S-F Machine Shop, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1962

135 N.L.R.B. 1097 (N.L.R.B. 1962)

S-F MACHINE SHOP ; INC. 1097
the number of employees who supported the strike . As Witsotski proposed to demon-
strate his majority by the number of employees joining in the strike and as only 17
out of 38 participated , I conclude and find that Respondent did not in fact represent
a majority of East 's employees at the time it demanded recognition.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices it will be
recommended that Respondent cease and desist therefrom and that it take certain
affirmative action of the type conventionally ordered in such cases , which is found
to be necessary to remedy and to remove the effects of the unfair labor practices and
to effectuate the policies of the Act. See Minneapolis House Furnishing Company,
supra; Tree Fruits Labor Relations Committee , Inc., supra.
Upon the basis of the foregoing findings of fact and upon the enti re record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By picketing the drugstores of Post Drugs, Bell Drugstore , Gesten's Pharmacy,
Dell Drugstore , Hayes Drugs, Millers Pharmacy, Rubin Brothers , Lehigh Drugs, and
Kravet Drugs, in furtherance of a dispute with East , Respondent threatened , coerced,
and restrained the owners of said drugstores with an object of forcing or requiring
them to cease doing business with East , thereby engaging in unfair labor practices
within the meaning of Section 8(b) (4)1(ii ) ('B) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
JUNE 28, 1961.
To The Drugstore Owners Doing Business With East Photo Lab Inc.:
This is to advise you that in the event a picket will be, or has been placed in front
of your store, it is for the purpose of informing the public about the dispute this.
Union has with East Photo Lab Inc.
This Union is not seeking to force you to stop doing business with East Photo Lab
Inc., the employees of whom are on strike . We would appreciate your writing to
East Photo Lab Inc. and ask them to deal with our Union which represents a
majority of the Company 's employees . The Company has refused to deal with the
Union even though it promised its employees to do so if that is their wish.
The Company conducted a vote among its employees and found that the majority
desire to be represented by the Union. In spite of this the Company refuses to
recognize the employees choice of its bargaining representative.
We write you this letter to be sure you understand that the Union has no intention
of forcing or requiring you to stop doing business with East Photo Lab Inc.
BLUEPRINT PHOTOSTAT & PHOTO EMPLOYEES UNION,
LOCAL 249, I .J.W.U., AFL-CIO.
S-F Machine Shop, Inc. and International Union of Electrical,
Radio and Machine Workers , AFL-CIO. Case No. 3-CA-1543.
February 15, 1962
DECISION AND ORDER
On June 22, 1961, Trial Examiner Arthur Leff issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent had engaged in.and,was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had not
135 NLRB No. 108.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of these allegations. Thereafter,
the Charging Union and the Respondent filed exceptions to the Inter-
mediate Report. The Charging Union also filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations 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, S-F Machine
Shop, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Inducing and encouraging its employees by promise of benefit
to refrain from joining or retaining membership in International
Union of Electrical, Radio and Machine Workers, AFL-CIO, or any
other labor organization; to withdraw their designations of or other-
wise reject International Union of Electrical, Radio and Machine
Workers, AFL-CIO, or any other labor organization, as their collec-
tive-bargaining agent; or to select a committee from among them-
selves for the purpose of engaging in collective bargaining directly
with it.
(b) Polling or initiating a poll among its employees for the purpose
of determining the employees' willingness to reject union representa-
tion, in a manner constituting interference, restraint, and coercion in
violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist any labor organization, to bar-
gain through representatives of their own choosing, or to engage in
any other concerted activities for the purposes 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 membership in a labor organization as a
condition of employment, as authorized by 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 :
S-F MACHINE SHOP, INC. 1099
(a) Post at its plant in East Durham, New York, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
to be furnished by the Regional Director for the Third Region, shall,
after being duly signed by the Respondent, be posted by it immedi-
ately upon receipt thereof, in conspicuous places, and be maintained
by it for a period of 60 consecutive days. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Third Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleged violations not found herein.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "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, as amended, we hereby notify you that :
WE WILL NOT induce or encourage our employees by promise
of benefit to refrain from joining or retaining membership in the
International Union of Electrical, Radio and Machine Workers,
AFL-CIO, or any other labor organization, to withdraw their
designations of or otherwise reject the Union, or any other labor
organization, as their collective-bargaining agent, or to select a
,committee from among themselves for the purpose of engaging
in collectivebargaining directly with us.
WE WILL NOT poll or initiate a poll among our employees for
the purpose of determining the employees' willingness to reject
union representation, in a manner constituting interference, re-
straint, and coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist any labor organiza-
tion, to bargain through representatives of their own choosing,
and to engage in any other 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 member-
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in a labor organization as authorized by Section 8(a) (3),
of the Act, as modified by the Labor-Management Reporting ancf
Disclosure Act of 1959.
S-F MACHINE SHOP, INC.,
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.
Employees may communicate directly with the Board's Regional
Office, 112 U.S. Courthouse Building, 68 Court Street, Buffalo 2,
New York, Telephone Number TL 4-4780, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed December 30, 1960, by International Union of Electrical,
Radio and Machine Workers, AFL-CIO, against S-F Machine Shop , Inc., herein
called the Respondent and at times S-F, the General Counsel issued a complaint
alleging that the Respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1), (3 ), and (5 ) and Section 2(6) and
(7) of the National Labor Relations Act, 61 Stat . 136, herein called the Act. The,
Respondent filed an answer denying the commission of the alleged unfair labor
practices . A hearing , at which all parties were represented , was held before the
duly designated Trial Examiner at Catskill , New York , on March 21 , 22, and 23,
1961. At the close of the General Counsel 's case, a motion by the Respondent to^
dismiss the allegations of the complaint for want of proof was granted in part and
otherwise denied . All parties waived oral argument . On May 1, 1961 , the Generall
Counsel and the Respondent filed briefs which have been considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
S-F Machine Shop , Inc., a New York corporation with its principal office at Valley
Stream , New York , maintains a plant at East Durham , New York , where it is en-
gaged in manufacturing metal frames for loudspeakers . The East Durham plant is
the only plant involved in this proceeding . During 1960, the Respondent 's direct
and indirect sales in interstate commerce of products manufactured at its East Dur-
ham plant amounted to more than $ 150,000. The Respondent concedes for the
purposes of this proceeding , and it is found , that it is an employer engaged in com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine Workers, AFL-CIO,
herein called the Union, is a labor organization within the meaning of Section 2(5>
of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondent (S-F) is one of a complex of affiliated corporations owned and'
controlled by the Fred Becker family, engaged generally in the manufacture and'
sale of loudspeakers . The corporations have their headquarters at Valley Stream,
Long Island , the location of the principal company in the family complex-Becker
Electronics Manufacturing Corporation ("Bemco"). Another corporation , Becker-
Durham , Inc., has its plant at East Durham, New York. S-F, whose officers, di-
rectors, and stockholders are exactly the same as Becker-Durham's, shares the two-
story East Durham plant with Becker -Durham . The S-F employees perform their
S-F MACHINE SHOP, INC. 1101
work, or most of it, on the lower floor of the plant; the rest of the plant is used by
Becker^Durham. S-F has employed at its peak periods of employment approxi-
mately 15 employees; Becker-Durham approximately 100.
