Crest Chemical Co.

National Labor Relations Board - Board Decisions

Oct 8, 1974

213 N.L.R.B. 885 (N.L.R.B. 1974)

CREST CHEMICAL COMPANY
Crest Chemical Company and Textile Workers Union
of America , AFL-CIO. Case 1-CA-9062
October 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 29, 1973, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith.
We find, contrary to the Administrative Law Judge,
that Rena B. St. Germain was not a supervisor, as
defined in the Act, at the time of her discharge, and
that the Respondent discriminatorily discharged her
forjoining or assisting the Union, in violation of Sec-
tion 8(a)(3) and (1) of the Act, as alleged in the com-
plaint. We shall first consider St. Germain's
supervisory status.
The Supervisory Status of Rena B. St. Germain
In October 1971, St. Germain commenced working
for the Respondent as a racker at $1.85 an hour. In
January or February 1972, she became an inspector
and in April or May 1972, she received an increase of
15 cents an hour. In December 1972, having assumed
the added responsibility of invoicing shipments, she
requested and received an increase in pay to $2.25 an
hour. In February 1973, she was made shipper in
charge of shipping and inspection at a salary of $145
a week. As shipper, her invoicing work consisted of
recording weights and quantities of shipping items
and handing invoices to the truckdrivers. She also
directed the work of the shipping employees, includ-
ing two inspectors, two truckdrivers, and a helper.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and find
no basis for reversing his findings
885
St. Germain was under the supervision of Maurice
Cardinal, the Respondent's general superintendent,
who together with St. Germain determined what had
to be shipped out of the shipping department on any
given day. Cardinal took care of special shipments,
while St. Germain took care of normal shipments.
Cardinal was in the shipping area about 70 percent of
the working day, and at such times would coordinate
the shipping work with the Respondent's other opera-
tions. St. Germain, described by the Administrative
Law Judge as a generally credible witness, testified
that she assigned work only on orders from Cardinal.
The assignments appear to have been highly routine,
as evidenced by the testimony of Helen Isabelle, one
of the two inspectors, that she understood her racking
and inspection job some 4 months before St.
Germain's latest promotion, that learning what was
expected of her in that job took no more than 2 weeks,
and that "If I didn't know by then, I wasn't fit for the
job."
In support of his conclusion that St. Germain was
a supervisor, as defined in the Act, the Administrative
Law Judge made the following findings of fact: (a) St.
Germain transferred employees from one department
to another in order to assist in handling the overall
workload at the plant; (b) she effectively recommend-
ed at least one raise for an employee; (c) she occasion-
ally granted time off to certain employees; (d) when
she was dissatisfied with the work of the inspectors
she ordered their job redone; (e) Bukata and Isabelle,
the two inspectors, considered her their supervisor;
and (f) St. Germain was placed on salary and her pay
was raised from $90 to $145 a week, exclusive of over-
time. As to (a), the record indicates that St. Germain
only sporadically and routinely assigned the two in-
spectors to other work only when shipping work was
slack,' and that Bukata, one of the inspectors, could
not remember the last two times when she was trans-
ferred. As to (b), one of St. Germain's two recom-
mended raises was denied and Cardinal's approval of
the other, a 10-cent-an-hour raise to Leonard Kelvey,
resulted, at least in part, from, his own independent
judgment.' As to (c), on the only two occasions testi-
2 Chairman Miller disagrees with this characterization of St. Germain's
powers of assignment , notwithstanding clear evidence that the transfers were
temporary and irregular and occurred only when the employees involved
were needed elsewhere and were not otherwise occupied. In this regard, the
Board , in J C Penney Company, Inc, 193 NLRB 684 , 685 (1971 ), agreed
with the Administrative Law Judge therein that the assignment of employees
to other departments to meet variations in customer demands does not
establish the power effectively to assign , within the meaning of the statutory
definition of a supervisor
7 The Chairman would find that St Germain possesses the power of effec-
tive recommendation because of the fact that on one occasion , when her
recommendation was adopted, she "exercised the independence of Judgment
behind the recommendation and that such recommendation was clearly
effective " In so doing, he ignores the fact that on another occasion, when
presumably she likewise "exercised the independence of Judgment behind the
Continued
213 NLRB No. 118
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fied to, where early leave was requested by inspector of law in that regard.
Isabelle, it appears that St. Germain told Isabelle she
would first ask Cardinal, and that Isabelle would have
left early anyway, regardless of St. Germain's re-
sponse. As to (d), in the instant circumstances, and
absent specific evidence in that regard, we accord the
finding little weight as indicia of supervisory authori-
ty.4 As to (e), we also accord little weight to the find-
ing, in view of Isabelle's foregoing testimony that it
took only 2 weeks to learn what was expected of her
and in further view of truckdriver Nixon's contradic-
tory testimony that he did not consider St. Germain
his supervisor and that whenever he sought a raise in
pay or had problems with his work, he would see
Cardinal rather than St. Germain. As to (f), the Ad-
ministrative Law Judge's reliance on the fact that in
February 1973, when she went on salary, St.
Germain's pay suddenly jumped from $90 to $145 a
week "exclusive of overtime" is in our opinion mis-
placed. As we view the matter, he should have includ-
ed overtime pay in the comparison, inasmuch as she
was engaged in substantial overtime work both before
and after the achievement of her salaried status. On
such a basis, her salaried pay was barely $13 a week
more than her total pay immediately before she be-
came salaried, an increase which, in the instant cir-
cumstances, we attribute to her apparently greater
experience, skills, and ability.'
In these circumstances, we find that Rena B. St.
Germain, as a leadperson who routinely relayed in-
structions from her supervisor to the employees she
directed and who lacked the other customary indicia
of supervisory authority to any substantial degree,
was not a supervisor, as defined in the Act,6 at the
time of her discharge, and that she therefore was then,
and is now, entitled to the protection of the Act. Ac-
cordingly, and absent the Administrative Law Judge's
consideration of record evidence relative to St.
Germain's alleged discriminatory discharge, we here-
inbelow set forth our findings of fact and conclusions
recommendation ," her recommendation was rejected and was therefore just
as clearly ineffective . This rejection, together with the uncontroverted testi-
mony of General Superintendent Cardinal that from his own personal obser-
vation he knew that the employee who received the recommended raise was
an excellent worker, "whatever department he worked in," clearly indicates
(1) that St. Germain 's recommendations were at all times subject to indepen-
dent investigation , and (2) that, as we have indicated above, the recommen-
dation that was adopted was based , at least in part , on independent
evaluation . Diana Shops of Washington State, Inc., 170 NLRB 698 (1968).
