Blankenship & Associates

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 994 (N.L.R.B. 1992)

994
306 NLRB No. 205
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to the judge’s discrediting of
Rayford T. Blankenship’s testimony. We find merit in this exception.
Although Blankenship represented himself, cross-examined some of
the General Counsel’s witnesses, and made comments on their testi-
mony, he did not testify and cannot therefore be discredited. The
judge’s error, however, does not affect his other findings and conclu-
sions which are in most instances based on the uncontradicted testi-
mony of the General Counsel’s witnesses and are otherwise sup-
ported by a clear preponderance of all the relevant evidence.
2 We agree with the judge’s conclusion that it is of no significance
whether the Respondents meet any standard for assertion of Board
jurisdiction because this case involves the employees of Gress Poul-
try, an employer engaged in commerce within the meaning of the
Act. The Board has long asserted jurisdiction over labor consultants
solely on the basis of the commerce of the employer whose employ-
ees have been subjected to the conduct alleged to be unlawful. See,
e.g., National Lime & Stone Co., 62 NLRB 282, 285–286 (1945);
National Welders Supply Co., 132 NLRB 660, 666 (1961); and
Chalk Metal Co., 197 NLRB 1133, 1134 (1972).
Moreover, the Respondents’ answers to the consolidated complaint
and the amendment to the consolidated complaint in this case are si-
lent with regard to the allegations concerning jurisdiction. Nor have
the Respondents presented evidence to show good cause as to why
their failure to respond to the commerce allegations should not be
deemed an admission. Thus, under Sec. 102.20 of the Board’s Rules
and Regulations, the allegations are deemed admitted.
3 When the Board intends to grant such an order, it expressly does
so. See Chalk Metal, supra at 1154, and West Coast Liquidators, 205
NLRB 512, 517 (1973).
4 Meyer Stamping & Mfg. Co., 237 NLRB 1322 (1978); Plastic
Film Products Corp., 238 NLRB 135 (1978); Hochstetler & Sons,
224 NLRB 39 (1976).
5 Flex Plastics, 262 NLRB 651 (1982).
6 Parkview Nursing Center II Corp., 260 NLRB 243 (1982).
7 Vore Cinema Corp., 254 NLRB 1288 (1981).
8 Mark Twain Marine Industries, 254 NLRB 1095 (1981).
9 Buntele’s misconduct is all the more regrettable because he, un-
like Blankenship, is an attorney licensed to practice law and, there-
fore, charged with an even higher duty to honor and respect the law.
Blankenship and Associates, Inc. and Rayford T.
Blankenship and United Food and Commercial
Workers International Union, Local 72, AFL–
CIO–CLC. Case 4–CA–16503–2
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 18, 1990, Administrative Law Judge Bruce
C. Nasdor issued the attached decision. The Respond-
ents filed exceptions and a supporting brief and the
General Counsel filed cross-exceptions and a sup-
porting brief. The General Counsel also filed a brief in
support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order, as
modified.
The judge’s Order did not expressly apply to Re-
spondents when they act as agents for any employer
over whom the Board would assert jurisdiction.3 On
the other hand, the judge’s Order was broad in the
sense that it forbade Respondents from engaging in not
only the specific conduct involved herein but also con-
duct which ‘‘in any other manner’’ interferes with, re-
strains, or coerces employees in the exercise of their
Section 7 rights. For the reasons set forth below, we
believe that the Order should expressly apply to Re-
spondents when they act as agents for any employer
over whom the Board would assert jurisdiction. How-
ever, as also explained below, we do not believe that
the Order should contain the broad language ‘‘in any
other manner.’’
With respect to the first point, we review briefly Re-
spondents’ history of misconduct. For more than a dec-
ade, Blankenship’s name has come before the Board as
an agent who has committed repeated unlawful acts on
behalf of the employer/clients who hired him. Re-
spondents’ pattern or practice of violations include: un-
lawful threats of loss of work or plant closing,4 unlaw-
ful undermining of support for a union by urging em-
ployees to bargain directly with the employer,5 overall
bad-faith bargaining,6 locking out employees while en-
gaging in bad-faith bargaining,7 and unlawful solicita-
tion of grievances and promise of benefits.8
The facts of the instant case demonstrate that Re-
spondents’ conduct continued when they acted for yet
another client, Gress Poultry. Both Blankenship and
his associate, Attorney Richard Buntele, made numer-
ous threats of plant closure. At a meeting of all day-
shift employees, Blankenship spoke about two employ-
ers who closed their plants because of the union. He
said that, in one case, the employer put a large padlock
on the plant the day after the union won an election.
