Vacuum Plating Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 820 (N.L.R.B. 1965)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noce.-We will notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
Trinity 6-3311, Extension 5357.
Vacuum Plating Corporation and Amalgamated Jewelry `York-
ers Union , Local 18, AFL-CIO. Cases Nos. 1-CA-4858 and
1-CA-4941. November 15,1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner Robert Cohn issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He also found that
Respondent had not engaged in other unfair labor practices alleged,
and recommended dismissal of those allegations. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
The Trial Examiner found, and we agree, that Respondent violated
Section 8 (a) (1) of the Act by General Manager Petrucci's interroga-
tion of employee Berger as to employees' attitude toward the Union
and by his threat to her that the plant would be closed if everybody
si rnecl union cards; by Marie Petrucci's interrogation of employees
Berger, Pierce, Meideros, and Scott as to whether they had sighed
union cards; and by Floorlady Cornea's questioning of employees
Lomba, Lopez, and Raleigh as to their union affiliation. However,
in the absence of direct testimony as to the content of conversations
which Cornea had with other employees, and in view of the fact that
additional. findings of violations of Section 8(a) (1) would not affect
155 NLRB No. 73.
VACUUM PLATING CORPORATION 821
the scope or nature of the remedy provided herein, we do not adopt
the Trial Examiner's conclusion that such conversations constituted
unlawful interrogation of employees concerning their union attitudes
and activities.
Contrary to the Trial Examiner, we do not find that Respondent's
decision to lay off employees on January 7 was made for the purpose
of punishing employees for their union activities. The testimony is
undisputed that Respondent's business is seasonal in nature with a
slack period coming after Christmas. The record indicates that there
is nothing unusual about employees being laid off in the middle of a
working day because of lack of work at this time of year and that
there was little or no work for the laid-off employees after the noon
hour on January T. When additional work was received the follow-
ing day, the laid-off employees were immediately recalled. Indeed,
the Trial Examiner concluded that January 7 may have been a "normal
`short-time' day." As there is nothing substantial in the record to
militate against this conclusion, we find that the General Counsel has
not sustained his burden of providing that the decision to lay off
employees on January 7 was discriminatorily motivated. Accordingly,
we conclude that Respondent did not violate Section 8 (a) (3) of the
Act by its conduct on January 7.
We find, however, that Respondent utilized this normal economic
layoff for the purpose of demonstrating its hostility to its employees'
organizational activities. The Trial Examiner found that while the
conduct on January 7 was essentially the same as that during a normal
economic layoff, there were some significant differences. In particular,
the employees were paid for the preceding week at the time of the
layoff, normally they would not get a paycheck until the regular pay-
day. Secondly, when the employees were laid off they were told to
register for unemployment compensation. On previous times, they
were just told to go home and that they would be called back when
more work came in. These variations together with the aforemen-
tioned 8(a) (1) violations led the Trial Examiner to conclude that "it
was Respondent's intent to convey to the employees the idea that this
was not an ordinary layoff, but was punishment for their union activi-
ties." While we do not find that conducting a normal temporary
economic layoff in such a manner as to make it appear to be a reprisal
for union activities is a violation of Section 8(a) (3) of the Act, we
find that such conduct does interfere with, restrain, and coerce
employees in the exercise of rights guaranteed by Section 7 and violates
Section 8(a) (1) of the Act.
Contrary to the Trial Examiner, we do not agree that the treatment
of Eddie Watts after he testified against Respondent was a violation
of Section 8(a) (4) and (1). The testimony indicates that at this
time Respondent was suffering from a seasonal decrease in business.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner himself concluded that had Watts returned on
the week after the hearing in the normal way, he would not have
worked a full week.
Respondent was also faced with an application for reemployment
by Richard Malucci, a former employee who was released from the
Armed Forces on March 5, 1965. On March 17, the Respondent
received a form notice from the Office of Veteran's Reemployment
Rights concerning the employment rights of returning servicemen.
Owner John Guleserian took up this matter with his attorney who
advised that the best way to comply with the notice would be to alter-
nate Malucci and Watts. This is what in fact occurred on the week
following the hearing, with Watts working on Tuesday and Thurs-
day. The record indicates that neither Malucci nor Watts worked
after this week for an indefinite period of time.
Thus we conclude that the treatment of Watts was due to the sea-
sonal decrease in business and the effort by Guleserian to comply with
the law regarding employment of returning servicemen based on the
advice of his attorney. There is no indication in the record whether
any work was available in the month following the last week that
Watts worked. Malucci did not work during that time. In these cir-
cumstances. we are not persuaded that the General Counsel has proven
that Respondent discriminated against Watts because he gave testi-
mony under the Act.
On the basis of the foregoing, we do not adopt the Trial Exam-
iner's findings, conclusions , and recommendations with respect to the
allegations of the complaint alleging violations of Section 8(a) (3)
and (4) of the Act.
ADDITIONAL CONCLUSION OF LAW
On the basis of the foregoing findings of fact and the entire record
in this case, we hereby delete the Trial Examiner's Conclusions of
Law 4 and 5, and we hereby make a new Conclusion of Law 4, as
follows :
4. By conducting a normal temporary economic layoff in such a
manner as to make it appear to employees that the layoff was a reprisal
for their union activities, Respondent has interfered with, restrained,
and coerced employees in the exercise of rights under Section 7 of the
Act, thereby violating Section 8(a) (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Vacuum Plating Corporation,
VACUUM PLATING CORPORATION 823
Providence, Rhode Island, its officers, agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as modified below :
1. Delete paragraphs 1(a) and (b) of the Trial Examiner's Recom-
mended Order and renumber paragraphs 1(c) and (d) and 1(a) and
(b) respectively.
2. Add the following as paragraph 1(c) and renumber paragraph
1(c) as 1(d).
"(c) Acting in such manner as to make normal economic layoffs
appear to be a reprisal for employees' union activities."
3. Delete paragraphs 2(a), (b), (c), and (d) from the Recom-
mended Order and renumber paragraphs 2(e) and (f) as2(a) and (b).
4. The Appendix 1 attached to the Trial Examiner 's Decision shall
be amended by deleting therefrom the first, sixth, seventh, and eighth
indented paragraphs and substituting therefor the following as the
third indented paragraph :
WE WILL NOT act in such manner as to make a normal economic
layoff appear to be a reprisal for employees' union activities.
