Behring International, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 354 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Behring International, Inc. and Union No. 478, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 22-CA-7824
September 26, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MIEMBERS
JENKINS AND PENEI.I.O
On June 8, 1979, Administrative Law Judge
Robert M. Schwarzbart issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and a docu-
ment marked "verified petition supplementing the
record below."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,
2 findings, 3
Respondent's request for oral argument is hereby denied, inasmuch as
the record and brief adequately present the issues to be decided
2 Respondent asserts that the Administrative La Judge exhibited bias
against Respondent in certain of his rulings and comments during the
hearing We have carefully examined the record and find no merit in this
contention.
Respondent asserts that it should have been allowed to adduce testimo-
ny from Board Agent Susan Anderson concerning "her investigation of
the initial charge as well as certain affidavits and other material." Re-
spondent asserts that the testimony and documents would have contained
admissions from various witnesses who testified, obtained when Anderson
solicited a withdrawal of the original charges filed against Respondent.
At the hearing, the Administrative Law Judge revoked the subpena. We
are satisfied that the testimony sought by Respondent fell within the
"limited evidentiary privilege which protects the informal investigatorial
and trial-preparatory processes of regulatory agencies such as the
NLRB," Stephens Produce Co.. Inc. v. VL.R.B., 515 F.2d 1373, 1376 (8th
Cir. 1975), and that Respondent has shown no substantial reason to disre-
gard this privilege. We note that, upon proper request. Respondent was
given access to the prior statements by the General Counsel's witnesses
following their testimony on direct examination. We further find that the
evidence sought to be adduced is irrelevant to any issue in this proceed-
ing. Accordingly, we conclude that the Administrative Law Judge prop-
erly revoked the subpena of Board Agent Anderson.
a 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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,
with one exception.
In fn. 17 of his Decision, the Administrative Law Judge credited testi-
mony by employee Michael Jaconski, which was denied by Station Man-
ager James Waters, to the effect that a handwritten employee petition
was signed by employees and taken to Waters, and that Waters then
asked that the petition be typed. We note that Jaconski, whose testimony
was generally discredited by the Administrative Law Judge, was the only
witness who testified to the signing of a handwritten petition, and that
both the General Counsel's witnesses and Respondent's witnesses testified
specifically that only the typed petition was signed by employees. We
therefore find that only the typed petition was signed before Waters re-
ceived it, although this finding does not detract from our finding, in
agreement with the Administrative Law Judge, that Respondent instigat-
252 NLRB No. 55
and conclusions4 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 5
In finding that Respondent unlawfully laid off its
employees and subcontracted out its work, the Ad-
ministrative Law Judge observed that Respondent
had not established any reason for taking these ac-
tions at the time it did. Thus, he noted that the
layoff and subcontracting occurred shortly after
unlawful threats and grants of benefits in response
to an organizing campaign. Moreover, the employ-
ees at the facility in question had been praised re-
cently for the quality of their work. The Adminis-
trative Law Judge noted that two employees who
attempted to forestall the election were retained at
higher rates of pay following the subcontracting,
while those employees who had not distinguished
themselves by their opposition to the organizing
effort, as well as those employees who had sup-
ported the Union, were laid off. Finally, Respond-
ent can point to no contemporaneous event which
might have motivated the layoffs at that time. Ac-
cordingly, although Respondent has proffered an
economic defense, we find that Respondent has
failed to substantiate that defense with probative
evidence that it would have subcontracted out its
operations at the time it did had it not feared the
resumption of organizational activity.
6 For this
reason, we find that Respondent has failed to rebut
the General Counsel's prima facie case and, like the
Administrative Law Judge, we therefore conclude
that Respondent unlawfully laid off its warehouse
employees and subcontracted its warehouse work.
ed the meeting and the formulation of an employee petition requesting
the withdrawal of the petition for an election.
4We take administrative notice of the fact that, following the close of
the hearing herein, a change occurred in the leadership of Iran, Respond-
ent's primary customer at its Edison facility. In its "verified petition sup-
plementing the record below," Respondent alleges that, as a result of this
change, it reduced and later closed its operations at the Edison ware-
house. We shall leave to the compliance stage of these proceedings the
determination of the timing and nature of the impact of Iran's change in
leadership on the operations at the facility involved herein, as well as the
period during which employees would have worked had it not been for
Respondent's unlawful layoff of employees and the subcontracting of its
operations.
I The Administrative Law Judge found that the instant violations go
"to the very heart of the Act" and recommended that Respondent be or-
dered to cease and desist from "in any other manner" interfering with,
restraining, or coercing employees in the exercise of their protected Sec-
tion 7 rights. In our recent Decision in Hickmorr Foods. Inc., 242 NLRB
1357 (1979), we held that such broad injunctive language is warranted
only when a respondent has been shown to have a proclivity to violate
the Act, or has engaged in such egregious or widespread misconduct as
to demonstrate a general disregard for the employees' fundamental statu-
tory rights. Inasmuch as the instant violations do not meet this test, we
shall narrow the recommended Order and notice to proscribe only "like
or related" conduct
I For a general discussion of the burden of going forward once a prima
facie case of unlawful discrimination has been made out, see Wright Line,
a Division of Wright Line, Inc., 251 NLRB No. 150 (1980).
354
BEHRING INTERNATIONAL, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Behring International, Inc., Edison, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph (i):
"(i) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them under Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we were represented by
our attorney and presented evidence, it has been
found that we have violated the National Labor
Relations Act in certain respects. To correct and
remedy these violations, we have been directed to
take certain actions and to post this notice.
WE WILL NOT question you concerning your
activities, sympathies, and desires as to Local
Union No. 478, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or of the union activities
and sympathies of other employees.
WE WILL NOT ask you for the names of em-
ployees who were active in bringing about the
Union's organizational campaign.
WE WILL NOT threaten that your work will
be subcontracted or the warehouse closed if
you support, work for, or vote for the Union.
WE WILL NOT threaten to take away job-re-
lated benefits if you support or vote for the
Union.
WE WILL NOT promise or give you pay
raises or other economic or job benefits to per-
suade you to withdraw your support from the
above-named Union, or any other labor orga-
nization.
WE WILL NOT solicit you to request with-
drawal of any petition for representation elec-
tion or to withdraw your support from the
Union.
WE WILL NOT seek to induce you to encour-
age our other employees to withdraw their
support from the Union.
WE WILL NOT deliberately reduce the work
available to you in the warehouse by diverting
freight, using contract labor or other means, to
discourage you from supporting the Union.
WE WILL NOT coercively inform you that
you are better off without the above-named
Union or any other labor organization.
WE WILL NOT subject you to discharge or
layoff because of your support for the above-
named Union or any other labor organization.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer Ray Stromberg, Eric Strom-
berg, Clara Kitson, Michael Lanza, Eugene
Colacino, Anthony Ippolito, Edmund Ringen,
and Joseph Sanders immediate and full rein-
statement to their former jobs or, if such jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and WE WILL make each of them whole, with
interest, for losses they may have suffered by
reason of our discrimination against them.
BEHRING INTERNATIONAL, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge: This case was heard in Newark, New Jersey, on a
complaint based upon a charge and first amended charge
filed by Local Union No. 478, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union. The complaint, as
amended at the hearing, alleges that Behring Internation-
al, Inc., herein called the Respondent, violated Section
8(a)(1) of the National Labor Relations Act, as amended,
herein called the Act, by coercively interrogating certain
of its employees concerning their membership in, activi-
ties on behalf of, and sympathies for the Union; by offer-
ing, promising, and granting its employees wage in-
creases and other employment benefits in order to under-
mine their support for the Union; by warning its employ-
ees that they would be discharged if they became or re-
mained union members; and by coercively informing its
employees that they would be better off without a union;
and violated Section 8(a)(3) and (1) of the Act by discri-
minatorily laying off a total of eight employees on May 6
and June 3, 1977.' and replacing them with employees of
i All dates hereinafter are 1977 unless stated to be otherwise
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an independent contractor. 2 With respect to certain of
these allegations, the General Counsel, contrary to the
Respondent, contends that Robert Lesniakowski and Mi-
chael Jaconski, warehouse employees, acted as agents on
behalf of the Respondent within the meaning of Section
2(11) of the Act.
The Respondent, in its answer, denied the commission
of any unfair labor practices. Counsel for the General
Counsel and the Respondent have filed briefs which
have been carefully considered.
