In the line she had was bothering her who does her refer to

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Peterson acknowledged having a conversation with Locklear about the Union and also stated he was aware Locklear wore a union button at the plant. Peterson denied asking Locklear why employees felt they needed a union.

After carefully observing both Locklear and Peterson testify, and giving consideration to the fact that Peterson discussed the Union with Locklear and other employees, and the fact that Locklear wore a union button, I am persuaded and find Peterson did in fact ask Locklear why employees felt they needed a union and as such unlawfully interrogated him concerning his union membership, activities, and desires in violation of Section 8(a)(1) of the Act as alleged at paragraph 7 of the complaint in Case 10-CA-16016.

2. Alleged threats of discharge The General Counsel at paragraph 8 of the complaint in Case 10-CA-16016 alleged Respondent acting through Extrusion Supervisor Peter Peterson and Third-Shift Superintendent Gene Williams on or about April 15 and 28, 1980, respectively, in and about the vicinity of its plant, threatened its employees with discharge if they joined or engaged in activities on behalf of the Union.

Counsel for the General Counsel relied on the testimony of employee Joan Foxworth and former employee James Frye to establish the violations alleged.

Former employee Janies Frye testified he had a conversation in the third week of April 1980 with Extrusion Supervisor Peterson in Peterson's office. Frye testified the conversation came about because he had asked to speak with Peterson about obtaining some time off to travel to Florida to see his mother. Peterson told Frye it was all right for him to go to Florida, that he would get someone to work in his place. Peterson then told Frye he had something he wanted to talk to him about. Peterson then asked Frye how he felt about the Union. Frye told Peterson he did not know. Peterson stated he knew of a union trying to get in somewhere in Adel, Georgia, and that it was unable to do so. Peterson told Frye that, when the union failed to get in at the place he was talking about, most of the employees who were working for the union got laid off or discharged.

Peterson acknowledged he had a conversation with Frye on or about the date indicated. Peterson stated he brought the subject matter of the Union up with Frye because there had been a lot of talk about the Union, and he wanted to tell Frye a few things about it, that is, Peterson wanted to express to Frye his personal opinion about the Union. Peterson told Frye the Union would not be good for Respondent, specifically the employees. Peterson continued, “And I told him job security came from competitive organization and that came from not having strikes. And I said unions now are big business, and they're kind of looking for—they're not looking out for the little guy like they used to. And I asked him if he could visualize for himself on a strike-being on a strike without getting any money.” Peterson also told Frye he

had heard about a strike at the Weyerhauser Company. Peterson denied he asked Frye how he felt about the Union. Peterson stated he had never seen Frye wear a union button.

Respondent contends Frye's testimony should be discredited because neither Peterson nor a fellow coworker, Tim Roberts, had ever seen Frye wear a union button. Further, Respondent contends that, even if Frye's testimony is credited, it is nothing more than a lawful comment which would be protected under the free speech proviso of Section 8(c) of the Act.

I credit Frye's testimony with respect to the conversation with Peterson which each acknowledged was about the Union. I conclude and find the comments of Peterson constituted a threat of discharge to employees if they joined or engaged in activities on behalf of the Union as alleged in paragraph 8 of the complaint in Case 10-CA16016 as those allegations relate to Extrusion Supervisor Peterson.

Joan Foxworth testified she was an employee of Respondent and became aware of the union campaign at Respondent about the last week in March 1980. Foxworth attended union meetings, wore a union committee button, signed a union card, and attempted to get other employees to sign cards for the Union. Foxworth testified that starting the second week in April and thereafter for the next 2 months she wore her union button to work everyday. Foxworth testified she received a disciplinary warning from Respondent after she commenced to wear a union button. Foxworth testified her warning was for talking to a fellow employee about the Union on the job. Foxworth received her warning in April 1980.

Foxworth testified that, prior to her receiving the warning, she had gone to fellow employee Eileen Carver's work machine. Foxworth testified she was helping Carver weave when Debbie Barrett came up to the loom where they were and started a conversation by talking about Foxworth's hair. According to Foxworth, Eileen Carver walked off, and Barrett then asked Foxworth if the union people were going to be at the end of the road that day. Foxworth told Barrett she guessed they would, but she could not talk to her about it then, that she would have to talk about it after work. According to Foxworth, Barrett said agreed and went her way. According to Foxworth, Barrett started the conversation.

Foxworth stated she went about her job for a couple of hours and then her supervisor, Wilma Lane, came to her and told her to report to the office. Foxworth stated when she got to the office Weaving Shift Supervisor Barbara Walker and Third-Shift Superintendent Gene Williams were there. According to Foxworth, Williams told her he was giving her a written warning “on account of Debbie said I was talking to her on her job about the Union ...." Foxworth told Williams that Barrett was a liar and, if he would go and get her, she would tell Barrett to her face that she was a liar. Foxworth told Williams she was not going to sign a damn warning. Williams told Foxworth that it did not matter whether she signed the warning or not. Foxworth told Williams the reason she was getting the warning was because whe was wearing a committee button and Barrett was not. According to Foxworth, Williams then stated she could be fired if it happened again. Foxworth testified that Barrett told her a couple of weeks later that she (Barrett) did not receive a warning for the conversation she had with Foxworth.

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told Bailey, if a problem arose, an employee could no longer go to his supervisor with it, but would rather have to go to a union person.

Bailey testified Employment Manager Gene Shearl asked him on April 9, 1980, if he thought the Union would buy him a tackle box.

Bailey's regular job was that of an extrusion operator. However, when a lead operator was absent, Bailey testified he filled in as the lead operator. A lead operator's position paid 30 cents more per hour than did the operator's job. Bailey testified that on April 8, 1980, his shift supervisor, Virgil Mathis, asked him if he would fill in for leadperson Buck Westbury, who would be out due to a sickness approximately 6 weeks. Bailey reported for work on April 9, 1980, and performed the job of lead operator. This was the first time Bailey had worn his union button. At the end of the shift, Extrusion Supervisor Mathis told Bailey he wanted him to operate machines 5 and 6 the following day, April 10, 1980.

On April 10, 1980, Bailey testified he did not fill in as a substitute leadperson, but rather instead a fellow employee, John Walker, filled in. Bailey inquired of Extrusion Supervisor Mathis why the change to John Walker from him, and was told by Mathis it was because he had five or six cutoffs.23 Bailey protested saying he did not have five or six cutoffs. Extrusion Supervisor Mathis told him to go to the office. Bailey told Mathis in the office that he felt he was being done wrong. Bailey was never shown his record with respect to whether he actually had five or six cutoffs. Bailey has never filled in as a leadperson since that time. Bailey stated that since that time his younger brother, Glen Bailey, and Joe Walker had filled in as substitute lead operators. Bailey testified none of those who had filled in as substitute leadpersons had done so other than himself prior to his wearing a union button on April 9, 1980.

Kenneth Locklear testified Bailey had been used as fill-in lead operator ever since he, Locklear, had been at Respondent up until the day Bailey wore his union button on either April 8 or 9, 1980, and that since that time someone else had filled in on each occasion when there was a need for a substitute lead operator. According to Locklear, John Walker had never worked as a fillin lead operator prior to Elijah Bailey's wearing a union button.

Extrusion Supervisor Mathis testified that on April 8, 1980, he temporarily assigned employee Elijah Bailey to the position of lead operator. Mathis did so because an employee, Francis Palirino, had told him that the regular lead operator, Buck Westbury, would be out that day. According to Mathis, he was informed the following day, April 9, by employee Palirino that Westbury was going to be out for an appendectomy, and it was at that point he discussed with his immediate superior, Supervisor Lynn Duck, the fact that Westbury would be in the hospital or away from work for approximately 6 weeks. According to Mathis, he and Duck checked the employees seniority status and John Walker was the senior operator and as such it was decided to have him fill in as lead

operator instead of Elijah Bailey because Walker was the senior operator. Mathis testified it was Respondent's normal procedure to have the senior operator fill in as lead operator if the lead operator were going to be off "for a lengthy period of time." Therefore, Mathis informed Bailey to return to lines 5 and 6, that John Walker would be filling in as lead operator. Mathis acknowledged that April 9 was the first time John Walker had ever filled in as a lead oeprator on the line that Elijah Bailey worked on.

Supervisor Duck testified Mathis contacted him with respect to a fill-in lead operator for employee Buck Westbury and that John Walker was chosen because Elijah Bailey did not have sufficient seniority to fill the position over Walker.

There are numerous factors which indicate that the General Counsel has established a very strong prima facie showing to support an inference that protected conduct was a motivating factor in the Respondent's decision to remove Elijah Bailey from the position of lead operator contrary to past practice. I credit the testimony of Bailey that he was told to assume the position of substitute lead operator on April 9 and further that he was told it would be for a period of 6 weeks. I also credit Bailey's testimony that when he protested the following day to Supervisor Mathis, Mathis told him he was being taken off the job because he had too may cutoffs, a contention which Bailey strenuously objected to. It was later advanced by Respondent that Bailey was taken from the substitute lead operator position because he was not the most senior employee to fill in. It is clear Respondent shifted its reason for removing Bailey from the position of substitute lead operator. Further, rather conclusive evidence of Respondent's unlawful motivation was demonstrated by the fact that this was the first occasion ever for Walker to fill in as lead operator on Bailey's line. Respondent's failure to allow Bailey to fill in as lead operator also coincided with the day Bailey commenced to wear his union button. I credit Bailey's testimony that this was the first time he had worn a union button. It is clear Respondent had animus toward the Union and unlawful conduct by Respondent had been directed specifically toward employee Bailey by Supervisor Duck in that Duck admitted asking Bailey questions which constituted coercive interrogation, and I have concluded elsewhere in this Decision Duck also threatened Bailey that he could no longer take his problems to his supervisor if a union came in. The Respondent has failed to demonstrate in any manner that the same action would have been taken against Bailey in the absence of Bailey's protected conduct. Respondent's attempted justifications with respect to Bailey were nothing more than a pretext. I have considered Bailey's situation in light of Wright Line, a Division of Wright Line, Inc., supra, even though it is essentially a pretext case because, at footnote 13, the Board stated: “Still an additional benefit which will result from our use of the Mt. Healthy test is that the perceived significance in distinguishing between pretext and dual motive cases will be obviated.” 24

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were true, and Braswell admitted he had not used the wrench in removing the beam gear, that the wrench was in his toolbox, that he simply had not gone to get it. Shearl testified he had never seen Braswell wear a union button.

Employee Pat Warren testified that on April 13, 1980, he was in the men's restroom at Respondent's plant when a fellow committee member handed him a union card and stated to him at the time that the card was Abel Braswell's. Warren testified that Weaving Supervisor Robert Tucker was standing about 2 feet from him at the time.

Weaving Supervisor Robert Tucker testified that on April 13, 1980, employee Pat Warren's supervisor asked him to check and see if employee Warren was in the restroom. Employee Warren, according to Tucker, had left his job and his supervisor was looking for him, and since his supervisor was a woman, she had asked Tucker to check the men's restroom to see if Warren was in there. Tucker testified he opened the door to the restroom, observed Warren washing his hands, turned around, left, and told Warren's supervisor that Warren was in the restroom. Tucker testified he did not enter the restroom nor did he see anything being handed from one employee to another.

As far as establishing knowledge on the part of Respondent of any union activities by Braswell, I conclude and find that the meeting in the restroom on April 13 took place as testified to by Tucker and specifically discredit Warren's testimony to the contrary. As a result thereof, I conclude that knowledge of Braswell's union activities, if any, could not be attributed to the Respondent based on the April 14, 1980, bathroom incident.

The fact that employee Hancock testified she worked near Braswell every day and never saw him wear a union button, or that Employment Manager Shearl testified he never saw Braswell wear a union button, does not establish conclusively that Braswell did not wear a union button. I credit Shearl and Hancock's testimony that they never observed Braswell wearing a union button; however, I am persuaded that this does not constitute conclusive proof that Braswell never wore one. I have a great deal of difficulty in crediting any testimony of Braswell that is contradicted or uncorroborated. My impression of Braswell's testimony was not so much that of any deliberate misstatement, but more in the nature of a witness who was highly confused as to what had taken place particularly with respect to the events surrounding certain warnings Braswell received and the events surrounding the day of his termination. Notwithstanding my conclusion that Braswell's testimony is unreliable primarily based on the apparent confusion of Braswell with respect to events surrounding him, I do conclude that his testimony was clear and convincing with respect to his having worn a union button. I therefore conclude that Respondent had knowledge of Braswell's union sympathies prior to his discharge on April 17, 1980. Therefore, I conclude that the General Counsel established a prima facie case sufficient to support an inference that protected conduct was a motivating factor in Respondent's decision to terminate Braswell. Wright Line, supra. I am persuaded, however, that Respondent met its burden of

demonstrating that the same action would have taken place even in the absence of the protected conduct of Braswell.

I credit the testimony of Warping Department Supervisor Tucker that on the day Braswell was terminated she obtained the correct wrench for him and observed him perform the work task with that wrench. I further credit the testimony of Tucker that she had warned Braswell the day before about using the wrong wrench thus creating a potential of injury to the employee. I credit the testimony of Employment Relations Manager Shearl that Braswell admitted to him the day following his having been sent home that he had used the wrong wrench in performing the job and that the proper wrench was in his toolbox. Braswell admitted he had previous hand injuries and it was he who had suggested the new tool—the ratchet wrench-for use in an attempt to prevent hand injuries.

There is no doubt but that Braswell was terminated for failing to use the safer wrench at a time when he had the safer wrench in his toolbox. Further, Respondent was following its past practice of disciplining employees who engaged in unsafe acts. Respondent demonstrated that employees had been disciplined before the event involving Braswell, at or about the time of the event involving Braswell and after Braswell had been disciplined for failing to comply with safe work rule standards. For example, Respondent had disciplined Borin Favors, Allen Hollis, J. A. Rolin, Jimmy Alls, William Miller, Phillip Lunch, Collis Roundtree, James A. White, Myrtle Bryant, and Ulysses Gear for failing to follow safety rules or for committing unsafe acts. Therefore, I conclude and find that Respondent met its burden of showing the same action would have been taken against Braswell even in the absence of any protected conduct on his part, and as such I therefore recommend that portion of complaint paragraph 17 in Case 10-CA-16016 as it pertains to the discharge of Braswell be dismissed in its entirety.

9. The discharge of employee Peggy Ruth Gardner The General Counsel at paragraph 17 of the complaint in Case 10-CA-16016 alleges that Respondent on or about April 26, 1980, discharged and thereafter failed and refused to reinstate its employee Peggy Ruth Gardner because of her membership in and activities on behalf of the Union and because she engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection.

The Respondent admitted it discharged Gardner on April 26, 1980, but contended it did so for good cause.

Employee Peggy Ruth Gardner testified she worked for Respondent from October 1971 until April 1980. At the time of her discharge Gardner was a weaver under the supervision of Weaving Supervisor Tucker. 27 Gardner testified she became aware of the union campaign on March 30, 1980. She participated in handing out leaflets in the parking lot of Respondent. Gardner wore a union button, signed a union committee card, and her name was on a leaflet containing several employees' names as supporting the Union, which leaflet was distributed as a handbill at the plant. Gardner along with fellow employees Hughes circulated the petition protesting the discharge of employee Warren as set forth elsewhere in this Decision and the violations by Respondent surrounding that petition.

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Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

The Respondent, Amoco Fabrics Co., PatchoguePlymouth Division/Nashville Mills, Nashville, Georgia, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Interrogating its employees concerning their union sentiments and activities.

(b) Threatening its employees with discharge if they join or engage in activities on behalf of the Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC, or any other labor organization.

(c) Threatening its employees they would not be able to take grievances to their supervisors if they selected the Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC, as their collective-bargaining representative.

(d) Telling employees they do not have to honor Board subpenas.

(e) Threatening its employees that it would close its plant if they joined or engaged in activities on behalf of the Union.

(f) Maintaining or enforcing any rule which prohibits employees from distributing literature in nonworking areas on nonworking time, where such distribution is protected by Section 7 of the Act.

(g) Maintaining any rule which prohibits employees from soliciting on nonworking time, where such solicitation is protected by Section 7 of the Act.

(h) Denying access to the plant premises to employees who are engaged in protected concerted activities.

(i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action to effectuate the policies of the Act:

(a) Offer Clemenstine Hendley immediate and full reinstatement to her former job with the assistance of a fellow employee in placing rolls upon the reroll table or in the burling job position or, if those positions no longer exist, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of our causing her to take a leave of absence, in the manner set forth in the section of this Decision entitled “The Remedy."

(b) Offer Peggy Ruth Gardner immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of her discharge in the manner set forth in the section of this Decision entitled “The Remedy."

(c) Make whole Elijah Bailey III for any loss of earnings he may have suffered by reason of the unlawful action against him in the manner set forth in the section of this Decision entitled “The Remedy."

(d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraphs (a), (b), and (c), above.

(e) Post at its Nashville, Georgia, place of business copies of the attached notice marked “Appendix.”30 Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith.

IT IS FURTHER ORDERED that those allegations in the complaints as to which no violations have been found are hereby dismissed.

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former owner and by terminating other persons shortly after Respondent hired them.

All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.2

Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following:

in purchasing the Cole's business dated from 1977 when Jewell first became aware of its existence while investigating the possible purchase of another nursing home located in the same town, Jefferson, Texas. Because the Coles were involved in unexplained litigation, the nursing home was not available for sale in 1977. However, Jewell contacted the Coles periodically until finally he was told in early 1980 that the litigation had been completed and the business was for sale.

In August 1979, the Union was contacted by certain of the Coles' employees who expressed an interest in organizing a union. An organizing campaign was begun and the requisite amount of interest was expressed by the employees. In October 1979, the Board conducted a representation case (R case) hearing for about 4 days, during which time several employees testified. Some of these employee witnesses noticed Jewell in attendance at the hearing, accompanied by one or more of his children. On or about January 18, the Board conducted an election which the Union won 36 to 7. On or about January 18, the Board certified the Union as a representative of an appropriate unit described as:

Respondent denies that it is subject to the jurisdiction of the National Labor Relations Board. However, the evidence of record shows that Respondent is a Texas corporation operating a nursing home facility in Jefferson, Texas. In addition, it was stipulated at the hearing that Respondent would project its gross revenues during any consecutive 12-month period to be in excess of $100,000. Evidence also shows that Respondent has or will purchase goods and materials valued in excess of $5,000 for a representative 2-month period from a supplier located within the State of Texas, which supplier has made purchases and received goods valued in excess of $50,000 per year from outside the State of Texas. Finally, Respondent has or will directly purchase and receive medical supplies from outside the State of Texas valued at approximately $3,000 per year. Accordingly, I find, that Respondent is a health care institution within the meaning of Section 2(14) of the Act and is engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act.3

All full and regular part-time employees employed at the Employer's location, including LVN/charge nurses and other nursing service employees, housekeeping, dietary, medical records clerk and social activities director. [G.C. Exh. 14.)

II. THE LABOR ORGANIZATION INVOLVED

Respondent denies, but I find, that Service Employees International Union, Local 706, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.4

III. THE ALLEGED UNFAIR LABOR PRACTICES

On March 24, Union Official Val Cox testified that he sent a letter to Clarice O'Brien, administrator of the nursing home under both the Coles and under Kenneth Jewell, notifying her that employees Garner, Thomas, and Hatton were to be chief steward, shift steward, and executive board member, respectively. Thereafter, the Coles retained attorney Hugh Smith, who began negotiating a contract with the Union on behalf of the Coles.

While the Coles were negotiating with the Union, they were also negotiating with Jewell to buy the nursing home. In mid-April, the deal was made and about 2 weeks later closed. Jewell purchased the home for $500,000 with $100,000 down; the ownership interest was divided evenly between Jewell and his two children.

At the time of the purchase, Jewell owned three other nursing homes in the same general area of East Texas. These homes were all nonunion and no union had attempted to organize them. Jewell had been in the nursing home business since 1974 and before that had been a machinist for the preceding 18 years, the first 11 of which were spent as an employee and the last 7 of which were spent as an employer.

Cox learned of the sale to Jewell on April 30 when he was called by attorney Smith. Cox then sent three telegrams; one to Smith, asking to bargain on the effects of the sale on employees, 5 and the other two to Jewell. One was a request for recognition and bargaining over conditions of employment based on the Union's status as

1. Background On or about April 30, Kenneth Jewell purchased the Magnolia Manor Nursing Home (hereinafter nursing home) from Mr. and Mrs. James Cole. Jewell's interest

5 In addition to the two charges filed in this case, Cox also filed a charge against the Coles for refusal to negotiate on the effects of the sale on unit members. The Board issued a complaint which was resolved by an informal settlement.

a certified bargaining agent (G.C. Exh. 16); the other telegram of the same date sent to Jewell asked specifically for the continued employment of all unit employees. (G.C. Exh. 15.)

2. Respondent as an employer On April 30, Jewell called a meeting of nursing home employees for midafternoon. The employees within the bargaining unit were almost all blacks, 6 making the minimum wage, and, in some cases, had several year's seniority. Jewell arrived for his first meeting with his employees with an entourage of approximately 15 employees from one of his other nursing homes. As Jewell addressed Respondent's employees, his other employees milled about in plain view behind him.

Jewell began the meeting by introducing himself, members of his family who were nominal coowners of Respondent, and the other persons present who worked for Jewell at one of his other nursing homes. This latter group included nurses, nurse aides, and a cook. After introductions, Jewell said that he knew there had been some problems with the Coles, but that he wanted to start fresh with them. That is, Jewell said:

I knew they had tried to form a union, and that there hadn't been a contract or anything, the Coles told me there was no contract, and they didn't have a union, and that's where I stood at the time. I thought that until a contract was signed and everybody agreed that they had a union, they didn't have a union, but I found out they did. And I said, “With me you won't need that. I am going to give the salaries that it takes to make you a living, but I can't work this many people and do that. Neither could the Coles.”

Jewell stated that employees would be required to take individual accident and health policies at their own expense. 8 Jewell explained that he carried no workmen's compensation insurance at any of his nursing homes and, while he understood he was ultimately responsible for any work-related injury or illness, he felt the insurance plan would lessen his potential exposure to employee claims. The record does not reflect whether the Coles carried workmen's compensation insurance, but it is clear that many of the Coles' employees hired by Jewell either never had the accident and health insurance or had permitted it to lapse.

Jewell announced no further changes in terms and conditions of employment, but in subsequent days he did make two relevant changes in working conditions, although I am not sure if the second was meant to cover all employees. First, Jewell converted a patient room used under the Coles as a patient activity room and an employee break room back to a patient room. The nursing home had been licensed as a 60-bed home under both the Coles and Jewell, but the former generally had fewer than 58 patients. Jewell wished to have the maximum number of patients permitted under his license. Under both owners, however, the number of patients varied between 54-58 under the Coles and between 56-60 under Jewell. Second, Jewell discharged employee Ennis McAlli in part for being absent on a Saturday. Jewell testified that he could not tolerate absences on Saturday for any reason. No such policy existed under the Coles. (Resp. Exh. 5.)

Subsequent to this meeting, Jewell, together with his daughter Gayla Jewell and O'Brien, began to interview applicants. Approximately 54 employees had worked under the Coles. Of these, Susie Moore, an LVN, and two sisters named Washington, nurses aides, were among those not hired by Jewell. However, not all people hired were interviewed; in fact, some hired did not even submit applications. All unit employees hired were paid the same as they earned under the Coles. In addition, in all or most cases, employees were hired to perform the same work for Jewell as they had done under the Coles.

The unit employees who testified were employed generally in either the medical, the kitchen, or the housekeeping and maintenance groups, although there was some overlap. I begin with the medical group which was divided into licensed vocational nurses, nurses aides, and medical aides. One of the LVNs under the Coles was Susie Moore, who worked the 11 p.m.-7 a.m. shift. Moore had worked for the nursing home since May 1977. Moore was 61 years old and had a moderate hearing disability. When she was interviewed by Jewell on

Jewell went on to say that these employees could either work for him and get along with him or they could leave right then. He also told them that, if they wanted to run a building, they should go get $100,000 together and buy one.

Besides indicating to employees that, in his view, Respondent was overstaffed, Jewell also announced certain specific changes he intended to make. First, he would not allow any vacations accrued under the Coles and his employees would be entitled to a week's vacation only after they had worked for him for 1 year. The Coles had permitted 2 weeks after 1 year. (Resp. Exh. 6.) Second, the Coles permitted two 15-minute breaks per day, Jewell would permit one. Third, the Coles provided for free lunches prepared in the nursing home kitchen, while Jewell stated he could not afford this and all employees would be required to bring their own lunch. Fourth, the Coles did not require employees to wear uniforms, but Jewell announced he would. He also stated he would provide 10-cent-per-hour uniform allowance.? Finally,

6 To a limited extent, the race of participants in this case is intertwined with the issues of labor law herein presented. Accordingly, when relevant, race will be noticed in this case.

7 This change in working conditions was never implemented-neither the wearing of uniforms nor the uniform allowance. Jewell testified that Cox told him he could not make these changes without negotiating with

May 1, he told her that he no longer intended to have an LVN on the 11-7 shift. Jewell offered her a position at one of his other nursing homes, but she said that she could not afford to move. Then Jewell instructed Moore to return the next day when he would discuss the matter further with her. Before Moore came back, Jewell testified he received certain information from various sources leading him to believe that Moore abused patients. I will examine the sources and nature of the information provided in the "Analysis and Conclusion” section of this opinion. For now, it suffices to say that Jewell refused to hire Moore when she returned the next day and this refusal constitutes a major issue in the case. With the exception of the two Washington sisters and some others, the remaining unit members in the medical group began work. Then on June 5, several of them stopped working as a result of a bizarre incident involving Johnetta Johnson, a long-term nurses aide at the nursing home. Like the prior incident, I will discuss the matter in detail below. Much of it is sharply disputed by the participants, witnesses, and bystanders. Briefly, the matter involved an argument between Johnson and Jewell over the former's refusal to apply for and accept an accident and health policy, even after Jewell had agreed to pay the premiums himself. This intense dispute culminated in Jewell discharging a handgun in the hall of the nursing home. No one was injured as a result of this episode.

In the kitchen, Jewell first attempted to retain all employees while at the same time clearly indicating his intention to reduce the staff, restructure work shifts, and redistribute work assignments as soon as possible. The kitchen employees responded to these initiatives in a fairly uniform way. All quit or so indicated their resistance to Jewell's plans that they were fired. Kitchen Supervisor Doris Norris, who did not testify, quit first. Because Jewell was required to have a licensed supervisor in charge of the kitchen, Jewell asked remaining employees whether they would be willing to undertake the necessary schooling and training. For various reasons, all declined.

Finally, I turn to the housekeeping department. The supervisor there was Mary Diane Banks, who began employment in November 1978. She was hired by Jewell on April 30, then fired by him on May 1. A detailed description of the circumstances surrounding Banks' discharge is necessary only if I find that Banks is not a statutory supervisor, a sharply contested issue. I will discuss this and related matters in the “Analysis and Conclusion” section of this opinion. Replacing Banks as housekeeping supervisor was Janet Lynn Parker, who began working at the nursing home in April 1979. She quit her job on May 8 because she was unable to perform heavy janitor's work assigned to her by Jewell. Parker was replaced by Maxine Williams who began employment on May 20 and was still employed at the nursing home at the time of hearing. Other than Ron Banks, husband to Mary Banks, the only other member of this department to testify was Ennis McAllister, who had worked at the nursing home about 1 year before he was fired by Jewell on May 3, in part for calling in sick on a Saturday. As the original housekeeping staff was depleted, Jewell attempted to

assign employees from other departments into housekeeping. Generally, these efforts were unsuccessful.

The original charge in this case was filed by the Union on May 6. (G.C. Exh. 1(a).) A few days later, Jewell sent out a host of letters to his former employees offering them reemployment at the nursing home. Some letters were sent to incorrect addresses or were otherwise delayed in reaching the addressee. In other cases, former employees responded, but were faced either by a lack of Respondent interest or the same difficulty which had led to their departure originally. In any event, only one former employee, Loretta Jackson, was rehired as a result of these letters. 10

While all of the above events were occurring, Jewell had several contacts with Cox relative to his representation of unit employees. After the two telegrams referred to above, Cox talked to Jewell over the phone on May 2. The former asked for a meeting but Jewell said he was too busy then. There is some conflict in the testimony as to whether a meeting was scheduled for May 5, but both Jewell and Cox agree that they did in fact meet on that day at the nursing home.

Cox argued that Jewell should be laying off people on a seniority basis and only after negotiating with the Union. The two men discussed Moore in particular and Jewell told Cox he would never take her back as she had abused patients. Cox also asked to bargain on the wearing of uniforms and the uniform allowance. This meeting was followed by a May 9 letter from Cox to Jewell asking the latter to reinstate employees and make them whole. Cox also requested that Jewell refrain from any further actions affecting employees without negotiating with the Union. (G.C. Exh. 9.) The two men met again on June 2 and this time Jewell was accompanied by his attorney, McLaughlin. Cox gave McLaughlin a copy of certain proposals that had been tentatively negotiated with attorney Hugh Smith while the Coles owned the nursing home. McLaughlin stated that he would study these proposals, but that Jewell would never agree to arbitration nor to checkoff, Another meeting was scheduled for July 7, but was postponed for 1 week due to a business commitment which Cox had elsewhere. This meeting was ultimately canceled at the request of McLaughlin due to the Board having issued a complaint in the case. (G.C. Exh. 8.)

B. Analysis and Conclusions

1. Is Respondent a successor employer? On or about April 30, Respondent purchased the nursing home from the Coles. Thereafter, the location of the business and the equipment used stayed the same; the nature of the business, the number and identity of patients, and the level of care and funding for their care remained the same. In addition, the administrator of the nursing home, Clarice O'Brien, continued her position under Respondent. Initially, lower ranking supervisors also remained the same: Doris Norris, dietary supervisor, Banks, housekeeping supervisor, and Debbie Brown, director of nurses. When Jewell took over operation of the nursing home, there was no hiatus in the operation of the business. Finally, Jewell hired most of the Coles' employees except for, among others, Susie Moore and the two Washington sisters. There is, therefore, a substantial continuity of the employing industry. 11 I therefore find that Respondent is a successor employer. 12

Counsel for Respondent admits that Respondent is likely to be found a successor under Burns, supra, but then contends that Jewell had no obligation to bargain over the initial terms and conditions of employment, which were substantially different from those maintained by the Coles. In support of its position, Respondent cited the Burns case and another case N.L.R.B. v. Wayne Convalescent Center, Inc., 465 F.2d 1039 (6th Cir. 1972), to which I now turn.

In Burns, the Court held that a successor was not obligated as a matter of law to assume the preexisting collective-bargaining agreement between the union and the seller. Here no such issue exists as the Coles never negotiated a contract with the Union. The Court also said in Burns at 294-295:

Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms.

At the April 30 meeting, Jewell announced new terms and conditions of employment to the nursing home employees respecting vacations, lunches, uniforms, breaks, and insurance. Under the authority cited above, he was free to change the terms and conditions of employment without violating the Act. 13 However, I find that Jewell violated the Act under a different theory.

In my view, Jewell violated the Act in refusing to recognize the Union and to bargain over the changes in the terms and conditions of employment, because he was motivated by union animus in announcing and implementing these changes. Beginning with his statements at the April 30 meeting relative to the Union and the pattern of antiunion statements and acts which I find below, Jewell desired a turnover of staff for the purpose of reducing support for the Union. However, he desired these changes gradually and only as he found persons to replace those not retained or retained and then actually or constructively discharged. Jewell also fabricated various pretexts to justify his desired staff turnover and this took time as well.

Approximately 52–54 persons were employed under the Coles, including supervisors and part-time employees. Of these, Jewell hired approximately 45 persons by May 1 or shortly thereafter. This constituted his entire initial work force. Among those former employees not hired by Jewell were Susie Moore and Brenda and Linda Washington. With respect to Barbara Hatton and Christy Jarrett, they were never called as witnesses and therefore it cannot be established with certainty whether they worked for Jewell or not. With respect to McCarol Moore, I find contrary to Respondent's assertion that she was constructively hired by Jewell when she reported for work on May 1, without initial objection by Jewell.

At the April 30 meeting, Jewell told employees in part that: "I wanted to start with them. I wanted to start fresh with them. I wanted them to work there." These statements in the context of Jewell's reduction of benefits and other harsh words at the meeting must have confused employees and made them uncertain of their position with the new owner. When these statements are interpreted in light of what was to come, their false promise is made clear. Jewell went on to testify that he required those employees who worked under the Coles to fill out applications with references which would be checked and then submit to interviews. There is no evidence that any references were checked. Nor was there evidence that all employees hired filled out applications nor that they were all interviewed. In addition, those employees who were retained were in almost all cases told to continue doing the job they had done under the Coles. This is evidence that Jewell desired to retain the Coles' employees only until he had replacements and a pretext to fire them or not to retain them.

Thus, I find that Jewell's unilateral changes in terms and conditions of employment constituted a violation of Section 8(a)(5) of the Act under the circumstances herein present. This conclusion is based not on the so-called “Burns exception,” which is not applicable here, but on

This so-called Burns exception has been interpreted by the Board in an important case which inexplicably is not cited by either party. In Spruce Up Corporation, 209 NLRB 194–195 (1974), enfd. 529 F.2d 516 (4th Cir. 1975), the Board stated:

When an employer who has not yet commenced operations announces new terms prior to or simultaneously with his invitation to the previous work force to accept employment under those terms, we do not think it can fairly be said that the new employer "plans to retain all of the employees in the unit,” as that phrase was intended by the Supreme Court. The possibility that the old employees may not enter into an employment relationship with the new employer is a real one. ... Many of the former employees here did not desire to be employed by the new employer under the terms set by him-a fact which will often be operative, and which any new employer must realistically anticipate. Since that is so, it is surely not "perfectly clear” to either the employer or to us that he can “plan to retain all of the employees in the unit” under such a set of facts.

13 See Bellingham Frozen Foods, Inc. v. N.L.R.B., 626 F.2d 674 (9th Cir. 1980).

my finding that these changes were motivated by Respondent's antiunion intentions to reduce support for the Union in the bargaining unit. Despite Jewell's efforts, the previously certified appropriate unit continued under Jewell, a fact which supports Jewell's duty to bargain over initial terms and conditions of employment. Other facts in support of my conclusion follow. 14

I begin with Jewell's denial of knowledge of the Union's relationship to the nursing home unit employees. Jewell argues that he had no knowledge of the union certification prior to April 30 and only learned of this as of May 5. He claims that he was advised by the Coles that, since no contract had been signed with the Union, there was no union and no obligations to the Union. I find this claim preposterous and disbelieve it in toto. Jewell owned three other nursing homes and wanted to buy a fourth. In the course of attempting to buy Respondent, his interest extended over a year's time. He even attended the R case hearing for about an hour. Based on this alone, I would be inclined to discredit his testimony. However, I will also credit the testimony of current employee Lillie Crowe, a nurses aide. She testified that, on May 2, she had a conversation with Jewell at the nursing home, wherein she asked Jewell, whether he knew before he bought the nursing home that the employees were unionized. He admitted to her that he was aware that the employees were unionized. It should be pointed out that Crowe did not tell the National Labor Relations Board investigator about this statement. However, I credit her testimony and discredit Jewell's denial of the statement primarily because it makes no sense at all to me that Jewell did not know and because I have generally judged Jewell's credibility to be low in this case. Also, I thought that Crowe was a sincere and truthful witness. I will discuss the credibility issue further in finding below that Jewell violated Section 8(a)(1) of the Act on several occasions.

I will also discredit Jewell's denial that he received telegrams from Cox sent on April 30 at 11:46 a.m. (G.C. Exhs. 15 and 16) informing Jewell that the Union was the bargaining agent for the employees. Even though the telegrams were sent to Jewell at one of his other nursing homes, the confirmation copies were received into evidence and I do not believe Jewell when he says he never received them.

Although I discredit Jewell's testimony when he said he did not know about the Union nor his obligations under the Act, I do accept Jewell's account, in part, of his remarks at the April 30 meeting to show animus toward the Union. Jewell said that he knew the employees had tried to form a union, but also said that, because they did not have a contract, they did not have a union. He also stated, “With me you won't need that sa union). I am going to give the salaries that it takes to make you a living, but I can't work this many people and do that.” Then, with the 15 employees of his other nursing homes

standing behind him, Jewell said that the employees “could either work for him and get along or they could leave right then.” He said, “If [you] want to run a building, (you) should buy one, get $100,000 together and find one.”

The thinly veiled attacks on the Union made by Jewell and the promulgation of erroneous labor law (i.e., no contract, no union) all convince me that Jewell was motivated in changing the initial terms and conditions of employment by antiunion bias and the hope that the Union supporters would quit.15 Those that did not would gradually be replaced as I discussed above. In Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, fn. 8 (1974), the Court made clear that a successor employer could not refuse to retain nor to hire employees of the predecessor because of antiunion considerations.

In sum, I find that Jewell was playing for time. Along with the remarks made at the April 30 meeting which I reported above, Jewell also stated there were too many employees and some would be terminated shortly. By changing the terms and conditions of employment due to a hostility toward the Union, he would be able to erode the power of the Union, and hope that some employees would elect not to work for him and replace the others when he found suitable replacements. Accordingly, I will recommend that Respondent be required to recognize the Union, to rescind its changes in the terms and conditions of employment, and to return its employees to the status quo ante; I will further recommend that Respondent be ordered to bargain with the Union on these proposed changes. I will further recommend that Jewell be ordered to bargain with the Union on the issue of a collective-bargaining agreement.

