Intergraphic Corp. of America

National Labor Relations Board - Board Decisions

Sep 26, 1966

160 N.L.R.B. 1284 (N.L.R.B. 1966)

1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Upon the basis of the foregoing findings and conclusions , and on the entire rec-
ord m this case, I find that Respondent 's obligation to make James Rakestraw and
Roger Rakestraw whole under the Board's Order and the court's decree will be dis-
charged by payment to them of the amounts set forth below , plus interest accrued
at the rate of 6 percent per annum from April 1, 1966, to the date of payment, less
the tax withholding required by Federal and State laws:
James Rakestraw_______________________________________ $6,526 43
Roger Rakestraw_______________________________________ 3,739. 17
RECOMMENDED ORDER
It is recommended that the Board adopt the foregoing findings and conclusions.
Intergraphic Corporation of America and Sign Pictorial & Dis-
play Union , Local 230, Brotherhood of Painters , Decorators &
Paperhangers of America , AFL-CIO and New York League of
Screen Process Employers , Inc., Party in Interest
Polygon Displays , Inc. and Sign Pictorial & Display Union, Local
230, Brotherhood of Painters , Decorators & Paperhangers of
America , AFL-CIO and New York Local 10, International
Brotherhood of Production , Maintenance and Operating Em-
ployees, Party to the Contract . Cases 29-CA--83 (f ormnerhj 2-
CA-10308) and 29-CA-110. September W, 1966
DECISION AND ORDER
On April 18, 1966, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He
also found that Respondents had not engaged in other unfair labor
practices alleged, and recommended dismissal of those allegations.
Thereafter, the General Counsel and Charging Party filed exceptions
to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning 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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner, as modified below.
160 NLRB No. 100.
INTERGRAPHIC CORPORATION OF AMERICA 1285
Although the Trial Examiner found that Polygon assumed the
status of a "successor employer" to Intergraphic, he also found that
there was no issue presented concerning the rights of the employees
who were discriminatorily terminated by Intergraphic on Septem-
ber 25, and October 1, 1964, as against Polygon. Based on the circum-
stances surrounding the cessation of business by Intergraphic and the
formation and subsequent operation of Polygon, we find that Polygon
is responsible for remedying all the unfair labor practices of Inter-
graphic.
In so concluding, we accept the Trial Examiner's findings of fact,
including his findings that Weidman was the sole owner of Inter-
graphic and established and conducted company policy; that his
activities resulted in Intergraphic's unfair labor practices; that he
closed down Bntergraphic while unfair labor practice charges were
pending against it; that he was the motivating force in the organiza-
tion and creation of Polygon; and that he subsequently controlled,
conducted, and was responsible for the direction of Polygon's opera-
tions in the same manner as he had done with respect to Inter-
graphic's operations. Under these circumstances, and based on the
entire record in this case, we find that, in order to effectuate the
policies of the Act, Polygon, whether viewed as the alter ego of
Intergraphic or as an instrument for evading the consequences of
Intergraphic's unfair labor practices, is obligated as the disguised
continuance of Intergraphic to remedy the unfair labor practices
committed by Intergraphic' as well as those committed under its
name. Accordingly, our order will run against both Intergraphic and
Polygon with respect to all the unfair labor practices committed
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondents, Intergraphic Corporation of America and Polygon
Displays, Inc., New York, New York, their officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to recognize and bargain with Sign, Pictorial &
Display Union, Local 230, Brotherhood of Painters, Decorators &
I N.L R B. v. Ozark Hardware Co., 282 F'.2d 1 (C A. 8, 1960 ), enfg. 119 NLRB 1130.
2 Member Jenkins does not consider Chemrock Corporation, 151 NLRB 1074 , relevant
to the Decision herein. Accordingly , he does not adopt that portion of the Trial Exam-
iner 's Decision which is predicated thereon.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paperhangers of America , AFL-CIO, as representatives of their
employees in the following unit :
All production employees of the Employer, exclusive of office
clerical employees, guards , watchmen , and all supervisors as
defined in Section 2 ( 11) of the Act.
(b) Refusing to sign the collective-bargaining agreement, reached
on September 25, 1964, by Local 230 and the New York League of
Screen Process Employers, Inc.
(c) Recognizing or contracting with New York Local 10, Inter-
national Brotherhood of Production , Maintenance and Operating
Employees , or any successor thereto, as a representative of their
employees for the purpose of collective bargaining with respect to
wages, rates of pay , hours of employment , or other terms and con-
ditions of employment , unless and until such labor organization shall
have been duly certified by the National Labor Relations Board as
exclusive representative of the said employees.
(d) Giving effect to the collective -bargaining contract dated
December 28, 1964, between Respondent Polygon and New York
Local 10, or to any extension , ,renewal, or modification thereof, unless
and until New York Local 10 shall have been duly certified by the
National Labor Relations Board as the exclusive representative of
the Respondent 's employees.
(e) Encouraging membership in New York Local 10, International
Brotherhood of Production , Maintenance and Operating Employees,
or discouraging membership in Sign, Pictorial & Display Union,
Local 230, Brotherhood of Painters , Decorators & Paperhangers of
America, AFL-CIO, by conditioning the hire or tenure of employ-
ment or any term or condition of employment upon membership in,
affiliation with, or dues payments to , any labor organization , except
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(f) Discharging or otherwise discriminating against employees for
engaging in concerted or union activity protected by Section 7.
(g) Coercively interrogating and threatening their employees
concerning their union membership and activities; telling their
employees they will not sign the collective -bargaining agreement with
Local 230 ; attempting to persuade their employees , by threats of
reprisal or promises of benefit , to cease engaging in a lawful strike,
picketing, or other concerted activities.
(h) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of the Act.
INTERGRAPHIC CORPORATION. OF AMERICA 1287
2. Take the following action designed to effectuate the policies of
the Act :
(a) Upon request, bargain collectively with Sign, Pictorial &
Display Union, Local 230, Brotherhood of Painters, Decorators &
Paperhangers of America, AFL-CIO, as the statutory representative
of the employees in the above-described unit, and upon request,
execute the collective-bargaining agreement negotiated on Septem-
ber 25, 1964, with Local 230 and the New York League of Screen
Process Employers, Inc.
(b) Withdraw and withhold all recognition of New York Local 10,
International Brotherhood of Production, Maintenance and Operat-
ing Employees as the exclusive representative of their employees for
the purpose of collective bargaining unless and until said labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(c) Reimburse each of their present and former employees who
joined New York Local 10 after December 25, 1964, for all initiation
fees, dues, and other moneys, if any, paid or turned over to said labor
organization.
(d) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed,
to all persons who went out on strike at the Intergraphic plant on
October 1, 1964, dismissing, if necessary, any replacements hired by
either Respondent Intergraphic after the inception of this strike or
by Respondent Polygon after the inception of its operations.
(e) Offer Joseph Flaherty, Francisco Nina, Gabriel Pagan, Ismael
Brown, Rafael Eschevestre, Jose Latorre, Ricardo Merizalde, Lewis
Richardson, Antonio Rodriguez, Alexander Rivera, Marvin Schentes,
Robert Schwinn, and Ira Wiener, full reinstatement to their former
or substantially, equivalent positions without prejudice to their
seniority or other rights or privileges, and make them whole, in the
manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(f) Notify each of the above-named employees if presently serving
in the Armed Forces of the United States of his right to full rein-
statement or reemployment, as the case may be, upon application in
accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the
Armed Forces.
(g) Preserve and, upon reasonable request, make available to the
Board or its agents, for examination and copying, all payroll records
and reports, and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Execute copies of the attached notice marked "Appendix." 3
Copies of such notice to be furnished by the Regional Director for
Region 29, after being duly signed by authorized representatives of
Intergraphic and Polygon, shall be posted immediately upon receipt
thereof, and be maintained by them 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 Intergraphic and Polygon to insure that said notices are not
altered, defaced, or covered by any other material.
(i) Notify the Regional Director for Region 29, in writing, within
10 days from the date of the receipt of this Decision, what steps they
have taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf
of, Sign, Pictorial & Display Union, Local 230, Brotherhood of
Painters, Decorators & Paperhangers of America, AFL-CIO, or
in any other labor organization, by discharging or otherwise dis-
criminating against employees in regard to their hire and tenure
of employment or any other term or condition of employment.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
position, without prejudice to their seniority or other rights and
privileges previously enjoyed, and make whole for any loss of
pay they may have suffered as a result of the discrimination
against them, in the manner described in the Trial Examiner's
Decision.
Joseph Flaherty Rafael Eschevestre Alexander Rivera
Francisco Nina Jose Latorre Marvin Schentes
Gabriel Pagan Ricardo Merizalde Robert Schwinn
Ismael Brown Louis Richardson Ira Weiner
Antonio Rodriguez
WE WILL NOT question our employees about their union mem-
bership, sympathy, or activities in a manner violative of Sec-
tion S(a) (1) of the Act, nor will we threaten them concerning
their activities or membership.
INTERGR kPHIC CORPORATION OF AMERICA 1289
WE WILL NOT tell our employees that we will not sign a con-
tract with the above-named labor organization, which is the
collective-bargaining representative of our employees.
WVE WILL NOT, by threats of reprisal or promises of benefit,
attempt to persuade our employees to stop engaging in a lawful
strike, picketing, or other concerted activities.
EVE WILL bargain collectively upon request with Sign, Pic-
torial & Display Union, Local 230, Brotherhood of Painters,
Decorators R Paperhangers of America, AFL-CIO, as an exclu-
sive bargaining representative of all employees in the appro-
priate unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
The appropriate unit is:
All production employees employed by all employer-
members of the New York League of Screen Process
Employers, Inc., including the Respondents, exclusive of
office clerical employees, guards, watchmen, and all super-
visors as defined in Section 2(11) of the Act.
