Permacold Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 885 (N.L.R.B. 1964)

PERMACOLD INDUSTRIES, INC. 885
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office , 849 South Broad-
way, Los Angeles, California , Telephone No. 688-5204 , if they have any questions
concerning this notice or compliance with its provisions.
Permacold Industries , Inc. and Miscellaneous Warehousemen &
Production Employees Union Local No. 781 , affiliated with the
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Cases Nos. 13-CA-5769 and
13-CA-5947. June 29, 1964
DECISION AND ORDER
. On March 27, 1964, Trial,Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding- that Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it.cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision... The Trial
Examiner also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that those allegations of the comp] aintbe dismissed. Thereafter, Re-
spondent filed a motion to reopen hearing and/or record,' exceptions
to the Decision, a brief in support of the exceptions; and a brief answer-
ing, the. General Counsel's cross-exceptions. The . General Counsel
filed a brief in opposition to the above-mentioned, motion and cross-
exceptions.
Pursuant to the provisions of Section 3(b) .of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers, Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Decision, the motion, the opposition
i Subsequent to the hearing and the issuance of the Trial Examiner 's Decision, Respond-
ent filed a motion to reopen the record to permit it to adduce additional , evidence in con-
nection with the supervisory status of Papas and Pankiewicz and the veracity of several
.witnesses . Attached to the motion were four affidavits : two by witnesses at the hearing
repudiating their testimony ; one by a witness stating that another named witness, now
dead, had admitted that he had lied at the hearing ; and one by a nonwitness stating that
a witness had wanted him `to testify that three individuals in dispute were foremen, al-
though the affiant said they were not. The General Counsel opposes the motion. As we
find that a preponderance ' of other credited testimony establishes that Papas and
Pankiewicz are supervisors within the meaning of Section 2 (11) of the Act, we deny the
motion . Nebraska Bag Company, et al ., d/b/a Nebraska Bag Processing * Company, 122
NLRB 654, 655.
147 NLRB No. 131.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto, the exceptions, the cross-exceptions, and briefs, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications.
1. We agree with the Trial' Examiner's finding that Respondent
knew of the union activities of the discriminatorily discharged em-
ployees. We base this finding of knowledge on Respondent's exten-
sive interrogation of employees as to union activities, its requests to
some employees to ascertain and report on the union activities of other
employees, the small size of the plant,2 and the fact that, whereas only
a bare majority of employees signed authorization cards on behalf
of the Union, all the employees who, we have found, were discrimina-
torily discharged had signed such cards.'
2. Although the Trial Examiner found, and we agree, that Joe
Powell was unlawfully discharged on July 25, 1963, he failed to count
Powell's card in computing the Union's majority status. The Trial
Examiner found that Powell signed a union authorization card on
July 17, 1963. We find, therefore, contrary to the Trial Examiner,
that, as Powell was an employee on July 22, 1963, the day the Union
requested Respondent to recognize it as the majority, representative,
his card should be counted in determining the Union's majority.
3. We agree with the Trial Examiner that Respondent unlawfully
refused to bargain with the Union. On July 22, Union Representative
Cook called at Respondent's place of business and spoke to. Vice
President Giovan telling him that the Union represented a majority
of Respondent's production, maintenance, and warehouse employees
and requesting negotiations for a collective-bargaining agreement.
Giovan said he had no authority to recognize the Union or negotiate
.a bargaining contract and insisted that the union representative speak
to Respondent President Tsoumas who, however, was not in the plant.
Giovan said he would have Tsoumas call the Union later in the week
when Tsoumas was expected back in the plant. The union representa-
tive thereupon left his name, address, and telephone number with
Giovan. On July 23, the Union filed a representation petition with
the Board which was subsequently dismissed. No representative of
Respondent ever communicated with the Union following the request
for recognition and bargaining made to Giovan. We agree with the
Trial Examiner's finding that the request to Giovan was a request to
-Respondent and that ^ the latter's failure to communicate with the
Union constituted ;a. refusal to bargain. Respondent contends that it
was justified in so refusing in view of the simultaneous filing of the
representation petition. It is well established that the mere filing of a
2 Angwell Curtain Company, Inc . v. N.L.R.B ., 192 F . 2d 899 , 903 (C .A. 7) ; Manbeek
Baking Company , 130 NLRB 1186, 1188.
3 Argentum Mining Company of Nevada , 129 NLRB 439, enfd. 296 F . 2d 219 (C.A. 9) ;
Keco Indu8tries , Inc., 118 NLRB 317, and 121 NLRB 1213 , enfd . 271 F . 2d 263 (C.A. 6).
PERMACOLD INDUSTRIES, INC. 887
representation petition does not excuse a refusal to recognize a union
where the employer does not have a good-faith doubt of the union's
majority status 4 We find on the basis of-the unfair labor practices
committed by Respondent both before and after the request for rec-
ognition that Respondent's failure to respond to the request was not
based on a good-faith doubt of the Union's status as majority repre-
sentative, but by a rejection of the collective-bargaining principle and
a desire to gain time in which to undermine the Union's majority 5
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, its of-
ficers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
4 Mid-West Towel & Linen Service, Inc., 143 NLRB 744; General Medical Supply Corp.,
140 NLRB 712, 725; Southern Illinois Sand Co., Inc., 137 NLRB 1490, 1491.
5 Southern Illinois Sand Co., Inc., supra , at 1491 ; Joy Silk Mills, Inc., 85 NLRB 1263,
enfd as modified 185 F. 2d 732 (C.A.D.C), cert denied 341 U.S. 914.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case initiated by charges' filed by Local No. 781
of the Teamsters against Permacold Industries , Inc. A consolidated complaint
emanating from those charges was issued on November 7 (after a complaint based
on Case No. 13-CA-5762 had issued on September 18), 1963, by the General
Counsel of the National Labor Relations Board through the Regional Director for
the Thirteenth Region (Chicago, Illinois ), against said employer , herein sometimes
called the Company or the Respondent. In substance the complaint as amended
at the hearing alleges that Respondent violated Section 8 (a)(1), (3), (4 ), and (5)
of the National Labor Relations Act. Respondent has answered admitting some
facts but putting in issue the unfair labor practices . Pursuant to due notice, this
case came on to be heard and was tried before Trial Examiner James V. Constantine
from December t0 through 13, 1963, at Chicago , Illinois. All parties had full op-
portunity to adduce evidence , examine and cross-examine witnesses , submit briefs,
and offer oral argument . Briefs have been received from Respondent and the Gen-
eral Counsel.
During the hearing the General Counsel orally moved to amend the complaint, but
I refused to entertain such motion until it was embodied in a written pleading and
served upon Respondent . This condition was complied with . Even this, in my
opinion , is an unsatisfactory substitute for the orderly presentation of a litigated case
to the Board. Except for the exceptional situation when new issues initially develop
at the hearing itself , a Respondent is entitled to know the exact language of the
illegality he is accused of, and what he has to defend , at least by the date of opening
of the hearing. Cf. Boston Gas Company, 137 NLRB 1299, 1300; Rule 15 of the
Federal Rules of Civil Procedure. It would seem, therefore, that the Board may wish
to provide in its Rules that all motions to amend a pleading by any party must
be in writing and, unless good cause is shown , served upon the opponent before
the hearing starts. -
In its brief the General Counsel has requested that I consider my ruling denying
in part a motion to amend the complaint at the hearing. Although I denied such
attempt to amend chiefly because I felt that Section 12 of the Act was not involved,
1 The charge in Case No 13-CA-5762 was filed on July 23 and amended on July 24,
1963; that in Case No 13-CA-5947 was filed on October 21 and amended on October 28,
1963
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also did so as a matter of discretion . Further reflection persuades me that the rul-
ing made at the hearing should be followed. Accordingly, the General Counsel's
request to amend is again denied.
The General Counsel also requests in his brief that I admit in evidence an affidavit
given to him by his witness McNeal to explain another affidavit of McNeal's which
I admitted in evidence on Respondent's behalf. At the hearing I excluded the former
affidavit of McNeal on the ground that it was not a proper way to rehabilitate the
witness against impeachment absent a contention by Respondent that McNeal was
biased, prejudiced, or unduly influenced, or an assertion that McNeal's evidence was
recently contrived or fabricated. But I did not preclude rehabilitation of McNeal
by other means recognized by the law of evidence. Upon reconsideration, I adhere
to the ruling made at the hearing. See IV Wigmore, Evidence 3d ed., § § 1126, 1128,
and 1129.
A motion has been submitted by Respondent to correct the transcript. In the
absence of opposition thereto, said motion is hereby granted.
Upon the entire record in this case , including the stipulation of the parties , and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Illinois corporation , is engaged at Chicago , Illinois, in manu-
facturing, selling, and distributing refrigerators, cooling equipment, and related
products . During the year preceding the issuance of the complaint , Respondent sold
and shipped products valued in excess of $300,000 directly to points outside the
State of Illinois. I find that Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen & Production Employees Union Local No. 781,
affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act. It is sometimes mentioned herein as the Union or Local 781.
III. THE UNFAIR LABOR PRACTICES -
Many of the factual issues were strenuously controverted and ably contested.
Where dispute exists, it has been resolved in accordance ' with my evaluation of the
credibility of the witnesses and reasonable inferences drawn from the evidence.
In ascertaining credibility , I have credited some witnesses in part only (Marquandt v.
Y.W.C.A. (Mass.) 184 N .E. 287, '288), without 'narrating evidence in connection
therewith, in order to keep this Decision from becoming prolix. However , all evi-
dence has been considered ; that consonant with the facts found herein has been
credited , and that inconsistent with such findings has been rejected. Cf. Trumbull
Asphalt Co. of Delaware v. N.L.R.B., 314 F. 2d 382, 383 (C.A. 7).
