Polymer Prints Ltd

National Labor Relations Board - Board Decisions

Sep 10, 1986

281 N.L.R.B. 431 (N.L.R.B. 1986)

POLYMER PRINTS
Polymer Prints Ltd. formerly known as Subliflex,
Inc. and Knitgoods Workers Union, Local 155,
International Ladies' Garment Workers' Union,
AFL-CIO and United Production Workers
Union Local 17-18, Party in Interest
Polymer Prints Ltd. and Knitgoods Workers Union,
Local 155, International Ladies' Garment
Workers' Union, AFL-CIO and Joel Gervaes
and Sam Stepensky. Cases 29-CA-10491, 29-
CA-11183, 29-CA-11204, and 29-CA-11260
10 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 29 April 1985 Administrative Law Judge
James F. Morton issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, fmdings,1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Polymer
Prints Ltd., Brooklyn, New York, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wal/ Products, 91 NLRB 544 (1950), enfd. 188 F .2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
Although the outcome of the 23 June 1983 election is unaffected, we
note that the revised tally of ballots, issued 4 October 1983, indicates that
the original tally showed four votes cast for Local 155 , none for Local
17-18, three against both labor organizations, and three determinative
challenged ballots.
Because we agree with the judge that the Respondent violated Sec.
8(a)(4) and (1) of the Act by reducing the work hours of Joel Gervaes
and Maxo Toussaint for appearing as witnesses 22 February 1984 to give
testimony under the Act and by constructively discharging Maxo Tous-
saint 26 March 1984 for the same reason , we need not pass on whether
the Respondent's conduct also violated Sec. 8(aX3).
Elias Feuer, Esq., for the General Counsel.
Chuck Ellman (Industrial Labor Relations Consultants), of
East Orange, New Jersey , for the Respondent.
Stanley L. Goodman, Esq. (Chaiken & Chaiken), New
York, New York, for the Union.
DECISION
431
STATEMENT OF THE CASE
JAMES F . MORTON, Administrative Law Judge. The
pleadings, as amended, in these consolidated . cases,
present for resolution whether Polymer Prints Ltd. (Re-
spondent) has violated the National Labor Relations Act
(the Act). Specifically, the issues are whether Respond-
ent:
(1) In violation of Section 8(a)(1) of the Act, unlawful-
ly interrogated its employees about their support for
Knitgoods Workers Union , Local 155 , International
Ladies' Garment Workers' Union, AFL-CIO (Local
155) during April and May 1983 and in May 1984.
(2) In violation of Section 8(a)(1) of the Act, threat-
ened its employees in April and May 1983 with more on-
erous working conditions , with discharge , with plant clo-
sure, and other reprisals, in order to discourage them
from supporting Local 155.
(3) In violation of Section 8(aXl) of the Act, promised
benefits to its employees to induce them not to support
Local 155.
(4) In violation of Section 8(a)(1) and (2) of the Act,
through alleged supervisor and agent, Mendel Weiss, so-
licited its employees in May 1983 to sign authorization
cards for Union Production Workers Union , Local 17-18
(Local 17-18).
(5) In violation of Section 8(a)(1) and (3) of the Act,
discharged four employees to discourage support for
Local 155.
(6) In violation of Section 8(a)(1), (3), and (4) of the
Act, reduced the working hours of two employees in
early 1984 and of a third employee in May 1984.
(7) In violation of Section 8(a)(1), (3), and (4) of the
Act, constructively discharged an employee , on March
26, 1984.
(8) In violation of Section 8(a)(1) of the Act, unlawful-
ly interrogated an employee about his support for Local
155 under the guise of questioning him in preparation for
the hearing in this case.
On the entire record,' including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent has been engaged at its plant in Brooklyn,
New York, in the business of manufacturing custom
prints used principally in the garment industry. Its oper-
ations meet the Board 's nonretail jurisdiction standard.
1 The General Counsel's unopposed motion to substitute the correct
document as G.C. Exh. 25, in lieu of the one listed through inadvertent
error, is granted . Further , the document marked as G.C. Exh. 11-B is
corrected so that it is in evidence as G.C. Exh. 7-B.
Incidentally the transcript at p. 1270 , L. 17 does not reflect that the
witness' answer to the question , at L. 14, begins with the sentence read-
ing, "Let me explain." The letter A, for answer , should be inserted imme-
diately in front of that sentence.
281 NLRB No. 68
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pleadings, as amended, establish that Local 155
and Local 17- 18 are labor organizations as defined in
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Outline of the Case
In April 1983 , Local 155 began an organizational
effort among the approximately 12 employees then work-
ing for Respondent. Respondent's name at the time was
Subliflex, Inc. (Subliflex).
A few days after Local 155 made its appearance,
Mendel Weiss distributed Local 17- 18 authorization
cards to his coworkers and urged them to support it as
the "better union ." The General Counsel contends that
Weiss was Respondent's agent and that Respondent
thereby unlawfully assisted Local 17-18. Respondent as-
serts that Weiss was then a nonsupervisory printing ma-
chine operator and not its agent.
The General Counsel alleges that acts of unlawful in-
terrogation, threats , and promises of benefits by Re-
spondent's officials occurred in the spring of 1983. The
merits, or lack thereof, of those allegations depend on
credibility resolutions on the conflicting testimony of-
fered.
