Novelty Products Co.

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 466 (N.L.R.B. 1968)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Isaac Rubin and Marion Kane , d/b/a Novelty
Products Co. and Electrical Production & Novelty
Workers Union, Local 118, International Union of
Dolls, Toys, Playthings , Novelties & Allied
Products of the United States and Canada,
AFL-CIO. Case 2-CA-11024
March 19, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 28, 1967, Trial Examiner Herman
Tocker'issued his Decision and on May 4, 1967, an
erratum thereto in the above-entitled proceeding,
finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be
dismissed. Thereafter the Respondent filed excep-
tions to the Decision and a supporting brief,' and
the General Counsel filed exceptions to portions of
the Trial Examiner's Decision and a supporting
brief. The General Counsel filed an answering brief
to Respondent's exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in-this case and hereby
adopts the findings,' conclusions,' and recommen-
dations of the Trial Examiner with the following ad-
ditions and modifications:
(1) 'The Union sent a telegram demanding
recognition on the morning of June 9;4 the Respon-
dent claimed it -did not receive the telegram until
June 10. The Trial Examiner characterized the
testimony concerning the date that Respondent
received the telegram as a "tempest in a teapot"
and found- it unnecessary to resolve the credibility
issues involved because Isaac Rubin freely admitted
that he had known of the Union's organizing cam-
paign on June 8. We consider it important to
analyze the testimony as in our view the receipt of
the telegram around noon on June 9 adds sig-
nificance to the precipitate series of discharges
which occurred that afternoon and included the
night shift as a whole.
Isaac Rubin initially testified he knew he received
the telegram on June 10, "because I did not receive
it on June 9th." The Respondent then tried to
establish that it did not receive the telegram on
June 9, but rather on June 10, because mail
delivered to its office is stamped (by hand) with a
date stamp on the date it is received and a June 10
date is stamped on the back of the telegram .' Isaac
' Respondent's request for oral argument is hereby denied, as, in our
opinion, the record, including the exceptions and briefs, adequately
presents the issues and positions of the parties
The Respondent contends that the General Counsel conduct at the hear-
ing so seriously hampered the Respondent in presenting its case that a new
hearing should be ordered To support its contention, the Respondent re-
lies on the Trial Examiner's statement (paragraph 6 of section 1) concern-
ing the manner in which the case was tried After a careful examination of
the record, we are convinced that a new hearing is not warranted Although
some informality by the parties in presenting evidence and commenting on
the proceedings appears to have occurred, we conclude that the hearing as
a whole was conducted in a manner assuring the production of pertinent
facts
2 The Respondent excepts to the Trial Examiner's finding that, "Miss
Hammet ..somewhat ambiguously as to the time but sufficiently clarified
to place it before the layoff, testified that Isaac Rubin had said `good' to her
after she denied having signed a union card " Contending that this is
not supported by the record, we find merit in the Respondent's exception
As we read Miss Hammet's testimony, she was unable to place the time
more definitely than "during June." However, the Trial Examiner's ap-
parent inadvertency in no way affects our agreement with respect to his ul-
timate findings, and we do not agree with the Respondent's further conten-
tion that the Hammet finding is any indication of the Trial Examiner's
"deep rooted prejudice against management "
The General Counsel excepts to the Trial Examiner's finding that the
Union had not been designated by at least 30 percent of the employees
when it filed its petition , but rather filed "in pique or because of the
DeJesus discharge." (DeJesus had met with a union representative for the
first time on June 6, collected signed authorization cards at the plant en-
trance on June 6 and 7, and was discharged on the morning of June 9,
shortly before delivery of the Union's telegram request for recognition, as
we find herein ) We find merit in the exception. In fact, there were 32
cards, which was 29 63 percent (30 percent when rounded out) of the 108
employees in the unit, thus satisfying the Board's rules Moreover, as the
General Counsel points out, showing of interest was not contested at the
consent election conference.
' These findings and conclusions are based, in part, upon the credibility
resolutions to which the Respondent has excepted alleging that the Trial
Examiner was biased and prejudiced After a careful review of the record,
we conclude that the Trial Examiner's credibility findings (apart from our
treatment of the DeJesus testimony in paragraph 5 of this Decision, which
is not relevant to the Respondent 's bias and prejudice allegation) are not
contrary to the clear preponderance of all relevant evidence . Accordingly,
we find no basis for disturbing those findings , and reject the charge of bias
and prejudice on the part of the Trial Examiner Standard Diy Wall
Products, Inc., 91 N LRB 544, enfd. 188 F.2d 362 (C A 3).
We do, however, specifically disavow comments in the Trial Examiner's
Decision tending to reflect on the "calibre" or "nature" of the employees,
nor would we characterize any employee as "boondoggling," on this
record.
4 Unless otherwise noted, all dates are in 1966
'The General Counsel points out that there are two June 10 date
stamps, one in black and one in blue, which creates a suspicion that the
stamping was done on two different occasions
170 NLRB No. 68
NOVELTY PRODUCTS CO.
Rubin testified that he does not know who stamped
the telegram or remember who handed it to him on
June 10 . He further testified that he does not know
any "S . Mandell, Jr.," which is the signature of the
person who signed for the telegram.
On the other hand , Johnson , the Western Union
messenger boy who delivered the telegram , testified
that he has delivered many telegrams to the
Respondent , that he is well acquainted with the
Responde`nt's location ( he was able to describe in
detail the entrance to Respondent 's plant ), and that
someone signed for the telegram when he delivered
it. In addition , the telegram number matched the
number on the Western Union trip ticket , by which
Western Union accounts for the delivery of a tele-
gram and the approximate time of delivery. Ac-
cording to the General Counsel 's Exhibits (official
trip records supplied by Western Union), the tele-
gram was delivered between 11 :47 a.m. and 12:23
p.m. on June 9; Western Union records also reveal
that Johnson could not have delivered the telegram
on June 10.
The Trial Examiner also concluded that the mes-
senger's testimony was further beclouded by his
testimony about an attempt to deliver the telegram
earlier on June '9 at a time when Respondent 's plant
was undoubtedly open and in operation . This, as
the General Counsel contends , would seem to be an
incorrect conclusion based on incorrect facts. The
record reveals that it was not messenger Johnson
who attempted the first delivery of the telegram on
June 9 and that he was unaware that a prior
delivery had been attempted .' It was a Western
Union clerk who informed the General Counsel, by
letter , that an earlier delivery had been unsuccess-
fully attempted by another messenger , about an
hour earlier , while Johnson was on another
delivery ; this is supported by Western Union's trip
records . In addition, messenger Johnson testified
that when he delivered the telegram he rang the
bell and waited so long for someone to answer his
ring that he started to write "closed" on his route
sheet and was prepared to leave without delivering
the telegram when someone finally appeared and
accepted the telegram . Thus, it is possible that the
prior attempt to deliver the telegram was unsuc-
cessful because the earlier messenger was not
prepared to wait as long.
In our opinion , the overwhelming weight of the
evidence clearly 'establishes that the telegram was
delivered on June 9 . The Respondent though in
possession of the telegram , failed to produce any
' Based on his Attachment IV the Trial Examiner concluded that from
March to September, except on May I I and 13, "Respondent had bal-
ances of tape far in excess of 100,000 pieces " We note that on this
467
evidence to show who accepted the telegram or
how Rubin eventually obtained it. Rubin's state=
ment that he did not know or employ anyone
named Mandell is not, in our opinion, sufficient to
overcome the testimony of the Western Union mes-
senger or the records maintained by Western Union
in the 'normal course of its business. We, therefore,
conclude that the Respondent received the Union's
telegram demanding recognition on June 9, prior to
the layoffs.
(2) The Trial Examiner found, and we agree,
that the night shift laid off on Thursday, June 9,
and those day shift employees laid off on June 9
and 10, were laid off in violation of Section 8(a)(1)
and (3) of the Act, rather than for lack of material
to continue its manufacture of cartridge bandoliers
for soldiers. The Respondent excepts, contending
that the sole reason for the layoffs was that it had
depleted its supply of the tape used for the shoulder
sling on the bandoliers, and as a result there was no
work for the laid off employees. The Respondent
further contends that only by comparing tape
received from its suppliers to bandoliers manufac-
tured can the amount of tape available at the time
of these layoffs be ascertained, and that the Trial
Examiner's attempt at such an analysis, as set forth
in his Attachment II, is in error. We note that the
Trial Examiner, in that attachment, started off with
an inventory of 212,100 completed bandoliers and
proceeded to treat these as requiring further
material out of the tape inventory so that the net
result of his computation was to reflect substantial
minus quantities of tape every week from April 23
to September 22. The Respondent also contends-
that Attachment IV, which the Trial Examiner
prepared after concluding that no "sensible result"
was possible utilizing,the method employed in his
Attachment II, is erroneous because it attempts to
correlate tape received from Respondent's sup-
pliers with shipments of completed bandoliers,
which casts no light on the main issue, i.e., whether
bandolier tape was available for production at the
time of the layoff.6
To demonstrate that there was no tape available
on June 8 the Respondent added to the inventory
of tape on hand on December 31, 1965, the total
amount of tape received between January ,1 and
June 3, then computed the number of bandolier
tapes this supply would afford (1-1/9 yards of tape
are required to manufacture one bandolier),, and
then deducted from this total the number of ban-,
doliers manufactured between January I and June
attachment the Trial Examiner struck his balances as of each shipment
of completed bandoliers to the Government, rather than on a daily basis
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Respondent thus arrived, at a result of zero
tapes available on June 8-. This approach, however,
fails to reflect the true picture concerning the daily
situation as to tape available for production. With
this in, mind, we. have analyzed (see Appendix to
this Decision) the Respondent's production and
receiving records, and the shipping schedules of
suppliers , to determine the number of bandolier
tapes available for production on a day-to-day basis
during April, May, and the first half of June.7
The Rubins testified, and the production records
confirm, that 100,000 cut tapes provide 3, or at the
most 4, days of work for the sewing mechine opera-
tors who complete the bandoliers by sewing the,
tapes to them. Our analysis reveals that,,as early as
April 27, the daily balance of available tapes, fell
below 100,000 and exceeded that number on only
2 days before the "mass" layoff in question. On
those 2 days (May 16, and 18) the balance was
slightly over 100,000. The balance fell below
50,000 tapes on 14 days during the period. On May
26, for.instance, the situation was similar to that on
June 8, in that bandoliers were produced in excess
of available tape, apparently by utilizing tapes
received the same day; however, as a result of the
low balance on May 26 no employees were laid off.
Thus, according to our analysis, the Respondent
operated during part of April and all of May with
never more than 3 or 4 days' supply of bandolier
tapes available, and frequently less, that it did so
without laying off any employees, and that in fact,
as its own records reveal, it hired at least 19 new
employees, on various dates between May 1 and
June 8.8 During this period Respondent was in
r In order that our analysis be made in the light most favorable to the
Respondent , we have used the date on which it received the tape rather
than the date upon which the supplier shipped the tape (with one exception
concerning 31,250 yards claimed to have been received on June 3 although
actually shipped by the supplier on June 6, see end of attached Appendix,
where column ( 1) shows computation based on June 8 receipt, and column
(3) is based on June 3 receipt ). Except for the June 6 shipment the date of
receipt set forth by the Respondent was, ordinarily , the day followmg.ship-
ment unless a weekend intervened . We also accept the Respondent 's claim
that tape was cut into bandolier tapes and was ready to use to manufacture
bandoliers on the day it was received or the following day.
" In an effort -to establish that layoffs were contemplated before the
Union 's organizational campaign , the Respondent produced a list of em-
ployees it purportedly decided to lay off in the event of a "slowdown."
Isaac Rubin and, forelady Keshian testified that the list was prepared by
Keshian on May 21. Keshian further testified that she did not add any
names to the list after May 21, and that to her knowledge no new em-
ployees were hired after May 21, the day the list was compiled . Yet, the
Respondent's payroll records reveal that three of the employees whose,
names were purportedly put on the layoff list on May 21 had notas of that
date been hired by the Respondent No explanation for this serious descre-
pancy was provided by the Respondent
9 In this connection we note that Alliance, one of the suppliers , had in-
formed the Respondent that shipments would be accelerated , beginning
June 6, to 60,000 yards per week, and for the ensuing 3 weeks, it actually
shipped approximately 250,000 yards instead of the promised 180,000
yards. In fact , both of the Respondent 's tape suppliers shipped to it, in June
and July, more tape than had originally been promised.
frequent communication with, its tape- suppliers to
determine when tape would be shipped and when it
could be expected to arrive, 1 On Wednesday, June
8, it actually - received 85,120 yards of,tape. This
was enough to finish the week and on this very day
the Respondent attempted to get, employee
Jimenez, who had quit the day before, to return to
work, ostensibly because it was expecting more
tape; on Friday, June 10, 81,420- yards were,
shipped by, the suppliers, which could normally be
expected to arrive by Monday, the 13th., Thus, we
conclude that Respondent's situation - with respect
to the availability of tape for continued production
was no different on June 8 and 9 than- it had been
for the previous month and a half,- during which
period it found no occasion to lay off employees
and in fact had hired at least 19 new employees-
except for the additional factor of a union organiz-
ing campaign, recently initiated, of which -Respon-
dent was aware, and which it immediately at-
tempted to discourage by threats and interroga-
tions, and the discharge of the employee, who had
called in the Union. 10 Based on our analysis of the
record, we agree with the Trial Examiner that-these
layoffs were part of a pattern to discourage union
activity, coming at a time when employees were
being told that in the event of unionization the fac-
tory would be closed, or the night, shift, discon-
tinued, or that rehiring in the -event of layoff would
hinge upon nonmembership in the Union. -
(3) The Trial Examiner found that the complaint
to the extent it was amended to include Rosa
Lozano as an employee discriminatorily discharged
with the rest of the night shift should be dismissed.
1" Respondent , in attempting to show no tape available on June 8, pur-
ported to have received 31,250 yards (equivalent to 28,125 cut tapes) on
June 3 This would result in only 603 tapes available for production on the
morning of June 8, although more than 83,000 tapes were received during
that day However, this quantity (31,250 yards ) was not shipped by the
supplier until June 6, so that accepting the supplier 's shipping date, which
the Respondent did not actually dispute, the Respondent 's tape supply was
reduced to its lowest level, not'on June 8, but on June 6 when it was minus
3,825 tapes Nevertheless , the next day , June 7 , with no additional tapes
received that day, production of bandoliers was 23,697. The fact that it
would have been impossible to manufacture this number of bandoliers on
June 7 without tape, and the fact, that the claimed production fox-June 6
required 3,825 more tapes than were available , lends support to the Trial
Examiner's ultimate conclusion that the Respondent never depleted its
tape supply , or "even came near to running out of tape for the completion
of bandoliers "
We note that the Trial Examiner , at paragraph 5 of his Attachement I,
suggests that the Respondent 's production records reflect a combination of
"completely finished bandoliers and bandoliers completed only to the first
stage of fabrication , i.e , the stage prior to the cutting apart of the bodies
and the sewing-on of the tape " His Decision , itself includes a finding that
there must have been two kinds of production-to which finding the
Respondent did not except-and from this he concluded that "any attempt
to correlate production with receipt of tape is futile " With the latter con-
clusion we do not agree . Our correlation assigns one tape to each produc-
tion unit . If these , production units actually included first stage bandoliers
as well as completed bandoliers , then obviously the Respondent had even
more tape available for production than our Appendix indicates
NOVELTY PRODUCTS CO.
The General Counsel excepts, contending that this
finding is contrary to the weight of the evidence.
Stated briefly, Lozano testified that she was em-
ployed as a floorgirl on the night shift until May 19;
on that date she was granted permission to go on
leave of absence by Isaac Rubin due to the
hospitalization of her child; her child was released
from the hospital on June 9; she reported to work
at 4:30 p.m. the same day and was told by Marion
Kane, Rubin's partner, simply that there was no
work; she has not been recalled by the Respondent.
This evidence was not contradicted by either Isaac
Rubin, who testified only that he didn't remember
talking to her, or by 1Forelady Keshian, who
testified only that Lozano was absent because of ill-
ness . Marion Kane did not testify.
