Ellenville Handle Works, Inc.

National Labor Relations Board - Board Decisions

May 27, 1963

142 N.L.R.B. 787 (N.L.R.B. 1963)

ELLENVILLE HANDLE WORKS, INC. 787
Ellenville Handle Works , Inc. and Local 1968 , International
Brotherhood of Electrical Workers, AFL-CIO. Case No. 3-OA-
1902. May 27, 1963
DECISION AND ORDER
On February 27,1963, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, 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 Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following amendment :
The note contained in the Appendix concerning notification to em-
ployees if presently serving in the Armed Forces shall be deleted and
the following paragraph substituted therefor:
NoTE.-We will notify any of the above-named employees
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from
the Armed Forces.
I For the reasons given in his dissent in I8i8 Plumbing & Heating Co., 138 NLRB 716,
Member Rodgers would not grant any interest on backpay in this case.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed June 12 and August 1, 1962 , respec-
tively, by Local 1968, International Brotherhood of Electrical Workers, AFL-CIO
(herein called the Union ), the General Counsel of the National Labor Relations
Board issued a complaint dated August 10, 1962, against Ellenville Handle Works,
Inc. (herein called the Respondent or the Company ), alleging that the Respondent
142 NLRB No. 92.
712-548-64-vol. 142-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. In substance, the
complaint , as amended at the hearing, alleges that: ( 1) Respondent interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed by the
Act, by interrogation , threats, and other means ; and (2) Respondent discriminated
against employees , by terminating and refusing to reinstate or reemploy four em-
ployees, because of their membership in, and activities on behalf of, the Union.
The Respondent filed an answer denying the substantive allegations of the complaint
and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross
in Ellenville, New York, on October 10, 11, and 12 and November 1 and 2, 1962.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard , to introduce evidence , to examine and cross -examine wit-
nesses, to present oral argument , and to file briefs. Briefs were filed by the
Respondent and the General Counsel on December 3, 1962, which I have carefully
considered.
Upon the entire record in the case, and from my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
I. COMMERCE
The Respondent, a New York corporation whose principal plant, warehouses, and
place of business is located at Ellenville, New York, is engaged in the manufacture,
sale, and distribution of wooden paintbrush handles and broom handles and related
products. During the past 12 months, a representative period, the Respondent pur-
chased and caused to be delivered to its plant in New York from points and places
outside said State, goods and materials valued in excess of $50 ,000. The Respond-
ent concedes and, on the foregoing facts, I find that it is engaged in commerce
within the meaning of Section 2(6) and ( 7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The parties have stipulated and I find that Local 1968, International Brotherhood
of Electrical Workers, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is a closed family corporation which is owned and operated by
the Kossar family in the small resort town of Ellenville in the Catskill Mountains
of New York. The father, Harry Kossar, who is semiretired, is president of the
Company. The other officers are his sons: Emanuel ,' who is vice president, gen-
eral manager , and principal executive official of the Company ; Jules, who is also a
vice president and in charge of the broom handle division ; Morris, another vice
president , who is in charge of the sawmill ; and Milton , who is secretary-treasurer
and in charge of building and maintenance . In addition , Milton's wife, Dottie,
works in Respondent 's office, and Samuel Elman , apparently related by marriage,
is office manager.
As noted above, the Respondent manufactures wooden paintbrush handles and
broom handles from logs to the finished product. The Respondent also imports
handles from Japan which are further processed and finished at its plant. Respond-
ent's facilities consist of a sawmill where logs are processed to planks or boards,
a woodworking factory which includes a finishing department where the handles
are painted , and two warehouses . At all times material herein , the Company em-
ployed about 90 to 95 persons. Approximately 60 to 65 of these employees were
Puerto Ricans or of other Spanish origin , many of whom spoke and understood
very little English.
B. Union organization
In the latter part of April 1962 ,2 a group of about 20 to 25 employees met at the
home of one of the employees and decided to call the Union regarding organizing
Respondent 's employees . Employee Victor Vergara was designated as the person
' Fminuel Is sometimes referred to in the reeord na Mnnny
=All dates hereafter shall refer to the year 1962 unless otherwise specifically noted
ELLENVILLE HANDLE WORKS, INC. 789
to call the Union. That same evening he called Louis D. Kamen, the Union's
business manager, at Newburgh, New York, and arranged for the latter to furnish
union authorization cards. Vergara received the cards the next day, and they were
divided between two teams of employees: (1) Carmelo Martinez and Andras Muniz
Ramos, who were assigned to solicit the employees who lived on the outskirts of
Ellenville and outside the town limits; and (2) Vergara and Juan Quiles Gonzalez,
who undertook to solicit employees who were more centrally located within the
town of Ellenville. Both teams made their rounds and solicited the signatures of
employees on the same evening that the supply of cards was received. They met
later that evening in Vergara's house, checked the cards which had been signed,
found that they had secured 61 or 62 signatures, and mailed the cards by registered
mail to Kamen in Newburgh. All but one of the cards had been signed by em-
ployees of Puerto Rican or other Spanish origin.
In addition to the foregoing, during his lunch hours in the week of April 23 to 27,
Anthony Piscopo, the Union's shop steward at another plant in Ellenville, spoke
to employees and distributed union pamphlets at the entrance to the driveway lead-
ing to Respondent's plant, approximately 150 feet from the plant building. On
one occasion while Piscopo was engaged in this activity, he saw Vice President Jules
Kossar drive by him into the plant. On another such occasion, Piscopo saw Gen-
eral Manager Emanuel Kossar looking in his direction from the office window,
and later from the Respondent's loading platform.
On May 4, the Union advised Respondent by letter that it represented a majority
of its production and maintenance employees, and requested bargaining. The letter
was received by Respondent on May 5, but was first read by General Manager
Emanuel Kossar on Monday, May 7. On May 8, the Respondent, by letter, ex-
pressed doubt of the Union's claim of majority, and denied the request for bar-
gaining. On May 15, the Union filed a petition for certification as the representa-
tive of Respondent's production and maintenance employee?
C. Interference, restraint, and coercion
Respondent General Manager Emanuel Kossar conceded that the Company was
opposed to union representation of its employees. Kossar testified that when he
learned that the Union was attempting to organize the plant, he consulted with
Respondent's attorney "to plan out a campaign to try to keep [the] Union out."
1. The Respondent's letters to employees
As part of its campaign to defeat the Union, Respondent sent two letters to its
employees, both of which are alleged in the complaint as violations of Section 8(a)
(1) of the Act.
The first of these letters, dated June 15, read as follows:
To Our Employees:
As you know, in the recent past, as vacation time came near, we have given
wage increases to our employees.
We intended to do the same thing this year but have been told that, since
the Electrical Workers Union claims that most of you, in this woodworking
plant, want to be represented by this union of electrical workers, the govern-
ment could complain that we were unfair to the union if we gave you the wage
increases that you hope to get, and we would like to give, at this time.
