Poloron Products, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1945

64 N.L.R.B. 1358 (N.L.R.B. 1945)

In the Matter Of POLORON PRODUCTS, INC. and FEDERAL LABOR UNION,
LOCAL 22806, A. F. or L. and JUG MAKERS GUILD OF WESTCHESTER
COUNTY, PARTY TO THE CONTRACT
Case No. L-C-5408.-Decided December 10, 1945
Mr. David H. Werther, for the Board.
Mr. Herbert Kaufman, of New York City, for the respondent.
Mr. Samuel Sanderman, of New York City, for the Union.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT Or THE CASE
Upon a second amended charge 1 duly filed on October 23, 1944,
by Federal Labor Union, Local 22806, affiliated with the American
Federation of Labor, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Second Region (New York City), issued its complaint, dated
November 4, 1944, against Poloron Products, Inc., New Rochelle,
New York, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1), (2), and (4), and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent, the Union, and Jug Makers Guild
of Westchester County, herein called the Guild, a labor organization
alleged in the complaint to have been formed and dominated by the
respondent.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that the respondent initiated, sponsored, and pro-
moted the formation of the Guild and thereafter assisted, dominated,
and interfered with its administration; (2) that, on or about Feb-
ruary 9, 1914, the respondent discharged or laid off Ben Peracchio
1 The original charge was filed on February 18, 1944, and the first amended charge on.
April 17, 1944.
64 N. L. R. B., No. 226.
1358
POLORON PRODUCTS, INC. 1353,
and thereafter refused to employ him because lie filed, or caused to
be filed, charges against the respondent under the Act, and because he
engaged in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection; and (3) that, by the foregoing
acts, and by urging and warning its employees to join the Guild,
by advising and threatening its employees not to join the Union, by
interrogating them about their union membership, by disparaging the
Union, by entering into a closed-shop contract with the Guild, al-
though the Guild did not then represent an uncoerced majority of the
employees within the bargaining unit covered by the agreement and
was not the representative of the employees, within the meaning of
the Act, and by other acts, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. On November 15, 1944, the respondent filed its
answer in which it admitted some allegations of the complaint but
denied that it had engaged in any unfair labor practice.
Pursuant to notice, a hearing was held at New York City on Nov-
ember 21, 27, and 28, 1944, and at New Rochelle, New York, on Nov-
ember 29 and 30, 1944, before W. P. Webb, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respond-
ent were represented by counsel and the Union appeared by its re-
presentative; all participated in the hearing. The Guild, although
duly served with notice of hearing, did not appear. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
At the close of the introduction of evidence by the Board, the re-
spondent moved to dismiss certain allegations of the complaint and
also to dismiss the complaint in its entirety. The Trial Examiner
reserved decision on these motions at the hearing and denied them
in his Intermediate Report. He granted, without objection, a motion
by counsel for the Board to conform the pleadings to the proof with
respect to names, dates, and other minor recitals. During the course
of the hearing, the Trial Examiner ruled on other motions and on
objections to the admission of evidence. The Board has reviewed
all the rulings of the Trial Examiner and finds that he committed
no prejudicial error. For the reasons stated in Section III, C, herein,
we hereby reverse the Trial Examiner's denial of the respondent's
motion to dismiss the complaint insofar as it alleged that the respond-
ent violated Section 8 (4) of the'Act. His' remaining rulings are
hereby affirmed.
On January 29, 1945, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties, in which
lie found that the respondent had engaged in and was engaging in
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1), (2), and (4), and Section 2 (6) and (7) of the Act. He
recommended that the respondent cease and desist from its unfair
labor practices; that it disestablish and withdraw all recognition
from the Guild; and that it cease giving effect to its contract with
the Guild. He recommended further that the respondent reinstate
and make whole Ben Peracchio, the employee found by the Trial
Examiner to have been discriminatorily discharged. Thereafter, on
March 8, 1945, exceptions to the Intermediate Report and a support-
ing brief were filed by the respondent.
Pursuant to notice, the Board, on June 9-8, 1945, heard oral argument
at Washington, D. C. The respondent, represented by counsel, par-
ticipated in the argument; the Union did not appear. The Board
has considered the Intermediate Report, the respondent's exceptions
and brief, and the contentions advanced at the oral argument before
the Board. Insofar as the exceptions are inconsistent with the find-
ings, conclusions, and order set forth below, the Board finds them to
be without merit and insofar as the exceptions are consistent with the
findings, conclusions, and order set forth below, the Board finds them
to have merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Poloron Products, Inc., is a New York corporation having its prin-
cipal office and place of business in New Rochelle, New York, where
it is engaged in the manufacture of thermal jugs, metal boxes, am-
munition parts, and related products for war purposes. During the
12-month period ending September 28, 1944, the respondent pur-
chased raw materials valued in excess of $100,000, of which approxi-
mately 75 percent was purchased and shipped to its plant from points
outside the State of New York. During the same period, it manufac-
tured products valued in excess of $250,000, of which approximately
75 percent was transported and shipped to points outside the State of
New York.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union, Local 22806, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the respondent.
