Eddyleon Chocolate Co.

National Labor Relations Board - Board Decisions

Feb 27, 1991

301 N.L.R.B. 887 (N.L.R.B. 1991)

887
301 NLRB No. 125
EDDYLEON CHOCOLATE CO.
1 As reflected in the Direction, we adopt the judge’s ruling granting the Re-
spondent’s November 4, 1987 motion to reopen the record to resolve in a sup-
plemental hearing the voter eligibility status of Rosemary Carey, Hector
Colon, Florencio Gomez, and Lucien Delva in the event that their ballots
prove determinative. We reverse the judge’s recommendation to overrule the
challenge to the ballot of Paul Bellock, find that his eligibility status remains
unresolved, and direct that, in the event a supplemental hearing on determina-
tive ballots is conducted, the hearing officer shall also adduce evidence as to
Bellock’s status.
2 The Respondent has 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 evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We find it unnecessary to pass on the judge’s findings that the Respondent
solicited employees to form a labor organization by circulating memoranda to
employees on November 23 and December 20, 1985, respectively, entitled
‘‘Eddyleon Performance Record to Date’’ and ‘‘Let’s Clear the Air.’’ Any vio-
lation based on these memoranda would be cumulative and thus would not af-
fect the remedy or Order.
In adopting the judge’s findings of 8(a)(1) interrogations, we note that they
are in accordance with Board standards set forth in Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
The judge inadvertently referred to memoranda circulated to employees on
August 23 and 30, 1985, as the basis for finding an unlawful promise of bene-
fits that were later granted. The promises were in a December 17, 1985 memo-
randum.
3 We find it unnecessary to pass on the judge’s recommendation to overrule
Objections 10 and 11 in view of our disposition of the representation pro-
ceeding, as described below.
In the absence of exceptions, we adopt pro forma the judge’s recommenda-
tion sustaining challenges to the ballots of Catherine Bonitz and Jeanie Cicon,
and overruling a challenge to Judith Wilbur’s ballot.
4 Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. §§ 101–115 (1964).
5 See Gilberton Coal Co., 291 NLRB 344 (1988).
Eddyleon Chocolate Company, Inc. and United
Food and Commercial Workers, AFL–CIO,
Local 72. Cases 4–CA–15535, 4–CA–15636, 4–
CA–25659, 4–CA–15716, and 4–RC–16121
February 27, 1991
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 15, 1988, Administrative Law Judge
William F. Jacobs issued the attached decision. The
General Counsel and the Respondent both filed excep-
tions and supporting briefs, and the Respondent filed
an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,1 findings,2 rec-
ommendations,3 and conclusions, as modified below,
and to adopt his recommended Order, as modified.
1. The judge found that the Respondent’s president,
Gilbert Shwom, joined by Vice President-Plant Man-
ager Stanley Glasbrenner, made the following request
of job applicant Jeanie Cicon during her employment
interview: ‘‘We would like for you to sign a paper
stating that you will not join a union or be affiliated
with unions in any way.’’ Cicon indicated that she was
not interested in unions because she had already been
solicited to join a union and had declined. Shwom
turned to Glasbrenner in Cicon’s presence and said
‘‘[w]e’ll have to see if this is legal, then we’ll draw
one up and have her sign it.’’ Cicon was hired on the
spot. She was not thereafter presented with or re-
quested to sign what we shall call a proposed ‘‘yellow-
dog contract.’’ The judge recommended dismissal of
the allegation that Shwom’s remarks violated Section
8(a)(1) because the ‘‘unlawful yellow dog contract was
barely mentioned,’’ and because the Respondent did
not carry through its threat to require employees to
sign one. We disagree.
Even before passage of the Wagner Act, Congress
enacted broad prohibitions against yellow-dog con-
tracts.4 It is axiomatic that such agreements and their
solicitation are barred under the 8(a)(1) prohibition of
coercion directed at employee exercise of rights pro-
tected by Section 7. Here, not only was the prospect
of working under a yellow-dog contract raised at the
job interview, but Cicon was asked to make known to
her employer whether she was willing to sign such a
document as the final interview question before she
was extended an offer of employment. Cicon could
reasonably have anticipated that her future employment
depended on whether she refrained from union activity,
regardless of whether the pledge not to ‘‘join a union
or be affiliated with unions in any way’’ was reduced
to writing.5 The Respondent’s request was coercive
and violated Section 8(a)(1).
2. The judge found that President Shwom also vio-
lated Section 8(a)(1) by twice creating the impression
of surveillance of union activity. On November 22,
1985, he approached employees Becky Butler and
Linda Seeley at their machines and told them that he
had heard that they and a third employee were for the
Union. Later, in mid-March 1986, Shwom called em-
ployee James Masters into his office and told him that
he knew Masters was for the Union. The judge found
that Shwom also violated Section 8(a)(1) when, in
mid-March, he asked employee Robert Skasko to give
him the names of those present at union meetings
Skasko had attended, and Shwom checked off the
names on a list as Skasko gave them to Shwom.
In addition to these violations, we find, contrary to
the judge, that the Respondent’s pattern of unlawful
surveillance extended to incidents occurring on De-
cember 19, 1985, and March 19, 1986. On the first oc-
casion, Shwom drove his car to within 15 feet of
Union Representative Daniel Scalzo and watched em-
ployees as Scalzo handed them literature on a public
bridge near the entrance to the Respondent’s parking
lot. As he watched, Shwom spoke into his car tele-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Before driving to within 15 feet of Scalzo, Shwom had sat in his parked
car near the bridge and had watched the leafletting for 10 minutes. From that
point, Shwom, who was under the misapprehension that the Respondent owned
the bridge, asked Scalzo to get off the bridge. Scalzo refused.
7 The complaint does not specifically allege that Shwom’s call to the police
or his threat to make the call was unlawful.
8 During the same encounter, Shwom threatened to close down the plant or
sell it to keep the Union out and promised to lay off ‘‘another pile of their
[the Union’s] friends’’ the next day.
9 Milco, Inc., 159 NLRB 812, 814 (1966), enfd. 388 F.2d 133 (2d Cir.
1968). Accord: Chemtronics, Inc., 236 NLRB 178 (1978); Larand Leisurelies,
213 NLRB 197, 205 (1974), enfd. 523 F.2d 814 (6th Cir. 1975).
10 Metal Industries, 251 NLRB 1523 (1980) and cases cited there; Southern
Maryland Hospital, 293 NLRB 1209 (1989), enf. denied 916 F.2d 932 (4th
Cir. 1990), on grounds, irrelevant here, that the employer enjoyed a right in
trespass against those subject to surveillance.
11 In EDP Medical Computer Systems, 284 NLRB 1232, 1265–1266 (1987),
employer representatives on two occasions observed leafletting at the employ-
er’s premises and on a third occasion honored the requests of two employees
who had expressed fear of election-day violence by sitting outside the plant
until the employees arrived for work. The judge, whose dismissal of the perti-
nent portions of the complaint the Board adopted, noted the credited evidence
of an employer representative who, during one incident, had held papers in
her hand as she observed handbilling, that the papers were ‘‘business-related
work’’ and not note-taking of union activities. In Emenee Accessories, 267
NLRB 1344 (1983), the Board found no unlawful impression of surveillance
where the employer simply observed conversations between its employees and
union organizers as the employees reported to work. In R. H. Macy & Co.,
267 NLRB 177, 179 (1983), security guards witnessed handbilling inside a
mall where the respondent’s store was located from a mall bench, and later
from a restaurant table. In Palby Lingerie, 252 NLRB 176 (1980), the em-
ployer engaged in ‘‘no more than a brief inspection’’ of union solicitation.
phone. Shwom did not leave until the handbilling had
ceased.6
During the second incident, Shwom ordered Scalzo
and several employees off the bridge while they were
handing out union leaflets. Several other employees
were in their cars leaving the plant parking lot at the
time. When the leafletting continued on the bridge and
Scalzo refused to leave, Shwom threatened to, and did,
call the police.7 Then, as employees received leaflets
through their car windows, Shwom pointed to the indi-
vidual employees and screamed: ‘‘Give him one, give
her one, they’re union supporters.’’ Scalzo advised
Shwom he was committing an unfair labor practice,
and Shwom replied: ‘‘Go ahead, file charges. I don’t
give a damn about the goddamn Labor Board. I have
a good attorney and lots of money.’’8
We have no quarrel with the judge’s observation
that those who choose openly to engage in union ac-
tivities at or near the employer’s premises cannot be
heard to complain when management observes them.9
The Board has long held that management officials
may observe public union activity without violating the
Act so long as those officials do not ‘‘do something
out of the ordinary.’’10
On these occasions, however, Shwom’s behavior
was well ‘‘out of the ordinary.’’ During the December
leafletting, Shwom moved his vehicle from the point
where he could see and communicate with Scalzo to
within 15 feet of where Scalzo was stationed and
spoke on his car phone until Scalzo left. In the March
incident, Shwom threatened to call the police to eject
Scalzo from a public bridge, loudly accused individual
employees accepting union literature of being union
supporters, threatened to close the plant and lay off
employees who supported the union, and caused the
police to descend on the bridge. These incidents bear
little similarity to the brief, casual employer observa-
tions of union activity found not to be unlawful in the
cases cited by the judge.11 We find that the Shwom’s
participation in these incidents created an impression
of surveillance in violation of Section 8(a)(1).
3. The complaint alleges that on February 25, 1986,
the Respondent discharged employee David Williams
because it believed Williams supported and assisted
the Union. The facts, essentially as found by the judge,
are as follows. Williams was a maintenance man spe-
cializing in refrigeration. On Monday, February 3,
1986, Williams was assigned to a production job. Su-
pervisor Wayne Stueck excused Williams early that
day, when Williams complained that he was ill. After
another employee became ill and went home a few
minutes after Williams left, President Shwom, to
whom Stueck reported the excused absences, called
both employees at home. When no one answered the
phone at either house, Shwom wrote the employees a
letter indicating that they would have to bring doctors’
notes to work to verify their illnesses or be discharged.
Thursday of that week, Williams returned to work with
a note indicating that he had been under doctor’s care
since the day of his early departure and had been un-
able to work from Monday through Wednesday. The
doctor’s note also stated ‘‘light duty suggested for bal-
ance of the week.’’ Williams worked all day Thursday.
Friday morning, Stueck ordered all maintenance em-
ployees, including Williams, to work on the production
lines demolding chocolate bars (i.e., dumping the bars
out of their molds). Williams told another employee he
was still suffering from the flu and could not perform
the new job. Williams told Stueck only that he
‘‘couldn’t do the work.’’ Stueck became angry and
said: ‘‘I’m sick and tired of all you guys’ shit, punch
out.’’ According to Stueck, this conversation lasted
only seconds—less than a minute.
Williams saw Company Vice President George
Marsden before punching out and told Marsden he was
sick. Marsden gave Williams permission to go home.
As Williams was preparing to leave, he met Stueck
again. This time he did relate to Stueck that he was
ill, and Stueck replied: ‘‘No, you’re not going home
because you’re sick; you’re going home because you
didn’t do the job I told you to do.’’ After Williams
left, Shwom wrote him a letter informing Williams that
he had been discharged.
The General Counsel has made a strong prima facie
showing that union activity was a motivating factor in
Williams’ discharge. In addition to having signed an
authorization card and attending union meetings, Wil-
liams was directly accused by Shwom on December 10
889EDDYLEON CHOCOLATE CO.
12 Contrary to the judge, we find that Shwom’s December 10 remark to Wil-
liams immediately after telling him it was rumored he was a union organizer—
‘‘Dave, you should have technically been on layoff but Wayne [Stueck, his
supervisor] speaks so highly of you’’—is an 8(a)(1) threat because the remark
was made gratuitously in the context of an accusation that Williams was orga-
nizing employees. See Waterbed World, 286 NLRB 425, 427 (1987).
13 Demolding, or ‘‘banging molds,’’ is the procedure of hammering choco-
late bars that emerge from a conveyor belt onto cardboard, stacking the bars
that are hammered out, and throwing the empty molds back onto the conveyor
belt. Employee Becky Butler described the job as ‘‘very strenuous, you’d get
a blister’’ and difficult to perform because of the speed of the production
equipment. Even Stueck, who denied that demolding was strenuous work, ac-
knowledged that it was perceived by some to be difficult, and was rendered
difficult by its repetitive nature. Williams’ regular duties of air-conditioning
maintenance required him to fill air-conditioning units from large freon tanks,
which he carted throughout the plant. Because it took up to 30 minutes to fill
a unit, he had more opportunities to rest in maintenance. Production work re-
quired that he move constantly at a rapid pace.
14 As reported above, employee James Masters had received an identical
written notice. A month later, Shwom told Masters that he knew that Masters
was active in the Union.
