Colt Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1977

228 N.L.R.B. 723 (N.L.R.B. 1977)

CRUCIBLE, INC. 723
Crucible, Inc., Division of Colt Industries, Inc. and
United Steelworkers of America, District 20, AFL-
CIO-CLC. Case 6-CA-8879
March 15, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 17, 1976, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' fmdings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Crucible, Inc.,
Division of Colt Industries, Inc., Robinson Town-
ship, Pennsylvania , its officers, agents , successors,
and assigns , shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
I Although Resp . Exh. 3, which purportedly was prepared by the
Respondent 's personnel manager in mid-September 1975, and which
purportedly indicates that she had recommended then that some of the
alleged discriminatees be laid off, may lend some support to Respondent
President Dulis' assertion that the decision to terminate the five alleged
discnminatees was made prior to the commencement of the organizational
drive, the overwhelming weight of the evidence supports the rulings and
findings of the Administrative Law Judge. Moreover, we note that the only
authentication of the document was through the self-serving testimony of
Dulis, who did not impress Administrative Law Judge Giannasi as a
credible witness.
2 The Administrative Law Judge inadvertently omitted the broad order
language from the notice . We hereby revise his notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity
to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
This Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against employees for
joining supporting, or engaging in activities on
behalf of United Steelworkers of America, Dis-
trict 20, or any other labor organization.
WE WILL NOT interrogate our employees con-
cerning their union activities, or make threats of
reprisal or loss of jobs and benefits if United
Steelworkers of America, District 20, or any other
labor organization, is selected as bargaining
representative.
WE WILL NOT raise the salary or wages of
employees in order to discourage support for
United Steelworkers of America, District 20, or
any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer full reinstatement to Edward
Campbell, Barney Seaton, Lou Trombetta, Ber-
nard Hurley, and Robert Joll and make them
whole for their loss of earnings resulting from our
discrimination against them with interest at 6
percent per annum.
CRUCIBLE INC., DIVISION
OF COLT INDUSTRIES,
INC.
228 NLRB No. 84
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNAsi, Administrative Law Judge: This
case was heard before me from June 15 through 18, 1976,
in Pittsburgh , Pennsylvania , upon unfair labor practice
charges filed on December 13, 1975, and a complaint
issued on February 24, 1976, as amended April 27, 1976.1
The complaint alleges that Respondent violated Section
8(axl) of the Act by various threats, granting of wage
increases , and interrogation of employees and violated
Section 8(a)(3) and ( 1) by discriminatorily discharging
employees Campbell , Joll, Seaton, Trombetta, and Hurley.
Respondent filed an answer denying the critical allegations
of the complaint . Respondent and the General Counsel
have filed briefs.
Upon the entire record, including my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, a Pennsylvania corporation, is engaged in
the research, development, and manufacture of specialty
steel products at various facilities in Pennsylvania, includ-
ing its Materials Research Center (hereafter CMRC)
located in Robinson Township, Allegheny County, Penn-
sylvania. During the 12-month period immediately preced,
ing the issuance of the complaint, Respondent shipped
goods and materials from its Pennsylvania facilities valued
in excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania and received goods and
materials valued in excess of $50,000 directly from points
outside the Commonwealth. Accordingly, I find, as
Respondent admits, that Respondent is an employer as
defined in Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
United united Steelworkers of America, District 20,
AFL-CIO-CLC (herein the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On November 24, 1975, the Union filed a petition in
Case 6-RC-7312 with Region 6 of the National Labor
Relations Board requesting certification as the collective-
bargaining representative of certain of Respondent's
employees. After a hearing on the petition, a Decision and
Direction of Election was issued by the Regional Director
on May 25, 1976. On or about June 7, 1976, Respondent
filed with the Board a request for review of the Regional
Director's decision, contending, inter alit , that certain of
the employees at the Materials Research Center were
managerial and/or confidential employees and thus not
employees within the meaning of the Act. On June 29, by
I At the hearing the complaint was amended to allege an additional
violation of Sec . 8(a)(l) of the Act
2 This is based on the credited testimony of Hurley . Subsaro's testimony
telegraphic order, the Board denied Respondent 's request
for review of the Regional Director's decision as it raised
no substantial issues warranting review . The election was
held on June 30. The employees rejected the Union and, on
July 9, 1976, the Regional Director issued a Certification of
Results of Election.
This proceeding involves issues arising from an organiza-
tional attempt by Respondent 's CMRC employees. The
employees are primarily technicians who assist engineers
and supervisors in the performance of experiments and
tests aimed at reducing costs by eliminating jobs and
improving production techniques or processes. CMRC is
not a profitmaking operation but performs research for
other divisions of Respondent . It operates under an annual
budget financed in part by Respondent and its operating
divisions and in part by other sources such as Government
grants and contracts. The Center is divided generally into
five groups of engineers and technicians each headed by a
technical director who reports to President Edward Dulis.
B. The Organizational Campaign
On or about September 24, 1975, after meeting with
President Dulis, the technical directors called meetings of
their groups to inform employees that CMRC was having
financial difficulties and that there would be a tightening of
procedures. Employees were told that there would be a ban
on cashing checks, talking, and leaving the building on
working time-amenities which had been permitted there-
tofore. Employees were also told that there probably would
be no layoffs but there would be no wage increases in the
immediate future.
