Cartridge Actuated Devices, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1986

282 N.L.R.B. 426 (N.L.R.B. 1986)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cartridge Actuated Devices, Inc. and International
Union of Electrical, Radio and Machine Work-
ers, AFL-CIO. Cases 22-CA-11501, 22-CA-
11716, and 22-RC-8729
15 December 1986
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 July 1983 Administrative Law Judge
Thomas T. Trunkes issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in sup-
port, of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to 'a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The complaint alleges, and the judge found, that
the Respondent's supervisors engaged in a variety
of conduct which violated Section 8(a)(1) and (3)
of the Act. This conduct included, inter- alia,
threatening to discharge employees and to close
the plant if the employees supported the Union, in-
terrogating employees regarding their support of
the Union, creating an impression of surveillance,
promising employees benefits for not supporting
the Union, and discharging two employees for en-
gaging in union activities. While we agree with the
judge that several of the Respondent's acts were
unlawful, we do not agree with all of the judge's
findings concerning the alleged unlawful conduct.
The relevant facts, more fully set forth in the at-
tached decision, are summarized below.
The Respondent is engaged in the manufacture,
sale, and distribution of explosive devices and other
pyrotechnic products. During January 19822 the
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We agree with the judge's finding that the Respondent's discharge of
Kathleen Scherer and John Gerstmann for engaging in violent conduct
on the picket line, while failing to discipline nonstriking employees who
engaged in violent conduct on the picket line, constituted disparate treat-
ment in violation of Sec. 8(a)(3) and (1). We do not agree, however, with
the judge's observation that Gerstmann's behavior of kicking a vehicle is
"the type of impulsive misbehavior that can be expected on a picket line
during the course of a lengthy and tense strike." See, e.g., Clear Pine
Mouldings, 268 NLRB 1044 (1984).
2 All dates are 1982 unless otherwise indicated.
Union began to organize the approximately 80 em-
ployees at the Respondent's facility in Byram, New
Jersey. On 17 February, after obtaining over 50 au-
thorization cards, the Union requested the Re-
spondent to recognize it as the bargaining repre-
sentative. The Respondent declined on the ground
that the appropriate method for ascertaining
whether the Union represented a-majority of em-
ployees was a Board-conducted election. On 21
February the Union held a meeting for all the em-
ployees and explained the Respondent's position.
The employees voted to begin striking the follow-
ing morning . A Board-conducted election was held
17 June and the strike ended on 18 June.3
1. The judge concluded that in February, before
the strike, Supervisor Hazel Waldron committed
two separate violations of the Act by stating to em-
ployee Nancy Kosiakowski, "[T]his plant will
never have a union, they will close this plant down
first, you'll all be out of jobs." The unlawful con-
duct as found by the judge consisted of a threat of
plant closure in violation of Section 8(a)(1) and a
threat of discharge in violation of, Section 8(a)(1).
Although a statement of this nature is a violation of
Section 8(a)(1), we do not believe it constitutes two
separate violations of Section 8(a)(1). Rather, Wal-
dron's reference to employees being out of jobs, in
context, is clearly a reference to what the siutation
would be if the Respondent closed the plant. We
therefore will modify the judge's decision and find
that the statement set forth above constitutes only a
single threat of plant closure in violation of Section
8(a)(1).
2. The judge further found that during the same
time period, Supervisor Mildred Francisco on two
occasions unlawfully created an impression among
employees that their union activities were under
surveillance. In the first instance the judge' found
that Francisco informed employee Chris Hansen to
return to work "a couple of minutes early on your
break." Hansen objected and Francisco responded,
"that's because the bosses across in the trailer are
watching us and whoever comes back late they are
going to fire because of the union." In the second
instance, the day after a union meeting was held in
the home of employee Nancy Kosiakowski, Fran-
cisco stated to Kosiakowski "be careful; they
know."
Concerning the first instance, it is clear, that an
employer has the right to determine when employ-
ees report 'back to work from break periods. In-
forming employees that the -employer is observing
3 The tally of ballots in Case 22-RC-8729 reveals there were 41 votes
cast for, and 36 against, the Union. There were 30 challenged ballots, a
number sufficient to affect the results of the election
282 NLRB No. 66
CARTRIDGE ACTUATED DEVICES
them to determine when they return is therefore
not unlawful. In this instanlce, however, Supervisor
Francisco informed employee Hansen that not only
was the Respondent determining when employees
came back from break periods with the intent to
discipline those employees who came back late, but
also that the Respondent was doing so "because of
the union." We therefore do not believe that Fran-
cisco through this act created an unlawful impres-
sion of surveillance. Rather, Francisco's statements
to Hansen constituted a threat to discharge em-
ployees because of union activities and as such vio-
lated Section 8(a)(1).
Supervisor Francisco's statement to employee
Kosiakowski, however, contained no such threat.
Rather, as set forth by the judge, Francisco had de-
veloped friendships with many of the night em-
ployees. Thus her comment to Kosiakowski was
merely stating well-known information: manage-
ment knew about the employees' attempt to union-
ize. Again, as this statement was made by a low-
'level supervisor and contained no threat as did the
statement Francisco made to employee Hansen, we
find that this encounter did not create an impres-
sion of surveillance in violation of Section 8(a)(1).4
3. The judge also found that Supervisor Francis-
co unlawfully interrogated employee John Gerst-
mann. We disagree. During mid-February Francis-
co approached Gerstmann and asked him what he
thought about the Union. Gerstmann responded
that he was not sure but suggested that something
'needed to be done to improve working conditions
in the facility. Francisco responded by handing
Gerstmann a pamphlet published by' the State of
New Jersey which indicated employees could' not
collect unemployment benefits while on strike. This
encounter occurred on the shop floor, involved a
low-level supervisor, and contained no threatening
language. Based on these facts we find that this en-
counter did not constitute an interrogation in viola-
tion of Section 8(a)(1).5
' Contrary to his colleagues, Member Babson agrees with the judge
that the Respondent created an impression of surveillance through Fran-
cisco's statements to Hansen and Kosiakowski . It is undisputed that Fran-
cisco told Hansen that he had to return early from Ins break "because the
'bosses across in the trailer are watching us and whoever comes back late
they are going- to fire because of the union " It is further undisputed that
following a meeting in Kosiakowsla 's home in early February, Francisco
approached her and stated, "be careful, they [management] know." Not-
withstanding Francisco's friendship with both employees, the statements
reasonably tended to interfere with the exercise of their rights under the
Act. Furthermore, the admonition to Kosiakowski to "be careful" sug-
gested the possibility that the Respondent would retaliate if it learned of
the union activities of Kosiakowski and other employees. See, e.g., Union
National Bank of Pittsburgh , 276 NLRB 85 (1985) (supervisor's comment
to employee after union meeting that, inter alia, she had better "watch"
,herself constituted unlawful impression of surveillance and threat of re-
prisal in violation of Sec. 8(a)(l)).
s Under all the circumstances , Member Babson finds Francisco's ques-
tion of Gerstmann to be an unlawful interrogation. 'See, e.g, United Art-
ists Theatre Circuit, Inc.,, 277 NLRB 115 fn. 3 (1985) (supervisory interro-
427
4. The judge also found that prior to the strike,
Supervisor Waldron, on three separate occasions,
unlawfully interrogated employee Deborah Gould.
We agree that Waldron did unlawfully interrogate
Gould during a conversation` in February in which
she asked Gould who had signed union cards. We
disagree, however, with the judge's conclusions
that during two other conversations between Wal-
dron and Gould, Waldron also engaged in unlawful
interrogation. During the first conversation Wal-
dron asked Gould` why she (Waldron) had not been
invited to a union meeting . Gould responded she
did not know and asked if Waldron wished to join'
the Union. Waldron answered no. During the other
encounter Waldron asked Gould if she was going
to a union meeting . Gould responded that she did
not know, explaining, in response to Waldron, that
she had been advised by another employee that she
was going to lose her job. Waldron proceeded to
assure Gould that this was not true.
As found by the judge, these two individuals are
good friends. Waldron's comments did not contain
any threats. To the contrary, Waldron attempted to
assauge Gould's fears that she would lose her job if
she attended a union meeting . Accordingly, we
find that the Respondent did not violate Section
8(a)(1) of the Act by this conduct.
5. The judge further concluded that during a
meeting of the Respondent's employees on 17 Feb-
ruary, the Respondent solicited grievances from
the employees and made implied promises to cor-
rect these grievances in violation of Section 8(a)(1).
In support of this finding, the judge found that at
this meeting the Respondent promised to correct
maintenance problems connected with employee
restrooms and impliedly promised the employees
that a dental plan would be implemented. We agree
with the judge that the Respondent's promise to
the employees to correct the maintenance problems
with the restrooms shortly after ' the advent of a
union campaign tended to discourage union activi-
ty in violation of Section 8(a)(1).
We disagree with the judge's finding, however,
that the Respondent's comments at the employee
meeting concerning the implementation of a dental
plan constituted a promise of benefit in violation of
Section 8(a)(1). The Respondent maintains that the
dental plan had been, under consideration for sever-
al months before the advent of the union campaign.
In support of this contention the Respondent en-
gation of employees "not previously self-identified as union adherents"
violated Sec. 8(a)(1)). In reaching this conclusion, Member Babson notes
particularly that the conversation took place early in the union campaign,
at a time when there is no evidence that Gerstmann was an "open and
active union supporter," was initiated by Francisco , and occurred in the
context of other unfair labor practices committed by the Respondent.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered into evidence two memos : one from the Re-
spondent's general manager dated 18 November
1981 addressed to the employees at the facility in
question and the second from the Respondent's
vice president dated 19 November 1981 addressed
to the employees at another of the Respondent's fa-
cilities. These memos indicate that in November
1981 the Respondent was concluding several
months of investigation into dental plans for its em-
ployees with the anticipation that the selection of a
specific plan was to "be made shortly after the new
year . Additionally, in ^ response to questions at the
employees meeting concerning the implementation,
the Respondent informed the employees that it had
been studying various plans for the preceding 6
months but no definite decision had been made as
to which plan would be put into effect. There is
neither testimony nor a finding by the judge that
the Respondent promised anything other than what
had been promised months before the advent of the
union campaign: a dental plan was on the drawing
board. Based on these facts , we find that the Re-
spondent's reaffirmation of plans announced to em-
ployees months before the advent of the union
campaign does not constitute an assurance to em-
ployees that grievances would be corrected in
order to discourage the employees from obtaining
union representation and therefore did not violate
Section 8(a)(1) of the Act.
Finally, contrary to our dissenting colleague, we
affirm the judge's 8(a)(5) and (1) finding and, his
Gissel bargaining order recommendation. The
judge found that the Union enjoyed majority
status, and that the unfair labor practices were of
"such a nature that their coercive effects cannot be
eliminated by the application of traditional reme-
dies, with the result that a fair and reliable election
cannot be held." NLRB v. Gissel Packing Co., 395
U.S. 575, 614 (1969). We agree.
Thus, Nancy Kosiakowski testified that in early
February, shortly after the Union 's demand for rec-
ognition, and following a meeting of employees at
her house, .Night-Shift Supervisor Hazel Waldron
told 'her, in the presence of at least five other em-
ployees, that "this plant will never have a union,
they will close this plant down first , you'll all be
out of jobs." Kathleen Scherer testified that in mid-
February she overheard Waldron tell Kosiakowski
that "you will never get a union in here ; they'll
close the place down first."
Employees Chris Hansen and Marion Cali testi-
fied to threats of plant closure by Supervisor Mil-
dred Francisco. Hansen testified that about 2 weeks
before the strike, Francisco asked him if anyone
had approached him about the Union , and said,
"[I]f people try to get a union in here, they are
going to fire everybody and then take the plant to
[the Respondent 's other facility, and] just close this
plant right up and everybody is going to be out of
a job." Cali testified that Francisco approached her
on 18 February and stated, "Marion, they'll never
let a union in here; if they do, they're going to
close the place."
Kosiakowski also testified that in early February
Supervisor Ruth Biamonte told her she was as-
signed to work on primer caps, a more "onerous
and hazardous duty." When Kosiakowski told her
that she was not trained to perform such hazardous
work, Biamonte replied that she was a "trouble-
maker."
Wendy Mahler testified that Maintenance Super-
visor Harold Rouse told her in mid-February that
if "employees went on strike , they could not col-
lect unemployment benefits and would be fired."
Moreover, Chris Hansen testified that in early Feb-
ruary, when he protested being sent to work early
from his break, Supervisor ' Francisco told him,
"that's because the bosses across in the trailer -are
watching us and whoever comes back late they are
going to fire because of the union ." Finally, in Feb-
ruary, Supervisor Hazel Waldron asked Deborah
Gould who had signed union cards and , on 17 Feb-
ruary, General Manager David Herbage promised
the day-shift employees to correct the maintenance
problems with the Respondent 's restrooms. As
noted, we have affirmed the judge's ' findings that
all of these actions violated Section 8(a)(1) of the
Act.
