Capitol Temptrol Corp.

National Labor Relations Board - Board Decisions

Jul 20, 1979

243 N.L.R.B. 575 (N.L.R.B. 1979)

CAPITOL TEMPTROL CORPORATION
Capitol Temptrol Corporation and Local 531. Interna-
tional Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America. Case 2-CA
15094
Jul\ 20. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(; AND MIMBI.RS PN 1I IO
AND TRt ESDAI F
On March 7. 1979. Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached Decision in
this proceeding. Thereafter. Respondent filed excep-
tions a supporting brief. and a request for oral argu-
ment.' and the General Counsel filed a brief in sup-
port of the Administrative Law Judge's Decision.
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 briefs
and has decided to affirm the rulings. findings2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order. as modified herein.
I Respondent's request for oral argument is hereb? denied The record. the
exceptions. and the bnriefs adequately present the issues.
2 In adopting the Administratie Law Judge's Decision. we note that he
inadvertently referred to Respondent's president. Kronlck. instead of the
Charging Parl)'s president. Kr.nitz. at sec. 111. B. 5. par. 7 of his Decision.
At fn. 34 of his Decision. he also inadsernently referred to officers instead of
offices. However. these minor errors do not affect our conclusion herein.
Respondent has excepted to certain credibilly findings made by the Ad-
ministraUve Law Judge. It is the Board's established pohc not to overrule
an administrative law judge's resolutions with respect to crediblhlt? unless
the clear preponderance of all of the relesant evidence consinces us that the
resolutions are incorrect Standard Dn- Hall Products. Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir 1951). We hase carefull? examined the
record and find no basis for reversing his findings
Respondent also asserts that the Admmnistratise Law Judge's findings and
conclusions should be set aside because the Administratile Law Judge "as-
sumed a prosecutonal role and adopted a prejudicial attitude towards the
Respondent. After a careful examinallon of the entire record. we are salls-
fied that these allegations are without ment There is no basis for finding that
the Administratile Law Judge was biased merely because he made signifi-
cant factual determinations In fasor of the General Counsel As the Supreme
Court stated in % L RB .Pittsburgh Stearmshp (onytarn. 337 L S 656. 659
I19491. 'T)otal rejection of an opposed stew cannot of itself impugn the
integnt) or competence of a tner of fact"
For the reasons set forth n Hicknmot Fd. Inr . 242 NLRB No 177
11979). we find that the Administratise Law Judge's use of the broad cease-
and-desist language in his recommended Order is unwarranted under the
facts of the instant case Accordingl F. we shall mndif the Adminlstratllse
Law Judge's recommended Order by insering the narrow "ln anN lhke or
related manner" remedial language
In the section of his Decision pertaining to Adkins' discharge the d-
minstratise Law Judge initially made reference to the Board's "ln part" lest
The Administratile Law Judge then proceeded to dlcuss Adkins' union
actlsities and Respondent's affirmatire defense before concluding that the
discharge siolated Sec 8(ag3 and of the Act Although he referred to the
-"n parn' test. whether the Administratlie laws Judge applied that standard
in reaching his conclusion remains unclear We agree with the Adminlsira-
tise Law Judge's conclusion that Adkins sas discharged because of his union
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended. the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low'. and hereb, orders that the Respondent. Capitol
Temptrol Corporation. Mt. Vernon. New York. Its
officers. agents. successors. and assisgns. shall take the
action set forth in the said recommended Order. as so
modified:
I. Substitute the following for paragraph l(h):
"(h) In an, like or related manner interfering with.
restraining. or coercing employees in the exercise of
rights guaranteed under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
actillties. but do not rel! on the "ln part" test in reaching our decision
Instead. we find. for the reasons set forth belo,. that Adkins was discharged
solel? because of his union actXiltile and that Respondenl's asserted reason
for the discharge was a pretext
Respondent contends that. consistenl wssith its policies. Adkins was dis-
charged because of his excessive absenteeism and tardiness. for wvhich he had
been repeatedl cauiioned The Administratise Law Judge found that "lal-
though Adkins admittedly was weak in his attendance and punctualit? he
was considered a skilled welder by the Respondent who. in spite of Adkins'
faults had given him frequent pay increases " The Administratise Law Judge
also found that. although Respondent had discharged other emploees In the
past because of poor attendance and/or punctualiht. it had long toleraled
Adkins' shortcomings before his participation in the events of the week of
August 8. 1977. became known Further. the Administratlse Law Judge
found that the decision to terminate Adkins on August 12. 1977. at a time
"when the emploees' union and other concerted actlsltles and the Compa-
n)'s responses thereto were at peak lesels. consiituted an abrupt change from
Respondent's prior approach to Adkins " Flnally. the Administrative Law
Judge noted the uncontradicted testimony of Joyce Adkins. who stated that
President Kronick told her that he discharged her husband because he had
instigated the .nmon. and the corroborating estlmony of emploee Moore
that he oserheard the consersation described bs Adkins wherein Production
Manager Perr! told Adkins that he had been discharged b! Kronick because
of his union actlills
We agree with the aNxe findings of the Administratise Law Judge and
would addimonally note that. although Adkins admittedly was poor in his
attendance and punctuall. an examinatlon of Adkins' work hours indicates
that his attendance was consistenil mediocre througout the penod of his
employment In other words. there is no indication that in the weeks prior to
his discharge. Adkins' attendance saned signficantly from that of earlier
weeks. Thus. it cannot be said_ for example. that Adkins started off with a
poor record of attendance. Improved upon that sgnificantl. and then sud
deni. in the weeks pror to his discharge. fell back into his bad habils and
was discharged as a result
In sum. Respondent had long tolerated Adkins' pattern of absenteeism
and lateness and. n fact. rewarded him with seeral wage increases By
discharging Adkins at a time when his union actiittes became know n. Re-
spondent showed what the Administrallse Law Judge properl? termed an
"abrupt change" in its prior attitude toward him 'e therefore conclude that
the inference s fully warranted that ii was Adkins' union actlltes rather
than his attendance record. which motlsated his discharge
APPENDIX
No I( F. To EMPI.()'tl-S
P()SII:D BY ORDIR ()O Ilt1
NAIo()N A LABOR RtlI II(}iNS BoARD
An Agenc\ of the United States Go\ernment
Wt- \\ 11 \I coercivelx interrogate ou about
243 NLRB No. 91
575
DECISIONS OF- NATIONAL. LABOR RELATIONS BOARD
your membership in and activities on behalf of
Local 531, International Brotherhood of Team-
sters, Chauffeurs. Warehousemen and Helpers
America, or any other labor organization.
WE WILL. NOI threaten you with discharge or
layoff, and wi WILl. NOT threaten that work pre-
viously performed by you in the plant will be
contracted out or discontinued and/or that the
plant will be closed because of your union activi-
ties.
WEi WI.L. NOT announce and grant pay in-
creases or refer to other possible future economic
benefits to induce you to give up your support
for the Union.
WE WIll.. NO'I force you to vote or otherwise
choose between receiving a pay raise and contin-
ued union representation.
WE Wll.l, NO' pressure you to sign written re-
vocations of the above-named Union's authority
to serve as your exclusive bargaining representa-
tive in order to avoid our obligation to continue
to recognize and bargain with the Union.
WE WILL NOrT bypass the above-named Union
as your exclusive collective-bargaining represent-
ative by dealing directly with you as to rates of'
pay and possible future economic benefits.
WE WI.L NOT refuse to bargain collectively.
upon request, with Local 531, International
Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America. as the exclu-
sive bargaining representative of all our employ-
ees in the appropriate unit described below with
respect to wages, hours of employment, and
other terms and conditions of employment.
All full-time and regular part-time produc-
tion, maintenance, shipping and receiving em-
ployees employed by Capitol Temptrol Corpo-
ration at its Mt. Vernon, New York, plant, but
excluding all office clerical employees, profes-
sional employees, draftsmen, guards and su-
pervisors, as defined in the Act, and all other
employees.
WE WILL NOI discharge you because of your
activities on behalf of and sympathy for the
above-named Union, or any other labor organi-
zation.
Wr WILL. NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you under Section 7
of the Act.
WE Wi.l. offer Albert Elvis (Fred) Adkins im-
mediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or rights and privileges previously en-
joyed, and we Wvil.1 make him whole, with inter-
est, tr any loss of earnings he may have suffered
as a result of the discrimination against him.
Wi Will.l recognize and, upon request. bargain
with the above-named labor organization as the
exclusive representative of all employees in the
atfiresaid appropriate unit with respect to rates
of pay. wages, hours. and other terms and condi-
tions of employment and. if an understanding is
reached. embody such understanding in a signed
agreement.
CAPI'loi. TIMPtI R()l. CO()RPO'()RAO()N
D[)LCISI(ON
SIAIlMI.NI ()0 I11: (ASIt
RtoHRI M. SIHWARZHARi, Administrative l.aw Judge:
This case was heard in New York. New York, on January
9 13 and February 6 and 9, 1978. pursuant to a charge filed
by Local 531. International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America,'
herein the Union, and complaint issued on September 30,
1977.2 The complaint alleges that Capitol Temptrol Corpo-
ration, herein Respondent. violated Section 8(a)( ). (3).
and (5) of the National Labor Relations Act. as amended.
herein the Act. Respondent, in answering the complaint.
denied commission of unfair labor practices.
Issues
I. Whether the Union, on August 8, became the duly
recognized, majority bargaining representative of certain of
Respondent's employees in an appropriate bargaining unit.4
2. Whether Respondent. on August I., violated Section
8(a)(5) and ( I ) of the Act by unilaterally withdrawing rec-
ognition from the Union as bargaining agent for its employ-
ees in the relevant unit and by thereafter refusing to meet
and bargain with the Union.
3. Whether Respondent, in violation of Section 8(a)(5)
and (I) of the Act. unilaterally announced and granted
wage increases to unit employees, and inferred the avail-
ability of other possible future benefits, without bargaining
with the Union as the recognized bargaining representative
of the unit employees.
4. Whether Respondent. in violation of Section 8(a)( 1 ) of
the Act, coercively interrogated employees about their
union activities and sympathies: oflered. promised. and
'The charge was filed on August 15. 1977.
All dates hereafter are in 1977 unless otherwise specified.
Respondent's name appears as amended at the hearing.
4 At he hearing. Respondent withdrew its objection o the inclusion ol
part-time employees within the alleged bargaining unit and, while contend-
ing that certain individuals should be included whom the General Counsel
would exclude. Respondent agreed to the appropriateness of the following
unit as alleged in the complaint:
All ull-time and part-lime production. maintenance, shipping and
receiving employees employed by the Respondent at its Mt. Vernon.
New York. plant. but excluding all other employees, guards and all
supervisors, as defined in the Act.
576
CAPITOL TEMPTROL CORPORATION
granted its employees wage increases and other benefits to
induce them to abandon their support to the Union: threat-
ened its employees that if they supported the Union the
plant would be closed, that work which they' previously had
been doing in the plant would he subcontracted and em-
ployees fired: and by soliciting the signatures of its employ-
ees on written revocations of' the Union's authority to repre-
sent them.
5. Whether Respondent violated Section 8(a)(3) and (I)
of the Act by discharging Albert Elvis (Fred) Adkins be-
cause of his union activities.
All parties were given full opportunity to participate. to
produce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs, which have been care-
fully considered, were filed by the General Counsel and
Respondent.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor. I now make the
following:
FINDN(is ANt) FA(
I. Itit BltSINISS ()F lME RSPNI)L-NI
The Respondent. a New York corporation, at all times
material herein has maintained its principal office and place
of business in Mt. Vernon. New York, herein called Re-
spondent's plant, where it is engaged in the manufacture,
assembly. and nonretail sale and distribution of refrigera-
tion and heating equipment and related products.