Thereafter some employees brought up the possibility of
forming a union . Employee Paul Rossome approached
employee Robert Joll after the meeting and said something
to the effect that "if they were going to treat us like union
people, we may as well have a union ." Joll agreed. He and
employees Barney Seaton and Lou Trombetta spoke with
employee Edward Campbell about Campbell contacting a
union. Campbell contacted the Union and obtained
authorization cards and literature. He placed the material
in his unlocked desk at the plant. Campbell told employees
the material was in his desk and several came to the desk to
pick up the material. By October 7, 1975, four employees
had signed cards: Joll, Campbell, Seaton, and Trombetta.
In late September, employees Bernard Hurley, Jimmy
Connors, and Angelo Marchionna were talking, in their
work area, about the Union and employees who were
passing out union cards . They were discussing what each
had heard about these matters. Admitted Supervisor John
Subsaro came into the area and asked each what they knew
about the Union and whether they had seen cards. They
replied they "didn't know anything." 2
On October 15, employees Joll, Seaton, Trombetta,
Campbell, and Hurley were discharged. They were told
they were being terminated as of that date because of
economic reasons . President Dulis testified that he made
the decision to terminate the five technicians on September
15. He had told Personnel Director Susan Ray about a
on this point was vague and evasive and he did not impress me as a reliable
witness.
CRUCIBLE, INC. 725
week before to come up with the names of people
recommended to be laid off. Ray, who had no technical
experience, did not consult the technical directors in charge
of the particular employees but came up with the names
listed above. No one else was terminated at this time
although there were two or three other employees-
including one technician-who left voluntarily about this
time.
Early in the day on October 15, Dulis called a meeting of
technical directors and told them there would be staff
reductions during the day and that they could inform the
affected employees. After the layoffs, the technical direc-
tors held staff meetings and told their employees about the
layoffs and that there would be a wage freeze starting
immediately and lasting until July 1976. At Technical
Director Bressanelli's meeting there was a question about
the Union. Bressanelli told employees that Dulis had stated
that "if a union came in to the laboratory that would be the
end of the lab" and that he agreed. Bressanelli held another
meeting of his employees several days later. At this
meeting, Bressanelli mentioned the current union activities,
which he stated would "be detrimental and be the finish of
the lab, as we know it today." On the same day, in the
hallway, Engineer John Eckenrod, an admitted supervisor,
told employee Paul Rossome that, if the Union came in,
the lab would be closed.
C. The Wage Increases
There is testimony that a wage freeze was discussed at
meetings on September 24 and October 15, 1975, between
the technical directors and President Dulis and at meetings
between the technical directors and the employees. Em-
ployees Joll and Campbell credibly testified that at their
group meetings on September 24 they were told by their
technical directors that there would be no raises in the
immediate future. On October 15, when the technical
directors told employees about the layoffs, they again told
employees that the wage freeze was effective immediately
and would last through July 1976. This is supported by the
testimony of employees Berg and Rossome whom I credit.
Technical Director Bressanelli 's testimony confirms this.
Dulis' testimony was that he announced the wage freeze
on October 15 and that the wage freeze was to begin in
early 1976 and to last through 1976. The weight of the
evidence shows, however, that the wage freeze was first
announced on September 24, which is plausible since Joll
and Seaton were still employed on that date and testified
about the announcement made to them. It is unclear
whether Dulis specifically told his technical directors that
the freeze would begin immediately or in early 1976. For
example, Technical Director Bressanelli testified that Dulis
told him that there would be a wage freeze effective
immediately and that it would last through July 1976.
Technical Director Martin Welles testified that Dulis said
that the freeze would last through the first 6 months of 1976
and there would be "very few" raises in the remainder of
1975. However, as I have indicated, it is clear that
employees were told that the freeze would begin immedi-
ately-
Based on the above testimony, I find that a wage freeze
was announced by Dulis to the technical directors and by
them to the employees both in late September and mid-
October. The wage freeze was to last through June 1976.
Employees were told it was to start immediately and Dulis
gave the impression to his technical directors that it would
start immediately.
In late October 1975, 2 or 3 weeks after the wage freeze
was first announced, the wage freeze was lifted by Dulis.
There is no evidence that Dulis told either the technical
directors or the employees the reason for lifting the wage
freeze . Thereafter, and continuing through June 1976,
Respondent granted wage increases to supervisory and
nonsupervisory employees. For nonsupervisory employees,
i.e., the technicians, utilitymen, and office clerical employ-
ees, and the employees the Union was seeking to organize,
the increases ranged from 8 percent to over 14 percent.
About 60 employees received increases during this period.
Dulis, who decided to institute the wage freeze on his own,
approved each of the pay raises.
Respondent's "final" proposed budget for calendar year
1976 was prepared as a revision of an earlier document on
September 22, 1975, shortly before the initial announce-
ment of a wage freeze on September 24. The amount of
money allocated for salaries in the "final" proposed budget
was not increased from that amount of money allocated for
salaries in the initial proposed budget. The "final"
proposed budget was approved as the budget for 1976. This
proposed 1976 budget projected a deficit of $366,000 if no
changes were made. That budget figure also did not
include subsequent salary increases which would have
resulted in an additional deficit of another $100,000.
Early in November, Personnel Manager Susan Ray
requested Technical Director Bressanelli to make recom-
mendations for merit raises for his employees. These raises
were approved and some became effective on or about
November 15. Ray also approached Technical Director
Welles stating that there would be a wage increase after the
first of 1976, that there were plans for an increase for most
people, and that he should prepare a list of all employees in
his section and the amounts recommended according to
some guidelines given by Ray.