A. The alleged refusal to bargain
1. The demand for recognition
Kenneth A. Cook, Jr., business representative and vice president of Local 781,
initiated a drive to organize the Company's employees about the middle of July
1963.2 About July 16, outside the plant, Cook gave 20 or 25 authorization cards to
employee Robert Davis, pursuant to a previous arrangement. Cook met Davis
because a steward of another employer told the Local 781 office that Respondent's
employees desired a union and that the Permacold employee to communicate with
thereon was Davis. Cook knew Davis as Davis had been a member of Local 781
when employed elsewhere. Davis signed one card and gave it to Cook. Two days
later Davis gave Cook 12 more signed authorization cards. Davis told Cook that
employee Frozell Pittman and he had obtained the signatures. On July 22, Cook
entered Respondent's plant and told the girl at the switchboard that he wanted to talk
to one of the officers. A person named Nicholas Giovan came out to speak to Cook.
I do not credit the Respondent's evidence that Giovan was not called by the switch-
board or that he was in the office when Cook entered the plant.
2A11 dates mentioned hereafter relate to the year 1963 except where otherwise noted
PERMACOLD INDUSTRIES, INC. 889
Giovan's status is in dispute. Respondent concedes that he is a foreman and, super-
visor under the Act. Additionally, I find, contrary to Respondent's contention, that
Giovan also holds the position of vice president of Respondent and held it at all times
material. This is based on the following evidence, which I credit: (a) Giovan testi-
fied that he was made a vice president 8 to 10 years ago and that he was not told by
Respondent until after his interview by a Board agent that he was no longer a vice
president; 3 (b) Giovan's affidavit to the National Labor Relations Board, executed
with his counsel present, swears that he is vice president, and no attempt has been
made to amend or modify it; and (c) Giovan signed a commerce data questionnaire
-(General Counsel's Exhibit No. 3), as vice president. In any event I find that Giovan
at all times material was second in command after President Tsoum,as, that Giovan
was in charge of the plant during the frequent absences of Tsoumas, and that Giovan
is a managing agent of Respondent.
After Giovan came to the reception room where Cook was waiting for him, Cook
told him "we represented a majority of the production, maintenance, and warehouse
employees and we wish to negotiate a contract covering wages, hours and working
conditions.',' Giovan replied that he lacked the authority to discuss recognition or
negotiations for a collective-bargaining contract, and insisted that Cook speak to
President Tsoumas thereon. Giovan added that Tsoumas would not be in until
later in the week but that Giovan would have Tsoumas call Cook then.4 As Cook
carried no business card, he left a blank union authorization card with Giovan.
This card contained the name, address, and telephone number of Local 781. Cook
was not thereafter called by anyone on behalf of Respondent.
On July 23, Cook telephoned Respondent. Since the person answering has been
identified only as "one of the boys," I cannot give any weight to this telephonic con-
versation. Accordingly, the content thereof will not be recited here.
2. The appropriate unit
All production and maintenance employees of Respondent, exclusive of all office
clerical, plant clerical, and professional employees, guards, and all supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) and 8(a) of the Act. Composition of the
unit is not at issue.
3. The majority status ,of the Union
Twenty-one persons are employed in the above unit. Admittedly, 18 are em-
ployees under Section 2(3) of the Act. But the parties are at issue as to the super-
visory status of three others, Pankiewicz, Turner, and Papas. I find that all but
Turner are supervisors under Section 2 (11) of the Act. Although Turner was men-
tioned as a "foreman" by witnesses, there is nothing in the record to show that he
acted as one. His higher rate of pay is some indication of supervisory capacity,
but I find it insufficient to establish that. On the other hand, I find that Giovan not
only told some employees that Papas and Pankiewicz were foremen, but they also
exercised some of the attributes of a supervisor, such as giving orders .5 In addi-
tion, it is reasonable to expect that Vice President Giovan would delegate some of
his responsibility to someone under him on each floor, i.e., to Pankiewicz, -on the
first floor and to Papas on the second. Otherwise Giovan would be acting as
the only supervisor. Accordingly, only Turner is to be included in the unit. This
makes 19 in the unit.
Although the Union had 13 signed cards, I find that 10 were valid. Two cards,
those of Bunville and Gilbert, should be excluded from any computation, because
these employees did not sign for union representations As to the 10 I find that
the signers thereof knew what they were doing and that in any event, no deception,
misrepresentation, or undue influence was practiced upon them to induce them to
sign.? Mid-West Towel & Linen Service, Inc., 143 NLRB 744. This conclusion
3I do not credit Respondent's testimony that when Giovan finally was informed he was
no longer vice president such demotion actually occurred or related back years before
absent documentary evidence thereof from its corporate records
4I do not credit Giovan's oral testimony Insofar as It conflicts with the findings in this
paragraph, especially since Giovan's affidavit to the Board confirms Cook.
N.L.R.B. v. Daniel Crean and Joseph Messore d/b/a The Grand Food Market, 326 F.
2d 391 (CA. 7) ; Keener Rubber, Inc. v. N.L.R.B., 326 F. 2d 968 (C.A. 6).
8I find that these two signed because they thought they would be invited to a party.
'+I have excluded Powell's card since the parties have not included him in the unit
See General Counsel's Exhibit No 4.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not clash with N.L.R.B. v. Harold W. Koehler, et al ., d/b/a Koehler's Whole-
sale Restaurant Supply, 328 F. 2d 777 (C.A. 7). See N.L.R.B. v. Daniel Crean
and Joseph Messore d/b/a The Grand Food Market, 326 F. 2d 391 (C.A. 7).
Hence, I find that Local 781 had a total of 10 valid cards in a unit consisting of
19 employees, that this constituted a majority in an appropriate unit at the'time
the Union made its demand for recognition on July 22,8 and that the discharges of
July (discussed below) did not destroy that majority because such discharges were
unlawful.
Respondent stresses that the filing of a representation petition by the Union on
July 23 in Case No. 13-RC-9570 created a good-faith doubt in its mind warranting
a refusal to bargain. But the Board has consistently held that the simultaneous filing
of such petition with a demand for recognition will not excuse a refusal to bargain
with a majority union. Mid-West Towel & Linen Service, Inc., 143 NLRB 744;
General Medical Supply Corp., 140 NLRB 712, 713.
Respondent further emphasizes that the General Counsel is estopped or precluded
from contending that Pankiewicz, Turner, and Papas are supervisors because the
complaint does not so describe them. But the complaint mentions only those
supervisors who are alleged to have engaged in unlawful conduct; nowhere in the
complaint are these three mentioned as perpetrators of illegal acts. Hence I con-
clude that this argument is not well taken. In any event, I find that the state of the
pleadings does not sustain Respondent's contention.
B. The other unfair labor practices
I find that Respondent entertained a union hostility 9 and that such opposi-
tion to the Union was manifested by speech and conduct which violated Section
8(a) (1) and (3). This subsection will discuss the 8 (a) (1) violations. Section C,
below, will take up the 8(a) (3) aspects of the case.
1. Interrogation
On July 19. President Tsoumas asked employee Davis which employee had been
taking down the names of employees by the timeclock and asked if it was Davis.
This is an innocuous inquiry, and I find it is not coercive or otherwsie encompassed
by Section 8(a)(1). On the same day, Tsoumas asked employee Lane about an
earlier gathering of employees, but Lane did not know what went on. Nothing
contained in this question is unlawful, and I so find. But I find that,, in the same
conversation, Tsoumas (a) asked Lane if Lane had signed a union card, and (b)
told Lane to report to Tsoumas anyone who solicited his signature thereto. I do
not credit Respondent's contradictory evidence. This part of the conversation
violates Section 8(a)(1). On July 19, employee Pittman observed some employees
going into Respondent's office. Employee- Jenkins saw the same phenomena on
July 20. 'But. in the absence of testimony as to what was said to such employees,
I find nothing unlawful in these incidents; nor do I find that they indicate or, tend
to, indicate opposition to unions.
Tsoumas' absence from the plant during July has become a hotly contested issue.
Tsoumas testified that he was out of town from late June to July 13, and that he
remained ill -at home from July 14 to 25. Employee witnesses for Respondent
testified that he was not in the plant during July. I do not credit this testimony;
but I do credit the General Counsel's employee witnesses who testified that they
saw Tsoumas in the plant at diverse times in July.
Respondent's -nonemployee witnesses testified that they visited Tsoumas at home
during the-time he was confined from July 14 to 25 for an aggravated cold. But
on their own-testimony-other than that of the attending physician-these witnesses
called on Tsoumas not because of concern for his illness or to pay a sick-call on
a friend, but, rather, to talk over business or fraternal affairs. It is difficult to under-
stand how a supposedly sick man was able to receive so many nonsick call visitors.
I do not reach -the question of whether these visitors (other than the doctor), should
be credited, for I find that their calls did not consume the entire day, that Tsoumas
s I find that a.valid• demand was, made upon Gioi'an as an agent of Respondent. It is of
no-consequence that ,l find, as Respondent contends, Giovan had no authority to deal with
the demand. I find that Respondent had knowledge of a demand through its agent, Glovan,
and was bound to reply thereto. Failure to reply constitutes a refusal to recognize.
U It is no unfair labor practice to dislike unions or to express an opinion to that effect.
But union animus is relevant as background in assessing other speech or conduct com-
plained of as contravening the Act. Mr. D's No. 2, Inc., 145 NLRB 1227.
