United Mineral & Chemical Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1965

155 N.L.R.B. 1390 (N.L.R.B. 1965)

1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , it will be
recommended that Respondent cease and desist therefrom and take the usual affirma-
tive action recommended in such cases. Any hackpay found to be due William H.
Bailey will be computed in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By laying off William H. Bailey because of his union membership and activity
Respondent violated Section 8(a) (3) and (l) of the Act.
4. By reprimanding and taking disciplinary action against Helen Garner, Mozelle
Hepler, and Jewell Sheppard because of their union membership and activity and
because they gave testimony at the Bailey hearing, Respondent violated Section
8 (,1) (3 ), (4), and (I) of the Act.
5. The unfair labor practices set forth in paragraphs 3 and 4 above are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
United Mineral & Chemical Corporation and United Mechanics'
Union Local 150F , Amalgamated Meat Cutters & Butcher
Workmen of North America , AFL-CIO. Cases A os. 2-CA-9909,
2-CA-9959-2, 2-6'A-9959-3, and ,2-C_<1-10122. December 8, 196'5
DECISION AND ORDER
On July 26, 196.5, Trial Examiner IIe.rbert, Silberman issued his
Decision in the above-entitled. proceeding, finding that Respondent had
engaged in and was enga.pin in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not engaged in certain
other unfair labor practices alleged in t:he complaint and recommended
dismissal as to them. Thereafter, the General Counsel, the Charging
Party, and Respondent filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
The Board 1 has reviewed the rulings of the Trial. Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in certain of the exceptions filed. Ave
therefore adopt the Trial Examiner's findings, conclusions, and reconl
mendations, with the following additions and modifications.
1Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and Zagorial.
155 NLRB No. 132.
UNITED MINERAL & CHEMICAL CORPORATION 1391
1. The Trial Examiner found, and we agree, that Sam Lipetz, in
his remarks to Jarkoff, violated Section 8(a) (1) of the Act by creat-
ing the impression that Respondent was engaging in surveillance of
its employees' union activities. Contrary to the Trial Examiner, we
find merit in the General Counsel's contention that Sam Lipetz'
comments on this occasion also constituted unlawful interrogation in
violation of Section 8(a) (1). Jarkoff's credited and uncontradicted
testimony indicates that Lipetz, after stating that he had a list of union
adheren ,s, asked Jarkoff whether he had in fact signed a- union card.
In view of Sam. Lipetz' position as an owner and officer of Respondent,
his evident hostility to the Union as indicated by other statements made
to J arkoff during this conversation, the fact that Jarkoff was- sum-
moned to Lipetz' office. for the. talk, and the absence of any legitimate
reason for Lipetz' questioning, it is clear that Lipetz' conduct was
aimed at determining the extent of Jarkoft's participation in the L`'nioll
and at discouraging his interest in it and that, by such interrogation,
Respondent unlawfully interfered with and restrained Jarkoff in. his
exercise of rights guaranteed to employees by the _A_Ct. 3
2. The Trial Examiner concluded that the General Counsel did not
prove by a. preponderance of the evidence that Ingrid Iillski's employ-
ment status was changed from that of a temporarily laid-off employee
to a permanently laid-off employee for discriminatory reasons. We
do not agree. Contrary to the Trial Examiner, the record amply
reveals that the General Counsel did not rely "exclusively" on the
Sam Lipetz-_llinski telephone- conversation to support the contention
that Minski was discriminatorily discharged. However, we conclude
that Lipetz' remarks nevertheless provide significant evidence of
Respondent's motivation for Minski's dismissal when viewed in the
entire context of this case.
The record reveals that by April 17 certain work in the mica depart-
illent assigned to MIinski and Grace Hall had slackened and Vice
President Rosenthal, on instructions from President Alexander Lipetz,
the latter being in charge of the mica department, laid of Hall and
Minski on that day. Rosenthal testified that he personally informed
Hall of his action and that he told both Hall and Schiano, the book-
a Sam Lipetz was not called to testify at the hearing. Thus Jarkofc's credited statement
that Lipetz said he saw a list of those employees who signed union cards is undenied
Further evidence of Respondent ' s knowledge of its employees ' union actsvities is the cred-
ited testimony of employee Giraud that Supervisor Kushner, early vn the morning of
April 21 , told Giraud that Kushner knew of the April 20 union meeting and that Giraud
had been in attendance . and the Trial Examiner ' s credibility resolution indicating that ca
April 20 lehlberg told Kushner that a union meeting would be held that night we also
conclude That, in view of the numerous and related violat ion- of Section 8(a) (1) found to
have been committed by Respondent , the additional allegations made by the General Coun-
sel concerning Alexander Lipetz' statements to Olga Gaiay , Kushner 's to Giraud, and
Emanual Lipetz ' to Sciutto , are merely cumulative-
3S. S. Logan Pecking Con±pany, 152 NLRB 421; X.L.R.B. v. Boon. e Bourne, di bia
B ourne Co., 332 F. 2d -1 (C.A. 2).
1392 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
keeper, that Hill's layoff was temporary but that Minski's was to be
-permanent. Rosenthal, however, did not personally tell Minski,- an
employee- for 8 years, of her layoff. On the other hand, Minski, whose
testimony was uncontradicted, stated that both Hall and Schiano told
her that as soon as work picked up she would be recalled. Ro mention
was made to Minski by any party that her layoff was other than
temporary, and she first found out about Respondent's action when
she inquired at the unemployment insurance office in late May. There-
fore, on the entire record herein, we infer that Minski's layoff on
April I 'l was temporary .4
As set forth by the Trial Examiner, Sam Lipetz, during his May
telephone conversation with Minski, asked her whether she had signed
a card. After She replied that she had, Lipetz told her that Respond-
ent was not taking anyone back who has signed a card, demanded to
know whether her husband also was in the Union and denounced and
blamed her for the: Union's organizing efforts. Contrary to the Trial
Examiner, we find it highly improbable that Sam Lipetz, prior to the
May telephone call, did not know that Minski had been discharged or
the reasons therefor. In this connection, Rosenthal stated that Sam
Lipetz came to the plant daily, that he had his office on the fifth floor
where the mica department also was located, that he assisted his
brother, Alexander Lipetz, and that both often traveled to work
together in April 1964 during the height of the Union's organizational
drive.
Respondent's alleged justification for Minski's permanent layoff is
also unpersuasive. It appears that Minski was employed by Respond-
ent for 8 years and worked in the mica. department on both raw and
manufactured mica.. Respondent claims that when mica work was
running low in April, it decided to lay off Hall and Minski, but the
latter permanently and ostensibly because of her unsatisfactory
inspection of the manufactured mica only. However, the record
reveals that until her layoff Minski also had been satisfactorily working
on the raw mica with an electric gauge machine, that unfulfilled
orders on raw mica- were. to remain until October 31 and were in fact
treated with the electric gauge throughout that period, that Rosenthal
4 Thus, Respondent , again without explanation , failed to call as witnesses Hall or
Schiano who could have stated what in fact Rosenthal directed them to do. The failure to
offer the testimony of these material witnesses indicates that if such testimony were
adduced, it would not support Respondent 's position that Minski was permanently laid off
on April 17. See Marriello fiabrics, Inc. and Michael Marriello , 149 NLRB 333; Texas
Coca-Cola Bottling Compa ny, 146 NLRB 420, 433. See also Satilla Rural Electric Mem-
bership Corporation, 129 NLRB 1084, 1091. Accordingly . and in view of llinski s uncon-
tradicted testimony that she was told she would be recalled and the other circumstances
surrounding her discharge, we find that the inference which we have drawn concerning
the nature of her layoff is warranted.
5 Respondent 's operations required the purchase of both raw and manufactured , or fabri-
cated, mica. The unfulfilled contracts in April, however , primarily concerned raw mica,
a product whose inspection apparently required less expertness than that needed for
manufactured mica.
-UNITED MINERAL & CHEMICAL CORPORATION = 1393
expected Respondent's mica business to increase in the future,6 and
that Respondent intended to instruct its suppliers to do the inspecting
of manufactured mica, thus removing the source of Minski's alleged
defective work. Accordingly,-in view of the 6 months" work on raw
mica contracts yet to be completed, the possibility of additional work
in this-area., Minski's 8-year tenure as all employee and her satisfactory
performance on all but inspecting manufactured mica, and the timing
of the discharge during the Union's organizing campaign,7 all viewed
in the context of Respondent's manifest hostility to the Union and its
supporters, we conclude that Minsk-i's status was changed prior to
April 27 from temporarily laid off to permanently laid off because of
her union activities.
A e further conclude that, viewed in its entirety, the li{inski-Sam
Lipetz telephone conversation indicates that Minski desired to resume
work and was calling to determine whether the unemployment insur-
ance office was correct in stating that, contrary to her belief, she had
been permanently laid off. We see no significance, in view of Lipetz'
remarks to her, in Minski failing thereafter to call Rosenthal. In
any event, Lipetz' statement that no union sympathizer would ever
be recalled clearly was aimed at impressing on her Respondent's deter-
mination that she would not resume work as long as she remained a
union adherent. Respondent thereby also violated Section 8 (a) (3).
Accordingly, we shall order her reinstatement with backpay.
3. The Trial Examiner concluded that 14 of the 41 authorization
cards designating the Union as bargaining representative were
invalid.$ Of the 14 cards, 5 were obtained with the assistance of
supervisors and 9 were signed allegedly as a result of misrepresenta-
tions or coercion. The. Trial Examiner further stated that the manner
in which the 14 cards were obtained raised "a genuine question" con-
cerning the. validity of all the remaining cards. Without fully defin-
sIn addition to Rosenthal's testimony, Respondent 's October 30, 1964. letter to Adam
Galan, Respondent's Exhibit No. 22, states . inter alia, "we regret to inform you that,
against our expectations, our Company will receive no further Government mica contracts
as of November 1, 1964." [ Emphasis supplied.]
The unemployment insurance form filed by Respondent with New York State with
respect to Minski is dated April 21, 1964. the date on which many of Respondent 's serious
violations herein occurred . The record also indicates that Hall, unlike Minski , did not
sign a card and was not a union adherent.
We adopt the Trial Examiner 's finding that Werbitzkij was discharged only because of
the existence of the organizational campaign, as conceded by Respondent , and that the
discharge violated Section 8(a)(1) for the reasons set forth by the Trial Examiner. In
reaching this conclusion , however, we place no reliance on X.LR.B. Y. Burnup and Sivns,
Inc., 379 L.S . 21, cited by the Trial Examiner.
8 The Trial Examiner inadvertently stated that he had found that 12 cards allegedly
were invalid . However, based on his findings . it is clear that he should have excluded 14
cards: Tatarka , Werbitzkij , Zajko, Zayas . and Hell on the ground that they were solicited
by supervisors ; Navarette, Perry, Pinto, Toro, Fosley, Suarez, Cardona. Lizardi, and
Rodriguez on other grounds . Accordingly, we find merit in Respondent 's exception in this
respect. However , since we find , for the reasons set forth in the text, that the Union
validly established its majority status, the Trial Examiner 's inadvertent error does not
affect the results of this case.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or resolving this "question," the Trial Examiner concluded that
incidents of picket line violence, coupled with the alleged unlawful
means used in obtaining some. of the cards, compelled a. -dismissal of
the allegations that Respondent violated Section 8(a) (5) of the Act .9
The. Trial Examiner rejected five cards because they were directly
solicited by supervisors at the April 22 union meeting. He excluded
the cards of employees Suarez, Cardonna, Lizardi, and Marian Rod-
riguez, also executed at the April 22 meeting, apparently only because
Thomas and Kohl, who are found to be supervisors, were also present.
however, each of the four employees was thoroughly examined as to
the circumstances under which his card was signed. Their uncon-
tradicted testimony indicates that they signed after being requested
to do so by employees W iprevnick or Rojas or Union President Foner.
None was approached by Thomas or Kohl, and two did not even recall
whether Thomas was at the meeting. -The record also indicates that
during the meeting, which was attended by about vO employees, Fouler
gave a detailed report of the Union's organizational drive. Thomas
and e 11ess participated in. a discussion concerning the nature of the
Union's demands, and, thereafter, a committee of nine was elected,
whic included employee Cardoilina as -e l as Thomas. -Under the
circl.mttances of this case, including the consistent testimony of each
of the four card signers, the fact that Thomas did not solicit. them,
and th3 absence of any indication that Thomas or Kohl influenced anv
employees except as indicated, we conclude that the mere participation
of Thomas and Kohl at the meeting does not taint the otherwise valid
designations signed by employees Suarez, Cardonna, Lizardi, and
Rodriguez 1
We agree with the General Counsel, although for different reasons,
that Pellington was not an eligible employee in the unit. Ivan Rodri-
guez stated that, although Pennington was hired as a permanent
employee, his work was inferior and he was terminated after about
3 weeks' ennployment. Rodriguez' luicontradicted_testimony was that
Pellington -worked front the beginning of April to the third -reek in
April. Moreover, Pellington does not appear on Respondent's pay-
roll records after the period ending April 22, 1964. Since the critical
° We agree with the Trial Examiner that Respondent's refusal to recognize the Union
was not motivated by any good-faith doubt of the Union's majority status. Respondent's
consistent and -flagrant pattern of unlawful conduct after it became aware of union activ-
ity in the plant clearly indicates that by its refusal to recognize or bargain with the
majority representative of its employees , Respondent rejected the collective-bargaining
principle and sought only to gain time within which to undermine the Union and dissipate
its majority. Joy Silk Mills, Inc., 85 LRB 2263. enfd. as modified on -other grounds 185
F. 2d 732 (CA.DC.). cert denied 341 FS. 914. See also Hammond & Yrv'ing, Inccr-
porated, 154 'NLRB 1071.
10 The cases cited at footnote 48 of the Trial 'Examiner's Decision in suppo t of his con-
clusion that all the cards were tainted are clearly factually distinguishable from the
present case.
UNITED MINERAL & CHEMICAL CORPORATION 1395
date for determining the Union's majority status is April 27, we con-
clude that a preponderance of the evidence indicates that Pellington
had been permanently discharged prior to April 27 and we shall
therefore exclude him from eligibility as a unit employee.
We also agree with the General Counsel that Perry's card should
be counted as a valid designation. The Trial Examiner found that
the card was not signed and delivered before April 2 7 based on Parry's
"self-contradictory" testimony and because the card lacked an NLRB
date stamp. However, Perry's testimony, viewed in its entirety,
repeatedly and consistently reveals that his card was signed at least
1 day prior to the April 28 walkout. Even in the one instance the
Trial Examiner apparently relied on to find "self-contradictory" tes-
timony, the signing also was placed prior to April 28. And we do not
view as of critical significance the fact that the NLRB date stamp
does not appear on the card. Accordingly, we shall count Perry's
card.
As the record indicates that the cards of employees Suarez, Car-
donna, Lizardi, Marian Rodriguez, Perry, and Minski 11 should be
included and that the card of Pellington should be. excluded in deter-
mining the Union's majority, we hied that on April 27 the Union had
obtained valid cards from 33 of 55 unit. employees.
