Wrought Originals, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1962

139 N.L.R.B. 1435 (N.L.R.B. 1962)

WROUGHT ORIGINALS, INC. 1435
Wrought Originals , Inc. and Local 810, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers.
Case No. 2-CA-8336. November 30, 1962
DECISION AND ORDER
On July 2, 1962, Trial Examiner William J. Brown issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 attached Intermediate
Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report with briefs in support thereof.
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 Fanning and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following amplifications and
modifications.
In agreement with the Trial Examiner, we find that the employees'
strike of June 16, 1961, was in protest of Respondent's refusal to ac-
cord recognition to Local 8101 as their bargaining representative. In
the unique circumstances of this case, we find that the existence of an
unexpired contract between Respondent and Local 517 2 did not pro-
vide Respondent with the obligation or the justification for rejection
of Local 810's recognition demand. The contract between Respondent
and Local 517 was due to terminate on June 27, 1961, and Local 517
had sent Respondent a letter April 24, 1961, notifying Respondent of
its desire to conduct negotiations. No negotiations were ever held.
Moreover Goldstein, Local 517's president, is credited to the effect that
in May he informed Respondent of Local 810's organizational efforts,
and stated that if Local 810 obtained a majority of the employees, Lo-
cal 517 would withdraw. The record further reveals that Goldstein
also testified that he thereafter had two telephone conversations with
either Ribakove or Cohen, the managers of Respondent. During the
first conversation Goldstein, having been told that the Local 810 peo-
ple were present, testified that he replied, "I told you if Local 810 has
the majority of the people, we are withdrawing our interest." The see-
1 Local 810, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers, herein called Local 810
2 Local 517, International Production , Service and Sales Employees Union, herein called
Local 517
139 NLRB No. 127.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conversation took place during the strike at which time Gold-
stein testified that he told the Respondent that there was nothing he
would do, that "we have no further interest in it." Since Goldstein is
a credited witness, and this testimony is consistent with the other
credited testimony, we credit it. Under these circumstances we find
that Local 517 had effectively disclaimed all rights to represent Re-
spondent's employees and that there was no conflicting claims for
recognition and indeed Respondent had been so informed by the only
other union which might have made such a claim.
Moreover, we find that Respondent's conduct demonstrates that it
did not have any good-faith doubt as to Local 810's majority status.
The credited testimony evidences Respondent's hostility to Local 810
in the conversation with Goldstein, even before the recognition de-
mand was made by Local 810. In addition, employee Perez, who had
been shop steward for Local 517, testified that Ribakove flatly told him
that if Local 810 came in he would have to close the factory. Re-
spondent continually stalled Local 810's representatives, stating that
the matter of recognition was in the hands of its attorney, but refused
to divulge the attorney's identity. Accordingly, we find that the em-
ployees struck in protest of an unlawful refusal to bargain.' There-
fore, they had the status of unfair labor practice strikers ab initio and
did not lose their status as employees under Section 8(d), or their
protected status, merely because the strike started during the last
60-day period of Respondent's contract with Local 517, or because that
contract contained a no-strike clause'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.5
8 The fact that the complaint alleges a refusal to bargain from and after July 28, the
day after Local 810 's certification , can in no way excuse Respondent 's earlier refusal to
bargain or defeat the employees' right to take appropriate action with respect to such re
fusal ; the cause of the strike was fully litigated , and as the Trial Examiner found, in
effect, it was caused by Respondent ' s adamant refusal to recognize Local 810 as the
employees ' representative.
* Even assuming the contract continued to be effective notwithstanding Local 517's
abandonment of its representative status, it is clear that the limitations on employee
action normally flowing from the provisions of Section 8(d) and from no-strike clauses
do not apply in the case of an unfair labor practice strike such as the one involved
herein . Mastro Plastics Corp., and French -American Reeds Mfg . Co, Inc. v N L R B ,
350 U S. 270.
6 Local 810's telegram to Respondent which contained an unconditional offer to return
to work and had been sent on March 16, 1962 , was received on March 19 , 1962 . Accord-
ingly, we herein modify the finding and the provision in the Order and the notice to
reflect March 19, 1962, as the date of the offer
The Order is further modified to provide that interest at the rate of 6 percent per
annum shall be added to the backpay to be computed in the manner set forth in Isla
Plumbing & Heating Co, 138 NLRB 716
The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature in the notice:
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
The Appendix is further modified by deleting the words "60 days from the date hereof"
in the penultimate paragraph of said notice and inserting in its place the words "60 con-
secutive days from the date of posting. .