'The telephone number for Region 1, appearing at the bottom of the Trial Examiner's
Appendix , is amended to read: Telephone No. 223-3358.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The above matter was originally heard before Trial Examiner Robert Cohn in
Providence , Rhode Island, on March 17 and 19, 1965, on complaint of the General
Counsel alleging , and answer of Vacuum Plating Corporation , herein called Respond-
ent, denying , discrimination against 12 named employees in violation of Section
8(a) (3) and ( 1) of the National Labor Relations Act, as amended , herein called the
Act, and other acts of restraint and coercion , in violation of Section 8(a)(1) of the
Act.' That hearing, in which all parties were represented and participated, was
closed on March 19, 1965. However , before I rendered my decision in that case,
General Counsel moved to amend his complaint based upon an additional charge 2
of alleged discrimination by Respondent against an employee who was an alleged
discriminatee and witness at the first hearing.
I issued an order to show cause why the motion of General Counsel should not
be granted . No response to such order being filed,3 I noticed the matter for further
hearing and consolidated the cases for decision. Such further hearing was held in
Providence , Rhode Island, on June 4, 1965, in which the General Counsel and
Respondent were represented and fully participated.
At the close of the hearing , the parties waived oral argument . Subsequently both
General Counsel and Respondent 's counsel filed briefs which have been duly consid-
ered. On the entire record , including my observation of the demeanor of the wit-
nesses while testifying, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Respondent , a Rhode Island corporation , is engaged in the plating of jewelry
products for manufacturers of jewelry in the Providence , Rhode Island, area. Dur-
I The charge originating the proceedings was filed January 11, 1965, and docketed as
Case No. 1-CA-4558.
2 Dated March 25, 1965 : docketed as Case No. 1-CA-4941.
3 Respondent did, however , subsequently file an answer to the amended complaint deny-
ing the commission of any unfair labor practices.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the past 12 months , a representative period , Respondent performed services
valued in excess of $50,000 for a Rhode Island company which itself shipped products
valued in excess of $50 , 000 to out -of-State points . I find that the Respondent 's opera-
tions affect commerce within the meaning of the Act.4
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Case No. 1-CA-4858
1. Respondent 's business
For purposes of understanding and resolving the principal issue in this case , to wit:
whether a layoff of some 12 employees on January 7, 1965, was discriminatorily
motivated , a brief explanation of the nature of Respondent 's operation is essential.
As above noted , Respondent plates jewelry for manufacturers in the Providence area,
utilizing a vacuum process . It receives the preplated jewelry from the manufacturers
by means of two trucks which it owns and operates . The trucks begin their rounds
of the suppliers early in the morning and again in the afternoon . By 11 a.m., they
have usually returned from their first round.
The jewelry is first taken "upstairs" to the Regal Company for "degreasing," i.e.,
cleaning .5 The work is then taken down to Respondent 's operations where it is
placed in a box or boxes within view of the workers , where it awaits being placed
upon racks to be inserted in ovens which perform the plating process.
Respondent 's business is seasonal in nature . After the Christmas rush , there is a
slowdown which may last until April or May. Then, there is an increase due to
graduations and weddings . It may drop off again after that and pick up around July 4.
In addition to the vagaries caused by the seasonal nature of the business , the volume
of Respondent 's day-to-day operations is somewhat unpredictable since there is no
way of knowing exactly how much work will be ready to be picked up by Respondent's
trucks.°
2. Status of Mel Petrucci ,7 Marie Petrucci , and Ethel Corriea
as agents of Respondent
The complaint alleges that Respondent , by and through the above -named persons
as its agents , engaged in certain described conduct which interfered with , restrained,
and coerced employees in their rights guaranteed in Section 7 of the Act, in violation
of Section 8(a) (1) of the Act . Respondent entered a general denial to these allega-
tions thereby failing to indicate specifically whether it was taking issue with the
allegation of agency or the merits of the accusation , or both. Some testimony was
offered by the General Counsel respecting the duties and responsibilities of these
persons , which was undenied , and upon which the following findings are based:
1. Mel Petrucci is general manager of the operation. As such he is in overall
charge of production and of the employees of Respondent . John Guleserian, the
owner of Respondent , testified that Petrucci "runs Vacuum Plating," since he (Gule-
serian ) spends most of his time at Regal Plating of which he is also president.
Guleserian also testified that it was Petrucci rather than himself who made the deci-
sion concerning the January 7 layoff (of which more anon ); indeed, Guleserian
claimed that he did not even discuss it with Petrucci prior to the fact . Petrucci is
clearly a supervisor and agent of Respondent within the meaning of the Act.
2. Marie Petrucci is Mel Petrucci 's wife. She assists her husband primarily in the
clerical duties of running the plant, and in the shipping and receiving department.
A Siemons Moiling Service, 122 NLRB 81, 80.
5 The Regal Company and Respondent occupy the same premises, and both are headed
by one, John Guleserian. Regal does electroplating rather than vacuum plating, which
are entirely different processes . Neither Regal nor Its employees are involved in the
instant proceedings.
9 Apparently, earlier contact with the manufacturer would not remedy this uncertainty
since the latter is dependent upon the deliveries of contractors who perform primary stages
of fabrication of the product.
s The proper name of this individual is Amelio Petrucci ; however, he was consistently
referred to in the testimony as Mel Petrucci.
VACUUM PLATING CORPORATION 825
She interviews applicants for employment and, during the past year, hired more
than 10. Possessing this authority and exercising it that number of times certainly
places her in a supervisory class since this is an attribute of supervisory status specifi-
cally referred to in the definition in the statute (Section 2(11)), and "[T]his section
is to be interrupted in the disjunctive." Ohio Power Company v. N.L.R.B., 176 F. 2d
385, 387 (C.A. 6), cert. denied 338 U.S. 889.
3. Ethel Corriea is Respondent's only floorlady. She is in charge of a group of
some 18 to 20 employees known as "rackers"; i.e., those who place the jewelry upon
racks prior to insertion in the "oven" for plating. She is responsible for the quantity
and quality of their production. She assigns work and has authority to change
employees from one job to another. In the absence of Mel Petrucci (to whom she
is responsible), she has authority to handle disciplinary problems that might develop,
and to allow employees to take leave of the plant. As will be developed more fully,
infra, she secures and conveys management 's directions respecting the manner and
term of layoffs, and in the instant case, played a significant role in the determination
of those to be so laid off. Thus, she advised the employees who were to be laid off
and she instructed them to file for unemployment benefits. It was she who called
them to return to work. I find and conclude that she is a supervisor within the mean-
ing of the statute. Brewton Fashions, Inc., 145 NLRB 99, 107; Clodomiro Isolino
d/b/a Ravena Sportswear, 142 NLRB 1299, 1305.