During the last fiscal year prior to the issuance of the
complaint herein, a representative period. Respondent, in
the course and conduct of its operations. sold equipment
and shipped from its plant goods and materials valued in
excess of $50,000 directly to points outside the State of New
York.
The complaint alleges. Respondent admits. and I find.
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
II. ill-E ABOR OR(iANIZAIION INVOLVi)D
Respondent. in its answer and at the hearing, placed in
issue the Union's status as a labor organization. The record
shows that Respondent is an organization in which employ-
ees participate and which exists for the purpose of repre-
senting such employees in bargaining with employers con-
cerning wages, hours, and working conditions. As such. the
Union, during the times material herein, had between 1.500
and 1,800 members and over 100 collective-bargaining
agreements with employers in various occupations includ-
ing the retail, private ambulance, cartage. and house paint-
ing industries. In its representative capacity, the Union pro-
cesses employee grievances, negotiates collective-bargaining
agreements, files unfair labor practice charges, and petitions
for representation elections.' Accordingly, I find that the
The Union had begun as an independent organization in 1957 under the
name of Production. Sales and Services Employees Union. Lal 320. and
was chartered by the International Brotherhood of Teamsters. Chauffeurs.
Warehousemen and Helpers or America on Nosember I. 1971
Union is a labor organization within the meaning of Section
2(5) of the Act.6
III. rFi-e UNFAIR ABOR PRA( II( FS
A. Bac.ground
The Respondent. founded in 1957 by its president and
chief executive officer. Joseph Kronick. is engaged at its Mt.
Vernon, New York, plant in designing and manufacturing
liquid heat and refrigeration transfer equipment for use in
specialized liquid temperature work. Respondent's emplos-
ees are skilled in welding. electrical. and pipefitting work.
Manuel Perry serves as production manager, and Joseph
Nobile. whose supervisory status is in issue. is alleged in the
complaint as Perry's assistant. Prior to August 8. Respon-
dent's employees. who worked on londays through Fri-
da's from 8 a.m. to 4:30 p.m.. were not represented bh a
union.
B. 77The bcts
1. The events of August 8
On Monday. August 8. 14 of Respondent's unit employ-
ees. instead of going to work, assembled in front of the
plant hb the 8 a.m. starting time.'
Soon after his 8 a.m. arrival at the plant. Joseph Kronick.
Respondent's president. asked Production 1anager MNanu-
el Perry to go outside and ask what was going on. Employee
Albert Elvis (Fred) Adkins testified that. when Perry asked
him what was happening. he replied that as the men had
not been given a pay increase the preceding Friday. they
were not going to work that day. Adkins continued that he
also told Perry that on the preceding Fridas he had in-
formed Perr's assistant. Joe Nohile. that this job action
w as oing to occur and that the men were talking about
bringing in a union. Perry. on the other hand. related that
he had directed his inquir to another employee. Richard
Blassetti. and had been told only that the men were in-
volved in a walkout. When Perry reported to Kronick that
the men were not coming to work. Kronick sent him out
again to tell the men to put their demands in writing and
deliver same to Kronick hb an authorized spokesmen.
In consultation with the other employees. Lawrence
(Tons) Lashley wrote out a list of 10 demands which the
men all signed. The employees then designated Milton
Scudder. the senior-most employee, as spokesman to take
the list to Kronick. Kronick related that. when Scudder
entered alone with the list. he suggested that Scudder come
back with an additional employee-spokesman. who, with
Scudder, could meet as a committee with Kronick. Shortly
after 8:30 a.m.. Scudder returned with Fred Adkins. the
other designated spokesman.
With Adkins. Scudder. and Perry. Kronick reviewed the
items on the employees' list, rejecting the first item which
fE W Wtggins At.rv. Inc., 210 NLRB 996 997 (1974).
'Several emploees testified that they had agreed among themselves dur-
ing the preceding week that if an expected par increase folllosing the end of
the recent summer alcation wlas not included in heir paychecks on Fridax.
August 5. they should not work on August 8 When the raises were not given.
the employees decided to sta i outside No union 'as nvolved in this deter-
mination
577
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD)
called for a general pay raise of $1 an hour, stating that
there were certain individuals who worked hard who de-
served to receive raises, other who were not doing anything
and that it was not fair to those who were working hard to
require that they carry the others. In any event, a $1-raise
was ridiculous.
As for the second item which called for the establishment
of retirement benefits or a pension plan. Kronick observed
that Respondent already had a program of Social Security
and that a pension plan was financially impossible.
Kronick put a question mark next to item three which
requested more personal days off, requesting clarification
on that point. He noted that employees already had 6 days
off a year for which they are paid if not used, in addition to
I- 3 weeks of vacation, depending upon time with the C'om-
pany.
Kronick responded to item four, a demand for 10 min-
utes of paid washup time before the end of the day, by
noting that the men already were taking this. He made a
similar observation with respect to item six, which called
for time-and-a-half pay for work performed after 4:30 p.m.
Kronick rejected demands five and eight, which, respec-
tively, called for hourly raises of at least 25 cents, effective
every 6 months, and for yearend bonuses to be paid from
company profits.
In response to item seven, which proposed a full day's
pay for time lost during the day's dispute. Kronick offered
to pay the men for the entire day if they would return to
work by 9 a.m. As to item nine, requiring Respondent's
answers to the list by noon that day, Kronick stated that he
was responding immediately. Kronick answered item 10.
that the raises, if given, should become effective as of Fri-
day, August 12. by declaring that the raises would be given
selectively and that employees who were entitled would
definitely receive them. Those whom Kronick did not think
deserved raises would not get them.
Soon after Adkins and Scudder went out to report Kro-
nick's response to the demands, Kronick sent Perry out to
bring the men into the plant where he met with them in a
production area.,
Perry testified that Kronick reviewed the list of demands
before the assembled employees, and declared that they
had been earning fairly good salaries and that not everyone
was entitled to receive pay raises. However, a labor consul-
tant would be retained by August 15 to evaluate the perfor-
mances of all workers. lie thereafter would recommend pay
adjustments and, possibly, the introduction of incentives to
increase productivity. According to Perry. Kronick ob-
served that for the last few months production had been
going down and that it was taking the men hours longer
then before to do certain work, and stated that he would
give raises to certain individuals. but that holidays and ad-
ditional sick days would have to be negotiated. Kronick
agreed to allow paid washup time before 4:30 and declared
that, if the men returned to work by 10 o'clock that morn-
ing, he would pay them for the whole day as though noth-
ing had happened.
s Kronick was vague as to the details of the meeting. testifying merely that
the crosstalk by the men was such that he could not communicate with them
and that they soon left the plant to again stand outside.
Employees Robert Barrow, Jr.. and Walter Moore' testi-
fied that Kronick went down the list at the meeting, reject-
ing all employee demands and stating that some men would
get raises and others would not, as deserved: Kronick
would not have a union come in and tell him what to do.
Barrow, in his testimony, added that Kronick had told the
men that, if the Union did come in, he would close the
plant and have parts made in his other facility in ('onnecti-
cut.
When this brief session ended, the men filed out of' the
plant and began to talk of' getting help from a union.
Moore, Barrow. and Dennis Novak, another employee,
having decided to call ia union, were given the telephone
number of the ULnion herein by Adkins."'
Kronick testified that. shortly after the men left the plant
and after consulting with the Respondent's vice president,
Robert Wilson,' and Perry. he decided to give all the men a
25-cent-per-hour across-the-board pay increase. Kronick
asked Adkins to convey this pay offer to the men when
Adkins reentered the plant soon after the meeting with the
workers had ended.'2
Adkins returned within the next 15 minutes and reported
that the workers had refused to accept the offer.
In the meantime, in response to the employees' call, the
Union notified its business agent, William Montaniez, to go
to the Respondent's premises. When Montanez arrived
around 11:15 am., the employees were still in front of the
plant. When Montanez introduced himself, the employees
spoke of their problems with Respondent and of their desire
to join the Union. Montanez explained the benefits of the
unionism, the current dues structure and, in response to a
question, stated that the employees presently employed
would not be required to pay initiation fees, but that such
fees would be paid by employees who begun to work for
Respondent after a contract is signed. lie told the employ-
ees that it would be necessary for them to sign union autho-
rization cards. which he then distributed to all those pre-
sent; 13 ca'ds were signed b employees in front of' the
plant and returned to Montaneiz.l
' Moore was no longer in the ('ompanys employ at the time of the hear-
ing. having been terminalted on Sepleimber 28 Ior reasons unrelated to this
case.
"0 On Friday. August 5. in anticipation of' the forthcoming job action.
Adkins had isited the office of local 531 eamsters, the (Charging Party.
where he explained the situation to Union President Charles Kranitz and
had signed an authorization card.
1 Wilson's duties appeared to relate principally to sales.
12 Kronick testified that Adkins had come back into the plant at around 9
a.m., announced that he wanted nothing to do with the Union. would never
pay union dues. and would quit if the Union came in. Adkins had lingered
enagaging company officials in general conversation for almost 3(1 minutes
after Kronick first asked that he tell the men of the oflered pay raise and
finally left only after Perry again asked that he tell the men
'1 From the record as a whole. I find that on August 8. including the card
signed by Adkins on August 5. the Union has 14 duly signed authorization
cards which either were authenticated in the record by the signers or which
are not disputed as to authenticity by Respondent. These cards. printed in
both English ad Spanish. specified that the signer was thereby applying for
admission to Local 531. Teamsters, and that the Union was being oluntarily
chosen as the applicants' "representative for purpose of collective bargaining
pertaining to wages, hours of work and other working conditions." One card
signer. Isaac (ussciot. who was not adept in nglish. was assisted by em-
ployee Dennis Novak. who explained the card and helped him complete it.
(ertain of the signed cards were gathered and given to Montanez by Adkins.
578
CAPI11 1I M I' R(0t. (RPORA I I()N
Right after Montanei had collected the signed cards,
UInion President Charles Kranitz, s ho also had heen noti-
fled bhy his office, arrived at the plant. Monta;tnez took Kran-
itz aside, explained the situation, telling Kranitz that all the
employees present had signed authorization cards. Kranitz
counted the cards and returned them to Montanez.
Kranitz told the employees that he and Montane7 were
going inside to request the Employer to recognize the
Union as the employees' hargaining representative. If' Re-
spondent granted recognition. Kranitz would ask that the
men he put hack to work. If recognition was not forthcom-
ing, the strike would continue and he would give he men
picket signs to carry.
Kranitz and Montanez testified that the) then entered
the office area of Respondent's premises and asked the re-
ceptionist if they might speak to Kronick. When Kronick
appeared after a 20-minute wait. Kranitz introduced him-
self and Montanez and announced that their union repre-
sented a majority of Respondent's employees and that thev
had signed authorization cards to that effect. When Kro-
nick asked to see the cards, Kranit, replied that if Kronick
looked at them it would he tantamount to recognition,
However, if Kronick recognized the Union Kranitz would
show him the cards and have the people go back to work.
Kronick answered that he would recognize the nion if the
cards were legitimate, that he did not want any problems,
and replied affirmatively w'hen Kranitz asked if Kronick
would he ahle to recognize the emplo ees' signatures. Kran-
itz then took the cards from Monltaine! and gal e them to
Kronick who. very carefully. examined them one at a time
until he came to the card signed h Isaac Cussciot. Refer-
ring to C(ussciot's card. Kronick stated that that man could
not write and that the card did not have his signature.
Kranitz replied that he had not been there when the cards
were signed and turned to Montanez. who affirmed that
Cussciot, in fact, had signed the card.
Kronick asked when the\ would meet to negotiate a con-
tract because he needed time to engage an attorney. Kran-
itz suggested a meeting that Thursday. August I1. at 2:30
p.m.. and asked if Kronick wanted the men to go back to
work that dav. Kronick agreed to attend the meeting with
his attorney at the suggested time. hut stated that he did not
want the men to return to work hefore the next morning to
avoid possible injury, as in his view, the, had been drinking
beer and liquor."