The Chairman appears to contend that the power to order the redoing
of defective work constitutes , per se, the exercise of independent judgment
sufficient to confer supervisory status . This contention was rejected in Martin
Aircraft Tool Company, 115 NLRB 324, 325 (1956). Mid-State Fruit, Inc., 186
NLRB 51 (1970). Janesville Auto Transport Company, 193 NLRB 874, 875
(1971).
3 The Singer Company, 170 NLRB 1393 (1968 ); American Coach Company,
169 NLRB 1065 (1968).
6 Reeves-Weideman Company, 203 NLRB 850 (1973); Weyerhaeuser Com-
pany, 173 NLRB 1170, 1173 ( 1968).
The Discharge of St. Germain
St. Germain started working for the Respondent on
October 28, 1971. Just before commencing work on
April 9, 1973, she signed a union authorization card.
At or about 3 p.m. that same afternoon, Nixon told
Berman, the Respondent's president, that she had
signed the card.? Between 3 and 5 p.m., Cardinal dis-
charged her. The Respondent contends that St. Ger-
main was discharged because of an alleged invoicing
error, discovered on the morning of the discharge,
which was the latest in a series of alleged billing mis-
takes. The General Counsel contends that the reason
assigned by the Respondent for her discharge is pre-
textual, and that the real reason lies in the
Respondent's attempt thereby to discourage union
membership, in violation of Section 8(a)(3) of the Act.
In support of the Respondent's position, Cardinal
testified that on the morning of April 9, while he was
at Metalart, a customer of the Respondent, he noticed
that several cartons of W-17 western belt buckles,
belonging to an order processed by the Respondent,
had apparently been returned to Metalart without a
job ticket or other identifying papers, which were St.
Germain's responsibility. Cardinal did not, however,
speak to anyone at Metalart about his discovery, but
instead returned to the Respondent's plant and spent
the rest of April 9 attempting to trace the shipping
papers and adjust the matter with Metalart, accusing
St. Germain of having made the alleged error,`dis-
charging her therefor, and holding a postdischarge
interview with Samuel Berman, the Respondent's
president. In the discharge interview, he told St. Ger-
main that he was discharging her for her continual
mistakes in billing and, in particular, for the above-
described mistake which, he claimed, cost the Re-
spondent $400. According to Cardinal, St. Germain
had previously made some 15 billing errors, but he
conceded that he had never warned her in that regard
because they were only "minor details" and had oc-
curred during her period of training. In the postdis-
charge interview, Berman testified that he was
"shocked" at her discharge because he and St. Ger-
main were very close-closer even than he was to
Cardinal-and because she was his "eyes and ears" at
the plant. Not having been precisely briefed, however,
by Cardinal as to her latest alleged mistake, he could
not describe it in detail, beyond testifying that, ac-
cording to Cardinal, it would cost the Respondent
$400 and that it involved an unspecified failure to fill
out an invoice properly. For the same reason, he was
unable to specify St. Germain's previous alleged mis-
7 Based on Nixon's credited testimony.
CREST CHEMICAL COMPANY
takes, as to which he admitted having only a "passing
knowledge," and he was unable to pinpoint their oc-
currence within weeks or even months. Notwithstand-
ing his expressions of esteem for St. Germain,
however, he accepted her discharge without protest.
In support of the General Counsel's position, St.
Germain testified that she had never previously been
warned about mistakes and could not remember hav-
ing made any, and that in an interview with Berman
some 10 minutes after her discharge interview, Ber-
man admitted that he had no complaints as to her
work, but that they "just want you out of here." She
had no idea as to how the latest alleged mistake had
occurred and testified that Cardinal did not discuss it
with her, other than to say that there was an error.
Gloria Racicot testified that, while engaged in invoic-
ing work for the Respondent, she made several mis-
takes involving figure transpositions on job ticket
numbers, for which Cardinal did not discharge her
but merely transferred her into another department.
Philip Brown, the senior vice president of Metalart,
testified that Metalart's standard procedure is for its
receiving clerks to check the items and finish on in-
coming shipments and, if satisfied with the correct-
ness of a shipment, to place a check mark against each
item listed on the packing slip and sign the slip. As to
the alleged partial adjustment, in which Metalart, ac-
cording to Cardinal, on April 10 allowed the Respon-
dent credit for 11 gross out of 50 gross claimed to have
been in the order, Brown testified, to the contrary,
that Metalart's standard procedure in such a case
would be to insist on the forwarding of an invoice for
the adjustable amount, and that nobody at Metalart
was authorized to pay the amount of any adjustment,
absent evidence of the receipt of the items subject to
adjustment. Both Brown and Helen Scentelli, a Meta-
lart supervisor, testified, contrary to Cardinal, that
companies other than the Respondent also plated
W-17 western belt buckles for Metalart, and Scentelli
denied that she had ever ordered 50 gross of these belt
buckles for plating, inasmuch as she was authorized
to place no more than 10 gross in any given order.
In the above circumstances, and in view of the clear
evidence of union animus shown in the several in-
stances of interrogation, threats, solicitation, and sur-
veillance, and the creation of impressions of
surveillance, herein found violative of Section 8(a)(1)
of the Act; St. Germain's achievement of salaried sta-
tus and a raise in pay only 3 months before her dis-
charge; the Respondent's evident haste in discharging
St. Germain immediately after learning of her organi-
zational activities; its admission of the innocuous
character of her past alleged mistakes and of its fail-
ure to warn her in that regard; its alleged discovery of
her alleged mistake immediately before her discharge;
887
the fact that another employee was not discharged,
but merely transferred, for making mistakes similar to
the one alleged; and the above-described testimony of
the two Metalart witnesses which, by casting doubt on
Cardinal's version of both the uninvoiced belt buckle
order and the adjustment thereof, all persuade us that
the Respondent seized on the alleged error as a pre-
text to rid itself of a known union adherent. Accord-
ingly, we find that St. Germain was discharged for her
union activities, and that the Respondent thereby vio-
lated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
Consistent with our findings herein, we shall add
the following paragraph 3 to the Administrative Law
Judge's Conclusions of Law and renumber the subse-
quent paragraphs as "4" and "5," respectively:
"3. By discharging Rena B. St. Germain and there-
after failing or refusing to reinstate her, in order to
discourage union activities, Respondent has discrimi-
nated in regard to hire and tenure of her employment,
in violation of Section 8(a)(3) and (1) of the Act."
THE REMEDY
Having found that Respondent has engaged in cer-
tain additional unfair labor practices, we shall order
that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the
purposes and policies of the Act, in addition to that
already set forth in The Remedy section of the Ad-
ministrative Law Judge's Decision.
