Gem Urethane Corp.

National Labor Relations Board - Board Decisions

Jul 27, 1987

284 N.L.R.B. 1349 (N.L.R.B. 1987)

GEM URETHANE CORP. 1349
Gem Urethane Corp. and Upstate New York District
Council, International Ladies' Garment Work-
ers' Union, AFL-CIO. Cases 3-CA-8945, 3-
CA-9110, and 3-CA-9216
27 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1981 Administrative Law Judge Karl
H. Buschmann issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions and supporting briefs,
and the Charging Party and the Respondent filed
reply briefs.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent with this
'Decision and Order.3
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 In agreement with the judge, we find that the overly broad "no solic-
itation rule" posted by the Respondent on 15 February 1979 violated Sec.
8(a)(1). See Our Way, Inc., 268 NLRB 394 (1983). In addition, for reasons
stated in his decision, we affirm the judge's finding of the following vio-
lations of Sec. 8(aXI): (1) Supervisor Bill Sasso's promise of benefits to
Miguel Matos on 25 January 1979 if Matos spoke out in behalf of the
Respondent; (2) Production Manager Philip Baker's conversation with
employee Luis Lozada on 6 February 1979 during which Baker threat-
ened a loss of benefits and revealed the Respondent's intent to litigate if
the Union won the election; and (3) the Respondent's grant of wage in-
creases to a majority of its production and maintenance employees, effec-
tive 5 February 1979. With respect to the unlawful wage increase, we
find that the evidence is sufficient to establish the violation without rely-
ing on the comments of Luis Lopez to employee Lozada about the wage
increases. Finally, we agree with the judge's conclusion that the follow-
ing exchange between Supervisor Sasso and employee Matos, an open
union adherent, constituted an unlawful interrogation. Sasso said, "Some-
body told me, you're the leader of the union, you're pushing to get a
union inside the plant." Matos denied that he was the leader and Sasso
said, "Somebody told me, you're the leader. . . I don't know why they
want a union. The lazy guys they don't like to work that's why they
want a union." When Mates then responded, "I know who did it, who
started it," Sasso replied, "I don't want you to tell me ... we appreciate
whatever you say for us, and we know you are a good worker." Not-
withstanding that Mates was an open supporter of the Union and that
Sasso disclaimed interest in having Matos reveal the names of other union
leaders, we find that Sasso's insistence that Mates was the leader, in the
face of Matos' denial, constituted coercive circumstances which rendered
Sasso's remarks unlawful under the prmciples of Rossmore House, 269
NLRB 1176 (1984). This is particularly evident in Matos' willingness,
after the second accusation by Sasso, to give the name of the leader of
the union activity.
3 In his recommended Order the judge ordered the Respondent to
cease and desist from violating the Act "in any other manner." The
Board held in Hickmott Foods, 242 NLRB 1357 (1979), that this broad
language is warranted only in cases where "a respondent is shown to
have a proclivity to violate the Act, or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the em-
ployees' fundamental statutory rights." Considering the Respondent's
unfair labor practices in light of this standard, we conclude that a broad
I. STATUS OF LUIS LOPEZ
The judge found that Luis Lopez had no author-
ity to fire, transfer, suspend, layoff, recall, promote,
discharge, reward, or discipline other employees.
Based on his authority to assign work and to evalu-
ate work performance, however, the judge con-
cluded that Lopez was a supervisor. The Respond-
ent contends, and we agree, that the record does
not support this conclusion.
Lopez held the title of "supervisor" in the Re-
spondent's inspection department where the em-
ployees inspected, cut, and packed for delivery the
materials the Respondent manufactured. Every day
before starting work, Lopez received his work
orders from Vice President Klaus Beckmann or
from Production Manager Bill Sasso when Beck-
mann was absent. He then would assign work to
the other employees. In this regard, Lopez assigned
the type of material to be cut, the inspection to be
performed, and the material to be wrapped. He
watched the employees work, pointed out their
mistakes, and instructed them to correct their mis-
takes. Lopez informed Beckmann of the work per-
formance of the department employees.
On these facts alone, the judge found sufficient
indication of Lopez' supervisory status. We dis-
agree. With respect to authority to assign work, it
is well settled that the Board will fmd no supervi-
sory status where direction involves nothing more
than the routine assignment of work. 4 Similarly,
the authority to evaluate work performance is not
evidence of supervisory status if it is subject to in-
dependent investigation and decision by others.5
Here the record reveals that Lopez' direction
and evaluation of work do not raise him to supervi-
sory status. The work in the inspection department
is unskilled and routine. There is essentially no
change in the work from day to day. In these cir-
cumstances, Lopez' assignment of work does not
show the exercise of independent judgment, a pre-
requisite to a finding of supervisory status. Nor
does the record show that Lopez' evaluation of
work performance was an exercise of independent
judgment. Although Lopez instructed employees to
correct mistakes, there is no evidence that this was
anything more than routine directions given by a
more experienced worker. By the same token,
there is no evidence that Lopez' reports on em-
ployees' work performance were relied on. Ac-
cordingly, we find that Lopez was not a supervi-
order is not appropriate in this case Accordingly, we shall order the Re-
spondent to cease and desist from violating the Act "in any like or relat-
ed manner."
4 See, e.g., House of Mosaics, 215 NLRB 704 (1974).
5 See, e.g., Butler's Shoe Corp., 208 NLRB 404 (1974)
284 NLRB No. 122
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sore and we dismiss those allegations in the com-
plaint based on Lopez' alleged illegal conduct.7
II. 26 JANUARY 1979 LAYOFF
On 26 January 1979 8 the Respondent laid off 23
employees. The General Counsel alleged and the
judge found that the purpose of the layoff was to
discourage membership in the Union in violation of
Section 8(a)(3). Contrary to the judge we fmd that
the 26 January layoff was not discriminatorily mo-
tivated.
The Respondent, inter alio, manufactured hand-
bags made of urethane covered fabric. Until Janu-
ary 1979 it had a virtual monopoly on the sale of
this product and controlled 80 to 90 percent of the
market. The situation changed in January 1979
when a competitor entered the urethane handbag
business and captured a significant share of what
had been the Respondent's market. The Respond-
ent contends that the 26 January layoff was a
direct result of its changed economic position.
The judge rejected the Respondent's economic
defense. Although conceding that the Respondent
had suffered a substantial economic loss in January
1979, he concluded that the documentary evidence
did not persuasively support its contention that the
layoff was motivated solely by economic consider-
ations. In so doing, he relied substantially on his
finding that the difference between the Respond-
ent's anticipated orders and its actual orders nar-
rowed immediately before the layoff. In such cir-
cumstances, the judge found that "a precipitous
move such as layoff because of the arrival of a new
competitor seemed exaggerated." Having found the
Respondent's economic defense inconclusive, the
judge inferred that the layoff was discriminatorily
motivated because, inter alia, a majority of the laid-
off employees had executed union cards, the layoff
occurred at the height of the union campaign when
the Respondent had knowledge of the employees'
union activities, the Respondent committed numer-
ous violations of Section 8(a)(1) including one su-
pervisor attributing the layoff to union activities,
and several employees were under the impression
that the layoff was union related.
6 See, e.g., Print-O-Stat, 247 NLRB 272 (1980), John Cuneo of Oklaho-
ma, 238 NLRB 1438 (1978).
7 Based on Lopez' conduct ' and statements, the judge found that the
Respondent violated Sec. 8(a)(1) by creating the impression of surveil-
lance, by an in/lawful interrogation, by threats of discharge and denial of
pay raise because of the employee's union activities, by an unlawful grant
of wage increases to dissuade union adherence, by threats to discharge
striking employees because of their participation m protected concerted
activity, by threatening to deny reinstatement to an employee because he
was a union supporter, and by promisuig benefits to an employee if he
refrained from supporting the Union. The impact of Lopez' conduct in
the transfer and denial of a wage increase to employee Lozada are dis-
cussed mfra.8 Unless otherwise stated all dates are in 1979.
Initially, we find the record does not support the
judge's findings concerning the narrowing of the
difference between anticipated and actual orders
immediately before the layoff. During the first 3
weeks of January 1979, the Respondent's sales
agent directed the Respondent to produce 80,000
more yards of fabric than was needed to fill exist-
ing orders. During the fourth week of January,
however, the sales agent learned that a competitor
had entered the market and he therefore decided to
reduce his production order by more than 60 per-
cent to compensate for the anticipated loss of sales
to the competitor. The sales agent's revised instruc-
tion closely approximated the yardage required to
fill the orders received during the fourth week and
thus, as the judge observed, the difference between
the "anticipated" and "actual" orders "narrowed
sharply" during this time. That the difference be-
tween anticipated and actual orders narrowed,
however, in no way indicates that a layoff would
be precipitous. The Respondent's lowered sales
projections based on the anticipated reduction of its
market share clearly dictated an overall lowering
of production output. 8 On this evidence, we fmd
that the Respondent has established that it had eco-
nomic reasons for the layoff.
Whether procedures other than a layoff might
have been more or equally effective in remedying
the Respondent's economic loss is not a matter the
Board is empowered to decide." The Board's au-
thority to evaluate the Respondent's business con-
duct extends only to the determination of whether
the conduct is discriminatorily motivated or other-
wise in violation of the Act. We find insufficient
evidence in the record to support the allegation
that the 26 January layoff was unlawful.
On the evidence adduced here, we find the Gen-
eral Counsel failed to establish that the Respond-
ent's layoff was discriminatorily motivated. In so
finding, we disagree with the judge's conclusion
that an inference of unlawful conduct is warranted
on the facts here. His inference was based partly
on the finding that the Respondent committed nu-
merous unfair labor practices including telling em-
ployees the layoff was due to union activities.
However, we have, for the reasons stated earlier,
9 The General Counsel contends that a comparison of the Respond-
ent's 1979 sales figures with those of early 1978 reveals that the Respond-
ent had a similar economic loss in the past but did not find it necessary to
lay off employees. Such comparison, however, is not applicable to the
January 1979 layoff, because it fails to take into account the Respondent's
increased capacity and work force in January 1979: the Respondent had
an average of 65 employees and produced 30,000 -yards of fabric each
week for the first 3 weeks of January 1977, as compared with the first 3
weeks of December 1978, when it had 86 employees and produced 60,000
to 90,000 yards of fabric a week.
iO FPC Advertising, 231 NLRB 1135, 1136 (1977).
GEM URETHANE CORP. 1351
reversed the vast majority of the judge's unfair
labor practice findings.
Furthermore, the judge's additional grounds for
inferring discrimination are not persuasive. He
relied on the timing of the layoff and the fact that
a majority of the laid-off employees had signed
union cards." Although these are factors properly
to be considered in determining whether the layoff
was unlawful, they are, in the case at bar, out-
weighed by the Respondent's economic defense.
Accordingly, we find that the 26 January layoff
was not discriminatory and dismiss the 8(a)(3) and
(1) allegations based on this action.
IH. ALLEGED ILLEGAL TREATMENT OF LUIS
LOZADA
The judge dismissed the allegations that the Re-
spondent violated Section 8(a)(3) by issuing warn-
ing notices to Luis Lozada for his tardiness on 8
February and for his absence on 9 February and by
its failure to promote Lozada to a truckdriver posi-
tion. The General Counsel excepts to the judge's
dismissal of these alleged violations and excepts to
his failure to make findings as to and to sustain the
allegation that the Respondent violated Section
8(a)(3) by denying Lozada's 19 January request for
a shift transfer. For reasons stated in his decision,
we affirm the judge's dismissal of the alleged viola-
tions based on the Respondent's warning notices to
Lozada and its alleged failure to promote him to a
truckdriver position.
As to the Respondent's denial of Lozada's shift
transfer, we find that although the judge did not
pass on that allegation his other findings and the
record as a whole demonstrate that a dismissal of
this allegation is warranted. The judge found that
the Respondent initially granted Lozada's request
for a transfer to the second shift but subsequently
denied that request on the ground that it was pre-
vented by the January layoff. On the day the re-
quest was denied, Lozada received an offer to
apply for a truckdriving job at Adirondack Knit-
ting, a subsidiary of the Respondent. Lozada later
accepted this offer and took various tests, but was
not contacted by Adirondack Knitting. The Gener-
al Counsel alleges that the denial of the shift trans-
fer and the failure to hire Loz,ada at Adirondack
Knitting were part of a scheme to remove Lozada
from the plant because of his key role in the union
campaign. The judge specifically found, however,
that there was no evidence of collusion between
11 The judge also erroneously relied on the impression of several em-
ployees that the layoff was union related. It has long been held that no
weight should be placed on the subjective reactions of employees. See,
e.g., Beaini-Poulan Division, 247 NLRB 1365, 1370 (1980); G. H. Hes%
Inc., 82 NLRB 463 fn. 3 (1949).
the Respondent and Adirondack Knitting and no
evidence on Lozada's test results. He therefore
concluded that the record did not support any con-
clusion of discrimination. We similarly fmd no evi-
dence to support the General Counsel's claim that
the Respondent's denial of a shift transfer was an
attempt to rid itself of Lozada. The absence of
such evidence or any other evidence to support the
General Counsel's position compels us to dismiss
the allegation that the Respondent denied Lozada's
request for a transfer to the second shift in viola-
tion of the Act.
The Respondent excepts to the judge's finding
that it violated Section 8(a)(3) by subsequently
transferring Lozada from the inspection department
to the printing department. We find merit in the
Respondent's exceptions. The Respondent argues,
inter alia, that the judge's decision is based on the
erroneous finding that Lozada credibly testified
that voicing a complaint about the transfer would
have endangered his continued employment. The
Respondent correctly asserts that there is no such
testimony. Absent that testimony and in light of
our earlier fmding that Lopez' comment to Lozada
with respect to the job transfer is not attributable
to the Respondent, we find that the record does
not support the allegation that Lozada was trans-
ferred to the printing department because of his
union activities.
IV. THE 27 APRIL 1979 STRIKE
On 27 April the Union called a strike. Thirty of
the Respondent's employees participated. The
strike ended on 14 June when the Union submitted
an unconditional offer to return to work. In its 27
April letter to the Respondent the Union asserted:
that the picketing is directed solely at the
unfair labor practices committed by Gem Ure-
thane Corp. This picketing is not for recogni-
tion or organization of Gem Urethane Corp.,
and the Union's staff and pickets have been so
instructed. We further wish to assure you that
the picketing at Gem Urethane Corp. will be
discontinued just as soon as the unfair labor
practices have been effectively remedied.
The strike ended on 14 June when the Union sub-
mitted an unconditional offer to return to work.
The Respondent accepted the Union's offer but
conditioned the reinstatement of 12 strikers" on
the results of its investigation into their alleged
strike misconduct. As to the other 18 employees, 4
12 Sylvester Hernandez, Carlos Montalvo, Thomas Rivera, Luis San-
tiago, Alex Zayas, Jose Pelliccia, Mariano Gonzalez, Carlos VillaIta, En-
rique Lopez, Luis Lozada, Milton Nieto, and Wilfredo Vargas.
1352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees had been reinstated before the Union's
submission of the offer to return, and the remaining
14 employees were reinstated between 25 June and
18 July.
Although we have reversed some of the judge's
unfair labor practice fmdings, we conclude that the
evidence here is sufficient to warrant a finding that
the strike resulted, at least in part, from the unfair
labor practices that we have found the Respondent
committed. In this regard, we note that 14 of the
41 unit employees received a lawful pay raise in
January. The following month, however, the Re-
spondent gave additional wage increases to a ma-
jority of the unit employees that we have found
violated Section 8(a)(1) of the Act. Critically, as
the judge stated, this second round of raises
"caused concern among some of the employees."
For this reason, we conclude that the Respondent's
unlawful conduct in granting the pay raises played
a part in the employees' decision to strike." More-
over, although not determinative, we note that the
Union's letter to the Respondent, quoted above, ex-
pressly stated that the Respondent's unfair labor
practices precipitated the strike. We therefore con-
clude that the strike was an unfair labor practice
strike from its inception and that the strikers are
entitled to the protection accorded such employees.
Further, because the Respondent delayed in rein-
stating 14 of the former unfair labor practice strik-
ers following their unconditional offer to return to
work, we also adopt the judge's finding that the
Respondent violated Section 8(a)(3) and (1) of the
Act by failing to reinstate them immediately.
V. REFUSAL TO REINSTATE 12 STRIKERS
The Respondent alleged in its 15 June response
to the Union's unconditional offer possible strike
misconduct as the basis for refusing to reinstate 12
named strikers. The alleged strike misconduct to
which the Respondent alluded was the basis for
8(b)(1)(A) charges, which it had filed on 4 May
(Case 3-CB-3408). A complaint issued on that
charge on 6 June and the 12 employees named in
the 15 June letter were also named in the com-
plaint as having engaged in misconduct. The CB
case was consolidated with the present case on 8
June but was withdrawn and severed from the in-
stant proceeding after the Regional Director ap-
proved the Union's settlement agreement with the
General Counsel.
