A & S Electronic Die Corp.

National Labor Relations Board - Board Decisions

Aug 9, 1968

172 N.L.R.B. 1478 (N.L.R.B. 1968)

1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A & S Electronic Die Corp . and District 65, Retail,
Wholesale and Department Store Union,
AFL-CIO and Local 106 , International Produc-
tion, Service and Sales Employees Union
A & S Steel Rule Die Corp . and District 65, Retail,
Wholesale and Department Store Union,
AFL-CIO and Local 106 , International Produc-
tion, Service and Sales Employees Union
A & S Electronic Die Corp . and Israel Cruz. Cases
29-CA-963, 29-CA-1033, and 29-CA-1084
August 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 16, 1968 , Trial Examiner Alba B. Martin
issued his Decision in the above -entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . The Trial Examiner also found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended dismissal as to them . Thereafter, the
General Counsel , Charging Party, and the Respon-
dent filed exceptions to the Trial Examiner 's Deci-
sion and supporting briefs.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, 2 and recommen-
dations3 of the Trial Examiner.
orders that the Respondent, A & S Electronic Die
Corp. and A & S Steel Rule Die Corp., Brooklyn,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified:
1. Delete the words "Assisting a union" from
paragraph 1(d) of the Trial Examiner's Recom-
mended Order and substitute therefor the words:
"Assisting Local 106, International Production,
Service and Sales Employees Union or any other
union."
2. Delete the words "WE WILL NOT assist any
union" from the fourth paragraph of the notice and
substitute therefor the words:
WE WILL NOT assist Local 106, International
Production, Service and Sales Employees
Union or any other union.
IT IS HEREBY FURTHER ORDERED that the com-
plaint herein be, and it hereby is, dismissed insofar
as it alleges violations of the Act not found herein.
' These findings and conclusions are based , in part , upon the credibility
determinations of the Trial Examiner , to which the Respondent excepts
On the basis of our own careful review of the record, we conclude that the
Trial Examiner's credibility findings are not contrary to the clear prepon-
derance of all the relevant evidence Accordingly, we find no basis for
disturbing those findings Standard Dry Wall Products, Inc , 91 NLRB 544,
enfd 188F2d362(CA 3)
' We agree with the Trial Examiner that the Respondent 's interrogation
of all the drivers violated Section 8(a)( I)
' The Trial Examiner failed to provide 6 percent interest per annum in
accord with Isis Plumbing & Heating Co , 138 NLRB 716, on the backpay
due Cruz and Reynolds by reason of the discriminatory withholding of
overtime work The remedy is hereby revised to provide for such interest
In addition , the Trial Examiner failed in his Recommended Order to men-
tion specifically Local 106, International Production, Service and Sales
Employees Union as the assisted union We find that the naming of the
assisted Union in the Order and notice will better remedy the unfair labor
practices found herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This proceed-
ing was heard before me in Brooklyn, New York,
on December 4 and 5, 1967, on complaint of the
General Counsel and answer of A & S Electronic
Die Corp. and A & S Steel Rule Die Corp., jointly
referred to herein as Respondent.' The issues
litigated were whether from March until August
1967 Respondent violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., herein called
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
' The charge in Case 29-CA-963 was filed by District 65, Retail,
Wholesale and Department Store Union , AFL-CIO, herein called District
65, on April 20, 1967 Distnct 65 filed the charge in Case 29-CA-1033 on
June 28 , 1967 An individual, Israel Cruz , filed a charge in Case
29-CA- 1084 on August 28 , 1967 The Regional Director's order con-
solidating the cases , and his second consolidated amended complaint and
notice of hearing were issued on October 17, 1967.
172 NLRB No. 168
A & S ELECTRONIC DIE CORP.
the Act, by interrogations and promises, by solicit-
ing employee signatures on union's representation
cards, and by reducing the overtime of Reynolds
and Cruz and later discharging Israel Cruz. After
the hearing the General Counsel and Respondent
each filed a helpful brief, which has been carefully
considered.
Upon the entire record and my observation of
the witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
A & S Electronic Die Corp. and A & S Steel
Rule Die Corp., New York corporations herein col-
lectively called Respondent, are, and at all times
material herein have been, affiliated businesses with
common officers, ownership, directors, and opera-
tors engaged in business in the same premises, and
constitute a single integrated business enterprise.
The said directors and operators formulate and ad-
minister a common labor policy for the two named
corporations, affecting the employees of said cor-
porations. At all times material herein these two
corporations have been joint employers of the em-
ployees involved herein. At its principal office and
place of business located in the Borough of Queens
in the city and State of New York, herein called the
Plant, Respondent is engaged in the manufacture,
sale, and distribution of electronic dies and metal
stamping and related products. During the year
prior to the issuance of the second consolidated
amended complaint in October 1967, which period
is representative of its annual operations generally,
Respondent manufactured, sold, and distributed at
its plant products valued in excess of $50,000, of
which products valued in excess of $50,000 were
shipped from said plant in interstate commerce
directly to States of the United States other than
the State in which it is located. Respondent ad-
mitted, and I find, that Respondent has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of
the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATIONS AND THEIR
APPEARANCES
Respondent admitted, and I find, that each of the
three Unions involved herein is a labor organization
within the meaning of Section 2(5) of the Act.
