not successful and the meeting ended
inconclusively.4
The Union then made plans to call a strike. In the following week-either on
Monday, August 3, or on Wednesday, August 5-union groups under the direction
of Robert Burke, then an official of the Union, gathered outside the Respondent's
plant early in the morning . After studying Burke from his office window for a time
Vice President Starke went outside, told Burke that he looked like a "regular fel-
low," inquired as to Burke's authority in the Union, and engaged him in conversa-
tion . There were placards in ^a nearby car and piled against it. Burke informed
Starke that the Union intended to call a strike and to picket, unless the people
were reinstated Starke indicated that he was willing to discuss the question. He
told Burke, as he had told Bellemare and Turbane, that he had known that the men
were in a union but that he did not know which one, and that he had discharged
them to "get you fellows out of the bushes." Starke further told Burke that he
would be willing to take back four of the dischargees. Burke said that he would
have to discuss with his superior the question of calling off the strike. Burke then
called the union headquarters, reported that Starke was prepared to discuss the
issues, and secured approval for a delay in the strike call. A conference was there-
upon arranged to be held at the office of the Respondent's attorneys later in the day.5
The parties met that afternoon in the office of the Respondent's attorneys. Present
were Burke and Turbane for the Union, four of the five dischargees, Vice President
4 The findings as to the July 30 meeting are based on the testimony of the union officials
and Domenech. The only item of substantial importance denied by Starke is whether he
said that he. had discharged the employees to bring the Union into the open As to this
I credit the contrary testimony.
H Starke' s version of this conversation with Burke, as well as a subsequent one to be
related, is somewhat different, though in large part corroborative. Insofar as there is
conflict I credit the testimony of Burke, who particularly impressed me as being a re-
sponsible , careful, and trustworthy witness It is to be noted in this connection that
Burke is no longer employed by the Charging Union.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Starke, Superintendent Dunham , Robert Starke (brother of Vice President Starke
and also an official of the Respondent ), and the Respondent 's attorneys. After
some discussion the meeting was recessed in order to enable Burke to visit his
daughter in an uptown hospital . Vice President Starke accompanied Burke up-
town, and waited for Burke outside the hospital , the two returning to the attorney's
offices thereafter . During this trip Starke told Burke , in a lengthy discourse, that
the Respondent would not reinstate any of the employees and would have no
dealings with a union.
Specifically Starke told Burke that there was not going to be a union in the
Respondent 's plant , that he knew that some of the employees had joined the Union
because of dissatisfaction over the Respondent 's failure to deliver on promised wage
increases and promotions , and that he knew who those employees were. Starke
further said that he had discharged the men in order to find out whom he was
dealing with , and that now that he had the Union in the open he wanted Burke,
who seemed to him a "sensible fellow," to understand the situation Starke went
on to say that he was not going to have any union "trouble," strikes or picket lines.
In the ride uptown Burke told Starke that the Union was not claiming a majority at
that time but was only asking for reinstatement of the dischargees . Starke then
said that he would reinstate four of the employees but not the fifth (whom Starke
did not identify ) because he had been involved in threats of violence against other
employees . In the ride back from the hospital, however, Starke told Burke that he
had now made up his mind not to take back any of the five dischargees , and that
the Union could do what it liked. Starke went on to say that attempts had been
made to organize the Respondent 's employees in the past and that he had stopped
them though he had been picketed . In the course of this discussion Starke suggested
that he was prepared to resort to force in meeting the situation.
When Starke and Burke arrived back at the attorney's office Starke told the
conferees , in sum, that he had already informed Burke that he would not take back
any of the dischargees , that the Union could do what it liked about it, and the
meeting broke up.