Upon the entire record, including my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, is engaged in
the business of providing warehousing and related serv-
ices at its place of business in Edison, New Jersey, its
only facility involved in this proceeding. In the course
and conduct of the Respondent's business operations
during the 12 months preceding issuance of the com-
plaint herein, a representative period, the Respondent
caused to be purchased, transferred, and delivered to its
Edison warehouse goods and materials valued in excess
of $50,000, of which goods and materials valued in
excess of $50,000 were transported to said warehouse in
interstate commerce directly from States of the United
States other than the State of New Jersey.
In accordance with the foregoing conceded facts, I
find that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE l.ABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
Ill. THE AL.I.EGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a warehouse in Edison, New
Jersey,3 where with its New York, New YorK, office it
serves as the purchasing, storage, and freight-forwarding
arm of the air force of a foreign government which,
during the times relevant herein, obtained much of its
material in the United States. Equipment procured by the
customer government, often with the assistance and sup-
port services of the Respondent, would be received and
stored at the Edison warehouse prior to transshipment to
the purchasing country. This operation was under the
general supervision of George Murphy, the Respondent's
vice president and director of military programs.
Murphy, who reported to the Respondent's president,
Alan Newhouse, was responsible for both the New York
2 The Employees laid off on May 6 were Ray Stromberg, Clara
Kitson, and Michael Lanza. The employees laid off on June 3 were
Eugene Colacind, Anthony Ippolito, Edmund Ringen, Eric Stromberg,
and Joseph Sanders.
3 Nationally, the Respondent also operates about eight other ware-
houses.
City and Edison facilities and had established the Edison
warehouse in November 1975. In 1977, during the events
considered herein, James Waters was the Edison station
manager in immediate charge of that warehouse's oper-
ation, and Thomas (Wier) Wiercizewski was the ware-
house supervisor and Waters' assistant. The parties are in
agreement that all of the above-named individuals are su-
pervisors within the meaning of Section 2(11) of the Act.
With the assistance of employee Eric Stromberg, who
had made initial contact in February, the Union began its
organizing campaign among the Respondent's warehouse
employees, conducting its first meeting on March 13 at a
restaurant near the Edison warehouse. This was attended
by Union Business Representative John Senick and about
9 of the Respondent's 14 warehouse employees. Among
those who attended that meeting and signed union au-
thorization cards were Lesniakowski and Jaconski, both
who were both employed by the Respondent as rank-
and-file warehousemen.
On March 22, the Union filed the petition in Case 22-
RC-7093 for a representation election among the Re-
spondent's warehouse employees and, pursuant to an
Agreement for Consent Election approved on April 7, an
election was conducted on April 25. Although the Union
was not successful in the election and here questions cer-
tain of the Respondent's preelection conduct, no objec-
tions to the election were filed. 4
B. Alleged Acts of Interference, Restraint, and
Coercion
1. The employee meeting of March 31
Evelyn Barbato 5 testified that, on March 31 at ap-
proximately 9 a.m., she and all the other warehouse em-
ployees were called by Lesniakowski and Jaconski to an
immediate meeting in the conference room. No supervi-
sors were present.
When assembled, Lesniakowski told the employees
that he and Jaconski had spoken with Waters, and that
Waters had stated that he was going to either subcon-
tract the work or close down the warehouse if the Union
were voted in. In the discussion that followed, various
employees asked if Lesniakowski was certain of this and
all wanted to know why he and Jaconski had gone to
the office themselves without having asked anyone else.
Barbato recalled that Lesniakowski left the conference
room on several occasions during the meeting, returning
each time. On one occasion after leaving, he returned
and announced that, if the employees wrote and signed a
petition against the Union, then Station Manager Waters
would not do anything to them; there would be no retri-
bution. They could keep their jobs if the petition could
stop the Union. Barbato, in longhand, then wrote a docu-
ment rejecting the forthcoming election, which was dic-
tated to her by someone present. Jaconski took the page
4 he agreed-upon unit included all warehouse employees employed
by the Respondent at its Raritan Center, Edison, New Jersey, facility, but
excluding all office clerical employees, professional employees, manageri-
al employees, and guards and supervisiors as defined in the Act.
S Barbato was employed by the Respondent in various warehouse posi-
tions from October 1975 to May 4, 1977. when she was terminated for
reasons unrelated to this proceeding.
356
BEHRING INTERNATIONAL, INC.
from her, left the room, and returned with the following
typed version of Barbato's draft:6
3-31-77
To: Jim Waters, Station Manager
From: Whse.
Subject: N.J. [sic] Labor Board
We, the Whse. of Behring International agree to
withdraw our union petition from the N.J. [sic]
Labor Board.
Before signing the petition, however, the employees
agreed that they did not want Lesniakowski and Ja-
conski to take the paper by themselves to Waters' office
but that someone else should go with them. It generally
was agreed that Barbato should accompany the two men
to Waters' office when they took him their petition. The
employees then signed the typed page in alphabetical
order and broke for lunch at or about noon.
Lesniakowski and Jaconski, who ate together, had
agreed to meet Barbato in the conference room after
lunch and go together to Waters' office. However, when
Barbato returned at or about 1 p.m., she found that Les-
niakowski and Jaconski had already gone to Waters'
office without her. She went to the office area in search
of them and encountered Warehouse Supervisor Wier in
the reception room. Wier told Barbato that Lesniakowski
and Jaconski were in Waters' office. The door to that
office was closed. When Barbato replied that she was
supposed to be in Waters' office with Lesniakowski and
Jaconski, Wier told her that they were not to be dis-
turbed. Barbato persisted that she was supposed to be in
Waters' office with them and Wier repeated that Waters
said that he did not want to be disturbed. Barbato re-
turned to the conference room where the other employ-
ees had reassembled after their lunch break to await the
return of Lesniakowski and Jaconski.
Jaconski and Lesniakowski, on reentering the confer-
ence room, replied to Barbato's question as to why they
had not waited for her by stating that Waters would not
have spoken in front of her. The employees then began
to draw up a list of items they wanted from the Re-
spondent, including overtime pay after an 8-hour work-
day, 7 a grievance committee, equal pay to all employees
for equal work, and no repercussions because of the em-
ployees' previous support for the Union. These proposals
were written by Ray Stromberg. 8
According to Barbato, Lesniakowski took the employ-
ees' proposals out of the room and later returned stating
that Waters had said that he was not certain as to what
could be done with regard to a grievance committee but
would give the employees an answer to that matter later.
Waters could not himself decide whether the other items
could be granted but would have to seek approval from
6 The record reveals that the document had been typed on the Re-
spondent's stationery by an expeditor. Jaconski testified that he had had
Barbato's draft typed at Waters' insistence.
I At that time, overtime premium pay was available only after an em-
ployee had worked for 40 hours in a given week, although he may have
worked more than 8 hours on a given day.
I Employees Eric and Ray Stromberg are brothers.
the Respondent's main office in Houston, Texas. The
meeting then broke up at approximately 3:30 p.m.
Barbato's account of the March 31 meeting was sub-
stantially corroborated by employees Eric Stromberg,
Edmund Ringen, Eugene Colacino, and Anthony Ippo-
lito, all of whom recalled that Lesniakowski and Ja-
conski had called the meeting, at which Lesniakowski
had announced that he and Jaconski, concerned about
their jobs, had been talking to Waters, who had informed
them that there was a good chance that if the employees
voted for the Union the Respondent would close the
warehouse or subcontract the work. If the employees
would sign a paper to end the union election, there was a
good possibility that the two men could talk Waters out
of attempting to close the warehouse or subcontract the
work. Ippolito, however, recalled that the employees
had attempted unsucessfully to condition their signing
the request to withdraw the representation election peti-
tion on Waters' agreement in writing to the employees'
list of demands from the Company. Lesniakowski, how-
ever, had reported to the group that Waters would agree
to the list of employee proposals in writing, as, the situa-
tion being what it was, Waters did not want his name to
appear on anything written.9
Ippolito and Eric Stromberg recalled that, before the
meeting ended on March 31, the employees elected a
three-member grievance committee, which included the
two Strombergs and Sanders. In addition, Stromberg and
Jaconski recalled that Waters personally came to the
March 31 meeting shortly before it ended. Stromberg re-
lated that Waters encouraged the employees to elect a
grievance committee, which was done, and also dis-
cussed various grievances with the committee and the
other employees, including the matter of equal pay for
equal work, agreeing that all should be paid on an equal
basis for the same warehouse work.10
The employees were paid for the time spent at the
March 31 meeting, their signed request for withdrawal of
the election petition was retained by Waters, and the
March 31 meeting conducted by and among employees
without supervisors, which consumed the time of the
entire warehouse staff for virtually the whole workday,
was unprecedented at the Edison warehouse.''