In addition to our adoption of the Administrative
Law Judge's recommended remedy in all other re-
spects, we shall order Respondent to offer Rena B. St.
Germain immediate and full reinstatement to her for-
mer job or, if such job no longer exists, to a substan-
tially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her
whole for any loss of earnings she may have suffered
from the date of her discharge to the date of the
Respondent's offer of reinstatement. Backpay shall be
computed in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon computed in the manner and
amount prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as herein
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified, and hereby orders that Crest Chemical
Company, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following as paragraph 1(e), renum-
bering the present paragraph as "(f)":
"Offer Rena B. St. Germain immediate and full
reinstatement to her job or, if that job no longer exists,
to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and
make her whole for any loss of pay she may have
suffered as a result of her discharge in the manner set
forth in the section of this Decision entitled "The
Remedy," with interest at 6 percent per annum."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MILLER , dissenting in part:
I dissent from the majority's unwarranted reversal
of the finding by the Administrative Law Judge that
Rena B. St. Germain is a supervisor and consequently
not entitled to protection under the Act. The findings
by the Administrative Law Judge that St. Germain
possessed supervisory indicia are amply supported by
the record.
How the majority can dismiss the finding below
that St. Germain had the authority to transfer em-
ployees from her department to others on grounds
that she actually did so only "sporadically and rou-
tinely" is beyond understanding, in the light of cred-
ited testimony by Supervisor Martelucci that St.
Germain transferred her shipping employees to the
racking department three to four times a week; by
Martelucci that upon request of St. Germain he trans-
ferred employees to the shipping department; by In-
spector Bukata that St. Germain transferred her to the
polishing department once or twice a week; and by
Inspector Isabelle that about once every other week
St. Germain assigned her to the racking department.
The majority's finding that Cardinal aproved a 10-
cent raise for employee Leonard Kelvey "at least in
part, from his own independent judgment" hardly dis-
poses of the Administrative Law Judge's finding that
St. Germain recommended the raise and that on her
recommendation it was granted. Whatever the major-
ity means by "in part," there is no question but that
St. Germain exercised the independence of judgment
behind the recommendation and that such recom-
mendation was clearly effective. This instance illus-
trates that St. Germain was invested with the
authority of effectively recommending wage increas-
es, which by itself is sufficient under the Act to make
her a supervisor.
Inspector Bukata's uncontradicted, credited testi-
mony that when St. Germain was dissatisfied with
inspector's work she ordered them to redo it is hardly
overcome by the majority's assertion that there was
"no specific evidence in that regard." The effect of
Bukata's testimony is not that St. Germain ordered
rework once or twice, but that she told the inspectors
when to reinspect on a continuous basis. Cardinal
testified that St. Germain was responsible for product
quality. Inspector Isabelle testified that St. Germain
instructed them as to what to look for, such as blisters
and plating problems with the plated buckles. Presi-
dent Berman testified that the inspectors were "an-
swerable" to her. Isabelle testified that St. Germain
had trained both of the inspectors on their present
jobs. This evidence requires the conclusion that St.
Germain not only directed the inspectors in their
work but that she did so responsibly and with the
exercise of independent judgment.
Unlike the majority, I would place weight on testi-
mony by Bukata and Isabelle that they considered St.
Germain their supervisor in the light of their further
testimony that she is in charge of the shipping depart-
ment, that many times during the day she directs them
to perform particular jobs, that she assigned priority
to certain jobs based on information received from
customers on the telephone, and that Cardinal in-
formed Bukata that St. Germain was her supervisor.
The majority dismisses a finding that placing St.
Germain on salary corroborated Respondent's testi-
mony that she was made a supervisor at such point on
grounds that she did not enjoy a substantial increase,
and that the difference of "barely more than $13 per
week" was attributable to "apparently greater experi-
ence, skills and ability." I would agree with the Ad-
ministrative Law Judge's finding that the difference
was substantial. Before her salary increase to $145 the
record shows that she averaged only about $100 per
week, including overtime. An increase averaging $45
per week is not insubstantial, in my view.' Further-
more, when St. Germain went on salary she no longer
had to punch a timeclock and she attended and par-
ticipated in informal afterwork meetings with other
supervisors, as found by the Administrative Law
Judge. These factors, while not conclusive, neverthe-
less are corroborative of the Administrative Law
Judge's conclusion that St. Germain had been clothed
by Respondent with supervisory status.
The majority ignores the Administrative Law
Judge's finding that one of St. Germain's predecessors
in charge of inspection and shipping, Norman Wel-
don, was clearly a supervisor with authority to hire
and fire and recommend raises. Although the Admin-
istrative Law Judge viewed the status of Bellini, St.
B The majority arrives at the $13-a-week increase figure by relying on her
maximum earnings in any week prior to the promotion-which is not, in my
opinion, a fair or valid comparison.
CREST CHEMICAL COMPANY
Germain's immediate predecessor, as unclear, em-
ployee Racicot testified that Bellini was "over her"
and informed her of her mistakes. Martelucci testified
that Bellini was in charge of the shipping department
before St. Germain. In my view, the evidence supports
a finding that the head of the shipping department,
whether Weldon, Bellini , or St. Germain, was invested
with supervisory authority by Respondent in line with
its evident practice of placing a supervisor in charge
of each department. Furthermore, there is no evi-
dence that the job had changed since the tenure of
Weldon who was unquestionably a supervisor.
For the above reasons, I would adopt the finding of
the Administrative Law Judge that St. Germain was
a supervisor and thus not entitled to protection under
the Act; consequently, I would find no violation of
the Act in her discharge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit our employees to withdraw
from membership in the Textile Workers Union
of America, AFL-CIO, or from any other labor
organization.
WE WILL NOT coercively, or otherwise unlawful-
ly, interrogate our employees as to their union
activities, or the union activities of the other em-
ployees.
WE WILL NOT threaten our employees with loss
of pay or closing of the plant if a majority be-
come members of, or assist, a labor organization.
WE WILL NOT engage in surveillance, or give the
impression that we are engaging in surveillance,
of our employees' organizational activities.
WE WILL NOT discourage membership in Textile
Workers Union of America, AFL-CIO, or in any
other labor organization, by discharging any of
our employees or in any other manner discrimi-
nating against them with respect to their hire or
tenure of employment or any term or condition
of employment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, or engage in concerted activ-
ities for the purpose of collective bargaining or
other mutual aid, or to refrain from any or all
889
such activities.