2. Did Jewell interrogate, threaten, and otherwise
coerce employees in the exercise of their Section 7

rights? In part, the question posed is affirmatively answered by the evidence recited thus far. 16 In part, the question posed is affirmatively answered by the evidence to follow below. I begin, however, with a special discussion of Jewell's credibility in order to justify my discrediting of much of his testimony. First, Jewell was an angry person, blaming in his testimony various persons and entities for the predicament in which he found himself:

(1) The Coles for overstaffing and for allegedly giving him wrong information on the status of the Union; (2) Union Official Cox for trying to run the nursing home, for trying to tell Jewell what to pay employees, for trying to run Jewell off like he did the Coles, for fooling Jewell into believing that Cox was representing him in the dispute with employees, and for having overall responsibility for the labor dispute which led to the hearing; and (3) the National Labor Relations Board for pre

14 It is important to note the lack of evidence as well. No credible evidence was introduced to show that the nursing home was in fact financially distressed nor that it was overstaffed. Also, no attempt was made to justify any of the changes in vacation policy, lunches, etc. Accordingly, to the extent that Respondent's position can be construed as an economic defense, it is unsupported by the record and I reject it.

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tending to be a fair organization. This “passing the buck" detracted significantly from Jewell's credibility. In addition, Jewell appeared to have a low opinion of women. On May 4, Jewell fired Ennis McAllister in part for being sick on a Saturday and, in part, according to McAllister's testimony, because "he didn't like the idea of having a man around the nursing home anyway, because if a man walks out, the women will follow.” Jewell also made certain remarks suggesting a racial bias, as he believed the blacks on the day shift were the most responsible for the Union. 17 This is what Jewell told Crowe and I credit her testimony over his denial of the remark. Jewell also blamed the day shift for the Union without the reference to race in statements to employees Ennis McAllister, a janitor, Nevada Holloman, a cook, and Janet Parker, a housekeeper.

Thus, I resolve the credibility issue against Jewell for several reasons: First, his hostile and suspicious attitude toward unions, the Board, women, and blacks detracted from the believability of his testimony; moreover, some of his testimony was inherently incredible as discussed above. Second, the sheer volume of testimony against him, most of it consistent, corroborative, and unimpeached, is persuasive; in addition, Jewell himself has provided some corroboration, in particular his testimony relative to his April 30 remarks to employees about the Union; and, finally, the General Counsel's witnesses, for the most part, impressed me as sincere and truthful witnesses who would not be given to fabrication.

The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of the employee rights under the Act.”18 Moreover, I find that the statements attributed to Jewell as described both above and below were part of an overall pattern of conduct aimed at coercing employees in the exercise of their Section 7 rights. 19 In finding several violations of Section 8(a)(1), I note first that Jewell was obviously a highlevel supervisor with the demonstrated power to hire and fire employees. Next, the Board has recently held that interrogation of employees in order to probe their union sentiments or knowledge of union activities is unlawful, even in the absence of threats of reprisals or

promises of benefits.20 Moreover, Jewell never gave any assurances against reprisals, 21 and, in some cases, did make threats of reprisals.

Specifically, I credit the following testimony and thereby find Respondent violated Section 8(a)(1):

(1) Surveillance of union activities, impression of surveillance, and coercion: On May 5, Jewell asked Parker, McAllister, and Jarrett whether they were going to a union meeting. In fact, a union meeting had been scheduled for that evening. Jewell told these employees that anyone attending these meetings would not have a job on return and that he had ways of determining who attended. On another occasion, Jewell told employees Crowe and Tucker that anyone attending a union meeting would be fired. I also find that O'Brien told Crowe not to let Jewell find out that Crowe had attended a union meeting. 22

(2) Coercion: On or about May 2 to Thomas, and May 7 to Parker, Jewell stated that he would pay a $100,000 fine before he would permit the Union in.23

(3) Interrogation: On May 7 and 8, respectively, Jewell asked employees Parker and Marshall on separate occasions for the names of people who organized the Union and he also told Parker that whoever gave him the information would benefit. 24

(4) Coercion: On May 2, 6, and 7, respectively, Jewell told employees Thomas, Taylor, and Parker on different occasions that, if he were able to remove 50 percent of the union supporters, he would be able to win the election. Jewell also told Parker that there would always be something wrong around the nursing home which he could blame on an employee he wanted to fire. 25

(5) Futility of union support: On May 2 and 3, respectively, Jewell told employees Holloman and Tucker on different occasions that the Union was not going to tell him what to pay employees nor how he should run the nursing home. 26

In conclusion, I note that the complaint alleges approximately 24 instances of statements made by Jewell or other agents of Respondent. Those discussed above and two others to follow are the principal violations. It is unnecessary to rule on other alleged violations since they are cumulative to those already decided and would not affect the remedy in this case. 27

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matters to be resolved in the compliance portion of these proceedings as may be necessary.

sory employee; alternatively, even if found to be a supervisor, her discharge violated the Act; (b) Susie Moore; (c) Brenda Washington; (d) Linda Washington; (e) Janet Lynn Parker; (f) Linda Thomas; (g) McCarol Moore; (h) Karen McAllister; (i) Ennis McAllister; (i) Mabel Hatton; (k) Nevada Holloman; (1) Gloria Marshall; and (m) Loretta Jackson.

8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

9. Except as specifically found herein, Respondent engaged in no other unlawful conduct.

Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act and to post an appropriate notice attached hereto as “Appendix B.”

Also, it is recommended that Respondent reinstate and make whole all former employees listed in “Appendix A,” for any loss of pay as a result of the discrimination against them. Said backpay is to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 139 NLRB 716 (1962).

Upon the foregoing findings of fact, the conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

1. Magnolia Manor Nursing Home, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. Service Employees International Union, Local 706, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

3. Respondent is a successor employer to Magnolia Manor Nursing Home.

4. The Union is the certified bargaining representative of all full and regular part-time employees employed at Respondent's Jefferson, Texas

Texas location, including LVN/charge nurses and other nursing service employees, housekeeping, dietary, medical records clerk and social activities director.

5. Respondent violated Section 8(a)(5) by failing to recognize and bargain with the Union and by unilaterally changing the terms and conditions of employment of its employees for the purpose of undermining support of the Union; more specifically, Respondent changed its predecessor's policies as to vacations, lunches, uniforms, breaks, and insurance coverage without consulting or bargaining with the Union due to union animus.

6. Respondent also violated Section 8(a)(1) of the Act:

(a) By surveilling union activities, giving the impression of surveillance, and threatening the jobs of employees who attended union meetings.

(b) By telling certain employees that he would pay a $100,000 fine before he would permit the Union in.

(c) By interrogating employees about the identity of union organizers and telling an employee whoever provided the information would benefit.

(d) By telling employees that, if he were able to remove 50 percent of the union supporters, he would be able to win the next election; and by telling an employee that he could always find some legitimate reason to fire an employee.

(e) By telling certain employees that he would not let the Union tell him what to pay employees, nor how he should run the nursing home.

(1) By telling employees that with him they would not need a union, that he was going to give the salaries it takes for employees to make a living, but that he could not work this many people and do that, and by telling employees that because they did not have a contract they did not have a union.

(g) By telling employees that because they had been with him for over 30 days, Jewell knew they were on his side and that they could work together, and then stating he would pay an insurance premium of $8 per month which up to that time employees had been expected to pay.

(h) By telling employee Thomas that various employers from the area had been calling him and asking who the union organizers were.

7. Respondent also violated Section 8(a)(1) and (3) of the Act by discharging or failing to retain the following named employees for the purpose of undermining support for the Union: (a) Mary Diane Banks, a nonsupervi

The Respondent, Magnolia Manor Nursing Home, Inc., Jefferson, Texas, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Surveilling union activities and giving the impression of surveillance.

(b) Coercively interrogating employees about union activities and identities of union activists.

(d) Implying that it would not bargain with the Union over wages or over the terms and conditions of employment.

(e) Coercively telling employees that a legitimate reason for discharge could always be fabricated and for making other similar types of antiunion statements.

(f) Discharging employees or failing to retain other employees for the purpose of undermining support for the Union.

(g) Offering benefits to employees such as payment of insurance premiums for the purpose of undermining support for the Union.

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excess of $50,000 directly from points outside the State of Ohio.

The complaint alleges, the parties stipulated, and I find that Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the amended answer admits, and I find that Pipefitters Union Local No. 120, herein called the Union or Respondent, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

III. THE ALLEGED UNFAIR LABOR PRACTICES

A. Background Information Schweizer Dipple, Inc., Employer herein, is now, and has been at all times material herein, an ohio corporation with a place of business in Cleveland, Ohio, where it is engaged in the mechanical construction industry. Since 1976, Employer has had a contract to provide, and has been engaged in providing labor to install, piping and mechanical equipment in the nuclear power plant under construction at Perry, Ohio. In carrying out its mechanical operations, Employer employs approximately 600 to 700 members of Pipefiters Union Local No. 120, Respondent herein. Employer is a party to a collective-bargaining agreement with Respondent, Local 120, which expires about August 31, 1982, but the agreement does not contain any provision for a probationary period for employees or members, or for employees who have been referred to Employer by Respondent.

Respondent, Local 120, is made up of a membership of journeymen pipefitters and it is a member of Mechanical Contractors Association of Cleveland, Ohio, which is composed of memberships of 80 to over 100 other contractors engaged in mechanical piping, or insulation of heating systems, or power or piping systems, and it is signatory to the collective bargaining agreement with Respondent. The Association negotiates labor agreements on behalf of its members and, jointly with Respondent, administers apprenticeship training programs. Sometime in 1978, the United Association and the National Contractors Association recognized a need for welders for nuclear plant construction and initiated a program to improve the skills of United Association of Journeymen, and to bring welders into the pipefitting industry and provide them with advance welding and pipefitting training, which would enable them to become journeymen mechanics who can perform other work when there is no welding to be done, and to provide them with the skills which are required for the complicated procedures mandated by the Nuclear Regulatory Commission.

Since Respondent had a training program with facilities, the United Association agreed to help them set up such training with funds from the National Industry Training fund. The training course would be open to any certified pipe welders who would be taught the skills of heliarc welding, as distinguished from mild pipe welding. Membership in Respondent was made conditional upon

completion of the training program, while serving as a welder for 6 months with journeyman's pay.

Joseph Bevaque passed the welding training test as a certified welder, signed Respondent's agreement to attend the training sessions, and was referred by Respondent to Employer, which in turn employed Bevaque in January 1979 for at least 4 years at journeyman's pay and benefits. Similarly, Peter Dades passed the weldingtraining admission test and was a certified welder. He thereafter signed Respondent's agreement to attend the training sessions and was referred by Respondent to Employer, which employed Dades in December 1978 for a period of at least 4 years at journeyman's pay and benefits.

Dades attended all the training classes during the 6month probationary period and Bevaque attended the great majority of training classes during his probationary period. However, Bevaque attended all except 7 of the 14 or 15 classes after the first session ended in June 1980. Dades missed 12 or 13 classes during the sessions which commenced in October 1979. Both Dades and Bevaque were notified by letter from Respondent about their failure to attend training sessions but their nonattendance was not abated. On or about May 27, 1980, Respondent's business agent met with member-training instructors in the training center and representatives of Employer, and recommended the discharge of all persons in the training program (including Dades and Bevaque) who were failing to attend training sessions. Said employees, including Dades and Bevaque, were discharged on May 27, 1980, for failing to attend training sessions pursuant to their signed agreement. Therafter, Dades filed a charge with the Board which resulted in the instant proceeding.

The record shows without dispute that, at all times material herein, the following-named persons occupied the positions set forth opposite their respective names, and are now, and have been at all times material herein, agents of Respondent within the meaning of Section 2(13) of the Act: Jack Safko, instructor in training; Carl Gauntner, business agent; Neil Walsh, coordinator of training; and Chet Barritterri, instructor in training. 1

B. Respondent's Training Program and the Agreement

It Entered With Participating Employees The record herein shows that in a letter from the United Association dated September 18, 1979, Respondent received final approval of its training program and authority to commence processing candidates therefor.

The record further shows that Peter Dades commenced training on November 2, 1978, was tested but was rejected on November 2, 1978, completed training on November 24, 1978, and was tested successfully for employment at the Perry Power Plant on November 28, 1978. Similarly, Joseph Bevaque commenced initial training on January 23, 1979, and completed training on January 24, 1979. He tested successfully on January 24, 1979. Dades and Bevaque agreed and signed the following instrument (G.C. Exh. 8) on November 27, 1978, and January 26, 1979, respectively, and were employed at the Perry Power Plant upon the conditions contained therein as follows:

tions for cards and membership books through Washington, D.C., takes about 3 or more months. At the hearing Gauntner testified that the papers for membership books were sent to Washington by the financial secretary in the latter part of 1980. Subsequent to the meeting and the explanation given by the business representatives, Dades and Bevaque nevertheless did not resume attending the training sessions.

Gauntner continued to testify as follows:

That in consideration of the opportunity to become a journeyman member of the United Association through its welding training facility, I agree that I will work on the job to which I am assigned by the Local Union until such time as I become unemployed by normal lay-off. I understand that I will be working on probationary status for the first six months period, and that upon successful completion of this period, and approval by the union, I will become a member of Local Union #120, I further understand all the obligations of union membership and that I will be required to attend such night instructional sessions as established by the Union. I execute this waiver willingly and without reservation.

Subsequently, both welders were given white tickets (G.C. Exh. 3) enabling them to work at the Perry Plant without being members of Respondent.

In a letter from Training Coordinator Neil T. Walsh dated March 16, 1979, all welders, including Dades and Bevaque, in the training program were notified that, pursuant to the agreement which they signed, training would commence on Saturday, March 24, 1979. Classes were held from 8 a.m. until 2:30 p.m. at the Pipefitters training center. Each trainee was asked to report to classes with a pair of work gloves, 6-foot ruler, pliers, pencil, and a notebook. The training continued through June 1, 1979; Dades attended all classes in that training session, and Bevaque attended essentially all classes during that session. Thereafter training classes were held every other Saturday beginning in October 1979 through June 1980. Bevaque attended all except 7 of the 14 or 15 classes in the spring of the last training session. Dades skipped about 12 or 13 classes during the last training session but both Bevaque and Dades completed the first 6 months of their probationary period. Thereafter, they became disgruntled about not having received membership in Respondent and did not attend classes during the second training session. In fact, the record shows that several trainees were dissatisfied with the fact that they had not received membership in Respondent and, during the spring of the 1980 training session, a petition of protest of dissatisfaction was circulated among the trainees regarding Respondent's failure to grant them membership pursuant to the agreement they signed.

When the business agent for Local 120, Carl Gauntner, learned about trainee dissatisfaction and the petition, he set up a meeting in May 1979 with the trainees and all of the business representatives, Mickey Donahue, Joseph Dingow, James Walsh, William Barnes, and himself, along with the financial secretary, Larry Smith. At that meeting, the business representatives explained to the trainees that they were experiencing difficulty with the various locals in processing their memberships with the United Association in Washington, but that the delay would be overcome and they would receive their memberships. They explained that the processing of applica

We also stated that there were some local unions that could possibly issue building trade cards when that got squared away, but our Local Union was not going to issue building trade cards. We were issuing cards as metal trades journeyman that started the three and a half year program.

Q. Did you explain to people how the program would

operate as administered by 120 and UANCA?

A. Yes. We told them that they had their six month probationary period. We realized that some of them had passed their probationary period, and if they continued to attend three and a half years of the schooling, and committed to that job site for three and a half year period over that, that the me

chanical contractors had agreed with this program. According to the undisputed testimony of Business Agent Gauntner, and other testimony in the record, Bevaque and Dades were warned about their nonattendance at the training sessions but they nevertheless failed to attend the sessions.

Andrew J. Martin, president of Employer (Schweizer Dipple, Inc.), testified that the contract with Local 120 does not provide for any probationary period and that Employer does not require probationary welder-trainees to attend training classes. He further testified that both Bevaque and Dades were upgraded for heavy wall piping by representatives of Employer. Ordinarily, he stated that he does not hire or fire but, in this case, he fired Bevaque and Dades following a meeting with McFaul, Employer's assistant resident manager, William O'Brien, Business Agent Carl Gauntner, and himself. Someone suggested that they fire Bevaque and Dades. Business Agent Gauntner said that sounded like a good idea to him and he (Martin) agreed. Carl McFaul said, "Let's fire them and get it over with. Set an example to the other people in there. Either do it or get out.” Gauntner acknowledged that the training program contract was not made a part of the collective-bargaining agreement between Local 120 and Mechanical Contractors Association. He further admitted that he did not consider a lesser disciplinary measure than discharge of the employees. Consequently, on May 27, 1980, upon the recommendation of Business Agent Carl Gauntner and other members of Respondent, Bevaque and Dades were discharged along with five other trainees by Employer, for failing to attend training sessions.

Analysis and Conclusions As readily observed from a reading of the above essentially undisputed and credited evidence, the training agreement signed by trainees Dades and Bevaque was an agreement between themselves and Respondent Union. Employer was not a party to the agreement even though trainees (Dades, Bevaque, and others) were employed by Employer at journeyman wages and with knowledge of the training agreement. It is clear from the evidence that Employer employed the trainees because it had a significant need for welders (which the trainees were) and it employed said nonunion-member welders upon their referral and consent of Respondent Union. The training agreement was not made a part of the existing collectivebargaining agreement between Respondent and Employer, even though said agreement contained a provision for its amendment.

Significantly, Employer's employment of the trainees was not based upon any probationary period or condition that said trainess attend training classes. In fact, said trainees were hired as welders and were performing their duties in this regard to the obvious satisfaction of Employer (Employer testified that trainees Bevaque and Dades were upgraded for heavy wall piping). Consequently, although Dades and Bevaque breached their agreement with Respondent Union by failing to attend training classes during the second training session, they did not fail to report to work and perform their duties for Employer, and the latter did not discharge them for such a failure. Hence, Dades and Bevaque did not breach any agreement it had with Employer. On the contrary, when both trainee-welders were warned by Respondent about their failure to attend training classes, neither made any effort to attend classes. Thereupon, Respondent (Business Agent Gauntner) was provoked by their breach of the agreement with Respondent in late May 1980, and called a meeting with Employer (President Martin, Assistant Resident Manager O'Brien, and Respondent's training instructor, Carl McFaul). During their meeting, Gauntner and McFaul recommended the discharge of Dades and Bevaque and other trainees who failed to attend the training sessions. Employer agreed with their recommendation and discharged Dades, Bevaque, and four and five other trainees for failing to attend training classes.

The record is therefore clear that Respondent recommended and caused Employer to discharge Dades and Bevaque and that, if Respondent had not recommended the discharges, there is no indication in the record that Respondent would have discharged them purusant to any policy of its own.

Since it is clear that Respondent brought about the discharge of Dades and Bevaque because they failed to comply with Respondent's training rules, the question is raised as to whether the discharges under such circumstances affected the employees' working tenure for a reason other than their failure to pay periodic dues and fees, as the Supreme Court said was prohibited, N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 (1967); or whether Respondent used the emoluments of the jobs of Dades and Bevaque to enforce their compliance with the training sessions agreement (required class attendance), as was further prohibited by the Supreme Court in Scofield v. N.L.R.B., 394 U.S. 423 (1969), as violative of Section 8(b)(1)(A) and (2) of the Act.

It is clear from the evidence that both questions must be answered in the affirmative since the training program was clearly a program and instrumentality of Respondent, under its exclusive jurisdiction and control. Employer merely gave its blessings to the program because it was receiving the welders it needed and, in all probability, because it contemplated it would ultimately become beneficiary of faster pipefitting. Employer did not fund or administratively direct the program and it had nothing to do with the training aspect thereof. Consequently, Respondent's conduct in requesting the discharge of Dades and Bevaque was to enforce its training program rules, and not for the periodic payment of dues and fees. Since the discharges were not within the latter exception enunciated by the Supreme Court in Allis-Chalmers and Scofield, supra, Respondent's conduct in bringing about the discharges of Dades and Bevaque was in violation of Section 8(b)(1)(A) and (2) of the Act.

Although Respondent admitted that it did not consider imposing other disciplinary actions against Dades and Bevaque, it certainly could have imposed other sanctions against them consistent with its advocated understanding of the signed agreement with the welders. Assuming, arguendo, that Dades, Bevaque, and other welders were to receive metal trade cards as distinguished from building trade cards at the end of the 3-1/2 years' training sessions, instead of at the end of their 6-month probationary period, it could have advised the trainees that membership would be withheld until the completion of the extended training.

Additionally, since the clear language of the agreement between Respondent and the welders (Dades and Bevaque) states that the signer was to work on a probationary status for the first 6-month period and, upon completion of this period, and approval by the Union, the signer would become a member of Local Union 120, Respondent's contention that Dades and Bevaque would become eligible for membership only after attending training sessions of 3-1/2 years is unsupported by the record. Under these circumstances, I find Reinforcing Iron Workers, Local Union 426, International Association of Bridge, Structural and Ornamental Ironworkers, AFLCIO, 238 NLRB 4 (1978), and Honolulu Star-Bulletin, Ltd., 123 NLRB 395 (1959), inapplicable to the facts herein.

The evidence is uncontroverted that Dades and Bevaque completed their probationary period and that they attended all training sessions during the probationary period. Nevertheless, they were not granted membership in Respondent and both were nevertheless charged regular working dues of one-half percent of their gross pay as well as a monthly administrative fee of $8 during the course of their employment, even though they were denied membership in the Union subsequent to completion of their probationary period. Such conduct by Respondent was clearly in violation of Section 8(b)(1)(A) of the Act by charging dues and fees of the trainees while excluding them from membership. See N.L.R.B. v. General Motors Corporation, 373 U.S. 734, 745, fn. 12 (1963). There, the Court noted that Congress never intended that employees who were excluded from membership Upon the basis of the above findings of fact and upon the entire record of this case, I make the following:

should be saddled with the obligation of paying dues and fees. Respondent collecting dues from said trainees while it denied them membership had a restraining, coercive, and discouraging effect upon their rights, to avail themselves of organizational rights guaranteed by Section 7 of the Act. Moreover, by causing Employer to discharge Dades and Bevaque for failure to meet union membership requirements other than the obligation to pay periodic dues and fees, Respondent violated Section 8(b)(1)(A) and (2) of the Act.

Dades and Bevaque were reinstated to their former positions as a part of a non-Board settlement of the charge in Schweizer Dipple, Inc., Case 8-CA-13871.

IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE

1. Schweizer Dipple, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. Pipefitters Union Local No. 120 is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

3. By discriminatorily recommending and causing Employer to discharge nonunion member-employees because they failed to comply with Respondent's training rule with respect to membership requirements (not related to the periodic payment of dues and other fees), Respondent violated Section 8(b)(1)(A) and (2) of the Act.

4. By collecting and receiving dues and administrative fees from prospective trainee member-employees while they were not members of Respondent, Respondent violated Section 8(b)(1)(A) of the Act.

5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.

Having found that Respondent has engaged in an unfair labor practice warranting a remedial order, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act.

Having been found that Respondent has interfered with, restrained, and coerced its members by recommending and causing Employer to discharge them because they failed to comply with a union rule not involving nonpayment of dues or fees but relating to conditions of their membership, in violation of Section 8(b)(1)(A) and (2) of the Act; and by collecting and receiving dues and administrative fees from said employees while they were not members and their membership was being withheld by Respondent, in violation of Section 8(b)(1)(A) of the Act, the recommended Order will provide that Respondent notify Employer that it has no objection to the reemployment of said employees, and that Respondent make said employees whole for wages and benefits lost during their period of unemployment, as well as for dues and fees charged and received from them during their employment, within the meaning and in accord with the Board's decision in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977), 2 except as specifically modified by the wording of such recommended Order.

Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).

The Respondent, Pipefitters Union Local No. 120, Cleveland, Ohio, its officers, agents, and representatives, shall:

1. Cease and desist from:

(a) Discriminatorily and unlawfully recommending and causing Employer to discharge prospective trainee member-employees for failing to comply with Respondent's training membership requirements.

(b) Coercively and unlawfully collecting and receiving dues and fees from prospective trainee member-employees, while they are not members of Respondent Union.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Notify Employer that Respondent has no objection to the reemployment of dischargees Peter E. Dades and Joseph Bevaque or other employees similarly discharged.

(b) Make dischargees Peter E. Dades and Jospeh Bevaque whole for wages and benefits lost by reason of the discrimination against them, as well as for the dues and administrative fees charged and collected from them during the period of their unemployment with Employer, with interest in the manner described in the section in this Decision entitled “The Remedy."

(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records for the payment and collection of dues and fees,

3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.

2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).

membership records and reports, and all other records necessary to analyze the amount of backpay dues under the terms of this Order.

(d) Post at Respondent's office and/or meeting hall in Cleveland, Ohio, copies of the attached notice marked “Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly

signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.

Page 10

Milton College and Milton College Faculty Associ

ation, Local 4094, WFT, AFL-CIO. Case 30– CA-5860

BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN

Upon a charge filed on May 29, 1980, by Milton College Faculty Association, Local 4094, WFT, AFL-CIO, herein called the Union, and duly served on Milton College, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint on February 6, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding.

With respect to the unfair labor practices, the complaint alleges in substance that on September 20, 1979, following a Board election in Case 30RC-3557,” the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; and that, commencing on or about May 5, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 12, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

On October 21, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 23, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause, denominated as its “Argument in Opposition to Motion for Summary Judgment,” incorpo

rating an affidavit by Respondent's dean. On November 18, 1981, counsel for the General Counsel filed a motion to strike Respondent's affidavit, and also filed a “Response to Respondent's Opposition to Motion for Summary Judgment.”

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board makes the following:

Ruling on the Motion for Summary Judgment

In its answer to the complaint and opposition to the General Counsel's Motion for Summary Judgment, Respondent asserts that the unit herein is inappropriate and that the General Counsel is not entitled to summary judgment in this matter because there is a genuine issue of fact and of law to be determined. Thus, while Respondent admits certain factual allegations of the complaint, including the May 5, 1980, denial of the Union's requested commencement of bargaining, it contends in effect that the decision by the Supreme Court in N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980), holding certain faculty members to be managerial in status, renders the previously stipulated unit herein inappropriate. In support of its position regarding the managerial status of its faculty members which would bring them under the rubric of Yeshiva, supra, Respondent asserts in a sworn affidavit that the faculty members included in the unit have complete authority to determine curriculum, to set admission policies and matriculation standards, to control retention policies, grading policies, and actual grading, and to determine which students graduate and which do not. Further, Respondent asserts that the faculty has complete control over, inter alia, faculty hiring, determination of tenure policies, faculty sabbaticals, termination and promotion of faculty, and the selection and evaluation of chairpersons and department heads. Additionally, Respondent asserts that the faculty has “great authority and influence over”: faculty salaries, departmental budgets, faculty evaluations, faculty grievances, and leaves of absence. Respondent further contends that the authority and managerial status of the faculty is presented “as of the present date as well as the date that the initial bargaining unit was determined.”

Counsel for the General Counsel argues that Respondent's reliance on Yeshiva is untimely, that Respondent must be deemed to have waived such argument, that there are no special circumstances which would require any reexamination of the representation case, and that Respondent should thus not now be permitted to present any such evidence.

We find no merit in the General Counsel's arguments. We conclude that the Supreme Court's decision in Yeshiva constitutes a substantial change in the state of the law regarding the supervisory and/or managerial status of faculty members which warrants the holding of a hearing on the appropriateness of the unit. There is no allegation here that Respondent has made changes in the duties or the authority of faculty members. The General Counsel apparently concedes that the issue here is not the relitigation of an issue previously decided, but rather in effect presents an issue not previously litigated. While the General Counsel asserts that Respondent has effectively waived litigation of the appropriateness of the unit, we agree with Respondent that waiver implies knowledge of a right before it can be waived. In this connection, we do not agree with the General Counsel that Respondent can be held to have knowledgeably waived a court decision which issued some 9 months following the initial stipulation herein. Counsel for the General Counsel also asserts that the affidavit of Respondent's dean should be stricken because Dean Collins had been employed only a few

months when the certification issued, and Collins could not have had sufficient time to determine the faculty's actual duties and authority in that short amount of time, and is "not qualified to proffer evidence regarding the duties and authority of faculty prior to” June 1979. The General Counsel further asserts that if the Board does not strike Collins' affidavit little, if any, weight should be given to it. We reject these arguments. To the extent that the General Counsel's position is intended to challenge the factual assertions in Respondent's affidavit, it would appear that it also puts in issue both factual and legal questions requiring further resolution.

Accordingly, we shall deny the General Counsel's Motion for Summary Judgment, and remand the instant proceeding to the Regional Director to arrange for a hearing concerning the appropriate unit.

It is hereby ordered that the General Counsel's Motion for Summary Judgment herein, and his motion to strike Respondent's affidavit incorporated in its “Argument in Opposition To Motion for Summary Judgment” shall be, and they hereby are, denied.

IT IS FURTHER ORDERED that Case 30-CA-5860 be remanded to the Regional Director for further appropriate action.

PPG Industries, Inc., Lexington Plant, Fiber Glass

Division and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 11-CA-8815 and 11-CA-8980

A. FRANK, Administrative Law Judge: The charge in Case 11-CA-8815 was filed on December 14, 1979, and the charge in Case 11-CA-8980 was filed on March 10, 1980.2 The order consolidating cases and the consolidated complaint, alleging violations of Section 8(a)(1) and (3) of the Act, issued on April 25, 1980. The hearing was held on June 24 to 26, 1980, inclusive, at WinstonSalem, North Carolina. All briefs filed have been considered. 3

At issue in this case are questions whether Respondent discharged an employee because of his union and protected concerted activities, unlawfully interrogated another employee, and unlawfully discharged a supervisor because of his refusal to engage in unlawful activity.

BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. PRELIMINARY FINDINGS AND CONCLUSIONS

On June 1, 1981, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, Respondent filed an exception, a supporting and an answering brief, and the Charging Party filed exceptions and a brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.

Respondent, a Pennsylvania corporation, with a plant located in Lexington, North Carolina, the only facility involved in this proceeding is engaged in the manufacture of fiber glass products at that location. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

The Charging Party, hereinafter the Union, is a labor organization within the meaning of Section 2(5) of the Act.

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, PPG Industries, Inc., Lexington Plant, Fiber Glass Division, Lexington, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly:

“(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.”

The Union embarked on a campaign to organize Respondent's employees in early March 1978. On July 6 and 7, 1978, an election was conducted among Respondent's employees at the Lexington plant. Following objections to the conduct of the election, a hearing was held and the Union subsequently was certified by the Board on September 11. In the interim numerous charges of conduct violative of Section 8(a)(1) and (3) of the Act were filed by the Union against Respondent. These charges culminated in the issuance of a complaint by the Regional Director. A hearing was held before Administrative Law Judge Hutton S. Brandon in February and March. Judge Brandon issued his Decision on November 5, finding certain violations of Section 8(a)(1) and (3) and dismissing others. On August 27, 1980, the Board, with minor variations, affirmed the substance of Judge Brandon's Decision. 4

A. The Discharge of Arthur Lee (Sonny) Crowell Crowell began working for Respondent in February 1974, and was discharged on November 27. Crowell signed a union card during the first day of the Union's

· The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

campaign in March 1978. About a month later Crowell became a member of the Union's in-plant organizing committee. Along with numerous other employees he participated in handbilling in front of Respondent's gates. He testified for the General Counsel in the hearing before Administrative Law Judge Brandon.

In October Crowell and a Teamsters official visited Pittsburgh during the World Series game. Upon Crowell's return to Lexington, a handbill, dated October 15 and distributed before Respondent's gates during the latter part of October, described Crowell's and the Union's activities in Pittsburgh. The handbill was signed "Sonny Crowell” and was addressed to “Fellow PPG Employees.” Crowell told the employees that on October 13 an airplane circulated over the Three Rivers Stadium during the World Series trailing a banner with the legend: "PPG UNFAIR TO TEAMSTERS IN NORTH CAROLINA.” Crowell also told the employees that he and several Teamsters officials were interviewed on Pittsburgh TV channels during his visit. They informed viewers about "PPG's attitude toward southern workers” and how PPG “has tried to deny us our rights.” Crowell said that some of the news reporting occurred in front of Respondent's corporate offices. Crowell concluded his letter as follows: "This was just the opening shot. I feel like we really caught the attention of the big shots at PPG in Pittsburgh.”

From December 1978 until his discharge in November, Crowell's job was that of a truck puller. This job requires the use of a towmotor to haul full and empty “pin trucks,” in-plant cargo trailers. Each pin truck carries a number of spindles on which full bobbins of yarn are loaded for movement out of the production area to other processing areas. It is the responsibility of the truck puller to haul away the full pin trucks and return with empty trucks so that the production and processing employees can fulfill their functions. The towmotor pulls about 10 pin trucks.

In November Crowell was employed on the swing shift, ending at midnight on C Crew under the immediate supervision of Harold Burns and the overall supervision of Crew Foreman Rudolph Hartley. Crowell used towmotor 9. According to Crowell and several other employees who used towmotor 9, that vehicle was in poor mechanical condition. The brakes did not operate properly and on occasion the battery would smoke.

The record shows that Crowell received three disciplinary writeups in 1976, two in 1978 relating to poor attendance, and 11 in 1979 relating primarily to poor performance and attendance. His absence record for 1978 shows five unfavorable comments: four because of poor attendance and one relating to wasting time. His absence record for 1979 shows 11 unfavorable comments relating to poor attendance and poor performance.

On March 7 Foremam Lindsey Owens, the then immediate supervisor of Crowell, talked to Crowell about falling behind in his work and putting a burden on the yarn handlers.

On March 8, acting on the basis of personal observation and complaints from other crews, Hartley called Crowell to the fabrication office. In the presence of Robert Byerly, the twisting foreman, Hartley told

Crowell he was not keeping his job up and was talking too much. Crowell disagreed and said he was trying to keep up his job.

On May 23 Crowell was called to the office of James M. Williams, the area supervisor. There he was again lectured by Hartley and Williams because of his performance. Hartley told Crowell that they were doffing less frames than the other crews and using more hours; that Hartley expected Crowell to keep up his job or Hartley would replace Crowell. Hartley said it was the last time he would talk to Crowell about job performance. During the meeting Williams showed Crowell 10 to 15 writeups going back to 1974. Williams told Crowell, “I haven't seen this much confetti in a man's folder in so many years.” Crowell again denied he was talking too much and showed Williams a card indicating that Crowell had pulled approximately 480 trucks.

Several days later the name of Crowell and other members of C Crew were called out on the public address system for outstanding performamce.

On November 17 Hartley wrote up Crowell because Crowell had shouted at another employee to put her safety glasses on. Hartley told Crowell to let Foreman Burns or Hartley do the correction of other employees. Hartley also told Crowell to concentrate on his own job rather than talking so much. If he kept his job up Hartley would not be getting complaints from the succeeding crew.

On November 20 Hartley received a memo from Foreman Leon Gibson whose crew at times followed C Crew. Gibson suggested that Hartley take a close look at truck moving on his shift, that a number of trucks were being left over, particularly from bays 11 through 17. During November Crowell was responsible for bays 10 through 18, the “Back Bays.” Foreman Leo Church, whose crew also followed C Crew on occasion also complained about Crowell's performamce.

Hartley initiated his own check of Crowell's performance as early as November 16. On that date Hartley noted that Crowell had been left 6 trucks by the previous crew and left 26 trucks for the crew that followed him. On November 17 there were 10 trucks at the start of the shift and 14 at the end. On November 18 the figure was 10 at the beginning of the shift, and 25 at the end. The figure for November 19 was 11 at the beginning of the shift, 43 at the end. On November 20 the figure was 15 at the beginning of the shift, 22 at the end. On November 24 the figure was 14 at the beginning of the shift, 30 at the end. Hartley testified that 15-20 trucks left over for the next shift in a particular area was a reasonable number, but anything over that would be excessive.

Crowell was absent on November 25 and 26. During Crowell's absence his job was performed by Kim James. Hartley noted that Kim James was keeping the job up better, leaving less trucks at the end of the shift.

On the morning of November 27 Hartley recommended to William Rogers, the area supervisor in the fabrication department, that Crowell be discharged for poor performance. Rogers agreed and took the matter to Robert Kirkendall, the personnel manager. Kirkendall while Crowell was serving this area. Crowell worked in the Back Bay during the last month of his employment. He conceded that he had difficulty maintaining the proper number of empty and full pin trucks for the production and processing employees during this period. He testified that his poor performance was due to the faulty condition of towmotor 9 and the excessive amount of overtime in the Back Bay area during the last 2 weeks of his employment. Overtime for the production employees resulted in more yarn coming off the frames. The full pin trucks would pile up in the aisles, placing an additional burden on the truck pullers. Crowell testified that he was never given assistance when he asked for it. On one occasion he told Hartley it was impossible for Crowell to keep up the job with the amount of yarn coming off the frames. Hartley grinned and walked off.

and Rogers reviewed Crowell's personnel record and discussed the various reprimands Crowell had received during his period of employment with Respondent. Kirkendall told Rogers that Kirkendall would review the recommendation with Richard Cameron, the manager of employee relations, and also talk with legal counsel. Kirkendall did review the matter with Cameron, who spoke with Respondent's counsel concerning the discharge. At or about 3 p.m. Kirkendall instructed Rogers to bring Crowell to the personnel office.

In the personnel office Rogers reviewed Crowell's personnel file, essentially for the year 1979, amd told Crowell that he was being discharged for poor performance. Crowell said, “Well, Harold Burns here lately has been telling me that I have been doing a pretty good job; in fact, he told Medford Shoaf and myself that we had been doing a pretty good job.” Rogers told Crowell that as far as the record showed Crowell had been talked to on numerous occasions about his poor job performance and the Company had no recourse except to terminate him. Crowell said, "I will be back.”