WVE WILL forthwith sign the agreement negotiated on or about
September 25, 1964, with Sign, Pictorial & Display Union,
Local 230, Brotherhood of Painters, Decorators & Paperhangers
of America, AFL-CIO, by the New York League of Screen
Process Employers, Inc., if requested to do so by the labor
organization.
EVE WILL withdraw and withhold all recognition from New
York Local 10 International Brotherhood of Production, Main-
tenance and Operating Employees, as the bargaining representa-
tive of our employees for the purpose of collective bargaining
with respect to wages, rates of pay, hours of employment, or
other terms or conditions of employment, unless and until such
labor organization shall have been certified by the National
Labor Relations Board as the exclusive representative of our
employees.
WE WILL NOT give any force or effect to our bargaining agree-
ment entered into with New York Local 10 on December 28,
1964, or to any extension, renewal, or modification thereof, or
to any superseding agreement, unless and until New York Local
10 shall have been certified by the National Labor Relations
Board as the exclusive representative of our employees.
WE WILL NOT continue to deduct union membership dues or
fees for New York Local 10 under checkoff authorizations our
employees may have signed.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse all present and former employees who
joined the New York Local 10 after December 25, 1964, for all
fees, dues, or other moneys paid or turned over to that union.
IVE WILL NOT encourage membership in New York Local 10
or discourage membership in Sign, Pictorial & Display Union,
Local 230, Brotherhood of Painters, Decorators & Paperhangers
of America, AFL-CIO, or any other labor organization, by
conditioning the hire or tenure of employment or any term or
condition of employment upon membership in, affiliation with,
or dues payment to, any labor organization, except where such
conditions shall have been lawfully established by an agreement
in conformity with Section 8(a) (3) of the Act.
IVE WILL offer the employees who went on strike at Inter-
graphic Corporation of America, upon their request, immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, dismissing, if necessary any employees hired
since the beginning of the operations.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in exercise of rights guaranteed them by the
National Labor Relations Act.
INTERGRAPTIIC CORPORATION OF AMERICA,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
POLYGON DISPLAYS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 16 Court Street, Fourth Floor, Brooklyn,
New York 11201, Telephone 596-5386.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on November 2 and 6, 1964, a complaint was issued on
December 29, 1964, against Intergraphic Corporation of America alleging that it
had engaged in certain unfair labor practices affecting commerce within the meaning
of Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. A subsequently filed answer by this Respondent
denies the allegations of unlawful conduct as alleged in the complaint . This case
initially was set for hearing on February 15, 1965.
INTERGRAPHIC CORPORATION OF AMERICA 1291
Upon charges filed on March 5 and 6, 1965, a complaint was issued on June 18,
1965, against Polygon Displays, Inc., alleging that it had engaged in certain unfair
labor practices affecting commerce within the meaning of Section 8(a)(1), (2), (3),
and (5) of the Act. A subsequently filed answer denies the allegation of unlawful
conduct as thus alleged in the complaint. The hearing in this proceeding was set for
July 12, 1965.
On June 22, 1965, the Regional Director for Region 23 (Brooklyn, New York),
issued an Order consolidating the above-captioned cases and notifying the parties
that the cases, as thus consolidated, would be heard on July 12, 1965. As reflected
in the formal papers in this proceeding, the Regional Director thereafter granted
five postponements of the hearing at the requests of the Respondents. A hearing on
the consolidated complaints was finally opened on October 25, 1965, before another
Trial Examiner. Upon the request of Respondent Intergraphic, the Trial Examiner
at this time granted a further postponement of the hearing until November 8, 1965,
stating that "Under no circumstances will any further adjournment be granted."
Nevertheless, upon the request of Respondent Intergraphic, a further postponement
was granted until November 22, 1965. A hearing was opened on the said date
before Trial Examiner John P. von Rohr and continued on November 23-24, 1965,
and on November 30 and December 1, 1965. No counsel appeared as representative
of either Respondent Intergraphic or Respondent Polygon. However, in view of
the numerous prior postponements which resulted in a substantial delay in the hear-
ing of this proceeding, and deeming it in the best interests of the employees involved,
the Charging Party, and the public, I granted the General Counsel's request that he
be permitted to proceed with his case.'
The General Counsel's oral argument at the conclusion of the hearing and a sub-
sequently filed brief by the Charging Party 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 AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Respondent Intergraphic Corporation of America is a New York corporation
with its principal office and place of business located at 32-02 Queens Boulevard,
county of Queens, city and State of New York, where it has been engaged in the
manufacture, sale, and distribution of commercial signs, displays, exhibits, and
related products in the silk screen printing industry. The answer of Respondent
Intergraphic admits that during the year 1964 it purchased materials in excess of
$50,000 which were transported in interstate commerce and that during the same
period it sold and distributed products valued in excess of $50,000 which were
shipped in interstate commerce. I find that Respondent Intergraphic is and has been
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The answer of Respondent Polygon Displays , Inc., denies that it is engaged in
interstate commerce within the meaning of the Act.
Respondent Polygon Displays, Inc., is a New York corporation with its principal
office and place of business located at 421 Hudson Street, in the city and State of
New York, where it is and has been engaged in the manufacture, sale, and distribu-
tion of commercial signs, displays, exhibits, and related products in the screen print-
ing industry?
For the following reasons, I find and conclude that Respondent Polygon Displays,
Inc., is and has been engaged in commerce within the meaning of Section 2(6) and
(7) of the Act:
1. William Feinberg, Respondent Polygon's president, admitted that during Poly-
gon's first full month of operations, January 1965, it sold and shipped products
manufactured by it valued in excess of $7,000 to customers located outside of the
State of New York. A projection of these January 1965, sales to out-of-State cus-
i At the opening of the hearing on November 22, 1965, Attorneys Morris H. Halpern and
Robert Tlumak moved that they be permitted to appear on behalf of William Feinberg,
president of Polygon Displays, Inc. Although Feinberg is not named as a party to this
proceeding , under all the circumstances described above, I permitted counsel to partici-
pate in the proceeding as an intervenor upon Feinberg's behalf.
2 These facts were substantially conceded by Respondent President Feinberg and are
also established by other credited and uncontroverted testimony.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers would tend to establish that Respondent Polygon's annual out-of-State busi-
ness would be well in excess of the $50,000 minimum requirement established by
the Board.
2. The record establishes that Respondent Polygon Displays, Inc., failed and
refused to comply with a subpoena duces tecum of the General Counsel which
requested that the Respondent Polygon produce records reflecting the amount of
value of all material shipped to its customers, the names of the customers to whom
such material was shipped, and the destination of the material shipped. Accordingly,
a further basis for asserting jurisdiction over Respondent Polygon is the rule estab-
lished by the Board in Tropicana Products Company, Inc., 122 NLRB 121 3 (The
facts reflected in the preceding paragraph establish that the Board has statutory
jurisdiction over Respondent Polygon.)
3. An additional reason for asserting jurisdiction over Respondent Polygon is my
finding, as hereinafter noted, that Respondent Polygon is a successor to Respondent
Intergraphic. The Board has held that jurisdiction acquired over a predecessor cor-
poration necessarily attaches to the successor corporation. Joseph E. Cote, 101
NLRB 1146.
H. THE LABOR ORGANIZATIONS INVOLVED
Sign, Pictorial & Display Union , Local 230, Brotherhood of Painters , Decorators
& Paperhangers of America , AFL-CIO ( sometimes referred to herein as the Charg-
ing Union or Local 230 ), and New York Local 10, International Brotherhood of
Production , Maintenance and Operating Employees , are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues; prefatory statement
The complaint against Respondent Intergraphic alleges in substance as follows
that: ( 1) during the month of September 1964, this Respondent engaged in various
coercive acts and conduct independently violative of Section 8(a)(1) of the Act;
(2) on September 25, 1964, this Respondent discharged four employees in violation
of Section 8(a)(1) and (3) of the Act; (3) on October 1, 1964, this Respondent
laid off 10 employees in violation of Section 8(a)(1) and ( 3) of the Act; (4) on
October 1, 1964, the employees of this Respondent engaged in a strike which was
caused by the Respondent's unfair labor practices ; ( 5) Respondent unlawfully
attempted to induce the employees to abandon the strike ; and (6 ) since on or about
October 5 , 1964, this Respondent refused to sign a collective -bargaining agreement
agreed upon between an Employer Association , of which it was a member , and the
Charging Union in violation of Section 8(a)(1) and (5) of the Act.
The basic gravaman of the complaint against Respondent Polygon Displays, Inc.,
is that Respondent Polygon is the successor to Respondent Intergraphic . Upon this
premise, the complaint alleges that: ( 1) Respondent Polygon (which allegedly
began operations on or about December 23, 1964 ), refused to recognize and bar-
gain with Local 230 within the meaning Section 8 ( a)(1) and ( 5) of the Act; (2)
by such conduct this Respondent prolonged the strike which began at Polygon on
October 1, 1964 ; and (3 ) Respondent Polygon rendered unlawful assistance in
violation of Section 8(a)(1) and (2) of the Act to New York Local 10, Interna-
tional Brotherhood of Production , Maintenance and Operating Employees , by recog-
nizing and executing a collective -bargaining agreement with this labor organization
on or about December 28, 1964.
I should note at the outset that the testimony of the General Counsel witnesses is
almost entirely unrefuted . So that this Decision will not be unnecessarily prolonged,
I shall therefore set forth the facts in narrative form without always referring to
the individual witnesses who testified. This narration of facts is to be considered as
In the Tropicana case, the Board held that it will assert jurisdiction in any case
where an employer refuses to provide the Board with information relevant to its juris-
dictional determination where the record developed at the hearing demonstrates the
Board's statutory jurisdiction, regardless of whether such record demonstrates that the
employer's operations satisfied the Board's jurisdictional standards See also Plant Csty
Welding and Tank Company, 123 NLRB 1146, Gino lanai Construction Co., 127
NLRB 721.
