Perma Vinyl Corp.

National Labor Relations Board - Board DecisionsApr 14, 1965

151 N.L.R.B. 1679 (N.L.R.B. 1965)

PERMA VINYL CORPORATION 1679 an object thereof is to force or require Smithtown Economist, Inc , to cease using, selling , handling, transporting , or otherwise dealing in the products of, or to cease doing business with Alden Press, Inc. CHICAGO TYPOGRAPHICAL UNION No. 16, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) CHICAGO STEREOTYPERS UNION No. 4, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois , Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Perma Vinyl Corporation and International Ladies' Garment Workers Union, AFL-CIO. Case No. 12-CA-2946. April 14, 1965 DECISION AND ORDER On December 23, 1964, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his attached Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and he recommended the dismissal of these allegations. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications hereinafter set forth. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a) (1) of the Act by engaging in certain conduct, 151 NLRB No. 157. 1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as more fully set forth in his Decision, and violated Section 8 (a) (3) and (1) by the discriminatory discharge on April 27 and 28, 1964, of George Munoz, Max Labrador, and George and Juan Jose Tarajano.1 We do not agree, however, with the Trial Examiner's further finding that the Respondent did not violate Section 8 (a) (1) by certain other conduct, and did not violate Section 8(a) (3) by the discharge of Arturo Diaz. The Respondent employs some 60 to 80 employees at two plants in Miami, Florida, and is engaged in the manufacture and sale of plastic products. Arturo Diaz was employed by the Respondent as a cleaner or porter. He signed a union card shortly after the union campaign began. Louis Sorosky, the Respondent's president, heard about the union campaign for the first time on April 24 or 25. On April 27, Sorosky told Cueto, Diaz' nephew, to tell Diaz not to come to work the next day. On the same day, the Respondent unlawfully discharged George Munoz and Max Labrador. That night Cueto went to his uncle's house and told him not to report in the morning. Nevertheless, Diaz did come to work the next day, April 28, but was told by Sorosky that he was not needed. On the same day, the Respondent unlawfully discharged the Tarajanos. A few days later, Sorosky unlawfully interrogated Cueto as to whether he or his uncles, Arturo and Francisco Diaz, knew any- thing about the Union. Although Cueto denied that any of them had such knowledge, Sorosky rejected the denial. Seven or eight days after Diaz' termination, he was reemployed by the Respondent. Shortly thereafter, Diaz had a conversation with Mollie Sorosky, the vice president of the Respondent. Cueto acted as interpreter, as Diaz does not speak English. Mrs. Sorosky told Diaz that a union would not permit him to work at more than one job, that she could therefore give him only 3 days' work a week if a union represented the employees, and that the Union would not be good for him. Mrs. Sorosky then turned to another employee who had just entered the room and told him to tell Diaz the same thing. Later, Louis Sorosky, who speaks Spanish, told Diaz that he had a list of people who had joined the Union and that Diaz' name was on it. The list referred to was, in fact, a copy of the charge filed herein by the Union, containing the names of the alleged discriminatees, Although Diaz saw the list on Sorosky's desk, it revealed nothing to him because he could not read English. 'Referred to in the Trial Examiner 's Decision and his Recommended Order and notice as "Juan" Tarajano , or "Jose" Tarajano. 2 At one point in his Decision , the Trial Examiner erroneously stated that Cueto testi- fied through an interpreter. PERMA VINYL CORPORATION 1681 Contrary to the Trial Examiner, we find that the Soroskys' remarks to Diaz were coercive and hence violative of Section 8(a) (1) of the Act. We also find, contrary to the Trial Examiner, that Diaz' discharge was in violation of the Act. The Trial Examiner found that, although the circumstances of Diaz' discharge were suspicious, the discharge was not discriminatory because the evidence failed to disclose company knowledge of Diaz' union activity. In our view, the circumstances of Diaz' discharge establish by a clear preponder- ance of the evidence, that Diaz' discharge was discriminatorily motivated. Thus, Sorosky testified that Diaz was discharged be- cause his work was unsatisfactory. There is, however, no evidence that Diaz had been reprimanded, nor had he ever been given any advance warning of discharge, and he was rehired within 7 or 8 days.3 Moreover, Plant Manager Serritella testified, inconsistently with Sorosky, to the effect that Diaz was discharged for economic reasons. Furthermore, the record shows that all five discharges, including that of Diaz, occurred only 3 or 4 days after Sorosky first learned of a union campaign among his employees; that within a few