WE WILL offer Rena B. St. Germain immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges, and WE WILL make her
whole for any loss of pay she may have suffered
as a result of her discharge, with interest at 6
percent per annum.
CREST CHEMICAL COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor-Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on August 20, 21, and 22, 1973, in Providence,
Rhode Island, pursuant to a charge duly filed and served,'
and a complaint issued on June 29, 1973. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended . In its answer , duly filed , the Respondent con-
ceded certain facts with respect to its business operations,
but it denied all allegations that it had committed any unfair
labor practices.
At the trial, the General Counsel and the Respondent
were represented by counsel . All parties were given full
opportunity to examine and cross -examine witnesses, and to
file briefs . At the conclusion of the trial , the parties waived
oral argument . Thereafter , thorough and comprehensive
briefs were submitted by the General Counsel and the Re-
spondent.2
Upon the entire record in the case, including the briefs of
counsel , and from my observation of the witnesses, I make
the following:
The charge was filed on May 3, 1973.
i Upon a motion to correct the transcript made by the Respondent in its
brief filed on September 20, 1973, the Administrative Law Judge issued an
order on October 10, 1973, granting said motion.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
card. The next day, Lewberg was discharged. Subsequent to
his dismissal, Lewberg continued his organizational efforts
among the Respondent's personnel. On the morning of
April 9, he induced Rena St. Germain to sign an authoriza-
tion as she was on her way to work. That afternoon St.
Germain was dismissed. The issues in connection with the
termination of Lewberg and St. Germain will be considered
later herein.
Joseph Nixon, a truckdriver, testified that on the af-
ternoon of April 9 President Berman asked him whether he
had signed a union card. According to Nixon, he conceded
that he had done so and thereafter Berman told him that
that was the employee's prerogative but then added that "if
the Union ever got in he would lock the doors."
A few minutes later, Nixon told St. Germain that since
the Respondent's president knew that cards were being
signed, he (Nixon) planned to telephone Lewberg and ask
that the latter tear up his card. St. Germain asked that
Nixon make the same request on her behalf.
Nixon testified that about 3 p.m. that day he saw Presi-
dent Berman again and at that time told him that he was
going to have Lewberg tear up the card that he had signed.
According to Nixon, Berman thereupon gave him permis-
sion to use one of the plant telephones to make his call to
Lewberg. As he did so, Berman stood beside him. Nixon
testified that in this telephone call he told Lewberg to tear
up his card and the card of "the woman he gave a ride .. .
to work that morning." According to Nixon, when he con-
cluded the conversation, Berman asked the name of the
woman to whom he had referred and he answered that it
was Rena St. Germain.
President Berman acknowledged having had a conversa-
tion with Nixon with regard to union cards and having
given the employee permission to use a plant telephone to
call Lewberg. According to Berman, however, this occurred
on about April 11 or 12. The Respondent's president also
denied having brought up the subject or having made any
threats as to what would occur if the plant was organized.
According to Berman, it was Nixon who volunteered the
information about having signed a card and who assured
him that he wanted to telephone Lewberg and request that
his card be destroyed.
Nixon was no longer an employee at the time of the
hearing in the instant case, having quit, voluntarily, some
months earlier. In its brief, the Respondent assails his credi-
bility and urges that his testimony is unworthy of belief.
Contrary to that position, it is the conclusion of the under-
signed that Nixon was a generally credible witness. Further,
as to the specific portions quoted above , it is found that
Nixon was truthful and that the exchange between Nixon
and Berman occurred substantially as the employee testi-
fied.
Eugene Artruc, a dryer in the plant, testified that on
about April 11 or 12 President Berman told him that he had
heard that Artruc had signed a union card and that he
wanted to know whether this information was correct. Ac-
cording to Artruc, although he answered this query in the
negative, later that day, Berman returned to where he was
working and again asked the same question. Artruc testified
that on the second occasion Berman prefaced this question
with the demand that Artruc look directly at him when
The Respondent, a Rhode Island Corporation, with its
principal office and place of business in Woonsocket,
Rhode Island, is engaged in the business of electroplating
jewelry, small hardware, and related products. In the course
and conduct of its business, the Respondent annually re-
ceived at its plant directly from points outside the State
material valued in excess of $50,000. Similarly, the Respon-
dent annually performs services at that same plant valued
in excess of $50,000 for customers located in States other
than the State of Rhode Island. The Respondent annually
purchases material valued in excess of $50,000 from sup-
pliers within the State, but who receive such material direct-
ly from outside Rhode Island. Upon the foregoing facts, the
Respondent concedes, and the undersigned finds, that Crest
Chemical Company is engaged in commerce within the
meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, herein
called Union , is a labor organization within the meaning of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent corporation is a family-owned business
in which Samuel Berman is president, treasurer, and owner,
and his wife is the vice president and secretary. In addition
to his official duties as the principal corporate executive,
Mr. Berman has at all times been active in the day-to-day
management and direction of work at the plant. During the
period in issue, Maurice Cardinal was the general superin-
tendent and Frank Martelucci was one of the supervisors.
In the spring of 1973 the Company had about 55 production
and maintenance employees.
Early in April 1973 3 the Union began an organizational
campaign at the Respondent's plant. Shortly thereafter
Henn Lewberg and Rena B. St. Germain were discharged.
The General Counsel alleges that these terminations were
discriminatory. The Respondent asserts that both dismissals
were for cause and, further, that St. Germain was a supervi-
sor.
B. The Alleged Violations of Section 8(a)(1) of the Act;
Findings and Conclusions with Respect Thereto
During the first week in April, Henn Lewberg, a colorer
on the plating line, contacted a representative of the Textile
Workers to secure assistance in organizing the employees.
On the evening of April 5, Lewberg received a supply of
authorization cards from organizer John Notorangelo. That
same night he induced Joseph Nixon, a coworker, to sign a
3 All dates that appear hereinafter are for the year 1973 unless specifically
noted otherwise
CREST CHEMICAL COMPANY
answering. According to the employee, he did so at the same
time that he declared, in response to Berman's question,
"Hell, no, I didn't sign no damn card." Artruc testified that
Berman concluded the conversation with the statement
"You are either a ... good liar or you are telling the truth
.." In fact, Artruc had signed an authorization card on
April 6.
According to Artruc, the next day Berman asked him
whether he had seen Lewberg recently. Artruc testified that
he gave a negative response to this question, but that later
that day Berman told him "tell Henri [Lewberg] to tear up
the card. . . ." Artruc assured him that he would do so.