The judge found that the Respondent relied both
on the allegations set out in the complaint in the
CB case and its own investigation of the matter in
13 See Juniata Packing Co., 182 NLRB 934 (1970) See also Bozzuio's,
Inc., 277 NLRB 977 (1985); C E Stores, 221 NLRB 1321 (1976),
Larand Leisurehes, 213 NLRB 197 (1974).
determining whether an employee had engaged in
strike misconduct. Since the CB case had been set-
tled, the judge found that the General Counsel did
not assume the burden of showing strike miscon-
duct. Instead, he found that the burden was on the
Respondent to show the basis on which it refused
reinstatement with respect to each of the 12 em-
ployees. Applying this standard to the facts sur-
rounding the alleged strike misconduct, the judge
found that the Respondent was justified in refusing
to reinstate strikers Vargas, Nieto, and Lozada, but
that the Respondent violated Section 8(a)(3) by re-
fusing to reinstate strikers Santiago, Montalvo,
Rivera, Zayas, Hernandez, Pelliccia, Villalta,
Lopez, and Gonzalez. The Respondent excepts to
the judge's finding that it violated Section 8(a)(3)
by refusing to reinstate the aforenamed strikers,
contending, inter alia, that in making his finding
the judge misallocated the burden of proof.
It is well settled, as the judge noted, that strikers
who have committed serious acts of misconduct
are not entitled to be reinstated. If an employer
raises such a ground for refusing reinstatement, the
employer must show that it had an honest belief
that the employee it refused to reinstate was guilty
of strike misconduct of a serious nature. If the em-
ployer establishes such a showing, then the General
Counsel must come forward with evidence that
either the employee did not engage in the alleged
misconduct or that the conduct was not sufficiently
serious to preclude reinstatement. "At all times, the
burden of proving discrimination is that of the
General Cotmsel." 1 4 We find the Respondent acted
in good faith and, accordingly, that the judge im-
properly allocated the burden of proof by requiring
the Respondent to prove the alleged strike miscon-
duct on which it based its refusal to reinstate the 12
strikers."
The judge's error is most evident in his treatment
of the alleged misconduct of strikers Villalta,
Lopez, and Gonzalez. He found the record con-
tained no evidence of any strike misconduct by
these employees" and therefore concluded they
should have been reinstated. In requiring the Re-
spondent to prove the basis for its refusal to rein-
state, rather than to establish an honest belief that
they engaged in serious misconduct, the judge
NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964).
15 At the hearing the Respondent attempted to subpoena the file in
Case 3-CB-3408. The General Counsel refused to produce the file and
the judge concluded that he lacked authority to order disclosure of the
file. The Respondent excepted to the judge's ruling and to his failure to
draw, an ,adverse inference from the General Counsel's refusal. In light of
our application of the valid standard of proof m determining whether the
Respondent's refusal to reinstate the 12 specified strikers violated the
Act, we find it unnecessary to pass on these exceptions.
16 None of these employees testified at the hearing.
GEM URETHANE CORP. 1353
failed to consider the complaint issued in Case 3-
CB-3408. Although the settlement of that case pre-
cludes its use as evidence of actual misconduct, it
does not preclude its providing the basis for an
honest belief that misconduct occurred.
Strikers Villalta, Lopez, and Gonzalez are named
in the CB complaint (introduced into evidence as
R. Exh. 2) which sets forth the specific acts of al-
leged misconduct, dates, and places of occurrence.
Because the Acting Regional Director would not
have issued the complaint without a prior adminis-
trative determination that the alleged unfair labor
practices set forth in the complaint had been com-
mitted," we find that the CB complaint provided
a valid basis for an honest belief that the strikers
were responsible for strike misconduct serious
enough to permit the Respondent to deny them re-
instatement. We further find that the General
Counsel failed to adduce evidence that these strik-
ers' alleged misconduct did not occur or that such
misconduct if it did occur was not serious enough
to deny them the protection of the Act. We con-
clude therefore that the Respondent's refusal to re-
instate strikers Villalta, Lopez, and Gonzalez did
not violate Section 8(a)(3) of the Act.
With respect to the remaining six strikers who
the judge found were entitled to reinstatement, we
disagree with his analysis of the evidence regarding
the strikers' conduct. Relying on Coronet Casuals,
207 NLRB 304, 305 (1973), where the Board stated
that "absent violence . . . a picket is not disquali-
fied from reinstatement despite. . . making abusive
threats against nonstrikers," the judge found that
the strike misconduct of strikers Santiago, Mon-
talvo, Rivera, Zayas, Hernandez, and Pelliccia was
not sufficiently serious to preclude reinstatement.
Subsequent to the issuance of the judge's decision,
however, the Board issued Clear Pine Mouldings,
268 NLRB 1044 (1984), in which it abandoned the
Coronet Casuals standard and adopted the objective
test formulated by the Court of Appeals for the
Third Circuit. Is There the court stated that an em-
ployer need not "countenance conduct that
amounts to intimidation and threats of bodily
harm" and that in determining whether verbal
threats by strikers directed at fellow employees jus-
tify an employer's refusal to reinstate, the criterion
is "whether the misconduct is such that, under the
cIrcurnstances existing, it may reasonably tend to
coerce or intimidate employees in the exercise of
rights protected under the Act."" Applying the
17 Sec. 102.50, NLRB Casehandlmg Manual (Part One), Unfair Labor
Practice Proceedings.
NLRB v. W. C McQuaide, Inc., 552 F.2d 519 (1977).
19 Id. at 528 (quoting Operating Engineers Local 542 v. NLRB, 328 F.2d
850,852-853 (3d Cir. 1964), cert. denied 379 U.S. 826).
Clear Pine principles to the present case, we find,
contrary to the judge, that the strike misconduct of
strikers Hernandez, Zayas, Pelliccia, Montalvo, and
Rivera exceeded the bounds of protected strike ac-
tivity and was sufficient to refuse them reinstate-
ment. 2°
Hernandez blocked the exit gate of the plant
with his car, and as two nonstrikers in a van at-
tempted to leave through the gate, he moved out
of his car and held a baseball bat in a threatening
manner. Zayas blocked a nonstriker's ingress to the
plant, only moving when approached by the Em-
ployer's vice president. Pelliccia pounded on the
car being driven by Nicosia, a nonstriker. Mon-
talvo and other strikers surrounded the car of Car-
bone, a nonstriker. They shouted at him and tried
to open the car door. Montalvo beat on the car and
screamed at Carbone, "I'll kill you." On another
occasion, Montalvo threatened Anderson, a non-
striker, by telling him he would be beaten up if he
went to work. In each case, the striker did more
than simply make verbal comments which might
not reasonably tend to coerce employees in the ex-
ercise of protected rights.
The use of the baseball bat, the blocking of the
plant gates, the pounding on the car, the surround-
ing of a car, pounding on it, and threatening to kill
the driver were all physical acts that either were
actually violent or tended to instill a fear of bodily
harm. This conduct, in our view, clearly reason-
ably tended to coerce and intimidate employees in
their exercise of the Section 7 right to refrain from
engaging in protected activities. We therefore find
that the Respondent did not violate the Act by re-
fusing to reinstate Hernandez, Zayas, Pelliccia, and
Montalvo.
With respect to former striker Rivera, the evi-
dence shows that Rivera told Lawyer, a nonstriker,
that if he went to work the strikers would "blow
up the plant" or that he "was going to get a visit at
his house." Rivera also told Anderson that he was
breaking the strike and if it had been New York
there would have been two people dead. Finally,
Rivera was one of several strikers who told non-
striker Alvarez that they would burn her car and
that one person would get her and another her
father. The comments that the strikers intended to
"blow up the plant" and to burn a nonstriker's car
or "get" an employee and her father, are threats
which are clearly coercive. Similarly, Rivera's
statement to Anderson that had it been New York
there would have been two people dead was an in-
29 Under the same principles, we agree with the judge's conclusion
that the strike misconduct of Lozada, Nieto, and Vargas disqualified
them from reinstatement.
1354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
direct threat to Anderson's safety, if not his life.
Accordingly, we fmd that the Respondent did not
unlawfully refuse to reinstate Rivera.2i
VI. THE BARGAINING ORDER
The judge found that the Union held signed au-
thorization cards from a majority of the Respond-
ent's employees on 6 February 1979 when the
Union demanded recognition. The judge further
found that in light of the Respondent's numerous
and pervasive unfair labor practices, particularly its
unfair labor practice layoff of 23 employees on 26
January 1979, the Respondent had made it impossi-
ble to hold a fair election. Citing NLRB v. Gissel
Packing Co., 395 U.S. 575, 591 (1969), the judge or-
dered the Respondent to bargain with the Union.
For reasons stated earlier, we have dismissed all
but five of the unfair labor practice allegations in
the complaint and, contrary to the judge, have
found that the 26 January layoff was economically
motivated. As noted above, we have reversed the
judge's finding of certain violations and, particular-
ly, his finding that the 26 January layoff was un-
lawful. We conclude that the remaining violations
we have found herein were not sufficiently serious
to make a fair election unlikely and, consequently,
that a bargaining order is not warranted in this
case.2 2
CONCLUSIONS OF LAW
1. By prohibiting its employees from soliciting
their fellow employees during "working hours" the
Respondent violated Section 8(a)(1) of the Act.
2. By interrogating its employees concerning
their union activities the Respondent violated Sec-
tion 8(a)(1) of the Act.
3. By promising benefits to its employees in ex-
change for their activities against the Union the
Respondent violated Section 8(a)(1) of the Act.
4. By threatening it employees with loss of bene-
fits the Respondent violated Section 8(aX1) of the
Act.
5. By granting pay raises (not in accord with es-
tablished company policy) to certain employees for
the purpose of discouraging their union activity,
the Respondent violated Section 8(a)(1) of the Act.
6. By delaying the reinstatement of 14 employees
following their unconditional offer on 14 June 1979
to return to work after an unfair labor practice
24 We agree with the judge's finding that Santiago's conduct did not
disqualify him from reinstatement Santiago, while in a drunken state, ap-
proached Billington, a, nonstriker, and told bun that he was "gomg to
kick [his] ass." This well-known figure of speech used by Santiago on a
single occasion has no necessarily violent connotation and is common
banter.
22 Accordingly, we dismiss the 8(a)(5) allegations that were premised
on a bargaining order.
strike, the Respondent violated Section 8(a)(3) and
(1) of the Act.
7. By refusing to reinstate striker Luis Santiago
even though his strike misconduct was not suffi-
ciently serious to disqualify him from reinstate-
ment, the Respondent violated Section 8(a)(3) and
(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
Having found that the Respondent discriminator-
ily refused to reinstate Luis Santiago, its striking
employee, we shall order it to offer him immediate
and full reinstatement to his former job or, if this
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, with
backpay computed as prescribed in F. W Wool-
worth Co., 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in New Hori-
zons for the Retarded, 23 and classification to the
date of proper offer of reinstatement. We further
shall order that the Respondent similarly make
whole those 14 strikers24 whose reinstatement was
delayed for any loss of earnings and other benefits
they suffered by reason of the Respondent's delay
in reinstating them during the period from 5 days
after the date that they applied for reinstatement to
the date of the Respondent's offer of reinstatement.
ORDER
The National Labor Relations Board orders that
the Respondent, Gem Urethane Corp., Amsterdam,
New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Prohibiting its employees from soliciting their
fellow employees during working hours without af-
fffmatively and clearly specifying the times that
employees may lawfully engage in such activities.
(b) Interrogating its employees concerning their
union activities.
23 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), mterest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out m the 1986 amende-
ment to 26 U.S.0 66.21.
24 The employees are A. Alverado, F. Baez, D. Belh, A. Bermudez, L.
Bermudez, J. Colon, M. Fallas, F. Gonzalez, M Maths, F. Quinones, E
Rodriguez, H. Morales Silva, C. Torres, and G. Valencia. We note that
the judge inadvertently omitted M. Matos from this list and that he im-
properly included H. Martinez and S. Rodriguez who had returned to
work before the strike ended.
GEM URETHANE CORP. 1355
(c) Promising benefits to its employees in ex-
change for their activities against the Union.
(d) Threatening its employees with loss of bene-
fits because of their union activities.
(e) Granting pay raises to its employees for the
purpose of discouraging their participation in union
activities.
(f) Delaying or refusing the reinstatement of em-
ployees because they engaged in an unfair labor
practice strike.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer to reinstate Luis Santiago to his pre-
strike position or, if this position no longer exists,
to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privi-
leges previously enjoyed and make whole Santiago,
together with 14 strikers named below whose rein-
statement was unlawfully delayed, as provided for
in the remedy section of this Decision and Order:
A. Alverado F. Gonzalez
F. Baez M. Matos
D. Belli F. Quinones
A. Bermudez E. Rodriguez
L. Bermudez H. Morales Silva
J. Colon C. Torres
M. FaIlas G. Valencia
(b) Remove from its files any reference to the
failure to reinstate Luis Santiago and the reasons
therefor, and notify him in writing that this has
been done and that evidence of the failure to rein-
state or the reasons therefor will not be used
against him in any way.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Amsterdam, New York,
copies of the attached notice marked "Appen-
dix."23 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for SO consecutive
25 if this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the tiiiited States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director, in writing,
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues I find that the strike
that began on 27 April 1979 1 was not an unfair
labor practice strike.
On 27 April the Union called a strike in which
30 of the Respondent's employees participated. The
strike ended on 14 June when the Union submitted
an unconditional offer to return to work. In its 27
April letter to the Respondent the Union asserted
that the picketing is directed solely at the
unfair labor practices committed by Gem Ure-
thane Corp. This picketing is not for recogni-
tion or organization of Gem Urethane Corp.,
and the Union's staff and pickets have been so
instructed. We further wish to assure you that
the picketing at Gem Urethane Corp. will be
discontinued just as soon as the unfair labor
practices have been effectively remedied.
My colleagues conclude there is sufficient evi-
dence to warrant a finding that the strike resulted
at least in part from the unfair labor practices that
we have found the Respondent committed. How-
ever, they point to only one unfair labor practice:
the unlawful granting of wage increases to a major-
ity of the unit employees. 2 My colleagues place
critical reliance on the judge's statement that these
increases caused concern among some of the em-
ployees, for the finding that the strike resulted in
part from this unlawful conduct. I cannot agree.
An unfair labor practice strike does not result
merely because the strike follows the unfair labor
practice. There must be a reasonable inference
from the record as a whole that an employer's mis-
conduct played a part in the decision of the em-
ployees to strike. 3 Such an inference cannot prop-
erly be drawn from the record in this case.
All dates are in 1979.
2 The only other evidence to which they refer is the Union's 27 April
letter stating that the Respondent's unfair labor practices precipitated the
strike. They concede, however, that this assertion by the Union is not de-
terminative.
Typo Service Corp., 203 NLRB 1180 (1973).
1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The wage increases given by the Respondent to
the majority of unit employees in February consti-
tute a serious violation of the Act with adverse
consequences to the Union's organizing efforts.
The fact nevertheless remains that the wage in-
creases benefited the employees. Indeed, the Board
traditionally had recognized the beneficial aspect of
such a violation by refusing to require recision of
increases as a remedy. 4 It is not reasonable to infer
that employees would strike over an act that, albeit
unlawful, enures to their benefit.
My colleagues attempt to unravel this Gordian
knot by relying on the judge's statement that the
wage increases caused concern among some of the
employees. The judge, however, overstates the evi-
dence. As the judge described earlier in his deci-
sion, one employee expressed concern about the in-
creases. Miguel Matos testified that he was con-
cerned about the wage increase he received in Feb-
ruary because "when a guy gets paid too much
money. . . they let him out for something because
another guy can make the same job for less
money." There is no other evidence of employees
expressing concern about the increases. Surely it is
not reasonable to infer motivation, even in part, for
30 employees to strike from 1 employee's fear that
increased wages could cause a loss of his job to a
lower-paid employee. The majority decision finds,
in sum, that the employees created the possibility
of immediate replacement by engaging in a strike
because of the fear of replacement. The facts will
not bear this post hoc propter hoc analysis. I
would not draw this inference and, contrary to my
colleagues, I would find no unfair labor practice
strike in this case.5
With respect to the reinstatement rights of the
strikers, I would fmd Santiago barred from rein-
statement. Santiago approached Billington, a non-
striker, and told him that he was "going to kick
[his] ass." Santiago used this figure of speech as he
was moving toward Billington in a drunken, unpre-
dictable state. In these circumstances, I find that
Santiago's threat reasonably tended to coerce or in-
4 See, e.g., Peat MA. Co., 251 NLRB 1117 (1980).
5 Juniata Packing Co., 182 NLRB 934 (1970), Bozzuto's, Inc., 277
NLRB 977 (1985), C & E Stores, 221 NLRB 1321 (1976), and Larand Lei-
surelies, 213 NLRB 197 (1974), cited by my colleagues, are factually dis-
tinguishable from the instant case. Thret of the cases—Juniata Packing, C
& E Stores, and Larand—involve multiple serious unfair labor practices
that were the subject of employee discussions. Significantly, none in-
volved a wage increase. Bozzuto's, Inc, mvolved the employer's insist-
ence to impasse on a nonmandatory bargaining proposal. The Board was
able to find that such insistence triggered, in part, the strike. Again, no
wage increase was involved. Although it is true, as the majority states,
that these cases involved "concern among some of the employees," we
must assuredly look to the extent and pervasiveness of that concern as
well as the substantive magnitude and nature of the facts giving rise to it.
