Sea View Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1960

127 N.L.R.B. 1402 (N.L.R.B. 1960)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union members preference in obtaining or retaining employment
or which unlawfully condition the hire of applicants- for employ-
ment, or the retention of employees in employment with any em-
ployer, upon clearance or approval by any labor organization,
except as authorized by Section 8 (a).(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause the above-named Em-
ployers or any other employer to discriminate against employees
or applicants for employment in violation. of Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them in Section
7 of the Act, except in a manner permitted by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL make whole Cyrus Lewis for, any loss, of pay suffered
as a result of the discrimination against him.
INTERNATIONAL HODCARRIERS, BUILDING AND
COMMON LABORERS UNION OF AMERICA,
LOCAL No. 242, AFL-CIO,
Labor organization.-
Dated - --------------- By-------------------------------------
(Representative ) ( Title)
WESTERN WASHINGTON DISTRICT COUNCIL,
INTERNATIONAL HODCARRIERS, BUILDING AND
COMMON LABORERS UNION OF AMERICA
AFL-CIO,
Labor Organization.
Dated---------------- By--------------------------------=----
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Sea View Industries, Inc. and United Steelworkers of America,
AFL-CIO. Case No. 12-CA-352. June 22, 1960
DECISION AND ORDER
On September 10, 1959, Trial Examiner Thomas N. Kessel issued
his Intermediate Report 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
127 NLRB No. 165.
SEA VIEW INDUSTRIES , INC. 1403
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report and the Re-
spondent filed a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member,
panel [Members Rodgers, Jenkins, and Fanning].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
Contrary to our dissenting colleague, we hold that the employees
unlawfully discharged during the strike are entitled to backpay from
March 7, 1958. As the Trial Examiner found, the strike was termi-
nated and the picketing ceased on that date and the employees were
immediately available for employment. In so finding, we rely par-
ticularly on the uncontradicted testimony of Union Official Nicholas
Fayad that the strike ended on March 7, 1958, when the picketing
was discontinued. Our dissenting colleague misconceives the law in
finding that these employees nevertheless were required to apply for
reinstatement. See Buzza-Cardona, 97 NLRB 1342, 1344. In view
of this Employer's unqualified opposition to the reinstatement of any
strikers it would have been futile, in any event, for the employees to
request reinstatement.
ORDER
Upon the entire record in this proceeding and pursuant to Section
10(c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Sea View In-
.
x The Respondent also filed a supplemental -motion to dismiss on the ground -that cer-
tain officers of the United Steelworkers of America , AFL-CIO, do not appear to have filed
non-Communist affidavits as required by Section 9(h) of the Act. In the alternative, the
Respondent requested that the instant case be remanded to take evidence on this issue.
As this question may be raised only in a' collateral proceeding entirely separate and apart
from the unfair labor practice proceeding , we hereby deny the motion and the remand
request. Monsanto Chemical Company ( John F. Queeny Plant ), 119 NLRB 69.
2 The Respondent 's request for oral argument is denied as the record , exceptions, and
brief, in our opinion, adequately present the issues and positions of the parties.
3 Board Member Rodgers does notagree that the employees who were discharged, while
on strike are entitled to backpay beginning on March 7, 1958, the date the picketing
ended. He would modify the Order herein to provide that backpay for such individuals
shall begin for each only after he has made an unconditional application for reinstate-
ment. See Sapp Brothers Company, Inc„ 90 NLRB 1513, 1518-1519 ; Ekoo Products
Company, 117 NLRB 137, 145-147, 151, 163.
1404 DECISIONS OF "NATIONALI LABOR -RELATIONS BOARD
diistries; Inc., Miami, Florida, its officers, agents, successors, and'
assigns, shall-:
1. Cease and desist -from:
(a) Discouraging membership in United Steelworkers of Amer-,
ica, AFL-CIO, or any labor- organization of 'its•• employees, by
discriminating in regard to -hire or tenure Of employment of its
employees.
(b) Declaring it will not deal with the Union and threatening to
close its plant rather than deal -with the Union, threatening em-
ployees with reprisals for failing to'reject the Union and for failing
to accept a labor contract offered by the Respondent, offering things
of material value to enlist the support of an employee to defeat the
Union, offering to pay for the services of an attorney selected by the
employees to assist them in negotiating a labor contract which would
bypass the Union, promising wage increases and other benefits to
induce employees to abandon the Union, and polling employees to
determine their preference for a labor contract which was intended to
bypass the Union, thereby interfering with, restraining, and coerc-
ing employees in the exercise of rights guaranteed them by Section 7
of the Act.
(c) Refusing to bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive representative of all its em-
ployees •in the appropriate unit with respect to rates of pay, wages,
heurs of employment,'and other terms and conditions of employment.
(d) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercilse of their right to self-organization, to
form, join, or assist United Steelworkers of America, AFL-CIO, or
any • other labor organization, to bargain collectively through. repre-
sentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid and
protection or to refrain from engaging in such activities.
2. Take the following "airmative action which the 'Board finds
will effectuate the policies of the Act : • •
(a) Offer to the employees named in the notice attached hereto
marked "Appendix,' 14 to whom such offer, has not already been made,
immediate and full reinstatement, 'to their former or substantially
equivalent positions and make them whole for any loss of earnings
suffered as a result of the•discr•imiliation against them, in the manner
described in the section of the -Intermediate Report entitled "The
Remedy." -
(b) Post at its plant in Miami,,', Florida, copies of the notice
attached hereto marked- "Appendix." Copies of said notice, to be
4 In the event , that' ,this Order Is:- pforced by- a decree of a United States Court of
Appeals,' there shall'he -sulistifuted fdr•ttlle words`"Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United states Court of Appeals , Enforcing an Order."
SEA VIEW INDUSTRIES, INC. 1405
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it 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 the Respondent to insure that said notices are not altered,,
defaced, or covered by any other material.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll, social security,
time, and personnel records necessary to determine the amount of
backpay due.
(d) Notify the Regional Director for the Twelfth Region, in
writing, within 10 days from the date of this Order, what steps it
has taken to comply therewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges the following: (1) That Kathleen
McDermott, Martha Tow, Manuel Valdez, Gabino Varela, Malva
Bobo, Herman Matherly, and the seven API installers were discrimi-
natorily discharged; and (2) that the Respondent had an obligation
to offer Francis Cao, Maria Marrero, and Mercedes Ponton rein-
statement despite their strike misconduct.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in United Steelworkers
of America, AFL-CIO, or in any other labor organization of our
employees, by discriminating in any manner in regard to hire,
tenure, or any term or condition of employment.
WE WILL offer to the employees named below, to whom such
offer has not already been made, immediate and full reinstate-
ment to their former or substantially equivalent positions with-
out prejudice to any seniority or other rights previously enjoyed,
and make them whole for any loss of earnings as a result of
discrimination against them as set forth in the Intermediate
Report:
Santiago Amador Ramon Cordova
Evelina Arbolaez Louise Dorange
Eugene Basora Ida DuBois
Houston Busby Ted Eklund
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Myrtle Flannagan_ Fred Lochman
Ossiline Haddock Joseph Lugolenski
Conrad Hofelich Jose Mato -
Evelyn Kelly - Jose Moleon
John Keller Fulgencio Monroy
Gaspar Lopez - Narcisco Musa
Coe Morrison' V Gladys O'Brien
Armando Perez Omelio Pena
Josef a Perez Gustavo Pena
Rene Sanchez Gustavo Perez
Ruth Sloan Michael Palmieri
Thomas Artese Maximo Piniero
Betty Baker Ada Phillips
James Barbieri Eugenia Ponton
Olga Bartos Antonio Platas -
Loreha Bennington Donald Roberts
Leandro Castillo V Lucille Rodman
Georgianna'Diaz , Jose Rodriguez
Edward Dorison - Luisa Rodriguez
Marjorie Dunne ' Rudolpho Sarracino
Rita Duquette Mildred Schnable
Lily Embury Margaret Simo
Felipe Felipe Jorge Triana
Carlos Gonzalez Stuart Urban
Medardo Garcia Antonio Vilas
Jewell Hall Manuel Vilas
Mary Hall _ Alma Wooten
Ismael Iglesias Charles Zotter
John Kulbis Elizabeth Zotter
Helen Kmetz • - Alberto Yanez
Jose Lopez -
WE WILL NOT interfere with, restrain, or coerce employees in
the exercise of their rights to engage in or to refrain from
engaging in union activities by declaring to them that, we will
not deal with the above-named labor organization or threaten
to close the plant rather than deal with that labor organization
or any other labor organization our employees- may select as
-their representative, threatening employees with- reprisals for
failing to-reject the above-named labor organization as their rep-
resentative and for failing to accept a labor contract offered
them by-us, offering things of material value to enlist the support
of employees to prevent the above-named labor organization from
serving as, the representative of our employees, offering to pay
SEA VIEW INDUSTRIES, INC. 1407
for the services of an attorney selected by employees to assist them
in negotiating a labor contract which would bypass the above-
named labor organization, promising wage increases and other
benefits to induce employees to abandon the above-named labor
organization, and polling employees to determine their pref-
erence for a labor contract in order to bypass the above-named
labor organization.
WE WILL bargain collectively upon request with the United
Steelworkers of America, AFL-CIO, as the exclusive bargaining
representative of all our employees in the appropriate unit de-
scribed below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and,'
if an agreement is reached, embody. such understanding in a
signed contract. The appropriate unit is:
All production and maintenance ,employees employed at
our Miami, Florida, plant excluding office and clerical em-
ployees, guards, watchmen, and professional and supervisory
employees as defined in the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right of self-organization,
to form labor organizations, or to join or assist the above-named
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from engaging in any or 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, except
to: "the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
SEA VIEW INDUSTRIES, INC.
Employer.
Dated------- ------ By----------------- --------------------
(Representative ) (Title)
This noticemust remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by United Steelworkers of America , AFL-CIO, herein called
the Union , the General Counsel of the National Labor Relations Board, by the
Regional Director for the Twelfth Region , issued his complaint dated May 19,
1958, against Sea View Industries , Inc., herein celled the Respondent , alleging as
amended at the hearing that the Respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5 ) and Section
2(6) and ( 7) of the National Labor Relations Act, 61 Stat . 136, herein called the
Act. Copies of the complaint , charge, and -a notice of hearing were duly served
upon the parties.
Pursuant to notice a hearing was held at Miami , Florida, on various dates between
August 11 and October 24, 1958, before the Trial Examiner duly designated to
conduct the hearing. All parties were represented by counsel or other representa-
tives. Full opportunity to be heard , to examine and cross-examine witnesses, and
to introduce evidence was afforded all parties . After the hearing the General
Counsel and Respondent filed briefs which have been carefully considered. A
motion filed with the Trial Examiner by the Respondent for correction of the record
was granted.
Upon the entire record in the case , and from observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS
The Respondent is a Florida corporation which manufactures, sells, and distributes
from its factory and offices in Miami, Florida, aluminum awnings and related
products. The complaint alleges that during the "last accounting period" the
Respondent's sales exceeded $3,000,000, and that the Respondent caused to be
shipped from its Miami plant to points outside the State of Florida products valued
in excess of $100,000. The Respondent's answer admits only that it "annually"
shipped or caused to be shipped products which it manufactured to points outside
the State of Florida valued in excess of $100,000, but that these shipments were
accomplished not by the Respondent directly but by its subsidiary sales organizations.
Whether the Respondent's products were shipped in interstate commerce directly
by itself or through its separate subsidiary sales organizations is immaterial to a
finding that the Board's standards for the assertion of jurisdiction over the Respond-
ent's business is here warranted. I find that these standards have been met and that
the purposes of the Act will be effectuated by the assertion of the Board's jurisdiction
in this case.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor organization which admits
to membership the employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introductory statement of facts and contentions
The Union started to organize the Respondent's employees in January 1958. By
letter dated January 24, received by the Respondent on January 25, the Union
asserted that it represented a majority of the Respondent's production and main-
tenance employees. In this letter the Union suggested that the Respondent cross-
check its designation cards secured from the employees to satisfy itself that the
Union in fact represents a majority of them, and requested that the Respondent
negotiate a contract covering all these employees. On January 27 the Union filed
with the Board's Regional Office in Tampa a petition for a representation election
seeking thereby to establish its status as exclusive bargaining representative for the
Respondent's employees in a unit therein described as "all production and mainte-
nance employees- in the [Respondent's] Miami, Florida, plant," excluding "office
and clerical employees, guards and watchmen, professional and supervisory em-
ployees as defined" in the Act. Together with the petition and enclosed in the
same envelope therewith the Union forwarded to the Regional Director 94 cards
designating the Union as their representative by the employees whose names
appeared thereon as purported signers. The petition stated that the employees in
the described unit numbered approximately 125. By letter dated January 28,
,, t SEA.y,IEW ,INDUSTRIES, INC. - 1409
received by the, Respondent on January 129,,.the Regional Director notified the Re-
sporident of the filing the aforesaid petition and enclosed a copy,. ,On February 4
Nicholas Fayad,. the),Union's;staffisepresentative, in charge of its, organizational,
activities at the Respoiident's,plant,,spoke by -telephone to Paul Rimmier, the Re-
spondent's' president, and stated to him that the Union was, the, representative of
a majority of the Respondent's employees and asked for a meeting. Rimmier
requested time.to secure the services of an attorney and it was agreed that he would
get together with Fayad on February 6.
Starting oh January 25,. the 'day the Respondent received the Union's letter, the
Respondent engaged in certain 'activities, which the General-Counsel contends were
intended to defeat the,Union and to thwart the rights of its employees to be repre-
sented by the-Union in violation of the Respondent's statutory obligation to recog-
nize the.,Union as the representative of its employees and to bargain with it in their
behalf. These activities and-the Respondent's special defenses to the alleged, refusal
to bargain will, be discussed in detail at a later point in this report. On February 3
and 4, the Respondent laid off 19 employees. The General Counsel maintains this
was a discriminatory action for the sole purpose of preventing unionization,' whereas
the Respondent insists that it` was necessitated by legitimate economic reasons.
These opposing views will also-, be. fully considered later in this report. In any
event, a large gathering of the- Respondent's 'employees at a meeting held under-
union auspices. during the evening of February 4 voted unanimously to stage a strike
against the Respondent. The General Counsel contends the strike was caused by
the Respondent's aforesaid activities which the General Counsel asserts constituted
unfair labor practices. The Respondent urges that the strike's only purpose was to
force it to recognize the Union as bargaining representative of its employees and
was in origin an economic and not an unfair labor practice strike 'and, that the
Respondent at no time during the course of this strike committed any acts to convert
it into an unfair labor practice strike. -
With respect to the events occurring during the strike and after the cessation of
picketing on March 7, 1958, the General Counsel has presented evidence to show
that the Respondent unlawfully. discharged all employees who engaged in or were
thought to have engaged in the strike, as well as those employees who refused to
cross the picket lines and to work during the strike, and that the Respondent has
since the strike ended refused to reinstate or reemploy employees because of their
known or suspected strike activities or sympathies. The Respondent, on the other
hand, sought to prove that it had committed none of these unlawful acts, and if
the strike the employment of certain employees ended this resulted from
nondiscriminatory reasons such as the voluntary quitting by some and the lawful
replacement of others, and the disqualification of particular employees for employ-
ment because of their misconduct during the strike.
On February 21 the Board conducted a hearing in the representation proceeding
initiated by the filing of 'the Union's petition on January 27. On March 12 the
Union filed the charge, and on May 19 the Regional Director issued the complaint in
this proceeding. On May 29 the Regional Director issued an order dismissing the
Union's petition because of the issuance of the complaint. This dismissal occurred
before issuance of a decision by the Board in,the representation proceeding.
B. Evidence concerning the Union's' status as representative of a-majority of the
dn ent s employees in an appropriate unit
1. The appropriate- unit
Although the Respondent's operations ai'the' time when the events of this case-
occurfed 'were performed in five separate 'but closely grouped buildings, these-
operations essebti ally constituted ,a single integrated manufacturing project in,which'
the raw ' "materials -passed through the several buildings for processing uhtil finally
manufactured as a'finished product for delivery to it customer ;or storage for future,
assembly and delivery.'- All the•employees'engaged in these operations had close,
contact notwithstanding their work in separate buildings., -They hada,single labor
policy, the ' iame `overall 'supervision', had the same working conditions, :enjoyed the
same'fringe,benefits,'•participated in the same'soc'ial and recreational`_activities, and,
as showri'later in'this report,' weren'offeied asingle labor contract by' 1the Respondent
in its effort .- to=head off the Union;" The contention by the, Re'sponde`nt. that a single.-
unit'ofall these production- and'' maintenance'employees is inappropriate`ahd that
only several separate units limited to the employees of each plant building are apprQ-'.
5 60940-61-vol. 127-90
1410 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
priate for collective bargaining is rejected as wholly without merit. ' . -I find as
alleged in the complaint that a unit consisting of all the Respondent 's production
and maintenance employees excluding , office , and clerical employees , guards, watch-
men, and professional and supervisory employees as defined in the Act is appropriate
for collective bargaining.
