National Rawhide Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 4, 1973

202 N.L.R.B. 893 (N.L.R.B. 1973)

NATIONAL RAWHIDE MANUFACTURING CO.
S. S. Surak and J . V. Surak d /b/a National Rawhide
Manufacturing Co. and Warehouse and Mail
Order Employees Union, Local 743, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases
13-CA-11198 and 13-RC-12624
April 4, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 15, 1972, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, S. S. Surak and J. V.
Surak d/b/a National Rawhide Manufacturing Co.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the election conducted
on February 8, 1972, in Case 13-RC-12624 be, and it
hereby is, set aside and that Case 13-RC-12624 be,
and it hereby is, remanded to the Regional Director
for Region 13 for the purpose of conducting a new
election at such time as he deems the circumstances
permit the free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
893
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice, this consolidated proceeding under Sections 9
and 10(b) of the National Labor Relations Act, as
amended (29 U.S.C. 151, et seq.), hereinafter referred to as
the Act, was tried before me at Chicago, Illinois, on July
12, 1972. Hearing, was pursuant to a Supplemental
Decision on Objections in Case 13-RC-12624 issued May
4, 1972, and an amended complaint in Case 13-CA-11198
issued June 1, 1972, based on charges filed February 11
and May 23, 1972, presenting allegations that the Respon-
dent committed unfair labor practices within the meaning
of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, and
Respondent's answer denying those allegations, both as
amended at the hearing. All parties were present and
participated in the hearing
Based on the entire record, including my observations of
witnesses and after due consideration of briefs, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Respondent, a partnership, is engaged in Chicago,
Illinois, in tanning, manufacturing, and selling leather.
Respondent admits that in the operation of this business
during the preceding year goods valued in excess of
$50,000 were sold and shipped to various locations outside
the State of Illinois I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE UNION
The Charging Party, Warehouse and Mail Order
Employees Union, Local 743, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union, which is also the
Petitioner in the consolidated representation proceeding, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by interrogating its employees concern-
ing union adherence and activity, by threatening employ-
ees with loss of employment, by telling an employee he was
denied a pay raise because of the union activity, and by
creating the impression of surveillance; and that Respon-
dent also violated Section 8(a)(3) and (1) of the Act by
discriminatorily affecting the job tenure of employee
Albert Strong because of his union or concerted activity.
Respondent denies engaging in any unlawful conduct.
In timely objections filed by the Union, it is alleged that
Respondent engaged in conduct which interfered with the
202 NLRB No. 130
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation election held by the National Labor
Relations Board on February 8, 1972.
B. Background
Respondent processes skins beginning with receipt of the
rawhide from the slaughter houses through the finished
leather product, primarily on customer orders. Its plant is
located on several floors of a small building and is
equipped generally with one machine for each processing
step The 9 to 12 employees, for the most part employed as
unskilled labor, are trained in from one to several hours to
operate the various machines and equipment used. Vlas-
timil John Surak and Slavomir Steve Surak are both active
working partners in the operation of their tanning business
where they are known respectively as John and Steve.
Matthew Surak, their 77-year-old father, has worked for
them since 1965. Except for the father of the partners and
three senior employees who are Blacks, Respondent
generally hires Mexican nationals many of whom do not
speak English. Employee turnover is substantial and some
employment is of short duration, keyed to production
demands.
Respondent's employees have not been represented by a
labor organization. In early October 1971, the Union
began its organizational drive by appearing in front of the
plant as employees reported to work and by soliciting
signatures on union authorization cards. Employee Albert
Strong second in seniority at the plant, having worked for
Respondent since 1966, signed such a card on October 18,
1971. Other employees, including Kacey Morgan, who was
employed in 1965, also signed cards around that time.