days after the discharge Sorosky expressed in vehement language his belief that Diaz was active in union affairs; and that, after the Respondent recalled Diaz to work, both its president and its vice president subjected him to repeated intimidation and coercion in an attempt to turn him away from the Union. Under all the circumstances, therefore, including the Respondent's union animus, its intimidation and coercion of Diaz, the timing and manner of his discharge, and the inconsistent reasons given therefor, we find that the Respondent knew or strongly suspected that Diaz was engaged in union activities and that its purpose in discharging him was to discourage membership in the Union. We therefore conclude that the discharge violated Section 8(a) (3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the Respondent, Perma Vinyl Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: 1. In paragraph 2(a) of the Recommended Order, insert the words "and Arturo Diaz" between the words "them" and "whole." 3 As found by the Trial Examiner, there is evidence that Arturo Diaz was reemployed because the Respondent wished to reemploy his brother Francisco and that this became a "package deal" 783-133-66-vol 151 107 1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Add the following paragraph 2(b) to the Recommended Order and reletter the subsequent paragraphs consecutively: "(b) Notify George Munoz, Max Labrador, and George and Juan Jose Tarajano, if they are 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 Training and Service Act, of 1948, as amended, after discharge from the Armed Forces. 3. Delete the first indented paragraph of the Notice and sub- stitute therefor the following: WWE WILL NOT unlawfully interrogate or threaten our employees with respect to their union activities or those of other employees. 4. In the third indented paragraph of the Notice, insert the words "and Arturo Diaz" between the words "them" and "for." 5. The following is to be added immediately above the double line at the bottom of the Notice attached to the Trial Examiner's Decision: NOIT.-We will notify George Munoz, Max Labrador, George Tarajano, and Juan Jose Tarajano, if they are presently serv- ing 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 Training and Service Act of 1948, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed May 22, 1964,1 by International Ladies' Garment Workers Union, AFL-CIO, herein the Garment Workers or the Union , against Perma Vinyl Corporation, herein Perma Vinyl or the Respondent, the General Counsel issued a complaint and amendment to the complaint alleging the Respondent violated Sec- tion 8 (a) (1) and (3) of the Act. The answer denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard before Trial Examiner John F. Funke at Miami, Florida, on September 16 and 18. At the conclusion of the hearing the parties were given leave to file briefs. Proposed findings and con- clusions were received from the Respondent on October 29.2 Upon the entire record in this case, and from my observation of the witnesses, I make the following - FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Floiida corporation having its principal places of business at Miami, Florida, where it is engaged in the manufacture and sale of plastic pipe fit- tings and other plastic products. During the past calendar year Respondent has shipped to places outside the State of Florida goods and products valued in excess of $50,000. Respondent is engaged in commerce within the meaning of the Act. Unless otherwise noted all dates refer to 1964 2 The General Counsel' s motion to correct the record is granted PERMA VINYL CORPORATION 1683 II. LABOR ORGANIZATION INVOLVED The Garment Workers is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES A The evidence 1. The discharges Five employees were discharged by Perma Vinyl on April 27 and 28 and all dis- charges are alleged to have been in violation of Section 8(a)(3) of the Act. George Munoz, employed in maintenance, was notified by Plant Superintendent Vincent Serritella just before quitting time on Monday, April 27, that Louis Sorosky, presi- dent of Perma Vinyl wanted to see him in the office Sorosky told him he was termi- nated Max Labrador, an electrician, was called at his home that same Monday night (Labrador had worked until only 4 p.m.) by Sorosky and told not to report the next day. George Tarajano, a grinder, reported to work shortly before 8 o'clock on Tuesday, April 28. He was told not to go into the plant until George Yao, plant engineer, arrived. He was then told he was laid off. Juan Tarajano, a brother of George Tarajano employed in the extrusion department, worked from midnight until 8 a in. On the morning of April 28 shortly before his shift was finished he was told by his brother George that he was wanted at the office. When he reported he was told by Yao that he, too, was laid off. Arturo Diaz,3 the cleaner, was notified by his nephew, Ramon Cueto, on the night of April 27 that he was not to report the next day but he did report and was told by Sorosky that he was not needed. 