4. The Trial Examiner, relying on our decision in Herbert Bernstein,
et al., d/b/a Laura Hodes O'ompany, 144 NLRB 1592, concluded that
because of certain incidents of picket line violence the. Board should
dismiss the allegations that Respondent violated Section 8 (a) (5).
He reasoned that to enter a bargaining order would be to "sanction .. .
the employment of int-imidatory tactics ..." in our representation
process. We do not agree that dismissal is required here. Although
we disapprove of the violence which occurred in this case no -less
strongly than that in Laura. Hodes, the facts and conclusions set forth
in Laura-Modes are inapposite to the circumstances of the present case.
Thus, the union in Laura Hodes was the designated representative of
five employees. After the union demanded recognition, respondent
asked for a day or two so that. it could consult its lawyer. The union
agreed to the delay. But on the next day, without waiting for any
response from respondent, the union's business agent and eight union
members entered the. plant without permission, "beat up" one of the
owners as he attempted to call his lawyer, and "pushed around" a
female office employee. Several days later, during the strike, another
owner was beaten by '-four men." The Board agreed with the Trial
1 As noted above, since we concluded that Minski was discriminatorily discharged prior
to April 27 , we shall include her card in determining the Union 's majority status.
212-809-66-vol. 155-89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner that the respondent violated Section 8(a) (5) but declined
to enter -a bargaining order, stating that we could not "disregard- the
fact that, immediately before and immediately after it filed the instant
charges, the Union evidenced a total disinterest in enforcing its rep-
resentation rights through the peaceful legal process provided by the
Act in that it resorted to and/or encouraged the use-of violent tactics
to compel their grant." The facts in the present case, however, clearly
do not compel taking the extraordinary and-unusual measures of Laura.
Modes. -
In the case now before us, far from indicating any lack of interest
in enforcing its statutory rights through the Board's processes, the
Union zealously sought to do so. It petitioned for an election on
April 22, agreed to Respondent's counterdemand on the. scope of an
appropriate unit, and from the outset offered to have its -majority
status determined through any one or several agencies and individuals.
Even during the strike the Union offered to have a card check to settle
the matter, and it called off the strike on the day the complaint was
issued herein. All of the Union's efforts at seeking a prompt resolu-
tion of its representation claim took place against a background of
Respondent's hostility to the Union, including- discriminatory dis-
charges and serious violations of Section 8(a) (1), and Respondent's
use of dilatory tactics aimed at dissipating the Union's majority
strength. The four or five instances of serious misconduct on the
picket line during the 65-day strike primarily were attributable to
Wiprovnick and Thomas, for whom reinstatement is not sought. These
outbursts, moreover, took place in the heat of picket line- tensions,
and do not appear to -be part of a plan of intimidation as is the case in
Lciura Modes. Accordingly, under all the circumstances, we conclude
that, in fashioning our remedy for Respondent's violations, this case
is not one in which we should refuse to direct our usual affirmative
bargaining order.12 Therefore, as the Union is the majority represent-
ative of Respondent's employees in an appropriate unit, we shall order
Respondent to bargain collectively with the Union as the exclusive
representative of said employees.
ORDER
Pursuant to Section 10(c) of the National Labor Relations -Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent United Mineral & Chemical Corporation, New York,
New York, its officers, agents, successors, and assigns, shall : -
12 Cf. Sah-Eer Co., 128 NLRB 1062,"and see footnote 1 in Laura Modes Company, 144
NLRB 1592, 1590. - - - -
UNITED MINERAL & CHEMICAL CORPORATION 1397
1. Cease and desist from :
(a) Discouraging membership in or assistance to United Mechanics'
Union Local 150F, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-C-10, or any other labor organization, by
discharging any of its employees; or in any other manner discriminat-
ing against any of its employees in regard to their hire, tenure of
employment, or any term or condition of their employment..
(b) Interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act, by dis-
charging or otherwise discriminating against employees in order to
support or develop defenses against potential unfair labor practice
charges.
(c) Conveying the impression of surveillance of union activities
by statements to employees or by other conduct, or requesting employ-
ees to engage in surveillance of the union activities of other employ-
ees, or requesting employees to report the union activities of other
employees.
(d) Interrogating employees about their union activities in a man-
ner constituting interference, restraint, or coercion in violation of
Section 8(a) (1) of the Act.
(e) Threatening employees with job loss, including threats not to
recall employees to their former jobs, because they designated or at-
tempted to select a union as their collective-bargaining representative.
(f) Refusing to bargain collectively with United Mechanics' Union
Local 150F, Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, as the exclusive representative of all its
employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment.
(g) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist. any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds
will effectuate, the policies of the Act:
(a) Offer Ingrid Minski and Wadim W'Verbitzkij immediate and
fu11 reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may have suffered
by reason of their unlawful discharge, with backpay to commence on
April 21 and 24,-1964, respectively, in the manner set forth in the
section of the Trial Examiner's Decision entitled "The Remedy."
(b) Notify -Wadi_m Werbitzkij and Ingrid Minski if presently
serving in the Armed Forces of the United States of their right to
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(c) Make Marvin Wiprovnick whole for any loss of earnings he
may have suffered between April 21 and May 4, 1964, by reason of
Respondent's discrimination against him in the manner set forth in
the section of the Trial Examiner's Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records relevant to a determination of the amount of
backpay due to said employees.
(e) Upon request, bargain collectively with United Mechanics'
Union Local 150F, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit, and embody any understanding
reached in a signed contract.
(f) Post at their place of business in New York, New York, copies
of the attached notice marked "Appendix." 13 Copies of said notice,
to be furnished by the Regional Director for Region 2, shall, after
being duly signed by an authorized representative of Respondent,
Titan, and Consolidated, be posted by them immediately upon receipt
thereof, and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted.14 Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
14 Because many of the employees who were witnesses at the hearing required the services
of a Spanish-English or Russian -English interpreter, the Regional Director shall furnish
an appropriate number of copies of the attached notice in the Spanish and Russian lan-
guages, for posting in accordance with the terms of this Order.
APPENDIX
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, as amended, we hereby notify you that:
WE WILL NOT discourage membership in or assistance to United
Mechanics' Union Local 150F, Amalgamated Meat Cutters &
UNITED - MINERAL &_ CHEMICAL CORPORATION 1399
Butcher Workmen of North America, AFL-CIO, or any other
labor organization, by discharging any of our employees, or in
any other manner discriminating against any of our employees
in regard to, their hire, tenure of employment, or any term or
condition of their employment.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by Section 7 of the
Act, by discharging or otherwise discriminating against employ-
ees in order to support or develop defenses against potential
unfair labor practice charges.
A TE WILL NOT convey the impression of surveillance of the union
activities of our employees by statements to employees or by
other conduct, nor shall we request employees to engage in sur-
veillance of the union activities of other employees, or request
employees to report the union activities of other employees.
WE WILL oT interrogate employees about their union activities
in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
WW'E WILL NOT threaten employees with job loss, including threats
not to recall employees to their former jobs, because they des-
ignated or attempted to select a union as their collective-bargaining
representative.
WE WILL NoT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities.
AV, E WILL make Marvin Wiprovnick whole for any loss of earn-
ings he. may have suffered for the period between April 21 and
May 4, 1964, by reason of our discrimination against him.
WE WILL offer to Ingrid Minski and Wadim Werbitzkij imme-
diate and full reinstatement to their former or substantially
equivalent positions, without prejudice, to their seniority or other
rights and privileges, and make them whole for any loss of earn-
ings they may have suffered as a result of our discrimination
against them.
W TE WILL bargain collectively in good faith with United
Mechanics' Union Local 150F, Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO, as the exclusive
representative of all our employees in the appropriate unit with
1400 DECISIONS OF NATIOA'WAL-LABOR-31,RLATION'S BOARD
respect to rates of pay, wages, hours of employment;-and other
terms and conditions of employment.
T - IT"ED MINERAL & C tMICAL CoRroRATIO N,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
TIT-A,_-\T PLASTICS CORPORATION,
Em loyer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
CONSOLIDATED DIST'RInuTTORS, I-N C.,
E;nployer.
(Representative ) . (Title)
NOTE.-We will notify Wadim 3 arbitzkij and Ingrid Minski if
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 1048, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, an id must not be altered, defaced, or covered my any
ether material.
If employees have any questions concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue,
New York, 1\ ew York, Telephone No. 751-5500.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on various dates between April 22 and July 8, 1964, by United
Mechanics' Union Local 150F, Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, herein called the Union, a consolidated amended com-
plaint, dated October '27, 1964, was duly issued alleging that the Respondent,
United -Mineral & Chemical Corporation, herein called United or the Company,
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and ( 5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended , herein called the Act. The consol idated amended com-
plaint, as further amended during the hearing, in substance, alleges that : ( a) the
Respondent, on various dates in April and May 1964, unlawfully discharged Marvin
Wiprovnick, Wadim Werbitzkij, Adolph Thomas, and Ingrid Minski and unlawfully
has failed and has refused to reinstate said employees to their former positions
since the date of their respective discharges except that Respondent did not unlaw-
fully refuse to reinstate Adolph Thomas after May 4 and Marvin Wiprovnick after
June 26, 1964; (b) since April 21, 1964, Respondent unlawfully has refused to bar-
gain collectively with the Union as the representative of the employees in an appro-
priate unit; (c) by reason of the aforesaid acts and other conduct set forth in the
complaint Respondent has interfered with, restrained , and coerced employees in
the exercise of the rights guaranteed in Section 7 of the Act ; and further (d)
Respondent and its affiliated companies , Titan Plastics Corporation and Consoli-
dated Distributors, Inc., are responsible for remedying the alleged unfair labor prac-
UNITED MINERAL & CHEMICAL CORPORATION 1401
tires. The Respondent duly filed an answer to the consolidated amended complaint
which, as amended at the hearing, generally denies that it has engaged in the alleged
unfair labor practices. - A hearing in this proceeding was held before Trial Examiner
Herbert Silberman at New York, New York, or various days between November 23,
1964, and February 10, 1965. Thereafter briefs were duly flied by the General
Counsel and by the Respondent.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following: -
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
IT_. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
1. United and affiliated companies constitute a single employer
United, a New York corporation, which maintains its principal office and place of
business at 16 Hudson Street, New York, is engaged in the business of converting,
selling, and distributing mica, abrasives, packaging material, and related products.
The complaint alleges that Titan Plastics Corporation, a New York corporation,
herein called Titan; and Consolidated Distributors, Inc., a New York corporation,
herein called Consolidated, are affiliated with United and that the three corporations
constitute a single integrated business enterprise so that both Titan and Consolidated
are responsible for remedying the unfair practices of the Respondent.-
Titan maintains its plant at 46 Beach Street ( also known as 139-141 Hudson
Street) in New York, New York, which is approximately five city blocks from
16 Hudson Street, where it is engaged in the manufacture, sale, and distribution of
plastics, plastic laminations, and related products. Consolidated maintains its prin-
cipal place of business at the 16 Hudson Street premises where it is engaged in
importing capacitors and related products. Consolidated employs only salesmen
and clerks; manual labor required in connection with its operations is -furnished -by
United.
The three corporations have common stockholders, officers, and directors. Alex-
ander Lipetz and his brothers, Samuel and Emanuel Lipetz, are the stockholders
of United, while Alexander Lipetz i s the sole stockholder of Titan and Consolidated.
Alexander Lipetz is the president and the chief executive officer and a- director of
the three corporations. Emanuel Lipetz and Jack Gelblum are also officers and
directors of the three corporations. Alexander and Emanuel Lipetz and Jack Gel-
blum are the only officers and directors of Titan and Consolidated. However, in
addition to these three individuals, Samuel Lipetz and Herbert M. Rosenthal are
officers and directors of United.
The employees of the three corporations are carried on the payroll of United and
are covered by a single policy of workmen 7s, compensation insurance. Similarly,
various governmental reports with respect to the employees of the three companies
such as under the Federal Insurance Contributions Act (for social security) and the
New York State Unemployment Insurance Law and New York State Disability
Benefits Law are prepared by and are filed under the name of United. The premises
occupied by the three corporations are leased -by United. The films' accountants
make intercorporate adjustments in the-books of the three companies to allocate
among them the labor costs and administrative and other expenses which-are initially
assumed by United.
Upon the basis of the corrm_mon management, common ownership, and common
financial control of the three corporations, the ultimate supervision of corporate
policies, including those affecting employees, by their common president, Alexander
Lipetz, and the centralized administration of the affairs of the three corporations,
I find- that United. Titan and Consolidated constitute a single -employer under the
Act and therefore Titan and Consolidated are liable-for remedying any unfair labor
practices on the part of United which may be found herein.' In_the course Of their
respective operations, United, Titan, and Consolidated annually sell and cause to
1 Schnell Tool ,& Die Corporation, and Salem Stamping & Mama; aeturing Co., Inc., 144
NLRB 983. See also N.L.R.B. v. Stowe Spinning Company, at al., 336 U . S. 226, 227;
N.L.R.B. v. C. C. C. Associates, Inc., 283 F. 2d 242 (C.A. 2).
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be shipped in channels of interstate commerce goods and products exceeding
$500,000 in value. Accordingly, I further find that each said company is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The appropriate unit
General Counsel contends and, for reasons explicated below, I find that all pro-
duction and maintenance employees, including shipping employees and chauffeurs,
employed by United, Titan, and Consolidated 2 at their New York City plants,
exclusive of office clerical employees, managerial employees, guards, and supervisors
as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
The Companies' operations in New York City are divided among the following
five departments:
1. Mica department, located on the fifth floor of 16 Hudson Street. The employ-
ees in this department sort and pack raw mica. There is no flow of this product to
or from any other department except that the shipments to customers are handled
by the employees of the electronic and shipping department.
2. Electronics and shipping department, also located on the fifth floor of 16 Hud-
son Street. This department, which handles electronic component parts and manu-
factured mica, is engaged in a warehouse and shipping operation. The employees
in this department perform no converting, assembling, or manufacturing work. There
is no flow of the electronic products to or from any other department.
3. Abrasives department, located on the fourth floor of 46 Beach Street. This
department is engaged in converting abrasive materials received in bulk into abrasive
belts. Products used in this department are received and shipped from a warehouse
located at 173 Duane Street, New York, New York. The warehouse is about six
city blocks from the Beach Street premises and about one city block from the Hudson
Street premises. Respondent in its dealings with the Union took the position that
the employees who work in this warehouse should be included in the abrasives
department.
4. Packaging department, located on the fifth floor of 46 Beach Street. This
department is engaged in converting bulk material into packaging materials suitable
for military and industrial use.
5. The four departments described above are operated under the name of United.
A fifth department, the plastic laminations department, is located on the sixth floor
of 46 Beach Street. This department, which is operated by Titan, is engaged in the
manufacture of plastic laminated plaques.