In other words, if the Electrical Workers Union were not involved here, we
would be able to give you wage increases.
ELLENVILLE HANDLE WORKS.
In respect to this letter, Emanuel Kossar testified that in July 1961, he adopted a
policy of granting annual wage increases to employees just before vacation time
,,as a showing of our appreciation for their staying with us for a complete year."
He further testified that in pursuance of that policy, he gave increases in July 1961
to all employees who had not received an increase within the 2 months immediately
preceding July. However, when questioned as to whether this alleged policy of
annnual increases had been publicized, Kossar admitted that it had not been, and
that "this policy was something strictly in [his] own mind which was not conveyed
to the employees."
3 ,Case No. 3-RC-2861. After a hearing on June 1, the Regional Director ordered an
election which was conducted on July 12 and won by the Union. Thereafter, following
timely objections by Respondent, the Union withdrew its petition.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's brief urges that the above letter was "no more" than a lawful state-
ment of the Company's "legal position," and that it did not restrain, or coerce, or
"offend Section 8(c) of the Act." I do not agree. If Respondent really had a policy
of granting annual wage increases, it was under no legal impediment from continu-
ing to effectuate that policy during the pendency of the Union's petition for certifica-
tion.4 In any event, since its employees knew nothing about the alleged policy,
Respondent obviously was under no compulsion to explain why a wage increase
was not being given. Thus, in the light of Kossar's testimony that this letter was
a part of Respondent's campaign "to keep the Union out," it is quite evident that
the only purpose of Respondent's gratuitous letter was to defeat the Union by
placing on it the onus for the employees' loss of an alleged intended wage increase,
and thus discourage their continued adherence and interest in the Union. More-
over, I am not at all persuaded, either that the Respondent had any policy of
granting annual wage increases, or that but for the Union's petition, Respondent
intended to give its employees a wage increase. I base this conclusion on my general
lack of regard for the reliability of Kossar's testimony, on the absence of any proof,
other than Kossar's unsupported testimony, that any such policy existed, and on the
inconsistency between such an intended increase with Kossar's explanation for the lay-
off of five employees only 1 month earlier, that the layoff was required because of
the high ratio of direct labor costs to productive sales. Under all the foregoing cir-
cumstances, I regard Respondent's above letter to the employees as interference,
restraint, and coercion of employees' rights under the Act, and, therefore, a viola-
tion of Section 8 (a) (1) of the Act.5
A second letter was mailed to the employees on July 9, in both English and
Spanish.6 The English version of the letter read as follows:
JULY 9, 1962.
DEAR EMPLOYEE : Don't be confused by union promises of what they can
do for you . It's easy to promise.
Remember this when you vote:
Only the company can make your job better . And only if you-and we-
can make handles without strikes to make our cost so high we'll be forced to
buy foreign handles to stay in business.
This is not bunk. It's the truth and heaven help you if you don 't believe it
and if you don 't vote "NO." We may be forced out of making handles. Make
no mistake about it . If we must do this to stay in business , we will do it.
Speak with your wife or husband about this . Their future in Ellenville is
important to you. Make that future secure! Vote "NO"'
Sincerely yours,
ELLENVILLE HANDLE WORKS
The official interpreter 's translation of the Spanish version of the letter was as
follows:
DEAR EMPLOYEE : Don't get confused by this Union that promises what it
is going to do for you . It's very easy to promise.
Remember this when you go to vote.
Only this company can improve your job and only we and you can make
handles that wouldn 't be very expensive, provided there are no strikes. If not,
we will be forced to buy from foreign countries so we can remain in business.
These aren 't lies. It's the truth and God help you if you don 't believe it, and
if you don 't vote "NO," we will be forced to not make more handles.
Don't make a mistake about this . If we must do this to stay in business,
we will do it.
Talk with your wife or husband about this. The future of your dear ones
here in Ellenville is important.
Make this future for your family with security.
Vote "NO."
Sincerely ,
ELLENVILLE HANDLE WORKS.
Respondent adduced no testimony to explain either the purpose or meaning of
this letter. Its brief urges that the letter merely predicts "the economic consequences
of unionization ," and thus constitutes a lawful exercise of free speech protected by
Section 8(c) of the Act. I do not so construe the forceful language of this letter.
Hudson Optical, Inc., and Custom. Optical, Inc., 122 NLRB 149; Jackson Tale Manu-
Jacturing Company, 122 NLRB 764, 765-766
i Cf. Western Cottonoil Company, 95 NLRB 1433, 1434
6 This was just 3 days before the Board election.
ELLENVILLE HANDLE WORKS; INC. 791
In my view , the letter , rather than predicting future events , clearly threatens em-
ployees with loss of jobs, security, and future if they vote for the Union. In blunt
terms, the letter threatens that if the employees vote for the Union, Respondent
is determined that rather than pay higher costs, vaguely attributed to strikes, it
would eliminate its manufacturing operation and resort to importation of foreign
handles to stay in business. The letter does not explain how its business is threatened,
but it clearly warns "heaven help you . . . if you don't vote 'NO."' I conclude
that on its face, the letter obviously is not a mere prediction of future events pro-
tected by Section 8(c) of the Act, and that by sending such letter to its employees,
Respondent engaged in interference, restraint, and coercion of employees rights
guaranteed by the Act in violation of Section 8(a)(1) of the Act.7
2. Oral threats and interrogation
In addition to the letters, the General Counsel adduced testimony regarding a
number of oral threats and interrogation of employees by several members of the
Kossar family. All such threats and interrogation were denied by the particular
Kossar involved. The record in respect to these alleged violations of Section 8(a) (1)
was as follows:
According to employee Basilio Quiles, on May 9, General Manager Emanuel
Kossar told him, referring to the Union, that "the Spanish boys put [sic] him in
trouble," and that Kossar had a letter in his office "that 62 of you [Puerto Ricans]
have signed with the Union." Quiles further testified that on May 21,8 Kossar asked
him whether he knew anything about the Union. Quiles replied that he did not
know anything. Kossar responded that "he knew," and Quiles repeated that he
"didn't know." Kossar admitted that he had a conversation with Quiles on May 9,
but denied that there was any reference therein to Puerto Ricans, and none that 62
of them had signed union cards. Kossar further denied that the Union was men-
tioned during any of his conversations with Quiles, either on May 21 or any other
date.
The foregoing record in respect to the alleged interrogation of Quiles on May 21
presents three questions or issues for determination: (a) whether the interrogation
of Quiles in fact occurred, a question of credibility; (b) whether the interrogation,
if it occurred, constituted interference, restraint, or coercion within the meaning
of Section 8(a)(1) of the Act; and finally (c) whether, as contended by Respondent,
Quiles was a supervisor at the time of the interrogation and thus not an employee
whose such interrogation constitutes a violation of the Act
a. On the issue of credibility, Quiles was still employed by the Respondent when
he testified at the hearing in the case. He was not cross-examined regarding his
alleged interrogation by Kossar. He exhibited no animus towards Respondent or
its officials. The record discloses no interest by Quiles in the outcome of this
proceeding, and Kossar was asked but could give no reason why Quiles would be
likely to testify falsely regarding the May 21 interrogation It thus appears that
Quiles may be regarded as a disinterested witness.