These Unions are Local 106, International Produc-
tion, Service and Sales Employees Union, herein
called Local 106; Local 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Local 807
and the Teamsters. and one of the Charging Parties,
1479
District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, herein called District 65.
First on the scene was Local 807, brought by
Israel Cruz on and shortly after March 2, 1967.
Next was Local 106, which appeared around the
middle of March. Last was District 65, which ar-
rived late in March.
III. THE UNFAIR LABOR PRACTICES
A. Promise of Benefit and Interrogation
The first Union on the scene was Local 807 of
the Teamsters. Israel Cruz, one of Respondent's
four drivers, sought out the Teamsters, signed one
of its authorization cards on March 2, 1967,2 and
got two other drivers, Andrew Reynolds and Juan
Rivera, to sign in the next few days.
On March 7 the Teamsters filed a petition for a
driver's unit with the Regional Office and about
that time wrote Respondent's president and chief
executive officer, Walter Solmsen, claiming to
represent Respondent's drivers.
About March 8 Solmsen summoned Cruz, told
him he had received the letter, told him he did not
want to have any unions in his shop, and, according
to the credited testimony of Cruz, a credible wit-
ness on this subject, offered him a $10-a-week raise
if he would forget the Teamsters. Cruz refused the
proposition on the ground that he wanted to stick
with his friends and also wanted the Teamsters in
the shop. Solmsen verbally accepted Cruz' decision,
saying that he was not going to fight the Teamsters,
that 10 years ago when he was younger he could
have done that, but that now he was too old for
that. After dismissing Cruz he talked with the two
other drivers who had signed up, Reynolds and
Rivera.
Solmsen's testimonial version of the above inter-
views was that he called all of the drivers into his
office together and did not talk with Cruz in-
dividually, that he did not offer Cruz or any other
drivers a $10 weekly raise if they would forget the
Teamsters. Solmsen admitted that he told the
drivers he had received the Teamsters letter claim-
ing to represent them and that he had asked them if
the claim stated in the letter was true.
As Cruz, on this subject, and Robert Geller im-
pressed me as credible witnesses, as Solmsen de-
nied all of Geller's testimony stating that he had no
conversation at all with Geller about any union or
Geller's union activities, as by his demeanor during
some of his testimony Solmsen did not impress me
as always a credible witness, and, upon the prepon-
derance of the evidence in the entire record con-
sidered as a whole, I credit Cruz' version of this in-
terview and find and hold that, by offering Cruz the
benefit of a $10 raise for forgetting the Teamsters,
Respondent violated Section 8(a)(1) of the Act. Of
2 All events herein occurred in 1967
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Solmsen 's testimony on this subject I credit only his
admission that he interrogated the drivers as to
their connection with the Teamsters . On direct ex-
amination he testified he told the drivers he had
received a letter from the Teamsters claiming to
represent them and "I wanted to know if this was
true ." On cross-examination he was vague and un-
certain as to what he had asked the drivers and said
to them . He admitted he may have asked them if
they "call[ed] in the union," and that three of
them, Cruz, Reynolds, and Rivera, replied "Yes,"
and the fourth, Sojourner, replied that "He didn't
sign ." As word of his $10 offer to Cruz would cer-
tainly have reached the ears of the other drivers,
and upon the entire record, I find that Solmsen's in-
terrogation of the drivers reasonably tended to in-
terfere with , restrain, and coerce employees in the
exercise of the rights guaranteed in Section 7 of the
Act, Respondent thereby further violating Section
8(a)(1).
B. Shifting of Overtime From Teamsters Drivers to
Non teamsters Driver
Prior to his union activity Israel Cruz, a willing
worker, was given considerable overtime . After-
wards overtime for Cruz was reduced to the point
of being almost eliminated.
Prior to Solmsen's receipt of the Teamsters letter
and his attempt and failure to entice Cruz away
from that Union , Cruz had averaged about 13 hours
per week overtime during the 10 weeks of 1967.
From the moment of those events, which occurred
on or about March 8 , Cruz received almost no
overime ; he averaged less than 1 hour per week.