PERMACOLD INDUSTRIES, INC. 891
may well have received them and still called at the plant at other times of the day,
and that Tsoumas was not so ill that he was physically incapacitated from spending
a small part of a day at the plant at least after July 18.10
Accordingly, I find that Tsoumas was present at the plant at the times in July
ascribed to him by the General Counsel's witnesses.
On July 22, Vice President Giovan asked employees Batton, Thomas, and Lacy
if they had signed union cards or heard of union activity;11 and on July 23 asked
Batton if McNeal signed a union card . This is proscribed by Section 8(a) (1), and
I so find.
On September 6, Tsoumas told Batton that he saw Pittman talking to Batton and
asked Batton where Batton was to meet Pittman that night. Nothing coercive can
be found in this. Hence it does not run afoul of Section 8(a)(1). However,
Tsoumas asked Batton on October 21 which employees had gone to the National
Labor Relations Board office on the previous Saturday . I do not credit the contrary
testimony of Tsoumas. This inquiry also violates Section 8 (a) (1) ; but I have dis-
regarded it in making findings concerning the July discharges, since it occurred some
time after the fact and does not contain any declaration which would cause me to
relate it back to those discharges.
The above events found to be violations transcend the bounds of expressions of
opinion sanctioned by Blue Flash Express, Inc., 109 NLRB 591. Since they are
not shown to have been uttered in connection with lawful objectives , they are con-
demned by the Act. P-M Garages, Inc. et gal., d/b/a P -M Parking System, 139
NLRB 987; Orkin Exterminating of South Florida , Inc., 136 NLRB 399.
Respondent also requested employees Batton, Thomas , and Lacy to ascertain the
union activities and sympathies of employees , and asked Batton and Thomas to
report thereon . This constitutes a request for, unlawful surveillance . Standard
Cable Corporation, 99 NLRB 1252; Rea Construction Company, 137 NLRB 1769,
1774. I do not credit Respondent's contrary evidence.
2. Threats
About July 19, President Tsoumas told employee Thomas that Thomas, who was
engaged to be married, would lose his job if he engaged in union activities, so
that Thomas would not be able to support a wife?? - -
Tsoumas told employees assembled around the timeclock in July 13 that he would
close the'place rather than see a union in the plant.14 -
The foregoing threats are prohibited by Section 8 (a) (1) as coercive.
C. The July discharges
1. The discharge of Robert Davis
a. General Counsel 's evidence
Davis was hired about June 17, 1963 , as a welder at Respondent 's plant with wage's
at the hourly rate of $1 .75. As noted above, on or about July 16 , about 4:30 p.m.,
Business Representative Cook spoke to him about organizing a union at the plant
and gave--Davis some union- authorization cards. Davis signed one card and gave
it to Cook, and later handed the remainder to employee Frozell Pittman to dis-
tribute among employees . On about July 18, Pittman gave back . 12 signed cards
to Davis and Davis - returned them to Cook on that or the next day. -
On July 19, Respondent President Tsoumas asked Davis which employee had been
taking down the names of employees by- the,timeclock,- and -asked if it was Davis.
10 This computation allows 4 days , July 14 to- 18, for Tsoumas to remain completely at
home to recuperate from a cold.
111 do not credit employee McNeal's testimony that he was interrogated in this respect.
12I dog not credit the contrary evidence of Tsoumas.
1u Tsoumas and other employees testified that the meeting around the timeelock was held
in May or June . I do not credit this evidence, especially since I have found that Tsoumas
uttered antiunion statements at the meeting and also made statements by which he justi-
fied the discharge of Pittman . Since the advent of the Union did not occur until about
July 16 manifestly the meeting would have taken place after July 16. Bence, I accept
the General Counsel's evidence that the meeting was convened in late July after the dis-
charge of Pittman on July 22.
14I do not credit Respondent 's evidence that Tsoumas uttered no statements concerning
unionism or the Teamsters.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not credit-the contrary testimony of Tsoumas on this aspect of the case. But
I base no ultimate finding on this subsidiary finding since I find that the inquiry of
Tsoumas has not been connected to any of the issues on which the General Counsel
has the burden of proof.
About noon on July 22, Davis and Pittman met with Cook who informed them
he was "getting ready to take the cards into the office to let the boss know the
fellows wanted a union." Soon thereafter Cook demanded recognition of Respond-
ent. That afternoon about 4 o'clock, about a half hour before the 4:30 regular
quitting time, Giovan laid off Davis without explanation and handed Davis a pay-
check. Giovan added that it would be useless to expect to be called back because
he did not think the work would ever pick up again.
b. Respondent's version,
Giovan testified that he decided on July 22 to terminate Davis for poor workman-
ship in welding, "the fact that we had to send somebody'a couple times or three at
his place to pick him up and bring him to work," 15 and drinking ; 16 and that he
fired Davis late in the afternoon for these reasons. Respondent has introduced the
payroll record of Davis showing 24 dates on which he was tardy and 1 on which
he was absent from the week ending June 23 to July 22, 1963. Davis conceded he
was late for work twice and absent once.
Concluding Findings as to Davis
Although I find that Davis was often tardy 17 and perhaps occasionally turned in
defective welding, I find that he was discharged for engaging in union activity and
that his tardiness and alleged poor workmanship are pretexts to disguise the illegal
discharge . 18 Respondent's and the General Counsel 's evidence not consonant with
the foregoing findings is not credited . These findings are based upon the whole
record, including the following subsidiary findings:
a. I do not credit Respondent's evidence that someone had to be sent to bring
Davis to, work. Moreover, even if this is true, as Respondent contends, two other
employees (Thomas and McNeal), who were admittedly sent for because they
stayed home when needed , were not discharged . Hence, this type of tardiness could
not have been considered by Respondent as serious.
b. Despite a poor record with respect to tardiness , Respondent did not take any
disciplinary action thereon although this conduct persisted over an appreciable
length of time. This borders upon condonation; at least it amounts to a deliberate
disregard of the dereliction. This is particularly true since I find that Davis was
a new employee still on his probationary period and who could have been released
during that period; to retain a new employee despite his constant violations of plant
rules is to overlook or excuse or tolerate the infraction.
c. The timing of the discharge is significant.. Davis was let go contemporaneously
with his union activity (although cause existed for his lawful discharge prior to the
advent of the Union) and a few hours after the Union's demand for recognition. In
addition he was discharged -during - the very first day of a new workweek although
nothing happened that day to require a precipitate termination of his services.
d. All of the July dischargees were members of the Union. Again it is rational
to infer-and I do -so-that the selection of only union men for discharge was more
than- coincidental.19 And I find, for the reasons given in connection with the dis-
charge of Pittman, that Respondent is chargeable with knowledge of the union
activity of Davis. I further find that Davis did not become drunk .on the job or that
his drinking was one of the reasons for his discharge.
15 No evidence of the person sent to call on Davis was offered by Respondent to support
its claim that anyone had gone to bring Davis to work. Charles Thomas, an employee who
had been aroused from bed on several mornings to get him to come to work , was not dis-
charged therefor.
16 Evidence of drinking is so slight that I expressly find that the record does not warrant
a finding that Davis drank on the job or that drinking interfered with his performance of
assigned tasks.
17I do not credit the testimony of Davis to the contrary.
18 "The mere existence of valid grounds for a discharge is no defense to a charge that
the discharge was unlawful . . . N.L R B. v. Symons Manufacturing Co., 328 F. 2d
8355 (C A. 7).
19N.L.R.B. v. Chicago Steel Foundry Company , 142 F. 2d 306 , 308 (C . A. 7), and cases
there cited; Syracuse Tank & Manufacturing Company, Inc., 133 NLRB 513, 525.
PERMACOLD INDUSTRIES, INC. 893
e. Davis engaged in union activity, although it was slight, and was a member
of the Union.
2. The discharge of Frozell Pittman
a. Pittman's version
This employee was hired by Respondent about September 22, 1962, as a com-
mercial refrigerator assembler at an hourly wage of $1.15. Later cabinet washing
was added to his duties. On July 22 Pittman and employee Davis met with Cook
about noon. About 3:15 that afternoon, Giovan laid off Pittman giving as a reason
that work was slow. Other. facts regarding Pittman are set forth above in connec-
tion with the refusal to bargain, narrated above.
Before July 22, a complaint had been made to Pittman' that his washing of equip-
ment was unsatisfactory. On another occasion the Internal Revenue Service "pre-
sented the Company with a levy with reference" to Pittman.
b. Respondent's testimony
Tsoumas testified that after receiving letters complaining about the rust on cabinets
he spoke to Pittman warning him to "bonderize" and clean the cabinets better,20
because it was a serious problem to have rust. It was Pittman's job to wash and
clean the metal; thereafter it was painted by Batton.21 Tsoumas testified further
that the last time he so warned Pittman was "the beginning of June." But these
letters complaining of rust 22 are dated May 17, June 25, 27, . and 30, July 1, and
August 2. Hence it is difficult to understand how five of the six letters could have
prompted Tsoumas to talk to Pittman about the rust problem. Accordingly, I find
that Tsoumas last spoke to Pittman about rust in early June, and that thereafter did
not again personally warn Pittman that the rust continued to be.a serious problem.
I further find that rust did occur, and that Respondent reimbursed one customer
therefor, but that the credible evidence does not show. that it is attributable to Pitt-
man's lack of workmanship or that rust actually lost any sales. I also find that Pitt-
man was not assigned to other work after rust became a problem. Hence, I do not
pass upon Respondent's evidence, contradicted by the General Counsel, that Batton
had to repaint cabinets improperly preparedby Pittman.