To dramatize the point, Blankenship then raised a pad-
lock and told the employees it would be put on the
doors if the Union came in. He repeated this graphic
reference to plant closure on the day of the election by
holding up a picture of a lock and key in the presence
of employees and by telling union organizers, in the
presence of employees, that the Employer had given
him a padlock with a shaft as large as his thumb to
put on the door when he closed the plant.
In a speech to all day-shift employees,
Blankenship’s associate, Attorney Richard Buntele,
claimed that if the Union got in, the Employer would
lock up the place and retire. According to an employee
at the meeting, Buntele stated that ‘‘Jim Gress’ wife
was sick, and that Jim Gress didn’t have to negotiate
with us because he would move to a warmer climate
to be with his wife.’’9
On the day of the election, Blankenship got into a
shouting match with union organizers Beierle and
995BLANKENSHIP & ASSOCIATES
10 NLRB v. Selvin, 527 F.2d 1273 (9th Cir. 1975).
11 Hickmott Foods, 242 NLRB 1357 (1979).
12 Under Hickmott Foods, supra, such an order is warranted ‘‘when
a respondent is shown to have a proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as to dem-
onstrate a general disregard for the employees’ fundamental statutory
rights.’’
13 Springfield Jewish Nursing Home, 292 NLRB 1266 (1989);
Emerson Electric Co., 287 NLRB 1065 (1988); SDC Investment, 284
NLRB 131 (1987); Uniontown Hospital Assn., 277 NLRB 1298
(1985); Southern Maryland Hospital, 276 NLRB 1349 (1985).
14 Emerson, supra; SDC Investment, supra.
15 282 NLRB 506 (1986).
16 303 NLRB 582 (1991).
Scalzo. Blankenship ridiculed Scalzo’s appearance and
said he was fat because he worked for the Union. He
commented on Beierle’s leather overcoat and said
Beierle must have gotten it because he makes a lot of
money working for the Union. Blankenship then told
Beierle that he, Blankenship, might be an old man
‘‘but if you take that coat off I’ll kick the shit out of
you.’’ Blankenship ended this encounter by stating
three or four times that he was hired to legally close
the plant. All of this occurred on the sidewalk in front
of the plant at a time when employees were leaving
work.
Blankenship’s misconduct extended beyond these
threats. On the morning of the election, Blankenship
took a ‘‘vote yes’’ sign from the window of a car
parked near the employee parking area. He refused to
give the sign to union organizer Chorpenning and tore
it in half in front of employees. On election day,
Blankenship openly photographed employees and
union organizers. As the judge found, Blankenship did
not show ‘‘a scintilla of legitimate justification’’ for
this action.
In sum, Respondents’ conduct in the earlier cases
and in this case clearly warrants the Order described
above. The Respondents have engaged in misconduct
as agents for many different employer-clients. Accord-
ingly, we are concerned that, absent constraint, Re-
spondents will engage in misconduct for other clients
in the future. Further, we note that, as a practical mat-
ter, an order confined to Blankenship when acting as
an agent for Gress Poultry would be meaningless.
Blankenship’s agency relationship with Gress Poultry
has ended. We therefore consider it appropriate to
enter an order which applies to Respondents when they
act as agents for any employer over whom the Board
would assert jurisdiction.
We recognize that Respondents were not named as
respondents in the earlier cases. However, we note
that, in Chalk Metal Co., supra, the Board’s similarly
broad order against the consultant was based in part on
misconduct in cases in which she was not named as
respondent. In a subsequent case, West Coast Liquida-
tors, supra, the Board relied on Chalk Metal to enter
another similarly broad order. The Ninth Circuit en-
forced the order in this respect, i.e., with respect to its
application to the consultant when acting as agent for
any employer subject to NLRB jurisdiction.10
We also recognize that the order in Chalk Metal was
the second Board order against the consultant. How-
ever, Chalk Metal did not impose a per se rule that a
broad order can never be entered in a first case against
a respondent. Further, in the subsequent Hickmott
opinion, the Board eschewed per se rules and made it
clear that each situation is to be evaluated on its own
facts.11 Thus, there is no hard and fast rule that a re-
spondent be given one free bite at the apple before ef-
fective relief is entered.