D. Other Alleged Misconduct
On December 10, employees Bill Henninger and Joe
Verduci were reading the Board election notice posted in
the plant near their workplace. The manager of lab
services, Elmer Hoff, an admitted supervisor, and Engineer
V. K. Chandhok approached Henninger and Verduci. Hoff
stated that "the last place he had worked had employed
about 750 people and now employ none because of union
activities." Hoff did not explain this statement. Verduci
then told Hoff that his statement "sounds like a threat."
Hoff provided no reasons for the reduction in employment.
On December 18, in Hoff's office, Hoff told Henninger
again "about the company he had previously worked for,
and how it had employed 750 people, that it dwindled
down from there, because of union activities." Henninger
then suggested that a contributing cause may have been
bad management and Hoff said, "yes, possibly both." In
the same conversation, Hoff told Henninger that "if a
union had come in that it would hurt the employees," and
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "if a union comes into the lab, that the benefits we
receive would go to zero." No other persons were present.
E. The Discharges
As indicated, employee Edward Campbell was ap-
proached by employees Joll, Trombetta, and Seaton about
his contacting the Union in late September. Campbell then
contacted Union Staff Representative Poff and secured
union cards and literature which he took to the plant and
put in his desk. Among the items of literature Campbell put
in his desk was the Union's pamphlet on office and
technical employee benefits. Supervisors, such as Welles
and Subsaro, sat at his unlocked desk during the time the
desk contained union literature. Campbell signed an
authorization card for the Union on October 7.
On October 15, Personnel Director Ray called Campbell
to her office and informed him that she had bad news, that
he was being retired. She also asked if he had any feelings
about the situation and he replied that it did not make
much difference about his feelings. The only reason given
Campbell by Ray was that his retirement was due to
economic reasons. After lunch on October 15, Ray and
Technical Director Welles spoke with Campbell and
during the conversation Ray informed Welles of Camp-
bell's retirement. Welles said that he did not know about
this and he asked if there was any way to get around it.
After leaving Ray's office, Campbell told Welles that he
thought he was being retired because he was trying to form
a union. Welles stated that he thought it was Campbell's
right to form a union.
Bernard Hurley was also terminated on October 15.
Hurley, a lab technician, was engaged in mechanical,
elevated temperature, impact, and wear testing. Hurley was
supervised by Technical Director August Kasak. Hurley,
who did not sign a union card and who usually did not
have much contact with Edward Campbell, started having
frequent conversations with Campbell around the first of
October regarding home improvements that Hurley con-
templated making. Hurley discovered that Campbell was
familiar with carpentry and bricklaying and stopped
Campbell in the hallway and asked him information about
remodeling . Around this period of time, they engaged in
approximately half a dozen conversations of from 10 to 15
minutes in length. Supervisor John Subsaro observed the
conversations between Campbell and Hurley and, on a
couple of occasions, asked Hurley about the conversations
and why they were talking to each other so often lately.
Hurley answered that they were not talking about anything
of any significance.
On October 15, Hurley was terminated by Kasak who
stated he had bad news for Hurley and because of a cut in
expenditures he was going to be terminated. Hurley asked
Kasak why he was chosen and Kasak replied that since his
job was strictly research it could be absorbed by someone
else. Kasak indicated to Hurley that this termination was a
"rush-type" thing and that it had come up suddenly.
Hurley then had a conversation with Personnel Director
Ray in her office and she asked Hurley if he had been told
why he was being terminated. Hurley replied that he had
been told it was due to a cut in expenditures, among other
things. Ray replied that Kasak was just to tell Hurely that
Hurley was a cut in expenditures and nothing else.
Robert Joll was employed by Respondent from August
1963 until October 15 as a technician. Joll processed and
prepared steel for testing and metallographic examination.
He was supervised by Technical Director Bressanelli. Joll
became aware of the union campaign in late September
and he signed a union card on October 10. Joll spoke in
favor of the Union in a conversation with employee
Osekowski in Supervisor Subsaro's presence around the
first of October. Joll stated that if the employees had a
union the Union would be able to help the employees get
raises and protect their jobs.
On October 15, Joll was asked to report to Bressanelli.
Joll had heard of employee Trombetta being terminated,
so, when he walked into Bressanelli's office, he opened the
conversation with the statement that he knew why he was
here, that he was being terminated. Bressanelli replied that
it was true , "sad, but true ." Bressanelli asked Joll his age
and stated that if he had known of the termination 5 years
ago, he would have laid him off then. Bressanelli told Joll
that in a technical directors' meeting the day before, Dulis
had brought up the question of the Union and he had tried
to assure Dulis that the Union was just a passing fancy. Joll
replied that he did not think that it was a passing fancy,
and that he was for the Union because of what was
happening to him that day. Bressanelli replied that if a
union were to come into the lab it would probably mean
the closing of the lab and everybody's jobs would be in
jeopardy.
Louis Trombetta was employed from January 1973 until
October 15 as a technician. He prepared stainless steels for
testing in Bressanelli's group. Trombetta and employees
Henninger and Kasak complained about Dulls' directive
which resulted in a loss of benefits for the employees and
they decided, if they were represented by a union, they
could possibly change things. Trombetta signed a union
card on October 7 and placed it in employee Campbell's
desk at the plant. Trombetta also had occasions to secure
union pamphlets from Campbell's desk.