The operations of S-F and Becker-Durham are functionally integrated. S-F is
engaged in making loudspeaker components principally for Becker-Durham, but
also to some extent for Bemco. Becker-Durham is engaged essentially in assem-
bling and finishing the loudspeakers, using in large part components produced by
S-F. Both S-F and Becker-Durham have a common plant manager, Edward
McQuillen.
In the spring of 1960, the Union instituted a campaign to organize the Becker-
Durham employees at the East Durham plant. Its solicitation activities were not
confined to Becker-Durham employees, but extended to the S-F employees housed
in the same building. The Union failed to achieve its organizational goal. It
appears that the Union's organizational efforts met with marked and unlawful
resistance from management resulting in an unfair labor practice proceeding against
Becker-Durham based on charges filed against it by the Union. The Board in its
decision in that proceeding, issued on March 15, 1961, found that Becker-Durham,
acting through McQuillen, had engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3), by discriminatorily laying off three employees, threat-
ening employees with economic reprisals to discourage membership in and activity on
behalf of the Union, polling employees to determine whether they "wanted" the
Union, and attempting to promote the formation of an employee representation
plan. See Becker-Durham, Inc., 130 NLRB 1356.
As appears from the testimony of the Union's field representative, Ralph Labrioli,
the Union started separate organizational activities involving S-F employees during
the last week of November 1960. At the first organizational meeting on Decem-
ber 1, 1960, the Union obtained signed designation cards from seven of the S-F
employees. On December 2, 1960, the Union obtained like designation cards from
3 additional S-F employees, bringing its total to 10. S-F at that time had 15 em-
ployees on its payroll at the East Durham plant, including supervision.
On December 5, 1960, the Union advised McQuillen by telegram that a majority
of the S-F production and maintenance employees had designated it as their bargain-
ing agent, and requested recognition and a bargaining meeting.
Without waiting for a reply to its bargaining demand, the Union on December 6,
1960, filed a representation petition with the Board seeking certification as bargain-
ing agent of S-F's production and maintenance employees.
On December 8, 1960, Benjamin Mandelker, the Respondent's counsel, replied
to the Union's bargaining demand. Mandelker in his letter expressed a willing-
ness to meet with the Union for the purpose of having the Union submit proof of its
claimed majority status At the same time, however, he declared that the Respond-
ent had "bona fide doubts on several matters besides [the Union's] majority status,
including but not limited to the bargaining unit and perhaps also eligibility." Accord-
ingly, he suggested that "all matters be resolved in ^a representation petition." The
Union did not respond to Mandelker's letter.
On December 13, Mandelker notified the Board's Regional Office that although
the Respondent had doubts as to the appropriateness of the bargaining unit, the
Respondent would be willing not to press its unit position and to enter into a consent-
election agreement-but on one condition only. The condition the Respondent
imposed was that the Union agree to consider four named employees as "seasonal"
employees ineligible to vote. All four of the named employees, it appears, had
signed union designation cards. None had been told when hired that he was being
employed as a temporary or "seasonal" employee. It is quite clear from the evi-
dence adduced at the hearing that the Respondent's claim that they were "seasonal"
employees was not a bona fide one, at least with respect to two of them.1-
1 At the hearing in this case, the Respondent sought to justify its claim on the basis of
a notice relating to an anticipated layoff that had been posted at the East Durham plant
on October 25, 1960 The notice was directed to Becker-Durham employees and made no
specific reference to S-F employees. The notice stated that "this year" Becker-Durham,
would regard as temporary seasonal employees all those who had been hired on or after
June 1, 1960 Such employees, unlike others, the notice added, would, when laid off, be
regarded as terminated and not subject to recall Of the four employees whom the Re-
spondent claimed to be "seasonal," one, John Koenig, had been continuously in the
Respondent's employ since September 1955, except for a 4-month period between February
and June 1960, when he had been out of his own accord. The Respondent virtually con-
ceded at the hearing that he could not fairly be viewed as a "seasonal" employee.
Mandelker stated that his name had been thrown in simply for "bargaining purposes "
Another, Gerald Winans, had been hired in May 1960. This would exclude him from the
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union rejected the condition which the Respondent imposed for a consent-
election agreement. On December 22, 1960, the Board's Regional Office issued
a notice of hearing in the representation proceeding . Before the hearing was held,
however, the Union filed its unfair labor practice charge in the instant proceeding.
About the same time, the Union requested and was granted approval for with-
drawal of its representation petition.
The complaint alleges, and the answer denies, that the Respondent:
(a) Between December 5, 1960, the date of the bargaining demand, and Decem-
ber 15, 1960, engaged in independent 8(a)(1) violations by, inter alia, (1) offering
its employees added benefits and improvements in the terms and conditions of their
employment if they rejected the Union; (2) inducing and encouraging its employees
to bargain directly or through an employee committee with the Respondent instead
of through the Union; and (3) initiating a poll among its employees for the purpose
of determining whether the employees would reject the Union and engage in direct
bargaining as aforesaid .2
(b) On or about December 13, 1960, discriminatorily laid off all of its produc-
tion and maintenance employees for a 1-day period because they had joined the
Union.
(c) Between on or about December 16 and 21, 1960, discriminatorily laid off for
an indefinite period the 11 production and maintenance employees who had there-
tofore joined the Union, and except for 2, has since failed to recall them to
employment.
(d) At all times since December 5, 1960, has unlawfully refused to bargain with
the Union as the duly designated majority representative of the Respondent's pro-
duction and maintenance employees at the East Durham plant.
- In the subsections below, I shall consider, seriatim, each of foregoing alleged
violations of the Act.
B. Interference, restraint, and coercion
1. The supervisory status of Ralph Valente
The complaint alleges that .the Respondent engaged in the 8(a)(1) conduct
through Ralph Valente as its "supervisor and agent." Valente's alleged supervisory
status is contested by the Respondent. As will later become more fully apparent,
a finding that Valente was a "supervisor" within the meaning of Section 2(11) of
the Act is not necessarily crucial to all the 8(a) (1) allegations-a finding that he
acted as an authorized agent would be enough. However, the issue of Valente's
supervisory status, which was litigated at voluminous length, is an important one;
accordingly, it will be considered at length before the facts relating to his specific
conduct are detailed.
General supervisory authority over the employees of both S-F and Becker-
Durham is exercised by Edward McQuillen, the production manager, who is in
charge of all operations at the East Durham plant. McQuillen spends most of his
time, however, on the Becker-Durham floor. He comes down to the S-F floor once
or twice a day and may spend an hour or two there in the course of the workday.
But it is conceded that he does not immediately direct the work activities of the
S-F employees. According to the Respondent, the only person below McQuillen
with supervisory authority at S-F is one Vincent Rao who is classified under the
title of "foreman." Valente is classified under the title of "leadman." 3 The General
Counsel contends, however, that, while Rao may actually have been foreman at one
time, "time eroded all his insignia except the formal title"; that in point of fact it
was Valente, not Rao, who at times material herein was vested with immediate
"seasonal" category even under the Respondent's definition The remaining two, Harry
Bryan and Michael Webber, had been hired in June and August 1960, respectively In the
past, S-F had no category of "seasonal" employees It was not unusual for S-F to have
seasonal layoffs at the end of the year, but such layoffs usually extended for only about
2 weeks or so.