WROUGHT ORIGINALS, INC. 1437
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding under Section 10 (b) of the National Labor Relations Act, as
amended , hereinafter called the Act, had its origin in a charge filed December 11,
1961, by Local 810 , International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers, hereinafter called the Union or Local 810. On January 25, 1962,
the General Counsel , by the Regional Director of the National Labor Relations
Board for the Second Region , issued the complaint herein. It alleged that Wrought
Originals , Inc., hereinafter called Wrought or Respondent , engaged in unfair labor
practices defined in Section 8 (a)(1), (3), and ( 5) of the Act by interrogation of
and threats to employees , by discriminatorily discharging employees , and by refusing
to bargain with the Union as the duly authorized collective -bargaining representative
of Wrought 's employees . Respondent's answer disclaims knowledge as to the current
representative status of the Union and denies the commission of the unfair labor
practices alleged.
The hearing was held March 19 through 22, 1962, at New York, New York. before
Trial Examiner William J. Brown; all parties were represented and afforded full
opportunity to present evidence and argument on the issues . In the course of the
hearing the allegations of the complaint respecting interrogation of employees
were dismissed . Subsequent to the hearing briefs were filed for the General Counsel
and the Respondent and they have been fully 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
It appears from the pleadings and evidence herein that Wrought is a corporation
organized under the laws of the State of New York, with its principal office and
place of business at 195 Wilson Avenue, Brooklyn , and engaged in the manufacture,
sale, and distribution of wire display racks and related products During the year
preceding issuance of the complaint , a representative period , Respondent manu-
factured and shipped in interstate commerce to States other than the State of
New York products valued in excess of $50,000. It appears that Respondent is
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act and
that assertion of the Board 's jurisdiction is warranted.
H. THE LABOR ORGANIZATION INVOLVED
I find, in accordance with the allegations and admissions of the pleadings, that
Local 810, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues
For at least 5 years preceding the summer of 1961 Respondent was engaged at its
Wilson Avenue plant in the manufacture and sale of display products principally
for the drug and liquor trade Its work force at all material times consisted of nine
nonsupervisory employees and a foreman . The management of Respondent is in
the hands of President Louis Cohen and Lawrence Ribakove , secretary-treasurer.
Cohen's responsibilities are principally in the field of sales. Ribakove has concern
with the area of production . The two officer 's wives are the sole stockholders.
Working directly under Ribakove and in immediate charge of production is Re-
spondent 's foreman , Charles Henderson.
Respondent 's gross sales figure has shown a steady increase over the years and
for the year preceding June 16, 1961, amounted to approximately $ 300,000 Re-
spondent's operations consist of the design and production of display stands which
are made on order for the particular customer . There is no inventory of finished
goods.
At all material times Respondent has engaged in some measure of subcontracting
and the undisputed evidence indicates that since June 16 , 1961, it has done virtually
no manufacturing.
General Counsel 's Exhibit No. 8 is a list of subcontractors to whom Wrought
delegated the function of manufacturing or processing in whole or in part the orders
received by it in the period June 16, 1960, through June 16. 1961 . There are 20
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subcontractors on this list. The major subcontractors, with the dollar amount of
their invoices for the period in question appear to be: Abbot-Wire, $18,893.64;
Interstate Wire, $20,057.85; Jiminez Wire, $29,055.87; and King's Plating, $23,545.52.
The greatest part of Abbot's dollar invoices are related to its production of a display
item known as the "ferris wheel" which appears to be a creation of Wrought but
which was at all times manufactured entirely by Abbot for the account of Wrought.
King's Plating's invoice reflects subcontracting of electroplating, a process which is
not performed by Wrought in its plant. The 16 remaining subcontractors represent
invoices ranging from $7,092.83 in the case of Lansky Die Cutting and $6,216.65 in
the case of A & T Tool down to $80 in the case of Templet. Lansky Die Cutting
performs diecutting of cardboard, an operation not performed by Wrought. A & T
Tool performs wood operations not performed in Respondent's plant. Of the re-
maining subcontractors appearing on the list only one, Reliable Pipe and Nipple, per-
forms an operation (tubing and pipe work) which Wrought is equipped to perform,
and Ribakove conceded that this operation was normally let out to a subcontractor.