15 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), affd. in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
16 No reinstatement is ordered for Williams, who is deceased.
of being a union organizer and was threatened with
layoff.12 A week later, Vice President and Plant Man-
ager Glasbrenner motioned for Williams to come over
to where Glasbrenner was standing in the production
area and told him: ‘‘Dave, this is the second time I
heard that you’re involved with the Union.’’ We find
violations of Section 8(a)(1) based on both these
events. The record amply documents the Respondent’s
strong antipathy to the Union generally, as well as spe-
cific animus harbored against Williams, whom it
dubbed a ‘‘union organizer.’’
The judge recommended dismissal of the discharge
allegation, however, because he concluded that Super-
visor Stueck had had an honest belief that Williams
was insubordinate in telling Stueck he could not per-
form the demolding work. We disagree with the
judge’s conclusion that ‘‘insubordination’’ alone was
the Respondent’s reason for the discharge. We find
that, however honest a belief Stueck may have had
about Williams’ unwillingness to work when he gave
him his assignment, the Respondent’s subsequent ad-
ministration of discipline by discharge evidences that
its asserted motive is pretextual. In short, the Respond-
ent has not overcome the strong prima facie evidence
of antiunion animus by a showing that Williams would
have been discharged for cause in any event.
Williams was not discharged by Stueck during their
confrontation on the production floor. According to
Stueck, Williams could have returned to his job any
time later that day. Stueck knew of Williams’ illness
earlier in the week and knew before Williams left the
plant that he was again complaining of illness. Stueck
also acknowledged the company policy on illness com-
plaints, corroborated by his superiors, President
Shwom and Vice President Marsden:
Q. What are the company rules concerning an
employee who says he or she is sick?
A. If they’re sick, they can punch out and go
home, no problem.
Q. How do you determine that?
A. By them saying it.
Thus, at the time the termination decision was made,
both Stueck and Marsden, who had given Williams
permission to go home sick, knew that Williams had
complained that he was still ill. Company policy pro-
vided that they permit him to leave on the strength of
his claim. Nonetheless, the Respondent did not inves-
tigate further to resolve its alleged doubt of Williams’
good faith. Indeed, the Respondent knew that Wil-
liams’ claim of illness was supported by a doctor’s ex-
cuse from earlier in the week. The doctor had rec-
ommended that Williams perform ‘‘light work’’ that
day; demolding is one of the more physically demand-
ing jobs in the production process.13 We are persuaded
that the Respondent seized on Stueck’s report of insub-
ordination as a pretextual ground for discharge, not-
withstanding its knowledge that illness justified Wil-
liams’ resistance to the demolding assignment.
The Respondent’s departures from established proce-
dures in disciplining Williams lend further support to
a finding of pretext. President Shwom reacted to Wil-
liams’ Monday absence by informing him in writing
that he would be discharged if he did not document his
illness by providing a doctor’s excuse. The Respond-
ent’s progressive disciplinary policy described at hear-
ing by Vice President Marsden, however, called for an
oral and a written warning before discharge. Thus,
even the Respondent’s reaction to Williams’ first ab-
sence betrayed an overzealous bent to accelerate dis-
ciplinary procedures against Williams.14 As to the ulti-
mate discharge, the Respondent’s practice, described
above, is to allow employees to go home whenever
they feel sick—a practice followed partially out of
concern for the potential contamination of chocolate.
With full knowledge of Williams’ medical excuse, his
claim of continued illness, and the nature of Williams’
new assignment, the Respondent’s asserted basis for
discharge is unpersuasive. We find that the Respondent
has not met its burden under Wright Line15 of over-
coming the prima facie case by proving that it would
have discharged Williams in the absence of his union
activities. Accordingly, we find that Williams’ dis-
charge violated Section 8(a)(3).16
4. The complaint alleges that the Respondent vio-
lated Section 8(a)(3) on March 21, 1986, when it laid
off Peter Zelinski, Michael Studders, Stanley Drag,
Victoria Tonte, Nancy Scarantino, James Walker,
Wendy Vogel, and Lydia Dallasandro; and on March
27, 1986, when it laid off Bonnie Spittel, Janice
Spittel, Lucy Gontkowski, Robert Skasko, James Mas-
ters, Dorothy Resavy, Kevin Goula, and Josephine
Rizzo.
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 According to the credited testimony of Robert Skasko, Shwom elicited in-
formation about union supporters by bluntly demanding: ‘‘Names, I need
names.’’ The March layoffs included Skasko and every employee he named.
18 286 NLRB 645, 647 (1987).
19 See also Link Mfg. Co., 281 NLRB 294, 299 fn. 8 (1986) (‘‘Respondent’s
reaction was thus in the nature of a ‘power display’ in response to the advent
of the Union . . . .’’).
On March 19, 2 days before the layoffs began,
President Shwom had told Union Representative
Scalzo during the incident on the bridge that he in-
tended to lay off a ‘‘bunch of [Scalzo’s] friends’’ and
identified Janice and Bonnie Spittel, and Lucy
Gontkowski as among Scalzo’s supporters. Two days
later, Shwom coerced employee Skasko into furnishing
him a list of persons who had attended union meetings,
obtaining the names of Zelinski, Tonte, Scarantino,
Vogel, Skasko, Resavy, and Goula. About the same
time, Masters was called into Shwom’s office, told that
it was known that he was active in the Union, and co-
ercively interrogated. Walker had been the target of an
8(a)(1) solicitation of grievances by Vice President
Glasbrenner in mid-January. The remaining four al-
leged discriminatees had either a recorded attendance
at union meetings or had signed authorization cards be-
fore their layoffs. The representation election was con-
ducted April 3, 1986.
The judge found that the Respondent’s decision to
lay off a large number of employees, including some
not alleged to be discriminatees, was economically mo-
tivated and not a violation of Section 8(a)(3). The
judge observed that the Respondent’s business is sea-
sonal in nature, typically winding down during the
spring, and that the Respondent drops its employee
complement to six or seven for the summer months.
The judge also noted that some of the alleged
discriminatees had been retained during the production
season, notwithstanding the Respondent’s knowledge
of their union support. He also observed that further
layoffs, not alleged to have violated the Act, occurred
the following month and that several union supporters
were recalled in the fall. Although we do not take
issue with these findings, on which the judge based his
recommended dismissal of the 8(a)(3) allegation, the
analytic framework of Wright Line, above, leads us to
the contrary conclusion, i.e., that the layoffs were ac-
celerated for discriminatory reasons.
President Shwom’s threat to lay off Union Rep-
resentative Scalzo’s ‘‘friends’’ during the incident on
the bridge only 2 days before the March 21 layoffs
brings into sharp focus the Respondent’s intent in an-
nouncing those layoffs. The correlation between known
union supporters—those Shwom had singled out on the
bridge and on the list of those attending the union
meeting that Shwom had just then obtained17 —and
employees selected for layoff is striking. That Shwom
may have cast a wide net, so as to lay off others not
named in the complaint, does not detract from the
strong prima facie showing of discrimination estab-
lished by the General Counsel. As the Board stated in
Alliance Rubber Co.,18 where
there is powerful evidence of union animus, and
where the explanations given for the timing and
selection criteria are not credible, the fact that a
few employees who had not supported the Union
were expelled along with those who had . . .
does not preclude the finding that discriminatory
motives lay behind the timing and selection.19
As to the asserted economic defense, there is scant
record evidence to support the Respondent’s contention
that layoffs were economically justified as early in its
season as March. The Respondent’s principal sup-
porting documentation is a one-page sales summary for
two seasons, which places sales for March at a season
high. The only evidence the Respondent introduced at
hearing concerning customer orders during the time at
issue were projections from a major customer that had
been furnished the Respondent at the beginning of the
production season. Although the Respondent main-
tained that this exhibit supported President Shwom’s
assertion that sales to that customer had decreased by
one-third during the 1985–1986 season, it was fatally
attacked by the General Counsel, who introduced evi-
dence showing upward adjustments authorized by the
customer during the same season. The Respondent was
apparently unable to furnish the supporting purchase
orders to validate its claim, and attempts by President
Shwom on the stand to explain the discrepancy were
unavailing. This evidence falls far short of the substan-
tial burden the Respondent shoulders in overcoming
the General Counsel’s powerful prima facie showing of
discrimination.
The Respondent’s evidence may be sufficient to
show that, as the season progressed, most, if not all,
of the discriminatees would have been laid off for law-
ful economic reasons related to the production cycle.
But the economic data in the record does not justify
an accelerated layoff. Particularly where that precise
form of retaliation—a layoff—was unambiguously
threatened only days before it was carried out, much
more is needed to show that the layoff at that time was
for nondiscriminatory reasons. As to evidence that
some—though by no means most—of the
discriminatees were recalled the next season, that is
only a testament to the Respondent’s need for the
skills of experienced employees to run production, as
Shwom acknowledged. We find that the Respondent
has not met its burden under Wright Line, and that the
891EDDYLEON CHOCOLATE CO.
20 Because the discriminatees would ultimately have been laid off later in
the season—for at least the duration of the summer shutdown—for lawful eco-
nomic reasons, we leave to compliance the determination of the period during
which backpay should be tolled.
21 See Scotts IGA Foodliner, 223 NLRB 394 (1976).
22 The judge found that the Respondent had advised the 17 employees laid
off November 23, 1985, that they would be contacted in the future, consistent
with the Respondent’s seasonal business. (In fact, eight were subsequently re-
called, and the judge found that the remaining nine had not been permanently
discharged.) Thus, on January 17, all 17 had a reasonable expectancy of recall.
23 The Respondent has excepted to the inclusion of cards executed by James
Masters and John Davis on the ground that their testimony at the hearing es-
tablished that their cards’ solicitations ran afoul of the Supreme Court’s hold-
ing in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). As the Union has estab-
lished a majority without reliance on the authorization cards executed by Mas-
ters and Davis, we find it unnecessary to determine the validity of their cards.
We have also omitted the undated authorization card of Janice Spittel. Excep-
tions to the inclusion of other authorization cards are without merit.
24 See, e.g., NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980); High-
land Plastics, 256 NLRB 146, 147 (1981).
25 See Koons Ford of Annapolis, 282 NLRB 506, 508 (1986), enfd. mem.
833 F.2d 310 (4th Cir. 1987), cert. denied 485 U.S. 1021 (1988).
26 See Midland-Ross Corp. v. NLRB, 617 F.2d 977, 978 (3d Cir. 1980), cert.
denied 449 U.S. 871 (1980).
27 See Chromalloy American Corp. v. NLRB, 620 F.2d 1120, 1131 fn. 8 (5th
Cir. 1980) (postelection violations ‘‘are always relevant because they dem-
onstrate that the employer is still opposed to unionization’’); Steel-Fab, Inc.,
212 NLRB 363 (1974); Larid Printing, 264 NLRB 369, 371 (1982); Long-
Airdox Co., 277 NLRB 1157, 1160 (1985).
28 Because the effects of the Respondent’s preelection violations were subse-
quently reinforced by the commission of postelection unfair labor practices, we
find no merit in the Respondent’s contention that the passage of time here
could warrant our withholding a bargaining order. See Hedstrom Co. v. NLRB,
629 F.2d 305 (3d Cir. 1980). As to the significance of employee turnover,
which the Respondent argues is also a mitigating circumstance, the Board has
consistently held that the validity of a bargaining order depends on an evalua-
tion of circumstances when the unfair labor practices were committed, and that
to withhold such an order where turnover has occurred would reward, rather
than deter, the party engaging in unlawful conduct. See Highland Plastics,
supra; Salvation Army Residence, 293 NLRB 944, 945 (1989).
layoffs violated Section 8(a)(1) and (3) of the Act, as
alleged.20
5. In his recommended Order, the judge provided,
inter alia, that, if, on the disposition of the challenged
ballots, it is determined that a majority of valid votes
were not cast for the Petitioner, the election be set
aside based on meritorious objections and a new elec-
tion conducted. The judge declined the General Coun-
sel’s request for a Gissel bargaining order. The Gen-
eral Counsel excepts, arguing that, in the event the
Union has lost the election, a bargaining order should
issue. We agree with the General Counsel that a bar-
gaining order is necessary.
The Union made a demand for recognition on De-
cember 23, 1985, and the demand continued.21 The
complaint alleges that the Union had achieved majority
status on January 17, 1986. The payroll register for
January 17 shows that 44 employees were actively em-
ployed by the Respondent and that 17 additional em-
ployees were on temporary layoff.22 The Union had at
least 33 valid authorization cards on that date.23 We
find that on January 17, 1986, the Union enjoyed the
support of a majority of the Respondent’s employees.