When that is done here, we find only 1 employee out of 30 to have dem-
onstrated concern over a single violation not normally associated with
strike activity.
timidate employees in the exercise of their protect-
ed rights and that the Respondent did not, there-
fore, unlawfully refuse to reinstate him. Clear Pine
Mouldings, 268 NLRB 1044 (1984). See also Cole-
man, Clear Thinking, Clear Pine and Strike Miscon-
duct Discharges, 15 Cum. L. Rev. 23 (1984).
In all other respects I agree with my colleagues.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT prohibit you from soliciting your
fellow employees during working hours without
clearly telling you when you may lawfully engage
in such activities.
WE WILL NOT interrogate you about your union
activities.
WE WILL NOT promise you benefits in exchange
for your activities against the Union.
WE WILL NOT threaten you with loss of benefits
because of your union activities.
WE WILL NOT grant pay raises to you for the
purposes of discouraging your participation in
union activities.
WE WILL NOT delay or refuse the reinstatement
of any employees because they engaged in an
unfair labor practice strike.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to reinstate Luis Santiago to his
prestrike position or, if this position no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make Santiago
whole, together with strikers A. Alverado, F.
Baez, D. Belli, A. Bermudez, L. Bermudez, J.
Colon, M. Fallas, F. Gonzalez, M. Matos, F. Quin-
GEM URETHANE CORP. 1357
ones, E. Rodriguez, H. Morales Silva, C. Torres,
and G. Valencia, whose reinstatements were un-
lawfully delayed, for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, plus interest.
WE WILL remove from our files any references
to the failure to reinstate, and the reasons therefor,
for Luis Santiago and notify him in writing that
this has been done and that evidence of the failure
to reinstate or the reasons therefor will not be used
against him in any way.
GEM URETHANE CORPORATION
David M Somers, Esq., for the General Counsel.
Lawrence M. Siskin, Esq., of Brockton, Maine, and
Franklin Goldberger, and Leon Novak, Esqs., of Sche-
nectady, New York, for the Respondent.
David Rosen, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
This consolidated case was initiated by a charge in Case
3-CA-8945, filed on February 14, 1979, by Upstate New
York District Council, International Ladies' Garment
Workers' Union, AFL-CIO (the Union) alleging that the
Respondent, Gem Urethane Corp. (Gem), had engaged
in unfair labor practices. The resulting complaint, issued
on April 6, 1979, cited the Respondent with having com-
mitted violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act) during an orga-
nizational campaign in early 1979.
On May 4, 1979, the Employer Gem Urethane Corp.,
filed a charge against the Union in Case 3-CB-3408 that
resulted in the issuance of a complaint alleging strike
misconduct by employees in violation of Section
8(bX1)(A) of the Act. This complaint was ordered con-
solidated with Case 3-CA-8945.
On May 21, 1979, the Union filed additional charges
against Gem in Case 3-CA-9110, alleging violations of
Section 8(a)(1) of the Act. This resulted in the order fur-
ther consolidating cases and amendment to complaint,
dated June 15, 1979.
Pursuant to a settlement agreement entered into by the
Union in Case 3-CB-3408, the complaint in that case
was severed by order of August 29, 1979, from Cases 3-
CA-8945 and 3-CA-9110.
On August 30, 1979, a third set of charges filed by the
Union in Case 3-CA-9216 was added as an amendment
to the consolidated complaint. The new allegations relate
to the Employer's refusal to reinstate certain strikers
who had made unconditional offers to return to work.
On September 14, 1979, 'Gem, as the only Respondent
in the complaint, filed its answer in which it admitted the
jurisdictional allegations in the complaint, the superviso-
ry status of certain employees, as well as its refusal to re-
instate several strikers who had made unconditional
offers to return. However, Gem denied the commission
of any unfair labor practices.
Hearings were held in October and November 1979 in
Albany, New York. On June 13, 1980, briefs were filed
by the Union and the Employer.' The General Counsel's
brief was filed on June 23, 1980. Based on the whole
record in this case and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
L BACKGROUND
A. The Respondent
Gem Urethane Corp., as the wholly owned subsidiary
of Fab industries Inc., is a New York corporation, locat-
ed in Amsterdam, New York. It is engaged in the manu-
facture, sale, and distribution of urethane-coated fabrics
and related products. Respondent is admittedly an em-
ployer engaged in commerce within the meaning of the
Act. The Company employs approximately 80 produc-
tion and maintenance employees, 50 percent of which are
Hispanic. Gem's highest executive is its plant manager
and vice president, Klaus Beckman. Other admitted su-
pervisors are Bill Sasso, the production manager, Philip
Baker, supervisor in the laminating division, and Gino
Insogna, personnel director. The supervisoky status of
the following three employees is in dispute: John Ry-
gelski, Charles DelToro, and Luis Lopez.
B. The Union
On January 17, 1979, Upstate New York District
Council, Intenational Ladies' Garment Workers' Union,
AFL-CIO formally began an organization drive at Gem
among the production and maintenance employees. This
Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act. Principal organizer
for the Union was Judy Conley; assisting her were Clau-
dia Elms and Jaime Perez.
C. Background
On January 17, 1979, Luis Lozada, a Gem employee
who had been a union member in his previous job and
who was apparently dissatisfied with his pay, met with
Union Representative Jaime Perez at the Amsterdam
Holiday Inn to discuss the Union. Accompanying
Lozada were fellow employees Ed Mikulik and John
Page. The men subsequently went to the Union's office
and met Judy Conley and Claudia Elms. The three em-
ployees signed union cards and each took 20 blank cards
to campaign among their fellow workers. Lozada quick-
ly became the principal union organizer among the em-
ployees. Assisting him in the organizational drive and the
solicitation of signatures on union authorization cards
were John Page, Ed Mikulik, and Jose Pelliccia, another
Gem employee.
During the time of January 17 and February 6, the
date when the Union made its demand for recognition
1 By letter of June 20, 1980, counsel for Respondent submitted a one
page errata to its brief.
1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and also thereafter, the Company is alleged to have inter-
fered with, coerced, and restrained its employees in their
union activities by threats, interrogations, surviellance,
promises of benefits, imposition of a no-solicitation rule,
and soliciting employees to revoke their cards. Some of
the alleged misconduct was committed by Luis Lopez,
Charles DelToro, and John Rygelski, whose supervisory
status is in dispute.
On January 26, 1979, Respondent informed approxi-
mately 24 of its production employees that they were
laid off. Respondent's position is that the layoff was
based solely on economic considerations and that, with
the exception of three, all employees were selected on
the basis of seniority. The General Counsel argues that
the layoff was discriminatorily motivated; that two-thirds
of those laid off had signed union cards; that 18 were of-
fered jobs in building 13 with Adirondack Knitting Mills,
Inc., a related company controlled by Respondent's
parent Fab Industry; and that the economic justification
for the layoff was pretextual.
Of the 79 employees 2 stipulated by the parties to be in
the unit of Gem's production and maintenance and ship-
ping and receiving employees, 47 3 signed authorization
cards between January 17 and February 6, 1979. On Feb-
ruary 6, 1979, union representatives visited the plant on
two occasions and sent a telegram to demand recognition
as the collective-bargaining representative of production
and maintenance and shipping and receiving employees.
The Company acknowledged the request by its letter of
February 6, but stated it "has serious doubt that the ma-
jority of its employees are desirous of having [this] union
or any other union represent them" and suggested a
Board-conducted election.
Also alleged as discriminatory is Respondent's conduct
towards Luis Lozada, the principal union supporter
among the employees. He had received written repri-
mands on February 8 and 9, 1979, for excessive absentee-
ism and had been denied a shift transfer and reassigned
to a less desirable job. He also failed to get a wage in-
crease in February 1979, although he received an in-
crease in the preceding month.
During the period of March 9 through April 2, Re-
spondent offered to recall the 24 employees on layoff,
many of who were working in building 13 with Adiron-
dack Knitting Mills. Six of the laid-off employees accept-
ed the offer.
On April 27, 30 of Gem's production and maintenance
and shipping and receiving employees began a strike that
lasted until June 14, 1979. The General Counsel alleged
that the strike was an unfair labor practice strike de-
signed to protest numerous unfair labor practices, al-
though Respondent's position is that the strike was an
economic strike. Gem continued its operation during the
strike with the remaining employees and strike replace-
ments.
2 Respondent claims that 11 of these employees were on layoff and,
therefore, not part of the unit and that 6 leadmen must be added to the
appropriate unit.
3 Respondent has challenged the validity of a number of these cards,
and generally argues that the Union did not represent the uncoerced ma-
jority of the employees.
On May 4, 1979, Respondent filed an unfair labor
practice charge against the Union, alleging that several
of the strikers had committed acts of strike misconduct.
On June 14, 1979, the Union sent a telegram to the Re-
spondent expressing its unconditional offer to return the
strikers to work. Gem accepted the Union's offer and ul-
timately reinstated all but 12 of the strikers because of
their alleged misconduct.
Within this framework, the case presents numerous
issues.
II. ISSUES
The issues are:
1.The supervisory status of Luis Lopez, Charles Del-
Toro, and John Rygelski.
2. Allegations of independent violations of Section
8(aX1);
3. The allegation that the layoff of 24 employees was
discriminatorily motivated in violation of Section 8(aX3)
and (1).
4. The allegation that Gem discriminated against Luis
Lozada.
5.The number and validity of authorization cards.
6. The size of the appropriate bargaining unit.
7. Respondent's refusal to recognize the Union as the
bargaining representative and the propriety of a bargain-
ing order.
8.The failure to reinstate 13 strikers.
A. The Supervisory Issue
The complaint has alleged that Luis Lopez, Charles
DelToro, and John Rygelski have committed certain
8(a)(1) violations in their capacity as supervisors or
agents of Respondent 4 It is the General Counsel's posi-
tion that each of these men possessed at least one of the
functions or one of the powers enumerated in Section
2(11) of the Act so as to establish their supervisory
status. Respondent, on the other hand, argues that these
men were at most leadmen who cannot be classified as
supervisors within the meaning of the Act
The law is clear, Section 2(11) of the Act defines the
term "supervisor" as:
[A]ny individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Under this definition one or more of the enumerated
powers must be exercised "in the interest of the employ-
er," persons who exercise such power in their own inter-
4 The supervisory status of three other employees, Antonio Novak,
Willard Pierce, and Adam Sarsmit, is important to the issue of the com-
position of the bargaining unit.
GEM URETHANE CORP. 1359
est are not supervisors under the Act. See Stop & Shop
Co. v. NLRB, 548 F.2d 17, 19 (1st Cir. 1977).
Although the Act does not expressly exclude manage-
rial employees, the Supreme Court, in NLRB v. Bell
Aerospace Co., 416 U.S. 267, 286-287 (1974), concluded
that managerial employees—those who formulate and ef-
fectuate management policies by expressing and making
operative the decisions of their employer—are also ex-
cluded from the Act's coverage.
Luis Lopez. Employed for 13 years at Gem, Lopez was
promoted to "supervisor" in the inspection department 3
or 4 years ago. His supervisors were Klaus Beckmann or,
in his absence, Bill Sasso. Approximately four to seven
employees worked in that department in addition to
Lopez. His pay was $4.85 per hour, approximately $1.50
more than other employees. Although he had no author-
ity for fire, transfer, suspend, lay off, recall, promote, dis-
charge, reward, or discipline other employees, he did
assign work to other employees in the inspection depart-
ment at least once a day. The function of that depart-
ment was to inspect materials, cut them, and pack them
for shipping. Lopez assigned to the employees in the in-
spection department the type of material to be cut, as
well as the inspection to be performed and the material
to be wrapped. He made these assignments each morn-
ing. He also trained less experienced workers. Lopez
spent at least 1 hour each day performing the same work
as that done by the other employees. During the rest of
his workday, Lopez dealt with Respondent's customers
concerning special orders, classified fabrics about their
grade, and kept a record of the amount of production for
each day. He reported these activities to Beckmann and,
while performing these administrative functions, used the
office of Bill Sasso. From time to time, Lopez would
also sign timecards of employees or give them permission
to leave or to work overtime. Although he effectively
recommended a person for hiring on only one occasion,
Lopez kept Beckmann informed about the performance
of the employees. He would watch them, point out their
mistakes, and instruct the employees to correct their mis-
takes.
Although the record is not entirely clear concerning
Lopez' discretionary authority over all aspects of the
employees' work, I fmd that his authority to assign the
work as well as his function to evaluate the employees'
work performance is sufficiently indicative of his super-
visory status at Respondent's plant.
Charles DelToro. DelToro was promoted in May 1978
to "supervisor" in the casting line department, reporting
directly to Bill Sasso. Approximately eight employees
worked in that department that produces urethane fabric.
Urethane in liquid form is first attached to an adhesive
and then to a fabric. DelToro's duties consisted of setting
up the station, checking the product, and assigning the
work to each employee in accordance with a work order
that Sasso prepared for DelToro each day. DelToro, re-
ported for work earlier than the other employees in
order to make the assignments. Because DelToro was a
machine operator, he—as Miguel Matos, another ma-
chine operator—watched other employees during their
work to assure proper handling of the material, paper,
and machinery. DelToro signed timecards of other em-
ployees in situations when the timecards were to reflect
a time different from that recorded by punching the
timeclock. Employees would also notify him when they
left early or were absent or late. Although DelToro was
a salaried employee for several months in late 1978 and
early 1979, he preferred hourly pay at a rate of about
$1.40 more than any other casting line employee. He had
no authority to hire, fire, discipline, or suspend employ-
ees. Although the record shows that DelToro had told
an employee that he would transfer him to another de-
partment, there is no evidence that he had such author-
ity. DelToro testified that he had no authority to effectu-
ate transfers. Indeed, the record shows that DelToro, al-
though titled "supervisor" and regarded by his fellow
workers as a supervisor, possessed little or no discretion-
ary authority. His assignment functions were exercised
within the narrow framework of the work orders pre-
pared daily by Sasso, and the practice of some employ-
ees to notify DelToro, when they left earlier or were
absent, did not include any authority to deny or grant
early dismissals or absences. In substance, DelToro oper-
ated within narrow and circumscribed confines. I, there-
fore, agree with Respondent that his role was compara-
ble to that of a leaciman who insured that his department
functioned "within established guidelines." Howard John-
son Co., 236 NLRB 1206 (1978). In P & C, 228 NLRB
1443 (1977), an assistant manager of a retail food store
was found not to be a supervisor, even though he main-
tained the store in the manager's absence, was hourly
paid at a rate higher than other employees, had keys to
the store, made bank deposits, trained new employees,
and permitted employees to leave work early. Because I
fmd that DelToro was not a supervisor within the mean-
ing of the Act, I have omitted any discussion of his al-
leged misconduct.
John Rygelski. As one of three employees in the ship-
ping department, Rygelski had consideragle discretionary
authority over the other employees. Rygelsld received a
salary of $310 per week, which amounted to more than
twice the hourly pay of the other employees. Rygelski
regularly signed the timecards of the employees if they
had failed to punch the clock, he attended management
meetings in which the subject of employer and employee
relationship was discussed, and he regularly assigned the
work in his department. During a regular working day,
Rygelski would first record all shipping and production
information for the previous day and notify the appropri-
ate company personnel in New York, He also obtained
orders from New 'York and assigned work to the em-
ployees based on this information. Although for the most
part, the employees performed the loading and unloading
of trucks as well as the moving of stock on their own
initiative, Rygelski made sure that orders were filled
properly and directed employees to correct their mis-
takes. He also performed the work himself, at least for
one-fourth of the working time. He reported directly to
Beckmann. He has received memoranda addressed to
"supervisors" and has on one occasion effectively recom-
mended a wage increase for one of the employees. Ry-
gelski routinely prepared shipping reports, inventory
records, and the necessary documents to obtain credit
1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
approval. Although he had no authority to hire, fire, or
lay off employees, the record shows that Rygelski exer-
cised considerable discretionary authority in making as
to the other employees and in assuring that the
work would be carried out properly. On balance, I fmd
that Rygelski was a supervisor within the meaning of the
Act.
B. Independent 8(a)(1) Violations
Interrogation, Surveillance, and Threats of Loss of
Benefits
Lopez. The complaint alleges that in January and Feb-
ruary 1979, Respondent interrogated its employees on
several occasions. For example, on January 22, 1979, Su-
pervisor Lopez approached Luis Lozada and Thomas
Rivera, two employees who were engaged in a conversa-
tion. Directing his remarks to Lozada, Lopez inquired
how he "was doing with the Union, with the cards" and
Lozada answered: "Okay, we're going to win." Lopez
further said, "Luis, we know you try to get a union here
. . . because Beckmann told me." When Lozada asked
how he knew, Lopez said that Beckmann had observed
them at the Holiday Inn and seen Lopez with the cards.
