Crimptex, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1963

145 N.L.R.B. 452 (N.L.R.B. 1963)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crimptex , Inc. and Rafael Vega, Ramon M. Cuevas, Luis A.
Nazario, Angel Cruz, Angel Gonzalez. Cases Nos. 24-CA-1655-1,
24-CA-1655-2, 24-CA-1655-3, 24-CA-1655-4, and 24-CA-1655-5.
December 16, 1963
DECISION AND ORDER
On May 1, 1963, Trial Examiner James T. Barker 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 Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
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 In-
termediate Report, the exceptions and brief, and the entire record in
these cases, and finds merit in the exceptions of the Respondent. Ac-
cordingly, the Board adopts the findings of the Trial Examiner only
to the extent consistent herewith.
The basic issue concerns the status of the five Charging Parties.
It is the General Counsel's contention that they are employees en-
titled to the Act's protection. On the other hand, Respondent con-
tends that they are supervisors within the meaning of the Act.
As set forth in the Intermediate Report, the Respondent operates
a yarn-manufacturing plant in San German, Puerto Rico. Pelletier,
the plant manager, and his assistant, Enriquez, are the top officials in
charge of the plant and its day-to-day operations. During periods
of normal production, the Respondent employs approximately 25 ma-
chine operators on 3 shifts, with 8 to 10 operators on each shift. In
addition, the Respondent employed the five Charging Parties who
were classified as supervisors.
In June 1959, the Respondent and International Ladies Garment
Workers Union, AFL-CIO, herein called the Union, executed an
agreement for consent election in a unit of :
All production and maintenance employees employed by the
Company at its plant at San German, P.R., excluding all profes-
sional and clerical employees, guards and supervisors as defined
in the Act.
145 NLRB No. 50.
CRIMPTEX, INC. 453
There was some discussion at that time among representatives of Re-
spondent, the Union, and a Board agent relative to the status of the
Charging Parties. Ultimately, the names of the Charging Parties
did not appear on the eligibility list agreed to by Respondent and the
Union. At least two of the Charging Parties, Vega and Cruz, in-
quired of Respondent if they could vote. They received a negative
reply, being told they were supervisors. The election resulted in
the Regional Director's certification of the Union in the consent unit.
On November 9, 1959, the Respondent and the Union entered into a
collective-bargaining contract which contained union-security and
dues-check-off provisions. On November 9, 1961, the contract was
renewed for a period of 2 years, except that certain wage rates were
modified.
In July 1962, Respondent began a general layoff of employees. By
letter dated August 19, 1962, the Charging Parties, describing them-
selves as "supervisors," made certain demands on the Respondent,
including a demand for greater job protection. Although Respond-
ent told the Charging Parties that their demands would be granted,
the Respondent refused to put its consent in written form. As a re-
sult, the five Charging Parties refused to return to work until the
promised benefits were reduced to writing. For their refusal to re-
turn to work, the Respondent discharged all five.
The complaint alleged that the five Charging Parties were a group
of unrepresented employees who, by acting in concert to present their
grievances, constituted themselves a labor organization; and that Re-
spondent violated the Act by discharging and refusing to reinstate
these employees because of their concerted activity. The Trial Ex-
aminer found that the five Charging Parties were employees who
acted as "leadmen"; and therefore, by discharging, and by failing to
reinstate, the Charging Parties because of their concerted activity,
Respondent violated Section 8(a) (1) and (3) of the Act. In its ex-
ceptions, Respondent contends, inter alia, that the Trial Examiner
erred in failing to find that the Charging Parties were supervisors.
We find merit in Respondent's position.
As noted above, the names of the five Charging Parties did not
appear on the eligibility list used in the 1959 election, the Union ap-
parently agreeing with the Respondent as to the excluded status of
these individuals. The Charging Parties themselves evidently ac-
cepted Respondent's statement prior to the election, that their exclu-
sion was based on the fact they were considered supervisors, for it
does not appear that they took any further action in the matter.
Since the election, the Respondent and the Union have treated the
Charging Parties as being outside the production and maintenance
unit. They have twice negotiated bargaining contracts, but the record
does not show that the Union at any time sought to include the Charg-
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Parties within the scope of the contracts. The contracts' dues
checkoff and union-security provisions were never applied to the
Charging Parties, and they never joined the Union during their
employ. Moreover, the Respondent has treated them differently in
that they have attended the supervisors' meetings and a Christmas
party given only for supervisors. In addition, they have received
a bonus not given to the production employees and, at all times,
have received a higher hourly rate of pay than the machine operators.
As recognized by the Trial Examiner, it is the duties of the
Charging Parties, rather than their formal classification, which are
determinative as to their supervisory status under the Act. However,
unlike the Trial Examiner, we find on the basis of the record that
the Charging Parties did possess the indicia of supervisory authority.
Thus, their duties included not only the maintenance and repair of
machinery, but also the overseeing, on a regular basis, of the work
of the machine operators. In this capacity, they were required to
check the quality of the work produced by the machine operators, and
they were responsible for seeing that the orders of Plant Manager
Pelletier and his assistant, Enriquez, were carried out.
The Charging Parties had additional supervisory duties, as evi-
denced by certain company rules that Respondent displayed on the
employee bulletin board for a number of years. These rules required
all employees to secure permission from their supervisor when absent,
report immediately to their supervisor when late, abide by instruc-
tions issued by their supervisors, and receive permission of their super-
visor when in doubt as to job standards. The rules also forbade
petitions or solicitations without supervisory permission. The Trial
Examiner found that these rules clothed the Charging Parties with
apparent supervisory authority, but found the rules not persuasive
because of his conclusion that they were not followed in practice.
Contrary to the Trial Examiner, we find that these rules are persuasive
evidence of the Charging Parties' supervisory authority and that
they were followed. Thus, the many "Supervisors' Absentee Reports"
introduced in evidence, which were signed by the Charging Parties,
show that employees did report to their supervisors, i.e., the Charging
Parties, when late or absent. These reports also show that employees
often gave the Charging Parties excuses or reasons for their lateness
or absence.