On October 15, Trombetta was asked to see Bressanelli
in his office. Bressanelli told Trombetta that there was bad
news and, because of an economic crunch, Respondent
had to have a cutback and Trombetta was chosen as one of
the persons to be let go. Trombetta asked if there was any
chance of being recalled and Bressanelli told him there was
not. Bressanelli stated that Trombetta should have seen it
coming and that he should go back to school. Following an
exit interview with Personnel Director Ray, Trombetta was
escorted back to his desk and to his locker to get his
belongings out of the building.
Barney Seaton was employed by Respondent from
September 1966 to October 15 as a specialist technician
and he was supervised by Technical Director Kasak. In
mid or late September, Seaton spoke with employee
Hoffman who informed him that a group of employees
were thinking about getting a union organized and that the
person to see for further information was Edward Camp-
bell. Seaton secured an authorization card and signed it on
October 8. On September 30, 1975, Seaton had a conversa-
tion with employees Trombetta and Osekowski and
CRUCIBLE, INC. 727
Supervisor Subsaro. In the conversation, Osekowski point-
ed to Seaton and said to Trombetta that Seaton was for the
Union, that he would sign a card, would join, and do
everything for the Union.
On October 15, Kasak informed Seaton, in his office,
that he was being terminated. Kasak stated that it was not
his decision and that he did not want it to happen. Kasak
stated that he had fought for Seaton and had tried to get
him transferred without success. Seaton asked why he had
been chosen. Kasak replied that he was neither a
technician nor an engineer but he was somewhere in
between. Kasak replied that he would try to help Seaton
get another job, but Seaton asked to talk to Dulis. Kasak
replied that Dulis would not talk to him. Seaton stated that
employees had been called back in the past and Kasak
replied that Seaton did not have a chance of getting called
back and for him not to waste his time but to get another
job.
In his exit interview with Personnel Director Ray, Seaton
stated that he believed he was being selected for termina-
tion because he had been accused of union activity. Ray
replied that as far as she was concerned it was economic.
Seaton was crying in the interview and asked Ray if he
could talk to Dulis. She replied that she did not think that
Dulis would see him. When Seaton was preparing to leave
the plant, Kasak came over to him at his desk and Seaton
stated that his discharge was going to make it a lot easier
for the Union to come in. Kasak replied that it was
impossible for a union to get in, to which Seaton stated that
he had been accused of union activity and he thought this
was the reason for his selection. Kasak made no reply.
Kasak then stated that he would give Seaton every help he
could to get another job. In late October or early
November, Kasak prepared a letter of recommendation for
Seaton which stated, in part, that Seaton performed his
duties conscientiously and competently and that he would
be pleased to be contacted by potential employers for
details if desired.
On October 21 Seaton talked with Kasak about picking
up his belongings and was told that he was not permitted in
the building and would have to make other arrangements
to pick up his belongings.
On April 12, 1976, Seaton visited the Pennsylvania
Employment Security Office and applied, through that
office, for an engineer's position at Respondent's CMRC
•s In making the findings herein , I have considered the demeanor and the
testimony of all the witnesses . To the extent that there are conflicts with the
findings I have made, that testimony is not credited . In making findings
concerning the circumstances surrounding the discharges , I have credited
the testimony of the discharged employees They impressed me as reliable
witnesses and their testimony was not contradicted on essential matters. As
to other issues I have credited the testimony of employee witnesses over that
of Supervisor Subsaro concerning his interrogation of employees and over
that of Bressanelli concerning his statements about closing the lab
Bressanelli's testimony was not as clear and precise on this issue as that of
employees Joll, Rossome, and Berg. On other issues , for example the
statements of Supervisors Eckenrod and Holt, I note that their testimony
and that of employee witnesses is substantially the same . Finally, for reasons
I state hereafter , I am unable to credit the testimony of President Dulls on
the crucial issues in this case, particularly those surrounding the wage freeze
and the discharges
a General Dynamics Corp., 213 NLRB 851, 857 (1974)
'' B F Goodrich Co, 115 NLRB 722 (1956).
6 He found that the technicians involved herein generally assist engineers
facility. Seaton received a reply through the security office
that he was thought not to be qualified for the position.
The evidence indicates that the only position which
became vacant at CMRC between October 15, 1975, and
June 15, 1976, was that of a metallurgist and it was filled by
a new hire on May 5, 1976.3
III. DISCUSSION
A. The Status of the Technicians
Respondent alleges that the technicians involved herein
are not employees within the meaning of the Act but rather
are managerial or confidential employees who, under
applicable law, are excluded from the protection of the Act.
The Board has defined managerial employees as those who
"formulate and effectuate management policies by express-
ing and making operative the decisions of their employer,
and those who have discretion in the performance of their
jobs independent of their employer's established policy."4
Confidential employees are those who "assist and act in a
confidential capacity to persons who formulate, determine,
and effectuate management policies in the field of labor
relations." 5
In the earlier representation case, the Regional Director
found Respondent's technicians to be statutory employees
and not managerial or confidential employees within the
meaning of the applicable case law. The Regional Director
set forth in detail the facts upon which he relied.6 The
Board declined to review the Regional Director's decision
on the ground that no substantial issues of law or fact were
presented.
I nevertheless permitted the parties full opportunity in
this case to relitigate the issue of whether the technicians
involved herein were managerial or confidential employ-
ees.7 Respondent did not specifically adduce additional
evidence on the issue and relies essentially on evidence
submitted in the representation case which was introduced
into evidence in the instant case as Respondent's Exhibit 1.