Jug Makers Guild of Westchester is an unaffiliated labor organiza-
tion admitting to membership employees of the respondent.
POLORON PRODUCTS, INC.
M. THE UNFAIR LABOR PRACTICES
A. Introduction
1361
Prior to 1942, no attempt had been made by any union to organize
the respondent's employees. In the latter part of June 1942, Samuel
Sanderman, recording secretary and organizer of the Union, together
with Charlotte-Mayer, its financial secretary, began an organizational
campaign among the respondent's employees. They talked to em-
ployees during lunch periods and after working hours, distributed
union literature, and held employee meetings. At that time there
were approximately 80 employees in the plant. Among the employees
who joined the Union was George Hansen, who became active in fur-
thering the campaign on behalf of the Union. • On July 3, 1942,
Hansen was discharged by the respondent. As a result, on July 9,
1942, the Union filed charges of unfair labor practices against the
respondent, alleging violations of Section 8 (1) and (3) of the Act?
Subsequently, the case was settled by the parties; Hansen was rein-
stated; and, on August 8, 1942, the charges were withdrawn by the
Union without prejudice.
The Union continued its organizational efforts at the plant and
attained a membersliip of approximately 36 employees. On November
13, 1942, the Union filed amended charges against the respondent, al-
leging violations of Section 8 (1), (2), and (3) of the Act.' This
case was settled by a written agreement between the parties, dated
March 27, 1943, providing for the posting of notices stating, in sub-
stance, that the respondent would cease and desist from engaging in any
unfair labor practice.
B. Domination and interference with the formation and administra-
tion of the Guild, and contribution of support to it
About 3 months after the Union began distributing its literature at
the plant, J. D. Brown, the respondent's vice president, called Ben
Peracchio into Brown's office 4 There, according to Peracchio, Brown
' Case No. 2-C-4098. A
Case No 2-C-4846. The original charge in this case was filed on September 10, 1942.
4 Peracchio had entered the respondent's employ in February 1937 , in 1942, lie was one
of the oldest employees in point of service in the plant From 1937 to 1941, lie had
worked as a jug packer; in 1941, he had been placed in charge of five to eight employees
who stencilled and shipped the respondent's products In this capacity he had no authority
to hire or discharge employees, but he could make effective recommendations regarding the
status of employees under his supervision. Also, in this capacity, in addition to sharing in
the piece-work earnings of his group, he received a bonus, which was not paid to employees
under him. During the early part of 1942, the respondent had converted the entire plant
to production of war materials and had placed Peracchio in charge of the shipping depart-
ment He was the only regular employee in the department, but he had authority to de-
670417-46-vol 64-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Peracchio whether he knew anything about the Union's organiz-
ing the-plant, to which Peracchio replied in the negative, and then
Brown told Peracchio that, if an outside union calve into the plant, the
employees would derive no benefit because the outside union would
demand "crazy things," which the respondent would not and could not
grant. Peracchio further testified that Brown then discussed with him
the relative merits of outside and inside unions, and stated that, if
they formed an inside union of their own, he and his brother, R. P.
Brown, president of the respondent, would meet the employees "half
way" in their grievances and the employees would get better results.
According to Peracchio, Brown then stated that he would "need a
majority of names in order for him to even present it against the
A. F. of L.," or to, make the "first move," and that Abe Moglin, the
union president, had talked to him and had presented a list of names,
which could be counteracted only with another list. Peracchio also
testified that he was told by Brown not to be too prominent in organiz-
ing the inside union and to have other employees do it, and that Perac-
chio agreed to start the movement for an inside union.
Brown admitted that he called Peracchio into his office in July 1942,
but denied that he suggested that Peracchio form an inside union.
Brown testified that he first learned of an attempt to form an inside
union when his brother, President Brown, advised Vice-President
Brown by telephone, while he was away from the plant on August 28,
1942, that Peracchio and some other employees had brought to the
office a petition signed by almost all the employees. Vice-President
Brown also testified, without contradiction, that on that same day, he
returned to the plant and read a speech to the employees, in which he
stressed the respondent's neutrality in any union organizational cam-
paign. However, we agree with the Trial Examiner, and we find, that
the credible evidence establishes that the conversation between Vice-
President Brown and Peracchio occurred substantially as testified to
by Peracchio.
Upon leaving Brown's office, Peracchio picked up two sheets of
yellow paper, herein called the petition, and immediately began to
obtain signatures thereto among the employees during working hours.
In`" the course of such solicitation, he told the employees that a union
mand assistance from other employees when needed and lie exercised such authority several
times weekly. For this work he received a foreman ' s salary of $63 per week and a paid
vacation enjoyed only by supervisory employees During this period he wore a tan uniform,
which the respondent had adopted to distinguish supervisory from nonsupervisory em-
ployees, and he attended foremen 's meetings . Despite these facts , the respondent contends
that, during this period , Peracchio was a shipping clerk and not a supervisory employee.