The Taxi Application
Sometime in the latter part of August 1959, Juan Gonzalez went back to the
plant in connection with an application by Gonzalez for a municipal license to drive
a taxicab . The application contained a certificate to be signed by the last employer,
as to the length of employment of the applicant , the date of the termination of the
employment , the reason for leaving , and whether the employer would recommend
the applicant as a fit person to be licensed . Gonzalez presented the application to
the Respondent 's accountant , Knud Peters , who filled out the Certificate of Last
Employer, gave the requested information , and indicated on the form that the
reason for Gonzalez' leaving the Respondent 's employment was that he was "un-
satisfactory." Peters answered in the affirmative the inquiry as to whether the
Respondent would recommend Gonzalez for a license.
In the following month Alphonso Domenech also sought to secure a taxi driver's
license. On September 25, 1959, Domenech went to the plant to have the Cer-
tificate of Last Employer executed . This time, however Peters declined to execute
the certificate and referred Domenech to Vice President Starke. The reason for
Peters' declination was the "trouble ," meaning the charges herein . But for that,
Peters testified , he would most likely have executed the certificate as he had done
in the case of Gonzalez.
When Domenech took the form to Starke, Starke also declined to sign it. Starke
told Domenech that the latter had filed charges against him . Starke further said
that he was not telling Domenech to drop the charge , but that he was not signing
the certificate now. Superintendent Dunham , called in by Starke , also declined to
sign the certificate.e
Conclusions
1. Interference , restraint , and coercion
It has been seen from the foregoing findings of fact that the Respondent became
aware of the union activity shortly after it began. Assertions by the Respondent
6The testimony of Starke and Dunham , not credited , is to the effect that the reason
they would not execute the certificate was that they did not know whether Domenech was
a good driver or had a license . Doubts as to Domenech 's driving skill, however bona fide,
do not explain the refusal to give the information requested in the application I cannot
accept the assertions that Starke and Dunham were genuinely motivated by such
considerations.
INSULATION MANUFACTURING COMPANY, INC. 1449
and its witnesses to the effect that the Respondent was unaware of any such activity
prior to July 29 or 30 cannot therefore be accorded any credence. Superintendent
Dunham called at the home of Alphonso Domenech in early July, while Domenech
was on vacation, to speak to Domenech about the Union. On the following day
when Domenech, in response to Dunham's visit to his home, came to the plant to
see Dunham, Dunham told Domenech that he did not want Domenech to loin the
Union. After Domenech gave some union cards to Juan Gonzalez in the plant
Dunham told Gonzalez that he knew the purpose of Domenech's coming to Gon-
zalez; warned Gonzalez against following Domenech into the Union; threatened to
discharge Martinez or to lay him off if Martinez affiliated with the Union; and
warned that the employees might lose their holidays and vacation if they joined
the Union. Thereafter Vice President Starke summoned Domenech to the office,
told Domenech that he wished to know who was behind the union activity in the
plant. Starke obliquely suggested that Domenech could have a lifetime job and
advancement to a supervisory position if he "used his mind": that is to say, avoided
involvement in the union activity.
About the same time Vice President Starke also spoke to Juan Gonzalez, in-
terrogated him about the union activity, and warned Gonzalez that he had better
"think carefully" about his course of action. On July 27 Starke told Gonzalez
that Gonzalez could not carry on any union activity in the plant and that it would
have to be done outside.
Without reference to other corroborative facts, it is evident from the foregoing
partial recital that the Respondent was fully aware of the union activity.
It is found that by the conduct detailed in this subsection the Respondent engaged
in threats of reprisal and promises of benefit to employees in connection with their
union activity. In this context the Respondent's interrogation of employees as to
the extent and leadership of the union activity was also coercive. By that conduct
and by the blanket prohibition against any union activity in the plant-voiced by
Vice President Starke to Gonzalez-there being no evidence of special circumstances
making so broad a rule necessary in order to maintain production or discipline
(Walton Manufacturing Company, 126 NLRB 697), the Respondent interfered with
restrained, and coerced employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Conclusions as to the discharges
All the discharged employees had satisfactory work records. Three of the five
were employees of long standing-over -a period of 8 to 10 years. Only one,
Hernandez, was a recent employee, having been hired January 10, 1959. One of the
five, Domenech, was apparently the second highest paid molder in the plant. The
Respondent thought enough of him to desire him as a supervisor. Three of them
had received raises in pay in the 6 months preceding their discharges. Garcia received
a wage increase in January 1959; Martinez one in the week of July 11, shortly before
his discharge; and Hernandez one only about a week prior of his discharge. Her-
nandez in fact received three raises in the short 6 months of his employment. The
record reflects praise of their work by their supervisors.
