Dynamics Corp. Of America

National Labor Relations Board - Board Decisions

Nov 19, 1987

286 N.L.R.B. 920 (N.L.R.B. 1987)

920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fermont, a Division of Dynamics Corporation of
America and Teamsters 1040 , Brewery and Soft
Drink Workers, Liquor Drivers & New and
Used Car Workers a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
& Helpers of America, AFL-CIO.' Cases 39-
CA-1139, 39-CA-1140, 39-CA-1231, 39-CA-
1408, and 39-RC-315
19 November 1987
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 23 September 1983 Administrative Law
Judge Harold B. Lawrence issued the attached de-
cision. The Respondent filed exceptions and sup-
porting and answering briefs, and the General
Counsel filed exceptions and supporting and an-
swering 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,2 and
conclusions3 and to adopt the recommended Order
as modified.
1. We agree with the judge that the Respondent,
through Supervisor Wilfredo Garcia, threatened
employee Juan Hernandez with discharge if he did
not cease his union activity. However, there is
nothing in the record or the judge's discussion of
Garcia's activities that indicates that he so threat-
ened anyone else. Accordingly, we modify that
part of the judge's Conclusions of Law that Garcia
"threatened them with loss of their jobs" (emphasis
added), and we shall modify the Conclusions of
Law accordingly.
2. The judge also found that the Respondent,
through Plant Manager Frank Aganito, unlawfully
i On 1 November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change.
2 Both the Respondent and the General Counsel have excepted to
some of the judge's credibility findings The Board's established policy is
not to overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F 2d 362 (3d Cit. 1951) We have carefully examined the record
and find no basis for reversing the findings
We correct the judge's inadvertent reference to "Davis' testimony"
when he meant to say he did not credit "Bryant's testimony" regarding
Pendzimas' alleged promise to expunge all warnings from employees'
files
' In adopting the judge's finding that Geoffrey Liptak, the manager of
quality control and inventory control, unlawfully threatened employees
with loss of employment if the Union becam.their bargaining representa-
tive, we do not rely on the judge's citation to PPG Industries, 251 NLRB
1146 (1980)
interrogated employees Klinko and Grace. Both
were known union supporters. Klinko openly dis-
cussed his views with supervisors and Grace made
his views known by wearing a Teamsters T-shirt.
Aganito saw Grace's T-shirt and said, "I thought
you were going to vote Company." On another oc-
casion , following the Company's rebuttal speech to
a union letter, Aganito said to Klinko, "What are
these vibes I hear about you?" When Klinko said
he did not understand, Aganito asked, "You're
going for the Union?" These brief comments stated
in casual conversation were directed at known
union supporters and were of a general and non-
coercive nature. Accordingly, we reverse the
judge's finding of an 8(a)(1) violation for unlawful
interrogation. See Rossmore House, 269 NLRB
1176(1984) .4
3. The judge concluded that an election contest
violated Section 8(a)(1). The Respondent sponsored
a contest in which employees were to "point out
something good about Fermont or why everyone
should VOTE NEITHER." Prizes were awarded
the day before the election and included a first-
prize 19-inch color T.V., a second-prize microwave
oven, and a third-prize food processor. The judge
found the value of the prizes was substantial
enough to create a feeling of obligation on the part
of the winners to support the Respondent's position
in the election, thereby violating Section 8(a)(1).
Although we agree with the judge, we do so for
the following reasons . An employee who submits a
contest slogan prior to the election encouraging
other employees to "Vote Neither" or to say some-
thing positive about the company is indicating to
other workers that he does not support the union.
This outward manifestation of company support
may often serve as a useful campaign tool to con-
vince other employees to vote against the union, if
only because many employees respect their co-
workers' views on the unionization issue . Here, the
record shows that all the employees were gathered
together in the final assembly area on the morning
of the election and all the entries that had been fur-
nished by the workers were presented. Afterwards,
the winners were announced and were called up to
receive their prizes. On this record, it is obvious
that the Respondent was buying endorsements,
with a promise of material awards of significant
monetary value. Such a grant of benefits to select-
4 Because Aganito's questions to Klmko immediately preceded Agani-
to's unlawful promise of educational assistance "if there were no union"
(discussed infra), Member Stephens would find that this is not the kind of
casual questioning of known union supporters that is deemed noncoercive
under the Rossmore House standard Cf Raytheon Co, 279 NLRB 245
(1986) (Member Stephen 's dissenting opinion) Hence, he would affirm
the judge 's finding that this questioning of Klmko constituted an unlawful
interrogation
286 NLRB No. 96
DYNAMICS CORP. OF AMERICA 921
ed individuals, prior to the election, has a tendency
to interfere with the employees' Section 7 rights.8
Our dissenting colleague disagrees with our as-
sessment of the likely effect of the contest on the
ground that, because the election was conducted
by secret ballot, employees would feel no obliga-
tion to vote against the Unions regardless of the
value of the prizes that induced their submission of
slogans extolling the Respondent's virtue or giving
reasons for voting against the Unions. According
to that logic, of course, the Supreme Court's deci-
sion in NLRB v. Savair Mfg. Co., 414 U.S. 270
(1973), would have serious flaws. Indeed, our col-
league 's contention was the argument of the dis-
senters in Savair. Id. at 286-288. We are relying on
the reasoning of the Savair majority, who per-
ceived damage to the election process both in the
creation of a sense of obligation to vote in accord-
ance with expressed sentiments and in the "false
portrait" created by manifestations of prounion sen-
timent that were purchased rather than genuine. Id.
at 277-278. In the present case the effect was maxi-
mized by staging the announcement of winning slo-
gans and presentation of the substantial prizes on
the morning of the election.
4. The judge found a violation of Section 8(a)(1)
in the Respondent's institution against union activ-
ists, after the election, of a stricter enforcement of
an attendance and punctuality policy that previous-
ly had not been uniformly enforced. Because the
policy was more strictly enforced in retaliation for
employees' support of the Union in the election,
we find that the issuance of warnings pursuant to
5 See, e.g., General Cable Corp., 170 NLRB 1682 (1968) (a $5 gift to
employees by a union before an election , even when not conditioned on
the outcome of the election, was an inducement to cast ballots favorable
to the union). See also Crestwood Manor, 234 NLRB 1097 (1978) (a
union 's promise to hold a $100 raffle for the entire unit in the event the
union won the election was objectionable ). Cf. Dart Container, 277
NLRB 1369 ( 1985) (a union 's promise to extend existing incidents of
union membership to new members was not objectionable.)
Chairman Dotson does not agree with his colleagues that the Respond-
ent acted unlawfully regarding this election contest . In his view , his col-
leagues' theorizing about the allegedly unlawful purpose and effect of
employee participation in the contest is highly speculative , and unjustifia-
bly fails to accord any confidence in the willingness and ability of em-
ployees to arrive at a reasoned choice in the election . The Chairman
points out that since Board elections are conducted through a secret
ballot, even if an employee wins a contest prize for an expression of com-
pany support , he or she is certainly under no obligation or accountability
ultimately to vote against the union in the secrecy of the ballot box.
Thus, the Chairman sees no basis for finding that the Respondent acted
unlawfully in this context.
In this regard , the Chairman finds that his colleagues ' reliance on
NLRB P. Savair Mfg. Co., 414 U.S. 270 ( 1973), is misplaced . In the Chair-
man's view , the improper conduct in Savair-the guarantee to employees
of a direct, quid pro quo monetary saving in return for actually recogniz-
ing and joining the union prior to the election-is substantially stronger
in potential inductive effect on the electorate than the alleged improper
activity in this case-the offer of a mere chance to win a valuable contest
prize for either saying something in support of the employer, or some-
thing in opposition to representation by either of the two unions involved
in the election in question.
this stricter enforcement also constitutes a violation
under Section 8(a)(3) of the Act. See Keller Mfg.
Co., 237 NLRB 712, 713 fn. 7 (1978); and Hudson
Oxygen Therapy Sales Co., 264 NLRB 61 fn. 2
(1982). Further, we shall order that all warnings so
issued be rescinded and expunged. Sterling Sugars,
261 NLRl3 472 (1982).
5. The judge failed to find a promise of future
benefit when Manager Aganito told employee
Klinko that with Klinko's educational background
"he could, anticipate company assistance in going
to school or could at least anticipate moving ahead
more rapiidly in the company if there were no
union." The judge viewed the issue as one of deter-
mining whether Aganito threatened Klinko with
reprisals for supporting the Union. Finding that the
Respondent had no program for financing its em-
ployees' education, the judge concluded that the
Respondent did not threaten to withhold anything
that Klinko had or could reasonably expect to re-
ceive. The General Counsel has excepted to the
judge's failure to find a promise of benefit in this
statement. We find merit in the General Counsel's
exception. Without doubt, Aganito was promising
Klinko educational assistance or advancement in
the Company if the Union lost the .election or if
Klinko voted against the Union. It is immaterial
that the benefits promised were not currently of-
fered by the Respondent. Indeed, a promise of
newly created benefits may be most effective in
interfering with employee rights. Accordingly, we
find that the Respondent violated Section 8(a)(1)
by its conduct.6
6. The judge dismissed 8(a)(3) allegations that
employees Dumas, Lugo, Reyes, and McGraw
were unlawfully discharged, that employee John-
son was unlawfully suspended, and that employee
Although the complaint did not explicitly allege that Aganito prom-
ised benefits to employees , it alleged that he unlawfully threatened to
withhold benefits. Our finding is related to and intertwined with the com-
plaint's allegation . Further, the matter was fully and fairly litigated before
the judge.
Contrary to his colleagues , Chairman Dotson does not find that the
Respondent violated the Act regarding Aganito's remarks to Klinko.
Rather, the Chairman finds that the judge has correctly analyzed the evi-
dence in this regard , and properly concluded that Aganito's remarks to
Klinko neither expressed nor implied any threat of retaliation against
Klinko if he continued to support the Union, or if the Union won the
election . Thus, the Chairman is unpersuaded by the efforts of his col-
leagues to distort Aganito's remarks into a subtle, implicit promise of ben-
efit to Klinko if he stopped supporting the Union, or if the Union lost the
election . Beyond the fundamental consideration of whether such a
"promise of benefit" theory was actually litigated (it was not alleged in
the complaint , and the Chairman is not as willing as his colleagues to find
that it was nevertheless litigated), the Chairman simply does not agree
with his colleagues ' assertion that "without doubt," the Respondent was
promising Klinko educational assistance or job advancement in return for
an 11th-hour rejection of the Union by Klinko. In the Chairman's view,
there is considerable doubt about the correctness of his colleagues' assess-
ment of the facts and , in the face of such doubt, he will not join in re-
versing the judge 's dismissal of this allegation.
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bryant was unlawfully issued disciplinary warning
notices. In essence, the judge found that such per-
sonnel actions were legitimately predicated on the
individual employee's attendance/tardiness prob-
lems and that there was no evidence that the ac-
tions were discriminatory or related to union ac-
tivities. However, the judge failed to consider what
role, if any, the unlawful disciplinary warnings,
found to be 8(a)(1) violations, may have played in
establishing a basis, given the Respondent's pro-
gressive systems of discipline, for the discipline,
discharge, or suspension of each of these employ-
ees.
In our view, this is in error, as an employer
cannot establish a legitimate basis for discharge
through the use of unlawful disciplinary warnings.
Accordingly, we shall remand this portion of the
case to the judge for appropriate findings regarding
the relationship, if any, of the disciplinary warnings
to the alleged unlawful discipline, discharges, and
suspension.'
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3(d).
"(d) In February 1982, the Respondent, acting
through Wilfredo Garcia, threatened Juan Hernan-
dez with discharge if he did not cease his union ac-
tivity and created an impression that employees
were under surveillance."
2. Substitute the following for Conclusion of
Law 3(e).
"(e) In April 1982, the Respondent, acting
through Frank Aganito, unlawfully promised a
future benefit to John Klinko."
3. Insert the following as Conclusion of Law
4(d).
"(d) From about 28 May 1982, the Respondent,
in retaliation for their support of the Union, insti-
tuted against union activists stricter enforcement of
° In adopting the judge's dismissal of the allegation that the layoffs of
John Klinko and Robert Moura on 2 July violated Sec 8(a)(3) and (1) of
the Act, we find that the General Counsel made out a puma facie case
that union animus was a motivating factor in the layoffs We conclude,
however, that given the judge's crediting of Geoffrey Liptak 's testimony
concerning a slowdown in stockroom work and the absence of evidence
that anyone was thereafter hired to perform stockroom work until
Moura 's recall in October , the Respondent has established that these em-
ployees would have been laid off even in the absence of unlawful motive
Wright Line, 251 NLRB 1083 ( 1980), approved in NLRB V Transportation
Management Corp, 462 U S 393 (1983)
Chairman Dotson does not agree with his colleagues that the General
Counsel made out a prima facie case that union animus was a motivating
factor in the layoffs of Klinko and Moura Rather, in agreeing with the
judge-and his colleagues-that the Respondent did not act unlawfully in
laying off these two employees , the Chairman relies on the judge's analy-
sis set forth in sec III, A of his decision , and particularly on the judge's
conclusion therein that "the layoffs were not motivated by union animus
and had no connection to the union campaign or to union activity on the
part of either one of these employees "
an attendance and punctuality policy which previ-
ously had not been uniformly enforced."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Fermont, a Division of Dynamics Corpo-
ration of America, Bridgeport, Connecticut, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(e).
"(e) Explicitly or implicitly promising benefits to
employees in exchange for their withholding sup-
port for Teamsters Local 1040, or any other labor
organization, as their collective-bargaining repre-
sentative."
2. Insert the following as paragraph 2(f) and re-
letter the subsequent paragraphs.
"(f) Rescind and expunge from the files of Chris-
tine Dumas, Miguel Lugo, Renan Reyes, Mark
McGraw, James Bryant, and Thomas Johnson any
and all warnings issued after 28 May 1982 pursuant
to the Respondent's stricter enforcement of its at-
tendance and punctuality policy, and notify them in
writing that this has been done and that evidence
of these unlawful warnings will not be used as a
basis for future discipline against them."
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the portion of this
proceeding relating to allegations of the complaint
that the discharges and/or suspensions of employ-
ees Dumas, Lugo, Reyes, McGraw, and Johnson
violated Section 8(a)(3) of the Act are remanded to
Administrative Law Judge Harold B. Lawrence for
the purpose of considering what role, if any, the
unlawful disciplinary warnings played in the dis-
charges and/or suspensions of these employees.
The judge shall prepare and serve on the parties a
supplemental decision containing findings of fact,
conclusions of law, and a recommended Order in
light of the Board's remand. Following service of
such supplemental decision on the parties, the pro-
visions of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
IT IS FURTHER ORDERED that the election held
on 12 November 1982 in Case 39-RC-315 is set
aside and that a new election be conducted.
[Notice of Third Election omitted from publica-
tion.]
DYNAMICS CORP. OF AMERICA 923
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with loss of your
jobs or of your seniority and existing wage benefits
or threaten to cease business operations if you
select Teamsters 1040, Brewery and Soft Drink
Workers, Liquor Drivers & New and Used Car
Workers a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, AFL-CIO or any other labor organiza-
tion, as your collective-bargaining representative.
WE WILL NOT discharge you, suspend you, or
otherwise discriminate against you for engaging in
activities on behalf of the Union.
WE WILL NOT promise to increase your benefits
or grant bonuses in exchange for your abandon-
ment of support of the Union.
WE WILL NOT make any statement nor do any
act that would give you the impression that any of
your activities that are protected activities under
the National Labor Relations Act are subject to
surveillance by us.
WE WILL NOT in the event that you select or fail
to reject a labor organization as your collective-
bargaining representative take any of the following
actions because you have done so or in retaliation
therefor : announce that we are issuing warning no-
tices to you, suspend you, institute stricter enforce-
ment of attendance and punctuality policies or any
other disciplinary policies , or impose more onerous
terms and conditions of employment on you.
WE WILL NOT do any of the following things in
order to induce you to reject any labor organiza-
tion as your collective-bargaining representative:
promise to expunge warning notices from your per-
sonnel files , promise wage increases or other bene-
fits, or promote contests wherein awards and prizes
are promised for antiunion slogans.
WE WILL NOT impose more onerous terms and
conditions of employment on prounion employees.
WE WILL NOT prohibit union adherents from dis-
cussing union matters in the plant without clearly
setting forth when and where they may talk to
other employees about union matters.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Brian Colbree and Robert Smith
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL make Gerthel Bember whole, with in-
terest, for any loss of earnings and benefits he may
have suffered by reason of his unlawful suspension
on 8 April 1982 which suspension is revoked.
WE WILL remove from our files any references
to the discharges of Brian Colbree and Robert
Smith on 14 May and 13 July 1982, respectively,
and to the suspension of Gerthel Bember on 8
April 1982. and WE WILL notify them in writing
that this has been done and that evidence of their
unlawful discharges and suspension , as the case
may be, will not be used as a basis for future per-
sonnel actions against them.
WE WILL rescind and expunge from the files of
Christine Dumas, Miguel Lugo, Renan Reyes,
Mark McGraw, James Bryant, and Thomas John-
son any and all warnings issued after 28 May 1982
pursuant to our stricter enforcement of our attend-
ance and punctuality policy and WE WILL notify
them in writing that this has been done and that
evidence of these unlawful warnings will not be
used as a basis for future discipline against them.
FERMONT, A DIVISION OF DYNAMICS
CORPORATION OF AMERICA
Jonathan B. Kreisberg and Greg Adler, Esqs., for the Gen-
eral Counsel.
William C. Bruce, Esq. (Lynch , Traub, Keefe and Snow),
of New Haven , Connecticut, for the Respondent.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was tried before me on February 7-11, 1983, at
Bridgeport, Connecticut, and Fairfield, Connecticut, on
consolidated complaints embracing a number of charges
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and amended charges of violations of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act) and
objections to an election conducted under the auspices of
the National Labor Relations Board on November 12,
1982.1 The charges were filed at various times between
April 29 and December 3 by Teamsters Local 1040,
Brewery and Soft Drink Workers, Liquor Drivers and
New and Used Car Workers a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union) and arise from allegedly
unlawful conduct of the Respondent, Fermont, a Divi-
sion of Dynamics Corporation of America, in connection
with an election conducted on May 14, pursuant to a pe-
tition filed by the Union and in connection with a rerun
election conducted on November 12. Local 363 of the
International Brotherhood of Electrical Workers (IBEW)
participated in the election of May 14 but on May 31,
1982, disclaimed any further interest and did not partici-
pate in the second election.
Almost 50 separate violations of the Act, embracing
most of the categories of unfair labor practices, are al-
leged to have been committed by named supervisors of
the Respondent.2 Most are alleged to have been commit-
ted during the period from January through June by
threatening employees, creating an impression of surveil-
lance, interrogating employees respecting concerted pro-
tected activities, promising wage increases, promotions,
and improved working conditions, promising to remove
warning notices from employees' personnel files, and, in
one particular instance , by coercing an employee, James
Bryant, because he had voted in favor of the Union.
There are additional allegations that the Respondent of-
fered inducements to employees to vote against the
Union by the grant of prizes in a contest and by giving a
wage increase to an employee named Thomas Johnson.
More onerous working conditions are alleged to have
been imposed by strict enforcement of a previously unen-
forced punctuality rule and by restricting the movements
1 All dates mentioned hereinafter are in 1982 except as expressly stated
otherwise
2 There is no issue respecting
involved are the following
Donald Pendzimas
Charles Davis
Ronald Santry
Lajunta Roberti
Mary Jane Zuzick
Joseph Adante
George Miller
Wilfredo Garcia
Geoffrey Liptak
Robert Abbatello
their supervisory status The personnel
Company President
Supervisor Sheetmetal & Welding
General Foreman
Supervisor Finish Stores
Supervisor Stock Room
Personnel Director
Supervisor Paint Shop
Supervisor Assembly
Manager Quality Control &
Inventory Control
Supervisor Electrical Dept.
Charles Foldvary Chief Engineer
Frank Aganito Plant Manager
William Biersworth Traffic Manager
Joseph DeCrescenzo Quality Control Supervisor
Michael Szarmach Foreman Quality Control
Carl Zukunft Supervisor Electrical Department
Steven Bassett Supervisor
of an employee (Robert Smith) in the plant. Some viola-
tions are alleged to have been committed thereafter.
There are, in addition to the foregoing, allegations of
layoffs, suspensions, and discharges, both during and
after the period mentioned, which are claimed to have
resulted directly from involvement in union activity by
the employees. Thus employees are alleged to have been
laid off unlawfully, or are alleged to have been unlawful-
ly suspended, during the period from March 3 through
December 4.
Certain of the unfair labor practices alleged to have
been committed since May 14 form the basis of the ob-
jections (1 and 3) filed by the Union to a second election
held on November 12, which are before me pursuant to
an order dated December 30, 1982, consolidating those
aspects of Case 39-RC-315 with the unfair labor prac-
tices complaints. The objections read as follows:
1. The company since May 14, 1982, discharged
12 or more pro-union employees to discourage the
support of the union from the remaining working
employees.