United also maintains a germanium refining operation, which employs three or
four people, in New Brunswick, New Jersey, approximately 44 miles from its other
operations in New York.
Each of the above-listed departments is headed by a manager, who are the
following:
Mica department-Alexander I. Lipetz (Herbert Rosenthal, a vice president of
United, assists Alexander Lipetz "in the overall conduct of the Company" including
the management of the mica department.
Electronics and shipping department-Herbert Rosenthal.
Abrasives department-Walter S. Kirk. (However, the 173 Duane Street ware-
house, which sometimes is referred to as the tape and abrasives shipping department,
is managed by Alexander I. Lipetz.)
Packaging department-Emanuel Lipetz.
Plastic laminations department-Emanuel Lipetz.3
Respondent contends that each of the departments constitutes a separate appro-
priate unit and, in the alternative, if a single production and maintenance unit should
be found appropriate it should include the New Brunswick plant. I find no merit
to either contention. Except for one employee, Herminio Gonzales, who was tem-
porarily transferred from New Brunswick to assist in the renovation of the 46 Beach
2 Although the complaint as drafted limits the scope of the unit to employees of United,
the case was litigated by the parties on the basis that the General Counsel was contending
that the appropriate unit included the production and maintenance employees of the three
affiliated companies.
2 The record does not show who is the manager of the New Brunswick plant.
UNITED MINERAL & CHEMICAL CORPORATION 1403
Street premises,4 there has been no personnel or operational connection between the
New Brunswick plant and the New York plants. Because of the substantial distance
between the New Brunswick plant and the New York plants and the relative inde-
pendence of the New Brunswick operation from the New York operations, I find,
in agreement with the General Counsel, that the employees at this location should
properly be excluded from the proposed collective-bargaining unit.
An overall unit of production and maintenance employees is traditionally appro-
priate. In this case, the New York departments are serviced by a single group of
clerical employees (although each department may do some of its own clerical
work) and are connected to a single telephone switchboard. The employees of the
New York departments are carried on one payroll and are subject to the ultimate
supervision and direction of Alexander Lipetz. In addition, there is considerable
overlapping of authority on the managerial level. Thus, while Kirk is manager of
the abrasives department, the related tape and abrasives shipping department is
managed by Alexander I. Lipetz. Rosenthal, who is manager of the electronics and
shipping department, assists Alexander L Lipetz in the management of the mica
department. Emanuel Lipetz is manager of both the plastic laminations and the
packaging departments. Employees in these two departments are interchanged and
the personnel policies and practices in- these departments are similar. Although the
managers of-the several departments may have considerable discretion in establish-
ing the personnel policies for their respective departments, nevertheless, there are
areas of uniformity among all five departments. Thus, Herbert Rosenthal testified
that there is a single policy for all departments with respect to the authority of
supervisors. I find that Respondent has not -demonstrated facts or reasons sufficient
to justify a deviation from the Board's traditional policy of finding that an overall
unit of production and maintenance employees is appropriate for the purposes of
collective bargaining.
B. Sequence of events
Largely due to the initiative of Marvin Wiprovnick, who was employed in Re-
spondent's mica department, a campaign on behalf of the Union to organize Re-
spondent's employees 5 at their various New York locations was begun in April
1964. Following a meeting with William Geffner, an International representative
of the Union, Wiprovnick on Monday, April 13, 1964, began soliciting employees
to sign authorization cards.6 During that week Wiprovnick succeeded in obtaining
4 The 46 Beach Street building was acquired in 1963 by the Hudson -Beach Street Cor-
poration, a corporation owned and controlled by Alexander Lipetz (possibly together with
one or both of his brothers ). In late 1963 and early 1964, the property was renovated
for use by United and Titan. A number of persons were hired during this period for work
in connection with such renovations. In addition, Gonzales was transferred from his
regular employment at the New Brunswick plant to assist in the renovations work.
5Including the employees in the plastic laminations department, which department
nominally is operated by Titan.
Most of these cards, in pertinent part, read as follows:
I hereby apply for membership in Local , FLM Joint Board (A. M. C. & B. W. of
N. A., AFL-CIO) and authorize and empower its authorized representatives to rep-
resent me and negotiate in my behalf as my agent for collective bargaining and the
- settlement and adjustment of grievances involving my conditions of employment.
These cards are used by the Union and other constituent locals of the Joint Board. (The
Union and other locals of Amalgamated Meat Cutters & Butcher Workmen of North
America are members of the Joint Board, Fur, Leather and Machine Workers Union )
When the solicitation is on behalf of Local 150F the designation "150F" is supposed to
be inserted in the blank space on the card. Several employees testified that when they
signed the authorization cards the space following the word "Local" was blank. Respond-
ent asserts that these employees did not know which labor organization they were joining
or authorizing and therefore their cards are not valid designations. I find no merit to
this argument. First, it is clear from the face of the authorization card that it purports
to be a designation of a local of the Joint Board. Second. as all solicitations among
Respondent's employees were on behalf of Local 150F, it would be unreasonable to assume
that employees believed that by signing the cards they were designating some other local
of the Joint Board, particularly as there is no evidence in the record that any employee
who had signed such card was acquainted with any local of the Joint Board other than
Local 150F.
^_;-
90
/B DECISIONS as Vii, 3'i®Ti _&L LABOR -ILELATi0-TINu -B0:'s-_qD
a substantial number -of executed cards from Respondent's employees. - He was
assisted in this endeavor by several employees, among the most active of whom
were Aurora Rojas and Adolf Thomas, a supervisor. Or. Monday evening, April 20,
1964, a- meeting of Respondent's employees was held at the Union's headquarters
which was attended by approximately 12 employees, including Wiprov nick and
Thomas. The next morning, .April 21, Wiprovnick was discharged. General Coun-
sel contends that -Wiprovnick was discharged because of his activity on behalf of
the Union, while Respondent contends that it did not, at that time, have any knowl-
edge of organizational activity among its employees and that it discharged Wiprov-
nick because it had received information the night before to the effect that Wiprovnick
had stolen liquor from the Company during the preceding Christmas season.
Wiprovnick promptly informed the Union of his discharge. As a consequence
two" union representatives were sent to the Respondent's offices to request Wiprov-
nick's reinstatement and to demand recognition.? They met with Jack Gelblum, a
company officer, in the afternoon of April 21 and -stated the purpose of their visit.
Nothing constructive resulted from the meeting because Gelblum advised them that
it would be necessary for them to speak with Alexander Lipetz, who was not then
available.s When the union representatives offered to -wait for Alexander Lipetz,
Gelblum threatened to call the police to throw them out. The next day the Union
filed a representation petition with the Board and also an unfair labor practice
charge based upon Wiprovnick's discharge. - -
In the morning of Wednesday, April 22, the Union distributed at Respondent's
plants a printed announcement of a meeting- to be held at the Union's headquarters
that evening. Approximately 50 employees attended the meeting including two
supervisors, Horst-Kohl and Adolf Thomas. According to Henry Foner, president
of the Joint Board of which Local 150F is a constituent, he reported to the meeting
the status of the organizational campaign and the benefits the Union would bring
to the employees if it succeeded in obtaining a collective-bargaining agreement.
Thomas spoke at length to the employees during the meeting. Foner then asked
employees who had not already done so to sign authorization cards .9 Lastly, a
committee of nine employees, including Thomas, was elected to accompany officials
of the Union the next morning to Respondent's offices for the purpose of demanding
recognition of the Union and the reinstatement of Wiprovnick.
- The union delegation went to Respondent's offices about 8:15 a.m. on Thursday,
April 23. After being advised by Gelblum that Alexander Lipetz was not in the
office the committee waited - for him in the lunchroom on the same floor of the
building. Lipetz arrived about 9 a.m.- and went directly into his private office where
a_person with whom he had a prior appointment was waiting for him. Foner, upon
learning of Lipetz' arrival, without being announced burst into Lipetz' office. While
there Foner made an appointment for the union delegation to meet with Respond-
ent's attorney, -Benjamin Mandelker, at 1 p.m. the same afternoon. At that meeting
the Union requested recognition as the representative of a unit of Respondent's
production and maintenance employees 10 and the reinstatement of Wiprovnick.
Mandel_ker informed the union delegation that he would advise them further in, the
matter after he discusses the situation with his client.'
About 4:30 p.m. that day, Mandelker informed Fonet that the Respondent would
not voluntarily reinstate Wiprovnick. As to the Union's - demand for recognition,
he informed Foner that the Respondent's position was that it would discuss recog-
nition of the Union only on the basis of five appropriate units, divided as follows:
(1) mica department, (2) packaging department, (3) plastic laminations depart-
ment, (4) abrasives and tape and abrasives shipping department, and (5) electronics
As of such time the Union had received in excess of 25 executed authorization cards
from Respondent's employees . However, General Counsel does not claim that the Union
then represented a majority of the employees in the appropriate unit.
8 Respondent contends that the union representatives in their conversation with Gelblum
requested recognition on behalf of Local 64 rather than Local 150F . As Gelblum was not
called upon to testify and as Menicle James, one of the union representatives involved in
this incident . credibly testified that he identified himself to Gelblum as the representative
of Local 15OF and did not mention Local 64 to Gelblum in their conversation , I find no
merit in Respondent's assertion that the initial approach to the Company was on behalf
of Local 64 rather than Local 1550F.
9 A substantial number of cards were signed at -that meeting and within a few days
thereafter. -
IU There is no evidence that, during any of the discussions between the Respondent and
the Union , Respondent adverted to its New Brunswick plant or contended that the em-
ployees in that plant should be included in any of the units discussed by the parties.
UNITED MINERAL & CHE MICAL CCRpoRATIo3Nd 445
and shipping department. Foner agreed to accept Respondent's position regarding
the appropriate units. -Mandelker then stated that a card check would be necessary,
and that such a card check should be,condlct_ed by a governmental agency, suggest-
ing the State mediation board, among other such agencies.
On April 24 the Union withdrew its pending petition for certification of repre-
'ser_tatiyes h r order to secure the authorization cards which had been filed with the
Board in support of the petition. On April 24, Mandelker was advised by Union
Attorney Harold Cainmer that the New York City labor department had agreed to
conduct the card check. Mandelker replied that he would inform his client of the
fast and would call Cammer later in the day and let him know whether the city labor
department would be satisfactory."
Lite in the afternoon on Friday, April 24, Respondent discharged Adolf Thomas
and two other employees, Werbitzkij and Hernandez, who worked with Thomas in
the Duane Street warehouse, allegedly for their participation in a scheme whereby
their timecards were punched at times when one or the other of them, particularly
Thomas, was not at work. According to Respondent, it first learned of this practice
early in the morning on April 23 when Alexander Lipetz stopped at the warehouse
to speak with Thomas. General Counsel acknowledges that the employees had
engaged-in the offending practice but contends that the asserted reason for the dis-
charges is pretextual and that Respondent 's true reason for discharging Thomas was
because of his union -activities and that Werbitzkij and Hernandez were discharged
only to provide a nondiscriminatory appearance to Thomas' discharge.
On April 27, Mandelker again spoke with Cammer. Mandelker informed Cass
mer that 'on the previous Friday, April 24, he had been advised by his client that
a number of employees had been coerced into signing authorization cards and
because of this the Company would not agree to a card check: - Mandelker further
informed Canner that he had sent one of his office associates to interview Respond-
ent employees and that on the basis of the information obtained from these inter-
views he -was going to file unfair labor practice charges against the Union. Follow-
ing this- conversation, the Union refiled its representation petition with the NatiQnal
Labor Relations. Board.
On the morning of April 28 the Union requested employees to attend a meeting
instead of reporting to work and a strike against Respondent began as of that time-
During the course of the strike there were several meetings between the Respondent
and the Union. However, the -parties were unable to settle their dispute at thes=e
meetings. Respondent maintained the position that it would not recognize the
Union or voluntarily participate in a Board's conducted election until the unfair
labor practice charges against the Union shall have been first resolved. The Union
called off the strike on July 3, 1964, when the Board issued its complaint in this
proceeding. The strike was characterized by a number of incidents of-siolence and
a substantial question in this case is whether a bargaining order should issue even
if the substantive elements of a Section 8(a) (5) violation was proved.`
C. Interference, restraint, ,and coercion
The complaint alleges as violations of Section 8(a)(1) of the Act , independent
of the alleged violations of Section 8(a) (3) and (5), that on or about April 21, 1964,
Respondent created the impression that it had engaged in the surveillance of union
meetings and the concerted activities of its employees and that on - or about April 16,
1964, Respondent, by Emanuel Lipetz and others , interrogated employees concerning
their membership in, activities on behalf of, and sympathies for the Union. As
amplified by his bill of particulars and brief, General Counsel relies upon the inci-
dents discussed below to support these allegations of the complaint.
1. Juan Giraud, who worked in the mica department (together with Wiprovnick
and others ) testified that about 8:30 a.m. on the day Wiprovnick was discharged
(April 21), his supervisor, Borish Kushner, called him into the hallway outside the
mica room. According to Giraud, Kushner "told me, `Juan, I know where you was
last night . I want to know why you went there, you went to the meeting with the
n Cammer telephoned Mandeiker later the same day and informed M andeiker that the
National Labor Relations Board would hold an election the following Thursday if the
parties signed a consent-election agreement the same day, that is on April 24. Mandelker
replied that it was not possible for him to go to the offices of the Board that day for the
purposes of signing such agreement and also that he would have to discuss the alternatives
with his client.
12 See Laura Modes Company, 144 NLRB 1592.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union' ... So I told Boris, `If you want to find out, find somebody else' ... He told
me why Marvin Wiprovnick was fired, because of his attitude ... [H]e told me as
soon as Marvin started in the company, I change. So I told him, `Look Boris I got
nothing against Marvin. The only thing that make me change is the company,
because last year we got two weeks (vacation). Now it's cut down to one week.
The five days sick leave been cut down."
Kushner testified that because Wiprovnick and Giraud had been on very friendly
terms he was questioned on April 20 and 21 by Alexander Lipetz and Emanuel
Lipetz, respectively, as to whether Giraud had participated with Wiprovnick in the
alleged thefts of liquor. Kushner further testified that in an attempt to obtain
information concerning Giraud's possible complicity in-the misconduct, in the morn-
ing of April 22, he engaged Giraud in a discussion about the subject.- The conver-
sation began when Giraud inquired why Wiprovnick had been fired. According to
Kushner, "[slo I told him, did you know what Marvin was doing during Christmas?
Did you have anything to do with the stealing of liquor? He said, no." Kushner
then said to Giraud "that Marvin had been a bad influence on him, that since he
(Wiprovnick) came to work in the company, his (Giraud's) work had been very
bad ... Giraud said, the only thing that made me change was because they cut the
vacation and the sick leave out." Kushner. specifically denied that there was any
mention of the union meeting in his conversation with Giraud.