Tsoumas further testified that on June 22,23 he instructed Giovan, during a tele-
phone call to him from Giovan, to fire Pittman "and four or five other people who
are continuously coming in late and absent"; and that he was doing so because he
was "fed up" with such employees. I do not credit this because it is not corroborated
by Giovan. I credit Giovan to the extent that he testified that he made the decision
to terminate these employees.
Giovan testified that on July 22 he decided to fire (and did fire in the late afternoon)
Pittman because Pittman was "occasionally late, absent, and primarily because of
the complaint that we were receiving in the paint, the cabinets rusting." I find that
Pittman's payroll record (Respondent's Exhibit C) discloses that Pittman was late
29 times between the week ending June 2 and July 22, 1963, although the periods of
lateness are not revealed.
Concluding Findings as to Pittman
I find that Pittman signed a union card because, as he testified, he "wanted a
union"; and that no coercion or misrepresentation was practiced upon him in con-
nection therewith. Accordingly, I find that his card should be included in computing
the number of valid cards-the Union possessed on July 22.
Further, I find that Pittman was discharged, in violation of Section 8(a)(3),
for activity on behalf of and membership in the Union, and that his poor workman-
ship was seized upon as a pretext to justify the unlawful discharge. This ultimate
finding and conclusion is based upon the whole record, and the following factors:
a. Respondent had a union animus and sought to prevent the Union from organizing
its employees by illegal acts.
20 If a cabinet is not washed properly, so that all oil is not removed, the paint will not
adhere to the metal because a film of oil will prevent the paint's sticking to the metal.
As a result, the paint will peel and rust will form on the exposed surfaces.
21 Batton. was present at this conversation.
22 These letters were excluded as hearsay, but they may be found in the rejected exhibit
file.
23 June 22 Is probably a typographical error in the transcript, as I recall Tsoumas said
July 22 at the hearing.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b.,,Pittman was. active on behalf of the. Union.- Although. Giovan and'Tsoumas
deny knowledge thereof, I find that because of the smallness of Respondent's plant
(Angwell Curtain Company, Inc. v. N.L.R.B., 192 F. 2d 899, 903 (C.A. 7)), the
-Union's demand for recognition, and the fact that all of the July dischargees were
union members, knowledge of Pittman's union activity should be attributed to Re-
spondent under the circumstances.
c. All the July dischargees were union members. Cf. Nachman Corporation, 144
NLRB 473.
d. Although Pittman performed some poor work and was excessively tardy, it was
overlooked and tolerated for weeks after he was first warned about it.
e. Timing of the discharge is significant , i.e., it was made contemporaneously with
Pittman's union activities and immediately after the Union's demand for recognition.
DuBois Chemicals, Inc., 140 NLRB 103, 104. It is more than sheer coincidence that
the discharge occurred so soon after the Union's demand, especially since it was
accomplished on the first day of the workweek.
f. Moreover, inconsistencies are discernible in Respondent's own evidence as to
Pittman's discharge. Thus Tsoumas claims he discharged Pittman for poor
workmanship and told Giovan to fire him; but Giovan claims he made the decision
to fire Pittman for poor workmanship and tardiness.
3. The discharge of Ernest Melton 24
a. Digest of General Counsel's evidence
Melton was hired by Respondent about June 19, 1963, to do odd jobs at the rate
of $1.15 an hour. His `5boss" was Sam Turner. When he was hired, Giovan told
him the Company would not tolerate wage assignments , and that he would be on a
90-day probationary period. After receiving a union authorization card from
Frozell Pittman, Melton signed it on July 17 and gave it back to Pittman. About
4 p.m., on Monday, July 22, Vice President Giovan laid off Melton,. telling him that
work was slow. Although Giovan gave Melton a check in payment for the whole
day, Giovan authorized him to leave then, a half hour before the usual 4:30 p.m.
quitting time.
Melton concededly was late for work on two occasions.
b. Summary of Respondent's evidence
Giovan testified that he made a decision to discharge Melton on July 22 for poor
workmanship and lateness, he was so fired. in the late afternoon, and he mentioned
this to Melton at that time. Respondent produced Melton's payroll record revealing
that Melton was late 16 times from the week ending June 23 to July 22, 1963; I
credit the payroll record's accuracy and do not credit the General Counsel's conflicting
oral evidence upon this issue.
Concluding Findings as to the Discharge of Melton
While I find that Melton's record for tardiness was poor .and excessive,25 so that
lawful cause existed for his discharge, I find that on the credible evidence Melton's
work was not of such poor quality that it gave Respondent any real concern. I
further find that Melton was not told by Giovan that he was being laid off because
work was slow. I do not credit Melton that he was not informed that he was being
discharged for poor workmanship and tardiness; I credit Giovan that Melton was
so told. Nevertheless, I find that Melton was discharged for being a union adherent
and not for lack of work, or tardiness, or defective workmanship. This ultimate
finding is based upon the following factors and the entire record:
a. Respondent entertained a pronounced hostility to the Union and engaged in un-
fair labor practices to defeat unionization of its plant.
b. Melton signed an authorization card. Although affirmative evidence is lacking
that Respondent had knowledge of Melton's union membership, I find that under
the circumstances the Board's small plant rule requires me to ascribe such knowledge
to Respondent.
24 In appraising Melton's testimony I have taken into consideration his conviction for
armed robbery following a plea of guilty. When first asked on cross-examination if he
had been convicted of a crime, Melton replied in the negative. Later he admitted he
pleaded guilty. I have also considered this inconsistency in evaluating his testimony.
: =I find that one or two times a week was average for all employees ; hence more than
that manifestly exceeds the average.
PERMACOLD INDUSTRIES, INC. 895
c. Although lawful cause existed for Melton's discharge (i.e-., excessive tardiness),
no disciplinary sanction was imposed by Respondent on Melton over a period of about
4 weeks during which he continued to arrive late for work. Since Melton at this
stage of his employment was 'a probationary employee, it is difficult to understand
why Respondent retained a probationary employee who failed to meet Respondent's
standards for promptness and good workmanship.26
d. The timing of the discharge is significant. Although Melton could have been
discharged for cause prior to the advent of the Union, or for failing his probation,
nothing was done about his deficiencies as an employee until shortly after Melton
joined the Union and a few hours after the Union demanded recognition. And the
abruptness of the discharge,27 when associated with the circumstances of its timing,
leads to the conclusion-and I find-that the discharge was motivated by hostility to
Local 781 and Melton's membership in it. -
e. Finally, I attach some weight to the fact that the July dischargees, without excep-
tion, were all employees who had freshly-joined the Union. While I recognize that
coincidence between union membership and a discharge does not constitute an unfair
labor practice, and that membership in a union is not a guarantee against discharge
for cause,28 I cannot ignore the fact that several union members were simultaneously
abruptly discharged shortly after becoming members of, and immediately following
a demand for recognition by, Local 781.
4. The discharge of James Jenkins
a. Abridgment of General Counsel's evidence
This employee was hired about June 24, 1963, as an assembler of the interior
of refrigerators, at $1.15 an hour. He signed an authorization card for Local 781
on July 17, 1963, and gave it to employee Pittman on the, same day.
At 4:30 p.m. on July 22, Jenkins received his paycheck. The next day he was late
in reporting for work. As Jenkins was entering the plant, Vice President Giovan
stopped him, told him that business was slow, and that he had to lay off Jenkins.
During his period of employment Jenkins was not told not to come in late.29
Admittedly (a) he has been late four or five times and absent an unidentified num-
ber of times, and (b) he has left work early twice30
On cross-examination, Jenkins testified that in an affidavit -given to the General
Counsel's agent, Jenkins declared that Giovan laid him off because Jenkins was
"coming in late and leaving when you feel like it."
I find that Jenkins was terminated on July 22, when he received his paycheck, and
not on July 23 as he testified.
b. Condensation of Respondent's version
Giovan testified that he determined to terminate Jenkins on July 22 for lateness,
absenteeism, and poor workmanship; and discharged him about 4 p.m., so notifying
him as the reasons. The payroll record of Jenkins from the week ending June 30
to July 22, 1963, shows that he was absent 4 times and late 14 times during that
period.
Concluding findings as to Jenkins
Initially I credit Giovan that he told Jenkins that Jenkins was terminated for late-
ness and absenteeism; but I-do not credit Giovan that he also mentioned poor work-
manship at the time. However, I find that Jenkins was discharged because he had
signed a union authorization card and that the reasons given, i.e., absenteeism and
excessive lateness in reporting for work,31 are pretexts to cloak the unlawful dis-
charge. While this ultimate finding in large part emerges from the following in-
gredients, which I find as facts, it is nevertheless based on the record as a whole:
281 have not found poor workmanship ; but Respondent contends that his work was of
poor quality.
27 That is, Melton was fired on the first day of the week although his misbehavior on that
day is not patently obnoxious.
' N.L.R.B. v. Birmingham Publi8h4ng Company, 262 F. 2d 2, 9 (C.A. 5).
211 do not credit this ; I find that he was so informed.
ao His early departures were taken with the permission of Giovan.
111 find that Jenkins was absent 4 times and tardy 14 times in a period of about 4 weeks.