3. Since May 14, 1982, the company has interro-
gated employees, one at a time or in very small
groups, to discourage their union support.
The Respondent's answers denied the material factual
allegations of the complaint respecting these violations.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce relevant evidence. Posthearing briefs have been
filed on behalf of the General Counsel and the Respond-
ent.
On the entire record and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
There is no issue as to jurisdiction.
The Respondent' s answers admit that Respondent, a
New York corporation with offices and manufacturing
facilities in Bridgeport, Connecticut, is engaged in assem-
bly of diesel engine generator sets, and that for the 12-
month period ending December 31, 1981, it sold and
shipped products valued in excess of $50,000 from its
Bridgeport facility to points outside of the State of Con-
necticut, and that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Accordingly, I find that at all material times the Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Respondent denied knowledge or information suf-
ficient to form a belief whether Teamsters Local 1040
was a labor organization within the meaning of the Act.
During the hearing, testimony was received from
Edward Iulo to the effect that Teamsters Local 1040, of
which he is secretary-treasurer, is organized as a non-
profit corporation, chartered in 1934, for the purpose of
DYNAMICS CORP . OF AMERICA 925
representing employees and negotiating bargaining agree-
ments with contractors ; that in the course of its oper-
ations it negotiates with employers , admits employees to
dues-paying membership , holds monthly meetings of the
membership and special meetings as necessary , at which
employees are permitted to vote , and at which there
were conducted and discussed the good and welfare of
the Union , the union business , upcoming contracts and
upcoming organization drives, deals with employers con-
cerning disputes , wages, grievances , hours of work and
conditions at work ; and that it is a party to numerous
collective -bargaining agreements that it has entered into
with employers . Local 1040 has been certified by the Na-
tional Labor Relations Board as the exclusive bargaining
representative of units of employees on many occasions
and including a number of large well-known corpora-
tions. It has a constitution and bylaws and is affiliated
with Teamsters Joint Council No. 64 , Eastern Confer-
ence of Teamsters , International Brotherhood of Team-
sters. The National Labor Relations Board has issued
certifications of election of the Union as representative of
employees in several well-known companies . It became
affiliated with the Teamsters in 1953 and presently has
over 300 members.
I accordingly find that the Union is and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act . I make a similar find-
ing in connection with IBEW , whose status was not dis-
puted.
II. THE UNFAIR LABOR PRACTICES : VIOLATIONS OF
SECTION 8(A)(1)
A. Background
After being contacted in January by Robert Smith and
other employees of Respondent who were interested in
changing their collective -bargaining representation, the
Union filed a petition for certification in March. An elec-
tion was held under Board auspices on May 14 . Objec-
tions were filed and a second election was ordered to be
held on November 12. The Respondent carried on an en-
ergetic campaign prior to each of the elections to con-
vince the employees that they should reject any union.
All administrative officers and supervisors appear to
have been involved in this effort, including Donald
Pendzimas , the president of Respondent at the time,
Charles Davis, supervisor of sheet metal and welding,
Ronald Santry , general foreman , Frank Aganito, plant
manager and director of manufacturing , and Joseph
Adante, personnel manager.
B. Threats
Joseph DeCrescenzo, the quality control supervisor
(described in his own testimony as the "quality assurance
manager"), is alleged to have made threats on four un-
specified dates during the month of April and an addi-
tional threat on April 22, 1982. He allegedly threatened
employees with discharge , threatened plant closure, and
threatened loss of seniority , wages, and other unspecified
benefits.
John J . Klinko, a stock clerk in the parties store from
December 28, 1981 , to July 2 , 1982 , testified that he was
restocking parts in the quality control section between 10
and 11 a.m. in April 1982, and participated in a conversa-
tion among three of the supervisors , Biersworth, Szar-
mach, and DeCrescenzo , and several employees: Rafael
Reyes, a girl named Joanne , Mary Ferreira , and Frances
Temple . Klinko stated that he "came into another argu-
ment" with DeCrescenzo respecting the Teamsters after
having had a discussion with Biersworth . According to
Klinko, DeCrescenzo asked him if he was aware " that if
the Teamsters come in here , you stand a very good pos-
sibility of losing what you already have . There is a
woman here , Fran Temple , who has been with the Com-
pany some 10 odd years , and she may lose everything."
Klinko also asserted that DeCrescenzo specifically sug-
gested that employees might lose seniority rights, their
present wage position , and benefits . He quoted DeCres-
cenzo as saying "the only thing the company is obligated
to provide to us is, No. 1, wages , and No. 2, the retrac-
tion of social security from our paychecks."
The making of these remarks by DeCrescenzo is con-
firmed by other testimony . Mary Ferreira , participant in
a noisy conversation on that April morning in 1982 , testi-
fied that DeCrescenzo said that "If the Teamsters come
in, the company might just fold up and get out. And that
all Teamsters are good for is breaking picket lines and
starting riots and smashing cars and what not ." She as-
serted that he stated that if the Teamsters came in,
"They lost everything . We have to start from the begin-
ning ." She also confirmed his reference to Miss Temple
as an example of what would be lost . Almost the identi-
cal testimony was elicited from Josephine Zukowski.
Rafael Reyes testified that DeCrescenzo , who was his
supervisor , called him into his office on a number of oc-
casions to try to persuade him to vote against the Union
and that one of his specific arguments was that if they
voted for the Teamsters , the employees "are going to
start everything from scratch . What I mean by scratch is
start everything from the beginning for benefits , salary
and everything ." He used the situation of Frances
Temple as an example , arguing the unfairness of the
prospect that she might have to start again from the be-
ginning notwithstanding her many years of employment
with the Respondent . He further stated , according to
Reyes, "that before Mr. Pendzimas makes a deal with
the Teamsters , he will close down the doors ." Another
argument used by DeCrescenzo was that all the Team-
sters were known for was damaging cars, slashing tires,
and threatening people.
DeCrescenzo 's testimony in rebuttal was not convinc-
ing. In response to specific questions put to him by his
counsel he explicitly denied ever having told Fermont
employees that Penzimas would close the place down if
the Teamsters came in , or that all the Teamsters do is
damage cars and commit violence. He asserted that he
had an honorary withdrawal card from the Teamsters,
which I do not find to enhance his credibility or require
a discrediting of the employees ' testimony.
DeCrescenzo specifically denied that on four separate
occasions in April he threatened employees with dis-
charge if they voted for the Union , that he threatened
them with plant closure if the Union was elected as bar-
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining representative, or that there would be any loss of
seniority, wages, or other benefits in such case. He re-
peated the denials with respect to the specific date of
April 22, 1982. Nevertheless under questioning by his
own counsel he conceded that it was "very possible"
that he had in fact had a conversation in the quality con-
trol office, during which seniority was mentioned, al-
though he did not connect it with any mention of Tem-
ple's seniority.
DeCrescenzo testified that he spoke to employees on a
daily basis during the campaign, reaching every employ-
ee under his supervision at one time or another. At that
time he supervised 19 employees. He spoke to each of
the employees personally at least once and in addition
held group meetings jointly with Adante, the personnel
manager, at which they both addressed the employees.
I am cognizant of the difficulty faced by DeCrescenzo
and the other supervisors in attempting to prove the neg-
ative of an issue. However, mere denials, without testi-
mony supplying the details of the discussions that actual-
ly occurred, are insufficient to offset clear and specific
testimony of the employees regarding these events.
DeCrescenzo and the other supervisors were placed on
the stand by Respondent's counsel and made orchestrat-
ed denials of the allegations of the complaint. None of
them offered a substitute version of the conversations
testified to by the employees. In the present case, there-
fore, I am reluctant to dismiss the testimony of Klinko,
Reyes, Ferreira, and Zukowski respecting a conversation
on which all of them agree with respect to all pertinent
details . There is no question in my mind, in view of the
emphasis placed by all of them on particular facets of
those discussions, that their testimony was reviewed
among themselves, but this does not by itself impair
credibility inasmuch as the preparation of witnesses for
the giving of responsible testimony at a hearing is recog-
nized as a legitmate facet of trial preparation. Respond-
ent's counsel made no issue of it and I mention it only in
connection with my own appraisal of the evidence. I do
not believe that the testimony of the named employees is
offset by DeCrescenzo's denial, unaccompanied by any
testimony from DeCrescenzo setting forth an alternate
version of the pertinent events.3
I do find that specific instances of the making of
threats have been proved to the extent of the statements
alleged to have been made by DeCrescenzo in the course
of the animated discussion that took place on April 22.
While Reyes is vague as to the dates of his private dis-
cussions with DeCrescenzo, he has testified credibly
with respect to the making of statements constituting un-
lawful threats on other occasions.
S In connection with the difficulties of determining whether a dis-
charge was discriminatory, it has been said (Shattuck Denn Mining Corp
v. NLRB, 362 F 2d 466, 470 (9th Cir 1966))
Actual motive, a state of mind , being the question , it is seldom that
direct evidence will be available that is not also self-serving In such
cases, the self-serving declaration is not conclusive; the trier of fact
may infer motive from the total circumstances proved Otherwise no
person accused of unlawful motive who took the stand and testified
to a lawful motive could be brought to book
The specificity of testimony is also a legitimate factor that may be
weighed in evaluating the evidence Teamsters Local 89 (Northland Main-
tenance), 248 NLRB 693 fn 2 (1980)
Accordingly I find that DeCrescenzo made threats to
employees of loss of seniority and existing wage benefits
and other terms and conditions of employment and
threatened plant closure if the employees selected the
Union as a bargaining representative and that such
threats were made on or about April 22, 1982, and on at
least one other occasion during the month of April 1982.
I do not find, however, that DeCrescenzo ever threat-
ened specific employees with discharge if they selected
the Union as their bargaining representative. There is no
evidence in the record of such a threat by him. No such
claim is made by any of the employees who participated
in the general conversation in the quality control section
on April 22, 1982. Reyes makes no reference in his testi-
mony to the making of any such threat during his private
conversations with DeCrescenzo in DeCrescenzo's
office. In fact, such a threat by DeCrescenzo would have
been inconsistent with his threat that the employees
would have to start from scratch insofar as wages and
benefits were concerned, a threat that manifestly contem-
plates their continued employment.
1. Michael Szarmach
Michael Szarmach was the foreman in the quality con-
trol section and is identified by some witnesses as a par-
ticipant in the above-mentioned conversation in the qual-
ity control section on April 22, 1982. No one, however,
has ascribed any particular threat to him. His mere pres-
ence at a meeting in which a substantive threat of dis-
charge is made to an employee if the employees select
the Union as their collective-bargaining representative is
insufficient to permit the threat to be ascribed to him.
This is especially true in this instance because the proof
establishes that several conversations were going on si-
multaneously as well as consecutively among subgroups
of those present.
Accordingly, I find that there is no evidence to estab-
lish that Michael Szarmach made threats that employees
would be discharged if the Union were selected as their
bargaining representative.
2. Joseph Adante
Joseph Adante, Respondent's personnel director, is al-
leged to have threatened Respondent's employees with
discharge and with other unspecified reprisals unless they
discontinued their protected concerted activities. This is
claimed to have occurred early in January. The allega-
tion is founded on testimony by an employee named
Juan Hernandez, a general maintenance mechanic under
the supervision of Carl Zukunft, that he discovered that,
although he was doing the same electrical work as two
other workers, he was not receiving the same pay and
attributed the differential to discrimination and filed a
complaint with the Civil Rights Commission. Before
doing so, he discussed the question of unequal pay with
Adante. Adante pointed out to him that he was compar-
ing himself to a man who was employed as an electri-
cian, not as a maintenance mechanic. When he told
Adante that unless the inequality were rectified he would
file a complaint with the Civil Rights Commission,
Adante called him a wise guy and a troublemaker. When
DYNAMICS CORP. OF AMERICA 927
IBEW refused to take the matter to arbitration for him,
he circulated a petition to change the union, on which he
collected 106 signatures.
In December 1981, he was summoned to Adante's
office for a conference with Adante and Zukunft. Zu-
kunft had, prior to that, asked him about the petition and
he had denied circulating such a petition. Between then
and the time of the meeting, some pages of signatures
that Hernandez had placed in his locker disappeared. At
this meeting, Adante told him flatly to stop collecting
signatures to change the union, that he was acting as a
troublemaker in the way he was going about it and,
when Hernandez denied circulating the petition, that
somebody had told him that Hernandez was circulating a
petition and he wanted it stopped.
This conversation, as testified to by Hernandez, does
not appear to have involved any threat. Hernandez did
not quote any kind of threat by Adante and, when asked,
could recall nothing having been said other than what
has just been summarized. A very different situation
came into being, however, following Hernandez' suspen-
sion later in the month, around Christmastime, for leav-
ing without punching out. Hernandez testified that he
had the flu and only came in to collect his pay and to
make sure that he got paid for the day before the holi-
day. He left through a back door, which was a forbidden
practice. Respondent sent him a telegram at home advis-
ing him that he was suspended because he had left with-
out punching his card and had left by the back exit. In
an effort to be put back to work, Hernandez asked the
IBEW shop steward to intervene. A meeting was held in
Adante's office at which the IBEW steward, Zukunft,
and Hernandez, were present. Hernandez testified that
Adante said that if he dropped the charges before the
Civil Rights Commission and stopped circulating the pe-
tition to change the Union he could go back to work on
probation. He agreed and returned to work about 2-1/2
weeks later. Hernandez testified that Adante warned him
he was not supposed to get involved in union activities,
that he was on probation, and that he was to work
straight.
There was no substantial credible rebuttal testimony
respecting Hernandez' version of this conference. Adante
laconically replied "No" to a question put to him by Re-
spondent's attorney whether in January 1982 he had
threatened employees with discharge if they did not
cease their protected concerted activities and to another
question similar in form, basically repeating the literal
language of the complaint, regarding whether he had
threatened unspecified reprisals. He did not deny that
conversations had taken place at the times and places tes-
tified to by Hernandez or that the parties named by Her-
nandez had attended. No alternative version of the con-
versations was offered.
I find no reason to discredit Hernandez' testimony in
favor of Adante's insubstantial denial. Adante converted
Hernandez' suspension into probationary employment on
his cessation of activities protected by Section 7 of the
Act. Accordingly, I find that in January 1982 the Re-
spondent, acting through Adante, threatened Hernandez
with discharge if he did not cease protected concerted
activity. As there is no evidence that Adante threatened
any other particular form of reprisal or made threats of
reprisal without specifying the nature thereof, I do not
find that Respondent, acting through Adante, threatened
employees with unspecified reprisals if they did not cease
their protected concerted activities.
C. Threats and Creation of Impression of Surveillance
by Garcia and Zukunft
It is alleged that Wilfredo Garcia, in late January, and
Carl Zukunft, in early February, created an impression
among employees that their protected concerted activi-
ties were under surveillance, and threatened them with
discharge and unspecified reprisals if they did not cease
their union activity and protected concerted activities.
These allegations are supported by testimony by Juan
Hernandez that early in February he had a conversation
with Garcia, while he was working on an air condition-
er, in which Garcia told him, as a friend, that if he kept
on with the union activity he was going to get fired and
kicked out of the plant. About the same period of time
(Hernandez fixes it as occurring in late January) Carl Zu-
kunft told Hernandez that he knew he was still engaged
in union activity "and they are watching you. You're a
good man. They are going to fire you." Hernandez' testi-
mony makes it clear that he felt that Zukunft was trying
to give him advice. He did not construe it as a threat.
When he denied that he was engaging in union activity
Zukunft told him that someone was taking messages to
the office and they knew what he was doing. Hernandez
testified that he concluded that Garcia was a spy for the
Company because Garcia told him that he, Garcia, knew
what Hernandez was doing and that he would get fired
for it. Because Hernandez ceased talking to other em-
ployees in Garcia's presence, many of the other employ-
ees also stopped talking to Garcia. Garcia consequently
became very angry with Hernandez, with results that are
discussed below in connection with Hernandez' dis-
charge.
I do not credit Hernandez' testimony respecting Zu-
kunft, which in any event indicates clearly that Zukunft's
remarks were not made in the form of a threat. Zukunft's
relaying of information to Hernandez that Hernandez
was under observation seems to have been done in a
spirit of friendly advice rather than by way of an attempt
to interfere with Hernandez' rights under Section 7 of
the Act There is no evidence that management directed
Zukunft to talk to Hernandez or knew of it. Accordingly
I do not find, on the basis of Hernandez' testimony, that
Zukunft either threatened Hernandez or created, or at-
tempted to create, an impression of surveillance. Such a
finding is, however, indicated with respect to Garcia,
who early in February threatened Hernandez with dis-
charge and created an impression of surveillance (in Her-
nandez' opinion he obviously was committing surveil-
lance) by a flat statement that he knew what Hernandez
was doing in connection with the Union and that he
would be fired if he did not stop it. I credit Hernandez'
testimony that such statements were made by Garcia.
They were of such as to convey an impression that
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Garcia possessed positive knowledge and that a surveil-
lance had been mounted.4
Garcia's own testimony was not sufficient to dispel the
impression left by Hernandez' testimony. Without deny-
ing that he had conversations with Hernandez at the
times and places indicated (after initially testifying that
he had never spoken to Hernandez about anything prior
to February) he was put through the previously de-
scribed routine of uttering systematic denials of the alle-
gations of the complaint by Respondent's counsel. On
being asked by Respondent's counsel whether the allega-
tions of the complaint were correct that in late January
or early February 1982 he created an impression that em-
ployees were under surveillance, that he threatened em-
ployees with unspecified reprisals if they did not cease
their union activity, and that he threatened employees
with discharge if they did not cease their union activities
and concerted protected activities, he answered simply,
"Not true." No attempt was made to furnish information
about what was true.
In marked contrast, Zukunft, besides being led through
the allegations of the complaint by Respondent's counsel
and replying to each, "Definitely not," had also fleshed
out the details of his contacts with Hernandez in Febru-
ary. He testified, credibly, that one morning in mid-Janu-
ary about 8 a.m. he told a group of employees that in-
cluded Hernandez that if they wanted to talk about
union affairs they would have to punch out because they
were not going to talk union business on company time.
The discussion was about the incumbent IBEW steward
and not about the Teamsters local. The group broke up
and there were no further repercussions. Zukunft denied
ever telling Hernandez that he was a troublemaker and
denied having told him to stop circulating a petition. He
denied having been aware that Hernandez was circulat-
ing a petition. During this period, he approached Her-
nandez on several occasions to encourage him to take
night courses to further himself, a circumstance that he
advanced as evidence of an altogether different frame of
mind than that which would have led him to commit any
of the violations alleged.
On the basis of the foregoing, I find that Wilfredo
Garcia made threats of discharge to Hernandez and cre-
ated an impression of surveillance in February. Carl Zu-
kunft did not.5
D. Geoffrey Liptak Threats, Impression of
Surveillance, Interrogation
It is alleged that in April and May the Respondent,
through Geoffrey Liptak, threatened employees with dis-
charge if they continued union or protected concerted
activity, created an impression among employees that
their union activities were under surveillance, and inter-
rogated employees regarding their union membership,
activities, and sympathies.
Only one witness, John Klinko, testified with respect
to Liptak. Klinko testified that in late April and early
May Liptak addressed groups of employees and tried to
rally them in support of the Company. As quoted in
Klinko's testimony, he asserted that Dynamics Corpora-
tion of America, the parent corporation, was putting up
a lot of money for expansion of Fermont but, because
the Teamsters were trying to get in, the money had been
"put on hold" pending the outcome because Dynamics
Corporation of America did not want the Teamsters.
There was no real rebuttal to Klinko's testimony. Liptak
was run through the routine of making pro forma denials
of the literal allegations of the complaint by Respond-
ent's counsel, but never furnished any version of his own
respecting the events and statements to which Klinko
had testified. I credit Klinko's testimony and find that
Liptak's statement constituted a patent coercive threat to
the job security of the employees and was phrased, not
as a recitation of history and fact , but as a statement of a
continuing holding pattern by Dynamics Corporation of
America with potentially adverse effects on employment
if the Union became the employees ' bargaining ageent,
and was stated with the intent to intimidate the employ-
ees who heard it.6
Klinko's testimony that Liptak would look at him and
at Robert Moura, who at that time were union support-
ers, does not prove that Liptak necessarily watched them
for that reason, and I do not consider it sufficient to jus-
tify a finding that Liptak sought to create an impression
of surviellance. Nor do I find Liptak's enthusiastic decla-
ration, "We're all going for the company, right?" to be
coercive interrogation. The circumstance that he re-
ceived a unanimously explicit negative response demon-
strates that the employees who heard him did not so
regard it.
Liptak's activities are described in an affidavit fur-
nished to the Board by Thomas L. Johnson on July 20,
1982. Johnson declared that Liptak had meetings in the
stockroom at which Klinko and Moura were present.
Liptak, according to Johnson, "asked us how we intend-
ed to vote in the election." He recites that Moura said he
intended to vote for a union.
I do not credit the statement contained in Johnson's af-
fidavit. Klinko, an educated and alert witness, made no
mention of it whatsoever in his testimony.
