Mantzowitz Mfg. Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1965

153 N.L.R.B. 1517 (N.L.R.B. 1965)

MANTZOWITZ MFG. CORP. 1517
labor organization of our employees, to bargain collectively through represent-
atives of their own choosing, or to engage in other concerted activities for the
purposes of mutual aid, or to refrain from any and all such activities.
All our employees are free to become or remain, or not to become or remain,
members of any union.
MCCORMICK CONCRETE COMPANY OF S C., INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Snooks Vernon Lambert and David Richardson if pres-
ently serving in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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 compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 724-8356.
Mantzowitz Mfg. Corp and District 65, Retail , Wholesale & De-
partment Store Union , AFL-CIO. Case No. 2-CA-10212-2.
July 21,1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner George L. Pow=ell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in any unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 and the entire record in this case, including the
General Counsel's exceptions and brief, and finds merit in the excep-
tions. Accordingly, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the limited extent
consistent herewith.
The essential facts in this case are as follows:
On August 17 and 19, 1964, eight employees of Respondent in the
stipulated appropriate unit signed cards designating the Union as
their collective-bargaining agent. The unit consisted of 11 employees,
or at the most 12 employees, if Victor Maysonet, whose supervisory
153 NLRB No. 134
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status is disputed, is also included in the unit. On August 20, Union
Organizer Rothman went to Respondent's plant where he talked with
Manager Kessel. Rothman claimed a majority and requested recog-
nition and bargaining. Kessel said he "did not know,," and went into
the factory where he asked some of the employees if they had joined
the Union; some said "yes" and some said "no." Kessel then told
Rothman that he would have to talk to Manson, Respondent's presi-
dent, and he would let Rothman know. However, he never did advise
Rothman. On the same day, August 20, the Union filed a petition with
the Board seeking an election. On the next day, August 21, Respond-
ent received notice from the Board of the filing of this petition. Effec-
tive on the same day, August 21, Respondent announced a 25-cent-per-
hour wage increase for all but two employees in the unit. According
to the testimony credited by the Trial Examiner, Respondent told the
employees that the raise was given because of the new New York City
Minimum Wage Law (herein called the new Wage Law).1 However,
the new Wage Law was not to go into effect until September 1, and
the new minimum wage thereunder did not have to be paid until
October 1. Moreover, on August 25, a New York State supreme
court decision found the new Wage Law unconstitutional; the deci-
sion was announced on August 26 in the New York newspapers.
Nevertheless, although Respondent had knowledge of the decision,
Respondent still granted the wage increase on August 27, retroactive
to August 21.
We find, unlike the Trial Examiner, that the -wage raise was given
to undermine the Union, and not, as told to the employees, because of
the new Wage Law. In so finding, we rely particularly on the fol-
lowing : (1) the raise was given the very next clay after the Union
claimed a majority and requested recognition and bargaining; (2)
the raise was to be effective not only about 10 days before the new
Wage Law was to go into effect, but almost 6 -weeks before the new
minimum wage had to be paid thereunder; and (3) the raise was not
actually paid until a time when the new Wage Law already had been
declared unconstitutional to the knowledge of Respondent, and thus
the claimed reason for the raise no longer existed. In such circum-
stances, we think it apparent, and we find, that the new Wage Law
was not the real reason for the wage increase, but was merely a pre-
text seized upon by Respondent to thwart and destroy the unioniza-
tion of its employees. Accordingly, we find that Respondent vio-
lated Section 8(a) (1) of the Act by granting the wage raise.2
1 Some of the employees testified that Respondent told them in substance that the wage
raise was given because of the advent of the Union, but the Trial Examiner did not credit
this testimony.
2 See N.L R B. v. Exchange P¢rt8 Co., 375 U.S. 405.
MANTZOWITZ MFG. CORP. 1519
We have found that the wage increase was granted to undermine
the Union in violation of Section 8(a) (1). We find further, there-
fore, contrary to the Trial Examiner, that Respondent's refusal to
recognize and bargain with the Union on August 20 was not based
on a good-faith doubt that the Union represented a majority of the
employees, but rather in order to gain time to undermine the Union;
and that, as the Union at that time represented an uncoerced majority
of the employees in an appropriate unit ,3 such refusal was a violation
of Section 8 (a) (5) of the Act.4 It also follows, and we find, that
Respondent's unilateral granting of the wage increase in derogation
of the Union's status as the employees' duly designated collective-
bargaining agent was an additional violation of Section 8(a) (5).5
THE REMEDY
We shall order that the Respondent cease and desist from its vio-
lations of the Act and from like or related invasions of its employees'
rights, that it bargain with the Union, upon request, and that it post
an appropriate notice.