The General Counsel further alleges that four employ-
ees were laid off on May 20 , 1983, to discourage support
for Local 155. Respondent asserts that those layoffs were
brought about solely because of economic conditions. In
addition , Respondent specifically disputes the General
Counsel's contention that Sam Stepensky, one of the four
employees laid off, had signed a Local 155 authorization
card before his layoff or that he was otherwise acting for
Local 155.
Local 155 filed a petition (Case 29-RC-5934) for an
election among Respondent's employees . Local 17-18 in-
tervened . In the election held on June 23, 1983, four em-
ployees voted for Local 155, none voted for Local 17-
18; and there were six challenged ballots, which were
obviously determinative of the results . A revised tally of
ballots was issued on October 4, 1983 ; it disclosed that
three of the challenged ballots had been opened and
counted and that all three of those ballots had been cast
for Local 155. Thus, a majority of the valid votes were
for Local 155 . Local 155 has since been certified as the
bargaining representative of Respondent 's employees.
The complaint in Case 29-CA- 10491 had issued on
July 13, 1983. The hearing in that case opened before me
on February 22, 1984, and adjourned several times for
various reasons. Meanwhile, a complaint had issued in
Cases 29-CA-11183 and 29-CA-11204 and a separate
complaint had issued in Case 29-CA-11260. Those three
cases ultimately were consolidated before me with the
original case, Case 29-CA-10491. The pleadings in those
three cases , Cases 29-CA-11183, 29-CA- 11204, and 29-
CA-11260, presented for resolution the issues number
heretofore as issues 6, 7, and 8.2
Y Other violations had been alleged but they were withdrawn when I
granted the General Counsel 's unopposed motion thereon . One of the
withdrawn allegations was that Joel Gervaes had been discnminatonly
discharged in mid- 1984, one of the issues discussed in this decision in-
The hearing in these four consolidated cases closed on
November 5, 1984.
B. Alleged Unlawful Interrogation, Threats, and
Promises in 1983
The General Counsel called three witnesses who testi-
fied concerning various alleged unlawful acts of Re-
spondent committed in 1983 , separate from the matter of
the layoff of four employees on May 20 of that year. The
testimony respecting alleged interrogation, threats, and
promises by each of those three witnesses is discussed
below.
1. Alleged unlawful interrogation of Sam Stepensky
The General Counsel 's first witness, Sam Stepensky,
was asked on direct examination if Respondent's plant
manager in 1983, Rizard (Rich) Petecki, had ever talked
with him about Local 155 . Stepensky replied that he did
not remember and that he knew that Petecki "talked
with (two other employees) . . . but we did not talk."
Stepensky continued his account by stating , "[a]fter two
days, he asked me Sam, are you going to-I said no, I
not sign."
Petecki was not called as a witness . Respondent's
counsel stated at the hearing that Petecki was out of the
country.
I am not persuaded by Stepensky 's confused , apparent-
ly contradictory and conclusory account that he was
ever asked by Petecki if he supported Local 155 or
signed a Local 155 authorization card . It is well estab-
lished that self-serving statements need not be treated as
conclusive even if not contradicted by direct evidence.
See David's, 271 NLRB 536 fn. 17 (1984).
2. Alleged unlawful interrogation of, and promises,
threats, and other statements to Maxo Toussaint
The General Counsel's witness, Maxo Toussaint, was
called to testify respecting conversations he allegedly
had with Plant Manager Petecki in 1983.
Toussaint testified that Petecki asked him if he signed
a card for Local 155 and that he told Petecki he did not.
He testified also that three other employees (Stepensky,
Joel Gervaes, and one named Michael) were present then
and that they all informed Petecki that they did not
bring in Local 155. Toussaint had great difficulty setting
the date of that discussion and finally placed it in mid-
May 1983. Stepensky and Gervaes testified for the Gen-
eral Counsel but they did not corroborate Toussaint's
testimony.
The quality of Toussaint's account leaves much to be
desired for purposes of credibility and the absence of
corroborative evidence concerning his account, when it
apparently was readily available, places a further cloud
on it. I find that the General Counsel has not sustained
the burden of persuading me that Petecki unlawfully in-
terrogated Toussaint and other employees in May 1983.
Toussaint testified about another conversation he alleg-
edly had with Petecki. His account was very confused
volved an alleged discriminatory reduction in his work hours several
months before his discharge then
POLYMER PRINTS
and disjointed . It touches on areas of alleged unlawful in-
terrogation, an unlawful promise of a wage increase, and
a threat to discharge employees . Again, I am unable to
find his account credible notwithstanding that Petecki
did not appear as a witness to controvert it. In evaluat-
ing Toussaint 's account, I have considered that he testi-
fied through an interpreter and that may account for
some of his difficulty but not all. For example, at one
point, he related that he and another employee were
talking with Petecki about Local 155 in Petecki's car;
suddenly, he began testifying about a conversation he
had with Mendel Weiss . It is not clear whether he was
testifying that Weiss was in the car also but the tenor of
the General Counsel's questions indicate that he was not.
3. Alleged coercive statements to Fritza Noel
Noel was one of the four employees laid off in May
1983 for allegedly discriminatory reasons. She testified
that about 2 or 3 weeks after she signed an authorization
card for Local 155 in April 1983, Respondent's vice
president, Manny Miller, asked her if she knew what a
union is and told her that Respondent will be very strict
with its employees if the Union came in.
Miller testified for Respondent but did not controvert
Noel's account ; he did respond in the negative when
asked leading questions by Respondent's representative
whether he ever threatened to impose stricter work rules
and so on . I place no probative weight on such concluso-
ry statements. Instead , he testified that on one occasion
Noel told him that she would get vacation pay if Local
155 got in.