Based on the above, we shall expressly provide that
the order extend to Respondents when they act as
agents for any employer over whom the Board would
assert jurisdiction. However, the fact that the Order is
broad in that sense does not necessarily mean that it
should also be broad in the sense that it forbids Re-
spondents from engaging in not only specified conduct
but also conduct which, ‘‘in any other manner,’’ inter-
feres with, restrains, or coerces employees in the exer-
cise of Section 7 rights. The issues concerning these
two remedial orders are wholly different. The question
of whether to grant a broad order in the first sense
turns on whether the Board has a reasonable concern
that Respondents, having committed misconduct as
agents for some clients, may engage in like or related
misconduct as agents for future clients. As set forth
above, we believe that Respondents’ history amply jus-
tifies that concern. By contrast, the question of whether
the order should contain the broad language ‘‘in any
other manner’’ turns on whether Respondents’ conduct
meets the test of Hickmott Foods, as applied by the
Board.12 We do not believe that Respondents’ conduct
meets that test. In this regard, we note that the instant
case involves only 8(a)(1) violations. Although these
violations were substantial in amount, mere substan-
tiality does not warrant a remedial order containing the
broad language ‘‘in any other manner.’’13 Further, al-
though the 8(a)(1) conduct included threats to close the
plant, this factor does not necessarily warrant the broad
remedial language.14
We recognize that the prior cases involving Re-
spondents included 8(a)(1) and (5) misconduct. How-
ever, in Dominquez Valley Hospital, 287 NLRB 149
(1987), the Board refused to grant the broad remedial
order notwithstanding the presence of 8(a)(1) viola-
tions and an 8(a)(5) withdrawal of recognition.
Concededly, there are some cases where a broad
order is entered to remedy 8(a)(1) and (5) violations.
However, these cases are clearly distinguishable. In
Koons Ford of Annapolis,15 and International Door,16
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 395 U.S. 575 (1969).
the 8(a)(5) violation was based on Gissel Packing,17 a
doctrine not involved in this case. In John Ascuaga’s
Nugget, 298 NLRB 524 (1990), the respondent com-
pany had spent nearly 10 years evading its obligation,
flouting Board and court orders in the process.
Finally, in NLRB v. Selvin, supra, the Court of Ap-
peals for the Ninth Circuit declined to enforce the
Board’s Order insofar as it contained the language ‘‘in
any other manner,’’ notwithstanding a history of
8(a)(5) conduct. At the same time, the court enforced
the Board’s Order insofar as it applied to the consult-
ant (Selvin) when acting as agent of any employer
over whom the Board would assert jurisdiction. Hence,
the court enforced essentially the same kind of order
that we enter here.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Blankenship and Associates, Inc. and Rayford T.
Blankenship, Greenwood, Indiana, their officers,
agents, successors, and assigns, when acting as an
agent for any employer subject to the jurisdiction of
the Board, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(e).
‘‘(e) 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. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice when we are
acting as an agent for any employer subject to the ju-
risdiction of the National Labor Relations Board.
WE WILL NOT threaten employees with plant closure
and more difficult working conditions.
WE WILL NOT tell employees that Gress Poultry will
not deal with the employees on a union negotiating
committee if a union comes into the plant.
WE WILL NOT remove prounion or ‘‘Vote Yes’’
signs from automobiles belonging to employees or
union organizers.
WE WILL NOT take pictures of employees or union
organizers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
BLANKENSHIP AND ASSOCIATES, INC.
AND RAYFORD T. BLANKENSHIP
Richard Paul Heller, Esq. and William Slack, Esq., for the
General Counsel.
Patrick M. Conly, Esq., for Gress Poultry, Inc.
Robert T. Anderson, Esq., for the Respondent.
Daniel C. Scalzo, Union Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried at Scranton, Pennsylvania, on January 9, 10, and
11, 1989, and February 7, 1989.
The charge in this case was filed against Blankenship and
Associates, Inc. (Associates) and Rayford T. Blankenship
(Blankenship) by the Union on April 6, 1987. On August 8,
1988, the Regional Director issued an order consolidating
cases, consolidated complaint and notice of hearing, consoli-
dating the charge in this case with several other charges filed
by the Union against Gress Poultry, Inc., concurrent with ob-
jections to an election filed by the Union in Case 4–RC–
16382.