In addition, the judge also found, and we agree,
that in mid-March, the Respondent , acting through
Herbage, unlawfully discharged Scherer and Gerst-
mann in violation of Section 8(a)(3) and (1). In this
respect, the judge found that Scherer was a "lead-
ing union adherent" and Gerstmann a union "sup-
porter," and their discharges resulted from the Re-
spondent's animus toward the Union and employ-
ees at the "forefront of the strike movement."
As detailed above, the Respondent's violations
were swift, severe in nature , and extensive in
number . Threats of plant closure, for example, are
among the types of unfair labor practices which
"destroy election conditions for a longer period of
time than others." Gissel, above, 395 U.S. at 611 fn.
31. Here, the Respondent 's threats began the week
following the advent of the union campaign. Thus,
their coercive effect was heightened even further.
See, e .g., Quality Aluminum Products, 278 NLRB
338 (1986). Furthermore, the unlawful discharge of
two employees at the "forefront of the strike
movement" and the illegal promise to fix the rest-
rooms were committed by General Manager David
Herbage, a top management official. The effect of
CARTRIDGE ACTUATED DEVICES
unfair labor practices is heiighteried' -when tley'^ar`e
committed by a top management official who is
readily perceived as representing company policy.
See, e.g., Kona 60 Minute Photo, 277 -NLRB 867
(1985); NLRB v. Permanent Label Corp,, 657 F.2d
512, 521 (3d Cir. 1981) (bargaining order warranted
where, inter alia, high-level officers unlawfully
threatened reprisals, coercively interrogated em-
ployees, and illegally promised benefits). We fur-
ther note that the Respondent's violations directly
affected a significant number of employees. Thus,
the Respondent's threat to close down the plant
were made to at least eight employees , Herbage's
illegal promise was made to all of the day-shift em-
ployees, several employees were coercively inter-
rogated, and two employees were unlawfully dis-
charged.
Finally, our dissenting colleague argues that a
bargaining order is unwarranted because there is al-
legedly no evidence that "the Respondent's con-
duct resulted in any employees being influenced to
alter their support for the Union," nor that any em-
ployees were "coerced into revoking their authori-
zation cards."6 We disagree with this analysis, be-
cause in determining whether a bargaining order is
appropriate, the Board examines the severity of the
violations committed, as well as "the present ef-
fects of the coercive unfair labor practices." Qual-
ity Aluminum Products, supra at 339 Here, we have
examined the nature, severity, and pervasiveness of
the Respondent's unlawful conduct, and conclude
that the possibility of erasing the lingering effects
of the unfair labor practices and of conducting a
fair election by use of traditional means is slight.
We further conclude that the employees' represen-
tation desires expressed through authorization cards
would, on balance, be better protected by a bar-
gaining order than by traditional remedies . Accord-
ingly, we adopt the judge's recommended bargain-
ing order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Cartridge Actuated Devices, Inc., Byrain
Township, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
6 Although authorization cards were signed after the Respondent en-
gaged in conduct violative of Sec. 8(a)(1), we note that the Respondent
unlawfully discharged Gerstmann and Scherer, employees at the "fore-
front of the strike movement," in March. Discharges of union adherents
have long been considered by the Board and the courts as "hallmark"
violations justifying a bargaining order's issuance . See, e.g., Exchange
Bank, 264 NLRB 822, 824 In . 12 (1982), enfd. 732 F.2d' 60 (6th Cir.
1484).
429
r` 1' Delete paragraph 1(e) and reletter the remain-
ing paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaints in
Cases 22-CA-11501 and 22-CA-11716 are dis-
missed insofar as they allege unfair labor 'practices
not found herein.
IT IS FURTHER ORDERED that Case 22-RC-8729
is severed from Cases 22-CA-11501 and 22-CA-
11716 and remanded to the Regional Director for
further processing in the manner ,set forth below.
As we have found that the strike which com-
menced in, February 1982 was an unfair labor prac-
tice strike and the parties have agreed that the fol-
lowing individuals were hired during the appropri-
ate eligibility period as replacements for the strik-
ing employees we shall sustain the challenges to
the ballots of John Moyes, Wayne Swider, Ann
Smith, Suzanne Storch, Roxanne McGinley, Nancy
Krizni, Ann Swider, Helga =Masker, Rose Com-
pano, Michael Carpenter, Debbie Sutton, Greg An-
derson, Donald Pease, Elizabeth' Husted, Claude
Genovese, Sandra Keller, Francis Keller, Kevin
Connors, 'Keith Dunn, Blaise Kelly, Joe Evans,
Craig Peterson, Pat Henderson, and David L. Gor-
cica.7 The Regional Director shall open and count
the ballots of John Gerstmann, Kathleen Scherer,
and Harold Watkins,8 and, thereafter, if the revised
tally of ballots shows that'the Petitioner received a
majority of the votes cast, the Regional Director
shall issue a certification of representative. In such
case the challenged ballots of Isadore Surgeon,
Peter Marion, and Ken Kreoll' shall be insufficient
to affect the results of the election and therefore it
will be unnecessary to resolve' such challenges. In
the event that the revised tally of ballots shows the
Petitioner has not, received a majority of the votes
cast, the Regional Director shall issue a supplemen-
tal decision ruling on the challenges to the ballots
of Isadore' Surgeon, Peter Marion, and Ken Kreoll.
If the ' challenges to any of these three ballots are
overruled,: the ballot or ballots shall be opened and
counted and thereafter, if the revised tally of bal-
lots shows that the Petitioner received a majority
of the votes cast, the Regional Director shall issue
a certification of representative. In the 'event that
the revised tally of ballots shows,the Petitioner has
not received a majority of the, votes cast, IT Is OR-
' Although the ballot of David L. Gorcica was not listed in the Re-
gional Director's report as a ballot that was being challenged, the parties
stipulated at the hearing before the judge that this ballot had been prop-
erly challenged by the Union,
a The challenge to the ballot of Harold Watkins was withdrawn at the
hearing.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DERED that the election conducted in Case 22-RC-
8729 is set aside and that case is dismissed.
CHAIRMAN DOTSON, concurring in part, and dis-
senting in part.
I agree with my colleagues that the Respondent
violated Section 8(a)(1) and (3) of the Act in sever-
al respects.' However, I do not agree with my col-
leagues ' finding that a bargaining order is necessary
and appropriate.
Clearly the election process is the preferred
method for determining the sentiments of employ-
ees. Before foregoing this process a determination
of fact based on the evidence must be made as to
whether the Union's majority status has been dissi-
pated and the holding of an untrammeled election
made impossible by an employer 's conduct . In this
case there is no evidence that the Respondent's
conduct resulted in any employees being influenced
to alter their support for the Union. There is no
evidence employees were coerced into revoking
their authorization cards. To the contrary, authori-
zation cards were signed by employees after the
Respondent engaged in conduct violative of Sec-
tion 8(a)(1). Further, employees indicated their re-
solve to support the Union in the face of the Re-
spondent's 8(a)(1) violations by striking. I therefore
do not understand the majority's view that the
Board's traditional remedies would not suffice. As
a bargaining order is inappropriate in the present
circumstances , I dissent from my colleagues' impo-
sition of such an order.2
I also disagree with my colleagues' finding that
the strike the Respondent's employees engaged in
from 22 February through 19 June was an unfair
labor practice ,strike. The testimony reveals that the
employees' reason for striking was to gain recogni-
tion. Additionally, as I have stated above, the Re-
spondent 's refusal to recognize the Union was not
an unfair labor practice. Therefore I would fmd the
strike to be economic in nature . As replacements
for the employees engaged in an economic strike
are entitled to vote in a representation election, I
i In so doing, with two exceptions , I agree with my colleagues' adop-
tion, with modifications , of the judge's decision concerning the alleged
violations of Sec. 8(a)(1) and (3). I would not find, however, that the Re-
spondent 's statement at the employee meeting relating to repair of em-
ployee restrooms constituted a promise of benefit in violation of Sec
8(a)(1). The Respondent was merely reiterating a promise made to the
employees prior to the advent of the union campaign. Moreover, con-
trary to my colleagues, I would not adopt the judge's finding that Super-
visor Francisco unlawfully interrogated employee Hansen by asking him
if anybody had spoken to him about the Union . This encounter occurred
on the shop floor, involved a low-level supervisor, and did not contain
any threatening langgiage. I would therefore find that this encounter did
not interfere with , coerce, or restrain employees in the exercise of their
Sec. 7 rights.
2 Accordingly , as I do not believe a bargaining order is warranted I
find it unnecessary to pass on the judge 's reliance on Trading Port, Inc.,
219 NLRB 298 (1975), and Drug Package Co ., 228 NLRB 108 (1977).
would overrule the challenge to the ballots of the
individuals hired to replace the striking employees.
Thus, I respectfully dissent from my colleagues'
conclusion that the ballots cast by the employees in
question not be counted.
I agree, however, with my colleagues that the
Respondent unlawfully discharged two employees
during the critical period and that these discharges
constituted objectionable conduct. Therefore after
counting the votes of the employees I would find
to be economic strikers and the other challenged
ballots set forth in the majority's order, if the
Union has not received a majority of the votes
cast, I would order a second election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten our employees with plant
closure if they join or support International Union
of Electrical, Radio and Machine Workers, AFL-
CIO or any other labor organization.
WE WILL NOT threaten our employees with dis-
charge if they join International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO or
any other labor organization, or if they support a
strike.
WE WILL NOT interrogate our employees regard-
ing their union membership, activities, and sympa-
thies on behalf of International Union of Electrical,
Radio and Machine Workers, AFL-CIO or any
other labor organization.
WE WILL NOT threaten our employees with more
onerous working conditions because they support
International Union' of Electrical, Radio and Ma-
chine Workers, AFL-CIO or any other labor orga-
nization.
WE WILL NOT promise or grant benefits to our
employees in order to dissuade them from union
CARTRIDGE ACTUATED DEVICES
membership or activities , and to " reward ' them' fcir
ceasing to support International Union of Electri-
cal, Radio and Machine 'Workers, AFL-CIO or
any other labor organization.
WE WILL NOT discharge and fail to reinstate em-
ployees because they have ,joined, supported, or as-
sisted International Union of Electrical , Radio and
Machine Workers, AFL-CIO or any other labor
organization, or have engaged in protected con-
certed activities.
WE WILL NOT refuse to recognize, or bargain
with, International Union ,of Electrical ,, Radio and
Machine Workers, AFL-CIO as the exclusive rep-
resentative of our employees in the unit described
below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL notify International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO that
we recognize and will bargain with it as the exclu-
sive representative of the employees in the unit de-
scribed below -respecting rates of pay , wages,
hours, or ' other terms and conditions of employ-
ment and, if an, understanding is reached, embody
such understanding in a signed agreement . The bar-
gaining unit is:
All production and maintenance employees,
including shipping and receiving employees, x-
ray technicians, test technicians,' and quality
control employees employed at our Byram
Township facility, excluding office clerical em-
ployees, professional employees, guards and
supervisors as. defined in Section 2(11) of the
Act.
WE WILL offer Kathleen Scherer and John
Gerstmann immediate and full reinstatement to
their former jobs or, if those jobs no' longer exist,
to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits
resulting from their discharge , less any net interim
earnings, plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his or her
discharge and that the discharge will not be used
against him or her in any way.
All our employees are free to become or remain, or
refuse to become or remain , members of Interna-
tional Union of Electrical, Radio and Machine
Workers,, AFL-CIO or any other labor organiza-
tion.
431
i tiiam`F. Grant Esq., for the General Counsel.
John H. Yauch, Jr. (Yauch, Peterpaul & Clary P. C.), of
Springfield, New Jersey, for the Respondent Employ-
er.
Thomas M. Kennedy, Esq. (Lewis, Greenwald & Kennedy,
P.C.), of New York, New York, for the , Charging
Party Petitioner. '
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge.
This proceeding, under Sections 10(b) and 9 of the Na-
tional Labor Relations Act, (the Act) was heard pursuant
to due notice December 20' through 23, 1982,1 at
Newark, New Jersey, based on a complaint and notice of
hearing issued in Case 22-CA-11501 on May 28 and an
order consolidating cases, first amended complaint, and
notice of hearing issued in Cases 22-CA-11501 and 22-
CA-11716 on August 26.
The petition in Case 22-RC-8729 was filed on March
10, Pursuant to a Stipulation for Certification upon Con-
sent Election executed by the parties on May 11, an elec-
tion by secret ballot was conducted on June 17.
There were challenged ballots sufficient in number to
affect the results of the election.