On December 14, 1971, a petition for a representation
election was filed with the National Labor Relations
Board, and on January 11, 1972, the Board directed an
election at Respondent's plant among all full-time and
regular part-time production, maintenance, and warehouse
employees of Respondent who were scheduled to work for
20 hours a week or more. On the day of" the election
conducted February 8, 1972, there were approximately
nine eligible voters The election resulted in a 4-to-4 tie and
the Union filed timely objections on February 11, 1972,
alleging conduct affecting the results of the election,
including coercive interrogation of employees as to their
union membership and desires, threats of plant closure,
deportation and/or loss of work permits and other
reprisals, suspension and/or discharge of union supporters,
a captive audience meeting within 24 hours of the election,
and other election irregularities of accompanying employ-
ees to the vicinity of the polling place, and designating a
nonemployee observer contrary to the provisions of the
NLRB Field Manual, section 11310. After investigating the
matter, the Regional Director for Region 13 determined
that substantial and material issues raised by these
objections could best be resolved on the basis of record
testimony and/or other evidence developed at a hearing
and referred all objections to the Administrative Law
Judge for hearing, resolution of credibility of witnesses,
findings of fact, and recommendations as to the disposition
of the issues raised in the representation proceeding.
C. The 8(a)(1) Allegations
Albert Strong, after signing the union authorization card,
urged fellow employees individually tojoin the Union. He
engaged in conversations of this kind almost every day
until the election Strong testified that one morning shortly
after the Union passed out authorization cards John Surak
approached him at his work and asked if he had signed a
union card. Strong replied that when he came to work "all
the Mexican boys was signing, and the Union asked me
and so I . . . signed."
Around the middle of November 1971, as Strong was
working, John Surak approached him and inquired
whether he was for the Union. Strong replied in the
affirmative John asked, "What seems to be the problem?"
Strong answered: "All the Mexicans was signing so I
signed." Surak stated- "A Mexican boy should know better
because I can get a new Mexican every day."
Early in January 1972, John Surak rapidly approached
Strong's work area, asked whether he signed a union card
and, with Strong's affirmative reply, quickly walked away.
Late in January after the date for the election was fixed
John Surak came to Strong and, reminding him that the
representation election was coming up on February 8,
1972, told him that if he voted for the Union he "would be
out of ajob" and "for the sake" of both (Surak and Strong)
"to vote No." Surak added that Strong was "supposed to
get a raise in October," but "since the Union came in he
would not get it." Strong testified that he had not known
he was supposed to get a raise in October.
Employee Kacey Morgan testified that in October when
the Union passed out cards he took one and signed it.
About 3 days later, John Surak came up to him while he
was working and said, "God, they're passing out union
cards." Morgan responded, "Yes, I didn't sign." Morgan
testified this was all that was said and this was the only
time John Surak mentioned the Union to him.
John Surak testified that he knew nothing of the union
activity until October 1971, when two men from the Union
came to the plant claimed to "have all the employees
signed up" and demanded recognition. He denied asking
Albert Strong whether he had signed a union card and
denied that he ever had a conversation with Strong about
the Union. He testified to one conversation with Strong
about a pay raise near the end of 1971, when Strong asked
him for a raise and he replied, "Albert, I can't give any
raise right now because we have business with the Union
going on, and I would be in violation to give you any
increase right now." He asserted that this was their only
conversation with reference to a raise. With respect to the
testimony of Morgan, an employee still employed by
Respondent who appeared under subpena, John Surak
denied that he mentioned the Union. Surak testified that
Morgan just came up to him and said, "John, I didn't sign
any card," and that he answered, "I can't tell you one thing
or the other way. Whatever you want to do." John Surak
also denied engaging in any campaign for a "No" vote in
the representation election or mentioning the Union to any
employee in any way, with the exception of Strong in
connection with the raise.
The testimony of both Strong and Morgan was consist-
ent under repeated questioning and their answers were
NATIONAL RAWHIDE MANUFACTURING CO. 895
responsive to the best of their ability to understand the
questions. Each was firm, forthright, and direct, and
showed no tendency to embroider on the situation or
conversation. They impressed me by their demeanor as
witnesses who were sincere and honest . I credit the
testimony of both. On the other hand, for reasons later
indicated , I do not find John Surak a credible witness
generally, and do not credit his denials concerning the
incidents related above.
On the basis of the credited testimony, I find that John
Surak engaged in interrogation violative of Section 8(a)(1)
of the Act, by asking Strong in October 1971, and again in
early January 1972 whether he signed a union card and, in
November 1971, whether he was for the Union. The
November 1971 comment by John Surak that a Mexican
boy should know better, in the context made, was clearly a
threat to discharge card signers and union adherents and
replace them with new employees and, as such, was
violative of Section 8(a)(1). Similarly the electioneering
comments of John Surak to Strong in late January were
violative of Section 8(a)(1) not only because they contained
a threat of job loss if Strong voted for the Union, but also
because they implied that Respondent was withholding a
raise due Strong because of his part in the union activity.