The testimony of Giraud and Kushner is in conflict in two important respects;
namely, the date on which it took place and whether Kushner said he knew _Giraud
had attended the union meeting the night before. I am of the opinion that Giraud's
version of his conversation with Kushner is the more accurate one. Kushner, at
the time of the hearing, was still employed by the Respondent as the supervisor of
the mica department. He was involved not only in the conversation described above
but also in the discharge of Wiprovnick, which is alleged in the complaint to have
been a violation of the Act.- His deportment as a witness in this proceeding reflected
an anxiety on his part that the matters in issue which involved him should be resolved
in favor of the Respondent; in general, he impressed me as being an unreliable wit-
ness. On the other hand, Giraud impressed me as being a credible witness. - No
evidence was adduced to show any hostility on the part of Giraud toward the
Respondent or any strong loyalty to the Union,13 or otherwise tending to impeach
his testimony. Accordingly, I credit Giraud's testimony that on April 21 Kushner
told Giraud that Kushner knew that Giraud had been at a union meeting the pre-
vious night and that Kushner wanted to know why he went. These remarks created
the impression that Respondent was spying upon the union activities of its employees.
"Few propositions are more firmly embedded in the law of labor relations than that
an employer who spies upon the union activities of his employees engages in a
flagrant violation of the rights guaranteed by Section 7 of the Act." 14 It.does not
matter that the employer may not have in fact been engaged in such surveillance.
Employee rights are subject to the same interference irrespective or whether an
employer actually engages in surveillance of union activities or creates the impres-
sion through its statements that the employees' union activities are being watched-15
I find, therefore, that by reason of the described conduct on the part of Kushner,
Respondent violated Section 8 (a) (1) of the Act.
2. Peter Jarkoff testified that about 9:30 a.m. on July 21, 1964, he was called into
Samuel Lipetz' office where the latter said to him, "I know that you signed union
cards." Jarkoff inquired who had given him such information. Lipetz replied,
"Mr. Rosenthal told me that you signed a union card and I saw your name in the
list . . . Did you sign or not?" Jarkoff then admitted that he had signed a union
card. Although Jarkoff testified that he was certain that the conversation occurred
on April 21, because of matters brought out on his cross-examination, I find that
the conversation did not take place prior to April 23. Rosenthal, who impressed me
as being a credible witness, testified that he did not tell Samuel Lipetz that Jarkoff
had signed a union card and that he never had, and did not know anyone in man-
agement who had, a list of employees who had signed union cards. However,
is If Kushner were to be credited. Giraud was hostile to Wiprovnick and had no reason
to color his testimony to favor Wiprovnick.
14 Wallace Press, Inc., 146 XLRB 1236, 1238.
Hendrix Manufacturing Company, Inc v. 2.L.R.B., 321 F. 2d 100. 104, footnote 7
(C.A. 5) ; N.L.P.B. v. United Wire d, Supply Corp., 312 F. 2d 11, 13-14 (C.A. 1) ; Miller
Industries, Incorporated, 152 NLRB 810. -
ENITED MINERAL & CHEMICAL CORPORATION 1407
Samuel Lipetz was not called to testify at the hearing . Thus Jarkoff's testimony
concerning his conversation with Samuel Lipetz is uncontradicted. Although
Jarkoff's error as to the date of his conversation with Samuel Lipetz and Rosenthal's
testimony raise a question as to the reliability of Jarkoff 's testimony , nevertheless,
Jarkoff did not impress me as being an untruthful witness and , absent any denial
by Samuel Lipetz, I credit Jarkoff as to the substance of his conversation with
Samuel Lipetz which I find took place some time between April 23 and 27, 1964.
As Samuel Lipetz' statement to Jarkoff that the former knew that Jarkeff had signed
a union card served to create the impression that Respondent was spying upon the
union activities of its employees, T find thereby that Respondent has violated Section
8 (a) (1) of the Act.16
3. Olga Galay testified that in the morning on April 21, 1964, Alexander Lipetz
called her into his office. When she arrived he said, "Olga, I'm surprised at you . . .
If you didn't like the job at the company, you could leave. Nobody was keeping
you back." According to Galay, Lipetz also said that although her husband was
a tremendous worker, the same thing goes for him and Lipetz mentioned that the
company had fired Marvin Wiprovnick because he was a bad worker. I find that
the foregoing does not establish a violation of the Act.
4. Miguel Zayas testified that after lunch on April 21, Joseph Moschetto 17 told
him and Adolfo Barrios (also known as Cookie) "if anybody ... came to us about
a union, asked us not to sign anything, to come to him and [tell] him about it, that
he would deal with it." Zayas further testified that later in the same day Emanuel
Lipetz came to the area where Zayas, Barrios, and Moschetto were working and in
a conversation with the group said, "Persons were signing in the union, were not to
pay attention to them. If anybody came to me-that was direct to me-if anybody
came to me, to tell him about it.'; Zayas also testified that as he was returning to
the plant after lunch on April 23, Emanuel Lipe*_z observed him talking with two
other employees and cared him aside to inquire whether the conversation was about
the Union.
The credibility of Zayas' testimony is vigorously attacked by Respondent.
Although Barrios, who, according to Zayas, was present at the group discussion with
Emanuel Lipetz on April 21, was called as a witness by General Counsel, no attempt
was made by General Counsel to obtain corroboration of the incident from Barrios.
On the other hand, Moschetto, who was called as a witness by Respondent, denied
that any such discussion took place and Emanuel Lipetz contradicted Zayas as to
both incidents described above. Respondent suggests that Zayas may have fabri-
cated his testimony because of an animus to Respondent . In support of this conten-
tion Respondent showed that on July 18, 1964, Zayas was formally reprimanded by
letter because of his low rate of production and that on November 25, 1964, he was
again given a letter of reprimand. The offense described in the second letter of
reprimand was annoying and insulting a female employee , and for that offense he
was given a disciplinary layoff of 1 week from November 25 to December 3.
Also, Zayas admitted that on November 25, 1964, he told Moschetto that he was
going to slow down in his work if there was no overtime . Bearing further upon
Zayas' credibility is the fact that he testified at the instant hearing on December 1
and 2 while he was still subject to the disciplinary layoff and that the General Coun-
sel for the first time learned from Zayas about the above-described conversations
between Zayas and Emanuel Lipetz only a few hours before he called Zayas to the
stand. Because of the absence of corroboration of Zayas' testimony in circumstances
where corroborative evidence should have been available, the possible hostility of
Zayas toward Respondent, and the denials of Moschetto and Emanuel Lipetz, I do
not credit the testimony of Zayas concerning his conversations with Emanuel Lipetz.
5. A conversation between Lawrence Sciutto and Emanuel Lipetz is alleged to con-
stitute a violation of Section 8(a) (1). There is no conlict between the testimony of
Sciutto and Lipetz as to what was said on the occasion in question. As I believe that
Lipetz was the more reliable witness, I accept his version of the conversation as the
16 General Counsel does not contend that Jarkoff's testimony constitutes evidence of un-
lawful interrogation and I agree that, in the circumstances , cam Lipeta' inquiry as to
whether Jarkoff had signed a card did not constitute a form of coercive interrogation.
Cannon Electric Compeny, 151 NLRB 1465.
17 Zayas referred to Aoschetto as his foreman . The record does not support such asser-
tion and General Counsel does not contend that Moschetto was a foreman or other man-
agement representative.
1-1-08 DECISIONS OF NATIONAL LABOR R. LATION-S BOARD
more accurate. According to Emanuel Lipetz, in the afternoon of April 23,18
approach Mr. Sciutto ... and 1 asked him to keep his eyes open. If he sees something,
some kind of union activity, he should report it to me.- A request, such as this, to
an employee to engage in surveillance of the union activities of other employees and
to leport such activities to the Respondent constitutes interference, restraint, and
coercion of employees in the exercise of the rights guaranteed them by Section 7 of
the Act and thereby violates Section 8(a) (1).i9 Respondent contends that the pur-
pose of Emanuel L;Detz' request to Sciutto was to obtain information in order to
determine whether it would be desirable to adopt a rule against solicitation. Assum-
ing the truth of such assertion, it does not constitute a legally justifiable excuse for
Respondent's conduct. As was stated in Welch Scientific Co., Inc. v. N.L.R.B., 340
F. 2d 199, 203 (C.A. 2), "In essence the company argues that as its actions were
taken in good faith it committed no unfai lobar pilot ce . [1]f the conduct com-
plained of otherwise violated Section 8(a)(1), good faith is no defense. The cases
clearly demonstrates that it is the tendency of an employe: s conduct to interfere with
the rights of his employees protected by Section 8(a)(1), rather than his motives,
that is controlling."
D. The alleged discriminatory discharges
1. Marvin Wiprovnick
Marvin Wiprovnick, who began working for Respondent in September 1962, was
peremptorily discharged by Supervisor Boris Kushner when he reported for work at
8:10 a.m. on April 21, 1964. Kushner gave Wiprovnick no explanation for this action
merely informing Wiprovnick that "Mr. (Alexander) Lipetz, the night before, told
me to fire you and you know the reason very well why." General Counsel contends
that Wiprovnick was abruptly discharged because of his activities on behalf of the
Union. Respondent denies that it had any knowledge of organizational activity among
its employees when it discharged Wiprovnick 2° and contends that it discharged
Wiprovnick because of a suspicion that he had stolen liquor from the Company.
Respondent customarily distributes a substantial quantity of liquor, candy, and
packaged hams to its customers and other persons as Christmas gifts. The employees
who work in the mica department have the duty of wrapping the gift parcels.
Respondent claims that it received information in the evening of April 20 that during
the 1963 Christmas season Wiprovnick had stolen liquor. Boris Kushner testified that
at 5:10 p.m. on April 20 as he and Elfrieda Mehlberg, another employee in the mica
department, were leaving the plant (the normal quitting time for the employees was
4:30 p.m. so that no one else was present), he had the following conversation with
her: "I said to her, I didn't know what was the, matter with Juan (Giraud) and Mar-
vin (Wiprovnick), they were very lax in their work. So she said to me, Marvin was
stealing liquor during Christmas time and I said, Why didn't you tell me before?' She
said, `I made Olga (Galay) a promise not to say anything .' . . I asked her how she
knew. She told me that during Christmas Olga told her, "Look what Marvin is doing,
he is putting liquor in the garbage can and taking it outside .' . . I said, 'This is very
serious' and `I have to tell Mr. Lipetz.' " Kushner further testified: He immediately
38 General Counsel argues that the incident took place on April 16 or 17. Sciutto, who
was called as a witness -by General Counsel, testified that his conversation with Lipetz
occurred on April 23. However, in a pretrial affidavit he fixed the date as April 16 or 17.
General Counsel argues, and I agree, that Sciutto was an untruthful witness. However,
contrary to General Counsel, this does not furnish any basis for crediting an inconsistent
prior statement.
'-9Jack C. Buncher, d/b/e The Bunches Company, 131 NLRB 1444, enfd. 318 F. 2d 928
(C.A. 31. The complaint, the bill of particulars, and General Counsel in his brief refer to
the above -described incident as an example of interrogation . This is an erroneous charac-
terization of the incident. Lawler's Cafeteria & Catering Company, 138 NLRB 352, 353,
footnote 1. However, Respondent has not in any way been prejudiced thereby because
the incident was fully litigated and at all times-during the trial Respondent understood
that General Counsel was relying upon this incident to support the alleged violations of
Section 8 (a) (1) of the Act. An incorrect legal characterization of the subject matter of
the litigation is no basis for dismissing an allegation of the complaint . Independent Metal
Workers Union, Local No. 1 (Hughes Tool Company ), 147 NLRB 1573, 1576-1577; Local
271, international Brotherhood of Electrical Workers, A FL-CIO ( The Philco Corporation
arid/or J & C Electric Co., Inc. ), 146 NLRB 397, 402.
mAccording to Alexander Lipetz, Respondent first learned of union activity on the part
of its employees when two union representatives visited Gelblum in the afternoon of
April 21, 1964.
UNITED MINERAL & CHEMICAL CORPORATION 1409
went to Alexander Lipetz and reported 4ehiberg's story. Alexander Lipetz asked
if Kushner believed that Wiprovnick had stolen anything and Kushner replied that
Wiprovnicx "might have." (Neither Kushner nor Alexander Lipetz tested that in
this conversation Alexander Lipetz asked Kushner orvKushner told Lipetz the basis
for Kushner's belief that Wiprovnick might have stolen anything.) Lipetz instructed
Kushner to discharge Wipro nick the next morning and not to give Wiprovnick any
explanation. Lipetz explained to Kushner that "maybe we can find out if anybody
else is involved in this." The entire conversation between Alexander Lipetz and
Kushner lasted approximately 14 minutes.
Kushner also testified that he had no knowledge of union activities in the plant
at or prior to the time of Wiprovnick's discharge . However, I find that the contrary
is established by the credited testimony of Giraud which is summarized above. Of
significance also is the fact that the first organizational meeting of Respondent's
employees was held at the Union's headquarters in the evening of April 20 to which
meeting Elfrieda Mehlberg had been invited by Wiprovnick_
Although Kushner's belief that Wiprovnick "might have" stolen liquor purports to
have influenced Alexander Lipetz's decision to discharge Wiprovnick, the only basis
given by Kushner for his belief is that prior to Christmas 1963 W]Viprovnick had
boasted to him that Wiprovnick "could steal a whole case of liquor and nobody would
be the wiser." However, Kushner treated this boast lightly, at least until April 20,
because Kushner placed no restrictions upon Wiprovnick's access to liquor. Further.
more, Kushner had no suspicion that any significant amount of liquor or other gift
items had disappeared . In this regard he testified:
TRIAL EXAMINER : In any of your conversations with Mr. Alexander Lipetz,
did he tell you or intimate to you in any way that there was missing more than
one ham, since you recovered the other ham from the garbage, and one bottle of
whiskey?
The WrrNESS: Well, he told me to be careful , to watch that nothing is stolen.
TRIAL EXAMINER :... You received no indication from Mr . Alexander Lipetz
in any way whatsoever that the company lost more than one ham and one bottle
of whiskey, is that right?
The WITNESS: That's correct.
TRIAL EXAMINER: And so far as you know, that is the only missing gifts there
were during the Christmas season of 1963?
The WrrNESS: As far as I know, yes.
Although Kushner had little reason for believing that there had been any thefts, and
although E frieda Mehlberg merely had relayed to him what she had been told by Olga
Galay and Kushner had not obtained any confirmation of Galay's report , Kushner,
nevertheless , testified that he "believed that [Wiprovnickl had stolen the liquor"
because he "putt two and two together," referring to Wiprovnick's boast and the fact
that a ham was missing.
Elfrieda Mehlberg testified as follows with respect to her conversation with Kush-
ner in the evening of April. 20:
Q. What did you tell Kushner and what did Kushner tell you? -
A. I was talking to Boris Kushner about that Marvin was stealing during
Christmas packing.
Q. iW,rhat did you tell Kushner and what did he say to you?
A. I told him about the stealing and he said, "I have to report this to Mr.
Lipetz" and "Why I didn't tell him before."
