Revere Metal Art Co., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1960

127 N.L.R.B. 1028 (N.L.R.B. 1960)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
The sole issue 2 in this case is whether, as the complaint alleged, the
Respondents violated Section 8(b) (1) (A) of the Act by peacefully
picketing the Company's premises to compel the Company to recognize
Local 344 as the exclusive bargaining representative of the Company's
employees in an appropriate unit at a time when it did not represent
a majority of such employees. The Trial Examiner recommended
dismissal of the complaint on the ground that the General Counsel
had not established that recognition was an object of the picketing.
On March 28, 1960, the Supreme Court issued its decision in
N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639
etc. (Curtis Brothers Inc.),' in which the Court held that peaceful
picketing by a union which does not represent a majority of the em-
ployees to compel recognition as the employees' exclusive bargaining
agent is not an unfair labor practice under Section 8(b) (1) (A) of
the Act.
Accordingly, as the decision of the Supreme Court in the Curtis
case is controlling as to the allegations herein, we shall, in compliance
therewith, dismiss the complaint without passing on the Trial
Examiner's findings and conclusions.
[The Board dismissed the complaint.]
2 As stated in the Intermediate Report, the Company is engaged in the retail clothing
business in Alton, Illinois . It is one of seven such separately incorporated enterprises in
the State of Illinois , whose labor, fiscal , and merchandising policies are centrally con-
trolled and uniformly applied by the seven Myers family brothers and cousins , who also
occupy most of the executive positions and directorships of each corporation and, together,
comprise the majority stockholders thereof. The seven corporations made gross sales in
excess of $5,000 , 000 from the period of February 1, 1958, to January 31, 1939 , and made
out-of- State purchases in excess of $2,500 , 000 during the fiscal year ending January 31,
1938 . we find, in agreement with the Trial Examiner , that the seven corporations are a
single employer within the meaning of the Act Orkin Exterminating Company Inc. (of
Kentucky ), 115 NLRB 622. We further find, as did the Trial Examiner , that the Com-
pany is engaged in commerce and that it will effectuate the policies of the Act to assert
jurisdiction . Carolina Supplies and Cement Co., 122 NLRB 88.
3 362 U.S. 274.
Revere Metal Art Co., Inc. and International Union of Electri-
cal, Radio , and Machine Workers of America , Local 477, AFL-
CIO. Case No. 2-CA-6560. June 7, 1960
DECISION AND ORDER
On January 6, 1960, Trial Examiner Thomas A. Ricci 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
127 NLRB No. 127.
REVERE METAL ART Co., INC. 1029
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Respondent had not engaged in certain other alleged unfair
labor practices , and recommended that the complaint be dismissed in
those respects . Thereafter , the Respondent and the General Counsel
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
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 Interme-
diate Report , the exceptions and briefs , and the entire record in this
case, and hereby adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner with the following additions and
modifications :
1. We agree with the Trial Examiner that the Respondent violated
Section 8 ( a) (1) of the Act as set forth in the Intermediate Report.
2. The Trial Examiner found , and we agree , that the Respondent
violated Section 8 (a) (1) and ( 3) of the Act by discharging employee
Alvarez because he persisted in engaging in union activities. Like
the Trial Examiner , we believe that he was discharged for this reason,
rather than for the reason asserted by the Respondent in its defense,
i.e., that Alvarez breached the agreement, to which he was alleged a
party, that there should be no distribution of union literature on com-
pany time. However, in so finding, we rely upon the record evidence
which satisfies us that Alvarez did not, in fact, circulate the union
leaflet on company time.
3. We agree with the Trial Examiner that Hernandez , Mariana,
Keeby, Gotay, Hill, Pamblanca, and Ramirez participated in the
attack upon Noble, and were therefore guilty of misconduct of the
type which the Board has held warrants disqualification for reinstate-
ment. Accordingly, we adopt the Trial Examiner's recommendation
that the complaint should be dismissed as to all seven of them.'
4. We find, as did the Trial Examiner , that the Respondent was
warranted in denying reinstatement to Sanchez because of his mis-
conduct during the strike. About 4:30 on Tuesday afternoon, the
second day of the March strike, as i, e and the Trial Examiner have
found, seven strikers participated in an attack upon Noble . On June
2, 1959, Rosa gave an affidavit to the Respondent's attorney stating,
inter alia, that Sanchez had said "it was necessary that there be a fight
with nonstrikers so that people will be afraid to pass the picket line
I See , for example , Ekco Products Company ( Stn-Brite Davisaon ), 117 NLRB 137.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and come to work." 2 On June 3, 1959 , the Respondent wrote Sanchez
a letter stating that he would not be recalled because he had encour-
aged employees to violence during the strike. In light of the fact
that Sanchez played a leading role among the prounion employees as
committee member, chief shop steward, and their spokesman in deal-
ing with the Company, Rosa's affidavit of June 2 could well have
led the Respondent to conclude that Sanchez had helped plan the
Lafayette Street attack upon Noble . That this was, in fact , the situa-
tion is clearly indicated by Vargas' credited testimony which was not
denied by Sanchez, that in the morning of the day on which the
attack occurred , Sanchez said to a group of strikers , including Vargas,
"They got to get him [Noble] after he come out from work."
We believe that in view of Sanchez' prestige with the strikers, he
could have reasonably expected them to comply when he told them to
engage in physical violence-a's, in fact, they did shortly thereafter.
In these circumstances , he was at least as guilty of serious misconduct
as he would have been if he had personally participated in the attack.
Accordingly , we find that because of these activities Sanchez was
disqualified from any reinstatement rights, and we shall dismiss the
complaint as to him.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959 , the National
Labor Relations Board hereby orders that the Respondent , Revere
Metal Art Co. Inc., New York, New York, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discharging employees or otherwise discriminating against
them in their employment because of their exercise of the right to
self-organization , or to join a labor organization.
(b) Interrogating employees concerning their union membership
or activities in a manner constituting interference , restraint , or coer-
cion; offering employees greater earnings and financial benefits if they
discontinue union activities ; telling employees that they would not
progress in their employment if they continue their union activity ;
threatening employees with discharge or layoff because of their union
activities; offering to reinstate discharged employees on condition
that employees discontinue their union activities ; threatening to close
its plant if the employees persist in union activities ; or in any other
manner interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization , to form labor organiza-
2 The Trial Examiner inadvertently gave the date as June 2, 1957 , which is obviously a
typographical error.
REVERE METAL ART CO., INC. 1031
tions, to join or assist International Union of Electrical, Radio, and
Machine Workers of America, Local 477, AFL-CIO, or any labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, 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 a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Roberto Alvarez immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of earnings he may have suffered as a result of the discrimina-
tion against him, as provided in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due and the
rights of employment under the terms of this Order.