3. The organizational campaign
The Union commenced an organizational campaign among Respondent's produc-
tion employees in early December 1964.8 As is customary in these union drives, the
union agents visited employees at their homes and distributed leaflets in front of the
plant.9 Leon Harris, an organizer for the Union and one of those persons distributing
leaflets, testified that on or about the second occasion of leaflet distribution, President
John Guleserian came out of the door and Harris gave one to him. Guleserian took
it, looked at it, threw it in the air with the comment, "You're wasting your time," and
walked away.10
On a morning following an afternoon leaflet distribution in December, General
Foreman Mel Petrucci spoke to Edward Watts, an employee, saying "Gee, Ed, you
finally got the union in." Watts did not respond, and Petrucci went on, "Oh, I don't
care, I need a vacation anyways [sic]." 11
During the period from December 7, 1964, to January 7, 1965, the Union con-
tinued its campaign among the employees of Respondent.
4. Interference, restraint, and coercion on January 7
As above noted, on Thursday, January 7, 1965, the Respondent laid off 12 of its
employees. All were females except one, Edward Watts. All were laid off at the
same time-about noon. The question to be resolved is whether such terminations
at that time were discriminatorily motivated, as claimed by General Counsel, or
whether economically motivated (lack of work), as contended by Respondent.
Work commences at the plant at 8 a.m. About 7:40 a.m., employee Diane
(Macomber) Berger had a conversation with General Foreman Mel Petrucci at her
bench. He asked her if she knew how the girls felt about the Union. She replied
that they seemed to like the idea but that she did not know whether any of them had
s Although Respondent's business fluctuates seasonally, its average employee complement
would appear to he about 30, the great majority of whom are women.
9 Attached to the leaflets were self-addressed authorization cards which employees could
sign and mail to the I'nion.
Guleserian admitted the incident but claimed Harris did not hear the end of the
sentence; to wit: "You are wasting your time with me." Guleserian contended that he
meant that since he, as owner of the Company, could not join the Union, Harris was
wasting his (Harris') time in soliciting him. I find it unnecessary to resolve this conflict
since the purport of the testimony is merely to show company awareness of the Union's
campaign.
11 The above incident is based on the credited testimony of Watts, who appeared to be
making a genuine effort to recall events accurately and truthfully although, at times, he
appeared confused over the exact sequence of events. Petrucci's denial of the conversation
is not credited. Aside from his demeanor which was evasive and somewhat arrogant, his
testimony as a whole was improbable and, at times, inconsistent with that of other of
Respondent's witnesses, as appears more fully, infra.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed union cards. Petrucci opined that it did not make any difference with respect
to the girls under 18 years of age since one had to be that old to join the Union.
As he said this, two employees came by and he asked them how old they were; how-
ever, the record does not indicate a reply.
Petrucci went on to tell Berger that "Johnny" (no doubt referring to owner, John
Guleserian) had come downstairs that morning and had advised that he was going
to close the plant down at 12 o'clock, that he (Mel) did not want to lay anyone off,
that he was just taking orders from upstairs. Petrucci also requested Berger to tell
the girls that if everybody signed union cards the whole plant would close down.12
I find the foregoing threat and interrogation to be clearly restraint and coercion of
employee rights within the meaning of Section 8(a) (1) of the Act.13
Also, shortly before punchin time that morning, Mel Petrucci came over to where
Ed Watts and another employee were sitting on a jig and said, "Well, I just came over
to tell you fellows there is going to be a big layoff today," that 50 percent of the
people would go. Watts asked why, and Mel replied that the Company could not
do the work for what some of the customers wanted to pay. When Watts observed
that "there is going to be a lot of people gone," Petrucci responded, "Well, we are
going to see who is going to go and who is going to stay . . . in fact, we are going
to see who has any real authority over here." 14
Diane (Macomber) Berger was an "unracker"; i.e., she was one of the four employ-
ees who took the jewelry off the racks after it had been plated. About 9 a.m. on
January 7, Marie Petrucci motioned to Diane and the other unrackers 15 to come into
her office. There she first asked Esther if she had signed a union card. Esther replied
that she had not, but that if she had she would admit it. Marlene was then asked the
same question to which she replied that she had signed but had not mailed the card
in yet. Petrucci then asked Marlene if she was going to the meeting at 12 o'clock; 16
Marlene replied that she would go if everyone else went, but that it did not make any
difference since she was not 18 years of age. Petrucci then asked Mary Jane Scott 17
the same question, but before the latter could reply, Diane Berger interrupted by
stating that she (Scott) did not have to answer-that "[t]hey have no right to ask
you that." At that instant, Mel Petrucci came around the corner and told his wife
that she had no right to ask those questions, and for everyone to return to work and
forget about the incident.18
Between 9 and 10 a.m. on January 7, Floorlady Corriea came up to where employ-
ees Gail Lomba and Nancy Lopez were sitting at their benches. Ethel asked Gail
if the latter had signed a union card, and the latter replied affirmatively. She also
asked Nancy the same question and received the same reply. Nancy volunteered
that she (Nancy) had cards for anyone who wanted one, and did Ethel sign one.
Ethel shook her head no.
Ethel asked the same question of employee Jo-Ann Raleigh, who also responded
affirmatively. Ethel went from bench to bench thereafter talking to the employees.
15The foregoing is based upon the credited testimony of Berger as against Petrucci who
denied speaking to her on that day, and even denied knowledge that the Union was
attempting to organize the plant prior to an interview with the Board's agent investi-
gating the charge in the instant case on January 29. This is patently ridiculous con-
sidering that it is undenied that the Union distributed leaflets about the premises several
times in December, and that in a small plant such as this, comprised primarily of female
employees, the subject of a union's organizational campaign can hardly be kept a secret
for very long. See, e.g., Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, enfd. 185
F. 2d 285 (C.A. 2), cert. denied 342 U.S. 812 ; V.L.R.B. v. Abbott Worsted Mills, Inc., 127
F. 2d 438, 440 (C.A. 1).
13 Bonnie Bourne. d/b/a Bourne Co. v. 2c.L.R.B., 332 F. 2d 47 (C.A. 2) ; N.L.R.B. v.
Cameo, Inc., 340 F. 2d 803 (C.A. 5).
11 The foregoing is based upon the credited testimony of Watts.
15 Esther Pierce, Marlene Meideros, and Mary Jane Scott.
16 Respondent's supervisors apparently believed there was to be a union meeting that
day but there is nothing in the record to indicate that the union officials had planned one.
17 Sometimes referred to in the record as May Jane Scott.
1s The foregoing is based upon the credited testimony of Berger. Both Petruccis denied
the incident but such denials are not credited since their stories of what occurred on that
day are at times contradictory and both impressed me as being more disposed to testify
according to what they thought would be in the best interests of Respondent's case rather
than strict fidelity to the truth. Neither of the other participants to the conversation
was called as a witness.
VACUUM PLATING CORPORATION 827
I think it a reasonable inference. based upon the credited testimony of Lomba, Lopez,
and Raleigh, that Corriea interrogated other employees in the same manner as she
did those three. Such systematic interrogation, without apparent justification, or
assurance of no reprisal, is clearly coercive and violates Section 8(a)(1) of the
Act 19 I so find.