8 The outline above omits reference to allegations that were dismissed at the hearing as
unproved ; also to certain collateral allegations that are tied to the main issues in contro-
versy and have no consequential significance independently of them.
3 Valente's hourly rate of pay is $1 77 as compared to Rao's $2 rate. Valente, how-
ever, receives substantially more than the other S-F employees whose hourly rates change
from $1 25 to $1.50, except for two employees in the S-F tool and die department, a tool
and die worker and a machinist, who receives $2 12 and $177, respectively.
S-F MACHINE SHOP, INC. 1103
supervisory authority over all S-F production employees, excluding only those in
the tool and die department.4 The overwhelming weight of credible evidence
supports the General Counsel's contention.
Rao, the record shows, is essentially a machine maintenance man who devotes
practically all his time to repairing and making parts for plant production ma-
chines. His work is, not confined to S-F operations, but extends also to the repair
and maintenance of machines and equipment on the Becker-Durham floor. As to
matters relating to the functioning of the machines, Rae has the final responsibility.
Thus, Valente is expected when in doubt to consult with Rao and defer to his
judgment on questions such as whether machines are producing stampings within
allowable tolerances. But Rao has nothing to do with the actual direction of the
S-F work force or with the determination of whether the men, as distinguished
from the machines, are doing their work properly. That is Valente's responsibility.
It is Valente's, not Rao's, responsibility to assign work to the S-F production em-
ployees, to maintain order in the S-F work area, and to see to it that the men carry
out their assignments in proper manner. Though Valente does not have the title,
the men regard Valente as the "production foreman" in fact.
The procedure for assigning work is substantially as follows: McQuillen receives
daily instructions from company headquarters in Valley Stream as to the kind and
quantity of items to be produced. Valente goes to McQuillen's office at the begin-
ning of each workday. There he receives from McQuillen a general layout or
schedule of the work to be produced that day. And if, as frequently happens,
Valley Stream changes its instructions during the course of the day, McQuillen
relays to Valente over the plant's intercommunications system the revised instruc-
tions. It is Valente's duty to take it from there and see to it that the general work
orders are carried out .5 Valente makes the determination of the type of work each
man is to do that day, of the machines they are to work on, and of the order in
which they are to do their work . During the course of the day he assigns and re-
assigns men to different work as need requires. McQuillen conceded at one point
of his cross-examination, though on this point as on others his testimony was
variable, that the selection and assignment of men for different work requires the
exercise of judgment on Valente's part. When the men run into problems with
their work, they take their problems up with Valente. Rao is consulted by
Valente only when there is a problem with the machine. McQuillen himself does
not directly supervise the work operations of the S-F employees, leaving that to
Valente, who, unlike McQuillen and Rao, is always present on the floor.
Valente occasionally works on machines or performs other operations similar to
those of the men he directs. But, especially during busy periods when employment
is at a peak, Valente engages in machine or other manual operations only a minor
fraction of his time. He has full discretion to determine for himself what work he
should do and when.
Valente's job is not confined to production activities. He has a table on the floor
which he uses as a desk. He also has certain clerical duties. He signs for ship-
ments coming into S-F and also at times arranges for shipments out of S-F. At
the end of each day, he is required to prepare and submit a production report show-
ing the kind and amount of items that were turned out that day. He submits the
production report directly to McQuillen without clearance through Rao.
When new employees are hired, they are told to report to Valente, not Rao.
Valente trains them in their work. Although McQuillen alone has authority to
determine whether overtime work is to be done, it is Valente who makes the overtime
assignments to the men. In layoff situations, McQuillen informs Valente, not Rao,
of the number of men to be reduced, and Valente effects the layoffs by notifying the
men.6 When employees in the shop desire time off, they direct their requests to
4 As noted above, the Respondent considers the two tool and die men and the machinist,
who work in a separate room apart from the others, as constituting a separate depart-
ment The record does not show how they are supervised, or by whom.
What has just been said is supported in part by the following testimony of McQuillen
A. . . . I tell Mr Valente what we're going to run for the day, how many of,
them, and I give him the schedule and tell him what the production is for the day,
what type, what size, and he goes ahead and he sees that the men turn it out
Q. So that you give him the orders, he puts them in effect?_
A. That is correct. I get them from Valley Stream, I give them to him
O Valente, however, has no discretion in the selection of those to be laid off, for under
company policy layoffs are determined on a seniority basis which Valente is expected to
follow.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valente, not to Rao . Although Valente is expected to communicate such requests
to McQuillen , he himself at times grants such requests and notifies McQuillen later.
When an employee's work is unsatisfactory , Valente informs McQuillen directly
without taking up the subject with Rao.
Valente is not authorized on his own to hire, discharge , discipline , promote, or
reward employees ? The Respondent at the hearing sought through McQuillen to
establish that Rao possessed and exercised authority that Valente lacked, to take
direct action affecting the status of employees . But McQuillen 's conclusory asser-
tions to that effect failed to withstand the test of close scrutiny . When reduced to
specifics , it became apparent that in each instance where he claimed Rao had directly
taken action involving the status of employees , such action was in fact taken by
McQuillen.
To summarize , the Respondent concedes that McQuillen does not himself per-
sonally direct the immediate work activities of the S-F production employees. It is
clear that if any one person below McQuillen is charged with the responsible direc-
tion of such activities , it is Valente, not Rao. Valente exercises in that regard the
.classic functions of a first-line supervisor . On all the evidence , I am satisfied, and
I find, that at the times material herein, Valente possessed the authority , delegated
to him by the Respondent , responsibly to direct the S-F production employees in
the performance of their work , and that his duties in that regard were more than of
a merely routine or clerical nature and required the use of independent judgment.
It is not controlling that Valente may not have been delegated other specific powers
enumerated in Section 2(11) of the Act. The possession and exercise by him of
the power responsibly to direct is alone sufficient to spell out his supervisory status
within the statutory definition . Ohio Power Company v. N.L.R .B., 176 F. 2d 385
•( C.A. 6). I find accordingly.
2. The 8 (a)(1) conduct
With respect to the alleged 8(a)(1) conduct , the General Counsel 's case does not
have the precision that one could wish. As to some details , there are discrepancies
in the accounts of the General Counsel's witnesses , and also some murkiness. A
,great deal of the confusion in the record is attributable to the vacillating character
.of much of the testimony of Ralph Valente whom the General Counsel called as
.one of his principal witnesses . Nevertheless , in the more essential respects the
accounts of the various General Counsel 's witnesses corroborate each other and,
moreover, save in the particular respects which will be dwelt on at length below,
stand on this record undisputed . The findings made below , except where otherwise
.expressly noted, are based upon a synthesis of such undisputed testimony as credited.
To understand what is involved , it is necessary to begin by going back some
•6 months before the beginning of the alleged unfair labor practices. On May 25,
1960 , a group of S-F employees presented to McQuillen a list of "demands" or
"requests" for improved conditions of employment. The Respondent took no action
•on the demands at that time . On May 31, 1960 , it posted on its bulletin board a
letter from its counsel , stating that because of the then pending "organizing effort"
the Respondent could not grant added employee benefits without inviting unfair
labor practice charges. The S-F employees heard nothing further about their
"demands" until late November 1960.