2. The testimony of the dischargees George Munoz testified that his primary responsibility for a period of at least 2 or 3 months prior to his discharge was to repair and get into operation a 48-ounce molding machine. (The machine had been purchased second hand.) He was assisted in this work by Max Labrador, the electrician. There is considerable testimony which established the anxiety on the part of Sorosky to have this machine function- ing. Munoz admitted that Sorosky had threatened to discontinue the molding depart- ment if the machine did not work and that he received at least one memo from Sorosky relating to the machine.4 Munoz stated that about 2 weeks before he was terminated he and Max Labrador and "another fellow" distributed authorization cards on behalf of the Garment Workers and that he secured eight or nine signatures during lunch time, before work started, and outside the plant in the main yard. There is no testimony that any supervisor observed this activity. Munoz testified that when he was called to the office in the late afternoon of April 27 Sorosky, Serritella, and Yao were present. Sorosky told him he was laid off permanently for economic reasons but added that he wanted to have "a little conversation " Sorosky told him "that what was going on was an intention of bring- ing in the union into the plant by the men." 5 When Munoz denied any knowledge of union organization Sorosky told him that he (Sorosky) had received a telephone call from a woman who stated that her husband, an employee of Perma Vinyl, was sick because "he was forced to, by the boys over here, to sign the card, and she called me up and told me that and I am pretty much upset about it, because he is one of my men." There was further talk by Sorosky concerning this telephone conversa- tion and an inquiry by Sorosky as to what Munoz knew of the Union. (Munoz again denied any knowledge.) A telephone call was then received by Yao who wrote a note to Sorosky. Sorosky then made a call and Munoz quotes him as saying: I got just notice from the office that we are about to receive a letter, and in the letter it says we are notified that you fellows want to be represented, you are working for the union. This letter is signed by three people .. One is George, and the other is Max and the other one is George. Diaz testified through an Interpreter The machine was not operating when Munoz and Labrador were terminated. Munoz admitted that Sorosky had fixed deadlines for the operation of the machine and that one of these was the annual stockholder's meeting. 5 Munoz had some difficulty expressing himself with clarity and precision in English. 1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sorosky then told Yao it could not be him and it could not be George Knisley (an invoice clerk employed by Perma Vinyl) so it had to be another Geoige. Munoz then left. Max Labrador testified that his wife called him to the telephone on the evening of April 27 and: I gotto phone. Who is speaking, Max? Yes, this is Max. Mr. Sorosky. He said, "Max, don't come to work tomorrow, because 1 don't need you." I say, "Thanks," and hang the phone. The next day he went to the plant to get his tools and was told by the guard that he could not enter due to orders from Sorosky. He waited until Yao arrived and asked Yao the reason for his termination. Yao told him he had only received the orders and went with Labrador while he got his tools Labrador testified that about 2 weeks prior to his discharge some employees (not identified) urged him to start a union because they had no protection. Labrador met with Juan Lozanzo, an organizer for the Garment Workers, at the plant's restroom at about 6.30 or 7 a m. and Lozanzo gave him about 50 cards to distribute. Labrador passed out some 16 to 19 cards in the plant area. On cross-examination Labrador testified that he worked on the 48-ounce molding machine an average of 10 hours a week He never saw a memo relating to the machine but he did hear from Serritella and Yao that if the machine was not working by a certain date (he could not remember the date) Sorosky was going to shut down the molding department.G Labrador denied that he had even been requested to Soiosky to make a design of the molding machine and had refused to do so. George Tarajano testified that he signed an authorization card about 2 weeks before his termination. He was given no reason by Yao for his termination when he reported for work on Tuesday, April 28, nor did he receive an explanation at any other time. He was cross-examined as to his driving of a fork lift and admitted that Yao had told him not to drive it any more because someone had run it into a wall (This occurred about 11/2 or 2 months before his discharge.) Juan Tarajano, like his brother, signed a union card about 2 weeks before his ter- mination (neither brother engaged in other union activity) and was given no reason for his discharge by Yao except that it was Sorosky's orders It is not contradicted that Sorosky had tried to reach the brothers by