Harold Burns, who became Crowell's immediate supervisor in August, testified that he had, in fact, complimented Crowell on several occasions. Burns had taken a course in “Performance Management” and undertook to improve Crowell's performance by the technique of "positive reinforcement.” This technique required Burns to "brag about” anything good Crowell did in the hope that Crowell would then be influenced to do an even better job.5 Burns had words of praise for Crowell on at least two occasions in September and the first part of October. However, in October Burns informed Hartley that Burns was giving up on Crowell because Burns could not improve Crowell's performance. Burns issued no disciplinary writeups to Crowell and did not inform Crowell that Burns had given up trying to improve Crowell's work performance. Burns was not consulted by Respondent's officials before Crowell's termination.

Several employees on Crowell's crew testified that they complained frequently to their supervisors about Crowell. He did not bring them enough yarn when they needed it and did not maintain an adequate supply of empty pin trucks to “doff” their frames. Lynn Hendley complained about Crowell four or five times a week when he worked as a truck puller in the Back Bay area. Dorothy Bailey complained about Crowell just about every day. Hendley and Bailey also complained, to a lesser extent, about Medford Shoaf, another truck puller, who was employed by Respondent at the time of the hearing. Thomas Terry, an inspector packer, also complained about Crowell in 1978 and for the period in 1979 when Terry was assigned to the area served by Crowell.

Crowell and the other truck pullers rotated on a monthly basis from the Back Bay to the Front Bay areas. The Back Bay area is the most difficult area for the truck pullers to serve. Complaints by Hendley and Bailey that Crowell was not keeping up his job occurred

B. The Discharge of John Jones Jones began working for Respondent on April 30, 1974, and was discharged on September 24. At the time of his termination he was a foreman in the forming department, C Crew, under the immediate supervision of Don Bailey, the area supervisor, and Norman Bell, the department superintendent. At all times material herein Jones was a supervisor within the meaning of the Act.

Sometime in the spring of 1979 Robert Dickerson, production superintendent, and Richard Cameron, employee relations manager, both of whom were new in their jobs, initiated a series of meetings with the foremen of the several crews for the purpose of improving managerial relationships and employee morale. The Union's organizational campaign at the Lexington plant was part of the program and the schedule.

Two meetings were held with the foremen of C Crew: the first on June 13 and the second on July 12. The first meeting for C Crew was held at a private dinner club in Lexington, the Dutch Club. Present at this meeting were Dickerson, who conducted the meeting, Kirkendall, and 11 or 12 crew foremen and area foremen from the three departments, including Jones. Dickerson led off by informing the foremen that the purpose of the meeting was to improve supervisor-employee morale. He asked the foremen their views as to the top 10 problems in the plant. James Saunders, the performance manager, recorded each item on an easel as they were offered by the various foremen. Next, the foremen were asked what they needed from management to improve their morale and the morale of the employees. The foremen were then asked what they thought they could do to influence morale in their areas. Finally, a straw vote of the foremen was taken to determine how many employees were for the Union, undecided, or for the Company. During the course of the meeting the foremen were asked to select five employees whom the foremen felt could talk to new employees or employees who were undecided, to talk to them by any legal means possible, and to make sure they understood the Company's position. Dickerson suggested that the foremen attempt to turn the employees around in their thinking, to point out all the Company's benefits, the evils of the Union, the fact that the employees could be assessed for strikes beyond their own

Page 11

area. If the foremen could turn 20 employees around in each crew, that would swing a new election in the Company's favor.

The second meeting was held at the plant. Cameron, but not Kirkendall, was present at this meeting. Also present were the C Crew foremen and area foremen, including Jones. Dickerson and Saunders discussed the problems that the foremen from all crews had offered for management consideration during the first meetings. Saunders had prepared a list of 15 items, work problems, which he projected on a view graph. Dickerson and Saunders reported to the foremen the actions they had taken with respect to these problems. Dickerson and Saunders then went around the room asking each foreman to feed back the type of information they had received from the employees whom they had contacted. Another straw vote was then taken. The straw vote showed that since the June meeting with C Crew the Union appeared to have lost some ground in favor of the undecided category.

Seven foremen reported on their conversations with employees with respect to the Union. Several reported progress in influencing employees. Ken Lowder stated he had talked to a few people and that there was no way to sway the hard-core union sympathizers. Four foremen, Lindsay Owens, Martha Scott, Tony Smith, and Jones did not report that they had talked to their employees about the Union. Owens and Scott are still employed as supervisors by Respondent.

Upon examination by counsel for the Charging Party, Jones testified, contrary to the testimony of Dickerson and other witnesses for Respondent, that at one of the meetings the discussion centered on older employees who were bringing peer pressure in signing up new employees. Management felt that the former were influencing employees that could be swayed either way. Dickerson told the foremen to keep the older employees in their immediate work area as much as possible and not to let them overstay their breaks. If they overstayed their breaks, the foremen were to write them up, the writeup to be a written reprimand, which would be put in their personnel files.

I do not credit Jones' testimony that Dickerson, in effect, instructed the foremen, including Jones, to restrict the union activity of employees under their supervision and, if necessary, discipline employees because of such activity. Jones was an unimpressive witness. His memory was vague on dates and he recalled having dinner at the Dutch Club only during cross-examination. His testimony that the Dutch Club dinner was merely a social gathering for supervisors is not believable. There is other evidence in the record casting serious doubt as to his credibility. Particularly damaging is his testimony at the hearing before Administrative Law Judge Brandon that he had not had conversations about the Union with employee Carrey Gosnell. Administrative Law Judge Brandon discredited that testimony. In the instant case Jones testified that his response to questions in the former proceeding as to such conversations amounted to “splitting hairs” and that he had responded as he did because he wanted to protect his job. In fact, Jones admitted that he had cautioned Gosnell with respect to Gosnell's union

activity, contrary to Jones' testimony before Administrative Law Judge Brandon. Jones' motive, the protection of his job, which caused him to falsify his testimony before Administrative Law Judge Brandon, exists equally, if not more so, in the instant case. In such circumstances I cannot credit his uncorroborated testimony denied by other credible witnesses.

In September, about a week prior to Jones' termination, Jones was called to Bailey's office. Bailey said, “John, sit down. I need to talk to you. Mr. Dickerson is very unhappy with you. It seems that you have not given a performance that has pleased him at all and I suggest that you get it on the ball. Have you got any problems that you want to discuss with me?” Jones said, "No." There was some further conversation during which Jones was told that he was being denied a 5-percent cost-of-living raise at the request of Mr. Dickerson.

On September 24 at or about 11 a.m. Jones was told to report to the personnel office. Dickerson and Cameron were present. Dickerson told Jones that he was being terminated for poor performance as a supervisor. Dickerson pointed out that Jones had missed 8 days during the year and that Jones had not called in prior to the start of the shift on two occasions. Dickerson said that Jones had shown an inability or unwillingness to get along with his peer supervisors and superiors. Jones explained that he had not reported he would be off on one shift because he was under heavy medication at the time and could not be awakened. Jones also argued that his crew was on top or close to the top most of the time and he had computer reports by management recognizing that type of performance. Dickerson and Cameron replied that those reports were in recognition of the employees' rather than the supervisors' performance and did not necessarily indicate that Jones was doing a good job. Jones was again told that he was being terminated and he would be granted a month's severance pay. According to Dickerson, the interview lasted 35 to 45 minutes.

Jones testified, contrary to Dickerson, that the meeting was brief, that he did not ask for and was not given a reason for his discharge. Dickerson merely asked if Jones was aware of why Jones had been called to the personnel office. Jones said something to the effect that he was reasonably sure. Dickerson then said, “Okay, we will get right to the point. You have got to either follow the game plan or get off the team.” Jones replied, “A man's job is not a game.” He was then terminated with 30 days' severance pay. I credit Dickerson.

Evidence introduced by the General Counsel shows that Jones' rating from May 1, 1976, to October 25, 1978, was "overall competent” with notations that he needed more experience, but was continuing to improve. On the latter date his rating dropped to "overall adequate,” with a notation by Bell that “John was improving until the union organizing campaign started.” On April 11 Jones was again rated as "overall competent," with a notation by Bell that Jones "had shown more improvement since the past appraisal than any person I have been associated with.”

C. The Alleged Interrogation of William M. Scarce Scarce was first employed by Respondent at the Lexington plant in January. In August he was called to the office of Curtis Putnam, Scarce's supervisor. Scarce testified that for the first 10 minutes they talked about jobrelated matters and then the subject of the Union was discussed. Scarce asked Putnam his thoughts about the Union. Putnam said he could not get into details, but the Union was no good for Scarce. According to Scarce, Putnam then asked if Scarce had signed a union card. Scarce said, “Yes."

According to Putnam, he asked Scarce how he liked the job and the Company's benefits and pay. Scarce said they were just great and he could not understand why anybody wanted a union at that plant to begin with. Putnam agreed. Putnam denied he had asked Scarce whether Scarce had signed a union card.

Scarce was discharged by Respondent on November 14 and his discharge was included in the charge filed by the Union in Case 11-CA-8815. The complaint does not allege Scarce's discharge to be violative of the Act. Prior to his discharge, Scarce did not mention to anyone that Putnam had asked Scarce whether he had signed a union card.

Scarce's testimony on cross-examination is somewhat confusing as to the critical point whether Putnam specifically asked Scarce if he had signed a union card. According to Scarce, Putnam told Scarce that Putnam could not tell Scarce to sign a card or not, that it was “kind of your decision.” Scarce also testified that, after asking if Scarce had signed a card, Putnam said that he could not ask Scarce “outright whether—that he couldn't say I had signed one or not signed one, he couldn't tell me that because he wasn't in a place to do that.”

Apart from the discharge of Jones and Crowell, the above interrogation of Scarce is the only alleged incident of conduct violative of Section 8(a)(1) in this complaint.

I am satisfied that there was some discussion of the Union and union cards in the conversation between Scarce and Putnam. However, after the extended hearing before Administrative Law Judge Brandon in February and March, Respondent's supervisors would be keenly aware of potential unfair labor practice charges if they questioned employees directly about their union activity, including the signing of cards. Scarce's own testimony suggests that Putnam realized the legal limitations on his right to discuss the Union and the signing of cards with Scarce.

Taking all of the evidence into consideration, I credit Putnam over Scarce and find that Putnam did not ask Scarce directly or “outright” if Scarce had signed a union card.

It is Respondent's position that Crowell was discharged because of his poor performance, evidenced particularly by the writeups in his personnel file during 1979 and complaints about his performance by supervisors and employees during the same period. Respondent, of course, has a right to discharge employees for inefficiency or, indeed, for any reason other than their union and protected concerted activity. I have considered the evidence adduced by the Respondent most carefully. Crowell conceded that he had difficulty keeping up with his job when assigned to the Back Bay areas, but blamed his work problems on poor equipment, the excessive amount of overtime for the production employees, and his supervisor's failure to provide needed assistance. I am not persuaded that Crowell's explanation totally exonerates him from the charge of poor performance. But I am also not convinced that Crowell's poor performance record, dating from the beginning of the Union's organizational campaign, was the motivating reason for his discharge.

Crowell was not the only poor performing truck puller working under Burns' supervision on C Crew. Bailey and Hendley, who complained about Crowell, also complained about Medford Shoaf at least once or twice a week. Shoaf was still employed at the time of the hearing and, so far as the record shows, no discipline was meted out to him as a result of recurring complaints. Burns himself admitted that other employees who worked under his supervision had poor performance records. Indeed, despite Crowell's record of poor performance, which Respondent contends is "damning," Rogers, Crowell's area supervisor and the official who discharged Crowell, was not aware that Crowell was a below-average employee until Hartley provided that information on the very day of Crowell's discharge.

Nor is the record of Crowell's performance entirely negative. Warned in May that he was not keeping up his job, he was praised a few days later over the public address system for superior performance. From August to October he was complimented by Burns on several occasions. Accepting Burns' explanation that he was only praising Crowell to improve the performance of a poor performer, Burns' attempt to rehabilitate Crowell suggests that Crowell, a worker good enough to save in September, was not worth saving in October and had to be discharged in November. Burns testified that he informed Hartley during the first part of October that Burns had given up on Crowell. But neither Burns nor Hartley warned Crowell that he was on the razor's edge. Burns never issued a disciplinary writeup to Crowell. Rather, Burns left Crowell with the impression that Burns thought Crowell was doing a pretty good job. Burns was not consulted by Hartley in recommending Crowell's discharge. Nor was Burns consulted by Respondent's higher officials when the decision was made within hours of Hartley's recommendation to discharge Crowell forthwith.

No specific incident triggered Crowell's discharge on November 27. Hartley decided to recommend Crowell's discharge at 9 a.m. Rogers agreed almost immediately. By 3 p.m. the recommendation was accepted by Kirken

Analysis I. I conclude that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Arthur Lee Crowell on November 27.

Crowell, an early and known union activist, had been employed by Respondent for more than 5 years when he was summarily discharged in November.

dall and Cameron, after consultation with counsel. Although Crowell was a veteran with more than 5 years of employment at the Lexington plant in various jobs, he was called to the personnel office and summarily discharged because of poor performance. The exit interview was terse and perfunctory. No other job was offered him.

I realize that Crowell was not the only known union activist at the Lexington plant. Respondent was aware that at least 400 employees were on the Union's in-plant organizing committee. Many employees wore union armbands and insignia and openly engaged in handbilling before the plant gates. However, in October Crowell engaged in a particular form of union activity that placed him in a separate, if not unique, category of union supporters. He alone had the effrontery or courage, depending on the point of view, to sign his name to a handbill publicly challenging Respondent's top management in their dispute with the Union. Crowell boasted that he had appeared on TV stations in Pittsburgh, the location of Respondent's main office, and that millions of TV viewers had been informed that Respondent was acting like the J.P. Stevens Company and was treating its Lexington employees unfairly. Whether or not Crowell was successful in attracting the attention of Respondent's "big shots” in Pittsburgh, as he claimed, he certainly attracted the attention of Respondent's top officials in Lexington.

I conclude that Respondent's decision to discharge Crowell followed, and was occasioned by, the distribution of the October handbill, which he signed. While his performance record may have been a factor in that decision, I find that he would not have been discharged but for his conduct with respect to that handbill, a union and protected concerted activity. Cf. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980).

II. I conclude that Respondent did not violate Section 8(a)(1) of the Act by discharging Supervisor John Jones.

The General Counsel argues that Dickerson's instructions to the foremen of C Crew, including Jones, to talk to new or undecided employees and attempt to influence them for the Company by pointing out the Company's benefits and the disadvantages of a unionized plant amounted to an order to engage in unfair labor practices. I do not agree. Employers have a right under the constitution and Section 8(c) of the Act to express "their views, argument, or opinion” with respect to unions so long as such expression contains "no threat of reprisal or force or promise of benefit." Within the limitation of noncoercive speech an employer may lawfully communicate his views about unionism or his specific views about a particular union. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). Dickerson directed the C Crew foremen to talk to employees under their supervision by "any legal means possible” and to make sure they understood the Company's position. Nothing in the credited testimony suggests that the foremen were told to make promises of benefit or threats, or to unlawfully interrogate employees concerning their union activities. As early as March 1978, Respondent's supervisors were informed of their legal right to express the Company's views about the Union in a memorandum entitled “Legal

Law in Brief.” The memorandum encouraged supervisors to express their own views regarding unions, to discuss company benefits, and to point out the disadvantages of a unionized plant. Supervisors were also warned not to engage in threats, spying on union meetings, interrogating employees about union matters, and discriminating against employees because of their union activity. Dickerson's request of the foremen of C Crew to influence employees for the Company and against the Union goes no further than the March 1978 memorandum, in evidence as Respondent's Exhibit 1. The cases cited by the General Counsel are not in point. In Russell Stover Candies, Inc., 223 NLRB 592 (1976), a supervisor was discharged because he refused to spy on employees' union activities. In Miami Coca Cola Bottling Company d/b/a Key West Coca Cola Bottling Co., 140 NLRB 1359 (1963), a supervisor was discharged because he refused to discharge union adherents. No such instructions were given by Dickerson to supervisors, including Jones, in this case.

In view of the foregoing I find it unnecessary to decide whether Jones was discharged because of his poor performance as a supervisor, as alleged by Respondent, or because he was neutral toward the Union and refused to talk to employees under his supervision on behalf of the Company and against the Union, as alleged by the General Counsel. I reserved judgment on Respondent's motion at the hearing to dismiss this allegation of the complaint. The motion is granted.

III. In view of my finding above, crediting Putnam over Scarce, I conclude that Respondent did not unlawfully interrogate Scarce in August in violation of Section 8(a)(1) of the Act.

The unfair labor practices found above are unfair labor practices within the meaning of Section 2(6) and (7) of the Act.

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

The Respondent, PPG Industries, Inc., Lexington Plant, Fiber Glass Division, Lexington, North Carolina, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discharging or otherwise discriminating against employees to discourage union activity.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Offer Arthur Lee Crowell immediate and full reinstatement to his former position, if available, or, if that Jones and by unlawfully interrogating employee William M. Scarce.

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

position no longer exists, to a substantially equivalent position, with the wage rate he enjoyed at the time of his discharge, plus any increases, without prejudice to his seniority and other rights and privileges, and make him whole for all losses suffered by him as a result of the discrimination against him in the manner set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950); with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).

(b) Post at its plant in Lexington, North Carolina, copies of the attached notice marked “Appendix.” Copies of said notice, on forms provided by the Regional Director for Region 11 , after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a)(1) of the Act by discharging Supervisor John

WE WILL NOT discharge or otherwise discriminate against our employees to discourage their union activity.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act.

WE WILL offer Arthur Lee Crowell immediate and full reinstatement to his former position, if available, or, if that position no longer exists, to a substantially equivalent position, with the wage rate he enjoyed at the time of his discharge, plus any increase, without prejudice to his seniority and other rights and privileges, and make him whole for all losses suffered by him as a result of our discrimination against him, with interest.

PPG INDUSTRIES, INC., LEXINGTON PLANT, FIBER GLASS DIVISION.

Virginia Electric and Power Company and Interna

tional Brotherhood of Electrical Workers, AFLCIO. Case 5-CA-12356

BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER

On July 13, 1981, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs, and Respondent filed a brief in support of the Administrative Law Judge's Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

1. We agree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act when Supervisor Jean Jackson told employee Tanya New that she was not promoted to the position of backup clerk because of her union activities. However, unlike the Administrative Law Judge, we also find that Respondent violated Section 8(a)(3) and (1) of the Act when it based its decision not to promote New on her union activities.

The events surrounding this violation took place in late 1979 and early 1980.2 A contract existed between Respondent and the Utility Employees Association (UEA), covering about 3,300 office, technical, and professional employees. However, during this time period, a movement against the UEA began developing in Respondent's Alexandria and Norfolk, Virginia, facilities. A bookkeeping employee in the Norfolk office, Tanya New, contacted officials from the International Brotherhood of Electrical Workers (IBEW) to come talk to employees about organizing. New then became the most active IBEW backer at the facility. She solicited signatures, planned meetings, and generally tried to arouse interest in the IBEW. New's response to an open letter to employees, criticizing the signing of IBEW authorization cards, was placed on a general bulletin board and management became aware of it. Word of New's IBEW organizational efforts spread rapidly and her name became associated with the IBEW campaign. It is undisputed that Respondent knew her to be a primary IBEW supporter and promoter.

On January 1, 1980, Concetta Warren, who had held the position of backup clerk was promoted to senior clerk. Warren testified without contradiction that her supervisor, Jean Jackson, told her that Jackson had been told by the district manager that Warren would not be promoted to senior clerk because of her IBEW activities, including the wearing of a union button. Warren said that Jackson told her “as a friend that it would be a good idea if I stopped talking, stopped being so outspoken for the union and stopped wearing my button, if I wanted a promotion.” Warren became “angry and disappointed,” and therefore removed the button and "did stop talking about it, so outwardly anyway.” She was made senior clerk and again started wearing the button, as she has done continuously since. The incident involving Warren is not alleged in the complaint.

When Warren was promoted to senior clerk, a vacancy was created for backup clerk. The job involved no pay increase, but was considered desirable nonetheless because it enhanced the likelihood that the employee who worked as backup clerk would be promoted to the position of senior clerk. Tanya New considered herself a good candidate for the job since she had worked previously with Concetta Warren, whom she would be assisting as backup clerk. New was not given the promotion, however, and when she asked her supervisor, Jackson, why she had been passed over, Jackson said,

1 Both the Charging Party and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

In adopting the Administrative Law Judge's finding that Respondent did not violate Sec. 8(a)(1) of the Act by restricting union activities on employees' breaktime, we do not rely on his reference to Studds' prehearing affidavit, in sec. III, 1, par. 2, of his Decision inasmuch as that affidavit was not admitted into evidence.

Further, in adopting the Administrative Law Judge's finding that Respondent did not violate Sec. 8(a)(3) and(1) of the Act by failing to select David Clements for the position of service coordinator trainee, we do not rely on his citation in sec. III, 4, par. 4, of his Decision, of Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667 (1961), inasmuch as that case is inapposite.

In adopting the Administrative Law Judge's finding that Respondent did not violate the Act by removing employee Jennifer Atchison from a desired job assignment, Member Jenkins notes that counsel for the General Counsel stipulated that Atchison's activities in protest of alleged sexual harassment had “nothing to do with this case."

Page 12

It is well settled, however, that mere contact with customers is not a basis for barring the wearing of union buttons, and that such a restriction on the wearing of union insignia or buttons constitutes a violation of Section 8(a)(1) of the Act in the absence of substantial evidence that the button affected Respondent's business or that the prohibition was necessary to maintain employee discipline.5 Here, there is no evidence of any such “special circumstances.” Thus, Respondent has not established that the IBEW buttons were in any way provocative, detracted unreasonably from the customary decorum of Respondent's lobby, or caused a diminution in Respondent's business. Accordingly, we find that Respondent, by its supervisor's remark to employee Van Burin, has unlawfully interfered with Van Burin's right to wear a union button and insignia at work and has violated Section 8(a)(1) of the Act.6

inter alia, that management did not want her working too closely with Warren, and that since New had worked so hard with the IBEW campaign they did not want to put any more of a strain on her.

Respondent does not dispute the fact that Jackson told New she was not promoted in part because of her union activities. Obviously, this fact is prima facie evidence of unlawful discrimination. . Nor does Respondent offer any convincing evidence that New would have been denied the promotion absent her union activities. Respondent does assert and the Administrative Law Judge found that Arnetta Galvin, the employee who was given the job, and New were “equally active unioneers," and thus Respondent's choice of Galvin eliminated the possibility of any discriminatory motive. However, it is clear from the record that New was a primary and active IBEW organizer, a fact well known to Respondent, while Galvin's only known union activity was the wearing of an IBEW button. Moreover, it is well settled that an employer need not discriminate against all union activists or supporters before the General Counsel can establish discriminatory intent. See, e.g., Challenge-Cook Brothers of Ohio, Inc., 153 NLRB 92, 99 (1965), enfd. in relevant part 374 F.2d 147 (6th Cir. 1967); Ballard Motors, Inc., 179 NLRB 300, 307, fn. 26 (1969); and Barnes and Noble Bookstores, Inc., 237 NLRB 1246, 1249 (1978). Accordingly, Respondent has not rebutted the General Counsel's prima facie showing of unlawful discrimination and we find that Respondent discriminated against employee New because of her union activities in violation of Section 8(a)(3) and (1) of the Act.3 Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). 4

2. Unlike the Administrative Law Judge, we find that Respondent violated Section 8(a)(1) of the Act when Supervisor Marian Trenis told employee Robin Van Burin that she would prefer that Van Burin not wear her IBEW button while working in the lobby area of Respondent's facility in Alexandria, Virginia. The Administrative Law Judge found the lobby to be the only place where the public is received and Respondent had a right to keep employees' quarrels about unions away from its customers. The Administrative Law Judge further reasoned that, because employees were allowed to wear buttons in all other areas of the plant, Respondent's preference that they not be worn in the lobby area was reasonable.

1. Virginia Electric and Power Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. International Brotherhood of Electrical Workers, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

3. By telling employee Tanya New that she was denied a promotion because of her union activities, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act.

4. By urging employee Robin Van Burin not to wear her union button while working in the lobby of its Alexandria, Virginia, facility, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act.

5. By refusing to promote employee Tanya New to the position of backup clerk because of her union activities, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act.

6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Virginia Electric and Power Company, Alexandria

3 Because the promotion that was illegally denied New involved no raise in salary, we will not include a backpay provision in our remedial order.

+ Member Jenkins does not rely on Wright Line, because Respondent has offered no legitimate reason for the failure to promote New.

WE WILL NOT refuse to promote or otherwise discriminate against employees for their union activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act.

We will offer to promote Tanya New to the position of backup clerk or, if that position no longer exists, to a substantially equivalent position without prejudice to her seniority or any other rights or privileges previously enjoyed.

VIRGINIA ELECTRIC AND POWER COMPANY

and Norfolk, Virginia, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Telling employees that they were not promoted because of their union activities.

(b) Urging employees not to wear union buttons or insignia while working in the lobby at its facilities.

(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

(a) Offer to promote Tanya New to the position of backup clerk or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.

(b) Post at its Alexandria and Norfolk, Virginia, facilities copies of the attached notice marked “Appendix.”? Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

THOMAS A. Ricci, Administrative Law Judge: A hearing in this case was held on March 25 and 26, 1981, at Norfolk, Virginia, on complaint of the General Counsel against Virginia Electric and Power Company, herein called the Respondent or the Company. The complaint issued on August 12, 1980, upon a charge filed on June 30, 1980, by International Brotherhood of Electrical Workers, AFL-CIO, here called the Union. The issues presented are whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Briefs were filed after the close of the hearing by the General Counsel and by the Respondent.

Upon the entire record, and from my observation of the witnesses, I make the following:

I. THE BUSINESS OF THE RESPONDENT

? In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board” shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

The Respondent, a Virginia corporation, is engaged in the sale and transmission of electrical energy to customers in several States. During the 12-month period preceding issuance of the complaint, a representative period, it received gross revenues in excess of $500,000. During the same period, it purchased and received in interstate commerce products valued in excess of $50,000 directly from points located outside the Commonwealth of Virginia. The Respondent is an employer within the meaning of the Act.

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

II. THE LABOR ORGANIZATION INVOLVED I find that International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

III. THE UNFAIR LABOR PRACTICES

WE WILL NOT tell employees that they were not promoted because of their union activities.

WE WILL NOT urge employees not to wear union buttons or insignia while working in the lobbies of our facilities.

A. A Picture of the Case Virginia Electric and Power Company operates throughout three States, with a total of about 10,500 employees. For many years the International Brotherhood of Electrical Workers (IBEW) has represented a unit of about 4,300 of these employees under successive collective-bargaining contracts; that unit, or units, embraces operations and maintenance workers. Also since 1946 the Utility Employees Association (UEA), apparently an independent union, has represented about 3,300 other employees in a unit of office, technical, and professional employees. The coverage of each of these union contracts extends over very many locations spread all over the three States. A contract between the UEA and the Respondent was placed in evidence; by its terms it covers the period October 31, 1980, to September 29, 1981. The contract also bears the date December 5, 1979. There is no explanation on this record as to why this date is printed on the agreement. I suppose this means the parties were in negotiations between December 1979 and October 1980 towards renewing their earlier, expired or expiring contract. In any event, it is clear the UEA's representative status was never impaired throughout this period.

In late 1979 and early 1980 there developed among some office employees at the Norfolk and Alexandria, Virginia, offices of the Company a move aimed at unseating the UEA as bargaining agent for the salaried employee unit. At best, it would appear, about 200 employees signed cards favoring the IBEW. The General Counsel asserts, partly via the complaint in this proceeding, that during the 6-month period preceding the filing of the charge by the IBEW on June 30, 1980, the Respondent took certain discriminatory action against three of the then pro-IBEW employees illegally aimed at curbing their activities in favor of that Union. The incidents involved are minor in nature, two of them not even said to involve any change in pay. One employee, an ordinary office clerk among many, desired to be a backup clerk; this involved being used occasionally-maybe 1 hour each day-to help a senior clerk, who sometimes cannot keep up with her own duties. Another employee—also a woman-who regularly works on the telephone all day dealing with customer complaints and inquiries desired to be used once in a while as a substitute switchboard receptionist in the front office, where she sometimes did work because the regular switchboard operator was out to lunch or had to go to the toilet. She was told one day that she would not be used that way anymore. The extent of the discrimination, if such it was, is illustrated best by the remedy which the General Counsel seeks in her case. He asks that the Respondent be ordered to use her "occasionally” on the switchboard. One man, according to the wording of the complaint, was actually denied a promotion from regular clerk to senior clerk—a change which would have raised his pay.

Apart from these three incidents, upon which it is alleged that the Respondent violated Section 8(a)(3) in its treatment of these three persons, there is one further direct allegation that should be mentioned at the outset, for it points to a relevant and complicated aspect of the whole case. In June 1980 the Company announced what it called a “clarification” of its sick leave policy affecting all employees covered by the current UEA contract, plus other salaried employees not covered by any collec

tive-bargaining agreement. The UEA contract never included any provision concerning sick leave benefits. Prior to that date, whatever the company policy may have been, the decision in every instance in which sick leave claims arose was left to the discretion of the particular supervisor involved. The new policy, while still somewhat ambiguous, lessened the discretionary authority of the supervisor and gave a little more definitiveness to whatever the policy would thereafter be. The complaint alleges by announcing this new policy the Respondent violated Section 8(a)(3). Since the charge underlying the complaint was filed by the IBEW, and since all the evidence adduced by the General Counsel involves union activity by those particular employees who support the IBEW, I must assume the complaint intended to allege that the announcement of the sick leave clarification at that particular time was unlawful discrimination, and therefore violative of Section 8(a)(3) vis-a-vis these pro-IBEW employees. I am not at all sure, as the General Counsel contends, that the new policy in fact decreased the sick leave benefits of past years. The documents do not establish that fact clearly, for they speak only in terms of possible alternatives permissible maximums and minimums. But the General Counsel does assert directly in his brief that the Respondent did this “to punish employees for supporting the IBEW.”

Would an employer, seeking to dissuade 200 of its employees from any desire to change unions, so punish over 3,000 employees—to say nothing of other unrepresented employees—still represented by the union it, the employer, favors? The UEA filed a charge with the NLRB right after this happened, alleging that the Company had violated Section 8(a)(5) by bypassing the UEA. That charge is still pending; nothing has been done about it yet by the Board's Regional Office. If the Respondent deliberately deprived these IBEW-minded employees of benefits long enjoyed, it did the same thing to the much greater number of other employees in all its locations dispersed throughout three States. With the much greater effect of such discriminatory action-if indeed it was punitive at all-being to discredit the UEA, the net result of the move would be to urge the rebellious group all the more to want to change unions. It is difficult to believe such could have been the Respondent's motive.

Employee Julie Studds testified that at a group meeting with a number of employees her supervisor, Peggy Kincheloe, said that "no one had been fired, and no one would be fired” because of union activities. The witness also quoted the supervisor as saying that “we were allowed to form or join any union that we wanted . . . on our own lunch hour, or after 5:00 and not on our breaks, because our breaks was company times [sic].” Jennifer Atchison, another employee, testified that on May 20 Supervisor Teresa Chandler told a group of employees that "we were only to discuss union (matters) during certain times—before, after and at lunch-but break time was company time and we were not to discuss it at that time.”

Kincheloe denied ever telling employees they were prohibited from talking about the Union during breaks, and Chandler testified that she told the employees they could, if they wished, talk about the Union during their break periods. I credit the supervisors over the two employee witnesses. Studds testimony continued:

We discussed anything we wanted to discuss . I continued to discuss anything I wanted on my breaks.

Q. Including union[s]? A. That's correct.

Employee Robin Van Burin, who was present at a meeting held by Supervisor Kincheloe, testified that, when Kincheloe spoke of employees' not talking about their union on company time, the supervisor did not specify what she meant by “company time." Van Burin also said that thereafter both she and others continued to talk about the Union during their breaktimes. And finally, in her prehearing affidavit, albeit quoting Kincheloe as saying “we should talk about it (the Union) on our own time and not on company time,” Studds made no mention of breaktime at all.

Employees who are formally ordered, as these witnesses said they were, not to engage in union talk while on breaktime do not so completely and continuously ignore the directive. And an employer who directly orders employees not to carry on their union activities during time in the plant for which the employer pays them does not so indifferently pay no attention at all to a total disregard of its directive. I find that the evidence does not prove the complaint allegation respecting the break period union activity.

2. Tanya New In the accounting department at Norfolk there are 21 regular bookkeeper-clerks and 3 senior bookkeeperclerks; the group is supervised by 3 assistant supervisors, with each being over 7 or 8 of the clerks. All of these clerks, regular and senior, maintain records of customer accounts, with those called senior handling the more complicated matters and therefore being paid more than the other clerks. Sometimes—perhaps 1 hour each daythe senior clerks cannot keep up with their work and one of the regular clerks, then called a backup clerk, helps them. There is no added pay for this extra chore, but it does increase the chances that when a senior clerk vacancy occurs such regular clerk might progress to that position.

In October or early November 1979, Pam Caron, who was one of the assistant supervisors and who, it is conceded, was a supervisor within the meaning of the Act, went away-whether she left the Company or moved to some other location is of no moment. Faye Morris, the supervisor over all these people, recommended that Jean Jackson, then a senior clerk, be made assistant supervisor. Jackson was in fact promoted to the supervisory position on November 16, 1979. With this Jackson recom

mended to Morris that Concetta Warren, who had been the backup clerk, be advanced to the position of senior clerk in her place. Warren was promoted on January 1, 1980. In this group of eight or so clerks, a number were openly active on behalf of the IBEW; just how many the record does not show. But three definitely wore IBEW buttons and were outspoken; these were Warren and two regular clerks—Tanya New and Arnetta Galvin. The Respondent concedes the fact management knew of such activities by all three employees.

Warren testified that, when Jackson told her of Jackson's own promotion, Jackson also told her that Ashe, the district manager, had said that because of Warren's IBEW activities, including wearing an IBÉW button, he, Ashe, “would not allow any promotion (of Warren) to Senior Clerk.” Warren continued that Jackson then told her “as a friend that it would be a good idea if I stopped talking, stopped being so outspoken for the union and stopped wearing my button, if I wanted [the] promotion.” At this point Warren became "angry and disappointed,” and therefore removed the button and "did stop talking about it, so outwardly anyway." She was then made senior clerk, after which she again started wearing the button as she has done continuously since. Jackson did not testify, but the General Counsel stated on the record there is no allegation, or contention, that anything Jackson said or did that day violated the statute.

With Warren's becoming senior clerk, two girls wished to do the backup work to help her in her new position-New and Galvin. Both had been wearing IBEW buttons and continued to wear them. On Jackson's recommendation, Supervisor Morris chose Galvin to do backup work. The complaint alleges that New was denied the backup work because of her IBEW penchant, but the record is very vague both as to when this discriminatory action was taken and as to whether New asked for and was refused the backup work at all. In his brief the General Counsel asserts that it happened "some time between January and March 30." Other than explaining why she thought she was qualified for the job, New testified that sometime in March during an evaluation conference with Assistant Supervisor Jackson, after Galvin had long been doing the backup work, she, New, asked Jackson why New had had not been chosen to do the work instead. When Jackson started to reply that Galvin was more qualified, New interrupted with, “[I told her] not to tell me that Arnetta was a better employee than I was, because I didn't want to hear it.” Jackson also said that day, still according to New's uncontradicted testimony, that an added reason was that “they ... they didn't think it was a good idea that [New) work too closely with Cetta Warren . . . and because of [New's] IBEW activities.” New testified that she “laughed” and let it go.

I am unable to conclude on this record either that New was in fact denied a request for advancement to the backup position or that the Respondent chose Galvin to do the work with an eye towards discouraging IBEW activities. To start with, there is nothing to show that New even asked for the position. Warren became senior Q. . . . did anyone on behalf of the company ever say anything after that, that would indicate some other purpose in moving you away from there?

clerk in December, so New knew all along someone else was doing the backup work. It was only in late March, when, after reviewing New's evaluation, Jackson asked New did she have any questions, that New asked why Galvin had been chosen as backup clerk. Moreover, whatever Jackson may have said then about wanting to reduce friction among employees at such time, when an employer chooses between two equally active unioneers how can it be said that it illegally discriminated against one of them to discourage the activities both of them were carrying on?

Jackson was a supervisor in fact in March, and she should not have said IBEW activities were a factor in her managerial decision. I find that through her statement the Respondent violated Section 8(a)(1) of the Act. Beyond that I make no finding of illegality in anything the Respondent did with respect to employee New.

Conceding that for his belated allegation as to this employee “there is little direct evidence of discriminatory motive,” the General Counsel relies entirely upon her testimony that, after removing her from the front desk, Chandler told her not to discuss the Union during breaktime. I have already credited Chandler's denial on that score. But there is another matter that significantly touches upon the removal of Atchison from the front lobby position. During the very period—May 1980– there were “rumors” running through the Company's Alexandria location about a male supervisor sexually harassing the female employees. More than once Atchison's name came up during the gossiping that took place. All the witnesses, both rank-and-file employees and company supervisors, were deliberately vague and evasive on the subject, and I find this not only understandable but also commendable. Clearly, management was trying to tone it down, to quiet the rumors, and to put an end to the complaints that were being voiced by this employee or that. At a social gathering on or about May 13 Atchison passed these rumors on to Waldo O'Hara, a safety supervisor, with at least reported chapter and verse, as her prehearing affidavit records. This got back to Chandler that same day, who then told Atchison “that the matter was being looked into and that if she would please still keep it confidential.” Apparently, Atchison kept talking, and on May 19 Chandler spoke to her as follows:

The story about this employee very much parallels the one about Tanya New, but it also is entangled with a very relevant contemporaneous situation which cannot be ignored. In Alexandria there is a customer contact department where a number of employees perform telephone switchboard work in separate cubicles. They receive calls from customers which require different kinds of attention, and communicate by telephone and radio with outside employees who look after the complaints. The amount of time each day, to the minute, that they are actually hooked into the communications system is recorded; it is called the employee's man-time. Outside the area of this cubicle, in a lobby where the public comes, sits a receptionist, who also operates the telephone switchboard. All, including the receptionist, are paid at the the same rate.