On November 28, 1960, McQuillen posted a "Policy Statement" setting out wages,
hours, and working conditions that were to prevail at Becker -Durham beginning on
January 1, 1961 . On its face , the policy statement was directed to Becker -Durham
.employees . However, shortly after the statement was posted , Ralph Valente in-
formed the S-F employees that the statement was intended also to govern working
-conditions for S-F employees Included in the statement were a number of the
added benefits the S-F employees had requested on May 25, 1960-more specifically,
an added paid holiday and a guaranty of 2 hours ' pay on election day even if no
work was done that day. The statement , however, did not include certain other
T Valente does make recommendations affecting the status of employees under him. His
recommendations are not accorded finality , but apparently are given some weight. So far
as appears , only one disciplinary discharge situation arose in recent years . Valente took
the matter up directly with McQuillen , and McQuillen himself effected the discharge
without also consulting Rao Valente has on several occasions recommended raises for
production employees in the machine shop , making his recommendations directly to
McQuillen In about half the instances , the raises were granted On one occasion when
-Valente complained to McQuillen that an employee was unsuitable for work in the
machine shop, McQuillen removed the employee from that shop and transferred him to-
a Becker-Durham department
S-F MACHINE SHOP, INC. 1105
benefits the S-F employees had requested. The S-F employees had requested
2 weeks' vacation after 3 years of employment. The statement provided for 2 weeks
after 5 years. The S-F employees had also requested that seniority rights be recog-
nized in full . But the statement reserved to the Company the right to deviate from
seniority in cases of "personal hardship affecting individual employees."
When informed by Valente that the statement of policy was applicable to them,
various S-F employees declared their displeasure because of the Company's failure
to meet their earlier "demands" in full. They expressed particular dissatisfaction
with the vacation provision and with the "hardship" loophole in the seniority provi-
sion . Some of the employees may have asked Valente to take up the matter with
McQuillen. Valente informed McQuillen of the employees' complaints and
McQuillen said he would refer the matter to his superiors in Valley Stream. Whether
McQuillen did so immediately or later is a point in issue.
As found above, a majority of the S-F employees signed up with the Union dur-
ing the first 2 days in December 1960. They were led to turn to the Union, the rec-
ord reflects, because of their disappointment over the Respondent's failure to grant
their requests. As further found above, the Union made its bargaining demand
upon the Respondent by telegram on December 5, 1960. That same day McQuillen
informed Valente of the receipt of the Union's telegram. Both McQuillen and
Valente, according to their own testimony, had previously been unaware of any
union interest or activities on the part of the S-F employees.
Shortly after McQuillen showed him the Union's bargaining demand, Valente
went downstairs and spoke to employees Francis Vedder and Joseph Montaruli.
After inquiring about the Union, Valente told them that they had acted hastily in
going to the Union; that they should have taken up their grievances directly with
McQuillen. Either at that time or shortly thereafter, Valente suggested to either
Vedder or Montaruli, or to both, that the S-F employees ought to get together,
determine what their demands were, and take them up with McQuillen in an effort
to work out their grievances. The employees did not give Valente a definite re-
sponse at the time. Later, Valente told McQuillen that he had asked the men for
their demands and they had given him no answer. Subsequently , sometime between
December 6 and 13-there is no precise agreement among the General Counsel's
witnesses as to the exact date-Valente told Vedder that McQuillen would be will-
ing to give them everything they had asked for on May 25 if they would elect to
abandon the Union. Valente urged Vedder to call a meeting of the men to discuss
the subject. Valente told Vedder that if the men accepted the proposal, a committee
of two should be selected by them to call on McQuillen who, Valente added, wanted
an answer right away.
Vedder acted on Valente's suggestion . He assembled the 10 employees who had
theretofore designated the Union at a lunch-time meeting at the plant . Valente did
not participate in the meeting, but from his place at his desk, about 10 feet away,
he was, in a position to observe who was there and what was going on , although
not, according to him, to hear what was being said. Vedder reported to the
assembled employees what Valente had told him. The employees were unable to
reach a decision on whether to deal directly with McQuillen or remain with the
Union, and broke up the meeting at the end of the lunch period, although Valente
told them they were free to continue beyond that point. After the meeting, Vedder
informed Valente that the men wanted more time to think the matter over. Valente
commented that McQuillen would take it as a "no" answer. Valente did not en-
tirely drop the subject at that point, however. On December 15, 1960-the day
after the December 14 layoff to be adverted to below-Valente approached
Montaruli and asked him to poll the employees to find out if they wanted to dis-
cuss McQuillen's offer with McQuillen or stay with the Union. Montaruli, after
checking with the employees, informed Valente that a majority of the men wanted
to remain with the Union. The next day, Valente told Montaruli that McQuillen's
offer was off. -
The basic factual conflict revolves about the date when the Respondent informed
the S-F employees that it was prepared to meet their earlier demands as to vaca-
tions and seniority. On that point McQuillen testified as follows: Upon learning
on November 28 that the S-F employees were dissatisfied with the posted statement
of policy, he immediately communicated the employees' grievances to his superior,
Fred Becker, Jr.,.at Valley Stream. Becker instructed him to give- the employees
what they wanted, and to revise the statement of policy accordingly. The instruction
to revise the vacation and seniority provisions of the statement was applicable both
to the S-F and Becker-Durham employees. McQuillen called,in Valente the-next
day, November 29, and informed him that the Company had acceded in full to the
634449-62-vol. 135-71
11 06 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S-F employees''May 25 "requests." About a day or two later Valente came to him
and told him "that the men had to have more time to think about it, or some words
to that effect." To which he replied, "Well, what do you fellows need more time
for? You asked for two points that you didn't like, we rescind them, we give them
to you, what is there to discuss?" All this occurred before the Union entered the
picture, at least before he had any notice of union activities among the S-F em-
ployees. Such is McQuillen's testimony.
On the basis of McQuillen's testimony, which the Respondent urges should be
credited, the Respondent contends that no unfair labor practice finding may be based'
on its promise of added benefits because the promise, it says, was first made "prior to
any representation question and in fact prior to any union organization," and con-
sequently without any intent to influence the employees in the selection of a bargain-
ing representative. The Respondent does not specifically dispute that after the receipt
of the bargaining demand, Valente had various contacts with the employees as de-
scribed above, in which he sought to induce and encourage them to deal directly
with the Respondent instead of through the Union. Nor does it specifically dispute
that Valente initiated a poll among the employees to determine whether they would
reject the Union and engage in direct bargaining. But it contends that in doing so,
Valente acted entirely on his own and without McQuillen's authorization, request,
encouragement, suggestion, or even knowledge. McQuillen specifically testified that
he never had any discussion with Valente in which he conditioned the granting of
benefits on the men abandoning the Union; never suggested the formation of an
employee committee to take up employee demands directly with him; and never
requested Valente to poll the employees.
