Norrich Plastics Corp.

National Labor Relations Board - Board Decisions

Apr 12, 1960

127 N.L.R.B. 150 (N.L.R.B. 1960)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Peninsula Asphalt & Construction Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Each of the Unions named herein is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees in the Company's paving and plant
operations, exclusive of office clerical employees, watchmen, and supervisors as
defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b) of the Act.
4. The Unions, by virtue of the certification issued by the Michigan Labor Media-
tion Board, were on October 24, 1958, and at all times thereafter have been, the
exclusive representative of all the employees in the aforesaid appropriate unit for
the purpose of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with the Unions as the exclusive bargaining
representative of the employees in the aforesaid appropriate unit , as found above,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. By unilaterally granting wage increases to employees in the bargaining unit
without notifying or negotiating with the exclusive representative of the employees,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
7. By refusing to reemploy John R Harrand, Lawrence Haines, Paul Johnson,
Harry G. Arnold, and George E. Killingbeck, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
8. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their 'rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Norrich Plastics Corp. and Local 517, International Production,
Service & Sales Employees and Norrich Plastics Employees
Union, also known as Collective Bargaining Committee, Party
to the Contract . Case No. f-CA-6535. April 12, 1960
DECISION AND ORDER
On December 18, 1959, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, and further finding that the Respond-
ent had not engaged in other unfair labor practices alleged in the com-
plaint, all as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel and Respondent filed ex-
ceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
1127 NLRB No. 25.
NORRICH PLASTICS CORP. 151
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Norrich Plastics
Corp., New York, New York, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Norrich
Plastics Employees Union, or with the formation or administration
of any other labor organization, and contributing support to said
organization or to any other labor organization.
(b) Recognizing or in any manner dealing with Norrich Plastics
Employees Union, or any reorganization or successor thereof, as a
representative of any of its employees concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of
work.
(c) Discouraging membership in Local 517, International Produc-
tion, Service & Sales Employees, or in any other labor organization
of its employees, by discharging, refusing to reinstate, or otherwise
discriminating against any of its employees because of their con-
certed or union activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 517, International Produc-
tion, Service & Sales Employees, or any other labor oaganization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection or to refrain from
any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from, and completely disestablish,
Norrich Plastics Employees Union as a representative of any of its
employees for the purpose of dealing with it concerning grievances,
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor disputes, wages, rates of pay, hours of employment, or conditions
of work.
(b) Offer Dionisio Nunez, Marion Mergestik, Ann Millerman, and
Emanuel Quezel immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges previously enjoyed, and make whole
each of them plus Howarth Gobarth, Pedro Rodriguez, Tito Gon-
zales, and Manuel Colon in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records and re-
ports, social security payment records, timecards, personnel records
and reports, and all other records necessary or appropriate to analyze
the amounts of backpay and other benefits due and the right of em-
ployment under the terms of this Order.
(d) Post in conspicuous places at its plant, including all places
where notices to employees are customarily posted, copies of the notice
attached hereto marked "Appendix." l Copies of said notice, to be
furnished in both the Spanish and English languages by the Regional
Director for the Second Region, shall, after being duly signed by the
Respondent's representative, be posted by it immediately upon receipt
thereof, and maintained by it for at least 60 consecutive days there-
after. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
IT Is FURTHER ORDERED that except as otherwise found herein, the
allegations of the complaint be, and they hereby are, dismissed.
1 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted tor the words "Pursuant to a Decision and Order" the
words "Pursuant to 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, we hereby notify our employees that :
WE WILL NOT dominate or interfere with the administration of
Norrich Plastics Employees Union, or with the formation or ad-
ministration of any other labor organization, nor will we con-
NORRICH PLASTICS CORP. 153
tribute support to Norrich Plastics Employees Union or to any
other labor organization.
WE WILL NOT recognize or in any manner deal with Norrich
Plastics Employees Union, or any reorganization or successor
thereof, as a representative of any of our employees concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work.