2. Composition and numerical size of the appropriate unit
The complaint alleges that the Respondent refused to bargain with the Union at
all times since January 25 , 1958. To sustain this allegatibn it was incumbent upon
the General Counsel to prove that the Union represented a majority , of the employees
in the requested unit and that such unit was appropriate for purpose s 'of collective
bargaining . As shown , the Union 's letter to the Respondent received by it on
January 25 claimed status as representative of a majority of all the Respondent's
production and maintenance employees at its Miami, Florida , plant, whereas the
petition filed by the Union with the Board on January 27 excluded office and clerical
employees , guards, watchmen , and professional and supervisory employees, as
defined in the Act. Without present regard to the Respondent 's contention in this
proceeding -that , the different phrasing of the Union's letter and its petition with-
respect to the unit description constitutes a fatal ambiguity , I shall, proceed directly
to a determination of the composition and the number of ,employees in the unit I
have found appropriate and the General Counsel 's proof as to the number of such
employees who had designated the-Union as their representative on or before
January 25. .
There is in evidence an exhibit containing the names of 112 persons who were
on the payroll of the Respondent during the week ending January 28 . Of these
Gustavo Pena, Jose Rodriguez , Jose Moleon, -and Jose Lopez had been discharged
on January 17. These employees were subsequently reinstated to employment. The
Respondent 's brief maintains their reinstatement was accomplished on January- 27.
There is evidence , however, from which it may be found that this was accomplished
by order of the Respondent 's president on January 25 within hours after the Union's
letter had been received by the Respondent . In any event it is clear that they were
the Respondent 's employees on January 27. - -
• In addition to those who were listed on the January 28 payroll the Respondent
claimed that the following persons whose names were not included therein were
employed during the period covered by the payroll : Olga,Bartos and Helen Kmetz
who were on vacation , Louis , Stealman who was on leave of absence, Serena Kemp
who had been on sick leave - and whose employment was officially terminated on
February 17, and Marguerita Castillo who was hired on March 25 , 1957, and whose
employment was terminated on February 17, 1958, because of an injury apparently
sustained in November 1957 in the course of her employment.
In addition to those shown on the January 28 payroll there were also at the time
employed by the Respondent a janitor named Willie Harris . and a leadman named
Charles McDowell as to whom ,there was a stipulation between the Union and the-
Respondent in the representation proceeding herein mentioned that he was - an
employee who should be included in the-appropriate unit.
There are also five persons not shown on the January 28 payroll who were
employed . by the Respondent whom the General Counsel would . exclude from -the
unit as supervisors , and whom the Respondent would include as employees 'The
same issue concerning the status of these persons had been raised in the representation
proceeding and was further litigated in-this proceeding.
The General Counsel further contends that 16 persons who appear on the January
28 payroll of a corporation called Aluminum , Products Installation Company,
herein called API , should be included in the , appropriate unit. The General Counsel
maintains that for unit purposes the, Respondent and API should be regarded as
a single employer and that the API employees have a sufficient community of
interest with the Respondent 's production and maintenance employees -to warrant
inclusion with them in a single, bargaining unit . The Respondent takes a contrary,
view. , - - -
I find in agreement with the Respondent that Olga Bartos, Helen Kmetz, Louis
Stealman , Serena Kemp, and Marguerita Castillo . were employed by the Respondent
during the, payroll ' week _ ending January- 28 and that ,their names should be added
to the 112 names listed therein. I find also that .Charles McDowell and Willie
Harris are employees whose ,,names also, should be, added . With the inclusion of
1 River Brand Rice Mills , Inc, 112 NLRB 1349.
. SEA, VIEW INDUSTRIES , INC. - 1411
these employees ' the size of the Respondent 's payroll during the January 28 payroll
week is 119.
As to the five persons claimed by the General Counsel to be supervisors, the record
shows that each was referred to as an assistant foreman and that the duties and
authority of each were the same. During times relevant to this proceeding the
Respondent's operations were performed, as previously indicated, in five separate
buildings. Each was designated by a plant number. Vice President Becker was
the top production man.and immediately, below. him in line of-.authority was Super-
intendent DeMarco. Subordinate 'to3 DeMarco were Foremen, Kangiser and Smith.
•Kangiser was over those operations involving assembly, painting, packing, and
shipping. Smith was in charge of -all fabricating operations. Directly under
Kangiser- and Smith were five assistant foremen whose status-is disputed. Parnell
was in plant 2, Pittone was concerned with the assembly operations in plant 5, Berg
with shipping activities in plant 5, Kowel w;a-s in plant 4, and Shekelton in plant 3,
Foreman Smith had charge of plant.1 with no assistant foreman under him at that
location. Shekelton was over 10 to 11 employees and also had 2 leadmen under him.
Kowel was over 10 to 11 employees and 1 leadman. Pittone was over 15 to 18
employees, 1 leadman and 1 leadwoman.- Berg was over 7 or 8 employees, and
Parnell: was in charge of 15 to 18-employees. The record is silent as to whether
Berg and Parnell had leadmen under them.
The .duties of the assistant foremen, according to Becker, consist of instructing
new employees, setting up and adjusting machines, distributing, work, and seeing
that work schedules are met and "assist[ing] in supervising.'.' Fifty to seventy-five
percent of their time is spent at manual work. When defects appear in•products they
are required to remedy them ,immediately. If they cannot themselves do this, the
problem is brought to the foreman. This activity is sometimes merely a routine
matter, but in serious cases "judgment" must-be used. Becker characterized their
other functions as "mostly routine," consisting of getting a shop order and "following
it through." They are not authorized to make "major changes or major adjustments"
without first determining from their foreman his "scope" and "plan."
Becker further testified that the assistant. foreman may neither hire nor discharge
employees and that such authority reposed at the time in question exclusively in
Foremen Kangiser and Smith. He conceded "they had the right to make recom-
mendations" concerning discharges "because they were observing the workers
closely." Their recommendations would be .checked by -the foremen and if-the latter
were satisfied they would,carry out.the :recommendations: for discharge or layoff.
The. Respondent had no--program for automatic. wage increases and two or three
times yearly Becker would -consult, with his foremen about which employees
deserved a- raise. The foremen would. make their. recommendations on the basis
of "impression" formed from observation of -the employees and' from. checking
their production-records. Although Becker agreed it is the function of the assistant
foremen to keep- the foremen advised as to the "efficiency and: demeanor of em-
ployees," he testified that the foremen did . "not. necessarily" consult the assistant
foremen to determine whether the employees under them merited raises and that
the assistant foremen could in this connection be, ignored. He conceded, however,
that it would be "pretty hard" for him to say-that they were actually ignored.
Becker acknowledged that the employees were expected to take. orders from the
assistant foremen, but that:these -were' routine orders., The - foremen selected
employees for overtime work. Tardiness and absences by employees were reported
directly to the' foremen.' Employees were permitted 'to -discuss their* complaints
and g-ievances with the assistant foremen,'but they in turn conveyed this information
to the foremen over them,- presumably -for disposition by 'them. The assistant
foremen attended only those staff production' meetings'to which they were invited
and participated in discussions about working conditions, personnel: needs, -usability
or practicability of" equipment, -and -related matters.' Assistant 'Foremen Parnell,
Kowel, and Pittone are salaried, as distinguished from rank-and-file` employees who
are hourly paid. Shekelton and Berg are hourly paid, but only because they work
an excessive number-of hours weekly- and apparently receive more compensation in
this, way than if they were on a salary basis. Otherwise the assistant foremen
receive the same benefits as'-rank-and-file` employees including bonuses. .
.1 ' am ,satisfied-from the foregoing that .the fiveassistant foremen- are supervisors
within the meaning of the Act and not mere rank-and-file,employees.- Because of
the arrangement of the Respondent's.plant_it is obvious that Foremen Kangiser'and
Smith could not be, near'-the employees under' them' at all, times, and when they
were in one building they were necessarily 'phy'sically separated - from employees in
other buildings for whose work they were responsible. In this situation `the direct
and constant supervision over the employees was carried out•by the assistant foremen,
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who in turn were assisted by leadmen. Not only, did the assistant. foremen assign
the work, issue the orders, and oversee the performance of work to insure compliance
with their orders, but they were present to teach, help, and correct the employees
when their work was defective. In these circumstances, and considering the obli-
gation of the assistant foremen to advise the foremen concerning the "efficiency and
demeanor" of the employees under them, it is apparent that they were influential
in shaping the "impression" of the foremen at least regarding the grant of raises to
employees. The Respondent's grant of "right" to the assistant foremen to recom-
mend discharges because of their close observation of employees also logically
shows that their firsthand knowledge of employee job performance and conduct was
respected and given weighty consideration in decisions to discharge pursuant to
their recommendations notwithstanding that final decisions were made by the foremen
after their own investigations.
Because the assistant foremen could make effective recommendations affecting
the status of employees under them with respect to their tenure and terms of employ-
ment and because they responsibly directed the work of the employees under them,
they come within the statutory definition of supervisors and must therefore be
excluded from an appropriate bargaining unit of rank-and-file employees.
Finally, in determining the number of employees in a unit of the Respondent's
production and maintenance employees, there remain for consideration the con-
tentions as to the inclusion or exclusion of the API employees. The stock of the
Respondent is wholly owned by President Rimmier and Vice President Becker. The
stock of API is also wholly owned by these two persons in the same proportion as
their stock ownership in the Respondent. Not only were both corporations located
in the same premises and serviced as to payrolls and bookkeeping by the same
personnel , but their labor relations and policies were singly controlled and identical.
In effect these are complementary corporations , integrated in the achievement of a
single business objective in that the Respondent produces and API installs its
products at the premises of the customer who purchases from the Respondent, and
apparently both corporations exist separately only for accounting and tax purposes.
Were it necessary I would unhesitatingly find them for purposes of unit determination
to be a single employer of all employees who work for them. I would not, however,
include the API employees in the same unit with the Respondent's production and
maintenance employees.
The API employees spend only a minimal amount of time at the Respondent's
premises. They report to the plant and clock in daily and sometimes spend brief
periods in the Respondent 's production areas in. contact with the employees at these
locations while waiting for them to finish or to repair a product which they are to
install at a customer 's premises. By far the greatest amount of their time is spent
traveling to and from these premises and performing installation work there. Thus,
despite infrequent temporary assistance by one of the Respondent 's production em-
ployees when the installation personnel are shorthanded, there is only brief contact
between the API and the Respondent's production employees. The Board customarily
excludes installation or service employees whose work is essentially performed away
from their employer's plant and who have therefore an insufficient community of
interest with their employer 's production and maintenance employees to warrant
including them in .the same unit2 I do not in this proceeding include the API em-
ployees in the appropriate unit consisting of the Respondent's production and mainte-
nance employees.
On the basis of the foregoing determinations I find that the total number ' of
employees includable in the unit herein found appropriate on January 28, 1958, is.
119. For the Union to have been the representative of a majority of the employees
in that unit it must when its demand for recognition and bargaining was received
by the Respondent in the Union's January 24 letter and by the filing of the Union's
petition for certification on January 27 have been the duly designated representative
of at least 60 of these employees.
3. Proof of the Union's majority
The General Counsel produced at the hearing 94 cards designating the Union as
the collective-bargaining representative by the employees who had purportedly signed
them. These were the cards which the Union had mailed to the Board's Regional
Office on January 27 together with its petition for certification and which had been
in the Union's possession on or before January 25 according to the credited testimony
of Nicholas Fayad, the Union's staff representative. The General Counsel relies upon
2 Foremost Dairies, Inc., 80 NLRB 764.
i'SEA VIEW INDUSTRIES, INC. 1413
these cards to prove that. on January'25,1958,"when the Union's claim to majority
status was received by-the Respondent; the Union had by then achieved such status.
The Respondent contends that: these' cards: may not constitute proof that employees
had voluntarily' designated the Union to represent them absent testimony by these
employees as to the circumstances of their signing. The Respondent further con-
tends that in a proceeding alleging a refusal to bargain in violation of Section 8(a) (5)
of the Act there is a statutory requirement of a Board-conducted election in order to
-determine in such' proceeding that the Union represents a majority of an employer's
employees. These contentions by the Respondent are so clearly inconsistent with
Board and court precedents that they need not be discussed in this report.
Although the Respondent does not, claim that the signatures on the cards were
forgeries, it insists that the General Counsel has failed to meet his burden of proving
that the employees whose names are written on the cards in fact signed them. The
record shows that between the start of the Union's campaign in January 1958 and
the strike of February 5 there were three or four meetings of the employees at which
union and employee spokesmen encouraged the employees in attendance to support
the Union. Designation cards identical to those in evidence were distributed and
signatures to these cards were solicited. For the benefit of those employees who were
conversant only with Spanish there were interpreters at the meetings who translated
the printed matter on the cards and in Spanish also explained the purposes and objec-
tives of the Union and the necessity for obtaining majority support in its behalf.
Employee Mercedes Ponton was one who had translated the printing on the cards
at meetings. She testified that she had told the employees that the reason for signing
cards was to show that they wanted the Union and to secure better wages and working
conditions. She had seen 10 employees sign cards at a meeting and 2 others at the
plant. She did not identify these employees. Francis Cao is another employee who
translated the cards and the remarks of other speakers at a meeting at the home of
employee Manuel Vilas who has also been referred to in the record as Velez. On
other occasions he translated the cards to fellow employees at lunchtime and during
other break periods at the plant as well as at his home. He had himself told the
employees that the purpose in securing signed, cards was to obtain for them better
working conditions and more money. He had seen employees sign designation cards
and had also distributed and collected cards from employees whom he personally
knew and whose names appeared on the cards as signers when he received them.
When he collected these signed cards he turned them over either to Manuel Vilas
for transmission to the Union or gave them directly to Nicholas Fayad, the Union's
representative assigned to the organization of the Respondent's plant. Cao testified
that he collected the signed cards of the 24 persons listed in the footnote below.3
Manual Vil^as testified that on Saturday, January 18, or Sunday, January 19, 1958,
there was a union meeting at his house at which certain employees signed designation
cards in his presence and handed them to him. The names of the 26 employees from
whom he claimed to have received these cards are listed in the note below.4 Vilas
further testified that within 2 or 3 days after the meeting at his house he received
designation cards from other employees bearing their signatures: The names of
these 14 employees are listed in the footnote below.5 Vilas"confirmed that he had
received signed cards from Cao. A11 signed cards obtained by Vilas from Cao or
directly from employees were turned over by him to the Union. -
As further evidence of employee support for the Union there is testimony as to
the number of.employees who attended union meetings.,, Employees'Cao and Ponton
counted from 90 to 95 employees at the Union's first meeting in January. Employee
Hofelich-estimated that he saw about 100 employees at a meeting 2 or 3 .weeks before
the February 5 strike. At a February 4'meeting when-the employees voted to strike
there were, according to the estimates* of'employees Cao, Ponton, Kulbis, Hofelich;
3'Josefa Perez, Louise Dorange, -Jeanette -Timmer, Marjorie Dunne, Betty Baker,
Rudolpho Sarracino , Donald Roberts, Jewell'Hall, Lily Embury, Mary Hall, Rita Duquette,
Mercedes Ponton, Eugenia Ponton, Georgianna Diaz, Ossiline Haddock, Evelyn Kelly,
Mildred Schnable, Myrtle Flannigan, Felipe Felipe, Lorena Bennington, Malva Bobo,
Ruth Sloan.-Edwin Reeves , and Evelina Arholaez" -
* Felipe Felipe, Narcisco Musa, Gustavo Pena, Carlos Gonzalez, Fulgenclo Monroy, Jose
MoIeon, 'Luisa Rodriguez , Maria Marrero , Medardo Garcia, Francis Cao, Ismael Iglesias,
Ramon Cordova, Jose Lopez,' Faustino Gonzales, Sorge Triana, Alberto Mora, Gabino
Rodriguez, "Armando Perez, Rene Sanchez , Gaspar Lopez, Gustavo Perez, Omello_Pinlero,
Antonio Platas, JoserMato, Santiago Amador, and Omeho Pena.'
Sally Baskin, Joan Martlock, Elizabeth Zotter, Charles Zotter, Josefina Smith, Edward
Dorison, John Keller, Alma Wooten, Stuart Urban, Janies Rushing , Thomas Artese, Fred
Lochman, Lilly Rivera, and Louise Dorange - -
1414 DECISIONS OF NATIONAL ,,LABOR !RELATIONS BOARD
and- Bennington;- from 70 to 90 employees , present:, - At union meetings held, while
the strike was in -progress there were 'present-, from-'60 to, , 100 employees .- Lester
Christoffel , an API employee . who testified for the, Respondent , estimated that there
were capacity crowds of,about , 75 employees at each af- two union , meetings during
the first 2 weeks of the strike . Further evidence of union support by, the employees
may be derived from the number of employees who picketed during the strike.