INTERGRAPHIC CORPORATION OF AMERICA 1293
my findings of fact; it is predicted not only upon uncontroverted testimony, but
is also based upon what I believe to be the credible testimony of the witnesses
whom I observed testify.
B. Intergraphic 's refusal to bargain
Respondent Intergraphic Corporation of America was formed in 1961 as the
result of a merger of three companies who were engaged in the silk screen busi-
ness .4 Like its predecessors, Intergraphic became a member of the New York League
of Screen Process Employers, Inc., herein referred to as the League, an association
of employers whose principal function is to negotiate collective-bargaining agree-
ments upon behalf of its members with Local 230, the Charging Union herein. In
1962, the League negotiated a collective-bargaining agreement with Local 230, the
terms of which rendered the said agreement effective from October 1, 1962 to
September 30, 1964. Intergraphic became a signatory to this agreement.5
About June 1964, Respondent Intergraphic was purchased by Steve Weidman,
who became its president and remained in that capacity at all times material
herein.6 Aside from the unfair labor practices found herein, it is undisputed that
Weidman continued to recognize the Union and that Respondent Intergraphic, at
least in part, continued to honor its contract with Local 230.
Pursuant to appropriate notice, the Union on July 30, 1964, notified the League
and each of its members, including Intergraphic, that it desired to negotiate a new
contract. Following negotiations which thereafter took place, the League and the
Union reached agreement on a new contract on about September 25, 1964, said
agreement being made effective from October 1, 1964, to September 30, 1966.
On October 5, 1964, Dante Morandi, business manager of Local 230, accom-
panied by Paul Villamagna, a busines agent, called upon Weidman at Intergraphic
and requested him to sign the above-mentioned collective-bargaining agreement.
According to the credited and unrefuted testimony of Morandi, Weidman refused
with the statement that, "I'm not a member of the Association. I'll never sign a
contract with Local 230." The fact of the matter is, however, that Respondent
Intergraphic at no time withdrew from the League nor did it ever evince any intent
to do so.7 Further, it is undisputed that Intergraphic never signed or in any other
way ratified or adopted the collective-bargaining agreement which was negotiated
between the League and the Charging Union.8 Without belaboring this matter
further, it is clear and I find that the sole reason for Intergraphic's refusal to recog-
nize the Union and sign the contract was part and parcel of a deliberate design to
unseat the Union as the bargaining representative of its employees, the pertinent
details of which are set forth in the succeeding sections herein. Accordingly, I find
that the Respondent, by its refusal to recognize the Union and to sign the contract
agreed upon on September 25, 1964, violated Section 8(a)(5) and (1) of the Act.9
C. Facts pertaining to interference, restraint, and coercion;
discriminatory discharges and layoffs
Prior to the advent of the purchase of Respondent Intergraphic by Steve Weid-
man in June 1964, Local 230 and the Company enjoyed a long period of harmoni-
ous relations. This relationship, however, was brought to an abrupt end when
"'Silk screen" is an art process whereby multicolored signs and displays are printed
by means of forcing paint through silk.
6 The three predecessor companies to Intergraphic also had been signatories to pre-1962
contracts between the League and Local 230
8 Weidman purchased and held 100 percent of Intergraphic's stock.
The credited and unrefuted testimony of David Goldberg, executive secretary and
counsel for the League.
8 Morandl testified that Intergraphic was the only member of the League who failed and
refused to sign the contract agreed upon on September 25, 1964.
9 There is no evidence in the instant case to overcome the presumption of the continued
majority status that flows from the League ' s recognition of the Union as majority repre-
sentative . Sheraton Creations , Inc, 148 NLRB 1503, enfd . N.L R B. V. Sheraton Creations,
Inc., 357 I+.2d 245 (C.A. 2) ; Retail Associates , Inc, 120 NLRB 388.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Weidman appeared upon the scene . Weidman , upon acquiring company ownership,
personally and sole-handedly established and conducted company policy. Insofar as
pertinent here, this policy took the form of a flagrant course of unlawful conduct,
personally directed by Weidman, with the ill-concealed purpose to eliminate the
Union as the collective-bargaining representative of the Company's employees.
The contract which was in effect between Intergraphic and Local 230 when Weid-
man took over the Company in June 1964, contained a nondiscriminatory-referral
provision whereby the Employer agreed to request the Union for additional employ-
ees when needed. It is undisputed that in the past Intergraphic had always abided
by this provision, it having been the function of Martin Kassover, the production
manager, to call the Union when new or additional employees were needed. Kass-
over was employed as production manager in 1961 and remained in that position
after Weidman purchased the Company.1°
One of the first changes made by Weidman upon assuming control of Inter-
graphic was to relieve Kassover of his duties to hire and fire and to assume these
functions for himself." In all other respects Kassover's duties as plant manager
remained the same. Shortly after taking over, Weidman hired a few nonunion
employees from sources outside the Union. Kassover was merely instructed to put
these men to work. Joseph Flaherty, shop steward for Local 230, protested the hir-
ing of the nonunion employees to Kassover, but the latter could only reply that
Weidman was doing the hiring.12
In August 1964, Weidman started to hire employees for a night shift, which he
instituted at this time. Approximately 15 employees were hired for the night shift,
all of them nonunion employees whom Weidman personally hired from other non-
union companies or sources outside the Union. This hiring for the night shift con-
tinued through the month of September until the total night shift complement
reached approximately 30 employees. Kassover testified that, with but two excep-
tions, all of these employees were nonunion. The circumstances surrounding the
institution of the night shift, as described by the credited testimony of Kassover,
were most unusual. Thus, some of the new employees were put on the day shift
before being transferred to the night shift. Kassover said that there was not enough
work to keep these employees busy during the day shift, but that nevertheless he
was required to keep them although they just stood about and were idle much of
the time. Kassover reported this to Weidman in September, but Weidman merely
said that "we'd have to keep these men until the end of the month." The operation
of the night shift, as described by Kassover, was something less than incredible.
Thus, according to the credited testimony of Kassover, many of the new employees
were assigned to operate machines with which they were totally unfamiliar. Kass-
over's further description of the night shift was based upon reports made to him by
James Gomez, the night foreman, plus his observation of the work performed by
the night shift when he (Kassover) came in to work in the morning. Thus, not only
did Kassover note that the jobs performed by the night shift were "run very badly,"
but he testified that various acts of deliberate damage to company property occurred
during the night. In addition , there was also pilferage of various company equip-
ment , such as tools from the carpentry division . Kassover testified that he reported
these matters to Weidman, but that Weidman merely shrugged his shoulders and
stated, "You'll have to sweat it out until the end of the month." Kassover also
related an incident during this period when the night foreman discharged a man
"on the spot ," this because the employee came in late to work, was arrogant, and
did not do his work . This discharged employee went in to see Weidman the next
morning. Weidman thereupon instructed Kassover to put the employee on the day
10 As noted hereinafter , Respondent Intergraphic went out of business at its location at
32-02 Queens Boulevard, Queens County, New York, on or about December 22, 1964.
Kassover remained with Intergraphic until October 2, 1964, at which approximate time
the employees engaged in a strike.
n Credited testimony of Kassover.
12 It might be noted that the contract also contained a union-security clause. Flaherty
testified that he told several of the newly hired nonunion employees that they would be
required to become members of the Union after 30 days, but that they replied they would
not join the Union.
INTERGRAPHIC CORPORATION OF AMERICA 1295
shift , this notwithstanding Kassover 's strong protest that the night foreman had a
very valid reason for his action and that the employee deserved to be discharged.
Significantly, this employee was one of the newly hired nonunion employees.
In the meantime , and particularly during the month of September, Weidman had
conversations with several employees, the substance of which rather clearly reflected
a foretaste of what was about to come. In early September, Olenza Mercer, whom
Kassover described as a setup man with "a little supervisory authority" 13 told
employee Elijah Williams that he should see Weidman in reference to his status
as a union member.14 Williams, who had worked for the Company for many years
and was one of its most experienced employees, thereupon went to the office and
spoke to Weidman. Weidman asked Williams if he knew that the contract would
expire on October 1. Williams said that he did. Weidman thereupon stated, "I don't
know whether Lenza (Mercer) told you or not, but I'm getting rid of all the union
men and I'm getting new men in. And I would like to keep you around." At this
point Williams stated that he was "a union man" and that he would "stick with the
union." After some further conversation, Weidman finally told Williams to speak
to his wife and to let him know of his decision. Several days later Williams advised
Weidman that he had spoken to his wife and that his wife told him to stay with
the Union. Weidman thereupon told Williams, "I can't force you to make up your
mind. You have to make up your own mind whether you want to stay with me or
stay with the Union."
About the middle of September, Weidman approached employee Rafael Escheves-
tre and stated that he would not sign a new contract with the Union at the end of
the month. He then asked Eschevestre if he would remain with the Company not-
withstanding the absence of a union contract. When Eschevestre replied that he
would stay with the Union, Weidman told Eschevestre that if he would remain
without a union he (Weidman) would give him a salary better than the union scale.
Also about the middle of September, Weidman told employee David Rolan that
Intergraphic was not going to sign the contract when it came up for renewal, and
at the same time advised him that it would be a "waste of money" for him to con-
tinue paying his union dues.15 Also in September, Weidman told employee Joseph
Sauer, a member of Local 230, that he would get a substantial wage increase after
October 1 . . . and that he would not have to be concerned about the Union after
that date.
Martin Sigmund was hired by Intergraphic in mid-September 1964. After work-
ing for several days without knowing what his pay would be (he was hired through
the New York Unemployment Commission), Sigmund finally broached Weidman
on the subject. When Weidman named his starting wages, Sigmund stated that he
expected more money. Weidman responded that there would be a "big chance" in
October and that he would do "much better" at that time. During the conversa-
tion Weidman also asked Sigmund if he was a member of the local union. Sigmund
replied that he was not.