Kronick, in turn, testified that when he went to the ante-
room after being notified that union representatives were
waiting to see him, he encountered Kranitz eating a sand-
wich. When Kranitz handed him his card, Kronick sug-
gested that Kranitz return after 1 p.m. when he had finished
his lunch and Kronick had had his own. According to
Kranitz. Montanez then walked out leaving Kranitz and
'1 Kronick testified that he had heard that the men had been drinking
outside the plant from Adkins who also had related that unidentified em-
ployees had threatened to cut up any employees who went in to work that
day. Adkins recalled having told Kronick that some of the men wanted to
drink beer, but denied having stated that any of the men actually had been
drinking. All employee witnesses. including Adkins. who had paid for the
refreshments, denlied that anylhing olher than coffee and soda had been
consumed in front of the plant that day and that an 5 threats of violence had
been made.
Kronick to speak privately . Kranit,l holding a bunch of
cards, declared that he had cards with him aullhorizing him
to speak ior Kronick's men. Kronick replied that he was
not interested. Kranitz asked for the name of Kronick's
lawyer. When Kronick named the attorney. Kranitz de-
clared that he had never heard of himt and uggested that
Kronick get in touch with another attorne. , hom Kranitz
identiiied. stating that the Inion had worked w ith him he-
liore. Kranitz continued that he thought that the Union
could give Kronick a good "s eethearl contract" as it had
done for the employer around the corner front Reslpondent.
Kranitz reterred to this neighboring emplo ser hb name. To
Kronick's observation that several other comnpanies in the
area had gone out of business because of unionizatioln Kra-
nitz replied that Kronick would he able to live ilth his
contract. Kranitz told Kronick to set up a meeting ith the
attorile and him (Kranitz) for 3 or 3:30 p.mn. on the com-
ing Ilhursdas, August II. and he would hase the men back
to Aork bx 12:30 p.m. that da). Kronick replied that he did
not ;ant anone in the planit that da. It' the anted to
sork. the, could return the nelt morning at 8 .m. Kranitl
stated that he would have the men back the next morning
with no problems: the\ were all under his control."
It is undisputed that, when Kranitz emerged front the
plant after his meeting with Kronick, he announced to the
waiting employees that Kronick had recognized the Itnion
but that Kronick did not want the men t return o work
until the next morning as he thought. ho ever incorrectll.
that the men had been drinking beer. I he men did tol
protest this delay in their return. Kranitz sked the men to
meet with him at the I nion's Yonkers office after ork oll
the coming Wednesdas. ugust 10. to help framne the
I Inion's hargaining proposals for the scheduled n eting
with Respondenii thai Ihursda,. and directed them to re-
turn to work at the usual starting time the next da;l. Ihe
workers left the area haing agreed to attend the Wednes-
das meeting and to go back to sork as instructed
Kronick testitied that that afternoon he made the first of
a series of telephone calls to the National Labor Relations
Board's Regional Office in order to learn his righlts. On each
occasion. he spoke to the information officer. On August 8.
after introducing himself Kronick told the Board agent
that there had been a work stoppage at his plant that morn-
ing, the employees had rejected a company offer, and a
union suddenly had appeared claiming to have majority
employee support. The Board agent suggested, as a coun-
termeasure. that the employees might voluntarily sign re-
scissions of the Union's authority. He wished K ronick good
luck.
2. The events of August 9
On the following day. Tuesda, August 9. the men re-
turned to work at their usual starting time without incident.
I)uring the da,. Kronick. having heard a report from
Perry that emplosees to whom Perry had spoken had not
1V Kronick estified hat he later called his attorney and described what
had halppened The atlrne\ had been negati e as to the I nion and prom-
ised to check out he lauwer named hy Kranit. ater. the attorne5 called
Kronmck and reported that the referred laser. to w hom he had spoken.
would have nothing t, do with he matter
579
DI)CISIONS O. NATIONAL IABOR RELATIONS BOARD)
heard of' the 25-cent-per-hour pay increase offered the day
before, called a meeting of the workers within the plant.
Kronick testified that he told the assembled employees that
he had been ery surprised and personally hurt by the way
matters had been transacted because he felt that he knew
each and every person there almost like a brother. He spoke
of a need for increased productivity, specifically referring to
a heating unit produced by the Company. He told the men
that although it took the workers in Respondent's shop ap-
proximately 23 hours to assemble this unit, several weeks
before he had had the same unit components put together
by a part-time fireman in another city, who had billed Re-
spondent for only 3 hours' work.s' Kronick told the men
that he would be happy if they' did the same job in 5 hours.
Employee Robert Barrow responded that that was piece
work, which the men did not want. Kronick answered that
they could not have their cake and eat it: if they wanted
more money, they would have to produce more. The Com-
pany could not afford to work at a loss.
Kronick testified that during the meeting he stated that
he had heard rumors that no one had been told of his offer
of the 25-cent-per-hour across-the-board raise and asked
how many present had heard of it. Although Adkins inter-
jected that they had all heard of it, no one else replied.
Kronick pointed to Barrow and then to Moore. Each de-
clared that he had not heard of the wage offer. Others also
denied having heard of the increment. Over Adkins' re-
peated protest that the men had heard him refer to the
raise, the men agreed that they had not. Kronick then an-
nounced that the 25-cent increase would be given to all
employees, effective retroative to the preceding Thursday.
August 4. He then left the meeting, angry with Adkins for
not having conveyed his offer of the raise.'
Adkins testified that at that meeting Kronick stated that
he was under the impression that he had offered the men a
25-cent across-the-board pay raise and that this offer had
failed to get to the men. No one had gotten his message.
Adkins protested that he had told the men that they had
been given a 25-cent raise, which was denied by the men.
Kronick iterated that the offer still stood -a 25-cent across-
the-board raise, no questions asked. According to Adkins.
Kronick continued that he could not afford to have the
Union in the plant, that there would be no union there. and
if he had to have things built on the outside, this would be
done. Kronick declared that he would close the doors to the
shop. He told the men to vote whether to accept the raise
and to let him know. Kronick. Perry, Joe Nobile. Perry's
assistant. and the vice president, Wilson. then left the meet-
ing. Barrow asked the men what they wanted to do. By a
show of hands, the employees voted to reject the offer of the
25-cent increase. Barrow and Richard Blassetti volunteered
to tell Kronick the results of the vote and the men returned
to work.'
fx At the heanng. Respondent offered evidence, which I credit. that the
heating unit in question was not being competitively produced by Respon-
dent because of excessive labor cost.
17 Kronick's account of this meeting was substantially corroborated by
Perry.
fl Adkins' description of the August 9 meeting was partially corroborated
by Moore. who also described the offer of the pay raise and the vote but did
not confirm that Kronick had threatened to close the plant if the Union
That afternoon. following the staff meeting. Kronick
again called the Board's Regional Office where. he testified.
he spoke to the same Board agent as on the day before.
Kronick brought the Board agent up to date, informing him
that the employees had not heard of his earlier 25-cent
wage increase offer on the preceding day and that several
workers specifically stated that they did not want to be in
the Union. The Board agent. according to Kronick, replied
that, if the employees desired, he should draw an agreement
for them to sign, stating that the various signatory employ-
ees wish to rescind their union authorizations and have
each of' the employees sign them. lie again concluded by
wishing Kronick good luck.
3. The events of August 10
Kronick testified that on the next day he had Perry bring
the employees, three at a time, from the first floor produc-
tion areas to the anteroom of his second floor office. From
there Perry ushered them one at a time into Kronick's office
where each employee met separately with Kronick, Perry.
and Irving Solomon, Respondent's accountant. During
these interviews. Kronick had with him certain pre-pre-
pared documents repudiating the Union to he signed by the
employees. These consisted of a longer sheet, to be signed
by all relevant employees, and a series of' shorter pages to
be signed separately by the individual employees. Both the
long and the shorter forms bore the following handprinted
legend:
I wish to withdraw my signature of authorization to
the Teamsters' Local No. 531 to represent my employ-
ment at Capitol TIemptrol.
The first employee brought in for interview was Milton
Scudder. Kronick testified that he reminded Scudder that
he had been with the ('ompany for more than 13 years and
asked if Scudder ever had had any trouble in communicat-
ing with the Company and if he wanted a union. To both
these questions. Scudder replied. "Definitely not!" Kronick
asked whether Scudder had heard of' the Company's offer
the preceding Monday of the 25-cent across-the-board in-
crease, stating that the offer was still there and, as far as
Kronick was concerned, everyone would get the raise effec-
tive as of last Thursday so that they could receive it that
week. 0 Kronick reminded Scudder that 7 years before Re-
spondent had brought in a consultant who had interviewed
him and other employees. This consultant was going to re-
turn and again interview Scudder and all the other employ-
came. Barrow's testimony as to this meeting was less precise as he attributed
to the August 9 meeting certain events which actually had occurred at the
meeting of the previous day, such as Kronick's review of the employees' list
of demands and the selective granting of pay increases. Nonetheless. as did
Adkins. he also recalled that Kronick had threatened to shut down the plant
if the Union came in, the vote, and its results. However, noting the confusion
in Barrow's testimony as to whether the threats of plant closure and of
discontinuing the in-plant production of the heating unit occurred on August
8 and 9. 1 find from the record as a whole that these threats were first made
at the August 9 meeting.
19 Kronick related that all employees who had signed the list of employee
demands on August 8 were summoned to meet with the management panel.
except for Dennis Novak. who was about to be terminated for reasons unre-
lated to this proceeding.
20 The record reveals that the 25-cent raise actually was put into effect and
paid to Respondent's employees on Friday. August 12.
580
( 'APIO()I. ITM P1 ROI (RPO)RA iON
ees personally. It the consultant thought that emplo ees
were entitled to pa) increases, changes in job classilication
or any other modifications, such adjustments would be
made. In addition. if' any employees felt that theN were
being penalized for any reason, this, too, would be consid-
ered. However, there would be no decreases in pay and the
25-cent-an-hour raise that had been promised the day be-
fore would not be rescinded.
Kronick told Scudder that layoflH could occur if the plant
went union2' and if any of the units made by the Respon-
dent are not showing a profit, the (Company would have to
phase them out, possibly resulting in changes in sonicme of the
people in the plant. This, however, would not affect Scud-
der. Specifically. Kronick stated that the ('ompan3 was
spending too much money in making certain heating units.
He reminisced that the Company had started in business by
purchasing almost-completed units from the outside and
finishing them by adding pumps and starters to the assem-
blies so that the products could be sold under the Respon-
dent's own label. Kronick stated that, if it had to, the C(om-
pany could do this again.
Kronick concededly also told Scudder that the Respon-
dent, for the longest time. had been looking into the easi-
bility of establishing either a profit-sharing plan or a pen-
sion plan that would be handled through profit sharing. but
that it was going to take quite some time to get such plans
resolved.
Kronick, as noted, had before him during the interview
the long sheet and one of the shorter ones which had been
drafted for the employees' use in rescinding the nion's
representational authority. Kronick testified that he told
Scudder that if he wished to withdraw his authorization tbr
union representation he could do so by signing the shorter
sheet, according to information given to Kronick by the
National l.abor Relations Board. Scudder then signed as
requested. Kronick then stated that in order for him to have
a record of everyone, would Scudder do him a favor and
sign the long sheet as well. which Scudder did. Kronick
thanked Scudder and told him that he could go back to
work.
Kronick testified that he that day separately called in to
his office all 14 employees who had signed the list of de-
mands on the preceding Monday. except Dennis Novak.
who, as noted, was about to be terminated, and also in the
presence of Perry and Solomon. repeated to all employees
thus interviewed what he had said to Scudder. As re-
quested, each of the employees, during their interviews. had
signed the two forms repudiating the Union. except Show-
kat Ali. who had refused to sign, and Adkins. who. Kronick
related. had been so outspoken in his opposition to union
membership that Kronick had not even offered him the re-
scission forms to sign.22
1 Kronick explained the reference t, layoffs as reflective of his under-
standing that. if a union came in, he would lose flexihillt in sw itching em-
ployees back and forth between the heating and refrigeration department, In
accordance with seasonal requirements and that layoffs could therebh) result.