The Trial Examiner noted that it was impossible
to determine from the evidence whether there was
no work for Lozano because the night shift was
completely staffed or the Respondent just didn't
want her, or there was work but Respondent
preferred someone else. However, it was the
Respondent's responsibility and not the General
Counsel's to explain why there was no work for
Lozano who had been on an excused leave of
absence. The General Counsel established a prima
facie case which the Respondent did not rebut. We
therefore find that Lozano was in effect laid off on
June 9 along with the other discriminatorily laid off
night shift employees, and is entitled to backpay
and reinstatement rights.
(4) The Trial Examiner found that employees
Harper and Tucker voluntarily quit and that the
complaint should be dismissed as to them. The
General 'Counsel excepts, contending that he
established'a prima facie case with_ regard to Harper
and Tuclier,,and that Isaac Rubin's testimony which
the Trial Examiner credited in this instance is con-
tradicted by the documentary evidence. Despite the
fact that Harper and Tucker were not called as wit-
nesses,' we find merit in the General Counsel's ex-
ception. However, we do not find it necessary, as
requested by the General Counsel, to discredit
Isaac Rubin's testimony in its entirety. Suffice it to
say that Rubin.'s testimony with respect to Tucker
and Harper,was hardly positive or specific. Thus, as
to Tucker, Rubin testified, "She just left. If I re-
member correctly, I think she just left on her own
accord." Referring to Harper he testified, "She just
said she could not come to work.""
The documentary evidence introduced at the
hearing supports the conclusion that Harper and
" That Rubin should choose to treat these employees as voluntary quits
seems inconsistent with the Respondent 's primary position that its work
force was not dependable , that absences without notice were common-
469
Tucker should be treated as laid-off employees.
Tucker is designated as laid off on June 9 in four
documents received into evidence; all of these
documents or exhibits were prepared under the
Respondent's auspices and none was refuted by the
Respondent. Three of these exhibits were in-
troduced by the Respondent. One of these docu-
ments was a list of laid off employees prepared by
Respondent for the General Counsel during his
precomplaint investigation; the Respondent did not
object to the introduction of this document into
evidence. These exhibits also reveal that Tucker
was recalled to work with the other laid off em-
ployees. Harper was also included in the list of laid-
off employees prepared by Respondent for. the
General Counsel at the time of his precomplaint in-
vestigation. Two names were stricken from this list
by Respondent but neither Harper's nor Tucker's
name was stricken.
We conclude that Rubin's less than , positive
testimony does not overcome the documentary
evidence with respect to Tucker and Harper, and
find that both were discriminatorily laid off on June
9 and are entitled to full backpay and reinstatement
rights.
(5) The Trial Examiner found 8(a)(3) dis-
crimination as to employee DeJesus but granted
only a partial remedy and the General Counsel ex-
cepts. DeJesus was responsible for the commence-
ment of the union organizing campaign on June 6,
distributed and solicited cards during the next 2
days at the entrance to the building where the
Respondent was located, apparently the only per-
son so engaged, and was abruptly discharged on
June 9 upon his arrival for work and told, as the
Trial Examiner found, only that there was a lack of
work "now." However, the Trial Excminer also
specifically found that DeJesus lied about details
concerning his early contacts with the Union. The
Trial Examiner based his conclusion on the length
of time (10 minutes) it took DeJesus at,the hearing
to locate the Union in the "Yellow Pages" and the
fact that the name of the Union selected by
DeJesus in the "Yellow Pages" was not the same
Union involved in this proceeding. Additionally, the
Trial Examiner found that it was no mere error
when DeJesus testified that he did not go to work
on Monday, June 6, but instead went to the Union's
secretary-treasurer about 9 a.m., since it was
"shown conclusively" that he worked at the factory
all morning on that day. The Trial Examiner con-
cluded that DeJesus "wantonly and deliberately
place, and that it continually allowed offending employees to return to
work
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified falsely" at the hearing, and that anyone
who gives false testimony at a Board hearing should
not be the recipient of affirmative benefits from the
Board, even though he was guilty of no misconduct
in connection with his work.12 The Trial Examiner,
therefore, recommended that Respondent not be
required to reinstate DeJesus and that DeJesus
receive backpay only for the period between his
discharge and the date he gave false testimony.
The General Counsel excepts, contending that it
is much more plausible that DeJesus made an error
rather than lied, but that even assuming DeJesus
lied, he should not be deprived of his remedial
rights since whatever false testimony is attributed to
DeJesus is in no way related to the principal issues
in this proceeding.13 We think that the General
Counsel's exception has merit.
We agree with the General Counsel that con-
sidering the circumstances under which DeJesus, an
unskilled laborer with limited education, was com-
pelled on the witness stand, under the eyes of those
participating in the hearing, to demonstrate how he
first located the Union, it is not surprising that he
took longer than would normally be expected or
that he selected a union with a name similar to the
one involved in the proceeding. Moreover, as the
General Counsel points out, DeJesus had nothing
whatsoever to gain from such a lie, inasmuch as the
mechanics of how he located the Union were not a
material factor in this case. It is, in our opinion,
much more plausible to believe that under the cir-
cumstances DeJesus was distraught and confused
by the similarity in union listings in the phone book.
The Trial Examiner also deemed it significant
that DeJesus testified that he did not work at all on
June 6, but contacted the Union at 9 a.m. on that
morning, when, in fact, the evidence revealed that
DeJesus worked all morning on June 6. DeJesus'
timecard indicates that he clocked out at noon on
June 6. Union Secretary-Treasurer George Gold-
man, testified substantially in accordance with
DeJesus' testimony, except that he placed the time
of DeJesus' initial meeting with him as occurring in
the afternoon of June 6, instead of the morning.
Thus, the only discrepancy in DeJesus' testimony is
as to the time he first met with Goldman; that
DeJesus actually visited Goldman's office on June
6, is not in dispute. Whether DeJesus met Goldman
in the morning or afternoon of June 6, is certainly
not a crucial issue in this case. The discrepancy in
his testimony as compared with his timecard and
12 We Interpret the Trial Examiner's statement concerning not being
favorably impressed with DeJesus' manner on the stand as applying only to
his testimony concerning DeJesus ' original contacts with the union, as he
obviously credited much of his testimony
11 Additionally the General Counsel contends that it is inconceivable that
the Trial Examiner found DeJesus a wanton and deliberate liar on the basis
Goldman's testimony does not in our opinion pro-
vide a reasonable basis for characterizing the wit-
ness a liar, or penalizing him for false testimony.14
Nor, as the Trial Examiner concluded, is the
question of DeJesus' reinstatement possibly
academic, since there is no basis in the record to
support the Trial Examiner's statement that
DeJesus was working at the time of the hearing. In
fact, the evidence establishes that DeJesus was not
employed at the time of the hearing. Nor do we
find any support for the Trial Examiner's statement
that the reinstatement of DeJesus would result in
serious maladjustments to the Respondent's work
force and its relations with its employees.
Accordingly, in all the circumstances of this case,
we find that the policies of the Act will best be ef-
fectuated by ordering DeJesus' reinstatement with
backpay.
AMENDED CONCLUSIONS OF LAW
Paragraphs 6 and 7 of the Trial Examiner's Con-
clusions of Law are hereby deleted and paragraph 4
is amended to include Rosa Lozano, Rosa Ham-
monds Harper, and Carolyn Tucker as employees
laid off in violation of Section 8(a)(1) and (3) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , as modified
below, and hereby orders that the Respondent,
Isaac Rubin and Marion Kane, d/b/a Novelty
Products Co., New York, New York, their agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Delete subparagraph (c) of paragraph 2 of the
affirmative action provisions of the Trial Ex-
aminer's Recommended Order, and reletter sub-
paragraphs 2(d), 2(e), 2(f), and 2(g) as subpara-
graphs 2(c), 2(d), 2(e), and 2(f), respectively.
2. Amend subparagraph 2(b) by adding the
names of the following employees : Jose DeJesus,
Rosa Lozano, Rosa Hammonds Harper, and
Carolyn Tucker.
3. Delete the eighth indented paragraph of the
Appendix attached to the Trial Examiner's Deci-
sion, and amend the seventh indented paragraph of
If testimony concerning how he first contacted the Union and yet failed to
make such findings concerning the Rubins ' testimony despite the inaccu-
rate records prepared by them , and the evasions , inconsistencies , and con-
tradictions with which their testimony is replete
14 See Fotochrome, Inc, 146 NLRB 1010, fn l
NOVELTY PRODUCTS CO. 471
the Appendix by adding the following employees ' Examiner 's Recommended Order the phrase "ex-
names : Jose DeJesus , Rosa Lozano ,, Rosa Ham- cept Jose DeJesus,".
monds Harper , and Carolyn Tucker. 5. Strike the last paragraph of the Trial Ex-
4. Strike from subparagraph 2(a) of the Trial aminer 's Recommended Order in its entirety.
APPENDIX
COMPARISON OF TAPES RECEIVED AND BANDOLIERS PRODUCED*
1
BALANCE OF AVAIL-
ABLE BANDOLIER TAPES
2
YARDS RECD . BY
RESP . (DATE
SUPPLIER INDI -
3
BANDOLIER WEEK
PRODUCTION ENDING
PER WEEK
-CATES TAPE SHIPPED 6)(WEEKLY UNTIL 371276
12/31/65 Cut
Inventory 45,823 96,075 1/8
Uncut
Invent. 1,162, 856 123,300 1/15
Recd. Jan. 232,875 258,710 E 112,525 1/22
Recd. 2/1 101.250 112,500 E 114 , 950 1/29
TOTAL 3/12 1,542,804 111,675_ 2/5
Prod. to 3/12 1„143.935 106,725 2/12
398,96-9 109,235 2/19
106,275 2/26
140,550 3/5
112.625 3/12
1,143,935
KEY: Bal -- Indicates number of available bandolier tapes after
adding tapes ( if any ) received that day from tape
supplier and deducting number of bandoliers manufactured.
Prod -- Indicates number of bandoliers manufactured each day
according to Respondent ' s production records.
Recd -- Indicates number of bandolier tapes received from
All dates are 1966 unle ss' otherwise - noted.
suppliers . The yards of tape received from the suppliers,
as shown in column 2, have been converted from yardage to
bandolier tapes in column 1 (1 1/9 yards of tape are
required to make the shoulder--strap for one bandolier).
The recd. date in column 1 indicates the date on which
the^Restipondent actually received the tape from the'suppliers.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DAILY BALANCE AVAILABLE YARDS OF TAPE RECD.**
BANDOLIER TAPES (DATES TAPE SUPPLIERS
INDICATE TAPE SHIPPED)
Bal 3/12 398,869
Prod 3/14 -25,650 -
Bal 3/14 373,219
Prod 3/15 -27.000
Bal 3/15 346,219
Prod 3/16 -24.900
Bal 3/16 321,319
Recd 3 17 70,87-5 78,750 (E 3/16)
Prod 3/17 =25,200
Bal 3/17 366,994
Prod 3/18 -24,900
Bal 3/18 342,094
Prod 3/19 (Sat)- 3,975
Bat 3/19 338,119
Prod 3/21 -22.200
Bal 3/21 315,919
Prod 3/22 -27.086
Bal 3/22 288,883
Prod 3/23 -25.800
Bal 3/23 263,033
Recd 3/24 23,675 26,250 (E 3/24)
Prod 3/24 -25,200
Bat 3/24 261,458
Recd 3/25 43,875 48,750 (E 3/24)
Prod 3/25 -28,500
Bal 3/25 216,833
Prod 3/26 (Sat )- 8,900
Bal 3/26 267,933
Prod 3/28 -27,880
Bal 3/28 240,053
Prod 3/29 -28L663
Bal 3/29 211,390
Prod 3/30 -31,587
Bal 3/30 179,803
Recd 3/31 57,375 63,750 (E 3/29)
Prod -3/31 -29,650
Bal 3/31 207,528
** Column 2 indicates the yards of tape shipped by the tape suppliers
to Respondent, the particular;-„supplier,,involved-(Alliance Webbing
and Elizabeth-Webbing 'Mill;s'_Co, are designated,-`as A and E,
respectively) and the dates upon which the supplier shipped the
tape.
NOVELTY PRODUCTS CO.
Bal
(carried
over 3/31
Recd 4/1
Prod 4/1
Bal 4/1
207,528
43,875
-3 1 ,300
220,103
8,750 (E 4/1)
Prod 4/2 (Sat) - 9 975
Bal 4/2 210,128
Prod 4/4 -28.300
Bal 4/4 181,828
Recd 4/5 225,450 (200,100 (A 4/1)
Prod 4/5 -102900 ( 50,400 (E 4/4)
Bal 4/5 396,378
Prod 4/6 -2 8 5
Bal 4/6 369,553
Prod 4/7 -25925
Bal 4/7 343,628
Prod 4/8 -10.675
Bal 4/8 332,953
Prod 4/11 - 2Q. 975
Bal 4/11 305,978
Prod 4/12 -33.325
Bal 4/12 272,653
Prod 4/13 -29.275
Bal 4/13 243,378
Recd 4/14 40,500 45,000 ( E 4/13)
Prod 4/14 -34 , 025
Bal 4/14 249,853
Prod 4/15 -32,400
Bal 4/15 217,453
Prod 4/16 (Sat)- 1,,700
Bal 4/16 215,/53
Recd 4/18 30,375 33,750 (E 4/14)
Prod 4/18 -29.900
Bal 4/18 216,228
Prod 4/19 -227,850
Bal 4/19 188,378
Prod 4/20 -32.750
Bal 4/20 155,628
Prod 4/21 - 30 . 450
Bal 4/21 125,178
Recd 4/22 58,320 (14,400 ( E 4/20)
Prod 4/22 -30,500 (50,400 ( E 4/21)
Bal 4/22 152,998
Recd 4/25 38,880 43,200 ( E 4/22)
Prod 4/25 -34 .640
Bal 4/25 157-,2T8
Prod 4/26 X3.204
Bal 4/26 123, 034
Prod 4/27 -35,665
Bal 4/27 87,369
Recd 4/28 12,960 14,400 (E 4/27)
Prod 4/28 32
Bal 4/28 73,697
473
V61 `96 £Z/S leg
(OZ/S a ) OOO'ZL
V is
008`+79
£ Z/S Pold
(61/S V ) 08£ `£1 Z *70 `Z T £Z/S Paoli
991,8V IZ/S leg
0966c ( yes) IZ/S pold
911"ic OZ/5 leg
L £ -
£5£6 L8
OZ/S pold
61/S leg
Vivoc-
696`LIT
61/5 POZd
8i/S leg
W IS 3 ) 00*! `OS
S6 i -
690917
81/S pold
(91/5 d) 00811£ OZ9`8Z 8i/S Paoli
4782 `SL LI/S Tog
5; 6Z 6 - LI/S POZd
6LS `+701 91/5 leg
£ 8 - 91/5 poid
(E T/5 3) 008 ` tp9 OZ£ ` 85 91/5 Paoli
Z£i `17L £T/S leg
108 "OE- £I/S P°Zd
(TI/9 d) 009'ZZ 05Z`OZ Zi/S P3a2i
£89`68 Zi/S leg
0 ZT/S POZd
(01/5 3 ) 005`LS 0+78`15 ZT/S Paoli
£TO`Z9 TT/9 leg
000000- IT/5 P°Zd
(6/5 d) 000 ' 81 OOZ `91 II/S Poi
c is 5V 01/5 leg
05C 6 1 - 01/S Poad
£91`59 6/9 leg
(9/S 3) 009 ' IZ
5;Z6 'El -
^9
6/S POZd
Pao li
(S/S 3) 0017 1 71
^65
g096 Z T
9/5 l e g
9/S Poa2i
000000 - 9/S Poad
889,9'7 S/S leg
000000- S/S POZd
889,9 '7 +7/5; leg
6C5 c- *7/5 POZd
L ZZ'08 £/S leg
(Z/S 3) OOzIE'7
LO
08SE
£/S pold
£
PaoliZ ` Z/S T u g
W=-
65+7`78
Z/S pold
6Z/t leg
865 ` - 6Z/h7 POZd
(8Z/7 3 ) 0017`09 09£`57 6Z/7 P093
L69`£L 8Z/*7 ZanO
paTZZeo)
Tug
U IVO I SMOI.LV'1 12IO8V"I 'WNOI1.VNI IO SNOISID30 PLb
NOVELTY PRODUCTS CO. 475
Bal
(carried
over 5/23 96,194
Prod 5/24 3.265
Bal 5/24 62,929
Prod 5/25 -35-295
Bat 5/25 27,634
Recd 5/26 40,284 44,760 (A 5/24)
32,400 000 (E 5/25)36
Prod 5/26 -33.921
,
Bal 5/26 66,397
Prod 5/27 _-U.830
Bal 5/27 33,567
Prod 5/28 (Sat)- 9300
Bal 5/28 24,267
Prod 5/30 (Hot)- 1 500
Bal 5/30 22
Recd 5/31 38,880 43,200 (E 5/27)
Prod 5/31 -18.4/0
Bal 5/31 43,177
Recd -6/1 25,920 280800 (E 5/31)
Prod 6/1 - 8,425
Bal 6/1 40,672
Recd 6/2 57,429 63,810 (A 6/1)
Prod 6/2 -30,425
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bal 6/2 67,676 Bal 6/2 *** 67,676
Prod 6/3 -29,790 Recd 6/3 28,125
Bal 6/3 37,886 Prod 6/3 -29,790
Prod 6/4 -19,585 Bal 6/3 66,011
Bal 6/4 18,301 Prod 6/4 -19,585
Prod 6/6 -22,126 Bal 6/4 46,426
Bal 6/6 - 3,825 Prod 6/6 -22.126
Prod 6/7 -23,697 -- Bal 6/6 24,300
Bal 6/7 -27,522 Prod 6/7 -23.697
Recd 6/8 28,125 31,250 (E 6/6) Bal 6/7 603
32,400 36,000 ( E 6/7) Recd 6/8 32,400
409878 45,420 (A 6/7) 40,878
Prod 6/8 - 9.530 Prod 6/8 9,530
Bal 6/8 64,351 Bal 6/8 64,351
Prod 6/9 -32.565 Prod 6/9 -32.565
Bal 6/9 31,786 Bal 6/9 31,786
Prod 6/10 _25375 Prod 6/10 -25,375
Bal 6/10 6,411 Bal 6/10 6,411
Recd 6/13 36,270 40,300 ( E 6/10 ) Recd 6/13 36,270
Prod 6/13 - 7.950 Prod 6/13 - 7.950
Bal 6/13 34,731 Bal 6/13 34,731
Recd 6/14 40,338 44,820 (A 6/10) Recd 6/14 40,338
Prod 6/14 -23.475 Prod 6/14 -23,475
Bal 6/14 51,594 Bal 6/14 51,594
*** In column 1 we have accepted the date upon which the supplier
(Elizabeth) indicates it shipped the 31,250 yards, June 6, and
have added 2 days for delivery to Respondent . ( See fn. 10.)