It is clear, however, and we find , in agreement with the Trial Examiner , that at this time
Peracchio was a representative of management . See, for example , International Associa-
tion of Mach mists v N. L. R B , 311 U. S. 72.
It was during this period, while he was head of the shipping department , that Peracchio
was summoned into Brown's office.
POLORON PRODUCTS, INC. 1363
of their own was to be formed in order to avoid paying dues and fees
to an outside union. To obtain signatures, Peracchio visited, among
other places, the cannister department, where he met Edward Miller,
its foreman.' When Miller asked Peracchio what he was doing, Per-
acchio replied that he had just come from the office and that he had
been told by Brown to start a union in the plant. Miller signed the
petition and then obtained the signatures of all the employees in his.
department, approximately 35 in number. When he returned the peti
tion to Peracchio, a caption had been written upon it to the effect that
those who signed agreed to become members of an inside union. The
next employee approached by Peracchio was Anthony Areno, a sol-
derer. At first Areno demurred when requested to obtain signatures,
but, after having been told by Peracchio that Brown had approved
the petition, Areno took it to the plant basement and obtained a num-
ber of signatures among the employees working there.e When he re-
turned the petition to Peracchio, it bore approximately 65 signatures,
all of which had been obtained during working hours.,
On the next day, Peracchio showed the petition to Vice-President
Brown and told him that a majority of the employees had signed it,
but that Peracchio wished to obtain additional signatures among
night-shift employees. Brown examined the signatures on the petition
and told Peracchio to select two representatives and send them to
Brown as soon as possible for the purpose of negotiating a contract.
A few days later Peracchio approached Angelo Russo, also known as
Charles Russo, a press operator on the night shift, and requested him to
assist in obtaining signatures to the petition. According to Peracchio,
he told Russo that he, Peracchio, had spoken to Brown and that Brown
had proposed the movement to form an inside union. Peracchio also
testified that, at first, Russo did not believe him, but later, after Russo
had spoken to Brown, Russo said to Peracchio, "Now, I believe it." s
Peracchio then delivered the petition to Victor Scarola, a general
utility man whose assistance in the formation of the company union
The respondent conceded that Miller was a foreman at that time and had been a fore-
man since April 1942 . He did not testify at the hearing
U Areno 's activities in obtaining signatures were established by Peracchio ' s testimony
which we credit. Areno did not testify at the heating.
4 Theie is no evidence , in the record that any deduction was made from the pay of the
employees for time spent in obtaining the signatures.
8 Russo admitted that Peracchio spoke to him about forming an inside union and requested
assistance in obtaining the signatures of night shift employees , but he denied having been
told of Brown ' s interest or having spoken to Brown about the matter when the petition was
signed. Russo , however , admitted that , at a later unstated date, he asked Peracchio
whether Brown was in favor of a company union and that Peracchio said that , after he had
apprised Brown of the Union ' s organizational activities, Brown had told Peracchio "to
start a group and do something ." At the hearing , Brown, when asked whether he had told'
Russo that he, Brown, had told Peracchio to organize an inside union , testified , "well, I
can't recall any specific remarks along those lines ." In agreement with the Trial Examiner,
we find that Peracchlo ' s testimony as to his conversations with Russo is substantially
correct.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peracchio had also enlisted. Thereafter, except for conferences im-
mediately leading to the execution of a contract, negotiations with the
respondent were conducted on behalf of the inside union by Russo
and Scarola. A short time later, Peracchio was informed by Russo
that the petition, which had been signed in pencil, was not satisfactory
to Brown, and that it would be necessary to obtain another with signa-
tures in ink.0
On or about September 2, 1942, at the instance of Peracchio, Scarola,
and Russo, a meeting of the employees was held on the street, outside
the main entrance of the plant, after working hours. Approximately
50 employees were present, Peracchio, Foreman Miller, and Scarola
made speeches in which they stressed the importance of organizing
an inside union immediately, the advantages generally of a company
union over the A. F. of L., and the fact that the employees could obtain
greater favors from the respondent through an inside union. About 2
days later, the following notice appeared on the plant bulletin board :
NOTICE
There will be a meeting of all employees after work on Wednes-
day in the Packing department. It is important that we have a
100% attendance for this discussion.
Your fellow worker,
BEN PERACC1110.
Night shift try and be in by 6: 30 the latest. Important that
you be here.
BEN DEGAETANO.lo
Abe Moglin , president of the Union , telephoned Vice-President
Brown and said, "You had better go out in the factory and take a
look at , that notice on the bulletin board if you don't want to get
yourself in trouble." Brown immediately removed the notice and
posted another stating that the employees could not hold such meetings
in the plant.