Atchison, a regular telephone switchboard employee, sometimes used to pinch-hit for the receptionist when she was on her breaks, out to lunch, or off from work for a while. She liked to do that. On May 18 the supervisor over her group, Teresa Chandler, told Atchison that starting on May 19 she would work at the receptionist's desk as a substitute for the regular receptionist, who was going on a 5-day vacation. Atchison worked there on May 19 and 20, but towards the end of the second day Chandler told her she would no longer do that but had to return to her ordinary duties. At the hearing the General Counsel contended that Chandler removed Atchison from the lobby desk in order to curb her pro-IBEW activities, and that therefore the Company must be ordered from now on to use her "occasionally” on switchboard "along with other backup employees.” But the complaint contains no allegation of any wrongdoing by the Respondent as to this employee.

Atchison was active on behalf of the IBEW and wore a union button, and, of course, the Company knew it. Her testimony was that when removing her from the switchboard that day the supervisor told her it was because “my man-time on the other telephone was too low.” Chandler then added, still according to Atchison, “it (the removal) had nothing to do with my union activities.” Atchison was wearing an IBEW button that day. Atchison also testified:

1. . . told her that I was disappointed that she had taken the matter outside of the Mark Center office, that we were going to handle it there. And I asked her why she had done so. And she just felt that management was not going to take care of it through the proper channels.

Chandler's testimony continued that the next day, May 20, she met with a number of other supervisors on the harassment problem. She added that she was already considering removing Atchison from the switchboard because of her relatively low man-time (a fact conceded on the record by Atchison), and she continued:

[W]e also had a monitoring device on the switchboard that would enable her to perhaps listen in on conversations or make other conversations, make other outcalls, she would have that ability also. And we knew that she was responsible for taking the matter of the harassment problem outside of the Mark Center office ... It was decided that we would take her off the switchboard.

All things considered, I do not think the probative evidence suffices to prove any unfair labor practice with respect to Atchison.

Page 13

have taken place even in the absence of the employee's protected conduct.

In April 1980 Clements was a technical clerk, an office recordkeeping job. There was an opening for a job called service coordinator trainee, and he applied for it in writing on April 25. His application was acknowledged by Ames, the district manager, and on May 14 he was advised in writing that the job had been given to another applicant. The next day Clements wrote a letter to Ames asking for an explanation, stating he thought himself qualified, and stressing his experience and seniority. He also wrote that he thought there had been a "bias" towards him. On May 21, again in writing, Ames replied, stating that seniority was only a factor, that the position had been filled by the best qualified of the applicants, and that this was a decision for management to make. Clements then filed a grievance through the UEA; he lost at the first and/or second step, and an uncontradicted statement on the record asserts the grievance is still pending

Clements was among the pro-IBEW activists. He personally solicited signatures to some union cards and distributed others for circulation. In the end he funneled about 50 such cards to the IBEW. There is no question as to whether the Company knew he was involved in this activity. As to management's reason for not choosing this employee over another applicant for the trainee job—the question which goes to the heart of the complaint allegation as to Clements—there is no direct evidence at all. And this the General Counsel virtually concedes, as on this record he must. It is nevertheless contended that the Respondent violated Section 8(a)(3) in not selecting Clements for the trainee job.

I think both the General Counsel and the Respondent strain the meaning of Board law in this case. In its answer the Respondent formally ask for dismissal of the entire complaint on the ground it constitutes “interference with Vepco's right to operate its business.” This is another way of saying that the law-whatever it bedoes not apply to this particular Company. Of course, the law may not interfere with an employer's business; provided, however, that the employer does not so operate its business—and deal with its employees—in such a way as to do violence to congressional prohibition. The Board, or any enforcement agency, is only concerned with conduct which contravenes statutory regulations. If in fact this Respondent denied Clements this particular promotion for the very purpose of putting a stop to his chosen union activity, it improperly interfered with his personal rights, not the other way around.

The General Counsel, on the other hand, misconceives the purport, and holding, of the now much discussed recent decision of the Board in Wright Line. 1 In his brief-arguing particularly with respect to Clements—he states the following as Board law established in the Wright Line decision:

Once it has been established that a known union activist has been the object of some adverse personnel action at the hands of the Employer, the Employer incurs a burden of showing the same action would

In plain English this says that once the General Counsel has proved that an employee favors the union, his employer knows it and he is then fired or refused a job-or denied a promotion-he, the General Counsel, can rest, and, unless the employer then comes forth with convincing proof that it was not motivated by union animus in whatever it did, a presumption arises that the employer did intend to violate Section 8(a)(3) of the Act. Another way of putting this is that, whenever an employer discriminates against any known unioneer, you take it for granted he committed an unfair labor practice. This idea or guilt by presumption was born long ago in Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883 (1957), and died an early death. There the union had the power to refer people for hiring, and it was held that from the sole fact it was a union the “inference . . . is inescapable” that the union did so with “an eye towards winning compliance with a membership obligation.” Id. at 896. Later, in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667 (1961), the Supreme Court rejected that idea, and shifted the burden of proving illegal motive in anything a respondent does back to the General Counsel.

The General Counsel's misstatement of Board law may have resulted from a blurring of two other concepts—an employer's preference for no union, or for one union instead of another, as against what has been spoken of as an employer's union animus. Evidence about an employer's opinion concerning the value of one union as against another, or even about any union at all, is one thing. The statute permits everybody-employer or employee—to have their own ideas or preferences. In contrast, proof of animus means positive evidence showing an intent, or determination, to take affirmative steps, however coercive or intimidating, to force upon the employees acceptance of the employer's view. At what point does expression of opinion end and proof of animus begin? It is proof of this element-union animus—that is very vague, if present at all, in the case at bar. I read the precedents as still holding that the General Counsel must prove a prima facie case in support of any 8(a)(3) allegation before an unfair labor practice can be found. In Wright Line other language was used, but it means the same thing: Was there a "causal relationship” between Clements' union activity and the fact he was not chosen for that particular job?

On or about the first of November 1979, shortly after the IBEW movement started, Donald Young, a building maintenance supervisor, asked Clements “what was going on with this card drive,” and added that the employee did not have to answer if he did not care to do so. Clements chose to talk and said that “having these people sign these cards would benefit my co-workers and myself.” On or about November 6, another supervisor, Robert Ingram, told Clements that at a supervisors' meeting Young had mentioned the fact Clements was involved with the IBEW, and that Ames, the district manager, was present. On thinking it over, Clements decided

1 Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980).

Page 14

Law Enforcement & Security Officers, Local 40B

(South Jersey Detective Agency) and Jon M. Richards. Case 4-CB-4020

BY CHAIRMAN VAN DE WATER AND

MEMBERS FANNING AND HUNTER On August 4, 1981, Administrative Law Judge Hubert E. Lott issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.

The facts are not in dispute. Charging Party Richards joined Respondent Union shortly after he commenced employment with South Jersey Detective Agency, the Employer herein, in November 1979. Respondent and South Jersey had been parties to a collective-bargaining agreement since August 15, 1979. When Richards joined Respondent, he did not receive copies of its contract with South Jersey or the health and welfare plan under which he was covered. When he asked South Jersey for the agreements, it referred him to Respondent. In December 1979, and again in January and March 1980, Richards asked Respondent Business Agent LaMania for copies of the documents. Each time, LaMania told him that he would receive them. He never did. Richards testified that he wanted to see the collective bargaining agreement to find out if he were entitled to certain overtime pay and he wanted to see the health and welfare plan because he had incurred certain medical expenses and wanted to see if he should be reimbursed for them. Upon LaMania's instruction, Richards sent his medical bills to LaMania. He received reimbursement for some of these expenses but only after he had filed the charge in the instant case. He never received payment for the overtime or for other medical costs he had incurred and he did not know whether he was entitled to such payments.

While setting out the above facts, the Administrative Law Judge did not decide whether Respondent's failure to make available to Richards copies of the documents he had requested violated Section 8(b)(1)(A) of the Act. He found, instead,

that the Labor-Management Reporting and Disclosure Act (LMRDA) at Title I, Section 104, and Title II, Section 210,1 established an “adequate remedy" through the Secretary of Labor for Respondent's conduct. For this reason, the Administrative Law Judge recommended dismissal of the complaint. We cannot agree with the Administrative Law Judge that the LMRDA establishes an exclusive remedy for Respondent's failure to honor unit employee Richards' requests for copies of the collective-bargaining agreement and health and welfare plan affecting him. Moreover, we find that, by failing and refusing to make available these documents to Charging Party Richards, Respondent violated Section 8(b)(1)(A) of the Act.

As the Administrative Law Judge noted, the LMRDA does impose a duty on labor organizations to provide copies of collective-bargaining agreements to employees who are directly affected by such agreements, and who request such copies.? The LMRDA further empowers the Secretary of Labor to bring actions to enforce this provision of the LMRDA.3 However, these provisions of the LMRDA do not supplant the rights and remedies provided by other Federal laws, and the very terms of the LMRDA SO indicate. Thus, LMRDA,4 Title I, Section 103, provides that:

Nothing in this title [i.e., Title I, 29 U.S.C. 411– 415) shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and by-laws of

any labor organization. [Emphasis supplied.] And, further, we note that Congress included in the LMRDA, at Section 603,5 an admonition which reaches virtually all of the LMRDA and which explicitly preserves a party's rights under the National Labor Relations Act. That provision states:

603 (a) Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization, or of any trust in which a labor organization is interested, under any other Federal law or under the laws of any State, and, except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled

CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.

3. By failing and refusing to make available its collective-bargaining agreement with South Jersey Detective Agency and its health and welfare plan under which he was covered to Charging Party Jon Richards, after he duly requested such documents, Respondent violated Section 8(b)(1)(A) of the Act.

4. The foregoing unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act.

under such other Federal law or law of any State.

(b) Nothing contained in titles I, II, III, IV, V, or VI of this Act shall be construed to supersede or impair or otherwise affect the provisions of the Railway Labor Act, as amended, or any of the obligations, rights, benefits, privileges or immunities of any carrier, employee, organization, representative, or person subject thereto; nor shall anything contained in said titles (except section 505) of this Act be construed to confer any rights, privileges, immunities, or defenses upon employers, or to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended. (Em

phasis supplied.]6 These provisions of the LMRDA, which the Administrative Law Judge failed to note, clearly establish that the LMRDA does not preclude our consideration of the instant alleged violation of the National Labor Relations Act. We now proceed to such a consideration.

The Administrative Law Judge accurately observed that, because of a union's unique position as the exclusive bargaining agent of the employees it represents, it owes these employees a fiduciary duty to deal fairly with them.? Employees must rely on their union to represent them fairly in all matters covered by the collective-bargaining agreement, which controls the terms and conditions of their employment. However, when a union denies the employees it represents the opportunity to examine its agreement with their employer, it severely limits the employees' ability to determine whether they have been afforded the fair representation that is their due. In the instant case, Respondent's failure to make available to Charging Party Richards copies of its collective bargaining agreement and its health and welfare plan8 impeded his ability to understand his rights under those documents and hampered his ability to determine the quality of his representation under them. Accordingly, we find that Respondent's conduct fell short of fulfilling its fiduciary duty to deal fairly with the employees it represents and that by such conduct Respondent violated Section 8(b)(1)(A) of the Act.

Having found that Respondent has engaged in an unfair labor practice affecting commerce, we shall order that Respondent cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. The affirmative aspect of the Order shall require Respondent to make available to Charging Party Richards copies of the collective-bargaining agreement and health and welfare plan he requested. In addition, Respondent shall be required to post an appropriate notice.

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Law Enforcement & Security Officers, Local 40B, Ventnor, New Jersey, its officers, agents, and representatives, shall:

1. Cease and desist from:

(a) Failing and refusing to make available, upon request, copies of its collective bargaining agreement and health and welfare plan to unit member employees.

(b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act:

(a) Make available to Charging Party Richards its collective-bargaining agreement and its health and welfare plan with his employer.

(b) Post at its business office copies of the attached notice marked “Appendix."9 Copies of said

9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading “Posted by

Continued

notice, on forms provided by the Regional Director for Region 4, after being duly signed by the appropriate representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Deliver to the Board's Regional Director for Region 4 copies of the aforesaid notice for posting by the Employer at each of its locations involved herein, if the Employer desires to post said notices, on bulletin boards customarily used for notices to employees at those locations.

(d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

1980.1 A complaint issued and was served on all parties on July 14. An answer to the complaint from Respondent was received on August 11. An order designating place of hearing was issued and served on the parties on January 21, 1981. The sole issue in this case is whether Respondent violated Section 8(b)(1)(A) of the Act by failing and refusing upon request to furnish Jon Richards with a copy of its collective bargaining agreement with the Employer and its health and welfare plan. Respondent, in its answer, denies the commission of an unfair labor practice.

At the time the complaint issued Respondent was represented by counsel, who filed an answer on August 11. In its answer Respondent admitted service of the charge, jurisdictional facts sufficient to find that the Employer, South Jersey Detective Agency, is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, that Respondent is a labor organization within the meaning of the Act, and that Joseph LaMania is at all times material Respondent's business manager and an agent of Respondent within the meaning of Section 2(13) and Section (8)(b) of the Act. Neither Respondent nor its counsel appeared at the hearing nor did they file a brief in support of their position in this case.

Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by the General Counsel, I make the following:

Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

NOTICE TO MEMBERS AND EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

WE WILL NOT fail and refuse to make available copies of the collective-bargaining agreement and the health and welfare plan we have with their employers to unit member employees who request to see these documents.

WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed under Section 7 of the Act.

WE WILL make available the collective-bargaining agreement and the health and welfare plan we have with South Jersey Detective Agency to unit member Jon Richards who has requested to see such documents.

The Company, South Jersey Detective Agency, has its principal place of business at 125 North Lafayette Avenue, Ventnor, New Jersey, where it is engaged in the business of providing guard services and security officers for its customers. During the past year, the Company, in the course and conduct of its operations, provided services valued in excess of $50,000 to other enterprises within the State of New Jersey, each of which in turn annually purchased and received goods valued in excess of $50,000 directly from points outside the State of New Jersey. Respondent admits, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. THE ALLEGED UNFAIR LABOR PRACTICES

LAW ENFORCEMENT & SECURITY OFFICERS, LOCAL 40B

Since on or about August 15, 1979, Respondent and South Jersey Detective Agency, herein called the Employer, have been parties to a collective-bargaining agreement covering a unit of all security officers at the Employer's facility located in Ventnor, New Jersey. The Charging Party, Jon Richards, had been employed as a security guard by the Employer from November 1, 1979, to approximately March 15. Pursuant to the collectivebargaining agreement, Richards became a member of Respondent on the date of his employment with the Em

HUBERT E. LOTT, Administrative Law Judge: This case came to hearing before me in Atlantic City, New Jersey, on February 17, 1981. The charge was filed by the Charging Party and served on all parties on May 27,

1 All dates are in 1980 unless otherwise stated.

ployer. Dues of approximately $2 per week were deducted from his wages. When Richards became a member of Respondent, he did not receive a copy of the contract or the health and welfare plan. Initially he requested the documents from Colon, the director of the Employer, who referred him to Respondent's business agent, Joseph LaMania. Richards requested the documents from LaMania in approximately December 1979, January, and March. In each instance, LaMania told Richards that the documents would be forthcoming. Richards never received the copy of the contract or the health and welfare plan nor was he ever shown these documents by Respondent or anybody else. Richards testified that the reason he wanted to see the collective-bargaining agreement was to find out whether or not he was entitled to payments above the standard rate when he worked holidays or Saturdays. Richards further stated that he wanted to see the health and welfare plan because he had incurred certain medical expenses and expenses for prescriptions and he wanted to determine whether or not he would be reimbursed for these costs under the plan and to determine the extent to which he was covered for these medical expenditures under the plan. Richards testified that he incurred expenses for prescriptions, doctor visits, and a pair of eyeglasses. When he discussed the matter with LaMania, the business agent told him to send the bill to him. Richards complied with LaMania's instructions and testified that he was not reimbursed for his eyeglasses until after he filed a charge in this case and never received any reimbursement for the other bills he had submitted to LaMania. Richards testified that to this day he does not know whether or not he is covered for those expenditures under the health and welfare plan or the collective-bargaining agreement because he has seen neither. Richards testified that he ceased being a member of the Respondent upon termination of his employment with the Employer in mid-March.

the Act, and a union which would occupy this statutory status must assume the responsibility to act as a genuine representative of all the employees in the bargaining unit citing Miranda Fuel Inc., 140 NLRB 181 (1963). Therefore, the right of the employees to bargain collectively through representatives of their own choosing, guaranteed under Section 7, becomes an empty right if the bargaining agent fails or refuses to fulfill the obligations imposed upon it by the Act and treats an employee, it is bound to represent, unfairly citing Local 3036, New York City Taxi Drivers Union, supra at 427. The General Counsel further argues that the authority vested in Respondent, as an exclusive agent of the employees, leads to employee dependence on the labor organization for not only negotiating his livelihood, but also informing him of his rights and obligations incurred as a result of those negotiations. And that this creates a fiduciary duty that the union deal fairly with employees citing N.L.R.B. v. Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corp.), 320 F.2d 254 (3d Cir. 1963), enfg. 136 NLRB 888 (1962). The General Counsel argues that accordingly Richards wanted a copy of the collective-bargaining agreement to find out whether he was entitled to extra compensation when he worked on Saturdays and holidays and that he wished to have a copy of the health and welfare plan because he was concerned about whether he was covered by any insurance and whether he would be reimbursed for medical expenses incurred. As the exclusive representative of the employer's employees, Respondent had the fiduciary responsibility to provide Richards with the information sought. Respondent's failure to do so according to the General Counsel was a breach of that responsibility and therefore in violation of Section 8(b)(1)(A) of the Act.

Drawing from cases dealing with violations of Section 8(b)(1)(A) of the Act, certain facts become evident. A union has a fiduciary duty to deal fairly with employees because of its unique position as the exclusive bargaining agent for the employees it represents. The employee must rely on the union to represent him in all manners covered by the collective-bargaining agreement. Moreover, the union has the duty to fairly represent the employees covered by a collective-bargaining agreement. When a union acts in an arbitrary, invidious, or unfair manner it violates that duty and the Act. Given these propositions it would be very difficult not to find a violation of the Act when a union refuses to allow an employee an opportunity to inspect the collective bargaining agreement which controls the terms and conditions of his employment. The only way an employee can know whether or not he is being represented fairly, or at all, is by examining the contract which sets forth his rights and duties. Failure to grant that right strikes at the very heart of an employee's Section 7 rights. Since 1959 the law has recognized this basic right of employees through the Labor-Management Reporting and Disclosure Act. Title I, Section 104, of that Act reads:

III. ANALYSIS AND CONCLUSIONS The General Counsel in his brief argues that where a union has requested the termination of an employee for nonpayment of dues the Board has held that the union has a responsibility of informing an employee of his obligations under the collective bargaining agreement before the request may be made citing Local 3036, New York City Taxi Drivers Union, AFL-CIO (En Operating Corp.), 204 NLRB 427 (1973). The counsel for the General Counsel submits that the right to be informed of one's rights and obligations under a collective bargaining agreement and health and welfare plan is a basic right which may be enforced before the employee has to suffer the risk of termination for not fulfilling his obligations.

The General Counsel further argues that the Board has stated that a purpose of the Act is to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce. The Employer has accorded exclusive recognition to the Union for the employees in a bargaining unit, and this recognition has been memorialized in a collective-bargaining agreement. The privilege of acting as an exclusive bargaining representative derives from Section 9 of

It shall be the duty of the secretary or corresponding principal officer of each labor organization, in the case of a local labor organization, to forward a copy of each collective bargaining agreement made occurred or, at the option of the parties, in the United States District Court for the District of Columbia.

by such labor organization with any employer to any employee who requests such a copy and whose rights as such employee are directly affected by such agreement, and in the case of a labor organization other than a local labor organization, to forward a copy of any such agreement to each constituent unit which has members directly affected by such agreement; and such officer shall maintain at the principal office of the labor organization of which he is an officer copies of any such agreement made or received by such labor organization, which copy shall be available for inspection by any member or by any employee whose rights are affected by such agreement. The provisions of Section 210 shall be applicable in the enforcement of this section.

These sections clearly set forth an employee's rights with respect to obtaining a copy of the collective-bargaining agreement and appear to provide an adequate remedy for any employee that wishes to contact the Secretary of Labor or his representatives, who are charged with the duty of enforcing them. For this reason alone, I will dismiss the above complaint.

Section 210 of that Act reads:

Whenever it shall appear that any person has violated or is about to violate any of the provisions of this title, the secretary may bring a civil action for such relief (including injunctions) as may be appropriate. Any such action may be brought in the district court of the United States where the violation

1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.

3. Respondent has not been found to have violated Section 8(b)(1)(A) of the Act because of the reasons stated above.

[Recommended Order for dismissal omitted from publication.]

Page 15

International Alliance of Theatrical Stage Employees

and Moving Picture Machine Operators of the United States and Canada and Metromedia, Inc. and National Association of Broadcast Employees and Technicians, AFL-CIO. Case 31-CD222

radio and television stations is in excess of $500,000.

Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act; it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act; and it will effectuate the policies of the Act to assert jurisdiction herein.

DECISION AND DETERMINATION OF

DISPUTE

II. THE LABOR ORGANIZATIONS INVOLVED

The parties stipulated, and we find, that International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, and National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, are labor organizations within the meaning of Section 2(5) of the Act.

BY MEMBERS JENKINS, ZIMMERMAN, AND

HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Metromedia, Inc., herein called the Employer, alleging that International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, herein called IATSE, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by IATSE rather than to employees represented by National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, herein called NABET.

Pursuant to notice a hearing was held before Hearing Officer Robert H. Lachmund, Jr., on June 30 and July 13, 1981. All parties appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer, IATSE, and NABET filed briefs.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.

Upon the entire record in this case, the Board makes the following findings:

A. Background and Facts of the Dispute The Employer owns and operates television station KTTV in Los Angeles, California. Its operations are divided into several departments, including the news department and the engineering department. The employees in the former department are represented by IATSE. The employees in the latter department are represented by NABET.

The history of this dispute began in 1975 when the Employer purchased and began utilizing for news-gathering work a portable hand-held electronic videotape camera, commonly referred to as the minicam. It assigned all news-gathering work involving the minicam to cameramen represented by IATSE. Prior to the introduction of the minicam, these same employees had performed essentially all news-gathering work for the Employer with film cameras.

After the Employer announced its intention to assign the work of operating the minicam for newsgathering purposes to the IATSE-represented employees, NABET claimed that employees it represented should be assigned the work in question. The NABET employees have traditionally operated the large, studio-type electronic cameras that KTTV used in programming. They usually work in the studio, although occasionally they have been dispatched to various remote locations to cover live such prescheduled events as sporting events or election returns, or to cover live ongoing news stories such as disasters. NABET contended that employees it represented were entitled to the work because of their experience in operating electronic cameras. IATSE, however, asserted that the work should be assigned to employees it represented because of their expertise in news gathering.

I. THE BUSINESS OF THE EMPLOYER

The parties stipulated, and we find, that the Employer is a Delaware corporation engaged in the operation of 6 television stations and 12 radio stations in the States of New York, California, Pennsylvania, Maryland, Michigan, Illinois, Minnesota, Kansas, and Ohio, and in the District of Columbia. The Employer's principal place of business is located in New York, New York. The Employer's annual gross revenues derived from operating said

As a result of IATSE's threat to take economic action against the Employer should the work in question be assigned to NABET, a 10(k) proceeding was initiated by the Employer and a hearing was held in March, April, and May 1976. Because of their special skill as photojournalists, as well as considerations of economy, efficiency, and employer preference, the Board concluded that the work was properly assigned to the IATSE-represented cameramen.

On June 6 and again on November 6, 1978, the Employer assigned certain of its IATSE cameramen to cover election eve news at the headquarters of various political candidates. The cameramen used minicams, which are capable of both videotaping and transmitting live audio and visual signals. On the nights in question, the cameramen performed both live broadcasting and videotaping. The actual live air time amounted to no more than a total of a few minutes. NABET subsequently filed grievances, claiming the work involving the live coverage. A similar grievance was filed by NABET following the election coverage on June 3 and on November 4, 1980. The Employer contended that the work in question was covered by the Board's earlier 10(k) award and filed an unfair labor practice charge against NABET because of its attempt to compel arbitration of the grievances.

The Board dismissed the resulting 8(b)(4)(A) complaint, holding that its previous 10(k) award did not clearly address the allocation of live broadcasting work and therefore the parties were not prohibited from negotiating on the subject.2 Following the Board's decision, IATSE, by letter dated April 24, 1981, threatened economic action against the Employer should it reassign the live election coverage work to employees represented by NABET. That letter gave rise to the present proceeding.

B. The Work in Dispute The work in dispute concerns the operation of portable hand-held electronic cameras for live transmission of election eve coverage.

C. The Contentions of the Parties The Employer assigned the disputed work to cameramen represented by IATSE, claiming that the assignment falls within the Board's prior 10(k) award. The Employer states that in the prior case the Board had before it evidence that the minicam was capable of being used for live as well as taped

coverage, and was aware that NABET-represented employees had been used in the past for live election coverage. It therefore contends that the Board's award was made without limitations or distinctions between the use of the minicam for live or taped news-gathering work. In the alternative, the Employer argues that, even assuming the disputed work was not encompassed within the Board's original award, a review of the relevant factors establishes that live election night coverage was properly assigned to employees represented by IATSE based on considerations of economy, efficiency, and skills involved.

Specifically, the Employer contends that, if the work assignment is changed, it will have to utilize two separate camera crews for election eve coverage: One represented by IATSE for minicam videotaping and the other represented by NABET for minicam live transmission. It argues that, under the existing assignment, IATSE-represented employees can and do perform both functions utilizing the same minicams. As for skills, the Employer points out that the photojournalistic skills of the IATSE cameramen were a critical factor in the Board's previous 10(k) award in favor of those employees. It thus contends that, since the use of the minicam for live broadcasting does not in any way require a different skill than is required of the photojournalist in using the minicam for taping a news story, such skills support its assignment in the instant dispute.

IATSE agrees with the assignment for the same reasons espoused by the Employer.

NABET claims that the assignment to operate the minicam for live election coverage is not the same as an assignment to gather news on videotape, and that the current work dispute was not resolved by the first 10(k) case. It contends that its engineers are entitled to the disputed work, citing its certification, its collective-bargaining agreement with the Employer, and the fact that prior to June 6, 1978, live election eve coverage was performed exclusively by NABET engineers. NABET has moved to quash the notice of hearing in the present case, claiming that there is no evidence of 8(b)(4)(D) activity, and further claiming that the parties have agreed upon a method for the voluntary adjustment of the dispute.

D. Applicability of the Statute Before the Board may proceed with a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dispute.

At the hearing, counsel for NABET moved to quash the notice of hearing, claiming that no jurisdictional dispute exists for the following reasons: (1) there is no evidence of 8(b)(4)(D) activity, as the letter sent to the Employer by IATSE is insufficient to establish that the Employer was threatened or coerced by IATSE; and (2) there is an agreed-upon method for settling the dispute.

As noted above, after the Employer utilized certain of its IATSE cameramen for live election coverage, NABET filed grievances protesting the assignment. Thereafter, NABET filed a complaint in a United States district court for an order to require the Employer to arbitrate the work assignment dispute, and subsequently moved for summary judgment in said court. In response, counsel for IATSE sent a letter to the Employer threatening economic action against the Employer should it reassign the disputed work. The letter stated:

In the event that the assignment is changed on the work involved, specifically the operation of the Minicam on election night from the I.A.T.S.E., then the I.A.T.S.E. will take action including strike and other economic action

against Metromedia. Thereupon, the Employer filed an unfair labor practice charge under Section 8(b)(4)(D) of the Act.

NABET claims that IATSE made no real threat to engage in economic action if the Employer changed its original assignment of the work, as IATSE-represented employees had already been assigned to perform the work. However, the Board has found that an 8(b)(4)(D) charge was supported under similar circumstances, where a union informed an employer that it would take economic action if the employer reassigned the work pursuant to a rival union's claim.3 Based on IATSE's letter and the record as a whole, we find that an object of IATSE's action was to force the Employer to continue to assign the disputed work to individuals represented by IATSE. We are satisfied that there is reasonable cause to believe that IATSE has violated Section 8(b)(4)(D).

NABET further contends that a tripartite arbitration proceeding, which it anticipates the United States district court will order, constitutes a voluntary method of adjustment binding on all the parties. The proceeding to compel arbitration is currently pending in the United States district court.

All three parties are litigants in said proceedng. NABET's contention is based upon its assumption that the court will issue an order for tripartite arbitration. Even if the court had already ordered a tripartite arbitration proceeding, we are of the opinion, as the Board stated in its earlier decision,4 that court-ordered arbitration is less than a voluntary method of settling the dispute in light of IATSE's opposition to that forum. Therefore, we find no merit in this contention. 5

It is clear from the foregoing, and we find, tha at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all the parties of the dispute were bound.

After considering the contentions of the parties and the evidence with respect thereto, we find that the Board is not precluded from making a determination in this proceeding, tha: there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute as described above is properly before the Board for determination under Section 10(k) of the Act.

E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 6 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.?

The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining contracts and

certifications In the prior 10(k) case, the Board held that the certifications of both Unions were of little value in determining the merits of the dispute since both certifications predated the use of the minicam. 8 This holding is equally applicable to the instant work dispute.

Both Unions presently have collective-bargaining agreements with the Employer. Section 1.07 of IATSE's contract provides: “The jurisdiction of 4. Job impact The current assignment of the disputed work to IATSE employees results in the loss of some work to employees represented by NABET. However, this loss is de minimis as it represents no more than a few hours on one to two evenings every other

the employees covered hereunder shall be all news and news documentary work produced by and for KTTV News Department. . . ." The agreement is in effect from 1979 to 1982, and is entitled “KTTV News Department Agreement.”

Section 6.02 of NABET's contract states that its trade jurisdiction includes the “operation . . . of (i) technical and engineering operational equipment for broadcasting. ...” NABET contends that the minicam when used for live broadcasting is equipment within that language. However, even assuming that this contention is correct, any such agreement between NABET and the Employer would be inconsistent with the agreement with IATSE, which provides that IATSE's jurisdiction “shall be all news and news documentary work. ..."

We are of the opinion that the respective contracts for both IATSE and NABET are, at best, conflicting, and we find that they are of little value in determining this dispute.

2. Area, craft, and industry practice In its prior 10(k) decision the Board stated that area, craft, and industry practice was of little help in assigning the disputed work, since there was a mixed practice in the industry. The Board found that the major networks assign the operation of the minicam to NABET engineers, but that this practice is offset by the practice of nine independent stations on the west coast, where IATSE cameramen operate the minicam.9 In the instant proceeding there was no new testimony offered on this factor, and therefore we find it of little help in assigning the disputed work.

3. Employer practice Prior to June 6, 1978, live election eve coverage was performed by NABET-represented employees utilizing large fix mount cameras and, in some instances, large hand-held cameras which were the precursor of the electronic minicam. Prior to June 6, 1978, IATSE-represented employees were only involved in videotaping of election eve events and did not perform live transmission functions.

Thus, while the Employer's past practice was to assign live election eve coverage to NABET-represented employees, such practice did not include operation of the minicam, which is the equipment involved in this dispute. Accordingly, we find that the Employer's past practice is of little help in determining this dispute.

If NABET engineers were assigned the disputed work, there would be no loss of work for the IATSE cameramen. This is because said cameramen are entitled to perform the minicam videotaping on election eve.

Thus, we find that this factor does not favor an award of the disputed work to either group of employees.

5. Economy and efficiency Under the current work assignment, IATSE-represented employees operate the minicam for both videotaping and live transmission of election eve coverage. The Board's prior 10(k) award established that IATSE-represented employees are entitled to perform the former. 11 In light of this, it is clear that if the work asignment is changed the Employer will have to utilize two separate camera crews for election eve coverage: An IATSE crew for minicam videotaping, and a NABET crew for minicam live transmission. In that the actual live air time amounts to no more than a total of a few minutes, the inefficiency of having a separate crew for live coverage is self-evident. We therefore conclude that the factors of economy and efficiency favor an award of the disputed work to employees represented by IATSE.

The special photojournalistic skills of the IATSE news cameramen was a critical factor in the Board's original determination. 12 The Board stressed that the fast-breaking news events for which the Employer planned to utilize the minicam required that the cameraman operating the minicam possess such skills. In the instant case, the record establishes that photojournalistic skills are

9 Metromedia I, supra at 789.

of equal importance regardless of whether the minicam is being used for taping or live broadcasting. As such, we conclude that the skills possessed by employees represented by IATSE favor an award of the work in dispute to them.

7. Employer preference After consideration of all the relevant factors, the Employer assigned the work of operating the minicam for live transmission of election coverage to employees represented by IATSE. The record indicates that the Employer is satisfied with the results of the assignment and maintains a preference for an assignment of the work to IATSE personnel.

assignment of the work to employees represented by IATSE is warranted. 13

In making this determination, we are assigning the disputed work to employees employed by the Employer and represented by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding.

DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute:

Employees of Metromedia, Inc., Los Angeles, California, who are currently represented by International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada are entitled to perform the work of operating portable hand-held electronic cameras for live transmission of election eve coverage.

Conclusion Upon the record as a whole, and after full consideration of all the relevant factors involved, we conclude that employees represented by IATSE are entitled to the disputed work, and we shall determine the dispute in their favor. Where skills, economy, and efficiency favor an assignment of the work to IATSE-represented employees, and where the Employer is satisfied with and continues to prefer the assignment, we must conclude that an

13 In view of this conclusion, we find it unnecessary to decide whether or not the instant work in dispute falls within the Board's prior 10(k) award in Metromedia I.

Page 16

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

On September 29, 1981, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief to the Administrative Law Judge's Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Gentile Pontiac, Vineland, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the at

After a hearing at which all parties were represented by their attorneys and were given the opportunity to present evidence in support of their respective positions, it has been found that we violated the National Labor Relations Act in certain ways and we have been ordered to post this notice and to carry out its terms.

The National Labor Relations Act, as amend-
ed, gives all employees the following rights:

To engage in self-organization
To form, join, or help a union

To bargain collectively through a representative of your own choice

To engage in activities together for the purpose of collective bargaining or to act together in order to seek improvement in your wages, hours, working conditions, and other terms and conditions of employment

To refrain from any and all of these activities. Accordingly, we give you these assurances:

WE WILL NOT create the impression of surveillance by telling employees that we heard rumors that they were forming a labor organization and had signed cards, and that we knew the identity of the union organizer.

WE WILL NOT induce employees to abandon a labor organization of their choosing, threaten employees with unspecified reprisals because of their activities on behalf of a labor organization, or interrogate employees concerning their union activities.

WE WILL NOT threaten employees with demotion should a union be selected as their collective-bargaining representative,

discharge or otherwise discriminate against employees with regard to their hire or tenure of employment or any term or condition of employment for engaging in activities on behalf of a labor organization.

WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act.

facts, I find, as admitted in the answer, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

II. THE LABOR ORGANIZATION INVOLVED

The Union is a labor organization within the meaning of Section 2(5) of the Act.

III. ALLEGED UNFAIR LABOR PRACTICES

WE WILL, on request, bargain collectively with Amalgamated Local Union 355 as the exclusive representative of our employees in the bargaining unit described below and, if an understanding is reached, we will embody such understanding in a signed agreement. The appropriate unit is:

All mechanics, mechanic trainees and lot boys employed by Gentile Pontiac at its Vineland, New Jersey facility but excluding managerial employees and guards and supervisors as defined in the Act.

WE WILL reinstate Charles Dayton to his former or a substantially equivalent position of employment without prejudice to this seniority or any other rights or privileges, and will make him whole for any losses suffered as a result of our discrimination against him, plus interest.

As part of its automobile dealership business, Respondent maintains a service department which is staffed by several mechanics, a lot boy, a parts counterman, and a service manager.

In mid-July, Respondent's then sole mechanic, Scott Wheeler, took a medical leave of absence. Shortly thereafter, Respondent's service manager, William Tasnaddy, contacted Charles Dayton, an experienced mechanic he had known for several years, and urged him to accept a job. Dayton, who had been working at a Texaco station as a class A mechanic for the past 3 years, initially was reluctant to take the job. Tasnaddy assured Dayton that, although Wheeler would be returning at some unspecified date, the job was permanent since there was more than enough work to keep several mechanics occupied, and offered him 57 cents an hour more than he currently was receiving. Approximately a week later, Tasnaddy called Dayton again and urged him to accept the job immediately. After Dayton filled out an employment application, Respondent's president and owner, Ronald Gentile, checked his reference with the Texaco station. Although he learned that Dayton was frequently late to work, Tasnaddy nevertheless made Dayton a firm job offer and pressed him to start working as soon as possible. A few days later, toward the end of July, Dayton began working for Respondent as a class A mechanic.

ARLINE Pacht, Administrative Law Judge: Upon charges filed against Gentile Pontiac (hereinafter called the Respondent), by Amalgamated Local Union 355 (hereinafter called the Union), on November 28, 1981, a complaint issued alleging that the Respondent violated Section 8(a)(1) of the National Labor Relations Act (hereinafter called the Act), by interrogating employees about their union activities, threatening employees with demotion and other reprisals, creating the impression of surveillance, and inducing employees to abandon the Union by promoting a different labor organization. The complaint further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Charles Dayton and that, by its unlawful conduct, prevented the holding of a fair election. The Respondent filed a timely answer denying the allegations in the complaint.