The complaint alleges that Respondent through its agent, Ethel Corriea, unlawfully
threatened "its employees that the plant would close if they affiliated with the Union."
The only testimony offered in support of this allegation is that of Gail Lomba who
stated that after Ethel queried her that morning, she spoke to "all . . . the girls that
morning [and] said the shop was going to close at 12 o'clock." None of the other
"girls" called by General Counsel was asked about this Accordingly, the record is
incomplete as to the circumstances in which Cornea allegedly made the threat.
Therefoie, I conclude that this allegation of the complaint is not supported by sub-
stantial evidence, and I recommend that it be dismissed.
5. The layoff and subsequent events on January 7
According to the testimony of Floorlady Corriea, she concluded about 11:15 a.m.
that there would be insufficient work to keep everyone employed that day. She said
that she reached that decision because she looked on the floor and "there was [sic]
just two boxes of small work; that is all." She waited until 11:30 a.m. to see if the
trucks brought in any additional work. When they did not, she told Mel Petrucci
who advised her, "We will send the girls home and tell them to go down to Security
and file." 20
Marie Petrucci was instructed by her husband to go to the office and get the checks,
which she did and handed them over to Ethel about 11.50 a in. Ethel distributed
the checks to the employees who were to be laid off at 12 o'clock. These were the
same employees named in the complaint herein as being discriminatees, and were
the only employees laid off at or near that time 21 Ethel told the girls (and Edward
Watts, who was the sole male employee laid off) what Mel had instructed her to tell
them, to wit: that they were being laid off for lack of work and that they should go
down to the security office and file for unemployment compensation.
During the lunch hour some of the laid-off employees approached owner John
Guleserian in a nearby restaurant and accused him of firing them for union activities.
He assured them that they were not fired but were merely laid off because of lack of
work, and that for all he knew, enough work might come in that day or the next to
warrant their being recalled 22
About 12:30 p.m., Edward Watts telephoned the plant and spoke with Mel Petrucci.
He told the latter that he did not have anything to do with the Union; that he was
a married man with two children, and that he needed his job. Petrucci replied that
the people who wanted the Union in the plant were going to lose a lot of time and
money, and that it would be interesting to see if the Union was going to reimburse
them. He proceeded to tell Watts that, in any event, the decision was out of his
hands, and that if Watts "didn't have anything to do with the union, go see John
[meaning Guleserian]." 23
Watts carne to the plant about 2 p m. on January 7 and spoke with John Guleserian.
He pointed out to the latter that if the layoff was in fact economically motivated, the
Company would have laid off two other employees who were performing less impor-
19 N L.R B. v. Camco, Inc , supra; of Cannon Electric Company, 151 NLRB 1465 ; and
The Lorben Corp, 146 NLRB 1507, enforcement denied 345 F. 2d 346 (CA. 2).
29 Her testimony conflicts with that of Mel Petrucci as to who initiated the decision.
He stated, "I apparently must have went up to Ethel and notified her that the work
situation looked bad ; there wasn't enough work on hand , and we had to make a fast
decision "
21 There is some testimony in the record by employee Nancy Lopez that a cousin of
hers, Marie (Mauricio) Rice, was laid off at this time. However, neither party pursued
this evidence as bearing upon the issues, and I therefore find that this isolated testimony
is insufficient to base a finding.
22 In fact, most of them were called the next day, Friday, to return to work Monday,
as will be discussed more fully, infi a.
23 The foregoing is based upon the credited testimony of Watts. Petrucci admitted
having a telephone conversation with Watts after the layoff, but denied that Watts men-
tioned the Union during the conversation. For reasons heretofore cited, Petrucci did not
impress me as a reliable witness and his denial is not credited.
S28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tant jobs than he; that this had never happened before to him as long as he had been
employed there 24 Guleserian acknowledged that Watts was a good worker. Watts
said that it was also "funny" to him that the only people laid off were colored people 25
Guleserian assured him that color had nothing to do with it-that he himself was a
member of a minority group, and that "[I]f you do your work right, that is all I'm
interested in." He went on to explain that he (Guleserian) had had trouble with the
Union before-that they had threatened him bodily-and that they had planted a
girl [Jo-Ann (Raleigh) Leonard] in the plant to recruit other employees for the
Union. Watts denied knowledge of that and said that all he came down for was to
see if he could get his job back. Guleserian promised to talk to Mel Petrucci about
that, and advised Watts to "come and see me tomorrow morning ready for work and
I will let you know then, ..." 26
Watts returned to work on Friday morning, January 8.
During the afternoon of either January 7 or 8, Union Business Representative
Aranov telephoned Guleserian to protest the layoff. Guleserian accused him of
threatening bodily harm, which Aranov denied I do not deem it necessary to
resolve this conflict since it does not appear to bear on the issues in this case.
According to the testimony of Floorlady Ethel Corriea, about 12.10 p.m. on Friday,
January 8, she began attempting to contact all of the female employees laid off the
previous day to instruct them to return to work This was done by telephone to the
extent possible; for those who were not subject to contact by telephone, Corriea
attempted to contact them through friends. It is the Respondent's position that the
trucks had been able to pick up enough work by that time to make possible the recall
of the employees. Of the 11 laid-off female employees, 7 returned to work on Mon-
day, January 11, 2 returned on February 3; the remaining 2 27 have never returned
although they conceded having been contacted and offered employment at various
tines in February 1965.
Analysis and Concluded Findings
In my judgment , the General Counsel proved a piima facie case of discrimination
by showing : (1) the institution of the Union' s campaign ; ( 2) the Respondent's
knowledge of and antipathy toward union activities on the part of its employees;
(3) the intensive and extensive interrogation of and threats to employees occurring
on the morning of January 7; and (4) the layoff of 12 employees at noon on Janu-
ary 7 , the majority ( three-fourths ) of whom had signed union cards prior to such
layoff Respondent 's defense is, in essence , that the layoff took place during a period
of slack business , that there was nothing unusual in employees being laid off for lack
of work at that time ; that the layoff occurred in the normal pattern ; that the employ-
ees were called back when the Respondent had work for them to do ; and, in any
event , the layoff could not have been induced by the union activities of the employees
since, as of the time of such layoff , the Respondent 's agents responsible for the deci-
sion had no knowledge of the employees ' union activities Unfortunately for Respond-
ent, its position does not stand up to a careful scrutiny of the evidence in the record
considered as a whole, and I find that the General Counsel has sustained his burden
in proving that the layoff of the employees on January 7 was to discourage member-
ship in the Union, in violation of Section 8(a) (3) of the Act.