His overtime per week during 1967 prior to his
discharge August 28 is set forth below:
PRIOR TO MARCH 8
WEEK ENDING
TOTAL AMOUNT
OF OVERTIME
HOURS
1/4 5-1/4
1/11 10-1/2
1/18 12
1/25 11
2/1 17-1/4
2/8 10-1/2
2/15 21-1/4
2/22 8-1/4
3/1 19-1/2
3/8 13-3/4
AFTER MARCH 8
WEEK ENDING
TOTAL AMOUNT
OF OVERTIME
HOURS
3/15 1/2
3/22 0
3/29 0
4/5 3/4
4/12 1-1/2
4/19 0
4/26 1/4
5/3 3/4
5/10 1/4
5/17 0
5/24 0
5/31 0
6/7 1/4
6/14 2-1/2
6/21 2-1/4
6/28 1-1/4
7/5 1-1/2
7/12 0
7/19 1/2
7/26 2-3/4
8/2 3
8/9 5-1/4
8/16 0
8/23 1/2
In terms of his earnings for overtime work, dur-
ing the 3 months, January, February, and March
1967, Cruz earned $395; and during the 5 months,
April through August, he earned $73.
Prior to March 8, Andrew Reynolds, another
driver who signed a Teamsters card, had averaged
about 6 hours per week overtime. During the suc-
ceeding 8 weeks he averaged about 1 hour over-
time per week. Reynolds earned $201 for overtime
work during January, February, and March; $48.58
for overtime work during April, May, and June; and
$8.33 for overtime work from July 1 through 26,
when he left the Company.
The payroll record for Juan Rivera, the third
driver who signed up for the Teamsters, showed lit-
tle change; he worked but little overtime before or
after March 8. Rivera's overtime hours increased
somewhat beginning in late July.
In contrast to the reduction of overtime allowed
Teamsters Cruz and Reynolds, overtime held
steady, and even increased for the fourth driver,
Sojourner, who, to President Solmsen's knowledge,
had not signed up for the Teamsters. Immediatley
A & S ELECTRONIC DIE CORP. 1481
after March 8 he worked about as many overtime
hours as he had previously , while Cruz' were
reduced to almost zero . For overtime work
Sojourner earned $874 during the first quarter of
1967, $916 during the second quarter, and $1,107
during the third quarter.
In its defense Respondent offered no explanation
for the reduction in Reynolds' overtime hours and
earnings after March 8 and for the increase of
Sojourner's. The preponderance of all the evidence
strongly suggests that Reynolds' teamsters align-
ment and Sojourner 's nonteamsters alignment were
the controlling factors.
Respondent contended that Cruz was deprived of
overtime because of what President Solmsen was
told by two detectives when they visited him in his
office. Solmsen was vague as to when this visit oc-
curred. He said he believed it took place at the end
of February 1967. Then he testified the visit oc-
curred maybe 4 weeks before he received the
Teamsters letter and that "I don't recall the date."
Then he was sure it occurred more than a week be-
fore his receipt of the Teamsters letter. Asked if it
was less than a month President Solmsen replied:
"It is hard to say. I think so. Sometime in February,
I believe." On this testimony, the only evidence on
the subject, I find that the visit occurred in Februa-
ry but not necessarily at the end of February.
According to Solmsen the two detectives told
him that they had followed Cruz one Friday night
as he drove the company truck, that he had picked
up another man, and that they suspected that
"there was something going on." They did not tell
Solmsen what they thought was going on. Solmsen
then told Kurt Lobbenberg not to let Cruz take a
company truck home any more. Prior to this, the
practice was to let some of the driers , including
Cruz, take company trucks home overnight. As
Solmsen explained it the drivers would take a load
to the post office at 6:30 p.m. and not return to the
plant because the plant would be locked up for the
night ; so the drivers would take the trucks home.
Respondent's defense seemed to contend that Cruz
was denied overnight use of the truck for a good
reason and that the curtailment of his overtime
hours resulted from this justified denial of the over-
night use of the truck. But Cruz ' normal working
hours were from 8 a . m. to 4 : 30 p.m. and there were
at least 2 overtime hours, from 4:30 to 6:30 p.m.,
when the plant was still open and when Cruz was
deprived of overtime hours for some reason not
connected with the detectives' suspicions and the
allegedly justified denial of his overnight use of the
truck.
Further, Respondent 's curtailment of Cruz' over-
time hours began a week or several weeks after the
detectives ' visit and not immediately thereafter, and
intervening incidents were the organization of the
drivers by Cruz, the arrival of the Teamsters letter
and petition and Solmsen 's interview with Cruz and
the other two Teamsters drivers.
President Solmsen testified that another reason
he barred Cruz from taking the truck home at night
was because he heard that another driver who took
over the truck from Cruz found some marijuana
cigarettes in the truck . Solmsen never confronted
Cruz with this or inquired of him concerning it.
Cruz was arrested in June or July 1967, on suspi-
cion of passing narcotics, and his case was
dismissed by a court sometime after his discharge
on August 28. In any case, this defense would not
explain why Cruz was deprived of overtime work
between 4:30 and 6:30 p.m.