(c) Post at its plant in New York City copies of the notice attached
to the Intermediate Report marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of 60 days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Because many employees do not speak English,,
the notice shall, at each location, be posted in duplicate, one copy in
English and one in Spanish. Reasonable steps shall be taken by the,
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges unlawful discrimination in employment against Robert
Blanchard, Eduardo Sanchez, Dionisio Hernandes, Luis Mariani,
s This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order "
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rudolph Keeby, Pedro Martinez, Miguel Gotay, Fenton Hill, Fran-
cisco Pamblanco, and Anibal Ramirez.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner in New York, New York, from September 28 through October
13, 1959, on a complaint issued by the General Counsel against Revere Metal Art
,Co., Inc., herein called the Company or the Respondent. An answer was filed by
the Respondent in which it denies the commission of any unfair labor practices.
The issues litigated were whether the Respondent violated Section 8(a)(1) and (3)
of the statute. All parties were represented by counsel and afforded full opportunity
to present evidence, examine and cross-examine witnesses, make oral argument,
.and file briefs and proposed findings of fact and conclusions of law. Briefs were
received from the Respondent and from the General Counsel.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
Revere Metal Art Co., Inc., is a corporation duly organized under and existing
by virtue of the laws of the State of New York. At all times material herein it has
maintained its principal office and place of business at 37 Great Jones Street, in the
city and State of New York, where it is now and has been continuously engaged
in the manufacture, sale, and distribution of pen parts. During the past year the
Respondent caused to be manufactured, sold, and distributed at its plant products
valued in excess of $800,000, of which, products valued in excess of $50,000 were
shipped from said plant in interstate commerce directly to States of the United
States other than the State of New York. I find that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
All parties stipulated and I find that International Union of Electrical , Radio, and
Machine Workers of America , Local 477, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The total picture of the case
This case grew out of an organizational campaign started in the fall of 1958,
when IUE Local 477, the Charging Union, sought to achieve representative status
for the Respondent's employees. In February 1959, the Company discharged
Roberto Alvarez, one of the Union's stewards, assertedly for having distributed
union literature among the employees during working hours in violation of a
company rule. The complaint alleges he was discharged because of his union
sympathies and to discourage union activities among all the employees. In March
a great number of employees struck, in major part to protest Alvarez' discharge.
The Union abandoned the strike 2 weeks later and unconditionally offered to return
all the strikers. The Company reinstated some of them immediately and placed
another group on a preferential hiring list, to be recalled when needed as plant
operations permitted pursuant to reorganization of work occasioned by strike dis-
ruption. The Respondent also advised eight strikers, individually named in the
complaint, that they would not be reinstated because of their misconduct during
the strike. The complaint alleges that the failure to reinstate these eight was in
reality a discrimination in employment for having engaged in the strike, and there-
fore an unfair labor practice. A ninth striker-Eduardo Sanchez-was placed
on the preferential hiring list at the end of the strike, but, before being recalled like
the others, was also told he would not be reinstated because of strike misconduct;
the complaint alleges the refusal to recall him also as having been unlawful. A
final employee named in the complaint is Robert Blanchard, who joined the strike
and was placed on the rehiring list. The complaint simply alleges that he was not
recalled and that failure to recall him was unlawful. As to Blanchard, the Respond-
ent asserts he was invited back to work in due course but never responded.
REVERE METAL ART CO., INC. 1033
The complaint also alleges a number of separate acts of illegal restraint and'
coercion by company representatives during the course of these events. At the
hearing the General Counsel amended the complaint to allege an illegal 1-week
layoff of Sanchez late in November 1958.
B. Coercive statements in violation of Section 8(a)(1) of the Act
On this aspect of the case, the General Counsel's witnesses quoted two management
representatives: Harry Kasan, the company president, and Gunther Dietrich, a fore--
man. The total record shows that the Union's strength centered in the screw
machine department on the first floor of the plant, where about 50 of the approxi-
mately 100 employees of the Company worked. Dietrich, assisted by Christopher-
Colon, an assistant foreman, is in complete charge of the screw machine depart-
ment; as he said, he is responsible for everything and everybody, does all but
sign checks. Most of the employees, especially on the ground floor, are Puerto
Ricans who speak little or no English. There was an employee committee which
cooperated with Gilbert and Garry, representatives of WE Local 477. Of the-
committee, Sanchez was the most articulate, knew English more than the others,
and apparently was the best educated. He therefore acted as spokesman and leader
of the employees in various conferences that later took place with company officials.
About October 27 or 28, 1958, as Sanchez left the plant with Assistant Foreman
Colon, he met Garry, the union business agent, who asked to speak to him in a
nearby coffee shop. Colon stepped aside and waited at the corner. A few minutes
later, Sanchez rejoined Colon, who said he knew Garry was a union representative
but "didn't want to be mixed up with any union." The next day Dietrich, the fore-
man, called Sanchez aside and asked why he was becoming involved in union
activities, and added the Company did not want the union, which he called "a
bunch of racketeers and Communists." Later the same day he told Sanchez that
he, Dietrich, ran the shop, that he could do many favors and would give Sanchez
more mony. He also showed Sanchez a list of employees whom he had helped'
"financially" after they had cooperated with him. Sanchez went on to testify
Dietrich kept telling him similar things on many occasions throughout November
and December, even adding that if Sanchez would "quit talking about the Union"
he would be made a foreman. Dietrich's suggestions that Sanchez choose between
union activities and advancement in his employment fell upon unresponsive ears.
Finally, toward Thanksgiving Day, Dietrich told Sanchez "when you finish this
union activity, the Company will get rid of you one way or another."
Sanchez also testified that on January 15, 1959, Dietrich told him there was no
use "belonging" to the Union, that he could do all that the Union could not do, that
he would give Sanchez a raise and "treat the employees better than the Union."
Employee Anibal Ramirez testified that toward the end of January, Dietrich asked
him if he was a union member ". . . he told me that I was a fool, that I was going
to lose my job . . . if I wasn't satisfied with the job I was doing, he would make me
a maintenance man." Gotay, another employee, testified that in the middle of
February, Dietrich told him "if I quit the Union he is going to give more money to
me and he is going to give me a good position because I was a good worker and
I know how to work." Gotay testified Dietrich told him this "a couple of times."-
As will appear in detail later, Roberto Alvarez, also of the screw machine depart-
ment, was discharged on February 4, 1959. He testified that on about January 15,
Dietrich said to him: "I am going to make you a lead man. I am going to make you
more money if you forget about the Union." Sometime in March, after the dis-
charge, Dietrich asked Alvarez to return to work without the Union or the strikers
knowing about it: "he would raise my pay, he would make me a leadman. Just
forget about the Union and I will do good for you." i
The Union voted on February 22, 1959, to strike over Alvarez' discharge, and'
the decision soon became common knowledge in the plant .2 On Friday, February
27, 3 days before the strike, Dietrich told Sanchez he had a "formula" on how the-
'The March strike, called primarily to force the reinstatement of Alvarez, started on
March 2, and was abandoned by the Union on March 16. Alvarez said the above invita-
tion to return to the shop behind the Union's back came after the strike was lost
2 The record also shows there were two other matters that disturbed the employees and
contributed to their decision to strike the Company's failure to reimburse dues checkoffs
pursuant to a Trial Examiner's recommendation in a prior proceeding, and certain notices
which the Company had given employees relating to excessive absenteeism and reluctance-
to do overtime work.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike could be avoided without loss to the Company or to the employees. He then
said to Sanchez and Casaslini, another employee: "I will take Roberto Alvarez back
if you quit the union activities."