According , to Nicholas Fayad, President Rimmier had testified , in a State injunction
proceeding during the strike that_90 or 95 employees were massed at the Respondent's
gates. , -Cao claimed to have seen 60 or 70 employees on the picket lines and Hofelich
estimated their number •on one occasion to have been 50. Fayad listed the names
of 57 employees who picketed and received strike benefits payments from the Union
for such service as, evidenced by. canceled checks to these employees .. He saw 90
to 95 employees at the picket lines., Finally ,; there is testimony by former Foreman
Leonard -Smith , who hadyolunteered in January 1958 to find out for Vice President
Becker how many, ,employees had signed for the -Union- and who, according to his
credited testimony ,,reported,that as•far ,as-he could - see, "the whole place was signed
up,with the Union . • -, - ,
-The, General Counsel, also obtained opinions from a-highly qualified professional
handwriting expert that -the signatures by, employees-on 88 of 90 of the cards procured
by the Union ,and-examined by him , were genuine . To provide the-expert with other
signatures of the employees for comparison , purposes the General -Counsel had ob-
tained - certain . documents from - the, Respondent . • These included canceled payroll
checks payable to the. ernployees with endorsements , W-4 Federal income tax deduc-
tion forms containing signatures of employees , application - for employment forms
signed by employees ; and,cards signed , by employees authorizing deduction of group
insurance premiums from earnings . - During the course, of the hearing the Union's
representatives had also obtained 5 witnessed signatures from each of 50 employees
whose designation , cards are under scrutiny,-herein, and this was done admittedly to
use these signatures for comparison purposesin this hearing. - The Respondent -would
not concede the genuineness of the employees ' signatures on any of the documents
taken, from its files and produced at the hearing-and objected on legal grounds to
the -use of the signatures obtained during - the hearing as standards to prove the
genuineness of the disputed signatures .,- -The-Trial - Fxaminer had rejected the endorse-
inents on the canceled payroll checks - as proper standards, but was convinced that
the other signatures were genuine and -permitted them , to be used by the expert as
standards for comparison and to offer his opinions based upon such comparison.
The reasons for these, rulings were fully explicated at the hearing after consideration
of the legal memoranda and • arguments of, the parties - and are contained in the
official transcript , of testimony . They need not be repeated here - Because the
expert stated at the hearing that he could -not give a • valid opinion that a signature
was genuine - unless he could compare that signature with at least five others, he was
prevented by the rejection of the check - endorsements from giving such opinions
as to the signatures on numerous cards: The General Counsel asked that the Trial
Examiner reconsider -his rejection of these standards upon review of the authorities.
Such consideration was-promised , but with -the, understanding that there would be
no reversal of ruling without - affording the Respondent an opportunity to present
countervailing evidence and argument' Since the close of the hearing there has come
to my attention the,opinion of the United States Court of Appeals in N.L.R.B. v.
Hunter Engineering Company, 215 F. 2d-916 ( C.A. 8), in -which the court indicated
that- endorsements on : canceled payrollh •checks- and -, signatures- on 'other employee
records in the- possession 'of an employer - may safely - be compared with signatures
on union designation , cards so, as-to permit - anemployer- to satisfy - himself that the
signatures of his - employees on these cards ;arelgenuine ,,-While I might have been
persuaded at the hearing to permit the use of the check endorsements -as -proper
standards had this , opinion then been brought to-my attention , I shall not now change
my ruling because T. am satisfied there is-sufficient evidence as the-record stands to
establish the-Union's majority in the appropriate unit. - • - -
,- According to 'Vilas and Cao, the, signed cards witnessed or collected - by them
from the employees whose names appeared thereon as signers were 'procured in
the, course , of ,the Union 's campaign - and within the short space of , a- few weeks.
There is nothing- to refute - the testimony of these witnesses relative to the procure=
merit of -these cards. The--Respondent opposes reliance upon this testimony on
the,-ground that it was improperly received -as rebuttal testimony:.. Further,-. the
Respondent attacks the reliability -of this testimony because - both - Vilas' and Cao
each claimed to have procured - the,•,cards Hof' identicalr persons,- because - of-the
asserted - evasiveness of Vilas as to who signed; and,when , and the failure of- Vilas
and Cao to pinpoint the dates in January when they received the,-cards .- As to
SEA VIEW INDUSTRIES, INC. 1415
the factthat .the testimony concerning the cards was offered during rebuttal and
not as part of the General Counsel's case-in-chief, the General Counsel explained
at the hearing this resulted from the ruling rejecting the canceled payroll check
endorsements as standards for comparison so that the expert was unable to give
all the opinion testimony which the General Counsel has confidently: expected to
receive. In view of this development, and because the Trial Examiner was more
concerned with ascertaining the truth in this case than with rigid devotion to
form, the testimony of Vilas and Cao was received. Vilas was not evasive. On
the contrary he was exceedingly responsive and forthright. Any opposite impres-
sion -which may be derived from a reading of the record must be ascribed to his
difficulty, in understanding and speaking English. That Vilas and Cao failed in
part to give the precise dates in January when they procured the cards is of no
material significance. The testimony of Nicholas Fayad conclusively shows that
he had all these cards in his possession on January 25. Necessarily, the cards were
signed by employees and procured by Was and Cao before then. Knowledge of
the exact dates in this circumstance is of no importance. The fact that Vilas and
Cao each claimed to have procured the cards of- the same two employees does
not impress me as untruthful but rather that one of them is mistaken. My inclina-
tion is to rely on Cao's testimony in these instances rather than Vilas' because the
former's memory impressed me as better than Vilas'. But such judgment is not
required, for I am satisfied that if one did not procure these cards then the other
did, and this is what really matters. I credit the testimony of Vilas and Cao that
they procured the cards of 'those whose signatures were witnessed by Vilas and
of those who gave their cards to Vilas and Cao with their signatures already
affixed. The total number of employees named by them after subtraction of the
2 duplicated names is 64. From these I have eliminated the names of Gabino
Rodriguez, Omelio Piniero, and Josefina Smith, because they do not appear on
the Respondent's January 28 payroll. The number of valid signed cards collected
by Vilas and Cao is thus reduced to 61.
From all the circumstances, including the testimony of Vitas and Cao as to the
witnessing and collection of the cards of the 61 foregoing employees, the evidence
of overwhelming support for the Union as shown by the attendance of large ma-
jorities at union meetings during the organizing campaign and during the strike,
and participation in the strike of a large majority of the employees, I find that
more than the required majority of 60 employees in an appropriate unit of the
Respondent's production and maintenance employees had on January 25, 1958,
designated the Union as their collective-bargaining representative.6 This finding
is reinforced by the fact that the Union's letter received January 25 invited the
Respondent to check the cards in the Union's possession against the Respondent's
records to satisfy itself they were authentic, an invitation of which the Respondent
did not avail itself, and further because the Respondent does not contend that the
signatures on the cards are not genuine. There is, moreover, no evidence to sug-
gest that any signature herein found to be valid was forged or that when employees
signed the cards they were threatened or in any manner coerced or deceived.
The foregoing calculations are based upon the inclusion in the January 28
payroll of the four employees (Pena, Rodriguez, Moleon, and Lopez) who had
been discharged on January 17 and who had been ordered reinstated with backpay
by President Rimmier on January 25 during the course of his discussion with
Manuel Vilas. Their formal reinstatement as employees, as previously noted, was
accomplished on January 27. If, for purposes of determining the Union's ma-
jority on January 25, these 4 persons are not regarded as employees on that date,
then the size of the appropriate unit as of January 25 is 115 and the number. of
designations required to establish a majority is 58. Subtracting the cards of these
.4 persons from the 61 cards identified by Vilas and Cao, the number of such
cards remaining is 57. This is two designations short of the required majority.
Many more signatures than the two designations required to establish the Union's
majority, however, were proved authentic by the opinions of the handwriting
expert, said opinions not having been based upon a comparison of the disputed
signatures with the rejected check endorsements. These are the specific designa-
tions (not included in the 61. identified by Vilas and Cao) whose authenticity was
proved to my satisfaction by the testimony of the expert. Those whose cards
were compared only with the W-4 tax. form, application for employment, five
sample signatures, and insurance premium deduction card are Leandro Castillo,
Arthur Edwards, Conrad Hofelich, Gladys O'Brien, Margaret Sim, Helen
0 Hunter Engineering Company, supra; Irving Taitel, at at., d /b/a I. Taitel and Son,
. 119 NLRB 910 , enfd. 261 F . 2d 1 (C.A. 7).
1416 DECISIONS OF'-NATIONAL` LABOR RELATIONS BOARD
Thoinp 'soa, and Manuel Vilas. 'Those whose `cards ', were compared" with the
signature on the - tax form ,- application for employment ;-and the five signatures
procured ' by' the ' Union " are' Ida Dubois, Ted Eklund , John Kulbis, Michael
Palmieri, Jose Rodriguez, Rene Sanchez, and Antonio Vilas . The card of Joseph
Lugolenski was compared with his signature on the tax form , insurance premium
deduction card , and the five signatures obtained by the Union . The card' of
Alberto Yanez was compared with his signatures on the application for employ-
ment, insurance deduction card , • and the five signatures obtained by the Union.
-Moreover , Cao testified he saw Yanez sign his card although he thought Yanez
gave the card to Vila 's rather than to him. Thus, on January 25, the Union was
the designated representative of at least 74 employees , and on January 27, the
representative of at least 78 employees . On either date , the Union had well over
the required majority. •• -
C. Evidence concerning the Respondent's alleged misconduct
1. Before receiving the Union 's January 25 letter asserting its majority status and
requesting bargaining
The Respondent 's officials knew before January 25 that unionization was in
progress at its plant. Foreman Leonard Smith had reported to President Paul
Rimmier and to Vice President Nathan Becker that he had observed unrest among
the employees and that if something were not done about their wages there would
be labor trouble. At a foremen 's meeting Becker had minimized Smith's appre-
hensions about the Union as imaginative . However, Becker later spoke to Smith
about information he had acquired as to the instigators of the "trouble," and
related that whereas he had earlier believed the Union had signed up only two
or three employees he now had ascertained that more and more had signed. It
was then, as previously noted , that Smith volunteered to find out how many had
signed and subsequently advised Becker that from his observations "the whole
place was signed up with the Union ." Becker denied only that part of Smith's
testimony to the effect that he had informed him that the-Union had signed up the
,"whole place." I credit all of Smith 's testimony of his conversations with Becker
and Rimmier. -
Employee Conrad Hofelich testified credibly without refutation that about 2 or
3 weeks before the February strike he was one of 18 or 20 employees in plant 1
who had been assembled at. a meeting in the office of President Rimmier. Vice
President Becker and Head Salesman Cicero were also present . Rimmier told
the employees he had heard a rumor about a union meeting to be held that
evening. Hofelich confirmed the rumor , but refused to tell Rimmier where the
meeting was to be held. Rimmier asked whether the plant 1 employees were going
to the meeting and directed them not to go and to tell everyone else not to go
because unions are run by racketeers . He added he did not want a Hitler or
Mussolini in his plant, that he would not talk to any "outside union man whatso-
ever," and that they were not 'coming into his place. He declared that he could,
if he so desired , make "a deal with a union man - at any time" and that "those
things have been done ' before and they are done everyday ." Hofelich further
ascribed to Rimmier the assertion that before he would talk to any union man he
would sell his shop "machine .by machine or) screw by screw."
r ^ -
2. After receipt of the Union's January 25 letter and before the February 5 strike
The Respondent's brief asserts it gave no "particular consideration " before it
received the Union 's letter on January 25 to such information as it had that organi-
zational activities were taking place. Assuming , notwithstanding Hofelich's ac
count of Rimmier's conduct, that the Respondent has accurately described its
reaction to - the Union's campaign , its lack of concern was wholly abandoned upon
arrival of the letter . Starting that very day and' continuing virtually day by day
until the Union's strike of ' February 5, the Respondent engaged in a course of
conduct to discourage acceptance by ' its employees of the Union as their repre-
sentative . As related , by the General Counsel 's witnesses , these are the events
of that period. - -
Manuel Vilas had been a nonsupervisory leadman , in the Respondent's paint
shop. He had been regarded ' by the Respondent as influential among its numerous,
Spanish-speaking employees , and had been useful to the Respondent in-communi-
cating information to those employees who could not understand English. He had
'actively supported'the Union and characterized himself .at the hearing as;the Union's
"leading man" in the plant . He had solicited adherents for the Union -and had
<, lEi ;r SEA, VIEW INDUSTRIES, INC. 1417
permitted the, use of his house for a,meeting at which a, substantial number of em-
ployees designated'Fthe Union as 'their Yepresentative." Vilas testified that on Satur-'
day, 'was
2'5, he e was' picked' up;by .an automobile .sent to his' house -by,Rimmier
and 'brought to 'the-latter's :office. At Vilas' request Rimmier dispatched an
automobile'to'the home of employee Narcisco Musa and he, •tdo,'was brought to
the meeting. In, addition to,those ,named there was also present' Alan Greenfield,
the Respondent's house "counsel. • Vilas testified- that in the ensuing discussion
Rimmier expressed, to" him his' opposition to the intrusion in the 'plant of -"union
gangsters."- Rimmier remarked'that' the employees were going to; receive better
conditions and mentioned,"big insurance"-and anew building. He spoke of making
his own contract with the employees "something like my own union," and observed
that the employees did not need a union and he would spend his last dime or last
dollar fighting the Union. He' solicited the help of Vilas and-Musa to keep the
Union from entering the plant and offered Villas $1,000 for his help. Vilas related
that he had spurned the offer and suggested instead to Rimmier that he speak
directly' to all his employees and that he should tell them all that he knows and what
he will do for them. Then, if they want to sign a contract, he (Vilas) would help.
On January 27, according to employee Francis Cao, Rimmier held a meeting in
his office attended by Cao, Vilas, Musa, and Foremen Leonard Smith and John
Kangiser. Cao had no recollection that others, particularly Attorney Greenfield,
were present. He recalled that Rimmier, having learned that union cards had been
signed in the plant, stated he "didn't want the Union in the place" and "didn't want
to have any outsiders to come over and run his business." Rimmier proclaimed he
was big enough to run his own place and wanted no cards passed around and signed.
On January 28 Cao attended. another meeting held by Rimmier in his office. Cao
recalled that employees Vilas, Musa, and Betty Baker, Foreman Leonard Smith,
and Attorney Greenfield were present in addition to others whose names he could
not remember. Cao testified that Rimmier repeated what he had said in the meeting
of the previous day,about not, wanting the Union to run his business. He spoke
further of a contract which was being typed and which would be shown to the
group later that afternoon. Those who were present at this meeting attended the
session held by Rimmier later that afternoon in his office. At that time Rimmier
read from the contract he had prepared and stated that the employees' 'had to
accept it, and if they did not "there would be a new bunch of people working there."
He instructed those in attendance to tell the other employees that it was a good
contract and then to let him know whether they would accept it.
Betty Baker testified that she attended a meeting in Rimmier's office at which
about 10 employees were present. Although she specified that this meeting occurred
on January 29, I am satisfied from all the circumstances that she referred to the
,January 28 afternoon meeting concerning which Cao had testified and at-which he
had said Baker was present. She stated that Rimmier read "the contract" to the
assembled'employees, and asked whether this was a "good foot forward to what we
wanted in the contract," pointing out that this was not the "original" contract (the
witness, I believe, is here saying that Rimmier indicated that it was not the contract
in final form), and that he was merely seeking to learn what the employees wanted.
Included in the'contract terms which Rimmier read were provisions for wage in-
creases. Rimmier cautioned that if the employees did not agree to that contract
"he would get a new crew and replace [them] and that he would not have a
Union."
On January 30 Rimmier held a' meeting for the Respondent's employees in the
plant directly after the 3:30 p.m. quitting time. According to Foreman Leonard
Smith, Rimmier had expected to read to the employees the plan he had prepared
and to have them indicate by vote whether they would have accepted it This
procedure was abandoned when only 25 or 30 employees showed up for the
meeting. ,
On Friday morning, January 31, Rimmier held a meeting with the employees of
plant 5 at their place of work. Cao related that Rimmier told the employees that
he (Cao) and Vilas were to blame for passing around the union cards and forcing
employees to sign them; that he charged Cao with usurping authority when he had
gone to his office (presumably to the last-mentioned meeting) without the knowledge
of his fellow employees; and that he told him he was too young to assume such
responsibility. Betty Baker testified that Rimmier spoke to the 30 or' 35 employees
of plant 5 about the meeting in the plant he had arranged the preceding day at the
close of work, and that he wanted to know why none of the employees had attended.
He. announced there would be, a meeting that afternoon of all the Respondent's
employees and.that he would call for a vote to know where he stood. Employee
Mercedes Pontori recalled that Rimmier had said on the occasion that he had heard
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talk about the Union and that he 'would not let any outsider come in to " run his
business; that he did not want a "bunch of racketeers" and would fight to his last
penny;:that he would make a "Company: contract"-'for the, employees and that if'the
employees wanted this they could stop work.that afternoon and meet at 2:30 p.m. in
the plant. She also recalled Rimmier's remark to Cao about being too young for
the responsibility he had assumed and that he had admonished Cao to take advice
from him. Employee Myrtle Flannagan testified that Rimmier had said "he wasn't
going to have any union and he was going to fix up a union of his own, you_ know,
a company union." Employee Lorena Bennington remembered that Rimmier had
told the plant 5 employees he was not going to have foreign gaggsters coming in to
run his business, and if the employees wanted a union he would provide one for
them. Employee Evelyn Kelly recalled that Rimmier had said the employees were
fortunate to be working during the slow time as a lot of the other companies were
laying off employees.
On Friday, January 31, the Respondent assembled all its employees for a meeting
in the plant premises. For this meeting plant operations were suspended 1 hour
before the normal quitting time. Rimmier appears to have made numerous com-
ments on a variety of subjects. The plan, previously referred to by some as a
contract, was read to the assembled- employees in both English and Spanish and
questions from employees were answered by the Respondent's spokesmen. Finally,
the employees were asked to state their acceptance or rejection of the plan by a
secret-ballot vote. Most of the employees left without participating in the balloting.