Respondent argues that this conversation occurred
among friends in the context of a friendly atmosphere,
and that the absence of coercion provides no basis on
which a violation can be found. Although it is true that
Lopez and Lozada were on friendly terms, Lozada also
explained that their relationship at work was simply that
of an employee to his supervisor. Moreover, Lopez'
questioning was not merely an idle or casual inquiry
when considered in the light of his subsequent remarks in
which he indicated that management was keenly aware
of Lozada's activities. In this regard, the complaint al-
leged that Lopez' remarks were also unlawful in that
they informed an employee that he was under surveil-
lance. Creating the impression among employees that
their union activities are under surveillance is unlawful
under Section 8(a)(1) of the Act. Lopez' statement that
Beckmann had observed Lozada's union activities at the
local diner clearly highlighted the Employer's anxiety
concerning the Union and thereby tended the inhibit an
employee's future union activity. Accordingly, Lopez'
conduct in informing Lozada that management was sur-
veining his union activities was violative of Section
8(a)(1) of the Act and, considering this conduct in evalu-
ating his interrogation of Lozada, it is clear that Re-
spondent violated Section 8(a)(1) also in that regard.
Bill Sasso. On January 25, 1979, employe Miguel
Matos was working at the casting line department when
Bill Sasso approached him and said that he wanted to
talk to him in Beckmann's office. Sasso said: "Somebody
told me, you're the leader of the union, you're pushing
to get a union inside the plant." Matos denied that he
was the leader, but Sasso continued by saying, "Some-
body told me, you're the leader . . . I don't know why
they want a union. The lazy guys they don't like to
work that's why they want a union." Matos then said, "I
know who did it, who started it," but Sasso replied, "I
don't want you to tell me. . . we appreciate whatever
you say for us, and we know you are a good worker."5
To be sure, Sasso did not want Matos to reveal the
names of any union leaders, but he did accuse Matos of
being a union leader himself and clearly demanded to
know whether Matos was involved with the Union as a
leading activist. Matos' replies indicate that he became
intimidated to the point of agreeing to disclose who the
leader of the union activity was. This, as well as the ini-
tial accusations, was a clear indication that the inquiry
was coercive. Accordingly, I find that Respondent's in-
terrogation of this employee was violative of Section
8(a)(1) of the Act.
Philip Baker. On February 6, 1979, at 8 a.m., Philip
Baker, a supervisor in the laminating department, had a
conversation with Luis Lozada near the machine in the
plant where Lozada was working. According to Loza-
da's testimony the following exchange occurred (Tr.
708): "He said to me, Luis, what do you want with a
union. I say more benefits and he say to me, you're
going to lose the benefits, you're going to lose the profit
share and the Christmas bonus and you're going to have
a battle on yourself, because we're going to take you to
court and we're going to win."6
The complaint alleges that Baker's comments violated
Section 8(a)(1) of the Act as unlawful interrogation and
as a threat of loss of benefits. Considered in the total
context of Baker's comments, it is clear that his brief
question what Lozada wanted with a union was not in-
tended as a serious inquiry designed to elicit information
about the employees' union activities. It was, rather, a
casual question with which Baker introduced the subject
matter "union" and after which Baker uttered, threats of
loss of benefits, loss of profit sharing, and loss of Christ-
mas bonus. Such threats, as well as management's inten-
tion to litigate, had the obvious effect of creating an at-
mosphere of fear by portraying the selection of the
Union as a futile and hazardous choice. NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). Accordingly, I
find that Baker's comments were not tantamount to ille-
gal interrogation but violated Section 8(a)(1) of the Act
as an unlawful threat.
C. Threats of Discharge
The complaint charges that Supervisor Luis Lopez
had threatened to discharge or lay off employees in re-
prisal for their union activities on about 30 occasions in
January and February, and on January 24, 27, and 29,
and February 15 at Respondent's plant, as well as Janu-
ary 26 at Ray's Place, a local diner. The record shows
that about noon on January 22, 7 Lopez entered the
5 In his testimony Sasso agreed that he had a conversation with Matos
on January 25, but explained that the conversation concerned Matos' mis-
taken belief that he was no longer the operator assigned to a particular
casting line machine. Sasso, however, did not specifically deny that
Matos' version of the conversation occurred. Moreover, in spite of vigor-
ous cross-examination, Matos' testimony was consistent and credible.
I have credited Lozada's testimony of this occurrence, because
Baker's denial that he had made these comments seemed too quick and
superficial to constitute a well-considered response.
7 Employees Lozada and Jose Pelliccia testified about this incident;
Lozada recalled that this conversation occurred at noon on January 22
Continued
GEM URETHANE CORP. 1361
lunchroom and told the group of employees, including
Lozada and employee Jose Pelliccia, that everybody
would be laid off if they signed a union card. Lozada re-
sponded saying that "they're not supposed to do this,"
but Lopez said, "they're going to do it."
On January 24, Thomas Rivera Sr. handed his signed
union card to Lo7ada. Lopez, who had observed Rivera,
subsequently told him repeatedly that he would be laid
off because he had signed a union card. Even after
Rivera reported Lopez' conduct to Beckmann, Lopez
continued to make these remarks. Only after Rivera
complained to Beckmann for the second time, did he fi-
nally tell Lopez "to stop that."
A similar conversation, alleged to have been made on
January 26 at Ray's Place does not find credible support
in the record. Rivera testified that Lopez told him that
the factory would close down if the Union got in. Yet,
he was unable to be specific or consistent as to the time
when this conversation occurred.
Finally, Pelliccia heard Lopez tell a group of about 10
employees in the cafeteria that all employees who had
signed a union card would be laid off. This incident oc-
curred on February 15, 1979.8
It is well settled that direct statements to employees
that they will lose their jobs or be laid off because of
their union adherence constitute threats that directly
interfere with an employee's rights guaranteed by Sec-
tion 7 of the Act. Such interference violates Section
8(a)(1) of the Act.
D. Threats to Employees That Their Layoff Was Due
to Their Union Activities
The complaint alleges that Supervisor Lopez informed
its employees on January 26 and 27 at Ray's Place that
their layoff was due to their union activities. The sole
record evidence in support of Lopez' alleged statements
was a remark he made to Lozada on January 26 when
they went to Ray's bar. In response to Lozada's question
why a certain person was laid off, Lopez replied, "you
know why, because of the Union." It is clear, however,
that when the surrounding circumstances of their con-
versation are considered, Lopez' remark cannot be con-
sidered as a threat or a coercive statement. Lopez did
not initiate the conversation, his statement was a casual
reply to Lozada's question. Furthermore, Lozada and
Lopez were personal friends at times when, as here, they
were not in a working environment. This allegation
should therefore be dismissed.
E. Solicitation of Employees to Revoke Authorization
Cards
The complaint further alleges that Lopez solicited em-
ployees to withdraw their union authorization cards on
January 23. In this regard, the record shows only that
Rivera, in response to a leading question by the General
while Pelliccia thought it occurred 2 days prior to the layoff on January
26, in the morning. Their respective testimony concerning Lopez' re-
marks to the employees in the lunchroom is otherwise consistent and
credible.
Testimony concerning this conversation was not contradicted by
Lopez and is therefore credible.
Counsel, testified that Lopez asked him to get his union
card back. Rivera could not remember when this hap-
pened. He could only recall that Lopez was "telling the
people to return the cards because they were setting up a
meeting," and that he returned his card to Lozada. This
evidence alone is insufficient on which to base a viola-
tion of Section 8(a)(1) of the Act. The allegation in the
complaint should accordingly be dismissed.
F. Threats of Plant Closure
Supervisors Lopez and John Rygelski are alleged to
have threatened employees with plant closure if they se-
lected the Union as their bargaining representative. In re-
sponse to a leading question by counsel, Rivera testified
that a few days after he had signed the union card on
January 23, Lopez told him that the Company would
close the plant if the Union got in. Other employees, in-
cluding Sammy Rodriguez, Filippe Animones, and Ri-
vera's son Thomas Rivera Jr., although present, did not
testify about this conversation. Rivera impressed me as a
witness who, while testifying with the assistance of an in-
terpreter, appeared anxious to be agreeable. His response
to a leading question without providing complementing
details is too unreliable on which to base a finding of
violation.
On another occasion, about 5 p.m., on January 19, Su-
pervisor Rygelsld gave employee Robert Van Dyke a
ride home in his car when Van Dyke asked, "John, what
would happen if the union got into the Urethane?" Ry-
gelski replied: "They might close the doors down."
Again, Van Dyke could not recall anything beyond Ry-
gelsld's reply or other surrounding circumstances. The
conversation about the Union was initiated by the em-
ployee; it appeared casual and not made in an atmos-
phere of fear or coercion. I accordingly also dismiss this
allegation.
G. Threat of Denial of Pay Raise
On February 13, 1979, about 2 p.m., Lozada overheard
a conversation between employee Jose Colon and Lopez
in which Lopez assured Colon that he would get a pay
raise. After Lozada had ascertained from several other
employees that they were also going to get a raise, he
confronted Lopez and asked why everybody else was
getting a raise and not him. Lopez replied, "you know
why Luis, because of the Union." Lozada then went to
Plant Manager Beckmann and asked him why he was
not getting a pay raise. Beckmann said that nobody was
getting a raise, and that, in any case, he had to send such
a request to New York for approval, Lozada answered,
"you send it to New York, but put my name down."
As charged in the complaint, Lopez' reply constituted
a violation of Section 8(a)(1) of the Act. The statement
was clearly coercive and interfered with the employees'
right guaranteed under Section 7 of the Act.
9 Lopez did not deny this conversation.
1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. Unlawful Grant of Wage Increases
As charged in the complaint, the record shows that
Respondent granted pay raises to a majority of its pro-
duction and maintenance employees, effective February
5, 1979. These raises ranged from 10 to 50 cents per
hour. According to the General Counsel, 14 of the 41
employees had received pay hikes only 1 month earlier.
According to the testimony of Plant Manager Beckmann,
it was standard procedure to review the payroll on a
monthly basis. Among the reasons for the pay raise were
the amount of time an employee had been with the Com-
pany, the improvement in skills make by an employee, a
general promotion or a cost-of-living increase. Normally,
according to Beckmann, an employee "gets about three
or four raises a year, every three or four months." Em-
ployee Miguel Matos similarly testified that he was told
by management to expect pay raises every 3 months, at
least in the first year of employment. But Matos also ex-
plained that he had received a quarter in additional pay
in January. He was told of another increase in February
in the amount of 15 cents. This concerned him because
as he testified, "when a guy gets paid too much money
. . . they let him out for something because another guy
can make the same job for less money." In any case, the
record suggests that even pursuant to monthly reviews,
pay raises that are granted to individuals more frequently
than three or four times a year are unusual. Yet, during
this union campaign numerous employees received pay
raises in January and again in February. Moreover, Re-
spondent was unable to explain adequately the reasons
for this unusual practice or whether the pay raises in
January were given for different reasons than those in
February.
Respondent argues that the record does not show that
these reasons were intended to discourage the employ-
ees' exercise of their Section 7 rights. However, the
record shows that Lopez had told Lozada who had re-
ceived an increase in January but not in February, that
he was denied the February raise because of his union
activities.
Because a valid reason unrelated to union activity was
not established for the change in benefits, an inference of
unlawfulness is permissible. International Shoe Co., 123
NLRB 682 (1959). In addition, Lopez' comment to
Lozada clearly establishes an unlawful motive behind the
wage increases, a violation of Section 8(a)(1) of the Act.
I. Threats to Discharge Strikers
The complaint 1 ° next alleges that Lopez threatened
employees that they would be replaced if they did not
abandon their strike activities. Employee Lozada partici-
pated in a strike that began on April 27, 1979, by about
30 employees. Approximately 3 days after the com-
mencement of the strike, the strikers were at Ray's
Place. On that occasion, Supervisor Lopez said, "Luis, if
you don't come back to work Friday, you're not going
to have any job with Gem Urethane." When Lozada in-
10 The General Counsel argues in her brief (Br. 52) that similar threats
were made by Supervisor Baker on April 30 and May I. The complaint
does not contain these allegations and I therefore have not considered the
General Counsel's argument in this regard.
quired, "what about the other people," Lopez replied,
"they're not going to have any job with Gem." Lozada
was among those employees who were not recalled after
the strike.
Lopez made similar statements to employee Sylvestre
Hernandez when they were at Ray's bar in the evening
on May 24. Lopez asked him why he did not go back to
work and Hernandez replied that he did not want to
cross the picket line. At that point Lopez said, "you
goima lose the job."
The strike, characterized as an unfair labor practice
strike by the General Counsel but regarded as an eco-
nomic strike by the Respondent, constituted in either
case protected concerted activity. An employer's threat
that a person may lose his job as a result of his participa-
tion in that protected activity constitutes an unlawful in-
terference, in violation of Section 8(a)(1) of the Act.
J. Threat to Refuse Reinstatement to Union Supporter
On May 15, about noon, Herminio Silva saw Supervi-
sor Lopez going to the picket line. Lopez told him that
he would not be permitted to return to work because of
his union support. Nevertheless, Silva was subsequently
offered reinstatement. Standing alone, this incident might
well be considered de minimus. However, considering
Lopez' remark in the context of his entire conduct that
exhibited numerous 8(a)(1) violations, it is clear that this
incident also amounted to an 8(a)(1) violation.
K. Solicitation of Employees to Abandon Their Strike
Activities
On the first day of the strike, April 27, Beckmann,
Baker, and Lopez confronted about 30 strikers and
Union Organizer Elms at 7:30 a.m. Beckmann told the
striking employees to come back to work, that there was
a lot of work inside, and that there was no need for them
to be out there. On the afternoon of the same day, Beck-
maim and Lopez were in the process of entering the
plant. Saying "hello" to some of the strikers as he
stopped his car, Beckmann asked Sylvestre Hernandez, a
striking employee, why he did not come back to work,
because he had children to take care of. Hernandez re-
plied that he could not cross the picket line. Beckmann
then said, "okay, goodbye," Baker and Lopez made simi-
lar statements" to strikers when, for example, on April
30, Baker talked to Enrique Lopez, a striking employee,
and asked him to return to work, and when Supervisor
Lopez urged employee Hernandez on April 24 to come
back to work. It is obvious that Respondent's conduct
consisted of merely urging, without evidence of coercion
or threats, its striking employees to return to work. Such
conduct does not support a violation of Section 8(a)(1) of
the Act.
" Lopez did not deny any of these remarks during his testimony.
12 In view of Baker's denial that he said anything more to the strikers
and in the absence of any corroborating testimony by the strikers, I have
not credited any testimony suggesting that Baker or Lopez voiced any
threats in conjunction with their requests that the strikers return to work.
GEM URETHANE CORP. 1363
L. Threats of Loss of Future Benefits
On April 29, Beckmann went to a soccer game at
Lynch's Middle School in Amsterdam, New York, and
had a brief conversation with employee Carlos Villalta.
Villalta testified that Beckmann told him that he should
come back to work, that the walkout was illegal, and
that the Union was for people who needed protection.
Beckmann further said, according to Villalta, that with
the Union, if he ever needed a loan or a raise he would
have to talk to the union manager or union representa-
tive. Beckmann, in his testimony, denied the substance of
such a conversation and explained that Villalta actually
came to him and said not to worry about the strike, be-
cause it would be over soon. Beckmann testified that his
reply to Villalta indicated that he would appreciate it if
everybody would come back to work because he had
nothing against them. I have credited Beckmann's ver-
sion of this incident because I found it convincing and
plausible under the circumstances. This allegation in the
complaint should, therefore, be dismissed.
M. Promise of Benefits
With respect to the allegation in the complaint that
Respondent offered benefits to its employees as induce-
ment to refrain from union activities, the record shows as
follows: On January 25, Bill Sasso, Respondent's produc-
tion manager, approached Miguel Matos and invited him
to his office for a conversation. Initially, Sasso inquired
whether Tvlatos was one of the union leaders, but when
Matos denied it, Sasso said, "well, any way, we appreci-
ate whatever you can say for us and we know you are a
good worker, you have good raises, you have a good
future in this company, in this plant."
On the following day, January 26, Respondent's per-
sonnel manager, Insogna, who was also the personnel
manager for Adirondack, called Lozada and said that he
had noticed from his application that Lozada was an ex-
perienced truckdriver and inquired whether Lozada
wanted a job as a truckdriver for Adirondack Knitting, a
related company. Lozada replied that he did not know,
and that he needed 2 weeks' time in which to consider
the offer because he expected to be assigned to the
second shift on January 29. Insogna also told Lozada to
so inform Beckmann. Subsequently, on the same day, Su-
pervisor Lopez informed Lozada that he could not work
on the second shift on January 29 because of lack of
work, Beckmann also talked to Lozada and urged him to
accept the truckdriver's job at Adirondack, because it
would be a better paying job. Several days later, Insogna
called Lozada to tell him that he needed him as a truck-
driver at once. Lozada accepted the job but was required
to take three tests, as prerequisites for the job. Although
Lozada believed that he had passed, he was not put to
work as a truckdriver.