On June 23, the Petitioner timely filed objections to
conduct affecting the results of the election. Thereafter,
on August 26, the Regional Director for Region 22,
issued a Report on Objections, Challenged ballots, Order
Consolidating Cases and Notice' of Hearing, whereby the
Regional Director found that both the objections and the
challenged ballots raised , substantial and material issues
affecting the results -of the election that can best be re-
solved on the basis of record testimony at a hearing. Fur-
ther having found that the objections to the conduct of
the election were identical to two of the allegations of
the unfair labor practice complaints, he ordered a hear-
ing, to be held before an administrative law judge, con-
solidating the representation case and the unfair labor
practice cases.
The issues presented at the hearing were as follows:
1. Whether Cartridge Actuated Devices, Inc. (Re-
spondent or the Employer), independently violated Sec-
tion 8(a)(1) of the Act through various supervisors who
allegedly interrogated, threatened, created an impression
of surveillance of, and/or made promises to its employ-
ees.
2. Whether Respondent discharged its employees
Kathleen Scherer and/or John Gersmann in violation of
Section 8(a)(3) and (1) of the Act.
3. Whether Respondent's alleged unfair labor practices
were sufficiently egregious and pervasive to warrant a
bargaining order.
4. Whether Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to grant recognition to the
Union on February 17, 1982.
CARTRIDGE ACTUATED DEVICES INC. ' Unless otherwise specified, all dates refer to the year 1982.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Whether a strike commenced by employees of Re-
spondent on February 22 was either at its inception, or at
any time thereafter, an unfair labor practice strike.
6. Whether any or all the challeges to the ballots of
the challenged voters should be sustained.
7. Whether the election should be set aside by, virtue
of Respondent's unlawful conduct.
All parties were afforded full opportunity to partici-
pate at the hearing . Briefs were filed by the General
Counsel, Respondent , and the Charging Party.
On the entire record in the case and from my observa-
tion of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Jersey corporation with an office
and Place of business located in Byram Township, New
Jersey (the Byram facility), is engaged in the manufac-
ture, sale, and distribution of explosive devices and other
pyrotechnic products . During the past 12 months, Re-
spondent sold and shipped from its Byram facility prod-
ucts, goods , and materials valued in excess of $50,000 di-
rectly to points outside the State of New Jersey. Re-
spondent admits, and I find, that it is , and has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
International Union of Electrical , Radio and Machine
Workers, AFL-CIO (the Union, the Charging Party, or
the Petitioner) is, -and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act, as admitted by Respondent.
III. CREDIBILITY OF WITNESSES
Before one can judicially make findings and conclusion
as to whether any of the alleged violations did occur as
contended by the General Counsel, it is necessary to
make credibility findings with respect to the testimony of
the various witnesses presented at the hearing . In addi-
tion to considering the demeanor of the witnesses, the
Board has stated:
[I]t is abundantly clear that the ultimate choice be-
tween conflicting testimony also rests on the , weight
of the evidence , established or admitted facts, inher-
ent probabilities, reasonable inferences drawn from
+the record, and, in sum, all of the other variant fac-
tors which the trier of fact must consider in resolv-
ing credibility. [Northridge Knitting Mills, 223
NLRB 230, 235 (1976).]
From my observation of the witnesses , the analysis of
all the submitted briefs , and the review of the transcribed
record, I have concluded that the witnesses presented by
all sides in this case were less than candid in relating cer-
tain incidents that occurred . Accordingly, it has been
necessary to reconstruct the factual matter of this case in
order to arrive at various conclusions . Thus, on occas-
sion I have credited and discredited testimony of the
same witness , as I have concluded that certain portions
of testimony of witnesses were unreliable, either through
deliberate fabrication , faulty recollection , or a combina-
tion of both. Each specific allegation of the complaint
that is in dispute shall be discussed and analyzed with the
object of arriving at as complete objective truth as is
possible under the circumstances.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Operations of Respondent
As stated earlier, Respondent is engaged in the manu-
facture, sale, and distribution of explosive devices and
other pyrotechnic products . According to David Herb-
age, the general manager of Respondent's facility at all
times material, "The plant is situated on top of the tallest
hill or small mountain in Byram Township, surrounded
by woods. The main production building has , seven
double bays . It's a block and concrete building; approxi-
mately 60 feet across from it is a trailer which is used as
an office building . There's a small production building
which contains also rest rooms situated off to one side.
Behind that is a trailer that 's used as a cafeteria building
and down the hill from that is a test and x-ray building;
magazines off down another road and so on."
In early 1982, there were approximately 80 employees
of Respondent at its Byram facility . Until June 19,
Gerard C. Stickling was president and Ralph P. Dodd
was vice president.2 Other supervisors of the facility in-
cluded David Herbage, general manager; Edward
Soohoo, quality manager; Hazel Waldron, night-shift su-
pervisor; Kirk Klenk, 'assistant production manager; Ruth
Biamonte and Mildred Francisco, both first-shift supervi-
sors; and Harld Rouse, maintenance supervisor. All the
above-named individuals are admitted by Respondent to
be supervisors within the meaning of Section 2 (11) of the
Act.
B. Union Activity of the Employees
In early January, employee Nancy Kosiackowski
(Nancy) telephoned Anthony Corrao, an official of the
Union, advising that employees of Respondent were in-
terested in joining a union . Thereafter, a ,meeting be-
tween union officials and employees of Respondent was
held on January 31 . At this meeting, union authorization
cards were distributed to the employees, and approxi-
mately 36 cards were signed and returned to Corrao.
Corrao explained that the cards could be used for a rep-
resentation election or a card check to prove majority
status.
The following week, Corrao met with a few of the
employees at the home of Lorrie Snook . Corrao collect-
ed another eight authorization cards from Snook at her
house. Another meeting was held the following Sunday.
At this meeting, various employees complained with re-
spect to alleged unfair labor practices committed' by su-
pervisors of Respondent (detailed, infra). Further, em-
ployees complained about unsafe and unsanitary condi-
tions at the facility. Additionally at this meeting the
Union collected 12 more authorization cards.
2 On June 19 Stichling died , and Dodd succeeded him as president.
CARTRIDGE ACTUATED DEVICES 433
The following Thursday the union officials met with
six employees in a public restaurant. Corrao explained
the procedures for filing an NLRB representation peti-
tion and the steps to be taken by employees to further
the organizing campaign.
The following Sunday another meeting was held. Fur-
ther instances of alleged unfair ,labor practices by, Re-
spondent were brought to the attention of union officials
by employees., At this meeting, six more authorization
cards were collected by the Union.
On February 17, having obtained in excess of 50 union
authorization cards, Corrao, accompanied by Union Rep-
resentative Rick Fiore and six employees, visited, Re-
spondent's office at lunchtime and met with Herbage and
Soohoo. Corrao announced that a majority of the em-
ployees had designed the Union as their representative
and he desired recognition. Herbage responded that the
Union could file,a petition for an election with the Board
that he believed to be the appropriate means for obtain-
ing recognition. Corrao explained that alternative means
should be either a ,card check or a secret-ballot election
to be conducted by a neutral party. Herbage again stated
that the appropriate procedure should be the filing of a
petition with the Board. Corrao next remarked that it
was brought to his attention that various supervisors of
Respondent had committed acts constituting unfair labor
practices and that there were a number of unsafe condi-
tions at Respondent's facility . Further discussions were
held with respect to the petition after which Herbage
telephoned the corporate office of Respondent. He fur-
ther emphasized to the union agents that they should file
a petition for an election. Corrao requested that Herbage
reconsider his position to which Herbage responded that
Respondent would seek advice from legal counsel.
Following the meeting with Herbage, the Union held
another meeting with the employees on February 21, at
which time it announced what had transpired when the
request for 'recognition had been made. As employees
i elt very strongly with respect to union -representation,
the Union conducted a secret-ballot election to determine
whether they desired to strike. The employees voted
overwehlmingly for a strike, which began the following
morning, February 22, and lasted until June 18.3
C. The 8(a)(1) Allegations
1. Threats of plant closure
a. Hazel Waldron
Kathleen Scherer, an employee of Respondent and an
alleged 8(a)(3) discriminatee, testified that sometime in
mid-February in bay 7 of Respondent's facility, she ob-
served a conversation between Waldron and Nancy.
Standing behind Waldron, she heard her say, "You will
never get a union in here; they'll close the place down
fast."
According to Nancy, following a meeting of employ-
ees at her house in early February, the following day in
bay 7 of Respondent's facility, Warldon stated to her in
the presence of several employees, including Scherer,
"[T]his plant will never have a union, they will close this
plant down first, you'll all be out of jobs... "
Waldron denied having any such conversation with
Nancy.
b. Harold Rouse
Kevin Faulkner, an employee of Respondent, testified
that on the Monday of the week the employees went on
strike, in the workshop of Respondent's facility, Rouse
stated to him, "I heard that you were supposed to be
going to a union meeting and that if you do the compa-
ny-we will have to shut the company down, because
we don't want one in here." When Faulkner inquired
how Rouse had found this out, he responded that he
heard it from one of the coworkers of Faulkner. Rouse
did not testify to refute this statement of Faulkner.4
c. Mildred Francisco
Chris Hansen, an employee of Respondent, testified
that about 2 weeks before the commencement of the
strike in bay 2 of Respondent's. facility, Mildred a/k/a
Molly Francisco inquired whether anyone approached
him about' the Union. After he responded negatively, she
stated, "Because you know if the union-if people try to
get a union in here, they are going to fire everybody and
then take the plant to Fairfield,5 just close this plant
right up and everybody is going to be out of a job."
There were no witnesses to this alleged conversation.
Marion Cali, an employee of Respondent, testified that
on February 18, her supervisor, Francisco, during lunch-
time, stated to her, "Marion, they'll never let a union in
here; if they do, they're going to close the place."
Francisco, denied having made any such statements to
either Hansen or Cali.
d. Ralph Dodd
Faulkner testified that on the Friday preceding the
strike, at approximately 7:30 p.m. while he was cleaning
the office area, a meeting of Respondent's spervisors, at-
tended by Dodd, Herbage, Soohoo, Pete Buwen, Kirk
Klenk, and Waldron took place. Faulkner, while vacuum
cleaning, overheard Dodd state that he did not want a
union. Faulkner further testifies that "[Dodd] said if it
does turn out to be that the union does get in there or
try and push their way in there, he will close the plant
down completely."
Waldron, who is Faulkner's supervisor, testified that
she never assigned him duties to clean the office located
in the trailer, although he had,been assigned at times to
vacuum the lunchroom. According to Waldron, the
office cleaning was performed by employees of the main-
tenance department, either Steve Talmadge, the night
maintenance man, or Ray Schwinoff, the day mainte-
nance man . Herbage testified :that he does not recall ever
attending a meeting with Dodd and other , supervisors
8 Although both Soohoo and Herbage essentially confirmed what oc-
curred at the meeting for recognition, they both denied that anything had
been said about unfair labor practices.
' Rouse is no longer employed by Respondent.
s Respondent operates another facility located in Fairfield, New
Jersey, which is not a subject of this proceeding.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after 5 p.m. Further, he asserted that at no time had he
ever heard Dodd state that if the Union were successful,
the plant would be closed . Dodd testified that'he visited
the Byraht facility in January, but not February.' Howev-
er, he denied holding any meetings - with supervisors at
any time in either January or February in which he
stated that the Byram facility would be closed if the
Union were successful in organizing the employees.
Discussion and Analysis
With respect to the alleged threat by Ralph Dodd that
he would close the plant down should the Union be suc-
cessful in its organizational effort, the General Counsel
presented one witness , Kevin Faulkner, to support this
allegation. I cannot credit Faulkner 's account . Although
this is vital information , none of it was communicated to
the General Counsel until shortly before the trial which
necessitated an amendment to the complaint to include
the alleged violation . The evidence revealed that Faulk-
ner had submitted information with respect to other al-
leged unfair labor practices , discussed, infra , but failed, to
reveal any information with respect to the alleged unfair
labor practice committed by Dodd . In addition, although
Faulkner described in great detail the conversation that
occurred at the alleged meeting at 7:30 p .m., in contrast,
he could not recall any events that occurred at any of
the union meetings that he attended during the same time
frame in February . Additionally , I was not impressed
with Faulkner 's testimony in general . I found it to be in-
consistent and illogical in other areas as discussed , infra.
Accordingly, I have' concluded that the alleged meeting
at 7:30 p.m. in the office of Respondent's facility never
took place.