Although I accept employee Morgan's version of the
October 1971 statement by John Surak, I do not view this
comment as sufficient to support a finding that Respon-
dent gave employees the impression of surveillance, and I
conclude that the allegation in the amended complaint to
that effect is not established by the record.
D. The 8(a)(3) Allegations
Albert Strong was employed by Respondent from March
8, 1966, through February 14, 1972. As employees were
leaving the plant at 4:30 on Monday, February 14, John
Surak called to Strong, "You come back Thursday."
Surprised, Strong stopped, then replied, "Okay." On
February 16, Strong received a telephone call from John
Surak advising him not to come in the next day but instead
to go and apply for unemployment . Strong testified Surak
said he would let Strong know when to come back to work.
John Surak testified he told Strong to call in once in a
while-maybe something would come up. Strong has never
been recalled.
In his 6 years of employment, Strong had been laid off
twice because of slow business , once during the 1960's for a
week of two and in 1970 for 2 or 3 days. During the course
of his employment, Strong has performed most of the
various work functions in the plant with the exception of
certain machine operations .' The functions he performed
included unloading skins delivered by truck from the
slaughter houses, packing and loading finished leather,
hanging hides or skins for drying, loading or unloading the
tanning mills , the vats, and the machines , and other types
of moving and hauling of the product at various stages of
I When he was first employed , and up until 1970 when the customers for
such leather ' preparation withdrew their accounts from Respondent.
Strong's primary job function was as a leather finisher This job
encompassed dying and hand polishing of prepared leather in this work
Strong also ran the buffing machine During 1971 and 1972. his major
assignment was that of trimming hides and leather He continued to run the
the operation . He also assisted at the takeoff end of the
fleshing machine and the splitting machine and trimmed
cowhide splits . Other functions Strong performed included
building maintenance , such as cleaning , painting, and
cleaning sewers . Machines Strong has never operated are
those designated as staking , wringing , fleshing, and
shaving.
Respondent claims that Strong was laid off for economic
reasons, specifically because there was no work for him
due to a drop in business. Additionally, John Surak gave as
a reason for laying off Strong- "We lost some employees,
and they claimed that he was threatening them because
they did not vote for Union. And the employees were Jose
Martinez and Gasper Martinez ." Steve Surak testified that
John mentioned they were losing some experienced
machine operators and would have to lay off some people.2
After associating the need for a layoff with the Martinez
brothers' leaving, Steve then testified,
We discussed these attitudes . . . I would [have] fire[d]
him. I was afraid of him... . John is his boss. He is not
going to obey my orders. . [Y]ou don't lay off a
person for just one reason, especially when he was
maybe five years with you. You put into consideration
all the pluses and minuses in the fellow , and if the
fellow is too detrimental to the company and its policy,
then he has to go . . . his attitude . . . was the main
portion on why we laid him off.... We lost three good
men around that time , sir, the ones that were the key
men in the company. . . Jose Martinez, Gasper
Martinez, and Javier Hernandez. They all were
working on the machines. Now, when they quit our
production went down until we could train new men
for the particular work . . . one of them mentioned his
[Strong's] name as the reason for leaving . . . . his
attitude . . . was declining . from December on . . .
he was just like [he] owned the place
To support the asserted economic reason for Strong's
layoff, Respondent presented testimony that the business
has peak and slow periods and supplied statistical excerpts
from its records for the 12 months from July 1971 through
June 1972, giving hours worked and the number of
employees weekly together with the total man-hours and
sales monthly. Steve Surak, who handles the payroll,
billing, and customers , as well as some of the work in the
plant, testified that business changes were not on a day-to-
day basis but rather that one could usually see business
swings for a week or two ahead. John Surak testified that
business was slow the second half of February through
March and April, dropping in February from a first half of
$15,000 to a second half of $6,700.