Column 3 shows the daily balances if we utilize the date the
Respondent purportedly received the 31,250 yards (6/3/66).
NOVELTY PRODUCTS CO.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examiner: This proceed-
ing, with all parties represented, came on to be
heard at a bearing in New York City commencing
November 7, 1966, and concluding November 15.
The complaint was served August 9, 1966, and the
Respondent answered October 26. Violations of
Sections, 8(a)(1) and (3) and 2(6) and (7) of the
Labor Management Relations Act, 1947, as
amended, are charged. Posthearing briefs have
been submitted on behalf of the General Counsel
and on behalf of the Respondent. An order correct-
ing errors in the transcript was issued April 4, 1967.
1. THE PLEADINGS
In the complaint it was alleged that Isaac Rubin
and Marion Kane, d/b/a Novelty Products Co.
(hereafter the Respondent), are copartners en-
gaged in business at 132-140 West 125th Street in
New York City, where they manufacture or work
on, sell, and distribute various cloth items which, at
the hearing,, were identified as consisting entirely of
equipment used by the military. Electrical ,Produc-
tion & Novelty Workers- Union, Local 118, Interna-
tional Union of Dolls, Toys, Playthings, Novelties &
Allied Products of the,United States and Canada,
AFL-CIO (hereafter the Union), in the first week
of June 1,966 commenced a campaign to organize
Respondent's production and maintenance em-
ployees. (At the hearing it developed that one Jose
DeJesus, one of - Respondent's -employees; was
responsible for initiating the campaign.) It was al-
leged -also that another employee, Charles Garcia,
was an agent and supervisor for the Respondent
within the meaning of the Act. -
The alleged 8(a)(1) violations included inter-
rogations, warnings against joining or assisting the
Union, threats of reprisal,, and surveillance of em-
ployees' union activities. The alleged 8(a)(3) viola-
tions were wrongful discharge of DeJesus, wrongful
discharge of 14 employees on the day, shift, and
wrongful discharge of an entire night, shift consist-
ing, of 29 employees. -It was alleged that these
discharges were for the purpose of discouraging
membership in the Union. (Conjunctively with, the
use of the word "discharged" the complaint used
the words "permanently laid off" 'but, except for
DeJesus, any distinction between the words is of no
material significance in this proceeding. Also, dur-
ing the hearing the complaint was amended to in-
clude one additional employee, Rosa Lozano, as
among those of the night shift.) These dismissals
are alleged also as independent violations of Sec-
tion 8(a)(1) of the Act.
In its answer Respondent denied knowledge or
information sufficient,to form a belief as to' the
Union's qualification as a labor organization but
477
this was withdrawn at the hearing: It denied also
that Garcia was an agent or supervisor within the
meaning of the Act; that it had engaged -in the in-
terrogations, warnings, threats, and surveillance al-
leged; that any employee had been laid off or
discharged because of his or her union activities
and to discourage membership in -the Union; that it
had failed and refused to reinstate or offer rein-
statement to the employees other than DeJesus;
and that the actions it allegedly took against those
employees were because they had joined the Union
or because it sought to discourage membership in
the Union. All conclusory allegations as to viola-
tions likewise were denied.
The answer contained, in addition, three affirma-
tive defenses-the first, that certain of the em-
ployees named in the complaint as having been
discharged unlawfully voluntarily quit their employ-
ment on or before June 9, 1966, and the second,
that the remainder had been "laid off for lack of
materials and were not laid off or discharged for ac-
tivities on behalf of any union." The third defense,
addressed to certain conduct of the Union, was
withdrawn shortly after the hearing was opened.
In the resolution of 'all issues- with respect to
which 'credibility or oral testimony became a factor
I have weighed. all the probabilities, considered the
demeanor and conduct of the witnesses, their can-
dor or lack of it, their objectivity, bias or prejudice,
their understanding of the matters concerning
which they testified, whether their testimony has
been contradicted or sufficiently impeached,
whether parts of testimony should be accepted
when other parts are rejected, consistency, plausi-
bility and probability, and the effect which leading
questions might have had on the answers elicited
thereby.
Frequently during the hearing and in concluding
remarks near its close, Respondent's attorney com-
plained bitterly of the manner in which the case
had been tried. Respondent had good cause for
making these complaints and it' is unfortunate that
the transcribed record inadequately demonstrates
that this in fact was so. However disturbing the
method of presentation might have been, this can-
not be a factor or basis upon which the issues are
decided.
II. THE ISSUES
In substance, the issues are:
1. Was Garcia a supervisor or agent within' the
meaning of the Act?
2. Did the Respondent engage in the interroga-
tions, threats, and surveillance alleged in the com-
plaint and thereby violate Section 8(a)(1) of the
Act?
3. Was DeJesus discharged because of his union
activities and to discourage membership in the
Union?
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Should an employee, Ana Amelia Asch, be
considered separately from the other day-shift em-
ployees. laid off or discharged and, if so, was she
discharged 'because of union activities and/or to
discourage membership in the Union?
5. Should Rosa Lozano, who had been unem-
ployed because of her daughter's illness for some
time before the mass layoff or discharge of the
night shift be treated separately from the other em-
ployees in the nightshift and, if so , should the same
remedial action (if any be directed) be directed in
her behalf?'
6. Were all the layoffs and/or discharges the
consequence of Respondent's "Jack of materials"
(specifically certain tape which was necessary for
completing the manufacture of bandoliers, items
manufactured for the military)?
7. Did certain-employees quit voluntarily?,
8. Additionally, and not alleged either in the
answer or in Respondent's attorney 's opening state-
ment , were those layoffs and discharges economi-
cally necessary or proper by reason of a reduction
of available work due to technological improve-
ments introduced in Respondent's factory prior to
the layoffs? [These technological improvements in-
volved (a) the development of a machine or
machines which could make simultaneously - five
stitchings for the construction of- pockets in the
bandoliers instead of the, conventiona-l one or two
needle sewing machine; and (b) a machine or ma-
chines which could cut in one stroke, quite accu-
rately, connecting stitches between bodies of
bandoliers previously fabricated as opposed to
individual scissor and hand cutting of each of seven
connecting stitches.]
III. FINDINGS OF FACT
A. The Business of the Employer and Jurisdiction
Isaac Rubin and- Marion. Kane are copartners
doing business under the firm, name and style of
Novelty Products Co, the Respondent.
At all times material herein, Respondent has
maintained an office, plant, and place of business at
132-140 West 125th Street, in the city and State of
New York, where it is, and has been at all times
material herein, engaged in the manufacture, work-
ing on , sale, and distribution of cloth and military
equipment items. The principal article of produc-
tion was a cartridge bandolier containing pockets
and equipped with a tape sling to be hung over a
soldier's shoulders. We are concerned primarily
with this bandolier. Attachment -'V [unpublished]
shows the two most important stages of its produc-
tion.
During the year 1965, which period is represen-
tative of its annual operations generally, Respon-
dent, in the course and conduct of its''-business
operations, manufactured or worked on, sold, and
distributed at its plant, products valued in excess of
$50,000, of which products valued in excess of
$50,000 were shipped from its plant in interstate
commerce directly to States of the United States
other than New York State.
Respondent is and has been at all times material
herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the
Act. -
Electrical Production & Novelty Workers Union,
Local 118, International Union of Dolls, Toys,
Playthings, Novelties & Allied Products of the
United States and Canada, AFL-CIO, is, and has
been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
The National Labor Relations Board has jurisdic-
tion of this proceeding and of the-Respondent.
B. The Unfair Labor Practices
1. The status-of Charles Garcia
Respondent 's contention is that Charles Garcia
was merely a mechanic engaged in the' repair and
perfection of machines , assisted in the manufacture
of machines according to inventions or -ideas re-
lated to him =and -was valuable ' as an interpreter for
communication -with Spanish-speaking employees
unable to - talk or understand the English language.
While Garcia actually , and primarily engaged' in
and was valuable for these purposes,' I have con-
cluded that Respondent so used him in the running
of its business as to justify his being regarded as_a
supervisor or agent within the meaning of the Act.
Even if that actually -was not the' intention, the
utilization- of Garcia 's talents was of such a nature
as to lead the employees, justifiably in my opinion,
to regard him as Respondent 's supervisor and
agent . I have considered very carefully the effect-of
such a conclusion particularly because it could be
regarded as making most hazardous the utilization
by an employer of an interpreter for communica-
tion with his employees. Because an -employer
should not suffer an adverse consequence merely
because of such-utilization , I have approached-the
resolution -of , the issue with great care and also
With a sympathetic understanding of -the problems
of employers-who are forced to utilize non-English-
speaking personnel. -
Respondent 's task to litigate this issue was com-
plicated ' by Garcia 's disappearance and `unavaila-
bility to give testimony ' at the hearing . - As is not
unusual , the failure to produce and utilize him as a
-witness is cited as a factor to be weighed against
Respondent . It is ,' however, not at all'a factor in this
case . Garcia does seem- to have disappeared 'ac-
cording ' to remarks volunteered by the General
Counsel who had sought to subpena him- The
Respondent does not seem to have had any- respon-
sibilty for his disappearance and' there is no-sug-
gestign that it was in a better position than the
General Counsel to produce him.
NOVELTY PRODUCTS CO. 479
As will appear, below, I am crediting testimony to
the effect that Garcia made a poll of the employees
to ascertain their union position or membership.
The fact that he made this poll has additional sig-
nificance , in that, unless he engaged in that activity
upon the instruction of the Respondent or for
Respondent 's -information , there would seem to be
no rhyme or reason for his having done so.
The first witness called was Respondent Isaac
Rubin, who was examined as an adverse witness. It
soon became apparent that his testimony was eva-
sive, that admissions of facts damaging to Respon-
dent would have to be wrung out of him and that
serious questions as to his credibility would arise.
Resort had, to be taken to a prehearing deposition
given by him in the presence of his attorney.
-In that deposition he stated:
At times, at night especially, if I am not in the
plant , Garcia will oversee the plant ... the
Spanish employees have been told to look up
to him as a supervisor if minor problems arise
in the plant . He does not hire , fire, recommend
hire or fire or grant wage increases or super-
vise when I am -in the plant which is most of
the time .-At times I need skilled personnel. I
ask for recommendations among Charlie (two
foreladies ) for intelligent , willing workers
among the floor people and usually act on the
recommendation.-I recall that Charlie recom-
mended Cecil Stovall to be a semi-skilled oper-
ator, and I accepted the recommendation....
He was forced to agree also that he, had stated in an
affidavit, "The foreladies take charge , of the shop
before I arrive and Charlie {Garcia] takes charge in
their absence ." He also agreed that Garcia cor-
rected the work of employees , gave them instruc-
tions as -to work to be done-on Saturdays before his
arrival , and that Garcia had a key to the plant with
authorization to open the plant when it was closed.
One employee , Georgina Colon, who was among
the employees discharged, testified that Garcia
hired her.
While Isaac Rubin denied , during testimony
given in response to questions propounded by his
attorney , that Garcia had any of the authority or
responsibilities set forth in Section 2(11) of the Act
defining the term "supervisor," these denials were
not sufficient to overcome his pretrial testimony
relating Garcia 's actual activities . While Colon's
testimony that she had been hired by Garcia was at-
tacked by testimony given by Floorlady Keshian
and Rubin , the actual circumstances were such that
Colon reasonably could have concluded that it was
Garcia who was hiring her or, if he actually was not
the one who ' made the determination , at least he
was the one who-played a significant part in the hir-
ing. -
Section 2(13) of the Act eliminates common law
criteria for the determination of the principal and
agent relationship by providing that neither actual
authorization nor subsequent ratification is to be
controlling. In deciding whether an, employer ac-
tually has made a particular person a supervisor or
has constituted such person his agent; the manner
in which that person conducts himself in the shop
with knowledge of the employer or with - the em-
ployer's acquiescence is a primary consideration.
Under all the facts and circumstances here, it is my
conclusion that Garcia should -be regarded as hav-
ing been both a supervisor and agent whose 'acts
were binding on the Respondent within the mean-
ing of the Act. - -
2. The interrogations
Regardless of what particular day of the week the
organizational activities commenced it is beyond
question that they did commence in the early part
of the week commencing June 6 , 1966. Paul Colon,
who no longer was employed by the Respondent' at
the time of the hearing testified that on Wednesday,
June 8 , and again the next day; Isaac Rubin asked
him if he knew anything about the union activities
in the street , if he knew who was distributing- the
cards and if he had signed one . Brenda Davis, who
was working for the Respondent at the time of the
hearing, testified that Isaac Rubin had asked her on
Thursday morning (June 9 ) whether she had
received aunion card on the preceding day. Max-
ine Hammett, who also was in Respondent's employ
at the time of the hearing , somewhat ambiguously
as to time but sufficiently clarifi'`ed to place it before
the layoff, testified that Isaac Rubin had said ,
"good" to her after she denied having signed a
union card following his inquiry. -
Isaac Rubin testified that the first time he had
heard of a union was on the morning - of Wed-
nesday , June 8, when Katherine Keshianamentioned
it to, him. This testimony is sought to be supported
by Miss Keshian who testified that' she had had a
conversation with him but she placed the date - as
June 9, when DeJesus was discharged , "or the day
after , or two days after...." She said the "conversa-
tion was one in -which ' she reported that the girls
thought that DeJesus was - not working because he
was--passing out cards . Rubin, indicating astonish-
ment , asked , "What cards?" '
In the , light of all the, other testimony in the
record , much of which I credit , about the organiz-
ing activity , and my doubts 'about Isaac Rubin's
credibility , I ascribe no significance at all to the fact
that Rubin 'might have asked the question, "What
cards?"