Artruc testified that during this period he told other employ-
ees at the plant that Berman "kept bugging" him about the
Union.4
Berman denied that he questioned Artruc about his union
affiliation. According to the Respondent's president, it was
on an occasion when he reprimanded Artruc about his work
that he asked the employee to look him in the eye and that
the incident had nothing to do with any discussion of the
Union. Berman testified that insofar as he discussed the
subject of organizational activities with Artruc, it was the
result of questioning to which the employee subjected him
rather than vice versa. Berman acknowledged having dis-
cussed the subject of unions with many of the employees
during the course of that week. Although he averred that,
in each instance, such conversations were initiated by the
employee, it is my conclusion that some of them were initi-
ated by Mr. Berman. At the time of the hearing, Artruc was
no longer employed by the Respondent, having quit volun-
tarily some time before. His testimony was credible and,
insofar as it conflicted with that of the plant president, I find
that Artruc's version was the more accurate as to what was
said on the occasions in question.
Albert Lewberg, a younger brother of Henri Lewberg and
an employee at the plant, testified that on about April I I
President Berman came to where he was working and ques-
tioned him as to whether he had signed a union card. After
Lewberg answered in the negative, Berman told the employ-
ee, "you don't have to lie to me" and then repeated the
question. Lewberg thereupon replied "No, you know my
feelings about the union . . . I haven't signed a card at
all." 5 Albert Lewberg was a credible witness and the under-
signed concludes that the conversations with Berman oc-
curred in substantially the manner he related.
Employee Artruc testified that on about April 13, Super-
visor Frank Martelucci came to his work station and told
him that the Respondent "didn't want no union in there and
if we had a union . . . I would be making less money than
I am making now. .. ." Artruc further testified that the
supervisor also stated that "if the Union did get in there they
would probably close the place down." 6 Martelucci denied
that he made the foregoing statements. On the other hand,
he acknowledged having engaged in an extended conversa-
tion about the Union with Artruc and that at the time he
expressed his own opposition to the presence of a labor
organization in the plant. As to whether he said anything
The quotations in this paragraph are from Artruc's testimony
S The quotations in this paragraph are from Lewberg 's testimony
6 The quotations in this paragraph are from Artruc's testimony.
891
about the effect a union would have on pay scales , Marte-
lucci testified , "Well, we mentioned money, I believe, and
I said they would knock you in pay rates or some sort like
that . . . ." After a consideration of the testimony of these
two witnesses and the extent to which they corroborated
one another , it is my conclusion that , insofar as there are
conflicts , the testimony of Artruc more accurately reflects
what was said.
Henri Lewberg testified that on the afternoon of April 9,
the Monday following his discharge , he returned to his
home and found that Supervisor Martelucci had called from
the plant and wanted to speak with him. When Lewberg
thereafter telephoned the plant and asked for the supervisor,
Martelucci told him , according to Lewberg , that Lewberg
was to "keep away from the mill . . with union activities."
Lewberg testified that when he asked what Martelucci
meant by that comment , the latter concluded the conversa-
tion by telling him , "you know what I mean , keep away
from the building , or else ." Martelucci acknowledged hav-
ing had a conversation with Lewberg about the organiza-
tional activities in which Lewberg was engaged . According
to the supervisor , he telephoned Lewberg on April 10 be-
cause production had fallen off in the shop and he attribut-
ed this development to the distress among the female
employees which Lewberg 's card solicitation had engen-
dered . Martelucci testified that he told Lewberg , "I just
don't want you to bother these women , or whatever you are
doing , because you are disturbing the whole shop." Al-
though the supervisor denied that he threatened Lewberg
with bodily harm , he conceded that he concluded his tele-
phone conversation with the statement ". . . I am telling
you . . . leave the help alone . If you got something going
... pertaining to these cards . . . do it elsewhere." Al-
though Lewberg testified that this conversation occurred on
April 9, it appears more probable that the date was April 10,
as Martelucci testified . Lewberg's solicitation activities out-
side the plant did not begin until Monday , April 9, and it
is not likely that many of the employees were affected one
way or the other by anything he said or did until at least the
following day when there was considerable discussion
among the plant personnel about the Union and about
Lewberg's activities. Consequently , it is my conclusion that
this conversation took place on April 10, rather than on
April 9, as Lewberg testified . Martelucci 's denial that he
threatened Lewberg was not convincing . Upon consider-
ation of the testimony of both parties to this conversation
it is my conclusion that the supervisor did tell Lewberg "to
keep away from the building , or else" and that this consti-
tuted a threat.
Rena St . Germain , who was discharged on April 9 , testi-
fied that during the course of that day both President Ber-
man and Supervisor Martelucci kept her under close
observation . On the basis of this testimony , the General'
Counsel amended the complaint to include an allegation of
unlawful surveillance on the part of the Respondent. This
was denied by both Berman and Martelucci. The testimony
of St . Germain in this connection was not convincing and,
for that reason , it is concluded that the aforesaid allegation
in the complaint should be dismissed.
On the basis of the findings set forth above , it is found
that the Respondent violated Section 8(a)(1) of the Act, by
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following acts and conduct:
(1) President Berman's interrogation as to the union ac-
tivities and card signing of employees Eugene Artruc, Al-
bert Lewberg, and Joseph Nixon, and his questioning of
Nixon on April 9 after overhearing a telephone conversa-
tion Nixon had with Henri Lewberg as to the name of the
female employee to whom Nixon referred in that conversa-
tion.'
(2) President Berman 's threat, expressed to employee
Nixon, on or about April 9, that "if the Union ever got in
he would lock the doors."
(3) The conduct of President Berman on or about April
11, in questioning employee Artruc about his union activi-
ties during which he opened the conversation with that em-
ployee by telling him he had heard that Artruc had signed
an authorization card, thereby giving the employee the im-
pression that the Respondent was keeping its plant person-
nel under unlawful surveillance. Plasticoid Company, 168
NLRB 135, fn. 3 (1967).
(4) The conduct of President Berman on about April 12
in questioning Artruc about having signed an authorization
and thereafter suggesting that Artruc tell Henri Lewberg "to
tear up the card," thereby soliciting Artruc to withdraw
from the Union.
(5) Supervisor Martelucci' s statements to employee Ar-
truc that "if we had a union . . . [Artruc] would be making
less money" and that "if the Union did get in . . . [the
Company] would probably close the place down."
(6) President Berman's conduct on April 9 when he es-
corted employee Nixon to a plant telephone and remained
there while Nixon called Henn Lewberg to ask that the
latter tear up his card, thereby engaging in unlawful surveil-
lance of Nixon's protected concerted activities.