On September 9, 1964, Union Representative Morandi called upon Weidman and
complained that new employees were being hired without the Union being notified
pursuant to the contract's referral clause. According to Morandi, Weidman at this
time stated that he would stop this practice and that he would call the Union when
new men were needed. (As noted above, however, Weidman thereafter continued
to hire employees outside of the Union.) Morandi testified that on this occasion
Weidman stated that a few of the union employees were slowing down on the job,
but did not mention any names. Morandi said that he would talk to the employees
13 Kassover testified that Mercer was brought to the shop by Weidman at the time
Weidman took over in June 1964. Mercer , who testified briefly in this proceeding, said
that he was hired by Intergraphic in "approximately" January 1964 . I believe Mercer was
in error as to this date and I credit Kassover 's testimony that Mercer was brought in by
Weidman. Mercer testified that he did not become a member of the Union at Intergraphic,
but that he became a member of Local 10 when he later worked for Polygon.
14 Specifically , Mercer told Williams that Weidman planned to get rid of all the union
men and this was the reason he should see Weidman . However, since there is insufficient
evidence to resolve the supervisory or nonsupervisory status of Mercer, I do not deem
Mercer's remarks to Williams as binding upon the Respondent.
15 This conversation was initiated by Rolan Rolan testified that he mentioned the sub-
ject of union dues to Weidman because he had heard rumors around the plant to the effect
that Weidman would not sign a new contract with the Union
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if in fact such was the case . Weidman responded , according to Morandi , that he
(Morandi) should not "bother" but that he would take care of the situation "in his
own way." 16
On Friday, September 25, 1964, Weidman discharged four employees, all mem-
bers of the Union and all alleged to be discriminatees herein, these being employees
Joseph Flaherty, Francisco Nina, Richard Marsh, and Gabriel Pagan. The facts
and circumstances surrounding these discharges are related hereinafter.
Upon being apprised of the above discharges, Morandi and the four discharged
employees came to the plant to see Weidman on the morning of Monday, Septem-
ber 28. After waiting for some time outside the office, Weidman finally came out,
accompanied by a policeman, and told Morandi that he had nothing to say to him,
that his attorney would be in touch with him later.17 Morandi stated that he was
there to protest the firing of the shop steward and the three other employees, but
Weidman terminated any further discussion by again stating that he had nothing to
say. That same day Morandi sent a telegram to Respondent Intergraphic and
requested it to appear before the Joint Conference Committee of the League on
September 30 concerning the Union's protest over the discharged employees. By
telegram dated September 29, Respondent Intergraphic advised Morandi that it
would not appear at the requested meeting. The telegram concluded with the state-
ment, "We feel that your behavior has breached and violated the agreement then
in existence. We do not consider the contract to be enforceable by you."
It will be recalled that October 1, 1964, was the date when the new contract
with Local 230 which was executed by the League on behalf of its members, includ-
ing Intergraphic, was to become effective. As previously noted, Intergraphic did
not sign the contract. On this same date, October 1, Respondent Intergraphic laid
off 11 employees , all of them members of the Union. The facts and circumstances
of this layoff, as related by the unrefuted and credited testimony of Production
Manager Martin Kassover, are as follows: When Kassover reported to work about
7:30 a.m. on October 1, Weidman called him in the office, advised him that about
10 employees were to be laid off that day, and told him to bring in the timecards
of all the employees. At the same time, Weidman asked Kassover to pick out the
names of the employees to be laid off. Kassover complied with Weidman's instruc-
tions and brought in the timecards. He thereupon sorted the timecards according
to seniority and submitted to Weidman the cards of the employees who had least
seniority. At this point Weidman stated that he would take care of the matter him-
self. He thereupon proceeded to sort out the timecards by placing those of the
union employees to one side and those of the nonunion employees to the other.18
Kassover left the office at this point. Shortly thereafter Weidman returned to the
racks the timecards of those employees who were to continue working, retaining
the 10 timecards of those who were to be laid off.
A great deal of confusion occurred when the employees reported to work that
morning. Those employees whose timecards were missing first came to Kassover
to find out what was happening. Kassover said that he assumed they were laid off,
but referred them to Weidman. Those employees who finally managed to see Weid-
man were told by him that he did not have work for them, that they were laid off.19
Word of the layoffs soon spread throughout the plant. Morandi arrived at the
plant around 10:30 a.m. with picket signs protesting the layoffs and he and the
10 laid-off employees began picketing the plant. Shortly thereafter a majority of the
other Intergraphic employees walked out and joined in the picketing, including
all of the union employees and a few of the nonunion employees. This picketing con-
16 Morandi subsequently did speak to the union employees concerning Weidman's charge
of a slowdown , but all asserted that "they were doing their job . . . that there was no
slowdown ." Numerous employees in this proceeding testified that they never engaged in a
slowdown ; there is no evidence that they or any of the employees did.
17 Morandi was never so contacted.
18I{assover testified that all this was done in his presence There can be no doubt but
that Weidman was aware which of the employees were members of the Union and which
were not. Thus , when Weidman took over the plant in June 1904 , all the employees ,who
were employed for 30 days were obligated to become members of the Union , this pursuant
to the union -security clause of the contract then in effect . As previously noted, Weidman
thereafter personally took charge of the hiring and hired practically all nonunion
employees.
19 Due to the confusion at the plant , not all the laid-off employees were able to see
Weidman.
INTERGRAPHIC CORPORATION OF AMERICA 1297
tinued until Intergraphic closed its doors and thereafter continued at the plant situs
of Respondent Polygon, the latter alleged to be the successor of Intergraphic.
D. Additional facts; conclusions as to the alleged Section 8(a) (1) and (3)
violations by Intergraphic
The complaint alleges that Respondent Intergraphic violated Section 8(a)(1) and
(3) of the Act by its layoff of the following employees, this consisting of the entire
group who was laid off on October 1, 1964: 20
Ismael Brown Richardo Merizalde Marvin Schentes
Rafael Eschevestre Lewis Richardson Robert Schwinn
Jose Latorre Antonio Rodriguez Ira Wiener
Alexander Rivera
The evidence reveals, and I find, that each of the above employees were mem-
bers of the Union . 21 The discriminatory nature of the termination of these employees
is so abundantly clear that little recapitulation is necessary . Thus, the predeter-
mined intent of Weidman to rid the Company of the Union is clearly revealed in
Weidman's conversation with employees , as previously set forth , in which he (1)
flatly stated that he would not sign a new contract with the Union ; (2) threatened
to rid the Company of union employees ', and (3 ) promised the employees an
increase in wages after October 1 , indicating that thereafter there would be no
Union at the plant. With this background of union animus and manifested declara-
tion by Weidman of what was to take place , Weidman proceeded to act precisely
in the manner he had predicted by summarily terminating the 10 union employees
on the very day of the contract's termination . As if this is not enough , the flagrant
character of these unlawful terminations was fully exposed by the credited testi-
mony of Kassover revealing that Weidman deliberately selected only union employ-
ees for layoff . Indeed, as will be noted hereinafter , Weidman subsequently engaged
in additional conduct violative of the Act, all of which further reflects upon the
discriminatory character of the October 1 terminations . Accordingly , and in view
of all the foregoing , I find that Respondent Intergraphic violated Section 8(a)(1)
and (3 ) of the Act by its termination of each of the above -named employees on
October 1, 1964.22 I further find that Respondent Intergraphic independently
violated Section 8(a)(1) of the Act by Weidman's conduct in: (1) telling employ-
ees that he would not sign a contract with the Union ; ( 2) promising employees
better wages if they would remain at work after October 1 without the Union;
(3) interrogating employees concerning their union membership and union sympa-
thies; and (4) threatening employees that he would get rid of all the union
members.
2° The General Counsel amended the complaint by withdrawing therefrom the name of
one Hector Nazario.
21 They were so identified by Union Representative Dlorandi and by Kassover In addi-
tion , all the employees named above, except Brown , Derizalde, and Rivera who did not
appear as witnesses , testified as to their membership in the Union.
22 Further evidence pointing to the discrimination is the fact that, according to the
credited testimony of Kassover , new men reported to the plant for job interviews on the
very day the union employees were laid off. Significantly , some of the employees who were
laid off, including Jose Latorre , Lewis Richardson , and Ira Wiener , were among the
most experienced employees, having worked for the Company ( or one of its predecessors)
since prior to 1961.
There is also another indication of Respondent 's discriminatory intent. Thus, in the
afternoon of September 30, Weidman called aside the Company truckdriver , Joseph
Gentillela ( not a member of Local 230 ) and told him that there would be "a little trouble"
at the plant the next morning , but that it would not affect him. Advising Gentillela
further that he was hiring a new group of employees the following day, Weidman asked
if Gentillela would cross a picket line. When Gentillela said that he would not , Weidman
offered to put the truck in Gentillela 's name, adding that then there would be "no
trouble " Without detailing the other testimony concerning Weidman 's final instructions
as to the unusual steps Gentillela should take in making his pickups and deliveries on the
following day, it is clear from the foregoing that Weidman anticipated trouble from the
Union as a result of his contemplated unlawful conduct in terminating the union
employees.
2 5 7-5 51-6 7-v of 16 0-8 3
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I turn now to the discharges which occurred on September 25, 1964. Three
employees were discharged in the afternoon of this day , these being Joseph Fla-
herty, the Union 's shop steward , and his two helpers, Francisco Nina and Pedro
Delestre. Although Flaherty was classified as a paint mixer, on the day in question
he and the two named helpers were engaged in running a three-color printing job.
While the details of this operation are not fully described in the record , it is clear
that Flaherty and his crew were on the production end of the job and that the
prints were run through a piece of equipment which included a color screen. The
job in question was started by the nonunion night crew on Wednesday , October 23.
When Flaherty and his crew took over on October 24, Flaherty ran a few prints
and observed that the job was not running right, that the prints were out of regis-
ter. He promptly called this to the attention of two foremen , one Linzey and Joe
Leonardo . According to the credited testimony of Flaherty , the foremen told him
that they could do nothing about it, that he should keep the job running Flaherty
and his helpers continued to do so and ran the job for the remainder of the day.