Q. What did you say?
A. It suddenly happened . I didn t know why I told him too late.
Mehl berg further testified that she had remained behind in order to make this report
to Kushner.
According to El_frieda -Mehlberg prior to Christmas 1963 she was told by Olga
Galay that Wiprovnick "is bringing the empty garbage cans in. When the garbage
can is filled up-he puts a bottle of liquor inside and then when it is half-filled up, he
brings it outside and brings a new one in. " This was the only information Mehlberg
had concerning Wiprovnick's alleged theft of liquor. As to her silence concerning
the matter Mehlberg testified as follows:
Q. And from Christmas 1963 to April 20, 1964, did you mention this to
anyone in management?
A. No.
Q. Did you mention it to any other co-workers or your fellow workers?
A. No.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Can you tell us why you decided to mention it on the night of April 20?
A. I don't know, sir. It just happer_ed.21
Alexander Lipetz testified that about 5:30 p.m. on April 20 Kushner reported to
him that Kushner had been informed by Elfrieda Mein berg "that during Christmas
time, Olga Galay told to Elfrieda that she saw Marvin (Wiprovnick) putting away a
lot of liquor. That she requested and asked Eifrieda not to mention this to Boris
Kushner nor to anyone else." Lipetz further testified, "Now since I suspected not only
Wiprovnick alone in this particular stealing, I told Boris to fire him the next day in
the marring when he gets in without explanation since I want to talk to Olga Galay to
find out the true story ... I wanted to find out who else was involved in that particular
stealing and I am sure that Olga knew it." 22 The next day, after Wiprovnick had
been discharged, Lipetz called Olga Galay into his office. According to Lipetz, he
began his conversation with the remark, "I didn't expect from her the way she was
acting." He proceeded to remind her of the favors and consideration he had extended
to her husband and herself. He then reproved her for not having told him "about
Marvin Wiprovnick during the Christmas time." Galay, although upset by the
interview, denied that she knew anything about the alleged thefts.
Alexander Lipetz also testified that gift items, including a large amount of liquor,
had disappeared mysteriously in the weeks preceding Christmas 1963; specifically,
a ham had disappeared from a desk in one of the offices, a ham was found in a gar-
bage pail, and a gift carton holding a single bottle of liquor was found empty; and,
in addition, Respondent had purchased more liquor in 1963 than it had during the
previous Christmas season although Respondent had reduced the amount of its gifts
of liquor, and a number of customers had informed him that they had not received
the liquor which was supposed to have been sent to them. However, Respondent
kept no records of its inventory and disbursements of the gift items and therefore had
no certain way of knowing, how many, if any, of such items had disappeared.23
zi The foregoing testimony was given upon her examination by General Counsel. Prior
thereto when Mehlberg was examined by Respondent 's counsel she testified that she had
remained behind in order to make her report to Kushner . While no explanation is offered
by liehlberg as to what prompted her to discuss Wiprovnick's alleged stealing of liquor
on the night of April 20 after having maintained silence for a period of 4 months, Kushner
testified (which testimony is not corroborated by klehlberg's version of their conversation)
that the subject was introduced by his complaints to her about the poor work being done
by Giraud and Wiprovnick . As the conversation between lilehlberg and Kushner took
place during the late afternoon of the very day that Mehlberg was induced by Wiprovnick
to sign a union authorization card and at the very time that employees of Respondent
were attending a union meeting to which she had been invited , and as Kushner the next
morning in his conversation with Giraud indicated he was aware of the union meeting and
that Giraud had attended the same (Wiprovnick had invited all the employees who worked
with him in the mica department to attend the union meeting ), and as I am of the opinion
that both Kushner and Mehlberg were untruthful witnesses, I do not credit their denials
that their conversation on the night of April 20 did not treat with the union meeting and
Wiprovnick 's involvement.
22 Alexander Lipetz offered no explanation as to the basis for his opinion that more than
one employee was involved in the alleged thefts and that Olga Galay knew who the
culprits were.
3 Alexander Lipetz testified that in 1963 Respondent was trying to reduce its gifts of
liquor and despite this effort the Respondent 's purchases of liquor was approximately
$4,570 in 1963 against approximately $4,000 in 1962 . Realizing that something was amiss,
"I talked to Boris Kushner, Adam Galay and Olga Galay and drew their attention to the
fact that there was something going wrong because each time I turned around, the liquor
somehow evaporated and I asked them to watch very carefully these shipments of liquor."
So far as this record shows Respondent made no other effort to stem the alleged mysterious
disappearance of the substantial quantities of liquor . This testimony on the part of Alex-
ander Lipetz was adduced by Respondent as a makeweight to support the reasonableness
of its actions in discharging Wiprovnick without any investigation of the truth of the
hearsay accusation against him . I am of the opinion that Alexander Lipetz in his testi-
mony exaggerated the extent of the alleged disappearance of liquor . Regardless of the
slipshod manner of keeping track of its liquor supplies , it does not seem probable that in
UNITED MINERAL & CHEMICAL CORPORATION 1411
Olga Galay's version of her conversation with Lipetz is as follows: When she
entered his office he said, "Olga, I am surprised at you." Then he said, "If you
didn't like the job at the company you could leave. Nobody was keeping you back
... Adam Galay (her husband) ... was a tremendous worker, but the same thing
goes for him as well as for me." Lipetz then mentioned that the Respondent had just
fired Wiprovnick because he was a bad worker. I credit Olga Galay. Galay impressed
me as being a sincere and straightforward witness. While she may be an active union
adherent and in consequence may have an interest in the outcome of this proceeding,
her testimony was in no way impeached and nothing was brought forth during her
examination or cross-examination which leads me to believe that she engaged in any
prevarication. I also credit Olga Galay's denial that she told Elfrieda Mehlberg that
Marvin Wiprovnick had taken any of the Christmas gift items 24 and her denial that
she reproached Mehlberg for having informed Alexander Lipetz about Wiprovnick.
Respondent's asserted reason for having discharged Wiprovnick on the morning of
April 21 is not credible. First, Elfrieda Mehlberg offered not satisfactory explana-
tion as to why she repeated the accusation against Wiprovnick when she did. Second,
excess of 15 percent thereof would disappear without Respondent having strong measures
to stop the losses . Furthermore , as a witness in this proceeding Alexander Lipetz im-
pressed me as being neither candid nor forthright. When questioned by General Counsel
he was both argumentative and evasive which contrasted unfavorably with the eagerness
and repletion with which he responded to questions advanced by his attorney even after
due allowance was made for his understandable interest in obtaining a favorable result in
the trial of this case and the opportunity he had, in connection with the preparation of
Respondent 's case, to familiarize himself with the matters about which his attorney ques-
toned him. I am of the opinion that Alexander Llpetz was a witness who colored and dis-
torted the facts about which he was testifying and who consciously and deliberately shaped
his testimony to fit his understanding of the pattern of Respondent ' s defenses rather than
to recount the facts as he knew them to have happened.
1% Elfrieda Mehlberg impressed me as being a totally unreliable witness . In giving her
testimony at the instant hearing she displayed an anxiety to cooperate with Respondent's
counsel , but when questioned by General Counsel about the same events she was evasive
and uncertain . Furthermore she offered contrived and implausible explanations for certain
of her conduct . She testified that she signed a union authorization card on April 20 only
because of the insistence of Marvin Wiprovnick whom she trusted . In this respect her
further testimony was as follows:
TRIAL EXAMINER : Why did you trust Marvin?
THE WITNESS : I don 't know. I don ' t know why.
TRIAL EXAMINER : Did you believe that Marvin was guilty of stealing merchandise?
THE WITNESS : I heard about it that he was stealing ; sure.
TRIAL EXAMINER : Did you believe that?
THE WITNESS : I don't know. I haven't seen it.
TRIAL EXAMINER : But you still trusted Marvin?
THE WITNESS : Sure. He wasn't bad to me during working hours.
It is hardly plausible that while trusting Wiprovnick and not being sure that he had been
guilty of the alleged thefts, Mehlberg nevertheless would have reported to Kushner that
she had heard from Olga Galay that Marvin Wiprovnick had stolen liquor.
Mehlberg further testified that she signed the union authorization card on April 20 only
because she was led to believe that the card was an invitation to the union meeting sched-
uled for that night although she did not want to go to the union meeting and In fact did
not attend the meeting . This testimony also is implausible . When asked why, in these
circumstances , she signed the card, Mehlberg replied , "I don 't know." She was unable to
explain why she questioned Minski as to whether Minski also signed such card if she under-
stood the card was only an invitation to a meeting to which she was not going , particularly
as she testified that "everybody signed the card." She did not give any satisfactory
explanation as to why she did not read the card before she signed it even taking Into
account the fact that she reads English with difficulty . Finally , she testified that Wiprov-
nick spoke to various employees in her presence about joining the Union so that she under-
stood that Wiprovnick was soliciting employees to become members of the Union.
As Daisy Kullama also impressed me as being an unreliable witness, her purported
corroborative testimony does not lend any greater credibility to Mehlberg's testimony.
212-809-66-vol. 155-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although Mehlberg testified that she trusted Wiprovnick and that she was not sure that
he had engaged in the alleged thefts, nevertheless, 4 months after she learned about
the matter from Olga Galay she reported the story to Kushner with no adequate
explanation as to what impelled her to make the report. Third, upon receiving Mehl-
berg's report, Kushner at once concluded that Wiprovnick was guilty of the alleged
thefts of liquor. Kushner's explanation for his willingness to believe Mehlberg's
unconfirmed accusation is that some months previously Wiprovnick had boasted that
he could steal liquor without being caught. This explanation is unconvincing par-
ticularly because Kushner had no reason to believe that more than one bottle of
liquor had disappeared. Fourth, Alexander Lipetz, who made the decision to dis-
charge Wiprovnick, was willing to believe that Wiprovnick was guilty of the alleged
thefts without any basis whatsoever other than his opinion that substantial amounts
of liquor had mysteriously disappeared and that Kushner had said that Marvin might
have been guilty of stealing. Furthermore, instead of seeking to confirm the report
with Olga Galay, who purportedly was the originator of the accusation against
Wiprovnick, Lipetz first directed Wiprovnick's discharge and then, within an hour
after his direction was carried out, spoke with Olga Galay. Fifth, Wiprovnick was
discharged without any explanation. An inference can be drawn that an explanation
was not forthcoming at the moment he was discharged because Respondent had rea-
sons for being fearful or reluctant to make such explanation. Respondent tried to
overcome this possible adverse inference by the testimony of Alexander Lipetz that
he directed that no explanation be given to Wiprovnick in order to have opportunity
to conduct an investigation to determine whether any other employee was involved
with Wiprovnick in the alleged thefts. This explanation is unconvincing because it
would seem that an investigation could more fruitfully have been conducted before
Wiprovnick was discharged and before the employees had become apprehensive
about what was going on as they would upon Wiprovnick's discharge. Furthermore,
no business consideration existed which required Wiprovnick's immediate discharge
before an investigation of the accusation against him could be made.
A far more plausible reconstruction of the relevant events than the artificial story
advanced by Respondent is the following: Mehlberg, who on April 20 had signed a
union authorization card reluctantly at the insistence of Marvin Wiprovnick and
because all the other employees in her department had signed such cards, was troubled
about the matter and reported to her supervisor, Boris Kushner, that a union meet-
ing was being held that night and that Marvin Wiprovnick was an instigator of the
organizational .icti vities. Kushner promptly reported this information to Alexander
Lipetz who without consulting counsel directed the immediate discharge of Wiprov-
nick. Only after the event did Respondent realize that the discharge might have been
illegal and thereupon contrived the explanation offered at the instant hearing.
Whether or not the reconstruction of the events as hypothesized above is correct,
in the circumstances of this case, Respondent's highly implausible explanation for
its discharge of Wiprovnick when added to: (a) the fact that Wiprovnick was the
instigator of the union activity among the Respondent's employees, (b) the fact that
Wiprovnick was discharged in the morning following the first union meeting held
for Respondent's employees, (c) the fact that within a half hour after Wiprovnick
had been discharged Boris Kushner, Wiprovnick's supervisor, indicated to another
employee, Juan Giraud, that Kushner knew of the meeting which had been held the
previous night, and (d) Respondent's efforts, unlawfully conducted, to learn about
its employees' union activities, leads to and supports the conclusion that Wiprovnick
was discharged for his union activities and not for the reason asserted by Respond-
ent. Such discharge therefore violates Section 8(a)(3) and also constitutes inter-
ference, restraint, and coercion of employees in the exercise of the rights guaranteed
in Section 7 in violation of Section 8 (a) (1) of the Act.
Because Wiprovnick was convicted of an assault upon one Irwin Cohen, an
employee of Respondent, who was set upon by Wiprovnick when Cohen was seeking
to go to work during the strike, General Counsel does not seek the reinstatement of
Wiprovnick nor backpay for him after June 26, 1964, the date of said assault. The
Respondent contends that the cutoff date for backpay should be May 4, 1964, when
Wiprovnick engaged in an assault upon Ivan John Rodriguez outside the plant. I
credit the testimony adduced by Respondent that Wiprovnick was guilty of such mis-
conduct. Accordingly, I shall direct that backpay for Wiprovnick shall be limited
to the period from the date of his discharge until May 4, 1964.
UNITED MINERAL & CHEMICAL CORPORATION 1413
2. The discharges of Thomas and Werbitzkij
a. Thomas' status as a supervisor
Preliminary to the determination of the issue raised by the alleged discriminatory
discharge of Adolph Thomas is the resolution of the contention made by Respond-
ent that Thomas, at the time of his discharge on April 24, 1965, was a supervisor.
Thomas then worked at the Duane Street warehouse together with only three other
employees; namely, Wadim Werbitzkij, Jack Tatarka, and Ismael Vazques Hernan-
dez. The warehouse operation is referred to as the tape and abrasives shipping depart-
ment. Alexander Lipetz is in charge of the department and Walter Kirk, manager of
the abrasives department, is also concerned with the warehouse operation. Neither
Alexander Lipetz nor Walter Kirk maintain an office in the warehouse and normally
neither of them visit the warehouse more frequently than three or four times per month
and then for periods of only a few minutes at a time. The value of the merchandise
stored in the warehouse is approximately $500,000.
Of the four employees who worked in the warehouse, Thomas had the greatest
seniority, having been hired in August 1957. Also, he was the highest paid. The
hourly rates of pay of the four employees were: Thomas, $3; Tatarka, $2.25; Wer-
bitzkij, $1.75; and Hernandez, $1.50.