The Respondent originally contended that the employees were discharged for
insubordination. Thus, according to the Respondent's testimony, Garcia was dis-
charged by Superintendent Dunham because of his response to Dunham's inquiry
as to why Garcia was late on the morning after returning to work from his vacation.
The other four were assertedly discharged because of their conduct in connection
with the incident at the water cooler on July 28. When it was suggested during the
course of the hearing that the conduct of Domenech, Gonzalez, and Martinez, as
related in the Respondent's evidence, did not appear to reflect insubordination, the
Respondent's grounds for the discharges were amended to include "insolence."
Ultimately the reasons for the action were stated as "insubordination, insolence, and
arrogance."
I cannot credit the Respondent's assertions as to the motivation for the discharges.
With respect to Garcia it has been seen that his termination followed from his
having been late on the morning after returning from vacation. Garcia concededly
had a good record for punctuality. Indeed, his uncontradicted testimony is that
this was the only occasion on which he was late during the entire period of his em-
ployment by the Respondent. The circumstances of the incident, as reflected in the
testimony and the transcript, do not suggest insubordination, insolence, or arrogance
of such proportions as reasonably to impel an experienced supervisor of long stand-
ing, such as Dunham, to summary and definitive discharge. Granting that Garcia's
comment might have been provocative, Dunham's reaction-persisted in after ade-
quate opportunity for reflection-appears to me extraordinarily precipitate in the
circumstances. In sum, I do not think it ordinarily expectable action. Other evidence
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also tends to refute the claim that the incident was the reason for the discharge. Thus
a memorandum written by Dunham following the occurrence makes no reference
whatever to Garcia's lateness or his refusal to explain it as a ground for the termina-
tion. The memorandum states the following:
The past 6 to 8 weeks prior to vacation C. Garcia's work has been shoddy.
Many times he has passed smutty remarks about his foreman, assistant foreman,
etc. [It] has had a bad effect on the harmony in the shop.
Questioned about the apparent contradiction between this and his testimony Dunham
could give no satisfactory explanation.
With respect to the discharge of the other four employees on July 28 the asserted
reasons for discharge given by the Respondent are contradicted by the Respondent's
own records.
It will be noted that, insofar as reflected by the evidence, only Hernandez could
reasonably be accused of having been insubordinate in the incident at the water
fountain. The other three were neither directed, nor did they refuse, to do anything
which Starke told them to do. The evidence does not suggest insolence or arrogance
on the part of Domenech, Gonzalez, or Martinez. Indeed, on the basis of what is
disclosed, there is no basis for conclusion that the reaction of these three employees
or their conduct in connection with the incident was unseemly. There is no evidence
that any specific one of the three did or said anything Under the circumstances dis-
closed by Starke's testimony, the summary discharge of all four employees does not
seem reasonably imputable to the grounds asserted. Moreover, these assertions are
now contradicted by other evidence.
Following Gonzalez' discharge, the Respondent made four or five written state-
ments as to the reason for his termination. Thus on the day of his discharge, Starke
gave Gonzalez a layoff letter. Gonzalez' payroll record likewise contains reasons
for his termination. Twice in connection with Gonzalez' application for a taxi
driver's license the Respondent stated the reasons for his termination. In the latter
two cases the ground was given as "unsatisfactory." The payroll record recites as
the reason "smutty remarks," and then in another handwriting "unsatisfactory." The
letter given Gonzalez by Starke states that he was "laid off" for "making threatening
statements to his coemployees." There is now neither evidence, assertion, nor con-
tention that Gonzalez' work, production, or services were unsatisfactory, that he
made smutty remarks, or made threats to other employees. None of these documents,
all prepared by the Respondent, make any reference to the incident at the water
cooler, or to insubordination, insolence, or arrogance as reasons for the termination.