Nevertheless, Respondent's brief urges that Quiles should not be credited. The
argument in support of this contention runs as follows: The only letter received
by Respondent from the Union, the demand for recognition, contained no reference
to the number of employees who had signed cards for the Union; the record does
not otherwise show how Kossar acquired knowledge of the number of union cards
which had been signed by employees; ergo, Quiles' testimony that on May 9 Kossar
told him that he had a letter in his office that 62 employees had "signed with the
Union" was false, and therefore his other testimony regarding the May 21 inter-
rogation should not be credited.
Despite its apparent logic, the fallacy in this argument is that it is based on several
assumptions which I am unwilling to make. It assumes that because Respondent
had no letter from the Union which disclosed that 62 employees had signed union
cards, Kossar could not possibly have so stated. That in turn assumes that Kossar
was always truthful in his statements to employees. It also assumes that Kossar
did not learn from other undisclosed sources the number of employees who actually
had signed However, contrary to these assumptions, I do not regard Kossar as a
7 International Union of Electrical, Radio and Machine Workers, AFI CIO (1 ECO
Electrical Products Corp.) v N.L R.B , 289 F 2d 757, 762-763 (C A D C ) • Texas Indue-
trtes, Inc, et al. 139 NLRB 365; Haynes Stellite Company. Division of Union Carbide
Corporation, 136 NLRB 95; T E. Mercer Trucking Co , 134 NLRB 859
8 This date was just 4 days after Respondent received notice of the Union's petition for
certiflcal ion
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truthful person. Indeed, I regard him as a witness who has little regard for veracity,
and whose testimony is not worthy of much credence.° I cannot, therefore, assume
that Quiles is not credible merely because what Kossar told him was not a fact.
For all the foregoing reasons, I credit Quiles' testimony regarding his conversations
with Kossar on May 9 and 21, and I do not credit Kossar's denials thereof.
b. The next question presented is whether the interrogation of Quiles comes
within the proscription of Section 8(a) (1) of the Act. Respondent urges that it
does not. However, in the light of Respondent's open hostility to the Union, its
termination of employees on May 11, hereinafter found to have been discriminatorily
motivated, and its other acts of restraint and coercion found above, I am persuaded
and conclude that the interrogation was a part of Respondent's campaign to keep
the Union out, and a violation of Section 8(a)(1), if Quiles, at the time of the
interrogation, was an employee and not a supervisor.
c. In respect to Quiles' alleged supervisory status, the record shows as follows:
On May 9, General Manager Emanuel Kossar offered Quiles a promotion to foreman
in the roughing department of the paintbrush handle division. Quiles replied that he
did not want the job because of his limited knowledge of English. Kossar assured
him that the language barrier would not be a problem since most of the employees
were of Spanish origin, and he promised Quiles that Superintendent John Russo
would assist him in the discharge of his job. Quiles apparently agreed to accept the
promotion and was given an increase of from $1.35 to $1.40 per hour. Quiles testi-
fied that before his raise, he worked on various machines in the roughing department,
and that when the foreman was busy, he also changed the setting on machines for
other employees. Quiles further testified that after he was told that he was being
made foreman, he continued to work on machines as before, but that when Super-
intendent Russo was present, the latter told him what work to assign to other em-
ployees, and when Russo was not there, he made such assignments However, when
asked who decided what work was supposed to be done, Quiles testified that "Russo"
told him what work to assign about 5 or 6 minutes before he made the assignment 10
Quiles denied that he had any authority to hire, fire, discipline, or to recommend
such action, and he also denied that he had any authority to give time off to em-
ployees There is no testimony that Quiles ever exercised any such authority and
none that be was ever told that he possessed such powers.ii Quiles admitted how-
ever that between March 9 and 31, when he was hospitalized for a serious injury to his
finger, he had the title of foreman.
The title assigned to Quiles is not dispositive of the issue as to whether Quiles
was a supervisor within the meaning of the Act 12 The test is whether he possessed
any of the indicia of authority set forth in the definition of supervisor in Section
2(11) of the Act. The only indication of any supervisory function possessed by
Quiles was his assignment of work to other employees. However, in view of
Quiles' credited testimony that this merely entailed carrying out Russo's instructions,
transmitted orally and by the production schedules, I do not regard this function
0 For example, Kossar's affidavit sworn to on June 1, stated- " . . since the filing of
the [Union's] petition herein, an overwhelming majority of the employees . have come
to me or other representatives of management and voluntarily stated that they had not
signed any cards . . [for the Union] Some have also stated . . . that they had been
subjected to pressure . . to sign cards . . . or that they signed but . . did not
know, and the Union had not explained, what they were signing" However, contrary to
his affidavit, Kossar testified in this proceeding, as follows, "No one came to me; not one
employee on my payroll. Not one came to me and either told me there was a possibility of
a union coming in ; that they were trying to organize a union or had anything at all to do
with the Union " Later on cross-examination, be testified, "No employee came to me and
said they signed cards," and "From [the date of] the petition to the first of June, no
employee came to me and said they signed cards." Another example of Kossar's lack of
credibility is his completely implausible testimony that when Respondent advertised for
factory help in Ellenville's two newspapers (2 months after the alleged discriminatory
layoff of employees), it was not seeking to hire employees, but was merely making a survey
to -determine how many employees were available for hire I am persuaded by the fore-
going and his other testimony that Kossar's responses to questions were motivated, not by
the truth, but by what he regarded at that moment to be in the Respondent's best interest.
11 The record also shows that Russo prepared a schedule which specified what work was
to be done in each department.
11 Emanuel Kossar testified that Quiles had authority to recommend hiring, firing, and
transfer of employees but, significantly, he did not testify that he ever told that to Quiles.
In any event , I do not feel that I can place any reliance on Kossar 's testimony.
I2 N L R B v Southern Bleachery & Print WorkS, Inc, 257 F. 2d 235, 239 (C.A. 4).
ELLENVILLE HANDLE WORKS, INC. 793
as involving any "use of independent judgment." Quiles' rate of pay after he
was allegedly made a supervisor was $1.40 per hour, less than other admittedly non-
supervisory employees received. Moreover, with so many Kossars actively su-
pervising the plant, and with Superintendent Russo devoting all his time to the paint-
brush handle division in which Quiles worked, the ratio of supervision to employees
is high, even without Quiles as a supervisor. Finally, in view of the foregoing
and Quiles' credited testimony that after his so-called promotion, he continued to
work on machines as before, I conclude that Quiles was no more than a leadman
or straw boss, and not a supervisor within the meaning of the Act.13
For all the foregoing reasons, I conclude that by Kossar's May 21 interrogation
of Quiles, Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act, and thereby engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
The complaint imputes additional restraint and coercion of employees to Re-
spondent Vice President Jules Kossar, based on the following incidents:
On or about June 5, according to employee Leonardo Correa, Vice President
Jules Kossar was outside the plant holding an imported broom handle. Correa
asked Kossar what he was going to do with the handle. Kossar replied that it
came from Hong Kong, that the Union 14 was not "going to be here," that he was
only going to keep 25 employees, and that he would fire the rest. Correa further
testified that Kossar said he would keep "the old men" whose wives also worked
for Respondent, and the wives "would be out."