That the union campaign commenced and continued through December 1964, and
that such campaign came to the attention of Respondent 's officials is plain from the
evidence ( 1) that the Union distributed leaflets about the plant on several occasions;
24 He was originally hired in 1962.
29 Watts is a Negro. In fact, however, as Watts later acknowledged, many, if not most,
of the female employees who were laid off were white persons.
28 The above is based upon the credited testimony of Watts. Guleserian admitted that
during the conversation minority groups were discussed, but denied that unions or the
planted recruit were mentioned. Guleserian's testimony is not credited in this respect
because, aside from unfavorable demeanor considerations, he and other of Respondent's
agents made a great effort in their testimony to push back knowledge of the union activity
as far as possible (at least subsequent to the layoff) where it was perfectly plain that
the Union commenced and continued the campaign through December Guleserian denied
(incredibly, in my opinion) mentioning the Harris leaflet incident to anyone When asked
when he first learned about the Union at the plant, he first testified that it was when
Eddie Watts called him However, he apparently iealized that he had previously testified
that the Union had not been mentioned during that conversation, so he quickly changed
his testimony to say that it was when the girls mentioned it to him in the restaurant.
27 Jo-Ann (Raleigh) Leonard and Nancy Lopez
VACUUM PLATING CORPORATION 829
(2) that Guleserian told Harris that the latter was wasting his time [with me]; and
(3) that Mel Petrucci told Watts that the latter "finally got the Union in." Respond-
ent's position that this activity did not become a subject of discussion among Respond-
ent's employees and supervisors is not only contrary to the evidence but an affront to
common sense. Moreover, on the morning preceding the layoff, Respondent' s super-
visors conducted an extensive and systematic program of interrogation of the employ-
ees' union activities, and doubtless learned much therefrom. Accordingly, considering
this direct evidence along with the small size of Respondent's operation, it knew or
suspected that the employees to be laid off were participants in and /or sympathetic
to the Union and its activities.28
The testimony of Respondent's officials is undenied that its volume of production
normally "slacks off" after Christmas. It is likewise venerally conceded that when
such slack time occurs, employees are "sent home early." That is to say, they are
told at around noon that there is not enough work to warrant their staying all day,
and that therefore they should go home and either (1) return the next day, or (2)
wait until called. This is essentially what occurred on January 7 with two significant
differences. (a) The employees were paid for the preceding week although it was
not the regular payday, and (b) they were told to register for unemployment com-
pensation. These circumstances taken with Petrucci's statement to Watts early that
morning that he was going to close the plant at 12 o'clock, his request to Berger to
tell the employees that if everyone signed a card the whole plant would close down,
plus the extensive violations of Section 8(a) (1) hereinabove set forth which occurred
that morning, convince me that it was Respondent's intent to convey to the employees
the idea that this was not an ordinary layoff, but was punishment for their union
activities. That the action had the intended effect is established by the conversations
among the girls and Guleserian in the restaurant that noon in which they accused
him of firing them because of the Union
Confirming my judgment that a motivating cause of the layoff of those employees
was to discourage union membership was the fact that Ethel Corriea also testified
that Mel Petrucci told her that the "new help" were to be the ones to be laid off first.29
Yet, on cross-examination, she was forced to admit-and had no explanation for the
fact-that Diane (Macomber) Berger was not a new employee, nor was Eddie Watts.
Moreover-and most significantly-the parties stipulated that Respondent, during the
critical week when work was allegedly so slow, hired two new employees, Joan Moore
and Theresa Brothers, neither of whom were laid off when the other "new people"
were.
Mel Petrucci admitted responsibility for picking Eddie Watts to be laid off although
concededly Watts had been with the Company longer than his fellow employees
performing that work. Petrucci explained why he picked Watts for layoff:
Why did I pick Eddie Watts? Well, let me put it this way; I think Eddie Watts
has been treated very well, very good, as far as I'm concerned . As a matter of
fact, I made a special effort to keep him on as long as I could, and I figured to
give someone else a break for a change. So, I decided to let Eddie Watts go
for that half of day. I don't think there is any harm in that. As far as I'm con-
cerned, you got to lay someone off, and all the help that has been there, they
have all been doing a very good job, not just one person in particular.30
Later in his testimony, after it was pointed out that Watts received a higher rate
of pay than fellow employee, Richard Malluci, Petrucci was asked if Watts received
a higher rate of pay because he had a more responsible job. Petrucci's answer:
A. No, he doesn't have a higher rate of pay because of a more responsible job.
It's because I thought the man was loyal to me and I liked the way he worked,
and I wanted to satisfy him. One hand washes the other, so I compensated by
giving him more money.
Q. [By Mr. ROSEMERE .] So, may we conclude from your testimony that
Mr. Watts receives a higher rate of pay in part for his loyalty to you and the
Company?
A. That is right.
28Permacold Industries, Inc., 147 NLRB 885; Malone Knitting Company, 152 NLRB
643, and cases cited on p. 647 of the Trial Examiner's Decision (adopted by the Board).
'At another place in her testimony Corriea testified it was her decision as to who
would be laid off except as to Eddie Watts, who was not under her supervision.
3o Contrary to the foregoing testimony in which he states that he decided to let Watts
off for half a day, Petrucci did not so inform Watts of such definite period of layoff in the
telephone conversation which they had shortly following the layoff.
830 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Q. Is that why he received a raise recently?
A. Definitely, that is why, because I had a heart I like to do anything I can.
If I can help someone, if it's a reasonable amount.
Q. Did you know that Eddie Watts name appeared in the charge which was
filed against the Company by the Union?
A No, I didn't That is why I am deeply upset about it when I found out 31
In sum, based upon Respondent's proven knowledge of and antipathy toward the
union activities of its employees as shown by coercive interrogation and statements
of supervisors independently violative of Section 8(a)(1), the deviation from previ-
ous procedure the simultaneous hiring of new employees who were not affected, the
majority of employees laid off being union advocates, and the expressed displeasure
of Petrucci at Watts' "disloyalty" (the reasonable inference being that Respondent
was equally displeased with others who indicated approbation of the Union), I am
convinced and find that Respondent utilized what may have been a normal "short
time" day for the purpose of discriminating against employees to discourage member-
ship in the Union, in violation of Section 8(a)(3).32
In a similar context, the court in Majestic Molded Products, Inc., et al. v. N.L.R.B ,
330 F. 2d 603, 606 (C.A 2), held that the employer:
. ordered the large lay-offs not for the business reason now alleged but to
punish the employees of Lucky Wish for the flirtation some of them were having
with Local 107 and to make them "good little girls."
A power display in the form of a mass lay-off, where it is demonstrated that
a significant motive and a desired effect were to "discourage membership in any
labor organization," satisfies the requirements of § 8(a) (3) to the letter even if
some white sheep suffer along with the black.