The General Counsel's witnesses related that Rimmier had said the following
things to the gathering. Employee John Kulbis testified that Rimmier "wanted to
know how he stood and he desired a vote for an independent union, a 'shop union,
and he asked us to vote yes or no and he had a contract read off." Also, that
Rimmier had said "that he would like us to accept the Company Union and that he
had carried some people on who he could lay off, as he explained business was
slow and he says before he' didn't mind so much whether we wanted anyone to run
our business, but he wasn't going to have anyone run his business and before he did
that he'd see that he would run the business into the ground, office by office and
shop by shop." Employee Betty Baker testified that Rimmier "told us that he'd
given'us,a chance on this'contract and he would like to know where he stood. That
he would not have the Union in his place, that he would fight to his last dollar.
He also told us if we did not vote on that contract, which was going to be that
afternoon, we could all be replaced with a new crew." Employee Conrad Hofelich
testified that Rimmier had stated that he wanted the employees to accept the union
contract which he and his lawyer had drawn up, and that he had further said "he
is not going to talk to any outside union men, nobody is going to come into the
plant. He is going to talk with the employees and that's all. He is not going to
talk to anybody else at all. He said before he does that, he'll ` sell his factory
machine by machine and-screw by screw." Employee Mercedes Ponton testified
that Rimmier had said "if we had-any complaint to come and-talk to him and that
he would know how to do things, he says that he didn't want no union to come
and take over his place, that he didn't want no part of it. He said that he didn't
think we were doing right and that we should give him a chance to try first the Com-
pany Union, try to do the Company contract first and to give him a chance and
that things would get better for us."' Employee Francis Cao testified he could not
remember the, exact words which Rimmier had spoken but that in essence he had
said, that if the employees "didn't accept the contract he would fire us." Employee
Myrtle Flannagan testified that Rimmier had said "he could buy the Union off if
he wanted to, and that he:was not going to have any racketeers in his place running
his, business." She stated, Rimmier also said that he had drawn up a contract and
after it was read to the employees he said to them "we could either join it or we
didn't have to join it, ,take it or leave it,. but he said he wasn't having any union
in his factory telling him how to run his place.'.- Employee Lorena Bennington
testified that Rimmier had told the employees he could buy off any union and "that
he would fight to his last nickel and go out of business before he would accept the
Union." Employee Evelyn Kelly testified that Rimmier'had said "if we didn't sign
the contract that he would 'eventually get a new crew." ;
Rimmier was unable to' testify because' of illness. The Respondent's version of
his,'conduct was offered principally- by' Attorney Greenfield. Greenfield testified
that he was the first to read the Union's letter when it arrived on January 25 at the
Respondent's office.' He thereupon communicated with Rimmer who immediately'
came from his home to the office and called a meeting of the plant foremen.' Leonard
Smith told him at this meeting, about Vilas'' efforts.to ,see him during the. preceding
week. `Rimmier sent for him: "Asked why he had wished to see him during the week,
SEA VIEW INDUSTRIES,'INC. - 1419
'Vilas-told Rimmiei that-'the employees were unhappy 'and consequently ""they will
join 'a union or belong to a union;" or do 'something else-very drastic: To explain
this'"unhappiness Vilas'referred"to certain -'grievances;and- RinImier promptly took
corrective action' as to some. Vilas expres §ed admiration for Rimmier as a revolu-
tionary like himself. He -said neither, he nor employee Musa wanted anything for
themselves but professed coricern'- only for the interests of the employees. He
assured Rimmer that for a 5- or 10-cent- hourly raise.the employees would reject
the Union. Rimmier then- asked for a 'suggestion and 'Vitas told him to summon
the employees and to speak to them personally as they liked him and would listen
to him. Vilas revealed that he and Musa were required to go,to a-union meeting
that afternoon and would ask -the employees whether they would meet with Rimmier
that same day. He told Rimmier to wait for word from him. -Rimmier expressed
appreciation for Vilas' help and asked whether there was anything he could do for
him. Greenfield denied that Rimmier offered to give Vilas $1,000 in return for his
abandonment of the Union. -He conceded, however, that there, was"a discussion
between them about certain' material help which Rimmier would- give to a cause
in which Vilas was interested. Vilas left the office to go to the Union's meeting
with the understanding-he•would return, with the employees: He did, return in '2 or 3
hours, but reported that the employees had refused to accompany him.-' The 'dis-
cussion between Vilas and Rimmier terminated following a rehash of the matters
they had talked about earlier in the afternoon.
Greenfield related that he was present at another meeting between Rimmier and
Vilas on the following Tuesday, January'28. Vilas then told Rimmier that he must
do'something "fast" and that he must speak to the employees because"they want 16
hear from him and that they want something done. Vilas_ pointed out to Rimmier
that perhaps speaking to the employees' would not be enough because many of them
felt that the Company in the' past had promised them things which- had not ma-
terialized and that Rimmier should 'put something in writing so that. the employees
could take this as a sign that he now meant what he was saying. Rimmier indicated
that certain people within the Company had been working on a wage or job classi-
fication plan for some time, and that there had been discussions with insurance
companies concerning a new type of group insurance which would be an improve-
ment'over the insurance program then in effect. Rimmier told Vilas that he would
take care of these matters and at the same time instructed Greenfield to get together
with the company's comptroller to have something ready for his inspection. Later
that morning the meeting was resumed and there was further discussion of the
matters raised earlier that day. `. ' '
Greenfield further -testified that during' the next morning, January 29, he was
present at another meeting between Rimmier,'and Vilas. Rimmier had called Vila's
to his offce to relate that much progress had been made on the plan which had been
discussed on the preceding day and that he would now like to present it to the
employees for their information. He asked Vilas what' he had to suggest with regard
to this proposition. Vilas-replied that he would prefer that he not be called in, the
office by himself in the future, ' and . suggested that employee Musa be asked to
accompany him because he did not'want the employees to get'the idea that he was
working some kind of a deal with Rimmier and that if he were to come to his office
by himself they might have such suspicion. Vilas suggested that representatives
from each of the Respondent's several plants meet for presentation and discussion of
the plan and 'so that they in turn could go back to the employees' in' their respective
plants to report what they had learned. " Rimmier 'asked Greenfield whether 'he
thought that this 'suggestion was proper and' Greenfield agreed that it was. There'
upon Rimmier requested Vilas to go to the' several plants to inform the employees
that they were to choose representatives to come to a meeting to be held that very
afte'rn'oon in his office:
Later that day Rimmier'received in his office certain employees from the several
plants. After certain introductory remarks he 'told'thein that he understood 'that
one of their-prime gripes involved dissatisfaction with their pay. 'He'then related
that the Company had been working 'for some tinie 'on a wage plan which how had
been reduced 'to final form.' He indicated that the Company now also had other
benefits for-employees. 'He emphasized' that they did not'have to believe what he
might tell them orally but that these things were now going-tb be''put into writing
and that'he would live up towhatever he promised.' At his request Greenfield read
the plan to the employees-and"'this was followed 'by a general discussion'between
them-and Rimmierin-which•,the latter answered their questions concerning'the plan.
One employee'askedrhim how the employees could be certain that,he-would live up
to his plan, even•,though it is i'in writing=,and -Rimmier•^repliedshat -they can best
assure themselves of his compliance with the plan by having an attorney look it
4420 DECISIONS OF, NATIONAL,,LABORi RELATIONS BOARD
over and make suggestions„ as .tor how to, make it binding. An. employee pointed out
to him that the employees did 'not have the money ,-to pay alawyer , and Rimmier
replied that if they would furnish - him with the • name of a lawyer they would sel'e'ct
he would see to it that his fee would be paid ., He requested
:
theemployees to convey
the information they had acquired.to•the.other employees in'their plants and they
promised to do so.- He, asked them what they thought about his plan and they
replied that it sounded good to them and that it was what they-had -been looking -for
during all their years with the Company and were pleased to see that Rimmier now
recognized their problems. , , ,
+Later (Greenfield is not certain whether the' incident next referred to occurred
on January 30 or 31) Rimmier received a'report that an employee who had come
to his office on the * preceding day as a , representative from plant 4 had ridiculed
his actions before the employees . Greenfield accompanied Rimmier to plant 4
where the employees were brought, together. In an interchange between Rimmier
and the employee in question it became apparent to Rimmier that the employees
had not been informed concerning what had occurred at the meeting of the preceding
day. - Rimmier then went to the other plants where he ascertained that the repre-
sentatives who had gone to the meeting in his office had not - been selected by the
employees but had been chosen , as representatives by Manuel Vilas. Because
Rimmier was now concerned about getting information about his plan to the
employees he decided to call a meeting of all-the employees for the afternoon of
January 30 after quitting time. A notice to this effect was posted on the bulletin
boards in the several plants. At the time specified the meeting was held but was
only meagerly attended . Other than a reading of the plan to the employees in
English and in Spanish nothing else occurred.
In the morning of Friday, January 31, Greenfield went with Rimmier to plant 3
to ascertain from Vilas why he had not attended the meeting of the preceding after-
noon . Vilas stated that he had been threatened and indicated that the Spanish-
speaking employees had not gone because he did not go. Rimmier then went to
plant 5 where he confronted employee Francis Cao with the charge that employees
had been threatened not to go to the meeting. There was an exchange of views on
this point between Rimmier and Cao, and then Rimmier asked the employees in
this plant whether they were interested in listening to his plan and a number of the
employees indicated that they were. Rimmier returned to his office with Greenfield
and revealed to the latter his desire to present his plan to all the employees . Greenfield
expressed the view that there might be something unlawful in compelling the em-
ployees to listen to the presentation of the Company's plan on company time and
conceived the idea of circulating petitions among the employees in which they could
voluntarily express their desire to have such a meeting . Thereupon sheets were
prepared with instructions that the employees were free to sign them or not, and these
sheets were circulated amongst the employees . Later that day a meeting was held
on the Company's premises with all employees present about an hour and a half
before quitting time.
Greenfield testified that Rimmier -spoke briefly at the January 31 meeting to the
employees of the entire plant . His remarks , included an apology for his failure to
have taken a greater interest in the affairs of the employees and a promise to make
amends for this neglect. He noted that one of the Respondent 's competitors in the
area had closed its shop about Christmastime for about 2 weeks and that other
competing companies in the area had a practice of closing down when they did not
have enough work to keep their employees busy. He added that it had always
been his own practice as long as he could afford it to keep as many people employed
as possible even though it sometimes hurt financially because he recognized that
employees worked hard during the busy season and deserved to be taken care of
during the off season . He told the employees that the Company had lost money
and was in some financial difficulty but he was satisfied that it would work its way
out•of these difficulties . He described the vicissitudes of the awning business and
how cyclically there were certain months in each year when the Company lost
money, broke even , and showed a profit. He included remarks about current news-
paper headlines concerning disclosures relating to Dave Beck of the Teamsters
Union , but added that he did not know, anything about the Steelworkers. After
Rimmier concluded these remarks and answered certain questions from the emnloyees
he had Foreman Kangiser read the plan to the employees in English . This was
followed by more questions ' and .,answers and afterward the plan was read by
employee Musa in Spanish to the employees: Again there were questions and
answers. Next the employees were given ballots on which to note their acceptance
or rejection of the Company's plan "and they were requested , in accord with remarks
,rfSg Aj iEW' INDUSTRIES, INC. 142'1
earlier made by-one.of'the spokesmenat the meeting, to mark them and to depo'sit'
them in a ballot -box wliich' had beenrset up' for•,the occasion. • Greenfield'did not
recall the number of ballots that were deposited inr the box. He `remembered,
however, that a majority of those who voted favored acceptance of the plan.
Greenfield stated that to the'- best of'hi's recollection Rimmier had not said at the
January 31 meeting or at any other I time when Greenfield was -present-that if the
employees did not accept, the proposed, plan; they would be replaced. ' He also,
denied that Rimmier. threatened, at any time in, his presence to, shut down or cease
operating the plant if,the, Union came in .. Greenfield further denied that'Rimmier
at any time in his presence had- said that., the .Respondent would cease operations
plant by plant, office by office,, machine by machine, or screw by, screw, or used'
any such language to that effect. ' He also denied that any conditions were stated
and,that no threats were made iri his presence in connection with,the vote that was
called for concerning the plan . -, ; .
• Foreman Kangiser had attended the:Januar
s
y,30.meeting in Rimmiei 's'office when
the plan had been first,p`resented to the-employee representatives. He was also at
the January 31-meeting when Rimmier'addressed all the plant employees and when
they were asked to vote on the plan. In'the course of this latter meeting Kangiser
had read-the plan in English to the employees. He testified that while Rimmier
generally said the same things at both meetings he spoke in greater detail at the
January 31 meeting. 'He denied that Rimmier had said that-he would shut down
plant by plant or office by office rather than deal with the Union or have a union in
the'plant. He claimed that Rimmier had told the employees that he did not even
know which union was then representing' or seeking to represent them, but that he
was willing to discuss with that union's lawyer whatever the union had in mind.
Rimmier stated his concern about the newspaper disclosures then current about
the indictment of a union leader for embezzlement, and added that while he had
nothing -against unions in general he would not permit any racketeers to come
in and tell him how to run his business . Rimmier also discussed the economics of
the Respondent's business and pointed out to the employees the seasonal nature
of the Respondent's operations. Although the Respondent was at that time in the
midst of the so-called 4-month losing period, Rimmier did not say that the Respond-
ent was losing money in its total operation. He emphasized that the Respondent
was unable to meet the Union's demand for a $1.40 hourly rate and would permit
inspection of the books to prove this, that the Respondent's rates then in effect were
higher than those of his competitors, and that if he wished to be more business-
minded he could hire employees at a $1 hourly rate which was less than the Re-
spondent's prevailing rate. He mentioned the unusually cold weather then afflicting
Miami and the consequent diminution of the Respondent' s sales. The fact that
a certain competitor had completely closed its plant for 2 weeks at Christmastime
was coupled with the assertion that he had kept the Respondent's plant in operation
to provide employment during the holidays and to accomplish this he had offered
his salesmen extra bonuses. He assured the employees that so long as there was
,business around they did not have to fear layoffs.
Felix DeMarco, the Respondent's plant superintendent, was asked in the course of
his testimony whether he heard, some reference by Rimmier in his January 31
speech to the employees to the fact that "other companies laid off their employees
at a certain time but we didn't? - We keep you going," and he acknowledged that
while he did not remember Rimmier's exact words "there was something."
The plan or contract proposed to the employees was a document prepared by
Greenfield in collaboration with other company representatives. ' To explain his
failure to produce it at-the hearing , upon, the General Counsel's request, Greenfield
testified that all copies have disappeared. From his testimony and that of Kangiser
it appears that the document included provisions for group hospitalization and
insurance, vacations with pay, a,wage- classification system, and for the establish-
ment of an employee committee to deal with grievances under a multistep procedure.
The wage classification system was the result of a study on which a committee of
the Respondent's supervisory staff had been working for about 6 months before it
was incorporated in the plan,' and it provided for certain wage increases for the
employees. The vacation provisions added another paid holiday to those which
had previously been granted. The hospitalization and insurance provisions contained
improvements over those which were then in. effect. Greenfield had the impression
that it had not been Rimmier's intention to make the plan effective merely upon
receiving a favorable vote,from the employees•onJanuary 31, but that such a vote
would have been an indication-to him that he should continue his'discussions with
the employees along these lines. He could recall nothing said by Rimmier to
1422 DECISIONS OF. ;NATIONAL . LABOR - RELATIONS BOARD
support this impression other than Rimmier 's remark to the employees . that'- he
wanted , to know where he stood with them and whether they desired ,to speak further
with him about it if they liked the plan.
3. The February- 3, and 4 layoffs,
As proof. that the Respondent 's layoff- of 19 employees on February 3 and 4
was intended solely as an object-lesson to -, its remaining employees of what,might
happen 'to' them if ,they ' continued ` to` adhere 'to the Union , ' the General Counsel
points to the ' fact that'the layoffs were timed to occur on 'the -' next working day
after Rimmier's January 31 - speech in which he_ ,had' assured the employees that they
need not fear layoffs for economic reasons while , simultaneously warning them'
that rejection of his plan would entail their replacement . The rejection of the plan
despite - Rimmier's pleas ' resulted- in- the - fruition of-his warnings .- The General'
Counsel also supplied evidence - that there was no economic need for the layoffs.-
This evidence ' is derived from ' the -following - testimony of the General Counsel's
witnesses. E iployee Kulbis testified that -the Respondent 's seasonal layoff in prior
year's usually came before Christmas and occasionally just after Christmas upon
completion of inventory . He was quite certain 'that '-he had worked 8 hours in
excess- of the customary- 40' hours during 2 or 3 weeks in January 1958. (His
timecards in'evidence show tha't.he worked 11/2 hours overtime during the week-for
the'payroll period ending January 14 and that he worked 41/2, hours overtime during
the payroll week ending January' 28.1) :'-His"job-had been to cut material for fabrica-
tion of the Respondent's products used in its entire operation and just before Febru-
ary -5 *he`had 'advance order's to fill. -He further related that by December 1957 the
personnel in plant 4 where he then worked had been reduced to a skeleton crew
and the layoffs for that season had already been accomplished.' Employee Hofelich
testified that he had been' told sometime in January' 1958 by Foreman Leonard
Smith that the -Respondent now had a'plant in Chicago and there would be 'more
orders henceforth to keep 'the employees busy. 'He also stated 1t . was customary
for the Respondent to cut it's work force in the winter to a skeleton, crew and that
this usually happened no' later than October: Employee Mercedes Ponton recalled
that' the employees were busy before' the February 5' strike. Employee Eklund'
claimed he had enough maintenance work-to keep him busy. when he was laid off.'