The record reveals a veritable catalogue of unfair
labor practices, numerous and far-reaching, spanning
the course of the Union’s election campaign and con-
tinuing thereafter. As set forth above and in the find-
ings of the judge that we adopt, the Respondent: (1)
twice threatened plant closure; (2) on six occasions
threatened orally to warn union supporters, to issue
them written warnings, or to lay them off or discharge
them; (3) coercively interrogated eight employees; (4)
on four occasions created the unlawful impression of
surveillance of union activity; (5) solicited grievances;
(6) communicated five written or oral promises of ben-
efits and granted the promised benefits; (7) ordered a
mass layoff and a discharge in retaliation for union ac-
tivity; (8) requested the names of all employees attend-
ing union organizing meetings; (9) solicited employees
to form their own labor organization; and, (10) re-
quested a job applicant to sign a yellow-dog contract.
These unfair labor practices include numerous exam-
ples of what we term ‘‘hallmark violations,’’24 includ-
ing some of the most pernicious—plant closure and
layoff threats and discriminatory discharges and lay-
offs. These are the most flagrant forms of interference
with Section 7 rights and are more likely to destroy
election conditions for a longer period of time than are
other unfair labor practices because they tend to rein-
force employees’ fear that they will lose employment
if union activity persists.25 All the violations were
committed by individuals at the top of the management
hierarchy—the majority by its president.26
The severity and extensiveness of the Respondent’s
unfair labor practices are underscored by its record of
interrogating employees about their testimony at Board
proceedings and of instructing an employee to with-
hold testimony at the hearing of these unfair labor
practice charges. Thus, the futility of holding a fair
rerun election is evident not only from the likely lin-
gering effect of the Respondent’s misconduct on em-
ployee free choice, but also from the Respondent’s ap-
parent determination to avoid a fair election, even at
the risk of abusing the Board’s processes. The likeli-
hood of the Respondent’s misconduct recurring in a
rerun election is high, as the Respondent’s postelection
conduct reveals continued hostility to employee
rights.27 We find, accordingly, that the possibility of
erasing the lingering effects of the Respondent’s unfair
labor practices and of ensuring a fair rerun election by
traditional remedies is slight.28
We reject the judge’s finding that the Respondent’s
unfair labor practices have necessarily failed to dis-
sipate the Union’s campaign. The judge found that the
Union’s campaign appeared to have gained momentum
after the discharge of Edward Zaleski on December 12,
1985, and that the vast majority of authorization cards
were signed between November 23, 1985, and Feb-
ruary 23, 1986, notwithstanding the Respondent’s vio-
lations during that period. The most serious and perva-
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 280 NLRB 19 (1986).
30 In Times Wire, all but one of the unfair labor practices on which the Gen-
eral Counsel predicated the request for a Gissel bargaining order occurred
prior to an earlier election that the Union had won and that had been set aside.
There were no challenged ballots in that election. Aircap Mfrs., 287 NLRB
996 (1988), also cited by the judge, is distinguishable because there ‘‘the vio-
lations found were not the sort generally regarded as of a pervasive nature;
there were no threats of plant closure, grants of benefits, and the single 8(a)(3)
violation ha[d] been mitigated . . . .’’ Id. at 999.
31 See Kurz-Kasch, Inc., 239 NLRB 1044 (1978).
sive unfair labor practice, however, occurred toward
the end of the campaign, including the flagrant threats
of plant closure and layoff by President Shwom during
the bridge incident, a variety of surveillance tactics, an
unlawful preelection promise of a wage increase, the
discriminatory March layoffs, and other unlawful
threats and interrogations.
Further, the record shows a downturn in employee
attendance at union meetings as the election neared.
Thus, at the Union’s March 25, 1986 meeting—a little
over a week before the election—only 11 employees
attended, including only 4 of the employees who had
not been laid off. This contrasts with attendance by 26
employees at a February 23 meeting. Finally, because
of the large number of determinative challenged ballots
that have not been opened here, it cannot be estab-
lished empirically, as it was in Times Wire & Cable
Co.,29 cited by the judge, how the Union’s momentum
may have changed over the course of the campaign in
response to the Respondent’s misconduct.30
Accordingly, we find that the employees’ representa-
tional desires expressed here through authorization
cards would, on balance, be better protected by a bar-
gaining order than by traditional remedies, if the final
revised tally shows that the Union has not won the
election. In the event that a final revised tally of bal-
lots shows that the Union has won the election, we
conclude, in agreement with the judge, that the Union
is entitled to a certification of representative, but in ad-
dition to our bargaining order. We shall further provide
that, if the final revised tally of ballots shows that the
Union has lost the election, the election shall be set
aside, the petition shall be dismissed, and the bar-
gaining order shall take effect.31
AMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order it to cease and desist
and to take certain affirmative action designed to effec-
tuate the policies of the Act. Specifically, having found
that Edward Zaleski and David Williams were
discriminatorily terminated and that Peter Zelinski, Mi-
chael Studders, Stanley Drag, Victoria Tonte, Nancy
Scarantino, James Walker, Wendy Vogel, Lydia
Dellasandro, Bonnie Spittel, Janice Spittel, Lucy
Gontkowski, Robert Skasko, James Masters, Dorothy
Resavy, Kevin Goula, and Josephine Rizzo were
discriminatorily laid off, we shall order that the Re-
spondent offer full and immediate reinstatement to
each, except for David Williams (deceased), and that
it pay them backpay and interest, to be computed in
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). In the case of those
discriminatorily laid off, however, backpay shall be
tolled for any period after March 21 and 27, 1986, the
dates of the layoffs, that the Respondent proves at
compliance that it would have laid off these individ-
uals for legitimate economic reasons.
Having found that a bargaining order is appropriate,
we shall order the Respondent, on request, to bargain
collectively with the Union as the exclusive collective-
bargaining representative of employees in the fol-
lowing appropriate unit:
All regular full-time and regular part-time produc-
tion and maintenance employees employed at the
Moosic, Pennsylvania facility but excluding all
other employees including but not limited to,
managerial employees, foremen, clerical employ-
ees, seasonal employees, casual employees, guards
and supervisors as defined by the Act.
In the event a bargaining order takes effect without
a certification of representative, for reasons set forth in
this decision we shall order that the election held in
Case 4–RC–16121 be set aside, and that the petition
in that matter be dismissed.
Nothing in our Order shall authorize or require the
Respondent to rescind wage increases and benefits that
have been conferred.
ORDER
The Respondent, Eddyleon Chocolate Company,
Inc., Moosic, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Creating the impression of surveillance of its em-
ployees’ union activities.
(b) Promising employees wage increases, bonuses,
insurance, and other benefits.
(c) Granting employees wage increases and bonuses.
(d) Interrogating employees about their own union
activities and those of other employees.
(e) Threatening employees with discipline and dis-
charge if they refuse to distribute antiunion literature.
(f) Soliciting grievances and complaints from em-
ployees, thereby promising them improved terms and
conditions of employment.
(g) Soliciting employees to form a labor organiza-
tion.
(h) Threatening employees with a reduction in bene-
fits, layoffs, closure of the facility, and other unspec-
ified reprisals because of their union activities.
893EDDYLEON CHOCOLATE CO.
32 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
33 In adopting the judge’s finding that employees who had been unlawfully
laid off March 21 and 27, 1986, are eligible voters, we agree with the judge
that they enjoyed a reasonable expectancy of recall. We also rely on their sta-
tus as unlawfully laid off employees.
34 Contrary to the judge, we overrule the challenge to the ballot of David
Williams in light of our finding that Williams was unlawfully discharged be-
fore the election.
(i) Interrogating employees as to the nature of their
testimony at Board hearings.
(j) Instructing employees to withhold evidence while
testifying at Board hearings.
(k) Soliciting employees to sign contracts stating
that they will not join a union or be affiliated with
unions in any way.
(l) Discharging employees in reprisal for their union
activities.
(m) Laying off employees in reprisal for their union
activities.
(n) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Edward Zaleski, Peter Zelinski, Michael
Studders, Stanley Drag, Victoria Tonte, Nancy
Scarantino, James Walker, Wendy Vogel, Lydia
Dellasandro, Bonnie Spittel, Janice Spittel, Lucy
Gontkowski, Robert Skasko, James Masters, Dorothy
Resavy, Kevin Goula, and Josephine Rizzo, immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
and David Williams whole for any loss of earnings or
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy.
(b) Remove from its files any reference to the un-
lawful discharges and layoffs and notify the employees
in writing that this has been done and that the dis-
charges or layoffs will not be used against them in any
way.
(c) On request, bargain with United Food & Com-
mercial Workers, Local 72, as the exclusive representa-
tive of the employees in the following appropriate unit
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All regular full-time and regular part-time produc-
tion and maintenance employees employed at the
Moosic, Pennsylvania facility but excluding all
other employees including but not limited to,
managerial employees, foremen, clerical employ-
ees, seasonal employees, casual employees, guards
and supervisors as defined by the Act.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its Moosic, Pennsylvania facility copies
of the attached notice marked ‘‘Appendix.’’32 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
IT IS FURTHER ORDERED that the challenges to the
ballots of Jeanie Cicon, John Zelinski, and Catherine
Bonitz be sustained, and that the challenges to the bal-
lots of the following employees be overruled: David
Williams, Peter Zelinski, Mary Catherine Shively,
James Walker, Lois Thompson, Wendy Vogel, Victoria
Tonte, Kevin Goula, Judith Wilbur, Dorothy Resavy,
James Masters, Michael Studders, Nancy Scarantino,
Robert Skasko, Sharon Thorne, and Armond Poli.33
IT IS FURTHER ORDERED that Case 4–RC–16121 is
severed from Cases 4–CA–15535, 4–CA–15636, 4–
CA–25659, and 4–CA–15716, and that it is remanded
to the Regional Director for Region 4 for action con-
sistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 4 shall, within 10 days from the date of this deci-
sion, open and count the ballots of David Williams,34
Peter Zelinski, Mary Catherine Shively, James Walker,
Lois Thompson, Wendy Vogel, Victoria Tonte, Kevin
Goula, Judith Wilbur, Dorothy Resavy, James Masters,
Michael Studders, Nancy Scarantino, Robert Skasko,
Sharon Thorne, and Armond Poli, and that he prepare
and serve on the parties a revised tally.
If, after the preparation and service of the revised
tally, the challenged ballots of the following employees
prove determinative, the Regional Director shall des-
ignate a hearing officer to adduce additional evidence
as to whether they are statutory supervisors within the
meaning of Section 2(11) of the Act: Rosemary Carey,
Hector Colon, Florencio Gomez, and Lucien Delva.
The hearing officer shall also adduce additional evi-
dence as to whether employee Paul Bellock was either
hired and working on the eligibility date or on layoff
status, and, if laid off, whether he enjoyed a reasonable
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expectancy of recall. In the event of a hearing, the Re-
gional Director shall prepare and serve on the parties
a second revised tally.
If the final revised tally in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifi-
cation of representative. If, however, the revised tally
shows that the Petitioner has not received a majority
of the valid ballots cast, the Regional Director shall set
aside the election, dismiss the petition, and vacate the
proceedings in Case 4–RC–16121.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT create the impression that your union
activities are under surveillance.
WE WILL NOT promise you wage increases, bonuses,
insurance and other benefits in order to discourage you
from supporting the Union.
WE WILL NOT grant wage increases and bonuses in
order to discourage you from supporting the United
Food and Commercial Workers, AFL–CIO, Local 72.
We are, however, not authorized or required to with-
draw, vary, or abandon any wage increases or benefits
that you have been granted.
WE WILL NOT question you about your union activi-
ties or about the union activities of your fellow em-
ployees.
WE WILL NOT threaten you with discipline or dis-
charge for refusing to distribute our antiunion lit-
erature.
WE WILL NOT solicit grievances and complaints
from you in order to imply promises or improved
terms and conditions of employment in order to dis-
courage your union activity.
WE WILL NOT ask you to form your own labor orga-
nization instead of joining a union of your choice.
WE WILL NOT threaten you with a reduction in bene-
fits, layoffs, other reprisals, or plant closure in order
to discourage you from engaging in union activity.
WE WILL NOT question you as to the nature of your
testimony at National Labor Relations Board hearings
or instruct you to withhold evidence while testifying
before the Board.
WE WILL NOT discharge you or lay you off because
you engage in union activity.
WE WILL NOT ask you to sign agreements stating
that you will not join unions or be affiliated with
unions in any way.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of rights guaran-
teed by Section 7 of the Act.
WE WILL offer Edward Zaleski, Peter Zelinski, Mi-
chael Studders, Stanley Drag, Victoria Tonte, Nancy
Scarantino, James Walker, Wendy Vogel, Lydia
Dellasandro, Bonnie Spittel, Janice Spittel, Lucy
Gontkowksi, Robert Skasko, James Masters, Dorothy
Resavy, Kevin Goula, and Josephine Rizzo immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions without prejudice to their seniority or
other rights or privileges; and WE WILL make them and
David Williams whole for any losses they have in-
curred as a result of the discrimination against them,
plus interest.