In the period in question Reliable's invoices totaled $515.07.
It appears from the evidence and I find that in the year preceding June 16, 1961,
the subcontracting by Respondent of operations it was equipped to do and customarily
did perform, was limited to Interstate and Jiminez. Since concededly Respondent's
sales are holding up (and, possibly, improving), it is clear that Respondent has sub-
contracted to interstate and Jiminez virtually all the manufacturing work it formerly
performed, the sole exception being a limited amount of sample making and so-called
short runs. This change in the nature of Respondent's operations from production
to subcontracting is reflected by the fact that Ribakove now spends 20 hours a week
between Interstate and Jiminez. Billings by Interstate to Wrought have quadrupled
and in view of the fact that Wrought in December 1961 commenced supplying wire
to Interstate, receiving credit for its cost, it is plain that Interstate's share of Wrought's
production has more than quadrupled.
In May 1961, Wrought was party to a collective-bargaining agreement with
Local 517, International Production, Service and Sales Employees Union. This
agreement, dated June 22, 1959, provided that it should be effective for a term
expiring June 27, 1961, automatically renewable for a period of 1 year unless notice
of a desire to change the terms and conditions were given by either party 60 days
prior to the expiration date. The agreement was signed by Ribakove for Wrought
and Philip Goldstein, president of Local 517 By letter dated April 24, 1961, Local
517 notified Wrought of its desire for a meeting to conduct negotiations. No nego-
tiations were ever undertaken and early in May, Goldstein alerted Ribakove to the
possibility that Local 810 might succeed in signing a majority of employees in which
event Local 517 would bow out. Thereafter Isidore Perez, the shop steward for
Local 517, also advised Ribakove of the possibility of Local 810 succeeding to
representative status.
Toward the latter part of May or early June, Local 810, having succeeded in
signing a majority of the employees of Wrought,' demanded recognition. The
details in this regard are set forth more fully below but it suffices to say by way of
introduction that recognition was denied. Ultimately, following an election held
July 18, Local 810 was certified and formally requested bargaining on July 28.
Respondent has admittedly never bargained with Local 810.
In the meantime, on the morning of June 16, Respondent's employees went on
strike following advice from Local 810 that the Respondent's officials refused to
discuss terms and conditions of employment. A few days after the strike, on June 20,
Wrought sent to each of its employees a telegram reading, "Despite your walkout,
your job is open. If you decide to return to work call Joseph Yanklewitz, Evergreen
47033, Wrought Originals, Inc." With the sole exception hereinafter noted none
of the employees of Wrought ever returned to work and Wrought continued its
operations via the subcontracting method. The sole exception was Jose Gomez, who
alone of Respondent's nine production employees had refused to sign a card for
Local 810 and who, after some interim employment with Interstate Wire, was
rehired by Respondent in November 1961 as a samplemaker and for short-run
production.
On March 16, 1962, Local 810 sent a wire to Wrought reading, "Your employees
are still available for work. We again request that you call them without delay."
It was stipulated by the General Counsel that Ribakove if questioned concerning
receipt of this telegram would testify that he had no knowledge of it prior to the
hearing in the instant case.
I The evidence is clear that all employees except Jose Gomez signed cards for Local 810
in a bar on May 22, 1961, in the presence of a representative of Local 517.
WROUGHT ORIGINALS, INC . 1439
The General Counsel contends that the changeover from production to sub-
contracting was motivated by Wrought's hostility to and refusal to deal with Local
810 and that the displacement of employees amounted to a discharge in reprisal
for their selection of Local 810 as their bargaining agent. General Counsel further
contends that Wrought's admitted refusal to meet with Local 810 on terms and
conditions of employment was violative of Section 8(a)(5) both before and after
Local 810's certification on July 27, 1961, but since the complaint alleges a violation
only after July 28, 1961, the discussion of refusal to bargain herein is limited to the
period following certification.