Thomas had authority to give employees time off for periods of up to 15 minutes
and to make assignments of overtime work. Thomas also had authority to direct
employees in their work. Thus, Thomas testified that with respect to Odet Fosley,
who at one time had been assigned to work in the warehouse, after he came to the
conclusion that Fosley was unable to pack merchandise properly he assigned Fosley
to other duties and instructed him not to do any more packing. Complaints and
instructions concerning the work of the warehouse were directed to Thomas and
Thomas testified that there were occasions when he was advised by his superiors that
he was responsible for the mistakes of the other employees in the warehouse because
he was in charge of the warehouse. Thomas was consistently introduced to new
employees , customers , and salesmen as the person in charge of the shipping depart-
ment. Tatarka testified that Thomas was the foreman. While Werbitzkij testified
that he did not consider Thomas to be his boss, he testified that Thomas "was senior
worker over me" and that Thomas "gave me (orders from day to day in the conduct
of the work), and he told me what I have to do." Upon the foregoing,25 particularly
in view of the fact that if Thomas was not a supervisor then the Duane Street ware-
house functioned without supervision, I find that Thomas was a supervisor within the
meaning of the Act.26
b. Thomas' discharge
Thomas was discharged on April 24, 1965. Respondent asserts as the reason for
his discharge that on April 23 Alexander Lipetz discovered that Thomas, Werbitzkij,
and Hernandez had been engaged in a practice of punching one another's timecards
even when the employee whose card was punched was not at work. General Coun-
sel acknowledges Thomas' culpability but nevertheless asserts that Thomas was not
discharged for such reason. According to General Counsel, "It is admitted that
Thomas' and Werbitzkij's timecards were not punched in accordance with the actual
number of hours that each worked. However, this in itself does not bar a finding
that these discharges were violative of the Act .... The vital question is whether
the Company seized upon this practice as a pretext for the discharges, to disguise
the fact that they were discriminatorily motivated." The General Counsel relies
on the following as evidence of Respondent's discriminatory motivation:
1. Other employees working in other departments had been caught doing the same
act, yet were not discharged. General Counsel points to a single case involving
Juan Giraud and Marvin Wiprovnick. Sometime in early 1964 their supervisor,
Kushner, "one time ... caught them punching each other's timecard ... before the
other person got there." Despite the fact that the Respondent had a notice posted
25 The facts summarized above concerning Thomas' authority are not in dispute. It is
unnecessary for me to pass upon other evidence adduced by Respondent in support of its
position because such other evidence , much of which is in dispute , would merely be
cumulative.
28 Rafael Vega, et al . v. N.L.R .B., 841 F. 2d 576 ( C.A. 1) ; Sehon Stevenson & Co., Inc.,
150 NLRB 675 ; Sinko Manufacturing and Tool Company, 149 NLRB 201.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the timeclock to the effect that anyone who punches another employee 's timecard
will be discharged, Kushner merely warned Giraud and Wiprovnick against any
repetition of the offense. General Counsel argues that the disparity between the
mere warning given Giraud and Wiprovnick and the discharge meted out to Thomas
for having engaged in the same offense shows that the timecard irregularity was not
the motivating reason for Thomas' discharge. However, the testimony of Kushner,
upon which General Counsel relies, is that Kushner told Giraud and Wiprovnick
that "if I caught them doing it again, I would tell Mr. Alexander Lipetz about it."
This suggests that the leniency in the treatment of Giraud and Wiprovnick was not
so much a reflection of company policy as it was Kushner's softness. Furthermore,
initially, Respondent did not intend to discharge Werbitzkij and Hernandez for their
complicity in the timecard falsifications, but intended to discharge Thomas alone
because, according to Alexander Lipetz, he expected a greater degree of responsi-
bility to be exercised by Thomas, a supervisor, than by the employees who worked
under his direction. General Counsel's argument based upon the alleged disparate
treatment of Thomas is not supported by the record evidence.
2. "The Company was aware of the practice of punching timecards at Duane
Street long prior to April 23, 1964." This assertion is based upon the testimony
of Adolph Thomas, which I do not credit, and which was denied by Alexander
Lipetz, that approximately 1 year before his discharge Thomas met with Alexander
Lipetz in the latter's office prior to the normal starting time, "[a]nd about 8:30 or
something like that, he was complaining about people, no work was done , so during
the course when it got to 8:30, I said to him, `I have to go and punch my card.' And
he said, `Never mind, I know it's done already.' " 27 I also do not agree with Gen-
eral Counsel that "the fact that in certain instances erasures were made on the time-
cards indicating that they had been punched although the employees had not reported
for work is persuasive evidence of company knowledge of this practice." Time-
card corrections are not uncommon and General Counsel has not proved that the
corrections to which he adverts were so frequent or of such unusual nature that
they constituted notice of the existence of timecard irregularities. Furthermore,
General Counsel suggests that Respondent tolerated such timecard irregularities and
only "sought in a half-hearted way to discourage it." Such assertion, contrary to
customary industrial practice, has not been proved by General Counsel merely from
the evidence of one or two cases where employees were only warned and not other-
wise disciplined for having punched another's timecard. I find General Counsel has
not established that the Respondent was aware of and condoned the practice of
employees punching timecards of other employees who were not actually at work.
3. Finally, General Counsel points to the fact that Alexander Lipetz discovered
the offending timecard practice when he made one of his infrequent visits to the ware-
house early in the morning on April 23, which was the day after a union meeting
attended by Thomas and at which meeting Thomas spoke at some length . While this
circumstance raises a suspicion that Thomas' union activities had come to the atten-
tion of Alexander Lipetz and his visit to the warehouse in the morning of April 23
may have had some relation to Thomas' union activity, nevertheless, such suspicion
alone is not enough upon which to find that an unfair labor practice was committed.
Accordingly, I find, contrary to General Counsel, that Adolph Thomas was dis-
charged for cause and not for his union activities.
c. Werbitzkij's discharge
Although Werbitzkij participated with Thomas in the falsification of timecards and
was discharged on April 24, 1964, the same day as Thomas was discharged, Respond-
ent's reason for terminating Werbitzkij differed from its reason for discharging
Thomas 28 The decision to discharge these employees was made by Alexander Lipetz.
27 Thomas impressed me as being no more reliable witness than Alexander Lipetz. The
bare testimony, quoted above, purporting to prove that Alexander Lipetz knew of and
condoned a practice existing among Respondent's employees of punching one another's
timecards so that employees would be paid for time when they were not at work is im-
plausible. I cannot credit such uncorroborated testimony when given by a witness, such as
Thomas, who in the course of his testimony at the instant hearing impressed me as having
engaged in extensive exaggeration and, in at least two instances, outright prevarication.
21 Hernandez was discharged at the same time as Werbitzkij and probably for the same
reason. However, because Hernandez refused to cooperate with General Counsel in the
preparation of this case, his name is not included in the complaint as one of the discrim-
inatees for whom remedial relief is requested.
UNITED MINERAL & CHEMICAL CORPORATION 1415
When on April 23 Lipetz discovered that the employees at the Duane Street warehouse
had been falsifying their timecards, he informed his attorney that he "felt that Thomas
alone should be discharged in view of the fact that Thomas was the supervisory
employee, that Thomas was the one who had given the orders to Hernandez and
Werbitzkij." He was advised by his attorney that as Respondent had learned that
Thomas was actively engaged in the union organizational campaign, as Respondent
did not know whether Hernandez and Werbitzkij were also engaged in union activities
and as it was possible that they were not, if Respondent discharged Thomas alone
"there would obviously be a claim of discrimination, discriminating against one who
was engaging in union activities and not discharging those who were not engaging in
union activities ... therefore, his choice was discharging all those who were involved
in the same act or [none]." Accordingly, because of its fear of the outcome of an unfair
labor proceeding arising from the discharge of Thomas, Respondent also discharged
Werbitzkij.
Respondent, in its brief, contends 29 that:
As for the claim that the Respondent discharged Werbitzkij and Hernandez in
order to be consistent with its discharge of Thomas, that does not constitute a
violation of the Act. On the contrary, it demonstrates conclusively that the
Respondent complied with the Act. The Act prohibits discrimination. The
Respondent complied with that prohibition by not discriminating among the three
employees who were equally involved in the same misconduct. It did this in
good faith and on the sound and correct advice of counsel [890-2]. To have done
otherwise would have been to violate the Act. In other words, if there were an
ulterior motive, that motive was not unlawful but a lawful one.
To accept this argument is to apply the Act in a topsy-turvy way. Rather than
"protecting the exercise by workers of full freedom of association, self-organization,
and designation of representatives of their own choosing," 30 according to Respondent,
in this case the Act requires the converse; namely, the discharge of employees only
because of the workers' self-organizational activities. Such argument is illogical. It
is premised upon a semantic error; namely, equating the concept of "discrimination" as
used in Section 8(a)(3) with the concept of disparate treatment. Disparity in the
treatment of employees does not embrace any substantive concept under the Act, but
is merely an evidentiary factor. In cases arising under the Act disparity in the treat-
ment of employees becomes material only as a matter of proof. Evidence of disparate
treatment is frequently a factual element relied upon to support a finding of discrimi-
nation. Disparate treatment is normally specific and precise involving proof through
objective evidence of a difference in the treatment between employees or between
groups of employees. However, every disparity in the treatment of employees does
not necessarily result in an unfair labor practice 31 and the absence of disparity of
treatment does not preclude the existence of an unfair labor practice 32 Unlike the
concept of "disparity of treatment," the concept of "discrimination" is not readily
susceptible to abstract definition and there is no single definition that is universally
applicable. Sufficient to answer Respondent's argument is that the similarity of treat-
ment accorded Werbitzkij and Thomas does not necessarily eliminate the possibility
29 Referring to Werbitzkij's complicity in the timecard irregularities, Respondent also
argues in its brief that "valid cause for the discharge of Werbitzkij existed , and valid cause
was the reason for his discharge ." However, this argument is contrary to the facts.
Although there may have been valid cause for Werbitzkij's discharge, Respondent admits
that Werbitzkij was not discharged because he was involved in the falsification of time-
cards, but was discharged in order to reinforce its defense to a possible unfair labor
practice charge.
afl Section 1 of the Act.
ai For example, the Act does not require an employer to extend the identical benefits,
terms, and conditions of employment to his unrepresented employees as he contracts for
his represented employees. N.L.R.B. v. Reliable Newspaper Delivery, Inc., 187 F. 2d 547
(C.A. 3).
32 For instance, uniform and unbiased enforcement of an impermissible no-solicitation
rule resulting in the discharges of employees has been held to constitute discrimination
within the meaning of Section 8( a) (3). Republic Aviation Corporation v. N.L.R.B. and
N.L.R.B. v. LeTourneau Company of Georgia, 324 U.S. 793. See also Textile Workers
Union of America v. Darlington Manufacturing Co., et al., 380 U.S. 263.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an unlawful discrimination. However, it is unnecessary to reach the question of
whether the discharge of Werbitzkij was a violation of Section 8(a)(3) of the Act
because I am of the opinion that it constituted a violation of Section 8 (a)( 1).
Because of the current organizational drive at its plants and because Respondent had
learned that Thomas was playing an active role in the campaign Respondent feared
that if it did not discharge Werbitzkij and Hernandez along with Thomas it would not
be able adequately to explain the discharge of Thomas in an unfair labor practice
proceeding which might arise from charges which it anticipated the Union would file.
Thus, it was only because of the existence of the organizational campaign at Respond-
ent's plants that Werbitzkij was discharged. A discharge in such circumstances tends
to inhibit employees in the exercise of their statutory rights because they are placed
in fear that their tenure of employment will be attenuated whenever an organizational
campaign is in progress . Applicable hereto is the Court's statement in N.L.R.B. v.
Burnup and Sims, Inc., 379 U.S. 21, 23, that a "protected activity acquires a precarious
status if innocent employees can be discharged while engaging in it, even though the
employer acts in good faith. It is the tendency of those discharges to weaken or
destroy the § 8(a)(1) right that is controlling ." The Court elsewhere observed that
the "policy of the Act is to insulate employees' jobs from their organizational rights." 33
Thus, an employer infringes upon the protected right of his employees to engage in
self-organizational activities where he discharges employees (whether or not the dis-
charged employees were themselves active in the campaign) for reasons which would
not have resulted in their discharges absent the organizational campaign . Accord-
ingly, I find that by discharging Wadim Werbitzkij on April 24, 1964, Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 in violation of Section 8(a) (1) of the Act 34
3. The discharge of Ingrid Minski
Ingrid Minski who was employed in the mica department was laid off on April 17,
1964, together with Grace Hall. The two women performed work of the same nature.
Minski testified that Hall told her "that we was laid off and as soon as there is work
there, they are going to call us back." Minski also testified that the bookkeeper,
whom she identified as Ann, told her, "We are slow and when we have work I will be
called back." Neither Grace Hall nor Ann Schiano was called to testify in this pro-
ceeding . No responsible member of management advised Minski about the nature of
her layoff. General Counsel concedes that Minski was laid off for legitimate economic
reasons on Friday, April 17, but contends that the layoff was then intended to be
temporary. However, both Alexander Lipetz and Herbert Rosenthal testified that,
while Grace Hall was temporarily laid off on April 17, Ingrid Minski was permanently
laid off on that date. Herbert Rosenthal credibly testified that on April 17 he informed
the bookkeeper, Ann Schiano, "that we would be calling back Mrs. Hall but I would
not call back Ingrid Minski." No replacement for Minski has been hired since her
layof. Respondent also introduced into evidence the unemployment insurance report
forms which it filed with the New York State Department of Labor, Division of
Employment, with respect to Minski and Hall, which are dated April 21, 1964, and
which show that Hall was temporarily laid off and Minski was permanently laid off.
General Counsel argues that Respondent for discriminatory reasons changed
Minski's status from that of a temporarily laid-off employee to a permanently laid-off
employee. In support of this claim General Counsel relies exclusively upon Minski's
testimony concerning a telephone conversation with Samuel Lipetz. According to
Minski, at the end of May she was told at the unemployment insurance office that she
had been permanently laid off. She thereupon telephoned Samuel Lipetz, using his
direct outside telephone number rather than placing the call through the Respondent's
switchboard. She asked him whether it is true that the Company will not take her
back. He replied that he will speak to his brother (Alexander Lipetz) or Rosenthal
about it. He also informed her that Rosenthal had complained to him that her work
had not been good. During this conversation, according to Minski. Samuel Lipetz
asked her if she had signed a union card and she replied that she had. He then told
her that nobody who signed a union card is going to be taken back. He also told her
that if she wants to she should speak to Rosenthal. Minski also testified that Samuel
Lipetz asked her if her husband, who is a kosher butcher, was in the Union. She
denied that he was in the Union and Samuel Lipetz replied that her denial was a lie
and it is her fault that the Union wants to "come into the United Mineral and this is
the Butcher Union what is coming in." Samuel Lipetz was not called as a witness.
as The Radio Officers' Union ( A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 40,
34 See Superex Drugs , Inc., 143 NLRB 110, 115, enfd . 341 F. 2d 747 (C.A. 6).
UNITED MINERAL & CHEMICAL CORPORATION 1417
Crediting the testimony of Minski concerning her telephone conversation with
Samuel Lipetz, it does not establish that she was discharged for her union activities or
suspected union activities. Samuel Lipetz had no knowledge concerning her employ-
ment status. When asked whether the Company was going to take her back he
informed Minski that he would speak to his brother or Rosenthal. As Samuel Lipetz
did not know that Minski had been discharged it follows that he could not have known
the reasons for her termination. General Counsel makes the alternative argument
that even if prior to this conversation Respondent had not taken any discriminatory
action with respect to Minski, the telephone conversation between Minski and Samuel
Lipetz should be treated as an application for employment on her part and a clear
rejection by Respondent because of her suspected union sympathies. This argument
is contrary to the facts. There is no evidence that Minski was at the time of her con-
versation with Samuel Lipetz seeking employment with the Respondent, that she
understood that Samuel Lipetz was the person to whom she should apply for employ-
ment , or that Samuel Lipetz in any way indicated to her that he was passing upon her
eligibility for employment. To the contrary, Samuel Lipetz specifically advised her to
speak to Rosenthal . Unexplained by Minski, if she was seeking employment with
Respondent, is why she called Samuel Lipetz, using his private number, who was not
in charge of the department in which she had worked instead of calling either Alex-
ander Lipetz or Herbert Rosenthal , and why she did not later call Rosenthal as
Samuel Lipetz had suggested . Whatever suspicions may arise from Minski 's uncon-
tradicted testimony concerning her conversation with Samuel Lipetz, I find that the
General Counsel has not proved by a preponderance of the evidence his contention
that her employment status was changed from that of a temporarily laid-off employee
to permanently laid-off employee for discriminatory reasons.