There is also evidence that the Charging Parties made effective
recommendations with respect to the discharge of employees. Accord-
ing to Charging Party Gonzalez, employee Rosario was discharged
because Rosario "incurred in an act of discipline" and "was very un-
disciplined" and "rancourous" [sic] to Gonzalez. Though the latter
was unable to remember whether he recommended in so many words
that Rosario be discharged, he recalled sending him home before his
CRIMPTEX, INC. - 455
shift was over. The evidence pertaining to the discharge of another
employee, Collado, shows that Charging Party Vega called Collado's
attention to the fact that he was spending too much time in the wash-
room. When his shift was over at midnight, Collado assaulted Vega.
The next day, Vega reported the incident to Plant Manager Pelletier
and as a result of Vega's report, Collado was discharged. Pelletier
testified that both employee discharges resulted from the recommen-
dations of the Charging Parties involved.
We note finally that, were we not to find the Charging Parties to
be supervisors, 9 to 11 employees would have been working 2 night
shifts and weekends without responsible supervisory direction.
In view of the foregoing, and the entire record, we find that the
Charging Parties responsibly directed the work of employees, and
effectively recommended disciplinary action with respect to them. We
conclude, therefore, that the Charging Parties were supervisors within
the meaning of Section 2 (11) of the Act, and not employees entitled
to the protection of the Act.' Accordingly, we shall dismiss the
complaint.
[The Board dismissed the complaint.]
MEMBER BROWN, dissenting :
For the reasons set forth in the Intermediate Report, I would adopt
the findings, conclusions, and recommendations of the Trial Examiner.
1 See, for example, CGsbbs Automatic Division, Pierce Industries, Inc, 129 NLRB 196;
Leonard Niederriter Company, Inc., 130 NLRB 113; and Southwest Shoe Exchange Com-
pany, 136 NLRB 247
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed on October 2, 1962, by Rafael Vega, Ramon M.
Cuevas, and Luis A. Nazario, individuals, and separate charges filed on November 8,
1962, by Angel Cruz and Angel Gonzalez, individuals, all of whom are hereinafter
sometimes referred to as the Charging Parties, the Acting Regional Director of the
National Labor Relations Board for the Twenty-fourth Region on November 20,
1962, issued a complaint against Crimptex, Inc., herein referred to as Respondent,
alleging violations of Section 8(a) (1) and (3) of the National Labor Relations Act,
hereinafter called the Act. In its duly filed answer, Respondent admitted certain
allegations of the complaint but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner James T. Barker
at Mayaguez, Puerto Rico, on January 28 through 31, 1963, and on February 1, 1963.
All parties were represented at the hearing and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argument, and to file briefs with
me. The General Counsel presented oral argument and thereafter on March 27,
1963, the Respondent filed a brief with me.
Upon consideration of the entire record and the brief of the Respondent, and
upon my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein , a Puerto Rico corporation
with its principal office and place of business at San German , Puerto Rico, where
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is engaged in the manufacture of yarn . During the 12 months immediately pre-
ceding the issuance of the complaint herein , Respondent in the course and conduct
of its business operations purchased and had shipped directly to it from places
located outside the Commonwealth of Puerto Rico, goods and merchandise valued
in excess of $50,000; and, during said period, shipped products outside the Common-
wealth of Puerto Rico valued in excess of $50,000.
Upon these admitted facts, I find that Respondent is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
The General Counsel contends that: the five Charging Parties, employees of the
Respondent , at all times material herein , have been a group of unrepresented
employees who, by agreement between the Respondent and the International Ladies
Garment Workers Union, AFL-CIO, were not included in a production and mainte-
nance unit of employees working at Respondent's plant in San German, Puerto Rico;
on or about August 19, 1962, the Charging Parties, acting in concert to represent
their collective and individual interest, requested Respondent to discuss economic
demands, working conditions , and grievances affecting their collective as well as
individual interests as employees of Respondent; by such joint action the five em-
ployees constituted themselves a labor organization within the meaning of the Act;
on specific dates thereafter, the Respondent did recognize and deal with said em-
ployees collectively with regard to their wages, hours, and working conditions; on
or about September 10, 1962, the Charging Parties, acting in concert to promote
their collective and individual interests as employees of Respondent, declared a
strike against Respondent and as a result thereof Respondent , on September 13,
discharged all of said employees because of their refusal to return to work when
ordered to do so by the Respondent, and since that date, Respondent has failed and
refused to reinstate said employees to their jobs although they have made repeated
and unconditional requests that they be reinstated. The General Counsel contends
that Respondent 's action is violative of Section 8(a)(1) and, alternatively, of
Section 8(a)(3) and (1) of the Act.
The Respondent on the other hand contends principally that (a) the five Charg-
ing Parties are supervisors within the meaning of the Act; (b) they did not and
do not constitute a residual group of employees within the meaning of Board prece-
dent ; (c) the mere fact that they acted in concert in presenting common demands
did not constitute them a labor organization ; and (d ) their discharge was for cause
for failing to respond to and avail themselves of proffered employment subsequent
to the cessation of the strike which , Respondent asserts, was at all times material
economic in nature.'
A. Background
1. The operations of Respondent
Respondent commenced operations at its San German , Puerto Rico , plant in
May 1958. At all times pertinent Henry Pelletier has been plant manager and
Henry Enriquez has been assistant manager. Their hours of work at the plant are
from 8 a m. to 5 or 6 p.m weekdays . In times of normal production , 25 machine
operators are employed who operate the 11 machine units used in the production
of Banlon , Respondent's principal product. These employees work three 8-hour
shifts, the first shift starting at midnight and running until 8 a.m., the second from
8 a.m. until 4 p.m., and the third from 4 p.m. until midnight . Eight to ten machine
operators are employed on a rotating basis on each shift. During the 8 a.m. to
4 p.m. shift , two maintenance mechanics are employed in the machine shop.2 It
was in this capacity that Angel Gonzalez , one of the Charging Parties , was employed
at times pertinent herein In addition , at times material the Respondent employed
the four other Charging Parties in a capacity which the General Counsel contends
was nonsupervisory and which the Respondent , to the contrary , contends was super-
1 Rejected Is Respondent 's further contention that there is a substantial variance be-
tween the original charges and the complaint herein N L It .B v. Fant Milling Company,
360 U S 301.
2 The foregoing Is predicated upon the credited testimony of Pelletier. Angel Gonzalez,
and Johnny Echevarria.