According to employee Maximimo Sanchez, on or about June 22, while riding
with Jules Kossar to Kingston, New York, the latter told Sanchez that he could
not understand why the Puerto Ricans wanted a union at Respondent's plant when
they presently could deal directly with their boss in respect to wage increases.
Kossar also told Sanchez that if the Union wins, they would keep only 25 employees
and fire the rest. Kossar cited as an example of how it would be done, the case
of Sanchez' wife who worked for Respondent. She would be fired and Sanchez
retained.
Kossar admitted having conversations with both Correa and Sanchez but denied
making the threats about reduction of personnel attributed by them to him. In
respect to his conversation with Correa, Jules Kossar testified that there was no
reference to the Union at all. In respect to his conversation with Sanchez, Kossar
testified that Sanchez thanked him for going to Kingston to get Sanchez' brother-
in-law, an employee of Respondent, out of jail. According to Kossar, Sanchez
said he did not know why Kossar was doing this in view "of all the trouble the
Spanish people were causing us," he merely replied, "That's the way I am," and
"that was the end of the union conversation." However, in his affidavit to the
Board sworn to July 12, Kossar gave a completely different version of this con-
versation. Kossar's affidavit stated, "On the trip down to Kingston I discussed
the union with Max [Sanchez]. He started the conversation by saying he was
not in favor of the Union but some of the fellows are and they are making a big
mistake. I told him I thought they were making a mistake also."
Respondent urges that neither Correa nor Sanchez should be credited in respect
to the above conversations, inter alia, because the conversations were in English,
and because their understanding of that language is admittedly limited. At the
hearing, both Correa and Sanchez testified through an interpreter. However, both
testified that they understood and spoke English "a little bit." Moreover, since
Kossar admitted that he engaged in these conversations with the witnesses in English,
it is quite apparent that he must have regarded them as capable of understanding
what he said. I am therefore not persuaded that the conflict between their testi-
mony and his can be attributed to their lack of fluency in the English language.
Respondent further urges that Correa's testimony should not be credited be-
cause he is the husband of Sonia Correa, one of the alleged discriminatees herein,
13 In leaching this conclusion, I have considered not only the record in this ease, but
also the record in the representation proceeding, in which the Regional Director concluded
that Quiles was a supervisor, Quiles did not testify in that proceeding Thus, the Regional
Director's conclusion was based on the uncontradicted testimony of Emanuel Kossar, a
witness whom I do not credit, and on a different record than that on which my contrary
finding is based. Respondent does not dispute that the Regional Director's decision is not
binding upon me.
14 The transcript erroneously states (p 77, line 23, and p 78, line 8), "You're not going
to be here." My own notes, and the testimony of the witness on cross-examination clearly
shows that the word "you're" should read "Union " The record is corrected accordingly.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because his testimony regarding what Kossar said on this occasion varied some-
what from his affidavit to the Board.15 Obviously, Correa's marital relationship
to Sonia Correa, the discriminatee, makes him, if not an interested witness, at
least one who has cause for animus against Respondent. However, that alone
does not require disbelief of his testimony. Kossar's statement to the witness that
only 25 employees would be retained, necessarily implied that the rest would be
laid off or discharged. Thus, Correa's testimony at the hearing merely made explicit
his understanding of what was implicit in Kossar's statement to him. I, therefore,
do not regard the variance between Correa's testimony and affidavit as of sufficient
substance to require disbelief of his basic testimony, repeated in both this record
and the affidavit, that if the Union came in, only 25 employees would be retained.
Moreover, Correa's testimony regarding his June 5 conversation with Jules Kossar
is substantially the same as the testimony of Sanchez, a disinterested witness, regard-
ing a similar conversation with Jules Kossar on June 22, and both of these conversa-
tions conveyed a similar threat, although not as subtle, as that contained in Re-
spondent's July 9 letter to employees. I, therefore, credit the testimony of Correa
and Sanchez regarding their June 5 and 22 conversations with Jules Kossar.is
Respondent urges that, in any event, these conversations were mere predictions
of future events and, therefore, not coercive. For the same reasons set forth above
in connection with Respondent's July 9 letter to employees, I regard this contention
as devoid of merit, and conclude that by Jules Kossar's statements to Correa and
Sanchez, that if the Union came in the Company would reduce the work force to
25 employees, Respondent interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights, and thereby engaged in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
D. The discriminatory discharge of and refusal to rehire employees
As noted above, the Union's organizational campaign at Respondent's plant com-
menced in the latter part of April, and consisted of handbilling at the entrance to
the plant, and soliciting employees at their homes to sign union authorization cards.
The latter activity was performed, inter alia, by Victor Vergara and Carmelo
Martinez. As found above, as a result of such solicitation, 61 or 62 employees
signed union cards, all but 1 of whom were Puerto Ricans. On May 4, the Union
advised Respondent by letter that it represented a majority of the Company's em-
ployees, and demanded recognition and bargaining. The letter was received by
Respondent on May 5, but was not read by Emanuel Kossar, Respondent's general
manager and principal official, until Monday, May 7.
That Friday, May 11, Respondent "permanently" laid off five employees and gave
each of them an identical termination slip which stated that the dismissals were
"due to major changes in production methods and a lack of work." All of the
five employees so terminated were Puerto Ricans, and included among them were
Carmelo Martinez 17 and Victor Vergara, who, as noted above, had been active in
bringing the Union to the plant. The other three, Sonia Correa, Cristobal Roman,
and Santos Miranda, had signed union authorization cards. Since the layoff, none
of these employees has been offered reemployment by the Respondent.
Before the layoff occurred, and more specifically, on May 7, the day Emanuel
Kossar first read the Union's bargaining demand, he told Andras Muniz Ramos ie
"that some Puerto Ricans were giving him problems ... with the Union." Ramos
replied that he did not know anything about it.19 As found above, 2 days later, on
May 9, Emanuel Kossar offered Basilio Quiles a promotion to "foreman" of the
'5 Correa's affidavit stated that Kossar said , "When the Union be here I am only going
to keep 25 people. I [Correa ] said what are you going to do with the other guys He
[Kossar] said I don't know."