Analysis of the records supplied shows that February
1972 sales were the second highest of the 12 months,
topped only by June 1972, that March and April 1972 were
substantially comparable to October through December
1971; and that the second half of the fiscal year far
exceeded the first half, negating the allegation that
buffing machine These duties did not lake up all of his working time and
Strong was used to perform various other Jobs In February 1972. about half
of his worktime was spent in buffing and trimming
2 I do not credit Steve's assertion that he and John did not discuss
Strong's layoff in February His testimony shows him too conversant with
the considerations which are advanced as the reason for terminating Strong
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was entering a business slump. Further, the
highest number of hours worked per man was in the month
following Strong's termination. In addition there appears
no direct correlation between the total man-hours worked
in a given month and the total sales for that month.3 The
only pattern readily apparent from the business statistics
presented would indicate that increases and decreases in
man-hours precede rises and drops in sales, respectively, by
about a month-but even this pattern is not consistent.
The figures given do, however, suggest that Respondent
was not entering a business stage which would normally
require a layoff.4 For the foregoing reasons, I reject
Respondent's contention that the layoff of Strong was
necessitated by a drop in business.
There is another economic factor which, although not
specifically explicated, is implied in the testimony of
Respondent's witnesses. This is that in a one-product
operation where completion of any item requires sequential
processing through various stages, the cessation of one or
two stages will cut off the work for the succeeding
operations, thus requiring layoffs at the end of the process
until the stalled function is restored. If Respondent lost
two of its experienced machine operators and had no
working replacements for them, it would follow that
leather was not available in a stage for buffing, trimming,
or packing and shipping, major functions performed by
Strong, until those operations were restored The testimony
establishes that training a new operator for those machines
takes only from 1/2 to 2 hours, thus any delay in
resumption of the flow of the product was dependent only
upon the speed with which new untrained employees could
be hired, or present employees shifted and trained. Such
circumstances might require an immediate layoff of a
couple of days, which was the length of time initially given
Strong by John Surak.
The question, however, is not whether a case of
economic justification for a short-notice short-term layoff
can be made but whether this was Respondent's motiva-
tion in deciding to lay off, then terminate, Strong. John
Surak testified that Strong was not assigned to machine
3 Thus, for August 1971 there are reported approximately 1,250 man-
hours, the least worked during any month in the entire fiscal year, with
weekly payrolls of from 8 to 11 employees, but sales were the third highest
in the year The highest total man-hours worked in any month is reported
for July 1971, a near median month in sales
4 The February breakdown, standing alone, is meaningless in relation to
Respondent's major premise of layoff necessitated by a general drop in
business A breakdown for other months was not given Such a drop in the
last half of the month could be a normal business phenomenon for any
month It could also be related to failure to ship to, or bill, customers In the
circumstances, if it is unusual, it would seem more reasonable to attribute
the drop in sales to the events which were taking place at the plant The
election was conducted on February 8, Jose Martinez, the wringing
machine operator, quit, having last worked on Saturday, February 5,
Gasper Martinez, also a machine operator, quit on February 12, Strong was
laid off on February 14, and, Javier Hernandez, another machine operator
quit on February 16 With such disruptions, and decrease in the working
force it would seem logical that, in a small operation like Respondent's
where production, as well as shipment and billing, is directly geared to
customer requirements rather than placed in inventory production would
suffer and this immediately would be reflected in the sales posted for that
period
5 According to John Surak he offered Strong the staking machine job
when Strong was hired, and thereafter every time somebody quit on that
machine, or was absent from work, but Strong was not "interested to learn
any work on any machine " John Surak later indicated he asked Strong to
operation work which was available at the time of his
layoff because he had in the past repeatedly refused to
learn to operate any machme.5
Strong testified that early in his employment when an
aged employee who was the staking machine operator did
not report to work John Surak asked him to fill in and he
declined. Again, once in 1968, after the position of staking
machine operator became vacant and John Surak was
having difficulty getting and keeping an operator, John
said to him: "You are a steady worker, why don't you take
this job?" Strong again declined. Surak asked him whether
he was afraid of the machine and Strong replied, "Not
really, I don't dig it." Strong testified that he was not
"afraid" of the machine, but "maybe a little shy."6 Strong
denied he was ever given an opportunity to learn any other
machine although he would have been willing to learn
others "but not the staking machine." He added he never
asked for the opportunity to learn any of the other
machines because he had too much other work to do.