At 9 a m. on January 8, the union committee of five (Sanchez, Casaslini, and
Mike Morales, who left their work on the day shift, and Rudolph Keeby and
Alvarez, of the night shift, who came to the plant for this purpose) went to the
offices because they wished to discuss certain grievances of the employees with the
Company. As their spokesman, Sanchez told Simon Kuznetzow, called Cy, the
secretary-treasurer of the Company, what they wanted. Kuznetzow refused to
discuss any subject with them then and asked that they return to work. As the
employees persisted, he called his brother Harry Kasan, the president, who took
the same position and also told the employees to return to their workposts. The
employees still persisted, and finally left the office. some returning to the ground
floor, and some going to other floors to advise other employees of the Company's
reaction to their desires of the moment 3
When the employees learned of the Company's attitude, many of them ceased
work. Virtually all of the screw machine department stood idle at their machines,
just milling about in confusion. Also some employees from other floors ceased
work and came downstairs. The officers followed the committeemen out of the
office and down to the working area. There followed several hours of general dis-
cussion, with nobody working, the employees insisting on a definitive answer from
the Company, and the owner brothers pleading with the employees to return to
work or leave the plant Shortly after the committee descended, Harry Kasan
stood a few steps up on a stairway, where all could see him, and asked to be heard.4
According to Sanchez, Kasan spoke as follows.
He said that he knew we belonged to Local 477, IUE, and if we keep joining
that Union, he will close the factory and go to Florida, because Papermate, a
company who manufactures the same thing, offered him $25,000 just to close
the factory, and his wife, who is a teacher, is getting $8,000 a year, and with
$33,000 he can live in Florida without any trouble, without a union. He didn't
want Local 477 because it was a bunch of racketeers and communists.
Ramirez, Alvarez, and Casaslini corroborated Sanchez' testimony that Kasan
threatened to close the plant and retire to Florida if the employees did not abandon
their union activities. All the witnesses agreed that during the next few hours,
Kasan addressed the employees several times, on occasion speaking as long as 25
minutes, always in similar vein. As Alvarez recalled, Kasan said: "If you fellows
join this union, Local 477, I am going to close this factory and I am going to let
you people out."
With the employees not working and persisting in their position, whatever it may
precisely have been, the police were called. They offered to clear the plant, but
the company officers stayed them, always continuing their efforts to prevail upon
the employees not to strike or at least to leave peacefully. Finally, the police turned
to Gilbert, the union representative who had also arrived, and, at Gilbert's express
i equest, the employees left the plant.
The foregoing recital of facts rests upon the testimony of the General Counsel's
witnesses. There is a minimum of contradiction by either President Kasan or
Foreman Dietrich. Kasan took the witness stand, but did not touch upon these
matters at all. Cy Kuznetzow testified on other matters; as to the January 8
3 There are understandable variances among the witnesses as to precisely what was said
at this meeting in the office. The employees testified they only asked to discuss grievances.
The owners said the demand was for either an immediate conference relating to "the
Union" or a fixed agreement on a date for such a conference Further, some of the
committeemen testified Harry Masan summarily ordered Casashni and Morales to punch
out, thereby implying that they were discharged The officers testified they simply ordered
everybody to return to work, and even said if anyone did not want to work, "they should
punch out." These conflicts in testimony are of no moment There is no refusal-to-
bargain allegation in the complaint, nor any charge of illegal dismissal of anyone that
day. All that matters, and all that is clear, is that the employees wished to deal with
the officers as a group on a matter relating to their employment and the Company was
opposed to doing so, at least at that time It is also clear that the Company wished the
committeemen, as well as all others, to continue to work
4 Gotay, a generally unreliable witness, said Iiasan started to speak 20 or 30 minutes
after Sanchez and Casaslini came down Sanchez and Alvarez said Masan followed them
,downstairs. Again, these variances aie immaterial to the issue of the complaint.
REVERE METAL ART CO., INC. 1035
incident, he said his brother Harry did most of the talking, and quoted him as say-
ing, "If you go out of the shop now, and I am forced to close down, I can afford to
go to Florida."
Dietrich admitted having discussed the matter of promotion to foreman with
Sanchez on a number of occasions and that he did the same thing with Alvarez and
Gotay. He also admitted that his discussions with them included talk about the
Union, with him explaining throughout that their continued union activity would
disqualify them from such advancement in the future. In the light of his own
testimony that, unsolicited, he brought up these subjects with the employees-his
literal denial of having promised to make Gotay a foreman if he quit the Union, of
having told Gotay that if he did not drop the Union he would not become a foreman,
and of having told Alvarez he would become a foreman and make more money if
he left the Union-lose all significance. Essentially, Dietrich's testimony was not a
denial of the earlier evidence, but rather an attempt to shift the emphasis of his
words. He would have it that he was not interested in having the employees leave
the Union, but only in making them foremen. Apart from the considerable number
of foremen he would have created in his department, there is much in the record
showing quite clearly that this was not his true concern. To start with, there would
have been no occasion for him to disparage the Union, to show Sanchez a list of
employees he had assisted in return for their cooperation with him, to tell him to
quit talking about the Union, or to threaten him and Ramirez (threats which he did
not deny) with eventual discharge for continued union activity. Further, Dietrich's
antiunion intent, as a spokesman for the Company, was unequivocally revealed
when he told several of the employee committeemen, just before the March strike,
that the impending strike over Alvarez' discharge could be avoided altogether by an
agreement whereby the employer would put Alvarez back to work in return for the
employees forgetting all about union activities.
Harry Kasan was present throughout the hearing and heard all the evidence, yet
did not deny the direct testimony that he threatened to close the plant in retaliation
if the employees did not discontinue their union activities. His brother's weak
attempt to paraphrase these words of the president so as to weaken their necessary
import was unpersuasive. The testimony remains basically uncontradicted. More-
over, it is consistent with the Respondent's recent conduct, found illegal in a prior
Board decision, in forcing upon its employees a labor organization not of their
choice, and thereby trenching upon their statutory right freely to engage in concerted
activity 5
I do not credit Gunther Dietrich's purported explanation of the clear promises
of benefit and the threats of reprisal which he voiced to a number of employees.6
In addition to the testimony described here, there are other minor details supporting
the testimony against him. Cy Kuznetzow said he never knew the Labor Manage-
ment Relations Act concerned itself with the union membership of supervisory per-
sonnel until after Dietrich's statements to the employees; thus Dietrich was not con-
veying any lawful company policy.? Nor does it appear that foremen or leader-
men, the position to which Dietrich said he hoped to promote so many employees,
had been excluded from prior union membership in this plant. Moreover, Dietrich's
demeanor as a witness showed evasion, sparring with words, and an all but a frank
attitude.