Lesniakowski testified that immediately before telling
the employees to go to the meeting on March 31 he and
Jaconski had asked Waters for the use of the conference
9 These employees signed the election petition withdrawal request al-
though Waters did not grant all their demands because, after some discus-
sion, it was concluded that they still would be better off signing and
hoping for the best.
i' Jaconski's recollection of the March 31 meeting of which he clearly
was a cosponsor and principal participant was so unconvincingly poor
and his testimony so evasive that absent independent corroboration he is
not credited where his testimony conflicts with that of other witnesses.
As the other witnesses to the March 31 meeting did not testify that
Waters had come to the conference room toward its end and as Strom-
berg, the only other witness to agree with Jaconski on this point also
showed a poor general recollection of events, I find from the weight of
the evidence that Waters did not appear at the March 31 meeting, but
that a grievance committee was elected which thereafter was recognized
by management, and which processed grievances in the time period
before the election.
II That night, Eric Stromberg reported the meeting to Senick, the
union representative, who told him not to worry.
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room to discuss with the employees what was happening
in the warehouse, the union problem, and other matters.
Waters had told them to use the conference room if it
was all right with Warehouse Supervisor Wier, who
thereafter assented to the meeting after being assured
that Waters had not objected.
Lesniakowski related that he and Jaconski then gath-
ered all the warehouse employees into the conference
room where he did most of the talking. Lesniakowski
told the group that the way everything was goingl 2 it
was very possible that the Company would subcontract
the work. It was also possible that it would close up.
Lesniakowski stated that the Respondent could do either
one of the two and the employees would all be out of
work and collecting unemployment. Accordingly, Les-
niakowski stated his belief that, if the employees drew up
a petition to withdraw the union election while they still
had jobs, everything would continue and the employees
would have work. If they did not do this and the Union
came in, nobody knew what was going to happen. Ac-
cordingly, Lesniakowski stated that the union matter was
an important thing to resolve and the employees should
settle down, go back to work, and keep their jobs. 3
Lesniakowski conceded that while the conference was
in session he left the room several times for various rea-
sons, but asserted that he went to Waters' office only
after the petition was signed to take it to him. In this, he
was accompanied by Jaconski and Barbato. However,
when they arrived in the office area, Waters' assistant,
Joyce Hesse, informed them that Waters was out to
lunch. Accordingly, Lesniakowski left the petition on
Waters' desk and they all returned to the conference
room. While still in the conference room, someone re-
ported that Waters had returned from lunch and was in
his office. It was then that Lesniakowski, accompanied
by Jaconski, returned to the office.
On being reassured by Waters that he was too busy to
see them, Lesniakowski picked up the petition, which
was still on Waters' desk, and stated that everyone in the
warehouse had drawn up a petition to withdraw from
the Union. Waters replied that he could not answer any
questions but would give the petition to someone to ex-
amine.
Lesniakowski, too, recalled that of overtime, paid
medical benefits, a grievance procedure, and equal pay
12 At the time of the meeting, business volume was low in the ware-
house.
"a Lesniakowski denied that he had used Waters' name as the source of
his concern and proposed antiunion document, but stified as to two rea-
sons for telling the employees on March 31 that if an election were held
the Respondent would subcontract their work. The first was his knowl-
edge that at the time in question freight which otherwise would have
been delivered to the Respondent's Edison warehouse was being diverted
to the nearby warehouse of Summit Associates, whose employees were
handling it, and, second, because of an incident about 3 days before the
March 31 meeting. At that time, while seated two stools down from
Warehouse Foreman Christopher Houlihan at a bar, Lesniakowski over-
heard Houlihan tell an acquaintance that the freight was being diverted
to the Summit building and that it looked as though "they" were going
to subcontract out the work if the Union came in. Contrary to the Re-
spondent's argument, I find that, although this incident occurred in a
public place, Lesniakowski was sufficiently near to Houlihan for the
latter to have been aware of his presence when he spoke, and, in view of
Houlihan's other conduct found below, it is concluded that Houlihan in-
tended that Lesniakowski hear his remark.
for equal work were discussed at the March 31 meet-
ing. 4
Lesniakowski and Jaconski both denied that they had
acted as agents for the Respondent in conducting the
meeting and that they had interrogated any employees
concerning their union sympathies or activities.' 5
Waters testified that he had told Jaconski and Lesnia-
kowski that they could use the conference room for the
employees' meeting when they had requested its use so
that the employees might discuss the union matter among
themselves. He told them that it was their conference
room as well as everyone else's but refused to talk to
them about the Union. By his estimate, about 15 minutes
after this conversation, Waters left for lunch.t6
When Waters returned to the office, he found the peti-
tion signed by the employees on his desk. Although the
petition had been typed on the Respondent's stationery,
Waters testified that this was the only copy of the peti-
tion that he had seen and did not know how it had come
to be typed. 7
Waters conceded that he never checked on how long
the meeting had lasted either personally or by asking his
supervisors. His only conversation that day with Ja-
conski and Lesniakowski was when he gave them per-
mission to use the conference room.
In evaluating the evidence herein, I do not find Waters
to be a credible witness. In spite of his clear involvement
in authorizing the March 31 meeting and the general tes-
timony of his dealings with Lesniakowski and Jaconski
while it was in progress, he testified that he had no
knowledge of the meeting's substance and duration, al-
though it occupied his entire work crew for nearly a full
day. As the weight of evidence, as will be discussed
below, established Waters as a participant in much of the
activity found unlawful herein, his testimony is not
deemed reliable.
2. The preelection diversion of freight from the
Respondent's warehouse
The General Counsel contends that in April, during
the weeks preceding the election, the Respondent rerout-
ed freight destined for the Edison warehouse to a facility
I block away, owned and operated by another company,
Summit Associates, and that this had been done to fur-
ther drive home the message of the March 31 meeting
14 Lesniakowski testified that, approximately 3 days after giving
Waters the petition on March 31, he encountered Waters in the ware-
house and asked if Waters thought that the petition was the right way.
Waters told Lesniakowski that he had a right to do whatever he wanted.
t' As noted, both Lesniakowski and Jaconski earlier had signed au-
thorization cards at the union meeting of March 13.
'° Waters denied Jaconski's account that, during the lunch period that
day, Jaconski and Lesniakowski had encountered him at a nearby restau-
rant at which time the two employees had told Waters that the employ-
ees had signed the petition. As Jaconski's testimony, noted above, is gen-
erally discredited, Waters' denial of this incident is accepted.
7 This denial contradicts Jaconski's testimony that the handwritten pe-
tition originally brought to Waters was typed at Waters' insistence. While
Jaconski's testimony generally is not credited, his testimony in this regard
is accepted as the almost daylong meeting certainly required company
approval and as it appears most unlikely that a warehouseman could have
required an expeditor to type the document on company stationery with-
out supervisory authorization. Accordingly, it is found that the petition
was typed at Waters' direction.
358
BEHRING INTERNATIONAL, INC.
that work in the warehouse was scarce and that if the
employees voted in the Union their jobs would be in
jeopardy. The Respondent, in turn, contends the freight
was diverted to Summit to reduce the content of the
warehouse and thus make room for the application of a
sealant to the warehouse floor to end a dust problem.
Thomas Wier, who at the time of the events herein
was warehouse supervisor,'8 testified that about a week
before the April 25 election Waters had told him that the
Respondent was going to start subcontracting work to
Summit Associates and had instructed Wier to send
trucks arriving with freight at the Respondent's receiving
dock to the Summit warehouse where it was to be re-
ceived and unloaded. Waters told Wier that the Re-
spondent wanted the men to see an empty warehouse
and to let them think a bit on the union matter.
The General Counsel argues that, in the context of
Waters' testimony that April was part of a slow period at
the Edison warehouse and that studies were then being
made to determine how labor costs could be reduced,
the Respondent's manner of preparing for the floor sea-
lant application was singular. Although Waters testified
that the Respondent did not receive a cost breakdown
for the respective storage and labor services furnished by
Summit during this period, but, rather, received an all-
inclusive bill, Respondent's Exhibit I , which evidences
the arrangement for these services, reveals that Summit
billed the Respondent at a stated rate for the space in
minimum units of 1,440 square feet and also for separate
labor costs of $9.10 per hour, which rates were substan-
tially higher than that paid by the Respondent to its own
warehouse employees. The Respondent's determination
to use Summit labor almost exclusively to handle the di-
verted incoming freight during this period and to use its
supervisors to move in-house inventory from the floor
area to be sealed to other parts of the warehouse pro-
ceeded in the face of Waters' statement that the Re-
spondent's employees did not at that time have enough
work.