CRIMPTEX, INC. 457
visory.3 Angel Gonzalez credibly testified, and it is undisputed, that before his
transfer to the machine shop on the second shift, he substituted, as required, for one
or the other of the Charging Parties during times pertinent to this proceeding, and
it is for this reason that Respondent contends that Gonzalez was a supervisor within
the meaning of the Act.
2. The certified bargaining unit
The parties stipulated and the documents of record reveal that on June 25, 1959,
Respondent and the International Ladies Garment Workers Union, AFL-CIO,
executed an agreement for consent election to be conducted in a unit described as
follows:
All production and maintenance employees employed by the Company at its
plant at San German, P.R., excluding all professional and clerical employees,
guards and supervisors as defined in the Act.
Pursuant thereto an election was held on July 2, 1959, among the employees in
the agreed appropriate unit and as a result thereof the International Ladies Garment
Workers Union, AFL-CIO, hereinafter called the Union, on July 13, 1959, was
duly certified by the Regional Director for the Twenty-fourth Region as their
collective-bargaining representative. The Union remained at the time of the hear-
ing the bargaining representative for the production and maintenance employees of
Respondent.
It is further undisputed that the Charging Parties' names did not appear on the
eligibility list used in conjunction with the aforesaid July 2, 1959, election, and that
before their respective terminations, they had not been included in the collective-
bargaining unit represented by the Union.
B. The supervisory question
1. The setting
During the months immediately preceding their respective terminations, the Charg-
ing Parties Vega, Cuevas, Nazario, and Cruz were employed in a job classifica-
tion "supervisor," so designated by Respondent and accepted by the incumbents
themselves .4 However, it is fundamental doctrine that the mere title does not
3 The Respondent contends that because the five Charging Parties were "excluded from
the appropriate unit determined in Case No. 24-RC-1229," which determination was
"accepted by the Board," the Board is estopped from finding the Charging Parties are not
supervisors within the meaning of the Act. This contention is based, in sum, upon record
evidence (more fully set out snfia) to the effect that at the time the Union filed its repre-
sentation petition in the above-referred-to representation case, an agent of the Board in-
quired as to the duties of the five ; that Respondent took the position they were "part of
the management" ; that the Union did not seek to have them included in the unit, and that
pursuant to the agreement of the parties the five were excluded from the unit and did
not vote in the election subsequently held. This is but the reverse facet of the contention
advanced in Valentine Sugars, Inc., 102 NLRB 313, 314 at footnote 3, and there rejected
by the Board There the Board observed.
The decision to allow these alleged supervisors to vote was the result of an agree-
ment between the parties settling their differences as to the voting eligibility of 'cer-
tain employees Merely consenting that alleged supervisors be allowed to vote is not
a determination of their status by the Board
So, here, merely because Respondent and the Union (not here joined as a party) in an
earlier representation proceeding agreed to exclude the Charging Parties from the collective-
bargaining unit subsequently certified by the Regional Director does not determine the
question raised as to their supervisory status in the instant unfair labor practice proceed-
ing, nor does it act as an estoppel against the Board, or preclude a de novo determination
here
4 Much evidence was adduced at the hearing on the issue of whether the Charging Parties
were employed in the classification "maintenance mechanics" or "supervisors." Consider-
ing the references of the Charging Parties to themselves as "supervisors" in their written
communication with management (hereinafter considered) and the similar designations
on reports which they filled out and executed, I conclude and find that at times material
herein the five Charging Parties worked in a job category designated "supervisor" and not,
as they contend, in the job category "maintenance mechanic."
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish supervisory status but rather it is the duties and authorities of the individ-
uals employed therein that do .5
At times material the four Charging Parties referred to above were assigned on a
rotating basis to duties on each of the three operating shifts. Similarly, and also on
a rotating basis, they performed duties in the machine shop during the second, or
8 a.m. to 4 p.m. shift. On weekdays during the hours from approximately 8 a.m.
until 5 or 6 p.m., Plant Manager Pelletier and/or his assistant, Henry Enriquez,
were on duty in the plant, and it is from them that the Charging Parties took their
direction and instruction during those hours. However, after 5 or 6 p.m. and on
weekends and holidays, neither Pelletier nor Enriquez was in attendance at the
plant on a continuing basis, but only at such frequent but unscheduled occasions as
they would make their unannounced appearance; or at such times as Pelletier would
come to the plant pursuant to a telephone request of or message from one of the
Charging Parties.6 It was during nighttime hours and on weekends and holidays,
if at all, that the Charging Parties performed duties which would constitute them
supervisors within the meaning of Section 2 (11) of the Act.
2. The duties
Before operations commenced at the San German plant in 1958, Vega, Gonzalez,
and Cruz attended a course in the United States where they were trained in the
operation and maintenance of the machinery to be used by Respondent in its San
German plant. Thereafter they returned to Puerto Rico and after operations com-
menced at the plant assisted in training production employees in the operation of
production machinery?
In the capacity in which they served in the months preceding their respective
terminations Vega, Cuevas, Nazario, and Cruz repaired , adjusted , maintained, and
serviced production machinery and parts, and daily during the operators' relief and
half-hour lunch periods they performed production tasks, substituting for the opera-
tors.8 During the course of any of the three shifts, if a defect occurred in the
operation or production of a machine , the operator contacted the "supervisor"
whose task it was to remedy the defect through repair.9 In the event they were
unable because of lack of skill or knowledge to accomplish a given repair task, the
"supervisor" received the assistance of Plant Manager Pelletier . If this occurred at
night or during the weekends the "supervisor" would contact Pelletier at home by
telephone and he would come to the plant to assist in making the necessary repairs.'°
According to the undisputed testimony of Pelletier the "supervisors " spent an un-
defined portion of their time moving from machine to machine checking the quality
of work being produced by the operators. During those portions of the first and
third shifts and on weekends when neither Pelletier nor Enriquez was in the plant,
the "supervisors" were the highest paid personnel on duty. " The operators carried
on their tasks pursuant to a predetermined written schedule prepared in advance
by Pelletier ; such modifying instructions as were also prepared by Pelletier or
5 N.L.R B. v. Quincy Steel Casting Co ., Inc., 200 F 2d 293 (CA. 1 ) ; Red Star Expres8
Lines of Auburn , Inc v. NL.R.B., 196 F. 2d 78 (,C.A 2) ; Cinch Manufacturing Corpora-
tion, 98 NLRB 781.
