Connection Foundry Co.

National Labor Relations Board - Board Decisions

Feb 29, 1980

247 N.L.R.B. 1514 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Connecticut Foundry Company and International
Ladies' Garment Workers' Union, AFL-CIO.
Cases -CA-14654 and -RC-15464
February 29, 1980
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On October 19, 1979, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the Union filed an
answering brief, and the General Counsel filed a brief
in support of the Administrative Law Judge's Deci-
sion.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Con-
necticut Foundry Company, Rock Hill, Connecticut,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order, as
so modified:
Delete the final paragraph of the recommended
Order.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for International Ladies' Gar-
ment Workers' Union, AFL-CIO, and that, pursuant
to Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the following
appropriate unit for the purpose of collective bargain-
ing with respect to rates of pay, wages, hours of
employment, or other conditions of employment:
Included: All production and maintenance em-
ployees.
Excluded: Office clerical employees, guards, and
supervisors as defined in the Act.
In his Decision, the Administrative Law Judge incorrectly stated that the
most recent tally of ballots with respect to the June 16. 1978, election showed
200 votes for, and 195 against, the Union, with 8 challenged ballots The
record shows, however, that the tally was 100 for, and 95 against. the Union.
with 8 challenged ballots. The Administrative Law Judge also incorrectly
stated at p. 18 of his Decision that certain conduct was not shown to have
occurred before Board approval of a settlement agreement. The conduct in
question was not, however, shown to have occurred after Board approval.
These inadvertent errors do not affect the findings and conclusions of the
Administrative Law Judge.
The Administrative Law Judge ordered that Case I-RC-15464 he severed
from Case I-CA-14654 and remanded to the Regional Director for the
purpose of issuing a certification of representation. However, the Regional
Director, in consolidating the representation case with the unfair labor
practice case for hearing, made no provision for the return of the former to
him upon completion of the hearing and issuance of the Administrative Law
Judge's Decision on. inter alia. the representation issues. Also. the parties, in
their exceptions and briefs, have treated the representation issues as if they
were before the Board on review and have presented fully their positions on
those issues. Accordingly, we do not adopt the Administrative Law Judge's
recommended Order that the representation matter be remanded to the
Regional Director. Rather, we have fully considered the representation issues
and adopt his findings and recommendations with respect thereto. except that
we find it unnecessary to rule on the challenges to the ballots of Thomas
Padilla and Geronimo Padilla, as their ballots. even if counted along with the
two overruled challenged ballots, could not affect the election results.
Accordingly, since the revised tally of ballots shows that a majority of the
votes were cast for the Union. we shall issue a certification of representation
' Respondent has requested oral argument. This request is hereby denied as
the record, the exceptions, and the briefs adequately present the issues and the
positions of the parties.
DECISION
STATEMENT OF THE CASE
WAI.TER H. MAL.ONEY, JR., Administrative Law Judge:
This case was heard before me at Weathersfield, Connecti-
cut, upon an unfair labor practice complaint,' issued by the
Regional for Director Region I and consolidated for hearing
' The principal docket entries in the complaint case are as follows:
Charge filed by International Ladies' Garment Workers Union. AFL-CIO.
(herein called Union) against Respondent Connecticut Foundry Company on
June 23, 1978, and amended charge filed on July 28, 1978; complaint issued
against Respondent by Director, Region I, on July 31, 1978; Respondent's
answer filed on August 3. 1978; Order consolidating cases and amended
complaint issued on May 3. 1979; Respondent's answer filed on May 14, 1979;
briefs filed by the General Cousel. Charging Party. and Respondent on or
before August 17. 1979.
The principal docket entries in Representation Case -RC-15464. are as
247 NLRB No. 145
1514
CONNECTICUT FOUNDRY COMPANY
with a companion representation case, which alleges that the
Respondent, Connecticut Foundry Company, (herein some-
times called the Foundry), violated Section 8(a)(1) of the
Act. The representation case consolidated for hearing calls
upon the undersigned to resolve challenges to the votes of
eight persons who voted in a representation election con-
ducted on June 16, 1978. Six challenges were made by
Respondent and two were made by the Union. The represen-
tation case also includes objections to the election. The
Union claims that a general wage increase, which is the
subject of one of the 8(a)(1) allegations in the consolidated
complaint, constitutes grounds for setting aside the election
should the Union be counted the loser after challenges are
resolved and all valid votes are tallied. Respondent claims
that a number of incidents, including the misrepresentation
of the Board's proceedings contained in a newspaper article
and a display by a union observer at the election of an
intimidating picture or drawing, should be a basis for setting
aside the election in the event that the resolution of the
remaining challenges results in a union victory.' Both sides
withdraw their objections in the event they should prevail in
the final tally. Upon these matters the issues herein were
drawn.'
FINDINGS o0 FACT
I. ACKGROUNI)
A. The Events in Question
Since 1919., the Respondent has operated a factory in
Rocky Hill, a suburb of Hartford, Connecticut, where it
manufactures gray iron castings. The Company is owned
entirely by two brothers, Arthur and Franklin Enquist.
However, they take little part in its day-to-day operations
and leave the running of the plant to Foundry Manager
Perry Cornwall. Late in 1977, the Company employed about
150-155 production and maintenance employees, most of
whom were either unskilled or semiskilled workers.
In the fall of 1977, the Union conducted an organizing
campaign among Respondent's production and maintenance
employees. Coincidentally, Respondent lost a major account
from which it derived about 20 percent of its income. On
November 8, 1977, it laid off 18 employees, leaving a total of
137 on the payroll as of November 10. On November 1 1, the
Union called a strike which was admittedly economic in
character, and on November 15, it filed the representation
petition which is the subject of this proceeding.
The initial part of the strike was attended by a great deal
of picket line misconduct, including threats of violence to
nonstriking employees and acts of violence directed at their
follows: Petition filed by Union on November 15. 1977, seeking an election in
a production and maintenance unit at Employer's Rocky Hill. Connecticut.
plant: Decision and Direction of Election issued by the Regional Director for
Region I on May 19, 1979: election held on June 16, 1979; objections to
election filed by Employer ad Union, respectively, on June 23, 1979;
Supplemental Decision and revised tally of ballots issued by Regional
Director for Region I on September 26. 1978: Board Order upon Employer's
request fr review issued on February 16, 1979; amended revised tally of
ballots issued on March 26. 1979.
Respondent admits, and I find, that it is a Connecticut corporation which
maintains its place of business in Rocky Hill. Connecticutit. where it is engaged
in the manufacture and sale of gray iron castings. In the course and conduct of
persons and property. Cornwall estimated that, at one time.
about 70-80 of the Company's employees could be found on
the picket line. After the third or fourth day, round-the-
clock police protection was afforded to the Company by the
Rocky Hill Police Department and this degree of police
activity continued for a period of 2 or 3 weeks. A temporary
illjunction was obtained from the state superior court
limiting the number, location, and activity of the pickets.