Accordingly, I find that Liptak made a threat of loss
of employment if the Union became the employer's bar-
gaining representative but did not commit the other of-
fenses alleged.
E. Robert Abbatello
4 Maxwell's Plum, 256 NLRB 211 (1981), Clements Wire & Mfg. Co,
257 NLRB 206 (1981)
5 I do not credit Hernandez' testimony attributing certain remarks to
Adante and George Miller , remarks that would not in any event neces-
sarily demonstrate that surveillance was being perpetrated or that there
was an attempt to create an impression of surveillance Adante's remarks
are quoted below in connection with the discussion of the discharge of
Hernandez and were manifestly intended to call attention, quite properly,
to his probationary status
I am aware of no evidence to sustain the allegations of
the complaint that in May Robert Abbetello interrogated
employees or made threats of unspecified reprisals if the
Union was selected as the bargaining representative. He
made the usual routine denial in response to quotations
from the complaint by Respondent's attorney. In addi-
6 PPG Industries, 251 NLRB 1146 (1980)
DYNAMICS CORP. OF AMERICA 929
tion, he expressly denied, in response to questions put to
him by Respondent's counsel, that in conversations with
employees he had asked them how they intended to
vote, that he had discussions with them about the Union,
or that he had threatened them or promised them any-
thing. He insisted his discussions with employees were
limited to the subject of the advantages of voting non-
union, that is, in favor of no union at all.
Accordingly, I find that the charges that Abbetello
conducted interrogations or made threats have not been
sustained.
F. Frank Aganko
Frank Aganito is alleged to have interrogated employ-
ees regarding their union membership, activities, and
sympathies in late April and to have threatened employ-
ees with unspecified reprisals if the Union were elected
as their bargaining representative early in May. These al-
legations rest on testimony by Klinko and John Joseph
Grace. According to Klinko, a speech rebutting a letter
that had been circulated by the In-Plant Committee was
given to the employees by a representative of Dynamics
Corporation of America, who came from its office at
Greenwich, Connecticut. Klinko was standing next to
Aganito during the talk. After the speech, Aganito com-
mented that it was a good speach, whereupon Klinko re-
sponded that it was "All right." Aganito then asked him,
"what are these vibes I hear about you?" When Klinko
said he did not understand Aganito's question, Aganito
asked him, "You're going for the Union?" Klinko re-
sponded in the affirmative. Aganito pointed out that with
Klinko's educational background he could anticipate
company assistance in going to school or at least could
anticipate moving ahead more rapidly in the Company if
there were no union. He then said, "Think about it and
let me know at the end of the day."
Aganito's statements, as quoted by Klinko, do not
import the withholding from Klinko, in the event of a
union victory or in the event of his decision to support
either union, of anything that Klinko then had or reason-
ably could expect to receive in the foreseeable future.
The Company concededly, to Klinko's knowledge, had
no program of financing its employees' education. Poten-
tial promotion would in normal course depend on the
usual variegated factors that determine such matters in
any business operation. No threat is implicit in Aganito's
remarks to Klinko, but they did, however, constitute a
coercive interrogation in which Klinko was expected to
announce within a given deadline what his decision was
going to be with respect to the Union.
John Grace, a machine operator, testified that in
March he signed a union card and attended union meet-
ings. In late April he began wearing a Teamsters T-shirt.
Aganito noticed the T-shirt and asked him why he was
wearing it. He quotes Aganito as saying, "I thought you
were going to vote company" and continuing with a dis-
sertation on how the Company could help more than the
Union could. Grace did not say anything in response to
Aganito's remark about voting in favor of the Company.
Grace testified that he had two or three conversations
with Aganito in the same vein and that all of them oc-
curred after he began wearing the Teamsters' T-shirt.
Aganito denied discussing the T-shirt with Grace.
However, he hedged his denial by saying that he never
discussed any clothing "other than a safe or unsafe con-
dition with anybody's clothing." He denied ever asking
Grace whether he was going to vote for the Company
or for the Union. Aganito went through the pro forma
denials of the allegations of the complaint as read to him
by Respondent's attorney.
It is conceded that Aganito, like other supervisors,
conducted an intensive campaign among the employees.
At the time of the union campaign and throughout the
period between the two elections, he was serving as
plant manager , and subsequently as director of manufac-
turing, supervising almost 200 employees, and he testified
that he spoke to every one of them more than once. He
held group meetings and was unable to recall precisely
how many he held, indicating that the number was not
insubstantial. He spoke to employees before the first elec-
tion and again before the second election and held group
meetings at both times. He was thus actively engaged in
the campaign. It is the employees' testimony that he
went over the line, and slipped into a violation of the
Act in the course of his intensive campaigning. No
reason is shown why that testimony should not be ac-
cepted.
Accordingly, I find that Aganito, in late April, interro-
gated employees respecting their union activity, pressing
both Klinko and Grace for information in this respect. I
do not find that he made any threats of unspecified re-
prisals.
G. Mary Jane Zuzick
It is alleged that Mary Jane Zuzick, the stockroom su-
pervisor, created an impression of surveillance on June 1.
Klinko testified that she knew he was a union supporter.
They had frequent discussions in which she kept trying
to find out why he was so much in favor of the Team-
sters. When she discovered him circulating union cards,
she argued that the net result would be to subject em-
ployees to a Teamsters initiation fee. They argued about
what would be required to be paid in addition to normal
union dues . Klinko testified that on July 1, 1982, Zuzick
came into the stockroom at approximately 11 o'clock.
She was very upset. She gathered stockroom employees
together and announced that her position was being
taken over by somebody elese and that she was leaving
the Company. According to Klinko, she then burst into
tears and, looking directly at him, stated, "People, be
very careful, stay busy. There are going to be some big
changes around here." She then broke down and cried
and walked out of the stockroom.
Mary Jane Zuzick, no longer an employee of the Re-
spondent, did not appear at the hearing. Klinko's testimo-
ny respecting her is uncontroverted. However, none of
the remarks attributed to her, considered in the light of
the circumstances in which Klinko testified they were
made, appear to have had any coercive content or intent.
Her discussions with Klinko were in the nature of friend-
ly discussions respecting the pros and cons of union rep-
resentation, which she knew he supported. Her warning
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the employees on the day of her own discharge to be
careful was far from an intimation of surveillance.
It can hardly be contended that she could have made
such a statement, under the circumstances in which she
made it, by way of acting in the Respondent's interest.
The reverse was obviously the case.?
H. Further Allegations of Unlawful Interrogation
In addition to the instances previously mentioned,
there are allegations of unlawful interrogation by Charles
Davis, the superintendent of sheet metal and welding, on
several occasions in April; by LaJunta Roberti in early
May and on May 14; by William Biersworth, the traffic
manager , during the period from late October to early
November; by Ronald Santry, the general foreman, on
May 14; and by Steven Bassett , another supervisor, in
early November. The testimony with respect to these al-
leged interrogations was insubstantial.
John Grace, who worked under Davis, alleged that he
began wearing a Teamsters T-shirt in late April. Davis
spotted it and asked him why he was wearing the Team-
sters T-shirt. Grace made no reply. According to Grace,
Davis went into an explanation of how the Company
would do better for him than the Union could. This is
the only testimony I am aware of in which anything
even remotely approaching an interrogation took place.
It is not the type of coercive inquisition that violates the
Act. Accordingly, I find that no lawful interrogation by
Charles Davis has been proved.
The case against LaJunta Roberti was especially insub-
stantial . Robert Smith testified that on the morning of
the election three supervisors, Mary Jane Suzik, Charles
Davis, and LaJunta Roberti approached another employ-
ee, Robinson, who was a parts washer and utility man in
the paint shop. Smith concedes that he was not present
during the entire conversation because, according to him,
after Roberti observed that Smith was listening, she in-
vited Robinson into an office. All he heard was the start
of the conversation, in which she told Robinson that ev-
erybody admired his outstanding work record and she
was sure he did not want to do anything foolish by sup-
porting a Union. The conversation up to that point did
not constitute interrogation in violation of the Act.
Robinson testified about the rest of the conversation.
According to Robinson, Roberti threw a ballot down on
a desk and told him that that was how she was going to
vote. She showed it to him and said that was why she
was there and suggested that he ought to consider
whether he should not give the Company one more
chance. When he asked what she meant, she said, "An-
other chance to do better." He gave her a noncommittal
response and she dismissed him. According to Robin-
son's testimony, she never actually indicated which way
she was going to vote and did not draw his attention to
any particular portion of the ballot. Obviously, she
7 The absence of any coercion whatsoever distinguishes this situation
from the type of situation dealt with in PPG Industries, supra, which held
that the fact that an employer is a known union supporter of unshakable
convictions does not prevent coercive interrogation by a supervisor from
being held a violation of the Act It is well settled that a statement may
be held to be coercive regardless of whether the employee to whom it is
addressed is actually intimidated
meant for him to vote for the Company. At the very
least , her statements constituted an over-emphatic argu-
ment. However, there clearly was no unlawful interroga-
tion. The conversation proceeded on the assumption that
he was going to vote for the Union and she was trying
to dissuade him from doing so; she was not trying to
elicit information.
With reference to Biersworth, who did not testify at
the hearing, the only involvement on his part to which
anyone testified consisted of conversations that he had
with Klinko and McGraw as part of a general discussion
attended by several other supervisors. Klinko and Biers-
worth got into a discussion of the legality of the Team-
sters and the obligation of employees to walk out when a
strike is called. The only statement to Klinko attributed
directly to Biersworth is a statement to the effect that
the Teamsters had a propensity for violence followed by
a question: "Would you want that here at Fermont?"
Such statements are obviously legitimate arguments and
discussions in the course of a union campaign and do not
remotely approach coercive interrogation in violation of
the Act.
Biersworth's discussion with McGraw was that he
wanted McGraw's views about the Company and the
Union. He asked McGraw if the Company had made any
improvements and he asked him whether there was any-
thing he had against the Company that he wanted to talk
about. When McGraw indicated that he felt that the ter-
mination of some of the employees had been unfair and
that some of them really did not deserve what was done
to them, Biersworth simply commented that he wanted
to get McGraw's views about it and the way he felt.
These questions do not constitute unlawful interrogation
by Biersworth during the October-November period.
There is no testimony whatsoever in the record re-
specting interrogation by Ronald Santry of any employ-
ee in violation of the Act. In response to a question put
to him by Respondent's counsel he denied the allegation
of the complaint that he had interrogated employees
about May 14. No evidence was adduced by the General
Counsel. Accordingly, no violation of the Act by Santry
is found.
Steven Bassett was McGraw' s immediate supervisor.
A week and a half before the election he called McGraw
into his office for a discussion. According to McGraw,
"he mainly talked about how he felt," asserting that he
did not care whether there was a union there or not, but
he got along fine without a union and he could not care
less if the Union came in and that the chief reason he
thought the Company did not want the Union was be-
cause they did not want to have to make payments to
the Union. McGraw then testified that they joked about
the payments that the Union would exact "and went off
into something else."
McGraw himself testified that he did not think interro-
gation was the correct description of the discussion with
the employees; he believed Bassett had expressed his
own opinions and had talked about his own past experi-
ences in companies where there had been unions, and
had brought up both the good and bad points about
unions. This appears to me to be precisely what Bassett
DYNAMICS CORP. OF AMERICA 931
did, and I fail to find in his actions and statements any
violation of the Act by way of unlawful interrogation.
I. Coercion by Charles Davis
It is alleged that on June 3 Davis informed employees
that they were being disciplined for selecting the Union
as their collective-bargaining representative, and that on
that same date the Respondent issued a warning to its
employee James Bryant. Bryant testified that Davis gave
him two warnings for being late and for being absent in
the preceding April or May. Bryant testified that Davis
intimated that the warnings would be dropped if the
Company won the election. When Bryant asked Davis
why he was getting the warnings in June, Davis replied
that it was because the Company had not won the elec-
tion.
Davis, who prior to becoming a supervisor had been
the chief union shop steward for IBEW, testified that the
allegation in the complaint that on June 3, 1982, he in-
formed the employees that they were being disciplined
for selecting the Union as their collective-bargaining rep-
resentative was not true. He did not undertake, however,
to furnish any alternative version of his conversations
with Bryant and did not deny having had conversations
with Bryant.
As in other instances heretofore: discussed, apparently
credible testimony is not effectively rebutted by pro
forma denial of the literal allegations of the complaint. I
credit Bryant's testimony. I accordingly find that Re-
spondent is guilty of attempting to coerce employees in
the exercise of their rights under Section 7 of the Act by
announcing to the employees that the reason for the issu-
ance of warning notices after an election was that the
Company had not won the election.
While the quoted announcement is a clear violation of
the Act, the actual issuance of a warning notice to
Bryant is not proved to have been illegally motivated. I
do not credit Bryant's testimony that Davis promised to
remove the warning notice because his testimony is not
sufficiently direct and explicit. He testified that Davis in-
timated that the warning might be removed, but does not
quote an actual promise by Davis to do so. An "intima-
tion" rather than a directly quoted promise cannot be the
basis of a determination, since the interpretation of
Davis' meaning in making whatever remark he made
cannot be left to the witness, but is the responsibility of
the trier of fact. Even a directly quoted promise, howev-
er, would be more in the nature of an illegal inducement.
By itself, it would not prove that the notice had not been
issued to Bryant in conformity with existing company
policy and practice (which are discussed at length
below). Accordingly, I find no violation of the Act by
reason of the issuance to Bryant of the warning notice
itself.
J. Promises and Inducements
Promises of benefits and inducements in order to affect
the vote are alleged to have been made by Respondent
in violation of the Act. Charles Davis is alleged to have
made promises of wage increases in late March and on
May 7, 1982, together with a promise to remove warn-
ings from personnel files on May 7. Ron Santry is al-
leged to have made an offer to promote an employee on
May 14. The president of the Company, Pendzimas, is al-
leged to have promised improved working conditions
and to have solicited grievances on April 22, 1982, and
to have offered promotions in order to sway the vote on
May 14, 1982. A contest was held at which prizes were
awarded for procompany or antiunion slogans on May
13, immediately prior to the election.
An unlawful promise made by Davis on March 7 is
clearly established by the testimony of Christine Dumas,
who was employed under Davis as a spot welder from
August 31, 1981, until June 1982. At a meeting held in
the electrical department, Davis tried to convince her
and several other employees to vote against the Union.
He began by saying that he could not make promises to
anyone because the law forbade him to do so, but he
went on to state that if they voted against the Union
they would get an automatic raise on June 1, whereas if
they had a contract and had to negotiate with the Union,
it would take a long time after June 1 to get any in-
creases. She also testified about a further meeting held
on May 7 in Davis' office, attended by herself, Aganito,
and another employee. Dumas testified that Davis told
them that because they seemed to be undecided who to
vote for, he wanted to try to convince them to vote
against the Union. He showed them a contract negotiat-
ed by another Teamsters local with another manufactur-
er, in which the wage scale was lower than at Fermont.
He again stated that they would get a raise on June 1
because without the Union they would not have to nego-
tiate a contract. On this occasion he also asserted that if
they voted against the Union "it would be like starting
all over again from square 1." Their disciplinary notices
would be dismissed and they would have clean records.
James Bryant testified that around late April Davis
promised him that if he voted against the Teamsters, all
warnings in his file would be removed, a promise seem-
ingly made in addition to the "intimation" referred to
above.
Though Aganito was present at the session with
Dumas, he did not exonerate Davis. He testified, not that
Davis did not say anything, but that he did not remem-
ber Davis saying anything, which impressed me as being
evasive. Aganito conducted the meeting and campaigned
for Fermont and explained to employees why they
would be better off without a union. He denied that em-
ployees had ever been promised a raise . His terminology
was, "No, no raises were ever promised." Such an all-
embracing denial, of course, technically covers Davis,
but falls short of committing Aganito to the proposition
that during the time he was in the meeting Davis had not
made such a statement. The best he could testify to was
that he could not remember Davis saying anything.
Davis' own testimony is equally vague at the critical
points. Thus he testified in general terms that he did not
ever tell employees at Fermont that they would get a
raise as of June 1, 1982, if the Union lost the election or
that if it lost the election all disciplinary warnings would
be eliminated or wiped out. He made the standard pro
forma denial of the allegations in the complaint that in
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
late March and on May 7 he made promises as quoted.
In response to a reading of each allegation by Respond-
ent's counsel , he replied , predictably, "That is not true."
He never attempted to enlarge on or explain the testimo-
ny of the employees involved , which contradicted him.
He admitted that prior to the first election he spoke
more than once to the employees whom he supervised
about the union campaign , individually and in group
meetings , and that he attended group meetings that were
conducted by other supervisors . His testimony parallels
that of the employees whom he was failing to contradict.
He admitted that in the course of telling them that they
could do better without a union , he told them that mone-
tary rewards for doing a good job might be better and
that they would advance better without a union. (He was
vague about how else he told them they might do
better.)
I therefore find that Davis promised a wage increase
in late March 1982 , and on May 7 , 1982, repeated the
promise and made a further promise to remove warnings
contained in the employees ' files. In doing so , he violated
the Act.
It is alleged that an offer was made to promote em-
ployees if they ceased their activities in support of the
Union . This promise was supposed to have been made
about May 14 . The allegation seems to find substance in
testimony by Klinko to the effect that an employee
named Thomas Johnson, who was employed with him in
the stockroom for about 3 months, received a promotion
to a job in the paint shop the Monday after the election.
Respondent 's answer admits that Johnson was trans-
ferred to the paint department with a concomitant
change in salary on May 24. Klinko testified that the day
before the election Johnson had disappeared from the
stockroom for approximately an hour and then returned
and advised his coworkers that he was being transferred
to the paint shop . According to Klinko , Johnson quoted
Santry to him as having told him, "You help us and
we'll help you ." However, no such statement is quoted
in either of the affidavits that Johnson furnished to a
Board investigator . Johnson was not available at the time
of the hearing and affidavits by him were taken into evi-
dence and considered by me in arriving at the decision.
According to Johnson 's affidavit of July 9, 1982, on
May 14 Ronald Santry "asked me how I felt about the
Company and if I thought we could work better without
a union . I told him I didn 't know . I then said some of the
companies I had worked for had no union and treated
their employees right but that had to be looked into as
far as Fermont was concerned ." Johnson then went on
to recite that Santry said he was going to offer Johnson
a job in the paint shop because he had worked in that
field and asked Johnson how he felt about it; Johnson
said , "Okay." He then continued , "Santry asked me to
think about working with the Company and I said I
would think about it."
Although this might be construed as a promise of a job
in return for support of the Respondent in the election,
which was held on May 14, other factors exist that lead
me to discount that possibility The application for a
change of job had been put in by Johnson beforehand
and could well have been acted on beforehand , but was
not; it was acted on when a night shift was established.
Furthermore , the response that Johnson made to Santry's
suggestion about working with the Company was hardly
an unqualified endorsement of the antiunion position. In
fact , Johnson made it abundantly clear that he did not
know if he agreed with Santry 's position and was wait-
ing to see Fermont 's actions before he made up his mind.
That kind of response cannot reasonably be deemed to
be the type that would lead to a job promotion , nor do I
read it as a suggestion that a transfer would be an appro-
priate quid pro quo for support of the Company.
Santry , who had actively campaigned in support of the
Company and had addressed groups of employees,
denied in the routine fashion the allegations that on May
14 he had offered to promote employees if they ceased
their union activities and ceased support for the Union.
His testimony went further , however . He made a com-
plete explanation of how Johnson 's transfer to the paint
department had come about at the time that it did. Ac-
cording to Santry , Johnson had had previous experience
as a painter and had inquired several times whether
openings existed in the paint shop . Johnson 's first request
for a transfer was made in April , after the union cam-
paign had started . Santry promised Johnson that he
would consider him and administered a test that Johnson
passed . Santry felt that Johnson was a reasonably good
painter . In May, a second shift was established in the
paint department , one not having existed before , and that
created a vacancy . Before Santry put Johnson on, how-
ever , he called Johnson ' s attention to his attendance
record . Santry testified that Johnson "appeared to be a
sincere young man." Santry denied having discussed the
pros and cons of the Union with Johnson at the time
they discussed Johnson 's possible transfer to the paint de-
partment , and he specifically denied having offered him
the transfer in return for a vote in favor of the Respond-
ent.
I found Santry to be a credible witness, and it appears
to me highly improbable that Respondent opened up an-
other shift in the paint department for the sole purpose
of buying Johnson 's vote . In essence , Johnson said noth-
ing in his affidavits that really contradicted Santry. In an
affidavit furnished to a Board agent on July 9 , Johnson
stated that he had begun working in Fermont in October
1981 as a sand blaster and was subsequently transferred
to the stockroom in December 1981. He signed a card
for Teamsters Local 1040 in April 1982 . On May 14, the
day of the election , Santry called him into his office and
queried him about how he felt about the Union and
whether he thought they could work better without that
Union . Johnson replied that he did not know , that previ-
ous companies that he had worked for had treated, their
employees all right without a union , but that the situa-
tion had to be looked into at Fermont. Santry told John-
son that he was considering him for a job as a painter in
the paint shop. Johnson had asked about the paint shop
in November 1981 and had been given a tryout at that
time . On May 20 , 1982, Santry asked him if he would be
willing to try out in the paint shop that very evening.