CONCLUSIONS OF LAW
1. By granting employees a wage increase for the purpose of dis-
couraging them from supporting the Union, the Respondent has
engaged in unfair labor practices affecting commerce within the mean-
ing of Section 8(a) (1) and Section 2(6) and (7) of the Act.
2. By failing to recognize and bargain with the Union upon its
request, and by granting a wage increase unilaterally, the Respond-
ent has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a) (5) and (1) and Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Mantzowitz Mfg. Corp., New York, New York, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Granting its employees wage increases in order to discourage
union membership or activity, and granting wage increases without
3 we find that the stipulated appropriate unit, as hereinafter set forth , is an appropriate
unit within the meaning of the Act. Contrary to the Trial Examiner 's findings, the
record shows that Ulate , Quiros, and Aquaviva knew that they signed union cards in
order to be represented by the Union , and therefore their cards should be counted. As
the Union thus represented 8 employees in a maximum unit of 12 employees , even if
he were included , we find it unnecessary to pass on the disputed supervisory status of
Victor Maysonet.
4 See Joy Silk Mills, Inc. , 85 NLRB 1263 , enfd . 185 F. 2d 732 (C.A.D.C.), cert . denied
341 U . S. 914.
5 American Manufacturing Company of Texas, 139 NLRB 815.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining with the Union as the collective-bargaining agent of its
employees in the appropriate unit described below, provided, how-
ever, that nothing in this Decision and Order requires it to very or
abandon any economic benefits which have heretofore been granted.
(b) Refusing to bargain with District 65, Retail, Wholesale &
Department Store Union, AFL-CIO, as the exclusive representative
.of its employees in the appropriate unit. The appropriate unit is:
All production and maintenance employees, including solderers and
polishers, employed by the Respondent, exclusive of office clerical
employees, guards, watchmen, professional employees, and supervisors
as defined in the Act.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all employees in the above-described
appropriate unit, and embody in a signed agreement any understand-
ing reached.
(b) Post at its plant at New York, New York, copies of the attached
notice marked "Appendix." a Copies of such notice, to be furnished
by the Regional Director for Region 2, shall, after being duly signed
by an authorized representative of the Respondent, be posted imme-
diately upon the receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
°In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a 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, upon request, bargain with District 65, Retail, Whole-
sale & Department Store Union, AFL-CIO, as the exclusive rep-
resentative of all the employees in the bargaining unit described
MANTZOWITZ MFG. CORP. 1521
below with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an under-
standing is reached, embody such an understanding in 'a signed
agreement.
The bargaining unit is :
All production and maintenance employees, including sold-
erers and polishers, employed by us, excluding all office cleri-
cal employees, guards, watchmen, professional employees,
and supervisors as defined in the Act.
WE WILL NOT grant our employees wage increases in order to
discourage union activity, or grant wage increases without bar-
gaining with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any of our employees in the exercise of their
right to join or assist any labor organization.
MANTZOWITZ MFG. CORP.,
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, Fifth Floor, Squibb Building, 745 Fifth Ave-
nue, New York, New York, Telephone No. 751-5500.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended , 29 U.S .C. Sec. 151, et seq., herein called the Act, in which Section 8(a) (1)
and (5 ) are involved.
This case was heard before Trial Examiner George L. Powell at New York, New
York, on December 1, 1964.1 It was based on a charge filed September 14, and a
complaint which issued October 29. Two issues are presented : whether Respond-
ent refused to bargain in good faith with a majority representative of its employees
in an appropriate unity and whether Respondent granted certain wage increases in
order to induce its employees to refrain from becoming or remaining members of
the Union and in order to undermine the Union and destroy its majority status.
Respondent denied commission of the alleged unfair labor practices . In oral argu-
ment at the close of the hearing, Respondent denied the commission of any unfair
labor practices on the following three grounds: ( 1) There was a good -faith doubt
as to majority status of the Union as some of the employees who signed cards did
not understand what they were doing; (2) assuming a majority , the Charging Party
never fully acknowledged to the Respondent that it was the majority representative;
1 All dates occur in 1964 unless otherwise noted.
796-027-66-vol . 153-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3) the wage raise granted employees was not granted for the reasons alleged by
the General Counsel but was granted in anticipation of the new New York City
Minimum Wage Law.