Before leaving, Flaherty called the defect to the attention of the employee who
took over the job for the night . The following day Weidman appeared , noted the
defect and called it to the attention of Flaherty and his helpers. Flaherty thereupon
called the setup man, Frank Campo. Campo attempted to adjust the screen, but
without success . Flaherty then again called the matter to the attention of Foreman
Linzey, but Linzey again advised that he should keep running the job. About noon
Flaherty left for lunch, at which point he was relieved by Foreman Linzey who
continued to run the job. Shortly after lunch Kassover advised Flaherty , Nina, and
Delestre that they were discharged . Kassover , who testified concerning this matter,
testified that Weidman instructed him to discharge these employees for having
produced defective work.
Although Weidman did not testify in this proceeding , upon the entire record in
this case I am persuaded , and I find, that the General Counsel has made out a
prima facie case in support of the complaint 's allegation that Flaherty and Nina
were discharged in violation of Section 8(a) (1) and ( 3) of the Act . 23 Casting
particular light on this situation is the credited testimony of Kassover to the effect
that in the early part of September 1964, Weidman specifically mentioned to him
that he was desirous of getting rid of Flaherty , the shop steward. Further, Kass-
over testified that when Morandi appeared at the plant 2 or 3 days later to protest
the discharges , Weidman caught him aside and bragged that he had fired the shop
steward and nothing was done about it. But aside from the foregoing , the credited
testimony of Flaherty reveals that he and his helpers were in fact not responsible
for the defective work. As previously noted, Flaherty called the difficulty of the
job setup, for which he was not responsible , to the attention of the two foremen.
Thereafter he continued to run the job, but this only upon the instruction of the
foremen that he do so.24 Moreover , following the discharges of Flaherty and his
helpers, the same job was assigned to employee Lewis Richardson . Richardson
credibly testified that he observed the same defects heretofore described and that
he called this to the attention of Olenza Mercer ,25 who had assigned him to the
job. Mercer advised Richardson that he was aware that the job was "no good," but
that he should run it anyway . When Richardson made a further protest, Mercer
stated, "Go ahead and run it. Don't worry about Flaherty . Mr. Weidman wanted
to lay him off anyway." Finally , it is noted that Flaherty and Nina were among
the Company 's oldest and most experienced employees, both having been employed
since 1961 or prior thereto . Kassover testified that both were good workers and
well qualified employees . Without belaboring this matter further, and against the
background of Weidman 's deliberate design to rid himself of the Union , the details
of which have been hertofore described , I conclude and find that Weidman utilized
the incident of the defective work, concerning which I have found these employees
were not in fact responsible , as a pretext to rid himself of Joseph Flaherty, the
2s The third discharged employee, Pedro Delestre , was a recently hied employee and
was not a member of the Union . He is not named in the complaint as an alleged dis-
criminatee.
24 The fact of the matter is that the work produced on this job was not so defective that
it was unusable . Kassover testified that although there was some spoilage, the bulk of
the job was shipped out to the customer and no complaint was thereafter iecen-ed
z; It will be recalled that Mercer , apparently a minor supervisor , was hired by Weidman
after Weidman purchased the plant . Ile was not a member of the Union
INTERGRAPHIC CORPORATION OF AMERICA 1299
union steward , and Francisco Nina, a union member. Accordingly, I find that
Respondent violated Section 8 ( a)(1) and (3) of the Act by its discharge of these
employees.26
Gabriel Pagan, a silk screen printer, was an employee of Intergraphic since its
assumption of the business in 1961 . During this entire period he was a member of
Local 230. He was discharged by Weidman at the end of the day shift on Septem-
ber 25. According to Pagan, whose testimony I credit, Weidman at this time told
Pagan that he was discharged and then asked "if he knew why." Pagan said he did
not. Weidman thereupon stated, "I was behind the rack watching you massaging
that screen for 15 minutes." Pagan said that earlier that afternoon he was given
a rush job which he was asked to complete by 4:30 p.m., this his quitting time.
Pagan said that he completed this job at 4:15 p.m. He then asked his foreman,
Frank Campo, to give him a screen so that he could set it up for the following
day. Campo did so and he proceeded to work on it until quitting time.
Pagan was one of Respondent 's oldest and most experienced employees. He
credibly testified that he was always entrusted by his supervisors to perform the
first quality, special jobs . Plant Manager Kassover testified that Pagan was a "very
good man ." Against the background of this entire case, it seems incredible , absent
a purpose to defeat the Union, that Weidman would so summarily discharge this
senior and experienced employee while at the same time hiring new employees,
some of whom , as previously noted, were entirely unfamiliar with Respondent's
operations and equipment . Upon the entire record in this case , and for the same
reasons which I have heietofore described as applicable to the discharge of Fla-
herty and Nina on the same day , I find and conclude that Respondent Intergraphic
discharged employee Gabriel Pagan in violation of Section 8(a)(1) and (3) of
the Act.
The complaint also alleges that on September 25, 1964, the Respondent dis-
criminatorily discharged another employee , one Richard Marsh . However, Marsh
did not testify and the record does not disclose the circumstances of Marsh's termi-
nation . In the absence of any probative evidence to support Marsh's case, I shall
recommend that this allegation of the complaint be dismissed.
E. The unfair labor strike at Inteigraphic; further violations of Section 8(a)(1)
As previously noted, the majority of Respondent Intergraphic' s employees went
out on strike spontaneously and simultaneously upon Respondent 's unlawful termi-
nation of the 10 union employees on the morning of October 1, 1964. There can
be no question, and I find that the strike was caused by Respondent's unlawful
conduct in terminating the union employees. Accordingly , it is found that the strike
of October 1 began as an unfair labor practice strike, as alleged in the complaint 27
As has been indicated , this strike continued until December 22, 1964, at which
time Intergraphic went out of business . In the meantime , and while the strike was
still in progress , Weidman engaged in the following conduct involving employees
on the picket line:
1. During the first week of the strike, Weidman approached employees Elijah
Williams an&Nobel Knight while they were picketing. He asked them to return
to work and promised them a steady job if they did. He also stated that he would
never sign a contract with Local 230.
2. On the second day of the strike Weidman spoke to employee Lewis Richard-
son who was picketing . Advising Richardson that he was "a good worker" and that
he "pulled his card by mistake," Weidman then told Richardson that he could have
his job back any time he wanted, but that he would never sign a contract with
Local 230.
3. Several days after inception of the strike, Weidman approached employees
Rafael Eschevestre and Jose Latorre as they were picketing in front of the plant.
He asked these employees to return to work, at the same time promising them a
20-percent increase in wages; but he further stated that he would not sign a con-
tract with Local 230.
21 The fact that Delestre , a nonunion employee, was discharged at the same time does not
deter from this finding . This point is too well settled to require the citation of any-
authority.
21 The Rangaire Corporation , 157 NLRB 682; Mastro Plastics Corp v N L R B . 350 U S.
270; N.L.R B. v. Deena Artware, Jnc., 198 F 2d 645, 651 (CA. 6), cert. denied 345 U.S.
906 ; Bud's Cabinet & Fixture Co., 154 NLRB 1168.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Approximately 2 weeks after the strike Weidman asked employee Antonio
Rodriguez, while on the picket line, why he would not return to work. Rodriguez
responded by saying, "If you have work for me, why did you lay me off?" Accord-
ing to the credited testimony of Rodriguez, Weidman thereupon stated, "Against
you people I have nothing, but I have no contract with Local 230." 28
I find that Weidman's attempts to induce the employees to return to work in the
manner indicated, his promises of benefits if they did, and his statements to these
employees that he would never sign a contract with Local 230, were not only
further violations of Section 8(a)(1) of the Act, but that such conduct of itself
had an effect of prolonging the unfair labor practice strike. Additionally, it will
be recalled that on October 5, 1964, which was after the inception of the strike,
Weidman refused Morandi's request that he sign the contract which had been
negotiated between the League and its employer members, including Respondent
Intergraphic. I find that the unfair labor practice strike was further prolonged by
Respondent's refusal to sign the contract at this time. As heretofore found, this
refusal to sign the contract constituted a refusal to bargain within the meaning of
Section 8 (a)(5) of the Act.
F. The complaint in Case 23-CA-140 against Polygon Displays, Inc.
The complaint in Case 23-CA-140 charges Respondent Polygon Displays, Inc,
with the commission of certain unfair labor practices which will be noted below.
Underlying the entire case against Polygon, however, is the allegation in paragraph
5 of the complaint which charges Respondent Polygon as being a successor to
Respondent Intergraphic. I turn first to the facts pertaining to this latter allegation.
1. Intergraphic ceases operating
The evidence establishes that Respondent Intergraphic closed its doors and ceased
operations on December 22, 1964, and that Respondent Polygon commenced opera-
tions about December 23, 1965 Both of these moves were planned and carried out
by Intergraphic's president, Steve Weidman. While the Intergraphic employees and
supervisory staff were not apprised of either of these events until only 2 days before
the closing of Intergraphic, the facts in the case leave no doubt but that each of
these maneuvers were planned by Weidman well in advance of their actual taking
effect.
The events surrounding the closing of Intergraphic were in large part testified to
by Alex Fils-Aime, who was hired by Weidman in latter October 1964 in the capac-
ity of foreman over the production and maintenance employees.29 Fils-Aime testi-
fied that during the month of December he observed that various pieces of equip-
ment were being removed from the plant.30 Upon finally inquiring about this matter
at the office, he was advised merely that the stock and equipment which was being
removed was either "worthless" or that it was being returned to other companies.