'e ,Conversely, the completely different versions given by Kossar in his testimony and
Board affidavit about the June 22 conversation with Sanchez, and his implausible testi-
mony, like that of his brother Emanuel, that Respondent's advertisement for factory help
wanted was inserted for the sole purpose of surveying the availability of labor, and not to
hire employees, impels me to the conclusion that his testimony is not worthy of much
reliance
17 The original charge alleged all five to be discriminatees, but the amended charge and
the complaint deleted the name of Carmelo Martinez
18 This employee is sometimes referred to in the record as Muniz and sometimes as Ramos.
'B My findings in respect to this conversation are based on the testimony of Ramos,
whom I credit. Kossar denied that he made this statement to Ramos, but as noted above,
I regard Kossar's testimony as generally unreliable, and therefore I do not credit his denial
ELLENVILLE HANDLE WORKS, INC. 795
roughing department of the paintbrush handle division, and told Quiles "That the
Spanish boys put [sic] him in trouble," and "that he had a letter ... that 62 of
you [the Spanish boys] had signed with the Union." On the day of the layoff,
May 11, while riding in a station wagon with Juan Quiles Gonzales,20 Vice Presi-
dent Jules Kossar asked Gonzalez if he knew "about the Union." The latter pro-
fessed lack of knowledge, and asked Kossar why he was inquiring. Kossar answered
that he had been told "that the union was coming to the factory," and that "today
at 5 p.m., five people were going to be fired," including Carmelo Martinez and
Victor Vergara 2i
At 9 a.m. on May 11, Superintendent Russo called Carmelo Martinez aside and
said, "You're a good boy but you're going to be hurt, not physically, but economi-
cally," and that "some other people [were] going to be hurt too." Russo also told
Martinez that Nareda Pons, an employee of Respondent, was friendly with Morris
Kossar, and may have told Kossar about the Union. Russo further said that the
source of his information was what he had heard "in the office." 22
From the foregoing, it seems quite apparent and I find that Respondent not only
had knowledge that its Puerto Rican employees were responsible for the advent
of the Union in the plant and the number of them who had signed union cards,
but also that Vergara and Martinez were connected with the union movement, as
indeed they were. Accordingly, when viewed in the light of Respondent's admitted
hostility to the Union, its subsequent acts of restraint and coercion of employees to
defeat the Union, and the timing of the layoff immediately after receipt of the
Union's majority claim and demand for recognition, the record establishes a strong
prima facie case that the termination of the five Puerto Rican employees, including
two who were leaders in the union movement, was motivated by union animus.
The Respondent contends that the layoff was motivated by economic considera-
tions unrelated to the Union. In this regard, General Manager Emanuel Kossar
testified that in the latter part of April, Respondent's accountant, Charles Weiss,
visited the plant and, after analyzing the operating statements for January, February,
and March, advised Kossar that the ratio of the Company's direct labor costs to
production sales had increased from 32 percent in January and February to 42
percent in March. Kossar further testified that upon receipt of his accountant's
advice, he promptly made a physical survey of the plant, decided that he had a
ROThis employees is sometimes referred to In the record as Quiles and sometimes as
Gonzalez
n My findings in respect to this conversation are based on the credited testimony of
Juan Quiles Gonzalez. Jules Kossar recalled the incident, but testified that he could not
remember the conversation. He then testified that he "believed" he told Gonzalez there
would be a layoff of some men , but was positive that lie did not mention the names of any
employees who would be terminated, because they were not in his (the broom handle)
department, and it was "no concern of his." In view of the family ownership of Respond-
ent, it is quite obvious that a layoff in any department would be a matter of "concern"
to all the Kossars, and thus Jules' response regarding lack of "concern" is, to say the
least, less than frank. Based on the foregoing, his earlier testimony regarding lack of
recollection of the conversation, and my belief that his testimony is generally not worthy
of credence , I do not credit his denial of Gonzalez' testimony, that Kossar said the im-
pending layoff would include Martinez and Vergara
=' Russo denied that this conversation took place, or that he ever talked with Martinez
about the Union. However, Russo also denied that he knew that "the policy of the com-
pany was hostile to the organization of its employees by the Union " Since such hostility
was Teadily admitted by Respondent and was apparent from Respondent's letters to its
employees, Russo's denial, in the light of his important position in the plant, quite appar-
ently is untrue For that reason, as well as my impression of his lack of candor based on
his demeanor , I do not credit Russo's denial of Martinez' testimony regarding the May 11
conversation In so concluding, I do not Imply that all the testimony of Martinez can he
credited . On the subject of his supervisory status, Martinez quite evidently attempted to
minimize his authority, contrary, in some Instances, to his testimony in the representation
proceeding. In resolving the conflict In the testimony of these two imperfect witnesses,
I have concluded, In the light of subsequent events which admittedly occurred, that
Martinez' testimony appears to be more persuasive Thus, upon his termination that
afternoon, Martinez promptly protested to Emanuel Kossar, that his dismissal was not for
lack of work, but because of the Union, a 'charge consistent with his prior knowledge of
such motivation from Russo. Moreover, Martinez' testimony regarding this conversation
with Russo Is also consistent with the credited testimony of Juan Quiles Gonzalez con-
cerning his similar conversation with Jules Kossar I therefore credit Martinez in this
respect.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surplus of labor that could be eliminated, and selected the five employees to be
terminated. However, although the layoff was thus decided on in the latter part of
April, it was not made until May 11, immediately after the Union made known its
claim for recognition. No explanation for this delay was offered by Respondent.
Moreover, none of the operating statements, on which the report of the accountant
was allegedly based, were produced by Respondent at the hearing, although admitted
available, and no explanation was offered by Respondent for the failure to do S0.23
Thus, Respondent's defense that the layoff was motivated by economic necessity is
based solely on the uncorroborated testimony of Emanuel Kossar, a witness, in
whose testimony, I place little reliance. Moreover, the unexplained failure of Re-
spondent to produce the operating statements upon which the accountant's analysis
was allegedly based, suggests the inference, which I draw, that such statements
would not have supported either the testimony that the ratio of direct labor costs
to productive sales had substantially increased, or the conclusion that a layoff of
employees was required.24 I conclude from the foregoing that Respondent's defense,
that the layoffs were economically motivated, is not supported by any probative
evidence.
This conclusion is further buttressed by the pretextual nature of the reasons as-
serted by Respondent for the layoff of these particular five employees
Carmelo Martinez 25 began his employment with Respondent in January 1957.
Except for a period of 1 year when he worked for another company in Ellenville,
Martinez was continuously employed by Respondent until May 11, 1962. At the
time of his layoff, Martinez was receiving $1.75 per hour. Plant Superintendent
Russo, who was hired by Respondent in January 1962, conceded that Martinez "was
knowledgeable and understood the workings of almost every department." Gen-
eral Manager Emanuel Kossar admitted that Martinez "was qualified to be a machine
operator in any department."