Upon the entire record in the case, including my observation of the witnesses, and
the oral argument 2 of the General Counsel and the Respondent, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Mantzowitz Mfg. Corp., a New York corporation, is engaged in the
manufacture, sale, and distribution of bracelets, jewelry, and related products in New
York City, New York. During the year preceding issuance of the complaint,
Respondent in the course and conduct of its business, purchased and caused to be
transported and delivered to its plant gold and other goods and materials valued in
excess of $50,000, of which goods and materials valued at $8,000 were transported
and delivered to its plant in interstate commerce directly from States of the United
States other than the State of New York, and goods and materials valued in excess of
$47,000 were transported and delivered to it, and received from other enterprises,
including, inter alia, Handy & Harman and I. Stern & Co., located in the State of
New York, each of which other enterprises had received the said goods and mate-
rials in interstate commerce directly from States of the United States other than the
State of New York. The parties admit and I find that the Respondent is and has
been at all times material herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
District 65, Retail, Wholesale & Department Store Union, AFL-CIO, herein
called Charging Party or Union, by stipulation of the parties, is admitted to be and I
find it is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
On the morning of August 20, Union Organizer Rothman, in the company of Rob-
ert Medina, went to Respondent's plant where he talked with Manager Ben Kessel.
After first introducing himself, he asked Kessel, "Why did you fire Charlie [Robert]
Medina?" Kessel told him.
Rothman then asked, "Do you know that most of your men have joined the
union?" Kessel replied that he "did not know" and promptly went into the factory
where he "asked some of the men if they had joined the union." Some told him
"yes" and some told him "no."
Rothman asked for recognition and bargaining. Kessel replied, "... just because
you came this minute, we have to get together immediately? I'll let you know. I
have to talk to Mr. Manson ...... The meeting lasted "15 or 20 minutes." Where-
upon Rothman left the plant never to return or telephone or communicate with any
of Respondent's officials thereafter.
The following day (August 21), Respondent received a notice of filing of a peti-
tion for representation in Case No. 2-RC-13621. On August 22 Respondent received
a notice of informal conferences scheduled for August 27 in the same case.
On September 14, the Union filed the charge alleging a refusal to bargain on
August 20 and alleging generally that "By these and other acts the Employer
[Respondent] has interfered with, restrained and coerced its employees in the exer-
cise of their rights under Section 7 of the Act."
B. The raise
Effective August 21 Respondent granted a 25-cent-per-hour raise to its employees
(except for Gregory Maysonet and Victor Maysonet). in the stipulated unit of:
All production and maintenance employees, including solderers and polishers,
employed by Respondent at its plant, exclusive of office clerical employees, guards,
watchmen, professional employees, and all supervisors as defined in 2(11) of the
Act.
2Briefs were not filed by the parties.
MANTZOWITZ MFG. CORP. 1523
Inasmuch as there is no issue as to whether the raise was made retroactive, I find
it was made on August 21. The raise amounted to $10 a week more for each
employee receiving it.
The General Counsel maintained that this raise was granted in order to induce
the employees to refrain from becoming or remaining members of the Union and in
order to undermine the Union and destroy its majority status. If the General Counsel
can establish these propositions by a preponderance of the evidence, a violation of
Section 8(a) (1) and (5) of the Act is made out.
As Respondent had received knowledge the day before the raise became effective
that at least some of its employees had joined the Union, it is necessary to examine
the evidence as to why the raise was made. If there is direct evidence that Respond-
ent's officials had told the employees the raise was given to cause them to drop the
Union, or had told them the raise was given because of the union activity, this would
interfere with, coerce, or restrain them in their union activity in violation of the Act.
Even absent this kind of direct evidence there might be evidence strong enough to
support an inference that the union activities caused the raise. The record as to
these possibilities is most revealing.
Carlos Medina, testifying for the General Counsel, said that Ben Kessel had told
him (with no one else present), "We give you $10 raise if you forget the Union."