telephone on Monday night to notify them of their discharge but had failed. Arturo Diaz testified that he had signed a union card at the request of Max Labra- dor about 20 days before he was terminated on April 28. He was reemployed by Perma Vinyl about 7 or 8 days later under circumstances which the record does not disclose.? Shortly after his reinstatement he had a conversation with Mollie Sorosky, vice president of Perma Vinyl, in which his nephew, Ramon Cueto, acted as inter- preters In this conversation Mrs. Sorosky told him that if he joined the Union he would work less time A few days later he had a conversation with Louis Sorosky (Sorosky speaks Spanish) in which Sorosky told him that the Union would not be any good for him. Later Sorosky told him he had a list of employees who had joined the Union and that his name was on it. Diaz stated Sorosky had the list on his desk but he could not read it 3. Other witnesses for the General Counsel Mario Munoz (no relation to George Munoz) testified that on a Monday or Tues- day in April or May (he thought it was the day Munoz and Tarajano were laid off) he was called to the office of Louis Sorosky to discuss his testimony respecting an accident that had occurred in the plant. Also present were Yao and Serritella. Dur- ing this conversation Sorosky asked Munoz what he knew about a union "being intro- duced in the company," told him that George Munoz and George Tarajano were the ones who were trying to get it in and that he was going to lay them off. Sorosky told Munoz to notify him, Serritella, or Yao if he learned anything about the Union Munoz admitted that Sorosky told him he was laying off George Munoz to save money and that there had been frequent threats to close the molding department because the molding machine was not working. Later lie denied that either Yao or Serritella gave biro this information, stating that he heard "rumors" of such a threat The inconsistency is not serious and I do not find it reflects on his credibility 7There is evidence that he was reemployed because the respondent wished to reemploy his brother and that this became a "package deal " e The issue of credibility as to this conversation lies, of course, between Cueto and Mollie Sorosky PERMA VINYL CORPORATION 1685 Ramon Cueto, an employee at Perma Vinyl, testified that on the Monday his uncle, Arturo Diaz, was laid off he was told by Louis Sorosky to tell Diaz "not to come to work the next day in the morning because he was not feeling right." Cueto went to his uncle's house that night and told him not to report in the morning. The next day Cueto had another conversation with Sorosky in the presence of David Anderson 9 in which Sorosky asked him if he knew anything about the Union and told him that "already four people had gone because of that, and told me to tell them to watch out or more people would be gone." A few days later Sorosky asked him in the presence of Alfred Railer 10 if either he or his uncles knew anything about the Union and when he denied having any knowledge Sorosky replied, "You know what we call that in English, bull -t." A few days later Cuerto had a conversation with Mrs Sorosky in which she told him the Union would not be good for the employees, that it would do them harm and that they should not vote for it. She also mentioned a former employee named Perez and told Cueto to ask him what he thought about unions and asked Cueto if anyone had approached him to sign a card. After Arthuro Diaz returned to work Mrs. Sorosky, using Cueto as an interpreter, told Diaz not to vote for the Union because it was not going to be good for the workers and that he would be working only 3 days a week. Another employee named Felix Romano then entered the room and Mrs. Sorosky told Romano 11 to tell Diaz the same thing. 4. Respondent's witnesses Louis Sorosky testified and the parties stipulated that Perma Vinyl had profits of $125,000 for 1960 and $167,573 for 1961. In 1962 Respondent showed a loss of $19,243 and for the year ending September 30, 1963, a loss of $21,044. Sorosky testified that in 1963 Respondent borrowed $250,000 from Gulf Line and $90,000 from the Boulevard National Bank and that the operations of the plant had been analyzed by a representative of Gulf.12 It was Sorosky's testimony that the opera- tion of the 48-ounce molding machine was essential to a profitable molding depart- ment and that it had been the primary responsibility of Munoz and Labrador to put the machine into operation. Sorosky emphasized the importance of the machine to Munoz, stated that one of the deadlines he fixed for its operation was March 30, the date of the stockholders' annual meeting, and told him that if it were not operating the molding and maintenance departments might have to be closed. Sorosky further testified that the pump on the machine had been damaged through allegedly faulty workmanship on the part of either Munoz or Labrador and that he received an estimate of $1,100 as the cost of repairing the machine. The damage occurred about 1 week before he discharged