(7) Supervisor Martelucci's conduct in telephoning Hen-
ri Lewberg on about April 10 and threatening him with
bodily harm if he did not refrain from further solicitation
on behalf of the Union in the vicinity of the plant. Even if
Lewberg were no longer an employee and was then an
organizer for the Textile Workers, the Respondent's super-
visor was not free to engage in threats of physical violence
to discourage his attempts at contacting the Respondent's
work force in the public areas surrounding the plant.
C. The Alleged Violations of Section 8(a)(3); Findings and
Conclusions With Respect Thereto
1. Henn Lewberg
Lewberg was one of the oldest employees: in point of
service in the plant. He was hired in January, 1971, quit
voluntarily in July 1972, returned in September of that year,
and thereafter remained at work until his discharge on April
6, 1973. His original starting pay was $2.25. At the time of
his termination he was earning $3.25. During the last week
' See N L R B v Milco, Inc, et a!, 388 F.2d 133, 137 (C A. 2, 1968), where
the Court said, "the relevant factors to be examined in determining whether
under particular circumstances employer interrogation is inherently coercive
include whether there is a background of employer hostility and discrim-
ination , [and] whether the employer seeks . to ferret out information most
useful for purposes of discrimination , as when employees are asked to identi-
fy union supporters. "
of his employment he received a 10-cent-an-hour raise.
When Lewberg returned to the Respondent's employ in
September 1972 he was assigned to the barrel plating de-
partment for several months and then was transferred to
coloring in the automatic rack and coloring department,
where he remained until his discharge. In this last assign-
ment he took racks that came to him from the automatic
plating machine, dipped them in various solutions of brass
and gold, and moved them along to another employee who
was responsible for drying them. In the course of his duties,
Lewberg also mixed some of the plating solutions.
Lewberg denied that he was ever reprimanded, although
he conceded that at times he was subjected to what he chose
to characterize as "constructive criticism ." President Ber-
man described Lewberg as an intelligent employee who was
slow, had difficulty working with others, resented criticism,
and was not easily supervised. Berman testified that from
the first he was impressed with Lewberg because he was
"very intelligent . . . I thought a lot could be done, consid-
ering the past which was quite unfortunate." 8
During the course of Lewberg's employment Berman ob-
viously had a substantial regard for his knowledge and abili-
ty, notwithstanding Lewberg's disposition, evident from his
demeanor while on the stand, toward petulance and obsti-
nancy. Berman testified that he transferred Lewberg to the
automatic rack plating line in the latter part of 1972 because
the job required an employee of some intelligence and be-
cause Lewberg's personality made it preferable that he work
by himself and directly under Berman's supervision.
. As found earlier, in the first week of April 1973, Lewberg
became interested in the Union and, on April 5, he secured
a supply of authorization cards from an organizer for the
Textile Workers. The next morning he was discharged, ac-
cording to the General Counsel for discriminatory reasons,
but according to the Respondent for insubordination. To
the facts in connection with that dismissal we will now turn.
The incident which culminated in the termination arose
shortly after the plant opened'on April 6. Lewberg, in his
capacity as a colorer, often had to assist in mixing the plat-
ing solutions and in adding various reagents to the tanks. In
each instance, however, this work was done under supervi-
sion, usually that of Supervisor Martelucci. Superintendent
Cardinal testified that on the morning of April 6, Lewberg
asked for ammonia that was needed for the brass plating
tank. Cardinal went to the plant laboratory and secured
some concentrated ammonia, the only strength available at
8 This last was a reference to Lewberg's criminal record At the time of the
hearing Lewberg was 38 years of age . On cross-examination he acknowl-
edged that prior to 1961 he had been convicted of various felonies On
redirect examination , he denied that he had been involved in any such
charges since the latter date, or that he had been arrested since 1961 Whether
his testimony in this latter regard was truthful was a matter of dispute on the
closing day of the hearing. Respondent offered a court record that would
tend to prove that in 1970 Lewberg was charged with larceny and that the
case was dismissed on payment of costs The document offered by the Re-
spondent was not certified by the court in Woonsocket , Rhode Island, where
the case arose because a recent restructuring of the state judiciary had abol-
ished that court This exhibit was received only as to that entry wh.ch would
tend to contradict Lewberg's earlier testimony on redirect examination to the
effect that he had not been arrested since 1961 The General Counsel then
requested an opportunity to verify the entry in question on the disputed
exhibit This request was granted Thereafter , however, the General Counsel
did not return to the subject and lapsed into silence on the issue.
CREST CHEMICAL COMPANY 893
that time. According to Cardinal, Lewberg protested that
the solution was too strong, but he told him that the strength
was the same as the plant had been using. Cardinal testified
that when he told the employee to put the ammonia in the
brass tank, Lewberg objected and insisted that the ammonia
was too strong. According to Cardinal, at this point, goods
were already coming off the automatic plating machine and
the next step in the processing required that they be dipped
in the brass plating tank. Cardinal testified that because of
Lewberg's delay in adding the ammonia to that tank, he
repeated his request. At that moment Berman happened to
be passing by. According to the latter , he was escorting a
new employee to his work station when he noticed that
Lewberg and Cardinal were engaged in a confrontation.
Berman told Cardinal to go about his other duties and allow
him to settle the matter.
Berman testified that when he arrived on the scene Lew-
berg was questioning Cardinal's judgment in using concen-
trated ammonia and was refusing to add it to the brass
solution . According to Berman , Lewberg criticized the su-
perintendent for not having the weaker strength ammonia
in stock and renewed his protest that the solution which
Cardinal provided should not be used. Berman testified that
after listening for a moment to Lewberg's objections he told
him, "look, Henri, put it in, please ... it will be my respon-
sibility." According to Berman, instead of following this
order, Lewberg protested that Berman should get Supervi-
sor Martelucci to add the ammonia, and when he declined
to summon the supervisor and repeated his order that Lew-
berg put the ammonia in the tank immediately, Lewberg
told him to put it in himself. Berman testified that at this
point he became angered, uttered an obscene epithet, and
ordered Lewberg out of the plant with the declaration "I
have had you up to here."
Lewberg's testimony as to this incident differed in some
respects from that of Cardinal and Berman, but he conced-
ed that he had refused to follow the orders which Berman
gave him. Lewberg testified that when Berman first arrived
in the area the plant president told him that if he (Lewberg)
was not certain as to whether ammonia was needed in the
plating tank he should consult Supervisor Martelucci. Ac-
cording to Lewberg, he thereupon sought out the supervisor,
but found that Martelucci was engaged in a telephone call
and so informed Berman. Lewberg testified that he then
told Berman that he would prefer to wait until Martelucci
was present before adding the ammonia, but that the
Respondent's president ordered him to proceed." According
to Lewberg, he then told Berman that he lacked the confi-
dence necessary to add the ammonia to the tank by himself,
and that when he made this statement Berman told him that
if he lacked self-confidence he needed a doctor. At that
point, Lewberg's response, from his own testimony, was
provocative in the extreme . Thus, Lewberg testified "I told
him that if I needed a doctor he needed one too, if he had
the confidence in me to do the job and I didn't or vice versa.