Instead, a meeting of the employees was held in front of the plant
after working hours on September 4. Peracchio, Miller, and Scarola
again made speeches urging the same arguments they had advanced
at the prior meeting. During this meeting and while the speeches
were being made, Peracchio and Miller circulated a second petition
and most of the employees present signed it, furnishing 113 signa-
tures. This petition was captioned "Jug Makers Guild" and stated,
6 The foregoing findings are based upon the credible testimony of Peracchio.
10 At the time this notice was posted, De Gaetano was a foreman on the night shift.
According to Vice-President Brown's testimony , he had questioned De Gaetano about the
notice and De Gaetano had denied the authenticity of his signature appearing thereon.
De Gaetano , who had been inducted into the armed forces, did not testify at the hearing.
We find it unnecessary to determine whether the notice had been signed by De Gaetano.
POLORON PRODUCTS, INC. 1365
"We, the undersigned wish it to be known that we have agreed to form
a Jug Makers Guild. A contract will be drawn up by you, the em-
ployees and presented to the Brown brothers, Executives of Poloron,
Products, Inc. for consideration."
About the middle of September 1942, Russo and Scarola, who had
been selected as a bargaining committee by the Guild, together with
two other employees, called on the Browns, presented the new petition,
stated that they had obtained the signatures of more than 51 percent
of the employees, and expressed a desire to negotiate a contract. One
of the Browns then exhibited a telegram from the Board's New York
Regional Office advising that charges of unfair labor practice had
been filed against the respondent by the Union,11 and told the committee
that the respondent could not deal with the Guild until it should
be certified by the Board. After a general membership meeting of
the Guild at a public hall in New Rochelle, at which its aims and
demands were discussed and Russo and Scarola were elected president
and vice president, respectively, the committee again called on Vice-
President Brown. Russo and Scarola repeated the Guild's demand
for recognition and showed Brown a draft of articles of association
for the Guild and a memorandum of its contract demands. Brown
again refused to deal with the Guild because of the pending charges
and told the committee, "What you fellows need is a lawyer." A short
time after that meeting, according to undenied testimony which we
credit, Scarola asked Brown for the name of a lawyer and Brown gave
him the names of Attorney Anthony Sansone and of another lawyer.
Thereafter, Scarola mentioned the attorneys' names to Russo and
told him that the names had been obtained from Brown. On or about
October 1, 1942, Russo and Scarola, on behalf of the Guild, retained
Sansone, explained their aims to him, and gave him a draft of their
articles of association. Sansone informed the respondent in writing
that he represented the Guild, but the respondent again refused to
deal with the Guild because of the pending charges. After another
conference between Sansone and the Guild committee, in the early
part of October, Sansone rewrote the Guild's articles of association
and changed its name to Jug Makers Guild of Westchester County.
About this time Sansone also conferred several times with Hyman
Rothbard, the respondent's attorney 12 In about the second week of
October 1942, at a Guild meeting held at the New Rochelle union hall,
the articles of association were read, discussed, adopted, and signed
by approximately 73 employees, including Russo and Scarola. A few
weeks later, the Guild dismissed Sansone, without making any pay-
ment for his services, because it could not afford the fee that he de-
11 See footnote 3, supra.
12 Neither Sansone nor Rothbard testified at the hearing. Rothbard entered the armed
forces in June 1943.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manded. Russo and Scarola again presented the signed articles of
association to Vice-President Brown and requested him to negotiate
a contract ; and again Brown 'refused because of the pending charges.
At the end of October 1942, an inconclusive conference took place
in the Board's New York Regional Office, where the Guild's representa-
tion claim, the Union's unfair labor practice charges, and the respond-
ent's position were discussed. Thereafter, the Guild retained Attor-
ney Alexander Eltman, and Russo and Scarola conferred with Eltman
several times during December 1942 and January 1943, paid him a
total of $30, and directed him "to get results" with respect to the
Guild's demands for recognition and improved conditions of employ-
ment.
On January 13, 1943, the Guild filed with the Board a petition for
certification of representativesJ3 On March 27, 1943, the Union's
pending charges were settled by a written agreement between the
parties, providing for the posting of notices, and on April 1, 1943,
the respondent, the Union, and the Guild entered into a consent elec-
tion agreement . Pursuant to the agreement , an election was held
among the respondent's employees on June 2,1943. On the day before
the election, the Union withdrew its name from the ballot. Of 25 em-
ployees eligible to vote, 23 cast valid ballots, all in favor of the Guild.
Peracchio and Russo testified that, prior to the withdrawal of the
Union from the ballot, Peracchio, Russo, and Scarola conferred with
Vice-President Brown in his office on a number of occasions about the
probable results of the election; that Brown asked what the results
might be; that Russo offered to quit his job if he did not "get 100%
for the Guild"; and that Russo also gave Brown a list of names, show-
ing which employees were "safe" and which "doubtful" for the Guild.
According to Peracchio and Russo, on the day following the election,
Brown congratulated them on the results of the election and said to
Peracchio, "that was a nice job, Ben , a swell job." In agreement with
the Trial Examiner , we credit this testimony, not specifically denied
by Brown.
