Fuild Packaging Co.,

National Labor Relations Board - Board Decisions

Feb 28, 1980

247 N.L.R.B. 1469 (N.L.R.B. 1980)

FLUID PACKAGING COMPANY
Fluid Packaging Company, Inc. and International
Union of Electrical, Radio & Machine Workers,
AFI-CIO. Cases 4-CA-9268 and 4-RC-1 2962
February 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
On August 13, 1979, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel and the
Charging Party filed cross-exceptions, and the Gener-
al Counsel filed an answering brief to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,' and
conclusions of the Administrative Law Judge, except
as modified herein, and to adopt his recommended
Order, as modified.'
The Administrative Law Judge, without elabora-
tion, found that Maintenance Manager Mike Diaz'
comment to employee Julio Del Popolo, that "he must
go against the Union. If you go in, the mechanics be in
trouble . . . [b]ecause they evaluate the mechanics
and they find a way to put on trouble," did not
constitute a violation of Section 8(a)(1) of the Act.
Counsel for the General Counsel and the Charging
Party have excepted to this finding and contend that
I Respondent contends that the Board's decision to reverse the Administra-
live Law Judge's refusal to permit the General Counsel to amend the
complaint to include the allegation regarding the discharge of employee
Malay was improper as there was no valid subsisting charge at the time of the
proposed amendment. We find Respondent's argument without merit. The
relevant facts are as follows. The original charge, alleging. inter alia. the
unlawful discharge of Malay, was filed on March 13. 1978. By letter dated
May 10, 1978, the Regional Director notified the parties that it was dismissing
the charge with respect to this allegation. On July 14, 1978, the Charging
Party filed an appeal from the Regional Director's decision with the General
Counsel a copy of which was served on the Regional Director. After
reviewing the appeal. the Regional Director reconsidered his earlier decision
and reopened the investigation. On October 10. 1978, the Regional Director
served the parties with amendments to the complaint adding. inter alia. the
Malay discharge. As a result of the Regional Director's action, the Charging
Party requested withdrawal of its appeal on October II. On October 20
Respondent filed its answer to the amendments but did not raise the instant
issue. At the opening of the hearing, counsel for the General Counsel moved
to amend the complaint to incorporate the October 10 amendments.
Respondent opposed the motion for the reason expressed above. The
Administrative Law Judge granted the motion and the General Counsel
appealed his ruling to the Board. On January 9., 1979, the Board reversed the
Administrative Law Judge's ruling, amended the complaint as requested by
the General Counsel. and remanded the case for hearing thereon. Respondent
new reiterates its contention that the amendements were improper. Contrary
247 NLRB No. 196
the comment carries a barely concealed threat of
retaliation in the form of more stringent evaluations if
the mechanics did not reject the Union. Upon evalu-
ation of the record, we agree with the General
Counsel's and the Charging Party's assessment of
Diaz' remark and, accordingly, find that Diaz' threat
violated Section 8(a)(1) of the Act. We further note
that the Administrative Law Judge partially misquot-
ed Del Popolo's testimony and that Diaz' exact words,
which were "If the Union go in," not "If you go in,"
provided further evidence that the threatened action
was directly linked to the employees' union activities.'
We also find merit in the General Counsel's and
Charging Party's exceptions to the Administrative
Law Judge's failure to find an additional violation of
Section 8(a)(l) based on Supervisor Grove's warning
to employee Tweedie about "talking union on the
production line." We note that the record indicates
that employees were permitted to converse freely at
their work stations about any subject; hence, Respon-
dent's attempt to restrict only conversation about
union matters was plainly unlawful.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, Fluid
Packaging Company, Inc., Lakewood, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph (h) and
reletter the subsequent paragraphs accordingly:
to Respondent, the Regional Director's initial action did not finalize the
matter of Malay's discharge. Rather, during the appeal process, the charge
remained alive and pending thereby permitting the Regional Director to
reinstitute the investigation and proceed in the manner he deemed appropri-
ate. See Swifl Service Store. Inc. a/k/a Swift Cleaning d Laundry Company.
169 NLRB 359. 361 (1968). Accordingly, we find the decision to permit the
amendment of the complaint was not error and Respondent's exception is
without merit.
: Respondent has expected to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' In his recommended Order, the Administrative Law Judge employed
broad injunctive language in ordering Respondent to cease and desist from
engaging in "any other" unlawful conduct. After applying the standards
discussed in the Board's recent decision in Hicknotr Foods, Inc.. 242 NLRB
1357 (1979). for determining whether a "broad" order is warranted, we find
Respondent's conduct sufficiently egregious to justify this order.
' Inasmuch as the Administrative Law Judge found that Respondent made
other unlawful threats of reprisal, and since his recommended Order and
notice reflect these findings. we find it unnecessary to amend the recommend-
ed Order and notice to refer to this additional violation
1469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(h) Unlawfully prohibiting employees from talking
about the Union and threatening them with discharge
if they do so."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
No-rTICE To EMPLOYEES
POSTEIl BY ORDER OF THE
NATIONAl. LABOR RI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties participated and
offered evidence, the National Labor Relations Board
has found that we unlawfully discharged Daniel
Malay and Robert James Tice, Jr., because they
engaged in lawful protected union activities and it has
ordered us to post this notice and to abide by the
following:
The Act gives all our employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE Wll.I. NOTr do anything which interferes
with these rights.
WE WII. NOT discourage membership in
International Union of Electrical, Radio & Ma-
chine Workers, AFL-CIO, or any other labor
organization, by unlawfully discharging any em-
ployees or discriminating against them in any
other manner with respect to their hire or tenure
of employment.
WE WILL . NOT unlawfully interrogate employ-
ees regarding their union or other concerted
activities.
WE WlI.L NOT unlawfully threaten to move or
close our Lakewood, New Jersey, plant if the
Union is the bargaining representative.
WE WIl L NOT unlawfully create the impres-
sion that we are spying on employees' union
activities.
WE WILL NOT unlawfully threaten our em-
ployees with reprisals if they vote for the Union
nor will we promise our employees benefits if
they vote against the Union.
WE WILl. NOT unlawfully prohibit our employ-
ees from distributing union literature in our plant
lobby or other nonwork areas.
WE WILL NOT unlawfully prohibit our employ-
ees from talking about the Union and threatening
them with discharge if they do so.
WE Wll.. NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the National Labor Relations Act to engage in
self-organization, to bargain collectively through
a representative of their own choosing, to act
together for collective bargaining or other mutual
aid or protection, or to refrain from any and all
these things.
WE WILL. offer Daniel Malay and Robert
James Tice, Jr., reinstatement to their former jobs
or, if their jobs no longer exist, to substantially
equivalent jobs, discharging, if necessary, any
employee hired to replace them.
WE WIl l restore their seniority and other
rights and privileges and WE Wll.l. pay them the
backpay they lost because we discharged them,
with interest.
All our employees are free to remain, or refrain
from becoming or remaining, members of a labor
organization.
FLUID PACKAGING COMPANY, INC.
DECISION
STAIIMENT OF THE CASE
Low.l.l GOERI.ICH, Administrative Law Judge: The
charge file in Case 4-CA-9268 on March 13, 1978, by
International Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, herein called the Union, was served on Fluid
Packaging Company, Inc., Respondent herein, by certified
mail on March 14, 1978. A complaint and notice of hearing
was issued on May 30, 1978. In the complaint it was alleged
that Respondent unlawfully interrogated employees, threat-
ened to close the plant if the Union became the bargaining
representative, threatened an employee with demotion,
threatened an employee with discharge, threatened an
employee with loss of overtime, promised benefits to
employees if the Union were rejected, forced an employee to
cease wearing a union "Yes" insignia, prevented employees
from distributing union literature in nonworking areas
during nonworking hours, and prohibited an employee from
talking about the Union, all in violation of Section 8(a)(X1) of
the National Labor Relations Act, as amended, herein
referred to as the Act. Additionally, it was alleged that
Robert J. Tice, Jr., was discharged on January 24, 1978, in
violation of Section 8(a)(3) of the Act.