Additionally, Carlos Medina testified that only the "foreman" (Victor Maysonet)
would bother the employees saying, "You people are stupid. What you need a
Union for?" Aquaviva, another witness for the General Counsel, testified that Man-
son (Respondent's president and the "boss" of the factory) had told him about the
Union and had told him that he (Manson) didn't want the Union "because we don't
want nobody to tell us how to run the business."
Kessel and Manson each denied making the statements attributed to them above.
As will be set out more fully below, I find that Victor Maysonet is not a supervisor,
so what he may have said would have no binding effect on Respondent. I credit
Kessel and Manson over the General Counsel's witnesses on their demeanor. In
addition to demeanor, Aquaviva first testified that Manson said nothing about the
Union. He was obviously not suffering from loss of memory but he surprised the
General Counsel who then showed him an affidavit he earlier had signed in which he
had stated that Manson told him he didn't want the Union "because we don't want
nobody to tell us how to run the business." He then changed his testimony to accord
with the affidavit. I do not credit the changed testimony. He never changed his tes-
timony that Manson had told all the employees that the raise was "because of the
law" (the new New York City Minimum Wage Law). The Act is not violated by an
employer telling his employees he is against a union "because we don't want nobody
to tell us how to run the business." But such a statement if linked up to a raise
would violate the Act because it would have the effect of a promise of benefit should
the employees reject the Union. In this case, even assuming the statement was made,
the evidence needed to link up the statement with the raise does not exist. For
example, there is no evidence that the statement was made before the raise, simul-
taneously with the raise, or sometime after the raise and this timing would be most
important. Likewise the General Counsel presented no evidence tending to show
Respondent granted the pay raise after receiving notice of the pending petition for
an election.3
As for the testimony of Carlos Medina, he was first of all an admittedly biased
witness being "mad" with Respondent because it had discharged his brother, Robert.
This anger against Respondent manifested itself when he later quit his employment
with Respondent because of the discharge of his brother. Further his testimony
that only Victor Maysonet would bother the employees about the Union is not con-
sistent with his testimony that Kessel told him the $10 raise was "if you forget the
Union." Finally, Carlos Medina testified that a few months before 4 he signed the
union card he had asked Respondent for a raise but was told at that time to wait for
the new minimum wage law. This indicates that Respondent was going to consider
raises (at least the employee was so told) when the new law was passed. This is
consistent with the general testimony of General Counsel's own witnesses that Man-
son told the employees the raises were being given because of the new law. Charles
Jones, another General Counsel witness, corroborates Manson that the raises were
due to the new law. As the employees were being told that the raises were because
of the new law they were not being promised a benefit if they rejected the Union and
the General Counsel has not sustained his burden of proof on this point.
S The parties merely stipulated that "on or about August 21, 1964, Respondent received
from the Board's Regional office a Notice of filing of the Petition in Case No. 2-RC-13621."
A On redirect examination.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends the timing of the raises creates suspicions because
the raises were made: (1) before the new minimum wage law became effective; and
(2) before the new minimum wage itself had to be put in effect. But suspicion does
not take the place of credible evidence. An examination of Respondent's case is
consistent with the above credible evidence that the raises were actually granted
because of the new minimum wage law. Respondent employs beginners in the busi-
ness and pays only the minimum wage. On August 20 it had four employees mak-
ing as little as the then Federal minimum of $1.25 an hour. The new New York
City Minimum Wage Law called for $1.50 an hour. By raising these four employees
$10 a week they were raised to the $1.50 per hour minimum. As Respondent's other
employees, up to this point, had been granted raises as they matured and gained
experience and ability, it is reasonable to believe, as Manson testified, that each
other employee would have to be raised at least $10 per week in order to keep a
somewhat similar relationship between the employees. Percentagewise their rela-
tionship would undergo a change, but their position vis-a-vis a salary scale would
remain constant. Respondent thereby raised all but two employees $10 a week.5
Finally, I see nothing in the mere timing of the raise vis-a-vis the effective date
of the law to infer the raise was really given in order to cause the employees to
reject the Union. The newspapers were full of news about the new minimum wage,
at least one employee (Carlos Medina) had been told of a raise possibility then based
on the new law some time before he signed a union card, and it is reasonable to
believe that employees who would be benefited by the coming new law would be
restively anticipating the receipt of more pay, if not already planning its spending.