In any event , I find Noel's account credible and I
would be disinclined to accept denials thereof by Miller
in view of the equivocal testimony he gave on other
points.
I also credit Noel's uncontroverted testimony that, in
two other conversations, Miller (1) told her to go to
Local 155 for help when she complained to him about a
difficult work assignment he gave her and (2 ) asked her,
when Local 155 representatives appeared at the plant to
request recognition from Respondent, if she recognized
any of those representatives from "her" union.
C. Alleged Unlawful Assistance to Local 17-18
Several days after Local 155 began its organizational
effort in April 1983, Mendel Weiss urged employees to
join and support Local 17-18 as the "better" Union.
The primary contention of the General Counsel is that
Weiss then was a supervisor and that Respondent, by
Weiss ' solicitation, unlawfully gave assistance to Local
17-18 . The General Counsel separately offered circum-
stantial evidence in an effort to show that Respondent
pressured employees into signing Local 17-18 cards.
Thus, Sam Stepensky testified , at one point , that Weiss
called him to the office and gave him a Local 17-18 card
to sign in the presence of Respondent 's president and
also its vice president. Respondent's witnesses denied af-
fording any assistance to Local 17-18. I do not credit
Stepensky's account as it was inconsistent and confused.
For example, he testified that he signed a Local 17-18
card 2 days before his layoff; his Local 17-18 card was
433
dated over a month prior to his layoff . I turn now to
whether Weiss solicited Local 17-18 cards as Respond-
ent's agent.
In April 1983 , Weiss operated Respondent 's printing
machine with a helper . Stepensky testified for the Gener-
al Counsel that Weiss then "was a worker." Weiss'
helper, Gervaes, testified that he got his instructions
from Weiss and that Weiss told him whenever there was
overtime work for him to do . Another employee, Tous-
saint (also an alleged discriminatee) testified that he con-
sidered Weiss a "boss" in 1983 because Weiss gave
"orders" to employees.
Weiss testified that in 1983 he told his helper to work
overtime on those occasions when the plant manager
then ordered overtime work . Weiss denied that he pos-
sessed any of the indicia of supervisory authority as set
out in Section 2(11) of the Act. He had been in Respond-
ent's employ then for 1 -1/2 years, was hourly paid, and
punched a timecard as did the other approximately 12
employees . A full-time manager was present in the plant
every day; Respondent 's vice president also spent 40 per-
cent of his working time inside the plant.
There is no probative evidence that in 1983 Weiss had
authority to use independent judgment in assigning work
to employees . At best, in his capacity as the operator of
Respondent 's printing machine , Weiss routinely relayed
orders given him by the plant manager . In the absence of
any evidence , I find that he was not then a supervisor as
defined in the Act and that there is no evidence that he
had apparent or other authority to act on behalf of Re-
spondent in soliciting Local 17-18 cards. See Soil Engi-
neering Co., 269 NLRB 55 (1984), in which the Board ex-
pressly recognized the nonsupervisory status of machine
printers, such as Weiss, as it had been done in Southern
Bleachery Works, 115 NLRB 787, 791 (1956). I therefore
find that the General Counsel has not sustained the
burden of demonstrating that Weiss was an agent of Re-
spondent in 1983 and that Respondent did not render un-
lawful assistance to Local 17-18.
D. Alleged Discriminatory Layoff ofFour Employees
1. Their union activities and Respondent's
knowledge thereof
On May 20, 1983 , Respondent laid off Sam Stepensky,
Joel Gervaes, Fritza Noel , and Maria Toussaint. The
General Counsel asserts that they were laid off to dis-
courage employee support of Local 155.
Stepensky testified that he signed a Local 155 card on
April 8, 1983, and, in particular, that he wrote that date
on his card on that same day. During a voir dire exami-
nation, he testified that maybe he changed the pen while
filling out the card when he was asked to explain the fact
that a different ink was used to write in the date. Re-
spondent's handwriting expert testified that he compared
Stepensky's handwriting with the disputed date and con-
cluded that the date was not in Stepensky 's handwriting.
The General Counsel called a Local 155 business rep-
resentative, Ramonita Guzman , to corroborate Ste-
pensky's testimony that he dated the card on April 8,
1983. Her testimony appeared to be contradictory about
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where Stepensky signed his card . Initially , she testified
that he signed it in her car and later she testified she did
not remember where he signed it. Her account appeared
to be contradictory on another matter , about when she
first met Stepensky.
I am not persuaded that Stepensky signed his Local
155 card prior to his layoff or that he was otherwise
active for Local 155 before his layoff. The General
Counsel's brief states that Respondent's witnesses con-
ceded that Respondent knew before Stepensky 's layoff
that he supported Local 155. The transcript references
relied on by the General Counsel for this proposition do
not support it.
Another of the laid-off employees , Joel Gervaes, testi-
fied he signed his Local 155 card on the date shown
then, April 8, 1983 . There was no testimony that Re-
spondent was aware of that fact.
The third alleged discriminatee, Fritza Noel , signed a
Local 155 authorization card on April 8. As noted previ-
ously, Respondent's vice president had three discussions
with her about Local 155; in the third one, he said that
the Local 155 representatives were from "her" Union.
The fourth laid-off employee , Maria Toussaint, was
not active for Local 155 in any way.