According to Emanuel Kossar, this experienced and valuable employee was laid
off for the following reasons- Before Russo was hired, Martinez was Kossar's
"assistant" in the roughing, turning, and sanding departments of the paintbrush handle
division. With the hiring of Russo, some of Martinez' responsibilities were taken
from him and he was put in charge of sorting, inventory, and trimmng or smooth-
ing handles. Kossar further testified that when Andras Muniz Ramos asked for
a raise (May 7), Kossar observed that Martinez had only 2 or 3 hours of work
per day, and he decided to merge the departments of Ramos and Martinez Accord-
ingly, since Kossar assertedly was receiving complaints from other supervisors that
Martinez "kept butting in their business," and threats that they would quit unless
Martinez was removed, he decided that Martinez was surplusage and should be
terminated.
In evaluating the worth of Kossar's testimony regarding his reasons for terminat-
ing Martinez, it is significant that: (1) neither of the two supervisors who allegedly
complained about Martinez "butting in" 26 was called by Respondent to corroborate
Kossar's testimony regarding such complaints, and no explanation was offered for
their failure to testify; 27 (2) when Martinez protested his termination, he was not
advised regarding any such complaints and was not told that this was the reason for
n Respondent also rested its case without calling Accountant Weiss After both sides
rested and oral argument was completed, Respondent's counsel explained that the account-
ant had not been called because he was still out of the country, and belatedly moved for
another continuance An earlier continuance of 3 weeks had been granted Respondent,
inter alia , to produce this witness. The motion was denied
24 2 Wigmore, Evidence ¢ 285 (3d ed ) ; NLRB v Sam Wallick and Sam K Schwalm,
d/b/a WalZick & Schwalm Company, et al., 198 F 2d 477, 483 (CA 3) • Whiten Machine
Works, 100 NLRB 279, 285 ; Hilma H Erikson and Eric E. Erickson d/b/a Detroit Plastic
Products Company, a co-partnership . et al, 121 NLRB 448, 499
25 Carmelo Martinez was a supervisor of Respondent, and thus, his discharge, even if
motivated by his union activities, would not violate Section 8(a) (3) of the Act. Duval
Engineering & Contracting Company, 132 NLRB 852 However, since Martinez was dis-
charged at the same time as the four alleged discriminatees, and Respondent denied that
any of the five were laid off because of union membership or activities, testimony was
taken regarding the motivation for Martinez ' discharge to the extent that it might cast
light upon the concurrent terminations of the other four
20 Robert Menges of the shop department, and Churchwell of the lathe department
21 The unexplained failure of Respondent to call Menges and Churchwell to testify re-
garding their alleged complaints about Martinez, suggests the inference, which I make,
that they would not have supported Kossar's testimony in this respect. See footnote 24,
supra.
ELLENVILLE HANDLE WORKS, INC. 797
his dismissal ; and (3 ) at the same time that Martinez , a concededly experienced and
qualified supervisor was being selected for discharge as surplusage , Kossar was
offering Basilio Quiles a promotion to "foreman" in the roughing department of
the paintbrush handle division , one of the departments which Martinez had super-
vised as Kossar's assistant before Russo was hired. In addition , accorded to the
credited testimony of Ramos, he was first made supervisor of the sanding depart-
ment on May 7 when his pay was increased to $1.55 per hour. Martinez had also
previously supervised this department as Kossar 's assistant . Thus, Martinez, an
experienced supervisor , was laid off, allegedly for lack of sufficient supervisory work,
at the same time that Respondent was promoting and offering promotions to Ramos
and Basilio Quiles to head departments which Martinez had previously supervised.
All of the foregoing impels my conclusion that no credence can be given to any of
Kossar 's testimony regarding the reasons for the selection of Martinez for dismissal,
and I conclude that the reasons asserted were purely pretextual.
Cristobal Roman and Santos Miranda were employed by Respondent in the rough-
ing department of the paintbrush handle division . Roman had worked for Re-
spondent since July 1960 , and Miranda since September 1960. They both signed
cards for the Union in the latter part of April 1962, and were "permanently" laid
off on May 11, 1962.
Emanuel Kossar testified that the reason he selected them for layoff was as follows:
Roman and Miranda worked as a team operating a powersaw which cut a T
shape out of a rectangular blank of wood as one of the initial steps in making paint-
brush handles. In January 1962, Respondent decided to cut its wooden blanks in
triangular shapes to effectuate a substantial saving of lumber. In connection with
this change in production methods, in January and February Respondent prepared
jigs and templates for cutting the precise angles and sizes required . In the middle
of April, Kossar returned from a trip to the Orient and issued instructions that the
triangling operation be put into "full effect" at once. According to Kossar, that
was accomplished "near the end of April." Since, according to Kossar , that re-
sulted in little further use of the T-saw,28 he only needed 8 of the 10 men in the
department , and decided to lay off the 2 who had operated the T -saw, notwith-
standing that they had greater seniority than many of those retained . However, in
the case of Sonia Correa, Kossar applied lack of seniority as a criteria for her
selection for layoff.
Kossar further testified that one of his reasons for their selection for layoff was
their lack of versatility , but he admitted on cross-examination that in addition to
the T-saw, they could effectively operate the cutoff saws and the "papermate."
Moreover , according to the credited testimony of Basilio Quiles, Roman and Miranda
had also worked on the planer and the table saws when there was no work for the
T-saw. Since a number of employees who were retained did nothing more than
remove wood from saws as they were cut by other operators , it is quite apparent
that Roman and Miranda were more versatile than many of those employees who
were retained.
Kossar also testified that he was motivated in selecting Roman and Miranda for
layoff because of their excessive absenteeism . According to Kossar , he determined
that an employee was absent if his payroll record showed that he worked less than
a 40-hour week Even by that standard , the payroll records of Roman and Miranda
discloses no excessive absenteeism by these employees 29 Under the foregoing cir-
cumstances, it is quite obvious that the alleged excessive absenteeism on the part of
Roman and Miranda could not have been the reason for their selection for layoff.
Moreover , the credited testimony of Basilio Quiles and Maximimo Sanchez clearly
discloses the absence of any necessity for a layoff in the roughing department, either
because of the changeover to triangling or for any other reason . In this regard,
they testified that before the layoff , when there was no work for the T -saw, Roman
and Miranda were assigned to work on other machines . They further testified that
on the Monday immediately following the layoff , Respondent hired and/or trans-
ferred other employees to work in their place in the roughing department , and that
the same level of employment , 10 men , has been maintained in the department since
21 Kossar testified that thereafter the T-Saw was used only on special large brush sizes
and for experimental jobs.
='B At one juncture , Kossar testified that he warned Roman and Miranda regarding their
excessive absenteeism in November or December 1961. When his attention was directed
to the fact that the payroll records showed no excessive absenteeism in that period, he
testified that it might have occurred in September or October 1961 , but this also was not
supported by Respondent 's records . Finally Kossar ruefully testified , "I am sorry I
brought it up."
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the layoff as had existed theretofore. In addition, they credibly testified, contrary
to Kossar, that since the layoff, a substantial quantity of work has been and is still
being performed on the T-saw.