On the afternoon of the same day, January 26, Wil-
fredo Vargas, a Gem employee, was at Ray's bar when
Supervisor Lopez told him that Beckmann would take
him back or recall him from the layoff if he were to
forget about the Union. Even though Vargas did not in-
dicate to Lopez whether he would abandon his union
support, Lopez made a phone call and then told Vargas
that he would be informed of Beckmann's decision on
the following day. Lopez never talked to Vargas about
this matter again.
On the basis of the record evidence summarized
above, it is clear that the conduct of Insogna and Beck-
mann on January 26 did not amount to unlawful prom-
ises of benefits. Even though Lozada was promised a
better job at a related company, there is no evidence that
such promise was conditioned on Lozada's discontinu-
ance of his union support. However, Sasso's conversation
with Matos impliedly promised better working condi-
tions, including pay raises, in exchange for Matoe speak-
ing out on behalf of Respondent's position vis-a-vis the
Union. Similarly, Lopez' promise to Vargas was a clear
effort to induce Vargas to refrain from his union support.
Such conduct directly interfered with an employee's Sec-
tion 7 rights and was therefore violative of Section
8(a)(1) of the Act.
N. Unlawful Surveillance and No-Solicitation Rule
Bill Sasso. On January 29, 1979, several days after sign-
ing a union card, Thomas Rivera Sr. observed that Bill
Sasso, Respondent's production manager, constantly
watched him from his office located on the second floor
of the plant. About that time Sasso came to the work
area of Thomas Rivera Sr. and said: "I don't want to see
you speaking to anyone" and, turning to the person to
whom Rivera had been speaking, he said: "Yon get on
your way." He finally said to Rivera: "I will not tell you
again." Rivera denied that Sasso made any mention of
the Union, but testified that he had always spoken to this
employee before, even while working, and that no one
had ever stopped him from speaking with other employ-
ees prior to his signing of the union card.
Similarly, several weeks later, on February 16, 1979,
Sasso approached Lozada at his work station and said:
"Luis, I don't want you to talk to anybody about the
Union over here." Lozada also testified that Sasso had
been watching him through the glass window of his
office on the second floor, but he explained that he had
never talked to anyone about the Union during working
time because he did not want to get into trouble.
These incidents are alleged as unlawful surveillance, as
well as overly broad no-solicitation restrictions. To be
sure, Rivera had signed a union card and Lozalla was an
active union supporter; nevertheless, the record does not
show that Sasso was observing the union activities of
these two employees. To the contrary, neither of them
was engaged in any union activity at that time. More-
over, I do not find it extraordinary for a supervisor, con-
fined to his own office from where he can oversee the
whole plant, to focus on those employees who are idly
conversing with fellow employees while they are on
their working time, and to prohibit such conduct among
employees while they are operating a machine. Sasso's
only union-related conduct was his remark to Lozada
prohibiting any union talk "over here." This remark
could be interpreted to mean that any soliciting on behalf
of the Union was not allowed while Lozada was at his
work station and presumably working. But the record is
not sufficiently clear in which context Sasso voiced the
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prohibition, nor were the circumstances evident sur-
rounding Lozada's duties at that particular time or
whether he was operating his machine. In short, it is not
clear from the surrounding circumstances whether
Sasso's remark could reasonably have been interpreted to
constitute an outright prohibition against union solicita-
tion during nonworking time. Accordingly, I cannot find
any violation involving these incidents.
Luis Lopez. On February 15, 1979, Supervisor Luis
Lopez, employee John Page, and Union Organizer Judy
Conley were engaged in a conversation about the Union
at a local bar. Lopez said to Conley that there would be
an election in the plant by a showing of hands and that
the Union would lose, because it had the wrong leader.
He further stated that the Union should have approached
him first, because he was a veteran with 14 years' experi-
ence and, in an apparent reference to Lozada, not some-
one with an absenteeism record at the plant. When
Conley inquired what prompted his comments, he stated
that he knew the situation from both sides, as a supervi-
sor familiar with the disciplinary problems of employees
and as a former union member.
Although alleged as an incident of unlawful surveil-
lance, the General Counsel did not press this issue in her
brief and Respondent submits that Lopez' statements
amounted to nothing more than mere "braggarty." I
agree. Considering the surrounding circumstances of that
conversation, Lopez did not indicate that the employees'
union activities were under observation, he simply indi-
cated that he considered himself to have been a better
union leader than Lozada.
Klaus Beckmann. The General Counsel's additional ar-
gument, submitting that Beckmann's efforts in taking
photographs of picket line misconduct constituted a vio-
lation of Section 8(a)(1) of the Act, is not based on any
allegation in the complaint; and in any case, finds no sup-
port in the record, for it is clear that Beckmann attempt-
ed to record picket line misconduct. The mere fact that
he may have been unsuccessful in photographing such
misconduct does not lead to an inference that he thereby
interfered with the strikers' protected activity of peace-
fully picketing the plant.
With respect to the allegation that a notice was overly
broad as a no-solicitation rule, the record shows as fol-
lows: On February 15, Beckmann posted a notice ad-
dressed to all employees. The notice generally dealt with
union authorization cards and the significance of signing
one. However, the first paragraph of this notice reads as
follows:
As WE KNOW, A DRIVE TO ORGANIZE THE PLANT IS
BEING CONDUCTED BY THE INTERNATIONAL LADIES
GARMENT WORKERS UNION. IT IS NECESSARY FOR
US TO MAINTAIN NORMAL PRODUCTION. TO THIS
END WE ASK THAT ALL EMPLOYEES REFRAIN FROM
UNION ACTIVITIES IN THE PLANT DURING WORKING
HOURS. THIS APPLIES BOTH TO EMPLOYEES WHO
FAVOR THE INTERNATIONAL LADIES GARMENT
WORKERS UNION AND THOSE OPPOSED TO IT.
The law is clear, employees have a right to solicit
their fellow employees during nonworking time, even
though the solicitation is during company working
hours. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
798 (1945); Campbell Soup Co. v. NLRB, 380 F.2d 372,
373 (5th Cir. 1967); Our Way, Inc., 238 NLRB 209, 214
(1978), enfd. 607 F.2d 1005 (5th Cir. 1979). Here, Re-
spondent's no-solicitation rule included solicitation
"during working hours." This has been interpreted as
overly broad and in violation of Section 8(a)(1), because
it could reasonably be interpreted to prohibit solicitation
during nonworking time.
0. The Layoff
On January 26, between 1:30 and 2 p.m., Plant Manag-
er Beckmann posted the following layoff notice affecting
23 employees:13
January 26, 1979
Memo 12/79
TO: ALL EMPLOYEES
FEF: Lay-Off because of lack of work
We are sorry to have to announce that because of
lack of work the following people employed after
September 15, 1978 are laid off effective today:
David Van Alstine Alberto Alvarado
Robert Van Dyeke Santiago Esquilin
Lawrence De Angelo Michael Figuoroa
Gary Fiorillo Michael Gentile
Hamilton Gonzales Jerrold S. Hock
Jim Maynard Jr. Timothy Mason
Edward Mikulik

Esteban Rodriguez
Jose L. Saybe Frederick Seneca'
James Stewart John C. Page
Edward LaPorta John LaPorta
Herbert LaPorta Mariano Gonzales Santiago
Wilfred Vargas
Several days later, on January 29, 13 of the 23 laid-off
employees accepted employment offered by Adirondack
Knitting, a company, which like Gem, is a subsidiary of
Fab Industries.
The General Counsel argues that the layoff was a
carefully planned maneuver to chill unionism among the
employees. Pointing to the timing of the layoff and the
number of card signers among the laid-off employees, the
General Counsel argues further that there was no eco-
nomic justification for the move. Respondent, on the
other hand, submits the Company experienced a severe
drop in orders for handbags in the month of January be-
cause a competitor had entered the market, and that the
layoff was economically motivated. In addition, accord-
ing to Respondent, the plans for the layoff were made
prior to Respondent's awareness of the union campaign.
The record, however, shows that Beckmann had an
idea of his employees' union activity, prior to the layoff.
For example, on January 17, 1979, Beckmann observed
13 The complaint alleges that in addition to the above employees, Alex
Zayas was also laid off. The record shows that this employee was offered
a transfer to the second shift as a result of the discontinuance of the third
shift. Because of his wife's conflicting work scheduk, he refused the
transfer.
GEM URETHANE CORP. 1365
Union Organizer Perez with Gem employees Lozada,
Mikulik, and Page at the Holiday Inn in Amsterdam,
New York. This meeting was the beginning of the orga-
nizational effort by the Union, and it was referred to by
Lopez when he talked to Lozada on January 22. In addi-
tion, Rivera had to tell Beckmann on January 24 that
Lopez had threatened him repeatedly with a layoff be-
cause he had signed a union card. It is clear, therefore,
that on January 24, when Beckmann initiated the plan to
lay off these people, he was aware of some union activi-
ty among his employees. And on January 26, prior to the
posting of the layoff notice, Supervisor Baker reported
to Beckmann that he had seen an employee sign a union
card.
Beckmann also testified that he alone made the deci-
sion for the layoff based on a lack of incoming orders,
and that the selection of the employees scheduled for
layoff was based on seniority. Only three employees,
Frank Mack, in maintenance, Albert Bodden, a print ma-
chine operator, and Alice Fiacco, an office employee,
were not part of the layoff because their continued em-
ployment was vital for the continued operation of the
Company. However, on January 19, only a few days
prior to the layoff, Respondent hired at least five or six
employees, including Mariano Gonzales, Enrique Gon-
zales, Lette Gonzales, and Jun Maynard. They were as-
signed to the third shift in the inspection area or the cast-
ing line. Respondent even assured Gonzales that the job
was a secure one without the likelihood of layoffs.
Almost one-third of its work force was laid off ostensi-
bly because of a slackening demand for handbags. In the
preceding year, Respondent had not experienced such a
massive layoff. Beckmann testified that he may "have
laid off a few guys" in 1978, but the record does not in-
dicated that any economic layoff occurred in the prior
year. Beckmann explained the reasons for the layoff in
lengthy testimony and stated, inter alia:
After I had just received records of sales for the
first week in January and I had checked the order
log. I had conic to the conclusion there is no other
way out, we had to layoff people. [Tr. 2531.]
In more detailed testimony, Beckmann explained the
relationship between production and incoming orders
(Tr. 1862-1864):
There are two different industries which we supply
as a manufacturer, one is the handbag industry and
one is the shoe industry. All orders coming in out
of the shoe industry have been recorded directly in
our office. There you can assume in a matter of a
week to ten days, all orders coming in will be pro-
duced immediately and shipped. So, in the shoe
area, incoming orders and sales are corresponding
very closely with—the very small time delay be-
cause we only produce goods to orders. We don't
inventory. . . . Handbags is a different situation.
There we have control of about 80 to 90% of the
market last year and for having this kind of advan-
tage, we were producing a lot of goods for invento-
ry knowing that the market had to buy from us
anyway. We were not taking any risk producing for
inventory. So in order to have a true picture of
what was demanded from the market, we had a
sales agent—we have a sales agent who gathers this
information and reports it into us.
We have information coming in from the market
co-ordinated by the sales agent. He makes the judg-
ment if we could afford to make certain inventories.
Now, this report goes into our production control
office where we keep the record. There you could
see that there is a drop of order backlog also.
The reason for the drop in orders was, according to
Beckmann, "that a competitor had come back into the
handbag business." The competitor was Komper Indus-
tries that had acquired Pendall Graphics operating in
Lowell, Massachusetts, and Roselle, New Jersey. To un-
derline the point, Respondent emphasized the disparity
between the agent's estimated orders (183,000 handbag
yards) and the actual orders received (106,193 yards) in
January 1979. Relying on additional orders and sales fig-
ures, Respondent submits that the sole motive for the
layoff was an economic one.
The General Counsel disagrees with Respondent's eco-
nomic defense and points out that the January decline in
orders in 1979 did not markedly differ from those in 1977
or 1978 when there was no reduction in the existing
work force. Indeed, according to the General Counsel,
handbag and shoe material yards ordered during the pay-
roll period ending January 6, 1979, had increased 33 per-
cent, or by 9078 yards from the corresponding period in
1978. The level of orders before and after the layoff re-
mained sufficiently high so as to require overtime work
by the remaining work force. The General Counsel also
points out that more yardage of material was ordered
during the 4-month period from December 1978 through
March 1979 than during the same period in the preced-
ing year, and that the order backlog in January to March
1979 averaged about 50,000 yards. Even though sales
had fallen off in other comparable periods, in some in-
stances by as much as 50 percent, Respondent did not
lay off any employees. Generally, according to the Gen-
eral Counsel, Respondent's sales between November
1978 and January 1979 were 37 percent higher than Re-
spondent's sales during that same period in the prior
year. These figures, as well as Fab Industries' favorable
profit picture, demonstrate, in the opinion of the General
Counsel, that Respondent's economic justification is un-
supported.
I have considered the arguments made by both parties
as summarized above, as well as the additional statistical
references contained in their briefs. I have also analyzed
the voluminous documentary evidence offered and con-
clude that the sales and other statistical data do not sup-
port either position. Indeed, Respondent so much as con-
cedes that sole reliance on the production related statisti-
cal data may not reveal the true picture. It is true, for
example, that the sales figures show a reduction of
orders and resulting sales of handbag material during the
relevant time period preceding the layoff. But, it is also
true that similar reduction in orders and sales had oc-
curred during certain sales periods in prior years without
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
corresponding layoffs. We are then told that at this par-
ticular time a new competitor had entered the market
who was expected to make significant inroads in Re-
spondent's 90-percent control of the handbag business,
and that Respondent had already accumulated a large in-
ventory. However, by Respondent's own figures, the dif-
ference between anticipated orders and actual orders nar-
rowed sharply immediately prior to the layoff so that a
precipitous move such as a layoff because of the arrival
of the new competitor seemed exaggerated. On balance,
therefore, the record evidence is not conclusive that the
layoff was economically motivated. The record evidence
showing Respondent's efforts in fmding employment for
the 23 affected employees at a warehouse , building
(building 13) occupied by Adirondack Knitting Mills,
also a subsidiary of Fab Industries, was of little conse-
quence to the issue here, even though the record sug-
gests that these and other companies related to Respond-
ent participated in this effort.
Considering that Respondent's economic defense is not
persuasive, or is at best inconclusive, the inference is
clear that the layoff was discriminatorily motivated.
First, the layoff affected 23 employees, the majority of
whom had executed union cards; 14 second, Respondent
committed numerous 8(a)(1) violations and at least one
supervisor has blamed the employees' union activities for
the layoff; third, several employees were under the im-
pression that the layoff was union related; fourth, only a
week prior to the layoff, Respondent had hired several
new production employees; fifth, the layoff was institut-
ed after Respondent had knowledge of the union activity
of its employees; and sixth, the timing of the layoff—it
occurred at the height of the union campaign after the
Union had begun its organization drive on January 17
and prior to its request for recognition on February 6.
P. Discrimination Against Luis Lozada
Lozada had been employed in the inspection depart-
ment since September 17, 1979, on the first shift He ob-
tained the job through the referral of Luis Lopez who
was also his supervisor until February 13, 1979. On his
application, he indicated that he was an experienced trac-
tor trailer driver with a class I license.
On January 19, 1979, he requested froth Lopez a trans-
fer to the second shift because of babysitting problems.
His request was granted effective January 29. However,
on January 26, the day of the layoff, Gino Insogna called
him and expressed interest in hiring him as a truckdriver
for Adirondack Knitting. Lozada was also interested but
did not commit himself and said he would let Insogna
know in 2 weeks. Later that day, Lopez told him that
the transfer to the second shift could not be granted be-
cause of the effect of the general layoff. In early Febru-
ary, Insogna called Lozada again to offer him the truck-
driver's job. Lozada accepted and was then told to take
a written examination and a physical examination as well
as a driver's test. He took these tests and thought that he
had passed them but was never told whether he had
14 It was agreed between the parties that 20 of those on layoff had
iigned union cards, but the General Counsel concedes that 4 of those had
signed them after the layoff.
passed. He reported for his regular job on February 6
and was not contacted again about the job with Adiron-
dack.
On February 8, Lozada reported late for work but had
called Lopez about it beforehand. Similarly, on February
9, Lozada notified his Employer that he would be absent.
On February 12, he received two reprimands for his tar-
diness and absence. On February 13, Sasso reassigned
Lozada to the printing department where he worked
until the strike on April 27, 1979.
Because Lozada was the most prominent union sup-
port among Respondent's employees, it is the General
Counsel's position that this employee was a victim of dis-
criminatory treatment by his Employer. Initially, it is
clear that the warning notices contained a typographical
error, and that the date should have reflected the month
of February instead of "January." Moreover, Lozada's
tardiness on February 8 and his absence on February 9
are not contested. Discrimination, if any, is alleged on
the basis that these reprimands were out of the ordinary
when considered in the light of Respondent's past prac-
tices. In this regard, the record shows that Respondent
maintained an informal policy on absences or tardiness
but that such written notices and reprimands had been
issued to other employees in the past. Moreover, the
record also indicates that Lozada had a poor record for
punctuality and that he was frequently absent. The mere
fact that he had not received any written notices up until
his union activities does not isolate him thereafter. In
short, the record does not show any disparate treatment
of this employee. I, therefore, fmd that the issuance of
these notices did not violate Section 8(aX3) or (1) of the
Act.