them. In testimony which is not too clear Sorosky alleged that Labrador had refused to make a drawing of the machine noting the needed repairs because Yao, the plant engineer, was making more money than he was.13 As to the immediate circumstances of the discharge of George Munoz, Sorosky testified that he met with Munoz in the presence of Serritella and Yao on the after- noon of April 27 and talked with him for about 2 hours. In this conversation he told Munoz that the reasons were purely financial and that he would try to give Munoz some work at his shop (Munoz had operated his own shop). During the meet- ing Sorosky received a call from George Knisley, the invoice clerk, who told him that he (Sorosky) was supposed to "have gotten a letter, registered mail, where I would be stopped from laying off any personnel from then on." 14 0 Anderson denied knowledge of any such conversation 10 Railer denied knowledge of any such conversation 11 Romano was not called as a witness 12 Sorosky also offered payroll records (Respondent's Exhibit No 4) to show the declin- ing payroll during this period in suppoi t of economic justification of the layoffs. While the payroll net for the week ending May 1 shows $7,752 the immediately preceding payroll for Apnl 24 is $5,704 and for the following week $5,538. During the next 2 weeks the payroll dipped tinder $5,000 but for May 20 it jumped to $6,820. I do not know what inference can be drawn from such fluctuations. "This iefusal was repeated several times. Asked by the Trial Examiner why Labrador was not discharged for refusal to obey ordeis Sorosky replied, "I'm too good a man (Labrador testified that he was incapable of making such a design ) 14Knisley explained that he made this call after he was asked by a shipping employee (unidentified) if he had received a letter from "the boys in back' concerning the firing of employees. After talking to Sorosky, Knisley called the Alianii office (the meeting was held at the Hialeah office) and found that no such letter had been received 1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When he received Knisley's call Sorosky remarked that it was a coincidence because that on either Friday or Saturday night he had received an anonymous call from a woman (Sorosky was able to identify her from the conversation) who told him that George Yao was a communist and was organizing a union in the shop and that her husband, a Cuban employed by Sorosky, would not join the Union. According to Sorosky, Munoz then asked him if he was accusing him (Munoz) of organizing a union, a fact Sorosky denied 15 Following the discharge of Munoz and Labrador, Sorosky hired Donald Beckwith, a specialist in molding machines to repair the molder. Sorosky stated that the machine (at the time of the hearing) was ready to operate but that the Company needed to purchase some dies before it could be put in production.16 With respect to the discharge of the Tarajano brothers and Arturo Diaz, Sorosky stated that they were on a list prepared by Vincent Serritella of employees who could be discharged. However as to George Tarajano, Sorosky testified that although he was on Serritella's list he was specifically discharged because Sorosky had observed him handling a fork lift carelessly and was afraid he might damage valuable machinery. Serritella's testimony as to these discharges was evasive, inconclusive, and contra- dictory. At one point he said it was his decision to fire all five of the employees and at another point that the decision was the result of an understanding between himself and Sorosky. While he corroborated Sorosky's testimony as to warnings given Munoz and Labrador he gave no reason for his selection of the Tarajano brothers Sorosky testified that Arturo Diaz was discharged because he was not a good porter and denied that he knew of any union activity on his part at the time. He was rehired on May 7 when his brother Francisco was rehired and Arturo was included as a part of a package deal. Sorosky denied the allegations made by Cueto in his testimony. Mrs. Sorosky admitted that when Diaz was reemployed she told him, through Cueto, that they had 3 days' work for him as a cleaner and that if he wanted to work 6 days he would have to work wherever assigned She added that she did not think the Union would do him any good since under a union he could work only at one job. When inquiry was directed to the testimony of Mario Munoz it seems best to set forth Sorosky's answers verbatim: Q. (By Mr. CREEL.) Do you recall such a conversation? A. No. Mario Munoz, the statement he made was all mixed up. He does not understand English and he gets mixed up. The boy that was hurt on the grinder was Cervando Garcia, and that was before we discharged Munoz and Max Labrador, because George Tarajano took his job as a grinder, because Cervando Garcia at that time was doing most of the grinding in the plant. I did not mention anything about a union because I did not know anything about a union. Q. All right. Did you at any time say anything to Mario Lopez Munoz in substance to