Thereafter, on August 10 and 11, 1981, a hearing was held before me in Philadelphia, Pennsylvania, at which time all parties were given an opportunity to examine and cross-examine witnesses.

Based on the entire record in this case, including the testimony of the witnesses and their demeanor, I make the following:

A. The Employees Organize On September 24, Leonard Sofield, the Union's business agent, approached Dayton outside Respondent's facility, asked if he were interested in joining the Local, and suggested that Dayton contact him if he wished to pursue the matter.

Acting on this overture, Dayton met with Sofield at noon on September 26. After discussing the advantages of union membership and the purpose of the authorization card, Dayton signed a card and took several blank cards with him." On returning to work, Dayton asked Robert Cassabone, a fellow mechanic Respondent hired in late August because of an increased workload, if he were interested in joining the Union. Cassabone signed an authorization card and returned it to Dayton who subsequently delivered it to Sofield.

On October 9, Sofield met with Dayton, Cassabone, and a third employee, Nick Pennington, who also signed an authorization card at this time. Pennington was hired in late September 1980, as a lot or detail person with responsibility for minor mechanical adjustments, washing,

I. THE BUSINESS OF RESPONDENT Respondent, a New Jersey corporation, operates a retail automobile dealership in Vineland, New Jersey. During the past year, Respondent purchased and received at its Vineland facility products valued in excess of $50,000 directly from points located outside New Jersey. During this same period, Respondent received gross revenues in excess of $500,000. Upon the foregoing

waxing, and otherwise preparing the cars prior to delivery.

These three employees worked under similar conditions of employment: they were hourly paid, worked a basic 40-hour week, punched a timeclock, and wore identical uniforms. They reported directly to Tasnaddy who gave them their daily assignments, distributed overtime, and reviewed their performance. If they were to be late or absent, they contacted Tasnaddy in advance. Dayton and Cassabone worked entirely in the service area of the facility, while Pennington's duties required him to shift between the lot and the service area. In contrast to these three men, the parts manager and service manager were salaried and received a percentage of the gross profits from sales and repairs, respectively, had use of company cars, wore white shirts which bore labels identifying them by title, and worked in separate areas within the service area. Tasnaddy was primarily occupied with taking customers' repair orders, diagnosing their problems, and handling their complaints but spent approximately 15 or 20 minutes a day reviewing the mechanics' work.2 The parts manager distributed materials to the workers on request and also sold parts to the public, with authority to set and discount prices. Occasionally, he substituted for Tasnaddy during his absence.

C. The Employer's Response to Unionization The parties offered somewhat divergent accounts of Respondent's reaction to their organizational activity. For example, Dayton testified that on October 3 Tasnaddy summoned him and Cassabone to his office at the end of the workday and told them he heard a rumor that they had joined a union. The mechanics admitted only that they had been approached. Tasnaddy then stated that a union would be bad for them and that they should forget about it for a union would put an end to Respondent's past practices. He added that if they were interested in a union he could introduce them to a union representative whom he knew and produced the representative's business card.

Tasnaddy contended that his purpose in meeting with the mechanics was to reprove them for their tardiness and the quality of their work. He admitted telling the mechanics that he heard they were trying to start a union and offering them a business card from a union acquaintance, but denied making the antiunion comments attributed to him.

Dayton further related that on October 9 or 10, when Tasnaddy again adverted to rumors of a union, he simply shrugged. On or about the same date, Gentile approached him and said he hoped Dayton had put aside talk about a union. He added that a union shop would not be good for him and it would be in his best interests to forget about it. Gentile, on the other hand, recalled that Dayton raised the topic of a union and said he did not care which union represented him. He, too, denied making any other negative comments about unionization. Dayton stated that, immediately after his encounter with Gentile, Tasnaddy approached him, reasserted that the

Union would not be to the employees' advantage, that past practices would cease, and added that unions make promises which they do not keep.

Dayton further testified that on October 13 Tasnaddy contended that a reliable source informed him the employees had signed union authorization cards and accused Dayton of being the principal organizer. Dayton, and Pennington, who had joined them, admitted having signed cards in response to Tasnaddy's inquiry, but Dayton denied knowing whether Cassabone also signed a card. Tasnaddy warned Dayton that, if the Union succeeded, he would no longer be designated a class A mechanic. Tasnaddy did not at all dispute Dayton's recollection of this exchange except to say that, if the Union prevailed, everyone probably would be reclassified.

On the day after this encounter, Dayton was discharged. As Dayton described it, Tasnaddy told him at the end of the workday on October 14 that he had been warned to stop talking about the Union and, since he had chosen not to do so, Gentile ordered him fired. When Dayton asked if he could finish the workweek until payday on Friday, Tasnaddy conferred with Gentile and then informed Dayton that he had to leave immediately. He also told Dayton he could attribute the dismissal to a lack of work in order to be eligible for unemployment compensation. Tasnaddy offered a different version, testifying simply that he advised Dayton that Wheeler was returning and there was insufficient work for three mechanics.

Both Gentile and Tasnaddy explained that with Wheeler due to return on October 21, and with no need for three mechanics, Dayton was selected for discharge because his skill, productivity, and attendance record made him a less desirable employee than Cassabone. Specifically, Tasnaddy maintained that Dayton was incapable of performing electrical repairs, or working on diesel engines and automatic transmissions. Moreover, he was responsible for several “comebacks,” that is, work returned by dissatisfied customers. Respondent also introduced documents which showed that Dayton worked fewer flat rate hours 3 than did Cassabone and was late

15 occasions in September whereas Cassabone clocked in late on 6 days in the same month. A closer inspection of the mechanics' tardiness records reveals, however, that, for the most part, they were no more than 2 or 3 minutes late.

Dayton took strong exception to Respondent's criticism, pointing out that he was trained and certified to repair automatic transmissions but that Respondent had never assigned him to such work. He further asserted he had only one comeback and that an examination of Respondent's repair orders would bear him out. He admitted to arriving late to work occasionally, but explained that he had warned Tasnaddy before taking the job that he served as a volunteer fireman and that his wife contacted Tasnaddy on the few occasions when his firefighting duties prevented him from arriving on time.

C. Events Subsequent to the Discharge On the day after Dayton's discharge, Pennington spoke to Gentile about his fear of losing his job. According to Pennington, Gentile replied that anyone who signed a card would be fired. Gentile claimed, however, that he assured Pennington that there was no reason to be apprehensive so long as he did his work. That same day, October 15, Sofield attempted to meet with Gentile to seek Dayton's reinstatement and request recognition. After waiting for Gentile for several hours, Sofield filed the instant charges with the Board.

Some months after Dayton's discharge, the other two employees who had signed cards left Respondent's employ: Pennington January 1981, and Cassabone in March. In April, Respondent hired two new mechanics in addition to Wheeler. 4

IV. DISCUSSIONS AND CONCLUSIONS

A. Dayton's Dismissal Was Unlawful The General Counsel contends, and Respondent denies, that Dayton was discharged because of his role in enlisting the support of his coworkers for the Union. In proving his case, the General Counsel is required to establish that Respondent's asserted reasons for Dayton's termination were pretextual, designed to obscure its real discriminatory motivation. I find abundant evidence to support the General Counsel's position.

Respondents rarely reveal their states of mind by openly declaring that a discharge was for discriminatory reasons. This is the rare case, however, for here, I find that Tasnaddy did admit to Dayton that he was being fired for his union activity.5 Even were I to discount Tasnaddy's confession, there is more than ample proof in the record establishing the illegality of Dayton's discharge.

By Tasnaddy's admission, it is uncontroverted that Respondent was aware of Dayton's leadership role in organizing the service employees. There also can be little doubt, based on the findings of the 8(a)(1) violations above, that Respondent was opposed to such activity. Of course, an employer is free to dislike unions and to express such views to employees without violating the Act. But Tasnaddy's references to an abolition of past practices and to a demotion for Dayton were not mere expressions of opinion; they were unlawful threats.

The abruptness and timing of the discharge provides additional grounds to view Respondent's stated motivation skeptically. See Hurst Performance, Inc., 242 NLRB 121 (1979). Respondent insisted that Dayton was terminated to make way for a mechanic returning from dis

ability leave. Gentile knew on October 7 that Wheeler would return on October 21, yet offered no explanation for Dayton's summary termination without notice on October 14, a week before Wheeler's scheduled return. Nor was any reason given as to why Dayton could not complete the workweek.

The Respondent maintained that Dayton was selected for discharge because there was insufficient work for three mechanics, and, since he was less productive, less skilled, and had a worse attendance record than Cassabone, he was the more dispensable employee. The flaws in Respondent's asserted reasons offer further proof that these reasons were conveniently invoked to conceal its antiunion purpose.

It strains credulity to accept Respondent's contention that Dayton was incompetent in certain mechanical areas. He commenced working as a mechanic in 1956 and performed at the grade A level for 3 years prior to taking the job offered by Respondent. Gentile checked Dayton's reference with his previous employer and reported no negative comments about his job performance there. Moreover, Tasnaddy never saw fit to communicate to Dayton any dissatisfaction with his performance. Equally unconvincing was Respondent's attempt to characterize Dayton as less productive than Cassabone based on the number of flat-rate hours each worked, since the total number of such hours accrued by an employee depended on the type of work to which he was assigned by Gentile or Tasnaddy. If the number of flat-rate hours earned by Dayton was a matter of genuine concern, Respondent had it within its control to shift him to other work.

Respondent asserted during the course of the hearing that it could produce business records which would show that there was insufficient work to occupy three mechanics, but failed to do so. Accordingly, an inference is warranted that such records would not substantiate Respondent's claim. See Pacific Coast International Meat Co., 248 NLRB 1376, 1382 (1980); Fred Branch d/b/a B & L Plumbing, 243 NLRB 1016, 1022 (1979).

The record establishes that Dayton was tardy more frequently than was Cassabone. However, the attendance chart introduced by Respondent reveals that very few instances of late arrival exceeded 2 or 3 minutes. The Respondent never disciplined Dayton for his tardiness or warned him that continued infractions might be grounds for discharge. Given the de minimis nature of the times involved and Respondent's failure to treat this as a problem prior to Dayton's involvement in union activity, it is reasonable to infer that Respondent's reason for Respondent's harsh and sudden action was pretextual.

In sum, Dayton was not discharged for the reasons Respondent asserted. Rather, Respondent fired him on October 14 to purge itself of the person whom it held liable for bringing a union into its midst. Such motivations are proscribed by Section 8(a)(1) and (3) of the Act.

B. Independent 8(a)(1) Violations The General Counsel contends that Respondent was responsible for the commission of numerous unfair labor tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.

Here, it is significant that it was Gentile who initiated the contact with Dayton and first mentioned the Union. 6 Since there had been no previous discussions about this matter between the two, and, since Tasnaddy only recently had warned Dayton about possible adverse consequences of continued union activity, it was hardly necessary for the Company's president to be more precise. Given this context, Gentile's remarks must be viewed as little more than a thinly veiled threat violative of Section 8(a)(1).

practices based on its agents' conduct at a series of encounters in early October. I agree with some but not all of the General Counsel's contentions.

The General Counsel submits that on three dates, October 3, 9 or 10, and 13, Tasnaddy told Dayton he heard rumors that the employees were interested in forming a union, thereby creating the impression of surveillance. I do not concur that this conclusion is warranted with respect to Tasnaddy's first such reference on October 3 for the information apparently came to him fortuitously. However, I reach a different conclusion with regard to Tasnaddy's repeated references to such rumors a week or so later. In particular when on October 13, he referred to information from a "reliable source" and added that he knew the employees signed cards and that Dayton was the principal union organizer, Tasnaddy's knowledge no longer seemed a matter of local gossip, but, rather, the product of purposeful scrutiny of the employees' organizational efforts. Such observations, especially when made in the context of other unlawful statements, and when the employees had been circumspect about their union involvement, tend to inhibit employees' organizational activity and is, therefore, proscribed by Section 8(a)(1). See GE's Trucking, Inc., 252 NLRB 947, 948 (1981).

There is no dispute that Tasnaddy encouraged the employees to contact a business representative whom he endorsed. Since he reported knowing that they were interested in another union, his comments constitute inducements to abandon the labor organization of their own choosing in violation of Section 8(a)(1). See C. K. Smith & Co., Inc., 227 NLRB 1061, 1067-68 (1977). Also Respondent did not contradict Dayton's and Pennington's testimony that Tasnaddy questioned them as to whether they or Cassabone had signed union authorization cards. Such interrogation clearly contravenes Section 8(a)(1) of the Act.

I further find that on several occasions Tasnaddy warned Dayton of adverse consequences in the event of a union victory. On October 3, he vaguely alluded to a cessation of past practices, and, more specifically on October 13, admitted telling Dayton that he would be downgraded to a class B mechanic with the advent of the Union. These threats, whether vague or specific, were intended solely to intimidate, restrain, and coerce in contravention of Section 8(a)(1). See Cone Mills Corporation, Revolution Division, 245 NLRB 159, 165-166 (1979); Rainbow Tours, Inc., d/b/a Rainbow Coaches, 241 NLRB 589, 595 (1979).

The General Counsel further submits that Gentile's remarks to Dayton on or about October 13 were unlawful. In assessing whether an employer's statements are coercive or are simply expressions of free speech protected by Section 8(c) of the Act, the Supreme Court instructed in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969), that:

The Appropriate Unit There is no serious dispute that the employees' signatures on the three cards admitted into evidence are authentic, nor that this number constituted a majority of Respondent's employees in the service department on October 15, 1980, the date on which the Union's business representative unsuccessfully attempted to meet with Gentile to seek recognition.

However, at the hearing, Respondent contested the inclusion of the parts manager in the unit described in the complaint as:

All mechanics, mechanic trainees, lot boys and parts countermen employed by Respondent at its Vineland, New Jersey facility but excluding guards and

supervisors as defined in the Act. I find merit in Respondent's position.

The evidence in this case clearly shows that the mechanics and lot boy shared a community of interests. However, unlike them, the parts manager received a salary plus commission, and drove a company car just as Tasnaddy did. His uniform, which differed from those worn by the three shop workers, identified him as a manager. His sales duties brought him into daily contact with the public and he had discretion to set discount prices on items he sold. He had no employees under his supervision, except in Tasnaddy's absence, but, by the same token, was not himself subject to direct supervision and worked independently. Accordingly, his interests and his allegiance were more closely aligned with management than with the other members of the described unit, making his inclusion in that unit inappropriate. See Steven Davis, et al. d/b/a Carlton's Market, 243 NLRB 837, 843 (1979).

A Bargaining Order is Warranted Although the business agent was unable to formally request that the Respondent recognize and bargain with the Union, the General Counsel contends that a remedial bargaining order is warranted under the principles enunciated in Gissel Packing Co., supra. In Gissel, the Supreme

the precise scope of employer expression . . must be made in the context of its labor relations setting . . . And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary

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Court affirmed the Board's authority to issue a bargaining order not only in exceptional cases marked by outrageous and pervasive unfair labor practices, but also in less extraordinary cases where there are fewer "pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process.” Id. at 614. Applying these principles to the present case, I conclude that a bargaining order is necessary.

As shown by the findings above, as soon as Respondent's agents learned of the possibility that its service department employees were interested in unionization, they engaged in open and persistent opposition within a concentrated period of time. On numerous occasions, Tasnaddy created the impression of surveillance, suggested an alternative labor organization, interrogated the employees as to their union affiliation, suggested that certain unspecified company practices would be abolished, and, in no uncertain terms, threatened Dayton with demotion. Added to this, the president of the Company implied that it would be to Dayton's advantage to forget about the Union. These violations of Section 8(a)(1) were successive and, of course, reached each of the employees in the small shop. But such conduct would not alone constitute sufficient grounds for the imposition of a bargaining order were it not coupled with Dayton's discriminatory discharge.

The dismissal of a principal union activist is misconduct which the Board and the courts have long regarded as so serious and coercive as to justify a finding without extensive explication that it is likely to have a lasting inhibitive effect on the work force. See N.L.R.B. v. Jamaica Towing Co., 632 F.2d 208, 212-213 (2d Cir. 1980); Faith Garment Company, Decision of Dunhall Pharmaceutical, Inc., 246 NLRB 299 (1979), affd. 630 F.2d 630 (8th Cir. 1980).

In the present case, the abrupt discharge led to the departure not only of the chief union organizer, but also effectively removed one-fourth of the proposed unit. The lesson which Respondent meant to convey to the other employees could not have been lost—the price of active support for the Union was punishment, immediate and severe. That Dayton's discharge had precisely the effect that Respondent intended is plainly demonstrated by Pennington's expression of apprehension about his job security to Gentile on the day after the firing.

Respondent's remedial duties will include offering reinstatement to Dayton. However, his return to the shop will provide little assurance to other employers that Respondent is more receptive to union activity, since the offer will be made under duress. Under such conditions and after an extensive lapse in time, reinstatement and backpay cannot eradicate the harm that has been done. See N.L.R.B. v. Jamaica Towing Co., supra at 213. What is more, Dayton's presence is likely to serve as a constant reminder that Respondent was willing to resort to extreme measures in order to defeat the Union.

Under these circumstances, a cease-and-desist order posted under Board and perhaps judicial compulsion would not root out the coercive effects on employees of Respondent's unlawful conduct. I also am doubtful that such an order would deter Respondent from continuing

its unfair labor practices when they were committed by the company president and his sole supervisor. Accordingly, I conclude that in light ot the nature and number of Respondent's unfair labor practices, "that the possibility of erasing the effects of past practices and of insuring a fair election ... is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.” Gissel Packing Co., supra at 614-615.

Although none of the employees who signed cards remain in Respondent's employ, Board precedent dictates that I give evidence of employee turnover little or no weight in determining that a bargaining order should issue. See, Keystone Pretzel Bakery, Inc., 256 NLRB 334 (1981); Justak Brothers and Company, Inc., 253 NLRB 1054 (1980). To take such a factor into account would merely afford “an added inducement to the employer to indulge in unfair labor practices in order to defeat the union in an election. He will have as an ally, in addition to the attrition of union support inevitably springing from delay in accomplishing results, the fact that turnover itself will help him, so that the longer he can hold out, the better his chances of victory will be.” Justak Brothers, supra, quoting N.L.R.B. v. L. R. Foster Co., 418 F.2d 1, 5 (9th Cir. 1969), cert. denied 397 U.S. 990 (1970). Accord: Hedstrom Co. v. N.L.R.B., 629 F.2d 305, 312 (3d Cir. 1980).

Although a bargaining order will entail the imposition of a union upon employees who had no voice in selecting or rejecting it, the Supreme Court observed in Gissel, supra at 613;

There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a repre

sentation petition. Accordingly, the propriety of a bargaining order to effectively cure the Respondent's unfair labor practices and to implement the will of the majority previously expressed, far outweighs any consideration that might otherwise be given to employee turnover.

1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. William Tasnaddy, Respondent's service manager, is a supervisor within the meaning of Section 2(11) of the Act and an agent of Respondent within the meaning of Section 2(13) of the Act.

4. By discriminatorily discharging Charles Dayton, Respondent violated Section 8(a)(1) and (3) of the Act.

5. By creating the impression of surveillance by telling employees that it heard rumors they were forming a union, and by inducing employees to abandon that union, Respondent violated Section 8(a)(1) of the Act.

6. By threatening an employee with unspecified reprisals because of that employee's activities on behalf of the Union, Respondent violated Section 8(a)(1) of the Act.

Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

7. By interrogating employees concerning their union activities, creating the impression of surveillance by telling employees that it heard all the employees had signed cards and that it knew the identity of the organizer, and threatening an employee with demotion should the Union be selected as the collective-bargaining representative, Respondent violated Section 8(a)(1) of the Act.

8. A unit appropriate for collective bargaining is:

All mechanics, mechanic trainees and lot boys employed by Respondent at its Vineland, New Jersey facility but excluding managerial employees and guards and supervisors as defined in the Act.

9. At all times since October 9, 1980, and continuing thereafter, Amalgamated Local Union 355 was designated by a majority of Respondent's employees as their exclusive collective-bargaining representative in the abovedescribed unit within the meaning of Section 9(a) of the Act.

10. The unfair labor practices summarized above have prevented the holding of a free and fair election. Therefore, to best serve the purposes of the Act, Respondent is required to recognize and bargain with the Union as of October 15, 1980, the date on which the Union attempted to obtain recognition and bargaining.

11. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

The Respondent, Gentile Pontiac, Vineland, New Jersey, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Creating the impression of surveillance by telling employees that it heard talk about a labor organization; inducing employees to abandon the labor organization; threatening an employee with unspecified reprisals because of said employee's activities on behalf of the Union; interrogating employees concerning their union activities; creating the impression of surveillance by telling employees that it heard the employees had signed cards and that it knew the identity of the organizer; and threatening an employee with demotion should the Union be selected as the collective-bargaining representative.

(b) Discharging or otherwise discriminating against employees with regard to their hire or tenure of employment or any term or condition of employment for engaging in activities on behalf of a labor organization or for engaging in activitity protected by Section 7 of the Act:

(c) In any other manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act:

(a) Offer Charles Dayton immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings resulting from the discrimination against him.

(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, personnel records, and all other records necessary to analyze the amount of money due under the terms of this recommended Order.

(c) Upon request, recognize and bargain collectively with Amalgamated Local Union 355 as the exclusive collective-bargaining representative of the employees of Respondent in the appropriate bargaining unit described below:

Having found that Respondent violated the Act in certain respects, I shall recommend that it be required to cease and desist therefrom. Because Respondent committed numerous, pervasive, and serious violations of the Act, through its chief supervisor and company president, I conclude that unless restrained Respondent is likely to engage in continuing unlawful efforts in the future to prevent its employees from engaging in union and protected concerted activity. Accordingly, Respondent will be required to refrain from in any other manner infringing on employees' rights to engage in such activity. See Hickmott Foods, Inc., 242 NLRB 1357 (1979).

Affirmatively, Respondent will be required to offer Charles Dayton immediate and full reinstatement to the job of which he was unlawfully deprived, or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. Further, Respondent will be ordered to make Dayton whole forthwith for any loss of pay he may have suffered by reason of his discharge on October 14, 1980, to the date of Respondent's offer to reinstate him, less any net earnings during that period in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as called for in Florida Steel Corporation, 231 NLRB 651 (1977)

In addition, the Respondent will be required to bargain with the Union on request, such bargaining to be retroactive to October 15, 1980.

All mechanics, mechanic trainees and lot boys employed by Respondent at its Vineland, New Jersey facility but excluding managerial employees, and guards and supervisors as defined in the Act.

? In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.

(d) Post at its Vineland, New Jersey, facility copies of the attached notice marked “Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by Respondent

immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material.

(e) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

Hemet Casting Company and Aluminum Brick and

Clay Workers International Union, AFL-CIO.1 Cases 21-CA-19501 and 21-CA-19756

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN

CA-19501 was filed on September 3, 1980, by Aluminum Workers International Union, AFL-CIO, herein the Union, and the amended charge in that case was filed by the Union on September 4, 1980. The original charge in Case 21-CA-19756 was filed by the Union on November 21, 1980. By order dated January 2, 1981, the Acting Regional Director for Region 21 consolidated said two cases and on the same date the Acting Regional Director issued a consolidated complaint. The complaint alleges that Hemet Casting Company, herein Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended.

Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following:

On October 2, 1981, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.

At all times material herein Respondent, a California corporation, has been engaged in the manufacture of nonferrous investment casting and has operated a facility located in Hemet, California. In the course and conduct of its business operations Respondent, during the last 12month period, sold and shipped goods and products valued in excess of $50,000 directly to customers located outside the State of California.

I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.

II. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act.

III. THE ALLEGED UNFAIR LABOR PRACTICES

1 Pursuant to the unopposed motion of the Charging Party, the name of the Charging Party, formerly Aluminum Workers International Union, AFL-CIO, has been changed to reflect the September 1, 1981, merger between the Aluminum Workers International Union and the United Brick and Clay Workers International Union, AFL-CIO.

2 General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

We also find that the Administrative Law Judge, by stating that there was a reasonable doubt that employee Curtis' recall of an alleged interrogation was reliable and that her testimony concerning the conversation could not be used as a basis for finding a violation, implicitly discredited Curtis' testimony.

3 In adopting the Administrative Law Judge's dismissal of the complaint's allegation that the Respondent violated Sec. 8(a)(1) by interrogating Curtis concerning her union sympathies, we rely on the absence of credible evidence to support the allegation. We do not rely on court decisions cited in fn. 20 of the Administrative Law Judge's Decision.

A. Background At times relevant herein Respondent had approximately 250 employees, of whom approximately 200 were in a unita represented by the Union. Respondent's president was Jack Tangeman; Rezmer was operations manager; and the plant manager was Larry Pellerin.3 Other com

STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This case came to hearing before me in Riverside, California, on July 21 and 22, 1981. The original charge in Case 21260 NLRB No. 60

This is to advise you that our current collective bargaining agreement is between Hemet Casting Company and Aluminum Workers' International Union. We have been informed by the above international union that we have dealt with, that the local union which you represent, seeking recognition, is no longer associated with the Aluminum Workers' International Union. There is also a serious question as to whether your organization is even a union under the Labor Management Relations Act. Our contract clearly identifies the parties to that agreement and it is quite clear that your organization is in no way identified in that agreement.

Your continuing harassment and efforts claiming to be the elected representaive of Hemet Casting Company employees has not been recognized nor certified by the appropritae federal agency, the National Labor Relations Board. Until any such recognition has been so certified, we intend to continue to meet our legal obligations under the Act and our agreement with the Aluminum Workers' International Union as the appropriate designated union.

Sincerely, HEMET CASTING COMPANY

panies having a relationship with Respondent were located in several places in the United States, including Hemet Steel Casting4 and Quality Testing Laboratories (QTL), neither of which had a bargaining relationship with the Union. Tangeman was president of Hemet Steel Casting and was a shareholder in but not an officer of QTL. Hemet Steel Casting had approximately 90 employees and was located approximately 350 feet from Hemet Casting. Its plant manager was Logan. QTL had approximately 18 employees and was located approximately 3 miles from Respondent. Pellerin had no relationship with either Hemet Steel Casting or QTL.5

The Union first represented Respondent's unit employees in 1976; the first contract between Respondent and the Union was effective October 31, 1977, through October 31, 1980. That contract contains an automatic renewal clause.

Approximately in December 1978 Respondent retained West Coast Industrial Relations Association, herein the Association, to assist it in solving several employee problems. The initial contact with the Association was made by Pellerin, and thereafter Stephen Ross, the Association's executive vice president, went to Respondent's plant and met with Tangeman and Pellerin. The three men discussed the problems of excessive employee turnover, poor employee attendance, poor employee morale, excessive generation of scrap, and low productivity at the plants of Respondent and Hemet Steel Casting. Ross was asked to prepare a comprehensive set of personnel policies and procedures, as well as some new compensation and benefit programs, for all employees of the Hemet Companies. Ross6 started work on the assignment but his efforts were desultory, and often delayed because of frequent inability to get in touch with Tangeman, who was extremely busy and often away from his office. However, Ross did some work on the assignment, and undertook other personnel tasks for Respondent. Ross met with Pellerin several times during 1979 and discussed a revised benefit program involving only Respondent's supervisory and nonbargaining unit employees. On September 14, 1979, Pellerin prepared and gave to Tangeman a memorandum? outlining his recommendations relative to such benefits. A copy of that memorandum was given to Ross, who had been meeting with Tangeman and an executive of a sister company in Florida, relative to the possibility of preparing a benefits program that would be consistent among all the related companies. Included in Ross' tasks was advice relative to the activity of a splinter group of employees at Respondent's plant, affiliated with the National Industrial Union, which had demanded that Respondent bargain with it. On April 29, 1980, Ross drafted the following letter to the National Industrial Union and sent it over Tangeman's signature:

A copy of the letter was posted on Respondent's bulletin board. Among other things accomplished by Ross was the preparation of separate employee handbooks for the three Hemet Companies, all of which handbooks are dated September 1980.8 Those handbooks described Respondent's benefit programs for the three companies.

Pursuant to discussions among, and benefits programs developed by, Ross, Tangeman, and Pellerin, Tangeman held separate meetings of supervisory personnel of the three Hemet Companies on July 22 and 23, 1980. Tangeman gave a presentation to the supervisors, and explained the benefits they and other employees were going to receive. He said those benefits were incorporated in the new employee handbooks that had been prepared for later distribution and that the benefits would apply only to nonbargaining unit employees at Hemet Casting, but also would apply to all employees at Hemet Steel Casting and QTL. A brief one-page summary sheet of Tangeman's presentation 10 was handed to supervisors at the meetings. Acting pursuant to Tangeman's instructions, the supervisors met the following day with nonbargaining unit employees at Hemet Casting and all employees at the other two companies and explained the benefits to them.

Approximately in the last week of July 1980, two unit employees of Respondent, Diane Sachak and Roger McClure, with the support of other employees, prepared a rough, incomplete petition for decertification of the

Page 18

tional Union, on behalf of its Local Union #318, wishes to amend our Agreement which is scheduled to expire October 31, 1980.

Kindly contact International Representative, Richard T. Warner, 2010 W. Lincoln Avenue, Suite A-7, Anaheim, California, 92801, phone (714) 6356380, to establish a mutually satisfactory date to begin negotiations.

Very truly yours,

Eugene B. Green

Exec. Ass't to the President Ross replied to the Union's letter on August 27, 1980:

Union. Because Sachak and McClure were uncertain of the procedure in which they were involved, McClure called the National Labor Relations Board's Regional Office for guidance. Their first petition was abandoned, without any signatures having been obtained. At that time, so far as the record shows, the benefits summary sheet discussed above (G.C. Exh. 11) had not been seen by any employees; Sachak credibly testified that she had not seen it.

A few days after the first petition was abandoned by McClure and Sachak, a second decertification petition 11 was prepared and circulated by McClure. A copy was given to a fellow unit employee, Gilbert Santana, for circulation and solicitation of signatures. Other employees, including Sachak, also circulated the second petition. On a date not established at the hearing, but approximately on August 10, this second petition, with a total of 113 signatures, was delivered to the Regional Office of the National Labor Relations Board, but was rejected because it was not dated. Someone, whose identity was not established at the hearing, placed a copy of the petition on Pellerin's desk. The copy later was found by Pellerin, who called Ross on the telephone the same day. Pellerin and Ross discussed the petition, after which Ross told Pellerin to lock it up until Ross came to the plant. Ross also discussed the petition with Rezmer and Tangeman. On the telephone, Ross suggested to Pellerin and Rezmer that they verify the signatures on the petition.

A third petition 12 was prepared, circulated commencing August 12, and encouraged by James Davis, a unit employee at times relevant herein but no longer employed by Respondent. That petition contained approximately 131 signatures and was prepared as a substitute for the earlier second petition which had been rejected by the Board because of the lack of a date. Each signature on Davis' petition shows a date. Davis filed the third petition with the Board on August 19, 1980, and prior to filing it laid a copy on Pellerin's desk during Pellerin's absence. 13 Pellerin called Ross on the telephone and they discussed the petition. Ross went to the plant on August 25 and talked with Tangeman, Rezmer, and Pellerin, after being notified by Tangeman on August 22 that the latter had received the petition notice from the Board. Davis attached a copy of the benefits (G.C. Exh. 11) to his petition and used that summary in obtaining signatures on the petition.

On August 19, 1980, the Union wrote to Tangeman, as follows:

On behalf of our client, Hemet Casting Company, your letter of August 19, 1980 to Mr. Jack Tangeman, President of the Company, was forwarded to me for response.

In response to your request to commence negotiations, we must inform you that we have been advised by Region 21 of the National Labor Relations Board of the filing of an RD Petition on August 19, 1980 and a pending election with regard to the subject bargaining unit.

In view of this development, our client has a serious and good faith doubt as to your Union's majority representation status. As such, we believe that it would be both inappropriate and improper to initiate collective bargaining negotiations until the matter of majority representation is determined by the pending election.

Sometime after August 27, 1980, on a date and under circumstances not explained at the hearing the Union learned of the intended dismissal by the Board of Davis' petition and replied to Tangeman on October 21, 1980:

Attached, you will find a copy of a letter, from Eugene B. Green, Executive Assistant to the President, Aluminum Workers International Union, dated August 19, 1980.

Due to the recent ruling of the National Labor Relations Board, we are again, in accordance with Article XVII, Term of Agreement, of our present Labor Agreement, notifying you that the Aluminum Workers International Union, on behalf of its Local Union #318, wishes to amend our Agreement.

Again, kindly contact International Representative, Richard T. Warner, 2010 West Lincoln Avenue, Suite A-7, Anaheim, California, 92802, phone (714) 635-6368, to establish a mutually satisfactory date to begin negotiations.

Dear Mr. Tangeman:

In accordance with Article XVII, Term of Agreement, of our present Labor Agreement, this is to notify you that the Aluminum Workers Interna

Very truly yours, Richard T. Warner, Trustee Aluminum Workers International

Union, Local #318 On October 31, 1980, Ross replied to the Union:

Union because of a good-faith and reasonable doubt, based upon objective considerations, that the Union still represented the unit employees.

The General Counsel contends, and Respondent denies, that enroute to the last act of its scheme Respondent committed violations of Section 8(a)(1) of the Act.

Your letter dated October 21, 1980, to our client, Mr. Jack Tangeman, President of Hemet Casting Company, has been forwarded to me for response.

While we are well aware of the National Labor Relations Board's recent determination, until this matter has been properly adjudicated, we must inform you that we currently have in our possession convincing and objective evidence that your Union no longer represents a majority of Hemet Casting employees. Accordingly and because of your lack of majority representation status, we must reject

your request to commence negotiations. Respondent acknowledges that it withdrew recognition of the Union, and has refused to bargain with the Union.

On November 6, 1980, Tangeman issued a memorandum 15 to all of Respondent's bargaining unit employees advising them that Respondent no longer recognized the Union as the employees' bargaining representative and that the benefits described in the employees' handbook, and already extended to nonbargaining unit employees, 16 would be given to unit employees effective November 10, 1980. The benefits were given to unit employees as planned.

B. Contentions of the Parties The General Counsel contends that Respondent developed a scheme to rid itself of the Union and that the scheme included the following components: (1) Prepare a new fringe benefits program to cover Respondent's nonbargaining unit employees; (2) implement the new program, and limit it to nonbargaining unit employees; (3) delay the implementation until time to bargain with the Union for a new contract; (4) see that bargaining unit employees learn of the program for nonunit bargaining employees; (5) mislead unit employees relative to, or withhold from bargaining unit employees, the knowledge that those employees, through their union, could bargain for the benefits received by nonbargaining employees; (6) see that a decertification petition was filed by bargaining unit employees; (7) refuse to bargain with, or recognize, the Union on the ground that the Union no longer represented Respondent's unit employees; and (8) extend the benefits program to all of Respondent's employees. Each of these contentions is discussed below, seriatim.

Respondent contends that no such scheme was concocted; that its benefits program was developed for sound business reasons; that the program was implemented for nonbargaining unit employees at the earliest feasible time; that there was no relationship between the benefits program and expiration of the bargaining agreement; that Respondent did not mislead, or withhold information from, any employees; that Respondent had nothing to do with any decertification petition; that Respondent refused to bargain with, or recognize, the

C. Alleged Interrogation Paragraph 15 of the complaint alleges that, on or about August 4, 1980, Pellerin interrogated employees concerning their membership, sympathies, and activities.

This allegation refers to a conversation on or about August 4, 1980, 17 between Pellerin and Constance Curtis, the Union's steward and an employee of Respondent. Curtis testified that Pellerin called her into his office and commenced the conversation by telling her about the demotion of employee Salvador Felix from supervisor to leadman.18 Curtis testified that Pellerin then asked her whether, if Tangeman offered the employees a retirement plan, she still would be interested in a union, to which she replied she would have to see it to believe it. Curtis testified that Pellerin then said something about Respondent offering benefits, and he could not believe she had not heard rumors to that effect. 19 Curtis testified that Pellerin took a book from his desk that Respondent was using to prepare benefits to be offered to employees, and discussed those benefits with her. She told Pellerin Respondent's timing was perfect, since the bargaining agreement would expire in October, and Pellerin replied that Respondent had been working on the benefits more than a year, and “it just happened to all come together at this time.” Curtis asked if that was the case, why did not Respondent offer the benefits to all employees and Pellerin replied that, if such an offer was made, Respondent would have to notify the Union and negotiations would have to be commenced earlier than planned. Curtis testified that Pellerin then asked her “if them benefits did go into effect, would I still be interested in the Union,” and she replied, “Yes.”

Curtis testified that she went into Pellerin's office approximately August 18 because she had seen the decertification petition, and had learned about the benefits package that had been implemented for nonbargaining unit employees. Curtis said she asked Pellerin why the decertification petition that was being circulated included the same benefits package intended for foremen, that he reminded her of their earlier conversation (the conversation of August 4), and Pellerin replied that he had heard rumors about the petition and the benefits list. Curtis asked Pellerin why the benefits for nonbargaining unit employees were not going to be made available to unit employees, and Pellerin replied that Respondent could not unilaterally do that because benefits for unit employees would have to be negotiated with the Union.

Pellerin testified relative to his conversation with Curtis on August 4, and denied that he asked Curtis whether, if Tangeman offered employees a retirement plan, she still would be interested in a unicn. Pellerin stated that, when he told Curtis about his concern that Felix might complain about losing benefits upon demotion, Curtis asked what benefits he was talking about, whereupon Pellerin took a book from his desk and discussed with Curtis the various benefits Felix had been receiving as a foreman under the then recently instituted program for nonbargaining unit employees.

testimony relative to Pellerin's inquiry fairly cannot be used as the basis for finding a violation of the Act. Possibly Pellerin made some inquiry of Curtis relative to the benefits, but finding a violation would require too much speculation concerning ambiguous testimony.