Although Jenkins admitted he did poor work at times , I find it was not mentioned at the
time of his discharge.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. Although Jenkins was absent and tardy ia sufficient number of times to justify
his discharge for c-ause ,32 no disciplinary action was imposed or threatened on that
account for a substantial - period of time prior to the advent of the Union. If
tardiness by Jenkins was treated. as serious by Respondent it is reasonable to infer
that it would not have been endured so long.
b. Respondent had a union animus and engaged in unfair labor practices to defeat
the Union's organizational campaign at the plant.
c. Jenkins signed a union authorization card. While the record is barren of any
direct evidence that Respondent knew this, it is reasonable to infer-and I draw theinference-that Respondent was aware of the union membership of Jenkins because
of the small plant rule. I find that this rule is operative under the circumstances.
d. It is significant ( and I attach some importance to it ) that all the July dis-
chargees were recently signed up by the Union, and that none of those terminated
in July were nonunion men.
e. Again I find that timing is pertinent and persuasive . Thus Jenkins and the other
July dischargees were abruptly discharged a few days after they signed union cards
and almost immediately after the Union 's demand for recognition , although lawful
cause warranting their discharge existed for some time before they signed such
cards. In addition , Jenkins was precipitately discharged on the first day of a new
workweek although he did nothing flagrant on that day.
5. The discharge of Joe Powell
a. General Counsel's evidence
Powell started his employment with Respondent about March 14, 1963, as an
assembler at $1.15 an hour. On July 17, he signed an authorization card which he
received from employee Pittman on the same day. Although Powell testified he
did not know the date of such signing, I find that the date written thereon, i.e.,
July 17, is correct.
At 3 p.m., on Friday, July 19, Powell left early with the permission of Andy
Papas, who, I have found, is a supervisor under the Act. On July 25, when Powell
next returned to work, he was unable to find his timecard in the rack. Upon inquiring
of Andy Papas the reason therefor, Papas directed him to see Vice President Giovan.
When Powell saw Giovan, the latter told him that work was getting slow and that
Powell would have to be laid' off. At that time, Powell had been working 50 hours
a week.33
Powell concededly was absent once with permission and late to work not more than
five times. He was also out about 6 weeks as the result of an injury received on the
job.
b. Respondent's evidence
About 2 weeks after he was hired on March 14, 1963, Powell was warned by Vice
President Giovan that Powell's tardiness was cause for concern. This warning was
repeated about 2 or 3 weeks. later, and again at an undisclosed date. Powell was .
late-about 23/4 hours in reporting for work on July 19, a Friday. As a result, Giovan
told Powell that the Company could not tolerate his tardiness any longer, this was
the last warning thereon, and that he would be discharged if it was repeated.
On July 20, Powell failed to show up for work. Giovan thereupon decided to fire
him and informed the payroll clerk to make out Powell's check as discharged on
that date. The following Wednesday or Thursday Powell finally came to work;
Giovan thereupon gave Powell his check and told him he was discharged for
tardiness.
Powell's payroll data sheet shows that from the week ending June 2 to July 22,
1963, he was late 15 times and absent 3 times.
32 Although I find that Respondent's policy against tardiness was flexible in that the
average lateness per employee was once or twice a week, I find that Jenkins exceeded the
average.
33 Powell also testified that a list kept by Joe Pankiewicz indicated company uncom-
pleted orders. Respondent's evidence disclosed it was only a notation of daily work to be
performed by Joe. However, I do not find that such testimony on Powell's part is re-
liable since he testified that he did not remember how he learned that this list related to
unfinished orders. In any event, I credit Respondent's testimony, and do not credit Powell,
on this issue.
PERMACOLD INDUSTRIES, INC. 897
Concluding Findings as to the Discharge of Powell -
Upon the basis of the entire record and the factors narrated below, I am of the
opinion, and find, that Powell-was discharged for membership in the Union and not
for tardiness. Nevertheless, I find that Powell's lateness in reporting for work was
excessive, that he was warned about it, and that it afforded Respondent a lawful
ground for discharging him. However, I find that Respondent did not discharge
Powell for such tardiness, but for union membership, as found above.
These elements and the entire record have persuaded me that Powell was dis-
charged for union membership, and not for tardiness or other lawful cause:
a. Powell's payroll record, introduced by Respondent, discloses that Powell was
an employee during the week ending "7-28-63" and was "absent" on July 20, 1963.
No notation appears thereon disclosing a discharge on July 20. I construe this to
mean that Powell was still an employee on that date. I do not credit Giovan that
he discharged Powell on July 20, not only because the payroll record contradicts
him, but also because Giovan took no steps to notify Powell thereof before July 25.
In fact, Respondent's evidence shows that Giovan did not inform Powell of the dis-
charge until about July 25, when Powell returned to work.
b. Timing is important. Giovan did nothing about informing Powell of the latter's
discharge until a few days after the Union's demand,for recognition on July 22..
No reasonable explanation is discernible in the record as to'why Powell was not
,notified until after the Union's said demand. Further, when Powell noticed that his
timecard was not in the rack on July 25 (when he first returned to work after
July 19), and asked Supervisor Papas for an explanation, Papas did not know the
reason therefor but instructed him to see Gidvan. I do not credit the contrary testi-
mony of Papas. It is significant that Supervisor Papas was not cognizant of Giovan's
alleged discharge of Powell on July 20.34
c. Powell had a few days before July 25 signed a union card. Knowledge thereof is
attributed to Respondent under the Board's small plant doctrine under the
circumstances.
d. All the dischargees of July were not only union members, but they were all dis-
charged precipitately following the Union's demand for recognition. N.L.R.B. v.
Chicago Steel Foundry Company, 142 F. 2d 306, 308 (C.A. 7), and cases there
cited.
e. I have not overlooked the extract from the payroll of July 22, introduced in
evidence by the General Counsel as his exhibit No. 4. This does not include Powell's
name. At most this shows that Powell was not in the unit on July 22; it does not aid
in establishing the reason for Powell's discharge. Moreover, this exhibit gives
the names of employees "on payroll on July 22, 1963." Since Powell did not work on
July 22, it is consistent with the legend on exhibit 4 that Powell's name should be
omitted, for purposes of ascertaining the composition of the unit on that one day.
6. The testimony of George Batton
Batton was hired as a spray painter'about 8 years ago. His present rate of pay is
$1.70 an hour. His immediate superior is Joe Pankiewicz. • On July 17, 1963,
Batton signed an authorization card which he received the same day from employee
Pittman. About 9 or 10 a.m. on July 22, Andy Papas, the son-in-law of President
Tsoumas, directed Batton to go to the office. I do not credit the contrary testimony of
Papas. When Batton entered the office he. found President Tsoumas 35 and Vice
President Giovan awaiting. Tsoumas assured Batton that he would be working on
the job for awhile. But later in the day Giovan told Batton that Batton "would have
to work for myself for a while," but did not know how long it would be.
Giovan also asked Batton if he had signed a union card, and told him to talk to
employee McNeal to ascertain if McNeal or employee Lane had signed a union
card and to report the answer to Giovan. Giovan also asked Batton "to find out
whether the rest of them had signed union cards," asked Batton if he distributed
union cards, and wanted to know if Pittman was giving out union cards.36 I do not
credit Giovan's contrary testimony.
34 It is true Giovan testified that he told the payroll clerk on July 20 that Powell was
discharged on that date, and she also so testified, but no records of Respondent were
tendered confirming the -discharge. Hence, I need not pass upon the credibility of these
two witnesses as to what transpired between them on July 20. -
as Respondent vigorously disputed that Tsoumas was at the plant on July 22. As noted
herein, I have found that he was there at least some of the time on that day.
3e Batton thought this conversation occurred on July 23 but I find it was July 22.
756-236-65-vol. 147-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 23, Giovan asked Batton if he had found out anything. Batton replied
that he had not. On August 21, Giovan told Batton that a National Labor Relations
Board agent would come to the plant on August 22 and "would probably want to
know why was Pittman and them fired," that Batton was to tell this agent that Pittman
"was not doing the work right, was not cleaning the cabinets right," that Batton was to
assert that Pittman was "not fired because he signed a union card," and that Batton
was to deny, if asked, that "they had taken me in the [employer's] office to tell me
what to say to the man from the Labor Board." Respondent's contradictory evidence
is not credited. Several days after Pittman was discharged on July 22, President
Tsoumas told Batton that Tsoumas would make a speech and asked Batton to tell
employees, after the speech, "that nobody was going to get 15 or 20 percent out of
our checks each week for union dues." Tsoumas did speak to the assembled em-
ployees on the same day. Tsoumas started out by saying that he was receiving com-
plaints about the cabinets because they were rusty. Then Tsoumas asked employee
McNeal to read off one of the complaints in the form of a letter received by. Re-
spondent. Following this Tsoumas said that the Union was no good, that all Hoffa
wanted to do was to get the union dues each month, and severely criticized the
Teamsters Union.
On September 6, Batton met with Pittman in front of the plant. A few hours later
President Tsoumas asked Batton where Batton was supposed to meet Pittman that
night. When Batton'denied any such meeting was scheduled, Tsoumas replied, "I
know you all had a meeting the other night at Pittman's house."
. Between May and July 1963, Batton concededly was late for work two or three
times a week, but claims he was never reprimanded for it.
On Saturday,37 October 19, 1963, Batton had an appointment to see Attorney
Miller of the National Labor Relations Board at 1 p.m., in Miller's office, and so
informed other employees. At 10 'a.m., however, Giovan instructed Batton to work
until 3 p.m. When Batton informed Giovan of the 1 p.m. appointment with Miller,
Giovan asked him to postpone it.. Since Batton declined to change the appointment,
Giovan relented and permitted Batton to leave at noon to keep it. Employees Lane
and Thomas accompanied him in leaving the plant. The following Monday, Presi-
dent Tsoumas asked Batton who else met with Miller on Saturday and Batton said
Thomas. Tsoumas then asked whether Lane went also. It is not contended that this
inquiry is unlawful, but it was introduced to show "animosity and knowledge of
union activities."