The failure of Lozada to obtain the truckdriver's posi-
tion with Adirondack Knitting also does not show Re-
spondent's discriminatory conduct. First, culpability, if
any, would reflect on Adirondack Knitting rather than
the Respondent unless collusion can be shown. And the
record does not support such an inference. Second, the
record does not show whether Lozada had passed the
tests or whether the tests were fairly administered. In the
absence of such evidence, the record is inconclusive and
does not support any conclusion of discrimination.
With respect to Lozada's reassignment from the in-
spection department to the printing department, effective
February 14, the record shows that Lozada accepted the
transfer without objection. He testified that voicing his
complaint about the transfer would have endangered his
continued employment. Although Beckmann testified
that Lozada had requested such a transfer, Adam Sars-
mit, a supervisor in the printing department, confirmed
Lozada's testimony that he never requested such a trans-
fer, "because of the dirty job and stinky job." Clearly,
therefore, Respondent effectuated the transfer without
Lozada's consent. The record also shows that the job
was a less desirable position. Equally relevant to the con-
sideration of the issue is Lopez' comment on February
16. Lopez told Lozada at Ray's bar when they discussed
job reassignments: "Luis, you don't have to—we [are]
not going to give you a layoff. . . because we give [sic]
you the worst plant job in the plant and you're going to
GEM URETHANE CORP. 1367
quit." From the foregoing I am convinced that the osten-
sible reason for the transfer, namely, Manuel FaIlas' in-
ability to get along with Manuel Santiago in the printing
department, was pretextual and that the transfer violated
Section 8(a)(1) and (3) of the Act.
Finally, the General Counsel alleges discriminatory
treatment of Lozada because he was not among 14 em-
ployees- who received pay raises in January and again
one effective February 5, 1979. It is undisputed that
Lozada received an increase in January but not in Febru-
ary and that many employees received raises in both
months. This evidence alone does not show disparate
treatment, because there were other employees who also
failed to get raises in both months. However, the record
shows that Lozada asked Lopez why he was not includ-
ed among those receiving a pay increase in February and
Lopez replied: "You know why Luis, because of the
Union." With that explanation, the record supports the
clear inference that Respondent discriminated against
Lozada because of his union activities. Respondent's con-
duct in this regard violated Section 8(a)(3) and (1) of the
Act
Q. The Size of the Bargaining Unit
The General Counsel has alleged that on the date rec-
ognition was requested, February 6, 1979, the Union had
obtained a majority status with 47 valid cards in a unit
consisting of 79 employees. The Respondent argues that,
in addition to the 79 stipulated employees, 6 leadmen
must be added to the unit and that 11 employees who
were laid off must be excluded from the unit. The defini-
tion of the unit is, however, not in dispute.
The record contains a stipulation, dated October 22,
1979, with 72 names of employees stipulated to be in the
unit described in the complaint (Jt Exh, 1). Seven addi-
tional employees were subsequently stipulated to as be-
longing in that unit (Tr. 1772, 2063). Contrary to Re-
spondent's argument, the 11 employees who refused Re-
spondent's offer of recall in March and April after their
layoff on January 26 must certainly be considered em-
ployees on February 6. Although they may have found
employment elsewhere during the long layoff period, the
record nowhere suggests that on February 6, only 10
days after the layoff, they no longer considered them-
selves employees of the Respondent.
With regard to whether the stipulated unit of 79 em-
ployees should be augmented by 6 additional employees
who are alleged supervisors, the records shows, as al-
ready analyzed above, that of Lopez, Rygelsld, and Del-
Toro, only the latter was not a supervisory employee
who should therefore be added to the unit. With regard
to three other alleged supervisors, the records shows as
follows:
Antonio Novak was a supervisor within the meaning of
the Act. As a salaried employee in the production con-
trol department, he supervised two employees. He re-
ported directly to Beckmann and was responsible for the
taking of orders for production and the recording of pro-
duction statistics. He routinely and independently as-
signed the work to two employees in that department
and, on occasion, would authorize their request for
leave. He had also evaluated an employee for promotion.
Although he had no authority to hire, fire, or discipline
employees, he possessed sufficient discretionary authority
in his department, notably the assignment of work, so as
to qualify him as a supervisor.
Willard Pierce was assigned to the third shift in the
casting line and performed in essentially the same role as
Charles DelToro. Although he made assignments to ap-
proximately eight employees and watched and corrected
their mistakes, the assignments were made from a daily
schedule prepared by Bill Sasso. Pierce also signed the
employees' timecards and permitted them to leave early,
but the record does not show that he had any discretion
in doing so, such as the authority to refuse to give per-
mission for their early departure from work. Whenever
he had disciplinary problems with employees, he would
report the matter to Beckmann on the following day. He
also was invited to management meetings dealing with
the Union, yet he had no authority to adjust labor prob-
lems. He was an hourly paid employee with substantially
higher rates then the other employees in his department.
He possessed no authority to hire, fire, or transfer his
employees. His functions were comparable to those of a
leadman and not a supervisor within the meaning of the
Act.
Adam Sarsmit was the first-shift supervisor in the
printing department. He made work assignments to about
six employees on a daily basis on work schedules pre-
pared by Sasso. When problems occurred, Sarsmit had
the authority to depart from the prepared schedules. He
instructed employees to prepare machines and inspected
the work of the employees. When employees made mis-
takes, he was expected to solve the problems first before
seeking help from Sasso or Becktnann. He also had the
authority to transfer employees within his own depart-
ment. His pay was more than twice that of the other em-
ployees in his department. Although he similarly pos-
sessed no authority to hire, fire, or lay off employees, he
had sufficient discretionary authority in making assign-
ments, effectuating transfers, and seeing to it that the em-
ployees were working properly, so as to qualify him as a
supervisor within the meaning of the Act.
The unit of employees should therefore be augmented
by 2 to arrive at a total of 81 employees."
R. The Number of Valid Authorization Cards
From January 17 through February 6, 1979, when the
Union presented the Employer with its demand for rec-
ognition, 47 employees had executed authorization cards.
Respondent has contested the validity of 16 cards, as dis-
cussed below, and has, therefore, argued that the Union
did not represent an uncoerced majority of employees.
Samuel Rodriguez. Rodriguez testified and authenticat-
ed his own card (G.C. Exh. 9). Respondent's objection is
based on the witness' testimony that Tony Rivera, who
had asked Rodriguez to sign a union card, had stated:
"That just about everyone in the factory had signed."
Although Rodriguez testified that he had relied on that
15 Alex Zayas (Castillo) was not among the list of 23 laid-off employ-
ees. He was transferred to another shift but refused the transfer. There is
no evidence in the record that the transfer constituted a constructive
layoff. Accordingly, this employee was not part of the unit.
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statement when he signed the card, the record shows
that Rivera's statement was actually made about 1 week
before Rodriguez had signed the card, and that it was
not Rivera who solicited his signature but Judy Conley,
the union organizer. Rodriguez also stated that he had
relied at least in part on Conley's explanation of the
union benefits when he signed the card.
Assuming that Rivera's statement was incorrect, the
issue is whether there was proof that Rodriguez signed
the card based solely on this misrepresentation. In Marie
Philips, 178 NLRB 340 (1969), the Board stated that the
objective facts, contemporaneous with the signing of the
card, are decisive and not a signer's subsequent testimony
showing his subjective statement of mind. In this regard,
I find that the evidence falls short of the required show-
ing that the card signer relied solely on a misrepresenta-
tion. Here, the misrepresentation was made 1 week prior
to the signing of the card; it was not made by the card
solicitor; and the card signer stated that he did not rely
exclusively on the misrepresentation but also in part on
other, legitimate factors. Accordingly, I find the card to
be a valid expression of union support towards a show-
ing of majority status.
Florencio Gonzalez. This employee also authenticated
his own card (G.C. Exh. 15). He testified that Lozada
had solicited him several times before he finally signed it
but only after he was told that the purpose of the card
was to obtain an election. Lozada told him that "the ma-
jority had signed the cards already and only a few of us
were left who hadn't signed." In his testimony, he con-
ceded that the union benefits also played a part in his de-
cision to sign the card and stated: "All Spanish people
had signed and I wasn't going to remain not signing and
have problems later on."
The record plainly shows that on January 23, when he
signed the card, the Union had not yet obtained a major-
ity, and that he nevertheless relied on Lozada's represen-
tation to the contrary. The evidence clearly indicates
that he was solicited on the basis of a dual misrepresenta-
tion, i.e., the card's purpose to obtain an election and the
completion of a majority.
I therefore find that his card is invalid.
Jerrold Hock also admitted signing a union card. He
testified that after a number of persons, including Ed Mi-
kulik, John Page, and Luis Lozada, asked him to sign a
card, he signed one when Mikulik told him that the card
was only for an election, that "[he] could sign it and help
them out in their quest for an election." He testified that
Mikulik also mentioned certain union benefits and that he
read the card before signing it. He further stated that he
did not sign the card right then and there but that he
took it to the reactor room where he discussed it first
with a friend.
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
the Court realized "that employees are more likely than
not, many months after a card drive and in response to
questions by company counsel, to give testimony damag-
ing to the union." It is, therefore, more important to find
the facts surrounding the actual solicitation than what
the employees may have believed when they signed the
card. Here, the record shows that Hock read the card,
which is unequivocal on its face. He also carefully con-
sidered the pros and cons before signing it. He was ap-
proached by more than one solicitor, only one of whom
told him that the purpose of the card was for an election.
The statement of this one solicitor under these circum-
stances was plainly insufficient to vitiate the card. NLRB
v. Gissel Packing Co., supra at 608.
Felipe Sasso, of Italian background, had obvious diffi-
culties speaking and understanding English. Respondent
challenged his card because he signed it "without read-
ing it, without understanding its contents and without
the benefits of any explanation as to what he was sign-
ing."
To be sure, the record shows that Sasso could barely
understand the questions posed by the counsel, and that
he had even greater difficulty expressing himself during
his examination as a witness. He clearly recognized,
however, that the card he signed was a union card. The
record further shows that Lozada, who had solicited his
signature, explained the purpose of the card and filled in
the blanks for him. Nevertheless, it appears that Sasso
did not have detailed and thorough understanding of the
significance of signing the card. The clear implication
then is whether a signer's inability to read the card and
to fully comprehend the solicitor's explanations render
the card invalid, even though the signatory knew that it
was for the Union. He was not a victim of any misrepre-
sentation or coercion. I believe that an inference of union
support can properly be drawn from the mere act of
signing a document that the signer knows to be related
to the Union. I therefore cannot find this card invalid.
Gilberto Valencia testified that he signed his union card
on February 3, only after repeated visits by union solici-
tors. Lozada and Union Representative Perez told him
that he was one of the last holdouts. Although they did
not represent that everyone else had already signed, they
made it clear that "only a few were left"; and that he
was "one of the last to sign a card." He explained the
reasons for his signature as follows:
Under the circumstances, I signed it under certain
circumstances. When someone is after you, you get
tired at some point. I had to sign it so I could be
free. I had to sign it, I had no choice. Every day
they came to me and say, sign, and so fmally they
came to my house and I had to sign it. [Tr. 2295.]
At first blush, Valencia's explanation suggests that he
signed the card under duress or as a result of misrepre-
sentations. However, the totality of his testimony does
not support either inference. For example, he denied that
he or his family were threatened in any way, or that any
promises were made; he stated that the visits to his house
were friendly and that he never asked any of the -union
supporters to stop talking to him about the Union. He
admitted that at least one of the union supporters was a
friend and that he partially read the card. In view of the
fact that he signed the card on February 3, only 3 days
prior to the union demand for recognition, the represen-
tation that he was one of the last holdouts was not false.
Accordingly, I disagree with the Respondent that his
card is invalid.
GEM URETHANE CORP. 1369
Alex C. Zayas was transferred on January 26 to a dif-
ferent shift. Because of his wife's conflicting work sched-
ule, Zayas refused the transfer. He was then offered a
job with Adirondack Knitting. He declined the job be-
cause of the poor working conditions. Zayas then signed
up for unemployment compensation. Because the record
does not indicate that Zayas was constructively laid off,
I agree with the Respondent that he voluntarily left the
employ of this Company and that his card should not
be16 included within the February 6 majority.
Robert LaPorta, Gary Fiorillo, and Fred Close. Re-
spondent objects to the authenticity of the union cards of
these three employees (G.C. Exhs. 17, 18, and 20), alleg-
ing that the signatures on these cards were not properly
identified, and that these people, who did not appear as
witnesses, could not be examined about the circum-
stances surrounding their signatures.
The record contains the testimony of Judy Conley, the
Union's business agent who explained that she and
Jimmy Perez personally verified the signatures of ap-
proximately 10 cards by visiting the card signers at their
homes. She testified that she went to Robert LaPorta's
house, talked to him, and asked him whether the signa-
ture appearing on his card (G.C. Exh. 17) was his. He
confirmed that this card was signed by him (Tr. 251).
She also visited the house of Gary Fiorillo. She recalled
that it had snowed that day and that Fiorillo had been
working hard and was anxious to be left alone. After he
confirmed his signature, they immediately left (Tr. 251).
Conley verified the signature on the card of Fred Close
at Ray's bar, because Close, a bicycle enthusiast, was
seldom at home. Accompanied by Claudia Elms, 17 she
merely asked him whether he signed the card. When he
confirmed that he did, they left.
The record also contains the "W-4" forms of Gary
Fiorillo and Robert LaPorta (G.C. Exhs. 131, 137). A
comparison of the signatures on these cards plainly
shows their resemblance with the signatures on the union
cards. The signature of Fred Close was authenticated by
a comparison of his signature contained on the union
card with that on his job application (G.C. Exh. 268).
Based on the foregoing evidence, it is clear that these
cards have been fully authenticated. The mere fact that
these card signers did not appear as witnesses does not
permit an inference that their signatures were improperly
obtained.
Albert Bodde and Ed LaPorta. Respondent similarly ob-
jects to the validity of the cards of Bodde and Ed La-
Porta (G.C. Exhs. 31, 36). Yet the record shows that
Claudia Elms, a union organizer, who was accompanied
by Jimmy Perez verified the signatures of approximately
15 union cards, including those of Bodde and Ed La-
Porta, by showing the cards to these employees and
asking them whether they knew the significance of the
card and whether they recognized their signatures. In
addition, the record contains the "W-4" forms of these
employees, enabling a signature comparison with the
union cards (G,C. Exhs. 125, 127). Such a comparison
clearly indicates the authenticity of the signatures. I con-
16 fie was not 1 of the 79 employees stipulated to be in the unit.
17 Elms corroborated Conley's testimony (Tr. 352).
elude that, without any evidence of coercion or misrep-
resentation, these cards are valid.
Finally, it is clear that having Spanish-speaking union
organizers, such as Perez, as well as union cards printed
in Spanish assured that the Spanish-speaking employees
were able to comprehend the significance of their signa-
tures.
Jose Saybe and Frederick Seneca!. Respondent's objec-
tion to the validity of the authorization cards of Saybe
(G.C. Exh. 121) and Senecal (G.C. Exh. 124) is based on
the fact that proof of authenticity were the "W-4" forms
of the two employees. In substance, Respondent points
out that the absence of any testimony surrounding the
signing of the cards leaves open any questions of misrep-
resentation or harassment of the card signers and that a
signature comparison by the trier of facts is insufficient.
Contrary to Respondent's argument, the record gener-
ally shows that the Union went to considerable efforts in
assuring that the employees were fully informed by in-
cluding Spanish-speaking organizers, such as Perez, and
in verifying signatures as in the cases of Bodde and La-
Porta, discussed above. However, I will follow the deci-
sion Curlee Clothing Co., 240 NLRB 344, 373 (1979). Al-
though I similarly believe that a comparison of the signa-
tures contained on the "W-4" forms (G.C. Exhs. 122,
125) showed them to be sufficiently similar to establish
authenticity, I will not count these cards towards a ma-
jority status.
Carlos Torres and Hector Martinez. Their cards are
challenged because their testimony indicated that they
signed the cards in order to obtain an election. The
record shows that Torres initially testified that he read
the card and then signed it. During cross-examination, he
answered in the affirmative when asked whether he was
told by the solicitor that the only purpose of the card
was for an election. However, in subsequent testimony,
Torres again stated that he read the card, that he under-
stood it, and that he was told that the purpose of the
card was for the Union to represent the employees. In
short, the totality of his testimony indicates that he
signed the card without any false inducements.
Martinez similarly testified at one point that he did not
believe "that his card or [his] signature was for the
union, for the enforcement of the union without voting
or without election." Yet, he also testified that the card
solicitor "talked about better salary, better insurance and
that's it." He testified that he knew the purpose of the
card was "that [he] would be represented by the union."
(Tr. 2256.) Consideration of the testimony in its entirety
reflects that Martinez' signature was not obtained on the
basis that it would be for an election. Accordingly, both
cards should be considered as part of the majority.