WE WILL NOT discourage membership in Local 517, Interna-
tional Production, Service & Sales Employees, or in any other
labor organization of our employees, by discharging, refusing to
reinstate, or otherwise discriminating against any of our em-
ployees because of their concerted or union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in , the exercise of the right to self-
organization, to form labor organizations, to join or assist Local
517, International Production, Service & Sales Employees, or
any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL withdraw all recognition from, and completely dis-
establish, Norrich Plastics Employees Union as a representative
of any of our employees for the purpose of dealing with us con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
WE WILL offer Dionisio Nunez, Marion Mergestik, Ann Miller-
man, and Emanuel Quezel immediate and full reinstatement to
their former or substantially equivalent positions, without preju-
dice to any seniority or other rights or privileges previously
enjoyed.
WE WILL make whole Dionisio Nunez, Marion Mergestik, Ann
Millerman, Emanuel Quezel, Howarth Gobarth, Pedro Rod-
riquez, Tito Gonzales, and Manuel Colon for any loss of pay they
have suffered as a result of our discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of Local 517, In-
ternational Production, Service & Sales Employees, or any other labor
organization, except to the extent that this right may be affected by
an agreement in conformity with Section 8(a) (3) of the National
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
NORRICH PLASTICS CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent, Norrich Plastics Corp.,
violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, 61
Stat. 136. On September 8, 9, and 10, 1959, Trial Examiner A. Bruce Hunt con-
ducted a hearing at New York, New York; at which the General Counsel, the
Respondent, and Norrich Plastics Employees Union, herein called NPEU, were
represented. No appearance was entered for Local 517, International Production,
Service & Sales Employees, herein called Local 517. Upon the entire record in the
case and from my observation of the witnesses, I make the following.
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, a New York corporation, has its office and place of business in
New York City where it is engaged in the manufacture and sale of plastics, metal
components for electronic and commercial industries, and related products. During
1958 the Respondent shipped products valued in excess of $50,000 from its plant
directly to points outside the State of New York. There is no dispute, and I find,
that the Respondent is engaged in commerce within the meaning of the Act.
H. LOCAL 517; NPEU
Local 517 and NPEU are labor organizations admitting to membership employees
of the (Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Our principal issues are whether the Respondent violated the Act by (1) domi-
nating and interfering with the formation and administration of NPEU; (2) exe-
cuting and maintaining in effect a collective labor agreement with NPEU; and (3)
discharging Dionisio Nunez and refusing to reinstate him and certain striking
employees.
B. The events
During March 1959, Nunez spoke with an organizer for Local 517 and suggested
that an effort be made to organize the plant. On March 16 the president of Local
517, Phillip Goldstein, sent two organizers to interview employees. On March 17
Goldstein and an organizer spoke with employees outside the plant during the lunch
period. Later that afternoon, when the work of the day shift had ended, a meeting
of employees was held at Chelsea Bar & Grill across the street from the plant.
Goldstein, who previously had received signed union designations, received additional
ones. Nunez and Sylvia Rodriguez were selected to join representatives of Local
517 at bargaining sessions with the Respondent. Rodriguez soon became active
in formation of NPEU, however.
On March 18 Goldstein called at the plant and talked with Norman Thaw,
Richard Thaw, and Frank Guzman, the Respondent's president, vice president,
and plant superintendent, respectively. Goldstein claimed to represent the employees
and asked for recognition. Guzman asked how he could know that Local 517
represented the employees. Goldstein, having in mind Nunez and Rodriguez,
replied that a committee had been selected by the employees and that the members
could be called from their places of work. Guzman rejected the suggestion. Gold-
NORRICH PLASTICS CORP. 155
stein produced some union cards but refused to let Guzman inspect them. It was
agreed that Guzman and Reuben Silver , an organizer, would go into the production
area and select two employees at random . They returned with N,%niiez and Alba
Marlene Cartaya. Goldstein then listed Local 517 's demands. Not han Thaw and
Guzman said that they were powerless to act upon the demands because an unidenti-
fied "big boss" was in Florida . Goldstein waited outside the plant for the balance
of the day but recognition was not forthcoming.'