Accordingly, I find that by each of the following statements of its agents the
Respondent restrained and coerced its employees in the free exercise of the rights
guaranteed by Section 7 of the Act, and thereby violated Section 8(a) (1) :
1. Gunther Dietrich's interrogation of Sanchez as to the latter's reasons for
engaging in union activities, and his interrogation of Anibal Ramirez concerning the
latter's union membership.
6 Revel e Metal Art Co, Inc, 123 NLIiB 114
"The testimony of Colon, Dietrich's assistant, was offered to bolster the foreman's
assertion that his prime concern was production and work He was present on two occa-
sions when Dietrich urged Sanchez to abandon the Union I consider his entire testi-
mony untrustworthy. His professed inability on cross-examination and tinder questioning
by the Trial Examiner, to remember any details as to d rtes, words, and all other facts,
were virtually tantamount to a refusal to speak
The extent of Dietrich's activity is revealed in a single question and answer :
Q (By the Trial Examiner) Anybody you thought who was capable and who
could become it foreman, you advised them not to join until later, because if you
join the Union you can't later on become a foreman 9
A. Yes.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Gunther Dietrich 's statements to Sanchez and Gotay on a number of occasions
and to Alvarez, that he would promote them to foremen, or otherwise give them
more money or financial benefits if they abandoned their union activities.
3. Gunther Dietrich's statements to Sanchez that the Respondent would "get rid"
of him "one way or another " once the union activity was ended , and to Ramirez that
he would "lose his job."
4. Dietrich's statements to Alvarez, after the March strike, that if Alvarez would
return to work without the Union's knowledge, and forget about the Union, Dietrich
would raise his pay and make him a leadman.
5. Dietrich's statement on February 27, 1959, to Sanchez and Casaslini that the
Respondent would reinstate the discharged Alvarez if the employees discontinued
their union activities.
6. Harry Kasan's speech to the assembled employees on January 8, 1959, telling
them that if they persisted in their union activities, or went on strike, the Respondent
would close the plant and Kasan go away to Florida.
C. The discharge of Alvarez
January 8, 1959 , when the major number of employees left the plant after the
company officers refused to discuss their grievances with the committee, was a
Thursday , and the work stoppage was considered a strike. It was settled the next
day with the assistance of the State Mediation Board and the employees returned
to work the following Monday . Pursuant to a short strike settlement agreement,
representatives of the company met on about January 15 with Gilbert, of the
Union, and the employee committee in an attempt to resolve a number of grievances
for the employees . At one point the company attorney asked Gilbert and the
committeemen to agree that there should be no union activity on company time.
Gilbert and the employees , among them Alvarez , agreed.
When Alvarez reported for work at 3:30 p .m. on February 3, 1959, he found
his timecard missing from the rack and was sent to the office. Harry Kasan, the
president , there accused him of having distributed union literature on company time
and said , "I am going to fire you ." Alvarez denied the charge, insisting he had
only done so at quitting time in the locker room . While they discussed the matter,
Foreman Dietrich entered the office and said , "Let him work now, I need him";
Alvarez then proceeded to his post and worked the entire shift. The next day again
his card was missing , and he again went to the office. Here, in the presence of the
owner brothers and Dietrich, he was discharged and told it was for having violated
the agreed-upon rule against union activities on company time.
There is conflict in the testimony respecting Alvarez' distribution of a union
newspaper dated January 1959 . He was a general service machine adjuster or
repairman on the ground floor in the screw machine department, and worked among
all the machines as needed . His hours were from 3:30 to midnight . Calvo, the
foreman whom Alvarez assisted on that shift , testified that one evening late in
January, Alvarez distributed the union newspaper among the eight machine opera-
tors on that shift about 11:40 or 11:45, that the men read them, and that he, Calvo,
made no comment at that time , either to Alvarez or to any of the operators, to
stop reading the newsletter . Calvo added Alvarez took only a ",a minute or two"
to do this and said nothing to the employees . As to the exact date, Calvo was
somewhat confused , first saying it happened late in January , then 2 days before the
second strike ( about February 27), and finally , a day or two before Alvarez'
disappearance ( he was discharged February 4).
Sanford , a visiting machine operator instructor , who worked each day from
5 p.m. to about 9 or 10 o'clock, and who was not a regular company employee,
testified that one evening , about 8 or 8:30, on January 21 or 22 (as he recalled)
Alvarez handed him a copy of the union publication and also passed out copies to
three or four employees . He said several employees were standing in a group near
the locker room when Alvarez did this. Sanford also explained that in the regular
operations of the screw machine departments on the night shift at that time, each
man looked after several machines, which were automatic , that the men ate their
sandwiches or had coffee while watching their machines because there was no
lunch period provided , that there existed an established practice of taking a short
coffee or coke break during the evening, and that when Alvarez passed out the
leaflet the men were so engaged in a "coffee break." Rubio, leadman on a third
floor night shift , worked with five other men. He testified that on one occasion
"late in January ," between 8 and 10 o'clock in the evening, Alvarez distributed a
union leaflet to each man in that group and spoke a few minutes to each . He added
Alvarez gave him a copy with the admonition "don't say anything ." Rubio also
testified Alvarez had passed out union buttons to these men a few nights earlier and
REVERE METAL ART CO., IN C. 1037
spoke to each a few minutes. Ejarque, a night shift employee, corroborated Rubio;
he placed the time at about a month before the March strike.
Alvarez admitted he distributed the paper in question to the employees on his
shift in his own department, under circumstances quite different from the stories of
the other witnesses . He said he never distributed anything on the third floor to
anyone. According to him, a week before he was called into Harry Kasan's office
he distributed the leaflet in the dressing room at the end of the shift at 12 midnight,
and he so told Kasan when accused. He also admitted that he gave a copy to a
man who chanced to see the bundle of papers in his tool drawer in the evening. His
total testimony shows he was referring to Sanford, and Alvarez explained Sanford
saw the leaflet, when borrowing a screwdriver from Alvarez's drawer, and requested
Alvarez to give him a gift copy.
I think it unnecessary to decide, in the total circumstances of this case , precisely
at what moment and under what circumstances Alvarez passed out the union leaflet
to the approximately 12 employees who at most received them from him. The
critical issue raised by the complaint is whether the Respondent in fact discharged
him because it wished to curb his union activities , regardless of when or where he
carried them on. If this was its motive-,a purpose proscribed by law-it matters
not whether the act occurred at 12 or a quarter to 12, whether the operators were
on their lunch break or not, whether Alvarez' activities interfered with production,
or whether they were totally insigmficant, as is strongly indicated by the Respondent's
own witnesses. Even assuming Alvarez did not literally abide by the agreement that
no such distribution should be carried on, the question would be whether the
Respondent did no more than seize upon this very minor infraction of such a rule
as a pretext to disnuss him because of his prounion sentiments . In the light of the
following clear testimony, completely uncontradicted, 1 cannot credit Cy Kuznetzow's
statement to me that the discharge had nothing to do with union activities.