There was testimony concerning Garcia's activi=
ties in connection with an alleged poll conducted
by him among the employees as to their union
membership. The taking of a poll is a form of inter-
rogation . Because he appeared ' to be- making a
record of those persons who had signed union
cards , this conduct was- coercive . Respondent must
be held responsible for this. interrogation. The
Rubin interrogation also must be regarded as coer-
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cive because it was not accompanied- with remarks
suggestive that there would' be no reprisals and
because of the calibre of the employees to whom it
was addressed. - -
I therefore find that Respondent did in fact vio-
late Section 8(a)(1) of the Act and did interfere
with its employees in their exercise of the right to
join or- assist a labor organization, rights protected
by Section 7 of the Act.
3. Warnings and threats
The warnings. and threats are 'established by
similar employee testimony. Georgina Colon, who
had testified as to her hiring- by Garcia, testified
also that Garcia, to whom she had been sent, by
Rubin after she was laid off, had told her that those
persons who had signed union cards would not be
called back to work ,when the matter with, the
Union would be settled," and that he suggested she
look for work_ata doll factory.
Paul Colon, who had testified as to interrogation,
testified also that Isaac Rubin, during the week
preceding the layoff, had- told him that Respondent
could not afford a wage -increase and that if the
Union "got in, it wouldn't be advantageous for him,
he would either have to shut down or layoff-or-shut
down the night shift." Colon, testified also that
Respondent sought A o enlist him in a campaign
against the Union. (Respondent scoffs at Colon's
testimony pointing to the fact -that Colon not only
was a very minor employee but also hired only 3
weeks earlier. Such a person, it is argued, hardly
would be one sought out by Rubin as a confidant
about business -problems. I agree that a new em-
ployee,,particularly a minor employee, is not the
sort of person in which management ordinarily
would confide. This does not mean, however, that,
during the course of a union's organizational cam-
paign, management would not,seek to instill in such
an employee a fear that his job was imperiled, by
the advent, of a union and he very likely might be
just the sort of a, person who could be enlisted in 'a
campaign against the Union. The -lure of reward is
not obscure.) I credit Colon's testimony as given.
Maxine Hammett, in Respondent's employ at the
time of the hearing, had to be reminded of
something she had stated in a prehear'ing deposi-
tion. She then testified (twice) that Isaac Rubin had
told her that ifthe Union "comes in, he would have
to -close, he would have to lay off." Whether her
lapse of memory was genuine or due to .her
reluctance to testify because she was at the-time' in
Respondent's employ does not appear to me to
have great significance. I accept her testimony as
true.
Ana Amelia Asch, whose situation will be
discussed, at, greater length below and who obvi-
ously stands to gain by a decision favorable to her
in this case, testified that, at the time of the layoff
during a discussion after work when her employ-
ment status had not been crystalized, she was told
by Isaac Rubin that 'he didn't want -her to get into
trouble and wanted to know everything -about -the
Union. Following her expression-of opinion that the
Union would win "because everybody- signed the
card," she said Rubin told her-that."[I]f the union
win, I have to close the shop because F don't have
money." She went home and later that evening Ru-
bin's sister telephoned her requesting that she, call
Rubin the next day at 1-o'clock. She did this, and
was `told to come in^ at -5 -o'clock. She came ' in-and
was paid off with a remark by Rubin that ^ he would
call her: He did not-call her. ' - _
This witness was not cross-examined.- I regard, the
fact that she was-kept in limbo-over Friday, Satur-
day, and Sunday, during a layoff 'operation, as
highly significant. I was impressed with the manner
in which she gave her testimony, believe that she
told the truth and accordingly credit it. There was
other corroborative testimony of threats to close
the shop but I-see no need to discuss, it. -
I find that Respondent, did - violate Section
8(a)(1) of the Act because the intimations or re-
marks suggesting the possibility that union mem-
bers would riot be rehired or that thefactory would
be closed in whole or in .part were threatening and
coercive remarks tending to interfere with the right
of the employees to join or assist the Union, -rights
guaranteed by Section 7, of, the Act.
4. Solicitation and surveillance
Georgina Colon, who testified concerning Gar-
cia's conduct, was told by Whim = that he well knew
who were the girls who had signed union cards and
that she was one of them. Paul Colon, the relatively
new employee, was asked by Isaac Rubin if he
knew anything about union activities, who was dis-
tributing the- cards, if he had signed a card, and if
he knew who had signed cards. Ana-Amelia Asch,
whose testimony I have credited before, was asked
during the late afternoon conversation-on Friday; to
tell Isaac Rubin-"everything [she' knew]- about the
Union." - - - ` -
It seems to me quite clear that Respondent at the
time of these events had a general awareness of the
organizational activities.-It endeavored to enlist em-
ployees in its efforts to combat the campaign- and to
obtain information about its 'progress. It sought to
impress upon them that, it was informed, or would
become informed of the union supporters". This dis-
play of interest had a distinct tendency to cause
employees to fear reprisals for-union support.
I therefore find - as a fact that ^ Respondent - vio-
lated Section 8(a)(1) of the Act by engaging- in sol-
icitation and surveillance which tended to and was
calculated to ' interfere with, employees in, their
rights to join or assist the- Uniori as guaranteed by
Section 7. 1 - -
NOVELTY PRODUCTS CO. 481
5. Polling
This charge of polling is only cumulative to the
general charges of interrogation, solicitation, and
surveillance. It involves conduct allegedly engaged
in by Garcia. Brenda Davis, Flora Morgan, and Ana
Amelia Asch all- testified to the effect that Garcia
had approached them and others holding a pad in
his hand on which he made notations following
inquiries as to whether they had signed union cards
or were for the Union. Garcia was not available to
admit or controvert this testimony but, for the
reason stated before, I do not hold this against the
Respondent.
Apart from - Respondent's attacks on the
testimony as not being of a substantial nature
worthy of belief, its main attack on the poll issue is
based on its denial of the binding effect of Garcia's
activity, the claim that he had not been authorized
to conduct a poll, and the testimony that a number
of persons had not seen him conducting it. I have
resolved against the Respondent the issue of the
binding effect of Garcia's conduct. The fact that
some employees were not polled or that manage-
ment did not observe him taking the poll is not
evidence that the the poll was not taken. The very
nature of Respondent's attack on the poll precludes
a claim that it was taken for a legitimate purpose.
Accordingly, I find that Respondent did in-fact
conduct a poll to ascertain the union sympathies of
various of its employees. Such poll was a violation
of Section 8(a)(1), of the Act because it gave the
appearance of restraint upon or coercion of em-
ployees in the exercise of the right to join labor or-
ganizations as guaranteed by Section 7 of the Act.
6. The discharge of Jose DeJesus
DeJesus, it will be recalled, was the employee
who was responsible for starting the union organiz-
ing campaign in Respondent 's factory.
I find myself in a definitely unhappy frame of
mind as far as he is concerned , as to the manner in
which he claimed he started the organizing activity
and as to the conduct of the Union when it filed its
petition for an election and sent a telegram to
Respondent demanding recognition. I believe that
DeJesus lied about the manner in which he came to
bring the Union into the campaign. He testified
that, because of his dissatisfaction with conditions
in the factory, he-looked in the "Yellow Pages" for
a union , found the Novelty Workers Union, com-
municated with it and thus the campaign was
started. A, reference to the "Yellow Pages" of the
telephone company discloses, however, that Novel-
ty Workers, Union, Local 121, is listed there as
being located at 853 Broadway in New York City.
This is not the union involved in this case. The
Union involved in this case , Electrical Production
& Novelty Workers Union, Local 118, Inteina-
tianal Union of,Dolls, Toys, Playthings, Novelties &
Allied Products of the United States and Canada,
AFL-CIO, is listed elsewhere under that name and
is located at' 126 University Place in New York
City. His floundering effort at the hearing to spot
the Union in the "Yellow Pages" was a painful ex-
perience for all , and even at that late date, he again
pointed to Novelty Workers, Union as the one en-
listed by him. -Further it was no contribution to the
cross-examination when the Union's attorney
brought into the hearing room the, ."Yellow Pages"
folded back at the- page where the Union's
telephone number was listed. (Unfortunately, this is
not shown in the record, but surely it will not be de-
nied.) Additionally it was no mere error or inaccu-
racy when DeJesus testified that on Monday, June
6, he did not go to work but went to the Union's
secretary-treasurer about 9 a.m., received member-
ship cards, then went to a hospital and later, in the
afternoon, returned to the building where the
Respondent's factory is located, met the night shift
coming on and gave them cards, then met the day
shift coming out and gave them cards. It was shown
conclusively that he worked at the factory all morn-
ing on that day. There is more here than meets the
eye.
Further the filing of the petition for an election
came, not because the Union actually had satisfied
the requirement in Section 101.18 of the Board's
Rules and Regulations, Series 8, as amended, that it
be "designated by at least 30 percent of the em-
ployees,' but rather in pique or because of the
DeJesus discharge. It is clear from the record that
at the time the petition was filed the Union had ob-
tained no more than 32 signed membership cards
when there were at least 108 employees in the bar-
gaining unit. Similarly, the Union had no basis in
fact for its as in the very controversial tele-
gram-of June 9, 1966, that it represented a majority
of Respondent's employees.
It is regrettable that I approach the DeJesus
discharge in this frame of mind but this should not
and may not deter me from making whatever con-
clusion I believe is just after a deliberate considera-
tion of the entire record.
The decision to discharge DeJesus was made
sometime on Wednesday, June 8, 1966, or prior to
his coming to work on Thursday morning, June 9.
Miss Keshian, a floorlady, on coming to work June
9, found a note dated Wednesday, June 8, instruct-
ing her not to put DeJesus to work and to tell him
there was not enough work "now." The note also
instructed her to have him see Rubin when Rubin
arrived. Respondent's establishment was running on
a calendar week work basis and this discharge was
in the middle of the week, without prior warning to
DeJesus.
Although Isaac Rubin remained steadfast in his
assertion that he had known nothing , about
DeJesus' union activities, or of any union activity
prior, to June 8, my credulity would be stretched
unduly if I believed this. It is quite clear from what
350-999 0 - 71 - 32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already has been written that Respondent had
knowledge on June 8 and possibly June 7 that a
union organizing effort was being made . He sought
on June 8 to induce Jiminez to return to work upon
a promise to give him a raise after the "union
trouble " was over . DeJesus appears to have been
the only person who was active in the distribution
and solicitation of union cards . Most of this was
done in the street at the entrance to the building
where Respondent's premises are located but some
was done on its premises . With all the inquiries
made by or on behalf of Respondent and consider-
ing the nature of the employees consituting its work
force , I believe that Rubin well knew that it was
DeJesus who was responsible for the effort to or-
ganize its factory.
Respondent 's position is that tape necessary for
the manufacture of its principal product , bandoliers
had been very slow coming in, that a shortage of
tape was imminent and that DeJesus' discharge was
really only prelude to the general layoff which had
to come but was accelerated because, on the morn-
ing of June 8, Isaac Rubin had observed him and
another employee (Meliton Cruz) jointly perform-
ing a task that required only one employee. Re-
spondent says that he asked them what they were
doing and why they were doing it, to which DeJesus
responded , "that they have no work." (Cruz, when
questioned on direct by Respondent' s attorney,
said he did not recall the incident .) Rubin testified
that he thereupon called the matter to Miss
Keshian 's attention (but Miss Keshian was unable
to remember this ) and, had he been able, he would
have discharged DeJesus that afternoon but he
could not find him at 4:30 p. m., the time when the
day shift completed its work . This is questionable
because the DeJesus timecard shows that he
checked out at 4:31 p .m. If Respondent had looked
for him , the probabilities are he would have found
him either on the single floor of its factory, at the
timeclock or at the exit door.
The `claim that there was no work for DeJesus
(apart from what I shall discuss at greater length
when I discuss the mass discharges) and that this
lack of work was the reason for his discharge does
not fit well with the floorboy work force pattern on
that day. DeJesus was one of several floorboys. His
work required no particular skill and there is
testimony , that he never wanted to work overtime
and that an effort to teach him to cut tape failed.
Other than this , his work does not appear to have
been unsatisfactory . Another floorboy , Hector
Jiminez , performed duties similar to those per-
formed by him . Although Jiminez did some cutting
of tape , he really was not a cutter because there
were at least 2 or 3 other employees who specif-
ically were so classified . Jiminez quit his job on
Tuesday afternoon and was paid off. He made no
effort to return to work on Wednesday , the 8th, the
day that Rubin said he 'decided to discharge
DeJesus. Assuming that DeJesus had been excess,
the fact that Jiminez had quit his job would have
corrected this condition. Nevertheless, Respondent
discharged DeJesus. Assuming that the discharge
note was written on the afternoon of, June 8, we
next find that Respondent instructed Garcia to seek
out Jiminez for the purpose of soliciting ,his return
to work. This conduct is irreconcilable with the
claim that there was a shortage or impending
shortage of tape, no work, and that DeJesus was
surplus, particularly in light of the fact that one of
the reasons cited to Jiminez for, requesting- -his
return to work was either that the tape had come in
or was going to come in.
The General Counsel seeks to support further the
case for DeJesus by pointing-to the fact that the
other boondoggling employee , Cruz, "received an
abundance of'overtime hours the three weeks sub-
sequent to DeJesus' discharge" and that other
floorboys also worked overtime these weeks. There
is, however, sufficient in the'record and the- nature
of Respondent 's operation is such to persuade me
to believe that it was entirely possible that Cruz'
overtime was due to the fact that some of the- work
he did had to be done after the completion of the
day-shift work in preparation for the next day's
work. My acceptance of this explanation does not
require that I alter my belief that however surplus
DeJesus might have been as far as the routine day-
shift work was concerned, that surplus condition
was or would have been corrected by the Jiminez
resignation. This is not the sole reason for my'
general conclusion about the availability of work.
My thinking in this respect is conditioned also by
what will be said below on the major work issue.
It is true that "DeJesus' job should [not] be
safeguarded and guaranteed because he was en-
gaged in union activity." As a matter of fact it is
also true that, absent a contract with a union or
other special conditions, any employer is free 'to
discharge any employee for any reason whatsoever,
so long as it is not for the purpose of encouraging
or discouraging membership in a union , or for no
reason. In this case, however, all the circumstances.
point to the conclusion that even if DeJesus had
been boondoggling on the morning ' of June 8 this
was not the real reason for his discharge and that it
was seized upon as a pretext for defending his
discharge. Rubin's additional testimony to support
the boondoggling claim , that he promptly discussed .
it with Miss Keshian is not supported by her,, and is,
in fact, controverted by her -testimony elicited on
direct examination by Respondent 's counsel.
It seems inevitable that I must conclude that the
discharge was in truth and in fact because Respon-
dent knew that DeJesus had masterminded the
union organizing activity and because it sought
thereby to discourage membership in the Union.
I therefore find that Respondent` discharged Jose,
DeJesus in violation of Section 8(a)(3) and (1) for
the purpose of discouraging membership in the
NOVELTY PRODUCTS CO.
Union and interfering with his efforts to form or
assist in the organization of the Union.
7. The discharge of Ana Amelia Asch
Asch's situation should be considered separately
from that of the other day-shift employees laid off
or discharged. Respondent sought to show that the
other day-shift floorgirls who were laid off had been
laid off according to seniority. This was in pur-
suance of its major defense that the mass. layoffs
were because of economic reasons and, except for
the night shift, were strictly in accordance with
seniority. Asch was laid off out of seniority order.
Respondent insists that she was laid off because
there had been a quarrel between her and Garcia.
The latter threatened to quit if she were retained. It
would be perfectly rational for Respondent not only
to take effective measures to preserve friendly rela-
tions among its employees but also to retain an ob-
viously more valuable employee like Garcia, the
mechanic and skilled machine builder, in
preference to Asch, a mere floorgirl among many.
This explanation, however, is completely dissipated
because Respondent called Asch back to work
while Garcia was still in its employ. There is no
evidence or even a suggestion that the difficulties
between them, assuming such difficulties had ex-
isted, had been settled. Garcia continued working
for Respondent until at least the last week of Sep-
tember 'and Asch was recalled to work on July 25.
Also, the election was held July 14, and the Union
lost by 36 "No" votes as opposed to 19 "Yes"
votes with only 2 ballots challenged. The date when
the Union lost the election and the date on which
Asch was recalled have a significance which may
not be ignored.