Batton testified also that on December 6, about noon, President Tsoumas displayed
to Batton some of the latter's wage assignments and said that if Batton would testify
on behalf of the Company he, Tsoumas, "would take care of these wage assignments
no later than Thursday or Friday." Tsoumas also asked him if he signed a union
card, and Batton replied that he did and had received it from Pittman. Tsoumas then
asked him to "say" that Batton received it from employee Haywood in the alley
behind the plant. Later on December 6 Tsoumas asked Batton if he had signed an
affidavit and had been served with a subpena. When Batton replied that he had,
Tsoumas offered to "go down and see if [Batton] . . . had to come down here or
not."'
On December 9, Tsoumas told Batton, according to Batton's testimony, that if he
would testify on his behalf he, Tsoumas, would make Batton a happy man during
Christmas.
Respondent's evidence essentially controverts the above testimony by Batton.
While I am of the opinion that, in general, Batton is a reliable witness, I am unable
to credit him with respect to the alleged events of December 6 and 9. Accordingly,
I find that the allegations of the amended complaint alleging transgressions of the
Act on those 2 days have not been established.
However, I credit Batton in all other respects and find as facts the evidence recited
above (other than that pertaining to December 6 and 9) as testified to by Batton.
Thus, I have not credited either Giovan or Thomas on these other particular issues;
but I have credited Tsoumas as to the events of December 6 and 9.
7. The discharge of George Haywood
a. Summary of General Counsel's evidence
Haywood was hired about May 31, 1963, as an assembler at the rate of $1.15 an
hour. In July, Haywood signed a union authorization card at the request of employee
Pittman.
37 Batton and the other second floor employees generally worked until noon on Saturdays.
PERMACOLD INDUSTRIES, INC. 899
About 4 p.m., on July 22, Vice President Giovan laid off Haywood on the ground
that "business is getting slow." 38 I do not credit Haywood as to the content, of
Giovan 's statement and do credit Giovan 's testimony that he told Haywood that
Haywood was discharged for tardiness and poor workmanship.
b. Abstract of Respondent 's evidence
Giovan testified that he decided to terminate Haywood on July 22 because of
tardiness and poor workmanship , and so fired him about 4 p .m. Respondent intro-
duced Haywood 's payroll record disclosing lateness by him 28 times between the
week ending June 2 and July 22, 1963. 1 credit this payroll record , and do not
credit the General Counsel's evidence to the contrary.
Concluding Findings as to the Discharge of Haywood
While I find that lawful cause existed to discharge Haywood 39 in that he was
tardy an inordinate number of times ( 28) in about 2 months, nevertheless , for the
reasons set forth in finding that Melton was illegally discharged and upon the entire
record, I find that Haywood 's employment was terminated because of his member-
ship in the Union and not for tardiness or faulty workmanship . Reiteration of the
reasons outlined in discussing Melton 's discharge is not necessary here; it is sufficient
to recapitulate only the sense thereof, which is: (a) Respondent had knowledge of
Haywood 's union membership ; (b) Respondent had a union animus ; (c) the timing
of the discharge is significant ; (d) only union members were fired in July . ( Syracuse
Tank & Manufacturing Company, Inc., 133 NLRB 513, 525); (e) although cause
existed for discharge , it was neglected and not resorted to prior to the Union's
organizing drive; and (f) the discharge was precipitate on the first day of the
workweek.
8. The quitting of Charles Thomas
Respondent hired this employee in March 1963 to make inside cans for cabinets.
On July 17, he signed a union authorization card upon the solicitation of em-
ployee Pittman . On July 22 Vice President Giovan , President Tsoumas, and Andy
Papas encountered Thomas. Tsoumas asked Thomas if Thomas was getting married
and also if he, Thomas , was circulating a paper for signatures by employees desiring
to be invited to the wedding . Thomas answered both questions 'affirmatively. Dis-
playing a union authorization card , Tsoumas asked Thomas if he had received or
signed one. Upon receiving a negative answer , Tsoumas asked Thomas not to sign
one and to tell Tsoumas "when I received this card ." About an hour later Tsoumas
told Thomas that Thomas would lose his job if he engaged in union activities and
thus would not be able to support a wife.
On Friday , October 18 ; 1963, about 10 a.m., Thomas was told by Giovan that
the second floor employees , including Thomas, would be required to work the next
day until noon . But on October 19, Giovan directed all employees to work until
2:30 or 3 p.m. that day to complete certain schedules . Thomas refused "because I
had an appointment ." 40 I find that Giovan had no knowledge of the purpose of
the appointment . About 11 : 30 a.m ., as Thomas started to change into street clothes,
President Tsoumas, who observed this, directed him to see Vice President Giovan.
When Thomas insisted to Giovan that he would leave , Giovan replied, "If you leave,
you quit." Thomas then said that he was through , that he quit , and was leaving.
Shortly thereafter Giovan handed Thomas a paycheck , which Thomas declined.
Then Thomas left the plant about noon.
When Thomas reported for work on Monday , October 21 , Giovan told Thomas
that he, Thomas , did not work there any more because Thomas had. quit. With
this, Giovan handed Thomas the paycheck which he had refused the previous Satur-
day. On this check appeared the word "quit."
38 In assessing Haywood's credibility I have taken into consideration his conviction and
jail sentence on a charge of malicious assault with a deadly weapon in 1956, even though
under Illinois law such a crime does not permit impeachment.
- 3e I find that the credible evidence does not establish poor workmanship by Haywood.
Even if it does, I find that poor workmanship was not the reason for his discharge.
40 Thomas testified that he was to see Attorney Miller of the National Labor Relations
Board, but Thomas did not mention this to Tsoumas or Glovan . Thomas also testified that
he intended to present grievances over working conditions to Miller as well as to discuss
the instant trial.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas concededly spoiled two or three aluminum wrappers on which he worked.
It is-not necessary to narrate the evidence touching upon these wrappers , some of
which is vigorously controverted by the Company , because Respondent does not con-
tend that Thomas was terminated for this orany other reason.
On. the basis of the entire record, and the above subsidiary findings,41 I find that
Thomas quit on October 19, and that he was not discharged , because he resented
working beyond noon on that day. Accordingly, I shall recommend that the portion
of the complaint seeking relief for Thomas be dismissed.42
D. The layoffs of October 24
It is agreed that on October 24 President Tsoumas spoke to the employees, whom
he convened for that purpose , and that thereafter three employees were laid off.
Admittedly those laid off were told that the reason therefor was lack of work. But
the General Counsel asserts that the real reason was not lack of work but (a) union
and other protected concerted activities , and (b ) giving testimony under the Act.
I proceed to discuss the employee layoffs seriatim.
1. The layoff of William Lane
This employee was hired on January 30, 1963, as an inside refrigeration cabinet-
maker . Joe Pankiewicz was his foreman and gave him orders 43 On July 17 he
received a union authorization card from employee Pittman . Upon signing it, he
returned it to Pittman . A couple days later Lane was directed to go to Respondent's
office by Pankiewicz . There, President Tsoumas asked Lane if he had signed a union
card. When Lane, replied that he had not, Tsoumas directed him to report anyone
who sought his signature to such a card . Tsoumas also asked Lane about an
earlier gathering of employees , but Lane was ignorant of it.
On the afternoon of July 22, Vice President Giovan stated that work was slow and
that he was laying off Lane. At the same time Giovan said he was keeping only
those loyal to the Company, showed Lane a blank union card , and told Lane to
request anyone soliciting his signature to such a card to leave him, Lane, alone. How-
ever, Lane was not laid off at the time..
In late July, President Tsoumas spoke to the assembled employees.44 Lane at-
tended. Tsoumas remarked that he had to lay off Pittman because Pittman was
not doing his work properly and that he, Tsoumas, had a letter in his hand . Tsoumas
then directed employee McNeal to read aloud the letter, which in substance stated
that cabinets were rusting in places. Finally, Tsoumas called the Teamsters Union
a "bunch of hoodlums ," stated that he did not want them in his place, and said he
would close down rather than allow it to come into the plant.
On August 21, Giovan told Lane that Lane would be asked a lot of questions the
next day by a National Labor Relations - Board man who "would be around." Con-
tinuing, Giovan requested Lane, if asked , to tell "the NLRB man" that Tsoumas was
"the boss," that Joe Pankiewicz and Sam Turner are just fellow workers, that the
"boys" were discharged for tardiness or poor work , and that no one from manage-
ment had spoken to him about the discharges . On August 22 Giovan told Lane
the National Labor Relations Board man was "there now" and instructed Lane to
give substantially the same replies as suggested the day before.
On Saturday, October 19 , Lane was scheduled to see Attorney Miller of the
National Labor Relations Board at 1 p .m. Lane had been regularly working Satur-
days from 8 a.m. to noon . On that day Joe Pankiewicz asked Lane if Lane could
work until 3 p.m., but Lane turned this down giving as a reason , "I had to pick
up my car."
^ In arriving at these subsidiary findings I have credited Thomas in part and Respond-
ent's witnesses in part; however , I have heavily relied upon Respondent witness Turner
in concluding that Thomas quit his employment . On the above credited evidence, I make
subsidiary findings to the same effect.
12 This dismissal covers both the alleged Section 8 ( a) (3) and 8(a) (4) violations. As to
the latter , not only is the record bare of any credible evidence that Thomas "gave testi-
mony under the Act," as averred in paragraph IV of the complaint , but I have found that -
he quit and was not discharged . Even if Thomas was discharged , the result of dismissal
is still called for because I find that he was insubordinate in refusing to work until 3 p.m.
on October 19, and that such delinquency would justify a discharge for cause.
I do not credit Respondent 's contrary evidence as to the status of Pankiewicz.