On December 20, 1964, Fils-Aime heard a rumor circulating among the employ-
ees to the effect that the plant was about to close. Seeking to ascertain the truth of
these rumors, Fils-Aime took the matter up wih Charles White, the art director and
production manager .31 White confirmed the rumor, stating that the plant would be
closed on December 22. At the same time White told Fils-Aime that the plant was
moving to a new location, but that he did not know the address. On the following
day, December 21, White requested that Fils-Aime furnish him a list with the best
28 Rodriguez testified that he understood some English but spoke very little. He said
that Weidman spoke to him in English. I am inclined to believe that Weidman's statement
to Rodriguez about the contract was more in line with what he had told the other
employees, as noted above. An interpreter was required for Rodriguez' testimony.
^ It appears that Fiis-Aime took over the duties of Martin Kassover, the production
manager who left Intergraphic's employ on October 2, 1964.
"I This included cutting machines , fans, and lighting fixtures . He further testified that
other "stock" was being removed.
31 White was hired at Intergraphic by Weidman in August 1964. White testified that he
was given the two titles indicated above. There is no question that White, as well as
Fils-Aime, was among the top supervisory eschelon during the latter period of Inter-
graphic's operation.
INTERGRAPHIC CORPORATION OF AMERICA 1301
qualified employees, stating that these would be taken along to the new plant. On
the same day Fils-Aime, together with White, drafted a list of approximately 15 of
the best qualified employees.32
Around 5 p.m. of the same day, and apparently in the midst of rather great con-
fusion,33 the employees were assembled around the timeclock and were told of the
cessation of operations.34 At the same time they were apprised that operations would
resume at a new location but they were not furnished with any of the details. How-
ever, approximately 7 to 10 of the maintenance force and employees were told to report
to 421 Hudson Street, New York City, on the following day. Others were advised to
report to the new address on January 9, 1965, while still others were told by White
to report there at various dates within the following 2 or 3 weeks 35 The same eve-
ning, December 21, two truckloads of equipment were moved from Intergraphic to
the Hudson Street address.36
2. Facts pertaining to the alleged successorship of Respondent Polygon
The evidence pertaining to the formation of Respondent Polygon was largely
adduced through the testimony of Polygon's president, William Feinberg. As has
been indicated, Weidman did not testify in this proceeding.
Feinberg testified that.he was introduced to Weidman by a relatve at a dinner in
the early part of December 1964, at which time Weidman indicated that he had a
business proposition he would like to make to him. Feinberg met with Weidman on
the following day to discuss the details of the latter's proposal. At this time Weid-
man explained that his father-in-law had invested $7,500 for equipment to be used
in a new venture but that the father-in-law did not have sufficient capital to follow
through with it. Weidman then proposed that if Feinberg would put up $7,500 to
"take his (Weidman's) father-in-law off the hook" that he would set Feinberg up in
the silk screen business, similar to the operation at Intergraphic.37 Although Fein-
berg did not accept this proposition immediately, he met with Weidman again about
December 20, at which time Weidman took him to the premises at 421 Hudson
Street, New York City, and showed him the space which he had leased at this loca-
tion 38 Feinberg testified that on this occasion he observed the presence of various
equipment and machinery which, he said, Weidman advised him was the equipment
purchased by the father-in-law. Feinberg said that at this time he also observed that
carpenters were at work in the installation of partitions. On the occasion of this visit
to the plant Weidman made an additional proposition to Feinberg. Thus, according
to Feinberg, Weidman at this time proposed that he would: (1) provide the cus-
tomers; (2) supply the employees, including the sales force; and (3) "give him
(Feinberg) all the help he needed" and that he (Weidman) would operate the busi-
ness himself. Feinberg thereupon accepted Weidman's proposition and the deal was
made.
Respondent Polygon was incorporated by Feinberg's attorney on December 28,
1964. However, Feinberg conceded that approximately 19 to 20 employees were
hired on December 22, 1964,39 although the record reflects that only a few employ-
ees in fact reported on this date. In addition, the record is clear that the plant was
being readied for operations prior to the actual date of incorporation.
32 The substantially corroborative testimony of Fils-Aime and White. White testified
that "[Weidman] asked me to determine what men I thought we would need." Although
White did not specify the exact date of this conversation, from his entire testimony it is
apparent that this took place within a day or two of the plant closing White testified
that Weidman gave him the address of the new plant during this same conversation.
i3 Fils-Aime testified that at this point the employees manifested great concern about
whether they would receive their pay for the week.
3S Fils-Aime, White, and Weidman were present The record is not clear as to which one
of them made the announcement
35 Fils-Aime credibly testified that about this time Weidman remarked to him, "I told
you we're not going to die, we're going to survive. We're moving to a different place
36 Credited testimony of Fils-Aime.
37 Weidman also described the Intergraphic operation to Feinberg.
38 It appears that this space was initially leased by Weidman from the American Direct
Mail Co , Inc., through a separate dummy corporation owned by him
39 Feinberg admitted making this statement in a prior affidavit However, he testified
that Weidman did the hiring of these employees.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated, Feinberg became the president of Polygon. He received a salary of
$100 per week40 Although Weidman was made the general manager (he was paid
$300 weekly), he did not become an officer of Respondent Polygon nor did he own
or acquire any of the stock of the new corporation. Of the 100 shares of issued
Polygon stock, Weidman owned 70 shares. The remaining stock is held by Weid-
man's children, with 15 shares belonging to Frank Feinberg, who was made Poly-
gon's vice president, and 15 shares belonging to Gary Feinberg, who was made the
secretary and treasurer.
Feinberg testified that he never fulfilled his agreement to pay the $7,500 for the
equipment which allegedly had been purchased by Weidman's father-in-law.41 How-
ever, in the first week of January 1965, the assets of Respondent Intergraphic were
sold at a foreclosure-auction sale. Weidman attended this sale with Al Policar and
Margaret Fink, the head salesman and office manager of Intergraphic, respectively,
both of whom became employees in the same respective capacities at Polygon. At
this sale Feinberg purchased the bulk of Intergraphic's equipment for which he paid
the sum of approximately $20,000.42 This equipment was installed at Polygon and
thereafter utilized in Polygon's production operations. Feinberg made a further
investment in the business by executing a new lease with the American Direct Mail
Co., for the space occupied by Polygon.43 The lease, which was dated January 9,
1965, was made effective through January 31, 1964, the rental being set at $1,667
per month, beginning January 1, 1965.
In addition to Weidman's becoming affiliated with Polygon in the manner above
indicated, the undisputed evidence reflects that also transferred to Polygon were vir-
tually all of Intergraphic's production and maintenance force,44 all of its office
employees,45 virtually all of its salesmen,46 and the entire supervisory staff 47
With respect to other factors which are pertinent and relevant to the issue of
alleged successorship, the evidence establishes and I find as follows:
1. The equipment and machinery used in the operations of Respondent Polygon
were substantially the same as that which had been previously owned and operated
by Respondent Intergraphic. As previously noted, some of this equipment was
moved from the premises of Intergraphic during the last several weeks of Inter-
graphic's operation,48 and two truckloads of such equipment were moved on the night
4° Feinberg admittedly had no experience in the sill; screen business, his previous occu-
pation or business having been devoted to real estate and the linen supply business.
Indeed, the evidence reflects that Feinberg spent very little time on the premises after
Polygon commenced operations.
41 Feinberg testified that he later discovered that he had been "conned" into the deal by
Weidman and that it was for this reason that he did not pay the $7,500. Throughout
the hearing Feinberg referred to Weidman as a "con man" and intimated that the entire
transaction was in the nature of a fraud perpetrated upon him by Weidman.
This sum included approximately $2,000 to $3,000 of equipment of another company,
Gotham Displays, which was also auctioned off at this sale.
43 The lease was signed by Feinberg as president of Polygon Displays
44 As previously indicated, a few of these employees reported on the first day of Poly-
gon's opening, while others reported at various intervals in the next few weeks. Fils-Alme
identified by name some 21 production and maintenance employees who were so trans-
ferred from Intergraphic to Polygon during the first month of its operation.
45 These Included Sylvia Barnes, the assistant bookkeeper and switchboard operator,
and Margaret Fink, the office manager and bookkeeper. Both of these employees had
worked for Intergraphic since 1961.
46 Sylvia Barnes named four salesmen, including the head salesman, all long-time
employees of Intergraphic, who transferred to Polygon. It appears that one salesman quit
and did not transfer.
47 These included Weidman, Charles White, Ales Fils-Aime, and Leonard Gorelick. In
addition, the estimator, Sidney Handler and the photographer, Javier Lazada, also trans-
ferred from Intergraphic to Polygon.
48 Concerning the missing equipment to which Fils-Alme referred, he identified this as
the wood shop's cutting tools, electric saws, and cutting machines. He also observed a
sharp decrease in the inventory. Additionally, William Bloovman, a business represent-
ative of Local 230, credibly testified that while on the picket line he observed various
equipment being removed from Intergraphic's premises which he identified as including
squeegees, paint, desks, chairs, lighting fixtures, racks, air conditioners, reflectors, a
typewriter, and "a lot of other equipment." Bloovman testified that he followed three
truckloads of this equipment to the 421 Hudson Street address (the Polygon location)
where it was unloaded. Other witnesses testified that a large Filbar drying machine and
a large camera were also moved from Intergraphic to Polygon.
INTERGRAPHIC CORPORATION OF AMERICA 1303
of its closing The remaining equipment, valued at approximately $18,000 to $20,000
was purchased by Feinberg at the auction-foreclosure sale of Intergraphic's physical
assets.
2. Polygon manufactured the same product as Intergraphic and it engaged in the
same silk screen business as did Intergraphic.49 Indeed, the credible evidence reflects
that many of Polygon's customers were the same customers who in the past had
done business with Intergraphic.50
3. The picketing continues at Polygon; Polygon refuses to recognize Local 230;
Polygon signs a contract with New York Local 210
Business Agent Dante Morandi, who was informed that Intergraphic equipment
was being moved to the 421 Hudson Street location, paid a visit to the latter prem-
ises on December 15, 1964. Upon entering the second floor of the premises,51 Mor-
andi observed the presence of several Intergraphic employees whom he said were
"fixing up the shop." Weidman was also present. After some discussion, Weidman
and Morandi went out for coffee. At this time Morandi asked if this was to be Weid-
man's new shop. Weidman acknowledged that it was. Morandi thereupon advised
that the new shop would be picketed along with Intergraphic. According to the cred-
ited testimony of Morandi, Weidman then stated that he would sign a contract on
behalf of Intergraphic, provided, however, that the Union would leave the new shop
alone. Morandi replied that he would make no such "deal" and the conversation ter-
minated without any resolution being made.