On all the record, and from my appraisal of the witnesses, I am satisfied, however,
that the Respondent's initial offer of the added benefits followed rather than preceded
the Union's bargaining demand. I do not credit McQuillen's contrary testimony.
The record clearly shows that the S-F employees turned to the Union primarily
because of their dissatisfaction with the vacation and seniority provisions in the
statement of policy. I think it unlikely that they would have done so if McQuillen,
as he says, had actually acceded to all their demands before the first organizational
meeting was held on December 1, 1960. Moreover, if Becker had authorized
McQuillen on November 28, 1960, to revise the vacation and "hardship" provisions'
in the statement of policy to conform to the employees' desires, 'I think such revisions
would have been formally communicated, not only to the S-F employees, but also
to the Becker-Durham employees who were equally affected by the statement of
policy. Yet McQuillen admitted that the Becker-Durham employees had not been
notified of any such revisions even up to the time of the hearing. McQuillen's testi-
mony is not only inconsistent with that of the employee witnesses; it is also unsup-
ported by the testimony of Valente who clearly has no stake in the outcome of this
case. Though called by the General Counsel and not shown to be a hostile witness,
Valente's overall testimony nevertheless revealed an anxiety on his part not unneces-
sarily to cross the Respondent by whom he is still employed; this would appear to
account for much of the vacillation in his testimony. During cross-examination by
the Respondent, Valente, it is true, conceded that it was "possible" McQuillen might
have told him before the receipt of the Union's bargaining demand that the S-F
employees could have what they wanted. But his specific testimony leaves no doubt
that his actual recollection was otherwise.
The only other factual issue is whether Valente acted on his own or under
the instigation of McQuillen in urging the employees to abandon the Union and to
deal directly or through a committee with the Respondent instead. That issue is,
of course, not critical to the 8(a)(1) allegations involved. For, as found above,
Valente was a supervisor, and under the doctrine of respondeat superior the Respond-
ent must be held accountable for his conduct in any event. It would have some bear-,
ing, however, upon the 8(a)(5) allegations should the Board disagree with the
findings on the unit issue I make below, and for that reason, I consider it here.
Valente testified that the idea of inducing the employees to abandon the Union and
to deal with the Respondent through a committee originated with him and was not
instigated by McQuillen. That may be. But his testimony also leaves no doubt that
he soon made known to McQuillen what he was doing Nor can there be any doubt
that the proposal which Valente asked Vedder to submit at a meeting of employees-
adjustment of their grievances as to vacations and seniority in exchange for union
abandonment-was made with McQuillen's knowledge, approval, and encouragement.
It is undisputed that McQuillen did authorize Valente to communicate to the employ-
ees the Respondent' s willingness to meet their demands on vacations and seniority;
the only conflict is as to when he did so, and that conflict has been resolved in favor
S-F MACHINE SHOP ; INC . 1107
of the General Counsel.., Valente testified, it is true, that 'McQuillen; in offering such
concessions, did not expressly mention abandonment of .the Union as a condition
precedent. But it is quite apparent that Valente so understood the offer and that
McQuillen so intended it. That a conditional offer and not an unconditional grant
was intended is evident alone from the fact that the Respondent made no general
announcement of revisions in the statement of policy. Moreover, Valente's testimony
shows that McQuillen, although he did not specifically suggest a poll of the employees,
did press Valente before the lunch-time meeting to obtain an answer from the em-
ployees to the Respondent's offer.8 Obviously, if McQuillen had intended an uncon-
ditional grant and not an offer tied to the condition Valente expressed to the employ-
ees, there would have been no need for an answer.
On all the evidence, I conclude. and find that the Respondent violated Section
8(a)(1) of the Act by (a) offering the employees improved vacation benefits and
a revision of the seniority policy if they abandoned the Union, (b) inducing. and
encouraging the employees through promise of such benefits to bargain directly or
through a committee with the Respondent instead of through the Union, and (c)
initiating a poll among the employees for the purpose of determining whether the
employees were willing to reject the Union and to deal directly with the Respondent
instead.
C. The December 14 layoffs
At the close of the workday on December 13, 1960, the Respondent laid off all its
rank-and-file employees, except Montaruli and the two employees in the tool and die
department. Valente notified the two employees that they were being laid off until
further notice because of a shortage of steel. All those involved in the layoff had
theretofore signed union designation cards, but so, too, had Montaruli. According
to the Respondent, Montaruli was retained because he was the senior employee
capable of operating a forklift necessary for the unloading of steel should it arrive;
the tool and die employees were not included in the layoff because their work was
not affected by the lack of steel. A shipment of steel arrived on December 14. The
next day all the laid-off employees were recalled to work. The particular layoff in
question lasted but 1 working day.
The General Counsel does not dispute that there was in fact a shortage of steel
at the time of the layoff; that the shortage had existed for several days prior to the
layoff; and that during the period of the shortage the Respondent had been compelled
to assign its production workers to substitute work tasks. He claims, however, that
the Respondent was in truth motivated to effect a layoff at that particular time, not
because of the material shortage, but as a discriminatory reprisal measure. He would
have it inferred that the employees would not have been laid off but for their failure
to accept the proposal for the abandoment of the Union submitted by Valente and
considered by them at the lunch-time meeting referred to above, which, the General
Counsel says took place on -December 13. To support his requested inference of
discrimination, the General Counsel relies on the timing of the layoff, on the fact
that it had been the Respondent's practice in the past to carry. its employees during
periods of temporary material shortages, and on the fact that the Respondent was
anticipating a shipment of steel probably the next day, as evidenced in part by its
retention of Montaruli.
On all the record, however, I am not persuaded that such an inference of dis-
crimination may fairly be.drawn."'To begin with, there is no clear evidence that the
lunch-time meeting occurred on December 13. Though there is no precision in the
testimony of the General Counsel's witnesses on that point, the weight of the evi-
dence would make it appear that the meeting probably occurred about a week
before. If so, the fact that the Respondent carried the employees through several
e Valente testified'
Q. (By TRIAL EXAMINER) Was the idea of the poll your own?
A. No. Mr. McQuillen * asked me how-Do you mean-? Wait. Let me see.
Mr. McQuillen told me, he asked me, "How are the men making out?" I mean,
"Have they come to a conclusion or decision or not?"
Q. (By RESPONDENT ' S COUNSEL .) Now you said to Redder that you -thought
McQuillen wanted an answer right way?
A. That's right.
Q. What that your own thought ? Is that what you thought and did you say,
"That's what I think?"
A. No. McQuillen told me he wanted an answer right away.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days of the steel shortage would tend to rebut rather than support an inference of a
reprisal motive . Secondly , while the record shows that the Company in the past had
not laid off workers for short periods of time because of a temporary lack of
materials , it also shows that the shortage on this occasion had lasted longer than any
before. Moreover , it appears that the anticipated delivery of steel was already long
overdue and , because of weather conditions, the Respondent had no positive assur-
ance that it would actually arrive on December 14. Becker explained that although
the men had already been carried for several days without steel, he decided on Decem-
ber 13 to carry them no longer , not only because he was still uncertain of the exact
time of delivery , but because the Company 's business had been poor that year and
he was therefore in no mood to continue to maintain an unproductive payroll.