In its brief to me, Respondent relies on evidence contained
in its Exhibit 1 and makes no additional argument not
made in the representation case.8 The General Counsel
elicited additional evidence in support of his position that
the technicians were employees. Thus, the evidence in the
instant case shows that technicians Campbell, Hurley, Joll,
Seaton, and Trombetta did not negotiate contracts with
by conducting and writing up experiments and tests on products and
manufacturing processes. While their experiments may improve production
efficiency and result in loss of Jobs elsewhere in Respondent's operation, the
technicians themselves have no part and certainly no discretion in
implementing any decisions of Respondent in this respect They do not
work in a confidential capacity for persons who make labor relations
decisions for Respondent.
7 See Suburban Homes Corp., 173 NLRB 497, In. 1 (1968)
8 Respondent does refer to testimony in the proceeding before me
concerning the job of employee Seaton which was that of a technical
specialist. The evidence indicates that he was given that title after obtaining
a degree and was in training for possible promotion to engineer status. The
evidence does not indicate , however, that the substance of his job was any
more managerial or confidential than that of the other technicians. He did
not have the discretion to implement any managerial policies as a result of
his experiments or tests and was not involved directly or indirectly in labor
relations matters. He had no authority to assign work to others Indeed,
Respondent's position was that he was selected for layoff because he did not
show potential for advancement
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions or process grievances on behalf of management.
They did not assist supervisors or management officials in
employee relations matters or have access to such employ-
ee relations matters.
I have considered the entire record, including Respon-
dent's Exhibit I and the Regional Director 's decision in
Case 6-RC-7313, of which I take official notice and which
I find to have "persuasive relevance ,"e as well as the briefs
of Respondent herein . I find no evidence or arguments
which would persuade me to make a determination
contrary to that of the Regional Director. Accordingly, I
find, upon the entire record , that the technicians against
whom Respondent is alleged to have committed unfair
labor practices are employees within the meaning of the
Act and not managerial or confidential employees who are
excluded from the protection of the Act.
B. Threats and Interrogations
As indicated, the credited testimony establishes that
employees Hurley, Connors, and Marchionna were talking
about the Union organizing campaign in their work area.
Admitted Supervisor Subsaro came in and asked each of
them what they knew about the Union and whether they
had seen union authorization cards. No purpose was given
for the questioning and the employees replied they did not
know anything about the Union. In the context of
Respondent's other unfair labor practices, the fact that no
lawful purpose was stated or shown for the questioning,
that no assurances were given against reprisals for the
answers sought and the evasive response of the employees
who had been talking about the Union before Subsaro
came in, I find that the interrogations were coercive and
violative of Section 8(a)(1) of the Act.10
The evidence also shows that Technical Director Bressa-
nelli, Laboratory Services Manager Hoff, and Supervisor
John Eckenrod made statements to employees about plant
closures and reduction of benefits due to unionization.
Bressanelli told employee Joll that if a union came into the
lab it would probably mean closing the lab and "every-
body's jobs would be in jeopardy." That same day he told
assembled employees that he and President Dulis felt that
if a union came in it would be "the end of the lab." He
repeated the substance of these remarks at another
employee meeting several days later. The same statement
in substance-"if we get a union at the lab , they might
close the lab"-was admittedly made by Supervisor
Eckenrod in a discussion with employee Rossome. These
statements were made after several employees were
discharged on October 15 and after the initiation of union
activities . Neither Bressanelli nor Eckenrod gave concrete
factual support for his remarks and Respondent offered no
evidence of factual support at the hearing in this case.
The General Counsel asserts that these statements
threaten economic reprisals for support of the Union and
are thus violative of the Act. Respondent contends that
they are merely predictions of economic consequences. I
find that the statements were violative of Section 8(a)(1) of
the Act.
9 National Freight, Inc, 154 NLRB 621 (1965), cited with approval in
Amalgamated Clothing Workers ofAmerica AFL-CIO ISagamore Shirt Co.].
365 F 2d 898,904 (C A.D.C., 1966); and see Suburban Homes, supra
The guidelines for such statements have been set forth as
follows by the Supreme Court in N.L.RB. v. Gissel Packing
Co., Inc., 395 U.S. 575, 618 (1969):
[An employer ] may even make a prediction as to the
precise effects he believes unionization will have on his
company . In such a case , however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey
a management decision already arrived at to close the
plant in case of unionization.... If there is any
implication that an employer may or may not take
action solely on his own initiative for reasons unrelated
to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the court below that "[c]onveyance of the
employer's belief, even though sincere , that unioniza-
tion will or may result in the closing of the plant is not a
statement of fact unless , which is most improbable, the
eventuality of closing is capable of proof."
Applying the above guidelines , I am convinced that
Respondent's suggestions of plant closure and loss of jobs
were conscious overstatements, incapable of proof, which
had the tendency to create in the minds of the employees
the impression that Respondent would use its economic
power to see that its predictions came true. There was no
statement of why unionization would necessarily cause the
lab to be closed or jobs to be lost. Indeed, the statements
were made in the context of other unfair labor practices-
discharges of union adherents and wage increases after the
announcement of a wage freeze -which dramatized Re-
spondent's intention to utilize its economic power to halt
unionization . In these circumstances the statements were
coercive. See N.LRB. v. Dowell Division of the Dow
Chemical Company, 420 F2d 480 (C.A. 5, 1969); Compo-
nents, Inc., 197 NLRB 163, 164 (1972); American Manufac-
turing Company, Inc., 196 NLRB 248, 257 (1972).