Thereafter, the police normally were present in the area of
the plant during working hours and continued this surveil-
lance until late March or April 1979, after which they
patrolled the area only sporadically. Respondent filed unfair
labor practice charges against the Union in Cases I-CB-
3928 and -CB-3979. in which it alleged a massive amount
of violence and harassment. On January 31, 1978, the
Regional Director issued a consolidated complaint, later
amended, in which he alleged that the Union had committed
about 35 enumerated acts of intimidation and coercion
against employees of Respondent. As discussed more fully
hereinafter, these charges were the subject of a formal
settlement concluded by all of the parties on April 11, 1979.
Because of the strike Respondent was no longer able to
operate its plant, so it closed on November 20. It retained a
skelton crew of about 25 maintenance employees who
continued to work during the next 2 months. In mid-
January, Respondent decided to reopen and sent letters to
most laid off employees, including those laid off on Novem-
ber 8 and those who were laid off when the plant closed on
November 20. It excluded from the recall notice a few
employees who it deemed were guilty of picket line violence.
Respondent also placed ads in the newspapers seeking
replacements for strikers. The response to the recall effort
was not overwhelming, but the Company was able to resume
operations on a modified basis.
On April 3, Respondent granted a 20-cent across-the-
board wage increase to all production and maintenance
employees. Record testimony varies as to the date the
increase first showed up in paychecks. It occurred either on
April 13 or 23. but there is some testimony that a few
employees did not receive increases until a few weeks
thereafter. Respondent made no general announcement
concerning the increase to its employees in the hope that, by
downplaying the pay raise, it could somehow mitigate or
avoid the charge that it was engaging in an unfair labor
practice.
On April I , all parties concluded a formal settlement in
Cases -CB-3928 and -CB-3979. The settlement provided
for a Board Order and court decree and disposed of the
charges in the complaint cases which were outstanding
against the Union. The Board approved the settlement on
May 16, 1979. At some point in time not clear from the
this business. Respondent sells and ships directly to xpoit,, and places located
outside the State f Connecticut gxds and materials valued in excess of
$50.00X). Accordingly. it is an employer engaged in commerce within the
meaning of Sec. 2(2). (6). and (7)of the Act. The nion is a labor organization
within the meaning of Sec. 25) of the Act.
One of the three objections o) the coliduct f the cleclion filed hb the
Employer and refrred to the udersigned is ()bjeclil 9, which allegcs that
the Board improperly permitted ineligible otrs. including those who had
engaged in threatl and acts of violence. Io act a election obserser- No
evidence was presented to substantiate this objectlion so i is oerruled
'The errors in the Itrnscript are herein hereby corrected.
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, Respondent filed a third CB charge against the
Union. This charge was dismissed by the Regional Director
on May 18, 1979 (Case -CB-4099), because the conduct
alleged was covered by the order in the cases which had been
settled.
The agreement which the Board approved on May 16
called for a conventional notice posting period of 60 days.
On May 30, 1978, the Respondent's attorney signed and
submitted to the Regional Office a document which read as
follows:
The Connecticut Foundry Company hereby agrees as
follows:
(1) The compliance period in Case Nos. 1-CB-3928
and 3979 has commenced and the Charged Party has
taken all action required by the formal settlement
agreement except that the full period for posting the
required notices has not yet passed.
(2) The unremedied unfair labor practices referred to in
the posted notice may not constitute grounds upon
which the Board may set aside the election in Case No.
I-RC- 15,464.
With this document in hand, the Regional Office arranged
for the holding of an election called for by the petition in
Case -RC-15464 on June 16. This date was well within the
posting period. The election took place in three sessions,
running from 6-9 a.m., 10 a.m.-I p.m., and 3-6 p.m. on
June 16. The first and last sessions were held at a school
located about two blocks from company premises. The
second session took place in the annealing room at the
Foundry. A number of voters far in excess of Respondent's
normal complement of employees presented themselves to
vote. As might be expected, Respondent challenged the vote
of many strikers and the Union challenged the votes of a
number of replacements and others. Most of the challenges
were resolved by the Regional Director in post-election
proceedings. At present, eight challenges remain unresolved
and are determinative of the result. The most recent tally of
ballots shows 200 votes for the Union and 195 against the
Union out of a total of 203 valid votes cast.
B. The Challenged Votes
Elizabeth Cornwall. Elizabeth Cornwall is presently a
student at Green Mountain College in Vermont. She is
entering her sophmore year in the fall of 1979. On election
day, June 16, 1979, she was a senior at Weatherfield High
School, located in Weatherfield, Connecticut, and graduated
from that institution on June 29, 1978.
She is the daughter of Perry Cornwall, the Foundry
manager. She has always resided in the Cornwall home with
her parents, except during those periods when she was away
at college. As she is still a student, she is and has been
financially dependent upon her family for her livelihood.
Contrary to the information found in the Regional Direc-
tor's Supplemental Decision, Elizabeth Cornwall testified,
and I find, that she began working for Connecticut Foundry
as a part-time inspector in February 1978, shortly after the
Foundry reopened. She first found out about the availability
of the job from her father, who, since January 20, had been
attempting to bring about a resumption of Foundry opera-
tions in the face of an on-going strike. Miss Cornwall
contacted Marsh Enquist, a supervisor in the Foundry, and
arranged to go to work. She testified that when she went to
work in February 1978, she fully intended to leave in the fall
to go to college, but she made no specific mention of her
plans to Enquist during the hiring interview. She did agree
with Enquist that her hours of work would be adjusted to
conform to her school schedule and that, in the event of any
conflict, the demands of her school schedule would take
priority. During the spring of 1978 and until her graduation,
some 2 weeks after the election, she reported for work at I
p.m. on Monday, Wednesday, and Friday and at 1:30 or 2
p.m. on other days. She was assigned to inspect castings and
was told by Enquist that she could work each afternoon as
long as there was someone around to supervise her. She
testified that only she and one other employee, Jeffrey Cox,
whose eligibility is also in question, worked hours similar to
hers. After her graduation, she worked a short while on a
part-time basis from 7 a.m. until noon.
After working as an inspector for about 2 months, she
transferred to a job as a grinder. Before making the transfer,
she spoke with her father about the desirability and
availability of the transfer. She did not work alone as a
grinder for safety reasons. Whenever another grinder was
not present, she would revert to inspecting castings. During
her employment, she punched a timeclock and was paid the
minimum wage. It is unclear whether she received any fringe
benefits.
In the summer of 1978, as well as in all other summers,
the Foundry closed in late July for a vacation period of 2
weeks. Elizabeth Cornwall arranged with Enquist to be
absent for two additional weeks following the regular plant
closing so she could attend a 4-H Camp and act as a
volunteer swimming instructor. After coming back from
summer camp, she returned to the Foundry and resumed her
former employment until it was time to leave for college in
September.