The Board and several courts have considered statements and interrogations alleged to be coercive, and certain factors have been developed as helpful in determining the issue. Those factors are: (1) The history of employer hostility and discrimination; (2) the nature of the information sought (e.g., was the interrogator seeking information from which he could take action against individual employees?); (3) the identity of the questioner (i.e., what was his position in the Company); (4) the place and method of interrogation (e.g., was the employee called from work to the boss' office? Was there an atmosphere of “unnatural formality”?); and (5) the truthfulness of the reply (e.g., did the interrogation inspire fear leading to evasive answers?).20 While the five listed factors are not exclusive, and do not necessarily preclude finding a violation even though they are satisfied, they are helpful in assessing the nature of the interrogation. When the factors are placed against the circumstances involved herein, it is readily apparent that the requirements for finding a violation of the Act have not been

It is noted at the outset that (1) the record does not show an antiunion bias on the part of Respondent; (2) this alleged interrogation is isolated in nature and there is no evidence that Respondent generally engaged in a pattern of interrogating or otherwise harassing or coercing employees; (3) Pellerin’s alleged interrogation was cryptic and ambiguous.

Curtis worked closely with Pellerin in her position as union steward and she and Pellerin were on friendly terms. The two frequently discussed matters of mutual interest, including employee benefits, and they met regularly on a monthly basis to discuss work matters. Their two versions of the conversation of August 4 are not greatly different, beyond Pellerin's denial that he asked Curtis if she still would be interested in a union if Respondent gave unit employees a retirement program.

Curtis' memory did not seem entirely clear and Pellerin's alleged inquiry is subject to more than one interpretation. In view of their history of a close working relationship, and Curtis' position with the Union, it seems unlikely that Pellerin would consider Curtis a possible turncoat, either personally or as a company advocate within the bargaining unit. Curtis appeared to be a sincere, honest witness, but in view of the circumstances, and Pellerin's denial, there is reasonable doubt that her recall of the conversation, which occurred approximately a year ago and which was but one of many conversations she had with Pellerin, is reliable. It appears that the principal reason for Pellerin talking with Curtis in the first place, was Pellerin's concern about Felix's demotion. The two participants worked well together, frequently discussed a broad range of employee-employer relationships, and were well aware of the work sympathies of each other. Curtis testified that when Pellerin made his inquiry of her she replied that she still would be interested in the Union. There is no evidence that Pellerin had any reason to believe that Curtis was a possible union defector. There is no evidence that Respondent historically has tried to get rid of the Union. There is no evidence that Curtis was apprehensive, fearful, or antagonistic toward Pellerin during the conversation or at any other time. In view of all the circumstances, Curtis'

1. Preparation of the benefits program The fact that Pellerin, Tangeman, and Ross first began thinking about, and working on, a new benefits program in late 1978 is not in serious dispute. All three individuals credibly testified relative to that fact, and all three credibly explained that the reason for the action was a desire to establish for all three Hemet Companies a uniform program of benefits that would be the equal of, or better than, the programs of their product competitors. Curtis, 21 an employee of Respondent since 1972 and the Union's shop steward since October 1977, testified that in late 1979 or early 1980 she and Pellerin discussed the fact that there was a high employee turnover rate, and that the employees needed higher pay and better benefits. Curtis further stated that Pellerin told her at that time that he was working on recommendations to Respondent to alleviate the problems they were discussing. Finally, Curtis stated that many of the things they were discussing ultimately appeared among the benefits given to nonbargaining unit employees in July 1980.

Pellerin's memorandum of September 14, 1979, to Tangeman clearly shows that he was making recommendations for supervisory, as well as rank-and-file employees. There is nothing in the record to show, or indicate, that Pellerin intended to read the Union out of the act. His testimony, supported by that of Ross and Tangeman, makes it clear that his recommendations were general and tentative, and were made, internally and administratively, solely for business reasons. It is clear that he was concerned primarily with employee relations at that time and that he was not addressing the separate matter of negotiating any changes with the Union. In support of these conclusions, Curtis testified that, in a conversation with Pellerin in late August 1980, Pellerin told her that Respondent could not, unilaterally, initiate any benefits changes; that any changes would have to be negotiated with the Union. That testimony of Curtis further is supported by the testimony of Ross, who credibly testified that, throughout meetings in 1979 relative to the benefits, the probability of collective bargaining relative to the benefits was discussed, and that Respondent was aware that it had an obligation to deal with the benefits through the collective-bargaining process.

The record is quite clear, and it is found, that the benefits involved herein were conceived and developed solely for valid business reasons, unrelated to any union considerations. It is further found that, as of the time the benefits were developed and prior to their announcement to employees, the benefits were an internal product of Pellerin, Ross, and Tangeman, and that they were not conceived, or related to, any scheme to get rid of the Union.

to the handbooks. Tangeman made it clear that, important as the benefits were, other matters were more pressing. Further, Respondent and its employees were not the only ones involved-Hemet Steel Casting and QTL also had to be considered. It is found that Respondent did not intentionally delay through procrastination or use of excuses implementation of benefits for unit employees. So far as the handbooks are concerned, Ross credibly explained that the delay was caused by errors in the first printing, correction of errors, and the necessity of having a translated version (Spanish) prepared. The General Counsel's argument concerning the number of handbooks is without merit. It is common knowledge that the number of handbooks for employees must be substantially greater than the number of employees, in order to take into account the turnover of employees, loss of copies, possible increase of personnel, quantity costs of printing, and other factors.

It is found that there was no intentional delay in the distribution of employee handbooks; that handbooks were not printed in advance for unit employees; and that the handbooks were not a part of any scheme on the part of Respondent to undermine the Union.

4. Bargaining unit employees' knowledge of the

benefits program

2. Implementation of benefits for nonbargaining unit

employees The facts that the benefits were given to Respondent's nonbargaining unit employees in July 1980, and that the same benefits were given to all employees of Hemet Steel Casting and QTL approximately at the same time, are not in dispute. The legal dispute relative to initiation of those benefits is discussed in section 4, infra. 3. Implementation of the benefits for bargaining unit

employees The date of implementation for unit employees, November 10, 1980, is not in dispute.

The General Counsel contends that the date of implementation was delayed in order to permit other components of Respondent's scheme to unfold.

The fact that when Ross met with Pellerin and Tangeman in December 1979 it was planned to implement the benefits program in February 1980 is not in dispute. However, the General Counsel argues that implementation intentionally was delayed. In support of that contention, the General Counsel argues that there was no real reason for the delay, and further, that printing and distribution of employee handbooks22 was delayed in order to achieve maximum effect on employees, and in anticipation of employees signing a decertification petition. The General Counsel considers significant the fact that Respondent had only 250 employees, yet ordered 500 handbooks printed.

Those arguments by the General Counsel are not persuasive. Tangeman testified at length, and credibly about the causes of delay, and his testimony credibly was corroborated by Ross. Those causes were the pressures of business, Tangeman's illness, and other matters unrelated

In order for the alleged scheme to be successful, it would be necessary for Respondent to see that unit employees knew about benefits given, or to be given, to nonunit employees. A principal matter for consideration relative to this point is whether or not Respondent took it upon itself to see that unit employees had such knowledge. The fact that they and the Union knew of the benefits is not in dispute. Curtis knew as early as late 1979 or early 1980 that Respondent was considering an improved benefits program for all nonunit employees. Several witnesses credibly testified that unit employees generally knew after July 22 and 23 that benefits had been given to nonunit employees. Curtis and Pellerin discussed in detail on August 4, 1980, the benefits given to nonunit employees. Davis attached a copy of the benefits summary (G.C. Exh. 11) to his (third) decertification petition, and employees discussed among themselves, during circulation of both the second and third petitions, the benefits given to nonunit employees.23 The third petition was Davis' project, as discussed above. Davis was a unit employee, not a supervisor. There is no evidence, or even suspicion, that Respondent suggested or requested that Davis talk with employees about the benefits program or attach a copy of the benefits summary to the petition. Although Davis testified that the benefits summary was "attached” to his petition, he circulated the petition by means of a clipboard, and there is no evidence that, when the petition was placed on Pellerin's desk, the summary was attached to it.

There is no evidence that Respondent at any time told unit employees that only nonunit employees would receive benefits. Tangeman announced the benefits to supervisors on July 22 and 23 and supervisors thereafter sentative. Likewise, an employer is under no obligation under the Act to make such wage increases applicable to union members, in the face of collective bargaining negotiations on their behalf involving much higher stakes. ...

As pointed out above, the Union was fully aware of Respondent's intention to give benefits to its nonunit employees and of Respondent's later grant of those benefits, yet the Union never requested that Respondent bargain with it concerning extending those benefits to unit employees. Respondent on at least three occasions discussed the benefits with Curtis and acknowledged its duty to bargain with the Union if benefits were to be extended to unit employees. The General Counsel did not allege in the complaint a violation of the Act in Respondent's grant of benefits to nonunit employees, and there is no basis after the hearing on which to find such a violation.

advised only nonunit employees at all three Hemet Companies.

The General Counsel acknowledges that Respondent did not violate Section 8(a)(3) of the Act by its grant of benefits in July, but contends that Section 8(a)(1) was violated because Respondent "specifically excluded employees who were represented by the Union because they were represented by the Union.” That conclusion is not supported by the record. It is clear that the benefits were excluded to nonunit employees for sound and lawful business reasons, and that Respondent left open the possibility of negotiating with the Union relative to extending the benefits to unit employees. That specific matter was discussed by Pellerin and Curtis as early as late 1979 or early 1980, and again on August 4, 1980.24 Curtis was an agent of the Union, 25 thus, her knowledge of the benefits was the Union's knowledge. However, the Union never requested that Respondent bargain with it concerning the grant of benefits to nonunit employees, although as noted above, the Union requested, on August 19, that Respondent meet with it to amend the existing agreement. 26

The General Counsel argues that B. F. Goodrich Company27 stands for the proposition that “it is well settled that employee participation plans which have the effect of excluding employees because they are union members are inherently discriminatory.” It may well be that the plan involved in Goodrich violated Section 8(a)(1) of the Act, but that case does not say that any grant of benefits exclusively to nonunit employees is a violation of the Act. After finding that Respondent did not violate Section 8(a)(3) of the Act, the Board stated in Goodrich:

As found by the Trial Examiner, the Union did not waive its right to be consulted about the institution of this type of benefit during the parties' negotiation of the existing collective-bargaining agreement. By thereafter instituting the plan for its unorganized employees while unlawfully refusing to bargain with the Union as the statutoty representative of its warehouse employees, Respondent deprived the latter employees of their right to bargain collectively with respect to obtaining this additional benefit. As such conduct interferes with, restrains, and coerces the unit employees in the exercise of their right to bargain collectively through representatives of their own choosing, we conclude that Respond

ent thereby further violated Section 8(a)(1). 28 In Empire Pacific Industries, Inc.,29 the Board made it clear that not all grants of benefits are unlawful. The Board there quoted from Shell Oil Company:30

Absent an unlawful motive, an employer is privileged to give wage increases to his unorganized employees, at a time when his other employees are seeking to bargain collectively through a statutory repre

5. Respondent's alleged duty to inform unit

employees of their bargaining rights The General Counsel contends that Respondent had a duty to inform unit employees that, through their union, they could bargain for the benefits received by nonunit employees and that Respondent misled the unit employees and failed to keep them properly informed relative to the benefits.

As previously discussed, and contrary to the General Counsel's conclusions set forth in his brief, Respondent made no announcement to unit employees concerning the benefits given to nonunit employees and further, Respondent did not, so far as the record shows, participate in, encourage, or condone circulation among employees of the benefits summary.

Respondent did not, by granting benefits to nonunit employees, violate the Act. The Union was aware, at least a week before Davis circulated his petition, that benefits had been granted to nonunit employees, and Curtis had seen General Counsel Exhibit 11, showing what those benefits were. Most unit employees, if not nearly all of them, had known for an even longer period of time what the benefits were since they had seen General Counsel Exhibit 11.

There is no evidence that Respondent misled any employee, nor is there any evidence that Respondent intentionally withheld any information from employees entitled to receive information.

Under such circumstances, it was the Union's responsibility to request that Respondent bargain with it, relative to benefits given to nonunit employees. That the Union failed to do. It was not Respondent's duty to inform unit employees, or their union, that they could bargain for the benefits. As stated by the Board in City Hospital of East Liverpool, Ohio:31

Established Board precedent requires a union that has notice of an employer's change in a term or condition of employment to timely request bargaining in order to preserve its right to bargain on that

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subject. In American Buslines, supra, 164 NLRB at 1055, the Board stated: [T]he statute does not compel him (the Employer) to seek out his employees or request their participation in negotations for purposes of collective bargaining .... To put the employer in default here the employees must at least have signified to respondent their desire to negotiate. (N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 297 (1939).]

6. The decertification petitions The General Counsel argues that the decertification petitions were tainted. However, the record does not support that argument.

So far as the first petition (McClure-Sachak) is concerned, there is no suspicion, much less evidence, of taint. McClure did not testify, but Sachak did, and she was a credible witness. There is nothing in the record to indicate that Respondent encouraged, knew about, or was concerned with this petition. It is clear that many employees no longer wanted to be represented by the Union, since a rival organization, National Industrial Union, claimed as early as April 1980, and probably earlier, that it represented Respondent's employees. Sachak made it quite clear that she no longer wanted the Union to represent her and she credibly testified that other employees felt the same way.

So far as the second petition (McClure-Santana) is concerned, it is apparent that it was a continuation of the first abortive effort of McClure and Sachak. It is clear from the testimony of Sachak and unit employees Tina Carpentier and Santana that those employees did not want the Union to represent them, and that preparation of the petition was the idea of McClure, Santana, Sachak, and other employees. More than half of the unit employees signed the petition and there is nothing to show that they were coerced into signing. The General Counsel argues that the benefits summary (G.C. Exh. 11) was attached to or accompanied the petition, but the record does not support that contention. There is no evidence that Respondent gave the summary to any unit employee or otherwise made it available to any employee. Sachak credibly testified that she first saw the summary when she found a copy of it on the bathroom floor, after she already had started circulating the petition. She said she had a copy of the summary and referred to it at times while talking with employees, but that most of the employees already had seen it. She said the summary never was attached to the petition and she credibly testified that she did not tell employees that if they signed the petition they would receive the benefits outlined on General Counsel's Exhibit 11. Sachak did testify, however, that one of the reasons she became involved in the second petition was that she had seen a copy of General Counsel's Exhibit 11 in addition to wanting to get the Union out of the plant. Carpentier testified much the same and stated that the benefits had nothing to do with her participation in the petition and that she only wanted to get rid of the Union. Santana also testified to the same effect and stated that, although

some employees whose signatures he solicited asked, “What did the Company have to offer themselves,” he “really couldn't answer their questions.” Santana said the only thing he told employees concerning benefits was something relating to a dental plan that an employee in QTL had told him about. Santana credibly testified that he had not seen the benefits summary when he started circulating the petition and that he never told employees they would receive benefits if they signed the petition. Davis credibly testified that he participated in signing and urging other employees to sign the petition after he was solicited to do so by McClure and Santana. Davis credibly testified that the benefits summary was not attached to, or circulated with, the petition, and that he did not see the summary while the petition was being circulated. There is no evidence that Respondent suggested, encouraged, condoned, or participated in the second petition.

It is clear that the third petition (Davis) is a continuation of the efforts embodied in the two earlier petitions. So far as the record shows, the only reason the National Labor Relations Board rejected the second petition was the fact that it was not dated. Davis was told by Santana and McClure what the problem was and he was careful to see that all signers dated their signatures. There is no indication that, by the time the third petition was launched, the employees who initially had sought to decertify the Union had changed their minds. The fact that 131 of approximately 200 employees signed the petition indicates a strong and pervasive desire of employees to decertify the Union.32 Tangeman credibly testified that, prior to receiving a copy of the petition from the Board soon after August 19, 1980, he did not know about, nor had he heard any rumors of, the circulation of the petition. 33 There is no evidence that Respondent suggested, encouraged, condoned, or participated in the third petition. There is nothing in the record, however remote, to suggest or show that there was any collusion between Respondent and the drafters of the two earlier petitions-McClure, Santana, and Sachak. The fact, which is not in dispute, that the benefits summary was attached at least some of the time to the third petition is not, absent other proof, evidence that Respondent participated in or encouraged preparation of circulation of the petition. Davis testified that he found a copy of the benefits summary on a foreman's desk and, of his own volition, used it with the petition. Since there is no evidence or testimony to the contrary, and since Davis' testimony is consistent with the record relating to the third petition, proximately August 18, because she was angry about a decertification petition being circulated, and “then I found out that they (employees in department 20] were passing around a benefit package that he (Pellerin) had already told me the month before and it upset me.” She said Pellerin replied, "he had heard rumors to the effect but that's all he knows." Curtis further testified that she talked with Tangeman after she heard a rumor concerning the second petition:

A. Well we talked about the progress of the plant, why the lunch room-one thing wasn't done because of other pressing things. And then I did bring up the subject of hearing a rumor of the petition.

Q. Did you tell him what kind of petition?

A. Yes. I told him they had a petition out that was trying to get rid of the Union and 1-the reason I brought it up to him was because I heard Art Stockdale—somebody-he's employed out of the Company–who was trying to push it on nights. I had some night people come and tell me. And I told him about that and he just couldn't believe it. He was surprised.

Davis' testimony on this point is credited. The fact that Respondent had given the benefits listed on the summary to nonunit employees was known by many, and possibly most, of the unit employees. Davis was a unit employee, and not a supervisor, thus any representation he made to employees was not attributable to Respondent. In any event, there is no evidence or testimony showing that any employee was talked into signing the petition in order to gain benefits—Sachak and other witnesses made it clear that their principal concern was to get rid of the Union. An earlier attempt to get another union in already had failed. The principal reed relied upon by the General Counsel relative to this point is the relationship between Davis and Pellerin. Davis has known Pellerin approximately 20 years and Pellerin was instrumental in obtaining employment of Davis at Respondent's plant (February 1980) and at Davis' present employer, Bourne (June 1981). The General Counsel attempted to establish that Davis somehow was rewarded by way of extra pay or job title while he was employed by Respondent, but that attempt bore no fruit. Davis testified that neither Pellerin nor any other supervisor ever told him to circulate or file a petition or to become involved in one. Davis acknowledged that he was not a union member and did not like the Union and that he had communicated that fact to Pellerin on several occasions. Davis further stated that he laid copies of the second and third petitions on Pellerin's desk, but he never discussed those petitions with Pellerin. As noted above, this latter statement seems unlikely but, in any event, there is no evidence that Pellerin's friendship with Davis had anything to do with circulation of the third petition. That petition had the active support of most unit employees, and it had been preceded by three other attempts to get rid of the Union-one invitation to an outside union, and two other petitions, neither of which was initiated by Davis. It may well be that Davis wanted the Union out and that his thoughts were shared by Pellerin, but those facts do not provide a basis for finding that Pellerin had anything to do with the petition Davis started. So far as the benefits summary is concerned, Davis acknowledged that he used that document during his petition campaign, but credibly explained:

Q. Did you ever tell an employee that they'd get those benefits in order to get them to sign the petition?

A. No, sir.
Q. What did you tell them?

A. I just said that a nonbargaining unit had received these. If we did not have the union as a third person, maybe we could speak for ourself and ask for these items. No guarantee we would get them.

Q. Is that what you told all the people that you circulated the petition for?

A. That is correct.

It is found that all three of the union decertification petitions solely were the idea and product of Respondent's employees, free of taint by any of Respondent's actions. It is further found that the proposed benefits summary never was given or distributed to or used by Respondent in an effort to undermine the union loyalty of Respondent's unit employees.

7. Refusal to bargain with or recognize the Union The fact the Respondent refused to bargain with the Union, expressed in a letter from Ross to the Union on August 27 is not in dispute. The refusal was reiterated in Ross' letter to the Union on October 31. The reason for the refusal also is not in dispute—it was Respondent's stated belief that the Union did not, at the time of the refusal, represent a majority of Respondent's unit employees.

Although the parties agree that Respondent refused to recognize the Union as representative of the unit employees, they do not agree upon the date of that refusal. At no time did Respondent specifically state its refusal to recognize the Union and the parties argue the possibility of several dates. However, Respondent did not argue, at the hearing or in its brief, that the withdrawal of recognition was beyond the 10(b) period. Respondent argues that, in effect, its letter to the Union, dated October 31, 1980, was a withdrawal of recognition because the contract expired that day. Counsel for the General Counsel states in his brief, at page 26, that a grievance of an employee (discussed infra) was filed on October 29, 1980, “two months after Respondent withdrew recognition and first refused to bargain with the Union.” Clearly both sides recognized, and the record supports their conclusion, that Respondent withdrew recognition of the Union August 27, 1980, reiterated that withdrawal on October

The fact that Respondent was not involved in the petitions is strengthened by the testimony of Curtis, who testified that she talked with Pellerin in July 1980 about the demotion of an employee (discussed infra), and also about the benefits given to nonunit employees (also discussed infra). She said she again talked with Pellerin ap

General Counsel, who disproved no signature. The signatures total well above 50 percent of Respondent's employees.

The General Counsel further argues that a grievance filed by an employee on October 29, 1980, shows that “Respondent itself had misgivings about its good faith doubt that the Union represented its employees,” but that conclusion is not supported by the record.

Employee Yolanda Garcia filed the grievances, alleg. ing that several employees “were being unnecessarily harassed.” On November 10, 1980, Pellerin wrote a letter to the Union relative to Garcia's grievance, 38 stated that Respondent did not believe there was merit to the grievance, and concluded:

At an appropriate and acceptable time, the Company will finish our investigation of these alleged inhumane Acts and treatment toward Company Employees and report back to the Union as to the validity of this Grievance.

On February 2, 1981, Pellerin wrote to the Union:

Dear Mr. Thompson:

31, 1980, and has continued to date to maintain that position. The 10(b) period is not an issue herein. 34

So far as the refusal to bargain is concerned, the General Counsel argues that Respondent failed to meet its burden of rebutting the Union's post-contract, 1-year presumption of majority status. The principal question is whether or not Respondent legally could base its refusal to bargain with the Union, either upon its learning of the second and third petitions (as Ross testified), or upon its receipt of notification from the Board that the third petition had been filed.

An employer lawfully may refuse to bargain with a union if it has a good-faith and reasonable doubt of the Union's majority status and that doubt is supported by objective considerations. A petition signed by a majority of unit employees wherein they express their desires no longer to be represented by the Union may, in the absence of unfair labor practices on the part of the employer, support a good-faith withdrawal of the employer's recognition of a union as the bargaining representative of employees. 35

It is noted, initially, that the cases cited by the General Counsel for the proposition that an employer may not assert reasonable doubt of a union's majority status when the employer has engaged in unfair labor practices tending to dissipate the union's majority status, are not applicable herein. As discussed above, so far as the record shows Respondent did not concoct and carry out a scheme to rid itself of the Union or engage in interrogation of employees, or otherwise attempt to undermine the Union's status. Respondent's actions were limited to assuming that the Union had lost its majority status, to refusing to bargain thereafter with the Union, and to implementing benefits for unit employees on a unilateral basis after it learned of employees signing the second and third petitions.

It is further noted that Respondent does not rely upon the filing of a decertification petition with the Board to support its contention that the Union no longer represented the unit employees. Respondent contends that it knew from the time it received copies of the second and third decertification petitions that more than 50 percent of its employees did not want to be represented by the Union. Respondent did not, in its two letters to the Union, dated August 27 and October 31, state the number of signatures on the petition, 36 but that fact is immaterial.37 The General Counsel argues that Respondent did not sustain its burden of proving that the signatures all were valid, but that burden prima facie was met by the testimony of Davis, Pellerin, Sachak, Ross, Carpentier, and Santana. The burden then passed to the

After more than 12 weeks, of concern and investigation, brought about by a grievance, we (Hemet Casting Co.) have found NO VALIDITY or EVIDENCE that a foreman was treating employees in an unacceptable manner. My personal opinion after carefully reviewing all the facts, is that the overall problem was that poor working habits and also attitudes of the employees involved. Therefore, my decision is there was no violation of the contract, and no futher action will be taken or considered.

Pellerin testified that the grievance was denied because he did not believe the Union any longer represented the employees, although neither of his letters to the Union set forth that belief. Pellerin said his belief was supported by the fact that the grievance was not complete and was not numbered as grievances customarily were when the Union was involved. Pellerin futher testified that the grievance of October 29 had its genesis in occurrences that started 4 or 5 months prior to that date, when the Union represented the employees, and that he communicated with Curtis and the Union about the grivance as a courtesy and because of his excellent working relationship with Curtis. 39 Pellerin testified that he believed, when he communicated with Curtis and other union representatives relative to the grievance, that the Union no longer represented the unit employees, but he acknowledged that he never made that statement to any union representative.

Ross testified:

If I recall correctly I did have a discussion with Mr. Pellerin and I don't recall the exact time but it was sometime after we had written to the Union identifying that we would no longer recognize them. And Mr. Pellerin called and asked me wheth

38 G.C. Exh. 15. 39 This working relationship is not in dispute.

in dispute. Having lawfully withdrawn recognition of, and lawfully having refused to bargain with, the Union Respondent was free to grant benefits to all its employees on a unilateral basis. 40

er or not he needed to pursue grievances with the Union.

This, I believe, is a grievance that originally-it's multipart grievance, but I think some of the elements in it began around May or June of that year.

Q. Is that 1980? A. That would have been 1980.

And it was my recommendation to Larry Pellerin that because the-in effect, the grievance had, in effect, occurred or was initiated during that MayJune period, that he had an obligation to answer the grievance, even though we had, at that point in time, notified the Union that it would not be recognized.

I might also say we recommended to Mr. Pellerin that he deny the grievance on the basis of the infor

mation that he had provided me. Pellerin's explanation of the grievance, supported by Ross, was logical and consistent and is credited. It is found that Respondent's handling of the grievance did not reinstate Respondent's recognition of the Union or constitute de facto recognition. This grievance is found to be irrelevant to the issues.

It is found that Respondent did not unlawfully refuse to recognize or to bargain with the Union.

1. Hemet Casting Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

3. Respondent did not, as alleged, violate Section 8(a)(1) and (5) of the Act.

Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issues the following recommended:

The complaint is dismissed in its entirety.

8. Grant of benefits to Respondent's unit employees The fact that the benefits were given to unit employees on November 10, 1980, on the same basis they previously had been given to nonrepresented employees is not

Round Rock Lime Company and International

Union of Operating Engineers, Local 819, AFL- CIO. Case 16-CA-10141

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN

Upon a charge filed on October 23, 1981, by International Union of Operating Engineers, Local 819, AFL-CIO, herein called the Union, and duly served on Round Rock Lime Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on November 10, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding

With respect to the unfair labor practices, the complaint alleges in substance that on September 11, 1981, following a Board election in Case 16RC-8266, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;1 and that, commencing on or about October 15, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 20, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

On December 10, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 15, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board makes the following:

Ruling on the Motion for Summary Judgment

In its answer to the complaint and its response to the Notice To Show Cause, Respondent attacks the validity of the Union's certification because of the alleged erroneous resolution of its objections to the election in Case 16-RC-8266.

Review of the record herein, as well as that of Case 16-RC-8266, reveals that on March 6, 1981, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally of ballots showed that 38 votes were cast for, and 37 votes were cast against, the Union. There was one challenged ballot which was sufficient to affect the results of the election. Respondent timely filed objections to conduct affecting the results of the election, alleging that, the Union and its agents threatened employees with physical violence, financial harm, and deportation, and made material misrepresentations which warranted setting aside the election. After an investigation, the Regional Director issued a Report on Objections and Challenged Ballot in which he sustained the challenge to the one outstanding ballot, overruled Respondent's objections, and recommended that the Union be certified. In overruling Respondent's objections, the Regional Director found, inter alia, that the evidence of objectionable threats presented by Respondent could not be attributed to the Union. The Regional Director also found that the Union had made no material misrepresentations but that, even if it had, the Employer had time to rebut those statements.

Thereafter, Respondent timely filed exceptions to the Report on Objections and Challenged Ballot, alleging that the Regional Director erred in determining that the Union had not engaged in threats and material misrepresentations and contending that the Regional Director's failure to order a hearing on its objections constituted a denial of due process. On September 11, 1981, the Board issued a Decision and Certification of Representative in which it adopted the findings and recommendations of the Regional Director.2

2 The Board disavowed the Regional Director's reliance on the subjective effect on the employees' state of mind in finding that the alleged objectionable conduct did not interfere with the employees' free choice in the election. The Board further noted that the Employer's exceptions did not raise material or substantial issues of fact which would warrant either a reversal of the Regional Director's findings and recommendations, or a

Continued

Page 20

II. THE LABOR ORGANIZATION INVOLVED

International Union of Operating Engineers, Local 819, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

III. THE UNFAIR LABOR PRACTICES

A. The Representation Proceeding

As reflected in its answer to the complaint, and its response to the Notice To Show Cause, Respondent's defense to the alleged violations of Section 8(a)(5) and (1) is that the Board erroneously overruled its objections to conduct affecting the results of the election or, in the alternative, erroneously failed to order a hearing thereon. However, these matters were raised and fully considered by the Board in the underlying representation proceeding and were resolved adversely to Respondent.

It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 3

All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.

On the basis of the entire record, the Board makes the following:

The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act:

All full-time production and maintenance employees including laboratory employees employed by the Employer at its Blum, Texas facility, excluding all clerical, office and professional employees, guards, watchmen and supervisors as defined in the Act.

I. THE BUSINESS OF RESPONDENT

Respondent, a Texas corporation with its principal place of business in Blum, Texas, is engaged in the operation of a lime processing plant. During the past 12-month period, Respondent, in the course and conduct of its business operations at its Blum, Texas, facility, has shipped and sold goods valued in excess of $50,000 to customers within the State of Texas who, in turn, have shipped and sold goods or services valued in excess of $50,000 directly to customers located outside the State of Texas.

We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.

2. The certification On March 6, 1981, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 16, designated the Union as their representative for the purpose of collective bargaining with Respondent.

The Union was certified as the collective-bargaining representative of the employees in said unit on September 11, 1981, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's

Refusal Commencing on or about May 5, 1981, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 15, 1981, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit.

Accordingly, we find that Respondent has, since October 15, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.

IV. THE EFFECT OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com

tive bargaining within the meaning of Section 9(a) of the Act.

5. By refusing on or about October 15, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement.

In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

The Board, upon the basis of the foregoing facts and the entire record, makes the following:

CONCLUSIONS OF LAW 1. Round Rock Lime Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. International Union of Operating Engineers, Local 819, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

3. All full-time production and maintenance employees including laboratory employees employed by the Employer at its Blum, Texas facility, excluding all clerical, office and professional employees, guards, watchmen and supervisors 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.

4. Since September 11, 1981, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Round Rock Lime Company, Blum, Texas, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engineers, Local 819, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit:

pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement.

(b) Post at its Blum, Texas, facility copies of the attached notice marked “Appendix.”4 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.

other terms and conditions of employment with International Union of Operating Engineers, Local 819, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is:

* In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and

A. W. Schlesinger Geriatric Center, Inc. and Service

Employees International Union Local 706, AFL-CIO, Petitioner. Case 23-RC-4974

DECISION ON REVIEW AND ORDER

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN

medicine, administer fractional dosages of medicine. Further, when serving as charge nurses, LVNs are involved in the first step of the Employer's disciplinary procedure by preparing counseling reports regarding rules violations.

The record reveals that the EKG/inhalation/Xray technician has a state certification to perform X-rays, and uses independent judgment when performing that task. Further, the Employer requires that this technician have a high school education and prior experience. The occupational therapy aides are required to have a high school education and 2 years of higher academic training in a related field. Both work under the direction of the occupational therapist, who is licensed.

In including the technicals in the requested service and maintenance unit, the Regional Director found that they possess a substantial community of interest with the service and maintenance employees. Thus, he noted that the LVNs, TNAs, and MAs share supervision and work stations, interact, and perform similar duties in providing routine patient care. He also found that the remainder of the service and maintenance employees support the activities of the nursing stations. Finally, the Regional Director noted that the technicals are hourly paid, receive the same benefits, and share break and lunch areas with service and maintenance employ

On April 29, 1981, the Regional Director for Region 23 issued a Decision and Direction of Election in which he included the Employer's technical employees in the Petitioner's requested unit of service and maintenance employees. Thereafter, the Petitioner filed a request for review, which the Employer opposed, contending that the requested unit limited to service and maintenance employees is appropriate.

On May 27, 1981, the Board granted the Petitioner's request for review and, thereafter, the Employer and the Petitioner filed briefs on review.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings:

The Employer operates a 396-bed nursing home and employs approximately 300 employees. Of that number, there are approximately 39 licensed vocational nurses, 1 EKG/inhalation/X-ray technician, 1 occupational therapist, and 2 occupational therapy aides, all of whom the parties have stipulated to be technical employees.

The Employer has approximately seven nursing stations which are under the supervision of a registered nurse. On each of the Employer's three shifts, most of these stations are staffed by at least one LVN, the most senior of whom acts as charge nurse. As charge nurse, the LVN coordinates the work of the nursing team, which includes medication aides (MAs) and technical nurses aides (TNAs), who are service and maintenance employees. The LVNs lead the activities of their particular nursing unit with respect to nursing services and the maintenance of patients' records. The MAs prepare medications and administer certain dosages. The TNAs are responsible for the physical comfort of the patient and take and record vital signs, pulse, blood pressure, etc. However, the LVNs are higher paid, better educated, and skilled; also, as a function of their license, they perform certain duties which MAs and TNAs cannot: order medicines and administer the first dosage, administer needle injections and intravenous or intramuscular

The Petitioner contends that the technical employees, by virtue of their skills, training, and job functions, possess a distinct community of interest so that the requested service and maintenance unit is appropriate absent their inclusion. We agree.

In Nathan and Miriam Barnert Memorial Hospital Association d/b/a Barnert Memorial Hospital Centerl and Newington Children's Hospital,2 the Board addressed the question of the unit placement of technical employees in the health care industry. In Barnert, the Board recognized, as it had in the industrial setting, 3 the distinct interests possessed by technical employees. Specifically, the Board found appropriate a separate unit of technical employees, noting that their training, skills, education, and job requirements established a community of interest not shared by service and maintenance employees. In Newington, the Board relied on these distinct interests to exclude technicals from a requested service and maintenance unit. The Board also noted that a service and maintenance unit in the health care industry is analogous to a production and maintenance unit in the industrial setting and, as such, constitutes a classic appropriate unit. The sole issue in this case is whether the Petitioner's requested unit is appropriate absent the inclusion of the technical employees. In concluding that it was not, the Regional Director relied on the facts that the technical employees share benefits, certain working conditions, and facilities with service and maintenance employees, as well as interact with those employees in providing routine patient care. Nevertheless, this interaction and these shared benefits do not, in this case, outweigh the diversity of interests which result from the technicals' training, skill, and job functions.

While the LVNs, MAs, and TNAs work closely together and share supervision, the LVNs are higher paid and more skilled. And, although the LVNs perform certain tasks also performed by the MAs and TNAs, no such interchange exists with regard to the other service and maintenance classifications, which constitute a significant portion of the requested unit. Further, LVNs are authorized to perform certain tasks which TNAs and MA cannot, such as administering needle injections and ordering medicine. Such tasks are a function of the LVNs' state licensing which reflects the higher training, higher education, and competency of the LVNs in providing necessary and important nursing care. As the Board noted in Barnert, a separate community of interest is frequently evidenced by licensing, certification, or registration. In addition, LVNs, for the most part, serve as charge nurses and, as such, direct the TNAs and MAs in their jobs and report rules infractions on counseling reports. 4 These duties only add to the diversity of in

terests between the LVNs and service and maintenance employees. Finally, LVNs undergo separate in-house training.

It may well be that a unit combining the Employer's technical and service and maintenance employees, had it been sought by the Petitioner,5 would be appropriate. However, as the Board stated in Newington Children's Hospital, 217 NLRB at 794, “nothing in the policy of the Act can be said to place upon a union the obligation of seeking the largest appropriate unit, or even the most appropriate unit; it is enough that the unit sought is an appropriate unit.” The training, skill, and job functions of the LVNs, as technicals, create a community of interest not shared by service and maintenance employees. We shall therefore exclude the LVNs, as well as the other technicals,6 from the requested service and maintenance unit.

ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to the Regional Director for action consistent herewith.

Page 21

Champion Parts Rebuilders, Inc., Northeast Division

and International Brotherhood of Electrical Workers, Local 1592, AFL-CIO. Case 6-CA14021

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN On September 30, 1981, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding the a three-member panel.

Local 1592, AFL-CIO, herein referred to as the Union, was served on Champion Parts Rebuilders, Inc., Northeast Division, the Respondent herein, by certified mail on November 10, 1980. An amended charge filed on December 22, 1980, by the Union was served on the Respondent on December 31, 1980. On December 29, 1980, a complaint and notice of hearing was issued. In the complaint it was alleged among other things that from on or about October 31, 1980, until November 17, 1980, the Respondent had laid off Ruth Bechtol, Margaret Confer, James Etters, Ester Ferree, Mary Frazier, Ronald Geyer, Sharon Gummo, John Latchet, Betty Merrill, June Perry, and Patricia Yarnell in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein referred to as the Act.

The Respondent filed a timely answer in which it denied that it had engaged in the alleged unfair labor practices.