The Respondent's basic position is that Local 810 induced its employees to strike
in violation of the no-strike clause of the Local 517 agreement and that it thereupon
exercised its managerial prerogative of changing over to a subcontracting method
of operations.2 Respondent further asserts that when its striking employees refused
to respond to its June 20 telegram they lost their status as employees and it was
under no duty to meet with Local 810 as their representative.3
B. The threat to close the Wilson Avenue Plant
The complaint alleges that on or about July 17 and 18 and various other dates
during June, July, and August , 1961, Respondent , by Jose Gomez at the instance
and in the presence of Ribakove , directed employees to refrain from supporting
Local 810 and threatened them with a permanent closing of its plant and other
reprisals if they supported Local 810.
With respect to this area of the case the General Counsel 's evidence is centered
around the contents of a discussion between Ribakove on the one hand and the
available employees on the other . The latter were assembled in front of employee
Juan Solano 's house. There is a conflict in the evidence as to the date of this discus-
sion , the identity of the Respondent 's spokesman , and what was said on this occasion.
For the General Counsel, Evaristo Solano testified that on Friday following the
election ( which was held Tuesday , July 18 ) about 3 o'clock in the afternoon Ribakove
addressed the employees , through Jose Gomez as interpreter, and gave them the mes-
sage that he would give them the work back but he did not want any union and he
would give them a raise. Solano added that in the course of the talk on that occasion
Ribakove said that if the union matter could not be settled he would have to close
down the plant and that the decision was theirs and he would not be hurt because
he had two factories and plenty of work.
Also for the General Counsel , Isidore Gomez testified that he was present at the
meeting in front of Juan Solano's house ; that it occurred about 2 or 3 days before the
election He corroborated Evaristo Solano's testimony that Ribakove and Gomez
acted in concert on that occasion and generally confirmed Evaristo's account of what
was said, specifically attributing to Ribakove (through Gomez) that Ribakove wanted
to know if the employees would work without the Union and that if they did they
would be given a raise. Gomez also attributed to Ribakove the statement that he
did not care if he closed up the place.
For the Respondent , Ribakove placed the time of the conversation in front of
Juan Solano 's home as just prior to the election . According to Ribakove , William
DeLeon, an independent trucker who does trucking and chauffeuring for Wrought
and others , told him that the men had been told that Wrought had signed a contract
with Local 810 and they wanted to find out the facts in this regard . According to
Ribakove he instructed DeLeon to set up an appointment to discuss this with the
men and he requested DeLeon to accompany him as an interpreter . Ribakove told
the men through DeLeon that he had not signed a contract with Local 810 and that
if they wanted to find out who was lying in this regard they should ask Local 810
representatives in front of Ribakove at the polling place on the time of the forthcom-
ing election whether a contract had been signed . Ribakove denied that he ever
requested Jose Gomez to talk to or threaten the workers or voice objections to Local
810 Gomez also denied that he ever urged other employees to refrain from sup-
porting Local 810 and denied that Ribakove ever asked him to do this . He con-
ceded that he on one occasion told DeLeon that Local 810 had signed a contract
with Wrought and testified that the other boys had told him of this.
'In this regard Respondent relies on Phillips v Burlington Industries, Inc (Peerless
Woolen Mills, Dir of Burlington Industries), 49 LRRM 2144 (D C N. Ga )
3 Respondent cites Raleigh Water Heater Il7fq Co , Inc , 13(3 NLRB 76, which does not
control here because of the absence of any unprotected form of concerted activity such as
a slowdown of the type Involved In that case
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except as to the date of this discussion I credit Evaristo Solano who impressed me
as the most trustworthy of those called as witnesses on this matter .4 Others, in-
cluding Ribakove, placed the meeting as occurring shortly before the election and
in view of the inherent probability that a meeting of this type would precede the
election I find that it occurred a day or two before the election. As to the contents
of the talk I credit Evaristo Solano and Isidoro Gomez who attributed to Ribakove
(through Jose Gomez as interpreter) the statements that he would give them their
jobs back with a raise in pay if they gave up Local 810, but would shut down per-
manently if they did not. The threat to shut down unless union affiliation was re-
jected clearly amounted to an unfair labor practice under Section 8(a)(1). Hugh
Major Truck Service, 129 NLRB 322.
C. The discriminatory discharges
The complaint alleges that Respondent engaged in unfair labor practices within
the scope of Section 8(a)(3) of the Act by terminating the employment of and re-
fusing to reinstate employees Santos Gomez Crespo, Pablo Irizarry Rivera, Emilio
Nieves, Celestino Perez, Isidoro Perez, Isidoro Gomez Perez, Evaristo Solano, and
Juan Solano. These eight employees had been employed by Wrought for some years
prior to June 16, 1961. Together with Jose Gomez they constituted Respondent's
entire force of nonsupervisory, nonclerical employees.