WE WILL remove from our files any reference to the
unlawful discharges and layoffs and WE WILL notify
the individuals unlawfully discharged or laid off that
this has been done and that the discharges or layoffs
will not be used against them in any way.
WE WILL, on request, bargain with the United Food
and Commercial Workers, AFL–CIO, Local 72, as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All regular full-time and regular part-time produc-
tion and maintenance employees employed at the
Moosic, Pennsylvania facility but excluding all
other employees including but not limited to,
managerial employees, foremen, clerical employ-
ees, seasonal employees, casual employees, guards
and supervisors as defined by the Act.
EDDYLEON CHOCOLATE COMPANY, INC.
Robert G. Levy, Esq. and Timothy Brown, Esq., for the Gen-
eral Counsel.
Howard K. Truman, Esq., of Philadelphia, Pennsylvania, for
the Respondent.
Peter V. Marks, Esq. (Kirschner, Walter & Willig), of Phila-
delphia, Pennsylvania, for the Charging Party.
895EDDYLEON CHOCOLATE CO.
1 1 The Intervenor, Candy and Confectionery Workers Union, Local 452 of
Greater New York and Vicinity, AFL–CIO received 0 votes.
2 Complaints had earlier issued in Case 4–CA–15535 on February 28, 1986;
Case 4–CA–15636 on April 8, 1986; Cases 4–CA–15535, 4–CA–15636, and
4–CA–15659 (consolidated) on April 22, 1986; Case 4–CA–15535, 4–CA–
15636, 4–CA–15659, and 4–CA–15716 (consolidated) on May 30, 1986.
3 As amended at the hearing.
4 Hereinafter all dates are in 1985 unless noted otherwise.
5 Par. 5(a) of the complaint.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. A hearing
was held in this consolidated proceeding at Wilkes-Barre,
Scranton, and Oliphant, Pennsylvania, on September 15–18,
29, 30, and October 27, 1987.
On December 27, 1985, the Petitioner-Charging Party (the
Union) filed a petition in Case 4–RC–16121 and pursuant to
a Certification Upon Consent Election issued by the Regional
Director for Region 4 on February 19, 1986, an election by
secret ballot was conducted on April 3, 1986, among the em-
ployees in an appropriate unit employed by Eddyleon Choco-
late Company, Inc. (the Company or the Respondent). The
tally of ballots showed 12 votes cast for the Union and 14
votes cast against the Union with 31 ballots challenged, suf-
ficient in number to affect the results of the election.1 The
Union filed timely objections. On February 10, 1987, the Re-
gional Director issued a report and recommendation on ob-
jections to election and challenged ballots which was adopted
by the Board in its Decision and Order dated April 24, 1987.
In his report, the Regional Director recommended that the
objections and certain challenges be resolved on the basis of
record testimony taken at a hearing.
Meanwhile the Union filed the following charges against
the Respondent on the dates indicated: Case 4–CA–15535,
January 13, 1986, amended April 16 and September 3, 1986;
Case 4–CA–15636, February 26, 1986; Case 4–CA–15659,
March 7, 1986; amended April 18, 1986; Case 4–CA–15716,
April 4, 1986. The Region issued an order further consoli-
dating cases, amended second consolidated complaint and
notice of hearing on May 7, 1987,2 which consolidated the
representation case with the unfair labor practice cases for
hearing. Respondent filed timely answers to all complaints,
amended complaints, and consolidated complaints denying
the commission of any unfair labor practices.
The complaint contains allegations of numerous violations
of Section 8(a)(1) based on incidents occurring between No-
vember 1985 and September 19873 and allegations of
discriminatorily motivated granting of wage increases and
bonuses and layoffs and discharges in violation of Section
8(a)(1), (3), and (4) during the period November 1985–
March 1986. The General Counsel seeks a bargaining order.
The objections in the representation case and the allegations
contained in the complaint are based on the same conduct to
the extent the incidents giving rise to the alleged violations
occurred during the critical period. There are also objections
based on Respondent’s election-day conduct.
All parties were represented at the hearing and were af-
forded full opportunity to be heard and present evidence and
argument. All parties filed briefs. On the entire record, my
observation of the demeanor of the witnesses and after giving
due consideration to the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material, a New
York corporation with its principal place of business located
in Moosic, Pennsylvania, where it is engaged in the manu-
facture of candy. Respondent admits that during the calendar
year immediately preceding issuance of the complaint, in the
course and conduct of its business aeration, it purchased and
received goods and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Pennsyl-
vania. I find that Respondent is an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent established its plant in Moosic in 1984 and
began production in August 1985.4 On the afternoon of No-
vember 15, an agent of the Union, Daniel Scalzo, appeared
in Respondent’s parking lot and distributed union literature
and authorization cards to Respondent’s employees. At one
point, Respondent’s vide president and plant manager, Stan-
ley Glasbrenner, approached the Union’s agent, introduced
himself, and asked the agent who he was. The agent, in turn,
introduced himself and gave Glasbrenner copies of the mate-
rial which he was distributing. Glasbrenner then told the
agent that next time he was handbilling, he should do it at
the gate.
On November 15, Respondent announced a layoff due to
a ‘‘slow down in current product demand.’’ The announce-
ment identified nine employees specifically as being laid off
and stated that the layoff was a temporary one, to last 2 to
3 weeks. The announcement assured those named that they
would be recalled ‘‘as soon as the product demand estab-
lishes itself.’’ This layoff is not alleged as discriminatorily
motivated.
On November 20 Scalzo visited the home of employee Ed-
ward Zaleski where he obtained from him a signed authoriza-
tion card. Scalzo had been distributing cards at the company
gate earlier that day. Among the other employees who had
obtained authorization cards from Scalzo that day were
Becky Butler and Linda Seeley. The following day Butler
and Seeley signed their cards and gave them to Zaleski.
The Events of November 225
About lunchtime, on November 22, Scalzo and another
union representative were parked on the street adjacent to the
plant talking to Zaleski. At that point, Gilbert Shwom, presi-
dent of the Company, drove up and asked Scalzo to identify
himself. Scalzo told Shwom that he was a representative of
the Union and was just talking to employees. Later that day,
as Butler and Seeley were working at their machines, Shwom
approached them and said that he had heard that they and
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Wilco Business Forms, 280 NLRB 1336 (1986); Sierra Hospital Founda-
tion, 274 NLRB 427 (1985).
7 EDP Medical Computer Systems, 284 NLRB 1232 (1987).
8 Florida Steel Corp., 224 NLRB 587 (1976).
9 Pars. 11 and 12 of the complaint.
10 Par. 7 of the complaint.
11 Bonnie Supinski, supervisor of the woman up front; Wayne Stueck, super-
visor of maintenance; Fred Roy, supervisor of the chocolate department; and
George Marsden, supervisor of the shipping department.
12 Respondent failed to show that Zaleski, rather than some other employee,
would have ben laid off, even in the absence of his union activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
13 Par. 7 of the complaint.
14 Par. 5(c) of the complaint.
15 Par. 5(b) of the complaint.
16 David C. Williams supplied an affidavit to the Board during the investiga-
tion of this case. He died prior to the hearing. His affidavit was received into
evidence.
17 By December 10, the Union had obtained 20 signed authorization cards.
Zaleski were for the Union and that he wanted to know
where they stood. He added that he knew that there had been
union meetings at Zaleski’s home and who had attended
them. Butler and Seeley confessed that they had signed union
cards because they were afraid of losing their jobs since they
had heard rumors of layoffs. They denied, however, attend-
ing or knowing much about any meetings. Shwom then said
that they did not have to worry about losing their jobs be-
cause he was putting them in for a raise December 1.
I find, in accordance with the allegations contained in
paragraph 5(a) of the complaint, that Respondent, through
Gilbert Shwom, on November 22, created the impression of
surveillance,6 promised employees a wage increase in order
to discourage them from supporting the Union7 and interro-
gated employees about their union sympathies,8 all in viola-
tion of Section 8(a)(1) of the Act.
On November 22 also, the Company posted a notice stat-
ing that because of reduced sales demand the current layoff
(November 15) would have to be expanded but that the lay-
off would be temporary and there would be a recall.
The Events of November 23
On November 23, Respondent posted two notices—one
was the list of laid-off employees forecasted earlier,9 the
other was a notice entitled, ‘‘Eddyleon Performance Record
to Date.’’10
The layoff notice listed 18 employees to be laid off imme-
diately and was signed by Glasbrenner. A note at the bottom
of the notice stated that the first recall to be made would be
from this list. Zaleski’s name was an the list. According to
Shwom employees on the list were selected for layoff by
their area supervisors.11 He testified that the criteria used by
the supervisors in determining who should be laid off in-
cluded willingness to perform multiple jobs, absenteeism, tar-
diness, and ability to learn quickly. Shwom said that as of
November 23, he did not know whether or not any employ-
ees on the list had engaged in union activity.
Of the 18 employees laid off on November 23, Ed Zaleski
was the only one who had signed a union card prior thereto.
Although employee John Zelinski, who was also laid off on
November 23, testified that he had talked with Scalzo during
a 10-minute break prior to November 23, there is no evi-
dence that management was aware of this fact. Further, al-
though John Zelinski testified that he handed out literature
on breaks and during lunch hours, and talked to employees
about forthcoming union meetings, there is no evidence that
any of this activity occurred prior to his layoff in November.
Since Zelinski was recalled on January 13, 1986, it is likely
that he engaged in these activities after his recall.
On the afternoon of November 23, Butler and Seeley gave
Fred Roy, head of the chocolate operation and an admitted
supervisor, a ride home. During the journey, Butler and
Seeley advised Roy that they were upset that Ed Zaleski had
been laid off. Ray replied that Zaleski had gotten ‘‘involved
in something that he shouldn’t have gotten involved with.’’
I concluded that Zaleski was laid off because he was the
principal, perhaps the sole, union activist known to the Re-
spondent at the time of the November 23 layoff. I reach this
conclusion based on the conversations that Shwom and Roy
had with Butler and Seeley, which conversations reflect both
knowledge and disapproval of Zaleski’s protected activity.12
The Employee Committee13
The General Counsel alleges that the notice entitled,
‘‘Eddyleon Performance Record to Date’’ solicited employ-
ees to form a labor organization or committee’’ in violation
of Section 8(a)(1). Contrary to the allegation, however, the
notice does not solicit the employees to form a committee
but merely mentions one apparently already in existence.
Record evidence indicates that an employee committee
was in existence and active in July 1985. The notice was
clearly referring to that committee and was not soliciting the
formation of a new committee in response to the advent of
union activity as alleged in the complaint. I recommend dis-
missal of this allegation.
Solicitation of Applicant to Sign Document Stating she
Would not Join a Union14
Jeanine Cicon had worked for Respondent briefly on two
occasions prior to the incident here under discussion. In early
December she visited the plant in order to get her check for
work performed during the second period of her employ-
ment. While there, she was interviewed by Glasbrenner and
Shwom for a job in Respondent’s store. During the interview
the following discussion took place:
Shwom: We would like for you to sign a paper stat-
ing that you will not join a union or be affiliated with
unions in any way.
Cicon: Well, the unions have already come to me
and I turned them down, so I’m not interested.
Shwom [to Glasbrenner]: We’ll have to see if this is
legal, then we’ll draw one up and have her sign it.
Shwom [to Cicon]: You’re hired.
Cicon began work the following day. She was never required
to sign any such paper as the one under discussion and the
subject was never again broached.
I find that the unlawful yellow dog contract was barely
mentioned and that Cicon was never required to sign such
a document and was hired on the spot without having to do
so. I therefore recommend dismissal of this allegation.
The December 10 Threat of Layoff and Interrogation15
Employee David Williams stated in his affidavit16 that on
the afternoon of December 1017 he was invited by Shwom
897EDDYLEON CHOCOLATE CO.
18 Wayne Stueck, Williams’ supervisor.
19 Pars. 11(a) and (b) and 12 of the complaint.
20 Nine laid off on November 15 plus 18 who were laid off on November
23.
21 At the time, no petition had been filed.
22 Pars. 8 and 9 of the complaint.
into Glasbrenner’s office where Shwom told him that it was
rumored that Williams was a union organizer. Williams de-
nied any complicity. Shwom then said, ‘‘Dave, you should
have technically been on layoff, but Wayne18 speaks highly
of you and said that he needs you.’’ Williams said okay and
left. Before Williams left, however, Shwom told him that
there were also rumors that Jim Masters, John Davis, and
Bill Gnall were also involved with the Union.
I find that Shwom’s statement was not a threat but was
interrogation. Gates Air Conditioning, 199 NLRB 1101
(1972).