The hearing was held before me in Lock Haven, Pennsylvania, on August 5, 1981. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been carefully considered.

I. THE BUSINESS OF THE RESPONDENT

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Champion Parts Rebuilders, Inc., Northeast Division, Beech Creek and Mill Hall, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

At all times material herein, the Respondent, an Illinois corporation with offices and places of business in Mill Hall and Beech Creek, Pennsylvania, has been engaged in the remanufacture and nonretail sale of automotive parts. Solely involved in this complaint and notice of hearing are the Respondent's two facilities located in Mill Hall, Pennsylvania, and its Beech Creek, Pennsylvania, facility, herein called the Respondent's facilities. 1

During the 12-month period ending November 30, 1980, in the course and conduct of its business operations the Respondent has sold and shipped from its facilities products, goods, and materials valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania.

The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

1 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

2 In Conclusion of Law 3 the Administrative Law Judge stated that Respondent's layoff of 12 employees violated Sec. 8(a)(1) and (2) of the Act. It is clear from the complaint allegations and the Administrative Law Judge's findings that the layoff violated Sec. 8(a)(3), not Sec. 8(a)(2). We hereby correct this inadvertent error.

3 Member Jenkins would provide interest on the backpay award in accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980).

II. THE LABOR ORGANIZATION INVOLVED

The Union is a labor organization within the meaning of Section 2(5) of the Act.

III. THE UNFAIR LABOR PRACTICES First: At the time during which the events alleged in the complaint occurred, the Respondent was in the process of moving its mechanical department located on Water Street and its electrical department located on Pennsylvania Avenue in Mill Hall, Pennsylvania, to one

LOWELL GOERLICH, Administrative Law Judge: The charge in this proceeding filed on November 10, 1980, by the International Brotherhood of Electrical Workers, 260 NLRB No. 61

Here the Respondent manufactures "automotive parts, starters, alternators, clutch plates, pressure assemblies, waterpumps, carburetors, (and) cellanoids." It employs approximately 300 employees.

In respect to the employees on the rotor and stator line the parties stipulated:

Charles Shreckengast, hire date March 26, 1964. Esther Ferree, November 3, 1958 hire date. Ruth Bechtol, August 20, 1962. Mary Frazier, September 22, 1962. Patricia Yarnell, April 3, 1964. June Perry, July 5, 1973. Carter Kinley, October 18, 1976. Betty Merrill, August 25, 1977. Sharon Gummo, May 23, 1978. John Latchet, July 24, 1978. James Etters, July 17, 1978. Ronald Geyer, August 6, 1980. Margaret Confer, August 28, 1980. Further stipulated that all of these employees were laid off on ... October 30, 1980 with their actual first day not working on October 31, 1980 with the following exceptions: Carter Kinley although laid off on October 30 was immediately recalled, worked October 31, 1980 and did not miss any work. Charles Shreckengast was not laid off at all. All the other employees were laid off and returned to work on November 14, 1980 with one more final exception that being Mary Frazier who was laid off and did not work October 31, 1980 and was recalled on November 5, 1980 after having worked two-and-a-half days, but was . . . recalled on October 5, 1980. She worked two-and-a-half days until November 7, 1980. She was recalled permanently on November 11, 1980.

facility in Beech Creek, Pennsylvania. In order to facilitate the transfer of the Mill Hall operations to Beech Creek the Union (with whom the Respondent had a subsisting contract) and the Respondent established "Guidelines for Move to Beech Creek Facility” in a written understanding dated February 18, 1980. During the transition period two new job classifications were utilized (task force labor grade 3 and maintenance helper) to perform the tasks of relocation such as the dismantling and reassembly of the lines in the Beech Creek facility. These jobs were open to bid.

The move started some time in early March 1980. Thereafter in June 1980 the Union and the Respondent verbally agreed to combine the above-mentioned job classifications into one classification, maintenance helper. The Union also allowed the Company more leeway in allowing production people to work in the move. Production employees were “allowed to paint the machinery on the lines and also work and help out in the stockroom to get the stockroom back together in putting up the fence.” Prior to completion of the transfer a strike was engaged in on January 21, 1981, which is still pending.

During the transition period, the Respondent, as a line was discontinued, utilized the employees made idle thereby on other operating production lines and elsewhere in the plants, the idea being that a backlog of parts would be produced on the remaining operating lines which could be drawn from when the lines were down for transfer to Beech Creek. At the time the layoffs alleged in the complaint occurred the entire mechanical division had been transferred to Beech Creek without any layoffs of employees. According to Michael Smith, president of the Union, the Respondent had complied with its agreement.

On October 28, 1980, the Respondent was observed “using production employees to assemble a production line which was the rotor and stator department in the Beech Street plant.” At the time the rotor and stator line had been dismantled and was being reassembled in the Beech Street facility. The 13 employees who had been assigned to the line had for the most part been absorbed in the starter lines at the Mill Hall plant. However, according to David D'Escarole, rotor and stator line foreman, three employees were sent to Beech Creek and two employees remained on the rotor and stator line where one, Sharon Gummo, “maintained her job on the rotor and stator line and she supported the delivery line and listing" and the other, Carter Kinley, "was a lathe operator in polishing."

The three employees who were sent to the Beech Creek plant were to have been assigned to unpacking and "painting their equipment,” but, according to D'Escarole, they were needed in shipping. There they worked for 5 days. When they were no longer needed in shipping they were assigned to unpacking and painting for 21/2 days at which time, according to D'Escarole, two individuals were assigned to "setting up the pieces of the conveyor."2

When President Smith observed the three rotor and stator line employees, Carter Kinely, John Latchet, and Mary Frazier, on October 28, 1980, performing what he considered to be maintenance helpers' work he contacted Union Vice President Harry Longo and asked him to talk to Donald Aikey, supervisor of the maintenance helpers. Longo made the contact and told Aikey that "he was working people out of their classifications. He had production people doing maintenance helpers work.” Aikey “agreed" with Longo. He said he was "wrong and would correct the matter."3 About an hour later Aikey, Mechanical Superintendent Bruce Williams, and Longo approached Smith. Smith asked whether "these guys” could be switched around, “move the two maintenance helpers on the assembling of the line, and move the three production workers on the painting.” Aikey said, “I see no problems with it.” Smith indicated that would resolve the matter; however, Williams intervened and said, “I'm tired of kissing you guys [expletive] all the time . . . I'm tired of moving these people around to suit you guys. If your don't allow me to operate this assembly line the way I want to, I will lay them off . . . you either do it my way or I'll lay all the damn people off.”4 Smith responded that he would like time to discuss the matter with the union committee. Williams allowed him until the next morning. 5

The next morning Smith and Longo met with Williams. Smith offered Williams a compromise. He stated, “[W]hy don't you just lay off the three individuals who you currently don't have work for in the shipping department.” Williams answered, “[Y]ou'll have to either do it my way or I'll lay them off.” At 2 o'clock on the following day, October 30, Williams notified Smith that all employees on the rotor and stator line would be "laid off effective 3:30 that day.” Of the rotor and stator line employees, according to Smith, Schreckengast was retained because the Respondent needed him to "cut salvage rotors” and Carter Kinley was not laid off “because an employee who was a machine operator was injured on the job and they needed him to fill in for that individual.” The remainder were laid off. All returned to work by November 14, 1980, to their original jobs.

On November 19, 1980, at the monthly labor meeting, Smith asked Plant Manager James B. Cameron why the employees in the rotor and stator line were laid off. Cameron stated that production costs were too high and he could not afford to keep them. Smith replied that William had given "an ultimatum that either [the Union) do it his way or they're all going to get laid off.” Cameron replied, “[1]f that's what Bruce says that's why they were laid off.” 6

Cameron testified as to what Williams told him of the incident: “I remember that he told me that there was a dispute on how the people were being utilized. Other than that I can't remember exactly what the exact conversation was. Whatever it was I remember something about painting in the conversation, and it involved four employees of th rotor and stator department.” Cameron testified that he had three options. He “could have gone with a temporary or permanent lay off, which could have caused displacement of personnel.” Because of bumping rights Cameron said the layoff route was not “feasible.” Cameron could have "absorbed" the four people in another department which was already “burdened.” According to Cameron, “the most simple solution was to exercise the contract right of the temporary lay off . . . It was the quickest, easiest and simpl[est] solution at the time to solve the problem.” Cameron testified that this decision was not in retaliation for the Union's lodging a complaint. “Ultimately,” Cameron stated, he would have ended up laying people off. Around 200 employees were assigned to the starter production lines.

Cameron claimed that the unit costs on the starter production lines were going up but the proof in this respect was vague and unclear. Cameron also testified that had he given the three employees a temporary layoff he would have been obligated to follow seniority; nevertheless, in the layoff Cameron retained two employees who did not hold senior seniority on the rotor and stator line. Cameron testified that he chose to lay off the entire de

partment instead of part of it “[b]ecause the other people had already been burdening the other lines and it was the easiest solution at the time to solve the problem."

The work on the rotor and stator line which was being performed by the three rotor and stator line employees was finished by the maintenance helpers. After the rotor and stator line employees were laid off Foreman Calvin Allen complained that he “could no longer get out production."

The then existing contract provided that “The Company shall endeavor, where possible, to notify the Union forty-eight (48) hours prior to a layoff involving more than 10 employees.” (Jt. Exh. 1, p. 6.)

Cameron testified that he “would say” that there was a "hostile” relationship between the Respondent and the Union.

Second: The General Counsel has established a prima facie case by offering evidence that (1) there was a hostile relationship between the Respondent and the Union; (2) the Respondent laid off rotor and stator line employees following a threat that it would layoff such employees if the Union insisted on pressing a complaint; (3) the Respondent did not follow the contractual procedure in informing the Union of the forthcoming layoffs; (4) the Respondent refused the Union's compromise offer of the layoff of the three employees involved in the complaint and insisted on laying off all rotor and stator line employees who were then being employed on other production lines; and (5) the Respondent refused to switch the rotor and stator line employees to painting and the maintenance employees who were painting to the assembly line.

The Respondent insists that the layoffs were not motivated by a desire to retaliate or punish the Union for lodging a complaint but resulted from the burdening of the other lines by the retention of the rotor and stator line employees. Other than the self-serving declarations of Cameron there was no credible proof that such a circumstance existed. In fact there is no credible proof that the Respondent had intended to lay off any of the rotor and stator line employees assigned to other lines until the incident of October 28, 1980. Indeed, the Respondent's intent to punish seems apparent in its refusal to compromise and its insistence on laying off all the rotor and stator line employees rather than the three assigned for conveyor assembly work. Moreover, the credited evidence is that there was work available for the rotor and stator line employees. Thus, the Respondent has not shown that the Respondent would have laid off the employees even in the absence of the Union's complaint. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1981). Hence, the credited record supports a finding that the Respondent laid off rotor and stator line employees as a punishment for the Union's pressing of a legimate complaint and thus the Respondent violated Section 8(a)(3) and (1) of the Act.

1. The Union is a labor organization within the meaning of Section 2(5) of the Act.

2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act for jurisdiction to be exercised herein.

3. By laying off Ruth Bechtol, Esther Ferree, Mary Frazier, Patricia Yarnell, June Perry, Carter Kinley, Betty Merrill, Sharon Gummo, John Latchet, James Etters, Ronald Geyer, and Margaret Confer during the period from October 31 to November 14, 1980, the Respondent violated Section 8(a)(1) and (2) of the Act.

4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

of earnings they may have suffered as the result of their unlawful layoff in the manner set forth in the section of this Decision entitled “The Remedy."

(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order.

(c) Post at its Beech Creek, Pennsylvania, plant copies of the attached notice marked “Appendix.”9 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.

It having been found that the Respondent engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.

Since it has been found that the Respondent violated Section 8(a)(3) of the Act by laying off Esther Ferree, Ruth Bechtol, Mary Frazier, Patricia Yarnell, June Perry, Carter Kinley, Betty Merrill, Sharon Gummo, John Latchet, James Etters, Ronald Geyer, and Margaret Confer during the period October 30 to November 14, 1980, it is recommended that the Respondent make said employees whole for any loss of earnings they may have suffered as a result of such layoffs with interest thereon to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 117 (1977).?

Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

The Respondent, Champion Parts Rebuilders, Inc., Northeast Division, Beech Creek, Pennsylvania, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Unlawfully laying off employees in retaliation or punishment for the Union's pressing legitimate complaints in violation of Section 8(a)(1) and (3) of the Act.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which will effectuate the policies of the Act:

(a) Make whole Esther Ferree, Ruth Bechtol, Mary Frazier, Patricia Yarnell, June Perry, Carter Kinley, Betty Merrill, Sharon Gummo, John Latchet, James Etters, Ronald Geyer, and Margaret Confer for any loss

WE WILL NOT unlawfully lay off our employees in retaliation or punishment for the International Brotherhood of Electrical Workers, Local 1592, AFL-CIO's pressing legitimate complaints in violation of Section 8(a)(1) and (3) of the Act.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act.

WE WILL make whole Esther Ferree, Ruth Bechtol, Mary Frazier, Patricia Yarnell, June Perry, Carter Kinley, Betty Merrill, Sharon Gummo, John Latchet, James Etters, Ronald Geyer, and Margaret Confer for losses they may have suffered as a result of their unlawful layoff between October 30 and November 14, 1980, plus interest.

CHAMPION PARTS REBUILDERS, NORTHEAST DIVISION

Balch Pontiac Buick, Inc. and United Food and

Commercial Workers, Local No. 919, AFL- CIO. Case 39-CA-17 (formerly 1-CA-16516)

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN

On June 26, 1981, Administrative Law. Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Balch Pontiac Buick, Inc., Warehouse Point, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER ZIMMERMAN, concurring in part, dissenting in part:

I join in my colleagues' adoption of the Administrative Law Judge's Decision, except as to the finding that Respondent violated Section 8(a)(3) by laying off eight of its salesmen. I agree with the Administrative Law Judge, and my colleagues in the majority, that the General Counsel made out a prima facie case that Respondent laid off eight of its salesmen for prohibited reasons. Contrary to my colleagues, however, I would find that Respondent met its burden under Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), of demonstrating that the layoffs would have occurred in the absence of the improper motivation.

As the Administrative Law Judge found, Respondent was in dire financial straits at the time of the layoffs, which it claims motivated the layoffs. To refute Respondent's uncontradicted evidence of economic decline, the Administrative Law Judge speculated about the reasons that Respondent had not previously laid off salesmen for economic reasons, and assumed that Respondent had previously suffered periods of economic decline during its 40 years in business. The Administrative Law Judge also relied on the small costs incurred by Respondent in keeping additional salesmen on the payroll, since they are paid only the minimum wage for weeks in which their commissions do not exceed the minimum.

Finally, the Administrative Law Judge relied on Respondent's rejecting the advice of its company representative to lay off salesmen in order of production and competency, rather than by seniority. In doing so, he rejected Respondent's proffered testimony that such criteria were infeasible for determining the salesmen to be laid off.

I find this rationale unconvincing, particularly in light of several facts in the record. First, the level of Respondent's economic distress was severe. Second, as of April 1979, Respondent employed 30 salesmen; by the time of the layoffs it had already reduced its sales force to 10 with no allegation that such reductions were motivated by anything but

Page 22

economic considerations. Third, numerous nonunit employees were also laid off as part of Respondent's retrenchment efforts.

In light of this uncontradicted evidence, I would find that Respondent established that it would have laid off the alleged discriminatees even in the absence of their having engaged in protected concerted activity. As such, I would dismiss the complaint allegations relating to the salesmen's layoffs.

Labor Relations Act, as amended (herein called the Act), was heard at Hartford, Connecticut, on August 25-27, 1980, pursuant to due notice. This principal issue raised by the pleadings is whether Balch Pontiac Buick, Inc. (herein called the Company or Respondent)2 in laying off eight of its salesmen on August 15, 1979, violated Section 8(a)(3) and (1) of the Act. There are also several allegations of independent violations of Section 8(a)(1) of the Act which are denied by the Respondent.

Subsequent to the hearing, and within the time allowed, helpful, post-hearing briefs were filed by counsel for the General Counsel and by counsel for the Respondent, which have been duly considered.

Upon the entire record in the case, including my observation of the demeanor of the witnesses, 3 I make the following:

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

WE WILL NOT discourage membership in United Food and Commercial Workers, Local No. 919, AFL-CIO, or any other labor organization, by unlawfully laying off any employees or discriminating against them in any other manner with respect to their hire or tenure of employment.

WE WILL NOT coercively interrogate employees concerning their union membership or activities.

WE WILL NOT threaten employees with closure of our automobile dealership, or with other reprisals, should they join or assist the above-named Union or select it as their collective-bargaining representative.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, as amended.

WE WILL, to the extent that we have not already done so, offer Gerald Allen, Jesse Ansel, Hannah Dresser, Thomas Druzdis, Donald Fitzgerald, Michael Kennedy, Lloyd Moraven, and Peter Peterson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and we will restore their seniority and other rights and privileges.

WE WILL pay the above-named individuals any backpay they may have lost as a consequence of our having unlawfully laid them off, plus interest.

It is alleged in the complaint, admitted in the answer, and I find that, at all times material, the Respondent has been engaged at Warehouse Point, Connecticut, in the operation of an automobile dealership. In an annual period, the Respondent, in the course and conduct of its business, causes large quantities of automobiles used by it in the sale of automobiles to be purchased and transported in interstate commerce from and through States of the United States other than the State of Connecticut, and annually sells automobiles and related products and services valued in excess of $500,000, and receives products valued in excess of $50,000, from points directly outside the State of Connecticut.

Based on the foregoing, I find that, at all times material, the Respondent is, and has been, an employer engaged in commerce within the meaning of the Act.

II. THE LABOR ORGANIZATION INVOLVED

It is alleged in the complaint, but denied by the Respondent, that the Charging Party4 is a labor organization within the meaning of Section 2(5) of the Act. The Respondent's denial is apparently based on its contention that the local union is under a trusteeship of the International Union. However, this was not definitely established by the evidence, and, even assuming it to be the fact, such would not necessarily preclude a finding that the local satisfied the requirements of Section 2(5) of the Act. Thus, the evidence establishes that the local union exists for the purpose, in whole or in part, of dealing with employers on behalf of employees respecting wages, hours, and working conditions, and that it assists

BALCH PONTIAC BUICK, INC.

ROBERT COHN, Administrative Law Judge: This proceeding, held pursuant to Section 10(b) of the National

in adjusting employees grievances and negotiating collective-bargaining contracts.

Based on the foregoing, I find that at all times material, the Charging Party is a labor organization within the meaning of the Act.

On or about June 29, 1979, the Union filed a petition with the Board seeking to represent the salesmen as their collective bargaining representative at the Respondent. An election was scheduled and held on August 15, 1979, which the Union won. However, it is alleged that, between such dates, several of the managers (supervisors) of the Respondent interrogated and threatened some of the salesmen respecting their union activities. We now turn to an examination of the evidence respecting such allegations.

III. THE ALLEGED UNFAIR LABOR PRACTICES

A. Background As previously noted, the Respondent owns and operates an automobile delearship selling at retail new and used automobiles, both American-made and imports. It is a family-owned company, having been in business for many years prior to the events giving rise to the issues in this case. Its founder and owner is one, Joseph A. Balch, Sr., who, with his wife and sons, constitute the majority stockholders in the business. The sons, James Balch and J. D. Balch (referred to in the record as Jody) also participated in the management and day-to-day operations of the dealership. Indeed, approximately 5 years prior to the spring of 1979, Jody Balch took over the chief executive position of the dealership from his father, and directed its operations.

Joseph A. Balch, Sr. (herein referred to as Balch, Sr.), testified that the dealership, generally speaking, had been successful, but started to lose money around 1977. This was apparently thought to be due, at least in part, to the rather grandiose plan of Jody Balch who was, as noted, at the helm of the business at that time. Jody Balch had plans for the expansion of the business, which consisted, among other things, of building a new showroom, body shop, and increasing manifold the amount of inventory kept on hand by the Respondent. Unfortunately, this came at a time when there was not a commensurate increase in the amount of sales to warrant such expenditures, and the profitability of the dealership, accordingly, suffered.

In the spring of 1979, adding to the financial woes of the Respondent, described above, came a gasoline shortage in Connecticut which resulted in long lines of automobiles at the gasoline stations. This resulted rather quickly in the dropoff of the sales of large Americanmade automobiles (gas guzzlers) which, of course, further added to the financial problems of the Respondent, and which was, apparently, a major factor in causing the resignation of Jody Balch as chief executive officer of the Respondent in April 1979. His father, Balch, Sr., returned from retirement to resume control of the Respondent's operations. At that time, the Respondent employed approximately 30 salesmen; however, when Jody Balch left, approximately 10 of these salesmen left with him so that, in the late spring of 1979, the Respondent employed approximately 20 salesmen. It was at this time that some of the salesmen contacted the Charging Union for the purpose of assisting them in organizing a union among their number at the Respondent's operations.5

B. Alleged Interference, Restraint, and Coercion

1. Harry Peterson Peterson was a sales representative (salesman) for the Company, having been employed for approximately 1 year and 8 months prior to the summer of 1979. Approximately 2 weeks prior to the Board election on August 15, Peterson was in the office of Bob Keane, manager of the Respondent's finance and insurance office. Peterson testified that, while he was in Keane's office performing some paperwork on one of his sales, Keane mentioned that he hoped the Union would not be elected because he felt that Balch, Sr., would close the doors.

A few days before the election, Peterson was in the office of Ken Shover, manager of the new-car department. During a conversation with Shover, the latter appeared worried and said that he "hope[d] that the union doesn't get in because the doors will be locked here.” At or about the same time, Peterson had a conversation with James Pinto, general manager of the Respondent, in the service department. According to Peterson's testimony, Pinto asked what the fellows were doing by trying to get a union in the facility, and Peterson replied that they were just trying to get what was rightfully theirs.

With respect to the asserted conversation between Peterson and Keane, above-related, I find, contrary to the contentions of the General Counsel, that no violation of Section 8(a)(1) of the Act occurred. Assuming the statement of Keane to Peterson to be as related by Peterson.6 I consider the statement to to be a mere matter of opinion expressed by Keane of what might happen should the Union prevail in the Board election. As such, it is protected by Section 8(c) of the Act. Accordingly, I will recommend that the complaint, to that extent, be dismissed.

The situation is different with respect to the PetersonShover conversation since Shover did not express himself in terms of opinion, but rather indicated a certainty that the facility would be closed; i.e., the doors locked, if the Union prevailed.?

6 Keane denied he had any conversation with Peterson concerning the Union.

? The foregoing findings are based on the testimony of Peterson who impressed me as an honest and candid witness, and whose testimony I credit over that of Shover. Although the record indicated that during the late spring and summer of 1979, there was substantial conversation about the Union among the salesmen and some of their supervisors, including Shover, both during and after working hours, Shover on cross-examination indicated no knowledge of the organizational drive and testified that he did not speak to anyone about the Union at all. I find this testimony to be rather incredible.

5 The record is not all together clear as to which among the salesmen were the leaders of the union movement. However, Jesse Ansel testified without contradiction that he was one of the instigators of the Union.

General Manager Pinto testified that he had a conversation with Peterson along about the time that Peterson asserted that Pinto interrogated him concerning union activities among the salesmen. However, Pinto's version of the conversation is somewhat different: "I said to him, Harry, what the hell's wrong? What can we do to straighten this out? He said I'll let you know.” Whichever version one chooses to believe, I believe that a violation of Section 8(a)(1) of the Act resulted. I believe it to be a fair inference that both men were aware of the subject matter of the conversation; i.e., the Union; that Pinto was inquiring into the nature and extent of such activities, and what, if anything, management could do to avert the employees from their intended goals. This, without any legitimate purpose or assurances against recriminations. 8

Based on all of the foregoing, I find that, on this occasion, Pinto coercively interrogated Peterson concerning the salesmen's union activities, and therefore violated Section 8(a)(1) of the Act.

About 2 weeks before the Board election, Druzdis, a salesman, had a conversation with James Balch, one of the sons of Balch, Sr., in the latter's office. During the conversation, Balch told Druzdis that if the Union were voted in, his father would close the business, and that he and his mother would move to Florida. Balch denied having the conversations with Druzdis. However, the latter impressed me as an honest and forthright witness whom I doubt would make up the asserted conversation out of the whole cloth. Moreover, the record shows that Balch, Sr., did, in fact, take his vacations in Florida, and presumably stayed there much of the time while Jody Balch was in charge of the firm. Accordingly, it would not seem unlikely that James Balch would assume that his father and mother might very well move there should adverse circumstances, such as having to deal with a union of his salesmen to which he was strongly opposed, come about. Accordingly, I find the foregoing threat by James Balch to constitute a violation of Section 8(a)(1) of the Act.

3. Michael Kennedy Kennedy, a salesman for the Respondent, testified that during the several weeks before the election, he had conversations concerning the Union with practically every manager of the Respondent. Kennedy testified that, in fact, James Balch was the first to inform him about the

Union; that at closing time, 1 or 2 weeks before the election, Balch called Kennedy into his office and told him that he (Balch) wanted to make sure that Kennedy went to the union meeting that night. When the latter said he did not know anything about it, Balch responded, “Well, just find out what it's all about." About a week later, while they were walking down a hallway, James Balch told Kennedy that “If the salesmen voted in the Union, his father would shut the doors."

Kennedy testified that the had several conversations with General Manager Pinto, who told him on several occasions that Balch, Sr., would close the doors or that the salesmen would be "out of a job” if the Union were voted in.

Kennedy testified that, at or about this time, he had a conversation with Manager Shover in the latter's office; that Shover brought up subject matter of the Union and stated that, if the salesmen voted the Union in, they would be out of a job.

Kennedy also testified with respect to a conversation with Finance Manager Bob Keane; that the latter brought up the Union and said that the salesmen should be serious because, if they vote the Union in, Balch would lay everybody off and sell the cars himself. Finally, Kennedy had a conversation with his supervisor, Tino Miano, who was head of the import department, about 2 or 3 weeks before the election. Miano asked Kennedy what was going on with the Union, and said that, if the salesmen voted the Union in, they would be out of a job.

The credibility issue here has been a difficult one. Kennedy was not as impressive a witness as were Peterson and Druzdis. On the other hand, I do not believe that he fabricated the above conversations. At the same time, I am unable to fully credit the denials of the managers for several reasons. (1) they had an obvious interest in the outcome of the proceedings; (2) it is highly unlikely they were unaware of Balch, Sr.'s antipathy toward the unionization of the salesmen and passed this information on to the employees for what they considered their own good; and (3) the managers were probably fearful of losing their own jobs should Balch, in fact, close the dealership. Accordingly, on balance, I credit the testimony of Kennedy, and find that the interrogations and threats made by the several managers as set forth above, constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act.

C. The Alleged Discriminatory Layoffs On the afternoon of August 15, 1979, a few hours after the Board had conducted the representation election among the salesman (which the Union won), Balch, Sr., called all of the 10 salesmen together for a meeting and announced the layoff of 8 of them. 10

Michael Kennedy testified that, at that meeting, Balch, Sr., stated that the reason for the layoff was that “he had lost $40,000 or something in the last month and that he could not afford to have us salesmen on the floor."

ther reflects that Respondent did not hire or replace the laid-off salesmen until approximately February 1980, at which time one of the two salesmen retained by the Respondent left the Respondent's employment. At that time, Respondent commenced recalling the laid-off salesmen in order of seniority. It is undisputed, with two exceptions, that, thereafter, the Respondent offered to return all of the laid-off salesmen to their former positions. The two exceptions were: (1) Hannah Dresser, whom the Respondent could not locate; and (2) Michael Kennedy, whom the Respondent contended was offered his job back as were the other salesmen. However, Kennedy's testimony on this point is somewhat ambiguous, as follows:

Q. Okay. Were you offered your job back? A. I really don't know.

Q. You don't know if you were offered your job back.

A. I think I was.
Q. You think you were?

Balch, Sr., testified that when he took over the control of the dealership from his son in April 1979, the dealership was in dire financial straits, and Balch, Sr., almost immediately made the determination to reorganize the dealership so as to regain its profitability. In so doing, he testified that he sought the help of a Mr. Gray and a Mr. Murray, who were representatives of General Motors Corporation, both of whom testified in the instant proceedings. Gray testified that for the number of automobiles (new and used) sold per month, Respondent's fixed and variable expenses were considerably "out of line.” In a letter to the Respondent dated March 30, 1979, Gray pointed out to the Respondent's officials its total variable expense—which included salesman compensation—was "well above average”; that Respondent's total personnel count was considerably above average for the amount of new cars sold; that the mount spent by Respondent to recondition used cards was too high by $50 per unit; that Respondent's interest expense was the highest in the zone; and that the parts inventory was also very much out of line. Gray ended the letter by suggesting that if Respondent “reduce[d] employees [Respondent] will automatically reduce break-even.” Nevertheless, in his testimony, Gray emphasized that salesmen's commissions were not an overhead expense (such as the wages of service and parts employees) but were variable expenses which do not come about "unless you sell something."

Chauncey Murray, who worked in the same office with Gray, testified that the primary causes of Respondent's economic difficulties were “lack of sales and organization”; that it was his opinion that Respondent “had some good sales people there and they had some poor, and it was a matter of reorganizing and getting the better of the people."

Balch, Sr., testified that he was aware in May 1979, that the sales force was attempting to organize a union; that he started thinking at that time about laying off some of the sales force as a part of his decision to reorganize the dealership; that he called a meeting of employees in May for the purpose of attempting to ascertain the problems of the employees and to resolve them; however, he acknowledged that he did not mention any layoff of the sales force in the May meeting.

Balch, Sr., testified that the final decision respecting the layoff of the salesmen was made approximately 2 or 3 weeks before the NLRB election and this was memorialized by a statement which Balch, Sr., and General Manager Pinto made before a notary public dated August 13, 1979. Such statement recited that the abovenamed eight salesmen were to be "temporarily laid off for lack of work”; that such layoff was based on seniority of employment and that two sales personnel (James Dimeo and Walter Martin) were to be retained on the basis of seniority.

The record reflects that during the late spring and summer of 1979, the Respondent either laid off or did not replace employees in the service and parts departments of the dealership so as to assist in reducing the fixed overhead expenses of the Respondent in the face of the reduced sales and mounting expenses which the Respondent was experiencing at the time. The record fur

Q. (By Mr. Fitzgerald, resuming) All right. So you don't know whether—you think you were offered your job back?

A. Well, I had a conversation with Mr. Balch and Mr. Pinto. And Jesse was there and the secretary, I guess. He called me in one day and he wanted to talk to me.

Q. When was one day?

Q. (By Mr. Fitzgerald, resuming) Okay.

A. As I was saying, I'm not sure exactly what day it was.

Q. Well, can you give us a month?

A. Oh, it was just-say, eight weeks ago, six or eight weeks ago.

Q. Okay.

A. Somewhere in that area. He called me in and he explained to me how cars are being sold on the West Coast and on the East Coast and what was happening out on the West Coast and everything that happens on the West Coast—it's always—later on it comes to the East Coast. And then he started telling me about how much money I could make and how much money did I want to make. And he was going to start a new system with me working with a woman and we'd work together. Or get one pay or something. I wasn't really sure. I had the-I was working at the time. I was really pressed for time. You know, I got there about nine and I had to be at work at twelve. So when I left I really didn't know. He said he'd get back to me, I guess. I had to go. I came back on a couple times after that to find out if I was going to get my job back or what was going on. And I never got an answer. 11

Analysis and Concluding Findings In a recent case, 12 the Board set forth the following causation test for resolving “all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.” The Board stated that it would "require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct."13 Applying the foregoing test to the facts in the case at bar, I am convinced, and therefore find, the General Counsel made a prima facie showing of discrimination under Section 8(a)(3) of the Act, and that the Employer failed to satisfy its burden of showing that the layoff of the salesmen on August 15 would have occurred even in the absence of the protected conduct.

Thus, the General Counsel's evidence shows that in late spring and summer of 1979, the salesmen of the Respondent engaged in activities protected by Section 7 of the Act; that the Respondent was strongly opposed to such conduct on the part of the salesmen, as shown by threats of its agents as well as the letter of its president to the salesmen shortly before the NLRB election; and that the alleged discrimination occurred immediately following the engagement by the salesmen in the protected activity. The defense of the Respondent rests solely upon its contention that the layoff was a sole consequence of its dire financial condition at the time, and not because of any protected activities by the salesmen.

There can be little question that the Respondent established by substantial evidence the fact that, during the critical period, due principally to poor management practices plus outside factors beyond the Respondent's control, the Respondent was, indeed, in financial straits which necessitated retrenchment activities on its part. The record shows that the Respondent, during the critical period, did, in fact, take measures to cut down on its expenses, such as interest charges, advertising, etc., including layoffs or failure to fill jobs of employees who had been discharged or quit in other departments. However, the critical question, in my view, is whether the Respondent would have laid off 80 percent of its salesmen had they not engaged in protected activities. For the following reasons, I find that the Respondent did not sustain its burden on this issue:

In the first place, the layoff of the salesmen represented a departure from the past practices of the Respondent. That is to say, the record is unrefuted that, in the past, salesmen had been laid off only for their production deficiencies and not because of any financial losses by the Respondent. To be sure, Respondent argues that, in the past, it had never been in such dire financial straits as

it found itself during the critical period herein. Nevertheless, the Respondent had been in business over 40 years and one might expect that over such a period of time, the dealership would have undergone periods of prosperity and depression. Yet, it presented no evidence to refute the General Counsel's. This leads us to explore the probable reasons for the Respondent's failure in the past to lay off salesmen during the time of financial losses. Such reasons would appear to be based primarily on the differences in nature of the employment of salesmen as distinguished from employees in other departments. That is to say, the wages and salaries of these other employees are primarily hourly and represent a fixed cost, which, for accounting purposes, are included in the fixed overhead of the Respondent. On the other hand, the salesmen are paid primarily by a commission based on number of sales, and they are paid only a minimum wage for those weeks when their commissions do not total the minimum wage. It is this reason that salemen's commissions are not included as an overhead expense but are considered variable expenses for accounting purposes. 14

It is for the foregoing reasons that Respondent's advisors, including the General Motors representatives and its accountants, made no suggestion or recommendation that salesmen be laid off-certainly not in the number reflected by the record. Thus, it may be said that the Respondent's action in laying off the salesmen was at least not consonant with past practices or pursuant to any recommendations by its suppliers, bankers, or other advisors. Indeed, it would seem that when one considers the primary purpose of an automobile agency, i.e., to sell automobiles, the layoff of 80 percent of its sales force is not consonant with the act of a prudent businessman which Balch, Sr., appeared to be.

Moreover, Respondent's method of choosing the salesmen to be laid off, i.e., by seniority rather than competency and efficiency, was contrary to the recommendation of a General Motors' representative who suggested to the Respondent that “they should investigate the sales people .

... and reorganize and keep the better of the sales people. 15 General Manager Pinto's testimony to the effect that the foregoing suggestion was not feasible, is not convincing. Certainly, the general manager, in conjunction with his lower level supervisors, has a pretty accurate judgment as to the competency and productivity of the salesmen.

For all of the foregoing reasons, I conclude, and therefore find, that the layoffs of the salesmen on August 15, 1979, was discriminatory in violation of Section 8(a)(3) of the Act, and I will recommend an appropriate remedy. 16

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1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By unlawfully terminating the eight employees named above on August 15, 1979, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.

4. By the conduct set forth in paragraph 3, above, and by unlawfully threatening and interrogating its employees concerning their union activities, as set forth above, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights protected by Section 7 of the Act, in violation of Section 8(a)(1) of the Act.

5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.

It having been found that the Respondent unlawfully laid off the eight employees named hereinabove on August 15, 1979, in violation of Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent, to the extent that it has not already done so, offer the said employees immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the Respondent's unlawful acts, by payment to them of a sum of money equal to the amount they would have earned from the date of their unlawful layoffs to the date of an offer of reinstatement, less net earnings during such period, with interest thereon, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).17

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

The Respondent Balch Pontiac Buick, Inc., Warehouse Point, Connecticut, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discouraging membership in United Food and Commercial Workers, Local No. 919, AFL-CIO, or any other labor organization, by laying off or otherwise discriminating against employees because of their union membership or activities.

(b) Coercively interrogating employees concerning thier union membership or activities.

(c) Threatening employees with closure of Respondent's automobile dealership, or with other reprisals, should they join or assist the above-named Union or select it as their collective-bargaining representative.

(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities.

2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act:

(a) To the extent that it has not already done so, offer Gerald Allen, Jesse Ansel, Hannah Dresser, Thomas Druzdis, Donald Fitzgerald, Michael Kennedy, Lloyd Moraven, and Peter Peterson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled, “The Remedy."

(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary and relevant to analyze and compute the amount of backpay due under this recommended Order.

(c) Post at its Warehouse Point, Connecticut, facility copies of the attached notice marked “Appendix.”19 Copies of said notice, on forms provided by the Officerin-Charge for Subregion 39, after being duly signed by Company's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material.

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ticipation therein otherwise eligible employees who become subject to the terms of a collective-bargaining agreement.

(b) Post at its plant located in DuQuoin, Illinois, copies of the attached notice marked “Appendix."8 Copies of said notice, on forms provided by the Regional Director

for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.

Union Packing Co. and United Food and Commer

cial Workers, AFL-CIO, Local 216A. Case 17CA-9655

BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER

On August 24, 1981, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

the National Labor Relations Board on June 22, 1980, and which is based on a charge originally filed by United Food and Commercial Workers, AFL-CIO, Local 216A (herein called the Union), on May 12 and amended on June 18. The complaint alleges that Union Packing Co. (herein called Respondent) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act).