There is also testimony concerning the remarks of
Supervisor Hoff to the effect that the last place where he
worked had closed because of unionization. The first time
this remark was made no factual support for the assertion
was given. The statement carries more credence because it
purports to have been based on personal experience.
However, nothing was said by Hoff as to why or how the
unionization of the plant caused its closure. In a subse-
quent conversation, Hoff admitted that the plant closure
might have been due to bad management. This simply
highlights the imprecision of Hoff's assertions and the
danger in even suggesting that plant closures were the
result of union activity when such cannot be proved. Hoff
also stated that, if a union came into the lab, the benefits
"would go to zero" thus tying loss of benefits clearly to the
CMRC lab and a union coming on the scene . Employees
are inhibited by such remarks. Absent some proof of causal
10 I find no persuasive ipliable evidence that Subsaro also interrogated
employees on November 15, 1975, as alleged in the complaint . I therefore
dismiss this allegation of the complaint.
CRUCIBLE, INC. 729
connection between the loss of benefits and unionization,
the implication is that the employer, who has the means at
his disposal, will make such predictions come true at his
plant just as the employer did at another plant because a
union entered the picture. Thus, I find that Hoff's
statements of a plant closure where he previously worked
and a loss of benefits at the lab had no factual basis and
implied that CMRC might close or trim benefits because of
union activity. Accordingly, these statements were also
violative of Section 8(a)(1) of the Act.
C. The Discharges
The General Counsel contends that employees Seaton,
Joll, Trombetta, Hurley, and Campbell were discharged on
October 15 because of their real, or, in the case of Hurley,
suspected union activities. Respondent contends that they
were laid off as part of an economy move due to severe
budgetary restrictions and that they were selected for layoff
because they were the least competent and most expenda-
ble employees. I reject Respondent's contention and find
that the employees were discriminatorily discharged in
violation of Section 8(a)(3) and (1) of the Act.
The timing of the discharges supports the finding that the
five employees named above were discriminatorily dis-
charged. Four of the selected employees were leading
union activists. By October 15, early in the campaign,
Seaton, Joll, Trombetta, and Campbell were the only union
authorization card signers. Campbell had contacted the
Union at the request of the other three in late September.
On October 15, these four employees, as well as Hurley,
were peremptorily discharged.
The circumstances under which the discharges were
implemented were also unusual and thus confirm their
discriminatory character. Most of the employees were
escorted to the office of their technical director, then to the
office of Personnel Director Ray. There was some discus-
sion in some of the exit interviews about unions and the
Union never coming into the lab. Trombetta was asked to
remove his belongings from his locker and escorted out of
the building. Seaton was not permitted back in the building
to get his belongings a week after the discharge.
Seaton , Joll, Trombetta, and Campbell had openly
engaged in union discussions in the lab. Campbell's desk
was the source of union cards and literature. Supervisors
normally sat at his desk; they engaged in discussions where
these employees were identified as union adherents. Joll
and Seaton were identified as union adherents in conversa-
tions with Supervisor Subsaro. Trombetta was present
during one of these conversations and had other conversa-
tions about the Union with fellow employees. President
Dulis himself knew that there was some talk of a union in
mid or late September after some economy measures were
instituted.
Respondent's hostility toward the Union is ' clearly
established. On numerous occasions Respondent's repre-
sentatives threatened closure of the lab and loss of jobs-
conduct which I have found to be unlawful. Moreover,
Respondent rescinded a wage freeze and implemented
raises after the union campaign commenced-further
unlawful conduct. One of the was threats was made to Joll
at the time of his discharge and another to assembled
employees after the discharges were announced.
I also find that Hurley was selected along with the other
four employees because he was suspected of being a union
supporter and thus that his discharge was also unlawful. He
had been unlawfully questioned by Supervisor Subsaro
about his knowledge of union activities and also about his
conversations with Campbell, the leading union activist. It
is clear that Respondent chose to terminate all five
employees for the same reason and Hurley was discharged
under the same circumstances as the four union adherents.
It is settled that if an employer's action is based on a fear or
belief of an employee's union activity it is prohibited."
And the discharge of an employee-even one known not to
have engaged in union activity-simply to lend the
appearance of regularity to discriminatory discharges is
unlawful. N.L.RB. v. Dorn's Transportation Company, Inc.,
405 F.2d 706, 713 (C.A. 2, 1969).
Respondent's contention that the five employees were
laid off due to economic reasons is unconvincing. Respon-
dent lifted a wage freeze shortly after their terminations
and thereafter unlawfully implemented wage increases for
most of its employees. The raises over the next 8 or 9
months amounted to about $100,000. According to
President Dulis' testimony, the financial difficulties of
CMRC were alleviated by January 1976. Nevertheless,
none of the five employees was recalled. Indeed, a new
employee was hired in the spring of 1976 and Seaton was
apparently rejected for a metallurgist's job at this time.