Becker's explanation may not be rejected as implausible . Finding as I do that the
General Counsel has failed to sustain his burden of proof , I shall recommend dismis-
sal of the complaint 's allegation that the layoff of December 14 was violative of
Section 8 ( a)(3).
D. The second layoff
Effective Monday, December 19, 1960 , the Respondent laid off seven of its pro-
,duction employees-Michael Webber, Gerald Winans, John Koenig , Thomas Bird,
Edward Schoenfeld , Herman Forsell , and Harry Brown .9 The employees selected
for layoff on that date were the production employees lowest in seniority . Effective
December 22, 1960, the Respondent laid off the balance of its rank -and-file employees,
with the exception of the two tool and die employees . The employees laid off on
that date were Robert Hollenbeck , Frank Vedder, Joseph Montaruli , and Adolph
Teufel . Montaruli was recalled to work about December 27, 1960 , and Teufel about
January 2, 1961 . 10 Up to the time of the hearing, none of the other laid-off employ-
ees had been recalled , nor had any new employees been hired . The Respondent's
employee complement since January 2 , 1961, has consisted of Rao , Valente , Teufel,
Montaruli , and the two tool and die workers . The Respondent declared at the
hearing that if and when its operations required additional employees , it intended to
recall laid-off employees in the order of their seniority.
The layoff shortly before Christmas was not an unusual one . The Company's
orders usually drop off to practically nothing shortly before Christmas . In earlier
years the Respondent had also laid off most or all of its employees about the same
time . However, unlike the current layoff , the seasonal layoffs in the past had only
extended for a week or two . Although the Respondent's busiest period is during
the second half of the year , the Respondent-except during the seasonal year-end
layoff-normally maintains a basic crew of some 10 or more employees throughout
the year, enlarging that crew as work requires . Valente told the employees when
he gave them their layoff slips that he thought most of them would be back shortly
after New Year 's Day . Valente testified , however, that in doing so he was
simply expressing his own opinion ; that McQuillen who instructed him to effect the
layoff had not told him how long the layoff would last.
On December 19 and 22 , when the layoffs were effected at S-F, corresponding
layoffs were effected at Becker -Durham and at Bemco . Becker-Durham , however,
reopened one of its two assembly lines on January 3 , 1961 , recalling approximately
half of its laid-off employees , and on March 3, 1961 , reopened its second line, re-
calling all or most of the remaining employees it had laid off. Bemco at Valley
Stream began recalling its laid-off employees early in the year and by the time of
the hearing date in this case was practically back to full operations . At S-F, in
contrast , only 2 of the 11 laid-off employees are back at work.
The General Counsel does not now question that S -F would have effected a
seasonal layoff at the time it did even in the absence of union organization. His
present position appears to be that under normal circumstances , and absent an un-
lawful purpose to defeat the Union, the seasonal layoff would not have been
extended indefinitely and the Company would have recalled the S-F employees
or most of them about the same time and in approximately the same proportions
as at Becker-Durham and Bemco. The 'Respondent, on the other hand , defends
its action as bottomed on legitimate business considerations . The Respondent's
position , as developed principally through the testimony of Fred Becker , Jr., but
9 The employees were notified by Valente of their layoff on Friday , December 16, 1960,
the date of the alleged discrimination stated in the complaint
iu Teufel was the oldest in seniority , Hollenbeck next, and Montaruli third However,
at the time of Montaruli 's recall, Teufel and Hollenbeck waived their seniority in his
favor.
S-F MACHINE SHOP, INC. 1109
also in part by reference to company records, is that the reduction of the
S-F work force was impelled and is now required by a combination of the following
circumstances :
1. One of the principal components made by S-F is a part known as a yoke. In
early 1960, Becker testified, he came to the conclusion that the Company was using
obsolete dies and machinery to produce its yokes, and decided to retool. New
dies were designed for the large yoke which then constituted 80 percent of S-F's
production. The new dies were put into operation in September 1960, and the
machinery for producing the large yoke was completely automated. Later in the
year, the Respondent decided to do the same thing for the small yoke. The retool-
ing and automation of the small yoke was completed and went into operation
early in December 1960. As a result of such automation, according to Becker, the
quantity of yokes that could be produced per man-hour was approximately quadru-
pled, thus drastically reducing the number of employees needed.
2. Another change in production methods was made , this one apparently after the
end of the year. It involved the introduction of a new process known as "tumbling."
It was introduced, according to Becker, for bona fide business reasons to solve a
serious rejection problem with which the Respondent had been unable to cope under
its prior production processes. Tumbling had never been done by S-F and S-F has
no equipment to perform that operation. The tumbling operation is being done
for the Company by a subcontractor. Although an entirely different process, de-
signed for another purpose, the tumbling process has had the incidental effect of
eliminating some reaming work that was formerly done by one or more S-F
employees. Becker testified that the Company is now contemplating installing
tumbling equipment at S-F so that it can do that work itself instead of subcontract-
ing it out. When such equipment is purchased and installed, it plans to recall a
laid-off S-F employee to do the tumbling work.
3. In addition to the foregoing change in production methods, testified Becker
further, there had also occurred an important change in the nature of the Respond-
ent's product. In 1960, the Becker companies had suffered a poor year, both in
sales and profits, as had the industry as a whole. This was largely due to competition
from Japanese manufacturers who were marketing a cheaper but adequate speaker.
As a result, pressure had been built up for a cheaper product consisting of "cup
structures" in place of "yokes." Cup structures had never been made by S-F and
S-F has no equipment to make them. A small amount of cup-structured speakers
had previously been sold by the Becker companies, but the "cup" components
had been made for them by independent subcontractors. Before the end of 1960,
the Becker enterprises came to the conclusion that they would have to change to
the use of cup structures in order to maintain a competitive position in the industry.
As of the time of the hearing, the sales promotion of such cheaper cup structures
had already begun. It is expected that in 1961, about 60 percent of the speaker
assemblies sold by the Becker companies will be "cup" structured rather than "yoke"
structured, with the "cup" component purchased from a Midwest manufacturer
who has a design patent on it. All this was anticipated by the Respondent at the
time of the layoff. With "cups" superseding "yokes," the manpower needs at S-F
have been further diminished.
The Respondent introduced evidence to show that notwithstanding the sharp
reduction in its work force, it has been able to meet all the requirements of Becker-
Durham. This has been so both while Becker-Durham was operating with one as-
sembly line and in the more recent period while it has been operating with two.
According to the Respondent's figures, the requisite production has been achieved
without any reduction in S-F's inventory of manufactured components. Indeed,
the Respondent's records show that as to most of components it produces, particu-
larly yokes, its inventory in 1961 was substantially higher than during corresponding
periods the year before. As has been seen, S-F has been subcontracting out a
tumbling operation which it is unequipped to perform itself. Also, Becker com-
panies are now obtaining from an independent source cup structures never made
by S-F and using or getting ready to use that cheaper component in place of yokes
which S-F does produce. But, as appears from Becker's testimony, no work for-
merly done at S-F has been diverted to Valley Stream or other S-F affiliated plants
since the time of the layoff. Nor, with one exception, has S-F since that time sub-
contracted out any work which it is itself equipped to produce. The exception in-
volves a single component, known as baskets. The Company even before the
layoff, however, purchased a substantial portion of its baskets from outside sources.