Employee Bennington testified ' that - she 'had asked Foreman Kangiser in mid-
December 1957 whether there was dangerof a layoff, and he had expressed certainty
that the force"had been reduced to. a skeleton crew and there would be enough-
work. to keep the employees busy through the winter season . Employee Kelly said
that when she,was laid off Kangiser told her it would be for only 3 or 4 days.
- The Respondent's ,witnesses denied the essential aspects of,the foregoing testimony,
arid' offered explanations for the layoffs' to show that they were motivated solely by
lawful economic `rea'sons. Foreman Kangiser denied there was work for Eklund
when he was laid off. He denied the 'comments attributed to him by Bennington,
but conceded that other female employees had` asked him in December 1957 about
the danger of a layoff and to allay their fears resulting from layoffs then taking
place at other competing companies he had assured them there was a good amount-
of business coming in every day and it did not 'appear that employees would be laid
off. Kangiser testified that the Respondent had not been as busy in prior Decembers
as in this particular December and that this had led to his belief there would not be
a layoff. He observed that this condition prevailed throughout December and
up to January 20 at which time the work suddenly ran out and there was insufficient
work to keep all employees busy full time. He denied having told Kelly that her
layoff would be for only 3 or 4 days or, that he had given her.any indication that
she would he recalled'at all. Vice President' Becker testified that the Respondent's
winter layoffs occur from November 15 to February 15 and denied that by December.
1957 the work force had-been reduced to a skeleton crew.
' Becker conceded that business in early January had been _ better than normal..
However, just before he, left Miami on_ a business trip 'on January .20 he received
reports- of rapidly' declining business. - This he attributed to the. record-breaking
cold.spell which hit Miami in January` 1958. Ordinarily, according to Becker, when
the Respondent 's business fell off in the winter it kept its fabrication departments
active' by ' producing parts for stock to meet future orders. This, Becker related,
was being done to a certain extent in January 1958 but, because this procedure
required a favorable, cash position; the Respondent was unable to continue stock-
piling.' To show that the Respondent's cash position was unfavorable Becker related
that'-the Respondent had.to factor its.accounts receivable at high . interest - rates in
SEA VIEW INDUSTRIES, INC. 1423
order to borrow money, and had also applied to the Small Business Administration
for a loan. Its tight cash position was further reflected by the fact that in January
the Respondent had an overdraft on a $24,000 check.
To show the actual decline in the volume of the Respondent's business Becker
submitted data revealing the production costs for all of the Respondent's opera-
tions from December 1957 through March 1958. This data contains production
figures for the Respondent's "Local," "Branch," and "National" operations.
Local operations consist of work performed by Respondent's employees engaged
exclusively in the assembly of awnings and other products to fill orders for cus-
tomers in the Miami area. Because it usually takes 2 weeks from the time a sale
is approved before the order is processed, Local production figures for a given
period reflect the volume of sales 2 weeks earlier. Branch and National opera-
tions involved no assembly work by the Respondent's employees at the Miami
plant herein involved. Orders for Branch and National are apparently filled by
shipment only of the unassembled parts taken either from the Respondent's stock-
pile of standard parts or obtained by fabrication of parts to meet the special
requirements of the orders. These are the statistics submitted by Becker:
December 1957 Local Branch National Total
let week____________ $23,311.08 $24,624.11 $2, 280. 70 $50,215.89
2d week_____________ 15, 235 70 24, 918. 04 10, 389 83 50, 543 57
3d week_____________ 29, 833. 84 22, 278 31 3, 933 78 56, 045 93
4th week____________ 13, 487 27 16, 183 53 7. 01 29, 677 81
5th week (2 days) ---- 5, 611 44 6,159.89 6,159 89 14, 533.31
Total ------------ 87, 497. 33 94, 163. 88 19, 373 30 201, 016. 51
January 1958
1st week (3 days)____ 8,724 12 6,751.61 ________ 15, 475.73
2d week_____________ 20, 667 97 21, 746. 15 1334 58 43, 748 70
3d week_____________ 20, 440 97 22, 519 63 1:987.01 44, 947 61
4th week____________ 20, 656. 83 17, 844. 83 271063 41, 212 29
5th week____________ 17, 823. 80 19, 706 45 4:511:61 42, 041 86
Total ------------ 88, 313. 69 88, 568. 67 10, 543. 83 187, 426 19
February 1958
1st week____________ 13, 372 86 22, 196. 07 3, 842 01 39, 410 94
2d week_____________ 22, 060 55 19, 294. 56 2, 075 65 43, 430 70
3d week_____________ 14, 651. 48 24418 88 6, 585 14 45, 65 5 50
4th week____________ 14, 348. 71 26:240.31 10, 399 83 50, 988 85
Total ------------ 64, 433. 60 92, 149. 82 22, 902. 63 179, 486 05
March 1958
1st week____________ 16, 923 03 28, 349 39 7686 80 52,959 22
2d week_____________ 20, 660 56 20, 401 27 8:909.78 49, 971 bl
3d week_____________ 18, 434. 48 26617 07 8,908 21 53, 959 76
4th week____________ 27, 4S1 49 42:385.34 20, 409 09 90, 275 92
5th week (1 day)_____ 6, 120 10 10, 696 19 17, 340. 54 34, 156 83
Total 89, 619 66 128, 449 26 63, 254. 42 281, 323 34
Becker further related that he had met with President Rimmier and the
Respondent's comptroller before leaving on his January 20 trip and Rimmier had
told him that the business was taking a bad loss and instructed him to reduce the
work force at once. The accountant had revealed to Becker on January 15 or
16 that the Respondent had sustained a loss of about $50,000 in the previous
month. Becker claimed that because of all these circumstances he had directed
Superintendent DeMarco before leaving on January 20 to start cutting personnel
wherever possible.
William K. Napler, the Respondent's accountant, supplied data showing a
December 1957 loss by the Respondent in the amount of $52,728, for January
1958 in the amount of $25,655, and for February 1958 in the amount of $34,004.
He acknowledged that the Respondent always sustains a loss during the winter
season but noted that the loss for the 1957-58 season was greater than for the
comparable season of the preceding year. Thus the December 1956 loss was
$18,616. In January 1957 it was $22,186, and in February 1957 it was $17,726.
Despite the losses indicated, the Respondent earned a profit during the fiscal year
ending April 30, 1958. As to the bank overdraft mentioned by Becker, Napler
stated this occurred on January 31. The factoring of accounts receivable which
Becker testified had occurred in January was not resorted to, according to Napler,
until the spring of 1958.
Superintendent DeMarco testified that on January 20, at a time when Becker
was away on his trip to Chicago, Rimmier notified him to cut wherever necessary
and that "if the orders didn't increase, that we should decrease the personnel."
Sometime near the end of January DeMarco told his subordinate foremen,
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kangiser and Smith , to review the situation and to determine where reductions
could be made. On Friday, January 31 , he told Kangiser and Smith to give him
a list of employees who could be released without impairing production . Having
obtained these lists he waited over the weekend before taking action because he
wanted to see whether sufficient orders would come in by Monday to obviate the
need for a layoff . When the orders on Monday failed to materialize , he ordered
Kangiser and Smith to lay off employees as they saw fit from the lists they had
furnished.
The following named persons are the employees laid off on February 3
and 4, 1958.
Santiago Amador Ted Eklund Gaspar Lopez
Evelina Arbolaez Myrtle Flannagan Coe Morrison
Eugene Basora Ossiline Haddock Armando Perez
Houston Busby Conrad Hofelich Josefa Perez
Ramon Cordova Evelyn Kelly Rene Sanchez
Louise Dorange John Keller Ruth Sloan
Ida DuBois
4. The February 5 strike
Following the February 3 and 4 layoffs , a committee of the Respondent's employees
called on Fayad and declared there must be a meeting "to stop the terminations."
A meeting was thereupon held by the Union in the evening of February 4 attended
by 70 to 90 employees according to the estimates previously mentioned . The dis-
cussion was principally about the danger that other employees would be laid off
unless there was a strike. Fayad cautioned the employees about the hardships and
uncertainties of a strike , and urged that in view of Rimmier 's promise to communicate
with him on Thursday , February 6, no action be taken till then. The employees
expressed their lack of confidence in Rimmier 's word and voted unanimously in
favor of a strike to begin the following morning.
Pickets gathered about the Respondent 's several plant buildings early in the morn-
ing of February 5. During the course of the day picket signs were carried some of
which proclaimed merely that the Respondent 's employees were on strike and others
that the strike was for recognition of the Union. All signs included the Union 's name.
The Respondent began advertising in the newspaper for help on the second day
of the strike and within 2 weeks had hired sufficient employees to meet production
demands. The Respondent's payroll for the week ending February 4 shows 123
employees working . The payroll for the week ending February 11 shows 74 em-
ployees; for February 18, 95 employees ; for February 25, 111 employees ; and for
March 4, 110 employees . When Fayad became convinced that the plant was fully
manned and the picketing was ineffective he pulled off the pickets and decided to
await developments along other lines. About a week before the picketing ended
on March 7 Fayad addressed the striking employees at the Union 's hall and told
them that the plant was in full operation and that they ought to call Becker , Rimmier,
or Greenfield to ask whether they could go back to work. Employee Francis Cao
testified that in about mid-February he spoke to Rimmier from the picket line in
front of one of the plant buildings and asked him to take back the striking employees
but got no response About a week before the picketing ended on March 7, accord-
ing to Cao , he, Manuel Vilas, and Narcisco Musa met with Foreman Leonard Smith
in a restaurant and asked him to take back the employees . Smith promised to speak
to Rimmier and in about 2 days reported back to Vilas. Vilas testified that Smith
advised that Rimmier had said he did not want anybody back "to the job from this
strike " Smith confirmed the restaurant conversation with Cao, Vilas, and Musa,
and testified that he had understood them to be inquiring in behalf of "all" the
Spanish-speaking strikers, and that when he conveyed their message to Rimmier he
had asked "if they could all come back, those who were on strike " and that Rimmier
had replied , "No, they couldn 't come back for work."
Becker insisted there was no flat policy against employment of strikers , and that
any of them who had applied for work would have been given favorable considera-
tion except those whom he had listed in the notes he carried with him as undesirable.
In one category were listed 45 employees who had picketed on the first day of the
strike and who, having failed to return to work that day pursuant to the ultimatum
of President Rimmier delivered on the picket lines, were terminated as "quit." A
second list contained the names of the employees laid off on February 3 and 4 before
the strike began. A third list included the names of employees who had neither
been laid off nor had picketed but who had nevertheless not reported for work when
the strike began . Concerning his use of these lists, Becker testified , during cross-
examination , "All I was told was that all that were laid off were laid off and those
SEA VIEW INDUSTRIES, INC. 1425
that were on the picket line were told they were terminated and the other ones to use
my own judgment as to whether they come back or whether they don't come back,
or if they will come back or they had reason to come back and if I wasn't satisfied
with any of the reasons or because of that that I could mark them terminated."
Concerning those in this last category, Becker testified that all he was interested in
was whether they would come back to work, and if they failed to apprise him of their
intentions about returning to work and did not report, whether it was because of their
unwillingness to cross the picket line or for any reason, he assumed they had quit and
he terminated their employment. For this purpose he extended the Respondent's
rule that 2 successive days' absence resulted in automatic discharge of an employee
to 7 to 10 days' absence. He and his foremen had contacted all employees they could
reach who had not been identified as pickets but who had not reported for work
to ascertain their intentions. Some had stated they would report later and were
permitted to work when they came back in I or 2 weeks. He did not solicit the
return to work of picketers because he felt he had no right to disturb them while on
the picket line. But had these persons come back voluntarily to apply for jobs in
response to Respondent's advertisements they would have been employed if he had
jobs available. This he would not have done for the approximately 8 or 10 persons
whom he had listed in records as undesirable because of their misconduct during the
strike or for other reasons.
As evidence that the Respondent's policy was not as described by Becker, but
that the Respondent had decided to refuse reinstatement or employment to any of
the known or suspected strikers or their sympathizers, the General Counsel presented
accounts by several employees of their unsuccessful quests for work during and after
the strike. Employee Lucille Rodman testified that when she asked Superintendent
DeMarco for work in April 1958 he turned down her request for the reason that she
had been seen talking to union officials during the strike. The Respondent's denial
and explanation as well as all pertinent information relating to Rodman are set
forth in full detail at a later point in this report. Employee Gladys O'Brien, as
noted below in this report, described how she had asked DeMarco for her job about
3 or 4 weeks after the strike at a time when the Respondent was advertising for
help, but was told there was nothing for her at the time. DeMarco denied any con-
versation with her. Foreman Smith testified that during the strike he was lunching
with DeMarco in a restaurant when a striker named Michael Palmieri asked about
his chances of getting work and was told by DeMarco that the Respondent was not
hiring back any of the strikers. Smith further testified that DeMarco at other times
told him the same thing Palmieri testified that he had asked DeMarco for work
at the plant and that the latter told him he could not get his job back because he
was a striker and picketer. DeMarco denied all remarks ascribed to him by Smith
and Palmieri, and further explained that when Palmieri spoke to him in the restaurant
in Smith's presence he lamented the fact that he was afraid to come back to work
because he feared the consequences of crossing the picket line, and when Palmieri
spoke to him at the plant about a job, DeMarco told him only that there were no
openings because in fact there were none. Employee John Kulbis testified that just
before the cessation of picketing on March 7 he spoke to Becker by telephone and
stated his willingness to return to work. Becker replied that his lawyer had advised
not to hire anyone until "the hearing" (conceivably in the representation proceeding)
was over, and that Becker had added this might take 6 months or longer. Kulbis
claimed he applied to Becker again in June because he had heard that Becker was
"rehiring people" and wanted to know where he stood. He testified that Becker told
him "some people were involved in the Union through no fault of their own, and he
would consider taking some people back. And he told me he would let me know
when he wanted me back." He claimed Becker stated "as far as the Union that is
all finished; there is nothing to bother about that anymore." Becker admitted he
had two conversations with Kulbis. In the first conversation, while picketing was
still in progress, he had told Kulbis in reply to his inquiry that he did not know how
long the picketing would last or how many people he would need when it ended
and promised that if Kulbis were to contact him upon termination of the picketing,
he would give him a job if one were available. He denied saying that his lawyer
had advised him not to hire anyone till after the hearing, but conceded he might
have said something about the picketing continuing 6 months or longer. In the second
conversation with Kulbis in June. he had told him that when his name was reached
he would receive a letter informing him of a rob He denied the other remark
attributed to him by Kulbis, and claimed that when Kulbis told him various stories
about the Union; he stated he did not want to discuss the subject. Employee Betty
Beaker testified that twice after the strike started she had applied for a job. The first
time was about a week before the picketing ended Upon the advice of Foreman
560940--G1-vol 127-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kangiser she had called Rimmier who told her to come to his office. She reported
as instructed but he was not there . His secretary informed her she knew nothing
about the appointment and no one had knowledge of a job for her. While at the
office Baker also spoke to DeMarco and Greenfield . Subsequently she spoke to
Kangiser who learned about her unsuccessful effort to get her job back and told her
he could not do anything for her. Kangiser denied only that he had said to Baker
he had not been able to do anything for her. Greenfield related that when Baker
came to the office he had spoken to her in Rimmier 's absence and had summoned
DeMarco . Baker asked that they convey to Rimmier certain sentiments . She re-
vealed her financial plight because of the strike and her participation as a picket, and
how she would never again become involved in union activites whether she worked
for the Respondent or elsewhere and accused the Union of not keeping its promises.
When she asked Greenfield about her chances of coming back to the plant he advised
her to speak to DeMarco . DeMarco testified "she didn't come right out and ask for
a job." Employee Mercedes Ponton testified that she had called the Respondent
about 11/2 months before the hearing to ask for work and was advised by Greenfield
that she would be informed if there was an opening for her. She heard nothing
further. There is no need to relate Greenfield 's differing version of this testimony
for reasons stated later in this report.
5. The termination of the 45 pickets
On the first day of the strike, February 5, shortly before the noon lunch hour
President Rimmier addressed the pickets at their posts at each plant building and,
according to Fayad, said , "Your jobs are open you can go back to work if you
want to. I am going to give you about 10 minutes and if you are not back in there
in 10 minutes , I am going to pull your cards out and consider you as quits." At-
torney Greenfield , who accompanied Rimmier to three of the plant buildings,
testified he heard him tell the pickets at each of these locations "to come back in
to work or else he would consider that they had quit." Although testimony by
other witnesses ascribed to Rimmier an outright threat to "fire" pickets who failed
to return to work, I am satisfied that Fayad 's version of Rimmier 's precise words,
which is substantially in accord with Greenfield 's recollection , is correct Following
delivery of his ultimatum , Rimmier told Superintendent DeMarco to pull the cards
of all the pickets who had not come back to work that day before the regular
quitting time, and to send the cards to the payroll department DeMarco passed
this instruction to Foremen Smith and Kangiser. Kangiser conceded that pursuant
to DeMarco 's instruction he had checked the picket line to identify the employees
engaged in picketing and when they refused that day to return to work he pulled
their cards and sent them to the payroll department . He testified that the procedure
followed with respect to these timecards was the "normal procedure " followed by
him in turning over to the payroll department timecards for employees who were
absent from work 2 consecutive days. Kangiser evidently was referring to the policy
explained by Vice President Becker that an unreported absence from work for 2
successive days automatically resulted in the discharge of the offending employee.