the effect of asking him if there was any union activity, and if so, would he report it? A After I got the letter. Bulletins came from the union, so I had made up some bulletins, and I asked Mario Munoz if there was any dissatisfaction in the molding department, and why do some of the boys want to bring a union in here. That was not before the time I discharged George Munoz or any of the other bons. Q You just asked him if there was any dissatisfaction in the molding department? A. That's right Q. You couldn't understand why some of the boys wanted a union? A That's right, because he was the oldest employee in the molding department. Q. Did you ask him to report to you any activity about unions? A. No, I asked him if he knew anyone that was dissatisfied, but I never asked him to report to me. 15 Serritella , who was present , testified that Sorosky asked Munoz if he knew anything about the Union and that it was then that Munoz made his denial Ile also testified that he did not learn of the call respecting Yao during this conversation and that the call was not mentioned-only the call received by Knisley 'e Beckwith testified that he worked on the machine an average of 5 hours a day for 6 weeks and that it was ready to operate except for the defective pump He also stated that all the work previously done on the machine had to he reworked PERMA VINYL CORPORATION 1687 Finally, to establish that Respondent was reducing employment for economic rea- sons, Sorosky submitted the following statistics relating to the extrusion and molding departments: Date Department Labor cost Employees April 23---------------------------- Extrusion ---------------------------- $1,381 10 18 Molding------------------------------ 788.73 16 April 30-------------------------- Extrusion----------------------------- 1,439 32 17 Moldung------------------------------ 1,164 88 17 May 7------------------------------- Extrusion----------------------------- 1,516 91 16 Molding------------------------------ 855 81 13 May 14------------------------------ Extrusiml----------------------------- 1,170 31 16 Moldmg------------------------------- 880 79 15 May 21----------------------------- Extrusion----------------------------- 1, 125 76 14 Molding-------------- ---- 944 77 14 May 29---------------------------- Extrusion_____________________________ 1,087 24 13 Molding------------------------------- 774 91 12 June 5---------------- ---- Extrusion------- ----------- ----------- 1,024 69 13 Molding ------------------------------ 891 43 13 Sorosky testified that at the time of the hearing, however, the plant was in full pro- duction and for the first time in its history was operating 7 days a week. B. Conclusions The case rests on credibility and the resolution is made the more difficult by the fact that few, if any, of the witnesses gave clear and coherent testimony. This was not the fault of counsel for the interrogation was designed to elicit specific answers but was largely due to the fact that many of the witnesses had difficulty with the language. The allegations of violations of Section 8(a)(1) shall be dealt with first. I credit the testimony of Mario Munoz that Sorosky asked him what he knew about a union in the Company and asked him to report anything he learned about a union. Since this occurred at the same time Sorosky told him George Munoz and George Tarajano were the ones who were trying to get the Union in and that he was laying them off because the payroll was too high I find the remarks essentially coer- cive. I find Sorosky's denial (set forth above) far from convincing. I also credit Cueto's testimony as to interrogation by Sorosky. The evidence in support of paragraph 4(b) of the complaint I find insufficient. All that Diaz testified to was that on a day after his reemployment Sorosky showed him a list (Diaz could not read it), told him that it was a list of people who had signed for the Union and that his name was on it. The record indicates that the list referred to was the charge filed by the Union which contained the names of alleged discriminatees. Under these circumstances I see no coercion in Sorosky's comment. Had the list been prepared by Sorosky a different question would have been presented. As to 4(c) of the complaint, I find no testimony to support this allegation. As to 4(d) of the amended complaint I accept Mrs. Sorosky's testimony that she told Diaz that the Union would not permit him to work at more than one job and that he would therefore work only 3 days a week if a union represented the employ- ees. Since this statement was not made in a context of threatened reprisal by the Company for union activity I find it protected by Section 8(c) of the Act. Although I agree that the present trend of Board decisions is to the contrary I believe the Sec- tion protects the right of an employer to explain the possible liabilities of union repre- sentation to employees. Paragraph 4(e) of the amended complaint presents a clear issue of credibility since the alleged statement is specifically denied by Sorosky. Cueto testified through an interpreter which does not make the resolution easier. Cueto stated that Anderson was present at this conversation and Anderson was not called upon to deny the threat (perhaps through inadvertence).17 Since Cueto was still employed at the time of 17 Andes son appeared as a witness for the Respondent. 