O The foregoing is based on a composite of the credited testimony of Pelletier, Cruz,
Gonzalez, Vega, Carlo, and Mojica. I credit Pelletier to the effect that he made such
visits but do not credit his testimony that his Saturday visits were occasional and that
Sunday visits may have been spaced 2 months apart. While the employee witnesses vari-
ously fixed the interval between visits by management , their testimony reasonably inter-
preted established that the visits were frequent
7'The foregoing is based on a composite of the credited testimony of Pelletier , Cruz, and
Gonzalez . Pelletier testified that Vega, Gonzalez, and Cruz received training in super-
vision through this course but the record is devoid of evidence detailing the type of super-
visory training, if any, they may have received
'The credited testimony of Pelletier, Padovani, Carlo, Angel Cruz, Rafael Vega, and
Angel Gonzalez
"The credited testimony of Padovani, Echevarria, Carlo, and Gonzalez
10 The credited testimony of Pelletier, Gonzalez, and Carlo Benito Santiago who served
in the job category "supervisor" during the 4 months preceding the hearing also testified
he similarly acted
The credited testimony of Pelletier and Carlo The exact pay differential is not
specified in the record
CRIMPTEX, INC. 459
Enriquez and called to their attention by the "supervisors"; or such oral instructions
as were passed on to them by word of mouth from the operator whom they relieved.12
The "supervisors" assisted operators in making such changes in material or ma-
chines as were necessary to comply with any modifying instructions given to the
operators by Pelletier or Enriquez.13 The "supervisors" also signed as "supervisors"
time charts which showed the hour when the machine was started, when it was
shut down, when it was doffed, and the number of plies of yarn the machine was
running. Both the "supervisor" and the operator would initial the entries.14 In
the event an operator did not report to work at all during the evening hours or on
weekends and holidays, the "supervisor" would report this by telephone to Pelletier 15
who either obtained a replacement or ordered an adjustment in operations, instruct-
ing the "supervisor" in the manner of accomplishing this.16 If an operator became
ill during the night so that he was required to leave the plant, he informed the
"supervisor," who would sometimes telephone Pelletier for instruction. On other
occasions the "supervisor" would merely substitute for the operator if he had no
other more pressing tasks to perform. If, however, there was no one available to
operate the machines, and the job being performed was not an important one as
categorized in advance by management, the machine was shut down.17 In this
latter situation, the "supervisor" lacked authority to order an ill employee to stay
on the job, or to exercise in any way his independent judgment as to the validity
of the operator's reason for leaving his work.18 The "supervisors" had responsi-
bility to see that operators were at their work stations and to find out why they were
not. However, they lacked authority to discipline independently such employees or
to take corrective action, and were expected merely to report any transgression,
indolence, or neglect to Pelletier through the device of a written report.19 The
"supervisors" reported all lateness and absences to Pelletier on a form designated
"supervisors absentee report," indicating whether the lateness or absence was with
or without prior notice, and checking the reasons therefor29 On the basis of these
reports and an independent investigation of his own, Pelletier would take appro-
priate action, discussing the matter with representatives of the Union pursuant to
12 The credited testimony of Rafael Vega, Cruz, Gonzalez, Echevarria, Mojico, and
Santiago
13 The credited testimony of Cruz
14 The credited testimony of Nazarlo and Santiago
11 The credited testimony of Cruz, Rafael Vega, and Padovani
16 The credited testimony of Rafael Vega and Padovani
17 The credited testimony of Padovani , Rafael Vega, Cruz, Gonzalez , Enriquez, and Carlo.
18 The credited testimony of Cruz, Enriquez, and Rafael Vega.
19 The credited testimony of Cruz, Gonzalez, Rafael Vega, and Carlo. The credited testi-
mony of Santiago that he had the responsibility of seeing that operators attended their
work did not reveal any independent disciplinary authority.
11 The credited testimony of Cruz, Gonzalez, Rafael Vega, and Carlo Santiago credibly
testified that he similarly had this responsibility during his 4-month tenure as a
"supervisor "
I have weighed the further testimony of Benito Santiago that after assuming the posi-
tion of a "supervisor" he sent employee Mojica home 2 hours before the end of the night
shift because Mojica had 'been sleeping on the job. Mojica admitted that he left work as
instructed by Santiago but testified that he did so because he was ill. I do not resolve this
apparent conflict for it was not shown by Respondent that the Charging Parties possessed
during the term of their employment the same authority as that Santiago claimed for
himself. Although Santiago testified his duties as a "supervisor" were the same as those
of the Charging Parties, this was conjecture on his part based on limited observation
For this reason, and considering the absence of other evidence showing the Charging
Parties possessed authority to discipline and suspend employees, I do not consider the
Mojica incident sufficient alone to establish that they did. Further, Santiago's testimony
that he "permitted" Mojica to absent himself from work to attend and testify at the
instant hearing was clearly ministerial and not discretionary. In addition, relating to the
status of the Charging Parties, Santiago's bare assertion that he "supervised" machine
operators during times he served as a "supervisor" subsequent to the termination of the
Charging Parties was unsupported by specifics and is accordingly given no weight in re-
solving the supervisory issue.
Nor am I able to credit the testimony of Elado Montaldo relating to the duties of in-
dividuals employed in the job category of "supervisor." As I observed his testimony at
the hearing he manifested an attitude of levity and evasion which, when considered to-
gether with his general demeanor as he testified, rendered his testimony untrustworthy
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance machinery of the collective-bargaining contract covering the production
and maintenance employees.21
As is apparent from their August 19 letter to Pelletier, considered below, and
their credited testimony at the hearing, the Charging Parties were left unapprised
by management concerning the extent, if any, of their actual supervisory authority.