Martinez was given a layoff slip which likewise bore no relation to the reasons now
advanced. The layoff slip simply stated that he was a temporary employee, and
that the Company felt that although his work was reasonably satisfactory, he was
not physically suited to the job. However, Martinez' payroll record shows, under
reason for termination, the words "due to illness" crossed out, and underneath them
the word "unsatisfactory." The explanation given for the discrepancy in this case is
that Vice President Starke did not want to be "hard" on Martinez. There is no
satisfactory explanation as to why Starke chose to be "hard" on the others, indeed
to make their records untruthfully more damning than they were. Since Martinez
received his layoff slip at the same time that the others were discharged, this dis-
crimination is obviously not to be ascribed to momentary upset following the water
cooler incident.
It must therefore be found that the reasons now asserted by the Respondent for
the discharges of the five employees were not the true reasons. The question then
becomes whether the action was affected because of the employees' union membership
or activity In my opinion that question must be answered in the affirmative. It
has been seen that the five were the leaders in the union activity. Indeed, so far as
the record discloses, they were the only employees who took a prominent part in it.
We have seen that within a few days the Respondent became aware of the activity,
that it specifically associated Domenech and Gonzalez with it, and that it sought by
interrogation to ascertain the names of the employees behind the action. That the
Respondent was opposed to union activity by its employees is apparent from what
has been recited before. It warned employees about their participation, and engaged
in threats of reprisal and promises of benefit. Beyond that Vice Preident Starke in
his statement to Union Official Burke stated bluntly that he would have no union
in the plant, and indicated a willingness to use force to prevent it Against this back-
ground the only employees in the plant shown to have been connected with the union
activity were discharged within several weeks on grounds which are not substantiated
by the evidence. Even absent direct proof as to the motivation for the discharges,
INSULATION MANUFACTURING COMPANY, INC. 1451
the foregoing record leaves no reasonable conclusion except that the discharges were
because of the employees' union membership and activity.
However, we are not left to inference as to the reasons. As we have seen, on
three different occasions Vice President Starke stated that the employees had been
discharged in connection with the union activity. Under ordinary circumstances it
might seem implausible that Starke should make such admissions. Here, however,
four different witnesses have sworn that he made the statement. Thus, he made it to
the union officials in the meeting in his office on July 30. He made it again several
days later to Union Official Burke in his conversation with Burke on the street out-
side the plant. Finally Starke reiterated it again to Burke when he accompanied
Burke to the hospital several days later. In the light of all the evidence, and on the
basis of my observation, I think this testimony credible.
With respect to Hernandez, the facts I have found-mainly from, the Respondent's
testimony-disclose adequate ground for his discharge, if genuinely exercised. How-
ever, the case of Hernandez cannot be disentangled from the discriminatory web
which the Respondent has woven. I have concluded that the incident at the water
cooler was seized upon by the Respondent at a pretext for ridding itself of the union
leaders. Since Hernandez was one of those, his discharge for such reason was dis-
criminatory. That the Respondent had a valid ground for terminating Hernandez
is of no materiality where, as here,,that was not the motivation for the discharge.
Upon the entire record I conclude and find that on July 20, 1959, the Respondent
discharged Carmelo Garcia, and on July 28, 1959, discharged Alphonso P. Domenech,
Juan Gonzalez, Feliciano Martinez, and Juan B. Hernandez, and refuses to reinstate
them, because said employees had joined or assisted the Union or engaged in other
concerted activities for the purposes of collective bargaining or mutual aid or pro-
tection. It is further found that the Respondent thereby discriminated in regard to
hire and tenure of employment, discouraged membership in the Union, and interfered
with, restrained, and coerced employees in the exercise of rights guaranteed in Section
7 of the Act.