In the early summer of 1979, Elizabeth Cornwall again
worked for the Foundry, but this time she was employed at a
clerical job in the office. She worked in this position until the
end of June, when she left to take a paying position teaching
swimming at the 4-H Camp where she had served as a
volunteer the previous summer.
Cornwall has no financial interest in Respondent corpora-
tion. However, he is its principal executive officer and has
occupied that position for a number of years. This fact does
not automatically preclude his daughter from becoming a
member of the bargaining unit and acquiring the status of an
eligible voter. The determinative question is whether, by
reason of her family ties, Elizabeth Cornwall acquired a
"special status" which warrants her exclusion as a voter.
Novi American, Inc., - Atlanta. 234 NLRB 421 (1978). The
Board has laid down few, if any, guidelines which delineate
with clarity what constitutes "special status" and indeed is
not in complete agreement inter sese as to what they might
be. Tops Club. Inc., 238 NLRB 928 (1978).
Respondent claims that the fact that Elizabeth Cornwall
could adjust her work schedule to fit her high school
schedule does not warrant a finding that she occupied a
special status since certain unnamed vocational technical
high school students have been hired from time to time with
1516
CONNECTICUT FOUNDRY COMPANY
the same understanding. However, as the Regional Director
pointed out in his Supplemental Decision, it does not appear
that these students would be included in the unit, citing
Highview, Incorporated. 223 NLRB 646 (1976). Elizabeth
Cornwall testified that only Jeffrey Cox, the son of another
management official, kept the same working hours as she did
during the high school year. In addition to the flexibility of
her working hours, Elizabeth Cornwall enjoyed considerable
flexibility in leaving and returning, which accommodated
both her interest in 4-H work and her college education.
Elizabeth Cornwall testified further that, at the time she
was hired, she had every intention of leaving the Foundry in
the fall to go to school, a fact which undermines conclusively
any claim that she intended to be a permanent employee at
the time she hired on. When she did return to the Foundry
after her freshman year in college. it was in the office rather
than the plant that she found sufficient short-term employ-
ment to supply her need for summer earnings. These facts,
taken together with her continued financial dependency on
her parents, fill out a fact pattern of an employee who was
first and foremost the boss' daughter rather than one whose
interests were primarily aligned with production and mainte-
nance employees who work regularly in the bargaining unit.
Moreover, the Board has repeatedly excluded from voter
eligibility students who were hired during summer vacation
and who intend to return to school in the fall.' The fact that
Elizabeth Cornwall responded to her father's need for
employees in a strike-bound plant sometime in advance of
the normal summer vacation period does not warrant a
different result. Accordingly, I conclude that she occupied a
"special status" at the plant which was derived from a
family relationship and hence was not an eligible voter. I
would sustain the challenge to her ballot.
Jeffrey Cox. The position of Jeffrey Cox differs slightly in
degree, but not in kind from that of Elizabeth Cornwall. At
present writing, Cox is entering his sophmore year at
Monmouth State College in New Jersey. In the summer of
1979, he worked as a security guard for the Sanitas Security
Company. Like Elizabeth Cornwall, he was a part-time
employee of Respondent and a senior at Weathersfield High
School on the date the election herein took place.
Cox is the son of Neal Cox, formerly the plant superinten-
dent and now the plant engineer. Like Cornwall, the elder
Cox is not a shareholder but is a high-ranking official at the
Foundry. In February 1978, Jeffrey Cox discussed with his
father the possibility of part-time employment at the plant.
He decided to take a job, applied for one, and was hired
under the same arrangements which governed Cornwall's
employment, namely that he would work in the afternoon
and at the hours his school curriculum would permit. He
worked part-time until graduation and thereafter worked
full-time until he entered college in the fall of 1978. At the
time he was hired, Cox firmly intended to go to college in
the fall. However, unlike Cornwall, he had not yet been
accepted and was then unsure which college he would be
attending.
Cox began his tour of employment as an inspector and
then progressed to wheelabrator operator. He was compen-
luachurucr Ilstiute of lh'chnolog' Lincoln LahoratorW. 110 NLRB
1611 (1955) gar Packing and Provision Company. 62 NIRH 358 (1945);
Johnson- lalndlev-John iol (ompaoy. 51 N LRB 1282 (1943); Slop 1'27. Inc..
sated on the same basis as Elizabeth Cornwall. After leaving
the Foundry in the fall of 1978 to enter college, he did not
return. As a student, he continues to be financially depen-
dent upon his family who contribute substantially to his
college education expenses and his living expenses.
From those facts, it is clear that Cox did not intend from
the outset of his employment to be a permanent employee.
His coming and going at the plant was subject to less
interruption than Elizabeth Cornwall's. However, his initial
employment was subject to the same overriding consider-
ations, namely that his education came first, his working
relationship at the plant was subordinate to it, and that he
was working at a strike-bound plant in order to help his
father in a difficult situation. These facts, taken together
with his continued financial dependency on his family,
indicate clearly that his short-term employment at the time
of the election was attended by a "special status" derived
from his relationship with a high management employee and
that he was not an eligible voter at the June 16 election. I
would sustain the challenge to his ballot.
Dennis Chipman. Dennis Chipman worked for 5 days in
the inspection department. He was hired on April 12, 1978,
and left on April 17, 1978. He did not testify at the hearing
in this matter and efforts to locate him have been unavailing.
On the last day of his employment, he went into the
personnel office and demanded his pay in full from the
personnel director, Joseph Geovenucchi. Plant Superinten-
dent Neal Cox overheard the discussion, which was loud and
somewhat angry and entered the office. Cox explained to
Chipman that the mechanics of processing the payroll
through the computer system made it impossible to write out
a check at a moment's notice. Chipman refused to accept the
explanation and became, in Cox's words, loud and abusive.
Cox phoned another office and learned that it was possible
to prepare a check manually rather than by means of the
computer, but there was no one in the office at that time who
was authorized to sign it. When Chipman heard this reply,
he became angrier left the building, and never returned.
Chipman then joined the strike and picketed from time to
time up to the date of the election and possibly thereafter.
For this effort he received strike benefits. As noted above, he
then faded away and has not been heard from since the
summer of 1978.
The record evidence regarding Chipman's status is rather
sketchy. Both from the short tenure of his employment, his
disappearance, and in particular the events recited above
relating to the termination of his employment, I conclude
that Chipman voluntarily quit his job before joining the
strike and, as a voluntary quite before the eligibility date,
was not entitled to vote. Accordingly, I sustain Respondent's
challenge to his ballot.
Thomas Padilla. Thomas Padilla worked for Respondent
before the strike began on November 11, 1977. He had been
employed as a moulder at the Foundry for about 6-7 years.