The eight employees in question have not worked for Wrought since the morning
of June 16, 1961. The General Counsel's position is that on that date they engaged
in a strike in protest against the employer's unfair labor practices and that they were
constructively discharged when, immediately following the election of July 18, 1961,
Respondent announced that its production operations had terminated and commenced
the subcontracting of the business it formerly performed. The evidence is quite
plain and recital of the facts will set forth the events giving rise to the legal issues
herein.
It appears from the credited testimony of Philip Goldstein, president of Local 517,
that following the sending of the letter of April 24 referring to negotiations for a
new contract he visited Wrought's plant about May 1 for discussions with employees
and while there met either Ribakove or Cohen who raised the question as to how
much of an increase Local 517 expected. Goldstein said that 517's demands would
be submitted later. A week or so later Goldstein again visited the plant and told
Wrought's officials that he understood the employees were interested in Local 810
and that if a majority signed for it, 517 would withdraw. According to Goldstein
at that time either Ribakove or Cohen said they wanted no part of Local 810. About
the same time Isidoro Perez, who had been shop steward for Local 517 and its prede-
cessors for some 4 years, talked to Ribakove about the change in allegiance of the
employees from Local 517 to Local 810. Although there was initially some in-
exactness in Perez' recollection as to the date of this conversation, it does appear
that he clearly placed it finally as having occurred on May 21 the date before a ma-
jority of employees actually affixed their signatures to designation cards for Local
810.
According to Perez' testimony, Ribakove flatly said that if Local 810 came in he
would have to close the doors of the factory. Ribakove for his part, although first
testifying that his first knowledge of any change in affiliation of the employees oc-
curred in early June 1961, finally refused to deny that he was aware of Local 810's
interest in May. In any event it is clear from the credited testimony of Local 810's
representative, Kanuka, that he visited Ribakove on May 25 and asked talks for a
successor contract. Respondent never questioned Local 810's majority in the several
talks Kanuka and Mikalmas, business agent of Local 810, had with Ribakove and
Cohen.
On June 16 Mikalinas appeared at Respondent's plant early in the morning. Ac-
cording to Ribakove's account of the events of that morning, when he appeared to
open the plant Mikalinas and two other representatives of Local 810 came into Re-
spondent's office with all the employees. Ribakove said that they insisted on immedi-
ate discussions looking toward a new contract and that he repeated on that occasion
his previous assertion that Local 517 represented the men. At that time, as appears
from the testimony of all the witnesses, the men left the premises and went on strike.5
On June 20 Respondent's attorney, Yanklewitz, sent a wire to the strikers (the eight
named in the complaint plus Jose Gomez) reading, "Despite your walkout, your
4 Evaristo Solano's inaccuracy as to the date appears to me to be one of many dis-
crepancies attributable to the language barrier.
5 Local 810's representatives assured the men it would stand back of them and furnish
picket signs.
WROUGHT ORIGINALS, INC. 1441
job is open . If you decide to return to work call Joseph Yanldewitz Evergreen
47033. Wrought Originals Inc."
On June 27 Wrought's contract with Local 517 expired and on the same date
Local 810 filed its representation petition . A hearing on the petition , Case No.
2-RC-11458 (not published in NLRB volumes), was held July 7 at which Local
810 and the employer were represented . That hearing was adjourned to permit noti-
fication of the proceedings to Local 517. In the course of the hearing Attorney
Mandlebaum for Wrought stated:
I want to make another thing very, very clear. As at the time of the cessation
of employment, irrespective of the cause, as to claim of lockout on one side
and the claim of walkout on the other , there has been a discontinuance of an
operation, this particular operation , and the overall business . And while I'm
talking about an election here, I don 't want any implied impression that there
is going to be a resumption of the operation after the election . I want the union
before they give me the consent, to understand that. And my only purpose in
consenting to an election is to go into this question as to the origin of the
cards. But I don 't want per se an implied or direct commitment to be assured
from my consenting to an election that we are resuming operations... .
I want it definitely understood that you understand that by my asking for
and agreeing to a consent election , that there is no promise, implied or direct,
that there will be a resumption of operation by this employer.