Asch testified at the hearing and the Respondent
waived 'cross-examination. She testified 'that, in
response to his inquiry, she had told Isaac Rubin
that she knew nothing about the Union to which he
had rejoined that he knew she had to know. It ap-
pears that she had been unwilling to cooperate with
him in his effort to interrogate her and, in fact, had
told him, after he expressed the opinion that the
Union could not win, that she thought that the
Union could -win - "because everybody signed the
card."'
Asp I have said, she was kept in limbo during the
weekend of the mass layoff and finally, after this
uncertainty, actually was laid off. All this was after
admitted receipt of the Union's telegram demand-
ing recognition. Also, Colon testified that at the
time he was laid off, June S, Isaac Rubin said, "Let
[me ], get this Union business straightened out."
For the purpose of bolstering its defense to the
Asch' charge, Respondent laid great emphasis on a
tentative layoff sheet said to have been prepared in
advance of the mass layoff. Asch's name is shown
on this list as having been hired October 19, 1965.
This date definitely' placed her high on the seniority
483
ladder:. Respondent pointed to the fact that along-
side her name there were the words, "Call-Satur-
day" which indicated that it had not been decided
definitely to lay her off but that she was to be called
back to work or called about work on Saturday. All
this became very suspect at the hearing. Somehow
there was handed to the General Counsel a
Xeroxed copy of the original paper. This copy did
not portray the words "Call-Saturday." Respon-
dent sought to explain this failure of the Xeroxed
copy to show the words "Call-Saturday" by saying
that that the machine had broken down and failed
to reproduce a complete picture. To support this
assertion it offered a Xerox Corporation report of a
service call and two test reproductions indicating a
failure of the machine to reproduce at- certain
places. While the mere existence and preparation
of the report and the two test reproductions hardly
were the best evidence and even were questionable
as evidence in an administrative proceeding, an_ ex-
amination of the test runs indicates that if the
machine in fact was not making a complete picture
the place or places where it was not so functioning
did not include the place where the words "Call-
Saturday" are shown on the original of the exhibit.
Consequently, I must not only reject entirely the
explanation but also take this episode into con-
sideration on the overall credibility factors. More-
over, if Garcia and Asch had had a dispute and he
had threatened to quit, there would have been no
need to place her in the doubtful or" pending status
on a layoff list. She would have been discharged
forthwith.
I find as a fact that Respondent discharged Asch
after thinking about her attitude on Friday and
Saturday of the layoff week, was dissatisfied and
angered by her failure to cooperate with Isaac
Rubin in his effort to learn about the union activi-
ties and by her assertion that the Union could win.
There is no evidence justifying a conclusion that
Respondent had any knowledge that Asch either
had joined the Union or had participated in the or-
ganizing activity. Such evidence' is not, however,
necessary to support a finding that her discharge
was a violation of the Act. If she were discharged
because she had refused to disclose whatever she
might have known about the union organizing ac-
tivity, this was an interference with her right to
refrain from either engaging or not engaging in the
concerted activities of the other employees. If she
were discharged because of her confidence that the
Union could win, her discharge would have been
for the purpose of discouraging not only her own
membership in the Union but also the membership
of those other persons who, according to her, had
"signed the card." It is my conclusion that these
were the reasons why the ultimate decision was
made to discharge her after keeping her status in
limbo during the weekend. Naturally, as with
DeJesus, other parts of the record dealing with the
484 DECISIONS OF NATIONAL
work situation also have had a part in the formation
of the ultimate conclusion.
I therefore find that by discharging Ana Amelia
Asch Respondent violated Section 8(a)(1) and (3)
of the Act for the purpose of interfering with a right
guaranteed to her under Section 7 of the Act and
for the purpose of discouraging membership in the
Union.
8. The failure to reinstate Rosa Lozano when she
applied for work on the night shift after having
been unemployed for some time because of her
daughter's illness
Lozano had been a floorgirl working on Respon-
dent's night shift until May 19, 1966. On or about
that day she had to take her daughter to the
hospital and, when finishing her work, she informed
Rubin that she would not be able to work for a
while but would return when her daughter came
home again. She testified that Rubin said, "OK."
Her daughter was released from the hospital on
June 9 and, at 4:30 on that day, she reported to
Respondent's factory for work but was told there
was none for her.
The precise question, as far as Lozano is con-
cerned, is: Should Rubin's acquiescence in her
statement that she would return to work when her
child came out of the hospital be regarded as a
binding contract to reemploy her on the night shift
at that indefinite future date? It is my opinion that
this was not such a binding contract. It was unen-
forceable by Respondent against her and was void
or voidable for indefiniteness. Respondent was
under no legal obligation to reemploy her when she
tendered her return to work on June 9. Even if, as
the General Counsel contends, there was sufficient
work to employ a night shift at that time, that does
not mean that there was sufficient work for the
night shift to be augmented by an additional em-
ployee.
Assuming, as is claimed, Rubin's sister told her
there was no work for her, we do not know whether
there was no work because the staff was complete
or because they just did not want to have her work-
ing there or whether, if there was work requiring an
additional employee, someone else was preferred.
Whatever the reason was there is no justification
for adding her as a laid-off night shift employee and
contending that she was "laid off" (or, more
properly, not reinstated) to discourage membership
in a union or to interfere with union activities. In
coming to this conclusion I have not overlooked the
fact that Respondent reemployed Lottie Donaldson
after spells of illness. This does not dictate a con-
clusion that Lozano had a vested right to reinstate-
ment.
I have concluded that the fact that Lozano ap-
plied for and was awarded unemployment in-
surance compensation over Respondent's opposi-
tion has no bearing on the issue. Since Lozano
LABOR RELATIONS BOARD
testified and all the facts relating to her claim were
presented by primary evidence and because Charg-
ing Party's Exhibits 2 and 3 are secondary evidence
at best and could only be prejudicial to the Respon-
dent, I reconsider my ruling overruling Respon-
dent's objections to them, rescind that ruling,
sustain Respondent's objections, and reject the ex-
hibits.
The complaint, to the extent that it was amended
to include Rosa Lozano as an 8(a)(3) or a 8(a)(1)
discharged employee, should be dismissed.
9. The mass layoffs or discharges on June 9 and 10
The entire night shift (29 employees) was laid off
on June 9, 1966, a Thursday in a workweek which
normally would have ended on Friday or Saturday,
8 employees of the day shift also were laid off on
that day and, apart from Ana Amelia Asch who,
although alleged to have been laid off or discharged
on June 10, was not definitely so laid off until
Saturday or Sunday, 4 additional employees on the
day shift were laid off on Friday, June 10.
Of these employees, Rosa Hammonds Harper
and Carolyn Tucker are singled out by the Respon-
dent to be considered separately. While Respon-
dent agrees that they having been employed on the
night shift would have been laid off because the en-
tire night shift was laid off, it contends that they
terminated their employment voluntarily. This con-
tention is sought to be established by Isaac Rubin's
testimony. When asked about Carolyn Tucker, he
said, "She just left. If I remember correctly, I think
she left of her own accord." When asked about
Harper, he said, "She said that she could not come
in to work." Although the General Counsel and
counsel for the Union had advance notice from the
answer, twice alleged, that some employees had
quit their employment voluntarily and could have
prepared to rebut this issue by obtaining particulars
of the defenses and then presenting the witnesses to
deny the testimony by Rubin, they failed to do so.
Moreover, on the second day of the hearing,
there was an agreement among counsel that the
names of the employees who quit would be sup-
plied "to give the General Counsel an opportunity
to rebut." Presumably, they were supplied but there
was no rebuttal. Rubin's testimony remains uncon-
tradicted. Portage Plastics Company, 163 NLRB
753. The mere fact that I fail to credit him in other
respects does not require that I discredit him in this
respect. The fact that two of a work force such as
this should quit is not inherently incredible and my
observation of Rubin during the hearing does not
persuade me that he should be regarded as dis-
credited for all purposes.
I find that Harper and Tucker did quit voluntarily
and that the complaint as to them should be
dismissed.
The defense for the mass layoffs is primarily that
the employees had been "laid off for lack of materi-
NOVELTY PRODUCTS CO. 485
als." This lack of materials involved the - alleged
shortage of the tape necessary for the completion
of the bandoliers.
Additionally, not pleaded, is the contention that
Respondent had developed and-installed two addi-
tional machines-one for the cutting of stitchings
which formed the chains resulting from the mass
production of the bodies of the bandoliers and the
other a five-needle machine which enabled an
operator to sew the pockets of the bandoliers in a
single operation. Respondent claims that these
machines made it possible to dispense with a num-
ber of floor people who, by a -hand scissor opera-
tion, could not cut the stitchings to the prescribed
length of permissible overhang as accurately or as
rapidly as the cutting machine, and also lessened
the need for operators. (If the latter is the fact, and
assuming that it is, it is perfectly reasonable to say
that in, making a decision for a mass layoff manage-
ment normally would prefer to lay off unskilled
floor .people in preference to operators who could
be kept available for sewing functions when not
doing work normally done by floor people.)
The difficulty with -this technological improve-
ments defense is that the supporting evidence is so
indefinite and inconclusive as to make it insuffi-
cient for the purpose of saying that the General
Counsel's burden -of proof has been so affected
thereby as to conclude. that he has not carried it.
Isaac Rubin testified that the new cutting machine
was developed in late April and that the first was
put into operation about the first week in May with
five additional machines being put into operation
"gradually" in May and June. Although a schedule
as to the dates whenthe machines were installed
was, requested, Respondent testified only that they
were installed in "May and June ." He testified that
the five-needle sewing machine was developed
"three years." Respondent now has seven such
machines and two, were made in 1966, one in the
"early part of-the year and the last one was some
time in April." This sort of testimony is so inclusive
that it cannot be regarded as substantial evidence
of probative value. Moreover, it does not have a
reasonable connection with a sudden mass layoff on
a Thursday and Friday in a single week. If the
technological, improvements resulted in reducing
the need for employees -Respondent's rational ac-
tion in response, to that would have been promptly
to lay off the superseded employees on each,occa-
sion that any, machine was installed . This did not
happen. On the contrary, Respondent's employ-
ment records show that there were , numerous new
hirings on both the night shift and the day shift
after May 1 and before the layoffs.
For these reasons I do not regard the alleged
technological improvements as in any manner justi-
fying the mass layoffs,
Also, during the hearing , separately from the
tape shortage ^ defense , Respondent offered
evidence -that 'there had been a controversy
between it and the Defense Supply Agency's -in-
spector .with respect to alleged variances involving
the "length of thread ends extending beyond ban-
doliers" and "improper or irregular stitchings." The
controversy had started before April 21, 1966. Re-
spondent requested a waiver of alleged variances
on April 21 and on June 22 an interpretation settling
the matter was issued by the chief, Key Inspection
Branch. The settlement is noted on Attachments
II and IV. A study of these shows that the contro-
versy did not have any material effect either on
shipments or on production. I do not regard this
controversy as having any bearing on the issue of
discriminatory layoff or discharge.
There was evidence also as to authorization for
the utilization of an alternate sling tape -instead of
the webbing, required by the original specifications.
The authorization for alternate tape was granted
June 24, 1966. This also is shown on Attachments
II and IV. This was introduced for the purposes of
emphasizing the point of delayed deliveries of tape
and justifying the eventual recall in August of laid
off employees , as an assist for the defense that the
layoff had been because of the shortage of
originally specified tape. Again, the course of
production and shipments, as shown in At-
tachments II and IV, indicates that this change of
specification does not aid the Respondent in its
defense . [The General Counsel makes an interest-
ing observation in this connection " that the em-
ployees were recalled because the election had
been held without ( their) participation in the elec-
tion and the danger of the election was past by Au-
gust ." I have made a similar observation in my
discussion of the Ana Amelia Asch layoff. This, of
course , is not conclusive but is of some persuasive
value.] The real effect of the amendment to permit
the use of alternate tape was to assure to.Respon-
dent a more certain source or perhaps afford to it a
saving in raw material expense. The latter observa-
tion seems particularly appropriate . Because of the
amended specification it was put into a position "to
acquire machines and attachments to-and set up
these machines and attachments to manufacture
this tape out of sheeting to supplement -our lack of
supply from our suppliers." According to Jacob Ru-
bin, "the first machine went into operation towards
the-end of July." Also, although Respondent's con-
tract with Alliance Webbing,' Inc., for the procure-
ment of the originally specified tape contained an
option to purchase an additional 25 percent more
yardage, that option was not exercised.
All the Issues with respect to the mass layoffs
must stand or fall on whether Respondent's
shortage of tape or lack of tape was the actual and
real reason for those layoffs. This is mymature con-
clusion after extended consideration and reflection
following the hearing . It was my belief as well as the
hearing was drawing to a close and I indicated this
in my remarks to Counsel following the conclusion
of a splendid summation by Respondent 's attorney.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent presented an exhibit which showed,
for the period commencing with the first week of
January 1966 and ending in the week of the layoff,
a complete utilization of tape so that there was sub-
stantially none available in its premises for produc-
tion on June 7. The General Counsel attacks. this
exhibit saying that it does not take into considera-
tion certain quantities of tape which ought to have
been included. First, he says that it does not include-.
45,823 yards of tape cut into pieces as shown in an
inventory taken by Respondent on December 31,
1965. This is not so. The inventory does not show
yardage but does show 45,823 cut pieces and the
Respondent did make due allowance for these in its
exhibit by subtracting that quantity from the total
production of the first week of January. Then the
General Counsel says that 158,000 yards should be
added because this quantity would have been
necessary for the completion of 142,650 cut and
partially sewn bandoliers shown in the inventory.
While the cut and partially sewn bandoliers most
probably did not have tape attached to them at the
time the inventory was made, the evidence does not
justify my making a conclusion that Respondent's
production figures for the period after January 1,
1966, did not include completion of fabrication of
these cut and partially sewn bandoliers. (See Re-
mark 5 in Attachment I, my explanatory remarks
for Attachments II, III , and IV.) Also, it does not
appear that the General Counsel is right when he
says that 235,666 yards of tape should be added to
Respondent's exhibit for the making of 212,100
bandoliers shown on hand in the inventory. These
bandoliers were inventoried at 14 cents each, very
close to the contract unit price as opposed to the
valuation of 7-1/2 cents placed on the cut and par-
tially sewn bandoliers. For this reason, I must as-
sume that they were fabricated completely at the
time of the taking of the inventory, already had the
tape sewn into them, and were not included in
production after January 1, 1966. My assumption is
supported further by Attachment III, which shows
that 150,000 bandoliers were shipped January 6, 7,
and 8.
The General Counsel, in his exposition to demon-
strate that Respondent never suffered an inadequa-
cy of tape, continued with a long and elaborate
analysis of the individual contracts and shipments
allocated against them. Early in that analysis he
said that 1,333,000 bandoliers were shipped in
1966 under contract #2,214 and that therefore
1,258,888 yards of tape (at the rate of 1-1/9 yards
of tape per bandolier) had to have been utilized for
these. I count, from the Defense Supply Agency's
report, that only 1,233,000 were shipped in 1966
under contract #2,214. Moreover, the yardage
computed is mathematically incorrect. Even if we
were to multiply 1,333,000 bandoliers by 1-1/9 that
would have amounted to 1,481,111 yards. I must
confess I was unable to follow the General Coun-
sel's analysis and computations. Moreover, even if I
could, his basic assumptions as to available tape
and utilization of tape, having been erroneous, I
was in no position to accept his conclusion.
Nevertheless, I cannot and do not accept
Respondent 's schedule purporting to demonstrate
that it had no tape left for production on June 7,
1966. The reason for this soon will be apparent.
Confronted with the handicap that I am neither
an auditor nor an accountant, I spent a dispropor-
tionate amount of time studying all the figures.
After many efforts which led me nowhere, I finally
was able to construct, from all the available
evidence, Attachments II, III, and IV, which I have
supplemented or sought to make more clear by ex-
planatory remarks contained in Attachment I. Con-
sidering them all together points to the solution of
the primary issue in this case. I can hope only that
these and my conclusions from them will be as
clear to the reader as they are to me. They are
hereby incorporated as and made findings of fact.