1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his testimony it seems unlikely that he would concoct such damaging testimony but on the other hand he was the nephew of Aituro Diaz. Diaz, however, had been ieemployed so the testimony was of no substantial help to him. Not without some doubt I credit Cueto and find a violation. As to the alleged violation of Section 8(a) (3) there are, apart from the credibility issue, factors which support the charge of discrimination and which support the defense of legitimate cause. To support the complaint there is evidence that: (a) All five of the dischargees had signed cards and that George Munoz and Max Labrador passed out authorization cards. (b) Sorosky received a telephone call from a woman 2 or 3 days before the discharges advising him of union activity in the plant. (c) In his conversation with Munoz at the time of discharge Sorosky told him that a letter had been received, that the employees wanted to be represented by a union, and that the letter was signed by three employees, George, Max, and George. (No such letter had been received at this time and there is no evidence that any such letter was ever received or sent.) His further statement that what was going on was an intention of bringing the union into the plant by the men." (d) All five were laid off on Monday, April 27, and Tuesday, April 28, without prior notice or warnings. (Reference is made to specific warning and not to the general warnings given Munoz and Labrador from time to time for failure to repair the molding machine.) (e) Immediately prior to the discharge of Munoz, Sorosky had a conversation with Mario Munoz in which he inquired as to union activity in the plant and told him that George Munoz and George Tarajano were trying to get the Union in and that both would be laid off because the payroll was too high. (f) On the day after the discharges Sorosky told Cueto that four people were gone because of the Union and to tell the people that they should watch out or more would be gone. Respondent answered with testimony which sought to establish that- (a) Respondent's profits had declined seriously from previous years; Respondent was actually operating at a loss; economic layoffs were required and then in the weeks following the layoffs there was a decrease in the number of employees in the extrusion and molding departments. (b) Munoz and Labrador had failed to complete their major task, the repair of the molding machine, and were repeatedly warned there would be terminations if the repairs were not completed. (c) Respondent had no knowledge of union activity on the part of the dischargees at the time of the discharges. (d) The Tarajanos were selected by Plant Superintendent Serritella without knowledge of their union activity. It is my conclusion based on the foregoing evidence supplied by the parties and my resolution of the credibility issues that Munoz, Labrador, and George and Jose Tarajano were discharged in violation of the Act and that Diaz was not. The imme- diate and precipitate nature of the discharges, coming as they did so soon after Sorosky received a telephone call advising him of union activity in the plant raises a suspicion that the motive was not entirely economic. Although there is no obligation on the part of an employer to wait until the close of a pay period or to give prior notice of termination to employees this is the usual practice absent an emergency situation. No such situation was created here, in fact the Respondent had tolerated this situation for some time without taking action. While there is evidence that other terminations took place prior to and following these discharges the testimony is so confused that it cannot serve to bolster Respondent's case.18 While Sorosky stated that the payroll was too high for the preceding week (ending April 23), his own records show that it was substantially higher for the week in which the discharges took place. The only inference I can draw is that there was more work available in the latter week and that inference does not help the Respondent. Sorosky's knowledge that union activity was taking place in his plant was obtained through a telephone call which was received on either Friday or Saturday immediately preceding the discharges. In view of the 18 Two employees are alleged to have been discharged poor to those at issue but it appears that both were later reemployed at a time not stated There is no specificity respecting other terminations which may, according to the record, have been voluntary PERMA VINYL CORPORATION 1689 previous testimony, however reluctantly credited, of Mario Munoz establishing Respondent's knowledge of union activity on the part of George Munoz and George Tarajano and that of