12 Perry, who, as noted, also was present at the ntervlews. testified that
employee John Malandrino, who originally left Kronick's ffice without
signing the rescissions, having refused to do so. had approached Perrt when
the interviews were over and asked if it was tio late to sign t:poin being
reassured that it was not. Malandrino returned to Kronick's office and signed
the rescissions
Kronick testified that Scudder, dkins. and A.ngcl leji;a.
during their respective inter,, ies. had stated that the
wanted no part of the nlon.
Kronick related that during his intervie With Adkins. he
specitically stated that even though Adkins had sorn that
hte had not authorized the Union to represent him. Adkins
would get whatever pay raise the other empiloees receiNed
because he .as entitled to exactly the sam e things,.
Walter Moore averred that when he was inter icwcd on
August 10. Kronick asked ,lhat he thought about the
liolln. Moore replied that he thoughtl t could he a good
thing i he could get what he was looking for. When Kro-
nick asked how Moore knew that he could get what he
wanled rom the inion. Moore ansiered that life ,as i
gamble and that if he did not take ai chance he %kould nester
know. In their conversation. Kronick told Moore that he
uwas not going to hae the nion come in and tell him what
to do. lie would close down the shop. If Moore A anted his
job. he would have to sign the two union authorization re-
scissions. Moore did so. :'
Kronick testified that on the afternoon of August 10.
when the interviews were conmpleted. he again called the
Regional Office and spoke to ia second Board agent. Again
he introduced himself. related the ecenls anid their tinleta-
hle. and U;as told that hie would require the ser\ ices of a
labor attorney tf he intended to light the matter.
4. The events of August I '
Kronick testified that in the late afternoon o August I
Kranitz called and asked when he was going to have the
mieeting with Kronlck's attorne. Kronick had responded
that the attornes, ncluding the one nanled h Kranitz.
were not interested.
Kranitzi and Montalle. how er , related that as the men
had not come, as arranged. to the Il nion's office during the
preceding afternoon to help formulale the nion's bargain-
ing proposals. the\ went to Respondent's plant on Thurs-
day, August I I. round 2:30 p.m., to find out what was
happening. Wlhen the! arried. the men were on break and
several. including Adkins and Moore were seated outside
in the !ard. When Kranitz asked where they had been on
the preceding daN. Moore and Adkins told them that Kro-
nick had held an election among the workers to find out if
they wanted the Union, had given the men a 25-cent raise,
and had threatened that he would close the plant doors.
The men also related that Kronick had taken each em-
ployee into his office and had gotten them to sign papers
denouncing the Union.
Kranitz retorted that the men would have a contract.
Respondent could not do this. and he would file unfair la-
bor practice charges. Kranitz testified that while Montanez
remained outside with the men he went inside the building.
I tnmplosee, (iuis eppe Tu-can. Issac (u-sciot. and Kamal Singh estl-
fied that the5 lto, signed the union rescission forms n response to Kronlck's
threat iit close the plant if the Union came n and/or to reduce the amorunt
of available woirk by having the heating unit assembled outside the plant
"On August 11. Krinick made his third call to the Regiional Office and
spoke once more to the first Board agent, telling him that he had worked up
a statement ior each oI the employees t sign rescinding the authoril\ of he
Union to represent Ithem and that all but one th ose gilen the pporlunits
had signed The Board agent again ,ished hn gd lo ok
58l
I)I1( ISI()NS ()1:OF NAI)NAI I.ABOR RLI.IAIIONS BO)ARI)
As Kranitz entered the anteroom, Kronick appeared.
Brushing Kranitz aside. Kronick stated that he was not
going to meet with Kranit. that he was very husy. could
not afford a union, did not want any part of the Union. and
that Kranitz should get off his premises. Kronick placed his
hand on Kranitz' shoulder as though to push him aside, and
went into the plant area where he sounded a buzzer signal-
ing the end of the break. As the men filed into the plant.
Kronick closed the outside doors. With Kranitz trailing be-
hind him, Kronick then walked out to his car and drove ofilf.
5. The discharge of Albert lvis (red) Adkins
Adkins testilied that on Thursday. August II. he told
Production Manager Perry that he would not he able to
come to work the next day until later in the morning be-
cause of personal business. Perry had smiled and told him
that that would he no problem, asking merely when he
would he in. Adkins replied that he would he in not later
than 12:30 p.m. right after lunch. ilowever, to he on the
safe side. Adkins called Perry at 8 o'clock the next morning
to remind him that he planned to be late. When Adkins told
Perry the reason ifor his call. Perry replied that it did not
matter, that Kronick was ed up and tired of all the stuff
that had been going on and was not putting up with it
anymore. lie told Adkins that he was through. Adkins re-
plied that he would come down to pick tip his check.
At 9:30 a.m., Adkins arrived and met Perrt near the
timeclock. Adkins told Perry that he was upset about what
had happened and asked for his pay. Perry declared that
there was no one there at the time who could pay him as
neither Kronick nor any of the office girls were on the
premises. He asked Adkins to return at or about 4 p.m..
when everyone was to bh paid, to pick up his check.
Adkins testified that, before leaving, he asked why he was
being fired at that particular time. Perry replied that Adkins
had been terminated for his record of excessive lateness and
absenteeism. Adkins told Perry to stop throwing the balo-
ney at him and tell him the real reason why he had been
fired at that particular time. Perry answered that. off the
record, just between the two of them. Kronick claimed that
Adkins had started the trouble in the shop with the Union
that none of this had happened before Adkins had started
working there. and that Adkins was causing a big distur-
bance in the shop. Adkins thanked Perry and said it had
been nice working with him. Perry wished him good luck.?h
Joyce Adkins. the dischargee's wife. testified that on Au-
gust 12, at or about 9:15 a.m.. she called the plant and
asked to speak to her husband. The girl who answered the
telephone replied that she did not believe that Adkins was
still working there, but could provide no details. About an
hour later. as requested. Kronick returned her call.27
21 Adkins was hired by Respondent on February 7 as a welder
'2 Adkins' account of this conversation was corroborated by Moore. who
overheard them while he was passing through the nearby locker room area.
Moore recalled hearing Adkins ask the reason for his discharge and Perr's
response that Kronick was fed up with this union thing and that he thought
that this was the reason why Adkins had been fired.
2' The record reveals that Joyce Adkins during several previous calls to the
plant had spoken to Kronick about her husband.
Jo ce Adkins asked if she could be told why her husband
was not working for the C(ompany anymore. Kronick an-
swered that he had been terminated mainly because he had
been a troublemaker and had instigated the Union. Joyce
Adkins asked if the men were not on strike. Kronick said
no. it was all her husband's doing. and that he never had
had any trouble like that before her husband had started to
work there. She then asked if Kronick had given her hus-
band his paycheck which she needed for the weekend. Kro-
nick replied that he had not. When she asked if it would be
possible for her husband to pick up the check. Kronick
stated that he did not want Adkins in the plant and, it he
did come, the police would take care of the matter. To
Joyce Adkins' question as to whether she should tell her
husband to go to the unemployment office, Kronick replied
that he had not yet decided what to do about that.
the parties stipulated that when Adkins worked he was a
fine welder and there were not complaints as to the quality
of his work. In addition, although Respondent pursued t
policy of granting wage reviews at the end otf each ear
after giving initial pay increases to deserving employees
within 4 to 8 weeks following the start of their employment.
Adkins had received an unusual number of pay increases
from Respondent. Accordingly, the parties stipulated that
Adkins. who was hired on l:ebruary 7, received a 50-cent
raise on March 2, an increase of 75 cents on April 6. and
two incremelnts of 25 cents each oIn May I I and August 10.
the last being the across-the-board raise given to all em-
ploy ees. 21
Adkins testified that he made his first contact with the
Union on Wednesday. August 3, when he telephoned a dit-
ferent Ieamsters local, which, in turn. referred him to the
Union herein. based in Yonkers. New York,. lie then called
the Ulniont and made an appointment with Kronick to meet
him at the Ulnion's office on August 5 at 5 p.m.
At the August 5 meeting. Adkins explained that the men
at (apitol I emptrol had expected to receive raises in their
pay that F[rida and had agreed that the) would not go to
work the next Mondav if these raises were not given. As the
raises hadll not been paid. Adkins anticipated that the men
would not enter the plant on the next working day, August
8.
Kranitz advised Adkins that the best thing to do would
be to go to the plant Monday as though going to work. If
the employees remained outside on Monday, still wanted a
union, and a majority would support one, he would be glad
to send representatives down to explain how to join. At
Krantiz' invitation. Adkins then signed an authorization
card.2
Adkins testified that on Monday, August . he arrived at
the plant at or about 7:30 a.m. and told employees Moore
and Barrow of his visit to the union hall on the precedig,
2 Adkins related that he received his first raise after asking Perry. who
Iold him that he did not want to lose him as a welder. Perry. in turn, testified
that Adkins had received pay increases at intervals and in amounts available
only to favored employees because Adkins was a good welder and because
his complaints about his financial situation had affected Perry emotionally.
29 Although it is clear that Adkins signed a union card on August 5, the
first in his shop to do so, it does not appear that his card had been brought
to the plant on August 8 and included among the cards which the General
('ounsel contends were shown to Kronick in support of the Union's request
Ior recognition.
CAPITOL 'I'MP'IROL CORPORATION
Friday, including Kranitz' promise of assistance. Later. at-
ter 8 a.m., when the other employees had assembled in
front of the plant and the company officials had arrived.
Adkins testified that he told Perrv. when asked what the
men were doing. that the men were not going to work that
day and that on August 5 he had notified Joe Nobile what
was going to happen, that the men were getting together to
bring in a union."' Adkins also was among those who signed
the list of employee demands and he and Scudder had been
designated as employee representatives for the purpose of
delivering this list to Respondent. During the balance of the
day, Adkins served as a principal liaison between Respon-
dent and the employees.
Adkins. when the initial meeting with Kronick did not
result in agreement, had given the UInion's telephone nuim-
ber to Barrow. Moore. and Novak, who called the Union
for aid. Although Adkins admitted having been requested
by Kronick to convey Respondent's offer of the 25-cent
across-the-board increase to the men on August 8. he con-
ceded that he did not meaningfully do so, explaining that so
much was in progress at the time in front of the plant that
the men may not have heard him. According to Montanez,.
Adkins also helped him to gather up the signed cards in
front of the plant.
Adkins testified that when. during his August 10 inter-
view, Kronick asked if he knew who had started the busi-
ness with the Union, Adkins had replied that he was not
responsible and that he did not want anN part of the Union.
as he had told Kronick when he first started working for
him. Adkins repeated that he did not want the Union. Kro-
nick told him that he had nothing to worry about as no
union would be there. Adkins does not recall how the mat-
ter of signing a paper (rescinding his union authorization)
had come up in the interview. but that he had told Kronick
that he would not be interested in signing anything at that
time.
Perry. the company official most familiar with Adkins'
performance, testified that Adkins was terminated because
of his record of excessive tardiness and absenteeism, his
lateness on August 12 being merely his final offense. Con-
trary to Adkins. Perry denied that Adkins' August 12 late-
ness had been approved in advance. Adkins himself con-
ceded that, during the 6-month period of his employment
with Respondent, from February 7 to mid-August there
were only 2 weeks when he worked a full 40-hour week, and
that during every other week he had lost time either
through absence or lateness. Perry testified that Adkins of-
ten had been reprimanded verbally because of his poor rec-
ord of punctuality and attendance and, by August 12, was
on notice that if he was late anymore he would be termi-
nated.