Johnson did so. He first worked the new second shift
and on May 21 he worked a double shift in the stock-
DYNAMICS CORP. OF AMERICA
room and in the paint shop. On May 22 he also put in
time both in the stockroom and the paint shop. He start-
ed in the paint shop permanently on May 24 . He earned
$4.80 an hour in the stockroom and earned $5.20 an hour
in the paint shop.
My reading of Johnson's affidavit does not lead me to
draw a connection between the discussion with Santry of
his union sympathies and the promotion. In a supplemen-
tal affidavit that he furnished to the Board agent on July
20, Johnson made it clear that his union sympathies were
known to management along with his intention to adhere
to them. Although Johnson unquestionably received the
desired transfer in spite of his poor attendance record (as
did Robert Smith, whose case is discussed below), I do
not believe that that circumstance requires me to discred-
it Santry's testimony. There is nothing strange about a
supervisor accepting and relying on an employee' s assur-
ance that he will improve his attendance when the super-
visor is promoting him to a job for which there is a va-
cancy, for which the employee is competent, and for
which the employee has been asking. This is what Santry
claims to have done.
I find no violation by reason of Johnson's promotion
or transfer to the paint department.
The involvement of Pendzimas, the president of the
Respondent, related to a charge that there had been a
promise of improvement of working conditions and so-
licitations of grievances on April 22 and a promise of
promotions on May 18.
Klinko testified that when Pendzimas met with a
group of employees in the latter part of April he told
them that he had not been aware that there was trouble
within the shop but he was becoming aware of it cur-
rently. Subsequently, he met privately with Klinko;
Klinko testified to his belief that Pendzimas ' statement
that he thought Klinko had wanted to see him was
simply a pretext. Klinko had not wanted to see him and
told him so, but Pendzimas nevertheless proceeded to
tell Klinko that he wanted to talk to the people who
were on the fence. He asked Klinko exactly what he was
looking for. Klinko told him that he was looking for ad-
vancement within the Company and a chance to use his
technical background. However, Klinko makes it clear in
his testimony that Pendzimas did not offer him a promo-
tion or make any promises to him:
Don never made any promises to me, I will say
that. He never made any promises to me but he
wanted to know where I basically stood. And he
felt that I could move with the Company. He kind
of injected that, but didn't get specific as far as any
promises.
'IQ. Did Mr. Pendzimas ask you if you had any
problems?
A. No sir he didn't. He did not ask me if I had
any particular problems.
Mary Ferreira, a quality control inspector in the re-
ceiving area who has been employed at Fermont since
April 25, 1977, testified that Pendzimas spoke to a group
in the spare parts area. Attendance at the meeting was
933
not mandatory. A piece of paper was simply passed
around for anybody to sign who wanted to have a meet-
ing with Pendzimas. She quoted Pendzimas as saying
that he could not promise them anything because of the
requirements of the National Labor Relations Act, but he
wanted to hear their gripes and grievances about the
Company. There then ensued a discussion about Pendzi-
mas' constantly calling attention to the worst things
about the Teamsters. Her testimony about the meeting
with Pendzimas was corroborated by the testimony of
another employee, Josephine Zukowski, who also attend-
ed the meeting and fixed its date as April 21, 1982.
James Bryant testified that in a private conversation
Pendzimas promised him that all warnings would be
dropped from the employees' personnel files if the Union
were defeated, but he did not affirm any of the other al-
legations against Pendzimas. I do not credit Davis' testi-
mony in this instance any more than I did with respect
his testimony about the same promise by Davis. The tes-
timony in the case of Davis was vague; here, the event
alleged is conveniently out of hearing of others.
Pendzimas, who served as president of Fermont from
October 1976 to January 1983, denied having made the
promises alleged. He expressly denied having told any
employee at Fermont that if the Union lost the election
warnings and disciplinary records would be erased or
that the plant would be closed if the Teamsters won the
election. He made routine denials of allegations of the
complaint to the effect that he had solicited employee
complaints on April 22 and had promised employees in-
creased benefits and improved terms and conditions of
employment, and that on May 18 he had offered employ-
ees promotions in order to discourage them from engag-
ing in union or other protected concerted activities. He
conceded that, beginning on April 1, he visited the shop
on a daily basis in a strenuous campaign to beat the
Union. However, there is nothing in any of the evidence
that would indicate he had violated the Act in so doing.
Accordingly, I do not find that on April 22 and May 18
he made the promises alleged in the complaint.
The antiunion contest involved an award of prizes on
May 13, the day before the election, for the following:
"Point out something good about Fermont or why ev-
eryone should VOTE NEITHER." The first prize was a
19-inch color television set. The second prize was a
microwave oven. The third prize was a food processor.
Respondent's conduct in this instance clearly violated
the Act. In effect, the contest awarded a prize consisting
of a financial return in exchange for antiunion activities.
The results were announced with great ceremony by
Adante and Pendzimas on the morning of May 13. A
loudspeaker system was set up on a platform in the final
assembly area and all the entries that had been submitted
by employees were presented. The winners were called
up to receive their prizes.
It is obvious that support of the Respondent and the
expression of an antiunion point of view was the prime
requirement for winning this contest and that the size of
the prizes offered was sufficiently large to create the
feeling of an obligation to support the Respondent's posi-
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion in the election. The contest was therefore in viola-
tion of Section 8(a)(1) of the Act.8
K. Strict Enforcement of Punctuality Rule
It is alleged that from and after May 28, the Respond-
ent strictly enforced a punctuality and attendance rule
that had not previously been strictly enforced.
The Employee handbook for hourly rated employees
issued by Fermont Division sets forth that the work
shifts are from 7 a.m. to 3:30 p.m. and from 3:30 p.m. to
12 p.m. (sic), presumably meaning midnight. The section
entitled "Attendance and Punctuality" contains the fol-
lowing provisions.
ATTENDANCE AND PUNCTUALITY
In order to maintain our operations efficiently
and be prepared to meet our customers' demands,
the company must depend on every employee to
work every day and to arrive at work on time. To
assure the program of attendance control is adminis-
tered in a uniform, fair, and impartial manner the
Personnel Department will monitor attendance on a
regular basis, and will issue a listing to each Super-
visor of those people whose absenteeism and tardi-
ness is excessive. The supervisor will be expected to
take the appropriate disciplinary action. The report
will also show what disciplinary action was taken
by the supervisor against violators in response to
the previous listing.
An excessive absenteeism offense shall be defined
as more than 2 total absence occurrences or more
than 3 tardiness or partial work days (includes leav-
ing early) or any combination of absence and tardi-
ness equalling more than 3 in any one calendar
month.
Personal days or time off; even those where the
supervisor is notified in advance, shall be counted in
the above total.
In accordance with the Management-Labor
Agreement an employee who is absent and fails to
notify the Company within three (3) working days
shall be terminated. Employees absent due to illness
or injury three (3) or more days must substantiate
this with a doctor's certificate.
An employee calling in absent will notify or have
someone notify the Company within two (2) hours
after the start of the shift on the first day of such
absence, stating the nature of the illness or injury,
and the anticipated date of return to work. The em-
ployee will keep the Company informed of any
changes in his or her anticipated date to return to
work.
Employees calling in absent between 7:00 and
8:00 A.M. should ask for their supervisor. Employ-
ees calling after 8:00 A.M. should ask for the Per-
sonnel Department. The company phone number is
366-5211.
Exceptions to the above policy are the following:
a. Authorized vacation time.
8 Thrift t Drug Co, 217 NLRB 1094 (1975).
b. Properly authorized Leave of Absence.
c. Death in family (limited as specified in the
Management-Labor Agreement).
d. Time lost for injury on the job.
e. Jury Duty.
Normal disciplinary procedure for excessive ab-
senteeism shall be as follows:
1st Offense-Verbal Warning (In presence of
Shop Steward).
2nd Offense-1st Written Warning
3rd Offense-Final Written Warning
4th Offense-Suspension from work without
pay (3 days).
5th Offense-Discharge
When an employee has not violated the attend-
ance policy for more than 6 months, previous warn-
ings shall become null and void.
This policy excludes probationary employees.
Adante explained that excessive absence or tardiness
was computed on the basis of "occurrence," without dis-
tinction between the two. Thus, an absence and two in-
stances of tardiness would be considered three occur-
rences, while an absence of several consecutive days' du-
ration would constitute one occurrence.
The contention that the rule was reinvoked by man-
agement in retaliation for the union activity of the em-
ployees rests on the testimony of a number of employees
that in June they received warning notices for occur-
rences in months prior to May. There is actually no ex-
position in the Handbook about when the warnings must
be issued, but Adante testified that normal procedure
was to issue warnings in the month following the month
in which an offense occurred and that the purpose of is-
suing disciplinary warnings under the policy was to put
employees on notice that they had a problem with their
attendance and to give their supervisor an opportunity to
talk to them and get them straightened out. The proce-
dure followed since institution of the policy in 1979 has
been to have the payroll clerk send the timecards to the
receptionist when he was through with them. She re-
viewed them once a month, under Adante's supervision,
and tabulated the number of occurrences per month for
each employee. The individuals who had exceeded the
policy in that month were listed and the appropriate
warning notices were prepared and delivered to their re-
spective supervisors, who then issued them. Such issu-
ance was mandatory. It was felt that this system ensured
fairness to all employees, who were not then dependent
on the liberality or strictness of the particular supervisors
for whom they worked. Such a centralized system elimi-
nated the supervisors' discretion to judge excuses.
Except for authorized excuses, listed in the policy, warn-
ings were issued strictly by the numbers.
No satisfactory reason was given by the Respondent
for the avalanche of warnings that descended on the em-
ployees following the election on May 14. Adante assert-
ed that his heavy involvement in the campaign disrupted
the normal processing of the timecards for policy en-
forcement purposes, but it is unclear how that would
DYNAMICS CORP. OF AMERICA 935
have impeded the work of the clerical workers who ac-
tually made the tabulations and prepared the notices for
delivery to the supervisors.
There were also discrepancies in the actual operation
of the system for which neither Adante nor anyone else
offered any convincing explanation , namely , the notices
issued on the same day (May 26) to Robert Smith and
the failure to take disciplinary action against a number of
employees who appear to have violated the attendance
and punctuality policy as much as or more than Smith.
(These are discussed in connection with Smith's dis-
charge below .) The loss of the educational function sup-
posedly served by such warnings is obvious and the
General Counsel points to that loss as an indication of
the insincerity of the Respondent . Nevertheless, I must
note that the attendance and punctuality policy, as it
reads in the Handbook , sounds primarily like a punitive
policy designed to educate the remaining employees
rather than the one being punished.
Adante modified his testimony to the effect that, not-
withstanding the fact that in normal operation warning
notices for violations in any particular month were issued
in the middle of the following month , he recalled that in
the past Fermont had on several occasions issued multi-
ple warnings to an employee for prior months ' viola-
tions; in fact , it happened as frequently as two or three
times a year . He appears to have forgotten about his
heavy involvement in the campaign as a reason for this
as he recalled that , in January , Christine Dumas was
given a verbal warning on January 6 for absences in Oc-
tober 1981 and a first written warning on January 25 for
absences in December 1981. He conceded that in De-
cember 1981 he did not know that there was a union or-
ganizational campaign going on. In the autumn of 1981
he was not busy with a union campaign . Yet issuance of
warnings was delayed.
No reasonable explanation was put forth , by Adante or
by anybody else , for the discrepancies in the system. It is
apparent to me that a number of employees who were
spotted as being union activists were given warnings that
should have been given to them on prior occasions under
the policy , but were not. Because the warnings were not
issued on those prior occasions when they should have
been , it cannot be contended that the policy was uni-
formly enforced. The assertedly heavy involvement of
Adante in the union campaign is not a persuasive expla-
nation in view of the existence of similar discrepancies
prior to the union campaign , as recalled and conceded
by Adante himself, and in the light of testimony that
places Pendzimas and a number of supervisors in active
roles in the campaign , meeting with employees singly
and collectively , while very little, if any , mention is
made of any function or role in the campaign being per-
formed by Adante.
I am not unmindful of the fact that Respondent's
records show that a number of probationary and nonpro-
bationary employees were discharged since 1979 for vio-
lation of the attendance and punctuality policy. No con-
clusion can be drawn either way from an examination of
the numbers, though both the General Counsel and the
Respondent 's counsel attempted to do so. The reason is,
in part , that the issue as it developed in the hearing was
whether a subsisting policy was more rigorously en-
forced , rather than whether an abandoned policy was re-
viewed , and in part because of the significant exceptions
to the policy, which cast doubt on the contention of the
Respondent that it merely adhered to a uniformly en-
forced policy.
Accordingly, I find that there was instituted against
union activists because of their union activities a policy
of strict enforcement of an attendance and punctuality
policy that prior to the union campaign had not been
uniformly enforced.
L. Restrictions on the Movements of Robert Smith in
the Plant
It is alleged that on June 24 the Respondent imposed
more onerous and rigorous terms and conditions of em-
ployment on Robert Smith by restricting his movement
about the plant. Smith testified that he was the chief or-
ganizer of the Teamsters effort , which began in late Jan-
uary. His activities consisted of distributing Teamsters
literature , attending meetings and holding meetings, so-
liciting pledge cards, wearing Teamsters paraphernalia,
and writing campaign literature . He acted as observer on
behalf of the Teamsters at the election on May 14. He
debated the union cause with Michael Szarmach , the su-
pervisor for quality control , and discussed it directly
with Pendzimas. He was the author of a letter that went
out to the employees on May 9 over the names of the In-
Plant Committee , and its authorship became known to
top management.
On June 18, Smith was given several warnings and
was suspended for 3 days . On his return to work on June
24, he found that drastic changes had been made in his
work situation . Formerly he had worked as a materials
handler , moving materials from one department to an-
other , and as a timekeeper for the painters and helpers in
the paint department ; and as a heat treater , maintenance
man for the equipment of the department , expediter, and
parts inspector . He also had done silk screen work,
marked and painted parts, and washed and loaded parts
on the conveyor belts on the assembly line. On his return
from suspension , he was directed by George Miller, his
foreman , to remain within the paint department and to
refrain from talking to other employees . Miller told him
his job had been changed and now consisted of loading
parts on the conveyor line and assisting another employ-
ee to wash parts.
Whereas Smith 's duties had formerly been performed
throughout the plant and placed him in contact with
other employees, to whom he was able to speak freely,
his job was now cut down to a menial function within
the paint department , which cut him off from contact
with almost everybody in the plant.
Aganito and Santry , Smith 's supervisor, testified that
they had both observed Smith talking to other employ-
ees while he was supposed to be delivering parts. He
was, by their account, neglecting the work he was sup-
posed to do. According to Santry , this was a matter of
his own personal observation and he spoke to Smith
about it at least two or three times, admonishing him that
his talking was interfering with his work and directing
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him to make the deliveries of parts in the various work
areas without engaging other employees in conversa-
tions. Smith promised to stop doing it. Aganito testified
that he instructed Santry, as supervisor, to keep Smith
within the paint shop because he had directly observed,
and had been told by others on more than one occasion,
that Smith was continually talking and not doing his job.
Accordingly, Santry reassigned Smith to washing parts
and instructed him not to leave the department except at
breaktime or to use the bathroom.
Smith testified that he remonstrated with them, deny-
ing their allegations and insisting to them that he was
discharging his duties "as I normally do." From his testi- Employee
mony, it appears that his normal work performance in-
cluded the conduct they were complaining of, prior to
the imposition of the restrictions, he had made a practice
of walking through the plant talking to other employees
because it was necessary to do so in order to do his job.
On prior occasions, he had never been stopped by super-
visors and on many occasions had stopped and spoken to
them. He spoke to Pendzimas daily during the course of
the campaign at numerous places in the plant that were
outside his assigned work area: in the hallways, the elec-
trical department, the assembly area, the supervisors'
office, and at the timeclock. Conversations among em-
ployees often lasted 15 to 20 minutes, were a regular oc-
currence, and did not pertain to the work, yet went on
without interference from management. (Of course, he
had insisted that talking was an integral part of his work
functions.)
Smith's testimony respecting these practices, the re-
strictions placed on his ability to talk to other employees,
and the reduction in the scope of his job duties was not
controverted by Respondent. Also uncontroverted was
his testimony that Santry told him he was being watched
and that Santry thought Smith was doing a great job and
did not want him to get into difficulty.
The fact that management elected to discontinue toler-
ating Smith's conversations does not mean Respondent
committed an unfair labor practice. Respondent had the
right at any time to insist that an employee who was
shirking his duties get back to work. However, the situa-
tion with Smith involved a patent attempt to prevent
Smith from circulating in the plant, which was clearly
designed to curb his participation in concerted protected
activities. The restrictions were, in all respects, the
equivalent of a direction not to engage in union activity
when he was supposed to be working. Such a restriction
is permissible, but only if it is imposed in such a fashion
that the employer makes it clear to the employees that
the activities that are precluded during working hours
may be indulged in during breaktimes, the lunch hour,
and before and after the hours of the working shift.9
By summarily reducing the scope of Smith's job and
confining him to the paint department, for the obvious
purpose of curtailing his activities, the Respondent limit-
ed him to engaging in concerted protected activities out-
side of working time, but the limitation, otherwise legal,
was imposed in a manner not sanctioned by the law. It is
also violative if viewed simply as a procedure for isolat-
ing him. 10
Accordingly, I find that on June 24, 1982, the Re-
spondent imposed more onerous and rigorous terms and
conditions of employment on Robert Smith.
III. THE UNFAIR LABOR PRACTICES: VIOLATIONS OF
SECTION 8(A)(3)
It is alleged that the following suspensions and dis-
charges were in violation of the Act:
Date Date Laid OffSuspended Discharged
Juan Hernandez ..................
Gerthel Bember .................... April 8
March 3
Rafael Reyes ....................... April 22
Brian Colbree ................. . May 14
Christine Dumas .................. June 1 June 18
Miguel Lugo ....................... June 5 July 13
Robert Smith ........................ June 18 July 13
Thomas Johnson ..................... July 13
Mark McGraw ....................... Aug. 10 Dec. 4
Renan Reyes ......................... Nov. 16 Dec. 14
John Klinko ......................... July 2
Robert Moura ...................... July 2
A. Layoffs of John Klinko and Robert Moura
John Klinko was hired on December 28, 1981, as a
stock clerk in the parts store . He was an outspoken ad-
herent of the Teamsters and debated the union cause
with Biersworth and DeCrescenzo in April and with
Geoffrey Liptak in May. According to Klinko, on the
day of the election Liptak came down to really support
for the Company and was infuriated at the indications
from Klinko , Moura, and some other employees that
they were going to support the Union . Klinko became an
in-plant committeeman on May 17 , the Monday follow-
ing the first election , and thereafter talked to people on
his lunchbreak , handed out union cards , and had more
conversations with supervisors. His immediate supervi-
sor, Mary Jane Zuzik , saw him with a bunch of cards in
his back pocket and argued with him about the merits of
supporting the Union . The Respondent 's knowledge of
his activities is thus clearly established.
Mention has already been made of Klinko 's testimony
that on the day of her discharge , July 2, Zuzik tearfully
admonished the employees in her section, "People, be
very careful , stay busy . There are going to be some big
changes around here ." For Klinko and Moura they came
that very afternoon when Liptak came down with two
white envelopes in his hand and advised Klinko that he
was being discharged . He handed Klinko an envelope
containing his insurance papers , a pink slip, and his last
paycheck . Klinko testified that he asked the reason for
his discharge and Liptak told him , "Well, we lost several
contracts in the commercial department . We just don't
have the work."
9 T.R.W. Inc, 257 NLRB 442 (1981) 10 St. Joseph Hospital East, 236 NLRB 1450 (1978)
DYNAMICS CORP. OF AMERICA 937
Klmko testified that Moura was laid off at the same
time and was told the same thing by Liptak.
Klmko contends that the work was not slow. He testi-
fied that "things were starting to pick up, actually." He
concedes that the pace of work had been much slower
when there had been more people in the stockroom. In
July, a big job had just been completed for military as-
sembly and there was a lot of material to relocate and a
lot of back orders to fill As a result, they were rather
busy. They were starting to work overtime again which
had not been the case for several weeks prior to that par-
ticular time . Klinko himself had worked the preceding
Saturday; three of the employees had worked the Satur-
day before that; and they had been given the option to
work several hours overtime during the week that ended
Friday, July 12, in order to get the work caught up. Fur-
thermore, on past occasions when the work had been
slower, work had always been found to keep them busy
until the next job came down. As an indication of Re-
spondent's animus towards him, Klmko pointed out that
though he had a Bachelor of Science degree, and was
scheduled to begin graduate work at the time of his
layoff, and had indicated interest in working as a trainee
in quality control and had talked to Szarmach about it,
he was not offered any other employment in the Compa-
ny at the time of his termination . He had qualifications
that obviously would have been useful in the technical
writing field. The failure on the part of Respondent to
utilize Klinko casts doubt on the legitimacy of the pur-
ported reason advanced for dismissing Klinko, on the le-
gitimacy of the assigned reason, discussed below, for dis-
missing Robert Smith, and on management's sincerity in
offering Smith employment as a technical writer.