Indeed, just a month before he was laid off, Strong was
told to train a new employee, Jose Enriquez, to run the
buffing machine. Strong testified that, during his employ-
ment, Surak never said anything to indicate his disapproval
of Strong's work in any way. Occasionally, John Surak
would say, "That is nice. . that is good."
Here John Surak's tendency to build up his initial
testimony is apparent in regard to both the frequency with
which Strong was offered an opportunity to change to a
machine operator and the number of different types of
machines offered. I can credit only the testimony that
operation of the staking machine was offered Strong.
However, there is no credible evidence that this was
offered to him at any time after his regular leather finisher
work had ceased in 1970. Clearly, Strong's fear of
operating this machine was well known to his employer,
but that machine was not vacated at the time Strong was
laid off 7 Moreover, Strong performed many duties in
addition to buffing, trimming, packing, and shipping which
learn to operate some machine "every month" "over a period of 7 years "
He stated the last time he asked Strong was in October 1971, when Glan
Woods quit the wringing machine The last time was changed to November
or December 1971, then to December 14 when he asked Strong to take the
shaving machine because the operator quit Again this date was changed to
February 7, the Monday Martinez failed to show up, when assertedly John
gave Strong an opportunity to learn the wringing machine Steve Surak
testified that he had asked Strong several times why Strong did not want to
run the staking machine and Strong once said he would rather quit than
work on that machine
6 The staking machine is used to soften leather Strong stated "Your
hands are right there," and he regarded it as a little more dangerous than
other machines John Surak described the staking machine as being like
giant jaws opening and closing and at the same time pulling the leather The
operator has to hold the sheet of leather on the table and keep moving the
leather while the jaws are opening and closing, coming close to the operator
and going away Strong's "shyness" of this machine apparently was well
known in the plant
' Respondent's records and John Surak's testimony disclose that George
Sierra, employed November 6, 1970, was the staking machine operator and
that he quit on December 14, 1971, that Angel Enriquez was employed
December 16, 1971, to operate the staking machine , and that the latter
learned the job in 30 minutes Angel Enriquez was still so employed at the
time of the hearing Thus, clearly the staking machine was not one of those
vacated during the crucial period in February 1972
NATIONAL RAWHIDE MANUFACTURING CO
related to steps in the tanning process preceding the halted
machine operation.8
To verify the asserted lack of regular work for Strong,
Respondent claims that it had never hired a replacement to
perform Strong's job;9 that Morgan is performing the
buffing in addition to his regular work of operating the
drying mills; and that Matthew Surak is doing the packing
and, with various other employees, the leather trimming.
John Surak's testimony indicates that Jose Florez, hired
April 13, works primarily as a hide trimmer and as a helper
in fleshing whenever two men are required to handle heavy
hides; Jose Soto, employed May 1, works on "setting out,"
fleshing, staking, and wringing, and is used wherever he is
needed; and Hermiho Perez, who was hired April 24 and
quit just before the hearing, was primarily a hide trimmer
who worked about 30 hours a week, helping with pulling
hides out of the mills and vats, loading vats, and "all the
work that has to be done." 10 In addition, Jose Enriquez,
hired January 17, 1972, and a relatively new employee at
the time Strong was laid off, performs work of the type
generally assigned to Strong, including trimming, pulling
and putting mills, and setting up machines. This employee
trimmed most of the time until Nyola quit on April 24,
when he went to flesher machine work. It is not clear
whether this was as a machine operator or as a helper. It is
clear from the testimony that from the time of Strong's
layoff not only were employees with no seniority, as
compared to Strong's standing, performing work of the
type normally assigned Strong, but also new employees
were hired and assigned duties which Strong had previous-
ly performed. In view of the foregoing, including my
resolution of credibility, I find that Respondent's economic
defense is without substance, and not the reason for
Strong's layoff or discharge.
The other reason advanced for Strong's layoff and
termination may be categorized generally as his "attitude "
It was also characterized as the "main portion" of why
Strong was laid off. Strong was blamed for the quits of the
Martinez brothers. John Surak testified he had come upon
Jose Martinez, at 7:30 on Thursday morning following the
election, carrying his lunch presumably to another job.