Referring briefly to Attachment III and without
repeating any of my remarks in Attachment I, it
becomes quickly apparent that Respondent's
production figures ( upon which it relies in its main
exhibit to demonstrate zero tape on June 7) cannot
be related to or reconciled in any meaningful
manner with the shipment figures. To put it as
briefly as possible, after the shipments of January 6,
7, and 8, Respondent would have had a balance of
62,100 completed bandoliers. Between then and all
the shipments until and including those of June 2
and 7 it had varying balances of production-
181,475; 244,000; 158,950; 220,625; 227,350;
261,585; 67,860; 17,860; 8,410; 81,035; 87,660;
284,401; 394,726; 446,176; 376,915; 289,866;
509,678 bandoliers. After the June 2 and 7 ship-
ments it had a balance of 431,213. At the end of
the layoff week and after the shipment of June 10,
it had a balance of 409,408 completed bandoliers.
In every week thereafter its balances were far in ex-
cess of 100,000 bandoliers. A correlation of bando-
lier production and shipments consequently cannot
form a basis for definitive action.
Next, I devised Attachment II, a comparison of
tapes received and bandoliers produced. (This was
somewhat similar to the procedure adopted by
Respondent in its aforementioned schedule.) I con-
verted all yardage in the inventory and all yardage
received into cut tapes and I included as well
Respondent's inventory of cut tapes. This at-
tachment requires even less discussion than At-
tachment III. It shows that if we were to adopt and
consider Respondent's production figures, as
Respondent has sought to use them in the afore-
mentioned exhibit supporting its defense, we could
come up with no sensible result. According to those
production figures it completed the week of April 2
with a production of 159,055 bandoliers when it
was minus 45,847 tapes and the week of April 23
with a production of 151,450 bandoliers when it
was minus 20,222 tapes. This minus condition con-
NOVELTY PRODUCTS CO. 487
tinues every week thereafter . For example, in the
week ending May 7 , if its production figure is to be
accepted , it made 76 ,951 bandoliers without tapes
and, in the week ending May 13 it made 93,246
bandoliers again with no tapes . This goes on and on
throughout the schedule.
By now it should be apparent that the production
figures must have included two kinds of production,
(1) partially fabricated bandoliers such as those
shown in the upper portion of Attachment V [un-
published] and (2) fully fabricated bandoliers such
as'those shown in the lower portion. Consequently,
any attempt to correlate production with receipts
of tape is futile.
Finally, I came up with Attachment IV which I
believe does form a reasonable basis for making a
conclusion as to whether Respondent was con-
fronted with a tape shortage . This attachment com-
pares Respondent 's receipts of tape or availability
of tape with completed bandoliers shipped by it. As
I have indicated in my remarks in Attachment I, my
allowance of 10 days for processing and adjustment
of possible ' date discrepancies is more than
generous to Respondent because , in its own exhibit
prepared for the purpose of supporting the defense;
it has taken the position that bandoliers were
produced immediately or almost immediately after
tape receipts . Again , in this attachment , I have con-
verted deliveries of yardage to quantities of cut
tape . I have utilized also not only the suppliers'
records of tape deliveries but also Respondent's in-
ventoryy figures, the 111 ,375 cut tapes (123,750
yards ) shown by Respondent to have been received
by it on January 4, 1966 , and the 12 ;960 cut tapes
(14,400 yards ) shipped June 20 but not reported by
the supplier .' ( Respondent voluntarily called this
fact to our attention.)
This- attachment shows that in every week both
before and after the layoff week , with the exception
of the balance remaining after the shipments of
May 11 and 13 (85,274 pieces), and until after the
shipment of September 12 Respondent had
balances of tape far in excess of 100 ,000 pieces.
Following the shipment of September 12, the pat-
tern changes . There is a shadow or overlapping
area where it was minus 5,897 tapes after the
receipt of September 1, plus 74 ,905 pieces after the
September 14 receipt , minus 99,095 pieces after
the September 23 shipment ( 10 days allowed for
variations , etc.) minus 64,832 pieces after the Sep-
tember 16 receipt, plus 22,945 pieces after the Sep-
tember 22 receipt and then minus 3,055 pieces
after another , shipment.
Only by'reason of the shipment of September 15
did the Respondent first run into a negative or
minus balance of tapes. As mentioned before, it did
not exercise its option to purchase additional tape
from Alliance Webbing, Inc. The only explanation
for its ability to continue shipments when outside
suppliers ' tape was exhausted , i.e., in a negative
balance of such tape , must be that it had perfected
its manufacture of and utilization of alternate tape.
The alternate tape first was used in the beginning of
August.
On the basis of my findings both in the at-
tachments and the foregoing analyses , it is my
further finding and conclusion that Respondent
never experienced such a shortage of tape as to jus-
tify the mass layoffs and that at no time prior to
those mass- layoffs did it even run out of or even
come near to running out of tape for the comple-
tion of bandoliers to be shipped under its contracts
with the Defense Supply Agency. Its defense based
on the shortage of tape resulting in the economic
necessity for the mass layoffs is wholly unsupported
by evidence of probative value and must be and is
rejected.
I find further that the real reason for the termina-
tion of the night shift and the mass layoffs of day
shift employees on June 9 and 10 was for the pur-
pose of discouraging membership in the Union.
This finding is based on a number of factors.
Respondent sought to demonstrate that it was not
motivated by union animus and supported this ar-
gument by referring to its prompt agreement that a
consent election be held and by remarks made in
preelection speeches or postings like, "If you peo-
ple want a union, I am willing to deal with the
Union , even though I do not believe that a union
would be good for you"; "Tell them [the NLRB
representatives ] the truth and the whole truth. Do
not be afraid . No one is going to hurt you , and I will
see to it that your rights are protected at all times";
"Be honest and tell nothing but the truth, and I am
sure that things will work out to your satisfaction in
the long run"; "If you want a union , I will negotiate
with the Union in good faith"; " I want you to un-
derstand that the decision is up to you .' I told you
before and I tell you again that if most of you want
a union, I will go along with it ." These excerpts are
only small parts of the speeches or postings. Other
parts made clear Respondent 's opposition to- the
Union. Mere opposition is, of course, no reason to
find that there was'that degree of animus necessary
to support a finding of violation of Section 8(a)(3).
Such opposition and the expression and dissemina-
tion of views, argument or opinion against the
Union are not unfair labor practices under the Act
particularly since Respondent was careful in these
presentations to make no threat of reprisal or force
or promise of benefit. On the other hand, these
presentations were made long after the happening
of the events with which we are concerned and the
layoffs, both of the entire night shift and the groups
in the day shift on June 9 and on June 10, were
made immediately after the commencement of the
organizing activity in an atmosphere of antagonism
to the Union.
The facts disclosed in connection with my
findings of violations of Section 8(a)(1) show an in-
tense desire to nip the organizing campaign in its
bud. Respondent , by its conduct , sought to instill in
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees fear that their best interests depended
on their not joining_ the Union . The entire- night
shift was laid off prior to the conclusion of a normal
workweek. Nine of the day shift employees
similarly were laid off prior to the conclusion of the
normal workweek . Apart from Ana Amelia Asch;
the remaining four day shift employees were -laid
off at , or about- the conclusion of the regular, work-
week but no facts of sufficient probative .value have
been brought out to justify their layoff. Respondent
was aware that the organizing activity was in
progress. While' there is much , conflict as to the
manner in which it obtained that awareness, the
fact of its awareness prior to any of the mass layoffs
is not in dispute. Prior to the layoffs there had been
no intimation or warning that layoffs were to come.
As a matter of fact, there were hirings of new em-
ployees in the week of the layoffs and in the rior
week . These new hirings came both after andpdur-
ing the time that layoff lists are claimed to have
been prepared and under consideration . The layoffs
came after or while several employees had been
told either that the factory would be closed or the
night shift discontinued in the event of unionization
or that rehirings after layoffs would hinge on
whether a laid-off employee was or was not a
member of the Union.
The layoffs were sought to be justified by a mass
of shifting defenses . None of these shifting defenses
has been established to my satisfaction.
I have come to the conclusion that, by laying off
the entire night shift and a number of the day shift
employees on two separate but succeeding days,
Respondent sought to make clear to all employees
that it, not the Union , had the last word which
could result in economic death or survival for them.
Upon all the facts and circumstances of this case
I must find and conclude that the night shift was
laid off on June 9 and that the day shift employees
who were laid off on June 9 and 10 (other than as
heretofore found), in addition to the layoffs or
discharges of DeJesus and Asch, were for the pur-
pose of discouraging membership in the Union and
for the purpose of interfering with , restraining, and
coercing those employees who - had joined the
Union or were engaging in union organizing activi-
ties.
10. Some additional remarks and discussion
Much was made during the hearing of the fact
that the Union 's, telegram demanding recognition
was sent on the morning of June 9 but that Respon-
dent claimed that it actually had not received it
until the 10th . In support of that claim , Respondent
pointed to the fact that a 'rubber hand stamp (used
in the regular course of its business ) on the reverse
of the telegram showed that it had been received on
June 10. For the purpose of demonstrating that
Respondent was not telling the truth and that the
rubber stamp represented a fictitious date, the
General Counsel called a messenger boy from
Western Union who testified that he had delivered
the telegram on the 9th . His testimony was
beclouded , however , by the fact that the receipt
which he offered showed that it had been signed for
by someone by the name of ,Mandell and there is
nothing to contradict Respondent's testimony that
there is and was no Mandell in its employ. The
testimony as to the delivery is further beclouded by
the assertion by the messenger that a prior effort to
deliver, claimed to have been made at a time when
the plant undoubtedly was in operation and open,
failed because the plant was closed . This was a tem-
pest in a teapot . It is unnecessary for me to resolve
the credibility issues. Isaac in freely admitted
that he had known of the organizing activity on
Wednesday the 8th.
The General Counsel objected strenuously at the
hearing to the reception of testimony by Jacob
Rubin which objection was made repeatedly but re-
peatedly overruled . His objection was on the
ground that Jacob had no interest in the business.
In-his brief following the hearing , this objection is
repeated . During the course of the many times the
problem came up, I" was constrained to remark on
the record that even if the King of-England or the
Prime Minister were witness to a dispute among
fishwives , he could be called as a witness. My
references there to the King, fishwives , and Queens
Bench should be corrected and for that reason I
quote from 4 Bentham 's Works 320:
Were the Prince of Wales , the Archbishop of
Canterbury , and the Lord High Chancellor, to
be passing by in the same coach while a chim-
ney sweeper and a barrowwoman were in
dispute about a halfpennyworth of apples, and
the chimneysweeper or the barrowwoman were
to think proper to call upon them for their
evidence, could they refuse it? No; most cer-
tainly.
I adhere , therefore, to my rulings - overruling the
objections to the reception of Jacob I Rubins
testimony.
The General Counsel argued that layoff of the
large number of employees (the -.entire night shift
together with those laid off from the day, shift)
created such a reduction of force as to make, in-
credible the contention that there was no available
work for them . While not irrelevant , the argument
does not have sufficient weight to be a substantial
factor for concluding that Respondent 's conduct
was unlawful. The bandolier contracts
unquestionably constituted more than 90 percent of
Respondent 's business , and the contracts for head
harnesses , leg traction straps , litter straps , and bed
straps were relatively small either in quantity, dollar
value , or work. Had there been a shortage of tape
the requirements of the other contracts were not
such as to justify a conclusion that the employees
laid off could have been put to work in connection
with those other contracts . While Respondent's
NOVELTY PRODUCTS CO. 489
total work force was decreased by 43 employees, it
retained, after the layoffs, at least 65.
The General Counsel has engaged in an elaborate
analysis,of details in the testimony given by both
Isaac Rubin and Jacob Rubin for the purpose of
showing uncertainties, discrepancies, and incon-
sistencies. Numerous uncertainties, discrepancies,
and inconsistencies may be found in- the testimony
given by these gentlemen but it would prolong un-
necessarily this Decision if I were to comment on
them. From time to time in this Decision I have
referred to portions of the testimony given by both
Rubins and compared such testimony with other
evidence in the record. I believe it is unnecessary to
comment any more than I have.
The record shows that on August 16, 1965,
Respondent applied for and within 2 weeks was
granted an extension or modification of the delivery
conditions for contract #3,096 and that there was a
modification or extension of Respondent's delivery
obligations under contract #3,485 on July 26,
1966, for months beginning April 16, 1966, and
concluding March 16, 1967. On the basis of my
analyses of Attachments II, III, and IV, although I
agree with Respondent's attorney that it would not
have been good business and would have been fool-
hardy deliberately to create a condition which
would have resulted in delays of deliveries with
consequent delays of payments, I conclude only
that these extensions or modifications became
necessary only because Respondent never had a
large enough labor force to meet its obligations
under the contracts. There is no reason for me to
subscribe to the General Counsel's suggestion that
it deliberately held back shipments to the Defense
Supply Agency to create the impression that the
layoffs were for valid business reasons.
Respondent's production records show that of
skilled operators for whom piecework records were
kept, Badillo, Benetez, Hammett, LaVenture,
Richardson, Roman, Serrano, Ballardes, Warren,
and Williams worked on the floor, on Monday of
the week following the layoff and that LaVenture
and Roman worked there on Thursday. In the
second week following the layoff there was even
more work on the floor by skilled operators than in
the first week. During these 2 weeks, Respondent
had a complement of 15 and 12 skilled operators
respectively. This utilization of skilled operators on
the floor supports the General Counsel's argument
that there was available and necessary work on the
floor.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in sec-
tion III, above, occurring in connection with the
operations of the Respondent in interstate com-
merce, have a close, intimate, and substantial rela-
tion 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.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed to
them in Section 7 of the Act, Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
2. By engaging in coercive interrogation of-em-
ployees concerning membership in the Union and-
activities on its behalf; by warning employees of ad-
verse consequences which might follow their join-
ing the Union or the organization by the Union of
Respondent's employees; by threatening to shut
down its factory or lay off or shut down the night
shift if the Union prevailed; by seeking to enlist em-
ployees in activities against the Union and by
polling employees as to their membership in the
Union in a manner tending to make such employees
fear possible adverse consequences because of
membership in the Union; the Respondent has in-
terfered with, restrained, and coerced employees in
violation of Section 8(a)(1) of the Act.
3. By discharging Jose DeJesus and laying off
Ana Amelia Asch at the time when she was laid off,
the former because of his efforts to organize
Respondent's employees and the-latter because of
her unwillingness to cooperate with Respondent in
its antiunion activities and her apparent sympathy
for the Union, the Respondent did thereby dis-
criminate in their employment for the purpose of
discouraging membership in the Union and did
thereby interfere with -their rights guaranteed in
Section 7 of the Act and, by reason thereof, did en-
gage in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. When Respondent on June 9, 1966, laid .off
Iris Beltran, Francesca Berrios, Betty Plessett,
Daisy Carter, Georgina Colon, Amparo Cortez,
Ethel Dixson, Carmen Rosario, and Maria' Saillant
from the day shift and on the same day laid off the
entire night shift consisting of Milagros Alemany,
Romula Alvarado, Ramonita Collazo, Paul Colon,
Ana B. Colon, Milagros De La Cruz, Yolanda
Davilla, Danila Diaz, Visitacion Fuestes, Inez Gon-
zales, Ana Hill, Cecilia Kaalund, Annie Lavan, Her-
mina Marrero, Grace Muldrow, Rosa Lee Neal,
Eladia Ortiz, Luz Rodgers, Juana Rojas, Iris Roque,
Eleanor Sims, Mary Smalls, Lolita Tirado, Hipolita
Torres, Maria Valdez, Eldora Williams, and Blanca
Wither, and when Respondent on-June 10, 1966,
laid off from the day shift Carmen Cruz, Mary Ed-
wards, Juana Romona Pichardo, and Ethel Watson,
it did so for the purpose of stopping or deterring
them or a substantial number of there and a sub-
stantial number of other employees who remained
in its employ from activities on behalf of or for the
organization of the Union and to discourage mem-
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership therein and it did thereby violate Section
8(a)(I-) and (3) of the Act.
5. The aforesaid unfair labor practices affected
commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent had no legal obligation to reem-
ploy Rosa Lozano when she tendered her return to
work and it,did not, by failing to reemploy her at
that time, either interfere with any rights protected
by Section 7 of the Act nor did it do so for the pur-
pose of discouraging membership in the Union. To
the extent that the complaint , as amended , alleges
that Respondent's refusal to reemploy Rosa Lozano
on June 9, 1966 , was a violation of the Act, it
should be dismissed.