2. The layoffs on May 20, related considerations,
and recalls
On May 20, Respondent laid off Sam Stepensky, Joel
Gervaes, Fritza Noel, and Maria Toussaint.
Stepensky was told by Respondent's president that he
might be called back in 6 months and he was offered "a
few dollars," as he put it, to enable him to find another
job. The actual amount he received was $700. Another
$300 would have been paid him but, as he conceded, he
did not return to Respondent to accept that $300. He
was recalled to work on March 27, 1984, when a job va-
cancy occurred , as discussed in a separate section below.
Joel Gervaes had been hired only about 6 weeks
before May 20. He worked as a helper, performing
cleaning work for the most part. When laid off, he was
told by Respondent's plant manager that he would be
given a good reference. Gervaes was also given a $50
"bonus" when laid off. He was rehired on July 20,
having been sent back to Respondent by Local 155 when
a job vacancy appeared.
Fritza Noel worked as a samplemaker and Maria
Toussaint helped her. They have not been recalled; Re-
spondent asserts it discontinued its samplemaking depart-
ment, which had been composed of those two employ-
ees.
The General Counsel asserts that two new employees
were hired by Respondent after May 20. The first of
those two employees replaced an employee who was
skilled in mixing printing inks and, when that new em-
ployee later quit , the second new employee replaced
him. There is no contention that new employees were
hired as replacements for the four laid off on May 20.
As of the date of the hearing in this case , Respondent's
work force had been reduced to five employees; in early
1983, Respondent had about 13 employees. The General
Counsel states in his brief that Respondent 's payroll
records show that its gross payroll did not diminish. As
best as I can discern from the records in evidence, that
statement is not accurate or it requires some explication
to which the General Counsel may be privy but to
which I am not.
In the General Counsel's brief, there is the statement
that, a Stipulation for Certification Upon Consent Elec-
tion (in Case 29-RC-5934) was executed on May 20,
1983, by Respondent , Local 155 and Local 17-18 and
that, within hours, "Respondent implemented a mass dis-
charge," referring to the layoff of the four employees
named above . There is nothing in the record before me
to confirm that a Stipulation for Certification was signed
on May 20; there is an exhibit showing that the petition
in Case 29-RC-5934 had been filed on May 13 by Local
155. Although the Board may take official notice of its
own records , I do not think it is fair to draw any infer-
ences if the stipulation was signed on May 20 as there
may have been explanations for any coincidences. In that
regard, see Seafarers Pacific District (American Pacific),
252 NLRB 736 (1980).
Respondent's plant manager in 1983, Rich Petecki, had
hired Joel Gervaes in April, as earlier noted; he also had
hired Maria Toussaint in March 1983 . He told Fritza
Noel then that business was good and that there was
going to be a lot of work. Up to May 20, employees fre-
quently worked overtime.
Respondent 's president testified that he left the active
management of Respondent's affairs in 1980 when he
moved his family to Israel . He returned in April or May
1983 to effect the changes discussed in the next subsec-
tion.
3. Respondent's economic defense
Respondent placed in evidence financial statements for
the years 1978-1983 prepared by its accountants. These
show:
Year Approx. Profit (Loss)
1978 $ 30,000
1979 30,000
1980 30,000
1981 (227,000)
1982 (224,000)
1983 (300,000)
Respondent 's president testified that, on his return in
the spring of 1983, he decided to, and did , effect cost re-
ductions by discontinuing samplemaking (thereby laying
off its samplemakers , Fritza Noel and Maria Toussaint);
by laying off its rewinding machine operator (Stepensky)
who was disinclined to do other type work and whose
rewinding function did not occupy him full time; by
laying off a cleanup employee (Gervaes); by discontinu-
ing automobile leases for management personnel and ef-
fecting related economics (e.g., it bought cheaper pro-
duction paper); and by moving away gradually from heat
transfer printing to box printing, resulting in the elimina-
tion of rewind costs and the elimination of expensive ink-
color matching. I note that on one occasion, as Ste-
pensky acknowledged , he had informed Respondent's
plant manager that he would work on the printing ma-
chine only in emergencies ; that testimony tends to cor-
POLYMER PRINTS
roborate the testimony of Respondent 's president that
Stepensky was not inclined to do other than rewind
work.
Stepensky was recalled in 1984 under circumstances
discussed separately below.
Gervaes was reinstated in July 1983 after Local 155
referred him back to work.
The General Counsel asserts that the financial state-
ments placed in evidence by Respondent cannot be relied
on as they were unaudited and suspect . The General
Counsel's brief then states that Respondent's 1981 operat-
ing statement "obscured entries which certified the
$102,171 loss to show a $16,000 profit " and that the ex-
planation proferred by Respondent's president "for the
discrepancy was that the profit may have been created to
secure a bank loan." There is no factual basis to support
those assertions . Respondent's president testified that he
had no idea who penciled the entries on the exhibit in
question (G.C. Exh . 21), or what they refer to. He stated
unequivocally that it was an "absolute lie" to state that
those notations indicate "a nine thousand dollar profit."
The General Counsel notes that Respondent claimed a
1982 tax loss of only half the $228,573 loss shown on its
1982 financial statement and further notes that Respond-
ent "never explained this discrepancy ." I am not sure it
is a discrepancy ; the reason why the full amount was not
claimed as a loss may have to do with provisions of the
tax code. In any event, for purposes of this case, half a
loss ($114,000) is enough to demonstrate economic
duress.