Assuming arguendo that the events occurred as Faulk-
ner had testified, although Respondent acknowledges
that should Faulkner be credited in this aspect , it would
require a fording of an 8(a)(1) violation, citing Perko's
Inc., 236 NLRB 884, 896 (1978 ), I disagree . In Perko, as
in Avon Convalescent Center, 200 NLRB 702, 708 (1972),
the Board found that communications among supervisory
staff of respondent employer were overheard by employ-
ees although the communcations to the employees were
unintentional, and a violation was found . The facts of
those cases are distinguishable from the instant case. In
those cases the conversations were held in, locations
where employees would reasonably be expected to over-
hear them, whether the employer intended that the' em-
ployees overheard them or not. In the instant case, the
alleged meeting , if it had taken place, did take place after
normal business hours in Respondent's office located in a
trailer, far from all, the nonsupervisory employees. I
cannot conclude that this meeting was , a setup among
Respondent 's supervisory staff in order to permit Faulk-
ner to overhear their discussion to instill a fear or threat
of plant closure. In the instant case, at best, Faulkner ac-
cidently overheard the conversation ; at worst, he was
spying on a company meeting.
With respect to the allegation that Harold Rouse
threatened Faulkner with plant closure if he attended a
union meeting, although Rouse, no longer employed by
Respondent, did not appear to refute the allegation of
Faulkner that such threat was made, I do not credit
Faulkner that the alleged threat was communicated to
him. As Respondent indicated in its brief, it makes no
sense for Rouse to inform Faulkner that Respondent
would close down the facility should Faulkner attend a
union meeting . This illogical statement , coupled with my
observation of Faulkner , as detailed, supra, has con-
vinced me that the General Counsel has failed to sustain
this allegation.
With respect to the allegations of threats of plant clo-
sures by Waldron and Francisco , witnesses for the Gen-
eral Counsel clearly and vividly portrayed situations in
which the two shift supervisors threatened a plant shut-
down should the Union be successful . Both shift supervi-
sors denied the allegations . Of the six witnesses present-
ed, I was not particularly impressed with the testimony
of Nancy, Scherer, Waldron, or Francisco on this issue. I
have concluded that Nancy, the most ardent union
leader of the employees, and Scherer, an alleged discri-
minatee, have much to gain should the Charging Party
be successful in this proceeding . On the other hand, both
Waldron and Francisco, being shift supervisors of Re-
spondent, might fear being disciplined should they admit
any commitment of any unfair labor practices . Although
Respondent argues that Francisco testified candidly by
stating that she does not recall conversations that she
may have had with employee Cali and therefore should
be credited, I have concluded that her answers were not
as candid as Respondent would have me believe. When
asked if she -ever threatened to close down the plant, her
response was, " [W]hy would I do that? My job would be
in jeopardy, as well as theirs ." It is true that her job
would be in jeopardy should the Employer close the
plant, but it is untrue that her job would be in jeopardy
by making threats to employees to discourage them-from
their union activities-Both Cali and Hansen , two other
employees who testified of Franciscos threat, impressed
me as being sincere and forthright . Accordingly, I credit
their accounts that the threats of plant shutdown were,
in fact, conveyed to them by Francisco.
Of six employees who allegedly witnessed the threat
of plant shutdown conveyed by Waldron to Nancy, only
Nancy and Scherer were presented to testify to the ac-
count. Although, at times, I was not particularly im-
pressed with testimony of either of these two witnesses, I
was less impressed with Waldron's denial of any unfair
labor practices. I find that Nancy and Scherer corrobo-
rated each other's account of the incident involving the
alleged threat of plant shutdown by Waldron, and Wal-
dron's denial of same was unconvincing.
Although no direct evidence was presented that the
threats of plant shutdown by Waldron and/or Francisco
resulted from any instruction or orders from senior plant
officials, an inference may correctly be deducted, based
on the, totality of the evidence in this matter,, that both
Francisco and Waldron, who were on friendly terms
with unit employees , were simply following instructions
in order to protect their respective positions. Assuming,
arguendo, that the inference was incorrectly drawn, the
Board holds that supervisors who do commit unfair
labor practices, do bind their employer.6 Accordingly, as
6 Glenroy Construction Co., 215 NLRB 866, 867 (1974).
CARTRIDGE ACTUATED DEVICES
both Waldron and Francisco are admittedly supervisors
within the meaning of Section 2(11) of the Act, I fmd
tha Respondent did violate Section 8(a)(1) of the Act
through these two -supervisors by their threats to em-
ployees of plant closure.
2. Threat of discharge
a. Waldron
The General Counsel alleges that Waldron, Rouse, and
Kenk threatened employees with discharge if they
joined the Union-or supported a strike.
To support the allegation against Waldron, the Gener-
al Counsel presented both Nancy and Faulkner. Nancy
testified that in the same conversation, as detailed supra,
under "Threats of Plant Closure," Waldron stated that
they would all be out of jobs.
Faulkner testified that several days prior to the strike,
Waldron spoke with him in the old lunchroom of, the fa-
cility. After he denied knowing anything of the Union,
she stated, "Well, if I hear you are joining one or any-
thing, you could be fired." Accordingly to Faulkner, ap-
proximately 2 hours later, she stated to him, "I have a
feeling that you are trying to go ahead and join the
Union and that if you do the same thing will apply as I
told you before; I am watching you and Lorri [Snook]
very closely and I think you are trying, to cause some
trouble."
Waldron denied these accusations.
b. Rouse
To support the contention against Rouse, the General
Counsel presented Wendy Mahler, a unit employee, who
testified that some time in January in bay 3 of the facility
in the presence of another employee, Rouse informed her
that if the employees went on strike, they could not col-
lect unemployment benefits and would be fired.
c. Klenk
The General Counsel alleges that on February 15,
Klenk distributed a leaflet in the cafeteria in the facility
that threatened employees with discharge if they en-
gaged in a strike. To support this contention, the General
Counsel presented Nancy who testified that she observed
Klenk distributing a blue leaflet in the cafeteria that later
was indentfied as Respondent's Exhibit 2. She further
stated that she observed a newspaper clipping stating
that people who go on strike do not receive unemploy-
ment benefits.
Klenk denied distributing the pamphlet in question.
Dicussion and Analysis
With respect to Waldron, for the reasons listed, supra,
I do not credit the testimony of Faulkner. However,
Nancy's testimony of the events that occurred at the
same time and place that the threat of plant closure was
made by Warldrou is credited.
As stated ealier, Rouse did not testify. Mahler credibly
testified that Rouse indicated to her, "I think in January
sometime" that if the employees went on strike they
could not collect unemployment and would be fired. Al-
435
though it is improbable that this statement was made by
Rouse in January (it was probably made closer to mid-
February), I find no reason to discredit Mahler that the
statement was made. It may very well have been that
Rouse was attempting to explain that employees on an
economic strike are replaceable and may never return to
their former employment . However, the words used by
Rouse, as testified to by Mahler, fall far short of this pro-
tected speech. Accordingly, I find that Rouse's statement
to Mahler constitutes a violation of Section 8(a)(1) of the
Act.
With respect to the ,pamphlet allegedly distributed by
Klenk, assuming, arguedo, that I credit Nancy's account
that Klenk distributed such pamphlets in the cafeteria, a
review of the pamphlet in question indicates that , it is a
document distributed by the New Jersey Department of
Labor and Industry that indicates by question and
answer various benefits or lack thereof under the unem-
ployment insurance benefit laws of the State of New
Jersey. In the pamphlet , one of the questions and answer
is as follows:
Q. Suppose I'm on strike?
A. If your unemployment is due to a labor dis-
pute where you, were working, you will be disquali-
fied for benefits for the entire period.
The pamphlet presented into -evidence encircled the
question and answer as stated, herein.
Neither the General Counsel nor the, Charging Party
urged in each respective brief that the distribution of the
pamphlet was a violation under the Act. No evidence
was ,presented that Klenk spoke to anyone with respect
to the pamphlet. As the pamphlet is a Government-
issued document, which on its face, summarizes unem-
ployment insurance benefits granted by the State of New
Jersey, I fmd that the distribution of the pamphlet if, in
fact it did take place, is not a violation of the Act.
3. Threats of more onerous working conditions
The General Counsel alleges that about early Febru-
ary, Ruth Biamonte, an admitted supervisor of Respond-
ent, threatened employees with more onerous working
conditions because they supported the Union. To support
this.,allegation, Nancy testified that Biamonte informed
her that she "would be assigned to primer cups; "7 Nancy
answered that this was hazardous work that she was not
trained to perform. Biamonte responded that she was a
troublemaker. Nancy then stated that she was "going
home sick" as she was very upset. Shortly thereafter,
Biamonte informed Nancy that she need not work on the
primer cups but to continue her own assignment.
Biamonte denied informing Nancy that she was assign-
ing her to work on primer cups because she was a trou-
blemaker.
Discussion and Analysis
Although Biamonte denied the conversation with
Nancy, I credit Nancy that the conversation did occur.
Primer cups are stainless steel cups filled with an explosive powder.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By this time, it was apparently well known throughout
the facility that Nancy was a leading union adherent. She
already had been threatened with plant closure and dis-
charge by Waldron, who also accused her of being a
troublemaker. Respondent argues that there is no evi-
dence that the alleged threat related to any, protected ac-
tivity. However, the evidence in its totality indicated
that during this period of time, there was activity among
the employees seeking union representation, and activity
among the supervisory staff of Respondent to discourage
the activity. No evidence was presented by Respondent
to establish that Nancy was a "troublemaker" in matters
unrelated-to her union activity. Accordingly, I find that
by characterizing Nancy as a "troublemaker" Biamonte
could only be referring to her union and protected con-
certed activities. The fact that Biamonte retreated rather
quickly and allowed Nancy to continue her normal
duties is of no consequence. That the threat was not car-
ried out could be interpreted as a warning to Nancy that
if she continued to pursue her protected activities, she
would be assigned to an onerous and hazardous duty
which she stated that she was fearful of performing.
Bearing in mind that she did have fears of performing
the duty, one can easily draw the conclusion that Nancy,
in her desire to avoid performing the primer-cup duty,
would be extremely cautious not to engage in any pro-
tected activities for fear that she would be assigned to
the primer cups by Biamonte. Standing by itself, the
threat does not appear to be, one of much consequence.
However, in conjunction with other unfair labor prac-
tices committed by Respondent's supervisory staff, I am
compelled to conclude that the threat of Biamonte to
assign Nancy to work on the primer cups constituted a
violation of Section 8(a)(1) of the Act.
4. Interrogation
The General Counsel alleges that both Waldron and
Francisco interrogated employees regarding their union
membership, activities, and sympathies.
a. Waldron
The General Counsel presented two witnesses to sup-
port the allegations with'respect to interrogation of em-
ployees by Waldron.
The first witness, Faulkner, testified that Waldron had
interrogated him as to his union activities prior to threat-
ening him with discharge, as related above.
The second witness, Deborah Gould, an, employee su-
pervised by Waldron, testified that she was interrogated
by Waldron on two occassions. The first incident oc-
curred in the beginning of February when Waldron in-
quired'why she had not been invited to a union meeting.
Gould responded that she did not know, and inquired
whether Waldron wished to join the Union, to which
Waldron answered negatively. In another conversation
in February, Gould testified that Waldron asked her who
had signed union cards, and Gould then told Waldron
who they were.8 On a third occasion in February, Gould
8 Gould did not indicate which names were given to Waldron.
testified that Waldron asked if she were going to a union
meeting . When Gould responded that she did not know,
Waldron requested an explanation. Gould explained that
she had been advised by another employee that she was
going to lose her job. Waldron assured Gould that this
was not true.
Waldron denied having any conversations with Faulk-
ner. She did acknowledge a conversation with Gould.
According to Waldron, Gould informed her that there
had been some union activity, including signing of cards,
and asked if she had been given a card or wanted one, to
which Waldron responded negatively. Gould then stated
that she had signed a card and was not sure if she
wanted to join the Union as an employee had told her
she could be fired if caught being involved in union ac-
tivity. Waldron stated that that was not true and that she
would not be fired. Waldron denied that she initiated the
conversation and had interrogated Gould or any other
employees with respect to their union activities.
b. Francisco
With respect to Francisco, the General Counsel pre-
sented three different employees to support the allega-
tion.
Hansen testified that prior to being threatened with a
plant shutdown and discharge of employees by Francis-
co, in the same conversation, Francisco asked him if any-
body had spoken to him about the Union, to which he
responded, "No."
Gerstmann testified that on February 18 in bay 1 of
the facility, Francisco approached him and asked what
he thought about, the Union. He responded that he was
not sure, but suggested that something need be done to
improve working conditions in the facility. According to
Gerstmann, Francisco handed him Respondent's Exhibit
2, pointing to the section stating that he could not collect
unemployment benefits if he went out on strike.
Francisco denied interrogating any employees with re-
spect to their union activities.
Discussion and Analysis
As indicated, supra, I was not impressed with the testi-
mony of Faulkner and discount his testimony relating to
interrogation by Waldron, as I have discounted other tes-
timony of his relating to other alleged violations to
which he was called to testify. However, I was very im-
pressed with the testimony of Gould. She was specific as
to time, place, and conversation she had with Waldron. 1
was further convinced of the likelihood that the conver-
sation with Waldron took place by Waldon's acknowl-
edgement that Gould was, and still is, a good friend of
hers. I do not believe that Gould, a good friend of Wal-
dron, would purposely and deliberately fabricate a false-
hood under oath in this proceeding.