44 I do not credit Respondent 's witnesses insofar as they testified that Tsoumas spoke in
May or June , rather than July.
PERMACOLD INDUSTRIES, 'INC. 901
Early in the afternoon of October. 24, President Tsounias spoke to the assembled
employees. Informing them that business was slow, and that both he and a sales-
man just could not get any orders, Tsoumas stated that he regretted that he would
have to make some layoffs. Finally, he told them that management would notify
the employees selected to be laid off toward the close of the day. About 4 p.m.,
Tsoumas informed Lane that he was laid off because Lane was "one of the newer
fellows." Actually, Lane had seniority over employees Bunville and Sapp, who
were retained.
On or about October 27 and November 3, Lane applied for unemployment com-
pensation benefits. On each application "lack of work" is checked as responsible
for his unemployment.
Although I credit Lane's testimony, as abridged above,45 I find that he was laid
off for economic reasons and not because he engaged in union activities, or for
union membership, or for giving testimony under the Act. While it is true that
Lane was a member of Local 781 and recently had been interviewed by the National
Labor Relations Board, I find that these elements did not enter into the decision to
terminate him on October 24.
In this connection I find that no other employee was hired to replace Lane, that
another employee who was not laid off performed Lane's work, that Lane was a
relatively new 46 employee, that business had slowed down measurably, i.e., from
about 15 or 20 cabinets a week (in July) to 5 or 6 a week at the time of the hearing
in December, and that but 11 persons were employed by Respondent at the time of.
the hearing.
In finding that Lane was lawfully laid off I have relied in part,on his two appli-
cations for unemployment compensation benefits in which he claimed he "lost my last
job because of lack of work." While not conclusive; these carry weight as admis-
sions or declaration against interest. While I am mindful of Lane's explanation
thereof, I find it is inadequate to override the unequivocal words quoted above.
Accordingly, I find that Lane's layoff was not discriminatorily motivated either
under Section 8(a)(3) or 8(a)(4); and I shall recommend, dismissal of that part
of the complaint praying that he be given a remedy.
2. The testimony of Jessie Gilbert -
The following testimony by employee- Gilbert is credited.47
Gilbert was hired as an assembler. On or about July 17, 1963, he' signed a card
at the request of employee Haywood who, to induce Gilbert to sign , asked Gilbert
if he wanted to go to a party. Although such a card is in fact a union authorization
card, Gilbert signed it without reading it only because he thought he was manifest-
ing an intention to be invited to a party, and that he did not desire any union to
represent him by his act of subscribing the card. Accordingly, I find that Gilbert's
card must be excluded in computing the Union's total number of valid authorization
cards.
Gilbert often went to employee McNeal's home at the -request of Giovan to get
him to work when it was apparent that McNeal had not shown up for work. I do
not credit McNeal's contrary testimony.'
Gilbert saw a notice posted by-the timeclock about October 24, 1963. This notice,
dated October 24, reads:
To All employees. We regret that due to lack of orders, we are compelled-to
reduce the number of employees. We regret further.that we cannot assure those
who are dropped, a job in the foreseeable future. Further reduction may be-
come necessary at a later date.
THE MANAGEMENT.
It is not disputed that such a notice was posted. I so find. Nor is it denied that
later on October 24 Tsoumas spoke to the assembled employees, telling them busi-
ness was slow, that he was sorry that some employees would be terminated, and
that those selected for layoff would be informed personally later in the afternoon.
45I reject any contrary evidence by Respondent.
48 It is of no consequence that Lane may have had seniority over one or two other-new
employees, for there is no evidence that Respondent observed or. followed any seniority
policy or program.
"To the extent that Respondent's oral evidence conflicts with Gilbert's I do not credit
Respondent's testimony: • ,
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The layoff of McKinley Lacy
This employee was hired by Respondent about February or March 1963 as a
laborer . On or about July 17, Lacy signed a union authorization card 48 and re-
turned it to employee Pittman.
On July 22, Andy Papas sent Lacy to the office. There President Tsoumas and
Vice President Nick Giovan spoke to Lacy. Giovan asked him, as a friend, "What
is going on upstairs ?" When Lacy asked for clarification , Giovan replied, "Any-
thing like the boys getting a union?" When Lacy disclaimed any such knowledge,
Giovan showed him a blank union authorization card and asked Lacy if he had
seen or signed one like it. Lacy replied that he had not.
Lacy planned . to see Attorney Miller of the National Labor Relations Board at
1 p.m., on Saturday, October 19. About 10:30 a.m., Vice President Giovan directed
Lacy to work to '3 p.m., although the usual time to quit on Saturdays was at noon.
Although Lacy protested that he wanted to leave at noon because he "wanted
something to do," Giovan persuaded Lacy to remain until 3 p .m. As a result; Lacy
missed his appointment with Miller but saw Miller instead on Wednesday night,
October 23.
On October 24 Lacy attended the meeting of employees whom President Tsoumas
addressed as to the impending layoffs for lack of work . Subsequently, about 4:30
p.m., Tosumas laid off Lacy telling him that he regretted the necessity thereof. About
November 17 Lacy filed a claim of unemployment compensation benefits alleging
in his application that he lost his job for "lack of work."
The foregoing summarizes Lacy's testimony , which I credit . Although Respond-
ent's evidence substantially accords with Lacy 's, I do not credit that part of Re-
spondent's evidence which is not consonant with Lacy 's. I recognize that at times
Lacy was almost as putty on cross-examination, but this resulted from the fact that
his education was severely limited, if not lacking , and his intellect was not swift
to "apprehend . But his demeanor was excellent , and of all the witnesses who ap-
peared before me he was the most creditable ; and he conscientiously tried to tell the
truth. A skillful cross-examiner can generally elicit from such a witness answers
which on a cold printed record may detract from reliability; but the fact remains
that such answers must be weighed along with the integrity of the witness and other
evidence in the case . Cf. Sullivan v. Boston Elevated Ry. Co., 224 Mass. 405,
112 N.E. 1025; Lyne v. Coon, 241 S.W:'569, M.
• On the basis "of the entire record and the foregoing subsidiary findings of fact,
I make the ultimate or concluding findings of fact that Lacy was laid off for eco-
nomic reasons, i.e., lack of work , and that his termination was" not discriminatorily
motivated in a manner proscribed by Section 8(a)(3) or 8 (a)(4).
It follows that I shall recommend that the segment of the complaint asking for
relief on behalf of Lacy be dismissed . In doing so , I have also relied upon the
following additional factors, which I find as facts:
a. Respondent 's business was perceptibly much slower , as found more fully in
the discussion of employee Lane's layoff.
b. No seniority policy was in force ; nor was seniority otherwise involved.
c. It is solely a coincidence that Lacy was a : member of the Union or that he was
terminated the day after he was interviewed by a National Labor Relations Board
agent.
d. Giovan did not ask Lacy on October 19 to work after noon in order to inter-
fere with Board processes , but only to meet production schedules.
e. No other person was hired to replace Lacy.
f. Finally, Lacy's application for unemployment compensation benefits contains
an admission or-declaration against interest that he lost his job for "lack of work."
Lacy's explanation of this wording is not inconsistent, with the view - that he was
terminated for lack of work, for in no part of his explanation did he contend that
in fact he was terminated for discriminatory motives.
4. The layoff of Dellah McNeal
The following constitutes an abridgment of McNeal's testimony : Except where
otherwise indicated by an asterisk (*), such testimony is not credited. This rejec-
48 Lacy, who is illiterate, wrote his signature by copying one written on a piece of paper
for him by employee Haywood, who did so at the request of Lacy. Haywood also read' the
blank card to Lacy. Haywood filled in all other blank, spaces oil the card at Lacy's re-
quest. I find that Lacy's card is valid and should be counted on the issue of the Union's
majority.
PERMACOLD INDUSTRIES, INC. 903
tion in part has resulted from inconsistent sworn statements contained in an affidavit
given by McNeal to the National Labor Relations Board on August 22, 1963, which
is identified as Respondent 's Exhibit No. 7, and also from observation of the witness
on the stand.
McNeal was hired by the Company in July 1961 to do various production jobs.*
On July 17, .1963 , McNeal signed a union authorization card which he received
from employee Pittman .* On July 22 President Tsoumas and Vice President Giovan
summoned McNeal to the office . Addressing McNeal as a friend and buddy,
Tsoumas asked McNeal if he had heard anything about the Union, whether he
heard any talk about the plant going union , and whether anyone had approached
McNeal to sign a union card or to join the Union. Upon replying in the negative,
Tsoumas told McNeal , that, if approached , McNeal should inform such persons
that he did not want to have anything to do with it; and Tsoumas further requested
McNeal to let Tsoumas know of any union activity in the plant.
Later that day Vice President Giovan, in the presence of Tsoumas in the office,
asked McNeal to report any union activity, at the same time assuring Tsoumas that
"we trust this kid." 49 Sometime after this, on the same day, Giovan showed McNeal
a union authorization card and admonished him "not to sign it [because] if we
find out you signed one of these , we are going to do just to you what we did to the
others that we just let go."
As noted above , a meeting of employees was held a few days after July 22 at
which President Tsoumas spoke to 'them.* A few days after that Tsoumas told
McNeal in the presence of employee Gilbert that Tsoumas would close the place
before he would let the Union "go through."
McNeal further testified that in late August Giovan addressed . the employees as
a group about a National Labor Relations Board agent who was to come over that
afternoon . I do not credit McNeal as to this aspect of his evidence , especially since
no other employee has corroborated him. Accordingly , I have not narrated the
alleged remarks attributed to Giovan by McNeal.50
Attorney Miller . of the National Labor Relations Board spoke to McNeal later
that day.* Thereafter, Giovan asked McNeal for a copy of any.written statement
given by McNeal to Miller. When McNeal replied that he had no such copy, Giovan
told him that "we covered up for" McNeal's tardiness at work by "hiding" McNeal's
timecard.