The issues presented are whether or not Respondent discharged two employees for their activities on behalf of the Union, assigned them and others to more onerous tasks because of such activities, otherwise interfered with employee rights by threatening them with reprisals, discharge, and more arduous jobs, and promised them benefits to coerce or dissuade them from unionizing.

Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following:

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Union Packing Co., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

Substitute the following for paragraphs 1(c):

"(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.”

Respondent admits it is a Nebraska corporation engaged in the meat packing business and having a slaughterhouse located in Omaha. It further admits that during the past year, in the course and conduct of its business, it has purchased and received goods and services valued in excess of $50,000 from suppliers outside Nebraska. Accordingly it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

II. THE LABOR ORGANIZATION INVOLVED

Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act.

III. THE ALLEGED UNFAIR LABOR PRACTICES

1 The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

A. Background and Participants Respondent operates a beef slaughterhouse and packing facility in Omaha. The facility is reasonably modern and, typical of slaughterhouses, operates in a production line manner. Animals are killed, hooked by a hind leg to a moving chain, “stuck” in the blood pit to drain blood from the carotid artery, and then chain-carried through various work stations. Typically each work station involves a single employee who makes a single cut with either a straight or an air knife. An exception are those individuals who operate the hide pullers. They are required to make several cuts and to attach the hide to the device to remove it from the carcass. In addition, the organs of the animal's alimentary tract are graded by

JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me in Omaha, Nebraska, on January 13-15 and February 24, 1981, pursuant to a complaint issued by the Regional Director for Region 17 of

1 All dates herein refer to 1980 unless otherwise indicated.

Brown, he even wore a sticker on his helmet for a short time I day. Furthermore, the record shows that 127 employees voted for the Union in the April election.

C. Alleged Interference, Restraint, and Coercion The complaint alleges that Respondent, through various supervisors and/or agents, engaged in a variety of independent violations of Section 8(a)(1) of the Act. The principal actors in this alleged misconduct are Plant Manager Jerry Brown, Assistant Kill Floor Foreman Guido Haase, and salesman Johnnie Patterson. For organizational purposes, I shall deal with the allegations against the supposed wrongdoers.

United States Department of Agriculture inspectors and the edible ones are sent to the offal department while the inedible ones are sent to the rendering department. All of these operations occur on the kill floor. In addition to the departments previously mentioned, there are also the hide cellar and the cooler department.

The record is not clear how many employees Respondent actually employs each day, but it is at least several hundred. The plant manager is Jerry Brown. The kill floor foreman is Verlin “Alabama" Cox and his assistant is Guido Haase. Don "Doc" Delaware is the foreman of the hide department. His assistant is Dennis Piittmann; the leadman in the hide cellar is Arthur "Buck” Lyle. The offal department foreman is Elmer Branson. Other management associated individuals involved in the case are Carole Hansen, the personnel officer/insurance coordinator, and Johnnie Patterson, the processed meat salesman, formerly the offal foreman. Hansen's workplace was in the main office next to Brown's and Corporate Vice President George Schueman. In actuality Brown had little use for an office for he has difficulty reading and writing; instead, he is most often found in and around the plant premises. Most of the operational paperwork occurs in Schueman's office. At the time in question Patterson occupied an open area near the kill floor where he was commonly visited by employees on their breaks because of the free coffee he offered.

Although the incidents to be described occurred in 1980, the Union's organizing began in April 1979. It was a slow campaign and the Union did not file its election petition until February 1980. An election was conducted on April 11. Another labor organization intervened in the election and obtained enough votes so that a runoff was required, although the intervenor was eliminated. The runoff election is currently blocked by the instant unfair labor practice proceeding.

The employees whom the General Counsel alleges have been discriminated against were all kill floor employees. Elmer Pruett was a tail cutter; Bill Camerlinck was a hide puller; Clifford Little was a rumper (he skinned that area of the carcass); Dennis Stiles was a belly ripper or crotcher; and Jose Martinez was an entrail separator.

B. The Union Activity of the Alleged Discriminatees Each of the alleged discriminatees, Pruett, Camerlinck, Little, Stiles, and Martinez, testified they attended five or six union meetings, at which they spoke to other employees regarding the benefits of unionization, and, except for Martinez, wore union stickers on their helmets during the week or 10 days before the April 11 election. Martinez was one of the Union's observers during the election. It does not appear that any of these individuals was in the forefront of the Union's organizing; there is no testimony that they were involved in card solicitation or held any union leadership positions during the organizing drive. According to Skip Niederdeppe, the Union's professional organizer, approximately 160 employees signed authorization cards. It also appears that during the week or 10 days before the election a large number of employees wore union stickers on their helmets and pasted them on their lockers. In fact, according to Plant Manager

Jerry Brown 1. Paragraphs 5(c) and (d) of the complaint allege that on January 8 Jerry Brown interrogated employees regarding their union activities and threatened employees with reprisals if they supported the Union and repeated similar threats sometime in February.

There are two incidents on which the General Counsel relies. The first involves employee Louis Newcomber and the second involves Newcomber and alleged discriminatee Bill Camerlinck.

Newcomber has been employed by Respondent for 17 years and currently works on the hide puller. He testified that on January 8 he happened to be in the electrical circuit room when Manager Brown came in and told him he had heard Newcomber “was getting the guys all up in the air talking about our benefits.” Newcomber responded that a lot of employees had been complaining about benefits and asserted that employees were losing money because of inflation. Brown replied, “Well, everyone [is] suffering from inflation,” but continued, telling Newcomber to stop "getting the guys up in the air talking about the benefits.” Newcomber also said that Brown told him that he had heard Newcomber was "the one writing Union letters.” Newcomber, after hesitating, said that there were a lot of employees involved in that. Brown commented he did not think Newcomber would have been doing something like that.

Brown's version is different. He said Insurance Coordinator Carole Hansen had reported that Newcomber was “hassling” her on some insurance claims. She asked him to talk to Newcomber to ask him to stop. Brown said it was his understanding, through Hansen, that Newcomber was asking for preferential treatment of his claims and asserting everyone else's claims should be dropped and his should be paid. Accordingly, he told Newcomber to stop “raising so much sand” with Hansen. “She's getting it done the best she can. Just give her some time leave her alone.” He denies saying anything to Newcomber during that conversation regarding Newcomber being the individual authoring union letters. He says he did not know Newcomber was doing so, and never in any way discussed with Newcomber the fact that he was for the Union.

Sometime in February, according to Newcomber, he was walking through the main office to Hansen's office to “do some insurance work” and he remembers that Brown saw him and said, “You better hope that the Union gets in.” After completing his business with Hansen, he was returning through the office, having been joined by Camerlinck. Brown, Foreman “Alabama” Cox and some other “bluehats"2 were in the office frying hamburgers on an electric skillet. Camerlinck remarked that the hamburgers smelled good. Brown turned to the others saying, “There goes another one of them fucking Union scabs.” Camerlinck asked him to repeat the statement and Brown did so. Then Brown told him, “Get the fuck out of here before I get mad.” Newcomber, with less detail, testified consistently with Camberlinck.

Brown denied referring to any employee as a “fucking Union scab” and also denied telling Camerlinck to get out before he became angry. Later he observed that he had no idea what the phrase “Union scab” meant as he had always thought scabs were nonunion individuals who crossed picket lines.

As noted, the complaint alleges these conversations to contain two elements: unlawful interrogation regarding an employees' union activities and a threat of reprisal for those activities. First, the relative credibility of the witnesses is a difficult question. Newcomber and Camerlinck are both still employed and are at risk for this testimony; thus it appears credible, except for the reference to union scabs, an unlikely phrase to be used by Brown or anybody. But Brown is a former Union member and, if now imbued with union animus, could have twisted the phrase to Respondent's advantage. Yet, on the stand he seemed genuinely puzzled by the phrase. Neither he, nor I for that matter, had ever heard it before.

Furthermore, there is real doubt regarding the legal significance of the phrase. If it occurred as Newcomber and Camerlinck say, no doubt it was intended as a scornful remark—but would it restrain or coerce anyone in the exercise of their Section 7 rights? The phrase "get out” of the office before the manager "got mad” may have raised some fear in the recipient's mind, but of what? Keeping in mind that the plant employees regularly use coarse language, barnyard humor and macho posturing, in that context the threat, unclear at the outset, loses even that magnitude. Taken with Brown's credible denial, I recommend that the reprisal threat be dismissed.

With regard to Brown's denying questioning Newcomber regarding his having authored some union literature, however, I am less persuaded. There is no evidence that Newcomber was unduly harassing Hansen or asking for preferential treatment of his claims. She was a witness, but was never asked about the matter. There is, therefore, substantial doubt that Brown was attempting to alleviate a problem between herself and Newcomber. On balance, I conclude that Brown's question constituted an unlawful inquiry into Newcomber's union activity and

2. Paragraph 5(b) of the complaint alleges that on March 11 Brown promised Camerlinck a benefit to dissuade him from supporting the Union. In support of this allegation Camerlinck testified that about a month before the election he happened to be in Johnnie Patterson's office with Patterson and several others. Camerlinck had just arrived and had missed part of the conversation but Brown asked him, “What do you think of that?” Camerlinck asked what he was talking about and Brown told him there was a rumor that the Company was going to begin “gang time” and asked Camerlinck what he thought of gang time.4 Camerlinck understood that before the gang time bonus was to be paid the crew would have to process 2,200 beef in 8 hours or 2,750 beef in 10 hours. He thought working that many carcasses in six 10-hour days would be too much and told Brown so. Brown needled him saying Camerlinck was “too soft and wasn't used to hard work." On the following day Camerlinck was taken off the hide puller and asked to rump for a day. He had been a rumper 2 years previously, but did not particularly care for the job. That evening he mentioned to Cox that his arms and wrists were sore. The next day he says Brown heard about his soreness and laughed at him, telling him that he had been "crying the day before about having to work hard.” Camerlinck responded by saying that he had not been crying, but just mentioned that his wrists were sore. Again, Brown said, “You are just too soft, and you just cried all day,” laughing at Camerlinck for having to work “for a change.” Camerlinck replied he could work Brown "to his knees any day.”

With regard to this entire exchange, it appears significant that at no time did Brown mention the Union to Camerlinck. It is true that the election petition had been filed several weeks before and it can be supposed that Brown and most of the employees were aware of it. Nonetheless, I am unable to find, even crediting Camerlinck's version, that the incident violated the Act as a promise of benefit designed to dissuade Camerlinck or other employees from supporting the Union. Gang time appears to have been a practice followed by the Company in the past and Camerlinck, a 15-year employee, was well familiar with it. Therefore, Camerlinck was not likely to and did not view the gang time bonus as a benefit he thought it would involve more work. Second, Brown did not in any way tie gang time to the union representation question.

For the purpose of analyzing the legality of Brown's statement, I shall assume that Camerlinck's testimony is reliable. Even so, I am unable to find that the conduct violated the Act. See Wilhow Corporation d/b/a Town & Country Supermarkets, 244 NLRB 303, 307-308 (1979) (Davis/Robinson conversation), and at 309 (wage increase matter). The case is replete with union animus of such severity as to require a bargaining order under N.L.R.B. v. Gissel Packing Co.5 Yet, the Board upheld the Administrative Law Judge's dismissal of two incidents similar to those occurring here. The first incident occurred a week after the union demanded recognition. It allegedly constituted unlawful interrogation and a threat of discharge for union activity. The supervisor asked the employee "What was going on?” When the employee replied he did not know, their conversation turned to the employee's plan to build a house. The supervisor asked, “You'll need a job, won't you?” and after they talked some more, the supervisor again remarked, “Well, you'll need a job to make payments on that.” The Administrative Law Judge dismissed the allegation because the question was not directed at learning about the employee's union activity or sentiment or the union activity of any others. He therefore found that there was no interrogation involved and the supervisor's observation about the requirement of a job was only an innocuous response to remarks about contemplated expenditures of money, not a subtle threat of job loss. In the second incident the judge discussed a wage increase which became effective after the union's demand. He held there that the proof did not satisfy the Supreme Court's N.L.R.B. v. Exchange Parts Co.,6 test that the wage increase must be for the “express purpose” of inducing employees to reject the union. Even though the company had already expressed animus against the union organizing at that point, the Administrative Law Judge nonetheless held that such conduct had not been shown to be for the prohibited purpose. One of the factors he relied on was the absence of a union organizing nexus to the granting of the increase, particularly evidence of timing.

Likewise, Brown's question to Camerlinck regarding what he thought of gang time was devoid of any reference to union organizing, even though the petition was on file. While the timing is somewhat suspicious, the union animus is far less here than in Town & Country Supermarkets, supra. Moreover, there are no doubt daily conversations about possible job changes and job conditions, all of which are perfectly innocent. I conclude this to be one. I reach this conclusion despite the fact that union animus may be found elsewhere in this record. Certainly in Town & Country Supermarkets, the suggestion of a job loss or a wage increase would have been serious matters if connected, even indirectly, to union organizing. But they were not so connected and no violations was found by either the Administrative Law Judge or the Board. Likewise there is no proof that Brown's question to Camerlinck, or the 1-day rumping job, was connected to union organizing; accordingly, the same result obtains and the allegation must be regarded as unproven. I therefore recommend that this allegation be dismissed.

3. Paragraph 5(e) of the complaint alleges that on May 9 Brown threatened employees with more arduous working conditions because of their support for the Union. To sustain this allegation the General Counsel relies on the testimony of crotcher Dennis Stiles. Stiles testified that on May 9 he was on his way to Carole Hansen's office to discuss an insurance matter. While in the office area

he ran into Brown who was going the other way. Stiles excused himself as they passed; he recalls after that occurred, Brown said, “Well, there's another man that's going to be down in rendering.” Contrary to Respondent's brief, the record does not reflect that Brown denied the conversation. However, Brown did say that the day before Stiles was discharged (i.e., May 9) Foreman Cox had “called down" Stiles for throwing water on another individual.

In view of the vague nature of Stiles' testimony, his minimal union activity, and the fact that the election had been conducted nearly a month before, albeit still inconclusive, and the fact that the remark is not even indirectly connected to any union activity or beliefs by Stiles, I am unable to find a violation here. I recommend that it be dismissed.

Also on May 9, and alleged to be in support of this allegation, is the testimony of Elmer Pruett. Pruett, normally a tail cutter, had been training on a new job, the “chuck" or "lower” saw, with Walter Czerwinski. At break time, Pruett went to Patterson's desk for coffee. He says he was covered with blood, sweat, and bone chips. He was exhausted. Brown looked at him and laughed. According to Pruett, Brown then told Newcomber, who was standing nearby, that Newcomber was "next." Newcomber does not corroborate Pruett. He says he was too far away and did not hear what was said. Brown did not testify about this incident.

Once again, there does not seem to be any connection to the union organizing drive regarding this incident. First of all, laughing at Pruett, while it may constitute rough humor, typical of Brown and the plant generally, carried no antiunion suggestion. Second, Pruett's claim that Brown threatened Newcomber is not corroborated by the direct victim, Newcomber himself. Thirdly, as will be seen, Pruett's credibility is subject to great doubt. Accordingly, I conclude that this allegation has not been proven either. Thus, that portion of paragraph 5(e) of the complaint dealing with Brown's May 9 conduct be dismissed.

As noted, Johnnie Patterson is a processed meat salesman who was formerly the offal foreman. Paragraph 5(a) of the complaint alleges that he threatened employees with discharge on several occasions between February and April 11. In fact there is only one incident in the record which arguably fits the allegation. That occurred on February 16. On February 11 a memo was issued by one Larry Horbach, whose position is not shown in this record but who appears to be a management official. The memo was sent to "all foremen” advising them that on Friday, February 15, Horbach would conduct an unemployment compensation procedures workshop. Patterson received a copy of the memo but did not attend because he was not a foreman. He says on the following day, February 16, when he went to work he found on his desk copies of some material used in the workshop, including a "notice of warning" form which was new. That form is part of the material in evidence as Respondent Exhibit 1.

Page 25

Frankly, I found Patterson's testimony to be very confusing and disoriented. He conceded that the Union had done nothing whatsoever to give him his idea. Even so, I am not convinced that he mentioned the National Labor Relations Board to the employees. This arose out of an unemployment compensation workshop and, if anything, he was referring to the materials generated by it. The employees' evidence to the contrary is rejected. Nonetheless, I conclude that Patterson's remarks could reasonably be taken by employees as a statement that unionization would result in increased discipline of employees for matters which had long been tolerated, particularly attendance, insubordination, carelessness, attitude, performance, and dress.? I conclude therefore that Patterson, admitted to be Respondent's agent,8 violated Section 8(a)(1) of the Act by implying that unionization would result in stricter rule enforcement, including discipline which could lead to discharge. This is not to say, however, that Patterson was in fact speaking management's mind. I have no doubt that Patterson was as confused in that office as he was before me.

Patterson was reviewing the material when a break occurred and he was visited by Camerlinck, Newcomber, and perhaps other employees as was their custom. Those two testified that the incident occurred approximately 2 weeks before the April 11 election. There is, therefore, a nearly 6-week discrepancy regarding the timing of the incident, yet all three seem to be referring to the same conversation. Due to the documentary evidence I find February 16 is the date of the conversation.

Camerlinck and Newcomber say Patterson had some papers on his desk. When Camerlinck looked at it, Patterson told him it was “a write-up sheet” containing “things that you could get fired for, if the union got in, these were things that they had to write you up for, such as insubordination, being late, improper dress.” Camerlinck testified Patterson told him he had attended a company meeting with “the Labor Relations Board man the night before” to find out where they stood with "the Labor Relations Board, what they could, what the rules were, I can't remember exactly.” Camerlinck said that Patterson "indicated to us that if the Union got in the company had to use this paper and had to write us up and that if an employee had two or more write ups, he was discharged.”

Newcomber testified that the discussion occurred about a month before the election and Patterson told the group that “over the weekend, the Labor Board had come in and were showing films and were telling the company the rights they had.” Newcomber says Patterson remarked that “if the union came in, it would be a lot easier to fire (you) guys, because for being late, if you were late, or if you had a bad attitude, or wore the wrong clothes, this was some of the things that he said were on this paper. And if we got the union in, it would be a lot easier to fire us than it is now.” Newcomber says Patterson did not show him the paper, but is sure Patterson used the words "National Labor Relations Board.” He denies that there was any reference to unemployment compensation matters. Camerlinck, too, is certain that Patterson mentioned the National Labor Relations Board.

Patterson denies mentioning the National Labor Relations Board and says he was discussing the unemployment compensation material and the new warning slip enclosed with them. He recalls being very angry with the new form because it meant that things would be tougher for employees than they had been before. His testimony: "Well, I was sitting at my desk reading over it and some of the things that it lists here that you can fire people for and I never saw anything like this before. The way it appeared, you can read almost anything into it . . . I looked at the paper and I was reading it, and according to this, you can get fired for almost anything and still, I asked them, I said, if this is some of the clauses in here that you can get fired for, what do you need a union for? I mean, what can a union do for you, that is what I said.” On further examination he said that the Company's policy toward the transgressions listed on the warning slip had, until then, been tolerant. He said he was thinking out loud and since the employees were seeking a union for protection, he thought, in a confused way, that the Union would do them no good.

According to the remaining portion of paragraph 5(e) on May 6 Assistant Kill Floor Foreman Guido Haase threatened employees with more arduous working conditions because of their union activities. In support of that allegation the General Counsel relies on the testimony of Elmer Pruett. Pruett testified that at 6 a.m. he had just arrived on the kill floor and was at the drinking fountain. Haase approached him and told him: “One of (your) union brothers [is] in the blood pit. It is just starting, baby, and you are next. On that morning rumper Cliff Little had been asked to replace Sonny Prue in the blood pit. Haase recalls that at one point he and a bunch of fellows were standing around on a break and someone told Pruett, “Your union brother is in the blood pit and you are next.” He denies making the statement himself saying he does not know who made it, but it was one of the employees in the group. He said nothing to. Pruett after the remark was made. This incident will be discussed more fully in the section dealing with Little and Camerlinck, although it preceded Pruett's own discharge by only a week.

D. The Discharge of Elmer Pruett Elmer Pruett was originally hired in August 1966. He was discharged in mid-May 1980. Prior to his May discharge on February 19 he suffered a temporary loss of employment. Since Respondent had opened its new plant in 1979, Pruett had principally been assigned as a tail cutter on the kill floor, one of the lesser paying jobs. He has, over the years, requested higher paying jobs. His success regarding those efforts will be discussed below.

As noted supra there is evidence that Pruett attended four or five union meetings, signed an authorization card,

Page 26

reason he could not turn the cattle was because he was making a second cut. Furthermore, he never invoked Haase's name during any of this and the other three were in the dark about it. In the circumstances, I conclude that Respondent discharged him because he caused the chain to stop three times that morning because of his refusal to turn the animals. It is true that there is his testimony, denied by Brown, that on May 6 Brown told him he was going to rendering, but even that, if credited, is vague. First, since Stiles is not credited with regard to the directive relating to pregutting, there is no reason to credit him with respect to Brown's alleged statement here. But, assuming that Brown did make the statement, it is unclear whether it was made to Stiles or someone else in the office that day since the plant is a rough and ready workplace. There is also the possibility that the remark was part of the daily razzing which occurs. Whatever it was, there is no reason for me to assume, blindly, that it was a threat to retaliate against Stiles for his union activity. Accordingly, I conclude that the General Counsel has not proven by credible evidence that the threat occurred as alleged or that its purpose was unlawful. Furthermore, it appears to me that the evidence preponderates in favor of Respondent's version, that Stiles was discharged because he refused to turn backward carcasses. Accordingly, the allegations involving Stiles should be dismissed.

F. The More Arduous Work Allegations

William Camerlinck and Clifford Little

had considered it again, and decided to let him go, particularly as on May 9 Stiles had been warned about throwing water on other employees. See section C, supra.

Cox testified that Stiles had always helped turn cattle in the past but his failure had caused the second hang-off man to stop the chain several times that day. On the first occurrence, he remembers Stiles told him he did not have time. Incredulous, Cox got mad, turned, and stomped away. On the third time it happened with Stiles continuing to say he did not have time, Cox decided to take Stiles down and took him to Brown's office, reporting to Schueman what the problem was. He told Schueman he was leaving Stiles there until Brown arrived. He says Stiles never mentioned having any additional duties to perform. Later he went back out on the kill floor and saw Stiles working again; aware that Brown was back in the plant, he had Stiles removed from the line. He told Brown by plant phone that Stiles would not turn the beef. In his version there is no suggestion that he was particularly upset with Stiles for having gone back to work.

Brown recalls the incident somewhat differently. He remembers that he was out of the plant when Stiles refused to turn the beef and he was called back because of the incident. He spoke to Cox who said that Stiles had refused to turn three carcasses. When Stiles was brought to Brown, Stiles told him that he "didn't have time” to turn the animals, but then said he would. Brown says he told Stiles he thought it might be too late, but he would talk to Cox and Stiles should come back in a couple of days to see if he could return to work. Brown denies saying anything to the effect that “I've got you this time on insubordination.” He agreed that when Stiles returned the following Tuesday he mentioned the water throwing.

As noted above, Stiles, like others, had signed an authorization card, attended three or four union meetings, and wore a sticker prior to the election. However, there is no intimation that Stiles was a union leader or that Respondent thought he was; indeed his union activity, except for wearing the sticker, appears to have been unknown to Respondent.

Furthermore, although facially it appears as if Stiles' testimony is credible, there is an inherent problem with it. That is the question of whether or not Haase or anyone would ask him to perform a second cut on the production line where time was short and where there was a station further down the line which performed the duty he was asked to. It seems unlikely to me that Haase would have any reason to tell Stiles to make the pregut cut. Indeed, Cox points out that, if it were occurring, many of the entrails would end up on the floor before they were ready. Thus, I cannot credit Stiles' testimony that he was asked to perform a second cut. It makes no sense, even if designed as a harassment, because the probability of waste is too high. Even if it occurred, it does not appear that it was a duty given to him on a permanent basis. Therefore, if he were supposed to make such a cut on May 6, there is no reason to think that it was to continue through May 10.

On May 10 when he refused to turn the cattle, he never once told Cox, Schueman, or Brown that the

As previously noted, on May 6, sticker Sonny Prue failed to appear for work. Prue testified that he had gotten drunk the night before, was still drunk and too hung over to work. His absence that day was unexcused. As it happened, he was the only experienced sticker Respondent then employed. The other blood pit employees were quite new. After the line started that morning, it became apparent to either Cox or Haase that the blood pit employees were unable to perform their jobs properly in Prue's absence. Accordingly, a decision was made to transfer Little, who had had a great deal of sticking experience in the past, to the blood pit. That required his removal from his rumping job and a replacement was needed for that. Bill Camerlinck, a hide puller, had had experience rumping and so he was moved to replace Little. Little performed the sticking job for most of the day, but in the afternoon severely cut his hand. He was unable to continue and had to go to the hospital for medical attention. Prue returned to work the following day, but because Little was unable to return to the rumping job, Camerlinck remained there until Little returned to work 6 weeks later. 18 When Little returned to work, he was again placed at the rumping job and Camerlinck returned to the hide puller.

As with the others, both Little and Camerlinck's union activities were minimal. The only evidence of discriminatory motive is the previously discussed remark made by someone to Pruett that morning that his “Union brothers were in the blood pit and it was just starting, baby.” However, despite the remark, whether made by Haase or someone else, the truth is that neither Little nor Camerlinck was moved as a reprisal for their union activity. Their jobs were changed as a chain reaction to Prue's unexcused absence. 19 The fact that Little cut himself was unforeseeable and certainly it was not Respondent's original intent to keep Camerlinck on the rumper job for 6 weeks, although that is what in fact occurred.

The General Counsel makes much of the fact that the sticker's job had changed between the time Little had done it before and this occasion. Yet it appears that the job was more difficult when he held it before, as it required him to skin the animal's head, not just cut the lip, as well as stick the carotid artery. And, it may be, as the General Counsel contends, that the animals now hang at a slightly different height than they formerly did, but that does not appear significant; certainly it was not Respondent's intention to deliberately risk injury to Little. Indeed, it appears that cuts are common in packing houses generally. As Prue pointed out, the sticking job is difficult because the animals may not be quite dead at the time they come to the blood pit; the risk of their jerking is higher there than at a later stage of the slaughtering process. Prue, too, has cut himself in the past.

In the circumstances, I do not find any discriminatory motive in these two transfers. Accordingly, I shall recommend that this allegation of the complaint be dismissed.

partment, he says his pay scale remained the same but since that time has increased for trimming tripes.

Foremen Cox testified he was the one who made the decision to move Martinez from the gut table to rodding the weasel and thence to the offal department. He says Willy Mitchell, a U.S.D.A. inspector, had told him Martinez was putting condemned paunches down the edible chute. As a result, he says he asked Martinez to rod the weasel for 2 or 3 days; Cox was satisfied with Martinez' work but Martinez was not, telling Cox he could not do that job very well. As a result Cox sent him to the offal department. He says this involved a wage increase from $6.57 an hour to $6.75.

Aside from any credibility question with respect to Martinez, I fail to see a prima facie case with respect to the unlawful nature of his transfer. It is true that it occurred some 3 weeks after Martinez served as an election observer, but no one ever told him he was being transferred because of his union activities and there is no evidence, direct or indirect, suggesting that was the purpose. Cox' statement that he moved Martinez because of a U.S.D.A. inspector's complaint is undenied. Furthermore, Martinez, with respect to his duties in the offal department, admitted to some carelessness with respect to contamination. It is likely therefore that he may have operated in the same fashion while on the gut table. In any event, he suffered no wage loss, probably got an increase immediately, and certainly an increase when he went to tripe trimming. He has had no serious difficulty in the offal department and apparently is a reasonably valued employee there. In the circumstances, I cannot find that his tranfer was motivated by antiunion considerations. This allegation, too, should be dismissed.

Based on the foregoing findings of fact and the record as a whole, I hereby make the following:

Jose Martinez had worked on the gut table, separating intestines for approximately 3-1/2 years. His union activity principally consisted of the fact that he served as the Union's observer at the election on April 11.

On May 6 he was assigned to train another man on the gut table and on May 9 was told to "rod the weasel,” i.e., place a rod through the animal's esophagus to clear it. About 9:15 a.m. he was pulled off that job, he says for not doing very well, and was assigned to the offal department pulling tripe. According to him that job can be quite dirty.

However, the job was not a great deal different from his previous job, that of separating the edible from the inedible “paunches” or intestinal tracts. At his gut table job, he was required to send the inedible, condemned paunches to rendering through one chute and the edible paunches to the offal department via another chute. The condemned carcasses were clearly marked

marked with U.S.D.A. blue ink.

His job in the offal department required him to open the paunches to clean them of the waste material inside. He says this was distasteful as occasionally the excrement would explode on him. Furthermore he says, the job was steamier than his previous work station. Later, he was assigned another job in the offal department, trimming tripes. When he was assigned to the offal de

CONCLUSIONS OF LAW 1. The Respondent, Union Packing Co., is an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. United Food and Commercial Workers, AFL-CIO, Local 216A, is a labor organization within the meaning of Section 2(5) of the Act.

3. On or about the dates shown in this Decision, Respondent violated Section 8(a)(1) of the Act by threatening to more strictly enforce work rules in the event the employees chose union representation and by interrogating employees regarding their union activities.

4. Respondent has engaged in no other unfair labor practices except as otherwise found above.

Having found that Respondent has engaged in certain violations of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act.

Upon the basis of the foregoing findings of fact, conclusions of law, and proposed remedy, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

(b) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

The Respondent, Union Packing Co., Omaha, Nebraska, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Threatening employees with more strict enforcement of work rules, up to and including discharge, in the event they choose to be represented by United Food and Commercial Workers, AFL-CIO, Local 216A, or any other union.

(b) Interrogating employees regarding their union activities.

(c) In any like or related manner restraining or coercing employees in the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Post at its Omaha, Nebraska, plant copies of the attached notice marked “Appendix.”21 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice.

The National Labor Relations Act, as amended, gives all employees the following rights:

The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union

To bargain collectively through representatives of their own choice

To engage in activities together for the purpose of collective bargaining or other mutual aid or protection

To refrain from the exercise of any or all such activities.

WE WILL NOT threaten employees with more strict enforcement of work rules, up to and including discharge, in the event they choose to be represented by United Food and Commercial Workers, AFL-CIO, Local 216A, or any other union.

WE WILL NOT interrogate our employees regarding their activities on behalf of the Union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the above-enumerated rights.

The Great Atlantic & Pacific Tea Co., Inc. and

Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL-CLC-CIO. Case 11-CA9473.

Based upon the entire record, including the demeanor of the witnesses and the brief filed by Respondent, I make the following:

BY MEMBERS FANNING, JENKINS, AND

ZIMMERMAN

On September 18, 1981, Administrative Law Judge Harold Bernard, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the aitached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.

I. JURISDICTION The Respondent, The Great Atlantic & Pacific Tea Co., Inc., is a Maryland corporation engaged in retail sales of groceries from, among other locations, a retail store located in Plymouth, North Carolina. Respondent annually sells goods valued in excess of $500,000, and annually receives goods valued in excess of $50,000 directly from points outside the State of North Carolina. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union, Retail Clerks Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC, concededly is a labor organization within the meaning of Section 2(6) and (7) of the Act.

II. THE ALLEGED UNFAIR LABOR PRACTICE

i Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

2 We find it unnecessary to pass on the Administrative Law Judge's conclusion that the General Counsel failed initially “to make out a prima facie case of unlawful discharge," since we conclude that the General Counsel has ultimately failed to establish by a preponderance of the relevant evidence that Respondent was motivated by unlawful considerations in its discharge of employee Blanche Matthews.

Blanche Matthews began work at Respondent's Plymouth, North Carolina, grocery store 12 years ago, and performed cashier duties mainly, until notified expressly that she was discharged on May 27, 1980, because of discrepancies in her cash register receipts.

Some time in September 1979, the Union contacted Matthews, who agreed to help organize employees in the store, pursuant to which Matthews held one meeting at her home the following October. Four or five employees out of 15 employees on her shift (and out of about 35 total employees at the Plymouth store) attended. Matthews also talked to employees on and off store premises concerning union benefits and handed out authorization cards off the premises on an undisclosed number of occasions involving an unidentified number of employees.

Respondent was aware of Matthews' activities, as evidenced by testimony from agreed supervisor and agent of Respondent, Store Manager Ronald Dunlow, that there were a lot of rumors that Matthews was having meetings with the Union. In addition, there is undenied testimony by employees Warren Downing and Diane Downing that Earnest Willoughby, store manager until January 1980, told each during separate talks in November and December 1979 that Matthews would be the shop steward for the Union." In November, while pickets from a Durham, North Carolina, location were outside the store, Matthews testified that a bagboy, in the presence of a company official, asked her why, if she were so “for it" (the Union), she was not walking with the pickets. Combining this testimony with the fact that the entire employee force numbered only 35 employees in a small town where knowledge of newsworthy events

HAROLD BERNARD, JR., Administrative Law Judge: This case was heard before me on August 13 and 14, 1981, in Plymouth, North Carolina, pursuant to a complaint issued December 4, 1980, alleging that Respondent discharged Blanche A. Matthews because she supported the Union, thereby violating Section 8(a)(3) of the Act. Respondent's answer denies any violation of the Act.

travels far and fast, I conclude it reasonable to find that Respondent had knowledge concerning Matthews' conduct.

There is however, no evidence that Respondent harbored animosity towards Matthews because of her union activities, unless, as will be discussed further, such can be inferred from the circumstances surrounding her discharge.

This does not mean Respondent welcomed union organization. Matthews testified by way of background only, the event occurring in November 1979, thus well outside the period of limitations prescribed by Section 10(b) of the Act, that Willoughby once told her the Union “stirred things up,” would do no good and that employees in effect would be paying for their own insurance plans via the union dues. Further, employee Hal Beasley, Jr., testified that manager Dunlow, sometime in mid-October 19792 told him there was a "little activity going on" and that the "Union won't do you any good.”

III. THE CAUSE FOR DISCHARGE Respondent operates 120 stores in the so-called Carolina Group alone (there are some 8 or 9 such groups in the United States). The Carolina Group covers North and South Carolina. Forty-seven stores are union; employees in the 73 remaining stores are unrepresentedthere being a combined total number of employees in all stores of 3,500.

Jack Royal, assistant personnel director for the Carolina Group testified credibly that prior to 1977, there was no written company policy regarding cash register shortages. In October 1977, a written policy emerged containing three steps: notice or warning; suspension; and for a third infraction within 6 months, termination. Admittedly, there was loose enforcement of this policy groupwide; indeed, Matthews was the benefactor herself (among others) of Respondent's laxity in this regard. Dissatisfied with its own policy and its implementation, Respondent was receptive towards union efforts to raise problems with it prior to negotiations in October 1979 and devised a new one, implemented on November 29, 1979. From then on, the new policy, which was applied groupwide, was to include two notices or warnings, then a suspension, then discharge for cash register discrepancies incurred by cashiers. A further new wrinkle was that enforcement was considerably assured by placing responsibility heavily on the shoulders of store management hithertobefore at least partially responsible for the old problems. The policy was posted and made known to all employees, who, under its terms, were to have "clean slates,” prior infractions being expressly excluded. The record leaves no room for doubt that this new policy, including a more strict approach to enforcement was a groupwide solution to an important groupwide problem.

From the time the new policy was implemented November 29, 1979, an occurrence which is neither alleged nor emerges as being a result of Matthews' union activities earlier, until her discharge on April 12, 1980, some 5

months later, Matthews received six warnings for policy violations. On January 6, 1980, Matthews received her first warning for a shortage of $9.88; on January 10, a second warning for another discrepancy of $6.28; and after a third discrepancy on March 8, consisting of a shortage of $39.58, she was given a 3-day suspension. On April 7, Matthews was given a fourth warning for a shortage of $9. Between the time Royal was considering or acting on a decision to discharge Matthews for her fourth violation and her actual discharge, viz on April 10 and 12, Matthews received warnings numbered five and six.

This total does not include two additional incidents which on their face could have been reasonably considered as violations but which Respondent excused in one case on January 22 invalidating the warning because arguably the cash discrepancy could have arisen from a malfunctioning cash register used by Matthews; and in another incident in early April involving the possibility that Matthews was given incorrect change for a large bill, giving her the benefit of the doubt and not issuing any warning. These two examples of leniency or reasonableness manifest no haste or desire to separate an unwanted union adherent at the first opportunity.

It is also clear that Respondent applied its policy, inuding the fourth step, to other employees as well as Matthews, including employees with 15 years of service, Hazel Earley, 6 years of service, Elizabeth Williams, and six other employees also throughout the Group, who were, under the policy, also fired in 1981 for the cash register discrepancies, not alleged to be in connection with any union activities on their part.

In addition to such evidence that Respondent followed its policy outside the Plymouth store, the record further demonstrates that as of January 3, 1981, 15 Plymouth store employees had received warnings for cash register discrepancies, three of whom incurred suspensions. Hence it is certain that there is no disparity in Respondent's application of this policy upon which it can be inferred that Matthews was being singled out for retaliatory conduct.

Royal credibly testified further that Dunlow called him, informing him there was a fourth notice on Matthews, and that he subsequently reviewed the warnings and recommended her discharge to his superior, Patrick Cronin. The decision was to “let” her complete her vacation and use all her sick leave at the hospital, considering her length of time with the company and then discharge her. He denied knowledge of Matthews' union activity or that he had discussed such with Cronin, or that it had anything to do with Respondent's action.

The General Counsel relies heavily in this proceeding on the contention that it is simply “incredible” that Matthews could accumulate so numerous an amount of warnings from November 1979 until her discharge in April 1980 (seven if one includes the later invalidated one) considering that in all the prior years she merely had two warnings for cash shortages (and four others for other infractions as well, it should be noted). But the General Counsel can draw no nourishment from this argument. In the first place, there was no written policy at