With respect to the alleged interrogations by Francis-
co; I credit the conversations testified to by Gerstmann
and Hansen against the denial of Francisco. Although
Respondent would have me believe that the shift super-
visors did not in any manner interfere, with the activities
of employees, the totality of the evidence convinces me
otherwise. Of particular significance are Charging
CARTRIDGE ACTUATED DEVICES
Party's Exhibits 1, 2, and 3-notes taken by Francisco
relating to the possible union activity of employees. The
evidence revealed that these notes were taken as a result
of management 's requesting the supervisors to inform it
of such activities. Although 11 am not convinced that
management ordered or suggested that any supervisors
commit any unfair labor practices in order to accomplish
their desired end, I am convinced that the shift supervi-
sors, especially Francisco and Waldron, in order to
please management, where their true loyalty rested, in
spite of their friendliness with fellow employees under
their supervision or otherwise, did make statements as al-
leged by the employees who testified as to the alleged
violations . Respondent argues that Francisco would have
no reason to keep track of any employees not under her
supervision, such as Gerstmann. However, Charging
Party's Exhibits 1, 2, and 3 clearly reveal that Francisco,
although she did not supervise' employee Myrtle Acker-
son, did take notes to pass along to higher authorities. It
is also noted that one employee indicated that Francisco,
although on a later shift, did come to the facility earlier
than her scheduled shift time, and therefore had opportu-
nity to interrogate, threaten, or commit what any other
unfair labor practices she may have been charged with.
In summary I fmd that, through Francisco and ' Wal-
dron, Respondent interrogated employees in violation of
Section 8(a)(1) of the Act.
5. Creating an impression of surveillance
To support the allegations that Respondent created an
impression among employees that their union activities
were under ' surveillance by Respondent, the General
Counsel presented three witnesses.
Faulkner testified that Rouse stated to him, "I heard
that you were supposed to be going to a union meeting
and that if you do the Company-we will have to shut
the company down, because we don't want one in here."
Hansen testified that Francisco informed him to return
to work, "a couple of minutes early on your break."
When Hansen objected, Francisco allegedly stated to
him, "that's because the bosses across in, the trailer are
watching us and whoever comes back late they are
going to fire because of the union."
Nancy testified that following a meeting she had con-
ducted in her home in early February, Francisco stated
to her, "Be careful; they know."
Francisco denied making the statements attributed to
her.
Discussion and Analysis
Although Rouse did not testify to deny the, allegation
of Faulkner, as discussed supra, I do not credit Faulk-
ner's testimony in any respect. The alleged threat of
Rouse and the alleged impression of surveillance are dis-
counted by me as they do not make any sense.
With respect to the alleged statements of Francisco, I
credit both the version of Hansen and that of Nancy
over Francisco. I have concluded that the statements
were made by Francisco to the two employees on two
different occasions, despite her denial. As I had indicated
previously, the statements made by Francisco were not
437
made out of malice,' but perhaps out of friendship to-
wards the employees. According to Nancy, she had been
nicknamed "the peacemaker." I have concluded that be-
cause of her friendship with unit employees , Francisco
undoubtedly heard discussions involving union matters.
Further, -as she had been instructed to write reports to
her, superiors with respect to union activities , she was
well aware that management knew of some of the activi-
ties of the employees. Although she may have had good
intentions, nevertheless the statements made to Hansen
and Nancy both constitute violations of the Act. (Stride
Rite Corp., 228 NLRB 224, 230 (1977).)
6. Promises
The General Counsel alleges that "[o]n or about Feb-
ruary 17, 1982, Respondent, acting through David Herb-
age, at Respondent's facility promised its employees that
it would fix the bathroom, implement a dental plan, and
grant wage increases in order to induce its ' employees
from joining or supporting the union."
In early `February, Respondent held a meeting of the
day-shift employees in its cafeteria. In addition to the
day-shift employees , the meeting was attended by Herb-
age, Kirk Klenk, and Ruth Biamonte. ,
, Gerstmann' testified during this meeting that various
employees complained to Respondent's officials of mat-
ters that affected their working conditions. One of the
employees inquired of Herbage what happened to the
dental plan that the employees were supposed to have
received. Herbage replied that Respondent was studying
six different plans for the past 6 months and that no defi-
nite decision had been made as to which plan the Com-
pany would put into effect, Another employee inquired
of benefits, including eyeglasses . Again Herbage respond-
ed that Respondent was considering a plan. Another em-
ployee suggested that there was an odor in the rest-
rooms, they were unheated, and the toilets were always
backing up: Herbage, responded that all these problems
were being taken care of
According to Nancy, at this meeting, "[Herbage]
promised us raises if we were entitled to them, better
safety conditions; he was going to fix the bathroom; that
we didn't need a union because the company itself is
going to do the best they can. It just takes a little time."
Scherer testified that Herbage stated that he was
aware that there were hard feelings among employees
and a lot of dissention and that he was going to try to
improve conditions of the employees. A question was
raised about an employee's raise to which he responded
he would see what he could do. Another question was
raised with respect to a dental plan to which he stated
that it was going to be enacted.
In defense of the allegations, Respondent presented
Herbage, who admitted calling a meeting with the em-
ployees in the cafeteria in early February. When asked
about a dental plan, he responded that the carrier had
not been selected and that he would keep employees
abreast ' of any information with respect to a dental plan
being considered by, Respondent . He acknowledged fur-
ther that an employee raised the subject of a union. He
responded that he did not feel that the employees needed
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union as Respondent and the employees could work
out their own problems among themselves, that he had
an open-door policy, and that employees who could not
clear up any problem with their immediate supervisor
were free to discuss it with him and he would do his best
to resolve it to everyone's satisfaction. When the issue of
restroom improvement was discussed, he acknowledged
that a problem did exist and stated that a decision had
been made to renovate the restrooms by Respondent's
own maintenance department and that the work would
commence as soon as Respondent could fit it into the
maintenance schedule . Another employee complained
that he had not received a raise after a 6-week probation-
ary period, to which Herbage responded that he would
investigate the matter and whatever was appropriate
would be done.
Ralph P. Dodd, president of Respondent since the
summer of 1982, testified that prior to his assumption to
his present position, the president was Gerard C. Stichl-
ing, who died in June 1982. Dodd testified that he had
suggested to Stichling as far back as 1978 that Respond-
ent institute a dental plan for the benefit of its employees.
Respondent offered into evidence memoranda from both
Herbage and Dodd, dated November 18 and 19, 1981, re-
spectively , informing the employees, not only of Re-
spondent's plant in Byram but also its employees in Fair-
field and other facilities owned by Respondent that a
dental plan for all employees was being considered, and
that a selection of an insurance carrier would be made in
the early weeks of 1982.
Discussion and Analysis
There is no dispute among the witnesses who testified
that the meeting in question took place in early Febru-
ary. The evidence establishes that by the end of January
the Union had obtained 37 union-authorizations cards
and, during the first week of February, it obtained at
least'20 more authorization cards. Further, as I indicated
previously, threats and interrogations were performed by
supervisors of Respondent during the early part of Feb-
ruary. I, therefore, have drawn the conclusion that by
the time the meeting was conducted by Herbage, he was
well aware of the organizational efforts being conducted
by the Charging Party among the employees of Re-
spondent:
No evidence was obtained to explain the specific
reason for the meeting of the employees in the cafeteria.
Although Herbage testified that from time to time meet-
ings were held with employees, no evidence was ad-
duced that solicitation of grievances was obtained from
the employees at these other employee meetings. I con-
clude, therefore, that the meeting held in early February
was for the specific purposes of soliciting grievances
from employees, at which time Respondent assured em-
ployees that the grievances would be corrected, in order
to discourage the employees from obtaining union repre-
sentation.
The Board has held (Uarco, Inc., 216 NLRB 1, 2
(1975), that "it is not the solicitation itself that is coer-
cive and violative of [the Act], but the promise to cor-
rect grievances or a concurrent interrogation or polling
about union sympathies that is unlawful; the solicitation
of grievances merely raises an inference that the employ-
er is making such a promise which inference is rebuttable
by the employer." In Uarco, the Board found that the
employer did not possess union animus , and its preelec-
tion conduct did not occur in the context of other unfair
labor practices. Prior to the Uarco decision, the Board
consistently held that the solicitation of grievances at
preelection meetings carried with it an inference that an
employer explicitly promised to correct complaints that
the employees might raise. In each of those cases, the
employer had no past practice of soliciting grievances.
(See, e.g., Reliance Electric Co., 191 NLRB 44 (1971),
enfd. 457 F.2d 503 (6th Cir. 1972).) In Reliance Electric,
the employer, while soliciting grievances during a
union's organizing campaign, stated that it would "look
into" or "review" grievances, although it did not commit
itself to any specific corrective actions. The Board found
the actions of the employer in Reliance Electric unlawful,
reasoning that the employees of the company could an-
ticipate a correction of their grievances, thus making it
unnecessary to have union representation. I fmd that the
facts of the instant case to be more akin to Reliance Elec-
tric than to Uarco.
Although Respondent argues that the dental plan had
been considered by Respondent long before the advent
of the Union, the fact is that the dental plan had not
beem implemented at the time the union activity com-
menced. Thus, when an employee questioned Herbage
concerning the dental plan, it is obvious that the employ-
ees, considered a dental plan of great importance and per-
haps influenced, in part, some of them to sign union-au-
thorization cards in January. Although Respondent,
through its several supervisors, acknowledged that there
was a problem with,the restrooms, and that a plan was
under way to renovate them, there is no evidence that
this plan had previously been communicated to the em-
ployees, and it was made evident during the hearing that
this problem was a serious one that required constructive
action. Thus, the promise by Herbage to have the rest-
room facilities repaired tended to discourage union activ-
ity and membership of the employees. With respect to
the promise of increase of wages, I do agree with Re-
spondent that the question polled was a specific one con-
cerning a specific employee's problem. This was not a
wage increase promised to all employees, and in fact,
Herbage agreed to investigate a situation whereby a spe-
cific employee appeared to be entitled to a wage increase
following the probationary period. I do not consider this
a promise of wage increases, and thus fmd no violation
by Respondent.
In summary, the meeting held by Herbage, in which
grievances were solicited by him, and during which im-
plied promises were made to correct the grievances, in
connection with other 8(a)(1) violations committed by
supervisors, violated Section 8(a)(1) of the Act. (Carbon-
neau Industries, 228 NLRB 597, 599 (1977); K'& K Gour-
met Meats, 245 NLRB 1331 (1979).)
CARTRIDGE ACTUATED DEVICES 439
7. Threats to replace employees because they
engaged in a strike
The General Counsel contends that about April 6,
Herbage threatened to replace employees of Respondent
because they were engaging in a strike.
Nancy testified that at the commencement of the
strike, she had been on workmen 's compensation , having
been injured while at work for Respondent. On April 5,
Nancy allegedly received a telephone call from Herbage,
informing ,her that he had obtained a report from the in-
surance company that she was able to return to work.
He therefore requested that she report to work the fol-
lowing day, April 6.' She responded that she had not re-
ceived a, release from the doctor to return to work, and
further added that she would not cross the picket line to
come back to work. According to Nancy, Herbage re-
plied that he would not'know "if I would still have a job
there, or available." She again stated that she would not
cross the picket line.
Herbage testified that he never made a telephone call
to Nancy dicussing her return to work on April 6. He
further testified that he never threatened any employee
that they would lose their jobs if they crossed a picket
line. However, Herbage did assert that John Hefferan
handled questions with respect to workmen's compensa-
tion. According to Herbage, he believed that Hefferan
had spoken to Nancy on the telephone. Hefferan did not
appear as a witness to either affirm or deny the conver-
sation with Nancy.
Discussion and Analysis
I credit Herbage's account that it was not he who
spoke to Nancy on April 5. I also accept his theory that
probably Hefferan did. I find it easy for Nancy to have
confused the names Herbage and Hefferan.
No evidence was adduced at the hearing to prove or
disprove that Hefferan is a supervisor or agent of Re-
spondent. He may be a clerical employee who "handles
workmen's compensation," and spoke to Nancy as one
employee to another. Accordingly, I have concluded
that the General Counsel has failed to sustain this allega-
tion of the complaint.
D. The 8(a)(3) Allegations
1. Discharge of Kathleen Scherer
The General Counsel contends that Respondent dis-
charged Kathleen Scherer on March 15 because of her
union activities.