The notation "final" is placed on timecards of employees who quit or are dis-
charged, and apparently is a notice to the Respondent 's payroll and personnel de-
partment to take all actions required fully to sever the employment relationship
such as cancellation of insurance coverage , preparation of final paycheck, and
notice to employees to turn in their uniforms and tools. Such procedure was in-
voked in the case of the 45 pickets whose cards were marked final on February 5.
6. Other alleged unlawful terminations
In addition to the alleged unlawful discharge of the foregoing 45 employees, the
General Counsel specified several others who allegedly were discharged on various
7 The following named persons are the employees whose cards were marked final on
February 5, in accordance with the instructions of President Rimmier ; John Kulbis, Jorge
Triana, Gustavo Perez, Michael Palmieri , Narcisco Musa , Leandro Castillo , Thomas Artese,
Carlos Gonzalez , Ismael Iglesias , Jose Mato, Fulgencio Monroy , Elizabeth Zotter , Charles
Zotter , Edward Dorison , Medardo Garcia, Maximo Piniero, Maria Marrero, Alberto Yanez,
Donald Roberts, Rudolpho Sarracino, Gustavo Pena , Mercedes Ponton. Helen Kmetz,
Jewell Hall , Felipe Felipe , Francis Cao , Mildred Schnable , Eugenia Ponton , Ada Phillips,
Mary Hall , Lily Embury , Rita Duquette , Marjorie Dunne, Georgianna Diaz , Lorena
Bennington , Betty Baker , Alma Wooten , Jose Rodriguez , Luisa Rodriguez , Antonio Platas,
Jose Moleon , Jose Lopez , Fred Lochman , Omelio Pena , and Stuart Urban.
SEA VIEW INDUSTRIES, INC. 1427
dates after February 5 because of their strike participation or sympathies , real or
suspected . Upon the conclusion of the General Counsel's case -in-chief , the Trial
Examiner granted a motion for dismissal of allegations of unlawful discharge as
to four of these employees-Katherine McDermott , Martha Tow, Manuel Valdez,
and Gabino Varela-for the reason that the General Counsel's evidence did not
permit an inference that they had been discharged . The Respondent 's motion to
dismiss was denied as to James Barbieri , Olga Bartos , Joseph Lugolenski , Lucille
Rodman, Margaret Simo, Manuel Vilas, Herman Matherly, Malva Bobo, Gladys
O'Brien, and Antonio Vilas. The record contains the following evidence concern-
ing their alleged unlawful discharges.
James Barbieri had worked up to the inception of the strike on February 5, and
not again thereafter . His timecard contains the entry "finish , February 11." Becker
denied that he had seen Barbieri on the picket line. He was never contacted by
him, and though he tried to reach him was unable to do so as he did not have his
address or telephone number. Not having heard from Barbieri for a week after
the strike started Becker reasoned that he had quit and the foregoing entry was
accordingly made on his timecard . DeMarco recalled that Barbieri had come to
the plant and believed that this was while the picketing was still in progress. On
this occasion Barbieri did not state his desire to return to work but requested a letter
from the Respondent concerning his employment records. There is no evidence
that Barbieri had picketed.
Olga Bartos had worked during part of the week before the February strike but
not thereafter . He timecard bears the notation "terminated February 11." Becker
testified that so far as he knew she had not contacted the Respondent and that the
latter in turn was unable to reach her . He did not see her picketing and when
she did not report for work or communicate with the Respondent the latter did
not know what she intended doing. Accordingly , her card was pulled and marked
"terminated ." There is no showing that Bartos had picketed.
Joseph Lugolenski had worked up to the start of the strike but not thereafter.
His timecard contains the entry "quit , February 11." Becker testified he had not
picketed and had not communicated with the Respondent . He could not be reached
by telephone so an acquaintance of his was asked to find out why he had not come
to work. No report was received by the Respondent . Because it was not known
whether Lugolenski was coming back his card was marked "terminated ." It was
not shown that Lugolenski had picketed.
Margaret Simo had worked until the strike and not thereafter . Her timecard is
marked "terminated , February 11." Becker testified that she had not picketed and
had not communicated with the Respondent . The latter made no effort to contact
her to learn her intentions about returning to work.
Malva Bobo had worked until the strike . Her timecard contains the entry on
February 11 "be back after line leaves." Becker testified that she had come to
the plant to advise she would return to work when the picketing stopped, and the
foregoing entry was accordingly made on her timecard . Thereafter , Becker was
informed by Foreman Kangiser that Bobo had advised him that she was afraid to
come back to work. Therefore , a termination of employment form was completed
for her on February 17 which states "scared away by pickets, subject to rehire."
Kangiser testified that Bobo had told him she did not wish to be regarded as a
striker but had her reasons for not crossing the picket line.
Antonio Vilas had worked until the start of the strike and not thereafter. His
timecard is marked "finished February I1." Becker testified that he was not sure
whether Vilas had returned to work following a leave of absence on January 15 for
an operation . However, because Vilas had not picketed and had not communicated
with the Respondent during the strike to make known his intentions and could not
apparently be reached by the Respondent , he had been terminated . There is no
evidence that Vilas had picketed.
Manuel Vilas had been on vacation when the strike started. He did not picket
at the beginning of the strike , but Becker knew he did so later. According to
Becker, his status as an employee ended on February 12. Becker believed that his
timecard was marked "final" or "terminated."
Gladys O'Brien had worked until the start of the strike and not thereafter. Her
timecard was marked "quit February 11." She testified that she had been at the
scene of the picketing on the first day of the strike although she had not performed
actual picket-line duty. She had chosen to honor the picket line , but about 3 or 4
weeks after the strike she asked Superintendent DeMarco for her job. He told her
he would first have to consult Becker and instructed her to call the next day. She
did and was informed by DeMarco there was no work for her at the time. She
further testified that she had known that the Respondent had advertised for help.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She had worked for about 2 years for the Respondent before the strike and was
experienced in the operation of a variety of machines used by the Respondent. She
also had worked for other employers for about 6 years at various machines of a
kind used by the Respondent. DeMarco denied having had the conversation with
O'Brien concerning which she had testified. Becker testified that she had not been
a picket according to his information. Because she had not contacted the Respond-
ent to reveal her plans and because he did not know what she intended doing he
ultimated marked her card "final" or "terminated."
Herman Matherly had worked up to the start of the strike. He refrained from
working until February 18. His timecard for February 11 is marked "be back after
line leaves ." From February 18 to 25 he worked 2 days. Then he was out because
of illness until April 15 when he returned and again worked till July 22 when he
resigned and left the State. His timecard for February 25 is marked "final" be-
cause when he was absent, assertedly for illness, the Respondent investigated and
learned that he was not at home and apparently not ill . Superintendent DeMarco,
nevertheless, reemployed him on April 15 at the request of "Foreman" Pittone.
Lucille Rodman's timecard is marked "layoff, reduction in force February 11."
She had sustained a serious injury in July 1957 while working for the Respondent.
This injury became seriously aggravated and complicated during treatment with the
result that she was able to work only for partial periods before the strike performing
light duties. When her disability required further treatment she would from time
to time cease work altogether. When the strike started on February 5 he was on
sick leave undergoing medical treatment. During the strike she drove by the plant
and stopped occasionally to chat with the women who were picketing. In the latter
part of April she went back to the plant to resume work and was referred to
Superintendent DeMarco by Foreman Kowal. She told him her doctor had in-
structed her to return to work. DeMarco remarked that she had been seen talking
to the "union officials in the picketing." Becker was apparently present at the time
and DeMarco, after speaking to him, turned to Rodman and told her to call him
in a day or so. She called as directed, but DeMarco told her he had nothing for
her and again remarked she had been seen talking to the union officials. She insisted
that at the time in question she was able to do light work.
DeMarco conceded that Rodman had spoken to him in April at the plant and
had told him her doctor had indicated that she should be given light work for
awhile. He thereupon consulted with Attorney Greenfield and both checked to
determine whether there was light work of a kind recommended by the doctor.
None was available. He told her that when she could do a full day's work he
might have something for her. He denied that he had made the remark ascribed
to him by Rodman about having seen her with " union officials," but admitted that
he had questioned her about an incident in February when he had seen Fayad stop
her at plant 4. He explained he had merely wanted to learn whether Fayad had
tried to prevent her from crossing the picket line to return to work. Greenfield
recalled that on the occasion when Rodman came to the plant he was apprised of
the purpose of her call by DeMarco. He called the insurance company which
covered the Respondent for workmen's compensation liability and ascertained it did
not object to Rodman's employment. Greenfield then told DeMarco to find out
whether there was any light work available and if so to put her to work.
Becker testified that when he became aware that Rodman had been working for
a short time in plant 4, supposedly on light duty, he declared that he did not want
her in the plant because she was sick and liable to get hurt. He decided to "termi-
nate" her, so he re-marked her February 11 timecard "quit." Then he discussed
the matter with Attorney Greenfield who pointed out that Rodman would be unable
to collect unemployment insurance payments so long as her card was marked
"quit." Becker decided not to be "that hard on the girl," so he crossed off "quit"
and substituted "layoff due to reduction in force."
Dr. Lawrence Medoff, a witness for the Respondent, related that he had been
Rodman's treating doctor, having been asked to handle her case by Becker.
During the course of his treatment he concluded that it would help his patient if
she were to perform light work of certain kinds for the Respondent. To secure the
Respondent's cooperation Medoff called Becker before January 1958 and indicated
what he wanted the Respondent to do for Rodman. The latter received work from
the Respondent but on two or three occasions was compelled to stop because of
physical pain. Following improvement on each of these occasions Dr. Medoff
called Becker and secured her return to work. He stated that Becker was very
anxious to cooperate by trying to find the work that she could do.
SEA VIEW INDUSTRIES, INC. 1429
7. The February 11 conference between the Union and Respondent
Certain factors relied upon by the General Counsel as evidence of the Respondent's
alleged refusal to bargain with the Union as the representative of a majority of its
employees have been noted in this report, including particularly the conduct by
Rimmier in the period directly following the receipt of the Union's January 25
letter. The General Counsel relies upon another incident as evidence of the
Respondent's bad-faith refusal to recognize and bargain with the Union. During the
course of the strike the Respondent had instituted injunction proceedings to restrain
certain of the Union's strike conduct. In connection with these proceedings there
was a hearing scheduled before a State judge in the Dade County courthouse in
Miami on February 11. On that day representatives of the Union and the Re-
spondent met on the steps of the courthouse and held a discussion. Those present
for the Union were Richard C. Davidson, its State director, Philip J. Clowes, di-
rector for the Gulf States organizing area, and Mr. Rutledge, the attorney appearing
at the hearing for the Union. Present for the Respondent were President Rimmier,
Attorney Jerome Fine who then represented the Respondent, and Attorney Green-
field. Davidson testified that Fine, acting as spokesman for the Respondent, wanted
to know what it was that the Union desired in the nature of a contract. Davidson
replied that he could not discuss this matter with the Respondent at that time,
but that if the Respondent wished to negotiate a contract he, Davidson, would
arrange for a meeting between the Respondent and representatives of its employees
or their local union to start negotiations the following morning. Fine said the
Respondent wanted to know what it would cost. Davidson responded that the
Union did not negotiate contracts this way, and that terms must be reached through
negotiation with the employees. Fine stated further that if the Union could tell
the Respondent what costs a contract would entail it would cancel the injunction
hearing about to take place.
Greenfield had this to say about the meeting. The principal spokesmen for both
sides were Clowes and Rimmier. Fine had asked what sort of contract the Union
had in mind and Davidson replied that his was not the type of union which makes
deals with employers or gives them special contracts, and that the way to proceed
was through negotiations with a committee representing the employees. Rimmier
then said, "Well, as a businessman what I am mainly interested in is how much in
dollars and cents will the cost of this contract be to me. That is, how much are
you looking for in hours and wages." Rimmier emphasized that cost was important
to him because of the Respondent's current financial difficulties. Clowes then indi-
cated unconcern with or disbelief in Rimmier's remarks about finances, and Rimmier
offered to open the Respondent's books. There was further discussion in which
Rimmier pleaded his case as a good employer and with Clowes insisting he was
interested only in raising the standards of employees. Greenfield conceded that
Rimmier throughout the discussion was primarily interested in finding out the cost
of a contract which the Union might demand, and that neither Rimmier nor any
other representative of the Respondent who had been present had asked any question
about the Union's majority status or about the bargaining unit which was involved.
8. Evidence concerning the alleged discharge of the API installers
The General Counsel produced the timecards of seven installers-Peter
Szychowski, Alfred Silva, Lester Christoffel, Joseph Cerra, Charles Thompson,
Russell Hibler, and Edward Podlewski-who at the beginning of the strike were
employed by API. The cards show that these employees had worked up to the
first day of the strike and then worked half that day but not thereafter. Each of
these cards is marked "Final" for the pay period ending February 11. Fayad testi-
fied that Szychowski, Christoffel, and Podlewski received strike benefit payments for
picket-line duty during the strike. Christoffel testified for the Respondent and
denied that he had picketed although admitting receipt of payment from the Union
for picketing. He claimed also not to have seen any other installer on the picket
line. He admitted asking the Union for the payment he received for picketing, and
further admitted he had been at the picket line, but only as a matter of curiosity.
I do not credit Christoffel's denial that he had picketed. While Foreman Fiore
testified he saw no installers picketing, he conceded the possibility that they may
have picketed at times or places when he did not observe them.
Joseph Fiore had been the API foreman over the installers at the time of the
strike. He testified that in the morning of February 5, the installers had crossed
the picket line when they reported for work. They asked him what was going on
and after some discussion they refused to work. Fiore argued that the strike in-
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved only the Respondent and not API and that it was not their concern. They
replied they would stay around a while before deciding what to do . Silva and
Podlewski asserted fear for themselves and their families if they worked and an-
nounced these fears to the other installers . Szychowski revealed his fear of violence
at night at his home . Fiore continued to emphasize that the Respondent and API
were separate corporations and pleaded with the installers not to be so foolish as
to give up their jobs for something which had nothing to do with them. They were
not persuaded by his arguments They declared their intention not to work during
the strike and to return upon its conclusion . Rimmier who was present on this
occasion told the installers about the same things said to them by Fiore. Fiore
further related that he heard "rumors" that some of the installers held union cards
and added that Szychowski had stated he did not want to lose his union card for
crossing the picket line
The next morning Fiore met again with the installers who had to cross the picket
line to Teach the meeting place . There was repetition of the things said the previous
day. When it appeared that Fiore could not prevail upon the installers to work,
he assertedly told them that if they did not want to work he would have to "replace
those who were going to quit the job." He testified that "actually they were going
to quit, as far as I was concerned , and I wasn 't letting anybody go actually." He
further told them he would insert an advertisement in the paper for new installers.
They replied they would think it over and let him know.
During the following morning the installers met again with Fiore. He testified
Szychowski said "he definitely is not going to work with us any longer " and that
Silva said "he definitely doesn 't want to work for the Company , regardless of when
the strike is over , or at any time ," and that he was "just leaving ." Silva also advised
Fiore that he did not know how long the strike would last and that he wanted to find
another job. All the others said that they would not cross the picket line and
that when the strike was over they would return to work. However, during that
day, and in succeeding days , each of the other installers here involved came to Fiore
and demanded that they be paid in full and were accordingly given final paychecks.
At the same time they turned in their uniforms. Fiore maintained that all said that
they "quit" but he could recall the names only of Podlewski , Silva, Cerra,
Szychowski , and Thompson as those who said they were "quitting ." Fiore further
testified that he did not let any of the installers go )and kept their timecards in the
rack until they told him they were quitting . He hired two replacements for them on
the third day of the strike and within the first week had hired a total of five
replacements
Christoffel's account of what transpired at the meetings of the installers with
Fiore and Rimmier was substantially as related by Fiore He insisted that Fiore and
Rimmier had told the installers that if they did not work they would be replaced,
and that finally the installers "quit" their jobs. Although he also "quit" he did not
use this term to denote his reason for not working . He testified , "I didn't use the word
quit; just didn't come back to work; that 's all." He quit , he testified , to look for other
work. Nevertheless , he did not look for other work but during the strike picked up
odd jobs He admitted that he was really waiting to go back to work for Sea View.
During the strike, as previously noted, he came to the picket lines on several days
with other installers simply out of "curiosity ," and he and four of the other installers
signed cards for the Union which were turned over to Fayad, and also attended
meetings of the Union Christoffel was rehired by API in March 1958 , and was
its employee at the time of the hearing.
9 Strike misconduct
DeMarco described an incident when he was accompanying four nonstriking
employees into the plant when a group of pickets "banged their shoulders" and
"started pushing" and "jostling" the persons crossing the line. He identified em-
ployees Francis Cao. Maria Marrero, Charles and Elizabeth Zotter, and Ted Eklund
and a "few Cubans" whose names he did not know as present on the occasion. His
succeeding testimony appears to indicate that he and Rimmier were the ones who
were shoved around and the specific perpetrators were Charles and Elizabeth Zotter.
DeMarco also saw Cao spit at an unnamed female employee who was entering the
plant with Jack Becker, the son of Vice President Becker. He heard vile name
calling and abusive epithets but could recall specifically only that employee Coe
Morrison call someone a "no-good son-of-a-bitch scab." He heard name calling
by employees John Kulbis and Marrero but could not remember what they said.