B. Case No. 1-CA-4941
1. Events upon Watts' return to work
As above noted, the complaint was amended to allege that since March 22, 1965,
Respondent has discriminated against its employee, Edward R. Watts, by reducing
his hours of employment because he gave testimony under the Act on March 17
and 19, 1964, on behalf of the General Counsel. Respondent, by answer, entered
a general denial of such conduct.
On the evening of March 16, 1965, Watts called Mel Petrucci at the latter's home
to advise that he (Watts) had been subpenaed to appear at the hearing on the fol-
lowing day, and that he, therefore, would not be at work. Petrucci asked Watts if
the latter knew that he was going to be testifying against him, and stated, "Oh, boy,
you are in for a lot of trouble." Petrucci ended the conversation by stating that he
would see Watts in court the next day. (Petrucci admitted that Watts telephoned
him, but denied making the statement about the "trouble." His denial is not credited.)
Watts appeared at the hearing and testified on Wednesday, March 17. Upon
request of Respondent's counsel, the hearing was recessed from Wednesday afternoon
until Friday morning, March 19, at which time Watts was again in attendance. He
was interrogated (as a witness) by Respondent's counsel as to why he was not at
work the previous day since the plant was not closed during the hearing. Watts
replied that he had been sick in bed.
Watts reported for work the following Monday, March 22, at the usual time-
about 7.45 a.m. Petrucci expressed surprise at seeing him and noted that "you
haven't been in for a while." 33 Watts reminded him that they had been together
(at the hearing) the preceding Friday; whereupon, Petrucci said that he did not have
any work, that he did not know Watts was coming in, and for him to check the
following morning at 9 o'clock to see if there was any work.
31 In the context of this testimony, I find that "loyalty" equals fidelity to the Company
as opposed to the Union. See, e.g., Winn-Dixie Stores, Inc , 128 NLRB 574, 575.
32 There was some testimony by employee witnesses that tended to disprove Respondent's
contention that the layoff was necessary based upon economic considerations, i e , they
testified there was enough work in the boxes to provide the employees with enough work
to last all day. In view of my findings above, and the general vagueness of such testi-
mony, I find it unnecessary to resolve this particular factual issue.
33 At the first hearing, on Nlarch 19, Petrucci testified that he did not know "if Eddie
Watts is still employed by me."
VACUUM PLATING CORPORATION 831
According to his timecard, Watts commenced work at 8:33 a.m. on Tuesday,
March 23, and worked until 3:13 p.m. Watts testified that, during the day, Petrucci
told him that henceforth he (Watts) would have to split up the weeks with Richard
Malucci 34 who was scheduled to work the following day, and Watts would come in
on Thursday.35
Watts testified that he did not return to work the following Thursday because on the
intervening Wednesday he received a message from the plant through his neighbor,
Hargrave, that because no work was available, his services were not required.3u Watts
further testified that he received similar messages the next few weeks which resulted
in his never returning to the plant to work. He did, however, return to pick up his
paychecks on the two Fridays subsequent to his last day of work (the Company
"holds back" 1 week's pay), and on the second Friday, the following conversation
took place between Watts and Mel Petrucci:
Q. [By Mr. RosEMERE.] Tell us, please, what took place in that conversation
between you and Mr. Petrucci.
A. [By WATTS.] Mel had given me my pay; and then he said, "Ed, I think
it would be a good idea for you to collect unemployment compensation." He
said, "just for the time being, anyway." He said, "When work picks up, we'll
get in touch with you and let you know."
Q. Is that the end of the conversation?
A. Oh, No. He said, "If you have anything more to say, go up and see John
Guleseran. G-u-l-e-s-e-r-a-n." [Note: correct spelling is Guleserian] I didn't
go u
Q. You didn't see John Guleseran?
A. No.
Q. Was that the end of the conversation with Mr. Petrucci?
A. Yes.37
Watts' timecard shows that he was present at the plant on Thursday, March 25,
clocking in at 7 53 a.m., and clocking out at 2:50 p.m. The records further show
that he was paid for 123/4 hours worked during the week ending March 27; i.e., 61/4
hours on Tuesday and 61/2 hours on Thursday. When confronted with these facts at
the hearing, Watts was visibly shaken, and simply maintained that he could not
recall working that particular Thursday While this particular contradiction ceitamly
depreciates Watts' credibility as a witness in my opinion, I still prefer to credit him
as to his conversations with Petrucci who impressed me as a thoroughly unreliable
witness both from the standpoint of demeanor and the inherent improbabilities and
contradictions in his testimony. In any event, I do not regard the fact of whether
Watts worked this particular Thursday as bearing particularly on the issue in this case,
to wit: was the diminution in Watts' hours of work a result of discriminatory or
economic motivation.
2. Respondent's defense
On this issue, Respondent, conceding that Watts' hour s of work were reduced from
normal, contends that the reasons therefor were twofold- (1) lack of work, and
(2) it was forced to rehire a ieturmng serviceman formerly in its employ, one
Richard Malucci, who applied for reemployment sometime in March 1965.
3s Malucci had been Watts' helper prior to January when he left Respondent's employ
to enter the U.S. Air Force Respondent rehiied him on Maich 22, of which more anon
3° The foregoing conversation is based upon Watts' testimony which is credited as
opposed to the testimony of Petrucci who denied having seen or talked to Watts since
"the last hearing" ; i e., March 19. It is patently incredible to me that, in a plant as
small as Respondent's, the plant manager would not notice an employee whose timecard
showed that he worked 2 days the following week, and who occupied the strategic position
of firing and cooling off the oven which performed the basic plating process. Moreover,
Petrucci testified that he told Watts on Monday to come in the following day and advised
him at that time that he (Watts) "was to work every other day."
36 Since Watts had no telephone, it was customary for him to receive information from
the plant by this procedure. Hargrave corroborated Watts' testimony to the extent that
he relayed a telephone message to Watts telling the latter not to come in to work, although
he could not remember the exact date.
37 As above noted, Petrucci denied having any conversation with Watts since the first
hearing. He also denied sending messages to Watts instructing the latter not to come in.
Rather, Petrucci claimed he left messages to have Watts call and explain why he had not
returned to work. In the face of Watts' testimony, corroborated by Hargrave, Petrucci's
testimony is not credited.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has already been discussed in the prior case, Respondent was, during this
period, apparently suffering from a seasonal decrease in business which resulted in
a diminution of hours worked of all its production employees. It may be reasonably
concluded, therefore, that had Watts returned to work following the first hearing in
the normal course, he would not have worked a full 40-hour week.
But his hours were further to be cut in half not, Respondent contends , because of a
discriminatory motivation, but because it was required to reemploy a former
employee, returning serviceman, Richard Malucci, according to law, under pressure
of the U. S. Department of Labor, Office of Veterans' Reemployment Rights.