During the hearing, the General Counsel and Gress Poul-
try, Inc. executed a settlement agreement settling all the alle-
gations against Gress Poultry, and a stipulation resolving the
issues in the representation case. The Union agreed to with-
draw charges against Gress Poultry and the agreement re-
served the right for the General Counsel to introduce evi-
dence obtained during the investigation of the charges
against Gress Poultry in proceedings involving the allega-
tions against both of the Respondents herein. I approved the
settlement agreement on January 10, 1989, and this served to
sever the cases involving Gress Poultry from the cases in-
volving the Respondent, Blankenship, and Associates.
The consolidated complaint, as amended, alleges, inter
alia, that Respondent Blankenship and Respondent Associates
performed services as labor relation consultants for Gress
Poultry. It is also alleged that Respondent Associates is an
employer engaged in commerce within the meaning of the
Act and that Respondent Blankenship is a supervisor of Re-
spondent Associates within the meaning of the Act and an
agent of Respondent Associates, and Gress Poultry. It is fur-
ther alleged that Richard Buntele was a labor relations con-
sultant for Respondent Associates and an agent of both Asso-
ciates and Blankenship, and then Respondent Gress Poultry.
Specifically it is alleged that Blankenship and Buntele en-
gaged in various acts and conduct violative of Section 8(a)(1)
of the Act.
997BLANKENSHIP & ASSOCIATES
1 Counsel for the General Counsel’s motion to strike reply brief is
denied.
2 All dates are in 1986 unless otherwise specified.
3 The challenges were not sufficient to affect the results of the
election.
4 Edward Gress is sometimes known as Jim Gress.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs,1 I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, Gress Poultry, is and has been at all times
material, a Pennsylvania corporation engaged in the proc-
essing and sale of poultry at its Scranton, Pennsylvania plant.
During the past year the Employer, in the course and con-
duct of its business operations purchased and received goods
and materials valued in excess of $50,000 directly from
points outside the Commonwealth of Pennsylvania.
The Employer, Gress Poultry is, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent Associates is and has been at all times mate-
rial, an Indiana corporation engaged in the business of labor
consulting, including, but not limited to, representing man-
agement in labor relations matters from its principal office
and place of business in Greenwood, Indiana.
During the past year, Respondent Associates performed
services in excess of $50,000 for employers located in States
other than the State of Indiana, each of which is engaged in
interstate commerce.
Respondent Associates is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Gress poultry is a Poultry processing plant operating in
Scranton, Pennsylvania, where it has been in business since
1941, with the exception of a period from 1969 through 1975
when it was owned by the A&P Company.
Gress Poultry (Gress) employs over 300 employees on 2
shifts, and a large number of employees who work part time.
The employees can commence and cease work at their dis-
cretion without being penalized.
On October 16, 1986,2 the Union filed a petition to rep-
resent the Gress production and maintenance employees.
Thereafter, Gress hired the Respondent’s who, in the words
of Glenn Gress, Gress’ vice president, ‘‘run and anti-orga-
nizing campaign.’’
During the preelection campaign Blankenship worked with
Richard Buntele, a labor relations consultant with Associates,
and Blankenship directed Buntele’s performance.
Blankenship and Buntele wrote letters to employees and con-
ducted three meetings for each shift. The first and third se-
ries of meetings were conducted by both Buntele and
Blankenship, and Buntele conducted the second series of
meetings himself. Buntele testified that the second series of
meetings were held about 10 days before the election and the
third series of meetings on Monday, December 21, and the
morning of Tuesday, December 22.
An election was conducted on December 23, in three
shifts. The tally of ballots reflects that of 373 eligible voters,
114 voted for the Union and 185 against it, with 38 chal-
lenged ballots.3 As stated earlier, I approved a stipulation set-
ting aside the election, based on the Union’s objections and
the stipulation further provided for a second election, to be
held on April 7, 1989.
Buntele’s Speech
In early December, Buntele addressed all day-shift em-
ployees in the garage at the Gress Poultry plant.
Buntele, in the presence of one of Blankenship’s sons,
went over with the employees what benefits they already en-
joyed verses what the Union could do for them. They also
went over union-security clauses. Generally, Buntele ad-
dressed the relative merits of being represented or unrepre-
sented by the Union and there was a question and answer pe-
riod.