Upon the above facts and considerations, as
Respondent's defense was not fully convincing, and
upon the preponderance of the evidence in the en-
tire record considered as a whole, I believe and
hold that the primary reason Solmsen abruptly
reduced Cruz' overtime hours, particularly the
overtime hours from 4.30 to 6:30 p.m., was because
of the. latter's union activities and sympathies and
his refusal to abandon them at Solmsen's sug-
gestion, and in order to discourage further member-
ship in , and activity on behalf of, the Teamsters,
Respondent thereby violating Section 8(a)(3) and
(1) of the Act. I find that additional, subordinate
-easons for curtailing Cruz' overtime hours after
5:30 p.m. were Solmsen's suspicions of him after
the detectives' visit and after his subsequent arrest
and what Solmsen heard about marijuana
cigarettes.
C. Assis tance to Local 106
A week or so after President Solmsen's unlawful
interrogation and promise and the sudden curtail-
ment of Cruz' overtime, in mid-March, Elliott Klein
and Kurt Lobbenberg (herein called Loeb, as he
was called in the plant) assisted another Union,
Local 106, by urging employees to sign its cards
and telling them such things as that it was a good
union , that Solmsen was not against it and said it
was okay. Loeb actually passed out some of the
Local 106 cards and called and urged employees to
sign them . Most of this activity by Klein and Loeb
occurred one afternoon in or near the shipping de-
partment , while Local 106 organizers were standing
in he shipping bay, which is a roofed-over area
within company premises Klein told one employee,
who protested that this Union was not a machinist's
union , that they didn't have any choice and that it
was either "these people or the Teamsters."
In addition, sometime in March, President Solm-
sen himself asked employee Robert Geller, an in-
spector, to sign 'a Local 106 card as a personal
favor to him. Solmsen summoned Geller and asked
him if he was satisfied with his employment. Geller
replied that he was. Solmsen asked if he had any
complaints or beefs. Geller replied that of course
he did, that everybody does. Solmsen remarked
that he was having union trouble, which he sup-
posed Geller was aware of. Geller allowed that he
354-126 O-LT - 73 - pt 2 - 22
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew and Solmsen said he was very unhappy about
this state of affairs and that he wanted to run his
own company . Solmsen then asked Geller if he
would sign a Local 106 card as a favor to Solmsen.
Geller replied he could not do that , especially since
Solmsen had "handled the thing so badly with peo-
ple like Elliot and Kurt publicly asking people to
support this union . I didn 't want to become as-
sociated with anything of that sort ." Solmsen
replied that Geller should think it over , which geller
agreed to do.
A day or so later Geller told Solmsen he had
thought it over and could not see his way clear to
signing a Local 106 card, but that Geller would not
oppose Local 106 "if that was what he wanted to
do.,,
Shortly thereafter Geller became active in the
plant on behalf of District 65, and shortly after that
Solmsen called Geller in again and asked him why
he had changed his mind ; Geller had said he
wouldn 't "oppose it and now I was ... involved ...
and he wanted to know why I was involved .... So I
told him , that I thought the people needed a
union ." Solmsen then said that if Local 106 got in
the shop " really nothing would change" and that
Geller 's personal position would not change.
This testimony by Geller, which I credit, together
with Klein 's statement to an employee that there
was no choice , that it was either " these people"-
Local 106-"or the Teamsters," proves that
Respondent through Solmsen was attempting to
block and overcome the drivers' choice of the
Teamsters with Local 106, which Solmsen con-
sidered harmless to him . (Local 106's petition, filed
March 22, sought a broad production and main-
tenance unit , including the shipping employees and
the drivers.) This testimony also proved that in
assisting Local 106 as they did Loeb and Klein were
carrying out Solmsen 's and Respondent 's policy,
were acting on behalf of Respondent and not on be-
half of the employees. Respondent did not deny
that Loeb and Klein assisted Local 106, but con-
tended that Respondent was not responsible for
their actions because they were not supervisors
within the meaning of the Act.
President Solmsen 's interrogation of Geller as to
why he had changed his mind and why he was in-
volved reasonably tended, under all the circum-
stances then current in the plant , to interfere with,
restrain, and coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act,
Respondent thereby further violating Section
-8(a)(1) .
Klein
Klein is Respondent 's purchasing clerk. He has
worked for Respondent for 13 years, during which
his salary on the job has gone up from $70 a week
to $205 a week . By virtue of his loyalty , his trust-
worthiness , his long service , his willingness to work
long hours without overtime pay and probably
other factors and traits of character , he now exer-
cises more company power than would normally be
exercised by a purchasing clerk . In addition to
maintaining proper inventory of materials and per-
forming other duties as a purchasing clerk , he also
has something to do with the hiring of employees
and employee relations.
The record showed that at least three new hires,
Edwards, Garay , and Cruz , were employed by Klein
without their first talking with President Solmsen.
Klein interviewed each of them , processed the
papers , asked each when he wanted to start and,
without first talking with President Solmsen insofar
as the record concerning the individual hirings
revealed , hired him. When they reported for duty
they did not first meet Solmsen , and Klein in-
troduced them to their foremen who put them to
work.