Klinko testified that when he went to pick up his last
paycheck there were five people in the personnel office
filling out applications and Szarmach was taking one
person around to quality control. I do not credit this tes-
timony in view of other testimony by Klinko that he was
given an envelope by Liptak with his last paycheck in it
at the time of his discharge.
Nevertheless, there were concurrent layoffs that sup-
port Respondent's defense. Klinko was laid off at the
same time that Moura, a salaried employee who worked
upstairs , and the supervisor, Zuckick, were laid off.
Klinko asserted that after he was laid off the Company
advertised for people in the newspaper, but he conceded
that he never answered any of the advertisements, never
applied for any of the jobs advertised, and never came
back to the Company to ask for any other job. Instead,
he took a job with another company a month later. He
also conceded that Liptak promised him that if anything
came up in his department, he would give Klinko a call
and, in fact, Robert Moura, who had more seniority than
he did, was called back. He had no knowledge that any
new employees had been hired in that department.
Moura did not testify. The consideration that it might
have been difficult under the circumstances for him to
testify, inasmuch as he was a current employee, becomes
inconsequential in view of the fact that his recall to work
would automatically undercut any testimony he might
have given to the effect that he believed he was laid off
because of union activity. Actually there is no evidence
that he engaged in any union activity or that his layoff
was in any way connected with the union campaign. It is
established that his union sympathies were known to
management.
In an affidavit furnished by Thomas Johnson, sworn to
on July 20, Johnson set forth circumstances showing that
Respondent knew of the union sympathies of Klinko and
Moura, with whom he worked in the stockroom. He re-
called an incident in which Liptak asked how they in-
tended to vote and Moura told him that he intended to
vote for the Union. He witnessed several conversations
between Liptak and Moura on the subject of the Union
in which it was clear that Liptak understood their union
sympathies Johnson also quoted Moura as telling Pend-
zimas himself that he had worked for a union company
for 7 years and would never have lasted that long had it
not been for the Union. Pendzimas commented that he
guessed Moura was a union man and Moura said that he
was.
Nothing in this exchange compels an inference that a
link existed between Moura's expressed union sympathies
and the layoffs.
As inventory control manager, Liptak had jurisdiction
over the stockroom. Klinko's job involved pulling mate-
rial to the floor to build certain units. The commercial
side of the business was slow and Liptak was required to
lay off two people. He testified credibly that he went
strictly by seniority Klinko was at the bottom of the se-
niority list and Moura was next to bottom. The undis-
puted fact of the matter is that in addition to Klinko and
Moura, the stockroom supervisor, Al Rizzo, and the in-
ventory control supervisor, Mary Jane Zuzick, were laid
off, and of all of these people only Moura has been re-
called.
Liptak's testimony that business was slow was based
on the volume of traffic through his department, which
is about the best criterion for determining the personnel
needs of his department that the Respondent could have
advanced. It is conditions in his department, as they ex-
isted at the time, that are relevant, not the overall situa-
tion throughout the Company. I therefore consider im-
material the General Counsel's attack on Liptak's credi-
bility and Respondent's position in general because
Liptak estimated a severe reduction in business on the
commercial side only, while conceding that in July the
preponderance of the Respondent' s business was on the
military side, and military production remained steady.
That situation does not necessarily translate directly into
the personnel requirements of the stockroom: this is a
matter of proof and not something to be assumed or
argued from the overall business percentages. This is es-
pecially so in the absence of any effective rebuttal of
Liptak's testimony that he personally, without instruc-
tions to do so from anyone else, made the decision to lay
off people and determined that the persons he laid off
were not needed.
The testimony of Liptak and Santry, considered to-
gether with the fact of simultaneous layoffs of people
who were not union activists and in fact were superviso-
ry, the difficulties inherent in Klinko's testimony and the
fact of Moura's recall, compels the conclusion that the
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
layoffs were not motivated by union animus and had no
connection to the union campaign or to union activity on
the part of either one of these employees.
I do not find that any violation of the Act has been
established by a preponderance of the evidence.
B. Suspensions and Discharges
1. Thomas Johnson
Thomas Johnson was suspended on July 13. His
whereabouts at the time of the hearing were unknown
and affidavits that he had furnished to the Board investi-
gator were accepted into evidence, notice having previ-
ously been given to Respondent's counsel that such use
would be made of them at the hearing." These are the
same affidavits alluded to in the discussion of the alleged
promises and inducements.
According to his supplemental affidavit of July 20,
1982, on July 13 he was called in to see George Miller
and Ron Santry and was advised by Santry that he had
to be suspended for 3 days because he had been absent 1
day and late six times in the month of June. He was
given a lecture to the effect that the Company had a lot
invested in him and he had to straighten out. According
to the affidavit, Johnson protested to Miller that he had
been starting at 6 a.m. to help out the Company instead
of at the usual starting time of 7 a.m., and therefore if he
arrived 15 or 30 minutes late they should not mark him
late. Miller responded that he needed him in at 6 a.m.
and then said that they would see him on the following
Monday at 6 a.m. He was suspended July 14, 15, and 16.
The mere fact that the employee handbook states that
the working hours are from 7 a.m. to 3:30 p.m. does not
preclude flexibility in the working schedule when re-
quired. Johnson was not asked to work an extra long day
and does not so contend; he was asked to begin at 6 a in.
instead of 7 a.m. to fill a need of the Respondent. His
starting time was therefore 6 a.m. He concedes being as
much as 15 to 30 minutes late, in effect vitiating the ad-
vantage that the Respondent hoped to obtain by having
him start early. The argument that he was not really late
because he had agrued voluntarily to change his starting
time is untenable.
There is no evidence that his sympathy for the Union
played any part in his having been suspended. He con-
cedes the absences and latenesses. He makes no claim of
having participated in union activity to the knowledge or
imputed knowledge of the Respondent. In fact, the Gen-
eral Counsel contended that Johnson was promoted by
the Respondent to a job in the paint department in order
to secure his vote against the Union. No reason is sug-
gested by the General Counsel why the Respondent,
having gone to that trouble, would then take steps likely
to make him a union adherent.
Accordingly, I find that Johnson's suspension was not
in violation of the Act.
" Fed R Evid Sec 804 (b)(5)
2. Gerthel Bember
Gerthel Bember was suspended on April 8. As of that
time, he had worked for the Respondent as a spray
painter for 16 years. He was indisputably a good employ-
ee. There was no history of any prior discipline of
Bember or of any prior occurrence similar to the one for
which Respondent claims it suspended him: threatening
another employee.
Bember became involved in the Teamsters organizing
effort in February or March. He served on the In-Plant
Committee, went to meetings, and signed a union card.
Bember was suspended for 2 weeks without pay for
threatening employee Ronald Coleman. The circum-
stances under which this occurred are far from clear. On
April 7, toward the end of the lunch recess, he was in-
volved in a discussion of the Union with two other em-
ployees, Hector Aponte and his brother, Eugene
Bember. Coleman passed them as he was returning from
lunch. According to Bember, the substance of the discus-
sion was that IBEW was not doing anything for the em-
ployees and the Teamsters would be better for them.
The next day, he was called into a meeting with Frank
Aganito, George Miller, his supervisor, and the IBEW
shop steward, Stephen Humeniuk. Aganito introduced
himself as the new plant manager and stated that he had
heard that Bember had threatened Coleman. Bember
denied having made any threats and asserted that they
had merely been talking about the Teamsters, and that he
had told Coleman that if he voted in the election and the
Teamsters won the election Coleman would be obligated
to go out on strike with the unit.
Agamto suspended Bember for 2 weeks without pay
and directed Miller to march him out of the plant and
keep him from talking to anybody else on the way out.
Bember filed a grievance, but the Respondent refused to
retract the suspension.
It is to be noted that, according to Bember, his state-
ment was that if Coleman voted, he would be obligated
to join in a strike if one were called. Coleman was an
expediter on production control and unquestionably sym-
pathetic to management and privy to some information
available to management but not generally available. For
example, Thomas Johnson, in his affidavit dated July 9,
1982, quoted Coleman as telling him before anyone else
that his transfer to the paint department was coming
through.
Coleman testified that on April 8 he came in from
lunch at about 12:25 p.m. and was stopped by Bember,
who told him that if the Teamsters got it and there was a
stike, and Coleman came to the gate, "something seri-
ous" would happen. Coleman's account of Bember's
statement and his reaction to it is as follows:
Q. Okay. Please tell me what was said and by
whom?
A. Okay. I was coming in from lunch, this was
about twenty five after twelve . And ah-I was
stopped by Gerthel Bember and he said that if ah-
if the teamster 's union got in and there was a
strike-if I came to the gates something serious
would happen to me.
DYNAMICS CORP OF AMERICA 939
Q. Is that the only thing he said or did he say
anything else?
A. That was the only thing that he said-that I
stood there to listen to, you know, whatever else he
had to say, you know, I walked away at that point.
Q. Did you talk to him? Did you respond to him?
At that time?
A. No-well, I said that I am not worried about
your threats, you know, something of that nature.
Then I walked away.
Q. Then what did you do?
A. Well, I went to ah-sheet metal area in the
office where I was working and thought about the
seriousness of what he had to tell me. At that time I
ah-spoke with the supervisor, Charlie Davis and
he asked me did I want to report it. At the time I
told him no. Okay. Then I went over to speak with
Gerthel Bember to see if, you know, if he was
really serious about what he was saying at that
time. And he gave me an indication that he was
pretty much serious.
Q. How did he indicate to you that he was seri-
ous about what he had said before?
A. Well, simply, he just gave me an answer,-
well, yes I am serious about it. That's what he said.
Q. And what did you then do?
A. Well, I then went back to the officer in the
sheet metal department. And, at the time, Mr. Ziefil,
who is now the President of the Company, he came
in the office. At that time I was talking to Charlie
about it and . . he told me to report it. And then I
wrote everything down and submitted it to Mr.
Adante.
Q. Did you talk to Mr. Adante?
A. Yes, sir.
Q. Did you tell him what had happened?
A. Yes.
I find this testimony incredible, but interesting for its
mention of the fact that at the time Coleman returned to
talk to Davis, Charles Ziehl, who later became president
of the Company, "came in the office." Nothing else is
said about him and it is unclear what, if any, role he
played in the events that followed. It was apparent on
cross-examination that the only statement that Coleman
could quote Bember as having made was that if the
Teamsters Union won the election and if there was a
strike, and he came to the gate, something serious would
happen to him. No specific type of harm was mentioned.
No specific threat was made. Nothing was said about
who would do anything to him. Nothing was said to the
effect that Bember would do anything to him. The word
"threat" was used by Coleman, not by Bember.
Coleman's recital of the circumstances varied as he
was questioned. On one occasion he stated that when he
walked in the door he told Davis that "I was just threat-
ened by an employee." He asserted that Davis then
stated he had to do something; about it and because
Davis was busy he thought about it and went back to
check with Bember to see "if he was really serious about
what he had said." When pressed, he stated that he did
not walk in the door and say he was threatened but he
told Davis about the incident and Davis wanted him to
do something about it. In highly unrealistic testimony,
Coleman asserted that he went back to Bember and
asked Bember if he realized what he had just done, that
he had just threatened him, and Bember freely acknowl-
edged that he knew what he had done. Coleman was
vague, however, about the rest of the conversation,
unable to recall exactly what else was said because he
started to walk away. He suggested that he had also been
threatened that something would happen if he went
through the plant during the strike, a threat that had not
been mentioned at all in his initial version of the story.
The interest of management in this incident was extraor-
dinary. Coleman wrote up his statement and gave it to
Adante at Adante's request. He spoke to Adante about it
twice that day. He also spoke to Pendzimas, and to a
labor relations adviser to the Company, all of whom
wanted to hear first hand Coleman's version of the inci-
dent.
On cross-examination, Coleman testified that the time
it took for Bember to make his comment about what
would happen if Coleman went through the gate was not
lenghthy. In an affidavit he furnished to a Board investi-
gator he said the threat was made in a conversation that
lasted approximately 7 minutes. Of the entire conversa-
tion lasting 7 minutes, all he could recall at the hearing
was Bember's statement that something would happen to
him if he came through the gate. On cross-examination,
it developed that the 7 minutes embraced his two con-
versations with Bember and the intervening discussion
with Davis.
Coleman read aloud a portion of his affidavit:
All of this was said in approximately seven minutes.
After realizing the seriousness of what was said to
me, I approached Mr. Bember at approximately
12:45 p.m. at his work station in the paint depart-
ment mainly to see if he was just kidding around.
When queried by me about it a second time, Coleman
stated that if he wrote it was approximately 7 minutes
then it must have been 7 minutes. The statement is in
Coleman's own handwriting. Coleman stated that his
memory was better at the time he wrote the statement
than it was on the day he was testifying. He thus af-
firmed that his first conversation with Bember took
about 7 minutes.
I find highly suspicious Coleman's inability to remem-
ber anything about that entire conversation except the
ambiguous statement that Respondent elected to treat as
a threat, though he was not sure it was a threat when he
first heard it, and which is denied by Bember altogether.
Hector Aponte, another long-time employee (17
years), is a welder, working under Davis then, and now
under Steve Bassett. He recalled the conversation and
placed the date of it as April 7. He testified that they
were engaged in a discussion of the election scheduled
for May 14; at the time Coleman joined the group,
Bember was saying that anybody who voted on that day
should go out on strike if the strike was called and that
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Coleman said that if they went on strike he did not have
to go to the picket line, and that he was going to come
to work and nobody would put their hands on anybody.
According to Aponte, all Bember said was, "You'd
better don't." Eugene Bember, Gerthel's brother, sup-
ported Gerthel's version of the events, testifying that
Coleman had passed by and his brother had told him
that if he voted for the Teamsters and the Teamsters
won and they had to go on strike he would go on strike
along with them, to which Coleman had stated that no
one would tell him what to do, and that was the extent
of the conversation. It was time to go back to work and
they did. Eugene Bember did not recall his brother
saying anything about what might happen to Coleman if
he crossed the picket line. Their testimony explains why
Coleman would have felt it necessary to seek out
Bember to find out if he had been threatened.
Davis lent the story a greater degree of specificity by
testifying that Coleman had told him he had been threat-
ened by Bember with bodily injury and that he had told
Coleman that he felt Coleman should report it under the
circumstances. He testified that Coleman "came back"
and informed him that he had spoken to Bember again
and that "he still maintains the same attitude." Davis also
mentioned that Ziehl walked into the office and Davis
expressed the opinion that Bember should report it.
Nothing is said about whether Ziehl heard about what
was going on or his reaction though his presence was
obviously significant to Davis and Coleman. Later Davis
testified that Coleman said, "That he had been threat-
ened with bodily harm if by chance the Union should
win the election . . . . And that . . . if he came through
the gates, if there was a strike he might get hurt "
This more detailed account was blunted, however, by
Aganito's testimony. Aganito, who made the decision to
suspend Bember, testified that he arrived at his decision
"by talking to the parties." He spoke to Coleman and
Gerthel Bember. According to Aganito, when he asked
Bember what he had said to Coleman, "He told me in
essence that he was talking to Coleman and he told him
that if he was to walk out he would give him some
bodily harm." He could not, however, remember the
exact words of Bember's confession. He was aware that
there had been other participants in the conversation, but
while he said that Bember told him other people were
present, "he didn't relate to them as witnesses." He was
not sure whether anyone from the personnel department
spoke to any of these other people, but he did not, being
satisfied with his direct conversation with Bember. Thus,
no one from management interviewed Aponte or Eugene
Bember about what they had heard Gerthel Bember say
to Coleman. I consider this a significant indication of in-
sincerity on the part of management. i 2 Moreover, I
12 Management is not generally required to interview all witnesses or
even the party charged with an offense when the facts are already clearly
established See Marsh Furniture Co, 230 NLRB 580 (1977) In the
present case, however , the party charged does not attempt to explain
away the offense but denies having committed it, there are no eyewit-
nesses from the managerial level (unless Coleman is so regarded ), and the
means for arriving at an unbiased determination of the facts are not at
hand in the absence of consultation with all the witnesses to the event
cannot believe that Bember would freely have conceded
having made a threat to Coleman when he had to be
aware that Aganito was investigating the allegation to
determine whether disciplinary action was warranted.
I do not credit Aganito's testimony that Bember con-
fessed that he had threatened Coleman, but I find instead
that Aganito was confronted with a denial, as testified to
by Bember. Under such circumstances, his failure to
question others who were present casts suspicion on his
true motive for suspending Bember.
Adante testified that he did not speak directly to
Bember because Aganito had already done so. Adante
asserted that he talked to Coleman and asked him what
had happened and Coleman told him. However, Adante
was vague and uncertain about the account Coleman
gave him. All he knew was that words were said to
Coleman by Bember that Coleman interpreted as a
threat, that Coleman went back to Bember to talk to him
about it because he was not sure at that point if a threat
really had been made, and that Bember told Coleman
that he really meant what he had said, whereupon Cole-
man filed his complaint. Adante's memory was sharp and
clear about every detail of this pat and convenient story
except for what Coleman told him Bember had said,
which happens to be at the heart of the whole matter
Bember is accused of having made a threat. Adante
could not remember what the threat was All he knew
was that words were spoken, which Bember "used . . .
in a threatening manner." He could recall a threat being
made, but not the words that constituted the threat
Such highly selective and vague recall, excluding de-
tails of the most critical aspect of the matter under inves-
tigation, is unacceptable. At best, I can only take it as es-
tablishing that Coleman never told Adante the details of
the purported threat. Adante finally conceded this. On
being pressed, he conceded that Coleman had not in fact
specified the nature of the threat other than to describe it
as a threat of personal harm.
Adarite agreed, in response to a question, that 2 weeks'
suspension without pay was a very serious penalty. He
testified that the matter had been discussed with Pendzi-
mas, who felt that the conduct complained of could not
be countenanced "right at the beginning . . of the cam-
paign . . . where is the thing going to end?" It is appar-
ent that the union campaign was much in mind and was
at the heart of the decision to suspend Bember. It was
central„ however, not out of concern for safety, but out
of concern to suppress a union activist.
While I cannot supersede management's decision about
how it will maintain discipline in a plant, I can gauge the
sincerity or lack of sincerity of the Respondent's stated
reasons for punishment of an employee by relating the
degree and extent of the punishment to the offense and
the employee on whom the punishment is imposed. In
the present case, the two are obviously out of propor-
tion
Reviewing all the foregoing testimony, I find that
Gerthel Bember himself asserts that he said nothing to
Coleman other than that "if you vote and the Union
wins and we go on strike, you have to go on strike with
us." Coleman said nobody could tell him what to do and
DYNAMICS CORP . OF AMERICA 941
that was the whole conversation . Aponte , however , testi-
fied that Bember said something in addition : "You'd
better don 't," meaning "You'd better not ." Eugene
Bember says his brother Gerthel said nothing after Cole-
man said no one would tell him what to do.
The only disinterested person present at the conversa-
tion who testified was Hector Aponte and he made it
clear that something of a nature to indicate disagreement
with Coleman was said by Bember and he quoted the
statement , "You'd better don't ." It is problematical
whether that statement must necessarily be interpreted as
a threat of bodily harm . Coleman himself admits to
having had doubts. The surrounding circumstances must
be considered , and they are such as to create grave
doubt that Bember was suspended for having threatened
Coleman . I find that Bember 's activity in support of the
Union underlay his suspension.
3. Juan Hernandez
Juan Hernandez was discharged on March 3 , 1982, for
threatening a supervisor . I have previously noted that his
career at Fermont was notable for his conspicuous en-
gagement in activities, which constituted protected con-
certed activities under the Act and which were obnox-
ious to the Respondent , and I have summarized the his-
tory of his interaction with the Respondent resulting
from those activities up to the end of December 1981.
Hernandez testified that on lifting of his suspension, he
returned to work , but continued speaking to other em-
ployees about the Union , as a result of which he re-
ceived what he characterized as friendly warnings from
Wilfredo Garcia and Carl Zukunft that he was being
watched and risked being fired if he continued his union
activity . Hernandez finally concluded that Garcia was
reporting his activities to the office and told another em-
ployee that Garcia was a spy for the Respondent. As a
result , Garcia was shunned by the employees and
became very angry at Hernandez . This led directly to a
confrontation between the two men . Garcia called him
names in Spanish . He admits getting angry and inviting
Garcia to go out into the street with him because he did
not want to fight on company property. According to
Hernandez ' own account , the altercation only came to an
end when his wife came to pick him up and he got into
his car . His account leaves me with very little faith that
he really could have expected to have a nice conversa-
tion with Garcia if he found out where Gaicia lived.