To counter the General Counsel's contention that the
timing of Adkins' discharge, at the peak of Respondent's
campaign against the Union, was suspicious, as Respondent
tolerated employees who frequently had been late or ab-
sent, Perry specifically identified 10 other employees ho
had been terminated by Respondent for reasons of exces-
sive absenteeism and/or lateness. Accordingly. when Ad-
'0 As noted. Perry denied this. having directed his inquiry as to what was
happening to a different employee.
kins did call on August 12. to say that he would be late
again, Perry told him that he knew that that was it. They
had discussed his absences and lateness time and again, and
Adkins knew that the next time it happened, he would be
fired. Perry told Adkins that he was sorry, but could no
longer tolerate this conduct and ould have to terminate
him."
Although Respondent attempted to impeach Josce Ad-
kins' testimon b questioning certain aspects of her pri ate
life with her husband. her description of her August 1 2 con-
versation a ith Kronick. when he gave her husband's union
activity as a reason for his discharge. was not contradicted
and is credited.
( . Dui,, a. , Iad ftndlingy
I. T'he refusal to hargalin applicabilit of a bargaining
order
a. T1it, ilproprintu HIl tnd tdlu' L' oi', m llu'vll, %1s11I
The parties are in agreement that the approprialte unit
consists of' all ull-tinme and regular part-time production.
maintenance. hipping and receimllng employees employed
bh Respondent at its Mt. Vernon. New York, plant. but
excludes all other emplo'yees. guards, and all supervisors, as
defined in the Act. Ihe also aree that 14 nalmed employ -
ees classified as welders, refrigeration assemblers. electrical
wirers. pipefitters. shipping and receising and stockroorm
employees. should be included in the flregoing unit.'' tiow-
ever. Respondent. contrary to the G(eneral (ounsel. uwould
include the flloing nine individtIals in the unit."
Jolnl Poew and .N'uto ( '/'Utll)o. Polese and ( elenalno
are emploed in Respondent's ground floor oflice area."
where Polese works with Kronick's wife. I.nnl, and reports
directll to her." (elentano. the order clerk receptionist in
turn. reports to 'Polese roln whom she receives her imlnledi-
ate instructions and i h(o is authoriied to gixe her time off.
('elentalln recel c i nct1omlng customer purchase or work or-
ders and. at Polese's direction. checks them against Respon-
dent's original proposals. noting any discrepancies. Polese
will also ask ('elentano to look into the records to see if
I Adkins reireated Irom hi, original teisimn .thal he had nt been repri-
manded lor his punclualilt and absenleeism. hut merel hd been plea.lanil,
a:sked n different c:aslnns to try Io do better li e eeniuals conceded with
reluctance hal. In lact. his cnduc In these areas had been a cnnuing
source ol Irlictln belween himsell and Respondenl and that, in pril r
Mas. he had been warned h Perr' that ii such conducl continued n the
future he would lose his joh
I` In accordance with the spulalion oI the partie. I find thai Jack I rhan
should be ecluded rom the relevant unit as a casual emplo>ce
'1 As II ha' been iiund ab.e that as of Augusl Ithe Inion had 14 .alid
aulhrizatllon cards. 13 of which were shown to the Fnrploscr In upport if
its recognilion and bargaining demand. the 9 individuals whose unit place
ment is in dispute are insufficlenl in number to affect the nlion m lJrilt
sialus. How eer. II is relevanl to reach a determinatiin as Iio Ihe standing
these persns in order II determine the composition oi the unit
' Respondent's production space is located on the first flo , its hulli-
ing, where certain i,1 ts offices, he sticskrio.m. shipping and receiving areas
are al,) itualted. There are dditional offices n the sec-ond tixr er the
ground olr office area Separate street entrances lead to the production nd
office section out the plant
v L.nn Krnicks duties include niking purchase orders foir insenior
replacelent
583
I)DECISIONS OF: NATIONAL LABOR REIATIONS BOARD
anything unusual is required for the jobh. If a work order
conforms to Respondent's quotations Celentano gives it to
Polese who would then prepare a list of parts and materials
required for the particular joh sending copies of' this list to
inventory control and production, respectively. 6 As Re-
spondent's receptionist, Celentano also welcomes visitors to
the plant and answers the telephone.
Polese has her own desk at which she spends aprroxi-
mately 99 percent of her time. She is expected to check
constantly with Manuel Perry in production on the progress
of various orders so that she can properly schedule trucks to
pick up completed work. Both she and Celentano occasion-
ally go to the stockroom. Polese and Celentano use type-
writers and a copying machine. In addition, Polese uses an
adding machine.
From the foregoing I find that Polese and C'elentano are
office clerical employees, customarily excluded by the
Board from production and maintenance units," and that
in assigning work to (elentlano and in determining whether
she might take time off from her employment. Polese was
also Celentano's supervisor. Accordingly. it is concluded
that Polese and Celentano should he excluded from the unit
found appropriate herein.
Joseph Nobi/c: The General ounsel would exclude
Nobile from the unit on the ground that he is a supervisor.
The record revealed that Nobile, unlike the hourl-rated
production employees. is salaried and reports directly to
Perry as do the production workers.
Nobile has no office or desk and works all over the plant.
After Nobile has been notified by Kronick or Perry of de-
cided changes in certain units produced by Respondent he
will use Perry's office to prepare rough sketches of the
changes to serve as the bases for more sophisticated engi-
neering drawings to be prepared by Respondent's drafts-
man. Fred Wood. Such adjustments. which usually involve
pipefitting or routings, are reflected in future machines
made by Respondent.
Nobile's first job in the morning is to close the valves on
and start the compressor. He is responsible for the mainte-
nance and lubrication of all equipment, checking to see if it
is in operating condition, maintains the heating system in
the colder months and the air-conditioning in the summer.
Large shipments passing through shipping and receiving
also are Nobile's responsibility, and on such occasions
Perry will assign men to assist him in loading or unloading
the trucks. Nobile. when loading or unloading trucks, usu-
ally will operate a forklift and gives the work crew routine
instructions, positioning them for the task.
Nobile is charged with seeing that working conditions are
safe and that the men follow safety instructions, such as
wearing goggles. He is expected to report those employees
to Perry who disregard plant safety regulations, and such
offenders are subject to suspension. Nobile also meets occa-
sionally with Kronick and Perry as the two other members
' Kronick explained the designation of Polese and (elentant} as secre-
taries on Respondent's payroll record as a characteristic error of a former
payroll clerk who since has been terminated for nefficiency.
" Hvgeia (rwu-C('ol Biotling (ornpuam. 192 NI.RB 1127. 1 128 (1971).
18 Kronick testified that Nobile's salaried status was based on his emplty-
ment history rather than his duties. Valued Ibr speci;ll skills, he had been
salaried when hired with Perr) Irom their preceding employmenl
of the salety committee, when Nobile may make recom-
mendations concerning the need for additional safety
equipment such as goggles and gloves.
The production unit is not large, and from his glass-en-
closed office Perry can observe the entire operation. During
Perry's 2-week vacation period or when Perry is otherwise
away. Kronick, rather than Nobile, assumes Perry's duties
of' overseeing production. Nobile is not consulted with re-
spect to granting overtime or wage increases, and the work
crews that assist him in loading and unloading the larger
shipments are selected by Perry. Nobile works with these
crews and issues only routine directives. He has no indepen-
dent authority to hire, tire, or make responsible recommen-
dations. As Nobile's authority to direct and assign work to
employees is limited to mechanical, repetitive situations
germane to the loading and unloading of trucks and safety
compliance. I find that such special standing as Nobile may
have is attributed to his versatility, reliability, and experi-
ence. but that he is not a supervisor within the meaning of
the Act.
W4'illiam atfield: The General ('ounsel would exclude
Hatfield, the salaried inventory controller, from the unit as
a supervisor. Hatfield, in the first week of August, had a
desk in the stockroom where he worked full time with the
since-discharged hourly-rated shipping and receiving clerk.
Dennis Novak. Hatfield was responsible for the creation of
Respondent's inventory control system, actually a cardex
method enabling Respondent to identify and locate each
required part and which showed when such parts must be
reordered. Lynn Kronick to whom Hatfield reports, uses
his cardex system in reordering materials for inventory.
When trucks arrive, it was the job of Novak, who re-
ported to Hatfield, to see that regular-sized shipments were
loaded or unloaded. In this. Novak would frequently re-
ceive help from Joe Nobile or some other employee who
would operate the forklift. Additional assistance could be
obtained through Perr., as needed. Hatfield did no physical
work with respect to moving freight on or off trucks, but
told Novak where in the stockroom to place incoming
goods and what to move out for shipment. Hatfield too,
would actively participate in putting away Respondent's in-
coming components.
Novak was not terminated until after Hatfield, at the re-
quest of Kronick and Perry, had called his errors to his
attention and had given Novak an ultimatum and a stated
time in which to improve his performance.
I find that, although Hatfield's authority to indepen-
dently affect Novak's employment status was limited, he
responsibly directed Novak's work in more than routine
lshion, exercising independent judgment in performing
this function sufficient to bring him into the statutory defi-
nition of supervisor. In any event, even if Hatfield were not
a supervisor within the strict meaning of the Act, the record
establishes that Respondent, in having Hatfield correctively
interview and warn Novak before the latter's discharge.
placed him in a position where employees could reasonably
believe that he spoke on behalf of management. 9 lie, there-
fore, should be excluded from the unit.
i I/l/na Lh,,raiorwe, ('trportou,? 225 NI.RB 257, 258 (19761. enfd. in
part 557 F.2d 1183 (5th (ir 1977): Rrouvhill C(ompanv. 210 NL.RB. 288. 294
(1974). end 514 F.2d 655 18th (Cir 1975)
584
CAPITOL TEMPTROL CORPORATION
William RBoer: The General Counsel contends that Boy-
er should be excluded from the unit on the ground that he is
a supervisor in charge of Respondent's testing operation
and also, that as a service repairman, he lacks a community
of interest with other unit members as the only individual
besides Kronick and Wilson to meet with Respondent's cus-
tomers.
The record reveals that units produced in Respondent's
production areas, after assembly and wiring, are sent to the
testing area" where, in the first week of August. Boyer and
John Malandrino were assigned.' Malandrino checked all
the refrigeration equipment while Boyer went over the heat-
ing units and made the customer service calls. In the test
area, the newly assembled units were run operationally, and
any defects were noted by Boyer and reported to his imme-
diate supervisor, Perry. If it was not feasible for the employ-
ees originally responsible for defective work to make the
repairs, as indicated. then Boyer, who, except for welding.
had all the necessary skills, would redo the work himself if
assigned by Perry who always decided who would make the
repairs. After completion of the test-indicated repairs were
completed, either Boyer or Malandrino. depending upon
availability, would do the testing.
Boyer's instructions to Malandrino basically related to
work procedures and methodology. If Malandrino did not
believe that a unit was functioning properly and had a
question, he would check with Boyer who had about 40
years experience in the industry. If they could not resolve
the problem together, it was brought to Perry's attention. In
determining whether Malandrino should receive pay raises.
Perry consulted with Boyer on the quality of his perform-
ance. These discussions were not determinative, however, as
Perry had independent means of checking the accuracy of
Malandrino's work. The test records of all the units evalu-
ated by Malandrino bore his name and Perry could readily
see what Malandrino was doing.
Earlier. Boyer's duties as service representative, which
required visiting customer's premises to repair their equip-
ment and to file detailed service reports with Respondent.
mandated that he be away from Respondent's plant on an
average of 2 days a week. However, since the start of 1977.
Respondent's service work had been performed by an out-
side contractor and Respondent was trying to keep Boyer
inside the plant. At the time of the hearing, Boyer still made
service calls when the contractor's representatives were not
available, averaging about one such call per month.