The sealant was applied on April 16 and sometime
after that but before the election the Respondent stopped
diverting freight to Summit.
Waters in turn testified that it had been necessary to
divert this freight in order to reduce the quantity of ma-
terial in the warehouse and to enable inventory already
in the warehouse to be moved out of the way so that the
warehouse floor could be chemically sealed in response
to a dust problem. Although it only took I day to apply
the sealant, which dried in 48 hours, 3 additional weeks
had been needed in advance in order to make the neces-
sary preparations. These included emptying and cleaning
the warehouse so that the sealant would take and
moving freight out of the way as required. Waters relat-
ed that he first had authorized the contractor to do the
sealing work in February but the start was delayed by
uncertainty as to how much of the warehouse floor was
to be sealed. Whatever was done in preparation for the
floor sealing, including the diversion of freight and the
is Wier, called as a witness by the General Counsel, was employed by
the Respondent from November 1975 until severed on about October 7.
1977.
rearrangement of in-house material, had been done at the
contractor's instructions.
Waters explained that his decision to use Summit labor
was not unusual as in the past the Respondent, had done
business with Summit Associates, as the situation re-
quired. From the time the Respondent had assumed the
foreign air force account in November 1975, when the
Edison warehouse opened, through April 1976, a busy
interlude, the Respondent had augmented its own work
force by using three to six employees provided by
Summit. In that interval Summit employees worked at
the Respondent's warehouse with the Respondent's own
employees sorting freight and driving tow trucks. In the
slower periods which followed, the Respondent disontin-
ued the use of outside labor as unnecessary, and did not
again resort to Summit until March 1977 in connection
with the Respondent's floor sealing operation.' In
March and April no freight was transferred from the Re-
spondent's warehouse to Summit, but incoming ship-
ments were diverted to the Summit warehouse and
stored there until shipped to the customer country.
3. The alleged unlawful pay raises and other
improvements in job benefits
The General Counsel contends that in the preelection
period the Respondent promised and granted various un-
lawful pay increases to discourage employee support for
the Union.
Specifically, the General Counsel argues that the Re-
spondent, in the preelection period, reclassified and
granted accompanying pay increases to Michael Ja-
conski, Clara Kitson, and Michael Lanza. In late March
these three employees, without evaluation, were reclassi-
fied by the Respondent from the designation of receiving
clerk to warehouseman. 20 All three employees testified
that, while working as receiving clerks in parcel post,
their jobs had been to consolidate and segregate freight
by priority and to containerize the goods. Their duties
remained the same after their reclassifications, which in-
volved only the change of title to warehousemen and the
increased compensation. 21 The explanation given to the
employees by Waters for their reclassification at that
time was that the receiving clerk classification was being
eliminated.
Waters testified that under the Respondent's pay
policy as it was in the first half of 1977 employees re-
ceived salary and performance evaluations 90 days after
employment, and thereafter received evaluations and
warranted pay increases, consecutively, 6 months after
the anniversary date of their employment, I year after
the anniversary date, and every 6 months thereafter.
Under this evaluation system, employees could receive
19 Waters' testimony that the Respondent began to use Summit in Feb-
ruary and March in connection with the floor sealing procedure is con-
tradicted by the Respondent's arrangement for Summit's services, which
is dated March 28 and by its terms contemplates that Summit's services
would be rendered in the future.
20 Kitson and Lanza were reclassified effective March 26 and Jaconski
on March 28.
2' In being reclassified to warehousemen, Kitson received a monthly
increment of $207 while Jaconski and Lanza each received 238.80 a
month
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either no raises for bad performance or could receive in-
creases of 4, 6, or 8 percent, respectively, depending
upon how highly they were rated, until they reached the
highest pay rate available for their job classifications.
Accordingly, employees Eric Stromberg and Sanders
both were evaluated by the Respondent in January and,
respectively, were found to merit pay increases of 4 per-
cent. However, they were informed at the time that, as
they had reached the top of the pay scale for their re-
spective jobs, they would receive no increments. Howev-
er, both Sanders and Stromberg later received pay in-
creases effective April 27, made retroactive to their Jan-
uary evaluation dates. The April 27 increases, part of a
general across-the-board raise for all employees, was
given without use of the Respondent's evaluation proce-
dures. 22
In addition to granting the foregoing preelection raises
to Lanza, Kitson, and Jaconski, the General Counsel
contends that the Respondent also unlawfully promised a
general across-the-board wage increase before the elec-
tion, which was paid shortly after the election was con-
ducted.
Employee Ippolito testified that, in the period between
the filing of the petition in the representation case and
the conduct of the April 25 election, Waters, at a meet-
ing of employees, promised to provide such an across-
the-board increase. On that occasion, Waters told the
employees that he was trying to fight for equal pay for
equal work in the warehouse and that $300 per week per
employee was a justifiable wage. Although Ippolito
agreed that the concept of equal pay for equal work had
been discussed before the petition was filed and again
after the election, this was the first instance where the
specific figure of $300 had been mentioned.
The Respondent's payroll records reveal that a general
across-the-board pay increase was given to all warehouse
employees effective April 27, bringing their pay rate to
the uniform scale of $300 per week or $1,300 per month.
At the same time, the three parcel post employees who
worked in the small package area, Ringen, Barbato, and
William Tiedemann, were raised to approximately $280
per week or $1,217.88 per month. 23
Waters testified that I or 2 days after the April 25 rep-
resentation election he conducted a meeting in the con-
ference room with the entire warehouse staff. Waters
asked the employees if they had any complaints and sug-
gested that the employees should submit any ideas for
improved conditions in the warehouse to him and he
would see what he could do. Waters emphasized that he
could not guarantee anything. A few days later Waters
received a handwritten list itemizing the employees' pro-
22 1 find no merit to the General Counsel's contention that employees
Anthony Ippolito, Edmund Ringen, and William Tiedemann, all of whom
received pay increases on April 9, had received them unlawfully because
they were given in the preelection period. Rather, the payroll evidence
shows that they each had received their previous increments on October
9 and at like intervals before then. It is therefore concluded that their
raises of April 9 were consistent with the Respondent's longstanding
policy of affording pay raises at 6-month intervals as warranted by its
calculations.
23 The reason for paying less money to the employees in the small
package area was that their work was lighter and less demanding. These
positions were usually filled by older male and by female employees
posals. Included in this list were employee requests for
equal pay for equal work, paid hospitalization insurance,
a grievance committee, and other unrecalled items.
On the day Waters received the list he read it to the
Respondent's vice president, Murphy, who, in turn, re-
ported its contents to the Respondent's president, Ne-
whouse. Within 4 or 5 days of receiving the list from the
employees, Murphy informed Waters that certain of the
items on the list had been agreed to by the Respondent
and some were unacceptable. Among the items approved
by the Respondent was a provision for overtime pay at
time and a half after 8 hours per day rather than after 40
hours per week, the grievance committee, and equal pay
for equal work at the above-referred rates for warehouse
and parcel post employees. According to Waters, the
raises were to become effective 2 to 3 weeks after the
election and were not to be retroactive. 24
The Respondent denies that any of the pay raises and
reclassifications were granted as a result of or to counter
the Union's organizational campaign, and argues that the
across-the-board increase and other benefits did not
become effective until after the election, to which no ob-
jections had been filed. 25
As indicated in the General Counsel's brief, the Re-
spondent produced no evidence of a general across-the-
board pay increase for employees at any location other
than the Edison warehouse.
4. The alleged threatened loss of job benefits
Employee Edmund Ringen testified that in March or
early April, after the filing of the representation case pe-
tition, he and other warehouse employees were sum-
moned to a meeting called by the Respondent's vice
president, Murphy. Ringen recalled that Murphy told the
employees that he had been to the National Labor Rela-
tions Board, that a date for an election had been agreed
upon, and that he would like everyone to vote. If the
vote resulted in a tie, the Company would win, and that
was what he hoped for.2 6 Employee Anthony Ippolito
related that Murphy on that occasion had announced
that he had just returned from the road and was looking
for more contracts for the Respondent as the Company
just could not depend on the one (foreign air force) con-
tract that it had. Murphy said that that there was a
24 The Respondent did not agree to the employee proposal for paid
hospitalization insurance.