The December 12 Notice of Discharge19
On December 12, Respondent issued a notice to the effect
that the employees who had been laid off November 15 and
23 were terminated because there was no probability that
there was going to be a recall in the foreseeable future. The
notice stated that the status of the employees was converted
from ‘‘layoff’’ to ‘‘permanent discharge’’ in order to permit
those employees previously in layoff status to feel free to
seek other employment. The notice did, however, state that
Respondent would maintain a file of previously employed
employees and would contact them should future employ-
ment become available.
The complaint alleges that the December 12 conversion of
the November 23 layoffs to permanent discharges was
discriminatorily motivated. The Respondent avers that the
conversion was motivated by humanitarian considerations
forced on it by economic circumstances. More specifically
Respondent asserts that by December it was clear that recall
was unlikely because sales had diminished in November and
it seemed unfair to keep the laid-off employees waiting and
hoping for recall under the circumstances. Respondent’s posi-
tion is supported by documentation reflecting a drop in sales
in November.
With respect to the General Counsel’s allegation of dis-
criminatory motivation, the record indicates that as of the
original November 23 layoff, eight employees had signed au-
thorization cards, six of them solicited by Ed Zaleski, the
other two by Scalso. Though Shwom was aware that Zaleski
had solicited Butler and Seeley to sign cards, he chose to lay
off only Zaleski and to continue to employ the card signers.
Either management did not know of the other five card sign-
ers or chose to keep them on the payroll despite their having
signed cards.
The record indicates that during the week ending Decem-
ber 13, Respondent had just under 80 rank-and-file employ-
ees on its payroll, including the 18 laid off on November 23.
After November 23, up to December 12, inclusive, 16 more
individuals signed authorization cards. Of these 16 additional
card signers, 6 of them were signed up by Scalzo, at their
homes, several days after they had been laid off on Novem-
ber 23. Ten of them were still employed at the plant on De-
cember 12 when Respondent notified the laid-off employees
that their layoffs had been converted to discharges. Thus, a
majority of individuals who signed cards between November
23 and December 12 were retained. Further, of the 27 laid-
off employees20 whose status was changed to ‘‘discharged
on December 12, only 10 were card signers. Finally, of the
total of 24 individuals who signed cards from the beginning
of the union drive through December 12, there is evidence
that Respondent was aware or suspicious of only 7 of them,
i.e., Zaleski, Seeley, Becker, Williams, Masters, Davis, and
Gnall. Of these seven, only Zaleski was laid off. The other
six were kept working. From these figures, I conclude that
Respondent’s management, as of December 12,21 was un-
aware of the names of most of the union activists and except
for Zaleski chose to take no action against individuals it
knew or suspected of being engaged in union activities. In
short, I recommend dismissal of paragraphs 11(a) and (b),
and 12 of the complaint except as to Zaleski, where I find
that the conversion of his November 23 layoff on December
12 to permanent discharge was violative of Section 8(a)(1)
and (3).
The December 12 letter to employees was not a notice of
permanent discharge despite the unartful inclusion of this ter-
minology in the letter. It was, rather, an advisory to those
employees who were previously laid off for the short term
that the layoff would be longer or perhaps indefinite and that
the employees should feel free to take other employment.
However, the record is clear that management was fully
aware that its business was seasonal and that when orders
were received for the Passover and Easter seasons these ex-
perienced employees would be contacted. The employees
were so advised. In fact, within 8 to 10 weeks a large num-
ber of the laid-off employees were physically back on the
job.
Wage Increases and Bonuses22
On August 30 and November 23, Respondent issued
memoranda to employees enumerating the various benefits
being received by employees at the time and in the past. Nei-
ther document mentioned across-the-board semiannual wage
increases or Christmas bonuses as existing benefits.
On December 17 Respondent issued a memorandum enti-
tled ‘‘There’s Good News.’’ In this memorandum Respond-
ent announced to its employees that they would receive a
new wage increase in the forthcoming week’s paycheck; that
there would be a wage review every 6 months with a guaran-
teed minimum increase of 15 cents per hour for all employ-
ees; that they would receive an additional paid holiday; that
Respondent was ‘‘finalizing’’ a new major medical program;
that starting in September 1986 Respondent would initiate a
new employee profit-sharing plan and; that the employees
would all receive Christmas bonuses. As promised, the em-
ployees all received wage increases, effective December 13
and all likewise received Christmas bonuses.
The complaint alleges that the promises contained in the
December 17 memorandum were designed to discourage Re-
spondent’s employees from supporting the Union in violation
of Section 8(a)(1) and that the granting of the wage increases
and bonuses had the same purpose and was in violation of
Section 8(a)(1) and (3). Respondent takes the position that
pay raises and bonuses had historically been granted imme-
diately before Christmas and that since it was merely fol-
lowing this tradition, there was no violation. Similarly, Re-
spondent argues that the issuance of the December 17 memo-
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Oakes Machine Corp., 288 NLRB 456 (1988).
24 Machine Tool & Gear, 237 NLRB 1109 (1978), affd. 652 F.2d 596 (6th
Cir. 1980).
25 Leisure Time Tours, 258 NLRB 986 (1981); affd. mem. 688 F.2d 823 (3d
Cir. 1982).
26 Reno Hilton, 282 NLRB 819 (1987).
27 Par. 6(a) of the complaint.
28 Williams’ affidavit.
29 Gates Air Conditioning, supra.
30 Allegation 5(d) of the complaint.
31 At same point Shwom asked Scalzo to get off the bridge and Scalzo re-
fused.
32 EDP Medical Computer Systems, supra, citing Milco, 159 NLRB 812
(1966), affd. 388 F.2d 133 (2d Cir. 1968); Emenee Accessories, 267 NLRB
1344 (1983).
33 EDP, supra, citing Emenee, supra; R. H. Macy & Co., 267 NLRB 177
(1983); and Palby Lingerie, 252 NLRB 176 (1980).
34 Allegation 6(b) the complaint.
35 This incident, par. 6(d) of the complaint, is alleged to have occurred on
January 15, 1986. But Zelinski testified as the incident is described in the text,
that it occurred around Christmastime.
randum did not violate the Act since the announcement of
the forthcoming wage increases and bonuses were consistent
with tradition and the promise of the additional holiday (Fri-
day after Thanksgiving) was ‘‘foreshadowed’’ by an earlier
(August 30) memorandum. Likewise, Respondent argues that
it had previously promised ‘‘to smooth out employee prob-
lems with major medical’’ and had announced a con-
templated pension or profit-sharing plan prior to December
17, in its November 23 memorandum.
With regard to the various promises here described and the
granting of wage increases and bonuses during the union or-
ganizing campaign, I find the acts to have been designed to
undermine the Union’s campaign. The timing of the prom-
ises, outlined in the Company’s August 23 and 30 memo-
randa occurred 3 days and 10 days respectively, after the
Union’s overt organizing began, was clearly designed to in-
duce the employees to refrain from supporting or joining the
Union, and was therefore violative of Section 8(a)(1) of the
Act.23 The granting of the bonuses24 and the wage in-
creases25 for the same purposes was also violative of Section
8(a)(1). Respondent’s defense that bonuses and wage in-
creases at this time of the year were traditional is rejected
in the absence of documentation. Surely, if there were, in
fact, a tradition of granting Christmas bonuses and wage in-
creases at this time of the year, Respondent would have had
documentation to support its position. Inasmuch as Respond-
ent did not offer supporting documentation, it is clear that
none exists.26
December 17 Interrogation27
On December 17 Glasbrenner motioned to David Williams
to come over to where he was standing at the rear of line
92.28 when Williams walked over to Glasbrenner, the latter
said, ‘‘Dave, this is the second time I heard that you’re in-
volved with the Union.’’ Williams denied involvement and
demanded the names of his accusers. Glasbrenner refused to
give Williams any names. The discussion ended when Wil-
liams walked away.
Although Glasbrenner’s statement was declarative in form
rather than interrogative, it was clearly intended to elicit an
explanation as to the truth or falsity of the rumor concerning
Williams’ involvement with the Union. I find, under the cir-
cumstances, in light of other violations, that Glasbrenner’s
statement constituted interrogation and, as such, was a viola-
tion of Section 8(a)(1) of the Act.29
December 19 Surveillance30
Respondent’s property is connected to the public highway
by a bridge which Shwom understood to be company-owned.
On the afternoon of December 19, at shift change, Scalzo
showed up on the bridge distributing handbills to Respond-
ent’s employees. Shwom drove up and parked the car on the
street near the bridge and sat there for about 10 minutes.31
He then drove the car across the bridge and parked again,
directly across from the entrance to the Company’s parking
lot about 15 feet from Scalzo. Shwom remained in his car
talking on his car phone, watching Scalzo and employees as
they came out of the plant. Scalzo then got into his car to
leave and Shwom drove into the company parking lot.
The General Counsel alleges that Shwom, by the above-
described behavior, engaged in surveillance in violation of
Section 8(a)(1). Respondent denies any violation.
I find no violation here and recommend dismissal of the
allegation. The Board has long held that union representa-
tives and employees who choose to openly engage in union
activities at the employer’s premises have no cause to com-
plain that management observes them.32 The observation by
Shwom of the distribution of union literature by Scalzo in
front of Respondent’s premises does not constitute unlawful
surveillance.33
Let’s Clear the Air34
On December 20 Respondent issued a memorandum enti-
tled ‘‘Lets Clear the Air.’’ The General Counsel alleges that
this memo ‘‘solicited employees to form ‘a committee that
will discuss everything, from pay rates to vacation, from hos-
pitalization to hours of work.’’’
The record indicates, as previously noted, however, that
the committee under discussion had already been in existence
long before the appearance on the scene of the Union. I find
that Respondent, in this memo, was merely drawing attention
to the committee and reminding the employees that they
were permitted the privilege of its use for the purposes dis-
cussed. I recommend dismissal of the allegation.
The Events of Late December35
On December 23 the Union demanded recognition and on
December 27 it filed the petition in Case 4–RC–16121, sup-
ported by at least 30 signed authorization cards. Following
the filing of the petition, additional signatures on authoriza-
tion cards were obtained.
Peter Zelinski, an early card signer and union activist, in
late December, was engaged in soliciting membership for the
Union and distributing union literature. One day around
Christmastime, Glasbrenner asked Zelinski if he had been
passing out union literature. Zelinski admitted that he had
been so engaged, but only on his own time, during lunch pe-
riods or on breaks. Glasbrenner asked Zelinski to stop.
Zelinski replied that during his own time he would pass out
union literature or anything else that he wanted. Glasbrenner
then told Zelinski that if he did not stop distributing union
literature he would take drastic measures.
I find that, by Glasbrenner interrogating Peter Zelinski
concerning his distribution of authorization cards or other lit-
899EDDYLEON CHOCOLATE CO.
36 E.R. Carpenter Co., 284 NLRB 273 (1987).
37 Par. 6(c) of complaint. Hereinafter, all dates are in 1986 unless noted oth-
erwise.
38 Where members of management merely continue, throughout an orga-
nizing campaign, a longstanding practice of asking employees informally what
could be done to improve plant operations, there is no violation in the absence
of any explicit promise to correct inadequacies. Gossen Co., 254 NLRB 339
(1981), modified 719 F.2d 1354 (7th Cir. 1983). In the instant case, however,
although Glasbrenner made no explicit promises during this conversation, Re-
spondent, during the organizational campaign, did grant wage increases and
bonuses and also promised other benefits. I therefore find the Gossen case in-
apposite.
39 Color Tech Corp., 286 NLRB 476 (1987).
40 Par. 5(e) of the complaint.
41 Wilco Business Forms, supra.
42 Ona Corp., 261 NLRB 1378 (1982), modified 729 F.2d 713 (11th Cir.
1984).
43 EDP Medical Computer Systems, supra.
44 Color Tech Corp., supra.
45 Bay State Ambulance Rental, 280 NLRB 1079 (1986).
46 Churchill’s Supermarkets, 285 NLRB 138 (1987).
47 Par. 13 of the complaint.
erature on his own time and threatening to take drastic meas-
ures against him if he continued, Respondent violated Sec-
tion 8(a)(1) of the Act.36
The Events of Mid-January 198637
Employee James Walker was at the plant one day in mid-
January engaged in performing his assigned duties when he
was called to one side by Glasbrenner to talk in private. On
this occasion, Glasbrenner asked Walker what he and the
other employees wanted, regardless of whether or not there
was a union. Walker replied that they wanted job security,
better wages, a better health plan, and more sick leave. The
record indicates that Glasbrenner had made similar inquiries
in the past, long before the advent of the Union.38
The General Counsel alleges that the above-described con-
versation was a solicitation of grievances and complaints by
Respondent from its employee and therefore an implied
promise of improved terms and conditions of employment. In
view of the surrounding circumstances—the granting of wage
increases and bonuses and the promises of benefits during
the union organizing campaign—I find Glasbrenner’s solici-
tation of grievances violative of the Act.39
The January 20 Meeting40
Despite Glasbrenner’s earlier warning, Peter Zelinski con-
tinued to distribute union literature well into January. Shwom
learned of Zelinski’s activity and called a meeting of certain
employees and management personnel in his office, including
Zelinski. Shwom opened the meeting by asking the employ-
ees present what their gripes were. Some replied that job se-
curity and wages were problems. Shwom replied that he was
trying to do his best, to give the employees greater benefits
and better working conditions.