This would place the event as occurring on February 10,
1972. John attempted to persuade Jose to return to his job
8 There is no clear indication what machine Gasper Martinez and Javier
Hernandez operated or whether they were regular or substitute operators
However, the evidence shows that on February 21, Respondent hired Jose
Gonzales to operate the wringing machine vacated by Jose Martinez and
Gonzales quit on March 7 His replacement, Jose Luis Zuniga, was hired
April 3, but quit on June 5 Davis Ledesma, employed February I, 1972,
was the fleshing machine operator He did not quit until April 24 Maurio
Nyola hired March 6 as a fleshing machine operator also quit on April 24
Henry Gardner was hired March 9 as a shaving machine operator As
noted, supra, the staking machine was not vacated at the time of Strong's
layoff It would appear, therefore, that Gasper Martinez was the regular
shaving machine operator and that Hernandez, who quit after Strong's
layoff, was the extra fleshing machine operator as Strong testified This
information otherwise taken from John Surak's testimony contradicts his
assertion that when Strong was laid off operators were needed for the
staking machine and the fleshing machine
9 John Surak stated that on February 14 they had 12 employees, the
highest they had since that date is I I However, Respondent's records in
evidence reveal that the 12 employees worked during the week ending
February 11, Jose Martinez had quit that week which had reduced the
number going into the following week Gasper Martinez did not quit until
February 12 which would have further reduced the number to 10 before
897
with Respondent and immediately to accompany him to
his place of business. Jose Martinez refused reportedly
saying only "Mucho trouble, Albert" which John interpret-
ed as a claim that Strong was threatening the Martinez
brothers "because they didn't vote for the Union." This
conclusion was reached apparently despite the fact that the
Union was not mentioned by Jose. John Surak explained,
he just decided that Jose Martinez was scared; there must
be a reason; and, the reason must be connected with the
election because he had lost three experienced employees
the week of the election.ii However, Respondent presented
no information regarding any specific threat allegedly
made by Strong and denied having knowledge as to how
individual employees voted. ' The inability to explain how
the statement "Mucho trouble, Albert" translated into the
conclusion that Strong was threatening the Martinez
brothers because they did not vote for the Union refutes
the assertion that Respondent had no knowledge of
Strong's prounion sentiments and activities until this case
arose.
The offensive attitude for which Strong was condemned
to termination is otherwise identified only as acting "just
like [he] owned the place" since December 1971. Signifi-
cantly, this period encompasses events related to the
election; namely, the filing of the petition on December 14,
1971, the issuance of a decision directing the election
January 11, 1972, the election on February 8, which
resulted in a tie vote, and the effort to have the election set
aside by objections filed on February 11 and duly served
on Respondent. Also significantly, this was the period
during which Strong steadfastly adhered to his initial stand
favoring union representation in the face of repeated
interrogation, threats, and stated wage reprisal.