25 Waters' testimony with regard to the timing of the across-the-board
pay increase, as noted, is contradicted by the Respondent's payroll re-
cords, which show that the raise became effective on April 27, the date
that Waters testified that he first suggested to the employees that they
submit their proposals for improved job benefits. Also. while it is true
that no objections to the election were ultimately filed, as noted, such ob-
jections still could have been timely filed after April 27 when the raises
were given. Had objections been filed the raises thus given would have
been unlawful. See Belcor. Inc.. d/b/a Modesto Conwvalescent Hospital, 235
NLRB 1059, 1063 (1978).
26 Murphy testified that he met with the warehouse staff on about
April 8 at which time he announced that agreement had been reached for
a Board-conducted election on April 25. The employees were encour-
aged to vote as this decision affecting their future should not be reached
by default. Murphy stated that he was precluded from trying to influence
the employees in any way. and further stated. "What will be will be and
the Company ill go on from there.'
360
BEHRING INTERNATIONAL, INC.
chance they might get some new contracts and, if the
employees did not organize things looked good. 27
Ringen also testified that in April, before the election,
he and the other warehouse employees attended a meet-
ing called by Station Manager Waters and his assistant,
Joyce Hesse. On that occasion Waters asked the employ-
ees what their problem was. When there was no answer,
Waters said that if the employees did vote for a union he
probably would handle the negotiations and there was a
good chance, that they would lose their stock option
plan, profit-sharing plan, and pension benefits. Ringen in-
terjected that as the employees had vested rights how
could they lose these benefits? Waters did not reply.
Employee Michael Lanza averred that at a preelection
meeting of all warehouse employees Waters described
the Respondent's stock plan, telling the employees that if
they were employed for 2 years they would receive
stock in the Company. After a while, the employees
would start to own the Company. Waters told the em-
ployees that the Respondent's branch in New York had a
union but did not have the stock plan. 28
Before the election, Waters also met with the ware-
house staff, divided into separate groups, to discuss em-
ployee grievances. Ringen testified that he and members
of his group, when they met with Waters, told him of
their desire for overtime pay after 8 hours of work each
day and of their wish for more pay. Waters stated his
agreement with the employees but told them that they
were dealing with a southern-based outfit. He said that
he would see what he could do when he went to the Re-
spondent's Houston headquarters. 2 9
Waters, in turn, testified that before the election he
conducted two meetings with the warehouse staff. The
first was in the beginning of April at which time he
merely read verbatim a prepared statement to the staff,
saying nothing more than what was contained therein.
The statement announced the coming election, the date
and time, and advised the employees of their right to
participate therein, and reassured them that no effort
would be made by management to harass or intimidate
anyone involved in the election procedure. The General
Counsel does not contend that the verbatim statement as-
sertedly read to the employees contained unlawful lan-
guage.
Waters described a second meeting of all warehouse
personnel conducted later in April when he told the em-
ployees of the profit-sharing and stock option plans, the
27 Ippolito was also present at a meeting of all employees before the
election in which the Respondent's president. New house., praised the
work of the Edison warehouse employees, described the customer air
force's satisfaction with their performance, and called them the best
warehouse employees in the Respondent's organization.
.z At the time in question fringe benefits provided for its employees by
the Respondent, in addition to paid vacations. holidays, and Christmas
bonuses, included the following companywide benefits hospitalization
and major medical insurance, the Respondent's stock program whereby
the Respondent made stock purchases for eligible employees, and a
profit-sharing program While, as noted, these last programs were com-
panywide, not all of the employees had sufficient service to be eligible.
a9 Ringen's testimony on this point is., in substance if not in time, cor-
roborated by that of Jaconski. who related that, when Waters came to
the conference room at the conclusion of the March 31 meeting, he
promised the employees that he would check with the main Houston
office on the matter of obtaining equal pay for them.
existing hospitalization, sickpay, and other benefits. On
that occasion, employees asked questions as to the availa-
ble fringe benefits. Waters denied having threatened em-
ployees with the loss of existing benefits if they voted for
the Union.
5. The alleged unlawful interrogations
Warehouseman Sanders testified that on April 22, just
3 days before the election, he stopped for a drink at a
nearby bar and restaurant where he joined Supervisor
Houlihan and Lesniakowski at a table. After several min-
utes of general discussion, Lesniakowski asked Sanders
what he thought about the Union and how he was going
to vote. Sanders replied that he would vote "no," as he
did not believe the Union was going to win. Lesnia-
kowski then asked how Sanders thought everyone else
was going to vote. Sanders answered to the best of his
knowledge.
About 35 minutes later, Lesniakowski departed, leav-
ing Sanders and Houlihan alone at the table. Sanders tes-
tified, still without contradiction, that Houlihan asked
what was the matter with those people. When Sanders
asked if he meant the people at Behring, Houlihan re-
plied "Yes." Houlihan declared that he did not under-
stand why those people could possibly want the Union,
repeating this statement. Houlihan noted that the Re-
spondent was a good company to work for with profit-
sharing and stock ownership plans. Employees were not
pushed by the supervisors to work harder and if anyone
asked for time off they received it. Sanders replied that
he guessed that the employees felt that they needed the
time off because they did not receive overtime pay after
8 hours' work and had to work overtime on Saturdays
and Sundays when the warehouse was busy. Sanders de-
clared that people were completely fed up with the con-
ditions there. Houlihan then asked Sanders how he felt
the other employees were going to vote and how Sand-
ers would vote, the same questions earlier put to him by
Lesniakowski. Again, Sanders stated that he was going
to vote "no," and gave his estimate of how the various
other employees were going to vote. Houlihan then
asked who had started the Union. Sanders replied that
Eric Stromberg had started the Union along with his
brother, Ray, the two having contacted the union dele-
gate.
As a sequel to the above incident, Eric Stromberg tes-
tified that after work on June 3, the day he was laid off,
he went out for the evening with Houlihan and a number
of the Respondent's employees. Later, after dinner and a
number of drinks, he was left alone with Houlihan at a
bar. In the course of their conversation, Houlihan told
Stromberg that it was all Stromberg's fault that everyone
was getting laid off and the whole union thing. Strom-
berg said that it was not, that the Union was not his idea
alone, but that actually it was Houlihan's fault. Houlihan
had hired three men into the warehouse at pay rates
higher than several incumbent warehouse employees
were receiving at the time. Stromberg told Houlihan that
he had been approached by Lesniakowski and Jaconski
about bringing in the Union, which was what had started
the ball rolling. Houlihan, however, persisted that the
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union was Stromberg's fault. As Houlihan was becoming
increasingly belligerent, Stromberg left.
6. The alleged unlawful layoffs and postelection
contracting
On May 6 the Respondent laid off Ray Stromberg,
Clara Kitson, and Michael Lanza and on June 3 laid off
Eugene Calacino, Anthony Ippolito, Edmund Ringen,
Eric Stromberg, and Joseph Sanders, all warehouse em-
ployees, while concurrently contracting for labor serv-
ices to be provided by ESP, Inc., an outside firm.3 0 The
record also reveals that Lesniakowski and Jaconski, the
sponsors of the March 31 employees' meeting, were not
laid off but were assigned to work under a new supervi-
sor in quality control. The record reveals that in their
new quality control assignment their duties remained
what they had been as warehousemen except that they
also were responsible for training new warehouse person-
nel provided and employed by ESP, Inc.3 '
Former Warehouse Supervisor Wier testified that
about 2 weeks after the election he and the other super-
visors attended a meeting called by Waters, who told
them that as of Friday of that week all the men would
be laid off, and beginning with the following week the
Respondent was going to use an outside agency to do all
the warehouse work. Wier asked when he should inform
the employees. Waters replied that Wier should tell the
employees on Friday, when they were paid at the end of
the week, and to give them a week's notice at that time.
Waters explained that the layoffs were being effectuated
because it was estimated that the Company could save
$50,000 a year by going to an outside agency in that it
would not have to pay employee benefits, pensions, and
other related expenditures. Waters also stated that the
Respondent did not want the threat of the Union hang-
ing over its head because in all probability the employees
would go union in another year from that time when a
new election could be held. Waters told the group that
the Respondent's president, Newhouse, would probably
close the Edison terminal if the men did go union. The
Company wanted to remain nonunion.
Both Murphy and Waters described a series of studies
they, respectively, had made in May on the comparative
costs of subcontracting the warehouse labor upon which
the estimated savings were based.32
30 ESP, Inc., had been established by two men not connected with
Summit Associates, one of whom earlier had worked for the Respondent
on an efficiency report.
"3 Ringen testified that after the election and subsequent to the start of
the layoffs Jaconski, passing by, had told Ringen and another employee
that he was on his way to the office. When Ringen asked who the Com-
pany was laying off, Jaconski answered that Murphy, the Respondent's
vice president, had told him that the Company was taking care of him
and owed him for what he had done for it.