When Cruz had his driver 's license revoked in
November 1965, he reported that fact not to Solm-
sen but to Klein. Klein processed Cruz' removal
from the payroll as a layoff , thereby enabling the
latter to collect unemployment insurance. When
Cruz had his license restored , he reported that fact
not to President Solmsen but to Klein . Cruz went to
the plant, showed Klein his license , and the latter
told him to start to work the following day. There
was no evidence that President Solmsen was con-
sulted on the severance or rehire of Cruz.
Employee Perez left Respondent 's employ for 10
months and filled out an application for rehire in
January 1967. Klein gave him the application. Klein
later called Perez at home and told him to report to
work . There was no evidence that President Solm-
sen was ever consulted concerning this specific ap-
plication.
Klein testified that he has nothing to do with the
hiring of employees , that Solmsen makes all the
decisions as to hiring , that all Klein does is receive
the applications , make sure they are correctly filled
out, and turns them over to Solmsen without nota-
tions or recommendations . Klein testified that when
Solmsen selects a man for hire Klein completes the
paperwork , such as making out a record card,
timecard , etc., and takes the man into the factory,
shows him the timecards and clock , tells him the
working hours , and turns him over to the foreman.
Contrary to credible evidence by the employees
of the participation by Klein in the above -specific
hirings , the latter testified that he never interviews
applicants and that Solmsen does that . Contradict-
ing Klein , President Solmsen testified that Klein
often interviews applicants when Solmsen does not
have time , that Solmsen makes his decisions based
upon his own interviews with the applicants and
sometimes by just looking at their paper records.
Solmsen admitted that Klein sometimes makes oral
recommendations , that Klein " may say that the
man doesn't seem the proper man for us. Some-
times he says this looks like a good prospect, and I
A & S ELECTRONIC DIE CORP. 1483
do the interviewing myself." Solmsen testified that
he himself hires "almost everyone we hire" and
that "basically I have my own opinion about every
employee that I ever interviewed." On cross-ex-
amination Solmsen testified that when he is too
busy and does not personally interview applicants
"then usually we don't hire them."
Of note is Loeb's testimony that after Cruz'
discharge Solmsen told Loeb that he had instructed
Klein to find another driver.
Upon this testimony and upon the preponderance
of all the evidence, it appears, and I find, that when
President Solmsen does not interview applicants
they are usually not hired and Solmsen relies, at
least in part, upon Klein's observation that the ap-
plicant would not make a suitable employee; when
Solmsen does interview applicants his decision to
interview them is based, at least in part, upon
Klein's observation that the applicant looks like a
good prospect. As Solmsen is a busy executive who
attempts to run a "one-man business," it appears
probably to me that he relies more heavily on Klein
than either of them admitted for recommendations
concerning hirings. Upon the preponderance of the
evidence I hold that Klein had authority, in the in-
terest of Respondent, effectually to recommend the
hire or rejection of applicants, and that the exercise
of such authority required the use of independent
judgment. It follows that Klein was and is a super-
visor within the meaning of the Act and that
Respondent was responsible for his assistance to
Local 106.
Loeb
In a representation hearing (29-RC-697) in
March 1967, on direct examination by his own
counsel, President Solmsen testified that the
foreman of the shipping department and the
truckdrivers was Kurt Loeb. In the hearing before
me Solmsen attempted to repudiate this testimony
on the ground that "the definition at that time was
not as clear to me as it is today." An additional ex-
planation was that "I may have been very excited, I
don't know. . . . I get carried away." Solmsen ad-
mitted he was not faimilar with the definition of
"supervisor" in the Act.
Working in the shipping department are Loeb, a
regular packer named Ventura, several drivers, and
sometimes other employees temporarily assigned to,
him to help pack. Loeb gets the additional helpers
by asking Solmsen for them and Solmsen relies
upon his judgment as to the need. The drivers pack
when they are not driving. Loeb receives the writ-
ten orders accompanying the finished products as
they come from the manufacturing departments,
and he also receives verbal orders from Solmsen
concerning priorities, must items, etc. Loeb tells
the drivers and packers what to pack, what are the
priorities, where to deliver the packages, and where
to pick up packages. Loeb is the dispatcher of the
drivers in the full meaning of that term and he
receives their phone calls and directs their next as-
signment when they call in from their runs for more
orders. If the delivery of "must" orders requires
overtime by some drivers, usually Solmsen decides
what drivers will work overtime, but sometimes
Loeb does. Sometimes Solmsen tells Loeb to let all
go home but one driver and one packer, and Loeb
does that, deciding himself which driver and packer
shall remain overtime and work.