Scherer testified that she engaged in picketing for the
Charging Party following the commencement of the
strike. Her normal hours schedule for picketing was 9
a.m. to noon. On March 2, she notified Nancy, one of
the leaders of the strike, that she had some personal busi-
ness for the following afternoon and wished to be re-
lieved of her picketing duties early. She reported to
work on March 3 at 6:30 a.m.' She left the picket line be-
tween 9 and 10 a.m. Nancy confirmed that Scherer had
informed her that she, wished to leave early on March 3,
and testified that she did leave the picket line at approxi-
mately 10 a.m.
is Fiore, a union representative, testified that he
saw Scherer on March 3 as she walked past the window
of a pizza parlor where he was having lunch. Aware that
her picketing duties were from 9 a.m. to noon, and this
was approximately noontime, he inquired what she was
doing. She answered that she had worked from 6 to 9
a.m. and she was off at this time. He invited her to join
him for lunch with two other individuals named Ted
Kenny and Harold Morrison.
Harold Morrison, an International representative of
the Union, verified Fiore's story. He added that Scherer
was accompanied by a young lady named Blesson when
she came to the pizza parlor. According to Morrison,
Scherer remained in the pizza parlor with the union rep-
resentatives until they left approximately 12:25 p.m.
Wendy Reskovac (Reskovac) testified that she first
became employed by Respondent in July 1981 as a secre-
tary. She testified that on March 3, accompanied by em-
ployee Diane Irving (Irving), she left Respondent's facili-
ty in her automobile to pick up lunches at noontime. As
she drove through the picket line,' she noted a woman
making an obscene gesture and yelling at her. She later
ascertained from Irving that the woman was Scherer.
After purchasing the lunches, Reskovac returned to Re-
spondent's facility. As she approached the picket line on
her return, she slowed down as there were several dogs
in the middle of the road. After the dogs were removed
from the road, she started to pull away. She observed
Scherer standing on the passenger side of the car with
everyone else on the driver's side. As she passed by, she
heard a scraping noise.9 She testified that the damage, to
her car amounted to $71.
Diane Irving, a quality control inspector employed at
Respondent's facility since September 1980, verified Res-
kovac's story. She added that after she heard the scrap-
ing noise, Reskovac drove a little further up the road.
Irving alighted from the automobile and saw a long
scratch on the car. Although she did not see Scherer
scratch the car, at the time she heard the scraping noise,
she turned around and observed Scherer "right almost
up against the car." No one else was on that side of the
automobile.
Following this incident, Reskovac and Irving reported
the incident to Respondent. Thereafter, on March 15,
Herbage sent a letter to Scherer, notifying her that as a
result of the incident, her employment with Respondent
was terminated, effective immediately.
2. Discharge of John Gerstmann
a. Incident of March 16
Gerstmann testified that on March 16, approximately 4
p.m., he, as well as six or seven other pickets, were sta-
tioned at the picket line. Approximately nine vehicles,
accompanied by two police cars, one at the front of the
line and one at the rear drove through the picket line.
Following the lead police car was a passenger car fol-
lowed by a truck. According to Gerstmann, for no
9 She later deduced that the scraping sound was caused by Scherer's
scratching of her car.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason the truck decided to pass the passenger car. In
doing so, the truck almost hit a woman standing approxi-
mately 15 feet to the right of Gerstmann. The truck
headed toward Gerstmann who beleieves he was about
to be hit by the truck. Instinctively, Gerstmann kicked
out at the truck. At the time he was wearing sneakers
and claimed that no damage was done to the truck. Nev-
ertheless, the driver of the truck jammed his brakes caus-
ing an automobile behind him to strike the back of the
truck resulting in damage to the grill of the automobile.
The police immediately arrested Gerstmann for kicking
the truck.
Tony Corrao, one of the union officials who was
present at the scene on that date, verified the account of
Gerstmann.
Mark Williamson, an assembler employed by Respond-
ent from February, 11, testified that at approximately 4
p.m. on March 16, he was leaving the facility having
completed his tour of duty. He was the driver of the
truck following the passenger car that was immediately
behind the police car leading the caravan down the road.
As the truck passed the picket line, he observed Gerst-
mann standing on the left side of his truck and, as he
passed, Gerstmann spun around, lifted -his foot, and
kicked the truck on the driver's side underneath the
mirror. According to Williamson, Gerstmann was ex-
tremely close to the truck, necessitating Williamson to
slam on his brakes. An automobile behind him driven by
Chris or Sandy Keller, two employees of Respondent,
also braked and slid into the back of his truck. Accord-
ing to Williamson, the doors of the truck were in the
process of being repaired and contained body putty and
body filler. Approximately 2 square inches of the materi-
al had been knocked off the door that required further
repair work.1 ° Also, two tail lights of the truck were
damaged due to the collision with the automobile that
slid into the truck. Williamson estimated the damage to
the lights to be approximately $44 for the material, plus
labor. He estimated the cost to repair the door to be ap-
procimately $200, necessitating at least 10 hours of labor.
Williamson further observed damage done to the auto-
mobile that had slid into his truck. According to him, the
grillwork was broken, the hood was bent, and the mold-
ing around the headlight was broken. After observing
the damage, he requested that the police arrest Gerst-
mann, which they did.
Sandra Keller, employed by Respondent as an assem-
bler since March 12, testified that she was in the automo-
bile directly behind Williamson's truck, leaving work
with her husband. As the convoy approached the picket
line, she observed Gerstmann kicking the front end of
Williamson's truck. From her viewpoint on the passenger
side of the car, it appeared that Gerstmann's foot was
about to be run over by the truck's back tire. The truck
suddenly stopped, and her car, sliding on the gravel,
rammed into the back of the truck. Her car sustained
damage to the grill, the fender, and the hood, amounting
to approximately $100-$150.
10 No repairs were made as Williamson stated the truck is being
scrapped.
The following day, Herbage notified Gerstmann by
letter that he had been observed kicking William's vehi-
cle, blocking traffic, and causing an accident. As a result,
he was terminated effective immediately.
b. Incident of March 9
Gerstmann testified that on March 9, while he was at
the picket line, Frank Black, operator of Frank L. Black
Bus Company, passed another vehicle on the road and
narrowly avoided striking Gerstmann. Another striking
employee, Lorrie Snook, was struck by a mirror protrud-
ing from the vehicle causing her to fall on Gerstmann.
According to Gerstmann, Black transported employees
back and forth to Respondent's facility both before and
during the strike.
Herbage testified that he was riding in the bus driven
by Black on that morning . He asserted that the bus was
delayed going through the picket line. He observed that
four of the pickets were blocking a passenger van that
could not proceed. Black, in order to pass the pickets,
went off the side of the road. He recalled that Snook
was standing a short distance from the bus, and to the
best of his knowledge no one was struck by the bus that
then proceeded up the road to Respondent's facility.
Herbage further asserted that Black was an outside con-
tractor, and although he was not disciplined for anything
that may have occurred that day, he voluntarily discon-
tinued transporting employees 'from that day forward.
c. Incident of February 24
Wendy Mahler testified that approximately a week
after the strike began, while she was on the picket line,
she, accompanied by several other strikers, approached
the gate to Respondent's facility for the purpose of col-
lecting her paycheck. Harry Rouge informed the strikers
that they could not enter the premises with their picket
sign. She passed on this information to Fiore who in-
structed her to go back. She returned to the gate. An in-
dividual named Lynn Carpenter, otherwise unidentified,
who was inside the gate told Mahler to come in and
grabbed her hand. Rouse, on the other side, pulled
Mahler's arm and ripped the picket sign off her neck,
after which she fell to the ground. She sustained a rope
burn on her neck and pulled muscles in her arm as a
result of this incident, which required her to visit a phy-
sician and have X-rays taken at a nearby hospital.
Herbage testified that he was aware that there was a
"melee there, of some sort or other." He acknowledged
that Mahler filed a charge against Rouse, who was found
guilty of the charge."' Herbage conceded that no action
was taken against Rouse as a result of the incident.' 2 He
explained that he believed that to the best of his ability
Rouse was trying to handle' the incident. Herbage did
not see the incident occur, although he admitted being in
the area at the time. He asserted that when he turned
around to observe the incident, he saw Rouse under
attack, protecting himself from harm.
11 No further information was obtained, but it appears quite clearly
that the charge against Rouse was for an assault on Mahler.
12 Nor was any disciplinary action taken against any of the strikers.
CARTRIDGE ACTUATED DEVICES 441
Waldron testified that on the first payday after the
strike commenced , either Thursday or Friday, February
23 or 24, several strikers approached the gate in order to
enter the facility to receive their last pay. The strikers
were asked to remove their picket sign and to enter the
premises in an orderly fashion where all would be paid
at the maintenance shed . According to Waldron, Scherer
slipped through the gate with her picket sign on and Jim
Huff, another striker, followed her. She testified that it
was Huff , trying to get Scherer out, who pulled her sign
off. The melee ensued following that. When order was
restored, Herbage and Waldron remained at the gate and
paid the strikers. On cross-examination , Waldron ac-
knowledged that Mahler was present at the gate. How-
ever, she stated that she neither observed Rouse pulling
the picket sign off Mahler nor Mahler being knocked
down to the ground.
d. Incident of late February
With respect to another incident occurring approxi-
mately several days after the commencement of the
strike, Hansen asserted that in the vicinity of the plant,
he was struck by an automobile driven by Kirk Klenk, a
supervisor of Respondent . As a result of this incident,
Klenk was fined and had his license suspended for 6
months . The record is bare of any evidence that Re-
spondent took any disciplinary action against Klenk for
this incident.
Evans, came to the taven and announced that someone
had put sugar in his gas tank . It was at that time that em-
ployees left the tavern. As indicated previously, Rouse,
no longer employed by Respondent, did not testify. Bia-
monte , although called by Respondent to testify as to
other matters , offered no evidence to shed- light on the
incident . Herbage testified that he had received a tele-
phone call from Klenk that trouble might be brewing.
Herbage later ascertained that criminal complaints were
filed as a result of the incident . When asked why this
was not done , he testified as follows:
Any incident that occurred after the plant was
closed, no shift was running, of that nature , was not
something that was happening under the auspices of
the company; the company had no-has no control
over what people do on their own time and, fur-
thermore , there were charges being lodged in the
Municipal Court over this incident . I didn't want
to-I personally did not know what happened, and
I felt that 'this incident was best sorted out by the
courts.
Discussion and Analysis
It is well established that a striker who engages in seri-
ous acts of misconduct while on strike may forfeit the
protections normally afforded by the Act. In Alcan Alu-
minum Corp ., 214 NLRB 236 (1974), the Board stated at
236:
e. Incident of March 26
Corrao, Hansen, and Gerstmann all testified to an inci-
dent occurring on March 26. They essentially verified
each other's account of the incident. According to these
witnesses, on Friday, March 26, at approximately 4 p.m.,
the pickets at the picket line left their posts . Some of the
pickets were gathered with some union representatives at
the union trailer located on the picket line at apporoxi-
mately 6 p.m. One of the nonstrikers situated between
the facility and the picket line challenged the strikers to
settle the matter "once and for all." Corrao instructed
the strikers not to accept the challenge, which they
needed. Shortly thereafter, several vehicles came down
the road from the facility , and within minutes several
nonstriking employees, as well as Supervisor Biamonte,
attacked some of the striking pickets . During this fray,
CGerstmann was knocked unconscious and 'fell into a
creek, where he was pulled out by a policeman who
came on the scene to halt the fracas . In addition to Bia-
monte, two other supervisors of Respondent , Rouse and
K1enk, were present at this scene, according to the Gen-
eral Counsel's witnesses.
Klenk testified that on March 26, the day he believed
the fight occurred on the picket line, he was in a tavern.
He stated that he observed nothing of the fight occurring
on the picket line as he never left the tavern . He asserted
that with him at the tavern were Supervisor Biamonte
and several nonstriking employees . They left the tavern
prior to his departure, and he was aware that they were
going to go through the picket line toward Respondent's
facility. He denied any awareness that a fight was to
occur. He acknowledged that one of the employees, Joe
In determining whether a striker has , through his
misconduct, forfeited his rights to preferential
recall , the Board has, at all times,, considered
whether the alleged misconduct is of such gravity
as to require, in the public interest , removal of the
protective mantle which the Act affords striking
employees . Not every impropriety committed in the
course of events does, in fact , deprive the employee
of that mantle. Our inquiry necessarily considers all
surrounding circumstances to include analysis of the
severity and frequency of the misconduct of the em-
ployees involved and the quality of the evidence
tending to establish that misconduct.