Amendments to the complaint were allowed which
charged additional 8(a)(1) misconduct and the unlawful
discharge of employee Daniel Malay on December 2, 1978,
or "in the alternative [that the Respondent] laid off its
employee Daniel Malay and since on or about February 6,
1978, has failed to recall Daniel Malay to his former or
1470
FLUID PACKAGING COMPANY
substantially equivalent position" in violation of Section
8(a)(3) of the Act.
On June 13, 1978, the Regional Director, pursuant to
Section 102.33(c) of the Board's Rules and Regulations,
Series 8, as amended, consolidated Case 4-CA-9268 with
Case 4-RC-12962 for the purpose of "hearing, ruling and
decision by an Administrative Law Judge." Case 4-RC-
12962 involves the Union's objections to an election held on
February 9, 1978. The Regional Director ruled, "With
regard to Objections 1. 2. 3 4. 5. 8. 10. 15, 19. and 20,
material issues of fact exist which can be best be resolved on
the basis of record testimony taken at a hearing."
Respondent filed timely answers denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged.
The consolidated cases came on for hearing on October 31
and November 1, 2, and 3, 1978, and April 17, 18, and 20,
1979, at Toms River, New Jersey. Each party was afforded a
full opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions of law. and to file
briefs. All briefs have been carefully considered.'
FINDINGS OF FACT,: CONCLUSIONS, AN) REASONS
THFRI:I:OR
1. THI: BUSINI:SS 01 REISPONI)INT
Respondent is, and has been at all times material herein, a
corporation duly organized under and existing by virtue of
the laws of the State of New Jersey, and is engaged in the
contract packaging of toiletries and beauty aids at its
premises located at 800 Airport Road, Lakewood, New
Jersey.
During the past year, Respondent, in the course and
conduct of its business operations, purchased goods and
products valued in excess of $50,000 directly from points
outside the State of New Jersey.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
I Briefs were filed by the General Counsel. the Charging Party, and
Respondent.
: The facts found herein are based on the record a.s a whole and observation
of the witnesses. The credibility resolutions herein have been derived from a
review ofr the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
N.L.R.B. v. Walton Manufacturing Company d Loganville Pants Co.. 369
U.S. 404. 408 (1962). As lo those witnesses testifying in contradiction to the
findings herein, their testimony has been discredited. either as having been in
conflict with the testimony of credible witnesses or because it was in and of
itself incredible and unworthy ofr belief. All testimony has been reviewed and
weighed in the light of the entire record. No testimony has been pretermitted.
'This job description reads:
TITLE: FOREMAN PROCESSING DEPARTMENT
STATEMENT OF JOB: Plans. coordinates and controls operation of his
shift. Supervising Chemical Operators in the Process and Formulation of
Customer Orders.
DUTIES:
I. Keeps up-to-date on new technliques of manufacturing and all FDA
good manufacturing practices and assures that they are fllowed by the
employees.
II. T11I I ABOR ORG(ANIZATION INVOI.VEI)
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. HI UNFAIR I.ABOR 'PRACT(I:S
A. Alleged Violations of Section 8(a)(1) o the Act
1. Robert Rorabaugh: Respondent maintains that Rora-
baugh, also known as "Little Bob," is not a supervisor
within the meaning of the Act. Rorabaugh became a
production foreman in the chemical processing department
on February 1, 1977. He considered himself a "boss" and
did not vote in the election because he believed that he was a
supervisor. Rorabaugh issued directions and assigned work
to about five to seven employees on the night shift.
Employees when hired were told that he was a foreman. He
discussed wage increases with employees and "put" them in
for wage increases. He also signed employee timecards. He
occupied an office. On at least one occasion he sent an
employee home for refusing to follow his orders. The
employee was later discharged for refusing to do work
assigned.
According to Arturo Campos, personnel director, Rora-
baugh exercised all the authority described in the job
description of "Foreman Processing Department.'" Rora-
baugh received the benefits which were given to the office,
security, professional, and supervisory employees as of
January 1, 1979, because he was "considered to be a
supervisory employee."
It is clear that Rorabaugh exercised functions which bring
him within the definition of supervisor as defined in the Act.
(See Sec. 2( 1 ) of the Act.)
In December 1977 employee Carlos Kremer approached
Rorabaugh in his office for "a new batch" of deodorant.
Rorabaugh asked Kremer what he was "thinking about the
union" and whether he was going to vote "Yes" or "No."
Kremer answered that he was intending to vote yes.
Rorabaugh responded, "[l]f you are going to vote 'yes' for
the union, I am not going to give you your next batch."'
According to Edward Joseph Stanley, in January 1978
Rorabaugh related to him that "his supervisor, Bob Talmo
[an admitted supervisor] slipped out and stated we're not
2. Plans and schedules Job assignments of all operators on his shift,
assuring good quality workmanship.
3. Assures that lines are kept supplied with approved prduct at all
times
4. Keeps other department supervisors informed of status of products
being run.
5, Maintains safety and good housekeeping practices in the entire
depart ment
6. Receives and ships tank deli, eries of product.
7. Maintains and coordinates sewage disposal.
8. Coordinates work activities with Chemical Warehouse, Scheduling
Laboratory. Packaging I ines and A and B shifts in Processing.
9. Assures that new employees are properly indoctrinated and cross
trains all operators.
10. Properly executes all paper work on his shift and assures that it is
properly distributed.
I I. Maintalin a professional working relationship with Customer.
' Rorabhaugh admitted ait conversation with Kremer in which he asked him
how he felt about the Union and Kremer informed him that he was voting for
the Union.
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
getting our raise because of the union and as soon as the
union is out of this place, that's when Stanley is getting
fired." Later in the same month, Rorabaugh showed Stanley
"a list of benefits he [Rorabattgh] would be receiving . . .
and he was told that if the union doesn't get in, these other
benefits [the employees] would be receiving."'
Rorabaugh's interrogation of employee Kremer accompa-
nied by an implied threat was unlawful and in violation of
Section 8(a)(1) of the Act, as was his statement to employee
Stanley that the employees were not getting a raise because
of the Union and that the employees would receive certain
benefits if the Union did not prevail. These constituted
unlawful threats of reprisal and promises of benefits.
2. Charlie Gilbert Grove: Respondent maintains that
Grove is not a supervisor within the meaning of the Act.
Grove became a foreman in March 1978. Prior to that
time he had occupied the job of leadman, which was his job
during the entire union campaign. While leadman, for about
2 hours each shift, he was under the supervision of Roy
Valeo; for the remainder of the shift he was under the
supervision of the night superintendent. Eleven mechanics
and "label girls" were under Grove's supervision. One of
Grove's duties was "[t]o keep the lines running." Grove also
assisted mechanics to keep the line in production and told
"the line people where to work" according to a schedule. He
gave the mechanics their daily directions and jobs. He
released employees on requests to go home and assigned
their replacements. He signed employees' timecards. Grove
was the only person who gave instructions to the mechanics.
He recommended raises which were favorably passed on,
and employees requested raises of him. After finding a man
sleeping on the job, he told Valeo that "the man was sleeping
on the job. He has been missing from the job, and I thought
he wasn't worth keeping on the shift." The man was
terminated. Grove earned more than the rank-and-file
employees under him.
In 1977 employee Carlos Kremer was introduced to
Grove by Supervisor Ron Smith was said, "[T]his is our new
supervisor, he's going to help me in the job." In December
1977 Grove told employee William Frank Tweedie that "if
any mechanics were fired on the night shift that he would do
it and he was not going to fire anyone for union activities."
Rorabaugh admitted that he had showed Stanley a list of benefits
supervisors were receiving and discussed the benefits with him. Rorabaugh
testified that he was instructed by Talmo to show the benefit sheet to Stanley
and others.