The figures presented by the Respondent show that the volume of such outside
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases has not increased since the time 'of the layoff." Becker testified his Com-
pany has continued to make such outside purchases of baskets, though it is equipped
to make them, because the cost of purchase is less than the cost of S-F manufacture.
The General Counsel made no effort at the hearing to refute the evidence adduced
by the Respondent in support of its economic defense, as set out above. Indeed, the
General Counsel in his brief concedes that "because of present economic circum-
stances some cutback in manhours was necessary." He specifically questions, how-
ever, the Respondent's bona fides in effecting a cut so deep.
The General Counsel emphasizes that Montaruli prior to the layoff had worked
for a substantial period in the reject room along with Becker-Durham employees.
Yet, Montaruli since his return has been assigned to a machine operator's position,
while other Becker-Durham employees junior in service to some of the S-F laid-off
employees have been transferred to the reject room. He also stresses that Teufel,
the only other S-F employee to be recalled, had prior to the layoff worked primarily
as a maintenance man and at times in the peening room along with Becker-Durham
employees. Yet he, too, was put on a machine operation on his return. The evident
point the' General Counsel seeks to make is this: If Montaruli and Teufel had been
returned to their original places, the Respondent's work would have required the
services as machine operators of Hollenbeck and Vedder, the next two employees in
line of seniority, and, presumably, the Union's majority among S-F employees
would have been retained. These circumstances do rouse suspicion, at least at
first blush. But it must be remembered that when Montaruli was recalled to work
Becker-Durham's operations, and presumably the work in the reject room, were
completely shut down. Moreover, were it not for Hollenbeck waiving his seniority
in Montaruli's favor, Hollenbeck rather than Montaruli would have been recalled
for the machine operator's place Montaruli occupies now. True, this would still
have left one less S-F employee in the reject room than there was before. Mc-
Quillen explained, however, that the Company has decided to assign only Becker-
Durham employees to the reject room for economic reasons, because their hourly
rate of pay is less. His explanation may not be viewed as inherently implausible.
As for Teufel, there is no evidence to show that his former work as a maintenance
man is now being done by someone else, and so there is little basis for inference here.
In certain respects, the economic explanations offered by the Respondent may
leave room for skepticism. Thus, one may wonder why if the Respondent had been
able to reduce to 25 percent its former manpower needs for the production of yokes,
its principal product, through automation completed in substantial part in September
and the balance in early December, it nevertheless found it necessary to retain its
full complement of employees until late December. Becker, when asked that ques-
tion, stated that he really did not know; that a "lot of sentiment was involved";
that the Company had simply planned to have its cutback in December and fol-
lowed through on that plan. That explanation is somewhat less than convincing.
One may also wonder why, if the Company could purchase baskets on the outside
at less cost than it could produce them itself, it bothered at all with manufacturing
them at the S-F shop in the first place. Here, too, Becker's explanation, that it did
so through "sentiment" and out of consideration for the welfare of its employees,
does not entirely carry conviction.
Nevertheless, the fact remains that the General Counsel made no effort to meet
head on the basic facts on which the Respondent's economic defense is built, and the
evidence relied upon by the Respondent to support that defense stands on this record
virtually unchallenged. It is undisputed that none of the laid-off employees were
replaced; that the Respondent has not diverted elsewhere work that normally would
have been done at the S-F shop; and that the Respondent has been able with its
reduced complement of employees to fill its production requirements and maintain
its inventory position. The timing of the layoff in relation to the Union's organizing
effort is undoubtedly a most suspicious circumstance when considered against the
background of the Respondent's union animus. But, in the light of the General
Counsel's failure successfully to pierce the Respondent's economic defense, it is
not enough to support an inference of unlawful motive. On all the record, I
cannot say that the General Counsel has carried his burden of establishing by a
fair preponderance of evidence that the layoff was discriminatory, either in its
inception, or in its duration, or in its degree. Consequently, I shall recommend
dismissal of the complaint's allegations of discriminatory layoff and failure to recall.
ll The record does not tell us the ratio of S-F's basket Production to its total produc-
tion in terms of manpower required as it prevailed before the layoff, nor does it supply
that information for the postlayoff period, so as to provide a basis for comparison.
S-F MACHINE SHOP, INC.. 1111
E. The alleged refusal to bargain.
The alleged 8(a)(5) violation is predicated upon the well-known Joy Silk Mills
doctrine.12 In brief, it is the General Counsel' s position that the Respondent's
failure to honor the Union's bargaining demand of December 5, 1960, was not moti-
vated by any bona fide doubt of the Union's majority status in an appropriate unit,
but rather by a rejection of the collective-bargaining principle and a desire to gain
time within which to undermine the Union. The General Counsel would spell out
bad-faith motivation from the conduct alleged in the complaint to have been vio-
lative of Section 8(a)(1) and 8(a)(3). As shown above, the record supports the
'independent 8 (a) (1) allegations in substantial part, but not the 8 (a) (3) allegations.
Whether or not the 8 (a)( I) violations, to the extent found, are in their nature and
scope sufficient to bring this case within the Joy Silk Mills doctrine, is a question I
do not reach, however. For I am persuaded that the 8(a)(5) allegations of the
complaint must in any event be dismissed upon another ground-the failure of the
General Counsel to establish that the unit alleged in the complaint, with respect to
which the alleged refusal to bargain occurred, is an appropriate unit. -
The* Respondent takes issue with the allegations of the complaint that a produc-
tion and maintenance unit confined to S-F employees at East Durham is an appro-
priate one. It asserts that under the particular circumstances of this case there is
no proper basis on which to segregate for appropriate unit purposes at the East
Durham plant those production and maintenance employees who are technically
on the payroll of S-F Machine Shop, Inc., from those who are technically on the
payroll of Becker-Durham, Inc. At the hearing, the General Counsel made no effort
to prove that a unit confined to S-F production employees at the East Durham plant
was separately appropriate. The evidence that appears on that issue was either in-
troduced by the Respondent or came into the record peripherally. On the record
as developed in this particular proceeding I believe there is substance to the Re-
spondent's unit position.
As earlier noted, S-F and Becker-Durham are housed at East Durham under the
same roof in a two-story plant, have identical stockholders, officers, and directors,
and a common plant manager, and are engaged in an integrated and interdependent
operation in the manufacture of loudspeakers. S-F is engaged primarily in forming,
shaping, and stamping out of raw steel components for loudspeakers. The com-
ponents it produces are used mainly by Becker-Durham, although some are supplied
also to another affiliated company, Bemco; none of its product, however, is sold
to outside customers. Becker-Durham is engaged in assembling and finishing
the loudspeakers, using mainly components made by S-F. S-F at the time of the
bargaining demand had some 14 employees on its payroll. In addition to Rao and
Valente, classified respectively as foreman and leadman, whose duties have earlier
been described, it had on its payroll one tool-and-die maker, one machinist, and one
maintenance man; the rest were production employees who, so far as appears, worked
mainly as machine operators performing repetitive stamping and drilling tasks. The
tool and die employee and the machinist have always worked in a separate room.