George Bottomley. Respondent argues that Bottomley's
testimony was so confused and inherently incredible that
his card should be invalidated. Although I agree that
Bottomley was nervous as a witness and unsure of his
testimony, I believe that he basically understood that the
act of signing a union card was to express his support for
union representation. He testified unequivocally that he
had read the card prior to signing it, and that he under-
stood what he had read. He demonstrated his reading
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ability during the hearing. I cannot fmd that he was
either mislead into signing the card or that he was forced
to do so, and I cannot conclude that he failed to under-
stand the significance of signing it. I therefore find the
card valid.
In summary, I have found that 4 of the 16 cards in dis-
pute (Gonzalez, Zayas, Saybe, and Senecal) will not be
counted towards majority status. The parties are in
agreement that a total of 47 cards were introduced into
the record in support of the Union's demand for recogni-
tion on February 6, 1979. Accordingly, 43 valid cards's
in a unit consisting of 81 employees gave the Union ma-
jority status as of February 6, 1979."
S. The Refusal to Recognize the Union and Refusal to
Bargain
It is undisputed that the Union made a valid demand
for recognition on February 6. Union representatives ac-
tually made several demands, twice in person and once
by telegram. Respondent, by letter dated February 6,
denied recognition. "When confronted by a recognition
demand based on possession of cards allegedly signed by
a majority of his employees, an employer need not grant
recognition immediately [However, when an] em-
ployer commits independent and substantial unfair labor
practices disruptive of election results, the Board may
. . issue a bargaining order as a remedy for the various
violations." NLRB v. Gissel Packing Co., 395 U.S. 575,
591 (1969). In this regard, the Employer argues that the
unfair labor practices did not impair a fair election and
that the Union's violent and coercive conduct during the
strike precludes a bargaining order in any case.
Athough it is true that an employer's commission of
unfair labor practices does not automatically result in a
bargaining order even where the union had majority
status, a bargaining order is appropriate where the unfair
labor practices are considered "pervasive," and have a
tendency to undermine majority strength or impede the
election in process. Under the circumstances here, it
cannot be gainsaid that Respondent's unfair labor prac-
tices were anything but numerous and pervasive. Not
only has it been shown that Respondent engaged in
almost every conceivable independent violation of Sec-
tion 8(a)(1), but also its unlawful conduct also included a
discriminatory and long lasting layoff of almost one-third
of its labor force and several acts of discrimination
against Lozada, the chief union supporter among the em-
ployees. Under the circumstances, the effect of Respond-
ent's conduct is long lasting, so as to render an impartial
election well nigh impossible, particularly because virtu-
ally every second or third employee was affected in one
way or another.
For a determination of whether the Union's conduct
during the strike would preclude a bargaining order, I
now turn to those issues.
18 Because only 16 of the 117 cards were in dispute, I have found it
unnecessary to discuss the other 31 cards in any detail. Moreover, the
General Counsel has carefully analyzed the manner in which these cards
were introduced into the record. It shows that these cards were properly
authenticated either by the signers themselves, by their solicitors, or by
subsequent verification of signatures.
i9 The two alleged supervisors did not execute cards.
T. The Strike
Initially it must be determined whether the strike by
approximately 30 employees amounted to an unfair labor
practice strike, as submitted by the General Counsel. Re-
spondent argues that there is no evidence in the record
that would suggest that the Employer's unlawful prac-
tices either precipitated or prolonged the strike.
The record shows that the Union informed the Re-
spondent, by letter of April 27, 1979 (G.C. Exh. 278), as
follows:
As you know, the Upstate New York District
Council International Ladies' Garment Workers
Union, AFL-CIO, is picketing your premises at
Lower East Main Street, Amsterdam, New York.
This picketing is in protest against the numerous
unfair labor practices committed by Gem Urethane
Corp., its officers, agents and representatives.
We wish to make it perfectly clear that the pick-
eting is directed solely at the unfair labor practices
committed by Gem Urethane Corp. This picketing
is not for recognition or organization of Gem Ure-
thane Corp., and the Union's staff and pickets have
been so instructed. We further wish to assure you
that the picketing at Gem Urethane Corp. will be
discontinued just as soon as the unfair labor prac-
tices have been effectively remedied.
Should anything arise in the course of the picket-
ing contrary to the purpose and instructions as set
forth above, or should any other misunderstanding
occur, we ask you kindly to bring it to our attention
at once, so that proper corrective measures may be
undertaken immediately.
As a result, 30 employees struck Respondent's plant as
of April 27. On May 4 Respondent filed an unfair labor
practice charge against the Union in Case 3-CB-3408 al-
leging strike misconduct. On June 6 the Board issued a
complaint alleging strike misconduct in violation of Sec-
tion 8(b)(1)(A) of the Act by the Union and by approxi-
mately 12 employees, as agents of the Union.
On June 14 the Union communicated its unconditional
offer to return to work, by sending a telegram to the Re-
spondent. The telegram emphasized that the Union made
its offer on behalf of the unfair labor practice strikers
(G.C. Exh 25).
Respondent accepted the Union's unconditional offer
by letter dated June 15, which states as follows (G.C.
Exh. 26):
Your unconditional offer to return to work is ac-
cepted by the Company. As you are aware, our
annual industry vacation shut-down is rapidly ap-
proaching and our inventories, incoming shipments
and production levels are at our usual low ebb at
this time of the year. We will be starting up oper-
ations again on July 9, 1979. At that time, all strik-
ing employees desiring to return to work will be re-
employed some time during that week based upon
start-up production needs and in order of seniority.
As to those strikers listed below,' it appears that
these individuals engaged in excessive behavior on
GEM URETHANE _CORP. 1371
the picket line and elsewhere that endangered the
welfare and safety of the Company employees, offi-
cers and property. The Company will, therefore,
take these 12 individual applications under advise-
ment pending our own independent investigation
into the extent of their misconduct. You will, of
course, be informed as to the results of our investi-
gation as soon thereafter as practicable.
Yours very truly,
Klaus Beckmann,
Vice President
[They are:] Mariano Gonzalez, Sylvestre Hernandez, Luis
Santiago, Enrique Lopez, Carlos Montalvo, Wilfredo Vargas, Luis
Lozada, Jose Pelliccia, Carlos Villalta, Milton Nieto, Thomas
Rivera, and Alex Zayas.
As a consequence, Respondent reinstated a total of 18
strikers, 4 of whom had previously discontinued their
strike and had already been reinstated (Castro on June 5,
Figueroa on June 6, Martinez on June 11, and Rodriguez
on June 12). The other 14, however, were not immedi-
ately put back to work. The first to be reinstated was
Valencia on June 25, followed by Baez, Gonzalez, C.
Bermudez, A. Bermudez, Torres, Quinones, Belli, Matos,
and Colon on June 26, and Fallas, Alverado, and E. Ro-
driguez on July 18. The 12 strikers who were mentioned
in Respondent's letter as having engaged in strike mis-
conduct were also listed in the Board's complaint, with a
variety of strike misconduct charges. They were not re-
instated.
The law is clear, pursuant to Section 2(3) of the Act,
that strikers retain their employee status during the strike
and must be reinstated depending on whether the stop-
page is defined as an economic strike or an unfair labor
practice strike. In the event the strike is of the latter cat-
egory, strikers are entitled to immediate reinstatement to
their former jobs. However, an employer need not rein-
state strikers who have been guilty of strike misconduct.
The record supports the General Counsel's position
that the strike, which began on April 27, was an unfair
labor practice strike. The Union so notified the Employ-
er by letter of April 27. Respondent had, as discussed
above, engaged in numerous unfair labor practices that
were of such a serious and continuous nature that they
not only precipitated the work stoppage, but also pro-
longed it until the Union capitulated with its offer of an
unconditional return to work on June 14, 1979. There is
no evidence that the strike was an economic strike. To
the contrary, several employees had been treated to suc-
cessive pay raises in January and February, which
caused concern among some of the employees.
To a degree, Respondent is correct in suggesting "that
the strike was undertaken for recognitional purposes,"
for the chain of events itself suggests that the Union
struggled against the Employer's antiunion campaign.
First, the Union attempted to organize the employees;
then the Employer unlawfully interfered with the em-
ployees' Section 7 rights; it subsequently refused to rec-
ognize the Union, despite a majority of authorization
cards; and finally, it laid off 23 employees and committed
other discriminatory conduct toward the chief union ac-
tivists among the employees. These events certainly
show that the Union attempted to counter the campaign
with the ultimate goal of achieving recognition, which—
absent the Employer's unlawful conduct—would not
have been necessary. That the strike was a reaction to
the unfair labor practices of the Employer and, accord-
ingly, an unfair labor practice strike, cannot be seriously
doubted. Respondent's delay in reinstating the 14 em-
ployees following their unconditional offer on June 14 to
return to work, therefore, violated Section 8(a)(1) and (3)
of the Act.
The next issue is whether the Employer was justified
in refusing to reinstate the 12 strikers because of their al-
leged misconduct.
V. Strike Misconduct
The parties are in agreement, and it is well settled that
strikers who have committed serious acts of misconduct
are not entitled to reinstatement. NLRB v. Fanstell Met-
allurgical Corp., 306 U.S. 240 (1939). However, not every
act of misconduct will disqualify a striker from his reem-
ployment rights. The test is whether the misconduct is so
violent or of such a serious character so as to render the
employee unfit for further service, or whether it is
merely a trivial incident occurring in a moment of animal
exuberance. Moore Business Forms, 224 NLRB 393, 395
(1976). For example, in Coronet Casuals, 207 NLRB 304,
305 (1973), the Board held that, absent violence, abusive,
or obscene language, threats against nonstrikers, disor-
derly arguments, even minor scuffles, or the momentary
blocking of cars is not of sufficient serious misconduct to
remove the protection of the Act. Significantly here, it is
not only the Company's good-faith belief that strikers en-
gaged in unlawful conduct, but also whether these em-
ployees in fact engaged in such conduct. NLRB v.
Burnup & Sims, 379 U.S. 21, 23 (1964).
Initially, the record reveals that Respondent, in deter-
mining whether an employee had engaged in miscon-
duct, relied both on the complaint in Case 3-CB-3408, in
which individual misconduct was alleged, as well as on
its own investigation of the matter (Tr. 2639). Because
the CB case had been settled between the Union and the
General Counsel, the latter did not assume the burden of
showing striker misconduct. Instead that burden
switched, requiring Respondent to show the basis on
which it refused reinstatement with respect to all 12
strikers. In this regard, the record shows as follows:
Wilfredo Vargas. On June 5, about 5:30 a.m., Mina Al-
varez and her father Francisco Alvarez were wallcing to
work. They were nonstrikers and were about 7 blocks
away from the plant, when they saw Wilfredo, a partici-
pant in the strike, follow them. Vargas' subsequent con-
duct is best described by Nuria Alvarez (Tr. 2304-2306):
And he pushed the tire . . . but the tire missed us
and it went directly into the street and then the
guy, I don't know, maybe he was mad or some-
thing, because he was making noises like a bull and
he became angry and. . . he hit me with his arm
and elbow and so my father said, "what's happen-
ing," but he didn't answer, he just run and. . . he
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
came back, but when he came back, his face was
red, completely and his eyes were like coming out
of his face and I don't know, it was so terrible, I
was frightened and I . . was in back of my father
and when he got to me, he throwed his hand to my
face. . . . I was scared, so my father said to the
guy, "what's going on, what's happened to you,
don't you know she's my daughter," and the guy,
he laughing, he say, "I didn't know, I didn't know
she was your daughter," and of course, everybody
knows and the guy started laughing and laughing
and. . . we continued walking and then he got fu-
rious or something like that, because he make some
noise like a bull and there was noise coming out of
his face and he had two umbrella sticks by all the
garbage and trash that was there and he picked it
up and we were walking faster and he started
saying to us a lot of things, bad things. Hurting
things like, "you're disturbing people, go back to
your country, you're doing nothing here," . . .
threats that we are going . . . . We continued
walking faster and faster and almost about 25
meters to the booth that the guard was, I looked
back and my father too and we saw the guard and
he pick up a rock and threw it to us, so we pushed
each other to the side and the stone just passed in
between us and hit my father's handbag. As my
father, tried to duck the stone he fell down and
when the guy saw him there, the guy said to my
father, "we are going to destroy each other, we are
going to destroy each other," and at that moment,
the guard at the booth said, "what's going on," and
then the guard called the police and the police saw
us about 15 minutes.
Vargas ultimately pleaded guilty to the charges
pressed by Alvarez and was jailed for 15 days.
The General Counsel and the Union, although not de-
nying that the incident happened, 2° regard it as not in
any way strike related. I disagree. Nuria and Francisco
Alvarez were on their way to work, they did not partici-
pate in the strike. Vargas, a participant in the strike, was
on his way to the picket line. Vargas' threats and other
remarks were clearly related to the antipathy that the
strikers had for the nonstrikers.
In addition to this incident, there was testimony by Al-
varez that one afternoon Vargas attempted to follow him
in his car. In yet another incident, Vargas and a group of
other strikers pounded the car of Vincenzo Nicosia and
threw a rock at him (Tr. 2340, 2478-2479).
By all standards of misconduct, that of Vargas, par-
ticularly that directed at Francisco and Nuria Alvarez,
amounted to such violent, hateful, and threatening be-
havior, so as to render this employee unfit for future em-
ployment with Gem.
Luis Santiago. Evidence of strike misconduct by Luis
Santiago involved two incidents. The first began on May
3 when George Welke, a nonstriker, went to a McDon-
ald's restaurant. According to Welke, Santiago asked
20 Francisco Alvarez corroborated his daughter's testimony and
Vargas did not deny the mcident
Welke whether he worked for the Respondent and
whether the van he was driving belonged to him. Welke
denied that he worked for Gem or that the van was his
own. Santiago threatened that he would "get" Welke if
he were lying. On the following day, at 10:30 p.m., when
Welke was walking near the plant, Santiago suddenly ap-
proached in a car and, on recognizing Welke, jumped on
him. Welke who is bigger and stronger than his attacker
was able to fend him off. Then, two of Santiago's friends
assisted him in the scuffle until Welke's friends arrived at
the scene, resulting in a general standoff.
Santiago in his testimony denied that he ever assaulted
Welke.
I have not credited Welke's testimony, because the
episode seems implausible. Santiago, compared to Welke,
is diminutive in body build, and, as a witness, Santiago
appeared extremely shy and timid. I simply cannot con-
ceive of someone like Santiago attempting to physically
assault anyone, particularly someone as rugged as Welke.
Moreover, the record does not show any plausible
reason for such an attack; Welke did not impress me as
being too timid to admit that he was an employee of
Gem Urethane, nor would such a denial be likely to
result in an assault.
The other incident of misconduct that Santiago did not
deny involved name calling. Paul Billington, a non-
striker, testified as follows (Tr. 2226): "I kept going by
and he kept calling me 'scab,' but that didn't bother me.
He was drunk and he came over by the gate. I crossed
the gate first and he came over and he said he was going
to kick my ass and he called me other names."
This misconduct, which was not accompanied by con-
comitant violence, did not rise to the level of disqualify-
ing him from reinstatement.
Milton Nieto. Several witnesses implicated Nieto in
acts of misconduct. Nuria and Francisco Alvarez de-
scribed how Nieto confronted them near a supermarket
and asked them to join the Union. When Alvarez said
that they were not interested, Nieto said to be careful be-
cause they would do whatever is necessary, that they did
not mind killing if necessary because they are struggling
for their being.21
Ernest Morales, a strike replacement, explained in his
testimony that Nieto threatened him with a knife about 1
or 4 weeks after the strike had begun. Nieto confronted
him, his wife, and friends in a parking lot with a knife in
his hand and said, "they're going to kill you." Morales
had to step back several times as Nieto thrusted his knife
at him. Morales said to him, "what is the matter, I have
nothing against you, why do you have a knife?" Nieto
answered that he used the knife to comb his hair and
that everyone who worked for the Company had sold
themselves. He also shouted an obscene word.22
A third incident occurred at Ray's bar. Juan Tirado
testified as follows (Tr. 2460):
21 I have credited the testimony of the Alvarezes that appeared honest
and straightforward. Nieto's testimony, denying it, appeared hesitant and
insincere.
22 Nieto who denied the incident did not impress me as a reliable wit-
ness. I have therefore credited Morales' testimony.
GEM URETHANE CORP. 1373
I came out of work and went into the bar to
have a beer. There was a man there who they
called Milton Nieto and he had a nail clipper and he
tried to pinch me on the abdomen and then I asked
him what was the problem and he said the word to
me that I don't understand, scab or something like
that. I asked him if the problem was because I
worked in the factory and he said, yes. Then I told
him to take care of this outside and I went out and
he and his companions told me, yeah, come on, let's
go out and I went out and two of them also came
out.
Once outside, Nieto had a knife and attempted to cut
Tirado with it. When another man with a broken bottle
joined Nieto, Tirado said that he could not tight two
armed men and returned to the inside of the bar. The
police finally arrived and broke up the fight. On a subse-
quent day, Nieto called him obscene names and again
threatened to beat him up.