" This job description reads:
TITLE: LEAD (WORKING) MECHANIC
STATEMENT OF JOB: Under the direction of the department foreman
or supervisor. supervises the work of one or more Packaging Line
Mechanics.
DUTIES:
I. Plans, lays-out, assigns and supervises the work of one or more
Packaging Line Mechanics in a given area or assigned lines to most
effectively and efficiently utilize his human res:ources.
2. Trains Mechanics ON-THE-JOB, to meet the needs of the Trainee
and the Company. Cross trains Mechanics in all areas and on all lines
and equipment under his leadership.
3. Assures that waste is kept to a very hare minimum and that all losses
are reported and accounted for.
4. Sees that Mechanics practice Good Manufacturing Practices
IGMP's), Safety and Good Housekeeping.
5. Corrects unsafe practices or situations when possible and brings to
the immediate attention of the Line Foreman those situations which
he/she cannot correct immediately.
Manuel Diaz, maintenance manager, referred to Grove as
"the night shift supervisor" and testified that "[h]is job was
to keep the lines running and helping the rest of the
mechanics to accomplish their jobs." Campos testified that
Grove performed all the duties set forth in the job descrip-
tion of "Lead (Working) Mechanic."' Grove was clearly a
supervisor within the meaning of Section 2(11) of the Act.
In November 1977 Grove told employee Kremer that
Kremer was "involved in meeting with the union and
[when]ever the union is coming into Fluid Chemical, [the]
Maintenance Mechanics would be line attendants and [their]
wages were going down instead of up." He also said to
Kremer, "You're working with the union ... watch it, be
careful."'
In December Grove told employee William Frank Tweed-
ie that "Steve Foderaro [night plant superintendent] told
him [he] had been reported for talking union on the line and
that [he] could be fired for that and not to do it again.
"
Grove's representation to Kremer that the advent of the
Union would result in a detriment to the maintenance
mechanics was in the nature of a threatened reprisal and was
unlawful. See Contractors Cargo Co.. Inc., 218 NLRB 549
(1975). Grove's statement, "You're working [for] the union
.... watch it, be careful," implied that Kremer was being
observed by management for the purpose of hanging an
offense on him which could be used as a basis for his
discharge. Such a statement was coercive and a violation of
Section 8(a)(1). Cf. Fox & Jacobs, Inc., 221 NLRB 1159,
1166 (1975).
In view of Respondent's no-solicitation rule,' Tweedie's
admonishment for "talking union on the line" was not
unlawful.
3. Walter F. Colorio, also known as Randy Menken:
Respondent maintains that Colorio is not a supervisor
within the meaning of the Act. Colorio was promoted to
foreman trainee in May 1977. Thereafter Colorio served a 6-
month probationary period during which he commenced
exercising supervisory authority. He assigned work to
employees and directed employees on the line under the
supervision of Steve Foderaro. He reported disciplinary
problems to his foreman. He transferred employees on the
line based on his "independent judgment as to who could do
6. Promotes communications. harmony and coordination among
Mechanics. Production Workers. Quality Corol Personnel and Fellow
Workers.
7. Sees that all changeovers and set-ups in his area of responsibility are
carried out expediently so as not to delay production operations.
8. Works in cooperation with the Foreman and/or Manager to see that
overtime is kept at a minimum and that the work is accomplished
effectively and efficiently in the shortest possible time
9. Assures that all parts needed for the machines are supplied when
needed and that all spare, unused and parts removed from the machine
are properly cleaned and stored in the parts storage area.
Grove testified: "I told him that . . . if the union did get in, that the
company would be forced to disqualify the people that they now had as
mechanics because I didn't think that most of them were qualified. .... I told
him I didn't feel he was really qualified as a mechanic."
* Grove testified: "I told him moving down the line. talking to people about
the union and neglecting his job. he could be terminated."
I Respondent's handbook cited for immediate disciplinary action or
dismissal the violation of the following rule: "Circulation or distribution of
written material of any type in working areas or on work time and solicitalion
of any form during working time is strictly prohibited." (G.C. Exh. 12. p. Ih.)
The General Counsel has not challenged this rule.
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FLUID PACKAGING COMPANY
the job best." He did not vote in the election because he was
a supervisor. He was the beneficiary of the benefits given to
office, security, professional, and supervisory employees
effective January 1, 1978. He exercised the duties and
possessed the powers set forth in the job description for
production foreman. " He was obviously a supervisor within
the meaning of the Act.
In October or November 1977 Colorio asked employee
Barbara Prontonentis if she thought Edmund D. Bennett"
would "close the doors if the union came in." She respond-
ed, "No." In response to Prontonentis' like question Colorio
answered that "he thought he would." In that threats of the
plant's closing had been expressed by Respondent's repre-
sentatives, including Bennett (see infra), the question of
Colorio acquired a coercive tone and interfered with
Prontonentis' Section 7 rights and was in violation of Section
8(aX)() of the Act.
4. Rick Nelson: Respondent maintains that Nelson is not a
supervisor within the meaning of the Act. Nelson became a
foreman on December 8, 1976. Nelson received the benefits
given to office, security, professional, and supervisory
employees on January 1, 1978. He was assigned the duties
and exercised the powers of the production foreman set out
in footnote 10. General Foreman Anthony R. Iacullo
referred to Nelson as a foreman. Nelson was a supervisor
within the meaning of the Act, as was Colorio.
In October 1977 Nelson said to employee Thomas
Chadwick and other employees that "if the union got into
the plant, that Mr. Bennett would either close the plant or
move."
In November 1977 in the cafeteria, the day after Robert
James Tice, Jr., attended a union meeting at the Red Lion
Inn in Bricktown, New Jersey, Nelson asked Tice Jr.
whether he had attended the union meeting. He responded
in the negative, whereupon Nelson remarked, "[Y]ou
shouldn't get involved with this union business . . . the old
man will close the doors. The people that walked in the
' This job description reads:
TITLE: PRODUCTION FOREMAN
STATEMENT OF JOB
Supervises the work of 40 to 50 production workers in the assembly
packaging line.
DUTIES OF JOB
I. Makes work assignments of girls to assembly stations at beginning of
shift.
2. Continuously monitors assembly line operation to assure proper
operation of machines and equipment.
3. Assures the performance of operators for output and quality.
4. Sees that good housekeeping and safety procedures are followed
5. Follows specification sheet describing the product. compounds.
weights, pressures and work.
6. Checks material code numbers of all supplies and assures that
supplies are there when needed.
7. Executes required production reports.
8. Plans and maintains employee work schedules: Hours., breaks.
lunch.
9. Makes hiring-firing recommendations to production manager.
10. Refers all problem decisions outside his knowledge and scope of
authority to manager.
Bennett was president and principal stockholder of Respondent.
': In Philadelphia Ambulance Service. Inc.. 238 NLRB 1070. 1071 (1978),
the Board said:
The Board and the courts have long recognized that threats to close
down a facility because of union activity are among the most serious and
other day with the white hats on, as guests, they were
prospective buyers...." On another occasion Nelson
asked Tice Jr., "How many people on the line do you think
are pro union?" Tice Jr. answered that he did not know.
Nelson said, "[M]ost of the girls would be antiunion because
I get along good with the girls and the guys would probably
go the other way."
Nelson's statements to the effect that the plant would be
closed if the Union were successful constituted illegal
threats. Luke's Supermarket, Inc., 228 NLRB 763 (1977).'
Nelson's interrogations were coercive and were in violation
of Section 8(a)(1) of the Act.''
5. Barbara Benedict.' Respondent maintains that Benedict
is not a supervisor within the meaning of the Act. Benedict
was promoted to quality control leadline inspector on
October 31, 1977, and according to Campos, performed the
functions set forth in the job description for "Quality
Control Leader."' Eight or nine "girls" worked in quality
control under Benedict's assignments; she checked their
work and she helped to solve their problems. Benedict
excused employees who desired to leave early and to attend
the "Ladies Room." Employees regarded her as their "boss"
and referred to her as the "boss." Benedict also evaluated
the employees' work and signed the "line stuff" each day.