So that is when he got infuriated and he fired me."
9 Berman testified that during their discussion Lewberg never left the area
to contact Martelucci and the latter testified that he had no contact with
Lewberg on the morning of April 6 Both Berman and Martelucci were
credible in this respect
Berman's testimony as to what transpired when he had
the exchange with Lewberg was corroborated in substantial
measure by Eugene Artruc, an employee called as a witness
for the General Counsel. Thus, Artruc testified that he was
present when Berman told Lewberg to put the ammonia in
the plating tank and that the latter declined to do so on the
ground that he wanted to wait until Martelucci became
available. According to Artruc, Berman then declared "I
said put it in there" and Lewberg's response was "I still am
not going to put it in there, because I don't know whether
it is going to work or not." Artruc testified that thereafter
Berman repeated his order and when Lewberg still refused
to comply, Berman declared "get out, you are fired."
Berman denied any knowledge of the union activities in
which Lewberg was engaged at the time his termination
occurred. Although, as found earlier, from and after April
9, it is clear that the Respondent was well aware of the union
campaign, there was no convincing evidence that the man-
agement had any earlier knowledge of that development.
On the facts found here, it is the conclusion of the under-
signed that the Respondent had no knowledge of Lewberg's
union activities prior to the day in question. Further, it is
found that Lewberg was clearly insubordinate in refusing to
act when given a direct order by the Respondent's president.
In her able brief, counsel for the General Counsel urges,
with skill and vigor, that Lewberg's foibles and idiosyncra-
cies were well known to the Respondent, that it had endured
them with patience in the past, and that only when the
employee became involved in union activities did the Re-
spondent find him intolerable. It is true that earlier Berman
had demonstrated considerable solicitude in helping Lew-
berg when the home of the latter was destroyed by fire, as
well as on other occasions. On the other hand, the General
Counsel did not urge that at any time in the past had the
Respondent tolerated outright insubordination. Nor was
there any evidence that would support such an argument.
Even though Berman, notwithstanding his denials, may
have had some reason to believe that Lewberg had become
active in the Union, on the record herein, it is my conclusion
that the motivating cause for Lewberg's dismissal was his
truculent arrogance on the morning of April 6. As the Board
once said , in a somewhat similar situation: "the Respondent
may well have welcomed the opportunity of getting rid of
[the employee], but neither his activities, nor the
Respondent's attitude gave him privileges greater than
those of other employees." Lloyd A. Fry Roofing Company,
85 NLRB 1222, 1224 (1949); see also Crucible Steel Castings
Company, 101 NLRB 494, 495 (1952). Accordingly, it is
found that the allegation in the complaint that Lewberg was
terminated discriminatorily must be dismissed.
2. Rena B. St. Germain
St. Germain was hired in October 1971 as a racker. In
February 1972 she was transferred to work as an inspector.
In December of that year she was given the additional job
of preparing invoices in the shipping room and of over-
seeing shipments to the Respondent's customers.
As found earlier, on the morning of April 9, St. Germain
signed a union card and that afternoon she was discharged.
The General Counsel alleges that her termination was dis-
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory. This is denied by the Respondent and, in addi-
tion, the Respondent asserts that at all times material St.
Germain was a supervisor within the meaning of the Act.
Much testimony was offered on this latter issue. Obviously
it is this question which must be given preliminary consider-
ation.
From December 1972 until some time in February 1973,
St. Germain worked in the inspection and shipping depart-
ment at $2.25 per hour. While on this scale she received
overtime for all work in excess of 40 hours. Her pay record
for the period from December 30, 1972, to February 10,
1973, indicates that her weekly wages, including overtime,
ranged from $94.41 to $132.53. She testified that her weekly
average was about $100. Her regular pay at this point, with-
out reference to overtime, was $90 a week. In mid-February
she was placed on a salary of $145 a week and remained at
that level until her termination.
At all times material, there were five employees in the
inspection and shipping department. In addition to St. Ger-
main, there were two inspectors, a truckdriver, and a
shipper's helper. St. Germain denied that she was ever told
that she had any supervisory authority over these employ-
ees. She specifically denied that she had any authority to
hire or fire, transfer, suspend, lay off, promote, discipline,
or effectively recommend such action. According to St. Ger-
main , in the course of her day, all orders to the employees
in the inspection and shipping department were given by
Superintendent Cardinal, and she herself had no superviso-
ry authority to exercise.
Cardinal testified that when St. Germain was put in
charge of inspection and shipping he told her that she would
be responsible for supervising the inspectors, the truckdriver
and the shipper's helper. According to Cardinal, when in the
plant he relied on the departmental supervisors to oversee
their departments. He further testified, credibly, that about
30 percent of each day he was away from the plant contact-
ing customers as to their complaints or selling the
Company's services. During those periods, of course, the
department heads were in sole charge of their units.
St. Germain's predecessors responsible for inspection and
shipping were Richard Bellini and-Norman Weldon. Bellini
was there from August through October 1972. From March
through July of that year, Weldon served as the head of that
department. Bellmi's status was not clear from the testimo-
ny, but St. Germain acknowledged that Weldon gave or-
ders, was able to hire and fire and recommend raises. Her
testimony, as well as that of Cardinal and Berman, make it
clear that Weldon was a supervisor within the meaning of
the Act. St. Germain acknowledged that at one time after
taking over the work in inspection and shipping she com-
plained that although she was doing the same work as Wel-
don she was not receiving his rate of pay.
St. Germain's assertion that she did not exercise supervi-
sory authority was corroborated, in part, by Joseph Nixon,
the truckdriver in that department. According to Nixon, the
only one from whom he received orders was Superintendent
Cardinal. He was less positive in response to a question as
to whether he had ever been told that St. Germain was his
supervisor and stated only "I don't believe I was, no." Fran-
cis Bukata and Helen Isabelle were the two inspectors who
when Cardinal transferred her to inspection work he told
her that "Rena [St. Germain] was my supervisor...." 10
Isabelle , who was equally credible, testified to the same
effect. Bukata testified that when she was an inspector, St.