On the basis of the foregoing, I find that Respondent had
knowledge of Strong's preference for union representation
and his activities on behalf of the Union and that this was
the "attitude" for which he was laid off and then
terminated 12 when it appeared the question concerning
representation could be put to another vote. Such action is
clearly violative of Section 8(a)(3) of the Act. Even if
Respondent did postulate from the conversation with Jose
Martinez that the latter did not wish to return to work
because of Strong's union advocacy, absent a showing that
Strong was laid off His termination reduced the complement to nine Javier
Hernandez quit February 16, leaving eight employees going into Respon-
dent's payroll week of February 19-25 This was precisely the number
reported for that week and refutes the argument that the total number of
employees on the payroll establishes Strong was not replaced
10 John Surak testified at first that Perez was primarily a trimmer, but on
further examination testified that there was only about 2 hours a week of
this work for him to do Elsewhere he testified that "Sometimes i have two
men on trimming, other times I have three," and that the week before the
hearing Jose Florez performed trimming every day because there was no
occasion for him to help in fleshing
11 Jose Martinez quit before the election and would have been ineligible
to vote Gasper Martinez last worked on February 12, after his alleged
conversation with Jose Martinez, and Javier Hernandez last worked on
February 16, 2 days after Strong's layoff, and presumably was still working
when Strong received the call advising him to apply for unemployment
benefits
12 Although Respondent apparently uses layoff and discharge inter-
changeably on its records and in testimony, it appears that in the case of
Strong the initial action was a 2-day layoff changed on the second day to
termination However, the record would indicate that the motive for both
actions was the same
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such advocacy took an unlawful form discharge for this
reason is unlawful under Section 8(a)(1) of the Act.13
Although not specifically articulated as a reason to deny
Strong reinstatement, Respondent presented testimony
implying that Strong was an undesirable employee because
he had a dangerous temper and a drinking problem. With
respect to Strong's temper, all witnesses generally agree
that a single incident took place in which Strong threat-
ened Steve Surak with an iron bar normally used to operate
the bailing machine. Various dates for this incident are
given ranging from 1968 to early 1970, but all indicate that
it occurred before the advent of the Union. The incident
arose out of a dispute between the partners concerning
Strong's work assignment. A composite of the testimony
indicates that, upon losing the job assignment argument to
his brother, Steve threw a skin over Strong's head, Strong
reacted in anger and turned to Steve who had a large pair
of hide trimming scissors in his hand. Strong grabbed the
bailing bar and approached, or chased, Steve but was
disarmed by John Surak and Morgan. Steve then fired
Strong, but John rescinded this, telling Steve that Strong
just lost control and would not do it again. Later that day
Steve apologized to Strong excusing the incident on the
ground that all three had hot tempers. Except for any
personal rancor Steve has harbored which might cause him
to feel particularly unsympathetic to Strong, this incident is
clearly irrelevant to this proceeding, as Strong continued
thereafter as a regular employee without any further
occurrence of this nature which would warrant giving it
weight in assessing his employability.
With regard to Strong's alleged drinking problem, John
Surak at first testified to a single incident of allegedly
catching Strong on a Saturday in January 1972 in the
dressing room having a drink from a bottle and comment-
ing to him, "I see you are on the booze again." John
indicated he sent Strong home at 10:30. Later he testified
"we" sent him home about 11:30. At another point he
indicated, "He [Strong] was going home" about 12.
Finally, in answer to the question, "Who sent him home, if
you know," John replied, "Who sent him home? My
brother did, yes. My brother did." Also from this single
incident in January, John's testimony expanded into the
assertion that Strong reported drunk every Saturday he
was called and Respondent had to send him home until it
was decided not to call him again.14 Suffice it to say Steve
Surak's testimony does not corroborate that of John in any
detail Steve testified John had told him of catching Strong
in the dressing room with a bottle, but significantly he
relates nothing about his or John's sending Strong home.
Steve testified his belief that Strong had a drinking
problem rested upon Strong's reporting practically every
Monday morning "not exactly drunk" but "smelling like a
whiskey barrel," and that a year ago he spoke to Strong
about the dangers of their work when one drinks, at which
time Strong denied ever drinking on the job.
'3 See N L R B v Burnup and Sims, Inc, 379 U S 21
14 Other inconsistent and self-contradictory statements on this and other
subjects go far to discredit John Surak as a truthful and forthright witness
Interestingly, John testified that Strong was the only employee working that
January Saturday and that he was running the buffing wheel, work which
John Surak indicated at another point was so scarce that it required only a
couple of hours a week Also worthy of note is John Surak's testimony that
Testimony of Strong and Morgan negate the charge that
Strong ever drank on the job, ever came to work drunk,
ever was sent home for drinking on Saturday or any
regular workday, ever lost time from work because of
drinking, ever was accused of having a drinking problem or
of being drunk by either of the brothers, or ever received
any indication that the Suraks thought he drank. Morgan
testified he had never detected alcohol on Strong at work
or anywhere else. Strong's reaction to the very idea of the
drinking charge was one of amazement and righteous
indignation which appeared most genuine and persuasive.
On the basis of the credible testimony, I find the
assertion that Strong had a drinking problem to be without
merit, and that nothing has been presented which would
affect Strong's employability.