Shwom then said that he knew that Pete Zelinski was
handing out union papers and authorization cards and asked
Zelinski if he was involved in such activity. Zelinski ac-
knowledged that he had, indeed, been involved in the dis-
tribution of union literature but only on his own time.
Shwom asked Zelinski if he would stop such activity but
Zelinski replied that he would do what he wanted to do on
his own time. Shwom then asked Zelinski if he would pass
out the Company’s literature but Zelinski refused. Shwom
told Zelinski that he would issue him a verbal warning, then
a written warning, then terminate him if he refused to dis-
tribute the Company’s literature. Zelinski then agreed to do
so if it was on company time.
Shwom, during this meeting, also advised those present
that he did not want the Union representing the employees,
that he wanted his ‘‘own house union.’’ He mentioned that
there had been layoffs in the past, that business was slow,
and that there would be layoffs in the future. He said, how-
ever, that Zaleski had been laid off because ‘‘he had involve-
ments with other people whom he did not really want to as-
sociate with.’’
As to the future, Shwom stated that he would try to start
a profit-sharing plan and a pension plan in September and a
new insurance plan with increased benefits. On the other
hand, he also said that he did not want a union at Eddyleon
and ‘‘would do anything in his power to not have one
there.’’ He said that he could close down his business and
start elsewhere, that he had done it before. He added that if
a union ever got in, production would be cut, which meant
there would be layoffs and no overtime.
The General Counsel alleges, and I agree, that Respondent,
by these acts, violated Section 8(a)(1) when Shwom stated
that he knew that Pete Zelinski had been distributing union
literature and asked him if it were true;41 when he threatened
Zelinski with a verbal warning, written warning and termi-
nation if he refused to distribute Respondent’s literature;42
when he promised better benefits and insurance in order to
discourage the employees from supporting the Union;43 when
he asked employees what their gripes were and, after being
told, replied that he was doing his best to give them greater
benefits and better working conditions;44 when he solicited
employees to form a ‘‘house union’’;45 and when he threat-
ened that he would do anything to keep the Union out and
threatened to close down his business and start elsewhere.46
The Termination of David Williams47
David Williams was an employee who had signed a card
in early December and attended two union meetings. He had,
as noted earlier, been accused by management on two occa-
sions of being involved with the Union. He was a mainte-
nance man specializing in refrigeration.
On Monday morning, February 3, Williams and worker
Jim Masters reported to work on time. They began working
on an air-conditioning repair job. While they were so en-
gaged, Shwom approached and told them that after they were
done, they were needed in the factory on the production line.
They replied, ‘‘no problem.’’ Five minutes later, however,
Williams complained to his supervisor, Wayne Stueck, that
he was not feeling well. Stueck gave him permission to go
home.
Stueck advised Shwom that Williams had gone home sick.
Shwom then told Stueck that since it was a two-man job to
repair the air-conditioning and Williams had gone home sick,
Jim Masters should be sent to work on the production line.
Ten minutes later, Masters also went home sick.
Williams and Masters had punched out before 9 a.m. to
go home. Both live within a few blocks of the factory. At
11 a.m., management called both their homes and neither
was home. Later that day, Shwom, apparently suspicious,
sent letters to Williams and Masters recounting the events of
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 According to Williams.
49 According to employee John Davis.
50 According to Stueck.
51 The incident is related as it appears in Williams’ affidavit. John Davis
testified similarly in support of Williams’ sworn testimony.
52 Par. 10 of the complaint.
53 Gem Urethane Corp., 284 NLRB 1349 (1987).
54 Great Lakes Oriental Products, 283 NLRB 99 (1987); Monarch Federal
Savings & Loan Assn., 237 NLRB 844 (1979); enfd. 620 F.2d 289 (3d Cir.
1980).
that morning and stating, ‘‘We will require a doctor’s excuse
or we will accept a resignation from the company, by both
men.’’
According to Williams’ affidavit, he was out sick with the
flu Tuesday and Wednesday. On Wednesday, February 5, he
received Shwom’s letter. On Thursday, he returned to work
with a doctor’s excuse which stated that Williams was under
the doctor’s care from February 3 through 5 and unable to
work. The excuse also stated, ‘‘light duty suggested for bal-
ance of the week.’’ Williams worked all day Thursday.
On Friday morning, February 7, Stueck ordered Williams
and the rest of the maintenance employees to stop what they
were doing to go out and work on the production lines. Wil-
liams was assigned the job of demolding, i.e., dumping choc-
olate bars out of their molds. Since, according to his affi-
davit, he was still feeling sick from the flu, he told Mike
Hyduchok, the man for whom he was working, that he was
not up to performing the task. Hyduchok told Williams to go
see if Stueck would assign him another job. Williams then
went to Stueck and told him that he ‘‘couldn’t do the
work,’’48 ‘‘couldn’t do that job’’49 or ‘‘wasn’t going to do
that job.’’50 Williams did not say that he was ill or explain
why he could not do the job. Stueck became angry and said,
‘‘I’m sick and tired of all you guys’ shit, punch out.’’51 Wil-
liams walked away.
As Williams was walking back toward the maintenance
area before punching out, he met the vice president of the
Company, George Marsden, and told him that he was sick
and was going home. Marsden said that that was alright.
Williams then went to warm up his truck preparatory to leav-
ing. As he stood inside the plant waiting for his truck to
warm up, Stueck came by and asked him what he was doing
there. Williams explained that he was waiting for his truck
to warm up, that it was snowing, nasty, and he was going
home because he was sick. Stueck said, ‘‘No, you’re not
going home because you’re sick; you’re going home because
you didn’t do the job I told you to do.’’ Williams then left.
The General Counsel called several witnesses who de-
scribed Williams’ appearance that day as indicating serious
illness. Stueck, however, testified that Williams was not ill.
Whether or not Williams refused to perform his assigned
task because he was ill or because he simply did not want
to do it is uncertain. I am satisfied, however, that Stueck
honestly believed that Williams was insubordinate. The
events of the previous few days warranted such a conclusion.
Williams’ termination, I find, was based on this incident
alone and had nothing to do with his union activity. I rec-
ommend dismissal of this allegation.
The Events of February 1452
Respondent’s shipping and receiving department was
manned by four individuals—George Marden, salaried,
brought with a few experienced employees from Brooklyn,
New York, and admittedly a supervisor; Daniel Evancho,
hourly paid at $7.50 per hour, employed by Respondent since
1978 and also brought from Brooklyn, New York, to
Moosic; Joe Manley, hourly paid at $5.35 per hour; and John
Zelinski, hourly paid at $4.75 per hour.
Marsden, at relevant times, was in charge of inventory
control. He knew what was in stock and each morning would
determine which orders had to be shipped out and what had
to be produced for preparation for shipping at a later date.
He kept track of everything received and prepared bills of
lading for shipments. After making these determinations
Marsden would inform Evancho what orders were to be
filled and shipped. Evancho would then take the orders and
he, Manley and John Zelinski would prepare the various or-
ders for shipment. Evancho, being more experienced, in-
structed Manley and Zelinski on how to put the orders to-
gether and place them on skids. Though Evancho sometimes
worked side by side with Manley and Zelinski, he often
stayed in the office most of the day after giving the other
two their orders. What he did while in the office is not clear
from the record.
John Zelinski testified that, on occasion, Evancho would
have problems with the way Zelinski performed the tasks
which Evancho had brought him to do. When this occurred,
Evancho did not attempt to discipline Zelinski himself but
would call Marsden down and he would straighten out the
problem. Zelinski never received any written reprimands on
these occasions but he was told by Marsden that he should
do what Evancho tells him to do.
On February 14, after Zelinski had been recalled to work
as a janitor and was no longer working in the shipping and
receiving department, Evancho asked Zelinski to help him
unload a truck. Zelinski replied that he could not do so be-
cause he had to leave early to testify at the NLRB hearing.
Later, Evancho asked Zelinski why he was going to testify.
Zelinski replied that he had been subpoenaed to testify.
Evancho then said, ‘‘I hope you have a job when you come
back.’’ Zelinski assured Evancho, ‘‘I’ll have a job. I’m not
worried about that.’’ Evancho laughed and said, ‘‘You want
to bet?’’ Zelinski and several other employees went to the
hearing and returned to work without incident.
The General Counsel takes the position that Evancho is a
supervisor under the Act and that his statement to Zelinski
was a threat which was violative of Section 8(a)(1) of the
Act. I find, however, that Evancho’s duties did not include
any of the supervisory indicia and that the directions which
he gave to the other employees in the shipping department
involved nothing more than the routine assignment of works
to less-experienced employees by a more experienced em-
ployee. He is therefore not a supervisor within the meaning
of the Act.53 Moreover, the record clearly indicates that if,
indeed, Evancho were found to be a supervisor, then the
shipping department would be comprised of two supervisors
and two rank-and-file employees, an unlikely ratio. Since the
Board has held that it will look to the ratio between super-
visors and employees in determining the supervisory status
of an employee,54 I do so here. I find that the evidence does
not support the General Counsel on this point; that Evancho
is not a supervisor and that whatever he said on this occasion
cannot be attributed to the Respondent; and that there was
no violation of the Act with regard to this incident. I rec-
901EDDYLEON CHOCOLATE CO.
55 Allegation 12 of the complaint.
56 Marsden had learned that Onorati was illiterate and was having trouble
performing certain duties in shipping and receiving. He determined that John
Zelinski, with his experience, could do the shipping and receiving work and
Onorati would then be able to perform the janitorial duties.
57 Both jobs paid $4.75 per hour.
58 In further support of this conclusion the record indicates that Shwom
made affirmative efforts to get Marsden to reconsider his decision to terminate
John Zelinski.
59 Allegations 5(f), (j), and (k) of the complaint. Allegations 5(j) and (k) are
identical.
60 Florida Steel Corp., supra.
61 Welco Business Forms, supra; Sierra Hospital Foundation, supra.
62 Allegations 5(f), (g), and (i) of the complaint.
63 Other portions of this conversation will be considered infra.
ommend that the allegation oontained in paragraph 10 of the
complaint be dismissed.
Also on February 14, Marsden called John and Peter
Zelinski, John Davis, and William Gnall into his office about
10:15 a.m. Marsden asked them if they were going to the
hearing later that day. They replied that they were. He then
said that he would appreciate it if they would not all go at
once since they were key people and were needed in the
plant. He suggested that only one of them go down initially
and, if more testimony were needed, that the others be sent
down later. The employees insisted that they all go down to-
gether and Marsden acquiesced. As now, they all went to the
hearing but since a consent election agreement was reached,
no one testified, and they returned to work without incident.
The Discharge of John Zelinski55
In January the initial charge was filed in Case 4–CA–
15535 alleging among other things the discriminatory termi-
nation of employees. Toward the end of January, Respondent
began recalling certain employees including some card sign-
ers. John Zelinski, who had worked in the shipping and re-
ceiving department from August to November was recalled
on January 13 to work as a janitor to replace the regular jan-
itor who had resigned.
On February 25, at about 7:30 a.m., Marsden called John
Zelinski into his office and asked him if he would accept a
position back in shipping and receiving. Zelinski said that he
would and Marsden told him to get Rocco Onorati, an em-
ployee then working in shipping and receiving. Zelinski
found Onorati and brought him back to Marsden’s office
where Marsden asked Onorati if he would accept the jani-
tor’s job and Onorati agreed to do so.56
The exchange of jobs, having been agreed on, Marsden
asked Zelinski to show Onorati what his new janitorial duties
would be. Zelinski complied and showed Onorati what to do.
However, while doing so, Zelinski suddenly remembered that
as janitor he was receiving $15 to $20 in overtime which he
would not get back in shipping and receiving where overtime
was not available.57 He went back to Marsden’s office late
that afternoon and asked him if he was going to get a raise,
explaining that the loss of overtime would make the transfer
unacceptable unless he obtained a wage increase. Marsden
said he would look into it and get back to Zelinski.
The next morning, February 26, when Zelinski arrived at
work, he did not report to the shipping and receiving depart-
ment but began performing janitorial duties instead. When
Marsden arrived, he asked Zelinski why he had not reported
to shipping. Zelinski asked if he was getting a raise. Marsden
said that he had not had time to look into it yet and asked
Zelinski to report to shipping. Zelinski replied that he would
not go to shipping unless he knew right then and there that
he would receive a raise. An argument ensued with Marsden
insisting that Zelinski report to shipping while he looked into
the requested raise, and Zelinski refusing to report unless he
were immediately promised a wage increase. Expletives were
exchanged and Marsden fired Zelinski.