32 The record reveals that the Respondent's labor costs for its own
employees had increased in that as of April 27 all warehouse employees
received equalizing increases aligning them at uniform weekly pay levels,
and the Respondent, since the election, for the first time was paying its
employees time and a half in overtime pay after 8 hours per day. In addi-
tion, the Respondent also had recognized the employees' grievance com-
mittee and had obligated itself to process grievances. The Respondent's
fringe benefit package for its own employees, however, was less costly
than it might appear, as before the May 6 layoff only four Edison em-
ployees had sufficient service to be eligible to participate in the profit-
sharing and stock option plans.
Murphy testified that the Respondent had followed a
practice of subcontracting its work and that he, in fact,
had first recommended subcontracting work in the
Edison warehouse to the Respondent's Houston head-
quarters office in 1975. Later, in January 1977, because
of the financial problems then extant, he requested au-
thority to investigate subcontracting the warehouse work
in order to reduce costs. He reasoned that subcontracting
would give him control of the number of employees to
work at a given time so that, based on fluctuating work
volume, only those employees actually required would
be used. This could provide substantial savings over the
need to employ a fixed group as done with the Respond-
ent's own employees.
Murphy testified that the Respondent's financial situa-
tion continued to worsen in that its contract with the
customer air force underwent two changes in scope. The
first major change occurred in June 1976 when the Re-
spondent was required to interface with the customer air
force's logistics system, which resulted in increased costs
to the Respondent. The second major change occurred
when the customer air force acquired a fleet of large air
cargo carriers which it began to operate as a wing of its
own air force. This reduced the number of charter flights
for which the Respondent had been contracting, and
thus the Respondent lost a previously earned 5-percent
CAB commission on all such flights. In addition, the cus-
tomer's newly acquired airlift capacity resulted in a re-
duction of ocean bookings costing the Respondent an ad-
ditional decline in revenues generated through brokerage
fees for these ocean voyages.
A final factor increasing the Respondent's costs at that
time was the need to install a computer, which was done
in May or June, to enable the Respondent to keep cur-
rent with the customer air force's requirements. The air
force refused to renegotiate its contract to allow the Re-
spondent to recover any part of these lost earnings or
higher costs.
Based upon a financial reversal in December 1976, the
above-described factors which served to further reduce
the Respondent's earnings, and his economic analysis,
Murphy again recommended to Newhouse that the
warehouse work be subcontracted and that five ware-
house employees be laid off with severance pay and va-
cation allowances.
On May 6 the first layoffs-of Ray Stromberg, Kitson,
and Lanza-were accomplished. These, however, were
not part of the subcontracting decision, 33 but were based
on Waters' statement to Murphy about 2 weeks earlier
that he thought it was possible to reduce his warehouse
work force by three. Murphy approved this action and
the three employees were laid off.
Murphy testified that the June 3 layoffs of Colacino,
Ippollito, Ringen, Sanders, and Eric Stromberg occurred
pursuant to the decision to subcontract the work, which
thereafter was done by employees of ESP, Inc., the con-
tractor. The ESP personnel, in turn, thereafter were
3:' The contract with ESP, Inc.. the contractor who finally assumed
the warehouse work. was not executed until May 26 and no costs were
executed under it until June 6.
362
BEHRING INTERNATIONAL, INC.
trained for their work by Lesniakowski and Jaconski, a4
who, as noted, had been assigned to work in quality con-
trol after the election under a new supervisor. They
were the first assistants to be assigned to that area, which
previously had been handled by one man.
C. Analysis and Concluding Findings
1. The March 31 employees' meeting
The General Counsel, contrary to the Respondent,
contends that, in conducting the meeting of the entire
warehouse staff on March 31 in the absence of supervi-
sors, Lesniakowski and Jaconski acted as agents of the
Respondent and that their acts in connection with that
meeting were binding on the Respondent. The Respond-
ent denies that they acted as agents, indicating their gen-
eral rank-and-file status.
To determine such agency, it is not necessary to find
direct evidence that the activities of Lesniakowski and
Jaconski actually were authorized or subsequently rati-
fied. Rather, agency may be inferred from the circum-
stances. 3 5
Summarizing the credited evidence in this area, Les-
niakowski and Jaconski were the first employees allowed
to call a meeting of other employees during working
hours when no supervisor was present, receiving permis-
sion from Waters for the same in order to discuss "the
union matter." Although the meeting occupied the great
bulk of the workday of all the Edison Warehouse em-
ployees, all were paid for the time spent at the meeting
and none were questioned or reprimanded with respect
to their long absences from their work stations. The an-
tiunion petition drafted and signed at that meeting was
typed at Waters' insistence on company stationery and
delivered to Waters. Later that day Lesniakowski and
Jaconski also brought to Waters the employees' list of re-
quested improvements and benefits prepared in the con-
text of their having signed the request for withdrawal of
the election petition. To some employees, these proposals
represented a hoped-for exchange for the antiunion peti-
tion. The list included requests for overtime after 8 hours
of work, paid hospitalization, equal pay for equal work,
and establishment of a grievance procedure. The griev-
ance committee members were elected on March 31 and
were recognized and dealt with by management before
the election. Subsequently, Waters pursued the remaining
proposals with management and all but paid hospitaliza-
tion were eventually granted.
In these circumstances, noting particularly that Waters
had allowed the unprecedented meeting and had accept-
ed the employees' signed request for withdrawal of the
union petition and their list of requested job improve-
ments which had evolved from the meeting, that he sub-
J' Jaconski temporarily quit his job with the Respondent on May 6,
against the urging of company officials, because he felt badly about the
layoffs and sensed that other employees disliked him presumably because
of his involvement in cosponsoring the March 31 employees' meeting.
However, after later being asked to return by the Respondent, he went
back to work on May 23.
a5 See Razco. Inc., d/b/a Hit '. Run Food Storei, 231 NLRB 660, 669
(1977); Dellridge .4ssociates. Inc., db/a Dellridge Nursing Home, 234
NLRB 595, 599 (1978); Birmingham Publishing Company. 118 NLRB
1380, 1381-82 (1957), enfd 262 F.2d 2 (5th Cir 1958)
sequently granted most of the employees' requests, and
that it is inconceivable that the meeting could have
lasted for as long as it did without disciplinary action by
the Respondent unless conducted with the direction, as-
sistance, and encouragement of management, I find that
Lesniakowski and Jaconski acted as the Respondent's
agents in conducting the March 31 meeting and that
their statements to the warehouse employees and actions
on that occasion were binding upon the Respondent.
Therefore, it is concluded that the Respondent, through
Lesniakowski and Jaconski, violated Section 8(a)(l) of
the Act by threatening employees during the March 31
meeting that their work would be subcontracted or the
warehouse would be closed if the election was conduct-
ed and the Union was voted in. 3 6
It also is concluded that the Respondent. through Les-
niakowski and Jaconski, violated Section 8(a)(1) of the
Act as alleged in the amended complaint by making it
clear to employees on March 31 that they would be
better off without a union.3 7
2. The preelection diversion of freight
In concluding that the Respondent, in the preelection
period, was utilizing and building upon a slow period in
the warehouse to impress upon its employees the mes-
sage of the March 31 meeting that work was slow and if
they supported the Union their jobs would be in jeop-
ardy, I note former Warehouse Supervisor Wier's testi-
mony that in April, before the election, Waters, in direct-
ing him to divert incoming freight to the Summit ware-
house, had told him that the Respondent wanted the em-
ployees to see an empty warehouse and let them think a
little bit on the matter.
Although Wier, on cross-examination, continued to
adhere to this testimony, the Respondent contends that
Wier, who was subsequently severed by the Company,
was a disgruntled witness whose testimony against the
Respondent should not be credited. Wier testifed that in
the course of his employment he had received three dis-
ciplinary letters from the Respondent relating to his job
performance, and that in September he was told by
Hesse that she had learned from Waters that Wier would
be laid off in I month. In connection with his layoff the
Respondent offered to give Wier I month's severance
pay and bear the cost of the forthcoming maternity hos-
pitalization for Wier's wife if Wier signed a letter of res-
ignation. If Wier refused to sign he would receive noth-
ing. Although Wier did not sign the resignation letter, he
36 There is no evidence that Lesniakowski or Jaconski interrogated
employees as to their union sympathies or desires on March 31. While it
could be argued that, in impelling the employees to sign the request for
withdrawal of the union petition, the employees were obliged to go on
record as to their stand on the Union at that time, this is a separate form
of interference with their rights under Sec. 7 of the Act, to be considered
below, and to find that this constituted interrogation would strain the
customary usage of that term.