They are not under the same immediate supervision as the production employees,
and are regarded as comprising a separate department. Becker-Durham had at the
time of the bargaining demand, and has now, some 100 employees on its payroll.
For seniority purposes they are grouped into a number of separate departments-
peening, testing, coil winding and packing, and general assembly. The S-F em-
ployees, as noted, are also separated for seniority and other purposes into two
departments. The wage range of nonsupervisory Becker-Durham employees runs
from a starting rate of $1 per hour to a top rate of $1.25 an hour, as contrasted to a
wage range of $1.20 to $1.50 for S-F employees, other than those in the tool and die
department where the machinist receives $1.77 per hour and the tool and die man
$2.12. The record contains no independent evidence as to the difference in skills
between S-F and Becker-Durham employees, respectively, except as such may be
reflected by the different wage rates.
The S-F employees perform their work, or most of it, on the lower floor of the
plant; the rest of the plant is used by Becker-Durham. There are, however, some
Becker-Durham employees located on the same floor as S-F. All employees of
both companies punch the same timeclock which is located on the Becker-Durham
floor and there is also a single bulletin board, located on the same floor, where notices
to all employees are posted. To some extent, there is a crossing over of corporate
lines by rank-and-file employees. Thus, for example, the record shows that at least
prior to the layoff, there were two employees doing building maintenance work, a
3'Joy Silk Milks, Inc ., 85 NLRB 1263, enfd . as mod , 185 F . 2d 732 (C.A.D.C.), cert.
denied 341 U . S. 914.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance man (Teufel ) who was on the S-F payroll, and a porter who was on
the Becker-Durham payroll . Both performed their services throughout the entire
plant . In some departments , there is at times an intermingling of S-F and Becker-
Durham employees working side by side and performing identical work tasks over
protracted periods. Thus, the record shows that for a very substantial period before
the last layoff, Montaruli worked mainly in the reject room where he performed pre-
cisely the same work tasks as the Becker-Durham employees working in the same
room. Similarly, the record shows that Teufel, when not performing maintenance
work, was assigned to the peening room where he performed the same work as the
Becker-Durham employees in that department . In the past, when S-F work has
been slow, S-F employees have been assigned to work normally performed by
Becker-Durham employees. Likewise, although rarely, Becker-Durham employees
have been sent downstairs to help out with S-F work. Shipping and receiving for
both companies is handled by employees of either interchangeably.
There is separate line supervision in the immediate direction of work. But author-
ity to hire, discharge, and take other final action affecting the status of all em-
ployees is vested in McQuillen, the plant manager of the entire operation. Mc-
Quillen supervises the work activities in all departments of both companies as a
single integrated functional unit. There is a single local office and integrated record-
keeping for both companies. Control of the labor relations of both companies
stems from a common source. Except for differences in wages , there is an identity
of all conditions of employment, i.e., welfare plan, holidays, vacations, and the like.
It is quite clear that S-F and Becker-Durham constitute a single employer within
the meaning of Section 2(2) of the Act. In view of (a) the identity of ownership
and overall management , (b) the common local plant management , (c) the single
control over labor policy, (d) the integration and interdependence of plant oper-
ations, (e) the identity of situs of employment, (f) the uniformity of working con-
ditions, (g) the intermingling of employees on certain work operation, (h) the
occasional interchange of employees , and (i ) the apparent mutuality of interests
between both groups of employees, there can be no doubt that a single unit of
employees of both companies is appropriate.
The General Counsel concedes as much. He claims, however, that a finding of
a separate appropriate unit for the employees of S-F is also sustainable under the par-
ticular circumstances here present. The only theory he advances is that the S-F
employees should be regarded as "a homogeneous unit with a craft nucleus," qualify-
ing it under Board law for separation as a departmental unit . But his difficulty
here is the absence of evidence to support his theory. Except for the tool-and-die
man and the machinist who comprises a separate department and work independently
of the others in a separate room and under separate supervision, there is no showing
that any of the S-F employees, either those working there now or those who worked
there before the layoff, may lay claim to craft status.13 Though there is no direct
proof of this, it may perhaps be inferred from the difference in wage scales that
there is a disparity in skills between the S-F machine operators and the Becker-
Durham employees. But by the same token, there would appear to be at least as
much, probably more, disparity in the other direction between the S-F machine
operators and the S-F tool department employees whom the General Counsel
would include in the alleged S-F unit. Even though the S-F and Becker-Durham
employees, generally speaking, possess different skills and perform work of a dif-
ferent nature, it cannot be said from this record that the distinction between the
two groups is materially different from that which normally exists between two
departments of a single plant engaged respectively in the production and assembly
of components of the same product.
On the record as made, and on the basis of existing applicable Board law as I
understand it, I am led to conclude that the General Counsel has failed to sub-
stantiate the allegation of his complaint as to the appropriate unit. See Gates
Engineering Company, 115 NLRB 1528. Consequently, and without considering
12 Though perhaps not directly relevant -to the unit issue , a factor influencing my de-
liberations and which it is only fair therefore to note, Is that neither of the employees
in the tool and die department designated the Union, although all other nonsupervisory
S-F employees did As of the time of the hearing-apart from Rao and Valente-S-F
had only four employees on its payroll, two of whom were in the tool and die department.
The practical effect of a bargaining order in this case, assuming no additions to the S-F
employee complement, would be to freeze the two tool and die men into a unit not of
their choice and in which the Union does not now have a majority, nor in which it can
claim loss of majority through the Respondent's unfair labor practices, the intervening
layoffs having been found to have been nondiscriminatory.
AMERICAN FREEZERSHIPS, INC. 1113
the Respondent 's other defenses , I shall recommend dismissal of the 8 (a) (5) allega-
tions of the complaint. .
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above , to the extent that they have been
found to constitute unfair labor practices , occurring in connection with its operations
described in section I, above , have a close , intimate , and substantial relation to
trade, traffic , and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , it will
be recommended that it cease and desist therefrom , and take certain affirmative
action designed to effectuate the policies of the Act.
As found above , S-F, the Respondent herein , and Becker-Durham , together con-
stitute a single employer within the meaning of Section 2(2) of the Act. The
Respondent's unfair labor practices as found herein must be considered in conjunc-
tion with the unfair labor practices engaged in by Becker-Durham as found by the
Board in its decision in Becker-Durham, Inc., 130 NLRB 1356. The totality of the
violations engaged in by the Employer herein involved disclose a danger that the
Respondent may engage in other unfair labor practices , though not necessarily by
the same means . The preventive purposes of the Act may be thwarted unless the
recommended order is coextensive with the threat. To effectuate the policies of
the Act it will therefore be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Electrical , Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
3 The aforesaid unfair labor pactices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not committed unfair labor practices within the meaning
of Section 8(a)(3) and (5) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]
American Freezerships , Inc.' and Local 3, Fishermen and Allied
Workers of the International Longshoremen 's and Warehouse-
men's Union . Case No. 19-RC-2811. February 15, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, hearings were held before Howard E. Hilbun,
hearing officer. The hearing officer's rulings made at the hearings are
free from prejudicial error and are hereby affirmed.
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 McCulloch and Members Rodgers and
Fanning].
'Employer 's name appears as amended at the hearing.
135 NLRB No. 110.