Concerning the 1983 financial statement , the General
Counsel observes that "[s]uspicion is immediately cast
upon this claim" and proceeds to restructure the state-
ment by pointing to other factors , such as entries on Re-
spondent's ledger sheets. The General Counsel asserts
that Respondent 's 1982 Federal income tax return shows
that Respondent "claims it cost $574,000 to produce
$509,000 in goods." That tax return shows gross receipts
of $619,441, less returns and allowances of $111 ,366, for
an adjusted gross of $508,075 . I do not find that suspi-
cious. Even if it were, it is axiomatic that suspicions are
no substitute for evidence.
The General Counsel's brief lays out a series of con-
tentions purporting to show that Respondent's 1983 tax
return contains clear errors , requiring ready correction,
including "one correction [which] reduces the claimed
loss from $211 ,032 to $23,197." The evidence in the
record before me is entirely inadequate to permit me to
adopt that argument and to thereby "correct" Respond-
ent's 1983 Federal income tax return .-Before I could
begin to undertake such an audit , I would need guidance
in the way of expert testimony on the significance of the
entries on that tax return and how they relate to each
other. I cannot accept the General Counsel's analysis in
lieu of such testimony.
The one point that is obvious is that the General
Counsel has not demonstrated that Respondent 's claim,
about its being in financial straits, is clearly a pretext.
The General Counsel sought to establish that Re-
spondent "created Polymer Rollers Ltd. [early ] in 1983"
as stated in his brief and argues that its operations should
be considered in evaluating Respondent 's economic de-
435
fense. Suffice it to say that there is no evidence that Re-
spondent owns or controls Polymer Rollers.
4. Analysis
The credited evidence discloses that, of the four em-
ployees laid off on May 20 , only two had signed Local
155 cards prior to that date (Gervaes and Noel); that Re-
spondent had knowledge that Noel supported Local 155,
as is evident from her discussion with Respondent's vice
president Miller; and that the timing of the layoffs was
suspicious inasmuch as Local 155 had filed the petition in
Case 2-RC-5934 only a week previously and at a time
when the statement of Respondent's plant manager then
(Petecki) indicated that business was expanding. Re-
spondent's operations appear not to have been profitable
for some time. In any event , the General Counsel has not
satisfied me that Respondent was not losing money in its
operations and that its reasons for reducing its work
force was clearly pretextual . Further, Respondent's offer
of $1000 to Stepensky to assist him while he searched for
other employment negates any inferences of unlawful
motivation on its part as does its recall of Gervaes at the
first opening it had.
Based on the credibility resolutions made above, I find
that the General Counsel has not made out a prima facie
case against Respondent in its having laid off these four
employees on May 20 . Even were a prima facie case es-
tablished, I would further find that Respondent has come
forward with sufficient evidence to rebut any warranted
inference of unlawful motivation that might be shown
and that thus the General Counsel has failed to establish,
by a preponderance of the evidence, that the layoffs
were discriminatorily motivated . Cf. Eagle Headers, 273
NLRB 1486 (1985).
E. Alleged Discriminatory Reduction in Working
Hours
The General Counsel contends that , starting February
22, 1984, Respondent reduced the work hours of Joel
Gervaes and Maxo Toussaint because they had been
present to give testimony at the hearing in this case
when it opened on that date.
As noted earlier, Gervaes began working for Respond-
ent in April 1983 , was laid off on May 20 , 1983, and was
recalled to work in July 1983. On February 22, 1984, he
and Maxo Toussaint (also in Respondent's employ, then)
were present in the hearing room in the instant case, pur-
suant to subpoenas served by the General Counsel. The
hearing was recessed early that day as Respondent had
but recently retained Ellman as its representative.
Gervaes testified about other issues in this case but did
not testify concerning the alleged discriminatory reduc-
tion in his working hours . Maxo Toussaint did. His ac-
count is as follows . He and Gervaes reported for work
on the afternoon of February 22, after the hearing in this
case had been adjourned . Respondent's plant manager
then, Mendel Weiss, told both of them to go home. They
left and returned the following day. They were assigned
to operate the rewind machine-where Toussaint had
been assigned previously . Two less senior employees
were operating the rewind machine when Toussaint left
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on February 23. On Monday, February 28 Tous-
saint and Gervaes worked until 4 p.m. when Weiss told
them to go home. Again, two less senior employees were
working on the rewind machine when Toussaint and
Gervaes left work that day. On the following day, Weiss
told Gervaes and then Toussaint to leave work at 4 p.m.
Weiss told "us" that "[t]his is the union law," and told
him that "the union law says that [he, Toussaint is] sup-
posed to work thirty five hours." Toussaint told him that
he is not in the Union yet but Weiss replied that he did
not care, that is the union law. Toussaint then saw Re-
spondent's president, Joe Reichman, and told him that he
wanted to work 40 hours but that Weiss told him he
could work only 35 hours. Reichman then told Weiss to
leave Toussaint alone and let him work 40 hours. Reich-
man also told Toussaint that he would not work over-
time. Toussaint thereafter, and until he left Respondent's
employ about a month later as discussed in a separate
section below, did not work on any Sunday. Prior to
February 22, Toussaint had worked "sometimes on
Sunday." Other employees, with less seniority, worked
on Sundays after February.