About 10 days after the election, the Guild and the respondent started
to negotiate a contract with Peracchio, Russo, and Scarola acting on
behalf of the Guild and Vice-President Brown and Attorney Roth-
bard for the respondent. At the first meeting, held in the respondent's
office, Rothbard submitted a sketch of a proposed contract which was
discussed generally . The same parties met again on the following day
at which time Rothbard presented a proposed contract embodying the
provisions discussed the day before . A disagreement arose over a
wage incentive plan which the respondent wished to initiate in place
of a bonus plan , then in effect. When Peracchio protested the change,
13 Case No. 2-R-3745.
POLORON PRODUCTS, INC. 1367
Vice-President Brown said to him, according to Peracchio's undenied
testimony which we credit, "What are you worrying about? I will
take care of you, if you lost any time I will take care of you . . . now
don't worry about anything." 14 Another meeting was held a few days
later, with the same conferees present, and President Brown.
On July 2, 1943, the Guild and the respondent executed a 1-year con-
tract, to become effective on July 6, 1943, and to remain in effect from
year to year thereafter unless either party gave notice of intention to
terminate 30 days prior to the expiration of any contract year. The
contract providedf or a closed shop, 25 cents weekly check-off of Guild
dues, and the wage incentive plan, mentioned above, among other provi-
sions. The contract was signed by Vice-President Brown for the re-
spondent and by Russo, Scarola, and Peracchio for the Guild. Neither
party has ever given notice of intention to terminate the agreement.
The contract was not submitted to the members of the Guild for their
approval prior to its execution. After it was signed, portions of the
contract were read and discussed at a meeting, but the members were
not told that the contract had already been signed. Except for the
election of a treasurer, no other Guild officers have been elected since
the execution of the contract.
Shortly after the execution of the contract, Peracchio was selected
chairman of the Guild grievance committee. A number of grievances
were referred to him in that capacity. The grievance procedure pro-
vided in the contract was not strictly followed. According to Perac-
chio's undenied testimony, which we credit, Superintendent Harry
Cerutti suspended employees who sought to present grievances and
refused to hear their grievances, and the respondent threatened to dis-
miss Peracchio because he persisted in presenting a grievance on behalf
of another employee.
On September 20, 1943, Peracchio became foreman of the pickling
department, thereby again assuming the status of a supervisor. He
therefore resigned from the grievance committee and from the Guild.
Only two or three membership meetings of the Guild were held after
the signing of the contract, the last shortly before Thanksgiving Day
1943. After the general lay-off of employees on February 9, 1944,
which is discussed below, the Guild ceased to function as the bargaining
representative of the employees, as it had no officers except a treas-
urer, and no other officers were thereafter elected 15 The closed-shop
contract, however, remained in effect. In accordance with its terms,
the respondent deducted a total of $208.75 as Guild dues from its
14 This statement was made to Peracchio in vice -President Brown 's private office, where
the respondent 's attorney had taken Peracchio after an impasse in the negotiations
'L Russo, vice president of the Guild, refused reemployment with the respondent after the
general lay-o8, and Scarola , president , joined the armed forces in September 1943.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' wages. These deductions, authorized in writing by the
employees, covered the period from July 1943 to February 9, 1944.
On March 23, 1944, the Guild, by its attorney, Alexander Eltman,
filed charges with the Board alleging that the respondent had violated
Section 8 (1) of the Act.16 On March 27, 1944, the case was settled
by agreement of the parties, and the customary 8 (1) notices were
posted in the plant. Both the complaint and the settlement agree-
ment in that case were signed by Eltman as attorney for the Guild.
The record discloses no further activities of the Guild. As stated
above, the Guild was served with notice of the instant'proceeding, but
it entered no appearance at the hearing and took no part in this
proceeding.
Conclusion
We are convinced, as was the Trial Examiner, and we find, that the
respondent originated the Guild.17 That Vice-President Brown called
Peracchio to his office, questioned him about the activities of the Union
and authorized him to start an inside union at once, shows that the
respondent was hostile to the Union and wished to frustrate its efforts
to organize the respondent's employees. Peracchio, a representative
of management, with the assistance of Foreman Miller, circulated the
first petition among the employees during working hours with im-
punity. We are convinced that Peracchio and Miller could not have
obtained the signatures in this manner without the knowledge and
consent of the respondent. Vice-President Brown admitted that he
watched Peracchio, Scarola, and Miller make organizational speeches
to the employees at a meeting in front of the plant. He also admitted
that he took no steps whatever to dispel the impression which we find
the employees must have formed that Peracchio and Miller were au-
thorized to speak on behalf of management in union matters. We are
equally convinced, and we find, that the respondent dominated and
interfered with the administration of the Guild, within the meaning
of Section 8 (2) of the Act. It is clear that Vice-President Brown
subverted the Guild committee during the contract negotiations by a
promise of personal reward in order to silence Peracchio's protest on
behalf of the Guild. We find, as did the Trial Examiner, that by the
foregoing acts and course of conduct, the respondent formed, domi-
nated, and interfered with the administration of the Guild and
11 Case No. 2-C-5515.
17 Although the respondent has not urged the settlement of March 27 , 1943 , in Case No
2-C-4846 , or the consent election as a defense to allegations of unfair labor practices
occurring prior thereto , we have considered that aspect of the case . In view of our findings
herein that the respondent engaged in subsequent unfair labor practices in July 1943, by
offering a personal reward to Peracchio to silence his protests in behalf of the Guild, we are
of the opinion that the Act will best be effectuated by examining the respondent 's unfair
labor practices both before and after March 27, 1943.