On March 18 and 19, Norman Weiss, who worked on the day shift, engaged in
activity which was a forerunner to formation of NPEU . Weiss testified that he
is a "working foreman" and that, as such , at the time of his activity he did not
believe that he would be eligible for membership in the organization which he
sought to have created? Weiss testified also that on March 18, about 1i hours
after work on the day shift had ended , he went to Guzman and asked whether
the Respondent would recognize "an inside union," that Guzman answered affirma-
tively, that he said to Guzman that he would ascertain how many of the employees
favored such a union , and that Guzman told him to do as he wished .3 After talking
with Guzman , Weiss went among the approximately 20 employees on the night
shift and solicited their signatures to a paper which , according to Weiss, was cap-
tioned , in substance , that the signers "wanted their own union , independent union."
All of those employees signed . Weiss testified that he began soliciting signatures
about 6:30 o 'clock and that he spent about 2 hours in the solicitations. We was
paid at his overtime rate from 4:30 to 9 : 45 o'clock. No one of more authority
than Weiss was in the plant that night . 4 The next morning Weiss solicited signa-
tures of employees on the day shift. He was less successful , however, and he testi-
fied that employees were "nervous and afraid ," believing that the Respondent had
sent him around with the paper , and that he ceased his efforts and destroyed it.
While soliciting on March 19 , Weiss was aided by Cartaya who translated his
remarks to the Spanish -speaking employees.
Three employees testified concerning the solicitation of them to sign the paper.
Marion Mergestik , who went on strike as described below , testified that Weiss asked
her to sign a "petition" against Local 517 and that she refused . She testified also
that Weiss solicited her signature more than once and that he pressed her to state
her objections to signing . Rodriguez testified that she could not recall who solicited
her signature but that she was told , "If you don't want to be bothered any more,
if you don 't want a union, just sign here." Rodriguez testified also that nothing was
said to her about the formation of a union . Nunez testified that Weiss spoke to
him of a petition for the employees ' "own union ," that Weiss thrice unsuccessfully
solicited his signature , and that upon the third occasion Weiss quoted Guzman as
3 The findings concerning this conversation are based upon the credible testimony of
Goldstein and Nunez . Cartaya, who became president of NPEU, was not a witness, nor
was Richard Thaw. Norman Thaw, who was a witness , did not testify concerning the
conversation Thus, the Respondent 's evidence , in partial contradiction of that of
Goldstein and Nunez , was given by Guzman . According to Guzman , Goldstein requested
recognition as the representative of the production and maintenance employees , produced
a pack of union cards , but did not claim to represent a majority . Guzman testified
further that he inquired whether Local 517 possessed majority status , that Goldstein re-
plied that Local 517 would have a majority "very soon," and that Guzman then said that
he would .be happy to recognize Local 517 when Goldstein could prove that a majority had
been obtained Guzman also testified that there was no reference to a "big boss ." I can-
not credit Guzman's denial that Goldstein claimed to represent a majority of the em-
ployees He impressed me as an unreliable witness and his testimony is rejected in other
instances described below. In this instance , an affidavit which he executed on April 24,
1959, contradicts his testimony concerning the conversation with Goldstein . According
to the affidavit , "I [Guzman] recall that Goldstein made a long list of demands , and said
that he represented a majority of the employees In addition , I recall Goldstein telling
us (Norman Thaw , Richard Thaw and myself ) 'If you don ' t come across we are going
to put you out of business ' I recall that we told him 'that we would think it over'."
The quoted statements make it clear, contrary to Guzman's testimony , that Goldstein did
claim that Local 517 had been designated by a majority of the employees.
2 The contract between the Respondent and NPEU, described below, excludes working
foremen from the bargaining unit.
8 Guzman's testimony concerning the conversation corresponds largely with that of
Weiss
4 Guzman testified that there is no foreman on the night shift Weiss testified that
Guzman and the Thaws left the plant before he began to solicit signatures.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having said that Nunez would be discharged if Nunez did not sign. I credit the
testimony of Mergestik , Rodriguez , and Nunez.5
At this poin an issue to be decided is whether the Respondent is responsible for
Weiss' activity . The General Counsel asserts , and the Respondent denies, that
Weiss is a supervisor within the meaning of the Act. Both Weiss and Guzman testi-
fied in accord with the Respondent 's position although Weiss characterized himself
as a "working foreman ." Guzman insisted that there was only one foreman in
the plant, a person other than Weiss. There is testimony contrary to that of Weiss
and Guzman but I believe it is unnecessary to recite it because of admissions in
Guzman's affidavit . That affidavit , already mentioned in footnote 1, was executed
before Weiss' activity was put in issue by issuance of the complaint . It names six
foremen and recites , in part:
. Norman Weiss , foreman of the Tool room, day shift, he supervises
and direct two (2 ) employees . There is no second shift foreman in the Tool
room. . . . The foremen are in charge of their departments , they have the
authority to mildly discipline employees under their direction . . . . The fore-
men are responsible for the work performed by employees under their super-
vision. The foremen have the authority to recommend the discharge of
employees working under them. . . .