All of the foregoing compels my conclusion that the reasons asserted by Respondent
in respect to both the necessity for a layoff in the roughing department, and for the
selection of Roman and Miranda for termination, cannot be given credence, and
quite apparently are pretextual.
Sonia Correa was hired by Respondent in early October 1961, and worked as an
operator on the round sander in the sanding department of the paintbrush handle
division. She signed a union authorization card in the latter part of April and was
terminated by Respondent on May 11.
Emanuel Kossar testified that while making his physical survey of the plant after
receipt of his accountant's report regarding excessive labor costs, he observed that
in the sanding department of the paintbrush handle division, employees were stand-
ing idle with nothing to do for 2 or 3 hours at a time, and, therefore, decided to
terminate one of them. According to Kossar, he then consulted with the sanding
department supervisor, Andras Muniz Ramos, who agreed with his selection of
Correa for termination.
However, in direct contradiction of Kossar, Ramos, whom I credit, denied that
he was ever consulted by Emanuel Kossar or anyone else regarding Correa's layoff.
Moreover, Ramos credibly testified that about a week or so after the layoff, Idian
Cruz was transferred from another department to the sanding department and there-
after operated the round sander on which Correa had previously worked. In the light
of the contradiction of Kossar's testimony that Correa was selected for layoff after
consultation with Ramos, and her prompt replacement by another employee, I am
impelled to the conclusion that the necessity for a layoff of anyone in this depart-
ment has not been established by any probative evidence.30
Victor Vergara was hired by Respondent in October 1961. His duties were to
receive and check in imported handles at Respondent's warehouse, to maintain an
inventory of the material so stored at the warehouse, and to deliver it by motor-
truck to the factory for further processing upon appropriate requisition therefor. In
addition, in his spare time, Vergara also sorted handles, called falloffs,31 according
to sizes, shapes, and styles. Vergara's initial rate of pay was $1 25 per hour, but he
received two raises in fairly rapid succession to bring his remuneration to $1.50
per hour. As found above, Vergara was one of the principal leaders of the Union's
organizing campaign in April 1962. He was terminated by Respondent on May 11.
General Manager Emanuel Kossar testified that the reason for Vergara's layoff
was that the volume of imports which Vergara was required to receive, check, store
in the warehouse, and deliver to the factory, was diminishing from four trailer loads
per month to two, and there was not sufficient work to keep Vergara busy Accord-
ing to Kossar, he therefore decided to terminate Vergara, and to assign his duties
to Brower, his other truckdriver, who also did not have sufficient work to keep him
busy full time. On cross-examination, Kossar was unable to furnish any informa-
tion regarding the quantity of imported handles which were received by Respondent
at any period of time following Vergara's layoff Moreover, Respondent brought
no records to the hearing from which an appraisal could be made regarding the
volume of handles imported by it in the periods before and after the layoff, and
offered no explanation for its failure to produce such records. Under these cir-
cumstances, including my general lack of belief in Kossar's testimony, I am im-
pelled to the inference, which I draw, that the records, if produced. would not have
supported Kossar's testimony regarding the reduction in the volume of imports for
Vergara to handle. Thus, the alleged economic necessity for Vergara's layoff has
not been substantiated by any probative evidence. Moreover, Vergara credibly
testified that just 3 days before he was laid off, General Manager Emanuel Kossar
told him that he wanted Vergara to start working full time getting the warehouse
ready for the summer, because he was going to hire two or three persons to help
him sort the falloffs. In the light of the foregoing, the reason, lack of sufficient
work, assigned by Respondent for Vergara's layoff, is quite apparently pretextual.
°Kossar also gave contradictory and implausible testimony. which I do not credit,
regarding the reason for his selection of Correa for layoff, including absenteeism and her
pregnancy for 3 months. As to absenteeism, Kossar testified that he did not compare
that of Correa with other employees in the department, and then testified that he did In
respect to pregnancy, Respondent had never before laid off an employee for this reason
si These are handles which fall off pins during the painting process, are accumulated in
boxes, and later stored in the warehouse, without regard to size , shape, or style
ELLENVILLE HANDLE WORKS, INC. 799
Additional reasons are disclosed by the record for my lack of credence in the
Respondent 's assertion that the layoff was motivated by economic considerations.
Kossar admitted that there was no diminution of Respondent 's orders on hand at the
time of the layoff. He further admitted that Respondent had never previously laid
off as many as five employees at one time. Moreover , according to Respondent's
office manager , Samuel Elman , the Company was plagued with absenteeism, a high
rate of turnover in several departments , and with difficulty in recruiting replace-
ments. These circumstances suggest that Respondent would not likely have laid
off five experienced employees whose services , even if not then required , would soon
be needed . In this regard , it is further significant that although Respondent, after
the layoff, recruited and hired 17 new employees , including some with no previous
experience in such work , none of the employees who were laid off were ever offered
employment by Respondent . It is fairly obvious from the record that all of the
laid-off employees were qualified to fill many of these job vacancies . 32 In addi-
tion, as noted above , on July 26, Respondent inserted 4- by 4- inch advertisements in
both of the local Ellenville papers The advertisements , in bold type , stated-
HELP WANTED
MALE AND FEMALE
FACTORY WORK
Apply.
ELLENVILLE HANDLE WORKS
ELLENVILLE, N.Y.
However , when in response to Respondent 's advertisements , Carmelo Martinez
telephoned the plant and asked both Dottie Kossar and Office Manager Samuel Elc' an
for "any kind of job, " he was brusquely advised that no work was available for him,
and was threatened with arrest if he persisted in calling.33 On cross-examination,
General Manager Emanuel Kossar conceded that there were jobs available for
Martinez. In attempting to explain why none was offered to him, Kossar reluctantly
admitted that it was because of Martinez ' postdischarge advocacy of the Union,
which Kossar regarded as disloyalty to "management " on the part of a former
supervisor . As previously noted , both Emanuel and Jules Kossar testified that
Respondent 's motive for advertising for "help wanted" was not to hire employees,
but merely to ascertain the availability of labor Since that information was readily
available to Respondent at the local office of the United States Employment Service,
I not only do not credit their testimony in this regard , but believe that Respondent
was in fact seeking factory help as the advertisement stated 34
In an attempt to explain their failure to offer reemployment to the laid-off
employees , Respondent 's witnesses , Emanuel and Jules Kossar and Samuel Elman,
testified that Respondent had a policy of not recalling or rehiring employees who
had previously been laid off. However, Jules Kossar admitted on cross-examina-
tion that the alleged policy was not adhered to in the case of Douglas Sanderson,
who was rehired after serving a term in the reformatory . In view of the fore-
going, and the admissions that Respondent was "plagued" with high turnover and
difficulty in recruiting replacements , the pursuance of such a policy would obviously
be contrary to Respondent's best interests , and therefore , I just do not believe their
testimony that Respondent had any such policy.