Buntele testified that he was asked by an employee wheth-
er Gress Poultry would move if the Union came in. Accord-
ing to his testimony he responded, ‘‘the company always had
the option to move, but it would have to bargain over the
impact.’’
According to the testimony of employee Charles Sears,
Buntele claimed that if the Union got in Gress would lock
the place up and retire. According to the testimony of Bar-
bara Teddick, Buntele stated that ‘‘Jim Gress’4 wife was
sick, and that Jim Gress didn’t have to negotiate with us be-
cause he would move to a warmer climate to be with his
wife.’’
Sears testified further that Buntele stated that if the Union
got in there would be no part-timers working at Gress Poul-
try. Teddick additionally testified that Buntele stated that em-
ployees could only keep their part-time status if the Union
didn’t get in. She also testified that Buntele advised the em-
ployees that Gress did not have to negotiate with the part-
timers and did not have to give them raises.
Glenn Gress, general or plant manager, testified on behalf
of the Respondents that he was present at all the meetings
(speeches). He did not testify substantively with respect to
Buntele’s speech, he simply characterized it as a ‘‘shouting
match.’’ No other witnesses testified with respect to
Buntele’s speech.
Blankenship’s Speech
On or about December 26, all of the day-shift employees
attended a third day-shift meeting, in the garage, where they
were addressed by Edward Gress, Buntele, and Blankenship.
Buntele testified that Blankenship told the employees about
one of his clients who had lost an election and immediately
padlocked its plant. According to Buntele, Blankenship also
stated that Gress had a plant in the south that could handle
all the work which was presently done in Scranton.
Blankenship also asked the employees to remember that.
Gress had been unionized when it was owned by the A&P
Company. Buntele testified that this was a reference to the
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Many of the employees are of Indian descent.
Company being shut down by A&P before being repurchased
by Gress. Buntele testified that in response to an employee
question, Blankenship stated that if Gress Poultry became
unionized it could shut down, move away, or do whatever
it wanted.
Employee Brian Hastie testified that Blankenship told the
employees on the day shift about two employers who closed
their plants because of unions. One situation in Flint, Michi-
gan, a union won an election by one vote and the employer
put a large padlock on the plant the next day. Furthermore,
an employer, Lutzlow Laundry, was taken to court by a
union and the owner of the plant closed it the next day.
Hastie also testified that Blankenship stated if the Union won
the election the that Gress could either negotiate with the
Union or close the plant. According to Hastie’s recollection,
Blankenship raised a padlock and said it would be put on the
doors if the Union came in.
Moreover, according to Hastie, Blankenship stated if the
Union won the election the Respondent did not have to deal
with the employees but only with union officials.
Hastie testified that at the meeting, Edward Gress stated
that his wife was sick and if the Union won the election, it
would be more feasible for her well being to move to a
warmer climate.
Hastie’s affidavit, which was furnished to the Board, was
consistent with his testimony. Moreover, Hastie had taken
notes contemporaneously with Blankenship’s statements.
Employees Barbara Teddick and Gladys Fox both con-
firmed that Blankenship stated at the meeting that Gress
would padlock the building if the Union won the election.
Moreover, Fox recalled Blankenship telling a story about a
plant which was padlocked the day a union won the election.
Although Blankenship was present at the hearing, the only
witness called on behalf of the Respondent was Glen Gress.
Gress did not recall with any specificity what Blankenship
stated to the employees. He testified that Blankenship gen-
erally engaged in propagandizing and antiorganizational cam-
paign slogans. Also, movies were shown setting forth the
parties respective rights. According to Gress’ testimony,
Blankenship did not threaten the employees with plant clo-
sure.
Statements by Blankenship to Union Organizers
on December 22
On the afternoon of December 22, the day before the elec-
tion, union organizers James Beierle and Dan Scalzo arrived
at the sidewalk in front of the plant at the time the employ-
ees left work after Blankenship’s speech. Beierle and Scalzo
testified, essentially corroborating each other, that a heated
discussion ensued, a yelling contest in the presence of em-
ployees. Blankenship allegedly made references to a scar on
Scalzo’s face and that Scalzo was fat because he worked for
the Union making good money. Blankenship allegedly made
remarks referencing Beierle’s leather overcoat, stating he
must have gotten it because he makes a lot of money work-
ing for the Union. According to Beierle, Blankenship stated
that he, Blankenship, might be an old man, ‘‘but if you take
that coat off I’ll kick the shit out of you.’’ Blankenship al-
legedly stated that he was not hired by Gress Poultry to keep
the Union out, he was hired to close the plant. According to
Scalzo, Blankenship stated three or four times that he was
hired to legally close the plant down.