Benedict responsibly directs employees, exercising indepen-
dent judgement, and is a supervisor within the meaning of
Section 2(11) of the Act.
In November 1977 Benedict came tothe line and told
Patricia Martiff that Frank Loomis, an admitted supervisor,
had asked her "which one of the girls were involved in the
union." Martiff replied that she did not know of any.
Benedict then told employee Marfitt to be "careful," that she
was "being watched." Benedict's remarks created an impres-
sion of surveillance of union activities and was unlawful, as
was her interrogation.
6. Joe Surdi: Respondent maintains that Surdi is not a
supervisor within the meaning of the Act. Campos testified
flagrant forms of interference with the free exercise of employee rights.
Moreover, as the Supreme Court has indicated, threats to close an
employer's operations are among the most effective unfair labor practices
"to destroy election conditions for a longer period of time than others."
"Nelson's interrogations had the "natural tendency to instill in the minds
of employees fear of discrimination on the basis of the information the
employer has obtained." N.LR.B. v. West Coast Casket Company. Inc.. 205
F.2d 902. 904 (9th Cir. 1953).
"The job description for quality control leader reads as follows:
TITLE: QUALITY CONTROL LEADER
STATEMENT OF JOB
Under the direction of the Shift Supervisor, assigns and monitors the
work of in-process inspectors on the production assembly line.
DUTIES OF JOB
I. At the beginning of the shift, assigns inspectors to work stations in
accordance with supervisory instructions.
2. Assures that inspectors have the proper instruments to adequately
perform their work.
3. Assists the Quality Control Supervisor in troubleshooting line
problems that develop and takes corrective action.
4. Provides inspectors with appropriate job specifications.
5. Acts as liaison between the inspectors and the Quality Control
Supervisor.
6. Oversees the work of in-proces.inspectors.
7. Makes set up changes for new runs, assigning personnel, obtaining
specification sheets, and supplying needs.
8. Brings all problems to attention of supervisors.
1473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that during the fall of 1977 and thereafter Surdi had the
duties, responsibilities, and powers set out in the job
description of production foreman. (See fin. 10, supra. ) Surdi
received the benefits given to office, security, professional,
and supervisory employees on January 1, 1978. According to
Surdi's job description, Surdi, among other things, "[p]lands,
and maintains employee work schedules; hours, breaks,
lunch" and "[m]akes hiring-firing recommendations to
production manager." This authority is sufficient to bring
him within the definition of supervisor as defined in the Act.
In late December 1977 Surdi discussed with employees
Patricia Marfitt, Frida Albert, and Barbara Prontonentis the
benefits which the supervisors were receiving. Marfitt
credibly testified:
He was talking about sick days they were getting.
They were getting a shift differential. There was a
difference in vacation pay, things that we had hoped for
from the union and he said we would have gotten these,
but Mr. Benedict could not offer them at that time due
to the union election coming up, but that after the
union lost, we would be getting those things.
Again in December 1977 Surdi conversed with Marfitt.
Surdi said that "Mr. Bennett didn't need the aggravation. He
had enough money and he would just close the place." On
another occasion in October 1977 Surdi told Marfitt and
Albert that "if the union got in, the old man would close the
doors." On December 10, 1977, Surdi told Marfitt and
Albert that "if Mr. Bennett lost the election and the union
won it, that the company would move, close down and if the
union lost and Mr. Bennett won, that Mr. Bennett would
give [the employees] all good benefits that we needed ...
that [the employees] didn't need a union in here."
In January 1978 Surdi said to employee William Frank
Tweedie that "Mr. Bennett was an old time 'Guinea' and
was not about to let the union run his company and he
would close down before he would allow the union in."
Surdi denied the foregoing testimony. His denials are not
credited. Surdi's credibility is suspect because he testified
that he did not think that Bennett had mentioned at an
employees' meeting (see infra ) the word "union," whereas
Bennett testified that he said to the employees, "You could
vote for the union if you don't like what we have."
[Emphasis supplied.] Moreover, Surdi said that he talked
several times a day with employees about the Union but he
denied that he ever expressed an opinion on the subject. This
seems incredible in view of Respondent's intensive antiunion
campaign. Demeanor has also been considered in discredit-
ing him.
Since the remarks of Surdi were replete with promises of
benefits and threats of reprisals, they interfered with rights
guaranteed by Section 7 of the Act. By Surdi's remarks,
Respondent violated Section 8(a)(1) of the Act.
7. Vincent Cimino: Cimino was a production supervisor
"in charge of all the foremen in charge of the girls on the
production force." On the day before the election Cimino
remarked to employee Theresa Ann DiNocola that " if the
union won the election, that he would see us all in the
'Cimino testified that he did not "recall" the incident although DiNocola
had talked to him several times. DiNocola's testimony is credited.
" Cimino admitted saying. "Don't f-me." He did not specifically deny the
other statements attributed to him. Tice is credited in this respect.
unemployment line within six months because the factory
would be closed." DiNocola replied, "[I]f he wanted a ride, I
would pick him up on the way to the unemployment office."
He responded, "[H]a, ha, O.K."'"
On February 4, 1978, Cimino came to the work station of
employee James Richard Tice and said, "Jim, don't try and
fuck with me." Tice replied, "Mr. Cimino, I'm not trying to
fuck anybody." Continuing, Cimino said, "I would have
fired you a long time ago except that you are a pretty good
worker .... you do a good job. .... from now on I don't
want to see you talking to anybody. I just want you to do
your job. Don't talk to anybody about anything."'"
Cimino's restrictions placed on Tice and the threats
expressed to DiNocola interfered with the employees"
Section 7 rights and were in violation of Section 8(a)(1) of
the Act.
8. Mike Diaz: Diaz was the maintenance manager. Diaz'
remarks to employee Julio Del Popolo that he "must go
against the union. If you go in, the mechanics be in trouble
. . [b]ecause they evaluate the mechanics and they find a
way to put on trouble," is not considered to amount to a
violation of Section 8(a)(1) of the Act.
9. Steven Foderaro: Foderaro was the C-Shift superinten-
dent. He testified that an employee had a 10- by 16-inch
"vote yes" sign pasted on her back. According to Foderaro
the sign was causing a distraction and "for safety's sake [he]
asked her to remove it so she wouldn't cause a distraction in
other lines and her line." Employees in the plant were
adorned with "Yes" and "No" buttons without Respon-
dent's interference.
I credit Foderaro's reason for directing the removal of the
sign and find no violation.
In January 1978 when Foderaro was discussing "what the
company people were going to get" with employees Stanley,
Eric Wagner, Don Buslin, and Charlie Wheeler, he said that
"if the union doesn't get in that is what Mr. Bennett is going
to give [the employees]." Foderaro's remark, a promise of a
benefit, was in violation of Section 8(a)(1) of the Act.
10. Arturo Campos: In March 1978 Campos talked to
James Richard Tice next to the timeclock in regard to his
having heard that he and "another kid were talking union
during working hours." Campos said, "Jim, you're a good
worker .... you come up to me all the time asking for
work, for overtime, and I appreciate that, but I don't want
you talking union while I give you overtime." Tice admitted
that he had "talked union" but insisted that it did not occur
while he was doing his job. Campos repeated, "if you're
going to work overtime, you're not going to talk union."
Campos' threat of a reprisal directed to James Richard
Tice interfered with the Section 7 rights of employees and
violated Section 7 of the Act. The testimony of Tice is
credited.
11. Fred M. MacGregor, Jr.: MacGregor was the vice
president of operations. During the election campaign he
held meetings of 15 or 20 employees in a conference room at
which he extemporaneously expressed views regarding the
election issues."
" MacGregor testified. "we had to reach all of the employees."