Further, the credited testimony of Padovani, Echevarria, and Carlo reveals that
those employees did not consider the Charging Parties to be their "supervisors" or
"bosses."
3. Conclusion
There is no evidence that the "supervisors" possess or exercise any of the statutory
indicia of supervision. Pelletier testified that they had authority to resolve minor
disputes among employees but the only incident to which he alluded revealed that
no independent action was taken, but rather that Angel Cruz, the "supervisor"
involved, sought Pelletier's intervention in the incident in order to achieve a resolu-
tion thereof. Pelletier's testimony as to the alleged authority of "supervisors" to
resolve minor disputes has no other record support. Although Pelletier testified
that the "supervisors" could effectively recommend hires such specific recommen-
dations as he testified to appear to have occurred at or near the time Respondent
commenced operations several years ago; and it is not shown whether the recom-
mendations of the five alleged supervisors were given weight by Respondent, or
whether their recommendations were of more significance than those of other em-
ployees. There is no substantial evidence of the authority of "supervisors" to effec-
tively recommend the discharge of employees. The evidence pertaining to the dis-
charge of Collado by management following a report from "supervisor" Vega (who
had been assaulted by Collado) reveals Vega reported this incident to his superior
and the assault constituted Collado's second offense. It is clear that the discharge
resulted from a decision of management predicated not on any recommendations
of Vega, but solely upon the nature of Collado's conduct. Similarly, the discharge
of Rosario, in which "supervisor" Gonzalez played a role, resulted from an inde-
pendent determination of management based solely on Rosario's conduct and not
from any recommendation of Gonzalez. Nor does this incident suggest that Gon-
zalez, and thus the other "supervisors," had authority to suspend employees. In send-
ing Rosario home in midshift, Gonzalez was merely carrying out a specific instruction
relating to this employee and was not acting pursuant to a general grant of authority
to suspend employees.
From the foregoing it is apparent that Respondent has endowed the "supervisors"
with status sufficient to cause rank-and-file machine operators to look to them for
routine guidance in accomplishing work tasks and meeting schedules that have been
predetermined by management. However, it is equally apparent that the relation-
ship that exists between the machine operators and the five Charging Parties was
that of a less skilled to a more skilled employee; and not that of a rank-and-file
employee to a statutory supervisor. During those periods when neither Pelletier
nor Enriquez was present in the plant the "supervisors" carried out only routine di-
rections of the work of the machine operators and they did not exercise independent
judgment in carrying forward the prescribed work but were required to consult
with and seek instructions from their superiors, Pelletier or Enriquez, before
effectuating a departure from the planned production routine.
The 8 to 10 operators who during the nighttime hours and on weekends were left
without immediate supervision were subject to the disciplinary effects arising from
the expectation and anticipation of frequent but unscheduled visits by the plant man-
ager or his assistants, the immediate availability of the latter to resolve work and
disciplinary problems, and the information supplied management through the device
of the "supervisors" reports. In rendering these reports the "supervisors" served
as mere conduits of information, for they lacked authority to take effective action
affecting the work status of the operators. Their reporting function was essentially
clerical in nature and their reports are always subject to independent investigation.
In the unusual circumstances here found I conclude and find that the "supervisors,"
so-called, are not supervisors within the meaning of the Act but are mere leadmen.
21 The credited testimony of Pelletier and Cruz.
CRIMPTEX, INC. 461
The fact that written rules of Respondent 22 clothed them with apparent supervisory
authority is not persuasive because these rules are not followed in practice. More-
over, of no controlling significance either is the fact as established by uncontroverted
and credited testimony that the five Charging Parties attend infrequent "supervisors"
meetings; attended a Christmas party given for "supervisors"; during one recent
year received a bonus not given to machine operators; receive a higher rate of
hourly pay; and on occasions see that operators are supplied with necessary ma-
terials. While these factors differentiate them from the machine operators, these
occurrences are wholly consistent with their status as leadmen. As the evidence does
not establish that the five Charging Parties possessed or exercised the authority of a
supervisor, I find that they were not supervisors within the meaning of Section 2 (11)
of the Act.23
C. The alleged concerted and union activities
During the month of July 1962, Respondent's operations entered a seasonal lull
and for a time production was on the basis of a 2- or 3-day workweek, until it halted
completely, at which time all personnel were laid off including the five Charging
Parties.24 It was during this period of layoff that the five Charging Parties by
letter of August 19, 1962, addressed to and received by Henry Pelletier, jointly
demanded, on their own behalf only, a management clarification of their authority
and responsibilities as "supervisors"; increased salaries; improved vacations and sick
leave benefits; and assurances against periodic layoffs. The letter was executed
by each of the five Charging Parties. Pelletier responded to this letter on Au-
gust 21, 1962, acknowledging receipt thereof and informing the Charging Parties
that their letter had been referred to the president of the Company (who was
headquartered in the State of Rhode Island) and assuring them that upon receipt of
instructions "you will properly be called for a meeting, to have further discussions
on the matter of your request."
Thereafter, Pelletier received telephonic instructions concerning the matter from
Respondent President Benoit. As a result, Pelletier met with the Charging Parties
at his office on September 7, and thereafter on September 8 and 10, respectively.
Henry Enriquez, Pelletier's assistant, attended the first meeting. Each of the five
Charging Parties was present at the first meeting, and all, except Cruz who did not
attend the September 10 meeting, were in attendance at the two subsequent meetings.
At the first meeting on September 7 Pelletier discussed with the five employees
their demands. Pelletier offered the employees 2 weeks' vacation in lieu of 14/z,
15 days' sick pay, and 3 or 4 days guaranteed pay during slack periods. He further
requested them to return to work as production orders had increased and he needed
their services. The five employees indicated their acceptance of the wage, vaca-
tion, and sick benefits offer but demanded, as a condition of their return to work,
a guarantee of a 5-day workweek during slack periods, and further that the benefits
orally promised be put "in writing." Pelletier refused to accept these demands.
When the first meeting ended after approximately an hour's discussion the parties
were in disagreement only on the latter point. Pelletier suggested a meeting for the
next day.