The Union began picketing the Polygon premises on December 26, 1964. At this
point the Union was not certain of the name of the new corporation. The legends on
the picket sign therefore bore the names of purported companies which were fur-
nished to Morandi by the elevator man at the Hudson Street premises, includ-
ing such names as Display Screens, R C.G., and Feinberg Displays. The picket signs
were changed within a few days to show the correct name of Respondent Polygon.
Morandi testified that the substance of the legend on the picket signs stated as fol-
lows. "Intergraphic Corporation has locked, out our employees. Polygon is allied
with Intergraphic Corp. of America and is doing the work of Intergraphic Corp. of
America." This picketing continued until the time of the instant hearing herein.
In the early part of January 1965, Morandi went to the premises of Polygon and
there met Feinberg for the first time. Morandi advised Feinberg that he believed
Polygon was the same company as Intergraphic and requested that Local 230 be
recognized by Polygon as the collective-bargaining agent of the Polygon employees.
Feinberg refused to grant such recognition, stating that Polygon was a new shop and
that he was the "boss." 52 Morandi met with Feinberg again in early February 1965,
and again requested recognition. Feinberg again refused, this time stating that
another union (Local 10) was being recognized by Polygon as the bargaining agent
of its employees.
Respondent Polygon recognized New York Local Union 10, International Broth-
erhood of Production, Maintenance and Operating Employees as the collective-
bargaining agent of its production and maintenance employees on December 28,
1964. On the same date it executed a collective-bargaining agreement with this labor
organization. The pertinent facts surrounding Polygon's recognition of Local 10 are
as follows: Myron Halpern, secretary-treasurer of Local 10, testified that six
employees of Polygon came to the offices of Local 10 at 5:30 p.m. on December 23,
1964, stating that they wished to join the Union. According to Halpern, they all
signed cards at this time. Further, these employees agreed to bring 16 to 18 other
Polygon employees to the office of Local 10 on December 28 at 6 p.m. In the mean-
time, on December 24, Halpern and Dominick Zulferino, also a Local 10 repre-
sentative, visited the premises of Polygon where they spoke to Margaret Fink, the
office manager, and advised her that they wished to speak to the employer because
Local 10 represented his employees. After speaking to Feinberg privately, Fink
.9 Feinberg testified, "We [Polygon] manufactured the same product that Intergraphic
'[sic] does "
w Such customers included American Chicle, Lady Clairol, Gimbels, Oberly & Newell,
Beacon Advertising, Custom Merchandising, and Interstate Stores. (Credited testimony of
Sidney Handler, the estimator, who worked for both companies )
51 Ilorandi learned from the elevator man that a silk screen shop was moving in on
the second floor.
52 Credited testimony of Morandi.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised that they would be contacted later 53 Halpern testified that sometime there-
after he received a call from Feinberg's attorney, Henry Friedlander, and that a
meeting was arranged for December 28 at 7:30 p m. Halpern further testified that
at 6 p m on December 28 he met with 16 Polygon employees When asked if
authorization cards were distributed to these employees, Halpern testified, "At that
particular meeting, no." In any event, Halpern and two other Local 10 representa-
tives met with Feinberg and Attorney Friedlander at Local 10's office later in the
evening of December 28 According to Feinberg and Halpern, the union representa-
tives at this time displayed the union authorization cards which they had in their
possession. After examining the cards, Friedlander stated that Polygon would recog-
nize Local 10 as the Company's bargaining representative. After approximately 2
hours of discussion, agreement was reached on the terms of a contract and the con-
tract was signed.54 The contract grants exclusive recognition to New York Local 10,
requires all employees within the bargaining unit to become and remain members in
good standing within 30 days after the commencement of their employment or 30
days after the effective date of the contract, whichever is later, and provides for
Respondent's deductions of dues from the wages of those employees who sign writ-
ten authorizations to that effect.
G. Concluding findings as to Polygon
As revealed in the facts set forth in the preceding sections herein, the evidence
clearly establishes, and I find, that Polygon assumed the status of a "successor
employer" to Intergraphic.55 Under established law it is well settled that Local 230,
the collective-bargaining representative of Intergraphic, continued to be the repre-
sentative of the employees of Polygon, the new and successor corporation.56 Accord-
ingly, I find that the failure and refusal of Polygon in January and February 1965,
to recognize Local 230 as the bargaining agent of its employees, and its failure and
refusal to bargain with it upon request, was in violation of Section 8(a) (1) and (5)
of the Act.57 I further find that Polygon violated Section 8(a)(1) and (2) of the
Act by recognizing New York Local 10, International Brotherhood of Production,
Maintenance and Operating Employees at a time when Local 230 was the collective-
bargaining agent.5i As the agreement contained union-security provisions which did
not comply with the proviso to Section 8(a) (3) of the Act because New York Local
10 was not the representative of the employees in the appropriate unit covered by
the agreement as provided in Section 9(a) of the Act. I find that Respondent Poly-
gon's execution of said agreement discriminated with respect to the hire and tenure
e3 Halpern said he left his business card with Fink Fink testified, and Halpern denied,
that at this time she was handed "a bunch of signed cards " She said she showed these
to Feinberg Since there are sufficient other facts to determine the issues herein, I do not
deem it necessary to resolve this conflict in the testimony
GS The contract was signed by Feinberg on behalf of Polygon. It was made effective
from December 28, 1964, to December 27, 1967.
55 Thus, it has been established that Polygon was engaged in producing the same prod-
uct manufactured by Intergraphic, using substantially the same employees, equipment,
fixtures and materials, with sales being made to substantially the same customers.
e0 NLRB v. Auto Ventshade, Inc, 276 F.2d 203 (C.A. 5); NLRB v. Downtown
Bakery Corp., 330 F.2d 921 (C A. 6) ; Ni,.R B v. Hoppes Manufactiti ing Company, 170
F.2d 962 (C A. 6) ; N.L R B. v. Arthur J Cotten d/b/a Kiddie Hover Manufacturing Com-
pany, 105 F.2d 179 (C A. 6) ; N.L R B v Lundner Shoe Corp, 211 F.2d 284 (C A. 1) ;
N L R.B v. Albert Armato and Wire t Sheet Metal Specialty Co , 199 F.2d 800 (C A. 7)
57 It is immaterial that the Union had never been certified by the Board Cf. United
Mine Workers v Arkansas Oak Flooring Co, 351 U.S. 62. Indeed, in the instant case
Feinberg admitted that he had knowledge of Intergraphic's dispute with Local 230 prior
to the start of Polygon's operations
ss It is well settled that an employer may not lawfully recognize a labor organization
during the pendency of real question concerning representation Midwest Piping d Supply
Co, Inc, 63 NLRB 1060; Twin County Transit Mix, Inc.' 137 NLRB 1708. It would
appear that the violation is all the more apparent wheie, as here, the recognition
occurred at a time when the employer was obligated to recognise and bargain with the
current bargaining representative. Indeed, Feinberg, Polygon's president, admitted that,
"The purpose [for recognizing Local 10] was to get rid of the picket line, absolutely. It
was destroying me physically and my business "
INTERGRAPHIC CORPORATION OF AMERICA 1305
of employment thereby encouraging membership in New York Local 10 and dis-
couraging membership in Local 230 in violation of Section 8(a)(1) and (3) of the
Act.
The complaint against Respondent Polygon in Case 29-CA-140 does not charge
Polygon with having violated Section 8(a) (1) and (3) of the Act by failing to
reemploy and/or make whole the employees who were discriminatorily terminated
by Respondent Intergraphic on September 25 and October 1, 1964. Accordingly,
there is no issue before me as to the rights of these employees, if any, as against
Respondent Polygon. However, the complaint does allege that the strike by the
employee-members of Local 230 against Intergraphic, which I have found to be an
unfair labor practice strike, was continued and prolonged by the unfair labor prac-
tices of Respondent Polygon. Since the issue posed here is primarily one of remedy,
I shall discuss this matter under the section entitled "The Remedy."
There remains a final chapter to this case which, because it was not fully litigated,
I shall touch upon but briefly. Thus Feinberg, after reciting a long account of his
trials and adversities with Weidman, finally testified concerning an argument which
he had with Weidman on March 19, 1965, this concerning the signing of employee
payroll checks purportedly at a time when there were insufficient company funds in
the bank to cover the checks. Accusing Weidman of deceiving him with respect to
this and other financial matters, Feinberg said that on this day he finally left the
plant in disgust and departed for Miami Beach the next morning. Except to return
on June 14, when a fire occurred on the premises, Feinberg asserted that he has not
returned to the plant since. It is undisputed, however, that Feinberg still retains the
Polygon stock and holds a mortgage on the plant equipment.
Peculiarly enough, it appears that the plant continued to operate after March 19,
1965, notwithstanding Feinberg's departure While the details of this situation were
not developed in the record, Sylvia Barnes, the assistant bookkeeper, testified
that she continued to work for Polygon until November 22, 1965, at which time
the plant was closed by the Internal Revenue Service. In the latter connection,
Feinberg testified that he went to the plant during the course of the hearing and
observed a notice on the door stating that the property had been seized by the U.S.