The complaint alleges that Respondent discharged Zelinski
because of his activities on behalf of the Union and because
he appeared for the purpose of giving testimony at a Board
hearing scheduled for February 14. I find, however, that
Zelinski was terminated because he refused on February 26
to report to the shipping department as he had agreed to do
the day before. I therefore recommend dismissal of this alle-
gation.58
The Mid-March Interrogation; Impression
of Surveillance59
One day in mid-March, Shwom called employee James
Masters into his office. Once alone, Shwom asked Masters
how he felt about the Union. Masters replied that he was not
sure. Shwom stated that he would not tolerate a union; that
it was his company; and he would operate the way he want-
ed to operate. He added that he knew that Masters was active
in the Union. Masters replied that if attending two union
meetings was being active, then he was active. Shwom asked
Masters what he thought the Union could do for him and
Masters answered that if nothing else, he would have senior-
ity rights, considering he was one of the first employees
hired. He suggested that Shwom put up a seniority list and
lay off according to seniority but Shwom said that as long
as Masters was doing his job satisfactorily, he had nothing
to worry about, and so long as anyone was a good worker,
he would not have to worry about his job. At some point
during this conversation, Shwom stated that he knew who
had attended union meetings and was not very happy with
them.
The General Counsel takes the position that Shwom’s
questioning of Masters on this occasion amounted to unlaw-
ful interrogation and his statement concerning his knowledge
of which employees attended union meetings created an im-
pression of surveillance in violation of Section 8(a)(1). I find
the General Counsel’s allegations of unlawful interrogation60
and the creation of the impression of surveillance61 on this
occasion meritorious.
The March 17 Interrogation and Promise of a
Wage Increase62
On the morning of March 17 employee Robert Skasko was
called into Shwom’s office. When he arrived, Shwom said
that he had heard that Skasko had attended a meeting the
night before at Terry’s Diner. Skasko had, in fact, attended
the union meeting as charged and freely admitted it to
Shwom. Shwom asked Skasko why he attended such meet-
ings,63 and pled, ‘‘I didn’t do nothing to you. I gave you a
job.’’ Skasko replied that he just wanted to hear Scalzo’s
side of the story but added that Shwom had promised him
more pay but had not kept his promise. Shwom said that as
soon as the Company began to make more money, Skasko
would get a raise.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 Dresser Industries, 231 NLRB 591 (1977), enfd. mem. 580 F.2d 1053
(9th Cir. 1978); Pony Express Courier Corp., 283 NLRB 868 (1987); EDP
Medical Computer Systems, supra.
65 L & J Equipment Co., 272 NLRB 652 (1984).
66 Allegations 5(h), (m), and (n) of the complaint.
67 Another union organizer.
68 Owner of a nearby nonunion chocolate company.
69 EDP Medical Computer Systems, supra.
70 Yellowstone Plumbing, 286 NLRB 993 (1987). It is a violation of the Act
for an employer to falsely blame a union’s organizing campaign for economic
problems redounding to the disadvantage of its employees. Sunbeam Corp.,
287 NLRB 996 (1987).
71 Par. 14 of the complaint.
72 Respondent contends that when economic layoffs became necessary, it
chose for layoff those employees who would not or could not do more than
one kind of job; who had a bad absentee or tardiness record; or who were
slow in learning.
73 See incidents involving Pete Zelinski, James Walker, and others, dis-
cussed supra.
The General Counsel alleges that this conversation was
both unlawful interrogation and a promise of a wage increase
made to an employee to induce him not to support the
Union. I find these allegations meritorious.64
According to Skasko, during this conversation Shwom
asked him how many employees had attended the union
meeting at Terry’s Diner and Skasko replied 20 or 22.
Shwom then asked for the names of those present and
Skasko named in addition to himself, Peter and John
Zelinski, Dorothy Resavy, Wendy Vogel, Vicky Tone, Nancy
Scarantino, and Kevin Goula. As Skasko mentioned each
employee’s name, Shwom checked it off a list. Skasko testi-
fied that within 9 or 10 days each employee he had named,
including himself, was laid off. Skasko is credited.
I find that Shwom questioned Skasko as to the number and
identity of employees that attended the union meeting. By
doing so, Respondent violated Section 8(a)(1) of the Act.65
The Events of March 1966
On March 19 Shwom saw Scalzo, Chorpenning,67 John
Zelinski, and David Williams on the bridge leading from the
highway to his parking lot, handing cut union leaflets to his
employees leaving the plant. Shwom was under the mistaken
impression that the bridge was part of his property so he told
Scalzo to get off. Scalzo refused, stating that he had a town
map which indicated that he had a right to be there. At the
time, several employees were present in their cars in the
process of leaving the plant parking lot. When Scalzo refused
to leave, Schwom threatened to call the police and did so.
As the employees passed by, Scalzo and Chorpenning tried
to give them handbills through their car windows. As they
did so, Shwom started screaming, ‘‘Give him one, give her
one, they’re union supporters’’ as he pointed to various em-
ployees—Nadine Kosierowski, Bonnie Spittel, Lucy
Gontkowski, Janice Spittel, Dan Evancho, Bob Skasko,
Dorothy Resavy, Marryanne Reggie, and others. At this point
Scalzo advised shwom that he was committing an unfair
labor practice. Shwom replied, ‘‘Go ahead, file charges. I
don’t give a damn about the goddamn Labor Board. I have
a good attorney and lots of money.’’ Shwom then said that
he knew how to get rid of the Union, that he had talked to
Elmer Hawk68 about it and Hawk had told him how it was
done.
Scalzo, at this point, asked Shwom why he had treated his
employees so rotten, laying them off without regard to se-
niority. Shwom responded that he did not have seniority; had
not recognized a union yet; and was going to lay off another
‘‘pile of their [the Union’s] friends’’ the next day. When
Scalzo admonished Shwom by stating that it was not right
for him to do that, Shwom said that he could do anything
he wanted to do; that he would not have a union that he did
not want; that he would close the plant down if he had to,
or sell it to keep the Union out. The police arrived and the
disputants voluntarily separated.
With respect to this incident the General Counsel alleges
8(a)(1) surveillance and threats of plant closure and layoffs.
I find that, with regard to the allegation of surveillance, for
reasons stated supra, management was free to observe those
union activities which its employees and the Union chose to
make public.69 I recommend dismissal of paragraph 5(h) of
the complaint. With regard to Shwom’s threat to lay off an-
other pile of the Union’s friends the next day, made in the
presence of his employees, I find that, although the statement
was made in anticipation of a planned economic layoff, the
linkage of the threat of layoff with the term ‘‘your [the
Union’s] friends’’ intimated that the employees were being
laid off because they were friends of the Union and was
therefore coercive.70 The threat to close the plant is, of
course, violative in this context.
The March Layoffs71
On March 21 Respondent laid off 14 employees; on
March 24, 1 more; on March 27, 20 more; and on March
31, 1 more. Of these 36 laid-off employees, the complaint
alleges that 16 of them were laid off for discriminatory rea-
sons. Of the 16 alleged discriminatees, 10 of them had been
identified as union supporters either by Shwom, himself, dur-
ing the incident on the bridge on March 19 or by Skasko to
Shwom during their March 17 conversation.
On the other hand, of the 36 employees laid off by Re-
spondent, between March 21 and 31, about half of them were
neither card signers nor otherwise engaged in union activi-
ties. Moreover, a large number of card signers and union ac-
tivists were either not laid off at all or were recalled. This
includes several who were definitely known to Shwom as
union activists.
The General Counsel alleges that Respondent laid off cer-
tain employees on March 21 and 27 because they were active
on behalf of the Union. Respondent contends, however, that
the layoffs, by number, were economically motivated, and by
specific choice, were value motivated.72
In analyzing the record I conclude that the Respondent’s
business was, and is, seasonal in nature; that the heavy sales
occurred in February and early March and trailed off dras-
tically in late March and April; and that the decision to lay
off large numbers of employees was economically motivated.
Though a number of employees had been active for the
Union back in November and December 1985 and January
198673 and management had been aware of these activities
at the time, management did not terminal them. Rather, these
union activists were kept on the payroll until economic ne-
cessity required their terminations along with those of non-
activists.
Although the complaint alleges the March 21 and 27 lay-
offs of certain employees as discriminatorily motivated, it
903EDDYLEON CHOCOLATE CO.
74 Allegations 5(o) and (p) of the complaint, as amended at the hearing.
75 Ebb Tide Processing, 264 NLRB 739 (1982).
76 Greenfield Mfg. Co., 199 NLRB 756 (1972).
77 H. H. Robertson Co., 263 NLRB 1344 (1982).
78 The General Counsel did not examine witnesses concerning these objec-
tions.
79 Helena Laboratories Corp., 219 NLRB 686 (1975).
80 Southern Fruit Distributors, 74 NLRB 72 (1947); Earl Fruit Co., 107
NLRB 64 (1953).
does not allege that the layoffs of April 9, 18, and 23 which
followed a similar pattern were so motivated. Indeed, several
of the alleged discriminatees terminated in March were tem-
porarily recalled only to be laid off again in April as the total
complement dropped to a mere six or seven for the summer
months. In the fall when business again picked up, many em-
ployees including several union activists were recalled. In
short, I see no general pattern of discrimination and rec-
ommend dismissal of this allegation.
The Events of September 2, 198774
On or about September 2, 1987, Shwom called employee
Robert Skasko into his office. He showed Skasko a subpoena
and told him that he, Shwom, had to be in court on Sep-
tember 15. Skasko replied that he had to be there also on
that date. He told Shwom that he had never before been in
a courtroom, wanted to know what was going on, and asked
Shwom if he could clear up the matter. Shwom explained the
procedure then suddenly asked Skasko, ‘‘Did you give any
names?’’ Skasko replied that he had not. Shwom continued,
‘‘If you did give any names; if you’re on that stand, you
don’t know, you don’t remember.’’
Clearly, Board law supports the General Counsel’s posi-
tion that interrogation of an employee as to the information
he might have given to a Board agent investigating an unfair
labor practice charge is violative of Section 8(a)(1) of the
Act and I so find.75 Similarly, Shwom’s attempt to interfere
with Skasko’s duty to truthfully testify at the forthcoming
hearing is likewise violative.76
Case 4–RC–16121
Objections
To the extent I have found allegations of unfair labor prac-
tices during the critical period meritorious, I likewise find the
objections on which they are based, meritorious. In addition
to these objections, however, there remain to be considered
Objections 10 and 11 which allege that Respondent used a
plant supervisor as a company observer during the election
and that the employer and his plant supervisors were stand-
ing in the hallway staring at employees as they came in and
lined up to vote.
The first of these two objections is based on record evi-
dence which indicates, according to the testimony of Daniel
Scalzo, that a preelection conference was held on the day of
the election and that this conference was attended by the
union observer, Shwom, Shwom’s brother, the Board’s agent,
Timothy Brown, Scalzo, and one Ran Becker. Scalzo testi-
fied that Shwom, at this time, advised Scalzo that Becker
would be the Respondent’s observer at the election. Scalzo
then advised Brown that Becker was a supervisor. Brown
then asked Becker if he was a supervisor and whether he had
authority to hire and fire people. Becker replied affirmatively
to all three questions. Brown then told Shwom that if Becker
were appointed the Respondent’s observer, the Union would
file objections. Shwom, after asking for a minute to consider
the situation, then announced that he would use one of the
secretaries as his observer in place of Becker.
As Shwom was explaining to the secretary what her duties
would be as observer, the Respondent’s attorney came in.
Shwom and his attorney then conferred in the hall after
which they returned and announced that they would use
Becker as the observer and that the Union could do whatever
it wanted. Becker served as Respondent’s observer and as al-
ready noted, the Union filed its objection.
During the hearing, Respondent objected to the admission
of Scalzo’s testimony and moved to strike on grounds that
it was hearsay. I ruled that the testimony would remain in
the record, with the hearsay portions thereof given proper
weight depending on whatever corroborating evidence might
subsequently be adduced.77
At the hearing neither the Charging Party nor the Re-
spondent78 called Becker to the stand to either confirm or
deny that the alleged discussion had taken place or to testify
concerning his duties as an employee of Respondent. Neither
were any of the other witnesses to the alleged discussion
called to testify on the matter. Although Shwom was recalled
to the stand to testify shortly after Scalzo, he was not exam-
ined by any of the parties as to either the preelection con-
ference or as to Becker’s alleged supervisory duties or the
lack thereof. Indeed, if he had, and had denied Becker’s al-
leged supervisory status, it might have been easier to rec-
ommend that the objection be overruled.79 As it stands,
Shwom’s failure to testify might give rise to an inference
that he could not honestly deny Becker’s supervisory status
but for the fact that there is nothing in the record to rebut
except hearsay. I therefore draw no inference from Respond-
ent’s failure to examine Shwom on the subject of Becker’s
alleged supervisory status.