Loeb is paid $3.25 per hour. Ventura is paid
$2.05. The highest paid driver receives $2.25 per
hour. Thus Loeb is by far the highest paid person in
the shipping department. He takes his orders
directly from the president of Respondent and from
no one else. If he is not a supervisor then Respon-
dent operates its important wrapping, shipping, and
truckdriving operations without anyone having su-
pervisory authority other than the president of the
Company. President Solmsen has a business to run
and some 903 employees and 7 foremen to super-
vise. It is inconceivable to me that he undertakes to
direct and assign the six or more shippers and
drivers personally and not through one having su-
pervisory authority. In this connection I note that
when Cruz was originally hired in March 1965,
Klein took him to Loeb and introduced Loeb as
foreman of the shipping department and in charge
of the drivers. Upon the preponderance of the
evidence I believe and hold that Loeb has authori-
ty, in the interest of Respondent, responsibly to
direct employees and that the exercise of such
authority requires the use of independent judgment.
It follows and I find that Loeb is, and was at all
times material herein, a supervisor within the
definition of the Act.
My final conclusion on this subject is that
Respondent is responsible for the assistance Klein
and Loeb gave Local 106 because Klein and Loeb
were supervisors. By Solmsen's, Klein 's, and Loeb's
assistance to Local 106, Respondent violated Sec-
tion 8(a)(1) and (2) of the Act.
D. The Discharge of Israel Cruz
Cruz worked for Respondent as a truckdriver
from March until November 1965, and from April
1966 until his discharge by President Solmsen on
August 28, 1967. As has been seen above, follow-
ing his signing up a majority of the drivers into the
Teamsters, President Solmsen told Cruz he did not
want the Teamsters in his shop and offered him a
$10 raise if he would forget the Teamsters. Cruz
replied he wanted to stick with his friends and
wanted the Teamsters in the shop. Almost simul-
taneously Solmsen interrogated other drivers con-
cerning their union activities. As was found above
3 This figure comes from Solmsen 's testimony in the representation case.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent then assisted another Union, Local
106, and shifted overtime from Teamsters to non-
teamsters drivers , in order to stop the Teamsters
and in violation of Section 8(a)(I ), (2), and (3) of
the Act . The issue is whether Cruz ' discharge was
in any way motivated by the same antiteamsters
considerations , or whether , as Respondent con-
tended , he was discharged solely because of his ab-
sentee record and his failure to bring in a doctor's
certificate.
During the period from mid -March 1967 until his
discharge , Cruz had a bad absentee record which,
on the witness stand , Cruz attributed to illness.
During working days he was absent 26 days as fol-
lows: 2 days in March , 6 days in April , 3 days in
May, 5 days in June, 4 days in July, and 6 days in
Augusta Cruz attributed his absences to "stomach
trouble." A doctor 's note referred to his illness of
August 24-26 as " bronchial asthma and gastritis. "5
Respondent sought , unsuccessfully, to prove, but
surely suspected , that during some of these
absences Cruz was driving a taxi ,'' which he
frequently did weekends and holidays. Cruz'
testimony about his illness was not fully convincing.
President Solmsen credibly testified that he
questioned Cruz concerning his absences several
times in July and August and that Cruz replied he
had been sick . Once in August , according to Solm-
sen's and Klein 's credible and credited testimony,
Solmsen raised the matter of his attendance with
Cruz and warned him that thereafter if he was ab-
sent he would have to have a legitimate excuse or,
in the event of illness, a doctor's note.
Cruz was ill and absent from work on August 22
through 25 , Tuesday through Friday . On Thursday
he visited the medical doctor , who, as has been
seen above , diagnosed the illness as "bronchial
asthma and gastritis ." However, Cruz did not at
that time get a written note from the doctor. Also
on Thursday , Solmsen sent a message to Cruz,
through Ventura , to the effect that Cruz was not to
return to the plant because of his unexcused
absence . Ventura told Loeb that Cruz was sick,
presumably after he returned from calling on Cruz.
Loeb relayed the message to Solmsen . Sometime
during his illness Cruz asked employee Rivera to
tell the plant he was sick , but the record does not
show on what day this was.
Cruz returned to the plant early Monday morn-
ing, August 28, and was waiting there when Solm-
sen came in . Solmsen told him he had sent word to
him that he was discharged . Cruz told him he had
been sick . Kurt Loeb , who overheard the conversa-
tion, testified that both of them began to talk
loudly.
On the witness stand Cruz and Solmsen disputed
each other as to the rest of this terminal interview.
Cruz testified , incredibly as it seemed to me, that
he started to pull out his wallet from a pocket to
show Solmsen some written proof' that he had been
ill and was, in effect , prevented from doing so by
Solmsen 's statement that he did not want to see
anything , that Cruz should go home , and that Solm-
sen did not want to see him at the plant anymore.
Cruz testified that he replied he knew Solmsen was
the boss but that Cruz was going to report this
discharge to the Labor Board " because you don't
want me to show you the proof."