Most unpersuasive is Respondent's explanation for the
selection of the five employees for layoff and its attempt in
litigation to question their competence. Dulis testified that
Personnel Manager Ray, who did not testify and who had
no technical expertise, made the selections as early as
September 15. Respondent has not persuaded me that the
1-month hiatus between the decision and the announce-
ment of the terminations was reasonably based. Dulls also
testified that this was necessary in order to process the
paperwork and to allow for a period after October 15 to the
end of the year to budget accrued vacation time and other
benefits of the employees. Yet Dulis also testified that there
was a pressing financial reason for the layoffs. It is
incongruous to me that there would be such a delay if
Respondent's asserted economic reasons were as pressing
as Dulis suggested in his testimony. Furthermore, it is
incongruous to me that selections for layoffs of technicians
would be made without checking with the technical
directors who evaluate the employees and supervise them
in their day-to-day operations. Indeed, Bressanelli testified
that he argued with Dulis against the layoff of two people
chosen from his group and Kasak told Seaton that he tried
to get him transferred rather than fired.
Finally, Dulis' testimony that the five selected employees
had weak employment records was effectively and persua-
sively refuted. First of all, Dulis admitted he did not check
the last yearly appraisals of the employees before approv-
ing the final selections. More importantly, Dulis ' reasons
1' N L.R B v. Link Belt Co., 311 U.S. 584,589,590(1941); N.L R.B. v
Fredrica Clausen, d/b/a Luzerne Hide & Tallow, 188 F.2d 439, 443 (C.A 3,
1951), cert denied 342 US. 868.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not borne out when he was referred, in cross-
examination, to the appraisals themselves. For example,
Dulis testified that Trombetta was selected because he was
"not working out" and had an absentee problem. However,
Trombetta's last evaluation in June 1974 indicates that
after an initial period of adjustment he was thought to be
doing generally a "fine" job and "should develop into an
excellent employee." The only reason given for Campbell's
forced retirement was his alleged absentee problem which,
on cross-examination, Dulis admitted had been tolerated
for years and as his last evaluation showed was much
improved. Dulis' characterization of Joll as a "goof off"
was likewise not reflected in a generally favorable evalu-
ation.
Thus, Respondent's reliance on Dulis' testimony in
support of its position is not well taken. Dulis did not
impress me as a candid witness and, as I have indicated, his
testimony on crucial matters does not withstand analysis.
His reasons for the selection of the employees for layoff
was refuted by reference to their favorable evaluations and
I find it difficult to accept testimony that Dulis permitted
Personnel Director Ray to make the crucial decision as to
who would be laid off without consulting the technical
directors who knew the employees involved and their work.
I am likewise unconvinced that the peremptory layoffs on
October 15 were decided on 1 month before and held up
for a month for any justifiable business reason . For all
these reasons, including Dulis' demeanor on the witness
stand, I do not credit Dulis' testimony as to the crucial
issues in this case. See Shattuck Denn Mining Corporation.
v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966).
In short, I reject Respondent's reasons for the alleged
layoffs in general and for the particular employees selected.
Indeed, the implausibility of Respondent's reasons for the
layoffs is further evidence which reinforces my finding that
the employees were discriminatorily discharged.
D. The Wage Increases
As shown in the statement, Respondent raised the wages
of unit employees from October 1975 to April 1976-the
period during which the union campaign was in progress.
The General Counsel alleges that the raises from October
15, 1975, through January 28, 1976 , were discriminatorily
motivated and thus unlawful under N. L.R.B. v . Exchange
Parts Co., 375 U.S. 405 ( 1964). That case holds that the
grant of economic benefits to discourage union support
violates Section 8(a)(1) of the Act. As the Supreme Court
stated:
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up
if it is not obliged. (Id. at 409.)
Respondent contends that the increases during the applica-
ble period were simply normal raises, in accordance with
its policy of providing merit raises for employees every 12
or 18 months. I reject Respondent's contention and find
that the raises were motivated by a purpose to discourage
union support and thus violative of Section 8(a)(1) of the
Act.
The most critical evidence on this aspect of the case is
the testimony concerning Respondent 's wage freeze in
September and October 1975. According to Respondent-
through its witness , President Dulis-the economic situa-
tion at CMRC was poor in September 1975 and the
projected budget deficits necessitated cutbacks and belt-
tightening measures . As a result he announced a wage
freeze-tentatively in late September and more firmly on
October 15 , when five employees were discharged for
union activities . However , shortly thereafter , on or about
October 20, according to Dulis' testimony, the freeze was
lifted , and, in the face of asserted economic difficulty,
Respondent thereafter raised the wages of all the employ-
ees in the election unit . This resulted in an additional
deficit, in a projected budget which was already in deficit,
of about $ 100,000 . Certainly, if there was a financial
problem, the wage freeze would have been justified.
However , it was lifted without explanation after the union
activity commenced and wage increases followed. There
was no evidence that the financial situation was any
different on October 20 when the wage freeze was lifted
than it was on October 15 or September 24 when it was
announced . What intervened was the discriminatory
discharges of leading union adherents . Moreover, Techni-
cal Director Bressanelli testified that in November 1975,
after the union campaign had commenced , Personnel
Manager Ray asked , him to make recommendations for
merit increases . This was barely 1 month after the abortive
wage freeze and well before the January 1976 date when
Dulis testified that increased revenues became available to
ease the financial crisis . Ray also told Supervisor Welles
that Respondent was planning an increase for employees
"after the first of 1976" and that he should prepare a list of
employees in his section and the amounts that they were to
be given, according to her guidelines . The raises were
effectuated.