That the Respondent brought its pay up to the new minimum wage a week before
the effective date of the law is, without more, merely a management decision. It
is not always possible to tender legal niceties and arguments as to the constitution-
ality of a law i to employees rather than expected raises. Even if Respondent had
waited for a week or two after September 1 (when the law went into effect) to
grant the wage raise, the General Counsel would still have his grounds for suspicion
because it was not until October 1 before the new minimum wage had to be paid and
before October 1 the Supreme Court of New York County, New York, declared it
unconstitutional. Perhaps one theory for this case (if pushed to its logical conclu-
sion) would be that employers should never pay more wages than the law re-
quires and then never before they are required to do so. To do otherwise would
tend to destroy the climate which fosters union growth. This destruction in turn
would restrain employees from joining a union and such restraint would violate the
Act. There is no merit to such a proposition under this Act. Furthermore, I do
not believe this is the theory of the General Counsel and I do not ascribe it to him.
For the above reasons, I find the General Counsel has not sustained his burden of
proof and has not established that the wage raise violated Section 8(a)(1) of the
Act as alleged in the complaint. Accordingly, I will recommend that this allegation
in the complaint be dismissed.
Likewise, the General Counsel has not established that the wage raise violated
Section 8 (a) (5) of the Act because he did not establish by a preponderance of the
evidence that Respondent was under a duty to bargain with the Union on August 21.
The evidence clearly shows that Kessel had a good-faith doubt that the Union
represented a majority of the employees. His credited testimony is that some replied
"Yes" and some replied "No" when he asked them if they joined the Union. Fur-
ther, I find the Respondent did nothing thereafter tending to show the failure to rec-
ognize and bargain with the Union on August 20 was to gain time to undermine the
Union. There is even considerable doubt that a bona fide effort was made by the
Union to bargain here, but it is unnecessary to go into this.
It is unnecessary, under the circumstances found above, to consider the cards
themselves to see if the Union in fact did represent an uncoerced majority. Accord-
ingly, I will do no more than note that I would not count the cards signed by Ulate
(who did not know what he was doing when he signed the card), Quiros (who didn't
know what he was doing and who changed his mind about the Union when Roth-
man "never paid attention to what I asked him" and "wouldn't tell him answers to
his questions"), and Aquaviva (who signed because he didn't want "the boys to think
6 The two are immaterial at this point. They are Gregory Maysonet and Victor Maysonet.
6 The defeated candidate for President of the United States in general elections of 1964
had earlier voted against the Civil Rights Act of 1964 on the ground that it was un-
constitutional . He had the difficult job of explaining this to the voters in the campaign.
MANTZOWITZ MFG. CORP. 1525
I punk out"). After Ulate, Quiros, and Aquaviva are eliminated, the Union only
had five bona fide cards. As there were 12 employees in the above appropriate unit,
it would require at least 7 for a majority.
There were 12 employees in the unit because I find . merit in Respondent 's position
that Victor Maysonet was not a supervisor and I include him in the unit. The fol-
lowing chart of the hourly rated employees was stipulated to by the parties:
(4) For the payroll week beginning Friday, August 21, 1964, and ending
Thursday, August 27, 1964, Respondent granted pay raises to the above employ-
ees as follows:
Name Hourly rate,
week ending 8/20
Hourly rate,
week ending 8/27
Carlos Casado------------------------------------- $1.37 $1.623
Doris Nicholson. ---------------------------------- 1.62% 1.87
Charles Jones------------------------------------- 1.37 1, 62-
Nelson Aquaviva- -------------------------------- 2.25 2.50
Gregory Maysonet-------------------------------- 2.50 2.50 (no raise)
Donald Patterson --------------------------------- 1.373 1.62%
Charles Medina----------------------------------- 1.37% 1.62%
Jose Marrero ------------------------------------- 1.25 1.50
MiguelQuires - ------------------------------------ 1.25 1.50
James Bieber-------------------------------------- 1.25 1.50
Jose Ulate ----------------------------------------- 1.25 1.50
Victor Maysonet----------------------------------- 2.00 2. 00 (no raise)
It is noted that Nelson Aquaviva and Gregory Maysonet had a higher hourly wage
than Victor Maysonet on August 20 and thereafter.