IV. RECOMMENDATION ON OBJECTIONS TO THE
ELECTION
Steve Surak testified that the polling place was across the
street from the plant and that he walked his aging father
across the street because of traffic, leaving him near the
polling place. He admitted that another employee followed
close behind. I find this evidence insufficient to sustain the
objection that Respondent deprived employees of their
right not to vote in the election. No testimony or evidence
other than the foregoing and that relating to the unfair
labor practices herein found was elicited to prove the
substance of the other objections. As I have found that
between December 14, 1971, when the petition was filed
and February 8, 1972, when the election was conducted,
Respondent engaged in unlawful interrogation, and threats
of reprisal encompassed by Objections I and 2, I
recommend that the election be set aside and a new
election be ordered at the earliest date consistent with
administrative convenience. In the absence of sufficient
evidence with respect thereto, no recommendation is made
as to the disposition of the other objections.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. A broad
"Once we didn't pay him [Strong] overtime because he lost the time during
the week, and he said that was the last time he would work on Saturdays,
but then we paid him overtime every time he came on Saturday " Saturday
work was voluntary It would seem most unusual that an employee who
turned up drunk and unable to complete the day's work every Saturday he
was called would nevertheless be called again and again and paid overtime
whether or not he had performed his 40 hours that week
NATIONAL RAWHIDE MANUFACTURING CO 899
cease-and-desist order is warranted, in view of the
discriminatory discharge and other violations.15
In addition, I shall recommend that Respondent offer
reinstatement with backpay to Albert Strong. In accord-
ance with usual requirements, reinstatement shall be to
Strong's former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges Strong shall be
made whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned from the date of termination (February
14, 1972) to the date of a valid offer of reinstatement, less
net earnings during such period, with backpay and interest
computed under the established standards of the Board.16
It will be further recommended that the Respondent
preserve and, upon request, make available to the Board all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary and useful to determine the amounts of backpay
and the rights of reinstatement under the terms of these
recommendations.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 17
The Respondent, S. S. Surak and J. V. Surak d/b/a
National Rawhide Manufacturing Co., Chicago, Illinois,
its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
views, activities, adherence, or membership or other
concerted activities for mutual aid or protection.
(b) Threatening employees with reprisal by job loss or
withholding of wage increase for their membership in,
activities on behalf of, or voting for Warehouse and Mail
Order Employees Union, Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization.
(c) Discouraging membership in the aforesaid Union, or
any other labor organization, by laying off or terminating
employees, effecting other reprisals, or in any other
manner discriminating against them in regard to their hire
or tenure of employment or any terms or conditions of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Albert Strong reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay suffered
by reason of his termination in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy."
(c) Post at its plant copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 13, after being duly
signed by the Respondent's representative, shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Further, IT IS ORDERED that Case 13-RC-12624 be
severed from this proceeding and remanded to the
Regional Director for Region 13 for his disposition.
15 N L R B v Express Publishing Co, 312 U S 426. N L R B v Entwistle
Mfg Co, 120 F 2d 532 (C A 4)
16 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating
Co, 138 NLRB 716
it In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice; and we intend to carry out the order of the
Board, and abide by the following:
WE WILL NOT ask you anything about your union
activities in a manner which would coerce you
regarding your rights under the Act.
WE WILL NOT threaten you with loss of job or
withholding of wage increases, or other benefits, to
keep you from joining or supporting a union, or to
influence you regarding your votes in a Board election.
WE WILL NOT discourage membership in Warehouse
and Mail Order Employees Union, Local 743, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by laying off, terminating, or discharging
employees, withholding wage increases , or in any other
manner discriminating in regard to their employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed employees in the National Labor Relations
Act, which are as follows:
To engage in self-organization
To form , join , or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
Since it has been found that we unlawfully laid off
and terminated Albert Strong, WE WILL offer to give
him back his regular job or , if thatjob no longer exists,
we will give him a substantially equivalentjob, and WE
WILL pay Albert Strong for the earnings he lost because
of the discrimination against him, plus 6-percent
interest
S. S. SURAK AND J. V.
SURAK D/B/A NATIONAL
RAWHIDE MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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
Any questions concerning this notice or compliance with
its provisions may be directed to the Board ' s Office,
Everett McKinley Dirksen Building, Room 881, 219 South
Dearborn Street , Chicago, Illinois 60604 , Telephone
312-353-7572.