Shortly after Alvarez was discharged on February 4, Sanchez was in the office
with him protesting and pleading that Alvarez be reinstated. Present were Harry
Kasan and his brother and Gunther Dietrich. The two brothers insisted Alvarez
must stay fired because their lawyer had advised that to reinstate him would enhance
the Union's prestige in the plant. They argued back and forth for several hours.
After an hour, according to Sanchez, Kasan said, "If Roberto and you people forget
about the Union and don't work any more for Roberto, he will take Roberto back.
He is a very good friend of his. He has a boy in the family. Just quit the union
activity and he will take him back." Alvarez testified that after all the talk in the
office, he was on his way home when Harry Kasan and Cy stopped him in the hall
and said to him, "See, Mr. Alvarez, you are a good man, but I can't keep you on
the job if you are working for the Union. If you forget about the Union I can
take you back." 8
Sanchez continued to badger the company officers to take Alvarez back, always
meeting the refrain that the lawyer said "No." Finally, when the Union voted to
strike in protest, Foreman Dietrich, as set out above, told them (Alvarez, Sanchez,
etc.) that if the employees would all quit the union activities the Company would
take Alvarez back.
Not one of the three company officials-Harry Kasan, Cy Kuznetzow, or Gunther
Dietrich-denied any of the foregoing quotations, each of which comports precisely
with the unlawfully coercive statements set out in the earlier part of this report.
On questions involving human motivation, at times there is doubt. Here there is
none. On the total record, I find that the Respondent discharged Alvarez on February
4, 1959, because he persisted in engaging in union activities, and thereby violated
Section 8(a)(3) and (1) of the statute. I also find that Harry Kasan's statement
that Alvarez would be reinstated if the employees as a group discontinued their
concerted activities, constituted a separate violation of Section 8 (a) (1) of the statute
attributable to the Respondent.
D. The alleged refusal to reinstate Blanchard
Blanchard joined the March strike at its inception; he never returned to his job.
When the Union, on about March 16, offered to return all the strikers uncondi-
tionally, the Respondent took some back immediately, and placed Blanchard and a
8 The discussion during which the company officials so clearly admitted their true in-
terest in Alvarez lasted several hours, and it was the "boss" who called Sanchez to the
office to loin in the conference. A disciplinary discharge normally is not accompanied by
such extended discussion. Rather, as the total record shows, Alvarez, a member of the
employee committee, was being used as a lever to dissuade both him and Sanchez from
their prounion determination, and later the entire employee complement.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of others on a preferential hiring list. Cy Kuznetzow testified, without
contradiction, that the three shifts before the strike were reduced to one during
the strike, went to two after it, and never increased again. He said production
dropped to 25 percent of what it had been, and that changes in operations, including
shifting of employees from one department to another, necessitated by the reduced
complement, made it impossible to feed all the strikers into the plant immediately.
He ended by saying, still uncontradicted, that eventually 33 of the strikers (this
included all except 8 assertedly involved in violence), including Blanchard, were
recalled by individual written letter. Blanchard had worked as an inspector, a job
which was abolished in consequence of the reorganization following the strike. In
August, Kuznetzow wrote to him, simply inviting him to come to work. Blanchard
never answered. He did not appear at the hearing and there is no other evidence
concerning him at all.
Although the complaint alleges the Respondent unlawfully refused to reinstate
Blanchard in consequence of his strike activity, the General Counsel does not con-
tend that the unlawful conduct consisted of placing him on the preferential list
instead of putting him to work immediately on Monday. Nor could the General
Counsel so argue, in view of the fact that many weeks passed before other strikers
were recalled and no charge of unlawful discrimination is made as to them. Estab-
lishment of the preferential hiring list is therefore not only free of attack in the
complaint, but adequately explained on the undenied and perfectly credible testimony.
In view of all of the foregoing, I conclude that the record as a whole does not
affirmatively prove any unlawful discrimination against Blanchard and I shall there-
fore recommend dismisal of the complaint as to him.
E. Denial of reinstatement to certain strikers
1. The fight on Lafayette Street
At about 4:30 on Tuesday afternoon, the second day of the March strike, the
employees proceeded in small groups from the plant, located on Great Jones Street,
on their way home to the subway station situated at Bleecker Street. To reach it they
walked 2 blocks along Lafayette Street which joins Great Jones and Bleecker, 2 blocks
away, with Bond Street also crossing Lafayette halfway between Great Jones and
Bleecker. As a group of four or five reached Bond Street, they were met by a number
of strikers and, with John Noble, a nonstriker, as the focal point, there ensued an
outburst of violence. Eleven witnesses for the Respondent, all employees, saw the
fight and, collectively, identified seven of the strikers as direct participants. These
men-Miguel Gotay, Fenton Hill, Rudolph Keeby, Francisco Pamblanco, Anibal
Ramirez, Luis Mariani, and Dionisio Hernandez-are among the employees whom
the Respondent refused to reinstate after the strike on grounds of misconduct, and
whose rejection by the Respondent is called illegal discrimination in employment by
the complaint.
Noble joined the strike and did not work the first day. He changed his mind and
went in Tuesday morning. The burden of the Respondent's many witnesses is that,
for the purpose of keeping Noble, and any other employees who might be encouraged
by his example, out of the shop, the strikers planned to intimidate him Tuesday
evening, and that, whether by deliberate design or in consequence of uncontrollable
emotion, they assaulted him in the street and committed an out-and-out battery
upon his person. In turn, the General Counsel, arguing primarily from the testimony
of three of these strikers-Gotay, Keeby, and Ramirez-contends that it was Noble
who provoked the fight by calmly striking one of them without cause.
When 14 eyewitnesses describe a fight or free-for-all, some of them participants,
it is to be expected that there will be innumerable discrepancies in their individual
recollections and all sorts of disagreements among them as to details of the event.
This case is no different. It is impossible to know just who said what at any given
instant, and precisely how each person moved at a particular moment. However,
largely because of uncontradicted testimony, and in part on the basis of admissions
of the strikers themselves, it is clear to me that the group of strikers picked on
Noble and wanted to do him bodily injury. There is only one substantial factual
issue raised by direct conflict in testimony. Was Noble the first to raise his hand
in physical threat and violence? Noble and four other witnesses testified that Gotay,
somewhat smaller than Noble in physique, accompanied by four or five other strikers,
accosted Noble, offensively berated him for having abandoned the strike, and made
a pass at the larger man. These witnesses described what followed as Noble promptly
starting to defend himself from the whole group of strikers, swinging about him
with abandon, and even striking whomever he chanced to hit. Gotay, corroborated
by Keeby and Ramirez, two other strikers, insisted that Gotay, flanked by the other
REVERE METAL ART CO., INC. 1039
strikers, walked close up to Noble, and before he or anyone could utter a word,
Noble swung mightily and with a single blow broke his nose. Of the other four
strikers placed at the scene, Hill, Mariani, and Pamblanco did not testify, and
Hernandez spoke only of other matters. Considering all other related facts in the
record, the probabilities inherent in the situation existing at that very moment, the
utterly implausible aspects of the stories told by Gotay and Keeby, and the com-
pletely inconsistent testimony of Ramirez concerning his part in the fray, I credit
the Respondent's witnesses and find that Gotay was the first to swing at anybody.