Foreman Kangiser witnessed an incident in which employee Jeanette Timmer sought
to leave the picket line but was forcibly restrained from doing so by Betty Baker and
Marjorie Dunne. Timmer was driven to tears by this experience and Kangiser took
SEA VIEW INDUSTRIES, INC. 1431
her to the plant office so she could regain her composure. Becker testified that rumors
had reached him of various acts of violence and other misconduct but that he had
himself witnessed only incidents involving Cao, Mercedes Ponton, Maria Marrero,
and Lorena Bennington. He saw Cao and Ponton "fooling around" with the auto-
mobile of Jeanette Timmer and then saw them slam the hood and run away. Later
he had to call a mechanic to repair the wiring of the automobile before it could be
started. He saw Marrero spit at an employee accompanied by his son. Becker
was also involved in another incident with Lorena Bennington which he regarded
as misconduct by her. She had used her station wagon to deliver coffee to the
picketers and had parked her vehicle on the street in such manner that the vendors
of coffee to the Respondent's employees inside the plant had difficulty maneuvering
their vehicles. When Becker asked Bennington to move her station wagon she
"read [him] off the riot act." He could not recall her exact words and believed she
did move her vehicle. There is also evidence of a knife-carrying incident which
resulted in the arrest of employee Gaspar Lopez. Lopez is not listed by the General
Counsel as a discriminatee, and he was subsequently offered reinstatement by the
Respondent. All the foregoing employees were also offered reinstatement by the
Respondent with the exception of Francis Cao, Maria Marrero, Mercedes Ponton,
and Lorena Bennington.
10. The offers of reinstatement
Following the issuance of the complaint the Respondent on advice of counsel sent
letters offering reinstatement to the following persons: Thomas Artese, Leandro
Castillo, Georgianna Diaz, Edward Dorison, Rita Duquette, Marjorie Dunne, Lily
Embury, Felipe Felipe, Medardo Garcia, Carlos Gonzales, Mary Hall, Jewell Hall,
Ismael Iglesias, John Kulbis, Fred Lochman, Jose Lopez, Fulgencio Monroy, Narcisco
Musa, Michael Palmieri, Omelio Pena, Ada Phillips, Maximo Piniero, Eugenia
Ponton, Donald Roberts, Jose Rodriguez, Luisa Rodriguez, Rudolpho Sarracino,
Mildred Schnable, Stuart Urban, Alma Wooten, Alberto Yanez, Elizabeth Zotter,
Antonio Vilas, Olga Bartos, Joseph Lugolenski, Gladys O'Brien, Lucille Rodman,
Margaret Simo, Edwin Reeves, and Malva Bobo.
The foregoing letters were not sent at one time but in several groups to the
aforementioned employees on June 25 and July 9, 24, and 29, 1958. Each letter was
identical and stated:
This is to advise you that your job, or a substantially equivalent one, is still
available to you, and we are hereby asking you to return to it.
Please let us know when or whether you will return to work. We want to
assure you that you will be fairly treated and we will be happy to have you back.
I find this letter to constitute a valid offer of reinstatement.
On August 14, 1958, a differently worded letter was sent to the following em-
ployees: Gustavo Pena, Jose Moleon, Jose Mato, Jorge Triana, Gustavo Perez,
Antonio Platas, Betty Baker, and Charles Zotter.
The August 14 letter stated:
This is to advise you that your job, or a substantially equivalent job, is still
available to you, provided you are presently qualified for the job, and we are,
accordingly hereby asking you to return to it now.
However, in fairness to you, as you know, our slow season will be approach-
ing shortly and we may then have to lay off some employees. We can't advise
you whether or not you would be laid off in the event of such a reduction, other
than to say that you will be treated exactly the same as if you had been working
at Sea View since the beginning of your last employment with the Company.
Please let us know when or whether you will return to work. If you desire to
discuss this with us we will be happy to do so at your convenience.
I do not find the August 14 letter to have constitued a valid offer of reinstatement.
To impose as a requirement for eligibility to their former jobs that they must presently
be found qualifi"d must on itc face onstitu+e the addition of a new condition for
employment whch did not prevail when the employees held their jobs before the
strike. There is nothing to show any change in the duties or skills required by
these jobs. The proviso in the letter must logically be regarded as a notice that
the Respondent intended to review the qualifications of the returning employees
and to apply new standards of fitness for the jobs which could result in their
rejection. This is not an unconditional offer of reinstatement.
No letters were sent to the employees laid off on February 3 and 4, or to the API
installers whose cards were marked "Final" on the February 11 timecards. No
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters were sent to Francis Cao, Mercedes Ponton, Maria Marrero, or Lorena
Bennington because Becker considered them undesirable employees on account of
their alleged misconduct during the strike. No letter was sent to Manuel Vilas
because Becker regarded him as undesirable for reasons related to incidents which
preceded the strike.
Findings
The Respondent was clearly opposed to unionization of its employees. This was
evident before the Union's January 25 letter was received as shown by Hofelich's
credited account of Rimmier's threat to sell the plant before he would talk to a
"union man" and his direction to the employees not to attend a union meeting.
Rimmier's implacable hostility to the Union and the road he was willing to travel to
prevent it from coming into the Respondent's plant became even more notorious in
the days which followed January 25 as shown by the testimony of the General
Counsel's witnesses who related his attempts to dissipate the Union's majority by
promises of benefit and threats, and his utter disregard of the Respondent's statutory
obligation to deal with the Union rather than directly with its employees concerning
their terms and conditions of employment. Even without regard to that testimony
concerning Rimmier's conduct which was disputed by the Respondent's witnesses,
there is incontestable proof that Rimmier instantly upon receiving the Union's
January 25 letter resorted to illegal means to avoid recognizing and bargaining with
the Union as the representative of the Respondent's employees and to destroy its
majority. Thus, there is no denial that he summoned employee Vilas to his office
and discussed with him means of dealing directly with the employees and even
agreed to Vilas' suggestion that he bring the employees to him that very afternoon
for that purpose. The Respondent may not seek refuge from the sanctions of the
Act for such conduct because Vilas may have prompted Rimmier to undertake
a course of dealing directly with the employees. It is perfectly apparent that
Rimmier sought to make Vilas his ally and spontaneously adopted Vilas' promptings
as his own plan of action to defeat the Union. 'It is also plain that Rimmier made a
material offer to Vilas for the latter's services whether it was directly an offer of
cash or indirectly to help Vilas' "cause." I have no hesitation in finding that this
offer was intended to purchase Vilas' continuing efforts to help Rimmier prevent
the Union's intrusion into the plant. It is further undeniably true that in the week
following January 25 Rimmier did go directly to the Respondent's employees and
attempted to "woo" them away from the Union, as Attorney Greenfield frankly
conceded, by offering them a plan which was nothing less than a labor contract.
This was done in utter disregard for the mandate of the Act to refrain from by-
passing the representative of the employees. In these circumstances, it is not
surprising to find that Rimmier also resorted to promises of material benefit such
as those provided in the proffered plan, threats to close the plant, threats to dis-
charge employees, and assertions that he would have nothing to do with the Union
in order to compel rejection by the employees of the Union and to accept his plan
with its built-in nonunion representation feature. That the Respondent for months
had been preparing a wage classification system, and had been for some time con-
sidering improved insurance coverage or other benefits for its employees hardly
excuses the Respondent's timing of these offers to the employees. As soon as the
Union's demands for bargaining and recognition were received the Respondent's
leisurely study of these matters was transformed to dynamic action. Obviously,
these benefits were hurriedly trotted out to persuade the employees that they did
not need the Union to improve their condition.
I do not rely in making these findings upon the testimony of Myrtle Flannagan
because there was a vagueness about her and a disinterested attitude which stamps
her as unreliable. This was not true of the other witnesses for the General Counsel,
all of whom impressed me as earnest, cooperative witnesses desirous of telling the
truth as they knew and remembered it. I credit their accounts of Rimmier's conduct.
I intend no aspersion on the integrity and honor of Attorney Greenfield, but I do
not derive from his testimony a convincing denial of the accounts by the General
Counsel's witnesses of the remarks attributed by them to Rimmier, particularly as I
have the impression that Greenfield cautiously hedged his opposite testimony with
reservations about not hearing Rimmier say these things, or that they were not said
in his presence, or that he has no recollection that they were said. I have the
distinct impression that in his commendable loyalty and devotion to Rimmier
Greenfield rationalized that Rimmier was motivated only by the noblest of sentiments
and was incapable of improper conduct so that he mistakenly believed or could
not remember that Rimmier had actually said and done the things related by the
General Counsel's witnesses. Whatever may be the explanation, I am convinced and
SEA VIEW INDUSTRIES, INC. 1433
find that the General Counsel's witnesses, with the exception noted, correctly and
reliably reported the sense of Rimmier's coercive and threatening remarks. In this
connection I have discredited the denial by Kangiser of these utterances attributed
to Rimmier, because with respect to this testimony by him I was impressed with
his partisan desire to help the defense as evidenced by his untruthful testimony
that in the January 31 speech to all the employees Rimmier stated that he did not
even know which union was seeking to represent them. As alleged in the complaint,
I find that the Respondent violated Section 8(a)(1) of the Act by: (a) Declaring to
employees it would not deal with the Union; (b) threatening to close the plant
rather than deal with the Union; (c) threatening employees with reprisals for failing
to reject the Union and for failing to accept a labor contract offered by it; (d) offer-
ing things of material value to enlist the support of an employee to defeat the Union;
(e) offering to pay for the services of an attorney selected by the employees to
assist them in negotiating a labor contract which would bypass the Union; (f) prom-
ising wage increases and other benefits to induce employees to abandon the Union;
and (g) polling employees to determine their preference for a labor contract which
was intended to bypass the Union.
I find that the layoff of 19 employees on February 3 and 4 was unlawfully
motivated by the Respondent's desire to drive home to the employees that the threats
of the preceding week were not idly spoken, and to demonstrate objectively the
consequences to the employees of their continued adherence to the Union and their
rejection of the Respondent's nonunion plan. In reaching this finding I have meticu-
lously reviewed the Respondent's economic justifications for the layoffs and find
them unconvincing. First, the economic data supplied by Becker does not reveal
the dramatic decline in mid-January depicted by him and other witnesses for the
Respondent. The Respondent's production figures relied upon by Becker reflect
a relatively consistent overall position for the entire period from the second week
through the fifth week of January 1958. While the Local figures for the fifth
week of January reflect a drop of about 14 percent from the preceding 3 weeks,
the Branch figures show an increase in the fifth week of about 13 percent over
the preceding week, and, on an overall basis, the production figures for the fifth
week show a slight increase over the figures for the preceding week. While the
Respondent presented timecards of 19 employees to show they each worked less than
40 hours in the payroll period ending January 14, and 20 cards to show less than 40
hours worked by employees in the period ending January 21, the timecards in
evidence for the same employees for the period ending February 4, right at the
time of the layoffs, shows that these employees had worked full time. Significantly.
the Respondent did not produce timecards for these employees for the pay period
ending January 28. I infer it did not because it would also have shown full time
worked by these employees. The losses in December 1957, in fact during the whole
winter season, were not unexpected. Indeed, it was the time of year when the
Respondent regularly operates at a loss. The tight financial situation as evidenced
by the overdraft and the factoring of accounts apparently was not as critical when
Becker ordered the layoffs about January 20 as it may have been later, and thus,
as I see it, had little if anything to do with the layoffs. Thus the bad check did not
bounce until January 31 and the accounts were not factored until months later.
Furthermore, the Respondent continued to fabricate parts for stock from January 20
to the end of the month just as before. If the Respondent's cash plight had been
so bad by January 20, this operational condition would undoubtedly have been
altered at once. I cannot believe that if the situation before Becker had left on
January 20 had been as critical as he claimed, there would have been a delay of
2 weeks before employees would have been laid off, and I cannot accept as true
Becker's explanation that his subordinates did not carry out his orders as promptly
as he would have liked, for Becker strikes me as a commanding person who would
not endure such disobedience from his inferiors. In fact he had transferred the
hiring and firing authority that very month from Kangiser and Smith to DeMarco
just so that he could get more effective compliance with his demands for reduction
of personnel and DeMarco knew this. I do not believe that DeMarco would have
delayed for 2 weeks to carry out an order from Becker to cut personnel immediately.
The General Counsel's evidence, by contrast with the Respondent's ineffective
explanation for the layoff, is highly persuasive that it was for an unlawful purpose.
Rimmier's weeklong campaign to dissuade the employees from adherence to the
Union, his numerous acts of restraint, coercion, and interference to accomplish that
result, and his final threat on Friday afternoon, January 31, to replace the employees
for failure to accept his plan cogently support the General Counsel's contention
that the layoffs which followed on the heels of the rejection of the plan were timed
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to show that Rimmier's threat was meaningful . I am mindful that in his January
31 speech Rimmier had sought to gain the favor of the employees by telling them
that unlike its competitors the Respondent did not lay off its employees in periods
of economic distress . Surely, Rimmier was cognizant of all the economic factors
now relied upon by the Respondent in its defense when he made this remark.
How, then, can the layoffs be explained , except to find as I do that they were reprisals
for rejection of the plan and but another unlawful act added to numerous others
in the Respondent 's efforts to defeat the Union? The layoffs of February 3 and 4
for these reasons were violative of Section 8 ( a) (3) of the Act.
I further find that the Respondent on and after January 25 , 1958, unlawfully
refused to bargain with the Union in violation of Section 8(a)(5) of the Act. I
have already found that the Union represented a majority of the Respondent's
employees in the appropriate production and maintenance unit for which it had
requested recognition and bargaining . In these circumstances the Respondent was
statutorily required to accord the recognition requested and in good faith to bargain
with the Union concerning terms and conditions of employment for the employees
in that unit . Instead of abiding by its statutory obligation the Respondent set out
from the very moment that it received the Union 's letter to destroy the Union's
majority and to secure rejection of the Union by its employees in complete disregard
of the collective -bargaining principle of the Act. That it did so is amply demon-
strated by the foregoing findings of unlawful conduct
The Respondent defends its refusal to recognize the Union and to bargain with
it on the ground that it had doubts as to the Union 's majority and the unit for which
the Union sought recognition and bargaining . The record shows that the Respond-
ent never questioned the Union's claim of majority . The Union had offered in its
letter to satisfy the Respondent by a crosscheck of its designation cards that it
represented the required majority. The Respondent did not avail itself of this
opportunity . I am satisfied from all the evidence in this case that the Respondent
not only never entertained doubt as to the Union 's majority but in fact had adequate
reason to believe that the Union did in fact represent a majority . I am further
satisfied that the Respondent at no time had any doubt as to the unit for which the
Union sought recognition and bargaining. The fact that the January 25 letter
did not specify the conventional exclusions listed in the Union's petition filed with
the Board on January 27 did not create any ambiguity or confuse the Respondent
as to the unit sought by the Union . If there had been any doubt on the Respondent's
part concerning this issue when it received the Union 's letter , such doubt must
have been dispelled completely by the specificity of the January 27 petition. The
Respondent 's response to the letter and to the petition convinces me that there
was no doubt as to the Union 's unit demands in either case for the Respondent's
unlawful conduct was of the same sort after it received the letter as it was after
the filing of the petition . In any event a union's request for bargaining is not
defective because it fails to specify the particular production and maintenance
employees which it seeks to represent.8 The fact that the Union at the February 21
representation hearing improperly sought to include the API employees who I have
found do not belong in the appropriate unit does not excuse the Respondent's
refusal to bargain because the inclusion or exclusion of these employees would not
alter the essential nature of the production and maintenance unit requested by the
Union 9 and their inclusion would not alter the Union's majority status.10 Here also
I note that there is a total absence of any indication from the Respondent that it was
confused by the Union's failure at any time after January 25 to state its position
concerning the inclusion of the API employees in the desired production and main-
tenance unit I find for all the foregoing reasons that the Respondent on and after
January 25 . 1958, refused in good faith to bargain with the Union for a unit of the
Respondent 's production and maintenance employees in violation of the Act.
It is clear that the February 5 strike was touched off by the layoffs of Februarv
3 and 4. The credited testimony of the General iCounsel's witnesses who attended
8 Dan River Mills, Incorporated , Alabama Division , 121 NLRB 645
8 Dan Rover Mills, Incorporated , Alabama Division, supra ; American Rubber Products
Corp , 100 NLRB 73.
10 If on January 25 the 16 API employees were added to the appropriate production and
maintenance unit, the size of the unit as shown by the data hereinabove set out would
have been 131 On January 21, the size of the unit would have been 135. As shown, the
Union had been designated on January 25 by at least 74 employees and on January 27 by
at least 78 employees On either date in these circumstances the Union had a clear
majority.
SEA VIEW INDUSTRIES, INC. 1435
the February 4 union meeting when the strike resolution was adopted shows beyond
question that the decision to strike was motivated by the employees' fears that they
would be the next to lose their jobs because of their union activities and that it was
necessary to strike for their mutual protection. The fears implanted in the em-
ployees by the February 3 and 4 layoffs were the product of the weeklong course
of coercive conduct to which they had been subjected by President Rimmier, par-
ticularly his threat on January 31 to replace them for failure to accept his plan.