37 Although not alleged in the complaint, it is further found that the
Respondent. again through Lesniakowski and Jaconski, violated Sec.
8(aH1) of the Act by soliciting employees to sign the document request-
ing withdrawal of their union petition. See Dellridge .Vursing Home.
supra. and Hit 'N Run Food Stores, supra. This conduct is closely related
to the matters actually alleged, formed a part of the alleged conduct, and
s·ias full) litigated at the hearing
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did receive the severance pay and also was paid through
October 7 although he actually ceased to work for the
Respondent 2 weeks before that date. Still pending at the
time of the hearing was Wier's hopes for hospitalization
benefits as his child had not yet been born.
Although Wier was not pleased at his treatment by the
Respondent, I find him to be a credible witness. His testi-
mony is consistent with the general fact pattern of this
case, which, as will be discussed below, shows a deter-
mined effort by the Respondent to defeat the Union by
extreme tactics which are detailed in this Decision.
While Wier may have lost his position by the time of the
hearing, he had received at least I month's severance
pay and still hoped to obtain hospital coverage from the
Respondent for his wife's maternity period. Accordingly,
as Wier's testimony adverse to the Respondent was in-
consistent with his interest in receiving the hospitaliza-
tion payment, his account of the events is afforded addi-
tional credence.
However, Wier's testimony as to the significance of
the empty warehouse is corroborated by other factors in-
dicated above. Although the dust accumulation in the
warehouse which led to the floor sealing operation had
been a problem for some time, it was decided to deal
with it only in a preelection period. The warehouse staff,
underutilized at the time, was not assigned to move the
in-house inventory from the area to be sealed, but,
rather, this work was assigned to the supervisors, who
did this work after the regular work hours. Even accept-
ing, arguendo, the Respondent's assertion that it was nec-
essary in the preelection period to have leased the space
from Summit to reduce the freight level in its own ware-
house in preparation for the floor sealing, the record re-
veals that it would have been less costly for the Re-
spondent to merely have leased the space at Summit and
used its own employees to handle the diverted freight on
Summit's premises. Instead, the Respondent hired both
space and labor from Summit while retaining its own
employees. That the Respondent was free to have as-
signed its own employees to work at the Summit ware-
house is clear from the fact that in this period it actually
did assign Lesniakowski and two others to that location
to work with the Summit crew. The Respondent as part
of its antiunion campaign, as particularly evidenced by
the remarks of Lesniakowski at the March 31 meeting,
specifically called attention to the lack of work in the
warehouse and the threat of possible future layoffs as its
means of inducing employees to give up the Union. That
this was intended is coroborated by Wier. While the
floor sealing operation may have abated the dust and
solved a real problem for the Respondent, the way the
matter was handled served to provide an atmosphere
continually supportive of the March 31 threats of layoff
or shutdown.
Although the use of the freight diversion before the
election, at least in part, to make its employees apprehen-
sive about supporting the Union was not alleged as a vio-
lation in the complaint, the matter was fully litigated at
the hearing and is closely related to matters actually al-
leged. Accordingly, I find this conduct to be violative of
Section 8(a)(l) of the Act.
3. The alleged unlawful promises and granting of
wage increases and other benefits
The General Counsel, contrary to the Respondent,
contends that various pay increases were granted unlaw-
fully in the preelection period to discourage union sup-
port and activity by Respondent's employees.
From the credited evidence, including the Respond-
ent's payroll records, it is concluded that on March 26
Michael Lanza and Clara Kitson and on March 28 Mi-
chael Jaconski, respectively, were unlawfully reclassified
from receiving clerks to the higher paid position of war-
ehousemen. In view of the timing of these raises after the
start of the Union's organizational drive,3 8 and the Re-
spondent's other conduct found unlawful herein, noting
also that it is established that the institution of a new
classification and wage scale in response to an organiza-
tional drive is unlawful, 39 1 find, under the circum-
stances herein, that the reclassification of these three em-
ployees to higher paying positions is violative of Section
8(a)(1) of the Act. Waters' explanation that the reclassifi-
cations had occurred because the receiving clerk job was
being eliminated as all warehouse employees were doing
the same work illustrates the Respondent's timing as this
situation apparently had been true for some time before.
Crediting the testimony of employee Ippolito, I con-
clude that Waters, at a preelection meeting of all ware-
house employees in April, announced that he was trying
to fight for equal pay for equal work and that $300 a
week was a justifiable wage.40 This raise was actually
given but 2 days after the election at a time when objec-
tions to the election could still have been timely filed.
In my view, Waters' statement to the employees, as
described by Ippolito, constituted a promise of a pay in-
crease in the stated amount, and apparently was a pree-
lection response to the list of employee proposals sent to
him by them on March 31 in consideration of their
having signed the petition withdrawing their support for
the Union. Contrary to Waters' testimony that increased
wages and other benefits were not requested until 2 days
after the election when the request was processed, the
Respondent's own records, as noted, show that the
across-the-Board increment became effective 2 days after
the election. Accordingly, I find that the Respondent
had announced and undertaken to obtain the pay raise
well before the election was conducted in violation of
Section 8(a)(1) of the Act.
The only other job benefit granted by the Respondent
in the preelection period was the establishment and rec-
ognition of the three-member grievance committee
formed at the March 31 meeting and as a result thereof.
Although this committee took its inception from the em-
ployees' request for such representation, the committee
received its validity and standing from the Respondent as
part of the consideration for the employee-signed peti-
tion requesting withdrawal of the representation election
:' Wier's testimony that he informed the Respondent of the start or the
Union's campaign upon learning of it from employees in the first week in
March is credited.
:" rymnaser Corporation, 233 NLRB t19 (1977).
40 At that time, the most highly paid warehouse employees earned a
weekly raise oif $289
364
BEHRING INTERNATIONAL, INC.
petition. In that sense, the grievance committee was an
unlawful job benefit given before the election to encour-
age the employees to abandon their support for the
Union and to seek redress of their job-related problems
and grievances through the alternative thus provided.
Accordingly, it is concluded that, in recognizing the
grievance committee under the circumstances herein, the
Respondent violated Section 8(a)(l) of the Act.
4. The alleged unlawful threat of loss of job benefits
In accepting the testimony of employee Edmund
Ringen that, at a preelection meeting of all warehouse
employees in April, Waters declared that if the employ-
ees did vote for the Union he probably would handle ne-
gotiations and that there was a good chance that they
would then lose their stock option plan, profit-sharing
plan, and pension benefits, Waters' denial of the same is
not credited as, for reasons set forth above, he is not
deemed a reliable witness.
The Respondent contends that, even if Waters had
made the remarks attributed to him by Ringen in threat-
ening the loss of job benefits, such comments were rec-
ognized as insubstantial by Ringen himself, as Ringen, in
response, had asked, in effect, how could these benefits
be lost as the employees had vested rights. However, this
argument lacks merit. Ringen's statement was in the
nature of a protest which did not reduce the significance
of the threat. It did not even describe the relevant situa-
tion, as only 4 of the approximately 14 employees who
heard Waters that day had vested rights to these benefits.
Accordingly, it is concluded that, in threatening the loss
of such benefits, the Respondent violated Section 8(a)(1)
of the Act.
5. The alleged unlawful interrogation
From the uncontradicted testimony of Joseph Sanders,
it also is found that about 3 days before the election, at a
bar, Warehouse Supervisor Houlihan, in violation of Sec-
tion 8(a)(l) of the Act, had asked Sanders, in effect, why
the employees wanted a union, how he and each of the
other employees would vote in the forthcoming election,
and who had started the Union.
Two other incidents involving Houlihan, referred to
above and not specifically alleged in the complaint, also
are worthy of note. First, Lesniakowski testified, also
without contradiction, that about 3 days before the
March 31 meeting, while but two bar stools away, he
overheard Houlihan tell an acquaintance that the work
was being diverted to the Summit warehouse and that it
looked as though the Company was going to subcontract
out the work if the Union came in. Lesniakowski gave
this incident as a motivating factor in his decision to seek
the March 31 meeting. The second undisputed occur-
rence is taken from Eric Stromberg's testimony that on
the night of June 3 immediately following his layoff,
while Stromberg also was in a bar with Houlihan, the
latter told him that the layoffs and the whole union thing
were all Stromberg's fault, repeating this with increasing
belligerence. Houlihan's conduct relating to Stromberg
and Lesniakowski was sufficient to constitute unlawful
coercive interference with the rights of the affected em-
ployees. However, in view of my other conclusions in
this matter, which include extensive violations of Section
8(a)(1) of the Act, no unfair labor practice finding will
be made with respect to the incidents relating to Lesnia-
kowski and Stromberg as these events were not alleged
in the complaint and, if found, would not materially
affect the remedy found herein.