He testified that he picketed Respondent's premises in
support of the strike until the day of the election and
received strike benefits for his efforts. He began working for
the Plastonics Corporation. another firm located in Hart-
172 NLRIB 289 (198): Wendling Printing C(iopany, 177 NI.RH 544 (19h9);
Ilighvicw. Inc1.. upra.
1517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ford, at the end of February 1978, and was working for them
at the time of the hearing in this case. During the spring of
1978, he apparently confined his picketing of the Foundry to
the early morning hours before reporting to work at
Plastonics.
After the election at the Foundry, the Union in this case
began to organize Plastonics employees. T. Padilla assisted
in that campaign during his evening hours by contacting
employees in the company of a regular union organizer. For
his services he received a small stipend.
An election was held at Plastonics on September 28.
Padilla attempted to vote and was challenged by the
employer involved in that case. The challenge to Padilla's
ballot in the Plastonics election became the subject of a post-
election hearing. The Board ultimately determined that T.
Padilla's ballot in the Plastonics election should be counted
I-RC- 15846.
During this same time, T. Padilla went to the Foundry on
several occasions and asked to have his job back. He was
unsuccessful on each occasion. During the course of the
election campaigns at both companies and in the litigation
which has surrounded these campaigns, T. Padilla made
several conflicting statements concerning his intention to
work. When he presented himself to vote at the Foundry
election, his ballot was challenged, whereupon the Board
agent asked him several questions before permitting him to
cast a challenged ballot. When he asked T. Padilla if he was
willing to work at the Foundry if jobs became available, T.
Padilla said "yes." When the Board Agent asked him if he
was working that day at the Foundry, T. Padilla replied
"no." The Board agent also asked T. Padilla if we would be
willing to come back to work at the Foundry in the event the
Union won the election and labor relations problems were
settled. T. Padilla said "yes." He also testified at the hearing
in this case that, if the Union had won at Plastonics, he
preferred to stay at Plastonics.
His testimony in the Plastonics case was contrary to his
testimony in this case. In Plastonics, Padilla testified that he
had a job at Plastonics and did not intend to return to the
Foundry. It was upon the basis of this and other evidence
that the Regional Director overruled the challenge to his
ballot in that proceeding and permitted it to be counted. His
conflicting testimony concerning his employment intention
in this proceeding and in the Plastonics case in each instance
depended upon the requirement of the case. Thus, it is no
value in assessing his eligibility to vote in the Foundry
election.
Starting with Pacific Tile and Porcelain Company, 137
NLRB 1358 (1962), the Board has fashioned and applied a
series of presumptions to assist it in ascertaining the true
intention of a striker who votes in an election conducted
within I year from the inception of an economic strike. The
Board starts from the premise that a striker who accepts
other permanent employment elsewhere is deemed to have
abandoned his interest in the struck job and hence has
rendered himself ineligible to vote in a representation
election conducted among employees of his former employ-
er. However, the true intention of a striker in accepting other
employment during a strike is a subjective matter and can
often be quite speculative and difficult of determination.
Strikers certainly must support themselves during a strike
and other employment is often the best, if not their only
means of doing so. A striker's intention when accepting
another job may in fact be quite ambivalent, in that he may
seek to keep his options open to accept the best of whatever
modest opportunities might come his way. Hence, the Board
stated that it would presume that a striking employee
continues to be an employee of the struck employer even if
he takes another job and that such employer, when challeng-
ing his right to vote, bears the burden of showing by
objective evidence that the striker has abandoned his interest
in the struck job. The Board presumes that mere acceptance
of other employment is insufficient evidence to meet this
burden of proof, even if the striker fails to tell his new
employer that his application is only for temporary employ-
ment. The Board has also held that such acts as picking up
ones tools from the premises of a struck employer or failing
to picket the premises of a struck employee are insufficient
evidence of an intention to abandon a struck job. Dalton
Sheet Metal Company. Inc., 207 NLRB 188 (1973). More-
over, the eligibility of a voter depends upon his status as of
the eligibility date (or the election date, if he quits during the
interim period), not by what he says or does thereafter.
Harlem River Consumers Cooperative. Inc.. 191 NLRB 314
(1971).
T. Padilla went to work at Plastonics in February 1979,
and at the time of the hearing, had been working there for a
period of 17 months. The record is unclear as to his earnings
at either location. By presenting himself to vote at the
Plastonics election on September 28, T. Padilla gave strong
objective evidence of his intention to remain at Plastonics as
a permanent employee, since only permanent employees are
eligible to vote in a representation election. His efforts as a
paid organizer in the Plastonics campaign is further evidence
of his interest in Plastonics as a permanent employer. The
decision in Plastonics is a final determination by this Agency
that, as of September 28, T. Padilla was a permanent
employee of that employer as of that date. The question
remains as to his status some 3-1/2 months earlier when he
presented himself to vote at the Foundry election. His
eligibility to vote in the Foundry election depends on his
status as of June 16, not as of September 28. Harlem River
Consumers Cooperative, Inc., supra.
The Pacific Tile doctrine requires me to indulge a
presumption that T. Padilla continued to be a bona fide
Foundry employee from the date of the Foundry strike on
November 11 until after the date of the June 16 election
unless there is objective evidence which rebutts that pre-
sumption. The mere fact that T. Padilla took a job at
Plastonics is an insufficient rebuttal. However, T. Padilla did
more than merely work at Plastonics. He helped to organize
the employees at Plastonics, voted in the Plastonics election,
and has remained an employee at Plastonics for some 17-1/2
months. Apparently, he has been thwarted in attempts to
return to the Foundry, but Plastonics has not been so
unpalatable an employer, despite its current nonunion
status, that T. Padilla has been prompted to quit and seek a
livelihood at some other location.
I take official notice if the record of the prceedings in the Plavrtolic case.
151g
CONNECTICUT FOUNDRY COMPANY
A permanent employee is not an indentured servant.
Permanence implies no commitment, contractual or other-
wise, to stay on for some specified minimum period of time.
What is does imply is an intention, evidenced by objective
circumstances, to remain employed for an indefinite period
of time. Remaining at the Plastonics plant for 17-1/2
months is some evidence of such an intention. Voting in an
election is, in and of itself, strong additional evidence of such
a frame of mind. If I were to hold that T. Padilla was a
Foundry employee on June 16 in the face of a final and
contrary determination that he was a permanent employee
of another employer on September 28, I would have to base
the determination upon objective evidence that a change
came about in his status during the 3-1/2 months which
elapsed between the two elections. No such evidence appears
in this record. Instead, the objective evidence demonstrates a
continuing intention on the part of T. Padilla to work at
Plastonics for an indefinite period of time beginning Febru-
ary 21, 1978, the date on which he was hired. The entire
sweep of his employment history at Plastonics from the first
day forward provides the most accurate and reasonable
foundation for assessing his actual intention, and it is this
history, taken in its entirety rather than on a compartmen-
talized and time-fragmented basis, which provides objective
evidence sufficient to rebut the presumption required by
Pacific Tile. It cannot be denied that T. Padilla's picket line
activity, for which he was paid, as well as his attempts to
seek reinstatement at the Foundry, tend to support a Pacific
Tile presumption. But these are only factors in an overall
evaluation, the principal features of which are his adherence
to another employer throughout a substantial period of
employment taken together with an act wholly inconsistent
with continued Foundry employment, namely voting in a
representation election designed to select the bargaining
representative of employees of another employer. Accord-
ingly, I conclude that Thomas Padilla had acquired regular
and permanent employment with Plastonics when he at-
tempted to vote in the Foundry election on June 16, 1978, so
Respondent's challenge to his ballot should be sustained.
Geronimo Padilla. Geronimo Padilla, the brother of
Thomas Padilla, worked for Respondent for over 2 years at
an assortment of jobs. His last day of work was November
11, 1977, the day on which the strike began. He testified at
the hearing in this case that he picketed the Foundry every
day when he was unemployed and received strike benefits
for his efforts but quite doing so when he went to work at
Plastonics. However, he gave a written statement to the
Connecticut Labor Department in April 1978, to the effect
that he was not a union member, did not picket, and had
refrained from going to work at the Foundry because was
afraid of the picket lines in front of the plant. This statement
was made in support of an application for unemployment
compensation, a benefit which is not available to strikers in
Connecticut.
G. Padilla went to work for Plastonics in April 1978, was
laid off temporarily, and was recalled about May 15. He
continued to work for Plastonics for the next 9 months and
was working there on the date of the Foundry election.
When he voted at the Foundry election, he was presented by
the Board agent with a statement, which he signed, in which
he said that he would come back to work at the Foundry if
the Union won the election. He also testified that he asked
the personnel manager, Joe Geovenucchi, on several occa-
sions for a job, but there were no openings on the occasions
when he applied.
Like his brother, G. Padilla voted in the Plastonics
election on September 28. His ballot was challenged on the
basis that he was a temporary employee who was working at
Plastonics only during the Foundry strike. The Regional
Director overruled the challenge and the decision was in
effect affirmed when the Board refused to grant review.
G. Padilla testified in this case that, when he voted in the
Plastonics election, he really wanted to work at the Foundry,
but if the Union lost at the Foundry, he would prefer to stay
at Plastonics. He quit working at Plastonics in the spring of
1979 because he felt that the work assigned to him was too
arduous and was causing him physical problems. He was
earning $3.10 an hour at that job, as compared with $3.25
which he was earning at the Foundry.
As in the case of T. Padilla, G. Padilla was determined to
be a regular employee of the Plastonics corporation with
sufficient attachment to his new job to permit him to vote in
the Plastonics election. This determination spoke as of a
point in time 3-1/2 months following G. Padilla's attempt to
vote in the Foundry election. Nothing occurred during this
interim to alter his status, and, as in the case of T. Padilla, it
is the entire sweep of his employment history at Plastonics,
rather than isolated segments thereof, which should be
examined in order to determine the regularity and perma-
nence of G. Padilla's employment status. I place no credence
whatsoever in self-serving statements concerning his work-
ing intentions. It is quite clear that, in this regard, G. Padilla
tailored his testimony to fit the requirements of the govern-
mental agency to which he was looking for assistance and
such testimony provides no reliable basis for a determination
herein. Accordingly, on the basis of objective evidence which
is similar in kind to that relating to the ballot of T. Padilla, I
sustain Respondent's challenge to G. Padilla's ballot.
Francisco Spataro. Francisco Spataro was employed for
about 10 years at the Foundry. His most recent job was that
of a steel cleaner. He did not work after the strike began on
November 11. In January 1978, when Respondent was
attempting to get the plant back into production, it sent
Spataro a recall letter, but Spataro did not respond to it. In
May 1978, he signed a statement in support of an application
to the Connecticut Depatment of Labor for unemployment
compensation, in which he stated that he did not participate
in any of the picketing at the Foundry and had received no
strike benefits. He explained his failure to go to work on the
basis of fear for his personal safety if he crossed the picket
line in front of the plant. There is no evidence in the record
to rebut his statements to the Connecticut Department of
Labor.
On or about June 2, 1978, Spataro applied for a position at
Connecticut Valley Hospital, a state psychiatric institution.
The job in question was a CETA job, meaning that the
training for the position is paid from a Federal grant made
available under the Comprehensive Employment Training
Act. In the course of the interview Spataro was told that he
would have to undergo a 6-month training period in order to
get the job and that the training would lead to a permanent
position if Spataro was found to be acceptable. Spataro
1519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to these conditions, completed the training, and is
still employed at the hospital as a maintenance man. He did
not testify at the hearing, so we have no evidence from him
concerning his subjective intention, either during the strike
or at present.'
While mindful of the presumptions required by Pacific
Tile, I conclude that Francisco Spataro was a regular
employee of the Connecticut Valley Hospital at the time he
attempted to vote in the Foundry election on June 16 and
that Respondent's challenge to his ballot should be sus-
tained. As far as the record in this case is concerned, he gave
no support to the strike other than observing the picket line,
which as he explained to the Department of Labor, prevent-
ed him from working only because of his fear of crossing it.
Spataro completed a lengthy training program which he
embarked upon prior to the election and has been working
for more than a year in a position which he held when he
tried to vote at the Foundry. He failed to evidence sufficient
interest in the fate of his ballot to appear at the hearing in
this case to testify concerning it, although the personnel
director at his new place of employment did appear and
testify. The picket line, which Spataro said was sufficiently
intimidating to prevent him from working, was removed 2
months before the hearing in this case, but there is no
suggestion that Spataro made any effort to reclaim his old
job now that this impediment to access to the plant has been
removed. These factors are objective circumstances which
serve to rebut the Pacific Tile presumptions. Taken together
rather than on a piecemeal basis, and viewed with the
assistance of hindsight that brings Spataro's original inten-
tion into focus, they indicate that Spataro intended to
become a permanent employee at the hospital when he
applied for a job, has remained as such, and has thereby
abandoned the job which he held before he cast the ballot
which is not in issue. Therefore, I would sustain the
challenge to his ballot.
Francisco Echevarria. Francisco Echevarria was employed
at the Foundry on November 7, 1977. On that date he and
17 others were laid off. He joined the strike at its inception
on November II and was an active picket. According to
some of Respondent's witnesses he was too active a picket,
having engaged in incidents which arguably could disqualify
him from reinstatement. When Respondent resumed opera-
tions in mid-January, it refused to recall Echevarria because
of an incident of picket line violence. Without giving him
any notice of any kind, Respondent simply placed his
personnel file in an inactive status and considered him to be
discharged. When Echevarria presented himself to vote on
June 16, his ballot was challenged on the basis that he had,
in fact, been discharged for picket line misconduct.
Dispositive of Echevarria's status was a categorical
statement at the hearing by Cornwall. When asked point
blank whether Echevarria had in fact been discharged,
Cornwall said no. The most that Respondent could say
concerning the actual status of Echevarria is that it placed
his personnel folder in an inactive file during the course of
the strike and hoped he would not come back to work.
Whether Respondent could lawfully have fired Echevarria
for picket line misconduct is not before us. Before a
prospective voter can be regarded as having been discharged,
there must be some unequivocal evidence of termination.
Servomation of Columbus, Inc., 219 NLRB 504 (1975).
Notice of discharge normally must be communicated to an
employee by some effective means. Otarion Listener Corp.
and its Subsidiary Audio Electronics Co.. 124 NLRB 880
(1959); Miami Rivet Company, 147 NLRB 470 (1964);
Pacific Gamble Robinson Company d/b/a Pacific Fruit and
Produce Company. 171 NLRB 541 (1969), enfd. 438 F.2d
12 (9th Cir. 1971). Here there is no evidence of termination
and no communication thereof for the simple reason that
Echevarria was never terminated, either for picket line
misconduct or for any other reason. His status as an
employee did not change because he went on strike and there
is no suggestion that he ever abandoned the strike, either by
taking permanent employment elsewhere or by any other
action. Accordingly, I conclude that Echevarria was an
employee on the date of the election and that Respondent's
challenge to his ballot must be overruled.
Michael Wilkes. Michael Wilkes was first employed by
Respondent during the strike, at a time when the plant was
closed except for the presence of a few maintenance
employees. Shortly after Respondent attempted to resume
production, Wilkes engaged in a lengthy discussion with
union organizer Joseph Danahy, after which he decided to
join the strike, Wilkes picketed from time to time and drew
strike benefits accordingly. On September 5, 1978, he sought
reinstatement and was in fact reinstated at the Foundry
where he is now working.
Respondent treated Wilkes as having quit because Wilkes
did not show up for work on four consecutive days in
January. Following this absence, Respondent placed Wilkes'
personnel folder in its inactive file. Before the election,
Cornwall phoned Wilkes and asked him if he was coming to
work. Wilkes replied that he was going to do so, but in fact
he did not return until September. It is clear from evidence
placed in the record by Respondent that Wilkes was a
striker, that he gave no objective indications of abandoning
his struck job, and that he unequivocally evidenced an
intention to return to work he applied for and was granted
reinstatement in September. Accordingly, Wilkes a bonafide
employee at the time of the election, so the challenge to his
ballot must be overruled.
11. OBJECTIONABILE CONI)UCT ATTRIBUTEDI) TO 'HI
UNION
The counting of the two ballots for which challenges were
overruled could not affect the result of the election, so the
Union should be certified in the absence of evidence that it
engaged in conduct which made a free and fair election
impossible. Respondent urges that such conduct did in fact
take place and that the election should be set aside,
regardless of what a final tally might show. Indeed,
Respondent goes so far as to say that the petition in Case I-
RC-15464 should be dismissed and that, before it can be
certified, Union should be required to file a new petition,
supported by a fresh showing of interest, and should be
As noted elsewhere. the Union has not formally called off the strike.
1520
CONNECTICUT FOUNDRY COMPANY
required to go to a new election based upon new cards. It
offered no authority to support this unusual contention.
Before addressing the particulars to the events relied upon
by Respondent in support of its objections, certain general
criteria for the resolution of objections to an election should
be set forth for they control the disposition of many of the
specific issues raised in this case. With respect to the
campaign misrepresentations which are urged as a basis for
setting aside the election, the Board has recently reaffirmed
its traditional Hollywood Ceramics' doctrine and now holds
that, before a misrepresentation will give rise to a new
election, it must be a substantial departure from the truth, it
must be made at such a time that the other party has no
opportunity for an effective reply, and there must be a
reasonable expectation that the misrepresentation in ques-
tion may be expected to have a significant impact upon the
election. General Knit of California. 239 NLRB 619 (1978).
With respect to threats of violence as a basis for setting aside
an election, the conduct in question must be so disruptive
and coercive that a free and fair election is rendered
impossible Central Photocolor Company, Inc., 195 NLRB
839 (1972); N.L.R.B. v. Aaron Brothers Corporation, 573
F.2d 409 (2d Cir. 1977). Any statement complained about
must not be ambigous and must be so related to the election
that it would probably affect an employee's action at the
polls. Hickory Springs Manufacturing Company, 239 NLRB
641 (1978); Weyerhaeuser Company, 244 NLRB 1153
(1979). Brandishing a knife by an employee while other
employees were walking in the direction of the voting area
and speaking to him in Spanish has been held to be not so
coercive as to warrant the setting aside of an election.
N.LR.B. v. Miramar of California, Inc., 601 F.2d 422 (9th
Cir. 1979), upholding 233 NLRB 1009 (1977). A threat
uttered in a joking manner in or near a picket line 2 or 3
weeks before the election to the effect that the pickets would
pick up an employee's car and toss it about if the employee
crossed the picket line was held not to be sufficiently
coercive to warrant setting aside a subsequent election.
Tennessee Plastics, Inc., 215 NLRB 315 (1974). Preelection
strike violence, in and of itself, is insufficient grounds for
setting aside an election where picket line misconduct has
subsided by the time of the election and there were no
threats of reprisal aimed directly at voting. Servomation of
Columbus, Inc., supra. A statement made at a union meeting
to the effect that, if a strike occurred, the scabs would find
themselves in a gully was held to be insufficient to warrant
the setting aside of an election. Hickory Springs Manufactur-
ing Company, supra.
In evaluating union conduct which would justify setting
aside an election, the Board and the courts have drawn a
sharp distinction between the acts and words of union
officials and those of rank-and-file employees who are
merely union enthusiasts. The Board is much more reluctant
to set aside an election because of misconduct by the latter
than it is when the misconduct is directly attributable to a
union official. For purposes of applying this rule, the fact
that an employee serves as a union observer at a representa-
tion election or is prominent in an organizing campaign does
not make him a union official. Tennessee Plastics, Inc.,
·Hollywood Ceramics Company. Inc.. 140 NLRB 221 (1963).
A formal settlement agreement speaks as of the date of the Board Order
supra: Sysco Foods Services. Inc. d/b/a Zero Foods Co. 214
NLRB 764 (1974); Owens-Corning Fiberglass Corporation.
179 NLRB 219 (1969); District 30. United Mine Workers of
America (Terry Elkhorn Mining Company. Inc.). 163 NLRB
562 (1967).