E. The alleged refusal to bargain
The Union on April 21, 1964, and on various dates thereafter , claiming to repre-
sent a majority of employees in the unit found appropriate hereinabove , made demands
upon Respondent for recognition . At all times material hereto Respondent has
refused such recognition . General Counsel concedes that as of April 21 the Union
did not represent a majority but contends that by April 27 it obtained a sufficient
number of additional designations to reach a majority. April 27, 1964, therefore is the
critical date as of which the Union's majority shall be determined for the purpose of
resolving the alleged violation of Section 8(a) (5) in this case. To prove the Union's
majority General Counsel relies exclusively upon authorization cards executed by
employees in the appropriate unit . Respondent disputes the validity of certain of
said cards and makes other arguments impugning the effectiveness of the card
designations.
The parties stipulated to the names of the employees in the unit who were carried
on Respondent 's payroll as of the critical date. However, Respondent contends that
certain of these employees should be excluded because they were temporary employees
or were terminated prior to April 27.3-5 I shall exclude the following employees who
were terminated prior to April 27:
Adolph Thomas-discharged April 24; Ismael Hernandez-discharged April 24; 36
and Ingrid Minski-permanently laid off on April 17, 1964. Respondent contends
that during April 1964 it was engaged in the renovation of its Beach Street premises
and that certain employees who were hired temporarily to do such renovations work
should be excluded from the unit. I find that such contention was established as to
the following employees whom I also exclude from the unit: Chappelle Ball, Jose
Cruz, Leonard Ester, Herminio Gonzales, Evans Harris, Luis Molina, Carlos Rosas,
and Hector Troche.37
86 Respondent contends that an employee, Abraham Jacobs, who was on military leave
of absence , should be included in the unit. This contention is without merit. Greystone
Knitwear Corp., and Donwood, Ltd., 136 NLRB 573, footnote 3.
se As the complaint does not allege that Hernandez was discriminatorily discharged and
as such issue was not fully litigated at the hearing, there is no basis for including Hernan-
dez in the unit.
87I shall include Freddie Feliciano in the unit although he was initially hired to do
renovations work. At the time he was hired by Rodriguez the latter promised to, and
later did, find another position for him after the completion of the renovations. Thus,
unlike the other employees who were hired to do the renovations work, Feliciano had a
reasonable expectation of continued employment with Respondent when he was hired and
also as of April 27, 1964.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Listed below are the names of the employees included in the unit as of April 27,
1964, and an indication by an "x" alongside each name whether or not General
Counsel introduced in evidence authorization cards for such employees:
No card Card No card Card
Adam Galay------------------ ---------- x Aida Lizardi------------------ ---------- x
Olga Galay-------------------- --------- x Julie Lugo--------------------- ---------- x
Juan Giraud___________________ __________ x Elsa Martinez----------------- ---------- x
Titiana Gensel---------------- x --------- Ann Murray ------------------ x --------
Sophia Orober----------------- ---------- x Mercedes Orroca-------------- ---------- x
Grace Hall -------------------- x --------- Sarah Pinto------------------- ---------- x
Betty Horak__________________ __________ x Angel Rivera ------------------ ---------- x
Elfriede Mehlberg_____________ __________ x Marian Rodriguez ------------- ---------- x
Daisy Kullama---------------- ---------- x Aurora Rojas------------------ ---------- x
Marvin Wiprovnick----------- ---------- x Valentina Toro ---------------- ---------- x
Jack Tatarka__________________ __________ x Adolfo Barrios ----------------- ---------- x
Wadim Werbitzkij------------ ---------- x Veola Davies ------------------ x ---------
Peter Pellington_______________ x --------- Freddy Feliciano -------------- ---------- x
Kenwyn Perry---------------- ---------- x Gerhard Hoch----------------- x -_-_-___-
George Freeman --------------- x --------- Jennie McKelvey_____________ X
Peter Jarkoff------------------ ---------- x Saverino Morales-------------- x ---------
Swetoslav Miokovic----------- ---------- x Joseph Moschetto------------- x ---------
George Zajko------------------ ---------- x Maria Navarrete-------------- ---------- x
Geralda Ayala ------- ---------- x Jania Novak ------------------ x ---------
Alicia Burgos------------------ ---------- x Gregory Padvaganian-_------- X ---------
Antonio Burgos--------------- ---------- x Larry Sciutto------------------ x ---------
Felix Colon-------------------- ---------- x Joseph Suarez----------------- ---------- x
Angela Cardona--------------- ---------- x Jose Velazquez---------------- ---------- x
Maria Diaz------------------- ---------- x Miguel Zayas------------------ ---------- x
Rosa Diaz-------------------- ---------- x Mary Zdunczyk--------------- x ---------
Georgina Espinell------------- ---------- x Odyessuse Fosley------------ - ---------- x
Gricel Garcia ----------------- ---------- x
Candida Garcia--------------- ---------- x 14 41
Lisolette Heil------------------ ---------- x
Respondent contends that because of misrepresentations and coercion in their pro-
curement the authorization cards do not constitute acceptable evidence of the Union's
majority. These contentions will be considered below. In addition, upon other
grounds, Respondent attacks the validity of the cards signed by the employees listed
below.
Geralda Ayala: Objection on the ground that Ayala was unable to read English
and therefore did not understand what she had signed . However, Ayala testified
that she understood the card was a union card and that by signing the card she
intended to join the Union. I overrule the objection. Edward Fields, Incorporated,
141 NLRB 1182, 1193, enfd. 325 F. 2d 754 (C.A. 2).
Alicia Burgos: Objection on ground that Burgos does not read English. Objec-
tion overruled because Burgos testified that she was told the card "was to belong to
the union."
Georgina Espinell: Objection on the ground that Espinell did not sign card.
Objection overruled because Espinell testified that she signed the card and Respond-
ent did not successfully impeach her testimony.
Felix Colon and Elsa Martinez: Objection on the ground that these employees
were not called as witnesses. However, as General Counsel proved the authenticity
of their signatures, the objection is overruled. The Colson Corp. v. N.L.R.B., 347
F. 2d 128 (C.A. 8).
Freddy Feliciano: Objection on the ground that Feliciano testified that he did not
read the card before he signed it. Objection overruled because Feliciano testified
that he is able to read English and it is presumed that he understood what he was
doing when he signed the card. This objection stands on no better footing than an
objection that an employee had unexpressed reservations about the designation of a
labor organization at the time he signed an unambiguously worded authorization
card. Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 743 (C.A.D.C.), cert. denied
341 U.S. 914.
UNITED MINERAL & CHEMICAL CORPORATION 1419
Betty Horak, Daisy Kullama, and Elfrieda Mehlberg: Objection on the ground
that they did not intend to join or to designate the Union and that they understood
the card was merely an invitation to a meeting. I do not credit the testimony to
such affect by any of these three employees.
Maria A. Navarrete: Objection on the ground that Navarrete did not intend to
deliver the card to the Union. Navarrete testified that Adolfo "Cookie" Barrios for
a period of several days had been annoying her to sign an authorization card.
"Then on Wednesday at lunch time he made me write it, fill it out. I told him
that I would mail it because I didn't have the intention to send it .... I was sure
that I had not sent it." Navarrete also testified that after she signed the card she
placed it in a magazine that she had with her and that she did not mail the card or
deliver it to anyone else. In these circumstances, despite Barrios' testimony that
the next day Navarrete informed him that she had mailed the authorization card, I
shall sustain the objection.
Kenwyn Perry: Objection on the ground that General Counsel has not proved
that Perry signed and delivered the authorization card on or before the critical date.
As Perry's testimony is self-contradictory in this respect, and as Perry's card is the
only card that does not bear NLRB date stamp indicating that the card was filed
with the Board on April 22 or on April 27, I sustain the objection.
Turning to Respondent's general attack upon the cards as a whole, it argues that
a great number of Respondent's employees being of Puerto Rican or foreign extrac-
tion and having poor command of English were particularly susceptible to being
misled by the tactics used in soliciting the authorization cards from its employees.
The tactics complained of were misrepresentations, threats of discharge, and coer-
cion because of the union activity of supervisors.
The following is relied upon by the Respondent to support its argument that
authorization cards were tainted because of misrepresentations made to employees
at the times their signatures were secured:
Julie Lugo testified that she was solicited by Aurora Rojas, who at the time told
her, "that everybody has already signed." However, Lugo further testified that she
desired union representation so that it appears that the alleged misrepresentation did
not induce action which Lugo would not otherwise have taken.
Odyessuse Fosley testified that when he was solicited to sign an authorization card
by Marvin Wiprovnick he was told "that everybody else had signed up for the
union."
Valentina Toro testified that she was solicited by Aurora Rojas, and that in
response to her protest that she did not want to sign but wished to wait until the
last minute, Rojas replied, "Everybody signed already, you are the last one." How-
ever, Toro further testified that she wanted the Union to represent her so that in
this case the misrepresentation merely impelled quicker action than she otherwise
would have taken.
Sara Pinto testified that at the time she signed the card, at the request of Aurora
Rojas, the latter "told me that everybody had signed the card already and that I
was the last one to sign." 38
Respondent points out that the misrepresentations described above followed a
pattern set by the Union, because on April 22, when it knew it had not yet obtained
authorization cards from a majority of the employees in the unit, it distributed a
printed invitation to a union meeting in which was stated, "Most of the workers in
your shop have already joined our Union." Respondent argues that because of the
employees' lack of sophistication the alleged misrepresentations tended to develop
a bandwagon psychology among the employees that impelled them to sign authori-
zation cards which they probably would not have done otherwise.39
Concerning threats made to employees who were solicited to sign authorization
cards, the evidence shows that these threats were varients of the theme that the
employee would be discharged if he did not sign the card. Thus:
Jack Tatarka testified that when he was solicited by George Zajko, Adolph Thomas
advised, "Better sign because these people who won't sign the card, if the Union get
into the place, they will be removed in a period of one month."
Fosley testified that Wiprovnick told him that employees who did not sign author-
ization cards "wouldn't be able to work no more and so forth."
38 Pinto also testified that she was solicited at a party , was not permitted to read the
card , thought the card had something to do with a joke, and didn't want to join the Union.
39 Maria A. Navarrete, whose card I have found to be invalid for other reasons, testified
that Adolfo Barrios , when he solicited her to sign an authorization card, told her that she
"was the only one who had not signed yet."
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toro testified that she was told by Rojas that "if the union win the case, I was
going to be fired if I didn 't sign."
Pinto testified that after she had signed the card she was told by Wiprovnick "that
if I didn't sign, I be fired." 40
Another area of coercion in this case stems from Thomas' support of the Union's
organizational campaign. Although Thomas, as a supervisor, did not have authority
to hire or discharge employees, he directed a small, separate operation and fre-
quently was introduced to other employees by company officials as the individual in
charge of the Duane Street warehouse. Thus, he was known as a supervisor not
only to the men who were subject to his immediate direction but also to other
employees. Thomas was very active in promoting the Union's organizational drive:
he spoke at some length at the union meeting which was held on the night of
April 22, 1964; he was elected to the committee which called upon the Respondent
the next day to present the Union's demands; he talked to many employees about
the Union; and he solicited employees to sign authorization cards. Thomas' solici-
tations were effective with respect to Tatarka, Werbitzkij, George Zajko, and Miguel
Zayas. On the other, Zdunczyk, Moschetto, Padvaganian, and Morales refused to
sign union authorization card although asked to do so by Thomas.
The four cards solicited by Thomas are rejected in computing the Union's major-
ity.41 For similar reasons the authorization card of Lisolette Heil is invalid. Liso-
lette Heil signed an authorization card at the April 22 union meeting. She testified
that she asked Horst Kohl, foreman of the abrasives department who was present
at the meeting, what she should do about signing an authorization card. Kohl advised
her to sign the card. About 10 minutes later, Aurora Rojas urged her to sign an
authorization card and Heil did.
Respondent argues that all cards signed at the April 22 union meeting should be
rejected because of the presence of supervisors (Thomas and Kohl) at the meeting.
The specific cards to which Respondent refers were signed by Joseph Suarez, Angela
Cardona, Ayda Lizardi, and Miriam Rodriguez.
I have found that under established Board principles the cards signed by five
employees who were urged to do so by supervisors should be rejected. If, in addi-
tion to these 5 cards, the cards signed by Suarez , Cardona, Lizardi, Rodriguez,
Pinto, Toro, and Fosley are also deducted from the 41 authorization cards obtained
by the Union, as of the critical date, the Union still had 29 authorization cards
which was a majority in the unit of 55 employees.
Notwithstanding the fact that the Union had obtained cards from a majority of
the employees in the appropriate unit, Respondent contends that it had a reasonable
basis for doubting that the Union represented an uncoerced majority of such employ-
40 Other employees who did not sign authorization cards testified as to threats or mis-
representations made to them at the time they were solicited. Among such witnesses was
Tatiana Gensell who testified that she was asked to sign a card by Peter Jarkoff in the
presence of Swetoslav Miokovic and that Jarkoff told her that if she did not sign the card
she would be discharged in 30 days (Jarkoff denied making such threat), that they can
even beat her up, and that if she doesn't sign they will throw her out. Gensell, neverthe-
less, did not sign an authorization card. Respondent contends that because Miokovic over-
heard the threats made to Gensell his authorization card should be invalidated. However,
although Miokovic was a witness at the hearing he was not interrogated about the matter.
Thus, even were Gensell to be credited , absent additional evidence concerning the circum-
stances under which Miokovic signed the authorization card, Respondent has not estab-
lished by Gensell's testimony alone that Miokovic was coerced into signing an authorization
card.