Respondent did not call any witnesses with respect to this
confrontation.
Blankenship’s Statements to Union Organizers on the
Morning of December 23
Between the hours of 6 and 7 a.m., on December 23, the
day of the election, Scalzo, Beierle, and Adell Snyder, an or-
ganizing representative, were met by Blankenship at the em-
ployee parking lot. According to the union witnesses, they
were asked in a loud voice by Blankenship what they would
do about getting work for the employees when the plant
closed. Beierle responded by asking whether Blankenship
was trying to take the employees’ jobs away. During this
confrontation employees were arriving at the plant for the 7
a.m. shift and were in the area, including employees Rachko
and Ennis. Organizer Michelle Kessler was on the scene, and
observed Blankenship speaking but did not hear the con-
versation. Sometime later that morning Kessler had breakfast
with other organizers and several employees. They had a
conversation wherein Blankenship’s early morning comments
were related to each other reflecting what Blankenship has
said Gress would do if the Union won the election. Respond-
ent did not call any witnesses with respect to these allega-
tions.
Blankenship’s Removal of a ‘‘Vote Yes’’ Union Sign
On the morning of the election, Kessler parked her car on
a street across from the plant near the employee parking
area. She placed a sign saying ‘‘Vote Yes’’ which had been
constructed by stapling together two picket signs, under her
front windshield wiper. Buntele, Beierle, String, and orga-
nizer Chorpenning, testified that they saw Blankenship take
the sign out from under the windshield and walk away with
it. Chorpenning asked him what he was doing and
Blankenship said the sign was illegal. Chorpenning attempted
without success to grab the sign and Blankenship took it to
the plant.
Teddick, an employee, testified that she saw Blankenship
tear the sign in half outside of the plant. Kessler’s recollec-
tion was that Blankenship took the sign into the plant, tore
it apart, and laughed when realizing it was constructed from
picket signs.
Buntele and Beierle recalled that employees were walking
to and from work at the time, although Kessler testified that
only union organizers were present at the time.
Employee Kovach testified that sometime later that morn-
ing Blankenship held a picture of a key and a lock during
a conversation with Buntele. Kovach assumed this meant that
if the Union came in, the plant would close and the employ-
ees would lose their jobs. Respondent did not present any
witnesses to these incidents.
Photographing Employees and Union Organizers
Keddick, Fox, and Kovach testified that they saw
Blankenship take photographs of them and other employees
and union organizers. Individuals identified in the photo-
graphs are: union organizer Lewis Tesoro, union interpreter5
Jayotsna Patel, employee Thackor Patel, organizing rep-
resentative Michelle Kessler, union organizer Donna Smits,
999BLANKENSHIP & ASSOCIATES
organizing representative Adele Snyder, employee Judy Mul-
ligan, a union observer at the election, employee Brian
Hastie, another union observer at the election, and employee
Gladys Fox.
Buntele testified that Blankenship took three or four pho-
tographs of union organizers of Indian descent in order to see
a form the organizers were handing to employees, although
none of the photographs show anyone holding forms. Glenn
Gress testified that he did not know that Blankenship took
the photographs on the day of the election.
Scalzo testified that several employees expressed to him
that they were worried and concerned about having their
photographs taken.
Blankenship’s Statements to Union Organizers During
the Third Polling Session of the Election
At the third polling session, Snyder and Scalzo were
standing near the front of the plant and were approached by
Blankenship, Buntele, and Glenn Gress.
Scalzo testified that Blankenship stated, ‘‘You should see
what Glenn [Gress] has got me. He got me a padlock this
big.’’ Blankenship held his had about 2 to 2-1/2 feet apart.
He stated that the shaft on the padlock was as big as his
thumb and too big to take back on the plane with him, so
he put it on display in the plant. Scalzo asked him whether
the padlock was to put on the door when he closes the plant,
to which Blankenship responded affirmatively. Snyder cor-
roborated Scalzo’s testimony.