Guzman was called as a witness by both the General Counsel and the Respondent.
The General Counsel called him under rule 43 ( b) of the Federal Rules of Civil
Procedure , and the Respondent and NPEU conceded that he was properly called
a "managing agent" of the Respondent . I hold that the quoted portions of his affi-
davit constitute admissions against the Respondent 's interests I find that Weiss
is a supervisor within the meaning of the Act. In any event , assuming arguendo
that Weiss is not such a supervisor , he was the Respondent 's agent while engaged
in the activity described herein . This is so because his initial activity took place,
with the Respondent 's knowledge , after his regular working hours and he was com-
pensated therefor . Thus, as we have seen , Weiss testified that on March 18 his
regular working hours had ended when he spoke with Guzman and received Guz-
man's approval to canvass employees on the night shift and that he spent about 2
hours in soliciting signatures . He was paid at his overtime rate for the time spent
on that day in talking with Guzman and in soliciting.
During the morning of March 19, Weiss and Guzman spoke concerning the
activity in which Weiss had engaged . Weiss testified that he did not tell Guzman
of having solicited signatures to the paper but that he said instead that he had can-
vassed the night-shift employees and that they all appeared to favor the formation
of "their own union." He testified further that, although only about 5 employees
of the approximately 20 on the day shift had signed the paper , he told Guzman
that he had found few employees on that shift who did not also favor forming
"their own union" and that Guzman's reaction was to direct him to send to Guzman
a few employees "to represent them [all]." Cartaya and Rodriguez soon called
upon Guzman . According to Guzman , he was asked whether the employees might
form their own union and he replied that he had no power to assist them, that they
should seek "competent help," and that if they should be able to form a union
he would "accept it."
During that same morning , Local 517's president, Goldstein , again called upon
Guzman and Norman Thaw. Goldstein was informed that they were expecting
the unidentified "big boss" soon . That afternoon Guzman discharged Nunez, under
circumstances described in section III, D , below. Nunez went outside the plant
where he told Goldstein of the discharge . Goldstein then went to Guzman and
unsuccessfully protested the discharge.
i Weiss' testimony, to some extent, is contrary to that of the three named employees
He testified that he expressed no threat to anyone in order to obtain a signature, that he
explained to employees that the paper was "for their own union," and that he told some
of them that the circulation of the paper was his "own idea" and for his "own personal
knowledge and it would go no further than here if they signed it or not " I cannot credit
Weiss' denial that he told Nunez that Guzman had threatened to discharge Nunez if
Nunez did not sign Weiss was not content to accept Mergestik's and Nunez' refusals to
sign, but repeated his solicitations in his effort to forestall the organizing activities of
Local 517 It is reasonable to conclude that Weiss would not have stopped short of
making a threat
9 Guzman sought to repudiate the statements in the affidavit by testifying that he had
not read them carefully before signing the document and that he had merely "glanced"
through it. He acknowledged, however, that he had made corrections in it and, indeed,
that some pages had to be rewritten because of his corrections.
NORRICH PLASTICS CORP. 157
About 4:30 o 'clock that afternoon , when the shifts changed , most of the em-
ployees on the day shift joined employees on the night shift in attending a meeting
in the plant .? The employees selected two persons from the day shift , Cartaya and
Rodriguez, and two from the night shift , Luis Ayala and Demetrio Martinez, as a
committee to represent them . No foreman appears to have been present. Approval
was given to certain demands to be presented to management , but the record is
unclear concerning when the demands were formulated , as set out in the footnote.8
The employees suffered no loss of pay for the time spent at the meeting.
On the same or the next day, members of the committee called upon Guzman and
Norman Thaw and submitted the demands. With one exception , they were granted.