The General Counsel placed in evidence Respondent's
records concerning regular and overtime hours worked
each week. These disclose that (excluding Weiss, a cleri-
cal employee and the inkmixer), Respondent had four
production employees for some months before February
22, 1984, and until late March 1984-namely, Toussaint,
Gervaes, and two less senior employees, Pierre Auguste
and Jean Bernardin. Even a casual look at those records
reveals that overtime work was fairly evenly distributed
among those employees up to February 22 but, thereaf-
ter, there is a huge disparity between overtime worked
by Auguste and Bernardin and that worked by Toussaint
and Gervaes. For example, in the pay period ending Jan-
uary 11, 1984, all four each worked about 8 hours over-
time but, for the pay period ending February 22, 1984-
Auguste worked 31-1/2 hours overtime; Bernardin, 30-
1/4 hours overtime; Toussaint had no overtime; and Ger-
vaes had 8 hours overtime.
Weiss, who had been promoted to production manager
in January 1984, testified for Respondent that he never
told Toussaint that union law limited him to a 35-hour
workweek. He testified further that he assigned more
overtime to Auguste and Bernardin because they were
more cooperative.
I credit Toussaint. His testimony respecting overtime
rings true. It is unlikely that he fabricated his account as
he did not impress me as being creative or as one who
would exert his efforts to such end. More significantly,
Respondent's payroll records show such a disparity in
overtime assignments when those for pay periods before
February 22 are compared with those after. Clearly
those records support Toussaint's testimony. Weiss' ex-
planation as to that disparity is simply that Auguste and
Bernardin were more cooperative than Toussaint and
Gervaes. The payroll records demonstrate that Weiss
learned on February 22 that Gervaes and Toussaint were
less "cooperative" and that was the first day of the hear-
ing before me where they presented themselves as the
General Counsel's witnesses. I am left with the clear in-
ference that, had they not been before me as witnesses,
they would have been considered to be cooperative and
would have continued to enjoy a fair share of overtime
works I find, therefore, that they were denied overtime
because they were present in the hearing room in this
case on February 22 as witnesses to be called by the
General Counsel.
F. Alleged Constructive Discharge of Toussaint
Toussaint testified that he quit Respondent's employ
on March 21, 1984, because he learned from taunts made
to him by junior production workers, Auguste and Ber-
nardin, that they were working overtime and he was not.
He testified he complained to Respondent's president
Reichman about their taunts who then would tell these
two employees that, if they did not stop making such re-
marks, they would be discharged. Toussaint testified that
he would not have quit had he received overtime as did
Auguste and Bernardin.
Toussaint testified that he told Respondent's president,
Joe Reichman, that he had responsibilities that he could
not meet on the hours of work assigned to him and that
he was quitting. He testified further that Reichman said
he would give him some money and that, several days
later, Respondent's vice president, Miller, gave him a
paper to sign and gave him $4200 "as a gift." Toussaint
related that he signed "papers" but did not read them as
he does not understand English. The "papers" he signed
were notarized and read as follows:
On this date I herein resign my position as an em-
ployee of Polymer Prints, Ltd. of my own free will
and accord
I have received four thousand dollars ($4,000.00) as
severance pay which is in full settlement of any and
all outstanding claims or debts I may have against
Polymer Prints, Ltd., its stockholders, officers, di-
rectors and agents.
Polymer Prints, Ltd. has not promised, coerced,
threatened or threatened me to resign my position.
/s/Maxo Toussaint
Maxo Toussaint
Respondent's vice president, Miller, testified on other
matters but did not refer to any discussion he had with
Toussaint respecting the signing by Toussaint of the
March 26 statement.
In a very recent decision, J.R.R. Realty Co., 273
NLRB 1523 (1985), the Board declined to fmd that em-
ployees voluntarily quit their employment by signing set-
8 As discussed in a later subsection of this decision, the General Coun-
sel sought to establish that the work hours of a third employee, Sam Ste-
pensky, were also discrumnatordy reduced later in 1984 . One of the fac-
tors considered in resolving that issue was Stepensky 's apparent reluc-
tance to do work other than rewinding . There is no evidence that Ger-
vaes or Toussaint were unwilling to work on the printing machine or on
any operation. Respondent contends that Gervaes unilaterally decided
about February 16, 1984, to leave the plant on his own about 4 p.m. each
day. I reject that contention . If an employee leaves work because his su-
pervisor tells him he cannot work longer because of the Union, he hardly
can be said to have acted unilaterally.
POLYMER PRINTS
Clement agreements4 whereby they purportedly gave up
their jobs in exchange for cash payments . The Board
adopted Administrative Law Judge Cohn 's opinion that
those agreements "were not really voluntary since it was
clear from the evidence that the employees desired con-
tinued employment and were forced to take these
amounts as an alternative ." I turn now to the merits of
the General Counsel's claim , i.e., whether Toussaint was
constructively discharged.
As previously found , Respondent reduced Toussaint's
weekly earnings because he had appeared at the hearing
as the General Counsel 's witness . By his uncontroverted
account, he informed Respondent that he could not dis-
charge his family responsibilities if Respondent continued
to withhold overtime from him. Respondent made no
effort to redress its wrong but compounded it by seizing
upon Toussaint's financial difficulties; it made an offer he
could not refuse.
As the Board observed in Algreco Sportswear Co., 271
NLRB 499 (1984), two elements must be proved to es-
tablish a constructive discharge:
First, the burdens imposed upon the employee must
cause, and be intended to cause, a change in his
working conditions so difficult or unpleasant as to
force him to resign. Second, it must be shown that
those burdens were imposed (for discriminatory rea-
sons).