1474
FLUID PACKAGING COMPANY
Employee Edward Joseph Stanley testified that at one of
these meetings he heard MacGregor say that "if the union
does get in. Mr. Bennett is an old man, that he'll put a
padlock on the front door and close the plant down .... "
Since a remark of like import had been made by other
supervisors and even President Bennett, it is highly likely
that MacGregor made the remark. Stanley is credited. The
remark obviously was a violation of Section 8(a)(l) of the
Act.
12. Edmund D. Bennett: President Bennett's signature
appears on several letters which were distributed to the
employees during the election campaign. A letter (G.C. Exh.
9) signed by Bennett and dated December 9, 1977, read in
part:
You know very well that at a bargaining table
bargaining starts from scratch. There may be improve-
ments in these areas. things may stay the same, and, as
long as the company bargains in good faith, they may
even be reduced.'"
Another letter (C.P. Exh. 7) addressed to "Dear Fluid
Employees" (Bennett denied that the signature thereon was
his signature) ended, "We therefore urge you to stay with
the winner and vote 'No' on February 9th. Remember, even
if you sign a union card you can still vote No."
In addition to subscribing to letters addressed to employ-
ees, Bennett held several voluntary employee meetings. At
one meeting held between shifts, President Bennett pleaded
for the employees to give him one more chance, "Just one
more chance to make his family a better place for everyone
to work." Among other things he said that "if the union gets
in he'll close the plant."
After the meeting employee DiNocola "ran into" Bennett
who said to her, among other things. that "if the union gets
in, he will close the plant.""'
On the night before the election Bennett also addressed a
group of employees ("like 100") in the cafeteria. Bennett
warned the employees that "[i]f the union win, he close the
plant .... [a]nd everybody go to unemployment." -
Bennett was not a reliable witness. Bennett insisted that he
had "absolutely no involvement whatsoever" in the union
campaign, yet he addressed several employee audiences and
subscribed to letters sent to employees. Moreover, Bennett
was asked whether he had instructed others to arrange the
employee meetings; he answered, "Yes, this was part of the
plan." Notwithstanding, Bennett, who was apparently at-
tempting to downgrade his involvement in the union
campaign, immediately caught the "slip of tongue" and
"In a publication by Respondent during the union campaign called "The
Uglier Consequences of Union Membership." a similar paragraph appeared:
If the union gets in. the company and the union bargain in good faith.
However bargaining starts from scratch. At the bargaining table we start
with a blank piece of paper. None of the present benefits would be
guaranteed. And if the company and the union could not get together it
might mean a long strike since a strike is the only way unions can try to
force an employer to do something it doesn't want to do. And whether
Fluid could ever recoup rom such a strike would be questionable.
These paragraphs alluding to "start from scratch" bargaining contain obvious
unfair labor practices. Plastrmnics. Inc.. 233 NLRB 155 (1977): Dominican
Santa Cruz Ho.pital. 242 NLRB 1107 (1979).
Since Bennett did not deny this incident it is credited as having occurred.
:Bennett testified: "No. I'm sorry. that wasn't it."
The General Counsel plants its alleged (aXi) violation involving
Richard Steinberg on Steinberg's testimony as follows:
altered his testimony." I do not credit Bennett's denials.
Demeanor has been considered.
Bennett's threat to close the plant if the Union emerged
the winner in the election was in violation of Section 8(a)( )
of the Act.:'
13. Restrictions placed on the distribution of union leaflets
in the Respondent's lobby, a nonwork area: On a "cold and
rainy day" in January (January 13, 1978), Donna Witten-
berg and Josephine Wright were distributing union leaflets'
in Respondent's lobby to employees as they appeared for
work prior to the commencement of the 7 a.m. shift.
Campos approached them around 6:50 a.m. and told Wright
that she "could not give out leaflets inside the building."
(The lobby was a nonwork area.) When Wright asked
Campos why it was prohibited, stating that it was their right,
that it was before working hours, Compos answered that the
"Company did not allow it," and that she "could give them
out outside the gate, but not inside the building." Robert
James Tice, Jr., took the leaflets and attempted to distribute
them in the lobby. Compos remarked, "I told you you can't
pass the petitions out in the plant." He ordered Tice, Jr., to
leave. Tice, Jr., left, followed by a security guard. He
continued passing out the leaflets until he reached the gate.
Campos admitted that the incident occurred.
On the same day Campos called Tice Jr. to his office and
asked him whether he had been passing out union leaflets on
company time. Tice, Jr., answered that he had not distribut-
ed union leaflets on company time. Campos said that he
"didn't want [him] passing out leaflets on company time."
Campos admitted that this incident occurred.
Respondent's no-distribution rule (see supra ) does not
cover nonworking areas. Since there is no credible proof that
the lobby was a working area or that the distribution of the
union petition interfered with production or discipline, or
that there was any other business justification for the
restriction, the restriction placed on the Union's leafleteers
interfered with employees' Section 7 rights and was in
violation of Section 8(a)(1) of the Act. See The Times
Publishing Company, 231 NLRB 207 (1977).
B. The Alleged 8(a)(3) Violations
1. The discharge of Robert James Tice, Jr.
Robert James Tice, Jr., aged 21, was hired by Respondent
on October 24, 1977, and discharged during his 60-day
probationary period on January 24, 1978. His brother, James
Richard Tice, aged 19, also worked for Respondent. Both
Q. Do you recall in December of'77 telling him [John Murphy] that if
the union gets in. a lot of the companies who deal with Fluid might be
pulling out?
A. I may have made that remark.
Q. And do you recall telling him. Mr. Steinberg. that Mr. Bennett
would close the plant if the union won?
A. I may have.
Q. Do you recall giving an affidavit-your testimony is that you may
have?
A It's ver) possible, yes.
The probative weight of this testimony is not sufficient to sustain the
General Counsel's allegation. This allegation is dismissed.
The leaflets were petitions requesting reinstatement of several discharged
employees.
1475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tices were active in the union campaign. Tice Jr. signed an
authorization card for the Union and attended 12 or 13
union meetings. As noted above, on January 13, 1978, he
was unlawfully evicted from the lobby for passing out union
leaflets. On the same day he was warned by Campos that
Campos did not want him passing out union leaflets on
company time. The record is clear that Respondent knew
that he was a union partisan and active for the Union in the
election campaign.
Tice Jr. had received no written warnings in connection
with his work; however, Campos claimed that he had
verbally warned him on December 19, 1977, and on January
11, 1978. He denied that he had received these warnings. In
this respect his testimony is credited even though Respon-
dent's attendance records of Tice Jr. contain entries of
warnings on these dates. One entry (1/1 1/78) contains the
words "warned by V. Cimino and I. Not on work station."
(G.C. Exh. 7(a)) Campos testified that Cimino had reported
to him that Tice, Jr., had a "tendency to leave work."
Cimino not only did not testify that he had reported to
Campos that Tice Jr. had "a tendency to leave work" but he
did not testify that any of his supervisors had reported to
him that Tice, Jr., had "a tendency to leave work."
Regarding Tice Jr.'s work habits Cimino testified he was
told by Nelson that Tice Jr. "wasn't doing his job properly
and there was glass on the floor and a little horsing around."
Cimino also testified that he had observed Tice Jr. "a few
times" "not doing his job properly" and he "told the
foreman about it." (". . . at the end of the line where they
palletize, he wasn't palletizing right and he wasn't keeping
up with the line.") Nothing was said about Tice Jr. leaving
his work station. Moreover, Cimino did not testify that he
warned Tice Jr. for being absent from his work station as the
attendance records reveal. In view of Cimino's testimony
and Campos' lack of credibility I deem the entries on Tice
Jr.'s attendance records to be later fabrications."