In oral argument at the conclusion of the case , the General Counsel contended
that Victor Maysonet had been shown to be a supervisor through the testimony of
several witnesses who described him as the man who gives them their work instruc-
tions and who "discusses raises" with them. Aquaviva, testifying for the General
Counsel, said the "only one boss that I know for sure is my boss. The one who gives
me orders. That's Aaron Mantzowitz [Manson]." The General Counsel then asked
him, "Did anyone else give you work instructions?" He replied, "Well, the foreman.
[Victor Maysonet]. He would give me orders. Like this, they have to be done, you
know, this way, and things like that." He said no one else gave work instructions
(other than Manson and Maysonet). But when asked by the General Counsel who
kept track of when he was supposed to begin and when to quit work he replied,
"Mantzowitz." Also if employees "weren't working properly," Manson would cor-
rect them and get them back on the job. Also when he first asked for a raise, he asked
"Manson" who turned him down. Then he asked Ben Kessel who likewise turned
him down. That was all he said as to Victor Maysonet's supervisory powers.
Then Carlos Medina testified for the General Counsel. He said his bosses were
"Mantzowitz" and "Kessel" but "Mantzowitz" gave work instructions and when not
there "the foreman [Maysonet] and Ben [Kessel]" gave the instructions . "Ben" or
"Mantzowitz" were the ones to ask if he wanted to leave early and they likewise were
the ones who would correct the employees if they were not doing the job right and
tell them to get back on the job. On cross-examination he testified that he had asked
for a raise but was told he would have to wait for the new minimum wage law.
Apparently he had asked Victor Maysonet for this raise who told him "he was going
to talk to my boss [Manson]" to see if Medina could get a raise.
Adding the testimony of both Aquaviva and Carlos Medina together, I find there
is insufficient evidence to establish that Victor Maysonet was a supervisor. Addi-
tionally, I credit Manson who testified that he was the boss in the factory where their
12 employees work and on the rare occasions when he was not there he would get
Ben Kessel or Ben 's son to look in to see if all were working properly . The "inherent
probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S.
474, 496) is that Manson was the sole supervisor . His father had started the busi-
ness and the two of them had run it until his father's death. He did not work in the
office but was always in the back or "factory" portion of the plant with the 12 employ-
ees. There is no evidence that he could not supervise them alone. Finally the fact
that Victor Maysonet was hourly rated and that other employees made more than
he did militates against a finding that he is a supervisor.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discussion of cited precedent
The General Counsel cited the case of N.L.R.B. V. Exchange Parts Company, 375
U.S. 405, in support of his proposition that the granting of the wage raise of $10 while
the union representation petition was on file violated Section 8(a)(1) of the Act.
As Mr. Justice Harlan said in the Exchange Parts case , "the precise issue is whether
that Section '[8(a) (1)] prohibits the conferral of such benefits , without more, where
the employer's purpose is to affect the outcome of the election." In that case the
Board , affirming the findings to the Trial Examiner, found that the announcement of
the birthday holiday and the grant of overtime and vacation benefits were arranged
by Exchange Parts with the intention of inducing the employees to vote against the
union . Accordingly it found this conduct violated Section 8 (a)( I) of the Act. In
the instant case there is no evidence tending to show that the wage raise was made
with the intention of inducing the employees to vote against the Union or to cause
a defection in the Union . Of course , as the court in the Exchange Parts case pointed
out "the danger inherent in well-timed increases in benefits is the suggestion of a fist
inside the velvet glove." But in this case the evidence is, as testified to by the employ-
ees, that the raise was given because of the New York minimum wage law. Further
there is no probative evidence that the raise was made after Respondent knew of a
request for an election.
For the reasons as set out earlier , the other cases cited by the General Counsel in
order to sustain his theory of the case are found inapplicable?
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 (2) of the Act.
2. Respondent did not violate Section 8 (a)(1) and (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is recom-
mended that the complaint be dismissed in its entirety.
7 These cases are Joy Silk Mills, Inc., 85 NLRB 1263; Jas. H. Matthews & Co., 149
NLRB 161 ; Galloway Manufacturing corporation, 136 NLRB 405; and Fred Snow, Har-
old Snow and Tom Snow, d/b/a Snow & Sons, 134 NLRB 709.
J. J. Newberry Company and Retail Clerks Union Local 503,
Retail Clerks International Association, AFL-CIO. Case No.
17-CA-2096. July 21,1965
DECISION AND ORDER
On Febraury 2, 1965, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
153 NLRB No. 135.