On March 20, about 7 of the approximately 40 employees began a strike in protest
of the Respondent 's actions including the discharge of Nunez. Picketing occurred
daily.
On March 23, Norman Thaw and the committee members executed a collective
labor agreement between the Respondent and "the duly elected collective bargaining
committee of the employees of the Norrich Plastics Corporation ." As "proof"
that the committee had been selected by a majority of employees , Guzman testified
that he accepted their word that they had been "elected by the complete shop."
On or about March 26, the strike ended. Goldstein asked Guzman to reinstate
Nunez, who had been discharged , and the strikers . Guzman answered that he
would reinstate only Howarth Gobarth , who appears to have been reinstated
promptly. During May Pedro Rodriguez , Tito Gonzales, and Manuel Colon were
reinstated . At the time of the hearing, Mergestik , Ann Millerman , and Emanuel
Quezel had not been reinstated.9
Subsequent to March 26 , the activity which had led to creation of the committee
was continued and it crystallized in the formation of NPEU . At an undisclosed
time, the committee members visited the Board 's Regional Office seeking advice,
and they were paid by the Respondent for the time consumed by the visit . Sylvia
Rodriquez testified that a field examiner suggested that they consult an attorney.
Thereafter , Attorney Samotin was retained . At a meeting of employees , officers
of NPEU were elected and, according to Rodriguez , the officers were authorized
to have a constitution and bylaws prepared . Samotin prepared such a document
but, at the time of the hearing , the employees had not voted upon its acceptance.
The record does not disclose the extent to which employees are members of
7 Mergestik did not attend the meeting Her testimony concerning a simultaneous event
gives rise to the allegation that Guzman was engaged in keeping "under surveillance . .
[another] meeting and other concerted activities " of employees . As Mergestik left the
plant , Richard Thaw asked her not to talk with representatives of Local 517 who were
outside Nevertheless , as she passed Goldstein , she arranged to meet him within a few
minutes at the Chelsea Bar & Grill across the street . Sometime later , as Mergestik pre-
pared to leave that establishment , she noticed that Guzman was seated outside in front of
a garage Although Richard Thaw was not a witness and Guzman did not testify con-
cerning the incident , the most that can be said for Mergestik 's testimony is that it may
create a suspicion that Guzman was seated there in order to learn what was taking place
in the Bar & Grill . Mergestik testified, however , that there was no meeting of Local 517's
adherents in progress in that establishment She, Nunez , and "a couple of other boys"
were the only employees conversing there with Local 517's representatives . Moreover,
there is no evidence that Guzman could see , or sought to see , anyone in the establishment
or could hear , or sought to hear, anything that was said therein , and Mergestik testified
that from her observation of Guzman she could not say that he was not waiting for his
auto to be delivered by an attendant at the garage. Under all the circumstances, I find
that there has been a failure of proof in connection with this allegation
8 There is evidence that at the meeting some employees suggested improvements in work-
ing conditions to be presented to management and that, after the meeting , members of
the committee called upon Weiss, who made a list of the improvements On the other
hand , there is evidence that before the meeting Cartaya and perhaps Rodriguez , both of
whom had called upon Guzman as described above, called upon Weiss, asked him to reduce
certain demands to writing , and thereafter at the meeting obtained the employees ' approval
of the demands The conflict need not be resolved. Whatever may be the time when a
list of demands was prepared , it is clear that Weiss assisted in the preparation
9 The Respondent denies that Mergestik , Millerman , and Quezel applied for reinstate-
ment . In rejecting the denial , I credit the testimony of Goldstein that he asked for the
reinstatement of all strikers plus Nunez . Moreover , Guzman acknowledged that Goldstein
requested the reinstatement of all strikers Finally , the testimony of Mergestik and
Colon establishes that Mergestik individually applied for reinstatement , and Guzman so
acknowledged in his affidavit.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NPEU. Although Attorney Samotin said at the hearing that he had "some cards"
at his office, he did not produce them. The record does disclose, however, that
NPEU has no funds, a decision having been made to postpone the collection of
dues pending the outcome of the issues herein. The parties are agreed that NPEU
has succeeded the committee as a party to the collective labor agreement with the
Respondent.