I find, therefore, that the February 5 strike was caused by the Respondent's unlawful
layoffs of February 3 and 4 and by the unlawful acts of restraint, coercion, and
interference with the protected activities of the employees committed by the Re-
spondent as a prelude to the layoffs. While these were the immediate causes of
the strike, it is apparent from the picket signs displayed during the strike and from the
assertion by the Union's counsel at the February 21 representation hearing that
the strike was also utilized as a means of compelling the Respondent to recognize the
Union as the representative of its employees. For purposes of determining
whether the strike was caused by the Respondent's unfair labor practices or was
purely for the accomplishment of economic objectives it is immaterial that the Union
intended by the strike to compel the Respondent to accord it recognition. As the
Respondent had unlawfully refused to recognize the Union on and after January 25,
a strike to compel recognition must also be regarded as caused by unlawful conduct.
I find that the strike was at its inception and at all times thereafter the result of
the Respondent's unfair labor practices.
I find that on February 5, 1958, the first day of the strike, the Respondent dis-
charged the 45 employees who were identified that day as picketers and whose
employment was terminated upon failure by these employees to accede to the
picket-line ultimatum by President Rimmier that they return immediately to work
or be regarded as "quits." I reject the contention advanced in the Respondent's
brief that Rimmier's intent, regardless of his choice of words, was to convey to
the employees merely that if they did not return to work he would replace them
as he had a lawful right to do. That this was not his intent is clearly shown by
the actions taken that very day to terminate the employment relationship as ir-
revocably as if these employees had been discharged for misconduct in the course
of their work or for any other reason 11 That the Respondent regarded their status
as employees at an end on February 5 is amply demonstrated by the testimony of
Vice President Becker to the effect that he had listed these 45 employees as "ter-
minated" and would have taken them back only if they had applied for work in
response to the Respondent's newspaper advertisements for new employees. This
situation is hardly comparable to the circumstances of those cases relied upon by
the Respondent to the effect that an employer should not be penalized by a hair-
splitting or semantic approach to an interpretation of the words used by him when
all that he was really telling employees when he said their jobs would be terminated
or vacated was that if they persisted in striking they would be permanently replaced.
In the first place the 45 picketers were unfair labor practice strikers who could not
be permanently replaced. Furthermore, if, as the Respondent argues, the test of
what an employer really means depends upon whether the employees are given
or refused their jobs when they later request them, it is plain by the application of
this test that Rimmier meant to and told the picketers that they would be discharged
for failure to comply with his order because they could have returned later only
on application as new employees. I am furthermore convinced that the Respondent
as a matter of policy would not have rehired these terminated employees (before
the reinstatement letters were sent to them upon advice of counsel) because of their
strike or union activities. This conviction is based on the credited testimony of
Leonard Smith that DeMarco had told him the Respondent was not hiring back
any of the strikers, the testimony of Lucille Rodman concerning DeMarco's remark
that she had been seen talking to union officials, the testimony of John Kulbis that
Becker had said he would consider taking back some employees who had been
involved with the Union through no fault of their own, the failure of Betty Baker
to receive employment despite her twice-made efforts at a time when the Respondent
was hiring employees, the failure of Gladys O'Brien to receive employment upon
her application, and the refusal by President Rimmier to permit the Spanish-speaking
employees to return to work when Leonard Smith conveyed to him the request of
Cao, Vilas, and Musa that these employees be restored to work. I find that the
45 employees whose employment was terminated on February 5 were unlawfully
"Cf. Kerrigan Iron Works, Inc., 108 NLRB 933; see David G. Leach at al., d/b/a
Brookville Glove Company, 114 NLRB 213.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged in violation of Section 8(a)(3) of the Act because they refused to
abandon their strike.
I find that the Respondent in violation of Section 8(a) (3) of the Act unlawfully
terminated the employment of Lucille Rodman on February 11, 1958, when her
timecard was marked "layoff, reduction in force." I reject Becker 's explanation that
this action was taken as a precaution against injury on the job to Rodman. The
fact is, as Dr. Medoff related it, that Becker had known long before February 11
that Rodman was working in the plant because she was there by personal arrange-
ment between Becker and Dr. Medoff. Becker's explanation that he decided to get
Rodman out of the plant as soon as he became aware that she was working is ob-
viously untrue . Moreover , she had not been at work for some time before Feb-
ruary 11, so there remains unexplained how it was that Becker learned of her prior
employment on that date but had not known of it during all the weeks before
then when she was actually on the job. I am satisfied Rodman was discharged
on February 11 because of Becker 's belief that she was supporting the strike.
DeMarco's remark to Rodman when she applied for work in April that she had
been seen talking at the picket lines to union officials implies animus toward her
for such conduct , and in the circumstances of this case the Respondent 's resentment
for her intimacy with Fayad during the strike is a more reasonable explanation for
the refusal to give her work in April then Becker 's explanation for her termination
in February . DeMarco's own version of his conversation in April with Rodman
leads to the conclusion that he believed she had decided to honor the picket line
during the strike because she had been stopped by Fayad. Becker, as previously
noted, maintained a special category of employees who had not picketed but who
had nevertheless not reported for work when the strike began. If these employees
had failed to give him a satisfactory explanation for not working during the strike,
and he was satisfied that they were unwilling to cross the picket line, they were
terminated . Rodman apparently was in this category. When she was seen at the
picket line talking to Fayad and did not report for work she was deemed unwilling
to cross the picket line and was consequently unlawfully terminated for this reason.
Absent the Respondent 's discrimination against her she would not have been sent
away by DeMarco in April with the admonition to apply again only when she could
perform a full day's work , but would have been assigned the same light duty she
had performed for weeks before the strike.
I find that Manuel Vilas was unlawfully discharged in violation of Section 8(a) (3)
of the Act on February 12, 1958, when on that date his timecard was marked "final"
or "terminated ." Vilas' prominence in the Union 's campaign and the Respondent's
knowledge thereof have already been related. It is clear that the Respondent before
the strike became disenchanted with Vilas as an ally in its attack upon the Union.
Becker further acknowledged that Vilas had picketed . I am satisfied that Becker's
termination of Vilas' employment was in line with his policy of terminating em-
ployees who honored the picket line and failed to provide some other satisfactory
explanation for not reporting to work during the strike . I am further satisfied that
the Respondent 's animus towards Vilas for his failure to cooperate as an ally against
the Union was also a motivating element in the decision to terminate him. This is
demonstrated by Becker's later refusal to offer him reinstatement . His explanation
therefor , that he regarded Vilas as an undesirable employee for reasons antedating
the Union 's advent, does not impress me as being the real reason for this refusal,
especially in view of the mutual affection pledged by Rimmier and Vilas when the
former was seeking to enlist him in his antiunion campaign during the week before
the strike.
I find that James Barbieri , Olga Bartos , Joseph Lugolenski, Margaret Simo,
Antonio Vilas, and Gladys O'Brien were unlawfully discharged in violation of
Section 8 ( a)(3) of the Act on February 11, 1958, as strikers when their timecards
were marked "finished," "quit," or "terminated ." Each of these employees had
worked up to the start of the strike and not thereafter . The most reasonable ex-
planation for their absence from work during the strike was the fact that they had
honored the picket line and were themselves strikers Becker's assumption that they
had voluntarily quit was wholly without foundation and I consequently do not
believe that he in fact had so interpreted their absence from work or their failure
to communicate with him concerning their future intentions. I believe instead that
he regarded them as supporters of the strike who were unwilling to cross the picket
line and that their employment was terminated for this reason.
Allegations that Malva Bobo and Herman Matherly were unlawfully discharged
are not supported by the record . Bobo had informed the Respondent she was not
a striker and there is no evidence that she had been discharged . Matherly had
returned to work during this strike and there is no evidence that he was ever dis-
SEA VIEW INDUSTRIES , INC . 1437
charged for his strike activities or sympathies. I shall recommend that the allega-
tions as to Bobo and Matherly be dismissed.
I find that the allegation that the Respondent unlawfully discharged seven API
installers because of their refusal to cross the picket line has not been sustained.
Whatever misgivings I may have concerning testimony by Fiore and Christoffel,
particularly by the latter, that the installers had "quit" their jobs in the sense that
they were voluntarily relinquishing their jobs, this testimony is not contradicted by
any other witnesses nor refuted by other evidence. I must, therefore, find that the
installers were not discharged as strikers but that the designation "Final" on their
timecards reflects a voluntary termination of their employment.
I have found that the Respondent's employees who engaged in the strike against
it were unfair labor practice strikers. An employer is required to reinstate such
strikers upon receiving their unconditional offers to return to work, and failure to do
so is violative of the Act. I find that Gladys O'Brien had made a proper request for
reinstatement when she applied for work about 3 or 4 weeks after the start of the
strike, and that DeMarco had failed to put her to work although the plant was
virtually in full operation. The Respondent thereby unlawfully refused to reinstate
O'Brien in violation of Section 8(a)(3) of the Act. Michael Palmieri's request to
DeMarco during the strike for employment and the latter's refusal to reinstate him
wasalso unlawful. Becker's failure to reinstate John Kulbis when the latter stated
his desire to return to work just before the strike ended in March and again in June
1958 was unlawful. I am satisfied from Betty Baker's testimony that when she
came to the Respondent's office about a week before the strike ended it was under-
stood by DeMarco that she was seeking employment even though she may not as
he testified have "come right out and asked for a job." His failure to reinstate her
at that time was unlawful. Because I find that Mercedes Ponton's misconduct during
the strike disqualified her for employment by the Respondent I do not pass upon her
controverted testimony that she had applied for and was denied reinstatement. I
have credited Foreman Smith's uncontroverted testimony that he had told President
Rimmier about a week before the strike ended on March 7 about the inquiry from
Cao, Vilas, and Musa concerning the return to work of all the Spanish-speaking
strikers and that Rimmier had declared they could not return. The General Counsel
contends that these circumstances constituted an unconditional request by the striking
employees for reinstatement and an unlawful refusal by the Respondent to reinstate
them. I disagree. There is no showing that Cao, Vilas, and Musa had been au-
thorized by any of the strikers to speak for them. Actually the record does not even
show that the other strikers knew that this delegation was speaking in their behalf.
So far as appears Cao, Vilas, and Musa were acting strictly on their own. In these
circumstances it cannot be determined that the strikers were offering immediately
to abandon the strike and to return to work.
I find that the strike misconduct of Francis Cao, Maria Marrero, and Mercedes
Ponton disqualifies them for future employment with the Respondent, and that the
Respondent was thereby relieved of any obligation to offer them reinstatement. I do
not consider the incident described by Becker involving the argument with Lorena
Bennington over the parking of her station wagon as disqualifying conduct on her
part. The Respondent's refusal to offer her reinstatement because of this incident
was not legally justified. There is no need to discuss or make findings concerning
the alleged misconduct of other strikers as the Respondent has, except for Cao,
Marrero, Ponton, Bennington, and Vilas, completely condoned their conduct by
sending them letters offering reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent has refused and still refuses to bargain
collectively with the Union as the exclusive representative of the employees in the
appropriate unit described herein. It will therefore be recommended that the Re-
spondent bargain collectively, upon request, with the Union as the exclusive repre-
sentative of the employees in the appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has also been found that the Respondent had on February 3 and 4, 1958, dis-
criminatorily laid off the following employees whom it has not since reinstated or
recalled to employment: Santiago Amador, Evelina Arbolaez, Eugene Basora, Hous-
ton Busby, Ramon Cordova, Louise Dorange, Ida DuBois, Ted Eklund, Myrtle
Flannagan, Ossiline Haddock, Conrad Hofelich, Evelyn Kelly, John Keller, Gaspar
Lopez, Coe Morrison, Armando Perez, Josefa Perez, Rene Sanchez, and Ruth Sloan.
It will therefore be recommended that the Respondent be ordered to offer them im-
mediate and full reinstatement to their former or substantially equivalent positions
without prejudice to seniority or other rights and privileges. It shall also be recom-
mended that the Respondent make whole these employees for any losses they may
have suffered because of the discrimination against them by payment to each of them
of a sum of money equal to the amount that he normally would have earned as wages
from the date of such discrimination to the date of the offer of reinstatement less
his net earnings during said period, with backpay to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289.
It has further been found that the Respondent unlawfully discharged 45 employees
on February 5, 1958, while they were on strike, and that an additional 8 employees
were unlawfully discharged on various dates thereafter because of their suspected
strike activities or sympathies. Valid offers of reinstatement have already been sent
by the Respondent to certain of these unlawfully discharged employees. It will be
recommended that the Respondent be ordered to offer immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to seniority
or other rights and privileges to the foregoing discriminatorily discharged employees
who have not received valid offers of reinstatement. Because I have found that they
committed misconduct during the strike which disqualifies them for future employ-
ment with the Respondent, the foregoing requirements shall not apply to employees
Francis Cao, Maria Marrero, and Mercedes Ponton.
Ordinarily, discriminatorily discharged employees are awarded backpay from the
date of their discharges to the date when a valid reinstatement offer is made to them.
Here, the discharged employees were engaged in a strike before and after the date
of the discrimination against them. The Board's practice is not to award backpay
to employees discriminatorily discharged while on strike on the theory that until it
appears that the employees who desire employment have given up the strike it cannot
be established that the loss of pay was conclusively attributable to the employer's
conduct 12 I find that the strike was wholly abandoned and ended on March 7, 1958,
when all picketing finally ceased. It is therefore recommended that backpay shall
be ordered paid by the Respondent to the foregoing discriminatorily discharged em-
ployees from March 7, 1958, to the date when the Respondent has offered or may
offer these employees reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges. The fore-
going recommendation with respect to backpay shall not apply to employees Gladys
O'Brien, Michael Palmieri, John Kulbis, and Betty Baker. I have found that these
four employees had made valid requests for reinstatement before the termination of
the strike on March 7. I shall therefore recommend that their backpay be ordered
paid from the dates when they made their requests for reinstatement. Because the
precise dates of their requests cannot be determined from this record, such dates will
be determined during the compliance phase of this proceeding.
I further recommend that the Respondent shall, in carrying out the foregoing
order for reinstatement of the employees who have been discriminatorily deprived
of their employment, dismiss if necessary any employees hired subsequent to the
discrimination against them. If, after such dismissal, there are insufficient positions
remaining for all of these employees, the available positions shall be distributed
among them on the basis of seniority or such other nondiscriminatory practice as
may have heretofore been applied in connection with a reduction in force in the
Respondent's business. Those employees for whom no employment is immediately
available after such distribution shall be placed on a preferential hiring list with
priority determined among them by such seniority or other nondiscriminatory system
previously applied in the Respondent's business, and thereafter, in accordance with
such list, shall be offered reinstatement as positions become available and before
other persons are hired for such work. Loss of earnings which any of the foregoing
discharged employees may have suffered because of the discrimination against them
shall be computed in accordance with the Board's formula in F. W. Woolworth
Company, supra.
Because of the foregoing recommendations, it is unnecessary in order to provide
an adequate remedy herein to refer again to the fact that the foregoing discharged
12 Commodore Watch Case Co., Inc., 114 NLRB 1590.
SEA VIEW INDUSTRIES, INC. 1439
employees are also unfair labor practice strikers who were entitled to reinstatement
upon a valid request, and that they should receive backpay from the time when they
may have submitted valid requests for reinstatement. I have found that only
employees O'Brien, Palmieri, Kulbis, and Baker had made such valid requests before
the strike ended on March 7, 1958. I have rejected the Union's contention that the
discussions between employees Cao, Vilas, and Musa with Foreman Leonard Smith
about a week before the strike ended were tantamount to a valid request for rein-
statement on behalf of other employees. I would, however, were it necessary,
regard the strikers, with the exception of those disqualified by their misconduct, as
entitled to backpay from the date of the termination of the strike, notwithstanding
lack of formal requests by them for reinstatement. Although I did not find that the
message from Cao, Vilas, and Musa transmitted to Rimmier via Smith was a valid
reinstatement request, so far as Rimmier was concerned it was such a request on
behalf of all the Spanish-speaking employees. His unqualified declination to take
back any of the strikers, coupled with the Respondent's refusals in the case of
specific employees who had applied for reinstatement before then, was a clear
indication to the strikers that it would be futile for them to apply for reinstatement
and that a formal request therefor would be a vain act. I would, therefore, have
recommended that as unfair labor practice strikers whose abandonment of their
strike and willingness to return to work was registered with the Respondent by the
total termination of the strike on March 7, 1958, backpay for them be computed
from that date until reinstatement was offered to their former or substantially
equivalent positions.
Because the Respondent by its numerous acts of unlawful conduct violated funda-
mental rights guaranteed employees by Section 7 of the Act, the commission of
other unfair labor practices may reasonably be anticipated. It will therefore be
recommended that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sea View Industries, Inc., is an employer within the meaning of Section 2(2)
of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of the
employees listed in the Appendix, thereby discouraging the free exercise of rights
guaranteed by Section 7 of the Act and discouraging membership in and activities
for the above-mentioned labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. All production and maintenance employees of the Respondent employed at
its Miami, Florida, plant, excluding office and clerical employees, guards and watch-
men, professional and supervisory employees as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. On January 25, 1958, and at all times thereafter the United Steelworkers of
America, AFL-CIO, was, and now is, the representative of the majority of the
Respondent's employees in the appropriate unit described above for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
6. By refusing on January 25, 1958, and thereafter to bargain collectively with the
above-mentioned labor organization as the exclusive representative of all its em-
ployees in the above-described appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of
the Act.
7. By the foregoing unfair labor practices and by the commission of other inde-
pendent acts of interference, restraint, and coercion of its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
8 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
9. Any allegations of the complaint as to which specific findings of violation have
not been made in this proceeding have not been sustained.
[Recommendations omitted from publication.]