The second meeting was much like the first but the parties were unable to agree
on the demand of the five Charging Parties that the terms agreed upon be reduced
to writing 25
The parties met again on September 10 pursuant to Pelletier's suggestion Dur-
ing the discussion that followed the employees showed Pelletier a copy of a letter
they had written to President Benoit. This letter had been written on September 9
and was executed by the five Charging Parties. Enclosed therein was a copy of
their August 19 letter to Pelletier. The letter stated, in substance, that they had
22 Company rules at all times pertinent on display on the employee bulletin board state
that employees are required to have permission from their supervisors whenever necessary
to be absent from work ; require late employees to report immediately to their super-
visors, forbid the removal of company property from the premises without permission of
the supervisor, require all employees to abide by instructions issued by their supervisor;
admonish employees who entertain doubt as to job standards to consult with their super-
visors ; and forbid petitions or solicitations without supervisory permission
w See Lindsay Newspapers, Inc, 130 NLRB 680; Warren Petroleum Corporation, 120
NLRB 370; ef. Remington Rand Corporation, 141 NLRB 1052.
24 The parties stipulated that the last days on which the respective Charging Parties
were employed were as follows: Gonzalez, August 17; Cruz, August 24, Nazario, Septem-
ber 1 ; Vega, August 30; and Cuevas, September 8
25 The foregoing is predicated primarily upon the credited testimony of Pelletier as sup-
ported in essential aspects by the credited testimony of Gonzalez and Cruz.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not received assurances sufficient from Pelletier to meet their demands and informed
President Benoit that they intended "to stay out of work" until they received a
formal and satisfactory answer to their August 19 letter. Upon being shown the
letter Pelletier said "that is the best thing you can do; let's wait, then, in answer
to that letter." 26 At the meeting Pelletier demanded that the five Charging Parties
return to work but he refused to reduce the terms of the oral agreement to writing
As had the two previous meetings, the September 10 meeting ended with the parties
deadlocked over this issue 27 Pelletier credibly testified, in substance, that he sug-
gested to the five employees that they resume work on the basis of the benefits
orally granted and that they later appraise their demand for written terms in light of
President Benoit's expected response to their September 9 letter. The employees
were adamant in their refusal, however.
The following day, September 11, Respondent sent a telegram to Rafael Vega
which Vega received and which read as follows-
This is to confirm personal notice given you yesterday to report to your job
in Crimptex on the 8 a.m. shift tomorrow Wednesday.
CRIMPTEX INC.
Each of the other four employees on September 11 was sent and received a tele-
gram identical in all respects except for the reporting time.28
That afternoon after the telegram had been sent by Pelletier but before it had
been received by Gonzalez, Gonzalez was asked to report to Pelletier at his office,
and did so. Pelletier was absent but Gonzalez spoke with Enriquez. Gonzalez
credibly testified concerning the conversation as follows:
I asked about the Manager, Mr. Pelletier, and he answered that he was not in.
I asked what they wanted me for and what purpose. And he said they wanted
to talk to me personally, that he would tell me what he had to tell me on behalf
of the company.
He said that the company had given me 24 hours to return to work. To the
contrary, I was fired at the end of those 24 hours, but that if I returned, I could
continue working always for the company amicably.
I said to him "And my four co-workers, are they going to also return?"
He said, "If they want to return, they can return, but we demand from you
to return and not to bother about the rest."
I answered, "If we all return united and with the demands we have been
offered in writing, we would return the following day, but alone, I was not
returning."
Cruz credibly testified that on the same day he was similarly contacted at home
by Pelletier and Enriquez who asked Cruz, in substance, why he did not go to
work and "forget about the rest." Cruz answered "that if [Pelletier] was interested
in talking personally to each individual, as he told me, why didn't he organize a
group and talk to us?" Pelletier and Enriquez also spoke with Nazario and Cruz
together on September 11, telling them "to forget about the rest and go back to
work." They answered that they could not give Pelletier an answer unless "the
whole group were present," and unless reinstatement was offered the "whole group." 29
That evening the five employees went to the plant and spoke with Pelletier. The
employees reiterated their demand that the terms agreed to orally be "put in writing"
but Pelletier refused3o
On September 13, Respondent sent the following letter, which was identical in
text except for reporting times, to each of the five employees:
On three occasions, on the 7th, the 8th and 10th of the current month of
September, I personally notified you, in my capacity as Manager of Crimptex,
Inc. of San German, that this factory was resuming operations and that you
should have reported to work. On the 11th of this month I again ratified by
telegram sent to you through the telegraph office of San German that you
should have reported to your work on the 8:00 A.M. shift.
26 The foregoing is prediacted upon the credited testimony of Angel Cruz
27 The credited testimony of Cruz and Pelletier
28 They were to report on September 12, 'Cruz on the midnight shift commencing at
12 p in ; Cuevas and Gonzalez at 8 a in ; and Nazarlo, at 4 p m.
29 The foregoing is predicated upon the credited testimony of Vega as supported in
essential aspects by Nazario and Pelletier.
30 The credited testimony of Vega and Gonzalez. Pelletier's testimony is not to the con-
trary but places this meeting on the morning of September 11. He admitted, however, his
recollection on this score was not clear Accordingly, I find that the meeting took place
on the evening of September 10.
CRIMPTEX, INC. 463
Since the day of September 13 has gone by without you having reported to
work, notwithstanding the notices given to you nor you having informed any
impossibility to do so I understand your not having reported to work demon-
strates ,that you are not interested in continuing working for this company.
Very truly yours,
CRIMPTEX, INC.
On September 14 the five employees sent a letter to Pelletier responding to his
letter of the previous day. The letter in part stated that "there still prevails among
us a primordial reason for which we are not able to report to work." The letter
continued, "Since you do not have authority to solve certain points mentioned to
you personally and by letter to you it is necessary for us to receive a firm and
satisfactory answer from Mr. Emile A. Benoit owner of that company before resum-
ing our functions as supervisors at Crimptex Corporation."
On September 18, the five employees went to the San Juan office of the Inter-
national Ladies Garment Workers Union and there spoke to two union officials.