C. Conclusions concerning NPEU
The General Counsel advances various theories to support his contentions that
the Respondent's relations with NPEU, and with the committee which preceded it,
were violative of the Act. It is unnecessary to discuss each theory. It suffices
to say that the evidence leaves no doubt that NPEU is the Respondent's creature.
We have seen that the initial move toward formation of NPEU was a conversation
between Guzman and Weiss in which the former approved Weiss' remaining in the
plant after his normal working hours, and at overtime pay, in order to promote the
formation of NPEU. We have seen too that Weiss' activity continued on the fol-
lowing day and that it was vigorous, including a threat to Nunez and repeated
solicitations of Mergestik and Nunez as means of inducing those two employees to
sign a paper which he was circulating. Thereafter Weiss assisted employees in pre-
paring a list of improvements in working conditions to be presented to management.
Finally, we have seen that, in matters relating to the committee and NPEU, the
employees met on company time and property and that upon one occasion the
members of the committee were paid for the time spent in visiting the Board's
Regional Office to seek advice. In sum, every encouragement and assistance was
given by the Respondent to the committee and to NPEU, which contrasts with the
hostility displayed by the Respondent toward Local 517. Recognition of the com-
mittee by the Respondent came quickly, along with execution of a contract, not-
withstanding the pending claim of Local 517 that it represented the employees I
find that the Respondent promoted the movement which culminated in formation
of NPEU and that the Respondent has dominated that labor organization and con-
tributed support to it, and to its predecessor committee, in violation of Section
8(a)(2) and (1) of the Act. I find also that the Respondent's recognition of the
committee, and its execution of the contract, constituted restraint and coercion of
employees in violation of Section 8(a) (1) and support to the committee in viola-
tion of Section 8(a) (2).
D. The discharge of Nunez
Nunez was hired about September 1958 at $40 weekly. He operated automatic
screw machines. Within about 6 weeks he received two wage increases totaling $8
weekly. He was discharged after approximately 6 months' employment.
According to Guzman, Nunez was "totally unreliable and irresponsible" and
brought about much discord between the Respondent and its customers by faulty
work and by causing late deliveries of goods. Although the Respondent did not
support Guzman's testimony by identifying any customer who may have complained
of faulty or delayed work by Nunez, the Respondent did offer additional testimony
that Nunez was incompetent. Ayala, an officer in NPEU and an employee on the
night shift who performed work like that done by Nunez on the day shaft, testified
that upon various occasions he reported to Guzman that he had observed machined
parts which had been poorly made and which he believed had been Nunez' work.
Ayala also testified that a day or so before Nunez' discharge, Ayala showed to
Guzman certain defective work. Guzman, in testifying about the last-mentioned
incident , asserted that on the day before Nunez' discharge, after Nunez had left the
plant at the end of the day shift, Ayala showed the material to Guzman, that the
error in workmanship had been made by Nunez in performing a "rush" job, that the
loss approximated $90, and that Guzman decided to discharge Nunez. On the
other hand, Nunez, while acknowledging that he had made errors shortly after
beginning work, denied that he had worked on a rush job just before his discharge,
that he had improperly performed his work at about that time, and that Guzman had
criticized him during the month in which he was discharged
I cannot credit the testimony of Guzman and Ayala. Guzman, as already found,
was a demonstrably unreliable witness. Ayala, as an officer in NPEU, was not a
disinterested witness If they are believed, one must conclude that Nunez was a
notoriously inefficient employee throughout most of the approximately 6 months
of his employment. We have seen, however, that Nunez received two wage increases.
We have seen too that Nunez was the most active employee in behalf of Local 517,
that he refused to sign the paper which Weiss circulated, and that Weiss told him
that Guzman had said that a discharge would follow a continued refusal to sign.
In addition, there is the credible testimony of Nunez and Goldstein that Guzman said
NORRICH PLASTICS CORP. 159
to them in separate conversations that Nunez was discharged because he was a
troublemaker and the employee who had brought Local 517 into the plant.10 I find
that the Respondent, by discharging and refusing to reinstate Nunez, violated Section
8(a)(3) and (1).