Hernandez was summoned to Adante's office the day
after the altercation in the parking lot. Adante , Foldvary,
Garcia , and Zukunft were there and Adante announced
to Hernandez that he was being let go because of his
threat to Garcia . Hernandez ' only response was that he
had been told not to talk to Garcia on company proper-
ty, so he tried to get him to go out to the street to talk.
Management took the position that the sidewalk was
company property , but I think that the niceties of their
instructions to Hernandez concerning where he could
talk to Garcia do not have to be viewed as binding on
them . Their action against Hernandez did not depend on
that so much as on the need to preserve order and disci-
pline between supervisors and employees . Even after he
was discharged , Hernandez continued harassing Garcia;
he attempted to confront him in the parking lot on
March 4 . The police were summoned , but he left before
they arrived.
Hernandez testified that he had two further friendly
conversations with Garcia , when he returned to pick up
workmen 's compensation checks , in which Garcia admit-
ted to him that he had simply wanted to get even with
Hernandez for calling him a name . This would appear to
cast much doubt on Hernandez ' insistence that there
were friendly relations between the two men ; getting
somebody fired is not normally the way affection is ex-
pressed.
According to Hernandez , on Saturday morning, Feb-
ruary 27, Zukunft sent him twice to the electrical depart-
ment , where Garcia was painting the floor , to find out if
Garcia needed more paint . Garcia refused to talk to him.
The second time he went back an altercation ensued in
which Hernandez used obscene language to Garcia. The
following Tuesday , March 2 , Hernandez was summoned
to a conference with Zukunft , Garcia, Steven Basset, and
Charles Foldvary , and was given a warning for using
abusive language to his supervisor . The warning notice
recited that on February 27, Hernandez had threatened
Garcia, had used profane and abusive language in the
parking area after work , and had asked a coworker for
Garcia's home address.
Hernandez does not deny the use of profane language
in any of the instances cited , but justifies it simply on the
ground that he and Garcia had known each other for a
long time and customarily called each other all kinds of
names and that the mutual intent was friendly . Though
he was cautioned that a supervisor could not be ad-
dressed in that fashion , he insisted that in his eyes Garcia
was not a supervisor but a long -time friend who had
only recently been elevated in rank . Hernandez also sug-
gested, in his testimony , that he may have been affected
by the paint fumes on the morning of February 27, an
unproved assertion that I reject completely.
Hernandez conceded that he had refused to sign an ac-
knowledgement of receipt of the warning notice and that
he had attempted to find out where Garcia resided be-
cause he wanted to talk to him and had been ordered not
to do so on company property ; he tried to talk to Garcia
in the parking lot and Garcia refused to talk to him and
acted belligerently.
During the hearing , Respondent was taken to task by
the General Counsel for failing to conduct an investiga-
tion in which Hernandez could present his version of the
events . In this situation, however, management was
within its rights to take Garcia 's word and , as matters
turned out , Hernandez actually confirmed Garcia's ver-
sion in his meetings with management, which I have just
referred to.
By and large, Hernandez' testimony made light of the
exchanges with Garcia as being something in the nature
of friendly banter that did not affect the friendship of the
two men . This view of the matter has no relationship to
reality as I perceived it during the hearing , in which
Garcia made it abundantly clear that he had no feelings
of friendship for Hernandez whatsoever . There is so little
dispute about the undesirable nature of Hernandez' con-
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duct that the General Counsel was reduced to character-
izing Hernandez' "frank avowal" of his undesirable con-
duct as "refreshing." I do not find it so at all. The prob-
lem Hernandez faced was that there were so many wit-
nesses to his nasty conduct that he had no choice except
to try to laugh it off.
Garcia's version of the incident on February 27 was
that Hernandez asked if they needed more paint and was
told that they did not, and then returned 5 minutes later
and asked the same question again , whereon Garcia told
him that at that instant Hernandez turned around and
started cursing him out, calling him a number of names.
Garcia reported the incident to Charles Foldvary on
Monday morning and explained to him that this had oc-
curred in the presence of a number of the men, and
asked Foldvary to do something to control Hernandez'
foul language.
The friendly banter that Hernandez testified was their
normal conduct towards each other was not at all appar-
ent in Garcia's version of the facts of their relationship as
presented by Garcia in an altogether credible fashion.
Garcia testified that Hernandez had called him vile
names on prior occasions but he had ignored the insults.
He denied vehemently that he had been friendly with
Hernandez. According to Garcia, while the meeting with
Foldvary and Zukunft was going on, Hernandez contin-
ued calling him names and insulting him in Spanish in a
manner that was not friendly, but nasty. Garcia testified
that he left the meeting and later, when Hernandez
passed him on the assembly line, Hernandez threatened
to get him outside and that he should "wait until 3:30."
Garcia testified that he ignored him and walked away.
When he was walking toward his car at the end of the
shift, Hernandez came at him, pointed his finger and re-
sumed calling him names and insulting him. This oc-
curred in the parking lot on Fermont property. Hernan-
dez invited him out to the sidewalk and threatened to
beat him up. Garcia got into his car and left. The next
morning he reported it to Foldvary.
Garcia denied having told Hernandez in February
1982 that he would get fired if he did not terminate his
union activity. Garcia testified, unconvincingly, that he
had never talked to Hernandez about the Union or any-
thing else. He conceded that he was angry with Hernan-
dez because he was going around telling the other men
not to trust him. His remarks in that vein occasioned the
only instance in which he ever spoke to Hernandez be-
cause he asked Hernandez to stop telling the people that
he was a rat. Garcia says he told Hernandez he did not
want to talk to him and that if Hernandez had anything
to say to him to do so in the presence of a supervisor.
Adante flatly denied ever calling Hernandez a trouble-
maker or having any discussions with him in December
1981 or January 1982 with respect to union activity.
Adante testified that in the meeting with Charles Fold-
vary, the plant manager, Carl Zukunft, his supervisor,
and Stephen Humeniuk, the IBEW shop steward, he told
Hernandez that he was being terminated for using abu-
sive and profane language and threats to a supervisor.
Hernandez wanted to apologize and keep his job, but
they placed no stock in his insistence that his remarks
had been made in a friendly, joking manner.
Roberto Hernandez, a shipping clerk, testified that he
heard Hernandez use foul , gravely insulting language to
Garcia and physically intervened to prevent a fight,
which he felt Hernandez was trying to start because he
was inviting Garcia into the street. Both he and another
employee, Felix Burgos, confirmed that Hernandez at-
tempted to find out where Garcia lived.
Management accounts of the meeting with Hernandez,
given by Zukunft and Foldvary, were consistent with all
the foregoing. Zukunft noted that Hernandez' insistence
that he could not expect fair treatment from the Compa-
ny concerning the Garcia incident was expressly based
on the fact that he was Puerto Rican, rather than on the
fact that he was active with the Union. In any event, his
union activity cannot shield him from punishment for
proven misconduct.' 3
The evidence establishes that Hernandez was dis-
charged for the reasons stated by the Respondent and
the Act was not violated."
4. Rafael Reyes
Rafael Reyes came to Fermont on August 19, 1981, as
an assembler on the assembly line. He then moved to in-
spection on the assembly line (quality control). He was
discharged on April 22.
Early in 1982 Reyes had several meetings with
Edward Iulo, the secretary of Local 1040, in which he
asked him to represent Fermont. A committee was
formed to pass out authorization cards, consisting of him-
self, Robert Smith, Mary Ferreira, Hector Ortiz, Victor
Medina, Jose Rodriguez, and Luis Figueroa. Reyes him-
self passed out between 20 and 40 cards during break-
times. He was observed on several occasions by Michael
Szarmach, his supervisor, receiving the cards back. He
also distributed union literature before the start of the
day shift at the entrance to the company premises. He
wore a Teamsters T-shirt and Teamsters buttons. He was
a signatory to the In-Plant Committee letter that had
been prepared by Robert Smith. He did not attempt to
conceal his union activity and it was observed by man-
agement. Reyes espoused the union position in debates
19 New York Patient Aids, 228 NLRB 1127, 1131 (1977), Central Freight
Lines, 255 NLRB 509, 510 (1981 ), enfd 666 F 2d 238 (5th Cir 1982) The
legality of a valid discharge is not affected by the possibility that Re-
spondent may have welcomed the opportunity to rid itself of a union ad-
herent Klate Holt Co., 161 NLRB 1606 (1966), Imperial Bedding Co, 224
NLRB 1560, 1564 (1976)
14 The General Counsel argues in his posthearing brief that Respond-
ent's asserted reason for discharging Hernandez should not be credited in
view of the fact that no disciplinary action was taken in two other in-
stances in which Respondent 's officials were aware of violence or threat
of violence by one employee against another I do not find the point per-
suasive for several reasons First , the General Counsel also cites eight in-
stances in which employees were discharged for gross violation of plant
rules, which seems to indicate that the action against Hernandez was the
norm rather than the exception Second, the failure to take disciplinary
action in the two instances cited may have resulted from other valid con-
siderations and there is no evidence in the record that serves to indicate
what the Respondent 's motivation was in those cases It is noteworthy
that both instances involve the same purported offender, an employee
named Eddie Hernandez, and were reported to management by the same
employee, a truckdnver named Reynolds The existence of special con-
siderations with respect to either is therefore suggested and without fur-
ther details the weight to be accorded to these instances in speculative.
DYNAMICS CORP. OF AMERICA 943
that he had with Biersworth and DeCrescenzo prior to
the May 14 election. He also pressed the union position
on Frances Temple, who was anxious to preserve her se-
niority.
The stated reason for the discharge of Reyes was a
threat that he allegedly made to property of Frances
Temple. Temple at that time was a lead inspector who
had worked for the Respondent for more than 11 years.
At the time of the hearing she had been promoted to the
position of quality assurance technician. Temple testified
that on the morning of April 22, she was working on a
rejection report in the quality assurance department.
Two conversations took place. A noisy heated conversa-
tion about the union campaign was going on at the far
end of the room about 12 or 15 feet from her workplace
among Reyes , Ferreira , and Jospehine Zukowski, on one
hand, and Biersworth on the other. Reyes came over to
her work area while the discussion continued at the
other end of the room, and started a private conversation
with her. Reyes asked her what she was planning to do
when the Union went on strike and if she was going to
cross the picket line if a strike started. She responded
that she did not know what was going to happen or who
was going to win and that she would make a decision
when the need arose. She testified, "He said to me, I
wouldn't cross that picket line if I were you because you
have a nice new car sitting out there." She got upset,
told him she did not believe in violence, and did not
want to discuss it. He made a comment that she was
going to vote for the Company and was always talking
to DeCrescenzo, Szarmach, and Adante; she replied that
her dealings with them related to company business; and
he called her some names . She got up and walked away
because she had to find out where: some rejected parts
were and left him still talking. Reyes returned to the
conversation at the other end of the room.
According to Temple, when she left after her conver-
sation with Reyes the parties engaged in the conversa-
tion at the other end of the room were "screaming on
top of their lungs ." On the way to lunch she bumped
into DeCrescenzo, who saw that she was upset and
asked what was wrong. She told him about what she de-
scribed as Reyes' threat. DeCrescenzo urged her to
report it. Though she was worried about retaliation, she
went to see Adante and told him what had happened.
Temple testified that Reyes frequently had questioned
her about how she was going to vote, and that she asked
him to leave her alone, which he refused to do. She cited
an instance some time prior to the election when she was
struggling to open a box with a small knife when he took
out a knife which she described as "a huge enormous
knife-I would say about four inches to five inches in
length-and opened the box. I just looked and he said,
`Good to slash tires with."'
According to Reyes' testimony, the noisy discussion
described by Temple was about what to do if a strike
were called and a picket line set up. He puts Temple into
the group discussion. He testified that Temple indicated
that she was afraid to go through the picket line because
the Teamsters are well known for bashing cars; he tried
to reassure her because she looked upset; he told her that
he did not care who won, but that if there were a picket
line, she could park the car out in the street like every-
body else would. According to him that was the end of
that phase of the conversation, which then veered off
into the subject of dieting. Reyes asserted that he at no
time used obscene language toward Temple or threat-
ened her in any manner. He expressly denied that he told
her not to pass through the picket line because she had a
nice new car . He denied asking her why she spoke to the
supervisor so much . He denied ever having said anything
about the knife, which he carried for the purpose of
opening boxes , being good for slashing tires . He pointed
out that he often used that knife to open boxes for
Temple.
Reyes testified that he was shocked when he was
called into a meeting in the personnel manager's office
shortly after 1 o'clock on the day of that conversation
and was accused of threatening damage to someone's
car. When he asked whose car he was supposed to have
threatened and was told it was Temple's, he made an im-
mediate denial, telling Adante and the others present that
all he had told her was to park her car in the street like
everybody else did if there was a strike . At the hearing,
he insisted that that was the extent of his remark to her.
Nevertheless, Adante terminated him then and there.
Though Reyes asked that Temple be brought into the
meeting to tell the truth, they refused to call her in.
When he continued to protest his innocence , he was ad-
vised to file a grievance. According to Reyes , his re-
sponse to that suggestion was that it would be futile to
file a grievance because it would be a question of the
word of a Teamsters supporter against the word of a
company supporter. He testified that he felt it was use-
less to make a defense. As soon as the conversation was
over they gave him his paycheck. Nevertheless, he at-
tempted to pursue a grievance but was advised by the
IBEW shop steward, Steven Humeniuk, to forget about
it.
Mary Ferreira testified that she participated in the
group conversation, heard Reyes ask Temple whether
she would go through the picket line in the event of a
strike, and heard her respond that she did not know.
When he asked why, she said that she was afraid that
they might damage her car or do injury to her. Accord-
ing to Ferreira, Reyes then told her that she had a nice
car and did not have to be afraid and that if the Team-
sters got in or if there was a strike nobody would harm
either her or her car and he suggested that she should
park her car away from the shop.
Ferreira's version of this conversation is slightly differ-
ent from Reyes ' own version though she corroborates his
failure to make any threatening statement . She testified
that Reyes was calm during this conversation, but
Temple was nervous and spoke in a loud voice. Temple
was considered by the others to be a company supporter.
Ferreira testified that in this conversation she heard
nothing in the nature of a threat.
Josephine Zukowski, also present during the same con-
versation, testified that she was the one who brought up
the question about what would happen if they went out
on strike by asking if anybody would picket . She asked
Mary Ferreira if she would cross the picket line and
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quotes Temple as saying that she did not know but that
she probably would. Zukowski quotes Temple as going
on to state that she was worried about her car because it
was brand new whereupon Reyes, who was standing
right in front of Zukowski, said that if she was worried
about the car she should park it across the street and that
nobody would hurt it. According to Zukowski that was
the end of the conversation. Zukowski testified that she
and Reyes at that point went back to the assembly line.
Zukowski testified that Reyes never told Temple not to
cross the picket line because she had a nice new car.
However, she confirmed that Reyes had once questioned
Temple about her frequent conversations with the IBEW
representative, but believed that that query had been
made in another conversation and not during the one in
question. Zukowski testified emphatically that a meeting
of management officials convened to consider the alleged
threat made by Reyes was a formality in which the out-
come was preordained. She found herself in a room with
DeCrescenzo, Szarmach, Adante, Pendzimas , Temple,
Rebecca Jones, and another person named Alex or Al.
Somebody made a statement while she was present in the
meeting that they would have to take Temple's version
of the event because the witnesses did not recall the
events. Zukowski protested to them that she had not said
she did not recall; she had told them that she had not
heard a threat made. Both she and Reyes had joined in
the group conversation and had left it at the same time,
and no threat was made in her presence. Rebecca Jones,
who had been sitting at a nearby table, also told the
panel that she did not hear anything.
It would thus appear that a sharp semantic difference
exists. A sharp difference exists whether Reyes and
Temple had a conversation apart from the others, and
there is a sharp difference in the testimony about what
the witnesses actually told the panel. Temple testified
that Zukowski told them that she could not hear any-
thing of the conversation between Reyes and Temple be-
cause she was involved in the other conversation (with
Bierswortji) and it was too noisy. Rebecca Jones, who
occupies a workplace directly behind Temple, told the
panel that the noise was so loud she was having trouble
working, let alone hearing the conversation between
Reyes and Temple.
There were also sharp divergences in the testimony re-
specting the carrying of knives, varying from the asser-
tion that 70 percent of the employees carry knives that
are visible, to the assertion that only a few carry small
knives for opening packages for inspection. However,
Temple conceded that when Reyes said his knife was
good for slashing tires , he laughed. She never informed
any supervisor about it, so she had not felt threatened.
Temple asserted that Reyes was only 2 feet away from
her at the time of their conversation. Her conversation
with him was not part of the group discussion, which
was taking place some 12 or 15 feet away. Reyes did not
dispute this, and I find that he and Temple did converse
apart from the rest of the group.
It may also be noted that all witnesses except Reyes
place Temple in the meeting where the incident was
being investigated . There is no explanation in the record
for this discrepancy, but I do not deem it to affect
Reyes' credibility inasmuch as there exist a number of
possible plausible explanations for her absence while he
was in the meeting, and speculation thereon would serve
no purpose.
Temple characterized her relationship with Reyes
prior to the April 22 incident as one in which he har-
assed her and persistently attempted to persuade her to
vote for the Teamsters. She avoided him as much as pos-
sible. She described their relationship as purely a work
relationship, decidedly not friendly.
DeCrescenzo testified that when Rebecca Jones and
Josephine Zukowski were called into the meeting to tell
their accounts of the alleged threat made by Reyes, both
of them denied that they had heard any threat, but both
of them stated that they did not know whether it had
happened. They both insisted that they had gone back to
work, so that events might have happened as Temple
said they had. He conceded that the panel did not ques-
tion Reyes about the incident although they questioned
Temple. He insisted, however, that the decision to dis-
charge Reyes had not been made at the time that Jones
and Zukowski were asked for their versions of the event.
. On the overall testimony and the demeanor of the wit-
nesses, I am compelled to credit the testimony of
Frances Temple. I find that she sincerely believed that
she had been threatened, complained to management,
and that management acted on her complaint and dis-
charged Reyes for that reason. In doing so, Respondent
operated on the basis of a business justification in dis-
charging Reyes; the incident with Temple was not
simply a pretext for getting rid of a union supporter.
Temple having been genuinely concerned and having
made a sincere complaint, it does not matter whether
Reyes' statement was rightly or wrongly construed as a
threat . It was so construed, management 's action was not
unreasonable , and management did not seize on it as a
pretext for getting rid of him.
Accordingly, I find that Reyes' discharge did not vio-
late the Act.
5. Brian Colbree
Brian Colbree originally went to work at Fermont in
June 1981, left voluntarily in February 1982, and re-
turned to work there as a machine operator under
Charles Davis on May 10, the Monday before the elec-
tion, which was held on Friday, May 14. He was laid off
on May 22.
Colbree visibly supported the Union. He signed a
Teamsters authorization card in February, was a signato-
ry on the petition circulated by Juan Hernandez to oust
IBEW, attended union meetings , and wore a Teamsters
T-shirt in plain sight of Pendzimas and Davis.
He returned to Fermont in May because he had heard
that another press punch operator was needed to operate
a new machine similar to, but more advanced than, the
one he had operated. Colbree returned to work at the
same rate of pay that he had received in his previous em-
ployment at Fermont.
On the day of the election, however, management
took the position that he was a probationary employee,
newly hired, though he had prior time at Fermont,
DYNAMICS CORP OF AMERICA 945
which was reflected in his earnings level. He protested,
but Pendzimas and Davis ordered him to continue work-
ing at his station while the election was in progress. As a
sign of protest, he removed his shirt to reveal a Team-
sters T-shirt. Both Pendzimas and Davis saw it. A week
after the election he was laid off. Colbree testified at one
point that the reason given was that there was a lack of
work, and quoted Davis as saying , "I'm sorry, we've got
to lay you off. There is not enough work. There is noth-
ing I can do about it. Good luck." However, almost im-
mediately thereafter, Colbree indicated some confusion
of recollection on this important point by testifying that
Davis "just said that I was a good worker and they don't
know why they are laying me off." His uncertainty in
this respect prevents me from inferring an unlawful
motive for his discharge simply from the fact that no
reason was stated to him at the time of the discharge.
Colbree did make it clear in his testimony, however,
that whatever he was told at the time of the layoff was
in direct contradiction to what he had been told when he
came back to work at Fermont. He had then been told
that there would be a lot of overtime. The attending cir-
cumstances corroborate his testimony.
Colbree asserted that at the time he was rehired he
was working nights full time at a Merit gas station. After
he had worked about a week at Fermont he, was asked if
he was able to work overtime and he told them that he
would have to leave a second job if they wanted him to
do that and they told him there definitely would be a lot
of overtime, whereupon he gave 2 weeks' notice to his
night-time employer.15
The Respondent never recalled Colbree, though he ap-
plied for another job for which he was qualified. This
was a job as an inspector. He testified that he was quali-
fied because he was familiar with many of the produc-
tion parts and knew how to read job prints and use
measuring devices, gauges , and calipers. His testimony
along this line was not rebutted.