The Board considered this very issue in the context of
a factual situation which substantially parallels the facts
found in the instant case concerning Toussaint . Heck's
Properties, 264 NLRB 501, 505 (1982). See also Auto Fast
Freight, 272 NLRB 561 (1984). Based on those holdings,
I find that the material reduction in Toussaint's work
hours and correspondingly in his earnings was intended
by Respondent to force him to quit and that Respondent
reduced his wages in retaliation against Toussaint's
having appeared as a witness to testify in the hearing in
this case. Therefore, Toussaint had been constructively
discharged on March 26, 1984, because he appeared
before me to give testimony under the Act. I do not,
however, find merit to the General Counsel's separate al-
legation that Respondent discriminated against Toussaint
because of his activities on behalf of Local 155. In that
regard, see Heck 's Properties, supra at 505 fn. 19.
G. Alleged Unlawful Interrogation by Respondent's
Representative
During the cross-examination of Sam Stepensky at the
outset of the hearing, he was asked by Respondent's trial
representative , Ellman, whether he had told El man,
prior to the hearing, that he had not signed a card for
Local 155 before his alleged discriminatory layoff in
1983 , discussed above . The complaint was amended,
during one of the lengthy recesses in this case , to allege,
inter alia, that Respondent, by reasons of Ellman's pre-
hearing discussion with Stepensky, violated Section
8(a)(1) of the Act. In support thereof, Stepensky testified
* Incidentally, the $4000 given Toussaint may well have been in satis-
faction of an FLSA action, settled about the same time.
437
that Ellman asked him if he had told Respondent 's presi-
dent that he signed a Local 155 authorization card after
his layoff. Stepensky testified that he responded that that
was not true.
Ellman testified for Respondent that, on March 27,
1984, he interviewed Stepensky in preparation for the
hearing in this case . Ellman testified that he told him the
purpose of the interview, assured him that his coopera-
tion was voluntary, that there would be no effect on his
employment status about what he said or if he declined
to cooperate . According to Ellman , Stepensky said he
understood these comments and agreed to discuss the
issues. Ellman related that he and Stepensky then dis-
cussed the merits of the case . On cross-examination,
Ellman was asked for and produced long-hand notes
which he said he made in the course of his questioning
of Stepensky . Those notes corroborate Ellman. The Gen-
eral Counsel questioned Ellman about an apparent inden-
tation on the page containing those notes . The General
Counsel contends that that indentation reveals that
Ellman wrote those notes long after the interview he had
with Stepensky.
I have not found Stepensky 's testimony on other issues
to be reliable and see little basis to give his account any
greater weight now. Moreover , it is unlikely that El man
would have opened the door to this area , as he did in his
cross-examination of Stepensky, if he had coercively
questioned Stepensky in the first place . Respecting the
indentation that the General Counsel asserts exists on the
sheet containing Ellman 's purported notes of his inter-
view with Stepensky , I observe more than one impres-
sion on that page but am reluctant to take a quantum
leap to a conclusion that Ellman made those notes after
he cross-examined Stepensky , as the General Counsel as-
serts.
I find that the evidence is insufficient to enable me to
accept Stepensky 's account as more probably true.
Hence, I credit Ellman's.
H. Alleged Reduction in Stepensky 's Work Hours
Stepensky was recalled to work by Respondent on
March 27, 1984, as Toussaint's replacement . Preliminar-
ily, I note that the General Counsel does not concede, as
it did with respect to Gervaes , that Stepensky was rein-
stated to his former or equivalent position of employ-
ment . As I have found that Stepensky had not been dis-
criminatorily laid off on May 20 , 1983 , it is unnecessary
to determine whether he was recalled to the same or
equal job.
The General Counsel separately alleges that Ste-
pensky's work hours were reduced on and after April 30,
1984, because he testified on that date in this case.
Stepensky testified before me on April 30. He was
called again as the General Counsel's witness on August
9, 1984, to testify respecting the alleged unlawful reduc-
tion in his work hours. He related that, when he was re-
hired in March 1984, Respondent 's president talked to
him about his being paid on a cash basis . His testimony is
confused; it appears that there was some arrangement
whereby Stepensky was paid certain sums of money for
work and that no payroll records thereon were kept. It
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also appears that Stepensky was asking to be paid by
check, not in cash . In any event, it appears from his ac-
count that, after April 30, 1984 , he worked only 20 hours
to 30 hours a week or so, and that, prior to April 30, he
had worked longer hours each week . Stepensky's ac-
count is very disjointed . As best as I can surmise, he ap-
pears to have testified that, in the week after he testified
on March 30, 1984 , Respondent 's president gave him his
paycheck and said if he wants this, he has it. In context
the "it" seems to me to be a reference to the paycheck,
as Stepensky had been asking to be paid by check and
not in cash . Yet, the General Counsel 's brief offers a dif-
ferent explanation for the remark made by Respondent's
president. The General Counsel would have me infer
that Respondent was really telling Stepensky that, be-
cause he had testified against Respondent on August 9,
he was in effect asking for trouble and Respondent was
giving it to him by having reduced his work hours and,
correspondingly, his paycheck. I am not persuaded, on
the basis of the record before me, that such an inference
should be drawn.
Respondent's payroll records disclose that because he
returned to work on March 27 , 1984, Stepensky's work
hours were consistently lower than those of the other
employees . A random survey of Respondent 's records
discloses that, for that period ending April 4, 1984, Ste-
pensky worked 33-1/2 hours and that Auguste worked
47-1/2 hours; for the period ending April 25, Auguste
worked 16- 1/4 hours while Stepensky worked 6 ; for the
period ending May 23 , Auguste worked 36 hours and
Stepensky 26-3/4 ; for the period ending May 30, Au-
guste worked 44 hours, Stepensky 20. Stepensky ac-
knowledged that he, on one occasion, told Respondent's
former plant manager that he would work on the print-
ing machine only in an emergency.