41 There is a strong parallel between the position held by Thomas and the organizational
activities of Thomas and the position and activities of Tierney in Insular Chemical Cor-
poration and Rubber Corporation of America, 128 NLRB 93. In the latter case all cards
solicited by Tierney were rejected and because such rejections meant that the Union did
not have a majority, it was not necessary for a decision to be reached as to the broader
question of whether Tierney's activities tainted the cards he did" not solicit. See also
Meyers Bros. of Missouri, Inc., 151 NLRB 889, and Sinko Manufacturing and Tool Com-
pany, 149 NLRB 201. These two cases differ from the Insular Chemical case in that in
the former two cases the employees may have believed that the supervisors were acting
for management while in Insular Chemical the employees knew that management opposed
the union.
UNITED MINERAL & CHEMICAL CORPORATION 1421
ees 42 According-to Respondent, on April-23 and 24, it was reported to Emanuel
Lipetz and Alexander Lipetz that coercion was being used in the solicitation of
authorization cards from employees. These reports were relayed to Respondent's
attorney who caused an investigation to be made and who obtained affidavits from
four employees, Joseph Mosehetto, Daisy Kullama, Titian Gensel, and Lawrence
Sciutto, purporting to support such claims 43 However, despite the questions which
such reports may have raised, Respondent's antecedent unfair labor practices pre-
clude any finding that its refusal to recognize the Union was based upon any bona
fide doubt as to the Union's majority. The discriminatory discharge of Wiprovnick,
who was the spearhead of the organizational movement among the Company's
employees, 2 days before Respondent allegedly learned about improper pressures
having been used in the solicitation of authorization cards, plus Respondent's other
unfair labor practices, discussed above, reveal a purpose to defeat self-organization
of its employees. It would be entirely inconsistent for an employer who engages in
unfair labor practices of such nature, which go "to the very heart of the Act," 44
at the same time to be concerned with the fulfillment of its statutory obligations to
bargain with the designated representative of his employees. The fortuitous cir-
cumstances that, after it had entered upon a course of action directed toward the
discouragement of union membership by its employees, Respondent obtained infor-
mation suggesting that improper means had been used to obtain, employee designa-
tions did not expunge Respondent's unlawful motivation. Respondent had already
demonstrated by its unfair labor practices that it opposed union representation for
its employees. In such circumstances, any doubt which Respondent entertained
concerning the Union's claim of majority was accidental and not a reflection of a
good-faith approach to its statutory obligations.-
The Act imposes upon an employer the duty to recognize and to bargain collec-
tively with the duly designated representative of his employees. "Where a -union has
obtained authorization cards signed by a majority of employees in an appropriate unit,
employer violates [Section 8(a) (5)] the ... Act if he refuses to recognize and bar-
gain with the union, and employer is protected from [this] charge only if he was a
good faith doubt as to reliability of authorization cards. ' 4D The employer may not
delay recognition of a majority representative and insist upon a prior demonstration
of majority if the purpose is not .to resolve a bona fide doubt concerning the union's
majority claim but to "give employer opportunity to dissipate and undermine- union's
strength." 46 The shield which is available to protect an employer against unwar-
ranted representation claims may not be used- as a barrier to fend off all such claims
whether valid or otherwise.
To find, as 1 do, that Respondent's refusal to recognize the Union did not stem from
any good-faith doubt as to the Union's majority does not dispose of the refusal-to-
bargain issue because, regardless of Respondent's motivation, there, was no violation
of Section 8(a) (5) in this case if, at the relevant time, the Union had not been desig-
nated by an iincoerced majority of Respondent's employees. Of the 41 authorization
cards obtained from employees in the unit, I have found that 5, or 12 percent, were
invalid because of the direct participation of supervisors in their solicitation and that
7 additional cards, or another 17 percent, are of-questionable validity because of
misrepresentations or coercion used- in their procurement 47 This raises a genuine
42 Respondent also contends that it had a good-faith doubt as to whether the Union was
requesting recognition for an appropriate unit. However, "[elven if the company enter-
tained doubt, it is no defense to a refusal-to-bargain charge where the unit is proper."
Florence Printing Co. v. N.L.R.B., 333 F_ 2d 289 (C.A. 4)_ Accord: united Aircraft Cor-
poration (fannilton Standard Division) v. N.L-.R.B., 333 F. 2d 819 (C.A. 2) ; Tom, Thumb
Stores,-Inc, 123 NLRB 883. -
43 Upon the basis of these affidavits Respondent on April 27, 1964, filed charges with the
Board alleging violations of Section 8 (b) (1) (A) on the part of the Union. On July 10,
-1964, the Respondent was advised by the Regional Director that no complaint would be
issued with respect to such charges because there was no available evidence -that the
threats complained of can be attributed to any agent or other representative of the Union.
"N.L.B.B. v. Entwistle Mfg Go., 120 F. 2d 532, 536 (C.A. 4). -
45 The Colson Corp. v. N.L.R.B., 347 F 2d 128, 129 (C.A. 8).
48 N.L.R.B. v. The Great Atlantic & Pacific Tea Company, Inc., 346 F. 2d 936, 937
(C.A. 5).
47 See N.L.R.B. v. H. Rohtstein & Co., Inc., 266 F. 2d 407 (C.A. 1) ; TMT Trailer Ferry,
Inc., 152 NLRB 1495. -
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question as to whether the improper solicitation practices were so pervasive as to
taint all the cards so that the authorization cards may not be accepted as reliable indi-
cia of the employees' free and untrammeled representation desires 48 Also affecting
the refusal-to-bargain question in this case are issues arising from the violent means
used by the Union and its supporters in seeking to compel recognition.
Although beginning on April 28, 1964, the Union induced Respondent's employees
to remain away from work, according to Foner, "an official strike and picketing of
the company's premises" did not begin until Thursday, April 30. The violence and
intimidatory conduct directed against the Company and the nonstriking employees,
which characterized the strike, begain the next day. On May 1, the automobile in
which Emanuel Lipetz and several employees drove to the plant was stoned. On the
same day: an individual, whom Emanuel Lipetz believed was Thomas, forcibly
attempted to remove a wooden barricade which had been used by the Company to
seal off an inoperative door; Thomas went to the floor of the building where Tatarka
was working and told him not to go to work the next day because the place will be
tightly sewed up with pickets; and Thomas and Zayas threatened to beat Ivan John
Rodriguez.
The most serious incidents occurred the following Monday, May 4. A large num-
ber of pickets variously estimated from 30 to 100, many of whom were not employ-
ees of the Company, were at Respondent's premises when Emanuel Lipetz, Ivan John
Rodriguez, and four women arrived in an automobile. The Union's International
representative, William Geffner, who was present, shouted to the pickets not to let
the occupants out of the car and not to let them into the building. He then charged
at the car with some of the other pickets. Rodriguez, noticing that someone was trying
to reach into the back of the car to grab Mary Zdunczyk, opened the door in order
to assist her. Adolph Thomas and several other people then forced Rodriguez out
of the car and pushed him to the front where he was attacked and knocked to the
ground by a blow delivered by Marvin Wiprovnick. A police officer apprehended
and forceably restrained Wiprovnick. As Rodriguez arose he heard shouts to "get
him" and began to run. He was caught in the middle of the street and was again
beaten to the ground. He was rescued by the arrival of another policeman. Rodri-
guez suffered from bruises and contusions as a result of these events.
About the same time Emanuel Lipetz was attacked. As Lipetz got out of the car
he was struck by one of the pickets. He was then pushed toward the front of the car
where Geffner grabbed hold of the lapels of his coat. When Geffner released his
hold, Thomas struck Lipetz a couple of blows knocking Lipetz to the ground. After
Lipetz picked himself up, Thomas struck him several more times, again knocking him
to the ground. As a result of this incident Lipetz suffered a fractured leg. Lipetz,
who is an older man and judging from his appearance is more than 65 years of age.
was confined to the hospital for 5 weeks and then in bed at home until August 4. It
was not until October 15 that he was sufficiently recovered to return to work.
Considerable testimony was adduced concerning other incidents after May 4 such
as threats to nonstriking employees and minor acts of violence as throwing tomatoes
and stones and pulling jackets. In addition, one nonstriking employee, Fosley, was
severely beaten. However, this incident did not occur near the plant so that, except
by surmise, there is no evidence that the Union or any strikers were responsible. On
May 19 four striking female employees assaulted a group of nonstriking women who
were attempting to go to work. This incident involved considerable physical contact.
A final incident was the assault by Marvin Wiprovnick upon Irwin Cohen which
occurred on June 26.
The violent tactics used by the Union and its supporters to compel recognition were
of a more aggravated character than those described in Herbert Bernstein , et al.,
d/b/a Laura Modes Company, 144 NLRB 1592. In that case, the Board found that
the employer when faced with a demand for lawful recognition used delaying tactics
so as to gain time in which, by conduct that violated Section 8 ( a) (1), to undermine
the union's majority and that the employer also had violated Section 8 (a)(5). Never-
theless, because of the violent methods used by the union to compel recognition, the
Board refused to issue a bargaining order. In Laura Modes there were only two
incidents of violence. The first occurred on August 14, the day after a demand for
recognition had been made. The union had given the employer a day or two to seek
48 See Puerto Rico Food Products Corporation, 111 NLRB 293, 295, enfd . 232 F. 2d 515
(C.A. 1), enforcement withdrawn 244 F. 2d 314 (C.A. 1) ; Lerner Shops of Alabama, Inc.,
and Lerner Stores Corporation, 91 NLRB 151; Robbins Tire & Rubber Co., Inc., 72 NLRB
157; Wells , Inc., 68 NLRB 545, 548, enfd . 162 F . 2d 457 (C.A. 9). See also N.L.R.B. B.
The Lord Baltimore Press, Inc., 300 F. 2d 671 (C.A. 4).
UNITED MINERAL & CHEMICAL CORPORATION 1423
advice from- his attorney but then learned that the employer was using the time to
induce employees to withdraw from the Union. To bolster the employees' morale a
business agent and eight members of the Union went to the employer's premises.
When the employer threatened to call the police to evict them, he was struck in the
face and punched. A female office employee also was "pushed around." The union
subsequently called a strike. The second incident occurred on August 24, during
the strike, when a striker-employee pointed the employer out to four men who
beat him.
General Counsel seeks to distinguish the instant case from Laura Modes upon the
following grounds: (1) Here the Respondent's unfair labor practices were more
serious involving a discriminatory discharge as well as independent violations of
Section 8(a) (1); and (2) here all the acts of violence complained of occurred during
the strike while in Laura Modes the union's first act of violence occurred before it
called a strike and almost immediately after the employer commenced with his
unlawful activities.
I do not believe that these distinctions are sufficient to warrant a difference in
result 49 To issue a bargaining order in this case in the face of the unprovoked and
irresponsible acts of violence on the part of the Union and its supporters would tend
to encourage the Union and other labor organizations seeking to compel employer
recognition to avoid the orderly procedures provided by the Act for the resolution
of representation questions and to engage in self-help of the kind that the Act was
designed to eliminate. While the unfair labor practices of the Respondent were of
a serious nature, they did not justify the Union and its supporters to retaliate by vio-
lence. That the Union might not choose idly to sit by and watch its majority dissi-
pated by the company's unlawful conduct is understandable, nevertheless, the Board
should not lend its sanction to the employment of intimidatory tactics such as were
used by the Union here.
Because of the conduct of the Union, described above, during the strike and
because of my doubts concerning the reliability of the designations obtained by the
Union, I shall dismiss the provisions of the complaint which allege a violation of
Section 8(a) (5) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in-unfair labor practices and that
its affiliated companies, Titan and Consolidated, are also responsible for remedying
such unfair labor practices, I shall recommend that they cease and desist from
engaging in such unfair labor practices and that they take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Wadun Werbitzkij was unlawfully discharged on April 24, 1964,
and that he has not been reinstated since said date, I shall recommend that Werbitzkij
be-offered immediate and full reinstatement to his former or to a substantially equiva-
lent position, without prejudice to his seniority or other rights and privileges, and
that he be made whole for any loss of earnings he may have suffered by reason of
his discharge, by payment to him of a sumof money equal to the amount which he
normally would have earned from the date of his discharge to the date of Respond-
ent's offer of reinstatement, less his net earnings during such period. Having found
that Respondent discriminatorily discharged Marvin Wiprovnick on April 21, 1964,
for reasons discussed above, I shall recommend that he shall be made whole for any
loss of earnings he may have suffered by reason of his discharge, for the period
between the date of his discharge and May 4, 1964, by payment to him of a sum of
money equal to the amount which he normally would have earned during said period
less his net earnings during such period. The backpay provided for herein for both
said employees shall be computed on the basis of calendar quarters, in accordance
with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest
at the rate of 6 percent per annum shall be added to such net backpay and shall be
computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
49 I would hold otherwise had the Respondent engaged in conduct which tended to
provoke a violent response.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The violations of the Act committed by Respondent are potentially related to
other unfair labor practices proscribed by the Act and the danger of their commis-
sion in the future is to be anticipated from Respondent 's conduct in the past. The
preventive purposes of the Act will be thwarted unless the Recommended Order
herein is coextensive with the threats . In order, therefore , to make effective the
interdependent guarantees of Section 7 and to prevent the recurrence of unfair labor
practices , and thereby minimize industrial strife which burdens and obstructs com-
merce and thus effectuate the policies of the Act, I shall recommend that Respondent,
Titan, and Consolidated be ordered to cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
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. By discriminating in regard to the hire and tenure of employment of Marvin
Wiprovnick, thereby discouraging membership in the Union , Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
2. By discharging Wadim Werbitzkij on April 24, 1964 , and thereafter refusing
to reinstate said employee to his former or to a substantially equivalent position,
Respondent has interfered with , restrained , and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By conveying to its employees the impression of surveillance of their union
activities and by requesting employees to engage in surveillance of the union activities
of other employees and to report such activities to the Respondent , Respondent has
interfered with , restrained , and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor practices by reason of conduct
alleged in the complaint to have been in violation of the Act except insofar as such
conduct has been found hereinabove to have violated Section 8 (a) (1) or (3) of the
Act.
[Recommended Order omitted from publication.]
Philadelphia Mailers Union No. 14 , International Mailers Union
and Gravure Division of Triangle Publications , Inc. Case No.
4-CD-117. December 9,1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Gravure Divi-
sion of Triangle Publications, Inc., herein called the Employer, alleg-
ing that Philadelphia Mailers Union No. 14, International Mailers
Union, herein called the Mailers, had violated Section 8(b) (4) (D)
of the Act by threatening, coercing, or restraining the Employer for
the purpose of compelling it to assign certain work to employees
represented by the Mailers, rather than to employees represented by
Local No. 16, International Printing Pressmen and Assistants' Union
of North America, AFL-CIO, herein called the Pressmen, and Local
No. 169, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Paper Handlers.
155 NLRB No. 130.