When Noble arrived for work Tuesday morning, seven or eight employees stood
in a group at the corner, apparently hesitant as to what to do. Sanchez, a leader
of the strikers, testified that they followed Noble into the plant. Gilbert, Local
477's business agent, descnbed the incident by saying Kasan, the president, standing
in front of the building, brought Noble over to the group of employees at the corner,
that all of them talked for a while, and that then "Kasan and Noble led this group
down toward the plant." Gilbert called out to Noble and asked why he did not stay
out like the day before, and added, "Why are you double-crossing the fellows you
work with?" Later during the day there was discussion among the strikers about
what Noble had done. Mike Morales, a striker, testified without contradiction
that about 9:30 Gotay told him, "When Cubano [Noble's nickname among the
employees] comes out we plan to jump on him." Gotay, self-styled as a strike cap-
tain who kept a list of the pickets and supervised their activities generally, said that
in the afternoon he spoke with Sanchez about Noble, that they discussed the necessity
of having everybody stay out, and that he offered to speak to Noble because they
both spoke Spanish and were "companion friends."
By 4:30 a group of strikers were standing on the sidewalk at Bond and Lafayette
Street. As Noble and other workers approached on their way to the subway station,.
Gotay, Keeby, and possibly other strikers, emerged from a small cafe across the
street and joined with the other strikers to approach Noble as a gioup. Thus, in view
of the earlier events of the day, it follows that the strikers had an objective in mind`
when they neared the nonstrikers; they wanted something of Noble. Certainly
there is no indication Noble had any thought of persuading the strikers to any action-
at all, or to come around to his point of view. It is this setting which suggests to me
an inherent probability that Gotay, on behalf of the strikers, moved first against
Noble when the two "companion friends" came face to face. After looking at many
of the employees who work in this plant, I doubt very much that any of them working-
during a strike would seek a physical encounter with striker pickets.
There is more, however, showing quite conclusively that it was the strikers who
were after Noble, and not, as the General Counsel would have it, Noble who per-
sisted in molesting them. There is no question but that Gotay, at the very start of'
the fight, was severely injured. Virtually at the same instant, the strikers started to
manhandle Noble They were lunging and punching at him, according to many
witnesses. According to Keeby, he and the other strikers did put their hands on-
Noble, but only for the purpose of compelling him to remain on the spot. All
witnesses agreed that Noble managed to disengage himself from the strikers and
run across Lafayette Street. The strikers followed him, always attempting to bring
him down, striking at him, until he reached the other sidewalk. Keeby said Noble
started across "trying to twist out of his jacket"; Noble left the jacket in the hands
of his pursuers, among whom was Hill, swinging a 5-foot chain with a stone attached
to the end. After the fight, Noble bore a long bruise on his leg; Hill did not testify.
Two foremen, Hy Safran and Krevey, noticed the disturbance from a distance
after it started. They ran to assist Noble as the struggling group crossed the street.
Safran helped pull strikers off Noble's back, and was himself struck by somebody.
Ramirez was seen literally on Noble's back halfway across the street. Attempting
to exculpate himself, he testified that Safran was walking immediately beside Noble-
at the street and that when Gotay, struck without warning, went down, he, Ramirez,
stooped to help him and was immediately kicked and punched in the face. Through-
out his confused testimony he made Safran the one who hit him then. I discredit
Ramirez completely. He went on to say he ran away from the fight because he-
feared being hit again; he said he ran diagonally, a block away, in the other direction.
And yet, on his own testimony, it is clear he arrived across the street in the very
midst of the melee that surrounded Noble, who never stopped trying to defend him-
self In fact, when a policeman came on the scene, and all the strikers ran away,
the only one left there for the policeman to arrest was Ramirez himself.
When Noble reached the other sidewalk, with the group still pursuing him, he
picked up a bus stanchion and made to swing it about as a weapon to keep them
all at bay. Quickly some strikers were at his rear, and he succeeded only in dropping-
it in front of him with little restraining effect upon anyone. One witness, Krevey,
said he saw Noble swing the stanchion in a circle twice before dropping it. Others-.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he never picked it up at all. I view these discrepancies, whether exaggeration
or failing memory, as reflecting only human frailties, and of no importance here. I
.am not persuaded, on all the evidence, that because Noble tried to use the stanchion
against the strikers, he was the offender and the strikers only innocent victims of his
misconduct. I could hardly find that the group of strikers ran after Noble in
order to defend themselves-across the street-from his assault!
After the fight there were a number of criminal charges and countercharges filed
with the police in all directions by individuals involved. Some were not made until
a day or two later; some have been dismissed; some are still pending. The General
Counsel contends that the delay by nonstrikers in pressing criminal charges evidences
their own guilt, or at least the innocence of the strikers. I do not think these later
,events, basically no more than recriminations and self-serving declarations, shed
any more revealing or reliable light upon what really happened at the moment, than
the direct recollection of the eyewitnesses to the incident. The Union and the
Company each had a lawyer at the police station and night court the same evening
and in headquarters the next day. The line between the two camps was drawn; the
generals had arrived. From that point on the rest was strategy and tactics, with
the employees, as the record shows, hardly understanding the phrases "press a
charge," or "criminal complaint."
On the entire record, I find that the Respondent has satisfied the affirmative burden
resting upon it to prove misconduct by Hernandez, Mariam, Keeby, Gotay, Hill,
Pamblanco, and Ramirez. It told them immediately when the strike was temli-
nated that they would not be reinstated for such reason. The Board has held that
.strikers guilty of such behavior disqualify themselves from reinstatement.9
Accordingly, 1 shall recommend dismissal of the complaint as to all seven of these
employees.
2. Assault upon Rubio the next day
A similar incident occurred on the third day of the strike. A nonstriker, going
home, came face to face with several strikers, and again a direct conflict in testimony
was presented at the hearing. Each said he was assaulted by the other without
provocation.
A policeman was escorting the employees from the shop to the subway station
in small groups that evening. About 5 o'clock Rubio, in one such group, reached
the Bleecker street subway station. He testified about 20 strikers were congregated
at the corner. Because he saw some of them follow a young employee down into
the station, Rubio told the policeman who accompanied him to continue down into
the station as a safety measure. What happened at this point is disputed by striker
witnesses.
According to Rubio, Dionisio Herandez approached him and asked had Rubio
lied to the policeman in sending him into the subway station and Rubio told him his
reason. Thereupon Hernandez fell upon Rubio, he "kicked and hit me," and seven
or eight other boys "came and started beating me up." Rubio identified one of
the group as Martinez who hit him with an umbrella.1° He also placed Alvarez at
the scene. Rubio added he swung to protect himself, fell down, and a passerby
stopped the fight. Of the strikers only Martinez remainded when the policeman
.emerged from the subway station and found them. Rubio ended by saying that at
the police station he charged Alvarez and Hernandez with assault and that these two
were arrested at their homes later that night. Ejarque corroborated Rubio to the
extent of saying he saw tluee or four strikers fight with Rubio, Luis Mariam and
Dionisio Hernandez among them.