The written reason stated for the dischare of Tice Jr. was:
"Terminated, will not have made it through probationary
period." Campos personally discharged Tice Jr. He testified
that he based the discharge on information he had received
from Cimino that Tice Jr. "had a tendency to leave the work
station without permission from his supervisors."24 Campos
testified that he had received no complaints about Tice Jr.
after January 11, 1978. His probationary period expired on
February 3, 1979.2'
According to Tice Jr. the day before he was fired he
received a warning from Cimino for leaving the line. He had
received no warnings prior to that time for leaving the line
or any other warnings relating to his work. At the time of
" Indeed, the charge of leaving the line has all the earmarks of a fabricated
defense because retired Foreman lacullo testified: "I didn't see him leave the
line, because he probably seen me coming." Four questions later, he,
nevertheless, contradicted himself saying, "Oh, I seen him leaving the line a
lot of times." Query: Could lacullo for a moment have forgotten what
Respondent's defense was?
"' Campos testified that "basically" the reason for the discharge was
'leaving his work station, he wasn't doing his work."
Q. So your testimony is that the only reason that he was discharged
was because you had a complaint that he left his work station?
A. Too often.
' Campos was asked: "Why did you take from the o10th to the 24th to
decide to terminate him [Tice Jr.]?
the Cimino warning, Tice Jr. had left the line to obtain some
ink. His supervisor was absent at the time, and the ink
supply was exhausted. Cimino saw him away from the line
and told him if he ever saw him "off the line again, he would
keep it in mind for future time and maybe reprimand [him]."
Tice Jr. explained his reason for leaving the line. Cimino
replied that he should have received permission from his
supervisor. This was the first and only occasion that Cimino
had spoken to Tice Jr.
On January 22, 1978, when Tice Jr. was about to punch
out, he found his timecard missing. He went into the office
where he met Campos, who said he wanted to speak to him
in his office. In Campos' office Tice Jr. inquired about his
missing timecard. Campos replied that he wanted to speak to
him as his probationary period was coming to an end. He
said, "we are going to evaluate you before you have any
further time at Fluid."2 " Campos said that he "had been
receiving complaints from [his] supervisors, that [he] was
leaving the line all the time." Tice Jr. responded that he was
not leaving the line all the time and that his supervisors
"never told [him] about it," and pointed out to Campos that
it was "impossible for [him] to leave the line" when it was
running without someone to take his place. Tice Jr. further
said that if Campos could get all his supervisors together and
bring them
After he was fired Tice Jr., followed by Campos, went
back into the plant to retrieve a comb. Fran Wood and
Marco Guerro, his supervisors, were still there. He asked
them whether they had told Campos that he was leaving the
line all the time. They both replied "No." He left the plant in
an angry mood.
After Tice Jr. was discharged, J. Tice asked Rick Nelson,
his brother's remaining supervisor, if he "ever sent in a
complaint or [went] down to the office and complain about
[his] brother Bobby." Nelson replied that he had complained
about Tice Jr. on one occasion but it had nothing to do
"with his leaving the line or being lazy or not doing his job."
The day before Tice Jr. was fired, Supervisor Tony lacullo
told Tice, Jr., that he knew that he had "been doing a good
job on the Tickle line."
According to J. Tice, Campos observed to him that his
brother had "a short temper and he was real quick to fly off
the handle."
The credible record reveals that Respondent was antiun-
ion and strove, even with the use of the unfair labor
practices, to defeat the Union's aspiration to represent its
employees. Tice Jr. was a victim of Respondent's determina-
tion to oust the Union from the plant. The basic reason
advanced for Tice Jr.'s discharge (Cimino's alleged report to
A. Don't forget he is on probation. We have a 60 day probationary
period at the plant to evaluate the employee based on recommendation,
based upon complaints of his supervisors.
Campos' evasive answers did not contribute to a credibility finding in his
favor.
~ Respondent's handbook provided in respect to probationary employees:
New employees of the Company shall be considered Probationary
Employees until they have accrued 60-8 hour regular workdays. At that
time they will be reviewed for their work habits and attendance. into the
office, he could "refute it." After an approximately 40-minute discussion
during which Tice Jr. maintained his innocence, Campos terminated him.
During the discussion Campos did not disclose which supervisors had
complained about him. He said, "I am not at liberty to tell you that."
1476
FLUID PACKAGING COMPANY
Campos), was used as a pretext which apparently surfaced
after his discharge. None of his supervisors prior to his
discharge had reported to Campos that he had been away
from the line "all the time." Indeed, the incident involving
Cimino which occurred the day before his discharge could
not have come to Campos' attention prior to the discharge
because Campos testified that he had received no reports in
regard to any misconduct of Tice Jr. after January 11, 1978,
the date on which he claimed he issued Tice Jr. a verbal
warning. Although Campos claimed that he had adminis-
tered two verbal warnings to Tice Jr., this testimony is
discredited. Campos did, nevertheless, speak to Tice Jr. on at
least two occasions: one to order him out of the lobby with
his union leafleting and the other to warn him not to pass
out union messages on company time.
The facts support a conclusion that the "real motive"' for
Respondent's discharge of Tice Jr. was to discourage
membership in a labor organization.
It is found that the discharge of Tice Jr. would not have
been effected but for his union affection, that union animus
was the real reason for his discharge." Thus, by discharging
Tice Jr. on January 24, 1978, Respondent violated Section
8(a)(3) and ()of the Act.
2. The discharge of Daniel Malay
Daniel Malay was hired on October 12, 1974, and last
worked on December 2, 1977. Malay was one of the early
union card signers and immediately became active in
soliciting employee signatures for union authorization cards.
He signed between 50 and 70 employees; 8 or 9 were in his
department. Some of these employees were solicited in the
plant cafeteria. Malay was also a member of the union in-
plant committee, attended union meetings, and made house
calls. After Malay's separation from employment, he passed
out union leaflets at the plant and his picture appeared in a
union publication on February 8, 1978.
Prior to Malay's separation from employment, Frank
Loomis, supervisor of quality control (Loomis did not
testify), came to Malay's office. Malay described the visit:
[ilt came to his attention that I was active in Union
activities and I asked him, I said, "Did you ever see me
doing anything?", and he says, "No, it just has been
brought to my attention." And he says, "Unless it's
done at lunchtime, break time or after work, it's subject
for dismissal."
Malay's job was that of incoming quality control inspector
in the incoming quality control section. Around seven
employees worked in the section. Malay held the greatest
'' As the Court stated: "[T]he 'real motive' of the employer in an alleged
Section 8(a)(3) violation is decisive...." N.L.R.B. v. John Brown. d/b/a
Brown Food Store. et a. 380 U.S. 278, 287 (1965).
:' The Seventh Circuit Court of Appeals stated: "'A]scertaining the
motivation for the discharges is a factual determination .... N.LR.B. v.
Townhouse T. V A Appliances, Inc.. 531 F.2d 826, 829 (7th Cir. 1976).
!" On the subject of seniority Respondent's handbook provided:
CONTINUOUS SERVICE
I. Seniority shall be considered as the length of an employee's
continuous service with the Company and continuous service shall mean
a period of service not interrupted by removal from the Company's
payroll records.
seniority in the section. ' ' Malay described his duties as
follows:
My duties were to pick up the samples that the line
inspectors pulled and take them back to the office,
package them up and ship them out to the customers
either by on trucks or U.P.S., and ship them out to all
the different customers, the samples that we ran during
the day and night. And when I was finished, if they
needed a hand on the trucks, I would go out and help
them pull samples off the trucks.
Malay was not proven to be an unsatisfactory worker.
Around 1:30 p.m. on December 2, 1977, Malay received a
call from Karyn Mattos (Carlson)"' that Campos wanted to
see him. When he arrived in Campos' presence Campos told
him, "I have to lay you off on account of lack of work."
Malay protested that he was a "senior man." Campos
responded that Maley had volunteered to be laid off before.
Malay replied, "I'm not volunteering today," and reminded
Campos that he had seniority over Thomas G. Walsh and
Gary Galietti and "even the rest of the girls upstairs."