Loeb , who by his demeanor as a witness im-
pressed me as a credible witness , testified that he
was close at hand and heard the conversation; and
that Solmsen asked Cruz if he had a doctor's cer-
tificate and said that if he did not have one he was
fired ; that after argument between them Solmsen
told Cruz that if he had "something from a doctor,
a certificate- I don't remember the exact expres-
sion , then I will reinstate you."
Solmsen 's version was that when Cruz told him
he was sick Solmsen replied that he was " sick of his
being sick ," that Cruz was fired , and that unless
Cruz brought him a doctor's certificate he would
not reinstate him. Solmsen credibly testified that
Cruz added that " he was sick, he doesn't have to
bring me this [doctor 's] statement, he is going to
the Labor Board and he knows what is going to
happen to me, and after that was said, I could not
understand him anymore because he spoke in
Spanish ." Solmsen testified Cruz offered to show
him no documents and "made no attempt ... to
show me his wallet or any other document ." Solm-
sen testified further that he discharged Cruz
because
I needed a driver who would work regular
hours . I could not depend on him as a regular
driver . There were many a time, especially on
Fridays, when we were full with work, and a
driver wasn't there, and I couldn 't replace a
driver . So there was no choice for me. I was
bending over backwards-not to fire the man
and I carried on for about four or five months
with all that nonsense, but then it finally broke
the camel 's back, and I wouldn 't have fired
him if he would have come with a doctor's cer-
tificate , like other people . It is our policy. All I
needed was a doctor 's certificate, and I
wouldn 't have fired the man . I would have car-
ried him , in spite of all his troubles.
Upon the above facts and considerations and the
preponderance of the evidence , I believe and find
that Solmsen discharged and refused to reinstate
4 He was absent March 17, 24, April 5, 6, 13, 14, 21, 28, May 15, 16, 29,
June 5 , 19, 20.21, 30, July 5, 6, 7, 18, and August 15, 16, 22, 23, 24, 25
This note was not obtained until December 1, 1967, 3 days before the
hearing
Cruz drove a taxi on March 18, 19, May 28, 30, June 4, 24, and July I,
2, 8, and 15 Each of these days was either a Saturday or Sunday or a
holiday
' These documents were two "requests for laboratory examination and
report" stamped August 25, 1967, which Cruz testified he received at Bel-
leview Hospital on August 25
A & S ELECTRONIC DIE CORP.
Cruz solely because of his recurring and unexcused
absences and not at all because of his union activi-
ties . Since Cruz' union activities 5 months before,
Solmsen had been long suffering and forebearing
towards Cruz and had overlooked plenty of oppor-
tunity to discharge Cruz for absenteeism as Cruz
was absent 22 days, 6 of which were on Fridays. He
overlooked these opportunties even though he was
depriving him of overtime. There were no current
unfair labor practices8 and there was no current
union activity.' There was no evidence that Solm-
sen was lying-in-wait to find a pretext to discharge
Cruz. Had he been lying-in-wait he could have
jumped much sooner with good cause. Solmsen's
requirement of a doctor's statement the next time
Cruz was absent was a reasonable requirement
under all the circumstances. Cruz' ignoring of this
requirement and his failure to bring a doctor's cer-
tificate after his 4 days' absence, Tuesday through
Friday, August 22-25, justified Solmsen's feeling
that this was "the straw that broke the camel's
back." Cruz' statement to Solmsen during the
severance interview that he did not have to bring in
a doctor's certificate and that he was going to the
Labor Board showed that Cruz erroneously thought
the Act permitted him, in view of his earlier union
activities, to ignore a reasonable company require-
ment. This statement and Cruz' absentee record
suggest that Cruz may have been taking advantage
of Respondent since his union activity, with the
thought that he was immune from discharge
because of his earlier union activity.
Upon the preponderance of the evidence in the
entire record considered as a whole, I hold that
Solmsen discharged Cruz for cause and not in viola-
tion of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate , and substantial relationship 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 Respondent has engaged in
the unfair labor practices set forth above, I recom-
mend that it cease and desist therefrom, and that it
take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent from March 8, 1967, until Cruz'
discharge, having deprived him of overtime pay
" The deprivation of overtime continued, but Solmsen 's decision on this
had been made back in March
1485
because of his union activities, and Respondent's
defense having given no satisfactory explanation for
this deprivation between the hours of 4:30 and 6:30
p.m., I recommend that Respondent make Cruz
whole for this discrimination against him by pay-
ment to him of a sum of money equal to that which
he normally would have earned as overtime pay
during this period between 4:30 and 6:30 p.m. As
during the first quarter of 1967, Cruz and
Sojourner each averaged no less than 13 hours'
overtime per week, which would have included 10
hours' overtime, 5 days a week from 4:30 to 6:30
p.m.; and as Sojourner's overtime continued
thereafter to average at least 2 hours per day, it fol-
lows that but for the discrimination against him,
Cruz would have continued earning at least 2
hours' overtime pay each day he was working at
4:30, the beginning of the overtime, between
March 8 and his discharge. I therefore recommend
that Respondent make Cruz whole by paying him 2
hours' overtime pay for each of the days he worked
up to 4:30 p.m. between March 8 and August 28,
1968. As Respondent's suspicions of Cruz after the
detectives' visit, after the report about marijuana
cigarettes and after his arrest in June or July, may
have justified its denial of Cruz' overnight use of the
truck after 6:30 p.m., I do not recommend any
overtime backpay for Cruz after 6:30 p.m. In my
judgment, Solmsen was justified on suspicion alone,
after the detectives' visit, in withdrawing the
privilege of overnight use of the truck after 6:30
p.m.