At the resumption of the hearing on July 12, 1961 , following proof of notification
to Local 517, Wrought and Local 810 entered into a stipulation for a consent and
that recognized as eligible voters the nine employees referred to above consisting of
the eight named herein as discriminatees plus Jose Gomez. In the course of this re-
sumed hearing Mandlebaum, attorney for Wrought, again stated:
It is understood so far as the employer is concerned , that his consent to the
election as specified shall not be deemed as undertaking agreement or obligation
on his part , direct or implied, to resume business at or subsequent to the
election.
The election was held July 18, 1961. It resulted in a vote in favor of Local 810
by a 6-to-1 margin. Certification of Local 810 followed on July 27, 1961.
The record indicates and I find that by consenting to the election Respondent was
merely engaged in a process of biding time to see if by chance Local 810 should be
defeated. Immediately upon the revelation of the results of the election, according
to the credited testimony of Isidoro Gomez, Ribakove said that the voting was finished
and he was going to close down the place. At that time Jose Gomez taunted his
fellow employees with the statement that although the boss was closing the factory
he would still be working. Ribakove did not deny the statement attributed to him by
Isidoro Gomez . There is no economic justification furnished by Respondent for
the changeover , although the convincing indicia of discriminatory animus presented
by the General Counsel 's witnesses clearly sufficed to transfer to Respondent the
risk of nonpersuasion on this issue.
It thus appears that whereas Respondent's production halt was initially due to
the strike commencing June 16, resumption of operations was forestalled from and
after July 18 by Respondent's opposition to Local 810. The date on which subcon-
tracting in heavy volume commenced as a substitute for direct manufacturing is un-
certain from the record. This however goes to the matter of the remedy appropriate
in the circumstances and is discussed below.
I find and conclude that Respondent's change in operations from manufacture to
subcontracting was discriminatorily motivated and since it directly affected the
tenure of employment amounted to an unfair labor practice within the scope of
Section 8(a)(3) of the Act. Respondent 's reliance on Phillips v. Burlington In-
dustries, supra, is misplaced . In addition to procedural differences, the cases are
factually different in view of the abundant evidence of the employer's good faith, in
the Burlington case, of yielding to compelling economic considerations . The instant
case far from containing evidence of economic justification for the changeover in-
stead warrants the inference that Wrought willingly incurred economic injury,
through idleness of its facilities, rather than deal with Local 810.
The wire of June 20 referring to the fact that the employee 's jobs were open was a
mere tactical maneuver. Since it contained no assurance that the unlawful refusal
to bargain would be remedied the strikers were justified in ignoring it. Nor did the
strikers lose their status as employees by virtue of the existence of the no-strike
clause since the strike was called against unfair labor practices of their employer.
Wagner Iron Works, a corporation,'104 NLRB 445.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain
The complaint alleges a refusal to bargain from and after July 28, 1961. As re-
counted above, pursuant to an election held on July,18, Local 810 was certified July 27,
1961. By letter dated July 28, Local 810 requesting bargaining. No reply was ever
sent by Wrought to this written request for bargaining. Local 810's president Silver-
man, did on two occasions meet with Wrought's Attorney Mandlebaum. The first
meeting occurred shortly after the sending of the first letter. In the course of that
conversation Mandlebaum attempted to persuade Local 810 to forget its interest in
Wrought's plant because of its small size. He stated that Wrought was going to close
down and would get its work out some way. The second meeting held 10 days later
resulted in Mandlebaum's explanation that Wrought was going to farm some of the
work out and get along somehow without recognizing the Union.
As indicated above Respondent has engaged in sample making and so-called short-
run manufacture in its plant; for this purpose it recalled Jose Gomez and paid him at
a rate higher than that he had been earning on the date of the strike It appears
that he did, in addition to short-run work, sample making of the type previously
performed by the Foreman Henderson, this in effect amounting to the creation of a
new job within the bargaining unit. There was no discussion with Local 810 as to
the reinstitution of short-run manufacture or the creation of the new position of
sample making.