6. The alleged unlawful layoffs
In agreement with the General Counsel, the economic
defense offered in justification of the layoffs on May 6
and June 3, respectively, of eight employees must be
considered in the context of the union animus shown by
the Respondent. At the March 31 meeting employees
were told that if the Union came in or an election were
conducted their work would be subcontracted or the
warehouse would be closed and thus were persuaded to
sign a written request for withdrawal of their representa-
tion petition. In the critical period before the election the
Respondent also gave and promised to give pay in-
creases, recognized an employee grievance committee,
and conducted meetings of employees where, at various
times, they were told by members of management that if
they did not organize business prospects looked good,
and if the employees became unionized there was a good
chance that they would lose their profit-sharing plan,
stock option plan, and pension benefits. To create a sense
of anxiety among its employees during the preelection
period, the Respondent magnified a slow period in the
warehouse by diverting incoming freight to a contrac-
tor's premises where it was handled by that employer's
crew, and used its own supervisors after hours to move
inventory away from the floor area to be sealed, al-
though the Respondent's own employees were underuti-
lized at the time. As Wier credibly testified, a purpose of
the strategem was to let the employees see an empty
warehouse and think about the union matter. After the
last layoffs occurred, on June 3, Houlihan told Eric
Stromberg, the principal employee union activist, that
the layoffs and the Union had been Stromberg's fault. 41
While subcontracting had been considered by the Re-
spondent for years and some contractor labor had been
utilized during the first 6 months of the warehouse's op-
eration, no subcontracting was again done until the
Union began to organize the Respondent's employees.
Although the General Counsel argues with regard to
Waters' study that, adjusting for the salaries and fringe
benefits of employees Lesniakowski, Jaconski, and Tiede-
mann, who was omitted therefrom, the cost to the Re-
spondent of operating the warehouse with ESP labor for
the 4-week period between the weeks ending June 4 to
June 25 was nearly $3,000 more than it had cost to run
the operation with its own employees between the 4
weeks ending April 15 and May 6, this would not neces-
sarily be a valid projection for future comparative costs.
41 As noted Houlihan also, at various times after the representation
petition was filed, deliberately stated in Lesniakowski's hearing that the
work was being diverted to Summit and that it looked as though the Re-
spondent would subcontract out the work if the Union came in, and un-
lawfully interrogated Sanders as to how he and the other employees
would vote in he election and who had started the Union
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most of the benefits considered herein, including the
across-the-board pay raise and liberalized overtime pay
policy, became effective only on or after April 27, and
were not factors during most of the earlier 4-week
period referred to by the General Counsel. As the Re-
spondent, in subcontracting, could reduce or expand the
work force according to need with greater flexibility,
would be spared the processing of employee grievances
and payment of fringe benefits, and could keep fewer re-
cords, I am prepared to accept the Respondent's position
that subcontracting the warehouse labor ultimately could
be financially beneficial.
However, noting that the layoffs began on May 6,
only about 1-1/2 weeks after the effective date of the
across-the-board pay increase of April 27 and soon after
other benefits such as the grievance committee and in-
creased overtime benefits were granted, and Wier's testi-
mony that Waters, in directing the start of the layoffs,
had told him and the other supervisors of the Respond-
ent's continuing concern that the Union would try for
another election in the following year when one could
again be conducted, in the context of Newhouse's words
of praise for the work of the Edison staff, it is concluded
that, although the Respondent eventually could have re-
duced its costs by laying off most of its own warehouse
employees and by subcontracting their work to ESP, the
Respondent was motivated, at least in part, in so doing at
that time by a desire to reduce the possibility of another
union election in the future.4 2 Accordingly, I find that
the employee layoffs on May 6 and June 3, respectively,
were in violation of Section 8(a)(3) and (1) of the Act. 43
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Behring International, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local Union No. 478, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) of the Act
by permanently laying off or terminating Ray Strom-
42 The treatment of the laid-off employees contrasts markedly with
that afforded Lesniakowski and Jaconski, who were kept on at the new
higher pay rate in apparent reward for their services to the Respondent
in having conducted the March 31 meeting. In fact, when Jaconski left
the Respondent's employ after the first layoffs, he returned only after
having been invited back by the Respondent.
4S Also considered in reaching the conclusion herein is the fact that
the Respondent, through Houlihan's interrogation of Sanders, had actual
knowledge that laid-off employees Eric and Ray Stromberg were princi-
pal union activists.
berg, Eric Stromberg, Clara Kitson, Michael Lanza,
Eugene Colacino, Anthony Ippolito, Edmund Ringen,
and Joseph Sanders because of their support for and ac-
tivities on behalf of the Union.
4. The Respondent violated Section 8(a)(l) of the Act
by all of the foregoing conduct and by coercively inter-
rogating an employee concerning his union sentiments,
those of other employees, and as to the identity of the
employees who instigated the Union; promising and
granting employees a pay raise and improved employ-
ment benefits to discourage them from supporting the
Union; threatening employees that their work would be
subcontracted or the warehouse would be closed if an
election were conducted and the Union were voted in;
threatening employees with loss of benefits if the Union
were voted in; soliciting employees to sign a request that
the petition for a representation election be withdrawn;
coercively telling employees that they would be better
off without a union; and deliberately reducing the availa-
ble amount of work in the warehouse in the preelection
period by diverting freight and using contract labor in
order to make employees apprehensive about supporting
the Union.
5. The General Counsel has failed to prove by a pre-
ponderance of the evidence its contention that on March
31, 1977, the Respondent, through Robert Lesniakowski
and Michael Jaconski, its agents, unlawfully interrogated
employees.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that
the Respondent be ordered to cease and desist therefrom
and that it take certain affirmative action which is neces-
sary to effectuate the policies of the Act.
In view of the finding that the Respondent unlawfully
laid off or terminated Ray Stromberg, Clara Kitson, and
Michael Lanza on May 6, 1977, and Eugene Colacino,
Anthony Ippolito, Edmund Ringen, Eric Stromberg, and
Joseph Sanders on June 3, 1977, and that the Respondent
has failed and refused to reinstate them, it will be recom-
mended that the Respondent be ordered to offer each of
them immediate and full reinstatement to his or her
former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to their seniority
or other rights and privileges, and to make each of them
whole for any loss of earnings that they may have suf-
fered from the time of their termination to the date of
the Respondent's offer of reinstatement, with backpay
and interest computed in accordance with the Board's es-
tablished standards as set forth in F. W. Woolworth Com-
pany4 4 and Florida Steel Corporation.4 5 As the Respond-
ent's conduct found unlawful herein goes "to the very
heart of the Act," a broad remedy is warranted. 4 6
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:
" 90 NLRB 289 (1950).
4" 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
4' N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
366
BEHRING INTERNATIONAL, INC.
ORDER4 7
The Respondent, Behring International, Inc., Edison,
New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities, sympathies, and desires, those of
other employees, and as to the indentities of employees
active in bringing about the Union's organizational cam-
paign.
(b) Threatening employees that if the Union comes in
or a representation election is conducted their work will
be subcontracted or that the plant will be closed.
(c) Threatening employees with loss of benefits if they
support the Union.
(d) Promising and granting employees a wage increase
and other employment benefits to induce employees to
abandon their support for the Union.
(e) Soliciting employees to request, in writing, with-
drawal of the petition for a representation election.
(f) Deliberately reducing the work available to its em-
ployees in the period before a representation election by
diverting freight and using contract labor to discourage
employees from supporting the Union.
(g) Coercively informing employees that they would
be better off without the Union.
(h) Discharging or laying off and refusing to reinstate
or recall its employees in order to discourage its employ-
ees from becoming or remaining union members or oth-
erwise supporting the Union.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
47 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.
(a) Offer Ray Stromberg, Clara Kitson, Michael
Lanza, Eugene Colacino, Anthony Ippolito, Edmund
Ringen, Eric Stromberg, and Joseph Sanders immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions
of employment, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings, with interest thereon, to be comput-
ed according to the formula described above in the sec-
tion 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Edison, New Jersey, location copies of
the attached notice marked "Appendix." 48 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent 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 Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of the
complaint found to be without merit are hereby dis-
missed.
'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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
367