Hernandez told a different story. According to him Rubio approached him and
asked why he did not return to work, else he would not be paid, and he replied he
9 See, for example, Ekco Products Company (Sta-Brite Division ), 117 NLRB 137.
w Although Rubio did not recall the first name of Martinez who attacked him, I am
satisfied on the total record he spoke of Pedro Martinez, named in the complaint as one of
the eight strikers whom the Respondent denied reinstatement . Rubio clearly distinguished
between this Martinez and Roberto Alvarez, who, according to the complaint, is also
known as Roberto Martinez. Rubio identified Martinez as an employee of the screw
machine department who had joined the strike and who carried an umbrella. Other
witnesses said Pedro Maitinez regularly carried an umbrella during the strike No sug-
gestion was made by the General Counsel or counsel for the Union, throughout the very
extended examination of Rubio, that lie was not referring to the striker named Martinez
in the complaint Moreover, all parties were sure of who was involved because Martinez
was at the police station that evening, when company and union representatives appeared,
and resultant criminal charges must have identified the people involved precisely.
REVERE METAL ART CO., INC. 1041
still had a week's pay due and would return when the strike was over. At this
point, he said, Rubio "got mad and punched me in the eye." He ended by saying
a group of strikers then came near, he became frightened, and went home. He
said Martinez and Alvarez were not present. Alvarez denied he was involved at
all, or even having seen the fight. Martinez did not testify.
Again I am confronted with the same threshold question. Rubio was being
escorted by a policeman after the violence of the day before; he was crossing the
picket line to work in the face of his fellow employees' strike; at best he had 1 or 2
workers with him and there were perhaps 20 strikers gathered at that point. How
likely is it that he would take off and deliberately punch Hernandez because the
latter chose to continue on strike with the larger group? With the policeman out
of sight in the subway station below, with a large number of strikers to support
him, and with his participation in the assault upon Noble the day before already
indicative of Hernandez' hot temper, I think it far more reasonable to believe that
he, rather than Rubio, went beyond words in order to persuade. Always in this
picture, there is the underlying fact that it is the strikers who want to bring about
change, because the status quo works to their disadvantage, while the nonstrikers
want above all to be let alone.
On the entire record, therefore, I credit Rubio's testimony that Hernandez attacked
him, that other strikers joined in pummeling him to the ground, and that Martinez
was among them. I also credit Ejarque's testimony that Luis Mariani, as well as
Hernandez, was in the group fighting with Rubio, for neither Mariani nor Martinez
appeared to deny his participation.
As to Alvarez, it is Rubio's word against his. Ejarque was not involved in this
shuffle; he just stood by and watched. Yet he was unable to say Alvarez was
involved in the scrap or present at all. With as many as 20 strikers standing about,
Rubio could easily have mistakenly believed he saw Alvarez among them. Where
the statutory right to reinstatement is involved, particularly that of any employee
unlawfully discharged by his employer, there must be substantial affirmative proof
of misconduct by him before he can be said to have forfeited it.ii The fact that
Rubio later filed charges against Alvarez with the police does not dispose of the
matter in my opinion, for this record is replete with evidence of all kinds of charges
hurled about. Kasan, who had unlawfully discharged Alvarez the month before,
as well as the company lawyer, appeared quickly at the police station that evening,
and it was then that Rubio accused Alvarez. Alvarez impressed me as a truthful
witness. He made no effort to deny having distributed union literature in the plant,
and the principal officers of the company did not attempt to contradict the very
damaging testimony he gave against them. On the other hand, Rubio was of uncer-
tain memory on other subjects, particularly Alvarez' activities on the night shift.
He said it happened "late in January," "I don't remember how many weeks before
the strike," and "no more than 2 weeks" before the strike. But Alvarez was dis-
charged, allegedly for the activities which Rubio related, on February 4. On the
point of Alvarez' participation in the Wednesday affray, therefore, I do not credit
Rubio. Accordingly, I find no merit in the Respondent's contention that Alvarez
disqualified himself from reinstatement.
3. Refusal to reinstate Sanchez
With the strike ended, Sanchez was placed on the preferential recall list like a
number of other employees. On June 3, 1959, the Company wrote him a letter
saying he would not be recalled because he had encouraged employees to violence
during the strike, and he has never been returned to work. Six employees, some
strikers and some nonstrikers, testified that during the first few days they heard
Sanchez make statements, either to them or to others, that there would be resort
to violence to compel employees to stay out of the shop. Three of these witnesses
candidly admitted it was not until a few weeks before the hearing in October that
they first informed any agents of the Company of what they had heard Sanchez
say. In support of the allegation that the refusal to reinstate Sanchez was motivated
by antiunion animus, the General Counsel argues more that the Respondent never
knew of misconduct by Sanchez than she contends Sanchez was innocent of the
accusations. On June 2, 1957, the day before the Company's last letter to Sanchez,
Rosa gave an affidavit to the Respondent's attorney stating, among other things,
that Sanchez had said "it was necessary that there be a fight with nonstrikers so
that people would be afraid to pass the picket line and come to work."
u Compare B.Y.D. Co., Inc., 110 NLRB 1412, reversed 237 F. 2d 545 (C.A., D.C.).
560940-61-vol. 127-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McAllister testified that on the first day of the strike Sanchez told him "if I didn't
want to get into trouble, not to go to work . if I did, I migh get hurt. .
Rubio testified that sometime early in the strike , before the Wednesday incident
involving Hernandez and himself , Sanchez told him to stay out of the plant, "to
stay out of trouble . He told me to stay out because something might happen to
me." Deofilo Cuevas, who worked during the first 2 days of the strike, said that
sometime after the Noble fight , Sanchez saw him and Rosado at a diner having
coffee, told him "to get out of there . if I worked on that day, I would be
called a scab ," and then pushed him. Rosado corroborated Cuevas, who also said
he did not work for the remainder of the strike because he was afraid ; "There were
too many against me." Vargas was near the shop early Tuesday morning. He
testified Sanchez told him "if I go inside to work, see, there must be some fight, see,
because I want to work ." That same morning he saw one man trying to enter and
a number of strikers rough him up. He testified Sanchez stood a few feet away
at that moment : "I saw him tell him if he go inside , maybe they want to fight,
something like that." He also added that that same morning Sanchez said to a
group of strikers , including Vargas, "they got to get him [Noble] after he come out
from work."
Called a rebuttal , Sanchez denied he ever asked any striker to engage in violence.
He described Vargas as an enthusiastic striker but did not deny Vargas quoted him
correctly . As to McAllister he testified all he told the man was to join the strike in
order to better his working conditions and avoid unfair discharges such as had
been suffered by Alvarez . Referring to the Cuevas incident late Tuesday, Sanchez
said all he did was advise Cuevas and a few others to leave the scene because the
"boss" was looking for witnesses . Beyond that , he simply added he had spoken to
many people during the strike and said many things , but could not recall in detail.