Respondent 's current plant manager , Weiss, testified
that Stepensky 's work hours in 1984 corresponded to the
hours that the rewinding machine was in operation. Re-
spondent 's president testified that work on the rewinding
machine became less and less because Respondent was
changing its operations.
The evidence indicates that Stepensky was hired on
March 27, 1984, to replace Toussaint as the operator of
the rewinding machine and that that assignment did not
change . The reduction in Stepensky's work hours was at-
tributable to the change effected in Respondent 's oper-
ations, as its president testified, and not to the fact that
Stepensky testified before me on April 30, 1984.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 155 and Local 17-18 are labor organizations
as defined in Section 2(5) of the Act.
3. (a) Respondent violated Section 8(aXl) of the Act
by having, through its Vice President Manny Miller in
April 1983, unlawfully interrogated Fritza Noel about
Local 155, and threatened that stricter work rules would
be imposed if the employees selected Local 155 as their
representative.
(b) The other complaint allegations that Respondent
violated Section 8 (axl) by otherwise unlawfully interro-
gating its employees , by threatening them with reprisals,
by promising them benefits lack merit.
4. The complaint allegation that Respondent violated
Section 8(aXl) and (2) of the Act by unlawfully assisting
Local 17-18 lacks merit.
5. The complaint allegation that Respondent violated
Section 8(a)(l) and (3) of the Act by laying off four em-
ployees on May 20, 1983, to discourage support for
Local 155 lacks merit.
6. Respondent violated Section 8(axl) and (4) of the
Act by having reduced the work hours of Joel Gervaes
and Maxo Toussaint on and after February 22 , 1984, be-
cause they appeared as witnesses to give testimony under
the Act and by having constructively discharged Maxo
Toussaint on March 26, 1984, for that same reason.
7. The complaint allegation that Respondent violated
Section 8(a)(3) of the Act by having discharged Maxo
Toussaint to discourage membership in Local 155 lacks
merit.
8. The complaint allegation that Respondent violated
Section 8(a)(1), (3), and (4) of the Act by having reduced
the work hours of Sam Stepensky lack merit.
9. The violations of the Act as found above in para-
graphs 3(a) and 6 are unfair labor practices having an
effect on commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom and take certain affirmative
action deemed necessary to effectuate the policies of the
Act.
Having found that Respondent constructively dis-
charged Maxo Toussaint, it shall be recommended that
Respondent offer him immediate reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position , without prejudice to his senior-
ity or other rights and privileges, and make him whole
for earnings lost by reason of the discrimination against
him by payment of a sum of money equal to that which
he normally would have earned from March 26, 1984, to
the date of a valid offer of reinstatement, less net interim
earnings during that period. Backpay shall be computed
on a quarterly basis in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).
See generally Isis Plumbing Co., 138 NLRB 716 (1982).
Respondent further shall in a similar manner make
Maxo Toussaint and Joel Gervaes whole for losses they
suffered by reason of their work hours having been dis-
criminatorily reduced on and after February 22, 1984.
Respondent shall also be ordered (1) to remove from
its records and files any and all references to Maxo Tous-
saint's constructive discharge and to the unlawful reduc-
tion in his work hours and those of Joel Gervaes, (2) not
to use those unlawful acts as a basis for any future disci-
plinary action, and (3) to notify Maxo Toussaint and Joel
POLYMER PRINTS 439
Gervaes in writing that it has removed all such refer-
ences and that they will not be so used.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondent , Polymer Prints, Ltd., Brooklyn, New
York, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their interest in join-
ing or supporting Local 155.
(b) Threatening that stricter work rules would be im-
posed if Local 155 was selected by employees as their
bargaining representative.
(c) Discriminating against employees by reducing their
work hours and wages or by constructively discharging
them because they appeared as witnesses to give testimo-
ny under the Act.
(d) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed them by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Maxo Toussaint immediate reinstatement to
his former position or, if not available, to a substantially
equivalent position , without loss of seniority or other
benefits and privileges, and make him whole for any
earnings lost by reason of the discrimination against him
in the manner set forth in the section of this decision en-
titled the remedy, and make him and Joel Gervaes whole
in the same manner for all losses they incurred by reason
of their work hours and wages having been discrimina-
torily reduced.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Brooklyn, New York , copies
of the attached notice marked "Appendix."e Copies of
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that all complaint alle-
gations found to lack merit are dismissed.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully question you as to your in-
terest in supporting Knitgoods Workers Union, Local
155, International Ladies' Garment Workers' Union,
AFL-CIO.
WE WILL NOT threaten to impose stricter work rules
to discourage you from supporting Local 155.
WE WILL NOT discriminate against you by reducing
your work hours and wages or forcing you to quit be-
cause you are to be a witness at a hearing held pursuant
to the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Maxo Toussaint his job back and pay
him for all moneys, with interest, he lost as a result of
our having unlawfully forced him to quit our employ
and WE WILL pay him and Joel Gervaes all moneys with
interest they lost because we unlawfully reduced their
work hours.
POLYMER PRINT LTD. FORMERLY KNOWN
AS SUBLIFLEX, INC.