Each of the five employees executed an authorization card.31
The following day, September 19, the five met with Pelletier and offered their
services unconditionally, withdrawing their demands that the terms orally agreed
upon be reduced to writing. Pelletier refused, stating that he had hired
replacements32
Thereafter, on September 27, the five employees went as a group and spoke with
Pelletier and Enriquez, again offering to return to work unconditionally. Neither
did they on this occasion advance any demands for a written contract.33 Pelletier
answered that there was no work for them, that they had been replaced.34
At no time during the meetings between management and the five Charging Parties
nor in the accompanying correspondence did the five Charging Parties request or
demand Respondent to recognize and bargain with them as a collective-bargaining
entity, nor did they at any time inform Respondent that they had signed union
authorization cards.35
On September 27 there occurred a work stoppage engaged in by all but two or
three of Respondent's employees. The strike lasted for 3 or 4 days and ended
when union representatives met with the employees and advised them to report to
work immediately.36
D. Respondent 's replacement efforts
On September 18 Respondent commenced to designate replacements for the five
Charging Parties. In all, four were selected , one on September 18, another on
September 19, and two on September 23. Subsequently, on November 18 two in-
dividuals were employed as replacements for the two employees designated on
September 18 and 19 , respectively .37 So far as the Respondent 's evidence reveals
no replacement for Gonzalez had been hired on September 19, nor later secured,
at least during periods pertinent herein. I find that on September 19 Respondent
had not permanently replaced Gonzalez in his rank-and-file shop position.
E. Pertinent union activity
In mid-August 1962, the five Charging Parties met with representatives of the
Garment Workers and executed authorization cards and entrusted them to the
a The credited testimony of Vega
31 The credited testimony of Vega, Cruz, and Gonzalez. The finding that on September 19
the five employees offered unconditionally to return to work is predicated upon the testi-
mony of Vega and Cruz. The testimony of Pelletier as to when the five employees first
offered unconditionally to return to work was confused and, although I am convinced he
endeavored earnestly to recall accurately when, after the September 10 meeting, the un-
conditional offer was first made, his recollection was most hazy. Accordingly, I have
placed no reliance upon his testimony relating to this issue in making the above finding.
3' The credited testimony of Vega, Cruz, and Gonzalez.
3a The credited testimony of Gonzalez
3' The credited testimony of Pelletier.
3' The credited testimony of Pelletier, as supported by the credited testimony of Shop
Steward Padovani
37 The parties stipulated to the above facts at the hearing I have carefully reviewed the
evidence of record for the purpose of determining if the replacements effected on Septem-
ber 18 and 19 were permanent or were merely transitory reassignments designed to
meet temporary emergency conditions . I conclude and find that they were permanent
replacements.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
custody of Shop Steward Padovani, with instructions that he keep them until they
requested him to present them to Pelletier.
Subsequently on September 18, as set forth above, the Charging Parties executed
authorization cards to replace the previous ones. Thereafter, they requested
Padovani to present the cards to Pelletier and on September 20 Union Representa-
tive Torro and Shop Steward Padovani called on Pelletier and did so. Upon being
presented with the cards, Pelletier answered that "those people were supervisors"
and that they were no longer employed because they "had abandoned their jobs."
Conclusions
The ultimate disposition of this proceeding turns upon principles by now well
established. Employees who together make common cause and act in concert in
presenting demands for the improvement of their wages and conditions of work
are engaged in protected concerted activity within the meaning of Section 7 of the
Act.38 Moreover, by their joint activity they may, in certain circumstances, con-
stitute themselves a labor organization within the meaning of the Act.39 When,
in furtherance of these demands they withhold their services which the employer
is requesting and predicate their return to work upon total acceptance of their
demands both in form and substance, they become economic strikers with the
accompanying legal rights and risks attendant thereto. Applicable here in this
respect is the statement of Trial Examiner Ordman, adopted by the Board in Valley
Dye Cast Corp., 130 NLRB 508, 515:
Generally speaking, strikers retain their status as employees of their employer
and are protected against unfair labor practices denounced by the Act. In
the case of an economic strike, however, an employer may, in order to protect
his legitimate interests, permanently replace the strikers and, to the extent that
he does so, he is not required to reinstate them. Absent such replacement,
however, the employer may not discharge or refuse upon request to reinstate
economic strikers. Such action constitutes a reprisal for the mere act of striking
and pro tanto trenches upon a guarantee specifically vouchsafed by Sections
7 and 13 of the Act. See also Section 2(3) of the Act.
The findings of fact above made, predicated in significant part upon evidence
undisputed, reveal that the five Charging Parties acted in concert in presenting
economic demands through joint meetings with Respondent's managing agents and
through joint, written demands directed to Respondent's highest official, as well as
to the managers at the plant level. They continued to press these demands and to
withhold their services at times when Respondent was requesting their return to
work and seeking their services, informing Respondent that they intended to do so
until their demands were resolved in a form satisfactory to them. In view of their
common interest and the joint nature of their action and the purpose for which they
together acted, in the circumstances here found they constituted themselves a labor
organization within the meaning of Section 2(5) of the Act .40 Moreover, in con-
certedly insisting that Respondent grant in writing the economic benefits which they
had sought and to which the Respondent had orally agreed, the five Charging Parties
were engaged in protected activity. If the Act guarantees to employees the right
to seek concertedly improvement in their working conditions, it perforce would pro-
tect them in their concerted attempt to secure incorporation of the benefits in a
written rather than oral agreement.
But on the other hand, it cannot be doubted, in the circumstances here present
(including the absence of any formal demand for Respondent's recognition of the
five as a bargaining representative and for formal bargaining) that Respondent was
asSee Joanna Cotton Mills v. N.L.R.B., 176 NLRB 749, 752-753 (C.A. 4), and cases
cited therein; Smith Victory Corporation, 90 NLRB 2089, enfd . 190 F. 2d 56 (C.A. 2) ;
Mac Smith Garment Company, Inc, 107 NLRB 84; Latex Industries, Incorporated,
132 NLRB 1
^ N L R.B. v. Kennametal, Inc, 182 F 2d 817 (CA. 3), enfg. 80 NLRB 1481; Smith
Victory Corporation, supra; N.L R B. v. Buzza-Cardoza, 205 F. 2d 889, 891 (C A 9), enfg
97 NLRB 1342; Cleaver-Brooks Mfg Corporation, 120 NLRB 1135, Brown Survey Cor-
poration, 119 NLRB 1240, 1255-1256; N L R B v Rugcrofter8 of Puerto Rico, Inc, 213
F 2d 537 (CA 1)
41 See cases cited supra at footnote 39 It is unnecessary in the context of this case to
decide whether, as contended by the General Counsel in his opening statement, the five
Charging Parties constituted a "residual unit," at least insofar as that term is used as a
term of art in representation proceedings
CRIMPTEX, INC. 465
under no statutory obligation to reduce to writing the economic benefits orally
promised. Rather, Respondent was free as economic necessity dictated to hire
replacements for the adamant strikers.