In the next episode of strike misconduct, Hector
Manuel Martinez, a striker who had crossed the picket
line and returned to work was threatened by Nieto. He
would call Martinez a "brown-noser and accuse him of
. being in bed in the company, being in cahoots with the
company," and shout obscene names at him. Martinez
filed charges with the police, but the case was dismissed
voluntarily.
Based on the above incidents that show repeated
threats and violence, I have no difficulty in finding that
Nieto's behavior rose to the required level of misconduct
so as to disqualify him from reinstatement.
Luis Lozada. Plant Manager Beckmann testified that
on May 5 or 6, a car blocked the driveway; while he
waited for the driver to move the car, Lozada asked
Beckmann where he was getting all the people. Beck-
mann did not reply. Lozada then raised his clenched fist
stating: "We'll get you." In another episode, which hap-
pened about 2 weeks after the strike had begun, Lozada
told Beckmann that he did not like being photographed.
Boolonann's practice of taking pictures of strikers was
apparently deeply resented by the strikers. Beckmann
merely replied that he was taking pictures to prove mis-
conduct. Lozada became angry and threatened that if he
did not stop taking his picture, he would jump him, and
break his camera. At that point, Judy Conley talked to
Lozada while Beckmann drove off.
Guido Barquero, a nonstriker, met Lozada at Ray's
bar. Lozada told him not to go to work on the following
Monday "because there were some people that would
break" his arms and legs.
In addition to these incidents, Hock testified that
Lozada was among other strikers who had blocked his
ingress to the plant on five occasions while shouting ob-
scenities in an attempt to stop him from going to work.
And Tirado recalled that 2 weeks after he began work in
May, Lozada was one of several strikers who pounded
on the car driven by a fellow employee.
Although it is true, as argued by the General Counsel
and the Union, that any one of these acts of misconduct
may be insufficient to disqualify a striker from reinstate-
ment, the record here shows that Lozada participated in
several acts of misconduct, including direct threats to the
chief executive of the Company, the temporary blocking
of cars, and the pounding on cars driven by nonstrikers.
The cumulative effect of this behavior disqualifies this
striker from reinstatement. These were threats clearly di-
rected as a specific person, the stopping of cars happened
on at least five occasions, and he participated in pound-
ing on cars.
Carlos Montalvo. Montalvo's chief accuser was
Edward M. Carbone, head electrician at Gem. Carbone
described an incident that happened about the first of
May, when he approached the gate to the plant, as fol-
lows (Tr. 2141-2142):
I was going down to the Elk Street Gate. As I
approached the gate, three men came out and
flagged and stopped my car. One of them—I recog-
nized all the people, but I recognized one by name,
Carlos Montalvo, whom I have known for 6 or 7
years. He worked at GEM Urethane and all the
sudden the car was surrounded by at least 9 people,
screaming and yelling, shouting, threatening to kill
me, trying to open the car, trying to drag me out of
the car. It was a good thing I had all the doors
locked and the windows were up. They proceeded
and they were beating on the glass and the car and
this guy, Montalvo, he was right in front of me. I'm
sitting in the driver's seat and he was right in front
of me. I could see him, he was going berserk, veins
were popping out of his head, beating on the car,
screaming, yelling, "I'll kill you," all this other stuff
and this went on so finally I had to let the car
move, so I just took my foot off the brake and
slowly pushed them with the car until they finally
backed away and I was able to go through. It was
very upsetting. I was extremely nervous after that.
The record, however, shows that the strikers' reaction
may have been precipitated when Carbone drove into
the plant too quickly and without stopping for Montalvo,
so that the latter had to jump out of the way to avoid
getting hit.23 Under these circumstances, Montalvo's
action may have been provoked.
George Shibley testified that one Sunday night several
strikers, including someone by the name of Carlos,
threatened him and warned him not to come to work or
he would get hurt. A review of Shibley's testimony
shows that his testimony is unreliable, exaggerated, and
vague. I have therefore discounted this episode.
The only other incident involving Montalvo occurred
on another Sunday night when nonstriker Milton Ander-
son was visiting a neighbor. Montalvo drove up and said
to Anderson that he would be beaten up if he went to
work. Although the testimony is clear that Montalvo
himself had no intention of committing an assault, the
record is vague and uncertain as to any other details sur-
rounding this threat. In any case, it is clear that neither
this incident nor any other involved any serious miscon-
duct so as to disqualify Montalvo from reinstatement.
23 This is based on the testimony of Pelliecia and Conley.
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thomas Rivera. Lester Lawyer, who did not partici-
pate in the strike, testified that during the beginning of
the strike, when he went to work, he was delayed at the
plant for about 5 minutes. During that time, Rivera,
among other strikers called him a "scab" and a "nigger"
and also threatened that if he went to work, they would
"blow up the plant" or that he "was going to get a visit"
at his house. Although Lawyer did not believe that
Rivera and the other strikers were merely joking when
they made their remarks, he conceded that he doubted
their intention to carry out any of those threats, because,
he explained (Tr. 2126): "To tell you the truth, they
were all feeling good. In other words, they were high.
They had been drinking."
Michael Lindahl, another nonstriking employee, testi-
fied that on the first day of the strike, Rivera shouted
that he would kick his butt if he went to work.
Milton Anderson, also a nonstriker, described an inci-
dent during the second week of the strike, when Rivera
met Anderson in the restroom. Rivera informed Ander-
son that he was breaking the strike and if it had been in
New York there would have been two people dead. As a
result, Anderson was worried and stayed home for a few
days.
Finally, Nuria Alvarez made a general observation
during her testimony that strikers, including Rivera,
threatened her that they would burn her car, and that
one person will "get" her and another her father.
The foregoing incidents did not involve any physical
violence, but were threats of bodily harm. These threats
were not accompanied by any simultaneous motions or
expressions that might cause immediate apprehension of
injury. Although at least one threat was taken seriously
by the nonstriking employee, I believe that the utterance
of threats under these circumstances did not involve suf-
ficiently serious misconduct so as to disqualify this em-
ployee.
Alex Zayas: In his testimony, Jerrold Hock, a nonstrik-
ing employee, listed several strikers who had held him
up from proceeding through the gate of the plant and
who had shouted obscenities. One of them was Zayas.
In addition, Vincenzo Nicosia testified that Alex Zayas
was among certain strikers who had shouted obscenities
at him.
According to Michael Lindahl and Klaus Beckmann,
Zayas blocked Lindahl's ingress to the plant on April 27.
However, Zayas immediately cleared the way for Lin-
dahl when Beckmann asked him to move.
Only the latter incident is supported by specific and
detailed testimony to enable a fmding of misconduct.
However, the temporary blocking of the driveway was
not of the type of misconduct envisioned by the Board
to bar reinstatement. And evidence of the prior alleged
misconduct was simply lacking specificity and a descrip-
tion of surrounding circumstances from which a fmding
of unlawfulness can be made.
Sylvestre Hernandez. The only incident involving Her-
nandez is based on the testimony of Richard Welke. Two
weeks after the commencement of the strike, Sasso re-
quested Welke to take another nonstriking employee by
the name of Giacomo home in the company van. When
they reached the gate, a car belonging to Hernandez
blocked the road. Hernandez stepped out of the blocking
car with a baseball bat that he held in a threatening
marmer. Welke then turned back and someone else took
Giacomo home without further incident.24
The misconduct of this employee involves the block-
ing of the driveway and a threatening disposition toward
two nonstriking employees. Yet, I do not consider these
isolated occurrences sufficiently serious to disqualify
Hernandez from reinstatement.
Joe Pelliccia. Pelliccia was accused by Nuria Alvarez
to have thrown "nails on the road or something." Al-
though she testified that she was sure that Pelliccia had
thrown nails, the record shows that she did not have
personal knowledge of any such incident.
In addition, Pelliccia admitted to having pounded on a
car driven by Vincenzo Nicosia, a nonstriker. But this
happened after Nicosia's car struck a striker who was
subsequently taken to a hospital for treatment. Pelliccia
also denied the allegation that he threatened employees
with placing a bomb in the plant.
Carlos Villata, Enrique Lopez, and Mariano Gonzales.
The record contains no credible or reliable evidence of
any strike misconduct by these three strikers.
On the basis of the foregoing, I conclude that all the
strikers, with the exception of Wilfredo Vargas, Luis
Lozada, and Milton Nieto, should have been reinstated.
III. DISCOVERY OF THE "CB" FILE
During the hearing, Respondent attempted to subpoe-
na the CB file in Case 3-CB-3408 because it might con-
tain relevant information of strike misconduct. The Gen-
eral Counsel denied the request and under Section
102.118 of the Board's Rules, I had no authority to order
the disclosure. I had therefore indicated that consider-
ation should be given to my drawing an adverse infer-
ence from the General Counsel's failure to disclose to the
Respondent the contents of the CB case, because I be-
lieved that fairness and justice required the availability of
all relevant evidence. Although I am still of the opinion
that the information in the CB file was relevant and
should have been made available to Respondent's sub-
poena request under the limited circumstances here
where the file was unlikely to have posed a serious risk
of "interference" or of witness intimidation, I am bound
to follow well-established case law that limits discovery
in these proceedings. The drawing of an adverse infer-
ence, of course, would only be appropriate when the
General Counsel had unlawfully withheld relevant infor-
mation. In this regard there is no authority that the fail-
ure to disclose an investigatory filed constitutes proce-
dural error. The CB file remained an "investigatory" file
as long as it was considered an active file for compliance
purposes. I have, accordingly, decided against my taking
adverse inference from the General Counsel's failure to
make this file available to the Respondent.
24 Hernandez denied the incident, but he conceded the ownership of a
brown car. I credit Welke's testimony.
GEM URETHANE CORP. 1375
IV. THE BARGAINING ORDER
The next important issue is whether a Gissel bargaining
order is appropriate when, as here, there was picket line
misconduct. According to the decisions in Laura Modes
Co., 144 NLRB 1592 (1963), and Allou Distributions, 201
NLRB 47 (1973), the Board will withhold the usual
remedy of a bargaining order when "the Union evi-
denced a total disinterest in enforcing its representation
rights through the peaceful legal process provided by the
Act in that it resorted to and/or encouraged the use of
violent tactics to compel their grant."
This misconduct involved in this proceeding has been
summarized above. With the exception of the conduct of
three strikers, the misconduct generally did not involve
the unprovoked and physical violence necessary to fall
within the ambit of Laura Modes, supra. The demeanor
of the other three strikers, although violent, was not en-
couraged or approved by the Union. To the contrary,
the record shows generally that the Union instructed the
strikers to maintain peace and to control their behavior.
Significantly, there was no proof of any serious miscon-
duct or violence by Union Organizer Judy Conley and
Jaime Perez. Conley was accused of shouting verbal
abuse like "scabs." Perez was reported to have "threat-
ened to kill" Beckmann. Yet, Beckmann's testimony indi-
cates that Perez obediently and promptly discontinued
his verbal assaults as soon as he was told to do so by
Beckmann. Other reported misconduct by Perez consist-
ed of reckless driving. Yet, that type of misconduct was
also committed by nonstrikers in order to irritate the
pickets. Even if it is assumed that the conduct alleged in
the CB file against Conley and Perez had been shown, it
was not of such gravity as to justify the extraordinary
action of withholding a bargaining order found appropri-
ate because of the numerous unfair labor practices com-
mitted by the Respondent. Maywood Plants, 235 NLRB
363, 365 (1978). There, the Board considered union mis-
conduct like "mild physical harassment of persons, such
as a kick in the shins, punches on the arm, bumping [re-
sulting in a lip getting split against the headrest in a car.
The only injury found attributable to the Union], or
minor damage to cars such as broken cracked windows,
and the following and bumping of cars while being
driven." Because there is no evidence in this record that
the Union encouraged, promoted, or tolerated the mis-
conduct of several strikers, and because of the Respond-
ent's unlawful practices that prompted the strike, I con-
chide that a bargaining order is an appropriate remedy.
The duty to bargain with the Union arose as of Febru-
ary 6, the date on which the Union made its request for
recognition. As a result, Respondent by granting pay in-
creases during the February 10 pay period to about 14 of
its employees who had received pay raises in January
violated Section 8(a)(5) and (1) of the Act. Because these
raises were not in accord with its stated policy of quar-
terly wage increases for its employees, the matter should
have been the subject of bargaining.
CONCLUSIONS OF LAW
1. Gem Urethane Corp. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Upstate New York District Council, International
Ladies' Garment Workers' Union, AFL--CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance and shipping and
receiving employees employed by Respondent at its
Lower East Main Street, Amsterdam, New York facility,
excluding office clerical employees, professional employ-
ees and guards and supervisors as defmed in the Act con-
stitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times since February 6, 1979, the Union has
been and now is the exclusive representative of all em-
ployees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section
9(c) of the Act.
5. By refusing about February 6, 1979, and at all times
thereafter, to bargain collectively with the above-named
labor organization as the exclusive bargaining representa-
tive of all employees of Respondent in the unit, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By unilaterally and without bargaining with the
Union, granting pay raises (not in accord with estab-
lished company policy) to certain employees, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
7. By interrogating its employees concerning their
union activities, and by surveilling their union activities,
Respondent violated Section 8(a)(1) of the Act.
8. By threatening its employees with (a) loss of bene-
fits, (b) discharge, (c) layoff, and (d) denial of a pay raise
because of the union activities, Respondent violated Sec-
tion 8(a)(1) of the Act.
9. By threatening to discharge strikers and threatening
to refuse reinstatement of strikers, Respondent violated
Section 8(a)(1) of the Act.
10.By promising benefits to its employees in exchange
for their activities against the Union, Respondent violat-
ed Section 8(a)(1) of the Act.
11.By prohibiting its employees from soliciting their
fellow employees during nonworking time, Respondent
violated Section 8(a)(1) of the Act.
12. By laying off 23 employees, most of whom had
signed union authorization cards, Respondent unlawfully
discriminated against them and interfered with the em-
ployees' Section 7 rights in violation of Section 8(a)(3)
and (1) of the Act.
13.By transferring Luis Lozada, the chief union activ-
ist among the employees, to a less desirable job and by
excluding him from a pay raise because of his union ac-
tivities, Respondent violated Section 8(a)(3) and (1) of
the Act.
14.By delaying the reinstatement of 14 employees fol-
lowing their unconditional offer on June 14 to return to
work after an unfair labor practice strike, Respondent
violated Section 8(a)(1) and (3) of the Act.
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15. By refusing to reinstate the following nine strikers,
Mariano Gonzalez, Enrique Lopez, Silvestre Hernandez,
Carlos Montalvo, Jose Pelliccia, Thomas Rivera, Luis
Santiago, Carlos Villalta, and Alex Zayas, even though
they did not engage in strike misconduct of sufficient se-
verity so as to be disqualified from reinstatement, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent was engaged in
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Because the Union had achieved a majority of union
cards in an appropriate unit and because the Company
engaged in numerous and pervasive unlawful practices, I
shall recommend that the Respondent recognize and bar-
gain with the Union as the exclusive bargaining repre-
sentative.
As it has been found that Respondent's employees
were engaged in an unfair labor practice strike the strik-
ing employees were entitled to reinstatement on applica-
tion, whether their positions had been filled by replace-
ments. Accordingly, I shall recommend that those strik-
ers who were not reinstated, 25 except for those who
were disqualified, 26 be offered reinstatement, on applica-
tion, to their former positions, and if those positions are
no longer available, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, dismissing, if necessary, any persons hired
25 Who are: T. Rivera Sr., L. Lopez, A. Zayas, S. Hernandez, L. San-
tiago, C. Villalta, C. Montalvo, J. Pelliccia, and M. Gonzalez.
28 Who are: M. Nieto, W. Vargas, and L. Lozada.
after June 14, 1979. I shall further recommend that Re-
spondent be ordered to make whole the above-referred-
to employees and those strikers 27 whose reinstatement
was delayed, for any loss of pay they may have suffered
by reason of Respondent's refusal or delay and to rein-
state them, by payment to each of them a sum of money
equal to which he normally would have earned as wages
during the period from 5 days after the date on which
they applied for reinstatement, to the date of Respond-
ent's offer of reinstatement, less net earnings, to be added
interest at the rate of 6 percent per annum, in accordance
with the formula set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and Isis Plumbing Co., 138 NLRB 716
(1962).
Having further found that Respondent unlawfully laid
off 23 of its employees on January 26, 1979, I shall rec-
ommend that they be made whole for any loss of earn-
ings that they suffered as a result of Respondent's dis-
crimination against them in accordance with the same
formula referred to above.
With respect to Respondent's treatment of Luis
Lozada, I find that he should be made whole for any loss
of earnings that he suffered by reason of Respondent's
discrimination (i.e., the failure to raise his pay from Feb-
ruary 5 until the commencement of the strike on April
20, 1979) in accordance with the same formula referred
to above.
Finally, because of the egregious nature of the viola-
tions found, I shall recommend a broad cease-and-desist
order. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]
27 Who are: S. Rodriguez, H. Martinez, F. Baez, F. Gonzalez, Bermu-
dez, A. Bermudez, M. Mies, H. Morales Silva, C. Torres, F. Quinones,
A. Alverado, G. Valencia, D. Belli, J. Colon, and E. Rodriguez.