Though the Charging Party did not call Becker to the
stand, it did examine two rank-and-file employees concerning
Becker’s status. Employee Kevin Goula identified Becker
simply as ‘‘a worker there.’’ When asked about Becker’s du-
ties, Goula testified that he did not know. Goula also testified
that whereas he wore a workshirt and workpants, Becker
wore a dress shirt, pants, and occasionally a tie. Employee
Judith Wilbur was also examined concerning Becker’s status.
She testified, like Goula, that she did not know what Beck-
er’s job was, but that he was usually in the office. Like
Goula, she testified that he usually wears dress shirts and
pants while the rank-and-file employees usually wear jeans,
sweatshirts, or flannel shirts. Employee Victoria Tonte of-
fered similar testimony.
From the record, I find it impossible to determine pre-
cisely what Becker’s status was at the time of the election
or whether he was eligible to serve as an observer in the
Board-conducted election. Under similar circumstances, the
Board has historically declined to set aside an election.80 I
therefore recommend that Objection 10 be overruled. Inas-
much as Objection 11 is not supported by the record, I like-
wise recommend that it be overruled.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
81 Times Wire & Cable Co., 280 NLRB 19 (1986).
82 287 NLRB 996.
83 Sunbeam Corp., supra.
84 The eligibility of Judith Wilbur is conceded by the Employer in its brief.
85 The Employer called management and supervisory personnel to testify
that the employees challenged were poor employees whom it did not intend
to recall because of various work-related incidents in which they had been in-
volved. I do not rely on this testimony, however, because 12 of the 15 em-
ployees laid off in March were union activists; because the Employer, the
record reveals, was well aware of the activity of most of them; because none
of them were terminated at the time of their alleged transgressions; because
those employees who had, in fact, committed the acts of which the Employer
The Requested Bargaining Order
A chronological analysis of the events contained in the
record indicates that there was just one discriminatorily moti-
vated discharge, namely, that of Zaleski in late November,
and incidents of 8(a)(1) violations occurring in late Novem-
ber and December 1985 and January an March 1986. Despite
these violations, however, the Union’s organizing campaign
did not flag but, on the contrary, appears to have gained mo-
mentum after the termination of Zaleski and the commission
of the initial 8(a)(1) violations by Respondent’s agents. The
vast majority of card signers signed their authorization cards
between November 23, 1985, and February 23, 1986, Re-
spondent’s violations notwithstanding. Moreover, committee
meetings and general meetings of employees advocating
union representation were held in February and March and
were well attended.
The Board has said that in determining whether or not to
issue a bargaining order, of great significance is the fact that
the violations did not dissipate the Union’s majority;81 and
that ultimately, with regard to imposing a bargaining order,
the question to be decided is whether traditional remedies
can remedy the unfair labor practices to permit a free and
fair election to take place. The Board stated:
Employee sentiment expressed in a Board-conducted
election [following the commission of an employer’s
unfair labor practices] is an objective—not subjective—
factor that can be relevant to resolving this question; in-
deed it is the best possible evidence.
In the instant proceeding, the fact that the violations failed
to dissipate the Union’s campaign is a relevant consideration
in determining that direction of a new election is the proper
alternative to a bargaining order.
In light of the above, I find, as stated by the Board in Sun-
beam Corp.,82 that the General Counsel has failed to dem-
onstrate that the effects of Respondent’s violations were so
substantial that their effects cannot be erased by the use of
traditional remedies and that the question concerning rep-
resentation raised by the Union’s petition cannot be resolved
by the preferred method of a Board election and rerun elec-
tion if necessary. I shall therefore recommend that the re-
quest for a bargaining order be denied.
On the other hand, since I have found that the Respondent
has engaged in conduct which impermissible interfered with
the April 3, 1986 election, I shall recommend that if the
counting of the valid challenged ballots results in a majority
thereof being cast against representation, that the election be
set aside and a new election directed.83
The Challenges
In his report and recommendations on objections to elec-
tion and challenged ballots the Regional Director concluded
that with regard to the eligibility of certain challenged voters,
substantial and material factual issues existed which could
best be resolved on the basis of record taken at the instant
hearing. consequently, in accordance with the Regional Di-
rector’s determination, and based on the Findings of Fact,
supra, I make the following recommendations with regard to
eligibility:
David Williams. Williams was challenged by the Board
and by the Employer on grounds that his name did not ap-
pear on the eligibility list. Petitioner and the General Counsel
contend that Williams was discharged in violation of Section
8(a)(1) and (3). I have found, however, that he was dis-
charged for cause prior to the eligibility cutoff date. I rec-
ommend that the challenge to his ballot be sustained.
John Zelinski. John Zelinski was challenged by the Em-
ployer on grounds that he had been terminated for legitimate,
nondiscriminatory reasons well in advance of the election.
Despite the contentions of the General Counsel and the Peti-
tioner that his termination was violative of the Act, I have
found, in agreement with the Employer, that it was for cause
and recommend that the challenge to his ballot be sustained.
The following employees:
Peter Zelinski Mary Christine Shively
James Walker Lois Thompson
Michael Studders Wendy Vogel
Nancy Scarantino Victoria Tonte
Robert Skasko Kevin Goula
Sharon Thorne Judith Wilbur84
Armand Poli Dorothy Resavy
James Masters
were challenged by the Employer. They were all laid off on
March 21, 24, or 27. The General Counsel takes the position
that of these 15 employees, 10 of them: Peter Zelinski, Mi-
chael Studders, Victoria Tonte, Nancy Scarantino, James
Walker, Wendy Vogel, Bob Skasko, Jim Masters, Dorothy
Resavy, and Kevin Goula were discriminatees whose ballots
should be opened and counted. The General Counsel takes
no position with regard to the remaining challenged ballots.
The Petitioner contends that all employees terminated
March 21–27 were terminated for discriminatory reasons be-
cause of their known or suspected union activities or sym-
pathies. In the alternative, the Petitioner takes the position
that if these employees are found not to be discriminatees,
then they should be considered laid-off employees who had
a reasonable expectancy of recall in the near future and in
either case eligible to vote.
The Employer denies that the March 21–27 layoffs were
discriminatorily motivated but rather were legitimate non-
discriminatory layoffs resulting from a customary periodic
drop in business. Such layoffs, the record indicates, were not
infrequent in the past and shows that in each case the Em-
ployer attempted to, and did, in fact, recall laid-off employ-
ees when its production requirements increased. The March
21–27 layoff was an economic layoff and no different from
previous layoffs. Management intended to recall, once again,
many of its employees and advised them that it would do
so.85 I find that these employees had a reasonable expectancy
905EDDYLEON CHOCOLATE CO.
complains had done so long before their general layoff in March 1986 and
must be presumed to have been rehabilitated; and because a number of them
were subsequently rehired, thus indicating that the Employer did not consider
their work-related problems to be so serious as to deny them reemployment.
86 Atlas Metal Spinning Co., 266 NLRB 180 (1983); Data Technology
Corp., 281 NLRB 1003 (1986).
87 Admitted supervisor.
88 Ibid.
89 The latest payroll figures available in the record.
90 A motion to reapen for this purpose was filed by the Employer on No-
vember 4, 1987, and deferred for later ruling by order dated November 12,
1987.
of recall and recommend that the challenges to their ballots
be overruled.86
Jeanie Cicon. Jeanie Cicon was challenged by the Board
agent and by the Employer because her name was not on the
eligibility list. The General Counsel takes no position with
regard to her eligibility but notes that she was terminated
prior to the election and is not alleged to be an 8(a)(3)
discriminatees. The Employer takes the position that the
challenge to Cicon’s ballot should be sustained because she
was lawfully terminated prior to the election. I find that the
record supports the Employer’s challenge and recommend
that its challenge be sustained.
Catherine Bonitz. The ballot of Catherine Bonitz was chal-
lenged by the Board agent and by the Employer because her
name was not on the eligibility list.
I recommend that the challenge be sustained inasmuch as
Bonitz was hired after the eligibility cutoff date.
Rosemary Carey. The ballot of Rosemary Carey was chal-
lenged by the Board agent and the Petitioner because her
name was not on the eligibility list. The Petitioner would ex-
clude Carey as a supervisor. The Employer denies that Carey
is a supervisor.
The record reflects that Carey, at the time of the hearing,
was Veronica Supinski’s87 assistant. Supinski would make
out the schedule and hand it to Carey. Carey would then pass
on instructions to the employees from Supinski or
Marsden.88 Carey also would show new employees what
their newly assigned duties were. Her duties did not include
any of the standard indicia of supervisoryship. The record is
devoid of information as to what Carey’s duties were during
the critical period. As of the pay period ending January 17,
1986,89 Carey received $4.25 per hour, the same as the low-
est paid rank-and-file employees. I find the record insuffi-
cient to warrant any conclusion as to Carey’s inclusion or ex-
clusion with regard to unit placement.
Paul Bellock. Bellock was challenged by the Board agent
and by the Petitioner because his name did not appear on the
eligibility list. The Petitioner asserts that Bellock was not
hired until after the eligibility cutoff date. Payroll records
and other evidence indicates, contrary to the Petitioner’s po-
sition, that he was employed prior thereto. I recommend that
his ballot be counted.
Florencio Gomez, Hector Colon, and Lucien Delva. These
three individuals were challenged by the Board agent and the
Petitioner because their names did not appear on the eligi-
bility list. The Petitioner argues that all three are supervisors
within the meaning of the Act and consequently the chal-
lenge to their ballots should be sustained.
The Petitioner supports its position with regard to Gomez
by arguing that he effectively recommended Tonte and Vogel
for recall when it had been decided earlier that they should
not be recalled because of poor work performances and that
Gomez’ wage rate was much higher than that of other rank-
and-file employees. The Petitioner supports its position with
regard to Colon and Delva solely on the basis of their receiv-
ing higher wages than most rank-and-file unit employees.
I find the record insufficient to warrant any conclusion as
to the supervisory status of Gomez, Colon, or Delva and rec-
ommend no decision be made at this time concerning their
status. Rather, I recommend that if, after the ballots herein
found valid are counted, the ballots of Carey, Gomez, Colon,
and Delva are determinative of the results of the election, the
hearing be reopened and further evidence adduced as to their
status.90
To summarize my recommendations on the challenges, I
find that the ballots of the following employees should be
opened and counted:
Peter Zelinski Dorothy Resavy
Mary Catherine Shively James Masters
James Walker Paul Bellock
Lois Thompson Michael Studders
Wendy Vogel Nancy Scarantino
Victoria Tonte Robert Skasko
Kevin Goula Sharon Thorne
Judith Wilbur Armond Poli
I also find that the challenges to the ballots of the fol-
lowing individuals should be sustained:
David Williams John Zelinski
Jeanie Cicon Catherine Bonitz
and that in the event, after the recount, the challenged ballots
of the following individuals prove determinative, that the
hearing be reopened for the purpose of adducing additional
evidence as to their eligibility:
Rosemary Carey Florencio Gomez
Hector Colon Lucien Delva
If, following the final count, it is determined that a major-
ity of valid votes were cast for the Petitioner, I recommend
that it be certified. If, on the other hand, it is determined that
a majority of valid votes counted were not cast for the Peti-
tioner, inasmuch as I have found certain objections filed by
the Petitioner to be meritorious, I recommend that the elec-
tion be set aside and a new election conducted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above, occurring in
connection with its operation described above, 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 obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take appropriate and affirmative action de-
signed to effectuate the policies of the Act. In particular, as
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I have found that Ed Zaleski was discriminatorily terminated,
I shall recommend that Respondent be required to offer full
and immediate reinstatement, with backpay and interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950); and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By creating the impression of surveillance of its em-
ployees’ union activities; promising employees wage in-
creases, bonuses, insurance, and other benefits in order to
discourage its employees from supporting the Union; grant-
ing its employees wage increases and bonuses for the same
purpose; interrogating its employees about their own union
activities and those of other employees; threatening employ-
ees with discipline and discharge if they refused to distribute
Respondent’s antiunion literature; soliciting grievances and
complaints from employees thereby promising them im-
proved terms and conditions of employment in order to dis-
courage their union activity; soliciting employees to form
their own labor organization; threatening employees with a
reduction in benefits, layoffs, other unspecified reprisals, and
closure of the facility in order to discourage their union ac-
tivity; and interrogating an employee as to the nature of his
testimony to be given at a forthcoming Board hearing and in-
structing an employee to withhold evidence while testifying
at the Board hearing, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discharging/laying off Ed Zaleski because he en-
gaged in union activities, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
[Recommended Order omitted from publication.]