Campos responded that "this is the way" Mattos, Loomis,
and MacGregor "wants it." Campos added that Oswaldo
Aguire was going to do Malay's job "between his own job"
but that he did not think it would work out because Oswaldo
had enough work to do himself and Malay "should be called
back in a day or two."
Campos then said, "we're going to pay you until 3:30; I'll
sign your card." Malay was escorted out of the plant to the
guardhouse where he was permitted to wait until 3:30 p.m.
for his ride.
During the conversation Malay reminded Campos that he
had trained Walsh and Galietti. Malay also asked Campos
whether he was letting him go because of his union activities.
Campos answered, "No."
Malay also reminded Campos that he was working on an
order which would be picked up at 3 o'clock and that he
would have to finsh the job. Campos called Loomis and
Mattos, who informed Campos they would get someone else
to finish the job. Other was also pending.
On December 2, 1977, 80 employees were laid off. None
was treated in the same manner as Malay, nor is there any
credible evidence that any employees were laid off before the
shift ended in the middle of a job as was Malay.
Malay had performed the job of Walsh and Galietti for
the first 1-1/2 years that he was employed by Respondent.
At 3:30 p.m. when Walsh and Galietti appeared at the
gate, they told Malay that it was "all over the place that [he]
was fired." Malay telephoned Campos and reported the
story. Campos asked, "Who said that." Malay replied,
2. Since it is the general purpose of Fluid to assure the continuous.
harmonious. efficient. economical. and profitable operation of the plant.
it is the desire of Fluid to give regular employees fullest consideration as
opportunities may be presented to them. In recognition of the responsibil-
ities of management to protect the interest of the employee who is laid
off, recalled. or promoted. the factors to be considered in the lay-off.
recall, or promotion of an individual shall he the following:
a. Ability to perform the work available
b. Length ofcontinuous service.
c. The physical fitness of the indiv idual to do the job.
"' Karyn Mattos was recently married to William Carlson.
1477
I)ECISIONS OF NATIONAL LABOR RELATIONS BO()ARDI
"Well, Karyn [Mattos] had walked down and told Tom and
Gary that, 'We finally got rid of the troublemaker, he's
terminated.'" Campos answered, "Well, I will call Karyn.
She doesn't know what she's talking about." Campos agreed
that Malay had reported to him that the rumors were that he
was terminated but denied that he had mentioned the name
of Mattos.
Campos testified that he and MacGregor had make the
decision of lay off Malay. He said that MacGregor informed
him that, "We're going to be eliminating or consolidating
the mailroom job [Malay's job] with two of the quality
control employees." Malay's job was "split" between em-
ployees Rose Sciarappa and Oswaldo Aguire.
Campos explained:
[t]here was a conclusion to split or to consolidate the
job between these two particular employees, so if there
were too many labels to be inspected or to be put on the
line, then Oswaldo couldn't do it, so Rose had to do it.
By the same token, Rose would be doing something,
would be doing the mailing job, while Oswaldo was
doing the labels.
Employee Joseph Kacmarcik credibly testified that he
heard "one of the boys-I think Tom Walsh, I'm not sure-
but ask Karyn how long would Danny be laid off for."
Mattos answered that "he wouldn't be back, that he was
terminated because he was a troublemaker and an instigator
for the union." Mattos denied saying to anyone after Malay
was "laid off, words to the effect that 'we finally got rid of
the troublemaker."' However, a few minutes later she
testified that she told employees Malay was "laid off because
he caused trouble in the department.""' She did not
specifically deny that the word "union instigator" was used.
Walsh testified that he did not remember the statement
attributed to Mattos; however, he did remember that Mattos
had said Malay was terminated.
Mattos had been an active antiunionist and presently was
a company foreman, thus subject to bias. Walsh was a
company employee subject to the pressure of an antiunion
employer; Campos admitted that Malay had informed him
of the rumor delivered to Walsh (that Malay had been
discharged) which to some extent verifies that Malay was
fired rather than laid off; Kacmarcik was still employed by
Respondent and no doubt it would have been to his
advantage to have lied in view of Respondent's antiunion
stance; and Campos' credibility is doubtful. These things as
well as the demeanor of the witnesses persuade me that
Mattos made the statements attributed to her.'
It is even more significant that Mattos was a supervisor
within the meaning of the Act and that her remarks may be
imputed to Respondent. However, since Respondent does
' The reason given by Mattos for Malay's separation from employment was
contradictory to that given by Campos.
' Campos' credibility is not strengthened by his testimony that he did not
know Bennett opposed the Union. Campos. the personnel director. must have
known about the speeches given by Bennett and the letters which went out
over his signature. Campos testified:
Q. (By Mr. Kelly) How about Mr. Edmund BInnett' He's president of
the Company. is that right?
A. Yes.
Q. He was opposed to the Union, wasn't he. or don't you know?
A. Do I have to answer this?
not concede her supervisory status it becomes necessary to
resolve the issue.
Employee Janet Marie Metta, prior to the discharge of
Malay, circulated a memorandum advising the incoming
inspectors that Mattos would be the "supervisor of incoming
inspection." The memorandum was prepared by Quality
Control Manager Anthony Joseph Tomaino. Malay remem-
bered acknowledging and signing a memorandum circulated
by Metta stating that "from this date on, Karyn Mattos
would be in charge of incoming quality control." Other
employees also acknowledged and signed the memorandum.
Tomaino remembered circulating a memorandum but
described it as a memorandum which informed the employ-
ees that Mattos was "elevated to a lead person and that she
essentially-would be . . . transcending my orders to the
people directly."
A memorandum from Tomaino to Herman Smith, indus-
trial relations manager, dated February 1, 1977, revealed
that Mattos was recommended for a newly created job of
"Lead Girl Incoming Inspection Quality Control." Accord-
ing to the memorandum Mattos "will be required to
supervise 5 people." (G.C. Exh. 34(d).). Smith noted, "It
should be emphasized that this is a promotion raise to the
newly created supervisory job, not merely a merit increase."
(G.C. Exh. 34(c).)
As of January 1, 1978, Mattos was promoted to quality
control foreman by Loomis. Her investiture of powers
(Resp. Exh. 8) read:
In addition to her regular responsibilities for the
sampling and inspection of incoming components and
for the control of QC sample mailings, Karyn's respon-
sibilities have been expanded to include label room
control, QC record keeping, component and product
quarantine, and to include assistance in investigating
component related problems during line runs.
This language clearly manifests that the same responsibilities
which were given her as an alleged lead person in incoming
quality control were expanded to include other sections
which, of course, must mean that she had already been
exercising the supervisory powers of a foreman in incoming
quality control. In that she had exercised the powers of a
foreman there is no question that she was a supervisor
within the meaning of the Act. (see supra.)
Other indicia establish that she was acting as a supervisor
within the meaning of the Act before she received the title of
foreman. Tomaino testified that when he made Mattos a lead
person it was "to be my eyes" when I couldn't be present
myself," and he relied on her to handle the inspection in that
department "[a]s far as the work load was concerned." He
said that employees "would do what she told them to do."
Q. Yes.
A. I don't know.
MR. DI: MARIA: Do you know?
Titt WIINI S: I don't know that
Q. (By Mr. Kelly) You don't know that?
A (shrugging shoulders.)
Q. You never talked to Mr. Bennett about the Union?
A. I would say no.
Q. No?
A. No.
"Tomaino testified that it was an "impossible task" for him to keep his
"eye" aon the 35 to 55 people who worked for him.
1478
FLUID PACKAGING COMPANY
Mattos (prior to the discharge of Malay) took Loomis'
place several times at scheduling meetings. She also assigned
work to the employees. On one occasion Malay requested a
day off from Loomis: Loomis told Malay to check with
Mattos, who granted the day off. Walsh was also granted a
day off by Mattos. On another occasion she caused Malay to
be reprimanded by Loomis for not following her orders.