On the foregoing facts, I would include Boyer in the unit
found appropriate herein. The directions Boyer gave to
Malandrino were essentially procedural in nature and basi-
cally were those which a more experienced employee might
' The first stage in Respondent's process for the manufacture of heating
and refrigeration units is performed by the welders who fashion steel into
frames by cutting, bending, and welding. The frames are then sent to the
large or small assembly areas, where components, including piping, are
mounted and connected. The units then receive electrical wiring. The princi-
pal distinction between the large and small assembly areas relates to the sizes
of the units put together at each location, rather than differences in the
nature of the work performed. The assembled and wired units go to the
testing area before being moved to the stockrxom preparatory to shipping
4I Boyer was salaried while Malandrino was hourly rated. Malandrino
voluntarily left Respondent's employ on August 31.
give to one of lesser background. Such work assignments as
were applicable were of a routine and repetitive nature and
did not require the exercise of a significant amount of dis-
cretion. Boyer, for example, when finding defective work
while testing. could not decide who would make indicated
repairs, and as Perry had independent means of judging
Malandrino's performance. it does not appear that Boyer,
although consulted, made effective recommendations re-
garding Malandrino's pay increases. In addition, although
Boyer makes infrequent service calls to the premises of cus-
tomers. the repair work he performed on these occasions
was related to that done by unit employees inside the plant.
and Boyer's customer contacts on such occasions were not
of the same nature or frequency as those made by Kronick
and Wilson. which related generally to sales. Accordingly, I
conclude that Boyer shared a community of interest with
other employees in the unit herein and should he included.
George :Mlarriott Marriott. Respondent's engineer. holds
a degree in industrial engineering and reports to Kronick.
Marriott is involved in all swork done in the production area
relating to special machines. insuring that all such units
have components of proper size and personally selecting for
purchase and inventory the necessary parts for these ma-
chines. Although Marriott shares an upstairs office with the
draftsman. Fred Wood, the salesmen. and the bookkeeper.
he spends at least 40 percent of his time in the ground floor
production area working with the electricians and small as-
semblymen whom he guides in creating and testing the spe-
cial assemblies. Marriott's college training is deemed neces-
sary to enable him to make proper selection of components
for special equipment and to enable him to combine them
and maintain the proper flow sequence to these machines.
Marriott does not drafting. such work being handled by the
draftsman, and does not direct the draftsman in his work or
participate in the decision ais to whether the draftsman
should receive pay raises.
Noting that Marriott had received professional training
which he uses in his rork, that he independently selects
components for Respondent's special units. and renders
technical assistance in all phases of their fabrication and
testing. I find that Marrriott's duties confobrm to the re-
quirements of Section 2(12) of the Act and that he is a
professional employee who should be excluded from the
unit found appropriate herein.'2
Fred Wood: Wood. Respondent's draftsman. is salaried
and reports to Kronick who gives him his assignments.
Wood's principal function is to incorporate ideas for ma-
chines into drawings which can he used to duplicate what
has been conceived. He spends about half of his working
time at a drafting table in the second floor office which he
shares with Respondent's engineer and others. The remain-
der of his time is spent in the plant area. sketching specific
details of particular units which he later can draw up in
final detail. Wood does not give directions to other employ-
ees and only checks whether production is in conformity
with his drawings when requested to do so.
Noting Wood's specialized skills and functions. his sepa-
rate supervision and method of compensation, I find that he
42 The Ya' r& one :4anuufaturin (mprant. 135 NlRB 926, 93(1 1962)
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
does not have a sufficient community of interest with the
unit employees to warrant his inclusion in the unit. '
Charles Gondolino and Glenn Smith: As Gondolfino and
Smith had last punched their timecards on Friday. August
5, the General Counsel argues that neither of' these men
were employed within the unit on August 8 when the Union
requested and received recognition as bargaining represent-
ative for the employees in the unit herein." Although, as
noted, unit placement would not, in any event, affect the
Union's majority status, Respondent asserts that both men
should be counted in ascertaining the Union's majority sta-
tus as they had continued on the payroll until various dates
during the week of August 8, with the result that their em-
ployment with Respondent did not end until after the
Union had requested recognition.
Specifically. Respondent contends that Gondolfino
merely did not come to work on Monday, August 8. and
did not call in to report that he was quitting his job until
August 9.
Perry testified that Smith had had a record of continuous
absenteeism and lateness for which he had been repri-
manded repeatedly. Smith, too, did not show up for work
on August 8 and, when he did come in on August 9. Perry
refused to let him work and discharged him.
The General Counsel argues that as Respondent's time-
cards show that these two men last worked before the criti-
cal date of August 8 and as they contain no notation of
subsequent action taken with respect to them, the ('ompa-
ny's records should be accepted over the testimony of' Kro-
nick and Perry and that the two men should not be consid-
ered members of the unit on August 8. ('ontrary to the
General Counsel, I find that the timecards are less indica-
tive of the status of (jondolfino and Smith on August 8
than the testimony of the company officials. There is no
legal or other requirement that the cards. which merely
show hours of work, must also reflect the entire employ-
ment history of the employees to whom they relate. 'The
General Counsel has not established that Respondent. in
fact, had followed a practice of' using timecards for the
more extended purpose argued, and the sworn testimony of
Respondent's officials as to the employment status of the
two men after August 5 is more specific. Accordingly. I find
that Smith and Gondolfino were employed within the unit
on August 8.
Accordingly, having concluded that Joe Nobile. William
Boyer, Charles Gondolfino, and Glenn Smith were em-
ployed within the unit when the Union requested recogni-
tion and that Joann Polese, Susan Celentano, George Mar-
riott, William Hatfield, and Fred Wood were in nonunit
positions, it is found that on August 8 there were 18 em-
ployees within the unit and that the Union had the majority
support of 14.
b. The Respondent s withdrlawal of recognion trtom the
Union
The General Counsel contends that Respondent granted
voluntary recognition to the Union as the bargaining repre-
41 Muoland ('up Corporauion, 171 NI.RB 367, 369 (1968)
"The parties agree that while with Respondent both (;indolfino and
Smith worked in positions within the scope of the unit.
sentative of' the unit employees on August 8. as requested
by Union Representatives Kranitz and Montanez, follow-
ing a detailed card check by Respondent's president, Kro-
nick, to ascertain the Union's majority status, and that Re-
spondent unlawfully withdrew such recognition from the
Union on August 11. Respondent denied that recognition
was ever afforded.
In determining this issue I credit the testimony of Kranitz
and Montanez over that of Kronick. The union officials'
account of the August 8 meeting with Kronick appeared to
be more authentic and detailed than was Kronick's state-
ment that he had dismissed the two men in short order
without looking at the union cards. Kranitz was able to
relate that Kronick, while inspecting the cards, had ex-
pressed doubt at employee Cussciot's ability to complete
and sign his own card, although Kranitz had not been pre-
sent when the cards were signed and had no opportunity to
learn of' the literacy levels of Respondent's employees. In
addition, as the employees already had refused to work that
day and were prepared to militantly support the Union.
there would have been no incentive for Kranitz to immedi-
ately end their walkout and send them hack to work with-
out having reached an understanding with Respondent.
Similarly. there would have been no motivation for Kranitz
to arrange to meet with the men on August 10 to frame
bargaining proposals or fr him and Montanez to return to
the plant on August I1. Rather, it would appear from Kro-
nick's own account that within 2 days of his meeting with
the union representatives he took action to counter the
Union's majority by a course of conduct which included
calling each employee separately into his office and there
forcing each to rescind his union authorization by promis-
ing and granting benefits and by threatening that if the
Union came in to the plant, some of their work would be
subcontracted. the plant could be closed, and that they
would be discharged. Accordingly. noting that on August 8
the Ulnion did have demonstrable support of a majority of
the unit employees, that 14 employees were then engaged in
a walkout. and fr thile further reasons noted above. I find
that Respondent granted the Union's request fobr recogni-
tion on August 8 and agreed that date to meet with the
Union's representatives in the presence of counsel on
Thursday. August I .
Having credited the testimony of Kranitz and Montanez
that recognition had been afforded. I also credit their testi-
mony that, on August I I. Kronick revoked the recognition
he earlier had afforded the Union.
In Jrr-Dan (orp., 4' the Board quoted with approval the
following passage from Administrative l.aw Judge David-
son's decision in the analogous case of Browtn & ('onrllv,
,(t' .41
Once voluntary recognition has been granted to a
majority union, the union becomes the exclusive col-
lective-bargaining representative of the employees, and
withdrawal or reneging from the commitment to recog-
nize before a reasonable time for bargaining has
elasped violates the employer's bargaining obligation.
,' 237 NlRB 302 (1978)
' 237 N.LRB 271 (197X).
586
('AP110()1 II1'PrR(oI (R()I)ORAII(ON
Evidence that anll eploer has commenced bargaining
or has taken other affirmative action consistent with its
recognition of the union aids in resolving the eviden-
tary question as to whether recognition was granted.
However. once the fact of recognition is established
such additional evidence is not required for the bar-
gaining obligation arises upon voluntary recognition
and continues until there has been a reasonable oppor-
tunity for bargaining to succeed.
In accordance with the foregoing statement of' law, and
the credited evidence herein, it is found that Responldeni's
withdrawal of recognition from the Union was in violation
of Section 8(a)(5) and (I) of the Act.4
c. The unilhlterl pa rai.c
I find, in agreement with the General Counsel, that the
Respondent's conduct in granting a 25-cent across-the-
board pay raise to the unit employees. retroactive to August
4, without notice to or consultation with the nion. was in
violation of Section 8(a)(5) and ( I) of the Act.4 As this pay
raise was part of the calculated effort by Respondent to
induce employees to repudiate the Union. it also constitutes
an independent violation of Section 8(a)( II.
However. I do not agree with the General Counsel's con-
tention that the violation with respect to the offer of the 25-
cent raise arose on August 8 when Kronick first asked Ad-
kins to go outside and tell the men his offer. The (;eneral
Counsel relies on Adkins' estimony that Respondent b'
then had notice of the Union's organizational campaign. as
on August 5 he had told Joe Nobile. an alleged supervisor.
in warning him of the forthcoming job action. and that the
employees were thinking of bringing in a union; also that
Adkins had reminded Perry of this conversation with
Nobile early on the morning of August 8 when Perrt had
come out to ask why the men had not gone into work.
However, as it has been found that Nobile is not a supervi-
sor, statements made to him would not be notice to Respon-
dent. Further, as Adkins is not found to be a reliable wit-
ness, I do not credit his testimony that he, in fact, did speak
to Perry of the Union in the face of denials by compan,
officials that they had knowledge of the Union's interest
before Kranitz' arrival.
Adkins is not found to be credible because of major in-
consistencies in his testimony. Under cross-examination, he
admitted having testified at an earlier state unemployment
compensation hearing that he had gone to the Union onlN
after being discharged and that, although testifying in the
present proceeding that there had been no tape recording
made of his wife's above-described August 12 conversation
with Kronick as to the reasons for his discharge," at the
state board hearing. he represented that he, in act, had
,' In view of this conclusion. I find it unnecessary tio also consider the
contention of the General Counsel under V IR B. v. G(;isse PAistg (Co.
Inc., 395 U.S. 575 (1969), that Respondent violated Sec. 8(a0(5) of the Act by
making a fair election impossible after its refusal to bargain. Jer,-Drn Corp.
supra, fn. 10: Brown & Connoll. Inc. upra. n 13
"4 Pride Refining. Inc.. 224 NLRB 1353, 1356 (1976).