I conclude from all of the foregoing that Respondent 's asserted reasons for not
recalling or rehiring the laid-off employees , like those asserted for their termination,
cannot be credited , and quite apparently , are pretextual in nature.
E. Concluding findings in respect to discrimination
In summary, the credited record discloses that immediately after receiving the
Union's claim of majority status and demand for recognition and bargaining, and
with knowledge that its Puerto Rican employees were responsible for the Union's
advent, Respondent "permanently" laid off five of its Puerto Rican employees,
allegedly for economic reasons, including two who were the leaders of the union
movement and three others who had signed union cards. The economic necessity
si See Trial Examiner's Exhibits Nos. 1 through 5 . E.g., Joseph A Couture was hired
in the paintbrush handle department to clean up, load the truck, and drive it to the dump
and return Obviously, Vergara was qualified to do this work
83 Martinez telephoned four times.
"Dyer v. MacDougall , 201 F . 2d 265, 269 (C.A 2).
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the layoff was not substantiated by any company records or by any credible
probative testimony. Upon analysis, the reasons asserted by Respondent for the
layoffs of each of the five employees proved to be incredible. Thus, Martinez, an
experienced supervisor, was dismissed allegedly for lack of sufficient work at the
same time that Respondent was promoting two rank-and-file employees to supervi-
sory status, and later, Martinez was denied reemployment because of his advocacy
of the Union. Roman and Miranda, senior employees, were let go, allegedly
because they were surplus, but other employees were immediately transferred to
their department and/or hired to fill their jobs. Likewise Sonia Correa was dis-
missed because of alleged lack of work in her department, but shortly thereafter
another employee was transferred to fill her job. Vergara was laid off, allegedly
because of a decline in imports for him to handle, but no records were produced
to substantiate the alleged decrease in his work, no explanation was offered for not
doing so, and, since he had been notified just a few days earlier that work in the
warehouse was being expanded, the reason assigned for his layoff quite apparently
was pretextual. In addition, although admittedly plagued with high turnover and
difficulty in recruiting replacements, Respondent never offered employment to any
of its experienced laid-off employees, but instead advertised for workers and hired
new employees, many of whom had no experience, to perform jobs which the laid-off
employees were qualified to handle. The reasons asserted by Respondent for not
offering the old employees any of the job vacancies were quite apparently im-
plausible and incredible. All of the foregoing, when considered in the context of
Respondent's admitted hostility to the union representation of its employees, its
subsequent acts of interference, restraint, and coercion, and the timing of the layoff
immediately after receipt of the Union's claim of majority and demand for recogni-
tion, clearly compels the conclusion, which I make, that the layoff of the five em-
ployees was motivated by Respondent's hostility to the Union, and to discourage
the adherence of its employees thereto.
Respondent nevertheless contends that there is no proof that it had specific
knowledge that any of the laid-off employees were active or interested in the Union.
However, the credited testimony of Juan Quiles Gonzalez and Carmelo Martinez
regarding their May 11 conversations with Jules Kossar and Superintendent Russo.
respectively, discloses that the layoff was related to and motivated by the advent of
the Union in the plant, and that Respondent specifically knew of the union interest
of Vergara and Martinez. Although the other employees who were going to be
"hurt financially" by being laid off were not specifically named in these conversations,
they did disclose that others would be laid off for the same reason. In the light of the
foregoing, the inference is clear that Respondent knew and/or believed that all of
those laid off were union adherents.
For all the foregoing reasons I conclude that Respondent discriminatorily termi-
nated Sonia Correa, Santos Miranda, Cristobal Roman, and Victor Vergara on May
11, because of their membership in or activity on behalf of the Union, for the
purpose of discouraging such membership and adherence on the part of its employees,
and that thereby Respondent engaged in unfair labor practices within the meaning
of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily terminated the employment of
Sonia Correa, Santos Miranda, Cristobal Roman, and Victor Vergara, and has failed
and refused to reinstate them, I will recommend that the Respondent be ordered
to offer them immediate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may have suffered because of
the discrimination against them, by the payment to each of them of a sum of money
equal to the amount he normally would have earned as wages from the date of the
discrimination against him to the date of the offer of reinstatement , less his net earn-
ELLENVILLE HANDLE WORKS, INC. 801
ings during said period, with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.35
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and all other records necessary to facilitate the determination of
the amounts due under this recommended remedy.
In view of the nature and extent of the unfair labor practices committed, and
because discriminatory layoffs and discharges go to the very heart of the Act,36 the
commission of other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from "in
any other manner" infringing upon rights guaranteed to employees by Section 7
of the Act, in addition to those rights found to have been violated herein.
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. Local 1968, International Brotherhood of Electrical Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a) (3)
and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Ellenville Handle
Works, Inc , its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Local 1968, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, or any other labor organiza-
tion of its employees, by laying off, discharging, or refusing to reinstate any employee,
or in any other manner discriminating in regard to hire or tenure of employment,
or any term or condition of employment.
(b) Interrogating employees concerning union activities in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Threatening employees with loss of employment, withholding of wage in-
creases, or with other economic sanctions, or offering employees economic benefits,
to discourage union affiliation or adherence.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist Local 1968, International Brotherhood of Electrical Workers, AFL-CIO,
or any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from engaging
in such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Offer to Sonia Correa, Victor Vergara, Cristobal Roman, and Santos Miranda
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of earnings they may have suffered as a result of the discrimination against them,
as provided in the section of the Intermediate Report 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, time-
cards, personnel records and reports, and all other records as set forth in the section
of the Intermediate Report entitled "The Remedy."
(c) Post at its plant in Ellenville, New York, copies of the attached notice marked
"Appendix A." 37 Copies of said notice, to be furnished by the Regional Director
35 Backpay shall Include the payment of interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
30 N L.R B v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A 4).
sI In the event that this Recommended Order be 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 be enforced
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Third Region, shall, after being duly signed by a representative of the Re-
spondent, be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Third Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith 38
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
38 In the event that this Recommended Order he adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local
1968, International Brotherhood of Electrical Workers, AFL-CIO, or any
other labor organization, by laying off, discharging, or refusing to reinstate
any of our employees, or in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT coercively or unlawfully interrogate our employees regard-
ing union activities.
WE WILL NOT threaten our employees with loss of employment, withholding
of wage increases, or with other economic sanctions , nor will we offer our
employees economic benefits to discourage their union affiliation or adherence.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Local 1968, International Brotherhood of Elec-
trical Workers, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities.
WE WILL offer to Victor Vergara, Cristobal Roman, Santos Miranda, and
Sonia Correa immediate and full reinstatement to their former or substan-
tially equivalent position, without prejudice to any seniority or other rights
and privileges previously enjoyed, and make them whole for any loss of pay
suffered as result of the discrimination against them.
All our employees are free to become or remain or to refrain from becoming
or remaining members of Local 1968, International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor organization
ELLENVILLE HANDLE WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, 14202,
Telephone No. T1. 6-1782, if they have any questions concerning this notice or
compliance with its provisions.