POLORON PRODUCTS, INC. 1369
contributed support to it, within the meaning of Section 8 (2) of the
Act, thereby interfering with, restraining, and coercing its employee-,
in the exercise of the rights guaranteed in Section 7 of the Act. We
further find that the respondent, by its conduct, set forth above, in
disparaging the Union, in interrogating its employees concerning
their union affiliation, in urging and warning them to refrain from
becoming or remaining members of the Union, in urging them to vote
for the Guild in the consent election, and in executing the closed-shop
contract with the company-dominated Guild, interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, thereby engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act 18
C. The alleged discrimination against Peracchio
On February 9, 1944, because of cancelation of the respondent's
government contract for the manufacture of canteens, the respondent
decided to lay off a major portion of its operating personnel and to
retain 7 of the 48 employees then in its employ. For this purpose, Vice-
President Brown and Superintendent Cerutti prepared a list of the
names of all employees to be separated, including Peracchio's. To the
employees assembled in the plant on that day, the respondent an-
nounced that all those whose names would not be called were laid off
and that they would be recalled as soon as the respondent obtained new
work. The names of 7 employees, some supervisory and some non-
supervisory, were called; Peracchio's name was not among these.19
Immediately after the announcement, Peracchio went to Vice-Presi-
dent Brown's office and protested against his apparent lay-off. On the
following day, he returned to the respondent's office and complained
to both the Browns that he should not have been laid off in view of his
seniority and devoted service to the respondent. At the hearing the
Browns admitted that Peracchio complained to them but they also testi-
fied that they then told Peracchio that he was discharged. They testi-
fied that the decision to discharge Peracchio had been made before the
general lay-off, that they discharged him after the lay-off announce-
ment in order to spare him any embarrassment in the eyes of his former
subordinates, and that Peracchio clearly understood on February 10
"In his Intermediate Report, the Trial Examiner found that the speech made by Vi^e-
President Brown to the employees on August 28, 1942, mentioned above, violated Section
8 (1) of the Act . We are of the opinion that the speech does not constitute an unfair
labor practice
'fl At this time, Peracchio, who had entered the respondent's employ in 1937, was, next to
the plant superintendent , the oldest employee in point of service . During his long associa-
tion with the respondent , he had progressively advanced to positions of greater responsi-
bility and higher pay , and, on September 20, 1943, had been made foreman in charge of a
department encompassing 10 to 20 employees , a position which he held when the general
lay-off was announced.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was discharged and not laid off. The respondent asserted, as
reasons for discharging Peracchio, his incompetence, excessive use of
profanity, fighting, gambling during company time, and anti-Semitism.
At the February 10 conversation, the respondent gave Peracchio a
release and a letter of recommendation couched entirely in laudatory
terms.20 The respondent also arranged to have Peracchio complete a
number of partially manufactured canteens by working a few days
weekly, which Peracchio did, until March 13, the last day he performed
any work in the plant. On or about February 15, 1944, Peracchio ap-
peared at the Board's Regional Office in New York City and executed
certain affidavits relative to the formation and activities of the Guild,
as a result of which, on February 18, the Union filed the instant 8 (1)
and 8 (2) charges against the respondent. A few days after the filing
of the charges, President Brown gave Peracchio a check for $126, rep-
resenting 2 weeks' severance pay, which the respondent customarily
gave to discharged supervisory employees. Peracchio testified that the
payment was made after a discussion of the charges filed by the Union
and after a request by Brown that Peracchio "withdraw the charge."
Brown testified that when he paid the money, he was unaware of the
pending charges but he did not otherwise deny that such discussion
took place.21
In April 1944, the respondent procured additional government con-
tracts and started to recall the employees who bad been laid off on
February 9. By June 1944, it had recalled all of them, except)
Peracchio, and had reemployed all those who had not found work
elsewhere or had entered the armed forces. Once in April, and twice
in August, Peracchio asked the respondent for reemployment; each
time he was refused, without being given a specific reason.