Germain was "my supervisor." Similarly, Isabelle described
the latter as "our supervisor" and testified that "We used to
ask her what to do." Bukata testified that if dissatisfied with
the inspection work which she and Isabelle had done, St.
Germain would order them to redo the job. She also testi-
fied that on occasion St. Germain let a coworker off early.
St. Germain denied that she had authority to transfer
employees from her department to another. On the other
hand, Frank Martelucci, supervisor of the racking depart-
ment, testified that when he needed help St. Germain fre-
quently transferred employees from shipping to his
department at his request. According to Martelucci, this
occurred from 3 to 4 times a week. He further testified that
when St. Germain made a similar request of him he would
transfer employees to her shipping department. Bukata, the
inspector referred to earlier, credibly testified that once or
twice a week St. Germain sent her to work in the polishing
department. Isabelle, her coworker, testified that about
once every other week, and when work as an inspector was
slack, St. Germain assigned her to the racking department.
Cardinal testified that, about a week before she left, St.
Germain recommended a raise for one Leonard Kelvey, her
shipper helper, and that on her recommendation he award-
ed Kelvey a 10-cent-an-hour increase. According to Cardi-
nal, on an earlier occasion St. Germain recommended a
raise for Gloria Racicot, another employee in her depart-
ment , but that in this instance he refused to grant the re-
quested increase. St. Germain denied that she
recommended a raise for Kelvey or for anyone else. Her
testimony in this regard, however, was not persuasive.
Both Bukata and Isabelle testified that each supervisor
had a special number on the plant telephone system and
that St. Germain's was 3 rings. According to these employ-
ees no one else in the department had any telephone num-
ber and when the telephone rang 3 times it was St. Germain
who answered.
Cardinal testified that the Respondent did not have for-
mal meetings for the supervisors. On the other hand, he
testified that at the end of almost every day he and Berman
met with all the supervisors for informal discussions on any
problems that had arisen and on the day's production. Ac-
cording to Cardinal, St. Germain was in attendance at these
sessions . Although St. Germain denied that she attended
any supervisory meetings as such, she acknowledged that
she had frequent, if not daily, conferences with President
Berman at the end of the shift. This was reflected in her total
hours at the plant, for she also testified that after she went
on a salary her work week averaged from 52 to 53 hours.
In general , St. Germain was a credible witness . However,
this conclusion does not apply to her denials as to all indicia
of supervisory status. On the basis of the findings set forth
above, it is found that, as head of inspection and shipping,
St. Germain transferred employees from her department to
other departments in order to assist in handling the overall
worked in that department. Bukata testified, credibly, that 10 The quotation is from Bukata 's testimony
CREST CHEMICAL COMPANY 895
work load at the plant, that she effectively recommended at
least one raise for an employee, that she occasionally grant-
ed time off to certain employees, and that when she was
dissatisfied with the work of the inspectors she ordered the
job redone. Further, it is evident that Bukata and Isabelle,
the two inspectors in her department, considered her their
supervisor and as the one from whom they took orders.
Even more conclusive, however, is the fact that in February
1973, St. Germain was placed on a salary which caused her
income to go from $90 a week, exclusive of overtime, to
$145.00 a week. The General Counsel offered no evidence
that, apart from office workers, any personnel in the plant
besides supervisors were salaried. The fact that she was
placed on a salary and the fact that her new salary provided
a substantial increase in pay tends to corroborate the testi-
mony of Berman and Cardinal that at this point St. Ger-
main was given the status and authority of a supervisor.
Section 2(11) of the Act provides, in relevant part, that:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, . .. or effectively to recommend such ac-
tion. .. .
The courts have long held that the elements of supervision,
as enumerated in the foregoing section, must be considered
in the disjunctive.' 1 In the light of the broad reach of Section
2(11) and of the foregoing findings, it is found that St.
Germain, at all times material herein, was a supervisor with-
in the meaning of the Act.
On the facts present here, St. Germain, as a supervisor,
was beyond the protection of the Act. N. L. R. B. v. Fullerton
Publishing Company d/b/a Daily News Tribune, 283 F.2d
545, 551 (C.A. 9, 1960); N.L.R.B. v. Inter-City Advertising
Co. of Charlotte, N.C., Inc., et al, 190 F.2d 420, 422 (C.A.
4, 1951), cert. denied 342 U.S. 908; L. A. Young Spring &
Wire Corporation v. N.L.R.B., 163 F.2d 905, 906-907
(C.A.D.C., 1947), cert. denied 333 U.S. 837 (1948). Conse-
quently, and in view of this conclusion, it is unnecessary to
discuss further the allegation in the complaint that St. Ger-
main was discriminatorily terminated.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged, and is engaging,
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
11 "This section is to be interpreted in the disjunctive , N L.R B v. Edward
G Budd Mfg Co, 6 Cir, 169 F 2d 571, cert denied 335 U.S 908, 69 S Ct
411, and the possession of any one of the authorities listed in §2(11) places
the employee vested with this authority in the supervisory class ." Ohio Power
Company v N L.R B, 176 F.2d 385, 386-387 (C A 6, 1949), cert denied 338
U S. 899 See also N L R B v Leland-Gifford Company, 200 F.2d 620, 624-
626 (CA 1, 1952).
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained, or coerced its employees in the exercise of the
rights safeguarded by the Act, except by the specific acts
and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it will be recommended that the Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, there
is issued the following recommended:
ORDER12
Crest Chemical Company, its officers, agents, successors
and assigns shall:
1. Cease and desist from:
(a) Soliciting employees to withdraw from membership
in the Textile Workers Union of America, AFL-CIO, or
from any other labor organization.
(b) Coercively, or otherwise unlawfully, interrogating its
employees as to their union activities or the union activities
of the other employees.
(c) Threatening its employees with loss of pay or closing
of the plant if a majority become members of, or assist, a
labor organization.
(d) Engaging in surveillance, or giving the impression
that it is engaging in surveillance, of its employees' organi-
zational activities.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid, or to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its plant in Woonsocket, Rhode Island, copies
of the attached notice marked "Appendix." 13 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Respondent's au-
thorized representative, shall be posted by it for a period of
12 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
10248 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
13 In the event that the Board 's 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 "
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
60 consecutive days thereafter , in conspicuous places, in- (b) Notify the Regional Director for Region 1, in writing,
cluding all places where notices to employees are custom- within 20 days from the date of the receipt of this Decision,
arily posted. Reasonable steps shall be taken by the what steps the Respondent has taken to comply herewith.
Respondent to ensure that said notices are not altered, de- IT is ALSO ORDERED that the complaint be dismissed insofar
faced , or covered by any other material . as it alleges violations of the Act not specifically found.