In deciding whether a striker's misconduct on the
picket line warranted a discharge , the Board established
certain principles in Coronet Casuals, Inc., 207 NLRB
304, 305 (1973), in which it stated the following:
In deference to the rights of employers and the
public, the Board and the courts have acknowl-
edged that serious acts of misconduct which occur
in the course of a strike may disqualify a striker
from the protection of the Act. Thus, strikers have
been deemed to lose the Act's protection when they
seized the employer's property, or engaged in acts
of `brutal violance' against a nonstriker . At the same
time it is true that not every impropriety committed
in the course of a strike deprives an employee of
the protective mantle of the Act. Thus , absent vio-
lence , the Board and the courts have held that a
picket is not disqulaified from reinstatement despite
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in various incidents of misconduct
which include using obscene language , making abu-
sive threats against nonstrikers, engaging in minor
scuffles and disorderly arguments , momentarily
blocking cars by mass picketing , and engaging in
other minor incidents of misconduct . Consistent
with these cases, the Board and the courts have
long held that minor acts of misconduct must have
been in the contemplation of Congress when it pro-
vided for the right to strike and that this right
would be unduly jeopardized if any misconduct,
without regard for the seriousness of the act, would
deprive the employee of the protective mantle of
the Act.
In the same case at 305, the Board further stated
Each striker's eligibility for reinstatement must be
judged solely upon incidents in which the striker in
question is alleged to have participated. Unauthor-
ized acts of violence on the part of individual strik-
ers are not chargeable to other union members in
the absence of proof that identifies them as partici-
pating in such .violence. Upon proof that strike mis-
conduct on the part of a particular striker has oc-
curred, the burden of proving the innocence of the
striker shifts to the General Counsel who, in order
to gain reinstatement for the striker, must show that
the conduct was not sufficiently serious to justify
the employer's refusal to reemploy the striker in
question.
Scherer
It is obvious from the testimony of General Counsel's
Respondent's witnesses that there is a factual dispute re-
lating to the, incident involving Schere. I credit the ac-
counts testified to by Reskovac and Irving for the fol-
lowing reasons.
1. Neither Reskovac nor Irving had any reason to fab-
ricate a tale against Scherer.
2. Although Reskovac did not know Scherer personal-
ly, Irving positively identified Scherer as being on the
picket line and in a position to be the only person on the
picket line who could have scraped the automobile in
question . Although the actual scraping of the vehicle
was not seen by any of the witnesses presented by Re-
spondent, inasmuch as the credited evidence indicates
that Scherer was the only person on the side of the auto-
mobile at the time the scraping was heard by the two in-
dividuals in the automobile, I have concluded that
Scherer did, in fact, scrap the vehicle.
3. I find the testimony of Scherer to be illogical. As
Respondent indicated in its brief, there, was no reason for
Scherer to have left the picket line at 10 a.m. in order to
visit a friend in the hospital at 3:30 p.m. She lived nearby
the picket line, and the hospital was not too far a dis-
tance. The testimony that she had to do some shopping
prior, to the hospital visit does not hold water. Should
her account be credited, she left the pizza parlor at ap-
proximately 12:30 p.m. and could have performed all
necessary shopping prior to the visit to the hospital at
3:30 p.m.
4. The account of Nancy that Scherer was replaced by
her on the picket line is not credited. I have concluded
,that Nancy, as one of the leaders of the striking' employ-
ees, was aiding a fellow striker in obtaining her job back.
5. The testimony of the- two union representatives who
swore that Scherer was with them in the pizza parlor
during lunchtime on March 3, when the incident alleged-
ly occurred, is not credited. At best, they are mistaken as
to the date of the incident. Evidence revealed that Fiore
testified at an earlier proceeding that he did not recall
the date he lunched with Scherer in the pizza parlor. As
with Nancy, I find that the union representatives were
doing their best to protect Scherer in order to have her
reinstated at Respondent's facility.
6. I further credit the amount of damage done to Res-
kovac's car as related by her. Accordingly, standing by
itself, the facts would warrant a conclusion that Re-
spondent was justified in discharging Scherer for her acts
on the picket line. (Newport News Shipbuilding Co., 265
NLRB 716 (1982).)
Gerstmann
The facts are essentially undisputed in the matter in-
volving Gerstmann. In applying the principles as laid
down in Coronet Casuals, I have concluded that Re-
spondent was not justified in discharging Gerstmann.
The rationale for my conclusion is as follows.
1. I credit Gerstmann that the reason for kicking the
car was not a deliberate willful act, but one performed
spontaneously by him, based on fear that the truck
almost had hit him. I do not accept Respondent's ration-
ale that Gerstmann was deliberately provoking the truck
to hit him to cause an incident.
2. Although I credit Respondent's witnesses that the
damage to the truck was fairly extensive and if the
damage had been repaired in a body shop the bill would
be in excess of $200, the fact is that the truck never was
repaired and later was , junked for reasons other than
Gerstmann having kicked the door of the truck.
3. I do not hold Gerstmann liable for the chain reac-
tion caused by his kick. The evidence revealed that the
driver suddenly stopped his truck causing a passenger
vehicle behind the truck to run into the truck causing ex-
tensive damage to the automobile. I find there was no
reason for the truck to stop suddenly on hearing a thud.
The driver saw what Gerstmann had done, and I do not
credit that he stopped the truck suddenly in order to
avoid hitting Gerstmann. He could have and should have
continued onward without incident. Also, the automobile
driving behind the truck obviously was driving too close
to the truck. The road was one of gravel and the car slid
into the truck causing the damage to the automobile. As
with the truck, the evidence indicated that the car was
not repaired.
Although neither the Board nor I will condone the
misconduct of strikers on the picket line, I am of the
opinion that Gerstmann's conduct is the type of impul-
sive misbehavior that can be expected on a picket line
during the course of a lengthy and tense strike. Accord-
ingly, I conclude that the striker misconducted raised by
Respondent is insufficient to warrant the discharge of
CARTRIDGE ACTUATED DEVICES
Gerstmann. (Southern Florida Hotel & Motel Assn., 245
NLRB 561, 564 (1979).)
Disparate Treatment
Assuming, arguendo, I drew the conclusion that the
damage done to the truck and the passenger car was sub-
stantial, for which Gerstmann was responsible, as I found
in the Scherer incident, I still would not conclude that
the discharge of Gerstmann was warranted. Additionally,
although as I stated above, standing by itself, I would
find that Scherer's discharge was warranted, the facts
surrounding the discharge of both Gerstmann and
Scherer do not stand by themselves. The nonaction of
Respondent in taking disciplinary action against other
nonstriking employees in the other incidents, detailed
supra, must be taken into account. Although each inci-
dent is in many ways different from each other, the
Board has held that "[i]t was not incumbent on the Gen-
eral Counsel to show an identical situation with a dia-
metrically opposite result." (United. States Gypsum Co.,
259 NLRB 1105, 1106 (1982).) Cases are legion where
the Board has found a violation of Section 8(a)(3) of the
Act, based on disparate treatment of striking employees
as compared to treatment accorded to nonstriking em-
ployees. (Kaiser Steel Corp., 259 NLRB 643 (1981); Tal-
bert Mfg., Inc., 258 NLRB 776 (1981); and Lincoln Hills
Nursing Home, 257 NLRB 1145 (1981).)
Without condoning the conduct of Scherer and assum-
ing that Gerstmann's conduct would also bconsidered
unprotected, I have concluded that the treatment accord-
ed these two individuals, in comparison to the treatment
accorded to individuals, especially supervisors of Re-
spondent, who charitably could be described as having
committed unprotected activities, is of such disparate
nature that I can only conclude that the discharge of
Gerstmann and Scherer resulted from Respondent's
animus toward the Chargining Party and toward its em-
ployees who were in the forefront of the strike move-
ment.
There is no question, as evidence by the various
8(a)(1) independent violations found, supra, that Re-
spondent demonstrated its animus toward the Union. In
addition, Respondent, through Supervisor Francisco,
knew that Scherer was one of the leading union adher-
ents and that Gerstmann was a supporter of the Union.
Respondent attempted to brush aside the General
Counsel's disparate treatment theory. With respect to the
incident involving Klenk, although acknowledging that
Klenk, a supervisor of Respondent, was convicted in the
municipal court for hitting Hansen with his automobile,
Respondent argues that his conviction is being appealed.
Respondent further stated, "There was no evidence as to
the extent of his [Hansen] injuries, the circumstances sur-
rounding the incident, who was present, what knowledge
Herbage had of the incident or what if any action he
took against Klenk and why. The incident occurred
shortly after the strike when feelings of both sides are
naturally high." I fmd no merit in these arguments of Re-
spondent. Striking a pedestrian with an automobile is a
serious matter, notwithstanding the extent of an injury.
As to the circumstances surrounding the incident, who
was present, Herbage's knowledge, or what action was
443
taken against Klenk, Respondent was in full possession of
these facts, but chose not to submit them at the instant
hearing. I can only conclude that Herbage, although
aware of the incident, took no action against Klenk.
With respect to the incidents involving Wendy Mahler
and Lorrie Snook, I do find merit in- Respondent' s argu-
ment that no action was taken against anyone involved
in those two situations.
The evidence, as testified to by various witnesses in-
volving Mahler, indicated that there was mass confusion
as to who was knocked down, who did the knocking
down, and who was responsible for the entire situation.
I, therefore, credit Herbage who stated that according to
him, Rouse was trying to handle the incident, he saw
Rouse being under attack, and he took no action against
anyone.
With respect to the incident involving Snook on
March 9, neither the General Counsel nor the Charging
Party has indicated against whom' Respondent should
have taken disciplinary action. The bus that struck
Snook was driven by Frank Black, an independent con-
tractor. The evidence is undisputed that following this
incident, Black refused to transport any ' more of ' Re-
spondent's employees. As Black was the only one against
whom Respondent could have taken any action, the
question became moot when Black voluntarily discontin-
ued transporting the nonstriking employees.
The evidence that carried the most weight to, support
the General Counsel's theory of disparate treatment cen-
tered about the incident of March 26. As I indicated, the
General Councel's witnesses credibily testified that the
strikers were attacked without any provocation on their
part by both nonstriking employees and supervisors of
Respondent. Although Respondent describes the matter
as a "fiasco," it should be noted that Gerstmann almost
drown in a creek and, were it not for a policeman pull-
ing him out, in all probability he would have drowned.
This was far more serious than the incidents for which
both Scherer and Gerstmann were discharged. The 'rea-
sons submitted by Herbage for taking no action are re-
jected. Certainly Respondent had'control over its own
supervisors and the action of the supervisors are imputed
to that of Respondent. The fact that employees were on
their, own time is insignificant. Both Gerstmann and
Scherer were on their own time when they committed
the acts for which discipline was rendered. Although
Herbage stated that he personally did not know what
had happened and believed that the incident should best
be sorted out by the courts, it should be pointed out that
he did not personally know what happened' with relation
to both Scherer and Gerstmann. Scherer and Gerstmann
were discharged immediately after Herbage became
aware of the respective incidents from the respective, ag-
grieved parties. Respondent did not afford ,either Gerst-
mann or Scherer an opportunity to relate their, version of
the incidents before effectuating its decision to discharge
both of them. Additionally, it should be noted that
Gerstmann had been arrested following his kicking of
the truck, but this did not impede Respondent from
taking action against Gerstmann.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, I find and conclude that the General
Counsel has established that the discharges of both
Scherer and Gerstmann by Respondent constituted dis-
criminartorily motivated disparate treatment, and that
Respondent has not demonstrated to my satisfaction that
it would have discharged either of these two individuals
in the absence of their protected activities. (Wright Line,
251 NLRB 1083 (1980).)
E. The 8(a)(5) Allegations
The General Counsel alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by:
1. Engaging in a course of conduct, as described,
supra, which precluded the holding of a fair rerun elec-
tion among the employees in the appropriate unit.
2. Failing and refusing to recognize the Union since
February 17 as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit.
I find merit in the position of the General Counsel.
The General Counsel alleges, Respondent admits, and
I find that the following employees of Respondent con-
stitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, includ-
ing shipping and receiving employees, x-ray techni-
cians, test technicians and quality control employees
employed by the Employer at its Byram Township
facility.
I further find that on February 17, the number of em-
ployees in the unit amounted to 83 and, of this number,
65 had signed valid union-authorization cards designating
the Union as their collective-bargaining representative.
Accordingly, I find that the Union represented a majori-
ty of the employees in the unit. I further find that the
Union made a lawful demand on Respondent, seeking
recognition as the exclusive collective-bargaining repre-
sentative of the employees, and further requested Re-
spondent to bargain collectively with the Union.
The question thus presented is whether the Union is
entitled to recognition on the basis of its card count or
whether Respondent may refuse such recognition until
and unless the Union establishes its majority in an elec-
tion conducted by the National Labor Relations Board
pursuant to Section 9 of the Act. I find that Respond-
ent's activities, as detailed herein, constitute independent
violations of Section 8(a)(1) and (3) of the Act "which
have made the holding of a fair election unlikely or
which have in fact undermined a union's majority."