The Trial Examiner found, in his Intermediate Report, that
Peracchio was not discharged before executing the affidavits which
gave rise to the Union's 8 (1) and 8 (2) charges, but rather was
temporarily laid off on February 9, as were the bulk of the respond-
ent's employees, and later discharged when the respondent learned
of Peracchio's conduct with respect to the filing of the charges. After
a comprehensive consideration of the evidence adduced by the re-
spondent in support of its asserted dissatisfaction with Peracchio's
service as the reason for discharging him, the Trial Examiner found
no merit in the defense that Peracchio was discharged for cause on
February 9 and concluded that the respondent's refusal to recall
Peracchio when it resumed operations was motivated by an intention
20 Vice-President Brown testified that this letter contained some "white lies," but that he
thought Peracchio might be satisfactory as an employee elsewhere.
21 In view of our decision as to Peracchio's case, as hereinafter set forth, we find It
unnecessary to resolve this conflict in testimony
POLORON PRODUCTS, INC. 1371
to discriminate against Peracchio because he had caused charges of
unfair labor practices to be -filed against the respondent.
Unlike the Trial Examiner , we are of the opinion that the respond-
ent discharged Peracchio on or about February 10, and that his sub-
sequent activities which led to the filing of the charges against the
respondent could have had no causal connection with his discharge
and had no real effect , so far as appears , upon the respondent's sub-
sequent refusal to reinstate him.
Most of the testimony which sheds light on the question whether
Peracchio was discharged or laid off before February 18, when the
charges against the respondent were filed , relates to conversations that
took place between Perracchio and the respondent's officers on Thurs-
day, February 10, the day following the general lay-off. According
to Peracchio, when he went to the office, immediately following the
announcement on February 9, to protest against what he regarded as
a lay-off, Vice-President Brown said that he did not care to discuss
the matter then and asked Peracchio to return on the following
day. On February 10, Peracchio returned to the office and spoke
to both the Browns. President Brown testified that, at that con-
ference, he told Peracchio, "he was through, we did not want him
anymore," and Vice-President Brown testified that, at that some
conference, he told Peracchio, "he was discharged and had better
look for a job somewhere else." According to Peracchio, he was
told by President Brown, "Well, I tell you the truth, I can't use you
anymore," and, "the only thing for you to do is find another job."
The record shows that Peracchio not only was told that he was dis-
charged, but also, that he definitely understood that he was not regard-
ed by the respondent as being in a laid-off status. Questioned by the
Trial Examiner, Peracchio gave the following testimony:
Q. From February , then, until August you did not go back
to the plant?
A. No, because they made it definitely understood that there
was nothing that they could use me for. They told me any-
thing that was left I couldn't do.
He says, "The only thing for you to do is find another job."
Q. They told you that the last day you worked?
A. During that Thursday, where I had this meeting with
both the Browns, they explained to me they had a job for me
if I wanted to go to work for this other company, that he would
send me there with this recommendation. That was the last
talk we had about employment.
Q. You understood that
A. It was clear that I had to get another job.
Q. Your employment had terminated?
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That is right.
Q. You were no longer in a laid oft status?
A. He says, "I can't promise you any definite time for recall."
Q. You were told you had better get yourself another job?
A. That is right, exactly.
There is also testimony by Russo that 2 or 3 days after the general
lay-off, President Brown told Russo that Peracchio was still working
for the respondent and was not discharged. Although this testimony
was not denied by Brown, we believe that the unanimity in the testis
mony of Peracchio and the respondent's officers is more significant than
Russo's statement. We also note that, for a few weeks after the lay-off,
Peracchio continued to work for the respondent several days weekly
in order to complete work under the government contract.
Neither the letter of recommendation, given to Peracchio by the
respondent on February 10, nor the two weeks' severance pay which he
received on about February 21, shed controlling light on the ques-
tion whether Peracchio was discharged or laid off on or about '+ eb-
ruary 9. The respondent gave a similar letter to Russo, who ad-
mittedly, was not discharged, and Vice-President Brown testified
without contradiction that he may have given such a letter to Peracchio
during previous slack seasons. As to the severance pay, President
Brown testified that he was unaware of the charges when he made the
payment, and the respondent contends that the severance pay, there-
fore, indicates an intention to effectuate a permanent termination of
employment. The testimony of Russo and Peracchio, on the other
hand, indicates that Brown knew of the charges before making the
payment, a fact from which it might be inferred that the filing of
the charges provoked the respondent to discharge Peracchio.
Considering the entire record, particularly in the light of Peracchio's
own admissions, we are persuaded, and we find, that Peracchio was
discharged by the respondent on February 10, 1944. Having occurred
before Peracchio had taken any steps leading to the filing of the unfair
labor practice charges against the respondent, the discharge does not
constitute a violation of Section 8 (4) of the Act. Inasmuch as the
complaint does not allege any violation of Section 8 (3), we shall not
make a finding as to the reason for Peracchio's discharge.22 The com-
plaint does allege, in the alternative, that Peracchio was refused re-
employment because he caused charges to be filed against the respond-
ent. There is no evidence in the record, however, indicating that
after having discharged Peracchio, whatever the reason may have
been, the respondent changed its opinion regarding his desirability as
22 About 2 or 3 weeks before February 9, Peracchio became a member of the Union ;
however, the respondent had no knowledge of this fact until some time after the discharge.