Sanchez played a leading role among the prounion employees . He was not only
a member of their committee and the chief shop steward , but also acted as their
spokesman when it came to dealing with the Company . He led the group into
Kuznetzow 's office on January 8 , at the time of the short -lived strike , and was
Alvarez' advocate in February , hounding the Company , as he himself described it,
for days to reinstate the man At the hearing any number of witnesses showed
clearly they looked to him throughout these events . I do not believe he joined in
any of the roughhouse personally , but if he gave the impression that violence was
to be expected , or that others were likely to use force , his words , because of his
position of prestige , would have a more intimidating effect than a direct threat from
a less impressive source. It may well be that he had in mind the volatile character
of some of the strikers , in fact revealed by later events . His words were nonethe-
less warnings of danger , of the type which the Board has repeatedly held are improper
and disqualify a striker from any reinstatement rights.12 His denials of the direct
testimony were general , evasive, and only partial . In the light of the total record,
including the fact that the prophecies attributed to him came true , I must believe
that he used the intimidating technique which the employee witnesses described.
Particularly bad was his talk of fighting in the presence of a number of employees
early Tuesday morning . It was testified by several witnesses of both sides that there
was mass picketing , that to make it more difficult for Kasan to open the plant door
when Noble's group was about to enter the picketing circle was pulled tighter.
Keeby, one of the more serious offenders of later that day, was already hitting
another employee . It was not the right moment for the leader , standing nearby, to
voice approval and encouragement.
In her oral statement at the close of the hearing , the General Counsel urged
two grounds for rejecting the affirmative defense that Sanchez was denied reinstate-
ment for just cause. The first-that Sanchez did not misbehave-is disproved by
the credited testimony of the Respondent's witnesses . The second argument is that
the Respondent did not act in good faith in the matter. I do not surely compre-
hend this point. As I understand it, this argument in turn seems to be double-
barreled: (a) the Company never knew until after it wrote the June 3 letter to
Sanchez that he had ever misbehaved , and (b ) even if it did know it did not really
attach any importance to it. However viewed , I find this argument of the General
Counsel unpersuasive.
The direct threat that McAllister would be hurt if he went to work was not contra-
dicted and there is nothing to show that the Company did not learn of it soon after
the strike . The threats to Vargas were made in the presence of other employees.
Rosa's affidavit of June 2 could well have led the Respondent to conclude Sanchez
had helped plan the Lafayette Street attack upon Noble . Any number of other
employees besides Vargas could have tattled on Sanchez . Merely because some
Thayer Inc . of Virginia, 125 NLRB 222 (employee Perkins).
REVERE METAL ART CO., INC. 1043
of the witnesses who appeared were discovered in preparation for this hearing does
not warrant a finding that the Respondent had no knowledge of Sanchez conduct at
the time of the events. I have in mind that each one of the many employees who
testified for the Respondent did so under subpena. In view of their general re-
luctance, it may well be that other witnesses from whom information was once
obtained have not testified. As to the Respondent's good or bad faith, with its
suggestion that the Respondent may have been happy to rid itself of a union leader,
I believe the General Counsel's argument is fully disposed of by the Board's recent
decision in Thayer, Inc., of Virginia, supra, in which the Board said, ". . an
employer, by waiving its right to terminate as to some employees, does not thereby
waive this right as to all employees in the category."
Accordingly I shall recommend dismissal of the complaint as to Sanchez.
F. The 1-week layoff of Sanchez in November 1958
One of the threats of reprisal for union activities made by a company repre-
sentative and found unlawful above was voiced by Foreman Dietrich to Sanchez
late in November 1958, when he said that Sanchez would be discharged one way
or another when union activities had ended. The next day Sanchez was laid off
for a week. Against the general background of antipathy toward the Union, and
because the temporary layoff followed so soon upon the threat, the General Counsel
contends that a causal relationship between the one and the other necessarily is
to be inferred. The Respondent asserts in defense that Sanchez' short layoff was
no more than an incidental aspect of a general economic layoff.
In support, there is Cy Kuznetzow's uncontradicted testimony that there was a
shortage of orders at that time, that to take up the slack, 66 of the approximately
100 employees were laid off for 1 week, that the layoffs were staggered-23 during
the week preceding Sanchez' layoff, 15 during his week, and 28 the following
week, and that in the same screw machine department, where Sanchez worked,
order of layoffs by weeks was 6, 4, and 12. He also said that each week the group
layoffs came on the same day On these facts, I do not believe the General Counsel
has satisfied the affirmative burden of proof of unlawful motivation in the layoff of
Sanchez.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having found that the Respond-
ent discriminated against Roberto Alvarez with respect to his hire and tenure of
employment, I will recommend that it be ordered to offer him immediate and full
reinstatement to his former or substantially equivalent position, without prejudice
to any seniority or other rights and privileges, and make him whole for any loss
of earnings he may have suffered because of the discrimination against him, by
payment of a sum of money equal to the amount he normally would have earned
as wages from the date of his discharge to the date of the offer of reinstatement,
less his net earnings during said period, with backpay computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, 291-294. I will also recommend that the Respondent make available
to the Board, upon request, payroll and other records to facilitate the determination
of the amount due under this recommended remedy.
In view of the nature of the unfair labor practices found in this proceeding, and
of previous unfair labor practices committed by this Respondent, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of
the Act
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By discharging Roberto Alvarez, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
2. By the foregoing conduct, by interrogating employees concerning their union
membership and their reasons for engaging in union activities, by offering employees
greater earnings and financial benefits if they discontinue union activities, by telling
employees that they would not progress in their employment if they continued their
union activities, by threatening employees with discharge or layoff because of their
union activities, by offering to reinstate discharged employees on condition that
employees discontinue their union activities, and by threatening to close the plant
if the employees persist in union activities, the Respondent has interfered with,
restrained, and coerced employees in the 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.
3. 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.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Act, as amended, we
hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against our employees in
their employment because of their exercise of the rights to self-organization or
to join labor organizations.
WE WILL NOT interrogate employees concerning their union membership or
activities in a manner constituting interference, restraint, or coercion; offer
employees greater earnings and financial benefits if they discontinue union
activities; tell employees that they will not progress in their employment if they
continue their union activity; threaten employees with discharge or layoff be-
cause of their union activities; offer to reinstate discharged employees on con-
dition that employees discontinue their union activities; or threaten to close our
plant if the employees persist in engaging in union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Union of Electrical, Radio, and
Machine Workers of America, Local 477, AFL-CIO, or any labor organization,
to bargain collectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer to Roberto Alvarez immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges enjoyed, and make him whole for any loss of
pay suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of International Union of Electrical, Radio, and Machine
Workers of America, Local 477, AFL-CIO, or of any other labor organization,
except to the extent that this right may be affected by an agreement authorized by
Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
REVERE METAL ART CO., INC.,
Employer.
Dated------------------- By--------------------------------(Title) -----(Representative
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.