Respondent urges that the only fair solution to its problem was for Watts and Malucci
to share the work however small it was. We proceed to analyze the facts underlying
that position.
Richard Malucci was originally employed by Respondent in November 1963. He
worked as a helper to Watts running the machines and taking care of the ovens. He
was, concededly, not paid as high a rate as Watts, was not as skilled an employee,
and, as far as the record shows, never shared the work before. Indeed, as the testi-
mony in the previous case showed, it was Respondent's policy when the necessity for
a layoff occurred, to lay off the "new help" first.
Malucci left Respondent's employ on January 25, 1965, to enter the United States
Armed Forces. He was honorably separated on March 5, 1965, and the record,
although quite vague on the point, indicates that he visited the plant on one or two
occasions in March.38 While there, he spoke to Mel Petrucci about returning to
work. Petrucci advised that work was slow, and that it would be better to come back
in about a month when work might pick up; meanwhile, he (Malucci) should sign
up for unemployment compensation.
Malucci apparently took this advice, but returned shortly to tell Petrucci that he
was having "a tough time trying to collect on Social Security" and that he would
like to return to work for the Company. He brought with him a notice from the
Veterans' office relating to the rights of servicemen to their former job. Petrucci told
him that he would take the matter up with company officials and see what could be
done.39
On or about March 17, the Company received from the Office of Veterans' Reem-
ployment Rights a form notice that its former employee, Richard Robert Malucci,
had been separated from the Air Force. This notice was sent together with a form
letter and information sheet concerning the reemployment rights of servicemen under
section 9 of the Universal Military and Training and Service Act. (General Counsel's
Exhibit No. 4.) On Friday or Saturday, March 19 or 20, Guleserian took up the
matter with his attorney, Arabian, who advised that the best procedure would be to
alternate the two; i.e., Watts and Malucci. Thus, Guleserian , unlike his plant
manager, Petrucci, apparently expected Watts to return to work.
Guleserian made the decision to hire Malucci on Monday, March 22.40 He
explained the situation to Petrucci that day sometime between 10 a.m. and noon, and
instructed the latter to get in touch with Malucci. However, Guleserian testified
that there was no urgency in the matter of contacting him.
Petrucci, however, apparently understood otherwise because, shortly before noon
that same day, and without previously attempting to contact Malucci by telephone
or otherwise, jumped in his car, drove out to Malucci 's house, and brought him back
to the plant. There, Malucci worked from noon until only 1:35 p.m. (although he
was paid for the full 8-hour day). He returned to work on Wednesday and Friday
of that week, for a total of 161/4 hours of actual work for the week ending March 27,
1965. For reasons undisclosed by the record, he did not return to work for the
Company until the week ending May 1, 1965, and has apparently worked there con-
tinuously since that time.
3. Analysis and concluded findings
There would appear to be little doubt that due to business being slow in March
and April 1965, Watts' normal hours of work would have been diminished to some
38 Malucci was not called as a witness, although he was working at Respondent's plant
during the second hearing.
39 The above is based upon the value and indefinite testimony of Petrucci since, as
above noted, Malucci, was not called as a witness. Accordingly, the precise time of the
above events is not disclosed in the record except that they occurred sometime in
March 1965.
40 It is to be recalled that this was the same day Watts reported for work and was told
by Plant .Manager Petrucci that there was no work for him to do.
VACUUM PLATING CORPORATION 833
extent. The issue bolls down to whether or not they were further diminished, and
Watts was eventually laid off, because he testified on behalf of General Counsel at
the first hearing, or was Respondent in good faith when it reemployed Malucci and
puiportedly split the hours between the two. I reject this defense, and therefore
find that General Counsel sustained his burden of proving that Respondent further
discriminated against Watts because he gave testimony under the Act the following
reasons*
1. The evidence of Respondent's antipathy toward the Union and the unlawful
conduct of Respondent discussed and found in Case No. 1-CA-4858.
2. Petrucci told Watts on the evening prior to the first hearing that the latter was
"in a lot of trouble" as a result of being mixed up in this and for "testifying against
me."
3. At the hearing on March 19, Petrucci testified that Watts had not shown up for
work the previous day without notice, and that he did not "know whether he's working
there or not." Yet Guleserian assumed Watts was still an employee when he discussed
the Malucci situation with his attorney the same or next day.
4. When Watts reported for work the following Monday he was told that there
was none. Yet a few hours later, Petrucci, with alacrity, secured Malucci to work
for an hour and a half and paid him for the whole day.
5. I am not convinced that Respondent acted reasonably in its reaction to the
notices it received from the Office of Vetei an's Reemployment Rights. There was
nothing in the correspondence (which Respondent had just received) which directed
the Company to hire Malucci immediately or, indeed, that even concluded that the
Company was required to hire Malucci at all. The Employer's obligation, as
explained in the information sheet, states only, in relevant part, that he must
"[re]employ the serviceman within a reasonable time after he makes application in
the position he would have occupied if he had remained on the job instead of entering
military service." [Emphasis supplied.] The letter specifically and emphatically
exempts an employer from reemployment obligation where "your circumstances have
so changed as to make it impossible or unreasonable to do so."
It is to be recalled that formerly Malucci had been Watts' helper, and there is no
evidence of previous sharing of the work. There is likewise no evidence that Respond-
ent considered Watts other than an exemplary employee. Under these circumstances,
plus Respondent's declared policy of laying off "new help" first during periods of
slack work, one would more reasonably conclude the helper would be laid off, a
situation which the emphasized portion of the letter clearly contemplates.
Finally, there is no evidence or contention that Respondent sought to contact the
Veteran's Office for the purpose of laying before them and seeking their advice upon
the Company's "dilemma." However, considering the fact that only a few days
elapsed between the receipt of the letter and the hiring of Malucci, there was scarcely
time.
In sum, I am convinced and accordingly find that Respondent seized upon the
fortuitous return of Malucci from the Armed Forces to further discriminate against
Watts for his union activities and because he gave testimony against Respondent under
the Act, in violation of Section 8(a) (4), (3), and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, 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 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 Respondent discriminated against the employees named in
paragraph 7 of the complaint by discharging or laying them off on January 7, 1965,
1 shall recommend that they be made whole for any loss of earnings which they may
have suffered as a result of such discrimination,41 in accordance with the formula set
forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
41 Respondent's contention that those discriminatees who did not testify should not be
entitled to recover is rejected See New Madrid Manufacturing Company, et al, 104 NLRB
117, 119, enfd 215 F. 2d 908 (C A. 8).