Respondent having discriminatorily deprived An-
drew Reynolds of overtime pay between March 8
and July 26, 1967, and the record having suggested
no reason why his overtime would not have con-
tinued in the same average amount in the second
and third quarters of the year as in the first, I
recommend that Respondent make Reynolds whole
by payment to him of overtime pay each day he
worked for Respondent after March 8, 1967, equal
to his average overtime pay per day he worked dur-
ing the first quarter.
In view of the nature of Respondent's violations
of the Act, I recommend a broad cease-and-desist
order.
Upon the basis of the foregoing findings of fact
and the entire record in the case, I make the follow-
ing:
CONCLUSIONS OF LAW
1. A & S Electronic Die Corp. and A & S Steel
Rule Die Corp ., Brooklyn, New York , are engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 106, Local 807, and District 65 are
each labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
" Although the representation issue had not been resolved , it was held up
by the filing of the original charge herein on April 20, 1967, alleging
assistance to Local 106
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By promising an employee a raise if he would
abandon his union affiliation , by interrogating em-
ployees as to whether they had signed up with a
union , and by interrogating an employee as to why
he had changed his mind and was now involved
with a union , Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)( 1) of the Act.
4. By reducing the overtime hours of employees
because of their union activity and to discourage
membership and activity in a union , Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1)
of the Act.
5. By assisting a union in its efforts to sign up
employees of Respondent, for the purpose of
blocking and overcoming its employees ' choice of
another union , Respondent has interfered with the
formation of a labor organization and has con-
tributed support to it, thereby violating Section
8(a)(2) and (1) of the Act.
6. The aforesaid 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 preponde-
rance of the evidence in the entire record con-
sidered as a whole , I recommend that A & S Elec-
tronic Die Corp. and A & S Steel Rule Die Corp.,
Brooklyn, New York, their officers , agents, succes-
sors , and assigns , shall:
1. Cease and desist from:
(a) Promising employees raises if they will aban-
don their union affiliation.
(b) Unlawfully interrogating employees as to
whether they have signed up with a certain union,
why they have changed their mind and have
become involved with a union.
(c) Reducing the overtime hours of employees
because of their union activity and to discourage
membership and activity of its employees in a
union.
(d) Assisting a union in its efforts to sign up em-
ployees of Respondent for the purpose of blocking
and overcoming any of its employees ' choice of
another union.
(e) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their rights to self-organization , to form
labor organizations , to join or assist any labor or-
ganization of their choice, 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 protec-
tion, or to refrain from any and all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Make whole Israel Cruz and Andrew
Reynolds for any loss of overtime pay they may
have suffered by reason of the discrimination prac-
ticed against them , in accordance with the recom-
mendations set forth in the above section entitled
"The Remedy."
(b) Preserve and, upon request , make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant in Brooklyn, New York,co-
pies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 29 (Brooklyn, New
York), shall be posted by Respondent after being
duly signed by its representative , immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(d) Notify the Regional Director for Region 29,
in writing , within 20 days from the receipt of this
Decision and Recommended Order , what steps the
Respondent has taken to comply herewith."
10 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT promise employees raises if
they will abandon their union affiliation.
WE WILL NOT unlawfully interrogate em-
ployees as to whether they have signed up for a
union. We will not ask them why they have
changed their minds and are now involved with
a union.
A & S ELECTRONIC DIE CORP. 1487
WE WILL NOT reduce the overtime hours and
pay of employees because of their union activi-
ty and in order to discourage membership and
activity in any union.
WE WILL NOT assist any union in its efforts to
sign up any of our employees for the purpose
of blocking and overcoming any of our em-
ployees' choice of another union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights to self-organization, to
form labor organizations, to join any labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
WE WILL make whole Israel Cruz and An-
drew Reynolds for the loss of overtime pay suf-
fered by them by reason of the discrimination
practiced against them , in accordance with the
recommendations of the Trial Examiner's
Decision.
All our employees are free to become our em-
ployees are free to become or remain , or refrain
from becoming or remaining , members of any labor
organization.
Dated By
A & S ELECTRONIC DIE
CORP. and A & S STEEL
RULE DIE CORP.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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 provisions, they may
communicate directly with the Board's Regional
Office, 16 Court Street, Fourth Floor, Brooklyn,
New York 11201, Telephone 596-3535.