In these circumstances , the timing of the increases
shortly after the unexplained lifting of the salary freeze and
in the context of other serious unfair labor practices,
including the discharge of leading union adherents and
threats to close the lab, strongly supports the inference that
the wage freeze was lifted and the wage increases
implemented because of the commencement of union
activities in order to discourage union support. In view of
all the evidence , it is likely that the granting of the increases
after the onset of the union activities and after a wage
freeze was announced was part of the "same course of
illegal conduct embarked upon earlier to defeat the
Union." N.L.R.B. v. Pyne Moulding Corp., 226 F.2d 818,
821 (C.A. 2, 1955).
In a case such as this , where the objective evidence
establishes at least a prima facie violation, it is incumbent
on Respondent to establish a legitimate reason for its
actions. As shown below , Respondent has not convincingly
overcome the evidence which shows a violation.
Respondent argues that it had a policy of granting merit
raises every 12 or 18 months and that it continued this
policy during the preelection period . The evidence does not
establish a clear policy on wage increases . Most of the
CRUCIBLE, INC.
employees listed on Respondent's Exhibit 9 and General
Counsel's Exhibit 7 who received increases during the
applicable period last received increases some 12 months
before. Some, however, had received increases 6 or 7
months before. Moreover, the testimony of Bressanelli and
Welles convinces me that they, as technical directors, were
told by Personnel Manager Ray to recommend increases at
intervals which were not predictable. Although Dulis and
the present personnel manager, Brandenberg, testified that
the policy was to have increases at 12- to 18-month
intervals, I am unable to accept that testimony as reflecting
a policy that was firmly established. There is no evidence
that this policy was announced or well known. Considering
the evidence in the light most favorable to Respondent,
however, it appears that it had an informal policy of
granting wage increases about every year or year and a
half.
Despite the above, however, I am not persuaded that
Respondent has overcome the prima facie case of discrimi-
nation . While evidence of an informal policy of giving
wage increases at somewhat regular intervals might be
convincing in other circumstances, I do not find it so in the
circumstances of this case. First of all, Respondent had
made it clear that it was having financial problems and
planned a wage freeze in September and October 1975.
Respondent has not shown any evidence to support a
change in financial circumstances to justify a reversal of
that position. The only evidence is Dulis' testimony that an
order from March, his superior, caused the wage freeze to
be lifted and that financial relief came in January 1976.
However, I find Dulis' testimony on this issue as implausi-
ble as it was on the discharge issue and I do not credit his
testimony. No corroborative evidence was submitted to
support Dulis' contentions. March did not testify and
Respondent did not offer any reason for March's reversal
of Dulis. There is no evidence that Dulis told his technical
directors the reason for lifting the wage freeze. Nor was
there corroboration of Dulis' testimony that the financial
picture for CMRC brightened in January 1976 due to
increased revenues from Government contracts. Indeed,
some of the raises were implemented in late 1975 even
before the financial picture assertedly brightened and
contrary to Dulis' statement, according to Supervisor
Welles' testimony, that there would be very few raises in
late 1975. Respondent asked its supervisors to recommend
raises in late 1975 and some raises were implemented in
October, November, and December 1975. For example, in
its brief, Respondent lists a table obtained from Respon-
dent's Exhibit 7 of wage increases ranging from 8.3 to 12.7
percent for seven technicians and two machinists imple-
mented from November 1, 1975, to January 1, 1976. In
these circumstances, I am convinced that Respondent's
wage increases were implemented-at a time when Re-
spondent purportedly was in financial difficulty-in order
to discourage union support. See Texas Transport &
Terminal Co., 187 NLRB 466,468 (1970).
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
CONCLUSIONS OF LAW
731
1. By discharging and refusing to recall Edward
Campbell Bernard Hurley, Barney Seaton, Lou Trombetta,
and Robert Joll, in order to discourage union membership,
Respondent has violated Section 8(a)(3) and (1) of the Act.
2. By coercively interrogating employees concerning
their union activities, by threatening that Respondent
would close the lab resulting in the loss of jobs and
benefits, and by increasing wages of employees to discour-
age union activity, Respondent has interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. The Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged and refused to recall Edward Campbell, Barney
Seaton, Lou Trombetta, Bernard Hurley, and Robert Joll,
in violation of Section 8(a)(3) and (1) of the Act, I shall
recommend that Respondent be ordered to offer them
reinstatement and make them whole for any loss of
earnings resulting from their termination by payment to
them of a sum of money equal to the amount they would
normally have earned as wages from the date of their
termination to the date of a bona fide offer of reinstate-
ment . Backpay shall be computed on a quarterly basis in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and shall include interest at 6 percent as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 12
The Respondent, Crucible, Inc., Division of Colt Indus-
tries, Inc., Robinson Township, Allegheny County, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to recall, or otherwise discrimi-
nating against employees because they have joined or
supported a labor organization or because they are
suspected of engaging in such activity.
(b) Interrogating employees concerning their union
activities.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening employees with closure of the lab and
loss of jobs and benefits if the Union were selected as
bargaining representative.
(d) Raising the salaries or wages of employees to
discourage support for a union.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Edward Campbell, Barney Seaton, Lou
Trombetta, Bernard Hurley, and Robert Joll immediate
and full reinstatement to their former jobs, or, if those
positions no longer exist , to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their loss of
earnings in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(c) Post at its CMRC facility copies of the attached
notice marked "Appendix." 13 Copies of the notice on
forms provided by the Regional Director for Region 6,
after being duly signed by Respondent's authorized
respresentative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notice is not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
13 In the event the Board's Order is enforced by a Judgment of the to a Judgment of the United States Court of Appeals Enforcing an order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant