Craft Maid Kitchens, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1987

284 N.L.R.B. 1042 (N.L.R.B. 1987)

1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Craft Maid Kitchens, Inc. and United Brotherhood
of Carpenters and Joiners of America, Local
No. 492. Cases 4-CA-11043 and 4-RC-14067
17 July 1987
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 23 October 1981 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Order.
Procedural Chronology
The petition in Case 4-RC-14067 was filed 14
February 1980.1
Qn 1 May the Union filed an unfair labor prac-
flee charge in Case 4-CA 11043. Pursuant to a
stipulated election agreeme t, an election was held
2 May, in which the Union did not receive a ma-
jority of the valid ballots. The Union thereafter
timely filed two objections, one of which duplicat-
ed the allegations in the unfair labor practice
charge. On 16 May, the Union filed an amended
charge in Case 4-CA-11043.
On 30 June the Regional Director issued a com-
plaint and notice of hearing based on the amended
charge. In a letter issued the same day, the Region-
al Director notified the Union that he declined to
issue a complaint based on a layoff alleged in the
initial charge to be unlawful, and that he would not
seek a bargaining order. On 3 July the Regional
Director issued his Report on Objections and Chal-
lenges in the representation proceeding, recom-
mending that the challenges to the ballots of the
laid-off employees be sustained and that the objec-
tions filed by the Union be overruled. The Region-
al Director further recommended that a hearing be
held to determine whether the Respondent engaged
in other unalleged misconduct, which came to the
Regional Office's attention during the investigation
of the Union's unfair labor practice charges, and
All dates are 1980 unless otherwise indicated.
that that hearing be consolidated with that in the
unfair labor practice proceeding.
On 26 August the Board issued an unpublished
Decision and Direction in Case 4-RC-14067, in
which it adopted the Regional Director's sustaining
of the challenges and overruling of the filed objec-
tions, and remanded the case to the Regional Di-
rector for consolidation with Case 4-CA-11043.
The Union appealed the dismissal of its original
charge to the General Counsel in Washington D.C.
The General Counsel upheld the Regional Direc-
tor's dismissal but, relying on contentions made for
the first time in the appeal, remanded the case to
the Regional Director to issue an amended com-
plaint alleging that postelection wage increases
were unlawful and seeking a bargaining order
based on that conduct. The amended complaint
issued 30 December.2
The judge found that Ernest Solomon was a stat-
utory supervisor and made comments which violat-
ed Section 8(a)(1) of the Act. The judge also found
that the Respondent violated Section 8(a)(1) by the
conduct of its president, Zager, in: (1) promising to
hold meetings with the employees; (2) promising
and granting insurance benefits; (3) requesting em-
ployees to bring grievances to him or to Solomon;
(4) interrogating employees whether they had
signed union cards and whether they had forward-
ed such cards to the Union; (5) granting postelec-
tion wage increases; and (6) telling employees that
he would never recognize the Union. 3 The judge
dismissed allegations regarding the suspension of
employee Knarr, and the Respondent's creating a
job classification and wage rate of "utility
person. "4
1. The conduct attributed to Ernest Solomon
The judge concluded, inter alia, that working
foreman Ernest Solomon was a statutory supervi-
sor and that comments which the judge found that
Solomon made were chargeable to the Respondent
and violated Section 8(a)(1) of the Act. The Re-
spondent excepts on grounds that Solomon was not
a supervisor and that even if he were any state-
ments allegedly made by him were not properly at-
2 Respondent urges, in effect, that although the postelection wage in-
creases were not the subject of or related to a timely filed charge, no
unfair labor practice can be based on them. The Respondent further con-
tends that although the increases were after the election, and not alleged
to be objectionable, they cannot be found to have interfered with the
election and thus cannot form the basis for a bargaining order. In view of
our findings, infra, we find it unnecessary to pass on the Respondent's
contentions in this regard.
3 This finding was not included in the judge's conclusions of law. The
Respondent correctly points out that this matter was not alleged in the
complaint, as amended, nor fully litigated. Accordingly, we dismiss this
allegation.
4 The General Counsel did not except to this latter finding.
284 NLRB No. 119
CRAFT MAID KITCHENS 1043
tributable to the Respondent. We find it unneces-
sary to determine whether Solomon was in fact a
supervisor or whether he made these comments,
since we agree with the Respondent that any con-
duct by him was not attributable to the Respondent
as a violation of Section 8(0(1).6
The Board has long held that statements by su-
pervisors who have been included in the unit by
the parties are not generally attributable to their
employer and thus do not violate Section 8(a)(1).
Montgomery Ward & Co., 115 NLRB 645 (1956).6
In Montgomery Ward, the Board reasoned that:
When a supervisor is included in the unit by
agreement of the Union and the Employer and
is permitted to vote in the election, the em-
ployees obviously regard him as one of them-
selves. Statements made by such a supervisor
are not considered by employees to be the rep-
resentations of management, but of a fellow
employee. Thus they do not tend to intimidate
employees. For that reason, the Board has
generally refused to hold an employer respon-
sible for the antiunion conduct of a supervisor
included in the unit, in the absence of evidence
that the employer encouraged, authorized, or
ratified the supervisor's activities or acted in
such a manner as to lead employees reasonably
to believe that the supervisor was acting for
and on behalf of management.7
In reaffirming these principles, the Board more
recently has dismissed allegations that supervisors
unlawfully attempted to decertify, 8 or disparage,6
an incumbent union.
5 Having found it unnecessary to determine whether Solomon was a
supervisor, we also find it unnecessary to pass on the findings on which
the judge based this conclusion. Nonetheless, we note that some of these
findings are not supported by the record. Thus, e.g., the judge found that
Solomon hired employee Gallo, a finding which in turn was apparently
based on the judge's interpretation of Gab's testimony. However, Re-
spondent's witnesses' testimony that Solomon did not hire or fire employ-
(Pa appears supported by Gallo's own testimony, contrary to the judge,
that Solomon did not interview him, but merely showed him around. The
record indicates that Gallo in effect obtained his job through his teacher
in the vocational-technical program at a local high school which had a
contract with the Respondent, rather than by any action by Solomon.
The judge also relied on his conclusion that Solomon summarily fired
Gallo. The record shows that Gallo was discharged after a second inci-
dent of firing staples at another employee from a powered staple gun, 3
or 4 days after receiving a warning for the same conduct. The incident
was reported to both Solomon and group leader Gram, in the morning,
and discussed with Zager. Gallo was discharged after lunch, after admit-
ting to the conduct. He testified he was sure Solomon and Graca dis-
cussed it, but did not know if the order came directly from Zager, as the
Respondent's witnesses testified.6 In Montgomery Ward, the Board held a supervisor's statements to em-
ployees, that the company knew those who were in favor of a union, that
they would lose their jobs because of union activity, and that the compa-
ny would close the facility if the union were successful, were not attrib-
utable to the company.7 Montgomery Ward & Co., supra at 647. The record here does not
demonstrate that Respondent would be liable under this test.8 A. T. & K. Enterprises, 264 NLRB 1278 (1982).
Bennington Iron Works, 267 NLRB 1285 (1983).
During the representation proceeding, the parties
signed a Norris-Thermador" list which stipulated
the eligibility to vote and inclusion in the unit of
certain employees, including Solomon. The stipula-
tion further provided that none of the listed em-
ployees possessed or exercised any of the indicia of
supervisory authority listed in Section 2(11) of the
Act. The stipulation was signed by the attorneys
for the Union and the Respondent, and the Union
does not contend that it was misled. The record
further shows that Solomon voted in the 2 May
election without challenge, and that he had been
included in the bargaining unit as specified in a
Norris-Thermador list in a previous representation
proceeding between the same parties. We, there-
fore, fmd that the parties included Solomon in the
unit, and that the Respondent was thus not liable
for his statements. We shall dismiss those portions
of the complaint which allege that he made state-
ments that violated Section 8(aX1).
2. Conduct attributed to Zager
a. The health and accident insurance benefits
Contrary to the judge, we find that the Respond-
ent did not violate the Act by announcing and
granting health and accident insurance benefits. It
is undisputed that Zager, one of the Respondent's
owners, contacted insurance brokers about imple-
menting such coverage and requested prices as
early as November 1979, well before the advent of
union activity. Although we agree with the judge
that the two independent insurance brokers who
testified were credible, we do not adopt his inter-
pretation of their testimony to the effect that nei-
ther of them received a definite response from the
Respondent until after the union activity began. To
the contrary, insurance agent Curry testified that
he first met with Zager on 6 December 1979 about
providing accident and health insurance benefits to
employees. According to Curry, Zager told him at
that time that he wanted to start the program be-
cause a couple of employees had been out sick
without receiving compensation. Curry also testi-
fied that he and Zager spent about an hour and a
half on that occasion discussing various aspects of
providing coverage. According to Curry, Zager
"wanted to get nioving on it." Curry also talked to
Zager several times by telephone before receiving
proposals from various insurance companies in
early February and forwarding them to the Re-
spondent.
Giles testified that he first became involved in
providing insurance coverage for the Respondent
10 Norris-Thermador Corp, 119 NLRB 1301 (1958).
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in November 1979, when another broker, Feinstein,
asked for his help in obtaining coverage for the Re-
spondent. Thereafter, and still in November 1979,
Giles and Feinstein met with Zager in the latter's
office. At that time, according to Giles, Zager told
him he was going to provide insurance to his em-
ployees and wanted the best coverage he could
obtain for the money. Giles repeated this testimony
under further questioning. Giles and Feinstein met
again with Zager in December, at which time
Zager repeated that he was going to institute the
coverage and they discussed technical details. Ac-
cording to Giles, Zager said that he would not be
able to complete the necessary paperwork until
after the holidays because of the press of business.
In light of this testimony, credited by the judge,
we conclude that the judge's finding that the deci-
sion was made only after the organizing campaign
began is not supported by the record and we shall
dismiss this allegation of the complaint.
b. The alleged solicitation of grievances
The judge did not explain his finding that Zager
violated the Act by soliciting grievances, but ap-
parently based this finding on a statement made by
Zager in a discussion with employees about the
Union and what it could and could not do. Zager
told the employees not to be misled, and that if
they had any questions to ask him or Solomon.
There was nothing coercive in Zager suggesting to
the employees that they take their questions to S&
omon, for Solomon had voted in the prior election
and had been a member of the Union. Indeed, Sol-
omon had supported the Union during an 8-week
strike against his former employer, and the General
Counsel's witnesses testified that Solomon favored
unionization in general but opposed this particular
Union. In these circumstances, the record does not
support a finding that Zager's remark constituted
an unlawful solicitation of grievances.
c. The alleged promise of monthly meetings
The judge apparently inferred that Zager's com-
ment in January about holding monthly meetings
represented a change in procedure following the
advent of union activity. We disagree.
Former employee Knarr, a witness for the Gen-
eral Counsel, conceded on cross-examination that it
was fair to say that employee meetings were held
on an average of once a month in 1979. Both
Knarr and the General Counsel witness Peterson
testified that the subjects at these meetings included
such terms and conditions of employment as safety,
maintenance of machines, production, improving
coordination between departments, complaints
about dust, installation of a system to control same,
smoking, wages, parking, break time, and vacation
scheduling. The General Counsel's principal wit-
ness, Davidheiser, also conceded on cross-examina-
tion that there had been both prior announcements
of and monthly meetings. After initially denying
that there had been any employee meetings in
1979, Davidheiser admitted that he recalled some
where such topics as parking, smoking, coke
breaks, ordering sandwiches, and customer com-
plaints were discussed. Davidheiser also recalled, in
response to questions by the judge, that only one
topic was generally discussed at each meeting. The
General Counsel noted on the record that this testi-
mony was inconsistent with Davidheiser's prior in-
sistence that there was only one meeting in 1979.
The record amply demonstrates that meetings
between employees and management were essen-
tially the same both in frequency and content in
1980 as they had been during the previous year.
Accordingly, we shall dismiss the complaint's alle-
gations that Zager unlawfully promised to hold
meetings with employees.
d. The wage increases
The judge found that the Respondent violated
the Act by announcing and subsequently granting
wage increases in June through November. As the
judge noted, Zager testified to the Respondent's
business difficulties in the winter and early spring
of 1980, including an almost 50-percent reduction
in business and orders on hand, a substantial default
in payment by one of the Respondent's major cus-
tomers, and a layoff of several employees in April.
Zager also testified that several of the remaining
employees approached him in June and demanded
a wage increase to keep pace with the rapidly
rising cost of living, and that they insisted on this
raise as a condition of continuing to work. The
judge found that he could not accept Zager's testi-
mony about receiving this demand absent support-
ing testimony or a petition for an increase signed
by employees. 11 We disagree.
There is no dispute that the employees in fact
presented Zager with a demand for a wage in-
crease. Indeed, the written demand is in evidence,
and the General Counsel witnesses testified to the
employees' conversations which prompted them to
draft the document and present it to Zager. We
thus find it immaterial that the document is not
signed. Further, it is also undisputed that Zager
11 The Judge erroneously viewed the demand for wage increases as oc-
curring at the same time as the Respondent's economic difficulties in the
winter and early spring, discussed above The record shows that by the
time of the employees' ultimatum, the Respondent's, and its competitors',
economic picture had improved, and that the Respondent's competitors
were hiring more employees
CRAFT MAID KITCHENS 1045
was advised that many employees had applied for
jobs elsewhere, and that unless the Respondent
granted a wage increase, the Respondent would
lose its remaining corps of experienced employees.
In response to this situation, Zager told the em-
ployees that he would increase wages over a
period of several months if business conditions per-
mitted him to do so. In these circumstances, we
find that the wage increases were not a result of
the union activity and we shall therefore dismiss
the complaint's allegations that the increases violat-
ed the Act.
The Representation Proceeding
The election in Case 4-RC-14067 was held on
May 2. The tally of ballots furnished to the parties
after the election showed 7 votes for and 12 against
Petitioner, with 10 challenged ballots. The Board
adopted the Regional Director's recommendation
that nine of the challenges be sustained, and the re-
maining challenge is not determinative. The Board
also adopted the Regional Director's recommenda-
tion that Petitioner's timely filed objections be
overruled. As we have reversed many of the
judge's unfair labor practice findings, and the re-
maining unlawful conduct occurred outside of the
critical preelection period, 12 we shall certify the
results of the election."
CONCLUSIONS OF LAW
1. Craft Maid Kitchens, Inc. is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners
of America, Local No. 492, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating an employee whether he had
signed a union card and whether he had forwarded
it to a labor organization, the Respondent has vio-
lated Section 8(a)(1) of the Act.
4. The record does not establish by a preponder-
ance of the evidence that the Respondent has oth-
erwise violated the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Craft Maid Kitchens, Inc., Read-
ing, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
12 Ideal Elect,* & Mfg. Co., 134 NLRB 1275 (1961).
13 Consistent with our discussion, supra, we do not adopt the judge's
recommendation that the Respondent be ordered to bargain with the
Charging Party-Petitioner.
(a) Interrogating employees whether they have
signed union cards and whether they have for-
warded them to a union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Reading, Pennsylvania facility
copies of the attached notice marked "Appen-
dix.,914 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly on receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for United Brotherhood of
Carpenters and Joiners of America, Local No. 492
and that it is not the exclusive representative of
these bargaining unit employees.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees about
whether or not they have signed union cards or
whether or not they have forwarded them to a
union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cise of the rights guaranteed you by Section 7 of
the Act.
CRAFT MAID KITCHENS, INC.
Leonard P. Bernstein, Esq., and Carol E. Finkelstein, Esq.,
for the General Counsel.
Richard Body, Esq., and Ronald Segal, Esq., of New
York City, New York, for the Respondent.
Leon Ehrlich, Esq. (Ehrlich and Ehrlich), of Reading,
Pennsylvania, for the Charging Party-Petitioner.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. This is
a consolidated proceeding, joining an unfair labor prac-
tice and a representation election case, in which a hear-
ing was held on March 30 and 31 and April 1, 1981, and
on June 1, 2, 3, and 4, 1981, at Reading, Pennsylvania. In
Case 4-CA-11043 the General Counsel issued a com-
plaint against Craft Maid Kitchens, Inc. (the Respondent
or the Company), on December 30, 1980, based on a
charge filed on May 1, 1980, by United Brotherhood of
Carpenters and Joiners of America Local No. 492 (the
Charging Party or the Union). In Case 4-RC-14067 in-
volving the same parties, a hearing was held by the
Board on May 2, 1980. The principal issue in the com-
plaint case is whether the Respondent unlawfully refused
to bargain with the Union on request, and whether it
committed a variety of unfair labor practices in violation
of Section 8(a)(1) of the Act. In the representation case,
the question is whether the Respondent engaged in im-
proper conduct in interfering with the results of the elec-
tion. Briefs were filed after the close of the hearing by
the General Counsel and the Respondent.
On the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I. 'THE BUSINESS OF THE RESPONDENT
Craft Maid Kitchens, Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania, is
engaged in the manufacture of kitchen cabinets in Read-
ing, Pennsylvania. During the year preceding issuance of
the complaint it received gross revenues in excess of
$500,000 and sold and shipped products and materials
valued in excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania. I find that the Re-
spondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
This is essentially a refusal-to-bargain case. In January
1980 the employees started a self-organizational cam-
paign and on February 4 the Union demanded recogni-
tiOn as exclusive bargaining agent. The Respondent re-
fused to bargain. According to the complaint, the Re-
spondent's reaction to the union activities was a pro-
gramed course of action aimed at restraining and coerc-
ing the employees away from their prounion resolve. An
election petition was filed and the Board conducted an
election on May 2. The Union failed to win a majority
and filed objections to the election. With the objections
pending, the Company, still according to the complaint,
continued to commit unfair labor practices to insure the
elimination of any remaining prounion sentiment among
the employees.
There were about 36 production and maintenance em-
ployees in the plant. The owners were Steven Zager and
Jerry Goldberg, partners. Goldberg spent part of his day
in the office scheduling deliveries of the kitchen parts
made in this plant, but most of his time was spent outside
as the company salesman. Zager took care of the office
and also looked after the plant operations. There was
also a foreman, Ernest Solomon, more experienced and
skilled than any one else in how to operate the machines;
he saw that the work was done properly. He was the
only salaried man in the place; all the others were hourly
paid. The unfair labor practices alleged—interrogations,
threats promises of benefit, calculated individual raises
here and there, and urgings to the men to form their
own bargaining committee in place of an outside union—
were largely articulated and passed on to the employees
by Foreman Solomon, at one employee meeting after an-
other, beginning the very day—January 16 after the card
signing started.
The Respondent washes its hand of all Solomon's
doings by contending he was not a supervisor within the
meaning of the Act—just an ordinary working man. In
the face of the clearest and most convincing testimony as
to his continuing antiunion urgings on the rest, Solomon
also denied every jot and tittle atributed to him by one
employee after another.
It is important therefore to fix Solomon's status at the
outset. He was without question a supervisor within the
meaning of the Act. If ever a man spoke for manage-
ment, ran the shop, and controlled the employment con-
ditions of the subordinates, it was this foreman. He hired
people, he fired them, he issued them warnings about de-
linquencies, he disciplined them, and he assigned work
precisely in keeping with his independent judgment—in
short, he did just about everything an effective supervi-
sor does. Some examples will serve to illustrate the
nature, and emptiness, of the entire Respondent's argu-
ment to disassociate itself froth all that Solomon did.
A man named Gallo was hired in March 1979. His un-
contradicted testimony is that when he applied he was
interviewed by Solomon, that he spoke only to him, and
that the foreman just told him to come to work then and
there. In February 1980, in the middle of his shift after
CRAFT MAID KITCHENS 1047
lunch, Solomon fired Gallo summarily, on the shop
floor, in the presence and hearing of other employees.
Gallo had been shooting staples at another employee. He
said at the hearing the other person had first annoyed
him, but just who was at fault is of no moment here. The
question is: Did Solomon fire Gallo, and thereby exercise
as authorized a supervisory function as it is possible to
do? Denying that the foreman had anything to do with
the firing, Zager, the owner, testified Solomon reported
to him that Gallo had been shooting staples, and that he
told the foreman to go out and warn the man not to do
that again. After Solomon gave the warning, Gallo did it
again, and a second time, still according to Zager, the
foreman reported it to him: "I told Ernie to go out to
the shop immediately, make sure Gallo did it and if he
did, I wanted him fired immediately." The owner ended
by saying it was entirely his own decision, he did not
"discuss" it in any manner with Solomon, he did not ask
the foreman what "his feelings" were, what "his
thoughts" were about the matter.
Solomon's version of this is that someone told him
Gallo had been shooting staples and he reported it to
Zager, who told him "if this should happen again, that
he [Gallo} would be terminated." A few weeks later Sol-
omon again heard that Gallo had shot staples at some-
one. He reported it to Zager, who then said: "that I
should go out and ask Mr. Gallo if he really did it, and if
he did, to tell him to punch his card and leave. . . I
went and asked Mr. Gallo if he did shoot staples at this
person and he said he did immediately. So I told him
very nicely that he should punch his clock. I said, 'We
warned you before. So now you punch your card and
leave . . . Mr. Zager said that you're fired." If the
reader of this decision were in Gab's shoes, who would
he think was his supervisor in that shop? No less than
four employee witnesses testified they locked on the
foreman as their every day supervisor. Given the undis-
puted facts of this case—as distinguished from self-serv-
ing statements about private conversations between
members of management—such testimony is very
weighty here. Speed Mail Service, 251 NLRB 476 (1980).
Solomon discharged two other employees directly:
Lori Manger and Lisa Dwyer. As to Manger, from
Zager's testimony: "Her absenteeism had continued and I
instructed Mr. Solomon to tell her she was dismissed."
As to Dwyer: "Lisa's attendance was poor and her qual-
ity of work was substandard. . . I instructed Mr. Solo-
mon to tell her that she was dismissed." The foreman
then fired the employees.
On March 28 Solomon suspended a man named Knarr,
in the presence of all employees having lunch. Knarr tes-
tified that the foreman charged him with having been 10
minutes in the bathroom, 27 minutes out of his work area
talking to to other employees, too many times spending 3
to 5 minutes talking to someone else. The two got into a
heated argument—with the word "liar" coming up. It
ended quickly, according to Knarr, with Solomon telling
him: "[Flunch your card and get the hell out . . . . If
you want your job you come back and see me Monday."
Knarr also testified Solomon showed him that day very
detailed notes he had made of Knares repeated absences
from his workplace, to the minute, as well as the shop
watch that he used to verify the record of absences he
always made. In the effort to remove Solomon from the
picture in the summary dismissal of this man that day,
the Respondent's witnesses came up with the following.
Solomon started by saying he told Knarr not to spend
time in the bathroom "like every hour or a half," not to
smoke on the job, and not to wander about the plant. He
continued that he reported all this to Zager who then
"told me just what to tell him [Knarr] about it, and if he
should give me any hassle about it or get nasty about it,
I was supposed to suspend him." The witness ended with
saying that when he warned Knarr to stop violating the
company rules, and after the man called him a liar "I
told him that he was supposed to punch his card and just
leave." According to Zager, when Solomon reported
ICnares derelictions, "I instructed Ernie at the very least
he is going to have a stern warning. I want you to go to
Knarr. Knarr is not the kind of fello* who would accept
criticism very easily. I told him if he gives you any lip I
want him suspended." "I then told Solomon if he gives
you any static, any lip, I want him suspended."
It is the Respondent's contention, through testimony of
this kind—and there are hundreds of pages of similar tes-
timony about countless other things Solomon used to do
in running the entire plant during the day—that the fore-
man in this case was an inanimate conduit, a soul-less
pipe through which Zager, sitting in his office, super-
vised the work of all 36 employees throughout the shop.
The Respondent would have it that Solomon's mind had
nothing to do with whatever came out of his mouth, all
that he said and did, that so directly affected the work-
ing conditions of all his subordinates. If a man was fired,
or suspended, it was the rule which decided he had to
go, not the foreman; he was but an automation. I find the
argument totally unconvincing. If anything, such testi-
mony only serves to discredit both Solomon and Zager
as witnesses in this case.
People who work in a shop see the man who all day
watches over them, who is constantly yelling to them
what to do and what to stop doing, who reports their
conduct to the front office, as the man they must obey,
as their boss. And this is true even if it were a fact, as
Zager said—although I do not find it to be a fact in this
case—that he is only put there to report their behavior
to higher authority. This is especially true where that
man literally hires and fires people, warns them in no un-
certain terms. If this sort of authority exercised by a man
does not prove supervisory status, the statute becomes a
mockery.
There is much more evidence throughout the unduly
extended record proving Solomon's supervisory status,
but it would demean this report to repeat it all in point-
less detail. When an employee was going to be out sick
he telephoned in, spoke to Solomon, and the foreman
just said okay. It will not do for Zager to say the rules
permit sick absences, and therefore it was the rules
which gave permission, not Solomon in the exercise of
his judgment. Another employee witness said he told
Solomon he had to leave early, during the shift, and got
immediate approval by the foreman. One man, Kowalski,
once found his weekly paycheck was "a couple of hours
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
short"; he told the office girl about it and she told him to
talk to Ernie "about changing it." Kowalski took it to
Solomon who was eating his lunch, told him he had for-
gotten to punch for those hours he had worked, and all
the foreman did, right then and there, was correct the
error and initial it. Kowalski then went back to the sec-
retary and got his money.
More than one man testified Zager told them to talk to
Solomon about the problems that had led them to the
Union. I must believe them, for Zager himself admitted
that when, on January 16, the day he first reacted to the
union movement by telling all the employees assembled
he was against it, he also advised them: "If you have any
questions, see me or Ernie." The truth of the matter is,
and there is no doubt about it, that on the question of
who to hire and who to keep, how and when to coerce
the employees and keep them away from the Union,
Zager's method was to rely on the wisdom of Solomon.
B. Violations of Section 8(a)(1)
Union activities started on January 15, when union
leaflets were distributed in front of the plant and the em-
ployees started signing authorization cards. Shortly after
7 a.m. the next day Solomon gathered four group lead-
ers—all conceded rank-and-filers—in the office for a
meeting. Employee Ronald Davidheiser testified the
foreman said "he did not like the Union. He did not feel
we needed the Union . . . . It was not worthwhile and
he didn't feel it could benefit the employees . . . he did
not feel that we should join the Union." Solomon then
received a call from Zager, and told the employees
Zager wanted to know "what the opinion was in the
shop, what the attitude was about the Union, about the
handbiffing the previous day, how things looked as far as
did the Union have any support or not."
Later that same day Zager himself called all the em-
ployees together in one room for about 45 minutes to
talk about the Union. As Davidheiser testified: "He told
us that he didn't feel we needed a union and that we
should not support the union; that all they could promise
us was that we would pay dues. They could not guaran-
tee us anything. All they could do was ask him, for
things. . . . He was the only one that could guarantee
us anything.. The Union is hurting our members," Some
of the employees then voiced their gripes, and spoke
about monthly meetings that had been promised but not
held, and health insurance they wanted. Zager's answers
included the statement: "that we would look into some
type of health insurance plan." "He told me that we
would have monthly meetings and we would straighten
out all the problems in the shop." Employee Knarr gave
similar testimony as to this meeting. He quoted Zager as
saying: "You know, I guess you probably know by now,
the Union was out handbilling yesterday . . . . You
know, you don't want the Union in here, you'll always
be on strike, you'll be paying fines, you have to pay dues
. . . he stated that there was going to be from there on
in, there were going to be monthly meetings. A meeting
every month," There was similar testimony by other em-
ployees—Peterson and Kowalski. By Kowalski: "He said
that the union, you know, couldn't guarantee anything
but you'd pay dues and some other little things like that
. . . . there was a question raised at the time about a
health insurance policy . . . . He [another employee]
told Stu [Zager] that he was trying to give everybody a
snow job, that he's been looking into it for years and has
never come across anything about it . . . . he [Zager]
said that he would look into it and he would try to find
a health insurance policy and try to find the best plan for
the company . . . . He said if you had any suggestions
or complaints to see either him, Mr. Goldberg or Mr.
Solomon." Later that day, as Kowalski also recalled,
Zager spoke to him alone for "15 minutes to half an
hour," and asked had he accepted the literature passed
out by the Union that day before, had he "sent the card"
in, had he "filled it out." Kowalski also testified that at a
February 6 meeting of all employees Zager told them he
had received the Union's demand letter but that "he
would never, never recognize the union."
A week or so later, still according to Davidheiser, Sol-
omon called another meeting of selected employees,
again during paid worktime, where, after repeating he
did not think the employees should support the Union,
the foreman told them: "They should get together and
ask their people, the group leaders, ask their people what
they, in fact, had in mind, what they wanted from the
Employer, and to make a list and to present it to the em-
ployer."
Davidheiser then recalled still another meeting Solo-
mon called with the same group leaders early in Febru-
ary. "At this meeting, we discussed the Union again, and
Mr. Solomon once again told us that he didn't believe
we should support the Union and he also told us that
there had been more talk about the Union and that he
wanted us to find out who of our people supported the
Union, what they thought about the Union. He told us
directly, let's find out who these people are." "We dis-
cussed the issues that we asked our people about and we
made a list to present to Mr. Zager. . . . It was a list of
requests or demands that we would like—that we
wanted to have for the employees in the shop." David-
heiser said he personally made up the list of demands
and that it included such things as a wage increase,
health insurance, floating holidays, and sick days.
There is also evidence that the foreman urged the em-
ployees to form their own bargaining committee as a
technique to remove the Union from the picture. Em-
ployee Peterson testified that during February Solomon
told him and other employees that "he [Solomon] just
saved our jobs, that Mr. Zager was very upset, and he
said that anyone who causes problems or something to
do with the union to get rid of them" Peterson then
added that one day before the scheduled election, speak-
ing to a group of employees, "he [Solomon] discussed
with the people about starting their own shop union. . .
he said why should we pay out for somebody to repre-
sent us when we can represent ourselves—to start our
own shop union. . . . There ws a show of hands to see
who was for it."
Employee Knarr also testified about several meetings
held by the foreman after the month of January. He
quoted Solomon as saying at a meeting of about 12 em-
ployees in late February that "he [Zager] could close the
CRAFT MAID KITCHENS 1049
shop down if he wanted to and fire everybody—and hire
all new employees and open the shop again." Knarr also
testified that in late March Solomon called another meet-
ing of employees, again with 10 or 12 of them present.
"And somebody asked again if Stu could close the shop,
and he said 'Yes. . . . He could close down the shop."
Finally, Knarr recalled Solomon saying at one of these
meetings, "organizing and unionizing principles are good
• . . But we don't need the Brotherhood in here. . .
You've got to pay dues, you've got to pay fines, you've
got to pay this and that . . . . We could just get our
own shop union in here, we can have it bonded and no-
tarized and everything. And we can get our own shop
union in here. . . • Let's just take a general vote. How
many people would be interested in a shop union other
than, you know, so everbody put their hands up."
Testifying later for the defense, Solomon and Zager
generally denied all the damaging statements attributed
to them by the employees. Considering their relative de-
meanor, clear inconsistencies in their stories, and certain
revealing admissions they did make, I do not credit their
denials. I credit the employee witnesses instead. In the
face of repeated testimony by one employee after an-
other about meetings he held where the Union was dis-
cussed, Solomon said he never held any such meetings.
Asked if was he personally against the idea of union or-
ganization, he answered: "I made no comment it at the
time." He then admitted he was opposed to the idea, and
that he also knew Zager was against it.
Zager's version of his personal talk with Kowalski on
January 16 is illustrative of much of his testimony. He
denied asking if the man signed a union card or received
any union literature. But he said the subject of the Union
did arise—although he could not remember who brought
up the subject. He also recalled telling Kowalski that he,
Zager, did not think the union was a good idea. "I didn't
think it was a good idea to sign a card." Twice Zager
said all this talk took "less than a minute," "just as I was
walking away." Regarding the mass meeting he called
with all the employees earlier that day, all Zager said at
the hearing is that he did discuss the Union with them,
that he told everybody he knew union cards were being
passed out, that the Union could promise many things
but could guarantee nothing, that all the Union was hurt-
ing. Twice the witness then admitted telling the employ-
ees, "Don't be misled. If you have any questions, see me
or Ernie." Ernie is Foreman Solomon, the man whose
antiunioin activities Zager, at other points in his testimo-
ny, try to disown. This was the owner, talking for 45
minutes with his employees to get across the message
that he wanted them to stop the union business, telling
them the foreman was available to sell them the ideas as
well as he. What better proof, out of the owner's mouth
that he was making Solomon his effective agent to defeat
the union campaign? Zager stands as a discredited wit-
ness in this case.
I find that by Zager's following activities the Respond-
ent violated Section 8(a)(1) of the Act: (1) Promise to the
employees that would obtain a new health and accident
insurance for their benefit; (2) promise to employees to
hold monthly meetings with them to hear and consider
their grievances; (3) request to the employees that they
bring their grievances directly to the owner or to the su-
pervising foreman in place of engaging in union activi-
ties; (4) interrogation of employees about whether they
had signed union cards and about whether they had for-
warded them to the Union of their choice; and (5) state-
ments to employees that he would never recognize a
union.
I find that by Foreman Solomon's following activities
the Respondent violated Section 8(aX1) of the Act: (1)
statement to employees that they should summarize their
grievances and reduce them to writing; (2) request to the
employees to submit a written statement of their griev-
ances directly to management for consideration; (3) re-
quest to employees that they inquire as to the identity of
employees who favored the Union and to forward such
information to management; (4) invitation to employees
that they form their own bargaining committee to deal
with the Respondent in place of a labor organization of
their choice; (5) statement to employees that the owner
would close the plant and discharge all employees in re-
taliation for their union activities; and (6) call for a show
of hands by employees to ascertain how many of them
favored and how many did not favor adherence to the
Union.
As stated, the union election was scheduled for May 2.
At another meeting of all employees in the shop on Val-
entine's Day (the employee witnesses were not sure of
the exact date) Zager told everybody there would be a
new and improved health insurance plan to take effect
on April 1. The new plan in fact was put in effect then. I
fmd unconvincing Zager's assertion that this timely im-
provement to the employees' benefit—one of the im-
provements they had repeatedly asked for when the fore-
man kept inquiring just what it was that had driven them
towards the Union—was no more than implementation
of a decision reached by management before the union
activities started.
I think it true that the owner had voiced an interest,
before January 1980, in one day obtaining accident and
health insurance of some kind for his staff. Two inde-
pendent insurance brokers testified that in late November
or early December 1979 each of them separately talked
to Zager on the subject when the owner asked for infor-
mation as to types of policies, costs. They said they
asked him to forward them the necessary data about his
business so they could obtain suggested prices from vari-
ous insurance companies. I feel sure neither of these men,
strangers to this proceeding, would have lied as wit-
nesses. But they both also said they got no definitive re-
sponse from the Respondent about how to proceed with
actually obtaining the insurance until after the union ac-
tivity started. One of the brokers—Curry—said that on
December 6, when he gave Zager the necessary forms to
fill out with precise information about his employee
group, he expected them back within 3 days. But the
next thing that happened was that on January 20 he had
to write a letter to Zager—"as a memory jogger"—to
send the forms Zager was supposed to have forwarded
back in early December. This was exactly 2 days after
Zager met with his employees to tell them to stop their
union activities and, at his own solicitation, learned one
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the things their grievances was about was the very
lack of accident and health insurance. The other
broker—Giles--said he first received the necessary data
from Zager "approximately . . . between the 16th and
20th of January," although he had asked the owner for it
as far back as November. It will not do for the Respond-
ent's witnesses to say Zager was too busy because of the
Christmas holiday season to implement his intentions
sooner, and that therefore the Respondent must be
viewed as having later carried out an old, fixed decision
with no regard to the contemporaneous union activities.
The very significant timing, tying the grant of the new
benefit with the union activities and the Respondent's
overt reaction to stop them, compels another conclusion.
In any event, regardless of the fact the Company had
given some thought to the matter in 1979, it remains a
fact the decision to do so came after knowledge of the
union campaign, and after the expressions of resentment
about it voiced by the supervisors, and was therefore an
unfair labor practice in violation of Section 8(a)(1) of the
Act. I so find. Arrow Elastics Corp., 230 NLRB 110
(1977); Barnes & Noble, 237 NLRB 1246 (1978); Pedro's
Inc., 246 NLRB 567 (1979).
On June 12, 1980, the Respondent formally announced
to all employees it was granting them a 50-cent-per-hour
raise effective 9 days later, a 30-cent per hour raise effec-
tive August 18, and a 25-cent-per-hour raise effective on
November 24. This unprecedented largesse was extend-
ing while the question concerning representation was still
pending, for in the pending representation proceeding
the Union's objections to the May 2 election were being
investigated, as were the determinative pending chal-
lenges.
There is no contention that this raise—assuring $1.05
more per hour within 5 months—was no more than con-
tinuation of an established practice from the past. The
last across-the-board raises the Respondent had given
were in August of previous years and had never exceed-
ed 30 cents per hour. On its face this conduct by the Re-
spondent reveals a calculated intent to assure that if
there should ever be a second election—in the event the
Union's objections proved sufficient to set aside the re-
sults of the first, or for any other reason—the employees
would surely reject the Union. The managing agents had
inquired of the employees what grievances had led them
to the Union to start with; dissatisfaction with the wages
was a foremost complaint they voiced; and the Respond-
ent had promised to see what it could do to satisfy them.
This was it: More money in raises than they had ever re-
ceived. A clearer unfair labor practice could hardly be
proved.
In defense the Respondent contends it did this for eco-
nomic reasons, and not as an inducement for its employ-
ees to abandon the Union permanently. For a number of
reasons, I find the argument unpersuasive.
Zager testified that twice, before his raise announce-
ment, five employees had come to him with an "ultima-
tum," as he characterized their demand, that the employ-
ees be given a $1-per-hour raise within a 3-month period.
The word "ultimatum" was repeated into the record
page after page, either in the Respondent lawyer's ques-
tioning or by the company witnesses. Zager listed the
five employees by name. He offered a written statement
of demand that he said those five men handed him early
in June, which says they felt it "necessary to stress our
satisfaction [sic] with the present benefits." It has no sig-
natures, and although four of those men were still in the
Company's employ at the time of the hearing not one
was called to support Zager's testimony. An employee
who makes such an extreme demand on his employer
and is so quickly obliged, is not likely to refuse to stand
by him later or to refuse to corroborate the boss' story, if
in truth things had happened as he later related. Absent
any supporting testimony, absent any signatures on that
document, and in the light of Zager's very unpersuasive
testimony in many other respects on this record, I cannot
accept as credible -his story that he really received that
written demand from the employees, as he said.
There is much more that casts a doubt on the owner's
defense on this particular part of the case. His business
was in great financial difficulty. Between April 1979 and
April 1980 its backlog of orders dropped from $143,000
to $52,000. Early in April 1980 a payment check from
one customer—for $36,000—bounced and was never
paid. All production for that major customer was discon-
tinued for several months. On April 11 the Respondent
permanently discharged nine employees because the
volume of business had so declined. Zager also testified
his competitors in the kitchen parts business were suffer-
ing as much as he was in the decline of this business gen-
erally in his area. These facts notwithstanding, Zager
said he granted the raises just at that time for fear of
losing employees he needed.
There is no way of reconciling such general defense
talk with the relevant facts. Zager even said that his
competitors "had severe layoffs during the month of
April." For an employer to say that during the very
period he is laying off his people because his volume of
business is in drastic decline, and while competitors are
suffering the same loss of business and discharging their
own people for the same reason, he gave an extraordi-
nary raise to his employees for fear of losing them to his
competitors, discredits the witness completely.
I find that the reason the Respondent gave these raises
in June 1980 was to kill off any remaining prounion sen-
timent among his employees and thereby violated Sec-
tion 8(a)(1) of the Act. NLRB v. Exchange Parts Co., 375
U.S. 405 (1964).
C. Violations of Section 8(a)(5)
The demand for recognition, followed by refusal on
the part of the Respondent, occurred on February 4 and
6, 1980. 2 As to 34 employees, listed in an exhibit-re-
1 Zager's prehearing affidavit contains the following statement:
[O]ther kitchen companies m our industry, who are also being
taxed by the severe budding recession, and who were having layoffs
during the first months of 1980, almost all of the other local kitchen
companies m our area experienced layoffs, termination of sifts and
personnel cutbacks, including Quaker Maid, Pioneer, Ridgecraft,
Ridgecroft and Ridgemaid . . . One other local kitchen company,
Rutt, began working shorter workweeks than they had in the past in
addition to having some full week plant closings.
2 There is no dispute as to the appropriate bargaining unit. Its descrip-
tion reads as follows: All production and maintenance employees and
Continued
CRAFT MAID KITCHENS

1051
ceived in evidence, the parties stipulated that during the
period February 4 through 6 all these 34 were in fact at
work. Of these 34 employees, 4 are in dispute: Solomon,
whom the General Counsel would exchide as a supervi-
sor, and Badinger, Luz, and Roman, whom the Respond-
ent would exclude as students. This means the other 30
employees named in the exhibit are to be counted in
whithout question.
There then came a further stipulation that Diane Pie-
trowski is also to be included. In addition to the 35 per-
sons thus far named, the General Counsel would also in-
clude a lady named K. Orischak, an employee who at
the time was home having a baby.
Of all the 36 employees thus far named, 21 had signed
union authorization cards before February 6, the day of
demand and refusal.
1. Solomon was a supervisor and therefore is excluded
from the unit count. This reduces the possible 100-per-
cent total to 35.
2. Badinger, Luz, and Roman were what is called Vo-
Tech students; they attended a vocational school and
part of their program was to work regularly at a com-
mercial establishment like this, acquiring skill in one craft
or another. Occasionally a school officer would come to
the plant to check on their attendance and make sure
they were really working and advancing in their train-
ing. They worked regular part-time schedules. A number
of such students in the past had remained and become
regular full timers with this Company. I find no merit in
the Respondent's contention that these three employees
should be excluded from the unit count on the ground
that they were casuals and/or did not have a sufficient
community of interest with the full-time employees.
Hearst Corp., 221 NLRB 324 (1975).
Badinger and Luz started work in September 1979 and
Roman in August of that year. Throughout their em-
ployment they worked a regular schedule-3 hours a
day 5 days a week. They did exactly the same kind of
work as the full-timers—Roman cutting parts and assem-
bling doors, and the other two assembling cabinets like
others in their department. All three punched the time-
clock, got the same hourly rate of pay as others doing
like work and, of course, were supervised by the same
management agents. Although these part-timers, unlike
the rest, did not enjoy hospitalization or vacations as
fringe benefits, in all other respects their working condi-
tions paralleled exactly those of the rest of the bargain-
ing unit employees. The only difference between them
and the rest was that they worked part time and the
others worked 40 hours a week—not enough to exclude
them from the bargaining unit. Ed Chandler Ford, 254
NLRB 851 (1981).
With this, the overall unit count at a maximum re-
mains at 35.
3. On this question of the totality of the unit there
would now normally arise the issue as to K. Orischak,
who was not at work during February because of having
a child. It is unnecessary to decide whether she should
truckdrivers employed at the Employer's 9th and Cotton Street, Reading,
Pennsylvania, facility, excluding all office clerical employees, guards and
supervisors as defined in the Act.
or should not be included. Assuming her exclusion, the
total would be 34. If a majority of that number had ap-
propriately authorized the Union to bargain on their
behalf before February 6, her proper placement becomes
mooted. She signed a union card on January 16. Exclud-
ing her card, for the moment, there are to be considered
20 cards in a unit of 34.
The employees signed identical authorization cards,
which read as follows:
I hereby authorize the United Brotherhood of Car-
penters and Joiners of America to act as my collec-
tive bargaining agent in dealing with my employer
in regard to wages, hours and other conditions of
employment. All previous authorizations made by
me are revoked.
As to the 20 cards to be considered now, 7 were au-
thenticated by the individual signer himself as a witness
with respect to his signature: Davidheiser, Epler, Knarr,
Gallo, Peterson, Kowalski, and Dennis. As to five
others, employee Davidheiser, a solicitor, testified direct-
ly that he personally saw the employees in question sign
the cards in his presence. These were: Sweimler, Walter,
Corey, Jenkes, and Roman. Davidheiser also testified
that eight other employees handed him regularly signed
cards, that he personally knew each of those employees,
and that he received the cards in hand from them on the
dates appearing on the cards. These were: Luz, Pie-
trowsld, Carter, Badinger, Koch, Peterson, Haas, and
Eyer.
4. I find no merit in the Respondent's argument that
the last eight cards listed above may not be used in this
proceeding in support of the majority status allegation of
the complaint. It is enough that the witness who testified
received the cards directly from the employees involved,
and that the cards were in fact signed and dated when he
received them. He was a principal solicitor, and it is a
fact all the union activity was being carried on at pre-
cisely that time. See Mureek Mfg. Corp., 231 NLRB 623
(1977). Moreover, considering the entire record, I have
no reason not to believe the witness Davidheiser.
5. Two of the cards are completely filled out in the
handwriting of the employee but are undated. Gallo tes-
tified that he received the card from a solicitor at the
gate outside the plant, that although he forgot to put the
date when he signed it he did recall signing it about a
month before he was fired, which occurred on February
8, 1980, and that he handed the card to Davidheiser for
forwarding to the Union 3 or 4 days after signing it.
Knarr's card is also undated. He testified he signed it in
the second week of January, and that he personally took
it to the Union's office "the day after they handbilled
us." There is no question but that both of these employ-
ees did personally sign a clear authorization card; each is
stamped on its back as having been received in the
Board's Regional Office on February 14. Again, I have
no reason for rejecting their sworn testimony that they
in fact signed these cards as they recalled during January
1980. I think the General Counsel correctly states that
the absence of dates on cards does not affect their validi-
ty where the signatory testified as to the approximate
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
date. See J. P. Stevens Co., 244 NLRB 407 (1979), and
Skyline Transport, 228 NLRB 352 (1977).
6. A fmal attack on the validity of the cards, as to
some at least, is that the signers did not really mean to
authorize the Union to bargain for them despite the un-
equivocal language of the cards. Here the reality starts
with the fact all these employee speak and read English;
they certainly read what they were signing. Even em-
ployee Dennis, who, testifying for the Respondent,
called herself a "fool" for having signed the card, but
who did fill it out in full in her own handwriting, fmally
admitted she did read it before adding her signature.
Still, as the Board has held, there could be situations
where the employee was really led to believe the card,
contrary to its language, would in no event be used for
immediate representation purposes. The idea started with
Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd.
351 F.2d 917 (6th Cir. 1965), holding that except for
where the employee is told "the only purpose of the
card" (emphases added) is something other than the pur-
pose stated on its face—authorization to bargain—signed
cards must be accepted as valid. The rule was never
changed. Levi Strauss & Co., 172 NLRB 732 (1968). And
it was reaffirmed by the Supreme Court in NLRB v.
Gissel Packing Co., 395 U.S. 575, 584 1969). "Under the
Cumberland Shoe doctrine, if the card itself is unambig-
uous (i.e., states on its face that the signer authorizes the
union to represent the employee for collective bargaining
purposes and not to seek an election), it will be counted
unless it is proved that the employee was told that the
card was to be used solely for the purpose of obtaining an
election."
In the case at bar, such evidence, that the sole purpose
of the card was something other than representation, has
not been satisfactorily shown with respect to any of the
20 cards signed by the employees listed above. At times,
there was talk of an election; there always is, in any or-
ganizational campaign, for there is always the possibility
either of failure to obtain more than 50 percent of the
signatures, or of refusal by the employer to recognize a
majority representative. Davidheiser, a leading solicitor,
testifying more than a year after the events, did not
recall his exact solicitation conversations back in January
1980. His prehearing affidavit does contain the following
statement: "I gave cards to three workers. Deborah
Eyer, Wayne Badinger and Linda Jenckes. I told all
three of them that we were trying to get a majority of
the workers to support the Union and then we would
have an election. All of those said that they supported
the Union."
In arguing that such a statement invalidates authoriza-
tion cards in this proceeding, the Respondent distorts the
meaning of the words. The one concept that is lacking—
that the signing of cards was only for the purpose of
holding an election, has absolutely not been proved.
Even assuming this solicitor's affidavit more accurately
reflects the talking that went on then than the oral testi-
mony at the hearing, it does not suffice to invalidate any
of the cards he obtained. As the Supreme Court also said
in Gissel, employees "are bound by the clear language of
what they sign unless that language is deliberately and
clearly cancelled by a union adherent with words calcu-
lated to diret the signer to disregard and forget the lan-
guage above his signature. There is nothing inconsistent
in handing an employee a card that says the signer au-
thorizes the Union to represent him and then telling him
that the card will probably be used first to get an elec-
tion." Id. at 606, 607.
It would pointlessly burden this report, and add to de-
feating the purpose of the statute by further prolonging
this already protracted proceeding, to talk about the con-
tinuing references through out the record concerning
election talk. The critical concept remains "solely." Was
anybody led to believe that a union card was to be used
solely for an election? Such not having been proved
here, I find all 20 of the cards valid now.
At the hearing the Respondent stressed the testimony
of Marie Dennis, who testified that when an employee
named George, a "friend" of hers, offered her a card to
sign he told her, after speaking in favor of the Union, "I
had to sign the card if I wanted the Union or not." This
was the second card Dennis had been asked to sign; the
first, 2 weeks earlier, she had given to Foreman Solomon
at the foreman's request. After first saying she did not
read what was written on the card, the witness fmally
admitted she did read it all, indeed that she filled it out
entirely in her own hand. Moreover, she kept it for 2
weeks before mailing it in to the Union's office. Dennis
was not a very credible witness and I cannot believe she
signed against her will. She knew what she was agreeing
to after holding the card for so long, and certainly she
had no notion the card would be used for any purpose
other than immediate representation. I think her card is a
good one also. But even if it were ignored, the majority
status of the Union as of February 6 would still be
proved-19 cards out of a total of 34.
I find that the Union in fact represented a majority of
the employees in the bargaining unit, and that by refus-
ing to bargain with the Union on and after February 6,
1980, the Respondent has violated, and is violating, Sec-
tion 8(a)(5) of the Act.
A precise allegation in the complaint is what when
Foreman Solomon suspended employee Knarr on March
28, 1980, for 1 day, the suspension constituted a violation
of Section 8(a)(3)—discrimination motivated by antiunion
animus. I find the total evidence touching on this inci-
dent insufficient to prove affirmatively the unfair labor
practice said to have been committed.
Knarr was but one of many outspoken unioneers; al-
though he detailed his activities outside the plant, there
is no evidentiary support for the General Counsel's con-
tention that management had reason to believe he was
more active than anyone else. Whatever antiunion state-
ments were voiced by Solomon and Zager were as well
spoken to, and in the presence of, practically all the em-
ployees. The foreman was in an angry mood that day
and started by fmding fault with another employee, Pe-
terson. He then got into an argument with Knarr, accus-
ing him of drifting away from his work station and wast-
ing paid time. As the employee kept contradicting the
foreman's listing of offenses, Solomon asked was Knarr
calling him a liar. As a witness Solomon said flatly
Knarr called him a liar; he was paraphrasing, for he
CRAFT MAID KITCHENS 1053
could well view such continuous contradictions of his
statements at the moment as the equivalent of calling him
a liar. But there is also an element of doubt in the em-
ployee's position respecting this flareup. Although deny-
ing having committed those particular offenses, Knarr
did admit he had been criticized before that day by Solo-
mon for offenses of one kind or another. From the tran-
script:
Q. Is it your testimony that before that day, Solo-
mon had never criticized you for being too late
here or there, talking when you weren't suppose to,
he had never criticized you?
THE WITNESS: Oh, he had talked to me about it,
yes . . . . The whole time I was working there a
few times.
The burden of proof on the General Counsel is an af-
firmative one. General animosity in an employer against
a union movement as an overall picture, however clear,
does not mean any single act of criticism, or light disci-
plinary action, must be presumed to have been illegally
motivated. Solomon was acting as the boss and, in this
instance, I think it can be said ICnarr did give him "lip,"
as the owner phrased it in his testimony. How insubordi-
nate, tough, may an employee be, and still hide behind
the cloak of his union activity? I can make no findings of
illegality in this man's 1-day suspension.
Finally, there is also a complaint allegation that in
"late March" 1980 the Company announced a new job
classification with increases in pay for selected employ-
ees, again as an inducement to abandon the Union. In her
brief, the General Counsel makes clear this meant a posi-
tion called "utility person." Three or four employees
were put into such a job during the first few months of
the year, with raises in each instance of 20 cents or 25
cents per hour. It is true that more money in wages was
one of the complaints the employees repeatedly voiced
when asked by management to air their grievances; it is
true that the Respondent was opposed to their current
union activities and resorted to a number of unfair labor
practices to curb them; it is true that granting raises at
such a critical time creates an air of suspicion. Neverthe-
less, I do not think the record as a whole warrants a
finding in favor of this particular complaint allegation.
Peterson, the main General Counsel's witness on this
subject, started by saying that at a meeting of employees
on January 9, Zager spoke at length about creating a
new department to improve the production process and
that he, Peterson, became a utility person that day, with
a raise then and there. But this was a week before any
union activity started. One other clear fact that emerges
from Peterson's testimony—as he progressed he became
more and more confused as to just when things hap-
pened—is that the utility person job carried greater re-
sponsibility than that of the ordinary workman. A few
weeks later two others were made utility persons—Lory
Mountz and Dean Siegel. Peterson said that when this
happened Moutz "took more responsibility in the finish
department . . . employees in the finish department in-
stead of running to the group leader for problems or
questions, they went to her. Take some of the work off
the group leaders . . . ." As to Siegel, Peterson said he
had "the same job, and a little bit more. He took on re-
sponsibility of that department . . . Instead of going to
the group leader you went to the utility person first, to
solve your problems."
Zager talked at length about his reasons for creating
this new job title, explaining how it was necessary to be-
prove production and not really conceived to combat the
Union. There is one more significant fact emerging from
Peterson's testimony that cannot be ignored. After being
a utility person for 1 week, he was removed from the job
and someone else put in his place there because, as he
admitted, he was not capable of performing the added
duties. And when he lost the job he also lost the raise he
had been given.
Suspicion apart, I can make no finding of illegality on
this business of small raises to a few employees in return
for added work responsibility.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
THE REMEDY
The Respondent must be ordered to cease and desist
from again committing any of the many unfair labor
practices here found. More important, affirmatively, it
must be ordered to bargain with the Union on request.
After threatening to close the plant and to discharge the
employees unless they stop their union activity, after in-
viting them to list their grievances for the Company's
consideration, after urging them to form a committee of
their own to look after their interests and abandon the
Union, and after granting all of them more an immediate
raise that even the owner of the business said they asked
for, the Respondent will certainly only continue to enjoy
the benefits of its unfair labor practices if a new election
were attempted. As the Supreme Court said in NLRB v.
Gissel Packing Co., 395 U.S. 575: "Some unfair labor
practices are of such a nature that their coercive effects
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be had." Having been given, and even today con-
tinuing to receive, all the money they asked for, why
should the employees vote for the Union as they origi-
nally intended? Only to pay, as the owner told them
more than once, dues or other costs? This is precisely the
situation of which the Supreme Court spoke in Gissel.
See also Idaho Candy Co., 218 NLRB 352 (1975).
CONCLUSIONS OF LAW
1. By the following conduct the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act:
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Promising to obtain health and accident insurance
benefits for employees in return for their abandonment of
the union movement.
(b) Promising to hold monthly meetings with employ-
ees to consider their grievances as a technique for induc-
ing abandonment of the Union.
(c) Requesting employees to bring their grievances di-
rectly to members of management in place of a labor or-
ganization.
(d) Interrogating employees as to whether they had
signed union cards and as to whether they had forward-
ed them to the labor organization.
(e) Asking employees to summarize their grievances in
writing for consideration by management.
(f) Inviting employees to submit written statements of
grievances directly to management.
(g) Asking employees to inquire as to the identity of
employees who favored the Union and to forward such
information to management.
(h) Inviting employees to form their own bargaining
committee to deal with management in place of any
labor organization.
(i) Telling employees that the Company would close
the plant and discharge all employees in retaliation for
the union activity.
(j) Polling employees by calling for a show of hands to
ascertain how many were willing to abandon the Union
at the Employer's request.
(k) In fact granting unprecedented health and accident
insurance benefits as an inducement for employeees to
abandon their Union.
(1) Granting increases in pay as inducement for em-
ployees to discontinue their union activities.
(m) Threatening to close its plant and to discharge em-
ployees in retaliation for their union activities.
2. All production and maintenance employees and
truckdrivers employed at the Employer's Reading, Penn-
sylvania facility, excluding all office clerical employees,
guards and supervisors as defmed in the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
3. Since February 6, 1980, the Union has been the duly
designated representative of a majority of the employees
in the collective-bargaining unit described above.
4. By refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its employees in the above-described unit, Re-
spondent, since February 6, 1980, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]