Admittedly McNeal thrice was'late for work and was aroused ' out of bed by an
employee dispatched therefor by the Company.*
McNeal was scheduled to be interviewed by Attorney Miller of the National labor
Relations Board on Saturday afternoon, October 19.* The previous day Giovan told
McNeal the plant would work until noon on October 19.* However , about 10 a.m.,
on October 19,.Giovan ordered McNeal to.work until 3 p.m.*
On October 24, about 4 p.m., following ' the meeting of employees addressed by
President Tsoumas, McNeal was laid off by President Tsoumas with expressions of
regret.*
Respondent 's evidence substantially contradicts McNeal 's testimony in some re-
spects. However , since I have not credited McNeal in essential matters, it is not
necessary to recite Respondent's version or to' resolve the conflicts between the two.
On the entire record I am of the opinion , and find , that McNeal was laid off on
October 24 for economic reasons, i.e., lack of work , and not from motives proscribed
by Section 8(a)(3) and (4) of the Act . In arriving at this conclusion I find that
Respondent 's business had deteriorated by October 24, that it became necessary to
reduce the work force ,- and that no one has been hired* to replace McNeal.
Accordingly, I shall recommend that this aspect of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of the Respondent found to be unfair labor practices in section III,
above , occurring in connection with the operations of the Respondent described.in
section I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
49 As McNeal entered the room he heard Giovan say, "If the kid don't tell us this time,
we are going to have to let him go." I am unable to find that this statement refers either
to McNeal or to union activity in the plant. Hence, I have disregarded it in making any
findings herein. • •
5o McNeal also testified that Giovan in his speech told McNeal that McNeal had not been
fired although the Union requested it. This is not credited. It is difficult to understand
why the Union, for whom McNeal testified at the hearing, would seek his discharge.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that Respondent cease and desist therefrom and also take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the tenure of the em-
ployment of Frozell Pittman , Robert Davis, Ernest Melton, George Haywood, James
Jenkins, and Joe Powell , it will be recommended that Respondent be ordered to offer
each of them immediate and full reinstatement to his former position or one substan-
tially equivalent thereto, without prejudice to his seniority and other rights and
privileges , and to make each whole for any loss of earnings suffered by reason of the
discrimination . In making such employees whole Respondent shall pay to each of
them a sum of money equal to that which he would have earned as wages from the
date of such discrimination to the date of reinstatement or a proper offer of rein-
statement , as the case may be, less his net earnings during such period. Such back-
pay, if any , is to be computed on a quarterly basis in the manner established by
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as as-
certained by the formula described in Isis Plumbing & Heating Company , 138 NLRB
716. It will also be recommended that Respondent preserve and, upon request, make
available to the Board or its agents, all pertinent records and data necessary to aid
in analyzing and calculating whatever backpay may be due.
Since the discrimination involved in the discharges goes "to the very heart of the
Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), it will be recom-
mended that the order issued safeguard employees against infringement of their
Section 7 rights in any manner.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following: -
CONCLUSIONS OF LAW
1. Local 781 is a labor organization within the scope of Section 2(5) of the Act.
2. Respondent is an employer engaged in commerce within the contemplation of
Section 2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of employment of Robert Davis,
Ernest Melton , Frozell Pittman , George Haywood , James Jenkins, and Joe Powell,
thereby discouraging membership in a labor organization , Respondent has engaged
in unfair labor practices embraced by Section 8(a) (3) and (1) of the Act.
4. By (a ) coercively interrogating employees as to their and other employees'
union activities , sympathies , and membership ; (b) requesting employees to ascertain
and report on the union activities , sympathies , and membership of other employees;
(c) threatening employees with discharge if they engaged in union activities; and (d)
threatening to close its plant rather than see' a union in it , Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5.. All production and maintenance employees , exclusive of office clerical, plant
clerical, and professional employees , guards, and all supervisors as defined in the
Act, constitute a unit appropriate for the purpose of collective bargaining within the.
meaning of Sections 9(b) and 8(a) of the Act.
6. On July 22, 1963 , and all times since then the Union represented a majority of
the employees in said appropriate unit, and was thereby the exclusive bargaining
representative of said employees for purposes of collective bargaining ; and Respond-
ent was on that date , and has been since , legally obliged to recognize and bargain
with the Union as such.
7. By refusing to recognize or bargain with the Union for employees in an ap
propriate unit on and since July 22, 1963 , Respondent has engaged in unfair labor
practices comprehended by Section 8(a) (5) and (1) of the Act.
8. The ' above-described unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
9. Respondent has not committed any other unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent, Permacold Indus-
tries, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from: "
(a) Discouraging membership in Local 781, or any other labor organization, by
discharging employees or otherwise discriminating in any manner in respect to their
tenure'of employment, or any term or condition of employment.
PERMACOLD INDUSTRIES, INC. 905
(b) Coercively interrogating its employees as to their and other employee's union
activities , sympathies , and membership.
(c) Requesting its employees to ascertain and report to it on the union activities,
sympathies , and membership of other employees.
(d) Threatening to close its plant if a union represented its employees.
(e) Threatening to discharge employees if they engaged in union activities.
(f) Refusing to recognize or bargain with Local 781 as the exclusive representative
of all the employees in the above -mentioned appropriate unit.
(g) In any other manner interfering with , restraining, or coercing its employees
in the exercise of rights vouchsafed to them by Section 7 of the Act.
2. Take the following affirmative , action designed to.effectuate the policies of the
Act:
(a) Upon request , bargain collectively with Local 781 as the exclusive representa-
tive of all the employees in the aforesaid appropriate unit, and , if an understanding
is reached , embody such understanding in a signed agreement. .
(b) Offer Frozell Pittman ; Robert Davis , - Ernest Melton , George Haywood,
James Jenkins, and Joe Powell , immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their seniority , or other
rights and privileges previously enjoyed , and make each of them whole for any
loss of pay he may have suffered , with interest at the rate of 6 percent , by reason
of Respondent 's discrimination against them.
(c) Preserve and, upon reasonable request , make available to the Board or its
agents, for examination and copying , all payroll records and reports , and all other
records necessary to analyze and ascertain the amount of backpay due under the
terms of this Recommended Order. -
. (d) Post at its plant in Chicago , Illinois, copies of the attached notice marked
"Appendix ." 51 Copies of said notice , to be furnished by the Regional Director for
the Thirteenth Region , shall, after being signed by a duly authorized representative
of Respondent , be posted by it immediately upon receipt thereof , and be maintained
by it for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees - are. customarily affixed . Reasonable steps
shall be taken by Respondent to insure- that said notices are_ not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region , in writing , within
20 days from the date of receipt of this Decision , what steps Respondent has taken
to comply herewith.52
It is further recommended that the complaint be dismissed in all other respects.
It is finally recommended that unless Respondent shall within the prescribed
period , notify the said Regional Director , that it will comply , the Board issue an
Order requiring Respondent to take the aforesaid action.
51 If this Recommended Order Is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the. Recommended Order of a Trial Examiner"'in the
notice. In the -further event that'the Board's Order is enforced by a decree of a United
States Court of Appeals, the words,"a Decree of the United States Court of Appeals, En-
forcing an Order" shall be substituted.for the.words "a Decision and Order."
63 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director, In writing, within 10 days from the date of receipt
of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that:
WE WILL NOT discourage membership in Miscellaneous Warehousemen &
Production Employees Union Local No. 781, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or any other union, by discharging employees or otherwise discriminating against
our employees in regard to their hire or tenure of employment or any term
or condition of their employment.
WE WILL NOT question our employees about their or other employees' union
membership, sympathy, or activities, in a manner violative of Section 8(a)(1)
of the National Labor Relations Act, nor will we solicit employees to report
to us other employees' union membership, sympathy, or activities.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with discharge or closing the plant
because of their membership in, sympathy for, or activity on behalf of, any
union.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form unions,
to join or assist Miscellaneous Warehousemen & Production Employees Union
Local No. 781, affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , or any other union, to
bargain collectively through representatives of their own choosing , and to en-
gage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and all such activities , except
to the extent that such right may be affected by an agreement requiring union
membership as a condition of employment as permitted by Section 8(a)(3)
of the National Labor Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL bargain collectively , upon request , with the above-named Local 781,
as the exclusive bargaining representative of our employees in the unit described
below with respect to wages, hours , and other working conditions and embody
in a signed agreement any understanding reached . The unit is:
All production and maintenance employees at our plant , exclusive of
all office clerical employees , plant clerical employees , professional em-
polyees, guards , and all supervisors as defined in the Act.
WE WILL offer the employees named below immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges , and we will make them whole for any
loss of pay they may have suffered by reason of the discrimination against them.
Frozell Pittman James Jenkins George Haywood
Ernest Melton Robert Davis Joe Powell
All our employees are free to become or remain , and to refrain from becoming
or remaining, members of the above-named or any other labor organization.
PERMACOLD INDUSTRIES, INC.,
Employer.
Dated------------------- By---------- --------------------------------
(Representative ) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 176 West
Adams Street , Chicago, Illinois, Telephone No. Central 6-9660 , if they have any
questions concerning this notice or compliance with its provisions.
Durant Sportswear , Inc. and Amalgamated Clothing Workers of
America, AFL-CIO. Ca.' e No. 26-C, A-1595. June 29, 1964
DECISION AND ORDER
On March 25, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
147 NLRB No. 110.