Colbree quoted Davis as telling him, on one occasion,
that it would be to his benefit if there were no union in
the shop because he would excel and advance faster be-
cause of seniority.
In response to Colbree's version of events, the Re-
spondent asserted an altogether different reason for
laying him off than the one he said Davis asserted, al-
though it might be possible to view both versions as two
sides of the same coin. What it amounted to was a con-
solidation of the work operation. In response to the Gen-
eral Counsel's assertion of antiunion motivation in forbid-
ding Colbree to vote, the Respondent could only offer
Pendzimas' testimony that he could not recall having had
15 I found Colbree's testimony highly credible
Q Could you tell us again Had you spoken with anyone poor to
that time about the amount of work you'd be doing?
A Yes, I was speaking to Charlie [Davis] Because when I got re-
hired for my second term of employment, I was working nights at
Merit Gas Station, full time nights And when I got hired again I
was working for about a week normal days, and then he asked me if
I'd be able to work overtime . I said . "Well, you know I 've got my
second job I'd have to leave my second job if you want me to work
overtime " So he said "Yes, there is definitely going to be a lot of
overtime rolling in " So I put in my 2 week notice 1 hat night when I
went to work
a conversation with Colbree about voting. Pendzimas,
however, also testified that his recollection of events
generally on the day of the election was extremely poor.
Adante testified that Colbree was laid off because he was
the low man in the sheet metal department at that time.
Aganito and Davis, the supervisors, were planning to use
one man on two machines, which made Colbree super-
fluous. He felt no obligation to recall Colbree because
probationary employees who are laid off are not usually
recalled.
Aganito and Davis amplified Adante's explanation that
Colbree was laid off because it was decided to operate
two automatic machines with one operator. The operator
who was already there when Colbree was hired, and
who therefore had seniority, was to operate both of the
machines. They asserted that this was the explanation
given to Colbree for his layoff. Aganito pointed out that
Colbree was not operating a new type of machine: the
new piece of equipment in the plant was not the one
Colbree was working on. It was purely a cost-saving
proposition. Davis explained his looking at or staring at
Colbree on the day of the election, emphasized by Col-
bree, as being a normal routine part of his duties as a su-
pervisor. He customarily observed his employees to de-
termine if they were working and if they were working
properly.
The story of Respondent's reason for discharging Col-
bree suffered, in my estimation, from some fatal stresses.
Frank Aganito, who was supposedly responsible for the
decision to let Colbree go, testified that he had no
knowledge of Colbree's union activities. This carefully
worded disclaimer ignores the knowledge of his union
sympathies, which was widespread among top manage-
ment and is imputable to Aganito. The chief trouble,
however, is with the story about consolidating the han-
dling of the two machines. That appeared to be plausible
until Davis was asked when the plans had been made to
change the operation of the machine that Colbree was
working on. His response was vague at best and evasive
at worst.
Davis had stated that basic proposition that "there had
been plans that we would try to operate the two auto-
matic machines with one operator." He professed not to
know the exact date that these plans were made, but
stated that they had been discussed shortly after Colbree
had been rehired "but they had planned to train one op-
erator to run two machines." There had already been
some discussion about having one person operate both
machines at the time Colbree was rehired; at some point
after he was hired, the decision was made to do so. The
testimony about the timing was extremely vague. Agan-
ito was not called on by Respondent to clarify matters
with respect to the timing or to explain why Colbree
was rehired while plans were being made that would re-
quire his layoff within a matter of days, during all of
which he was being told to put himself in a position to
work overtime when they knew he would have to quit
his nighttime job to do so.
The explanation offered by Respondent for recalling
two other employees who had been laid for lack off of
work, while Colbree was neither recalled to his former
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
job nor considered for other work for which he was
qualified, was that Colbree had been a probationary em-
ployee and probationary employees are not customarily
recalled. This highly technical proposition was placed on
the record by Adante, who offered no reconciliation be-
tween it and the fact that Colbree had returned to work
at a nonprobationary wage rate.
The vagueness in the recitals of the history of Re-
spondent's plan to have one person operate two ma-
chines, thus eliminating Colbree's job; the technical atti-
tude toward Colbree's status despite his previous em-
ployment, which Respondent asserts was company
policy; Colbree's testimony about the reason given him
for his layoff, either version of which is detrimental to
Respondent; since the lack of work reason was contra-
dicted by other recalls, and the failure to state any
reason permits an inference that he was laid off for his
union activity; and the contradictory statements made to
him about the volume of business and overtime, on
which he relied to his detriment, lead me to believe that
the reason asserted for his discharge by the Respondent
in these proceedings is pretextual . It is to be noted that
no evidence was introduced by the Respondent to show
that in fact the Respondent placed the two machines
under the operation of one employee and actually elimi-
nated Colbree's job.
Accordingly, I find that Colbree was discriminatorily
discharged in violation of the Act.
6. Christine Dumas
Christine Dumas began working at Fermont as a spot
welder on August 31, 1981. She was suspended on June
1 for 3 days, and was discharged on June 18 . She was a
union activist to the extent of signing a Local 1040 card
in March , attending union meetings , and wearing a
Teamsters T-shirt and buttons.
In October 1981 she was given a verbal warning. In
January she received two warning notices for absentee-
ism based on four occasions of absence and lateness that
occurred in December 1981. She had been ill and so no-
tified the Company. In February she was absent for 4
days on account of a back injury sustained at work and
for which she received workmen's compensation. She
also missed 4 days in March because of back pain. She
submitted notes from her doctor covering the February
and March absences.
In late May she was reprimanded for the absences in
March and Davis suspended her for 3 days, telling her
that the doctor's notes were not adequate. The suspen-
sion was canceled but reinstated on June 1. She quoted
Davis as explaining that they had not wanted to suspend
her before then on account of the Memorial Day holi-
day. She called Adante's attention to her doctor's notes,
but he pointed out to her that the notes did not specifi-
cally mention her back injury and stated that she could
return to work.
Dumas returned from the 3-day suspension on June 7.
Two days later she got sick again. She reported that she
was not feeling well, and asked whether she would be
fired if she stayed out. Davis told her that if she was out
less than 3 days she would be all right, but she would
need a doctor's note if it was more than 3 days. She
stayed home for several days, went to a hospital, and
was told she had pneumonia . She entered the hospital
and Davis told her she should bring in a doctor's note
when she was able to resume work . She remained out
another week. When she returned to work on June 18
she was given her check and termination papers. The
stated ground of termination was excessive absenteeism.
There is no evidentiary connection whatsoever be-
tween Dumas ' suspension and the union campaign. The
fact that she was a known union supporter is insufficient
by itself to raise an inference that this was the reason the
Company discharged her. There is no evidence that es-
tablishes that the stated reason for her discharge given
by the Respondent's witnesses, that she grossly exceeded
the absenteeism limits allowed by established company
policy, was not the true reason for her discharge. The is-
suance of earlier warnings for an obviously severe prob-
lem indicates that the stated reason is the actual reason.
Davis testified that he had several discussions with
Dumas about her attendance and tardiness problem and
warned her that she was going to get fired for her poor
attendance. Even if she had brought in notes from doc-
tors, that would not have affected the result since the ab-
sences would still count under the company policy.
The reasdns given for discharge are not pretextual.
There is no evidence that the discharge was discrimina-
tory. Accordingly, I find no violation of the Act by
reason of Dumas' discharge.
7. Miguel Lugo
Miguel Lugo was suspended on June 5 and discharged
on July 13. He began working at Fermont in October
1981 assembling generators under the supervision of Wil-
fredo Garcia . He signed a union authorization card,
signed Hernandez' petition to replace IBEW with the
Union, attended meetings, and began wearing a Team-
sters T-shirt about 2 weeks before the May 14 election.
According to Lugo, Abbatello and Aganito both spoke
to him about the T-shirt and Abbatello insisted that he
take it off. The signal that Lugo was sending with his
attire appears, however , to have been mixed : Pendzimas
testified that some of the items that he saw Lugo wear-
ing, consisting of pins , hats , and various T-shirts, were
pro-Company, some were pro-Teamsters, and some were
pro-IBEW.
Lugo was absent twice in March and Twice in April
and was late several times in each month . In June he was
given two warnings simultaneously covering his absences
and latenesses during March and April. At the time, Ab-
batello explained to him that the pendency of the elec-
tion had delayed the paper work on these disciplinary
actions. According to Abbatello, Lugo' s attitude was one
of relief: he said he had expected the suspension and
needed the 3 days off.
On July 13, Lugo was fired for the stated reason that
he had violated the absence and punctuality policy. He
testified, however, that he had been absent on only one
further occasion after his suspension because he had to
appear in court; that he explained this to his supervisor a
week ahead of time; and that on the day he had to
appear in court he came in to work first, left work at
DYNAMICS CORP. OF AMERICA 947
9:30 a.m., and was back at 1 p.m. Despite this explana-
tion , however, he did not contend that the absence was
excused. Regarding the latenesses, he testified that he
was only 1 or 2 minutes late.
The record shows that Lugo was treated in the
manner prescribed by the published attendance and
punctuality policy. There is no evidence of disparate
treatment. There is no credible evidence of any connec-
tion between his discharge and his union activity. (I
credit Abbatello's testimony denying that he told Lugo
to remove his Teamsters T-shirt.)
Abbatello testified that he had had frequent off-the-
record discussions with Lugo about his attendance and
tardiness and had expressly mentioned the Respondent's
attendance policy. Lugo received a verbal warning prior
to the two written warnings given to him in June.
Lugo's concession that the disciplinary suspension in
June was warranted is indicated by his remark that he
expected it and needed the 3 days off.
Lugo tried to attribute his being marked late to dis-
crepancy between the timeclocks on the assembly line
and in the electrical department. Lugo insisted that he
really was on time, but that the clocks were in error, and
he told Abbatello that the clocks were wrong. He con-
cedes, however, that Abbetello specifically directed him
to govern himself by one particular clock. Thus the fact
that there was a discrepancy between the tirneclock gov-
erning the men on the assembly line in the plant and the
timeclock governing the electrical department should not
have created any problem for Lugo. Similarly, if, as
Lugo testified, the timeclock had been off for several
months, it should have been easy for him to adjust his
schedule to the erroneous clock if it were creating that
much of a problem for him. In any event, he failed to
explain the fact that he was not being consistently
marked late every day, but only on certain occasions,
and the fact that a large number of other employees-the
entire electrical department-were punching in on the
same clock and were on time. Obviously, Lugo's sched-
ule, not the timeclock, was erratic.
Abbatello testified that on the one occasion when
Lugo mentioned the timeclock to him, he did not do so
in a serious fashion . He used it as an excuse for being
late, but made no response when Abbatello asked him
how come the clock was wrong for him and right for
everybody else. Abbatello received no complaints from
other employees in the electrical department concerning
the timeclock. He also testified that Lugo never men-
tioned its lack of synchronization with the other time-
clock, but only asserted that the timeclock was wrong.
Aganito had it looked into by the Tnainteance department
and the clocks in the paint and electrical departments
were both found to be operating properly. Forty-five
employees used the same timeclock that Lugo used
during the time that he was employed. Eighty-five em-
ployees were using the timeclock that governed the paint
shop (see the discussion below relating to Robert Smith).
The net effect of Lugo's testimony respecting the time-
clock was to impair his credibility. Not only was it unre-
alistic, but his assertion that he was constantly being
marked late on account of timeclock error does not
appear anywhere in a statement that he furnished to a
Board investigator.
There is no evidence linking Lugo's suspension or his
subsequent discharge to his union activity or sympathies.
I do not credit his testimony that supervisors " insisted"
that he remove his Teamsters T-shirt. I believe that his
discharge was for the reason advanced by the Respond-
ent in these proceedings. Accordingly, I find no violation
of the Act.
8. Renan Reyes
Renan Reyes worked at Fermont from September 12,
1981, until he was discharged on December 14, 1982. He
started as a grinder and became a welder. He worked
under the supervision of Charles Davis. His union activi-
ties consisted of helping in the distribution of authoriza-
tion cards for the Union, wearing union buttons and a T-
shirt, and speaking to other employees in support of the
Union. In June , Davis gave him two warnings covering
absences and latenesses that had occurred in March and
April. On November 16, he was suspended for 3 days for
absenteeism and lateness . In December, Steven Bassett
fired him for absenteeism and lateness . Bassett , who had
just taken over from Davis as supervisor of the welding
and sheet metal department, testified that he warned
Reyes verbally to be careful about his attendance after
Reyes took several half-days off. He spoke to him as a
friendly gesture, telling him to be careful not to jeopard-
ize his job, which was in accordance with his standard
practice of cautioning employees who asked for time off
during the day that it would be on their records. He tes-
tified that Reyes replied that he was aware of the attend-
ance policy.
The foregoing is a complete summary of all the evi-
dence relating to Reyes' suspension and discharge. There
is nothing in it that indicates that either the suspension or
the discharge was discriminatory. I find no violation of
the Act.
9. Mark McGraw
Mark McGraw, a welder, began working for Fermont
on August 19, 1981. Prior to the election of May 14, he
supported Local 1040. He spoke to employees on the job
and attended some of the union meetings. He signed an
authorization card. He was eligible to vote in the No-
vember election. He sat in on some meetings called by
supervisors in the course of their campaign against the
Union and specifically had a conversation with Biers-
worth, the traffic controller, in which he expressed his
opinion that the Company had unfairly terminated some
of the employees. (He did not testify that he expressed
support of the Union.) A week and a half before the
election he had a conversation with Bassett, most of
which was devoted to Bassett's expression of his own
feelings about the Union. McGraw appears, however, to
have indicated his sense of solidarity with the Union in
the course of that discussion.
McGraw received a first warning for April, but in
June he had two more absences and two late, or partial,
workdays. On July 13, he received a final warning for
absenteeism and tardiness. On August 10 he was suspend-
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed for 3 days (August 11, 12, and 13). On December 14
he was discharged.
McGraw disputed the correctness of the record for
June. His objections related to conceded absences that he
felt should have been excused because he had spoken to
his supervisor about them ahead of time and to instances
in which he disputed the correctness of the number of
absences shown in the Respondent's records. At first he
conceded the accuracy of the record on one absence and
five partial workdays in July, but insisted he had spoken
with his supervisors regarding each of the days he had
taken off. Then he professed to have some doubt wheth-
er he actually had missed 1 day in July. He conceded
there were some partial days, but disputed that there had
been as many as five He insisted he had informed the
lead man a week ahead of time before he took the partial
days off to take care of appointments. He did not specify
the nature of the business he was taking care of. He testi-
fied that when Bassett called him in and handed him the
discharge notice, Bassett asserted that he did not under-
stand why they were letting McGraw go because he was
such a good worker. Because the stated reason in the
notice for the termination was excessive absenteeism and
tardiness, that seems improbable.
Bassett contradicted McGraw's testimony and stated
that he had warned him that Fermont had "a very struc-
tured attendance policy" and McGraw indicated his
awareness of the policy. This is consistent with his testi-
mony respecting Renan Reyes. Bassett denied having
told McGraw that he did not understand why he was
being discharged; he testified that he told him that he did
not like having to give him his discharge notice just
before Christmas, but that McGraw had violated the
policy. McGraw did not at that time deny having been
absent or late as indicated in the notices.
Davis, McGraw's first supervisor, identified the memo-
randa of the verbal warnings that he had given McGraw
and testified that he had warned McGraw to find some
other means of taking care of his personal business in-
stead of taking time off during regular working hours,
and testified that he had expressly refused to assent to his
taking the time off. When McGraw gave him advance
notice of his intention to take time off, he warned him to
try to make other arrangements.
Under all the circumstances, it appears that the Re-
spondent discharged McGraw because of his attendance
and lateness record. The mere fact that he was a union
activist cannot cloak him with a shield of protection for
violations of company policy. His disagreement with the
Respondent's record of the number of absences and tar-
dinesses is not supported by any records or figures of his
own. He simply is relying on his impression that the Re-
spondent's figures are wrong. That is insufficient. I find
no violation of the Act with respect to McGraw.
10. Robert Smith
Robert Smith was suspended on June 18, 1982, and
discharged on July 13, 1982, assertedly for excessive
latenesses and absences . Warning notices are in evidence,
along with his attendance record.
Smith began working for Fermont in June 1981. He
was originally hired as an assembler and later became a
materials handler in the paint department . His supervi-
sors were Wilfredo Garcia and, later, George Miller. As
I have noted above, Smith was the chief organizer for
Local 1040 in the plant and his activities were known to
management. After the election on May 14, Pendzimas
learned that Smith had written the In-Plant Committee's
letter to the employees. Pendzimas testified that the
letter had impressed him so much that he invited Smith
to apply for a technical writing position in the engineer-
ing department . Smith submitted a resume . His qualifica-
tions were reviewed by the personnel department and by
Joseph Bruno, the director of engineering , who offered
the job to Smith on the understanding that he would im-
prove his lateness and absence record. However, Smith
turned the job down, giving as his reason his fear that
his fellow employees would think he had sold them out.
Although he did not say so at the time, he was also sus-
picious that the job offer was not intended sincerely but
was a means of separating him from the bargaining unit
and isolating him in a position from which he could be
fired at the whim of management. When Smith first
turned the job down, he advised Pendzimas and Adante
"that certain employees were told by their supervisors
that I was selling out and that I had created enemies
among the supervisory personnel and that some of them
would stop at nothing to, in effect, hang my scalp on
their belt." Pendzimas and Adante assured him there was
no problem and suggested that he take several weeks to
think about the offer. Nevertheless, Smith ultimately de-
clined the position.
The offer of a promotion to a better job is advanced
by Respondent as proof of its lack of animus or discrimi-
nation against him because of his union activity. Smith
contended that the offer was a sham, a trap, a plan to
enable management to ease him out of the plant altogeth-
er. On the record as a whole, I am inclined to agree with
him. The evidence on this issue consists of troublesome
testimony from both Smith, on the one hand, and Re-
spondent's top management team, on the other. Smith's
testimony contains some inconsistencies , ambiguities and
downright irrationalities; his attempt to cope with some
of the more difficult questions about his case produced
some testimony on his part that impressed me as being
evasive. The story told by the management team, by
contrast, was presented forthrightly and consistently, but
I cannot believe it.
Bruno testified that his section was overloaded with
technical writing requirements and its only technical
writer badly needed help. The personnel department
gave him Smith 's resume and after a lengthy discussion
with Smith, Bruno decided that he wanted to hire him.
The personnel department called Bruno's attention to
Smith 's lateness and absence record and Bruno cautioned
Smith about it. Smith explained to Bruno that his ab-
sences were the result of the numerous daytime meetings
he was attending and promised that that would end.
Smith was interested in the job and it was arranged that
he would begin on a Monday within a week or two.
However, Smith did not show up. Bruno went out to
talk to him in the shop and Smith told him he wanted to
think about the matter a little more. Bruno told Smith he
DYNAMICS CORP. OF AMERICA 949
would keep the job open for a few more days, though
other people were coming in for interviews , because he
would prefer to hire Smith rather than someone from the
outside . He checked with Smith again several days later
and Smith told him that he did not want to take the job.
Bruno was under the impression from something Smith
said that he was under pressure from his fellow employ-
ees to turn it down.
Pendzimas testified that he discovered that Smith had
attended college and was within 25 credits of receiving a
degree . He was impressed with the letter Smith had writ-
ten and asked him why he did not try to get a better job.
When Smith replied that he had had better .jobs at other
companies , but the only job available at Fermont was the
job in the paint shop , Pendzimas suggested that he in-
quire at the personnel department , which was looking
for a technical writer. Pendzimas checked on Smith's
progress on several occasions , ascertaining that he had
spoken to Adante and Bruno . All of this was going on in
late May or early June 1982. Pendzimas was under the
impression that Smith accepted the job as technical
writer. When he inquired of Bruno whether he had start-
ed and learned that he had not, he went out into the
shop to find out the reason. Smith told him that he did
not feel that he could accept the job because he would
be letting down the people he had been representing for
the Union. Pendzimas had no further discussion with
Smith after that and the position was subsequently filled
through newspaper advertisement.
Ronald Santry testified that when he learned that
Smith was applying for the technical writer ' s job , he told
Smith that he thought the job would be good for his
future and that Smith would be an ,asset to 1 he Company
and that he , Santry , had recommended him for the job.
Smith thanked him. When Smith told him he was going
to accept it, he congratulated him. That was on a Friday.
The following Monday , Santry learned that Smith had
turned the job down . He went to speak to Smith about
it. Smith told him he could not accept the position be-
cause he would be letting down some of the people he
had been working with on the union campaign.
The accounts of Bruno, Pendzinas, and Santry were
straightforward presentations . In his own testimony,
Smith himself noted that Adante appeared genuinely
shocked when he declined the job offer on July 8.
Adante wanted to brief Smith on the procedures of the
new job and wanted to take him over for orientation.
Smith told him that , because a rumor was running
through the plant that he was selling the people out, he
was not prepared to take the job . Adante asked him to
hold on and talk about it and invited him to come to his
office later in the day. When Smith went to his office,
Adante took him up to Pendzimas' office. According to
Smith , "What came out of that meeting was that I re-
fused the job, much to the dismay and chagrin of Mr.