7. Rosa Hammonds Harper and Carolyn Tucker
on June 9, 1966, voluntarily and of their own voli-
tion terminated their employment with Respondent
and Respondent did not lay off or discharge either
of them. To the extent that the complaint alleges
that they were laid off or discharged in violation of
the Act, it should be dismissed.
THE REMEDY
The Respondent engaged in a many faceted cam-
paign against the efforts to organize its employees
and displayed strong union animus. The mass
layoffs and the discharges of DeJesus and Asch in
the first week of the organizing campaign aggravate
Respondent 's 'conduct . Consequently , a broad
cease-and-desist order should be entered herein.
Respondent should be enjoined also from com-
mitting the specific unlawful conduct found and the
inclusion of such restraint in the order should not
be regarded as thereby lessening the effect of the
broad cease -and-desist provision.
With the exception of Jose DeJesus, all em-
ployees heretofore named as having been laid off or
discharged ( including Ana Amelia Asch), if not by
now reinstated or offered reinstatement, should be
offered reinstatement in the usual manner and the
Respondent should make all such employees whole
for any loss of earnings suffered by them from the
date of their layoff or discharge to the date of their
reinstatement or when they were or shall be offered
reinstatement.
The remedy with respect to Jose DeJesus
presents a problem which does not conform to the
usual pattern governing the rights of employees
who have been subjected to discrimination in viola-
tion of either Section 8 (a)(3) or (1) of the Act.
This is not the type of situation where an employee
is denied reinstatement for run-of-the-mill reasons
like misconduct on a picket line, or disloyalty, or
pilferage . E.g., see most recently, Uniform Rental
Service, 161 NLRB 187, and N.L.R.B . v. Big Three
Welding Equipment Company, 359 F.2d 677 (C.A.
5, 1966).
I have found that DeJesus wantonly and
deliberately testified falsely at the hearing. It is not
just a situation where a witness is referred to as
"discredited" or "not credited."
In N.L . R.B. v. Coca-Cola Bottling Co.,, 333 F.2d
181 (C.A.-7, 1964), the court said, ", .. Dorman's
misconduct exemplified his pattern of falsification
and deceit , during his employment with the Com-
pany , climaxed by his false testimony - at the hearing,
surely disqualifies him from reinstatement or other
employment rights . To force him upon the Com-
pany under such circumstances would bring about
an_ impossible situation ." [Emphasis supplied.] In
Iowa Beef Packers v. N.L.R .B., 331 , F.2d 176,144
NLRB 615 (C.A. 8, 1964 ), the court had under
consideration another case in which it said the Trial
Examiner had recommended withholding the usual
remedy of reinstatement from one Grove, a
discharged employee , because he "had deliberately
falsified his testimony while on the stand at the
hearing and in the unfair labor charge which he
filed." Pointing to the fact that Grove gave false
testimony at the hearing , the court said, " Under
these circumstances , forfeiture of Grove's remedy
is required to serve the policy,of the Act, and, con-
sequently, the Board 's order requiring Company to
offer Grove immediate employment with back pay
is not entitled to enforcement." Although the court
disagreed with the Board, the Board , in its opinion,
144 NLRB 615, 622 , made clear that the policy, is
to withhold "relief when an individual has i abused
its procedures by deliberate and malicious con-
duct." It granted relief to Grove because it was of
the opinion that the false portion of the charge had
not been authorized by him.
In our case DeJesus was not guilty of misconduct
in connection with his employment . For that reason
I am of the opinion that he should not be subjected
to a monetary loss resulting from his wrongful
discharge . The question of reinstate m
,
ent, however,
gives me great concern. To repeat , I am convinced
that he deliberately gave false testimony, at the
hearing about the manner in which - he came to,the
Union , the time when he allegedly obtained instruc-
tions , and cards and the circumstances of his initial
distribution of cards. I was not impressed favorably
with his manner upon the, witness stand.
The Respondent brought out that beJesus was in
receipt of monetary benefits from the Union. His
testimony is that it lent him $65' on- three occasions,
a total of $195 , following his discharge. The
Union 's secretary-treasurer corroborates that this
money was a loan and that it expects to receive
repayment . Although DeJesus signed no evidence
of indebtedness , there is no basis whatever to find
that following his discharge he entered into -the
Union's employ. The mere fact that he received
financial benefits from the Union ( which financial
benefits were not in the nature of strike pay) would
not be a reason for withholding an,order of rein-
statement.
It is entirely possible that the question of rein-
statement is only academic because DeJesus was
NOVELTY ,PRODUCTS CO. 491
working at the time of the hearing. Nevertheless it
is a matter which requires my consideration.
I can visualize only serious maladjustments in
Respondent's work force and in its relations with its
employees if it is required to reinstate him. This,
however, is not determinative because the public
interest must be vindicated. The question is
whether, by reinstatement, the public interest will
be vindicated. I think not. Anyone who gives false
testimony at a Board hearing should not be the
recipient of affirmative benefits at the hands of the
Board. To do this, in my opinion, would encourage
false testimony- and would not effectuate the poli-
cies of the Act. I have concluded that the best way
to handle this situation would be to require only
that the Respondent make DeJesus whole for any
loss of earnings between the time of his discharge
and November 6, 1966, inclusive, the day prior to
the day on which he gave his false testimony, but
that Respondent should not be required to reinstate
him.
Loss of earnings or backpay and interest shall be
computed in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Now, upon the foregoing findings of fact and
conclusions of law, and the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER
Respondent, Isaac Rubin and Marion Kane, d/b/a
Novelty Products Co., at 132-140 West 125th
Street, New York City, shall:
1. Cease and desist from:
(a) Discouraging membership in Electrical
Production & Novelty Workers Union, Local 118,
International Union of Dolls, Toys, Playthings,
Novelties & Allied Products of the United States
and Canada, AFL-CIO, or any other labor or-
ganization, by discriminating against any of its em-
ployees as to hire, tenure, or any other terms or
conditions of employment.
(b) Threatening any employees with any sort of
retaliation for engaging in union activities or
(without thereby limiting the foregoing) threaten-
ing to close its factory, or to lay off any shift or to
lay off any employee or to fail to rehire any em-
gloyee either because of union activities-or mem-
ership or as a possible consequence if the Union
or any other labor organization becomes the
representative of its employees.
(c) Coercively interrogating any employee as to
his or her union activities or as to the activities of
other employees on behalf of any union, soliciting
any employee to engage in any activity against the
Union or any other labor organization, or taking
any poll or census of its- employees concerning
membership or nonmembership in any union.
(d) In any other manner, _ interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives
of their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from
any and all such activities, except to the extent that
such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Offer every employee named in subdivision
(b) following, except Jose DeJesus, if such em-
ployee has not heretofore been offered such rein-
statement, reinstatement to his or her former or
substantially equivalent position without prejudice
to his or her seniority or other rights and privileges
and, if such offer is accepted, reemploy such em-
ployee or employees under those conditions.
(b) Make Ana Amelia Asch, Iris Beltran, Fran-
cesca Berrios, Betty Plessett, Daisy Carter, Geor-
gina Colon, Amparo Cortez, Ethel Dixson, Carmen
Rosario, Maria Saillant, Milagros Alemany, Romula
Alvarado, Ramonita Collazo, Paul Colon, Ana B.
Colon, Milagros De La Cruz, Yolanda Davilla,
Danila Diaz, Visitacion Fuestes, Inez Gonzales, Ana
Hill, Cecilia Kaalund, Annie Lavan, Hermina Mar-
rero, Grace Muldrow, Rosa Lee Neal, Eladia Ortiz,
Luz Rodgers, Juana Rojas, Iris Roque, Eleanor
Sims, Mary Smalls, Lolita Tirado, Hipolita Torres,
Maria Valdez, Eldora Williams, Blanca Wither,
Carmen Cruz, Mary Edwards, Juana Romona
Pichardo, and Ethel Watson whole for any loss of
earnings suffered by reason of their layoffs or the
discriminations against them in the manner set
forth in the section above entitled "The Remedy."
(c) Make Jose DeJesus whole for any loss of
earnings suffered by him from the time of his
discharge to and including November 6, 1966, by
reason of its discrimination against him in the
manner set forth in the section above entitled "The
Remedy."
(d) Notify any of the above-named employees
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(e) Preserve and, upon request, make available
to the Board or its agents for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due and the right to reinstate-
ment.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Post at its place of business in New York
City, copies of the attached notice marked "Appen-
dix."1 Copies of such notice, to be furnished in En-
glish and Spanish by the Regional Director for Re-
gion 2, after being duly signed by an authorized
representative of Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
assure that such notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Deci-
sion, what steps the Respondent has taken to
comply herewith.'
The allegations in the complaint and in the com-
plaint as amended at the hearing concerned with
the alleged wrongful layoffs or discharges of Rosa
Hammonds Harper, Carolyn Tucker, and Rosa
Lozano, not having been found to have been sup-
ported by the evidence as heretofore set forth in
the Decision, should be and hereby are dismissed.
' In the event that 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
: In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 2, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
Electrical Production & Novelty Workers
Union, Local 118, International Union of
Dolls, Toys, Playthings, Novelties & Alied
Products of the United States and Canada,
AFL-CIO, or any other labor organization, by
discriminating against any of our employees as
to hire, tenure, or any other terms or condi-
tions of employment.
WE WILL NOT threaten any employees with
any sort of retaliation for engaging in union ac-
tivities.
WE WILL NOT threaten to close our factory,
or to lay off any shift or to lay off any em-
ployee or to fail to rehire any employees
because of union activities or membership or
as a possible consequence if the Union or any
other labor organization becomes the represen-
tative of our employees.
WE WILL NOT coercively interrogate any em-
ployee as to his or her union activities or as to
the activities of other employees on behalf of
any union and WE WILL NOT solicit any em-
ployee to engage in any activity against the
Union or any other labor organization and WE
WILL NOT take any poll or census of our em-
ployees concerning membership or nonmem-
bership in 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 labor organizations, to join or assist any
labor organization, to bargain collectively
through representatives of their own choosing,
to engage in concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection, and to refrain from any and
all such activities, except to the extent that
such rights may be affected by an agreement
requiring membership in a labor organization
as a condition of employment as authorized in
Section 8(a)(3) of the Act.
WE HEREBY offer all employees who are
mentioned in the next paragraph, if they have
not already been offered their old jobs, rein-
statement and rehiring in their old jobs or
similar jobs and they will be hired again with
the same rights and seniority as before and all
other rights and privileges and, if such offer is
accepted, we will reemploy such employee or
employees under those conditions.
WE WILL pay to Ana Amelia Asch, Iris
Beltran, Francesca Berrios, Betty Pleassett,
Daisy Carter, Georgina Colon, Amparo Cortez,
Ethel Dixson, Carmen Rosario, Maria Sail-
lant, Milagros Alemany, Romula Alvarado,
Ramonita Collazo, Paul Colon, Ana B. Colon,
Milagros De La Cruz, Yolanda Davilla, Danila
Diaz, Visitacion Fuestes, Inez Gonzales, Ana
Hill, Cecillia Kaalund, Annie Lavan, Hermina
Marrero, Grace Muldrow, Rosa Lee Neal,
Eladia Ortiz, Luz Rodgers, Juana Rojas, Iris
Roque, Eleanor Sims, Mary Smalls, Lolita
Tirado, Hipolita Torres, Maria Valdez, Eldora
Williams, Blanca Wither, Carmen Cruz, Mary
Edwards, Juana Romona Pichardo, and Ethel
Watson the total amount of money they did
not earn because of their layoffs or discrimina-
tions against them.
WE WILL pay to Jose DeJesus the total
amount of money he did not earn from the
time of his discharge to and including
November 6, 1966, because of our discrimina-
tion against him.
WE WILL preserve and, upon request, make
available to the Board or its agents for ex-
amination and copying, all payroll records, so-
NOVELTY PRODUCTS CO.
cial security payment records, timecards, per-
sonnel records and reports, and all other
records necessary to analyze the amount of
backpay due and the right to reinstatement.
All of our employees are free to become or
remain, or to refrain from becoming or remaining,
members of the above-named Union or any other
labor organization.
ISAAC RUBIN AND MARION
DANE, D/B/A NOVELTY
PRODUCTS CO.
(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 application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces:
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 5th Floor, Squibb Building, 745 Fifth
Avenue, New York, New York 10022, Telephone
751-5500. -
Attachment I
Explanatory Remarks for Attachments II, III, and
IV
1. All dates shown on all attachments , except
where otherwise indicated, are in the year,1966.
2. Tape shown on Attachments II and IV as
received has been converted from yardage to cut
pieces at the rate of 1-1/9 yards for one piece
necessary to make one bandolier.
3. Tape suppliers were Alliance Webbing, Inc.,
and Elizabeth Webbing Mills Co., Inc. They are
designated on Attachments II and IV as A and E,
respectively.
4. 1 have not indicated a precise date of receipt
for the first two receipts following the figures for
tape in inventory, as shown on Attachments II and
IV, but the dates were early in January 1966.
5. Production records (Attachments II and III)
are taken mainly from Respondent 's inventory of
December 31, 1965 , and Respondent 's record of
piecework . I am not satisfied that the latter record
does not reflect a combination of completely
finished bandoliers and bandoliers completed only
493
to the first stage of fabrication , i.e., the stage prior
to the cutting apart of the bodies and the sewing-on
of the tape.-That there is a distinct probability that
this is the case is indicated by the large quantities
of bandoliers, counted as production, which re-
mained after shipments- were made (Attachment
III) and the minus quantities of tapes on Attach-
ment II. Also, Respondent's inventory shows a
distinction between partially sewn and completed
bandoliers.
6. Dates of shipment of completed -bandoliers
(Attachments III and IV) are in dispute; they could
be dates of receipt by the Defense Agency. Respon-
dent had the opportunity to supplement the record
if the dates were wrong. It did not. In any event, I
regard these possible discrepancies as immaterial
for reaching a reasonable perspective.
7. Shipments (Attachments III and IV) are not
allocated to contracts. There is no need to do this
because the tape could be used for any contract.
The contracts were designated as #2,214, #3,096,
#3,485.
8. Contract #2,214 was completed by Rspon-
dent on or about May 27, 1966.
9. Neither General Counsel nor Respondent's at-
torney sought to distinguish tapes used for contract
#2,214 as opposed to contracts #3,096 and
#3,485. While the General Counsel in his brief
sought to allocate tape to particular contracts, the
fact is that there is no evidence to justify a conclu-
sion that the Respondent kept particular receipts of
tape separate from other receipts.
The mere fact that the Respondent utilized par-
ticular contract numbers when contracting for the
purchase of tape is not controlling for such use was
only in the nature of a priority claim.
It seems that contract #2,214„called for 1-1/4
inch tape while the others called for 1-3/8 inch
tape. The case was presented and submitted as
though all the -tape was fungible and I- so find (At-
tachments II and IV). I regard the variation in
widths as immaterial, particularly because of the
undetailed nature of the large 1965 year-end inven-
tory and the completion of contract #2,214 in May
1966.
10. Dates of receipt of tape (Attachments II and
IV) are in dispute. The Respondent did not avail it-
self of the opportunity to make them precise. It did,
however , present schedules showing receipts and
these vary from the schedules received from the
suppliers. If the dates of receipt are incorrect, the
manner in which they have been utilized in the
schedules makes any possible variation immaterial.
11. The quantities of cut tapes (Attachments II
and IV) do not take into consideration shrinkage
due to cutting of bandolier lengths, waste, theft,
cutting errors, etc. The shrinkage, however, could
not have been so large as to affect materially what
is sought to be shown by the schedules . If there was
any significant ;shrinkage , it is assumed that counsel
would have presented evidence to that effect. Both
494 DECISIONS OF NATIONAL
the General Counsel and Respondent's attorney
have submitted or relied on the quantities of uncut
tape set forth in the exhibits as though there had
been no shrinkage.
12. On June 22, 1966, a dispute between
Respondent and the inspectors was settled. This is
shown in Attachments II and IV prior to the ship-
ment of June 22, 1966. There is no evidence to,
show what or how many controversial bandoliers
were shipped after the settlement. The schedules
are not affected materially by this.