Respondent's defense to the charge of refusal to bargain is based on the theory
that Local 810 induced a breach of the no-strike clause of the agreement with Local
517. Admittedly the strike occurred during the period covered by the Local 517
agreement. There is no doubt however but that the cause of the strike was Re-
spondent's adamant refusal to recognize Local 810 to the point where it refused to
enter into discussions concerning an agreement even when it understood the agreement
was to be effective for the period following the expiration of the Local 517 contract 6
The refusal of Respondent to meet and negotiate with Local 810 following the certifica-
tion of that Union does not even have the colorable pretense applicable to Respond-
ent's refusal to meet on June 16. At the time of Local 810's certification, the Local 517
agreement had passed away. Although at that time Respondent was in a state of
suspended production it had not, and had not to the date of the hearing, sold or dis-
posed of its plant or production facilities.
The record clearly indicates a refusal to meet with Local 810 after its certification
and pursuant to a written request for bargaining. This refusal persisted through to
the present and included failure to notify Local 810 of the limited resumption of op-
erations when Jose Gomez was recalled in November 1961. Respondent's defense
that it had no obligation to bargain with Local 810 since the latter induced the
June 16 strike is insufficient as a matter of law.
The record is clear and I find that Respondent's refusal to bargain with Local 810
at all times since its certification and demand for bargaining on July 28, 1961, has
been an unfair labor practice within the scope of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section 1, 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
In view of my finding that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take such affirmative action as ap-
pears necessary and appropriate to effectuate the policies of the Act In view of my
finding that Respondent's changeover from direct manufacture to subconti acting was
discriminatorily motivated and amounted to a constructive discharge of production
employees, this being the type of unfair practice that goes to the very core of the
purpose and policies of the Act, I shall recommend the issuance of a cease-and-desist
order of sufficient breadth to deter unfair labor practices of all kinds ► n view of the
finding of refusal to bargain with a certified representative of its employees, I shall
recommend immediate bargaining.
The remedial relief to be afforded with respect to the employees who have been
away from work since their strike commencing June 16, 1961, presents certain prob-
6 Ribakove conceded that he clearly understood Local 810 was seeking a successor, not
a replacement, contract.
WROUGHT ORIGINALS, INC. 1443
lems. The General Counsel in his brief has requested that Respondent be ordered
to resume full production and reinstate the eight employees named in the complaint.
He contends that they are entitled to backpay from the date their unconditional offer
to return to work was refused and contends that such an offer was made by the
March 16, 1962, telegram referred to above. Finally the General Counsel urges that
backpay should include interest at a rate of 6 percent.
I have found, as indicated above, that Respondent changed from manufacture to
subcontracting for discriminatory reasons because of the action of his employees in
selecting Local 810 as the bargaining agent and as a means of refusing to meet with
Local 810. The record herein indicates that Respondent's volume of business has
been at least as good following the strike of June 16 as it was prior to that time.
Respondent has not disposed of its production facilities. In these circumstances,
clearly resumption of manufacture and offer of reinstatement would be the only ap-
propriate method of remedying Respondent's unfair labor practice. Town & Country
Manufacturing Company, Inc., and Town & Country Sales Company, Inc., 136
NLRB 1022.
With respect to backpay, as pointed out above, the General Counsel contends that
Local 810 telegram of March 16, 1962, was a sufficient demand for reinstatement.
The March 16 telegram states that Wrought's employees are still available for work
and requests that they be recalled without delay. The evidence indicates and I find
that this telegram was delivered to Wrought on March 16. The parties stipulated that
Ribakove, if recalled to the stand, would deny having seen or heard of the March 16
telegram prior to the time of the hearing. The evidence clearly indicates and I find
that the March 16 telegram was delivered to Wrought Originals; the possibility that it
never came to the personal attention of Ribakove appears to be indicated by the
record. The striking employees did all they could, however, and the failure of com-
munication to Ribakove is not destructive of their right to backpay from that date.
I shall recommend that they be made whole for the loss of earnings suffered by Re-
spondent's discrimination against them by the payment of backpay from March 16,
1962, to the date of a bona fide offer of reinstatement. Backpay shall be computed in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289.7
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Wrought Originals, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening employees with the closing of its plant as a reprisal for their
participation and activities in support of the Union looking toward collective bargain-
ing and other mutual aid and protection, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
4. By refusing since July 28, 1961, to bargain collectively with Local 810 as the
exclusive representative of its employees in the unit found appropriate in the elec-
tion conducted on July 18, 1961, Respondent has engaged in and is engaging in un-
fair labor practices within the scope of Section 8(a) (5) of the Act
5. By changing its operations from a manufacturing to a subcontracting basis as a
reprisal against its employees because of their participation and activities on behalf
of Local 810 looking toward collective bargaining and by refusing to reinstate such
employees from and after their unconditional offer to return to work on March 16,
1962, Respondent has engaged in and is engaging in unfair labor practices within
the scope of Section 8(a) (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Wrought Originals,
Inc , its officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Threatening employees with the closing of its plant as a reprisal for their
activities on behalf of or representation by Local 810.