Government. This is where the matter rested at the conclusion of the hearing.59
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activity of the Respondents, set forth in section III, above, occurring in con-
nection with their 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
It having been found that Respondent Intergraphic has violated Section 8(a)(1),
(3), and (5) of the Act, it will be recommended that Intergraphic, in the event it
resumes operations, cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Intergraphic discriminatorily terminated Joseph
Flaherty, Francisco Nina, Gabriel Pagan, Ismael Brown, Rafael Eschevestre, Jose
Latorre, Ricardo Merizalde, Lewis Richardson, Antonio Rodriguez, Alexander
Riveria, Marvin Schentes, Robert Schwinn, and Ira Wiener, it will be recommended
that it offer to each of them immediate, full, and unconditional reinstatement to
their former or equivalent positions, without prejudice to their seniority or other
rights, privileges, or working conditions, and make each of them whole for any loss
of earnings suffered by reason of the discrimination against them, by paying to each
a sum of money equal to the amount they would have earned from the date of the
discrimination against them until such discrimination has been fully eradicated, less
their net earnings during the period of such discrimination. Backpay with interest at
the rate of 6 percent per annum shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716
It will be further recommended that Respondent Intergraphic, upon request, bar-
gain collectively with the Charging Union, as the exclusive representative of its
se The development of further facts pertaining to the apparent demise- of Respondent
Polygon must necessarily attach to the compliance stage of this proceeding.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the appropriate unit with respect to wages, hours, and other condi-
tions of employment, and that it forthwith sign the agreement, which is effective
from October 1, 1964, to September 30, 1966, negotiated with the Charging Union
by the New York League of Screen Process Employers, Inc. It is also recommended
that Respondent Intergraphic offer the employees who engaged in an unfair labor
practice strike commencing on October 1, 1964, upon their application, immediate
and full reinstatement to their former or substantially equivalent positions, dismiss-
ing, if necessary, any employees hired since October 1, 1964.
In view of the nature and extent of the unfair labor practices herein found, it is
recommended that Respondent Intergraphic cease and desist not only from the
unfair labor practices found, but also from in any other manner infringing upon
the rights of its employees guaranteed in Section 7 of the Act.
Having found that Respondent Polygon has violated. Section 8(a)(1), (2), (3),
and (5) of the Act, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that Polygon, upon request, bargain collectively with the
Charging Union' as exclusive representative of its employees in the appropriate
unit with respect to wages, hours, and other conditions of employment, and embody
any agreement reached in a signed contract.
I turn now to the complaint's allegation that the unfair labor practice strike which
began at Intergraphic on October 1, 1964, was prolonged by the unfair labor prac-
tices of Respondent Polygon. Inherent in this allegation is what I understand to be
the General Counsel's contention' that the employees of Intergraphic continued to
be the "employees" of Polygon and therefore are entitled, upon their request, to
reinstatement at Polygon. I deem the issue as thus posed to be controlled by the
Board's decision in Chemrock Corporation, 151 NLRB 1074. The Chemrock case
involved a situation where the employer purchased a plant from its predecessor and
thereafter continued to produce the same products, on the same machines, with the
same employees as its predecessor. Other attributes of a typical successor situation,
which need not be detailed here, also were present. The Board found that the only
substantial change resulting from the transaction was a transfer of plant ownership.
At the time of the transfer of ownership, the employer refused to bargain with the
collective-bargaining representative of a group of truckdrivers concerning their con-
ditions of employment with the new corporation, but bargained with these employ-
ees directly. These employees informed the employer that they would not accept
the employer's terms for employment, but that it should negotiate this matter with
their bargaining representative. The employer refused to do so and thereafter hired
new drivers. In finding that the drivers of the predecessor company continued to
enjoy the status of "employees," of the new employer, the Board stated as follows
[151 NLRB at 1078]:
We think the circumstances of this case present an economic relationship
"where all the conditions require protection" and where "protection ought to
be given." The transaction between Tennessee Products and the Respondent
represented nothing more than a change in ownership. Respondent continued
to operate the plant with the same management, the same production employ-
ees, and the same trucks. The driving jobs for which the five drivers were not
rehired remained the same. The Union and Tennessee Products had enjoyed sta-
ble labor relations and had executed collective-bargaining contracts for a period
of 10 years prior to the transfer of ownership. Thus the employing enterprise, of
which the drivers were an integral part, remained the same after its acquisition
by the Respondent. The Respondent, in fact, recognized the drivers' close rela-
tionship to the enterprise when it extended to the drivers preference in hiring,
rather than immediately hiring replacements.
We think that where, as here, the only substantial change wrought the sale
of a business enterprise is the transfer of ownership, the individuals employed
by the seller of the enterprise must be regarded as "employees" of the pur-
chaser as that term is used in the Act. Such individuals possess a substantial
interest in the continuation of their existing employee status, and by virtue of
this interest-bear a much closer economic relationship to the employing enter-
prise then, for example, the mere applicant for employment in the Phelps
Dodge [313 U.S. 177] case. The particular individuals involved here were
unquestionably "employees" of the enterprise at the time of the transfer of
plant ownership. The work they had been doing was to be continued without
change. Clearly employees in such a situation are entitled to seek through bar-
gaining to protect their economic relationship to the enterprise that employs
them.
INTERGRAPHIC CORPORATION OF AMERICA 1307
The facts in the instant case, as they have been heretofore detailed, are on all
fours with the Chemrock case; for here, as in that case, the only substantial changes
in the transaction that resulted in the transfer and sale of Intergraphic's operation
to Polygon was a change of ownership.su Indeed, there is an additional factor pres-
ent in this case which lends even stronger support to the Board's Decision in the
Chenirock case. Thus, not only did Polygon refuse to bargain with the collective-
bargaining representative of Intergraphic's employees but in addition Polygon vio-
lated Section 8(a)(2) of the Act by recognizing a different labor organization at a
time when it was legally bound to recognize the bargaining representative of the
predecessor employer. That this was not in any sense a bona fide recognition is
clearly established by the admission of Polygon's president, Feinberg, that, "the
purpose (for recognizing Local 10) was to get rid of the picket line, absolutely."
Accordingly, I find that the Intergraphic employees who engaged in a strike on
October 1, 1964, continued to be "employees" of Polygon. As heretofore found,
the strike at Intergraphic began as an unfair labor practice strike and was thereafter
prolonged by Intergraphic's further unfair labor practices. I find that this strike
was further prolonged when it continued at Polygon by Polygon's refusal to bar-
gain with the Charging,Union in January 1965, and in February 1965, in violation
of Section 8(a)(5) of the Act. As unfair labor practice strikers, Polygon's striking
employees are, upon their unconditional application for reinstatement, entitled to
reinstatement. I shall therefore further recommend that Respondent Polygon offer
such employees as it has not reinstated, upon-their application, immediate and full
reinstatement to their former or substantially equivalent positions, dismissing, if
necessary, any employees hired since the inception of Polygon's business on or
about December 23, 1964.
As in the case of Intergraphic, and for the same reasons noted, I will recommend
that Polygon cease and desist not only from the unfair labor practices found, but
also from in any other manner infringing upon the rights of its employees guar-
anteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS* OF LAW
1. Integraphic Corporation of American and Polygon Displays, Inc., are employ-
ers engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Unions named in the caption of this proceeding are labor organizations
within the meaning of Section 2(5) of the Act.
3. All production employees of the Employer, exclusive of office clerical employ-
ees, guards, watchmen and all supervisors as defined in Section 2(2) of the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4 At all times material herein, Sign, Pictorial and Display Union, Local 230,
Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, has
been the exclusive bargaining representative of the employees in the aforesaid unit
within the meaning of Section 9(a) of the Act.
5. By refusing on and after October 5, 1964, to bargain with Local 230 as the
exclusive bargaining representative of its employees in the aforesaid unit, and by
refusing, on and after the aforesaid date, to execute and to maintain in full force
and effect the terms and conditions of the collective-bargaining agreement negotiated
by'Local 230 and the New York League of Screen Process Employers, Inc., on or
about September 25, 1964, Respondent Intergraphic has engaged in-and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) of the Act .
6. By refusing, in January and February 1965, and thereafter, to bargain with
Local 230 as the exclusive bargaining representative of its employees, Respondent
Polygon has engaged in unfair labor practices within the meaning of Section 8(a) (5)
and (1) of the Act.
7. By terminating the employment of Joseph Flaherty, Francisco Nina, Gabriel
Pagan, Ismael Brown, Rafael Eschevestre, Jose Latorre, Ricardo Merizalde, Louis
Richardson, Antonio Rodriguez; Alexander Rivera, Marvin Schentes, Robert
Schwinn, and Ira Weiner, Respondent Intergraphic engaged in discrimination to
discourage membership in the Union, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act; by the same conduct it inter-
fered with, restrained, and coerced its employees in the exercise of the rights
"It is immaterial that the plant was moved to another location. The new location was
In the same general area and the same employees worked at both plants.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. By interrogating and threatening its employees concerning their union mem-
bership and activities , by advising its employees that it would not sign a contract
with Local 230, and by attempting to persuade its employees , by threats of reprisal
or promises of benefit , to cease engaging in a lawful strike , picketing , or other
concerted activities , Respondent Intergraphic has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
9. By recognizing New York Local 10, International Brotherhood of Production,
Maintenance and Operating Employees , under the circumstances hereinabove
described , Respondent Polygon has committed unfair labor practices within the
meaning of Section 8(a)(2) of the Act.
10. By including a union -security provision and a dues check-off provision in its
unlawfully executed contract with said Local 10, Respondent Polygon has com-
mitted unfair labor practices within the meaning of Section 8(a)(3) and (1) of
the Act.
11. Respondent Intergraphic has not engaged in unfair labor practices within the
meaning of Section 8(a)(3) of the Act by its termination of Richard Marsh.
[Recommended Order omitted from publication ]
General Electric Company and International Brotherhood of
Electrical Workers, Local 1198 , AFL-CIO. Case 9-CA-3538.
September 37, 1966
DECISION AND ORDER
On May-16, 1966, Trial Examiner Robert Colin issued his Decision
in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in the unfair labor practices alleged
in the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof, and the
Charging Party filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
160 NLRB No. 103.