E. The strike and the refusals to reinstate
As recited, on March 20, a few employees began a strike in protest of the Respond-
ent's actions. The strike continued for about a week and ended with a cessation of
picketing and with Goldstein's request of Guzman that all strikers be reinstated.
With the possible exception of Gobarth, no striker was reinstated promptly. Pedro
Rodriguez, Gonzales, and Colon were reinstated during May. Mergestik, Millerman,
and Quezel had not been reinstated at the time of the hearing. Since the strike was
caused by the Respondent's unfair labor practices, the seven named employees were
unfair labor practice strikers and, therefore, were not vulnerable to refusals to
reinstate them. I find that the Respondent, in refusing to reinstate the striking em-
ployees promptly, violated Section 8(a) (3) and (1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead and have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Since the Respondent has dominated and interfered with the formation and admin-
istration of NPEU, and has contributed support thereto, I shall recommend that the
Respondent cease and desist from such conduct and that it withdraw recognition
from and completely disestablish NPEU as the representative of any of its employees
for the purpose of dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work. Nothing in these recommenda-
tions, however, shall be deemed to require the Respondent to vary or abandon those
wage, hour, seniority, or other substantive features of its relations with its employees,
established in performance of its contract of March 23, 1959, with NPEU, or to
prejudice the assertion by the employees of any rights they may have under such
agreement.
Since the Respondent invalidly discharged Nunez and refused to reinstate certain
unfair labor practice strikers promptly, I shall recommend that the Respondent offer
'Nunez, Mergestik, Millerman, and Quezel immediate and full reinstatement to their
former or substantially equivalent positions (The Chase National Bank of the City
of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to
their seniority or other rights or privileges, and that the Respondent make whole
each of them and the other strikers for any loss of pay he or she may have suffered
as a result of the discrimination, by payment to him or her of a sum of money equal
to that which he or she normally would have earned from the date of the discrimina-
tion 11 to the date of a proper offer of reinstatement, 12 less his or her net earnings
(Crossett Lumber Co., 8 NLRB 440, 497-498) during said period, the payment to be
computed upon a quarterly basis in the manner established in N.L.R.B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344. I shall recommend also that the
Respondent preserve and make available to the Board or its agents, upon request,
10 Guzman's version of his conversation with Nunez upon the occasion of the discharge
contains an implicit denial that he said the reason for the discharge was Nunez' activity
in behalf of Local 517. But Guzman did not deny having had -the conversation with
Goldstein when the latter protested Nunez' discharge and having made the remarks
attributed to him by Goldstein.
11 For Nunez, this date is the date of his discharge, March 19, 1959. For the strikers,
this date is the date upon which Goldstein asked Guzman to reinstate them, on or about
March 26, 1959.
13 For Gobarth, Pedro Rodriguez, Gonzales, and Colon, all of whom have been re-
instated, this date is the date of their respective reinstatements. For Nunez, Mergestik,
Millerman, and Quezel, who have not been offered reinstatement, the date is in the future.
160 DECISIONS OF NATIOIQAL LABOR It,EJ TIONS BOARD
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports , and all other records necessary to analyze
the amounts of backpay and the rights to reinstatement under the terms of these
recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section . •N.L.R.B. v. Express Pub-
lishing Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532
(C.A. 4).
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAw
1. Local 517 and NPEU are labor organizations within the meaning of. Section
2(5) of the Act.
2. By dominating and interfering with the formation and adminstration of NPEU,
and contributing support thereto, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (2) of the Act.
3. By discriminating in regard to the hire or tenure of employment of Nutlet and
the striking employees, thereby discouraging membership in Local 517, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Pay Less Drug Stores, Petitioner and Retail Food Clerks . Union,
Retail Clerks International Association, Local 870, AFL-CIO.
Case No. _30-RM-331. April 12, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 ( c) of the National Labor
Relations Act, a hearing was held before Albert Schneider, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer-Petitioner seeks a representation election in a
unit composed of employees at its new Hayward , California , retail
drugstore . The Union contends that there is a contractual bar to this
proceeding, and further that, under the circumstances , the requested
single-store unit is inappropriate in view of the Employer's prior
bargaining on a multiemployer basis.
The Employer , Pay Less Drug Stores, is a California corporation
operating about seven retail drug establishments in the State of
127 NLRB No. 24.