One additional factor must be considered in evaluating
any unlawful or objectionable union conduct which may be
found in this case. Respondent and the Union entered into a
formal settlement agreement disposing of extensive allega-
tions of union misconduct which occurred during the course
of the organizing campaign. Among other things the
agreement provided for the entry of a Board order and court
decree to enforce the provisions of the agreement. The scope
of the agreement was broad. The Union made a sweeping
undertaking not to commit any further violations which
might "restrain or coerce employees of the Connecticut
Foundry in the exercise of rights guaranteed in Section 7 of
the National Labor Relations Act, as amended." The
agreement then went on the spell out a number of specific
types of violations which the Union agreed it would not
commit. The agreement, containing the usual posting re-
quirement, was approved by the Board on May 16 when it
issued a Decision incorporating the provisions of the
agreement in an Order. Under normal circumstances, a
representation election would not, and under Board Manual
provisions could not, be held by the Regional Director until
the completion of the 60 day posting period so that the air
could clear and no taint of union coercion could sully the
determination by employees of their bargaining representa-
tive. The posting period expired July 16.
As noted above, on May 30, Respondent executed a
document in which it effectively waived the completion of
the posting period as a bar to an election. In this document it
specifically agreed that the unremedied unfair labor prac-
tices which were referred to in the posted notice might not
be used as a basis upon which the Board could set aside the
election. Without the execution of this document, no
election would have taken place on June 16.
The notice to which Respondent's waiver is addressed
contains an agreement by the Union which carries out the
terms of its broad undertaking. In that notice, the Union
agreed that "We will not restrain or coerce employees of the
Connecticut Foundry in the exercise of rights guaranteed in
Section 7 of the . . . Act." I construe the ambit of this
declaration, which enabled the Regional Director to proceed
with a quicker-than-normal election, to mean that any prior
conduct at all on the Union's part which violated Section 7
of the Act could not be used to upset the election which the
document was being executed to facilitate. Moreover, this
statement, taken together with the recitation that the Union
had taken all steps necessary to comply with the agreement,
means that, as of the date the agreement had been approved
by the Board, namely May 16,9 the Union's slate had been
wiped clean of all conduct amounting to an unfair labor
practice committed on or before that date insofar as it might
affect a subsequent election. The document in question here
is not a conventional request to proceed, which, under
approving the settlement,. since Board approval is an essential feature of a
formal settlement.
1521
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled law, will not constitute a waiver of preelection
misconduct as a basis for setting aside an election."' What
Respondent executed on May 30, 1978, while having the
effect of a request to proceed, was actually a waiver of its
right to urge the Board to set aside an election based upon
any unfair labor practices which were or could have been
made a part of a settlement agreement it entered into with
the Union. What is being construed herein are not the
provisions of a standard Board form but the language of a
specific waiver which Respondent executed in this case.
In support of its objections to the election, Respondent
presented testimony that on April 18, 1979, Edward Rapua-
no, supervisor of the shipping and receiving department, was
accosted by union organizer Pedro Medina as Rapuano left
the company parking lot. Medina told Rapuano on that
occasion that he could get a flat tire if he continued to park
in the parking lot. I conclude that the settlement agreement,
taken together with the waiver executed by Respondent on
May 30, bars the use of this statement uttered on April 18 as
a basis for setting aside the June 16 election. Supervisor
Marsh Enquist testified that, on an occasion which must
have been a month before the election, he was also accosted
by Medina as he crossed the picket line and either Danahy
or Medina told him that he would like to punch him in the
face and gestured to him to illustrate the remark. There is no
evidence that any unit employee witnessed this event. Not
only is the event too remote in time to affect the election, but
it could not have restrained or coerced any employee since
none were present to witness it. Moreover, Respondent did
not, in my judgment, prove by preponderance of the
evidence that the event occurred before the Board approval
of the settlement agreement, so this conduct is barred by the
settlement agreement and the May 30 waiver as a basis for
setting aside the June 16 election.
About May 28 or so, a news article appeared in the
Hartford Courier, a newspaper of general circulation in the
Hartford area and in most of Connecticut. It was written by
substitute Rocky Hill reporter Jackie Ross Flaum after a
telephone interview with union representative Danahy. The
main thrust of the article was that the Board had ordered an
election at the Foundry, but that no date had been set. In the
course of the article, Danahy is quoted indirectly as follows:
Danahy said the Labor Board dismissed all the charges
against the union and the strikers filed by the company.
The charges had held up any Board ruling requiring an
election to be held. Danahy said the Board dismissed
the charges for insufficient evidence.
In fact, the Board did not dismiss all the charges against the
Union. The Regional Director dismissed one of the charges
against the Union because the conduct alleged would be
covered by the terms of the settlement agreement which the
parties had entered into in April. The other charges were
settled. This disparity is what Respondent urges as a
misrepresentation of the Board's processes of sufficient in
gravity to warrant the setting aside of the election. For his
part, Danahy insists that, while he had a lengthy interview
with Mrs. Flaum, he never told her that all of the charges
had been dismissed.
'"See Ed ChandlerFord. Inc., 241 NLRB 1201. n. 2(1979).
" Garcia. who is no longer an employee at the Foundry, did not testify.
Representations were made in the record that he is now in Peru.
Without wandering into the morass of whether or not
Danahy was misquoted, it is clear that the statements which
appeared in the Courant, even if properly attributable to
Danahy, do not constitute grounds for setting aside an
election under any of criteria laid out in General Knit., supra.
While Board employees and labor law practitioners may be
aware of a difference between a dismissed charge and a
settled charge, it is doubtful that the public knows or cares
about any arcane distinction between these two methods of
disposition. It is questionable whether the reporter in
question, inexperienced as she professed to be in covering the
Foundry strike, understood or cared about the difference.
The importance of the story which appeared in the paper
was that the way had been cleared for a representation
election at the Foundry. Accordingly, I do not think that the
departure from technical correctness which appeared in the
article is either substantial or material. Moreover, since the
election did not take place until 3 weeks later, after
Respondent executed the above-referenced waiver on May
30, Respondent had adequate opportunity to correct the
record if it deemed the record to be in need of correction. It
did not do so. Accordingly, I would overrule this objection
to the conduct of the June 16 election.
On election day, another incident occurred which Respon-
dent urges as a basis for setting aside the election. At the
second of three voting sessions, voters were lining up near a
table in the annealing room where the election was sched-
uled to take place. I credit the testimony of former employee
Karen Askew that, as she was waiting to receive her ballot,
in individual sitting at the end of the table, who was
identified by others as being union observer Anthony
Garcia'', exhibited to the voter in front of her, John Cerman,
a piece of paper containing a drawing of a skull and cross
bones, with a bottle marked poison beneath it. As he flashed
the drawing to Cerman, Garcia nodded to him, although
there is some dispute in the record as to the manner in which
he nodded. Garcia then folded the paper and put it away.