POLORON PRODUCTS, INC. 1373
an employee and decided to reemploy him but failed to do so because
he had caused charges to be filed.
We find that the respondent has not discriminated against Ben
Peracchio , within the meaning of Section 8 ( 4) of the Act . We shall,
accordingly , dismiss the complaint as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, B , above,
occurring in connection with the operations of the respondent de-
scribed 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 unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain lflirmat;ve action designed to effectuate the policies of the Act.
We have found that the respondent formed, dominated, and inter-
fered with the administration of the Guild and contributed support
to it. Such conduct by the respondent has rendered the Guild incap-
able of serving the respondent's employees as a bona fide collective
bargaining agent. Moreover, we find that the present existence of the
Guild and its continued recognition by the respondent constitute a
continuing obstacle to the exercise by the employees of the rights
guaranteed them under the Act. Therefore, in order to effectuate the
policies of the Act and to free the employees from the effects of the
respondent's unfair labor practices, we shall order the respondent to
withdraw all recognition from the Guild as the representative of any
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, and other conditions of erriployinent, and completely dis-
establish the Guild as such representative.
The respondent, by the closed-shop contract of July 2, 1943, in effect
compelled its employees to become and remain members of the Guild.
This contract has been a means whereby the respondent has utilized
the unlawfully dominated and supported Guild to frustrate self-
organization and defeat genuine collective bargaining by its employees.
We shall, therefore, order the respondent to cease and desist from
giving effect to said contract or to any renewal , extension , modification,
or supplement thereto. Nothing in this Decision or in our Order, how-
ever, shall be taken to require the respondent to vary those wages,
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, seniority, and other substantive features of its relations with
the employees, themselves, which the respondent has established in the
performance of said contract.
Having found that the respondent dominated and supported the
Guild, and, by its contract, unlawfully compelled its employees, on
threat of discharge, to maintain membership in the Guild, it is ap-
parent that the check-off of Guild dues was accorded the Guild by
the respondent for the purpose of stabilizing its finances. It is also
apparent that an authorization for the check-off of clues owed to an
organization dominated and supported by the respondent was not a
voluntary act of the employees who signed such authorizations, but
rather a surrender by the employees to the respondent's compulsion
that they abandon their rights under the Act and join an organization
existing for a purpose proscribed by the Act. In these circumstances,
in order to dispel the effect o E the respondent's unfair labor practices,
we shall order that the respondent reimburse its employees for all
amounts deducted from their wages as dues for the Guild.
CoNcLusioNs OF LAW
1. Federal Labor Union, Local 22806, affiliated with the American
Federation of Labor, and Jug Makers Guild of Westchester County,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By dominating and interfering with the formation and adminis-
tration of Jug Makes Guild of Westchester County and by contribut-
ing support to it, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (2) of the
Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated in regard to the hire or
tenure of employment of Ben Peracchio, within the meaning of Sec-
tion 8 (4) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
POLORON PRODUCTS, INC. 1375
ent, Poloron Products, Inc., New Rochelle, New York, and its officers,
agents, successors and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing support to, Jug Makers Guild of Westchester County, and
dominating or interfering with the formation or administration of, or
contributing support to, any other labor organization of its employees;
(b) Recognizing Jug Makers Guild of Westchester County as the
representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment;
(c) Giving effect to its contract of July 2, 1943, with Jug Makers
Guild of Westchester County, or to any extension, renewal, modifica-
tion, or supplement thereof, or to any other agreement with Jug Makers
Guild of Westchester County, which may be in effect now or in the
future;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Federal Labor Union, Local
22806, A. F. of L., or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish Jug
Makers Guild of Westchester County as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment;
(b) Reimburse all its employees for the amounts deducted by the
respondent from their wages as membership dues or otherwise on
behalf of Jug Makers Guild of Westchester County;
(c) Post at its plant at New Rochelle, New York, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the respondent's representativd, be posted
by the respondent immediately upon the receipt thereof, and main-
tained by it sixty (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 other material ;
(d) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
1376 DEaISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent discriminated against Ben Peracchio, be, and it
hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
NLRB 584
(10-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We hereby disestablish Jug Makers Guild of Westchester County
as the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, and we will not recognize it or any successor thereto for any
of the above purposes.
We will not dominate or interfere with the formation or admin-
istration of any labor organization or contribute financial or other
support to it.
We will not give effect to any contract with Jug Makers Guild
of Westchester County concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
We will reimburse each of our employees for the amounts de-
ducted by the respondent from their wages as membership dues or
otherwise on behalf of Jug Makers Guild of Westchester County.
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Federal Labor Union, Local 22806,
A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection. All our employees are free to become or
remain members of this union, or any other labor organization.
POLORON PRODUCTS, INC.,
Employer.
Dated ----------------------- By ---------------- -----------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.