3. Conclusions as to the 8(a) (4) violation
It has been seen that Vice President Starke and Superintendent Dunham refused
to execute the Certificate of Last Employer in connection with the application of
Domenech for a taxi driver's license. In the light of the findings heretofore made,
it is concluded that Starke and Dunham refused to execute the certificate because
Domenech had filed charges under the Act. This action was violative of Section
8(a)(4).
Independently of that conclusion, however, I further find that Accountant Peters'
refusal to execute the certificate also constituted a violation of Section 8(a) (4). It
is true that Peters had no animus against Domenech, nor any conscious desire to
discriminate against him. By Peters' own testimony, however, he declined to execute
the certificate solely because of the outstanding charges in the case. But for that
Peters would likely have completed the application. Failure to do so for the stated
reason constituted discrimination against Domenech because of the filing of charges
under the Act.
That Domenech did not personally file the charges is not controlling. As
Starke's statement made at the time discloses, the Respondent considered that he
had. In any event it is sufficient for the purposes of Section 8(a) (4) that charges
are filed on behalf of the affected person. However, regardless of the applicability
of Section 8(a)(4) the Respondent's conduct was violative of Section 8(a)(1) of
the Act.
4. Conclusions as to the transfers
It has been seen that on July 27 Domenech was transferred from his handpress
to an automatic operation, and that on the following day Hernandez was trans-
ferred to Domenech's old machine, and Gonzalez shifted to a press making toilet
seats.
Gonzalez had worked on this press making toilet seats on two prior occasions,
the first about 8 or 9 months before July 1959, the second during his vacation period
in June 1959. On the first occasion Gonzalez had complained about the heat and
dust connected with the operation and had asked for a transfer. On the second
occasion, in June, however, he indicated his willingness to work on the toilet seats
and did so for 7 days of 'his vacation period.
The contention of the General Counsel is that these various transfers in July 1959
were discriminatory in that the work was more arduous and less agreeable. I find
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this contention unsustained . If Hernandez' transfer to Domenech's press was dis-
criminatory, I cannot find that Domenech's transfer from it was also discriminatory,
or vice versa. So far as Gonzalez is concerned he willingly accepted the work
making toilet seats during his vacation, only a month before July 28. Insofar as
the Respondent could judge from his most recent expression, Gonzalez had no objec-
tion to working on the toilet seat press. Under such circumstances the evidence does
not preponderate in favor of a finding that by transferring him the Respondent was
seeking to penalize Gonzalez.
It is concluded that the evidence does not substantiate the allegation of the com-
plaint to the effect that the Respondent assigned Domenech, Hernandez, and
Gonzalez to more arduous and less agreeable job tasks for discriminatory reasons.
It will therefore be recommended that that allegation of the complaint be
dismissed.
The Policemen
There is some testimony by witnesses for the General Counsel to the effect that
on the day of their discharge there were policemen in and about the plant in unac-
customed places, the inference being that the policemen were there at the insistence
of the Respondent in connection with interference with self-organization. This the
Respondent denies. The record indicates that policemen were not infrequently
about the plant in connection with traffic or other duties at an adjacent school. I
am not pursuaded that, whether summoned by the Respondent or not, the presence
of the policemen about the premises constituted unfair labor practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
its operations described 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
Having found that the Respondent has engaged in unfair labor practices it will
be recommended that it cease and desist therefrom, and take certain affirmative and
remedial action designed to effectuate the policies of the Act.
It will be recommended that, in accordance with the Board's usual policies, the
Respondent offer to Alphonso P. Domenech, Juan Gonzalez, Juan B. Hernandez,
Filiciano Martinez, and Carmelo Garcia immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole for any wage losses incurred as
a result of the discrimination against them.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Carmelo
Garcia, Alphonso P. Domenech, Juan Gonzalez, Feliciano Martinez, and Juan B.
Hernandez, thereby discouraging membership in a labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By discriminating against Alphonso P. Domenech because he had filed charges
under the Act, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not commit unfair labor practices by assigning Alphonso
P. Domenech, Juan B. Hernandez, and Juan Gonzalez to more arduous and less
agreeable job tasks.
[Recommendations omitted from publication.]