NLRB v. Gissel Packing Co., 395 U.S. 575, 610 (1969);
Trading Port, 219 NLRB 298 (1975); and Drug Package
Co., 228 NLRB 108 (1977). I find that the threats to
close Respondent's plant, standing alone, is sufficiently
egregious conduct to warrant a bargaining order. Added
to this are the discharges of Scherer and Gerstmann, plus
other independent 8(a)(1) violations, as detailed, supra.
Thus, I find that the totality of Respondent's conduct is
more than sufficient to, meet the criteria established by
the Supreme Court in Gissel. These unfair labor practices
are of "such a nature that their coercive effects cannot
be eliminated by the application of traditional remedies,
with the result that a fair and reliable election cannot be
had." Gissel, supra at 614. Additionally, I find that the
"possibility of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the use of tra-
ditional remedies, though present, is slight and that em-
ployees' sentiment once expressed through cards would,
on balance, better be protected by a bargaining order
. " Gissel, supra at 614.
With respect to the allegation that Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing to recog-
nize the Union on February 17, the Board, in, applying
Gissel, found that "[i]n view of the nature of all the Em-
ployers' unfair labor practices," the employer violated
Section 8(a)(5) of the Act by refusing to recognize the
union "while coterminously engaging in conduct which
undermined the Union's majority status and prevented
the holding of a fair election." Trading Port, supra at 301.
Applying the Board's rationale to the instant case, I find
and conclude that Respondent, by refusing to recognize
the Union and bargaining with it on February 17, violat-
ed Section 8(a)(5) and (1) of the Act. (Drug Package,
supra at 111 fn. 21.)
V. NATURE OF THE STRIKE
Both the General Counsel and the Charging Party
argued that the strike undertaken by the employees com-
mencing on February 22 was an unfair labor practice
strike. Respondent, on the other hand, asserts that the
strike was an economic strike. Were this a case of first
impression, I would be inclined to agree with Respond-
ent's position. The Charging Party concedes that the
strike called was basically economically motivated. The
evidence at the hearing was established through striking
employees who, one by one,, trooped up to the witness
stand and testified that their motive for striking was to
obtain relief via union recognition. Much was made out
of whether the picket signs contained language to indi-
cate that the strike was one of the unfair labor prac-
tices.13 However, this case is not one of first impression.
Legal principles have been established by the Board in
recent years. In 1975, when presented with this issue in
Trading Port, supra, the Board held (at 299-300):
When we add to these prestrike indicators of union
animus and evident intent not to bargain in any cir-
cumatances the Respondent's later daily 8(a)(1)
threats during the strike, we are constrained to con-
clude that the strike was essentially for recognition
and an unfair labor practice strike. Thus, by the
time of the strike, Respondent had commited (and
thereafter continued to commit) unfair labor prac-
tices of such magnitude and pervasiveness that the
possibility of a fair election had completely van-
ished. As we find infra, by the time of the strike Re-
spondent had forfeited its right to an election, and
was obligated to recognize and bargain with the
Union on the basis of the Union's clear majority
' Whether the signs did contain such language is immaterial as that
would be self-serving.
CARTRIDGE ACTUATED DEVICES
showing. This obligation the Respondent did not
meet. The strike for recognition was prompted by
Respondent's unlawful refusal to bargain. It was
virtually impossible to resolve the related economic
demands of the employees because of what, by the
time of the strike, had become an unlawful refusal
by the Employer even to recognize the Union. If
Respondent's unlawful conduct did not solely cause
the strike, it at least prolonged and aggravated ...
it. Hence, we find the strike to have been an unfair
labor practice strike.
Two years later, the Board in Drug Package, supra at
112 asserted:
The Board has long held that when employees
strike for recognition which should have been
granted at the time they went on strike and where
the employer engaged in contemporaneous wide-
spread illegal conduct designed to frustrate the stat-
utory scheme, and bargaining in,particular, striking
employees are unfair labor practice strikers. Such is
exactly the situation here and although the com-
ments at the time of the strike vote related to eco-
nomic demands, it was virtually impossible to re-
solve those demands because of Respondent's refus-
al to recognize the Union. For the foregoing rea-
sons, we conclude the strike was an unfair labor
practice strike.
In 1981, again the Board was presented with this ques-
tion. Applying Gissel and Drug Package, it again found
that a strike occurring following the withholding of rec-
ognition was an unfair labor practice strike John Cuneo,
Inc., 253 NLRB 1025, 1027(1981).
Applying the principles enunciated by the Board in the
above cases, L find and conclude that the strike that com-
menced on February 17, 1982, was an unfair labor prac-
tice strike from its inception.
VI. REPORT ON OBJECTIONS TO THE ELECTION
The record establishes that the petition for a represen-
tation election in Case 22-RC-8729 was filed on March
10. Pursuant to Stipulation for Certification upon Con-
sent Election executed on May' 11, an election was con-
ducted on June 17. The tally of counted ballots revealed
that 41 votes were cast for the Petitioner, 36 against the
participating labor organization, and there were 30 chal-
lenged ballots. Thus, the challenges were sufficient in
number to affect the result of the election. On June 23,
the Petitioner filed timely objections to the conduct af-
fecting the result of the election. Four of the enumerated
objections were withdrawn, leaving two to be resolved
by me.
1. The basis for Objection 1 was the alleged threat of
loss of employment made by Herbage to Nancy about
April, 6. Having concluded that the General Counsel
failed to prove this allegation, and having recommended
dismissal of the allegation, a fortiori, I find that the Peti-
tioner has not sustained its burden of proof with respect
to the first objection.
445
2. The second objection related to the discharge of
both Scherer and Gerstmann. Having found that these
two discharges constituted violations of Section 8(a)(3)
and (1) of the Act, a fortiori, I also' find that the dis-
charges constitute objectional conduct and, therefore, I
find merit in this objection. Accordingly, the objection is
sustained.
Having found that Respondent committed serious
unfair labor practices by virtue of the discharges of
Gerstmann and Scherer, I reccommend that the election
held in Case 22-RC-8729 on June 17 be set aside and the
petition dismissed.
VII. THE CHALLENGED BALLOTS
Having found that Respondent has engaged in such
egregrious conduct as to warrant a bargaining order
under the Gissel doctrine , I deem it moot at this time to
rule on the eligibility of voters in Case 22-RC-8729.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. An appropriate unit of Respondent's employees for
purposes bargaining is a unit of all production and main-
tenance employees, including shipping and receiving em-
ployees, x-ray technicians, test technicians, and quality
control employees employed by the Employer at its
Byram Township, New Jersey facility, excluding office
clerical employees, professional employess, guards,' and
supervisors as defined in Section 2(11) of the Act.
4. Since February 17, 1982, International Union of
Electrical, Radio and Machine Workers, AFL-CIO has
been, and is now, the exclusive representative of all em-
ployees in the aforesaid bargaining unit for purposes of
collective bargaining within the meaning of Section 9(a)
of the Act, and by refusing to bargain with the Union
since on and after February 17, 1982, Respondent has
violated Section 8(a)(5) and (1) of the Act.
5. The strike that commenced on February 22 and
continued, to June 18, 1982, was an unfair labor practice
strike from its inception.
6. By the following conduct that interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act, Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1), of the Act:
(a) Threatening its employees with plant closure if
they joined or supported the Union.
(b) Threatening its employees with discharge if they
joined the Union or supported a strike.
(c) Interrogating its employees regarding their union
membership, activities, and sympathies.
(d) Threatening its employees with more onerous
working conditions because they, supported the Union.
(e) Creating' an impression among its employees that
their union activities were under surveillance.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Promising or granting its employees benefits to dis-
suade them from union membership or activities and to
reward them for ceasing to support a union.
7. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging and failing to reinstate Kathleen
Scherer on March 15, and John Gerstmann on March 17,
1982.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not committed any other unfair
labor practices except as noted above.
10. Respondent's unlawful conduct interfered with the
respresentation election conducted on June 17, 1982.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
As I have found that Respondent unlawfully dis-
charged Kathleen Scherer and John Gerstmann, I shall
recommend that Respondent be ordered to offer them
jobs for which they are qualified, without prejudice to
any seniority and other rights and privileges they would
have acquired as such employees. It will further be rec-
ommended that Scherer and Gerstmann be made whole
for any loss of earnings suffered by reason of the dis-
crimination against them by payment to them of the
amount they normally would have earned from the date
of their respective discharges until the date of their re-
spective reinstatments, less net earnings to which shall be
added interest to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1959); Isis Plumb-
ing Co., 138 NLRB 716 (1952); and Florida Steel Corp.,
231 NLRB 651 (1977).
Having concluded that the strike that began on Febru-
ary 22, 1982, was an unfair labor practice strike from its
inception, I recommend that it will effectuate the pur-
poses of the Act to order Respondent, in addition to
taking certain action designed to remedy the unfair labor
practices found herein, to offer to all strikers who make
unconditional offers to return to work immediate and full
reinstatement ' to their former jobs or, if those jobs no
longer exist, to substantially equivalant positions, without
prejudice to their seniority or other rights and privi-
ledges, and make them whole for any loss of earnings
they may suffer as a result of Respondent's refusal, if
any, to reinstate them, by payment to each of them a
sum of money equal to that which each would have
earned as wages during the period commencing 5 days
after the date on which each one unconditionally offers
to return to work to the date of Respondent's offer of
reinstatement, 14 less any net earnings during such period,
with backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W. Woolworth Co.,
supra; Isis Plumbing Co., supra; and Florida Steel Corp.,
supra.
As the adminstrative law judge stated in Drug Package
Co., supra at 134:
14 Drug Package Co., 228 NLRB 108, 113 (1977).
"The pervasiveness and substantiality of the 8(a)(1)
infractions found above "strike at the heart of the
employees rights safeguarded by the Act." Cf. L. E.
Johnson Products, Inc., 179 NLRB 67, fn. 1 (1969).
Accordingly, I shall recommend a broad Order to
prevent further infractions of the Act by Respond-
ent in any manner. See R & R . Screen Engraving,
Inc., 151 NLRB 1579, 1587 (1965)."
The instant proceeding is on a par with Drug Package.
Therefore, I, too, will recommend a broad Order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed15
ORDER
The Respondent, Cartridge Actuated Devices, Inc.,
Byram Township, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with plant closure if
they join or support the Union.
(b) Threatening its employees with discharge if they
join a union or support a strike.
(c) Interrogating its employees regarding their union
membership, activities, and sympathies.
(d) Threatening its employees with more onerous
working conditions because they support a union.
(e) Creating an impression among its employees that
their union activities are under surveillance.
(f) Promising or granting to its employees benefits in
order to dissuade them from union membership or activi-
ties and to reward them for ceasing to support a union.
(g) Disccharging and failing to reinstate employees be-
cause they have joined, supported, or assisted a union or
have engaged in protected concerted activities.
(h) Refusing to recognize and bargain with Interna-
tional Union of Electrical, Radio & Machine Workers,
AFL-CIO as the exclusive representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees, includ-
ing shipping and receiving employees, x-ray techni-
cians, test technicians, and quality control employ-
ees employed at Respondent's Byram Township fa-
cility, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined
in Section 2(11) of the Act.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify International Union of Electrical, Radio and
Machine Workers, AFL-CIO that it recognizes and will
15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
CARTRIDGE ACTUATED DEVICES
bargain with it as the exclusive collective-bargaining'r`ep-
resentative of the employees in the unit described above
in paragraph 1(h) of this Order respecting rates of pay,
wages, hours, or other terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement.,
(b) Offer to Kathleen Scherer and John Gerstmann im-
mediate and 'full reinstatement to their former jobs or, 'if
their jobs no longer exist, to substantially -equivalent po-
sitions without prejudice to their seniority or other rights
and privileges.
(c) Make Kathleen Scherer and John Gerstmann
'whole for any loss of pay suffered by them by reason of
their'discriminatory terminations in -the manner set forth
in the remedy section of the decision.
(d) Remove from its files and records any references
to the discharge of Kathleen Scherer on-March 15, 1982,
and John Gertsmann on March 17, 1982.
(e) Notify both Scherer and Gerstmann that the re-
moval has been done, and that evidence of these unlaw-
ful actions will not be used as a basis for future discipline
against them.
(f) On application, offer immediate and full reinstate-
ment to their former positions or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to ' their seniority or other rights and priviledges, to
all employees who engaged in a strike on February 22,
1982, or thereafter,- dismissing, if necessary, any person
hired by Respondent on or after that date, and make
them whole for any loss, of pay which they may suffer
by reason of Respondent's refusal, if any, to reinstate
them in the manner set forth ,in the remedy section of the
decision.
447
(g) Preserve and,' on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(h) Post at its premises at Byram Township, New
Jersey, copies of the attached notice marked "Appen-
dix."16. Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges unfair labor practices not
found herein.
IT IS FURTHER ORDERED that the election in Case 22-
RC-8729 is set aside and that Case 22-RC-8729 is dis-
missed.
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted -Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."