One or two other voters who were waiting in line saw the
drawing. Later Mrs. Askew asked Cerman what this was all
about and Cerman replied that he did not see anything. She
reported the incident to her supervisor. In light of the
precedent cited above, this incident is too trivial to warrant
the setting aside of the election and I decline to do so.
Accordingly, I would overrule all of Respondent's objections
and certify the Union.
Ill. THE UNFAIR I.ABOR PRACTICES ALLEGED
As the Union has requested that its objections to the
election be withdrawn in the event that a resolution of the
challenges should result in a union victory, the question of
the April pay raise need be discussed only from the
standpoint of an alleged unfair labor practice. Respondent
admits that, on or about April 2, it granted a 20-cent across-
the-board wage increase to all production and maintenance
employees. At the time the increase was granted, a represen-
tation election was pending, although no date had been set
for an election because of the pendency of blocking charges.
Because an increase was granted during this pre-election
1522
CONNECTICUT FOUNDRY COMPANY
period, it is presumed to be a violation of Section 8(a)(I)
unless Respondent can successfully shoulder the burden of
justifying its action on the basis of past practice or some
other objective basis. N.L.R.B. v. Exchange Parts Co., 375
U.S. 405 (1964); N.L.R.B. v. Arrow Elastic Corporation, 573
F.2d 702 (5th Cir. 1978); Highland House Nursing Center,
Inc.. 222 NLRB 134(1976).
The past practice of Respondent in granting across-the-
board increases shows no regularity either as to the timing of
increases or their amounts. Between 1971 and 1979, nine
such increases have been granted to production and mainte-
nance employees as follows:
Effective date
October 5, 1970
January , 1972
March 5, 1973
February 19, 1974
September 30, 1974
November 3, 1975
January 17, 1977
April 2, 1978
April 16, 1979
Increase
S.15
.15
.15
.15
.15
.20
.25
.20
.28
Respondent would justify the granting of the increase on
April 2, 1979, on the basis of past practice and because it
was a cost of living increase justified by wage surveys
furnished to it by the Metal Trades Council of American
Association of Industrial Management (AAIM). Cornwall
testified that he had made up his mind in February that a
wage increase should be given, but approval of this action
required the consent of the Enquist brothers who own the
business. Such approval was not granted until middle or late
March. During the time the proposed increase was under
consideration within the ranks of management, Cornwall
asked the advice of his attorney concerning its legality
because he was afraid that it could be misinterpreted as an
unfair labor practice. His attorney's advice was that he was
"damned if he did and damned if he didn't." Cornwall also
testified that at some time he became aware of the Board's
policy of deferring elections because of the pendency of
blocking charges, but, on April 2 when the personnel action
bringing about the increase was taken, no election was
scheduled and he had no idea that an election was "just
around the corner." The CB cases, which were later settled,
were set for trial on April 10.
The employees who received the 20-cent increase were
earning between $3.20 and $5.50 per hour. The average wage
in the bargaining unit was $3.87. Some employees had
additional earnings because of an incentive plan which
covered certain jobs. Cornwall was uncertain as to what the
rise in the cost of living amounted to in the Hartford area
between January 1977, when the last general increase was
granted, and April 2, 1978, when the increases here in
question were made. The studies made by the AAIM were
geared to what other manufacturing concerns were paying
for various classifications of labor rather than in terms of
percentage increases in costs to consumers in a given area.
Cornwall could not relate the data which he reviewed
directly to the amount which was ultimately decided upon as
an appropriate figure.
Cornwall also testified that the rise in the cost of living
was actually less a factor in the decision making process than
how the Foundry was doing and how its profit picture
looked. In April 1979, the Foundry had about 90 production
and maintenance employees on its payroll, as compared with
a normal complement of 125-135. Cornwall admited that
the Company was not making a profit at the time the
increase was granted and that its wage scale had a direct
bearing on the number of employees the Respondent was
able to attract. This consideration, rather than generalities
concerning the cost of living in the Hartford area, was the
immediate factor which prompted the decision to raise
wages.
The evidence herein shows not only that the increase was
granted during the pendency of a representation petition but
that, once the increase was granted, Respondent took action
to bring about an election at a date much closer to the
granting of the increase than would normally have been the
case. Moreover, the increase was granted at a time when
Respondent was trying to induce its employees to abandon
the strike and come to work and when it was soliciting
applications from others to work behind a picket line. All of
these very prominent and pressing factors indicate that the
decision to grant the increase was induced in no small part
by union considerations. These factors in no way mitigate or
rebut the initial presumption of illegality which attends such
a wage hike. Accordingly, I conclude that, by granting a 20-
cent across-the-board wage increase on April 2, 1978, during
the pendency of a representation petition, Respondent herein
violated Section 8(a) (1) of the Act.
Returning striker Efraic Medina testified without contra-
diction that, shortly after the election, Foreman Junior
Bogus had a conversation with him in the foreman's office,
during the course of which Bogus asked Medina if he had
signed a union card. Medina admitted that he had signed a
card. The question was posed during a conversation which
began when Medina asked Bogus for a raise. The circum-
stances surrounding Bogus' inquiry, which was made in
response to Medina's request for a raise, make the inquiry
clearly coercive and a violation of Section 8(a)(1) of the Act.
Upon the foregoing findings of fact and upon the entire
record herein considered as a whole, I make the following:
CONCI.USIONS OF LAW
1. The Respondent, Connecticut Foundry Company, is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Ladies' Garment Workers Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By granting a wage increase to employees during the
pendency of a representation petition and by coercively
interrogating employees concerning their union activities,
Respondent herein has violated Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on interstate commerce,
within the meaning of Section 2(6) and (7) of the Act.
1523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. I will recommend that Respondent be required to
post a notice advising its employees of their rights and of the
remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER'`
The Respondent, Connecticut Foundry Company, and its
officers, supervisors, agents, and assigns, shall:
I. Cease and desist from:
(a) Granting an increase in wages and benefits in order to
dissuade employees from joining or voting for a union,
provided that nothing in this Order shall require Respondent
to withdraw or discontinue any increase in wages or benefits
which it has heretofore granted.
(b) Coercively interrogating employees concerning their
union sentiments and activities.
(c) In any like or related manner interferring with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Post at Respondent's Foundry in Rocky Hill, Connect-
icut, copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by a
representative of Respondent, shall be posted immediately
upon receipt thereof, and shall be maintained by Respondent
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of receipt of this Order what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case I-RC-15,464 be, and
it hereby is, severed from Case 1-CA-14,654 and remanded
to the Regional Director for Region I for the purpose of
issuing a certification of the Union herein.
': In the event no exceptions are filed as provided by ec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
" 1In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board,'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT grant increases in wages or benefits in
order to induce employees not to support or vote for
International Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization.
WE WILL NOT coercively interrogate employees
concerning their union sentiments and activities.
WE Will NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act. These rights include the right to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for their
mutual aid and protection.
CONNECTICUT FOUNDRY COMPANY
1524