' Joyce Adkins testified that she had taped-recorded this conversation al
her desk. but that the tape had been erased without having been used
gi en the tape to) the edcral overnmentm"' Morcoer. Ad-
kins' conduct durinig the , alkout also reflected ads crsel, on
his reliabilits. While serving as emplo\ee spokesman in pre-
sentiig their demalnids to management. wohich included a
pror ision for a proposed pt increa;se he failed to intform
the employees when Kronick actuallI offered the 25-centl
raise. Hal;ing tund that Adkins was not a dependable sA it-
ness I credliit him onll here his testimnon, is uncotilra-
dicted, corroborated bh others, or s here it is consistent A ith
the general cvidentiar pattern.
Accordilgl,, it is tind that swhen Kronick told \dlkins
on August to convce to the emplo ecs his olfir of a 25-
cenlt hourl] pa 3 raise betore the appearance of the union
representatice that morning. Kronick did niot kno\A that a
union vas involved in the walkout hich 4as true at that
time, and as mercli presenting a counterotler to the $1-
an-hour pa raise which had just been proposcd bh the
emplo\ees through Adkins and Scudder. In so do ing. Kro-
nick not on) responded to. but also properlN conel ed his
reply through. one ol the enlployees' designtliled spokesmenl
Ilowever. it has been tounld that hb the time Kronick
called a stall meeting on August 9. Respondent. hi\ ing as-
certained the nion's maijorit bN card check, had alrcad!
agreed to recognize the Illion. As there was no prior agree-
ment saith the employees helore the lUnion's appearance
that the raise should be cfHectuated, it \was riot lawful fior
Respondent at the August 9 meeting, and thereafter to b -
pass the lnion hb persisting in unilaterall\ promising and
granting the, as \et, unimplemented raise. It also is un-
la;u ful tor Respondent. in the face of its hbarga ining ohliga-
tion. to have thie cmplosccs ote on August 9 whether thex
wanted to receive the raise, particularl since the choice
given to the elmplooecs skias \ htther to accept the raiste or to
stax with the l'nioLn.
2. Additional acls t' interfcrcnce, coercion. and restraint
Fron the credited evidence. it is concluded that Respon-
dent violated Section (a ( I ) of the Act at the August 9 staff
meeting when, iIn addition to granting the pa) raise and
forcing the vote oil the t nion. both found unlawful above.
Kronick told the assetibled emplo)ees that, i the Lnion
came in, he s, ould contract out the work thes had been
performing on the heating unit and that he ould close the
plant.'
Although. as the Respondent argues. it may not have
been economicalls, feasible to continue to produce these
heating units in the plant as the employees were taking fbr
too long to assemble them, and that the Respondent, well
before the Union's appearance. had undertaken steps to de-
termine if the work could be produced at less cost outside
0 The General Counsel denied having received such a tape
Although he sote itself was nt alleged as iolative of the complaint as
it relates It) the unlaw'tul pas raise. it is consistent with the ailtlegtins ofi the
complaint, as litigaled at he hearing. anti emphasizes hat. b the August
9 meeting, the 25-cenl general increase was not et firmly committed. Kro-
nick's reterences during the August 10 emplo)ee inmervlews to pssible fil-
ture benefits such as profil sharing and or pension plans, as further refusals
to bargain. will be considered belov.
" Although the eenis of the meeting as found herein were principalls
described bh Adkins. who is not deemed to he a credible witness. his account
of this meeting is accepted because it generalls is corroborated bh Mxoore
and hb Kronick's furthcr conduct ori August i). to e considered below.
S87
I)t.( 'ISIONS OF NAII()NAL. LAB()OR RI.AIIONS BO()ARI)
the plant. the tenor and context of' Kronick's remarks to the
employees on August 9 and 10 left little doubt that he was
linking his course of action on these heating units to the
employees' decision whether they would continue to sup-
port the Union.
Kronick himself concedes that on August 10, prompted
by the union situation, he called each employee into his
office one at a time, where he spoke to each one on an
individual basis in the presence of a management panel
which also included Perry and Solomon, the accountant.
There, Kronick repeated the promise to each employee of a
pay increase effective retroactively so that it could be re-
ceived in that week's paycheck: promised that each em-
ployee would soon be evaluated for the purpose of deter-
mining whether further pay increases were warranted, to be
granted as applicable: and stated that Respondent swas
looking into the feasibility of the future establishment of
profit sharing or pension plans for its employees. Kronick
also threatened that if the Union came in layoffs would
occur because of an anticipated reduced flexibility in mak-
ing assignments, again threatened to discontinue in-plant
production of the heating unit, and made outright threats of
discharge and plant closure, all to compel employees to sign
company prepared forms rescinding the Union's authority
to represent them.
In agreement with the General ('ounsel's contention that
by the fobregoing conversations. I find that Respondent un-
lawfully interrogated its employees. ' As noted by Adminis-
trative LIaw Judge Michael 0. Miller in 72 Senlei(int
Inc.. / a Sansl Soucai Re,slaurattl,:4
In the instant case, there were no circumstances pre-
sent which might have justified some limited inquiry
into the union activities: rather. the circumstances
were heavy with animus. Employees were questioned
in locus of authority, by Respondent's president, and
antiunion statements were made. The employees were
not told of any justification for the questioning or
given any assurances of their freedom from reprisal
should they choose to answer or to refrain from an-
swering the Respondent's questions. C:. Johnnie'S Poul-
In0 Co. tand John Bishop Poulrv Co., Successor. 146
NLRB 770 11964). enforcement denied 344 F.2d 617
(C.A. 8. 1965). See also Chauffiurs, 'reamters and
Helpers. Local 633 (Bulk Haulers. Inc.). 509 F.2d 490
(C.A.D.C.. 1974).
The law is settled that Section 8(a)( 1 ) of the Act makes it
unlawful for an employer to solicit employees to sign any
form of union-repudiating document. particularly when the
solicitation occurred in the context of illegal expressed or
implied threats of reprisals." Here, in the context of Kro-
nick's unlawful offers of benefit and pattern of threats, his
solicitations of employees' signatures on the revocations of'
the Union's representative authority plainly operated to
deny these employees freedom of choice in violation of Sec-
tion 8(a)( 1) of the Act. Similarly. Kronick's remarks on Au-
3 P. B. and S. Chemical Compan.y, 224 NL.RB I. 2 1976).
4235 NLRB 604. 605-606 (1978).
" N.L.R. v. Birmingham Publishing (Cwopunv. 262 2d 2. 7 (5th Cir
1958(.
gust 10 that Respondent's anticipated diminished flexibility
in assignment-making. should the Union come in, would
result in layofls. does not appear to he "carc'ully phrased
on the basis of objectiv e fact to convey an emplx yer's belief'
as to demonstrably probable consequences beyond his con-
trol . .. in case of' unionization."'" Instead, as Kronick's
remarks were made while he wits engaged in a general
course of' unlawful conduct, including threatened plant
closing and discharge. his statement concerning anticipated
layoffs could reasonably be understood by the employees ias
a further threat of reprisal to discharge them from support-
ing the Union. Accordingly. I find that Kronick's predic-
tions of laNoffl in the circumstances herein, interfered with.
restrained, and coerced employees in violation of' Section
8(a)(I) of the Act."
While the granting of' the immediate economic benefits.
such as the pay raise, to discourage support for the U!nion
was clearly unlawful, a more subtle question is presented by
the offers during the August 10 interviews of future poten-
tial or contingent benefits, including the possibility of f'ur-
ther wage increments based on the evaluator's report. and
Kronick's statement that Respondent was looking into the
feasibility of establishing for employees in the indefinite u-
ture either a profit-sharing plan or a pension plan. Al-
though such benefits. as referred, were less immediate and
definite than the wage increases then being immediately af-
forded. these representations made in the context of' Re-
spondent's antiunion campaign served to remind the em-
ployees that Respondent was the source of' all economic
benefits and clearly implied that the employees' chance of'
ultimately receiving these improvements depended at least
in part on discontinuing their support for the Union. The
imminence of' an economic benefit oHfiered by an employer
in these circumstances is not the test of its lawfulness, but
rather. whether under the relevant circumstances, it can be
found that the reference to such benefits is reasonably cal-
culated to discourage employees from joining or supporting
a labor organization. As it is found from the facts herein
that Respondent's otffer of' contingent future pay raises and
the possible institution of profit-sharing or pension plans
was calculated to discourage continued adherence to the
Union. I conclude that the references to these possible
benefits by Kronick were in violation of Section 8(a)(I) of
the Act. In addition. as a form of individual bargaining in
derogation of' Respondent's duty to negotiate such matters
with the Union. these statements also were in violation of
Section 8(a)(5) and (I) or the Act.
In summary, it is concluded from the credited evidence
that Respondent violated Section 8(a)( 1 ) of the Act by the
following conduct:
1. Kronick's statement to employees during the staff
meeting on August 9 and 10 and during the individual in-
terviews of August 10 that. if' the Union came in. available
work in the plant would be reduced, as a heating unit previ-
ously made by unit employees would be contracted out and
that in-plant production ot' the item would be discontinued,
s' N i. R.B . Gvrsel Packing Co., Inc. 395 .S. 575, 618 (1969).
" See Treadin' Inn, 217 NLRB 51 52 1975)1 mi-ent's Steal Hou. e,Inc,
216 NL.RB 647. 649 (1975).
588
('AP I1()1 I :M1P ()I ('ORP'()ORAIION
2. T'he plOrlmlse and eltectuation of the retlroactle 2-
cent across-the-boatrd pas raise nlade on August 9 a nd I()
3. Kronick's threat to emplosees on August 9 and 10 to
close the plant doors if' the U nion camre.
4. Kronick's action on August 9 in compelling the em-
ployees to vote among themselves whether the) wanted to
accept the 25-cent pait raise then offered or to continue
support for the Union.
5. Kronick's representations to employees, during the in-
terviews of August 10. that Respondent would afford addi-
lional raises to certain employees contingent upon the
forthcoming recommendations of' a labor consultant and
the possible establishment in the future of profit-sharing or
pension plans for employees.
6. Kronick's threat to close the plant if' the employees
selected a union to represent them.
7. Kronick's statment to employees that, it' the nion
came in. layolfs would occur because of anticipated re-
duced flexibility in in the making of assignments.
8. Kronick's threat on August 10 to discharge emploees
ift' they did not, in writing, repudiate their union authoriza-
tions.
9. Inducing employees, in the locus of' authority b?
promises of benefits and threats of' reprisals to sign rescis-
sion of the Union's authority to represent them. ' "
3. The discharge of Albert Elvis ( Fred) Adkins
The General ounsel contends that Adkins was termi-
nated on August 12 because of his union and/ or other pro-
tected concerted activities. Respondent. in turn, asserts that
Adkins was discharged consistent with Respondent's poli-
cies because of his admittedly poor record of attendance
and punctuality. for which he had been repeatedly cau-
tioned. Respondent. asserting that Adkins knew on August
12 that if' he were late again he would be let go. argues that
there is no evidence in the record that the ('ompany was
aware of Adkins' union activities but. rather, that Adkins
on several occasions had strongly disassociated himself
from the Union.
Under Board precedent, if part of the reason or termi-
nating an employee is unlawful, the discharge violates the
Act. That the employer has an ample reason for discharg-
ing an employee is of no moment. Even if' the discharge is
based on other reasons as well, if the discharge is partl in
reprisal for the employee's protected, concerted activities, it
is unlawful.i'
In the present matter, Adkins was closely associated -with
the employee unrest which manifested itself on August 8.
5' N. R..B v. Exchange Parts Company. 375 U.S. 405 i 964).
~' No merit is found to Respondent's contention that the General ('ounsel
and/or the Board is n some way estopped from processing the allegations of
the complaint relating to Respondent's conduct in soliciting employees' sig-
natures on documents repudiating the Union because Respondent had acted
on advice received from wit Board agents during several telephone calls
made to the Board's Regional Office. In StAelv-V'an Camp. In' and Boerdo
Producir (Co.. d/h/ua SokelvBordo. 130 NLRB 869. 871 (1961). the Board
rejected an analogous estosppel argument. ruling that it is not hound by
informal or mpersonal advice received b parties respondent rom Board
agents. especially when employee rights are violated pursuant to that advice.
0 & H Rest. Inc., rading a.r The Backrage Restaurant. 232 NLRB 1082
(19771.
le ser cl a.s one o' the twio spokesIl an rll the clnplo ecs
in dclihering their demands to Kronick, " mnllitained It con-
spicuous protile throughout the da., and wIas the ind idulll
selected h Kronick to conve Respondent's otler ti the 25-
cenit raise to the employees. Adkins also uas the cmplocc
who first contacted the [Union anid sigued i utlltn card.
\V'hen Kronick's response to the enlploees deImands
proved unsatisfactory, it was Adkins h 11 gas c the cniplo -
ees the U'nion's telephone number and \\ho assisted M0lot-
tanez in collecting the signed authorizatiol ctards tfiln the
other emplosees in tront of the plant.
In point oft' time, Adkins' discharge closeI tfillio\ed the
U nion's organizational drive. the request or recsognlltiol
and Respondent's countermeasures, which included the sss-
ternatic interviewing of emploxees whio had participatled if
the walkout, to discontinue in-plant production of the heat-
ing unit, to lax off emploxees and hich also included the
usnlawful announcement and granting ot'a gneral p rue
and a hint of' other future benefits. Accrcdisl 3. tle null
requested and received recognition oin Auguist . Respon-
dent hbegan its unlawfullx conducted cuntercalnplaiign h
August 9. continued this activitx during the series of indi-
vidual emplosee interviews on August 10. \ ithdreu rectg-
nition from the nion on August I 1. and tired Adkins on
August 12.
Although Adkins admittedly was weak in his attendance
and punctualit., he Aas considered a skilled elder hs Re-
spondent who, in spite of Adkins' fiults. haid gisen hin
frequent pa, increases beyond the custonlar.r and to an e-
tent realized onlx bh Respondent's most alued eploe.cs.
Although Respondent had terminated other elmploees in
the past because of poor attendance and r punctualit .
Respondent. in Adkin's case, perhaps because ot' his weld-
nmg skills had shown longstanding tolerance. and hi, short-
comings before his participatiot in the exents of the eek of
August 8 were clearly not sufficient to interrupt his out-
standing pas progressions. he decision to termilimte him.
exactlx when the emploees' uniotr and other concerted ac-
tivities and the ('ompans's responses thereto were at peak
levels. constituted an abrupt change rom Respondent's
prior approach to Adkins.
Although Kronick was not directly intormed of \dkiims'
union activities. which Adkins went to some length to denN.
Adkins clearly was assxciated in a leadership role in the
August 8 walkout and, in determining whether Respondent
had knowledge of his union actitiies. the relati',el small
number of employees cannot he ignored. Noting the uncon-
tradicted estimons of Joyce Adkins that Kronick had told
her that he had terminated her husband hecause he had
instigated the Union, the corroborating testimony of Walter
Moore that he had overheard the conversation described hb
Adkins where Perry had told him that he had been dis-
charged b Kronick for his union activit, and Respon-
dent's other conduct above-described fund to he in iola-
tion of the Act, I conclude, under the circumstances herein.
hl While Scudder served as cospokesman in deliering thc emplosees' de-
mands. it does not appear that Kronick regarded him is suticlentl laggres-
sive to have played a leading rle in what was happening Kronick testiled
that, when Scudder Initially brought the lihst of emplosec demands hs him-
sell, Kronlck suggested that he return with anolher emplo ee behtore engg-
ing in discussions. as he considered Scudder Ito he nsufiicientls Itrceful
589
l)l(ISIONS (F: NA IONAI LABOR REI.AIIONS BOARI)
that it is appropriate to infer under I,1'icec Plow I elding
('o., I .. that Respondent before discharging him, had
knowledge of Adkins' union activities.
Therefore, it is concluded that Adkins was terminated for
his union activities in iolation of Section 8(a)(3) and (I) of'
the Act."
IV. il 1 I( I ( )1 I AIR I AllOR PRA( 11( IS ItPON
( O()MMIR(t I
The activities of Respondent set forth in section I11I
above. occurring in connection with its operations de-
scribed in section I. above, have a close, intimate, and sub-
stantial relationship to trade. traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
(()N(I tSI()NS ()I IL.AW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of' Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purpose of collecting bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time production,
maintenance, shipping and receiving employees em-
ployed by the Respondent at its Mt. Vernon. New
York. plant. but excluding all office clerical employees.
professional employees. draftsmen, guards and all su-
pervisors as defined in Section 2(I I) of the Act, and all
other employees.64
4. Since August 8. 1977. and at all times thereafter to
date, the Union was, and is now, the exclusive representa-
tive of the employees within the meaning of' Section 9(a) of
the Act.
5. By coercively interrogating employees concerning
their union activities and sympathies: by threatening that if
the Union came in available work in the plant would be
reduced, employees would be laid off and/or discharged,
and the plant would be closed; by announcing and granting
retroactive pay increases, and by referring to potential and
contingent future economic benefits to induce employees to
abandon their support for the Union: by compelling em-
ployees to vote as to whether they wish to accept a pay raise
or continue their support for a union, and by coercively
soliciting employees to sign revocations of' the Union's au-
thority to represent them, Respondent has violated Section
8(a)( I) of the Act.
6. By withdrawing recognition from the Union on Au-
gust I 1, 1977, and, since that date, refusing to bargain with
6. 123 NLRB 616 (1959).
b, Although. as noted. Adkins did testit at the state unemployment com-
pensation hearing that he did not go to the Utnion until after his discharge,
this testimony was more of a negative reflection on Adkins' general credibil-
ity than upon what he actually did, as his union authorization card is dated
August 5, while he was still employed by the Respondent, and the circum-
stances under which he signed his card that day were corroborated by Kran-
itz.
1 The unit appears above as clarified by the findings herein.
the Union as the exclusive representative of' the employees
in the above-described appropriate unit: by unilaterally an-
nouncing and granting pay increases to employees: and by
referring to potential and contingent future economic bene-
tits to induce employees to abandon their support for the
iUnion, Respondent has violated Section 8(a)15) and (I) of
the Act.
7. By discharging and refusing to reinstate Albert Elvis
(Fred) Adkins on August 12. 1977. Respondent violated
Section 8(a)(3) and (I) of the Act.
8. Respondent has not engaged in unfair labor practices
not specifically found herein.
9. he unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of'Section 2(6) and (7) of the Act.
Till RIMI DY
As Respondent has been found to have engaged in cer-
tain unfair labor practices. I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged Albert Elvis (Fred) Adkins, I shall recommend that
Respondent be required to offer him immediate reinstate-
ment to his former position of employment or, it that posi-
tion no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and privi-
leges. and to make him whole for any loss of earnings he
may have suffered as a result of the discrimination against
him. The backpay provided herein shall be computed. with
interest, in the manner prescribed in 1 W,' Woolworth (,lm-
it!l.'s and F/lorida Stccl ( orpolralion."
Hlaving found that Respondent has been obligated since
August X. 1977, to bargain with the Union, I shall recom-
mend that it be required to recognize and, upon request.
bargain with the Union.
Respondent's unlawful activities make appropriate an or-
der requiring Respondent to cease and desist from in any
manner infringing upon the statutory rights of employees.?
Upon the foregoing findings of tact, conclusions of law.
and the entire record. and pursuant to Section 10(c) of the
Act. I herebh issue the following recommended:
ORDF R6,
The Respondent. Capitol Temptrol Corporation, Mt.
Vernon. New York. its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
membership in and activities on behalf of Local 531. Inter-
bs 90 NLRB 289 (1950).
231 NLRB 651 (1977). See, generally, u Plumbing & Heating (o. 138
Nl.RB 716 (1962).
7 .l. R B. v. Enilttle Mg. o.. 120 .2d 532 (4th c(ir. 1941 .
b8 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
ot the Rules and Regulations. be adopted by the Board and become its
findings. conclusions, and Order, and all objections thereto shall be deemed
waiv ed for all purposes.
C(APITOt. TEMPIROI. CORPORA IION
national Brotherhood of leamsters, Chauffeurs, Ware-
housemen and Helpers of America or an' other labor or-
ganization.
(b) Threatening employees with discharge or lavoffs,
threatening that work previously performed in the plant
would be contracted out or discontinued and threatening
that the plant would he closed because of' the employees'
union activities.
(c) Announcing and granting pay increases and referring
to other possible future economic benefits, including addi-
tional pay raises and the institution for employees of profit-
sharing or pension plans to induce them to revoke their
support for the Union; and compelling employees to vote
or otherwise choose between accepting a pay raise or sup-
porting the Union.
(d) Coercively soliciting employees to sign written revo-
cations of the Union's authority to represent them as their
exclusive bargaining representative in order to avoid Re-
spondent's obligation to continue to recognize and bargain
with the Union.
(e) Bypassing the above-named Union as their emplo,-
ees exclusive collective-bargaining representative by negoti-
ating directly with employees as to rates of pay and possible
future economic benefits.
(f) Refusing to bargain collectively. upon request, with
Local 531, International Brotherhood of Teamsters. ('hauf-
feurs Warehousemen and Helpers of America. as the exclu-
sive bargaining representative of all its employees in the
appropriate unit described below with respect to wages,
hours of employment. and other terms and conditions of
employment. The appropriate unit is:
All full-time and regular part-time production,
maintenance shipping and receiving emploees em-
ployed by the Respondent at its Mt. Vernion, New
York, plant. but excluding all office clerical employees.
professional employees. draftsmen, guards and super-
visors, as defined in the Act, and all other employees.
(g) Discharging employees because of their activities on
behalf of and sympathies for the above-named Union.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. I'ake the f'ollowing atffiriatixe action to effectuate the
policies of' the Act:
(a) Oflter Albert iFlvis (red) Adkins immedi ite and hill
reinstatement to his former job or. if that job no longer
exists, to a substantially equivalent position. without preju-
dice to his seniority or other rights and privileges alld make
him whole. with interest. for any, loss of earnings hlie may
have suffered as the result of the discriminatio against hini
in the manner set forth in the section of this )ecision enti-
tied "The Reneds."
(b) Recognize and, upon request, hargtai n ith the
above-nalmed labor organiza;tion as the exclusi,e represent-
ative of all employees in the afioresaid appropriate unit wA ith
respect to rates of pay. wages. hours, and other terms and
conditions of employment and, it' an understanding is
reached, embody such understanding in a signed agree-
ment.
(c) Presere and. upon request, make available to the
Board or its agents. lfr examination and copying all pay-
roll records, social security pas ment records. timecards.
personnel records andl reports. and all other records rel-
evant and necessary to a determination of backpay.
(d) Post at its Mt. Vernon New York. place oft' business
copies of the attached noticed marked "ppendix. " ' Cop-
ies ot said notice, on torms provided by the Regional I)irec-
tor for Region 2. atter being duly signed by Respondent's
authorized representative. shall be posted by Respondent
immediately upon receipt thereoft: and be miailltailled bh it
tbr 60 consecutit e da,s thereafter. in conspicutous places
includilg all places where notices to employ ees ;ie customl-
arils posted. Reasonable steps shall be taken by Respon-
dent to insuLe lthl, said notices are not altered. dcftted, or
covered b anlly oliher material.
(e) Notil, the Regional I)irector fOr Region 2, in writing.
within 20) daxs ronl the date of this ()rder. what stcls have
been taken to comply herewith.
b0 In the eent that (lhl Order is enlorced h .1 Judgmenil ot a t nited
Siates (ourtl 1 Apc.leal, the A ord in the notice reading "Po,led bh Order of
the Naonll t Iabor RKlll ns HBoard" shall read "Posled Pursuant I, a Judg-
menl of Ihe niilcd S.ate (lrti of \ppealr Enforcing an Order of the Na-
hional abor Relation Board"
591