Pendzimas and Mr Adante . They told me that they felt
that I would have been an asset to the department and
that I certainly had the talent and qualifications to func-
tion effectively in that job." The conference concluded
with Smith responding that he did not want the job at
the expense of being considered a sellout artist and they
told him the job would be advertised in the newspapers.
Smith concedes he was worried about seeming to sell out
to management . He also concedes that when he "at-
tempted to refuse the job " he was told to take two
weeks to think about it.
In reaching my conclusion , I find insuperable difficul-
ties in crediting the Respondent 's story , which out-
weigh's the more improbable portions of Smith's theo-
ries, according to which the offer of employment as a
technical writer was a sham , company records were
rigged to show that he had violated the attendance and
punctuality policy , legitimate complaints about the time-
clock went unheeded, and his timecards were mysteri-
ously removed from the rack. On all the evidence re-
garding the circumstances surrounding the offer, I con-
clude that the job offer was genuine and was made for
the sincere pupose of removing Smith from the union
campaign and, when that failed , the Respondent dis-
charged him.
The reason for my skepticism respecting Smith's con-
tentions are quickly made clear by a short review of the
evidence related to them.
In support of his contention that company records had
been falsified , Smith testified that on several occasions
his timecards disappeared from the rack , preventing him
from punching in or out and requiring George Miller, his
foreman , to make pencil notations or punch a substitute
card. Since Smith thus conceded that an alternate record
was maintained , I do not see what effect the disappear-
ance of the cards or the supposed indifference of man-
agement could have on the correctness of the record. (I
am also unimpressed by Respondent 's emphasis on
Smith's failure to review the cards when he was in
Adante 's office on the day of his discharge . It is conced-
ed that he was in a highly agitated state after he was no-
tified of his termination.)
Smith 's testimony that he complained about the time-
clock, fruitlessly , to Pendzimas , Adante, Aganito, Santry,
Garcia , and Miller takes on a bizarre cast when juxta-
posed with his evasiveness when confronted with the
simple questions of why he did not simply adjust his own
watch to avoid being marked late and why he had all
that trouble when so many other employees who
punched in on the same clock managed to get in on time.
His specious distinction between inaccuracy of the clock
and discrepancy between the clocks in the premises was
not helpful.
Smith 's contention that he should not have been
marked absent on occasions when he notified the Re-
spondent that he was ill must fail in view of the explicit
requirements of the published policy, which make no ex-
ception for excessive absences by reason of unverified ill-
ness.
With respect to Smith 's assertion that he should not
have been marked late on certain Saturday mornings be-
cause he had an agreement permitting him to start late, I
cannot credit his testimony that he had a special agree-
ment with George Miller to begin overtime Saturday
work at 7 a.m. instead of the usual 6 a.m starting time,
even though Miller was not called as a witness to refute
Smith on this point . The fact is that on the occasions
when he came in late , he arrived only shortly after 6
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a.m. and very much before 7 a.m. He explained this by
saying that he was a conscientious worker. If that were
so, he did not need the agreement and might as well
have come in at 6 a.m. This must have occurred to
Smith too, for he furnished an additional explanation. I
found the second explanation even less acceptable than
the first. Smith testified that he arranged the 7 a.m. start-
ing time with George Miller after he had refused to
come in for any Saturday overtime because the Respond-
ent was not giving adequate advance notice that over-
time on Saturday would be needed. He only agreed to
come in after a "mutually beneficial" schedule was ar-
ranged. This testimony made no sense to me because the
arrangement that Smith says he negotiated had no bear-
ing on the problem of inadequate notice that supposedly
had been bothering him.
The shortcomings of Smith's testimony, however, do
not undermine his basic contention that the Respondent
fired him because of his activity in support of the Union.
The General Counsel established a prima facie case on a
showing that the Respondent had committed a large
number of unfair labor practices in connection with the
union campaign and had union animus; that Smith was
the chief union organizer in the plant; that the Respond-
ent made an illegal effort to curtail Smith's union activi-
ties in the plant; and that the Respondent fired Smith for
violation of an attendance and punctuality policy that
was not uniformly enforced. The Respondent did not
meet the burden, which was thereupon thrust on it, of
producing evidence that it discharged Smith on valid
grounds not connected with his support of the Union.
The version of events put forth by management suffered
from the mechanical reiteration by management's witness
of the formula of job offer, acceptance by Smith of job
offer, change of mind on his part, and solicitude on their
part for the furtherance of Smith's career with the Com-
pany. I found it incredible.
There was an unbridgeable gap between the willing-
ness of Respondent's management to be flexible about
Smith's record of absenteeism and lateness while he was
under consideration for the technical writer's position,
and their subsequent extraordinary inflexibility after he
declined the position, when they insisted on firing him
for almost the same offenses for which he had already
served a 3-day suspension because he had only a minor
additional lateness that had occurred before he served
the suspension.
Another great contradiction in management's position
was the contradiction between their professed admiration
and enthusiasm for his capabilities and their willingness
to overlook his capacities while he remained in the unit
(and in the union campaign). They had him washing
parts in the paint department, to which he was restricted.
They would have me believe that during this period they
were conducting a search for a desperately needed tech-
nical waster. I find it extremely interesting that, notwith-
standing this need, they ignored both Klinko and Smith.
The testimony of all witnesses is in accord that Smith's
attendance and lateness record was known to Pendzimas,
Adante, and Bruno, Bruno accepted Smith's promise that
it would improve when he moved to the engineering de-
partment, and Smith had been spoken to about his record
three or four times between February and July and had
been warned of the possibility of dismissal on account of
it. The willingness of management to negotiate and to
adopt a wait-and-see attitude disappeared completely
when Smith made it clear that he would remain in the
unit, expressly to avoid the appearance of having sold
out the campaign.
Until the final rejection of the job offer, the manage-
ment was literally running after Smith to get him to take
the job. Pendzimas checked with Bruno to find out if
Smith started on the job, a matter that he would have
been expected to have taken for granted. He did not; he
checked. When he found out there was difficulty per-
suading Smith, he ran into the shop to talk to him about
it. Bruno ran into the shop to talk to him about it. Santry
ran after him to talk about it. This unnatural and unex-
plained interest in Smith's career was followed by a pre-
cipitate fall from grace. I believe that management genu-
inely wanted Smith to accept the technical writer's job,
and that the offer was made for the specific purpose of
removing Smith from the unit and converting him into a
salaried employee detached from the union's organiza-
tional effort.
My conclusion in this respect leads inexorably to the
further conclusion that Smith was discharged on the
basis of his attendance record because after he turned the
job offer down that was the only remaining method by
which he could be removed from the unit. The justifica-
tion that management used was a technical justification,
which had already been the basis for a suspension before
Smith made himself hopelessly unpopular with manage-
ment. The true motive for the discharge was to remove
the chief union organizer from the plant.
The highly technical nature of the reason given for
Smith's discharge, contrasting as it does with the earlier
interest shown in his career, is indicative of manage-
ment's frame of mind, especially because it is a question-
able technicality to begin with.
On June 15, a suspension notice was issued citing one
absence and five late or partial workdays in April and
May. It bore the statement, "If your attendance record
does not improve satisfactorily, further disciplinary
action will be taken, including possible discharge." This
was received by Smith on June 18. It suspended him for
June 21, 22, and 23. Smith's record shows a further late-
ness or partial workday on June 19, when he is credited
with on 7.9 hours. In the words of Respondent's post-
hearing brief, "In July he was terminated for further vio-
lations in June." This is true enough; also true is Smith's
contention that there had been no further latenesses or
absences after his suspension. Respondent would give the
impression that the wheel of bureaucracy had ground re-
lentlessly: on June 15, the disciplinary notice was issued
for violations in the previous months; in July, action was
taken purportedly for violation in June.
The inconsistency of this action with Respondent's
purported desire to advance this same employee to a po-
sition in the engineering department is so blatant that
even the Respondent felt that some explanation was
needed, and Respondent argued citing Smith's testimony
about the timeclock that Smith made a deliberate attempt
DYNAMICS CORP OF AMERICA
to be late and that there was "premeditation on his part
to force the Company to fire him by what appears to be
a deliberate violation of the attendance policy so as to
allow him to file the instant claim." i e No attempt was
made to square this contention with the testimony of Re-
spondent's own people that Smith was terribly upset
when he was fired. I do not think the contention merits
further discussion.
My conclusion that management sought a means
whereby it could remove Smith from the union and thus
weaken the organizational effort of the Union is rein-
forced by the knowledge that Respondent had already
taken extreme, and illegal, measures to limit Smith's ac-
tivity in support of the Union when it improperly re-
stricted Smith's movements within the plant. Respond-
ent's contention, in its posthearing brief, that there was
no job-related need for his movements about the plant, is
belied by the unrebutted evidence in the record respect-
ing the scope of Smith's duties prior to his suspension in
June.
I am also influenced by the failure of the Respondent
to take disciplinary action against some employees whose
attendance and punctuality records were as bad as or
worse those that of Smith. 17 For example, according to
my reading of the Respondent's records or the summa-
ries of the records that are in evidence, an employee
named Shirley Szymanski was late four times and left
early twice in April and left early nine times in July. No
disciplinary action was taken; she was promoted to su-
pervisor in September. Michael Sewell had two unex-
plained absences and left early four times in July; no dis-
ciplinary action was taken. Ronald Coleman, the employ-
ee who said he double-checked with Gerthel Bember to
find out if Bember was making a threat of personal phys-
ical harm against him, left early five times and was out
sick once in January; left early four times and was out
sick once and had one unexplained absence in August;
and left early twice and was out sick 3 drays in Septem-
ber. No action was taken. James Lerillo left early twice,
was late 1 day, and was out sick 1 day in June; was late
six times, left early once, and was out sick twice in July;
was out sick four times, was late once, left early once,
and had one unexplained absence in September. No
action was taken.
Under the Respondent's policy, an offense occurs
when an employee has two absences, or more than three
tardinesses or partial workdays, including occasions
when the employee leaves early, or a combination of ab-
sences and tardiness equalling more than three in any
one calendar month. Respondent's policy was therefore
applied inconsistently not only with respect to Smith
himself, being ignored while the job offer was pending
16 Respondent's posthearing brief, 21, 22, and 25
17 In its posthearing brief, the Respondent relied on Fruehauf Corp,
255 NLRB 906 (1981), in which the discharge of a union shop steward
for violation of attendance rules was held not to violate the Act though
the employer had not followed its progressive disciplinary system in all
cases However, other factors of importance are what dictated the result
in that case In the decision, it was specifically noted (255 NLRB at 910)
that there was an utter failure of proof that the steward had actually en-
gaged in any significant union activity or even that Respondent was hos-
tile to union activity on the part of the steward or of any other employ-
ee
951
and being applied rigorously after he declined the job,
but inconsistently as compared to other employees, espe-
cially those obviously sympathetic to and working with
management.
The story advanced is inherently incredible and con-
tradicts Respondent's known actions both as regards
Smith, in different circumstances, and other employees. I
therefore find that Respondent's asserted reason for dis-
charging Smith was pretextual. i 8
Accordingly, I find that Smith was discharged in vio-
lation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices committed by the Respond-
ent have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
The Objections to the Election
Objections 1 and 3 to the election conducted on No-
vember 12, as set forth in the order consolidating the
hearing on these objections with the hearing on the
unfair labor practice charges, have been quoted at the
outset of this decision in the statement of the case. As
appears from the foregoing review of the alleged unfair
labor practices, I have found the evidence insufficient to
support any finding of instances of interrogation of em-
ployees, either individually or in small groups, for the
purpose of discouraging their support of the Union,
which have occurred since May 14. I have found, how-
ever, that since May 14 the Respondent has discharged
two prounion employees, Robert Smith and Brian Col-
bree, in order to discourage union support among the re-
maining employees. No independent review of the facts
of those cases is needed for the purpose of ruling on the
objections.
Accordingly, Objection 3 is dismissed and Objection 1
is sustained to the extent that it is found that the Compa-
ny (Respondent) discharged two prounion employees in
order to discourage the remaining working employees
from supporting the Union. The unfair labor practices
found to have been committed are violative of Section
8(a)(1) and (3) of the Act and amount to improper inter-
ference with the election process, support an objection
filed on the basis of a crucial interference with the same,
and warrant setting aside the results of the balloting.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
is See Shattuck Denn Mining Corp, supra, fn 3 The court continued
(362 F 2d at 470)
Nor is the tier of fact-here the trial examiner -required to be any
more naif than is a judge If he find that the stated motive for a dis-
charge is false, he certainly can infer that there is another motive
More than that, he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where , as in this
case, the surrounding facts tend to reinforce that inference
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent committed the following violations
of Section 8(a)(1) of the Act:
(a) About April 22, 1982, and on at least one other oc-
casion during the month of April 1982, the Respondent,
acting through Joseph DeCrescenzo, a supervisor, threat-
ened employees with loss of seniority and existing wage
benefits and threatened plant closure if the employees se-
lected the Union as their bargaining representative.
(b) In January 1982, the Respondent, acting through
Joseph Adante, threatened employee Juan Hernandez
with discharge if he did not discontinue protected con-
certed activity in which Hernandez was then engaged,
consisting of circulation of a petition for change of col-
lective-bargaining representative.
(c) In and about April and May 1982, the Respondent,
acting through Geoffrey Liptak, threatened employees
with loss of employment by telling them that funds for
expansion of the Company had been "put on hold" by
Dynamics Corporation of America, the parent corpora-
tion of Fermont Division, until the outcome of the elec-
tion because the parent corporation did not want Team-
sters Local 1040 to be selected as the employees' collec-
tive-bargaining representative.
(d) In February 1982, the Respondent, acting through
Wilfredo Garcia, threatened Juan Hernandez with dis-
charge if he did not cease his union activity and threat-
ened them with loss of their jobs if employees did not
cease their union activity and created an impression that
employees were under surveillance.
(e) In April 1982, the Respondent, acting through
Frank Aganito, unlawfully interrogated employees re-
garding their union activities.
(f) On June 13, 1982, the Respondent, acting through
Charles Davis, announced to employees that the Compa-
ny had issued warning notices and suspension notices to
employees because they had selected the Union as their
collective-bargaining representative.
(g) In March and on May 7, 1982, the Respondent,
acting through Charles Davis, promised to remove warn-
ing notices from employees' files if they did not select
the Union as their collective-bargaining representative.
(h) In March and on May 7, 1982, the Respondent,
acting through Charles Davis, promised wage increases
to employees if they did not select the Union as their
collective-bargaining representative.
(i) On and before May 13, 1982, the Respondent ran a
contest and promised to award, and awarded, prizes for
antiunion slogans, thereby promising and delivering to
employees a financial reward for antiunion activities.
(j) From and after May 28, 1982, the Respondent, in
retaliation for their support of the Union, instituted
against union activists stricter enforcement of an attend-
ance and punctuality policy that had not previously been
uniformly enforced.
(k) On June 24, 1982, the Respondent imposed more
onerous and rigorous terms and conditions of employ-
ment on Robert Smith by restricting his movements in
the plant, confining him to the plant department, and for-
bidding communications about union matters without
clearly delineating the times when, and circumstances
under which, he could move about the plant and talk to
other employees about union matters.
4. The Respondent committed the following violations
of Section 8(a)(3) and (1) of the Act:
(a) On April 8, 1982, the Respondent suspended
Gerthel Bember for 2 weeks.
(b) On May 22, 1982, the Respondent discharged Brian
Colbree, and thereafter failed to reinstate him.
(c) On July 13, 1982, the Respondent discharged
Robert Smith, and thereafter failed to reinstate him.
5. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in any unfair labor
practices other than those found herein.
7. By reason of the fact that the Respondent dis-
charged two prounion employees in order to discourage
union support among the remaining employees and thus
committed unfair labor practices, as alleged in the con-
solidated complaint, which invalidated the election con-
ducted on November 12, 1982, Objection 1 to the elec-
tion is sustained.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices , I recommend that Respondent be directed to
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. I recommend
that Respondent be directed to offer Robert Smith and
Brian Colbree immediate and full reinstatement to their
former positions or, if those positions are no longer avail-
able, to substantially equivalent positions, without preju-
dice to their seniority or other benefits and privileges. In
the case of Robert Smith, the position to which he is to
be reinstated is that which he held prior to his suspension
on June 18, 1982, and not that to which he was restricted
on his return to work on June 24, 1982. I further recom-
mend that Respondent be directed to make Robert Smith
whole for any loss of earnings that he may have suffered
by reason of his discharge on July 13, 1983, and that Re-
spondent be directed to make Brian Colbree whole for
any loss of earnings that he may have suffered by reason
of his discharge on May 14, 1982, with backpay to be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962).
With respect to Gerthel Bember, I will recommend
that his suspension be revoked and that he be made
whole for any loss of earnings and benefits that he may
have sustained by reason thereof, including interest com-
puted in the same manner as for unlawful discharges, and
that Respondent further remove any reference thereto
from its files and assure him in writing that same has
been done and that such unlawful suspension will not be
the basis of any future personnel actions against him.
In addition, I will recommend that Respondent be re-
quired to remove from its records any references to the
unlawful discharges of Robert Smith and Brian Colbree
and to the suspension of Gerthel Bember , and provide
them with written notice of such expunction and inform
DYNAMICS CORP OF AMERICA
them that Respondent's unlawful conduct will not be
used as a basis for future personnel actions concerning
them.
The difficulties of proof of many of the charges
brought against the Respondent have required me to dis-
miss them as unproved, but what remains as proven-the
discharge of two employees because of their support of
the Union, one of whom was the chief union organizer-
is sufficient to convince me that the election held on No-
vember 12 was not free of coercion. Accordingly, I shall
further recommend that the election in Case 39-RC-315
be set aside and that the Regional Director be directed
to schedule a new election at such time and under such
circumstances as he deems appropriate.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 19
ORDER
The Respondent, Fermont, a Division of Dynamics
Corporation of America, Bridgeport, Connecticut, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees for engaging in protected
concerted activities.
(b) Suspending employees for engaging in protected
concerted activities.
(c) Threatening employees with loss of their jobs or of
seniority and existing wage benefits and threatening plant
closure if they select Teamsters Local 1040, Brewery
and Soft Drink Workers, Liquor Drivers and New and
Used Car Workers, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, as their collec-
tive-bargaining representative.
(d) Creating an impression .that employees were under
surveillance.
(e) Interrogating employees regarding their activities
in support of Teamsters Local 1040 or of any other labor
organization or regarding any protected concerted activi-
ty in which they are engaged.
(f) In the event that the employees select a labor orga-
nization or fail to reject a labor organization as their col-
lective-bargaining representative, taking any of the fol-
lowing actions because they have done so or in retalia-
tion therefor: announcing that Respondent was issuing
warning notices to employees , discharging or suspending
employees, instituting stricter enforcement of attendance
and punctuality policies or any other disciplinary poli-
cies, or imposing more onerous terms and conditions or
employment on employees.
(g) Doing any of the following things in order to
induce employees to reject any labor organization as
their collective-bargaining representative: promising to
remove warning notices from employees' personnel files,
promising wage increases to employees, or promoting
19 If no exceptions are filed as provided by Sec 102 ' 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
953
contests wherein awards and prizes are promised for an-
tiunion slogans.
(h) Imposing more onerous terms and conditions of
employment on prounion activists and restricting their
movements in the plant, without clearly delineating the
times when, and circumstances under which, they may
move about the plant and talk to other employees about
union matters.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self organization, to form labor organizations, to
join or assist a labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Robert Smith immediate and full reinstate-
ment to the position that he held at the time of his sus-
pension, on June 18, 1982, or, if that position is not avail-
able, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings and other bene-
fits in the manner set forth in the remedy section of this
decision.
(b) Offer to Brain Colbree immediate and full rein-
statement to his former position or, if that position is not
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings and other
benefits in the manner set forth in the remedy section of
this decision.
(c) Revoke the suspension of Gerthel Bember on April
8, 1982, and make him whole for any loss of earnings
and other benefits in the manner set forth in the remedy
section of this decision.
(d) Remove from its files any references to the dis-
charges of Brian Colbree and Robert Smith on May 14
and July 13, 1982, respectively, and to the suspension of
Gerthel Bember on April 8, 1982, and notify them in
writing that this has been done and that evidence of the
actions will not be used as a basis for future personnel
actions against them.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its office and plant at Bridgeport, Connecti-
cut, copies of the attached notice marked "Appendix."20
Copies of the notice, on forms provided by the Regional
Director for Region 39, after being signed by the Re-
spondent's authorized representative, shall be posted by
20 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 "
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent immediately upon 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the consolidated
complaints be dismissed with respect to allegations not
specifically found to be violative of the Act.
IT IS FURTHER RECOMMENDED that the election held
on November 12, 1982, in Case 39-RC-315 be set aside
and Case 39-RC-315 be remanded to the Officer-in-
Charge of Subregion 39 for the scheduling of a new elec-
tion to be held at such time as he deems appropriate.