Buntele recalled Blankenship stating that he was hired by
the Gresses to shut the plant down and that Glenn Gress had
already given him the padlock. Snyder testified that there
were several employees within 5 feet of the group having the
conversation, and Scalzo confirmed that there were employ-
ees in the immediate area.
Glenn Gress, who was present during the conversation,
was not questioned by Respondent with regard to same.
Conclusion and Analysis
Jurisdiction
This is not a case pertaining to Respondent’s (Associates
and Rayford T. Blankenship) labor relations vis-a-vis their
own employees. This case involves employer engaged in
commerce; therefore, it is of no significance whether Associ-
ates and Blankenship meet any standard for assertion of
Board jurisdiction. Respondents performed services in excess
of $50,000 for employers located in States outside the State
of Indiana whom are in Interstate Commerce.
The Board has asserted jurisdiction over a consulting firm,
using the same standards applicable to nonretail business. St.
Francis Hospital, 263 NLRB 834 (1982).
I find that Associates is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Buntele’s Speech
Rather than tailor his speech to conform to established
legal precedents, Buntele communicated to the employee that
Gress would close the plant if the Union got in. Moreover,
testimony revealed another version, that Gress would close
the plant and move to a warmer climate if the Union came
in. These are clear threats of retaliation for supporting the
Union, and as such I find they violate Section 8(a)(1) of the
Act. Buntele’s unrebutted statement that the Company would
eliminate part-time jobs is also an unlawful threat which vio-
lates Section 8(a)(1) of the Act.
Blankenship’s Speech
Blankenship clearly communicated to employees the plant
closing motif. References to Gress’ history and other em-
ployer’s closings served to reinforce his threats.
The padlock image very graphically illustrated his mes-
sage.
Moreover, Blankenship stated that if the Union came in
Gress would not bargain with a negotiating committee. Thus,
Blankenship’s coercive statements violated Section 8(a)(1) of
the Act, and I so find.
Blankenship’s December 22 and 23 Statements
to Individuals
Blankenship’s statement to organizers threatening plant
closure, made in the presence of employees, was but another
flagrant act in violation of Section 8(a)(1). Furthermore, his
threats were disseminated between employees and organizers
later at a diner, during breakfast. What could be a clearer in-
tent than Blankenship’s statement to Beierle that he,
Blankenship, was hired to close the plant? There were also
discussions about the padlock and a picture of a lock and key
held up by Blankenship in proximity to, and in the presence
of, employees.
Blankenship can’t be accused of subtlety. I conclude that
all his conduct set forth above blatantly violated Section
8(a)(1) of the Act.
Blankenship’s Removal of ‘‘Vote Yes’’ Sign
Blankenship’s conduct, removing the ‘‘Vote Yes’’ sign
from Kessler’s car, refusing to return it to a union organizer,
and tearing it in half is further restraint and coercion. The
vehicle was on a public street and at least one employee was
privy to Blankenship’s conduct. I therefore conclude that
Blankenship’s acts in this regard are violative of Section
8(a)(1) of the Act.
Blankenship’s Photographing Employees
and Organizers
The Board has historically found this conduct,
photographing employees and/or organizers, a serious infrac-
tion serving to inhibit employees and constituting surveil-
lance. See Blanchard Construction Co., 234 NLRB 1035
(1978).
The Board has found this conduct violative even when the
camera didn’t contain film! Blankenship has not shown a
scintilla of legitimate justification for this action.
Blankenship’s conduct in this regard violates Section 8(a)(1)
of the Act.
Credibility
I specifically discredit Rayford T. Blankenship, particu-
larly where his testimony is at variance with the Govern-
ment’s (General Counsel’s witnesses). Board volumes are
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Giving speeches to employees to include plant closings and
threats of job loss.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
rife with similar conduct6 alleged as committed by
Blankenship although perhaps his conduct was more subdued
in those instances. My analysis of his veracity is solely based
on my impressions of his conduct and demeanor in the in-
stant case.
I fully credit all the General Counsel’s witnesses. Their
demeanor, scrupulous attention to detail, and certitude were
in stark contrast to Blankenship’s rendering. I credit Buntele,
and find that even accepting his version his statements were
violative of Section 8(a)(1) of the Act. Although subjected
to name calling and by vituperation on the record by
Blankenship, he remained cool and made a sincere effort to
testify honestly.