13. On June 24, 1966, the Defense Agency
authorized a substitute material for tapes and
Respondent started to use such substitute late in
July or in the beginning of August. The record does
not reflect how many or what bandoliers were
LABOR RELATIONS BOARD
made with such alternate tape. Attachment IV
shows, however, that tape receipts from the original
suppliers went into a minus quantity condition in
September 1966. That shipments of completed ban-
doliers were continued without such original
specification tape indicates that Respondent made
extensive use of the alternate tape following perfec-
tion of its production.
14. In Attachment IV showing shipments of ban-
doliers following receipts of tape, I have allowed a
minimum of 10 days in each instance to take care
of date variations, unpacking, cutting, and sewing,
then counting, bundling, and packing for shipment.
Respondent's main reliance is and was on a
schedule which suggests no or practically no lag
between tape receipts and utilization in production.
Attachment 11
Corgparison o Tapes Recd and Bandos Produced
Tapes (Piece s) Yds. Recd. Production
Reed
12-31-65
Cut inventory 45,823 Inv. 212,100
Uncut invt ' y 1162,856 (1 292, 063 yds ) inv. 96,075
January 111,375 1123,750 yds) E 123,300
121-500 (135,000 yds) E 112,525
441 554 114,950
111,675
106,725
109,235
106$275
'+1,441,554 3/5 140, 550
-1 X444 1,233,410
208,144
3/8 101 . 250 (112,500 yds) E
309,394
- 122-625 3/12 122,625
Bal 3/12
170 875 (78,750 yds) E
3/24 43,875 (48,750 yds) E
23 ..55 2 55 (26,250 yds) E 3/19 131,625
3 2 5 ,144 3/26 1 37.686
269.311 M9 , 1
Bal 3/26 55,833
5 7.375 (63,750 yds) E
113,208
159 ,055 4/2 159,055
Bal 4/2 45-1847
-4/1 43,875 (48,750 yds) E
4/1 180,090 (200,100 yds) A
360 (50,400 yds) E
223,478 4/9 102,625
102-625
Bal 4/9 120,853
4/13 40,500 (45,000 yds) E
4/14 30.375
-
(33,750 yds) E
91,728
157.700 4/16 157,700
Bat 4/16 34,028
I7 FFirat Minus balance.
NOVELTY PRODUCTS CO.
Attachment II -- Continued
Tapes Pieces
B.F. Recd
4/20 12,960
4/21 45,360
4/22 38.880
131,228
151 450
Bal 4/23 - 20 22T
4/27 12,960
4/28 45..360
38,098
165.139
Bal 4/30 - 127,641
512 38
5/5 12,960
5/6 _ 519.4406 ,3611
6 951
Bal 5/ 7 - 133,312
5 16 200
5/10 51,840
5/11 20 250
- 45,0 2
93.246
Bal 5/ 13 138,268
5/13 53320
5/16 28,620
5/17 45,360
5/19 12042
5/20 64.800
70,874
160.566
Bal 5/21 - 89,692
5/24 2
5/25 32,400
5/27 21,37
2 1,37 2
- 1 1 535
Bal 5/28 - 149$663
5/31 25,920
6/1 57.429
- 66,314
128 . 195
Bal 6/4 194,509
6/6 28,125
6/7 320
6/7 40, 87 8
6/10
6/10 46 270
- 16,498
- 11 3. 293
Bal 6/10 -- 129,791
6/14 36 , 450
6/17 33.480
- 23,411
113.700
Bal 6/ 18 - 137,111
Yds. Recd.
(14,400 yds) E
(50,400 yds) E
(43,200 yds) E
(14,400 yds) E
(50,400 yds) E
(43,200 yds) E
(14,400 yds) E
(21,600 yds) E
(18,000 yds) A
(57,600 yds) E
(22,500 yds) A
(64,800 yds) E
(31,800 yds) A
50,400 yds) E
13,380 yds) A
(72,000 yds) E
44,760 yds) A
36 000 yds)
(43, 200 yds) ) E
(28,800 yds) E
(63,810 yds) A
(31,250 yds) E
(36,000 yds) E
(45,420 yds) A
(44,820 yds) A
(40,300 yds) E
40,500yds) A
40,500 yds) A
(((37,200 yds) E
Production
4/23 151,450
4/30 165,739
5/7 76,951
5/13 93,246
5/21 160,566
5/28 171,535
6/4 128,195
6/10 113,293
6/18 113,700
495
Minus balances resumed and continue hereafter.
J/ All balances are JkLMA hereafter.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attachment II - Continued
PiecesTapes Yds. Recd. Production,
B.F. Recd.
6/20 12,960 (14,400 yds) E (6/22 Controversy
6/22 33,048 (36,720 yds) A settled)
6/23 41,148 (45,720 yds) A
6/24 40.770 (45,300 yds) E
- 9,185
- 89,550 6/25 89,550
Bal 6125 - 98,735
6/28 48,978 (54,420 yds) A (6/24 Alt, tapes
42,228
0
(46,920 yds) A Auth'd)
7/1 64-170 (71,300 yds) E
56,64
- 142.130 7/2 142,130
Bal 7/2 85,489
- 118.885 7/9 118,885
Bal 7/9 204,374
7/12 57,186 (63,540 yds) A
7/15 41,094 (45,660 yds) A
7/15 33,480 (37,200 yds) E
72,614
18.300 7/16 18,300
Bal 7/16 90,914
7/19 27,900 (31,000 yds) E
7/20 61,209 468,010 yds A
7/22 66 (74,400 yd E
65,155
- 142.500 7/23 142,500
Bal 7/23 - 77,345
7/26 49,167 (54,630 yds) A
7/29 42,849 (47,610 yds) A
7/29 66,960 (74,400 yds) E
81,631
138,875 7/30 138,875
Bat 7/30 57,244
8/4 36,450 (40,500 yds) A
/85 37,476 (41,640 yds) A
8/5 72.540 (80,600 yds) E
89,222
8/6 147,850
Bal 8/6 - ,8,628
8/9 36,693 (40,770 yds) A
8/12 72.OQ ((80,000 yds) E
50,065
134,400 8/13 134,400
Bal 8/13 84,335
8/16 36,828 440,920 yds) A
8/19 36,666 (40,740 yds) A
8/19 72.540 (80,600 yds) E
61,699
- 146.8 8/20 146,850
Bal 8/20 - 85,151
8/23 41,229 (45,310 yds) A
8/24 64,170 (71,300 yds) E
8/26 58,590 (65,100 yds) E
8/26 37.534 (41,760 yds) A
116,42
145.275 S/27 146,275
Bal 3/27 29,853
Thin balances continue hereafter.
NOVELTY PRODUCTS CO.
Attachment II -- Continued
Tapes ( Pieces ) Yd s` Rec'd.
B. F. Rec'd.
8/31 50,220 (55,300 yds) E
9/1 36,720 (40,500 yds) A
Bal 57,087
51 Bal 99/33
42`9
8
48
30 , 440
100 500
Bal 99/ 10
/14 -X30,9407
9/16 34,263
- 58,823
- 165 100
Bal 9/17 - 2Z3,923
9/20 50,220
9/22 37.557
- 136,146
7 Minus balances continued,.
(47,220 yds) A
(42,060 yds) (A)
(38,070 yds) A
(55,800 yds) E
(41,730 yds) A
497
Production
9/3 130,475
9/10 100,500
9/17 165,100
350-999 0 - 71 - 33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At tachz*ant III
Bandolier P oUuction and Shipment
'.Dates of Shipments)Bandoliers Produced
Inventory 12/31/65 11
5 ' 00601
Shipped Jan. 6, 7, 8
Bat 6622,10
Jan.8 96,075
15 1T2^300
Sub Tot 2,1,4 -
-100 ^lqQ Shipped Jan. 26, 27
Bal 181,473
Jan. 22 112,525
- -S.T. 279 7,U) 'lu
- 50 000 Shipped Feb. 3
Bal 4r.
Jan. 29 114 950
S.T.
200 000 Shipped Feb. 9, 11
Bal 15 ,9 _lU
Feb. 5 11! a'5
S. T.
- 50 G00 Shipped Feb. 15
Bal 2,
Feb. 12 06 72 5
S.T. r? , 5U
-100,000 Shipped Feb. 18
Bal 227,350
Feb. 19 109 235
S.T. 3: 5
75 &000 Shipped Feb. 23
Bat 261;5
Feb. 26 106 275
^S. T. ,60i7
300,000 Shipped Feb. 24
Bal 67 ,86^
Bat
500x)0---I
Shipped Mar. 2
March 5
S. T.
140,550
i^''4tb
150.000 Shipped Mar. 7, 11
Bal A4' )
Mar. 12 122 6, `5
S, T. J^3
Bal
50000
l
Shipped Mar. 16
Mar. 19 131 625
S.T. 212,
Bat
125 000
EH
Shipped Mar, 21
Mar. 26 137,686
Apr. 2 159 055
S.T. 4,6-0;
Bat
Q0 000
^3^.^ Yj-
Shipped Apr. 12, 1 4
Apr. 9 102,627
Apr. 16 157.700
S.T. 774, 7??6,
NOVELTY PRODUCTS CO.
Attachment III -- Continued
Bandoliers Produced (Dates of Shipments)
Bal B . F. 544,726
-150 000 Shipped Apr. 20, 22
Bal 394 ,726
Apr. 23 151 450
S.T. 546,176
-- 100 000 Shipped Apr. 26
Bal 446,176
Apr. 30 165 739
S.T. 611 ,915
-235 . 000 Shipped May 3, 6
Bal
15May 7 76.951
-453 , 866
- 164.000 Shipped May 11, 13
Bal 289,866 -
May 13 93,246
May 21 4
_343,678' -
3̂4 000 Shipped May 27
Bal 509,678
May 28 17 535
-68 1
-250,000 Shipped June 2, 7
Bal 7 1,213
June 4 12 8.195
- 150.000 Shipped June 10
Bal
June 11 ^3 293
22,701
-100.000 Shipped Juno 15
Bat 4T2
June 18 1 13 ,70p0
536,401
-200.000 Shipped June 22, 28
Bal 336,401
June 25 8 9 .350
725 95 1
.0 000 Shipped July 1
July 2
Bal
1
4_ D
- 00, 00O0 Shipped July 7
July 9
Bal
$
118.885
53 1 6
=H
Shipped July 18
Bal 6,966
July 16 18.300
- ,455 266
-100 ,000 Shipped July 23
Bal
,1July 23 50042
July 30 138.875
636,641
Shipped Aug.10
Bal 361,641
499
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attachment III -- Continued
Bandoliers Produced (Da tes of Shipments)
Bat B.F . 361,641
Aug. 6 147,850
Aug. 13 1 4.400
- -- ---643 ,S91
000-225 Shipped Aug. 19
Bat 41 0891
Aug-20 14680
5 63, .
.^ Shipped Aug-26, 31
Bat 305,741
Aug. 27
016452
06655
,
'Jo
Shipped Sept. 2
Bat 36-g,
Sept. 3 1 30,4Z5
5 17,491
ept 10
Bat
00 500
Shipped Sept. 12
.
6 70991
0 Shipped Sept. 15
Bat 167, 1
Sept. 17 65.100
- 74.000 Shipped Sept. 23
Bat 59,091
Sept. 24 17
1
000 Shippped Sept. 26
Bat 303,601 (unidentified stages of completion)
NOVELTY PRODUCTS CO.
Attachment IV
Comparison of Tapes Recd & Bandon Shipped
(Ten days allowed for processing acid date disputes)
Tapes cut Shipments
(Inventory& Recce
Inv. 12/31/65 45,823
12/31 /65 1,162:856
January ' 111,375 (E)
121.500 (E)
Total 1,441, 4
-1,275,000 Until March 16
Bal 4
3/8/65 101 2 50 (E)0
-125 000 Shipped March 21
B 1a 142:804
W16/65 70,875 (E)
3/24/65 43,875 (E)
3/24/65 23,625 (E
3/29/65 1573,375 (E
4/1/65 43,875 (( E]]]]]]
4/1/65 180.090 (A)
-Total 362,519
-1000 Shipped April 12i-14
B 1
4747 -'45,360 (E)
Total_ 507,879
-150 000 Shipped April 20, 22
Bal' 357: 979
413 40,500 (E)
4/14/65 30 375 (E)
Total 42 4
-100.000 Shipped April 26
Bal 32854
4/20/65 12,960 (E)
4/21/65 45,360 (E)
4/22/65 38 880 (E)
Total 425,954
-235.000 6Shipped May 3
Bal 190,954
,
4/27/65 12,960 (E)
4/28/65 45.360 (E)
249,274
-.164 000 Shipped May 11 13
Bal
,
5/2/65 38,880 (E)
5/5/65 12,960 (E)
5/6/65 19,440 (E)
5/9/65 16,200 (A)
5/10/65 57,840 (E)
5/11/65 20,250 (A)
5/13/65 58 320 (E)
Total 303, 4
34 000 Shipped May 27
BaL 2
501
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Attachment IV -- Continued
u Sh iume nt s
(Inventory S Rec d
269,t64
5/16/65 28:620 (A)
5/17/65 45,360 (E))
5/19/65 12,042 (A)
5/20/65 (E
Total ,
-250.000 Shipped June 2, 7
Bal
-- -
169,986
5T2 4T6 5 40,284 (A)
5/25/65 32,400 E
E5/2t65 88,550
Total 281,550
-150.000 Shipped June 10
Bat 13 ,,550
5/31/65 25,920 (E)
6 5 A
6%6%65 28 . 125 t
Total 243,024
-429-090 Shipped June 15
Bal 143,024
6/7/65 32,400 (E
6/7/65 40,878 (A
6/10/65 40,338 (A
6/10/65 36.270 (E
Total 292,910 (6/22 Controversy Settled)
50.000 Shipped June 22
Bal 242 ,9 0 (June 24 - Alt. Tape Auth'd and
^4 36,450 A) went into operation in July)
616/65
6/17/65 333.480 (E^
349,290
-150.000 Shipped June 28
1 199,290
6/20/65 12.960 (E)
Total 212,250
-50.000 Shipped July 1
Bal 162,250
6/22/65 33,048 4A
6/23/65 41,148 (A
6/24/65 40 . 770 (E
277,2 16
100 000 Shipped July 7
628 Bjql
17796 A)
6/30/65 42,228 (A
7/1/65 64 170 (E^
332,592
-100,000 Shipped July 18
Bbl 232 ,592
7/12/65 57.18678 (A)
Total ,7i
-1g0,000 Shipped July 23
Bal 1 89 9 778
NOVELTY PRODUCTS CO.
Attachment IV -- Continued
TM pas cut
(Inventory & Rer
B
^
Bal
s5
7/15/65
7/19/65
7/20/65
7/22/65
7/26/65
7/29/65
7/29/65
Total
B 1
8 47 5
8/5/65
8/5/65
8/9/65
Total
Bal
8/ 12/65
8/16/65
5/19/65
8/19/65
Total
189,778
41,094 (A
33,480 (E
27,900 (E
61,209 (A
66,960 (E
49,167 (A
42,849 (A
66 . 960 (E
-5799 -39 7
04,397
3,39^
36,450 (A)
37,476 (A)
72,540 (E)
36.693 (A)
487,556
^^
72,000 (E)
36,828 (A
36,666 ((A
4725400 (E
Shigts
Shipped Aug. 10
Shipped Aug. 19
503
__26 0̂.,0000__ Shipped Aug. 26, 31
B-ai 22 0,590
65 000 Shipped Sept. 2
Bal 155,5
8/23
8/24/65
8/26/65
8/26/65
8/31/65
9/1/65
41,229 (A)
64,170 (E
58,590 (E
37,584 (A)
50,720 (A
36 20 )
444,103
-194,03 Shipped Sept. 12
Bal 294,11 3
- 300 . 00 (Shipped Sept. 15)
97
59/8/06 42 948) (A)
-(
5
/
37051
.9 14 65 37 854 (A)
R al 74390 5
-174 000 (Shipped Sept. 23)
Bal
W
-990
^9 55T
,
34 ,Z63 ) (A)
Ne Sal -64, 8 32 (
50,220 (E)
9/22/65 37.557 (A)
Bal 22,945
-26.000 Shipped Sept. 26
-3,055