7 With respect to the General Counsel's request that interest he included see Gaylord
Discount 14oreii of Delaware, Inc, Gay Apparel Corporation , 137 NLRB 557
6 72 01 0-5 3-vol 139- -92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with , restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through representatives 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 and all such activities,
except in accordance with the provisions of Section 8(a) (3) of the Act, as amended.
(c) Discouraging membership in Local 810, or in any other labor organization of
its employees, by discharging or in any other manner discriminating in regard to
their hire or tenure or any term or condition of employment.
(d) Refusing to bargain collectively with the above-named Union as the exclusive
representative of its employees in the following appropriate unit:
All production and maintenance employees, excluding office clerical, profes-
sional employees, watchmen, guards, and supervisors as defined in the Act.
2. Take the following affirmative action which is found to be necessary and
appropriate to effectuate the policies of the Act:
(a) Take reasonable and businesslike steps to resume its manufacturing operations
on a scale comparable or equivalent to those conducted by Respondent in the
period prior to June 16, 1961.
(b) Offer reinstatement to their former or substantially equivalent jobs, as avail-
able, to the following employees: Santos Gomez Crespo, Pablo Irizarry Rivera,
Emilio Nieves, Celestino Perez, Isidoro Perez, Isidoro Gomez Perez, Evaristo Solano,
and Juan Solano, and make them whole for any loss of pay suffered by reason of the
discrimination against them from the date of their unconditional offer to return to
employment of Respondent on March 16, 1962, to the date of an offer of reinstate-
ment, in accordance with the procedure set forth in the section above entitled "The
Remedy."
(c) Bargain collectively upon request with Local 810 as the exclusive bargaining
representatives of its employees and if understanding be reached embody such
understanding in a signed and written agreement.
(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 necessary to determine
the amounts of backpay due under the terms of this Recommended Order.
(e) Post at its plant on Wilson Avenue, Brooklyn, New York, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by Respondent's
representatives, be posted immediately upon receipt thereof, and be maintained
for it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
to insure that these notices are not altered, defaced, or covered by an other material.
(f) Notify the Regional Director for the Second Region, in writing, within 20 days
from the date of this report, what steps the Respondent has taken to comply herewith .9
8 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
8In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 810, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers , by discharging or dis-
criminating against them in regard to their hire or tenure of employment.
WE WILL NOT threaten our employees with discharge or shutdown of our
plant as a reprisal for their activities on behalf of Local 810.
CUMBERLAND FARMS DAIRY PRODUCTS , INC . 1445
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights under the National Labor Relations Act,
as amended.
WE WILL take reasonable and businesslike steps to resume manufacturing
operations on a scale equivalent to those conducted prior to June. 16, 1961.
WE WILL offer reinstatement to their former or equivalent jobs to the follow-
ing employees and make them whole for any loss of pay from March 16, 1962,
to the date of our offer of reinstatement less intermediate earnings:
Santos Gomez Crespo Isidoro Perez
Pablo Irizarry Rivera Isidoro Gomez Perez
Emilio Nieves Evaristo Solano
Celestino Perez Juan Solano
WE WILL bargain upon request with Local 810 with respect to the unit of all
production and maintenance employees at our Wilson Avenue plant, excluding
office clericals , professional employees , watchmen , guards, and supervisors as
defined in the Act.
WROUGHT ORIGINALS, INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not he
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have
questions concerning this notice or compliance with its provisions.
Cumberland Farms Dairy Products , Inc. and Milk Drivers,
Salesmen and Inside Dairy Workers , Local 536, a/w Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America. Case No. 1-CA-3820. Novem-
ber 30, 1962
DECISION AND ORDER
On September 28, 1962, Trial Examiner Louis Libbin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint, and recommended that these allegations be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 Inter-
139 NLRB No. 121.