But Respondent did not merely, as economic exigencies evolved, hire replacements
for the economic strikers. Rather, 4 days before Respondent actually assigned
any replacements for the five Charging Parties, it effectively discharged each of
them and thereafter engaged in conduct that reveals that unconditional application
for reinstatement by all or any of the five would have been futile. This conclusion
I reach by considering the wording of Respondent's September 11 telegram to-
gether with its September 13 letter, as measured against Enriquez' conference with
Gonzalez, Respondent's subsequent rejection of the Charging Parties' September 19
unconditional request for reinstatement, and Pelletier's statement to the representa-
tives of the Union that the five were no longer employed. By refusing employment
to Gonzalez and to two of the four full-time "supervisors" even though job open-
ings were available for them, Respondent visited retribution upon them for their
concerted activities, and not merely for their adamant insistence upon a written
contract 41 Moreover, the same action revealed a purpose and intention of Re-
spondent to penalize each and all of the five for their joint union activity. I am
impelled to conclude, therefore, that at all times after September 13 unconditional
application by the five would have been futile and would have been similarly rejected
for the same motivating reason, and that on September 13 Respondent effectively
discharged each and all of them.
In view thereof, I conclude and find that in failing and refusing to reinstate the
five Charging Parties for the reason above found, Respondent violated Section 8(a)
(1) and (3) of the Act, and must remedy its unfair labor practices by offering
reinstatement and backpay to each of the Charging Parties in the manner described
below in the section entitled "The Remedy." 42
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act, involving discrimina-
tion against employees in regard to their hire and tenure of employment. Since
the Respondent's unfair labor practices "go to the very heart of the Act," 43 and
constitute a threat of other unfair labor practices in the future, I shall recommend
not only that the Respondent cease and desist from the unfair labor practices com-
mitted by it and take certain affirmative action in order to effectuate the policies of
the Act, but also that it cease and desist from infringing in any manner upon the
rights of its employees guaranteed by Section 7 of the Act 44
It has been found specifically that Respondent, on September 19, 1962, discrimi-
nated in regard to the hire and tenure of employment of Rafael Vega, Ramon M.
Cuevas, Luis A. Nazario, Angel Cruz, and Angel Gonzalez in violation of Section
8(a)(1) and (3) of the Act. I shall recommend that the Respondent offer the
aforesaid employees immediate and full reinstatement to their former or substan-
tially equivalent positions 45 without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of wages that they may have suffered
because of the discrimination against them, with backpay computed in the customary
manner,46 and with interest added thereto at the rate and compounded in the manner
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
41 This action would clearly violate Section 8(a) (1) of .the Act and invoke an appropri-
ate remedial order requiring Respondent to reinstate and pay backpay to Gonzalez and two
of the four unreplaced [Charging Parties.
42 See cases cited supra, at footnote 39.
43N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 , 536 (C.A. 4).
"See May Department Stores v. N.L.R.B., 326 U.S. 376, affg. as mod . 146 F. 2d 66
(CA. 8).
45 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
OF. W. Woolworth Co., 90 NLRB 289.
734-070-64-vol. 148-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. By dealing with Respondent concerning their wages, hours, and conditions
of work, Rafael Vega, Ramon M . Cueva, Luis A. Nazario, Angel Cruz, and Angel
Gonzalez constituted themselves a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
3. By discriminating in regard to the tenure of employment of Rafael Vega,
Ramon M . Cuevas, Luis A. Nazario, Angel Cruz, and Angel Gonzalez, thereby dis-
couraging membership in a labor organization of its employees , Respondent has en-
gaged in and is engaging in an unfair labor practice within the meaning of Section
8(a)(3) of the Act.
4. By the aforesaid act Respondent interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed by Section 7 of the Act, and en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Wyoming Radio, Inc. and National Association of Broadcast
Technicians and Engineers . Case No. AO-62. December 16,1963
ADVISORY OPINION
This is a petition filed by Wyoming Radio, Inc., herein called the
Employer, for an Advisory Opinion in conformity with Section 102.98
and 102.99 of the Board's Rules and Regulations, Series 8, as amended.
In pertinent part, the petition alleges as follows :
1. On August 2, 1963, the National Association of Broadcast Tech-
nicians and Engineers, herein called the Union, filed with the Pennsyl-
vania State Labor Relations Board unfair labor practice charges
against the Employer, alleging violations of the Pennsylvania Labor
Relations Act. That proceeding, by stipulation of the parties, has
been adjourned pending the issuance of the Advisory Opinion herein.
2. The Employer operates a commercial radio broadcasting station
at 38 East Main Street, Nanticoke, Pennsylvania.
3. Except for the allegation that the Employer offers its services,
directly and indirectly, to individuals who transact business inside
and outside the Commonwealth of Pennsylvania, the petition does not
set forth any other commerce data of the Employer. However, in an
earlier Advisory Opinion proceeding, the Board had considered the
Employer's operations, which, for the fiscal years 1959 and 1960, had
an annual gross volume of business of less than $100,000 per annum.'
1 "The Employer 's gross volume of business was $75,517 .07 for the fiscal year ending
August 29, 1959 , and was $85 ,387.94 for the fiscal year ending August 27, 1960. If the
Board were to project for a year the figure of $26 , 698.25 for the 15-week period between
August 27 to December 10, 1960, the gross volume of business would be $92, 553.93."
Wyoming Radio , Inc., 130 NLRB 390, 391.
145 NLRB No. 54.