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent further and additionally discriminated against
Edward Watts by thereafter diminishing his hours of work and/or laying him off,42 I
shall recommend that Respondent be ordered to offer him immediate and full rein-
statement to his former or substantially equivalent position, without prejudice to his
seniority and/or other rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount he normally would have earned
as wages from March 22, 1965, to the date of the offer of reinstatement, less his net
earnings, to which shall be added interest at the rate of 6 percent per annum, in the
manner established by the Board in the Woolworth and Isis Plumbing cases, supra.
It having been found that Respondent discriminated against employees for exercis-
ing their rights protected by the Act, and otherwise invaded these rights, I am of the
opinion that there exists the danger of commission of other and further unfair labor
practices by the Respondent, and I shall accordingly recommend a broad provision
that Respondent cease and desist from in any manner infringing upon rights guaran-
teed employees in Section 7 of the Act.
On the basis of the foregoing findings and the entire record, I hereby make the
following:
CONCLUSIONS OF LAW
1. Vacuum Plating Coiporation is an employer engaged in commerce within the
meaning of Section 2 ( 6 )and (7) of the Act.
2. Amalgamated Jewelry Workers Union, Local 18, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union sympathies, membership, and
activities; by threatening employees that Respondent would close its plant should the
employees select the Union to represent them as collective -bargaining representative;
and by threatening that employees would lose time and money if the Union came in
the plant, Respondent interfered with, restrained, and coerced employees in the exer-
cise of rights under Section 7 of the Act, thereby violating Section 8(a) (1) of the Act.
4 By discriminating in regard to the hire and tenure of employment of the
following-named employees: Edward R. Watts, Gail Lomba, Nancy Lopez, Diane
(Macomber) Berger, Jo-Ann (Raleigh) Leonard, Judy Vierra, Julia Gomes, Joan
Whetstone, Bernice Vanover, Edna Britto, Rosemary Diaz, and Madeline Shorts,
thereby discouraging membership in the Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a)(3) and (1)
of the Act.
5. By discriminating against Edward R Watts because he gave testimony under
the Act, Respondent has violated Section 8 (a) (4) and (1) of the Act.
6 The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions and the entire record, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, Vacuum Plating Corporation, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Jewelry Workers Union, Local 18,
AFL-CIO, or any other labor organization, by discriminating in regard to the hire
and tenure of their employment or any term or condition of their employment
(b) Discriminating against any employee because he or she gave testimony under
this Act.
(c) Coercively interrogating employees concerning their union sympathy, mem-
bership and activities.
(d) Threatening employees with closing the plant, or with other economic reprisals
if they select the Union as their representative for collective bargaining.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to join
or assist Amalgamated Jewelry Workers Union, Local 18, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
42Although the complaint, as amended , does not specifically allege a discriminatory
layoff, the facts as found above so disclose, and the issue was fully litigated. Accordingly,
I shall recommend the conventional remedy. New England Web, Inc, et at., 135 NLRB
1019, 1023, set aside on other grounds 309 F. 2d 696 (C A 1)
VACUUM PLATING CORPORATION 835
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer reinstatement and make whole Edward R. Watts for any loss of pay he
may have suffered by reason of Respondent's discrimination against him in accordance
with the recommendations set forth in the section entitled "The Remedy."
(b) Notify the above-named employee, if presently serving in the Armed Forces of
the United States, of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, aftei discharge from the Armed Forces.
(c) Make whole Julia Gomes, Joan Whetstone, Bernice Vanover, Diane (Macom-
ber) Berger, Edna Britto, Judy Vierra, Rosemary Diaz, Madeline Shorts, Gail Lomba,
Jo-Ann (Raleigh) Leonard, and Nancy Lopez for any loss of pay they may have
suffered by reason of Respondent's discrimination against them in accordance with
the recommendations set forth in the section entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant and necessary to
a determination of compliance with paragraphs (a), (b), and (c) above.
(e) Post at its plant in Providence, Rhode Island, copies of the attached notice
marked "Appendix." 43 Copies of said notice, to be furnished by the Regional
Director for Region 1, shall, after being duly signed by the authorized representative
of the Respondent, be posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by said Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the said Regional Director, in writing, within 20 days from the date of
this Decision, what steps the Respondent has taken to comply herewith.44
It is further recommended that the complaint be dismissed as to all allegations
not hereinabove found to have violated the Act.
43 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the v ords "the Recommended Order of a
Trial Examiner". In the further event that the Board's Order is enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
44 In the event that this Recommended Order Is adopted by the Board, the notification
period will be 10 days from the date of the Order , and in the event of court enforcement,
10 days from the decree.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that-
WE WILL NOT discourage membership in Amalgamated Tewelry Workers
Union, Local 18, AFL-CIO, or any other labor organization, by discriminating
against our employees in any manner in regard to their hire or tenure of employ-
ment, or any term or condition of employment, except as permitted by the pro-
viso to Section 8(a) (3) of the Act.
WE WILL NOT coercively interrogate employees concerning their union sympa-
thies, activities, or membership.
WE WILL NOT threaten employees that we will close down the plant if they
select the above-named Union as their collective-bargaining representative
WE WILL NOT threaten employees with loss of wages or other economic repris-
als if the above-named Union gets into the plant.
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 orga-
nizations, to join or assist Amalgamated Jewelry Workers Union, Local 18, AFL-
CIO, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a)(3) of the Act.
212-809-6G-vol. 15 5- 5 4
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Edward R. Watts immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of the discrimination against him.
WE WILL notify the above-named employee, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
WE WILL make whole the employees named below for any loss of pay suffered
by them by reason of the discrimination against them in accordance with the
Recommended Order of the Trial Examiner's Decision:
Julia Gomes Edna Britto Gail Lomba
Joan Whetstone Judy Vierra Jo-Ann (Raleigh) Leonard
Bernice Vanover Rosemary Diaz Nancy Lopez
Diane (Macomber) Berger Madeline Shorts
All our employees are free to become or remain, or refrain from becoming or
remaining, members of Amalgamated Jewelry Workers Union, Local 18, AFL-CIO,
or any other labor organization.
VACUUM PLATING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Boston Five
Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No.
523-8100.
Local 300, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and D'Annunzio Bros., Inc. Case No. st-
CD-,95. November 15,1965
DECISION AND ORDER
Upon a charge filed on May 25, 1964, by D'Annunzio Bros., Inc.,
herein called the Company, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 22, issued a
complaint on June 4, 1965, against Local 300, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, herein called the
Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (D) of the National Labor Relations Act, as
amended. In substance, the complaint alleges that the Respondent
violated the Act by engaging in picketing activities at the Raritan-
Millstone Plant Extension of the Elizabethtown Water Company,
Bridgewater Township, New Jersey, with an object of forcing- or
requiring the Company to assign the work of unloading, handling,
distributing, and installing reinforced concrete pipe, concrete lock
155 NLRB No. 55.