I specifically credit the testimony of employee Charles
Sears. On cross-examination he displayed unshakable candor
in admitting that he had been convicted for possession of a
stolen car. This does not amount to crimen falsi, and I con-
clude it is not a basis for discrediting Seers.
Agency and Responsibility
Associates and Blankenship were retained by Gress to act
as Gress’ representatives and with Buntele they performed
certain services, albeit illegal ones. They wrote to employees,
gave speeches to employees, and addressed employees indi-
vidually, all on Gress’ behalf. That’s what they were paid
for.
They represented Gress in the representation case at var-
ious stages and conferences, and at the election. Buntele
signed the tally of ballots.
Respondents are clearly agents of Gress, and as such are
employers within the meaning of Section 2(2) of the Act,
and are liable for the commission of Section 8(a)(1) conduct.
Respondents’ reliance on Blankenship & Associates, 290
NLRB 557 (1988), is misplaced.
In that case the issue was whether respondent was liable
for unfair labor practices as agents of Diamond. They were
consultants to Diamond and were alleged to have counseled
Diamond to violate the Act, and with directly committed vio-
lations. The administrative law judge concluded that respond-
ents did not directly commit unfair labor practices, but they
did unlawfully counsel Diamond to grant benefits to employ-
ees and to form and dominate an employee committee. The
administrative law judge found that respondents were liable
for these acts.
The Board reversed, concluding that record evidence did
not support counseling to form and dominate. Although the
Board did find counseling to promise and grant benefits un-
lawfully, Respondents weren’t responsible for Diamond’s
conduct based on Agency law.
The instant case does not involve any counseling.
Blankenship and Buntele directly, personally, and grossly
committed all the violations I have found in this case. I
therefore find that both Respondents are fully responsible
and liable for the unfair labor practices that they committed.
CONCLUSIONS OF LAW
1. Associates and Gress are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Blankenship is an agent of Associates, and Associates
and Blankenship were, at all times material, agents of Gress
within the meaning of Section 2(2) and (13) of the Act.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. By Buntele’s speech to employees wherein he threat-
ened them with plant closure and more onerous working con-
ditions, Respondents and each of them violated Section
8(a)(1) of the Act.
5. By Blankenship’s threat to employees of plant closure
and his statements that Gress would not negotiate with the
employees on a negotiating committee, Respondents and
each of them violated Section 8(a)(1) of the Act.
6. By making threats of plant closure to individuals, Re-
spondent Blankenship and Respondent Associates and each
of them violated Section 8(a)(1) of the Act.
7. By Blankenship’s removal of a prounion sign, Respond-
ents and each of them coerced and restrained employees in
violation of Section 8(a)(1) of the Act.
8. Blankenship’s photographing of employees and union
organizers was an Act of surveillance in violation of Section
8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have committed viola-
tions of Section 8(a)(1) of the Act, I shall recommend that
they be required to cease and desist therefrom and to post
appropriate notices and to furnish and give appropriate no-
tices to Gress. As Gress is not a Respondent in this pro-
ceeding, I will not and cannot require Gress to post such no-
tices. The Respondent’s violations in this case were so egre-
gious and widespread, that in my opinion they warrant a
broad order and I will recommend such an order.
An additional basis for a broad order is warranted in view
of the fact that Respondents and each of them directly en-
gaged in the commission of unfair labor practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondents, Blankenship and Associates, Inc. and
Rayford T. Blankenship, Greenwood, Indiana, their officers,
agents, successors, and assigns, when acting as an agent for
any employer subject to the jurisdiction of the Board, shall
1. Cease and desist from
(a) Threatening employees with plant closure and more
onerous working conditions.
(b) Threatening employees with plant closure and telling
them that Gress would not deal with employees on the nego-
tiating committee in the event that the Union came into the
plant.
(c) Removing prounion signs from the automobiles of ei-
ther employees or union organizers.
1001BLANKENSHIP & ASSOCIATES
8 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(d) Photographing employees and/or union organizers.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at their Greenwood, Indiana offices copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director for Region 4, signed
copies of the notice for posting, if Gress Poultry is willing
at its Scranton, Pennsylvania plant in places where notices to
employees are customarily posted. Copies of the notice to be
furnished by the Regional Director for Region 4, after being
signed by Respondents’ representatives shall be returned to
the Regional Director for posting.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.