Mattos assigned overtime and signed timecards. On another
occasion Mattos "knocked down" a transfer of an employee
into incoming quality control. She remarked to Walsh and
Galietti, "I'm your boss and you'll do things the way I want
them done." In Respondent's incoming plant telephone
directory Mattos was listed as "incoming supervisor," (G.C.
Exh. 33). and on a telephone list as "supervisor, incoming
insp., quality control." (G.C. Exh. 13). '
Walsh testified that Mattos reprimanded him if she found
"something wrong" in his work. Walsh conceded that
Mattos "acted like she was a boss."
In view of the authority Mattos exercised, detailed above,
she was plainly a supervisor within the meaning of the Act.
(Cf. Dennis C. Ehrhardt d/b/a Amnericrafi Manufacturing,
242 NLRB 1312, fn. I (1979), wherein it is stated that
"Respondent's owner informed the employees that Reichl-
ing was in charge of the department in which he worked.
Consequently, we find that Reichling was Respondent's
agent.")
As noted. I am convinced that Mattos made the state-
ments attributed to her and that the statements speak the
truth. The discharge of Malay was an accommodation of
Respondent's antiunion stance, and its objective was to
discourage affection for the Union. Had Respondent been
acting in good faith, it would have offered Malay, in
accordance with its seniority layoff policy, either the job of
Walsh or Galietti, whom Malay had trained and whose job
Malay had filled previously. In this respect Campos'
evasiveness and lack of good faith show in his answer to the
question as to why he did not offer Malay another job." I
deem the consolidation of Malay's job as a pretext utilized to
cloak Malay's alleged layoff with seeming legitimacy. '"
I find that Malay was wrongfully discharged on December
2, 1977, and that such discharge violated Section 8(a)(1) and
(3) of the Act.
Having found that Respondent engaged in violations of
Section 8(a)(1) and (3) of the Act during the critical election
campaign period," I find that Respondent unlawfully
interfered with the employees' exercise of a free choice for or
against a bargaining representative. "Conduct violative of
Section 8(a)(I) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
Robert Rorabaugh. whom I have found to be a supervisor within the
meaning of the Act. was listed as "supervisor processing.
Campos testified:
JutIIxt GOERI.ICH: How come you didn't offer him some other job?
THE WITNESS: Because he was hired to do the mailing room job and-
JillX;l GOIl:I ICH: He was what?
THI WITNISS: He was hired and he was doing the mailing room job.
and prior to that, he refused to go and do the work outside.
JIXI GOIRI I(H: Well. did you inquire of him on that occasion
whether he would do the work on the outside?
Tit WI I NlS: No. I didn'l.
As the courts have staled
"It is well settlled hal the mere existence of a valid ground for discharge
election." Dal-Tex Optical Company. Inc.. 137 NLRB 1782,
1786 (1962); Concord Furniture Industries Itc. d/b/a
Bradjbrd Furniture Comnpany. 241 NLRB 643 (1979); GTE
Automatic Electric, Inc. 196 NLRB 902 (1972).
I further find that, by reason of the unlawful interference,
the election conducted on February 9, 1978, should be set
aside and held for naught.' "If an election were won by the
employer through illegal conduct and in violation of law, the
union was wronged and it had a right to have such an
election set aside." N.L.R.B. v. Plaskolite. Inc.. 309 F.2d
788, 790 (6th Cir. 1962). "
CONCI.USIONS 01 LAW
I. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and it will effectuate
the policies of the Act for jurisdiction to be exercised herein.
3. By interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed them by Section 7 of
the Act, Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1 ) of the Act.
4. By unlawfully discharging Daniel Malay on December
2, 1977, and Robert James Tice, Jr., on January 24, 1978,
and refusing to thereafter reinstate them, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (I) of the Act.
5. By unlawfully prohibiting employees from distributing
union literature in the plant lobby, Respondent violated
Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondent unlawfully interfered with the representa-
tion election held on February 9, 1978; said election should
be vacated.
THI: REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It also having
been found that Respondent unlawfully discharged Daniel
Malay and Robert James Tice, Jr., on December 2, 1977,
and January 24, 1978, respectively, and has since failed and
refused to reinstate them, in violation of Section 8(a)(3) of
the Act, it is recommended that Respondent remedy such
is no defense to an unfair labor practice charge if such ground was a
pretext and miot he moving cause." It must be shown, however. that the
improper motive-union activity-is the dominant reason for the
discharge .... " N.LR.B. v. Pion,'er Plaitics Corporation. 379 F.2d 311.
307 (Ist Cir. 1967).
[A] business reason cannot be used as a pretext for a discriminatory
firing. ,.L.R.B. v. .yer Lar Sanitariun, 43b F.2d 45.50 (9th Cir. 1970).
See The Ideal Electric and Mantujficur/ng Company. 134 NLRB 1275
(1961).
" The petition for the election was filed on December 1. 1977.
The evidence offered by the Charging Party to support its objections to
the election, i.e.. "During the election supervisors and agents of the employer
openly campaigned in the polling area." is insufficient and such objection is
dismissed. Cf. Milcher. Inc.. 170 NLRB 3h2 (1968).
1479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful conduct. In accordance with Board policy, it is
recommended that Respondent offer the foregoing employ-
ees immediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed. dismissing if
necessary any employees hired on or since the dates of their
discharges to fill any of said positions, and make them whole
for any loss of earnings that they may have suffered by
reason of Respondent's acts herein detailed, by payment to
them of a sum of money equal to the amount they would
have earned from the date of their unlawful discharge to the
date of an offer of reinstatement, less net earnings during
such period, with interest thereon, to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation. 231 NLRB 651 (1977).4"
Additionally, because Respondent's unfair labor practices
go to the very heart of the Act, a broad order requiring
Respondent to cease and desist from in any other manner
infringing on rights guaranteed to its employees by Section 7
of the Act is recommended. N.L.R.B. v. Entwistle Manufac-
turing Co., 120 F.2d 532 (4th Cir. 1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER"
The Respondent, Fluid Packaging Company, Inc., Lake-
wood, New Jersey, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging union or concerted activities of its
employees or their membership in International Union of
Electrical, Radio & Machine Workers, AFL-CIO, or any
other labor organization, by unlawfully and discriminatorily
discharging its employees or discriminating in any other
manner with respect to their hire or tenure of employment
or any term or condition of employment in violation of
Section 8(a)(3) and (I) of the Act.
(b) Unlawfully interrogating employees regarding their
union or other concerted activities.
(c) Unlawfully threatening to move or close its Lakewood,
New Jersey, plant if the Union is the bargaining representa-
tive.
(d) Unlawfully creating the impression that it is spying on
its employees' union activities.
'"See, generally. Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
"In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purpose.
(e) Unlawfully threatening its employees with reprisals or
the withdrawing of benefits if the Union is the bargaining
representative.
(f) Unlawfully promising benefits if its employees vote
against the Union.
(g) Unlawfully prohibiting employees from distributing
union literature in Respondent's lobby or other nonwork
areas.
(h) In any other manner interfering with, restraining, or
coercing any employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor
Relations Act, as amended, to engage in self-organization, to
bargain collectively through a representative of their own
choosing, to act together for collective bargaining or other
mutual aid or protection, or to refrain from any and all these
things.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Daniel Malay and Robert James Tice, Jr.,
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, discharging, if
necessary, any employees hired to replace them, and make
them whole for any loss of pay they may have suffered by
reason of Respondent's unlawful discharge of them in
accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Lakewood, New Jersey, plant copies of the
attached notice marked "Appendix." Copies of said notice,
on forms provided by the Regional Director for Region 4,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice regarding "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."
1480
FLUID PACKAGING COMPANY
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act other
than those found in this Decision.'
" Without objection the documents submitted with the letter of the
Respondent's counsel dated July 12, 1979, are admitted in the record as Resp.
Exh. 10.
IT IS FURTHER RECOMMENDED that the election held on
February 9, 1978, be vacated and set aside and a new
election be ordered in conformity with the Board's practices.
1481