Cueto establishing a discriminatory motive for the discharges I find the discharges of George Munoz, Max Labrador, and George Tarajano in vio- lation of the Act. Since Jose Tarajano was discharged because he was George's brother the discrimination applies equally to him. In evaluating the discharges of the Tarajanos I have also considered the weak and inconsistent testimony of Serritella as to the reasons for these discharges.19 As to Arturo Diaz I reach a different conclusion. Diaz' only union activity was the signing of a card and, unlike the others, there is nothing in the record to indicate the Respondent suspected him of union leadership. In fact it is unlikely that the only porter in any plant would be suspect of union leadership. The fact that Diaz was discharged at the same time and in the same peremptory manner as the other is sus- picious but suspicion is not enough. Considering the brief time between Sorosky's acquisition of knowledge that there was union activity in the plant and his discharge of Diaz I cannot indulge in the presumption so favored by the Board that company knowledge is inevitable in a small plant. I find that Respondent discharged George Munoz, Max Labrador, and George and Jose Tarajano in violation of Section 8(a)(3) of the Act and that the discharge of Diaz was not in violation of that section. IV. THE REMEDY Having found the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent discharged George Munoz, Max Labrador, and George and Jose Tarajano in violation of Section 8(a)(3), I shall recommend that each shall be offered full and immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. I shall also recommend that Respondent make each whole for any loss of pay he may have suffered by reason of said discrimination in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co. 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. International Ladies' Garment Workers Union, AFL-CIO, is a labor organization within the meaning of the Act. 3. By interrogating employees concerning their union activity and asking them to report the union activity of other employees and by telling another employee that four employees had been discharged because they tried to bring the Union in, Respondent violated Section 8(a)(1) of the Act. 4. By discharging four employees to discourage union membership Respondent violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Act. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Perma Vinyl Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any employee to discourage membership in or activity on behalf of International Ladies' Garment Workers Union, AFL-CIO, by dis- charging him or otherwise affecting his terms and conditions of employment. (b) Interrogating or threatening employees with respect to their union activities, or in any other manner interfering with, coercing, or restraining employees in the rights guaranteed by Section 7 of the Act. 29 I noted on the record the long pauses in Serritella 's responses. 783-133-66-' ol. 151-108 1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer full and immediate reinstatement to George Munoz, Max Labrador, and George and Jose Tarajano to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in that portion of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents all records necessary for the computation of backpay which may become due under this recommended order. (c) Post at its plants in Miami, Florida, copies in Spanish and English of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for Region 12, shall, after being signed by a representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.21 It is further recommended that all allegations of the complaint not specifically found to be violations of the Act be dismissed. 20 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 by a decree of a United States Court of Appeals, the words "a Decree of the United States' Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision and Orders" 2i In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to thc; Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT question our employees about their union activity or the union activity of other employees nor tell our employees that other employees had been fired for union activity and they had better watch out. WE WILL NOT fire employees to discourage membership in International Ladies' Garment Workers Union, AFL-CIO, or any other union. WE WILL offer George Munoz, Max Labrador, and George and Jose Tarajano their jobs back and pay them for wages lost since they were fired. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self-organization, to form, join, or assist International Ladies' Garment Workers Union, 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 purposes of col- lective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. PERMA VINYL CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 706. Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228- 7711, if they have any questions concerning this notice or compliance with its provisions.