Glomac Plastics, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1971

194 N.L.R.B. 406 (N.L.R.B. 1971)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glomac Plastics , Inc. and Textile Workers Union of
America, AFL-CIO-CLC. Case 3-CA-4113
December 1, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 26, 1971 , Trial Examiner Laurence A.
Knapp issued the attached Decision in this proceed-
ing. Thereafter , only the Textile Workers Union of
America, AFL-CIO-CLC, filed exceptions and a
supporting brief . Respondent filed a brief which was
previously submitted to the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings , and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
1 Upon careful scrutiny of the record, we have discovered no evidence
reflecting upon the Trial Examiner's fairness and impartiality We therefore
find no merit in the Union's charge of bias and prejudice and deny its
request for a new heanng.
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS ; THE LABOR
ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits, and
I find that in the year preceding issuance of the complaint
Respondent, a New York corporation engaged in the
manufacture and sale of plastic products at its Syracuse,
New York, plant, shipped products from its Syracuse plant
valued in excess of $50,000 directly to destinations outside
the State of New York. Respondent is engaged in
commerce within the meaning of the Act.
The complaint alleges, Respondent admits, and I find
that the Charging Party, Textile Workers of America,
AFL-CIO-CLC (herein sometimes called the Union), is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Questions Presented
The main ultimate questions presented as the case was
tried are whether Respondent violated the Act in declining
to recognize the Union as the bargaining representative of
its production and maintenance employees unless the
Union first established its majority status in a Board-
conducted election; whether a strike of certain of
Respondent's employees following the Union's initial
demands for recognition was an unfair labor practice
strike; and whether following the strike Respondent
engaged in certain acts of unlawful coercion and interfer-
ence violative of Section 8(a)(1) of the Act. An issue
underlying and decisive of certain of these principal
questions is whether two of Respondent's employees are
supervisors within the meaning of Section 2(11) of the Act.
Brief Description of Respondent's Operations and
Personnel
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: I heard this case in
Syracuse, New York, on March 16, 17, 18, and 19, 1971,
following pretrial procedures in compliance with the
National Labor Relations Act, as amended (herein called
the Act.)1 Following the hearing, briefs were filed by
counsel for the General Counsel and for Respondent.
Upon the entire record in the proceeding, including my
observations of the demeanor of the witnesses, I make the
following:
1 Following the filing of an original charge on May 4, and of an
amended charge on June 17, 1970, the complaint herein issued on
December 28, 1970. Respondent answered the complaint on January 6,
1971. All dates used herein refer to the year 1970 unless otherwise
indicated.
In the manufacture of its plastic products, such as grills
for the front of room air-conditioners supplied to the
Carrier Corporation, Respondent employed at the times of
the Union's recognition demands not more than 62
(nonsupervisory) production and maintenance employees,2
working on three shifts. Respondent's production opera-
tions fall into two main divisions: manufacture of plastic
products by the operation of molding machines; and the
assembly, at least in some instances, of products so
produced by the molding machines. Respondent's prod-
uction employees fall into two corresponding groups; i.e.,
operators of the molding machines and those engaged in
the assembly operations. Assembly operations are per-
2 This number was stipulated at the hearing and was derived from a list
(G. C. Exh. 5) supplied by Respondent to the Board's Regional Office in
response to a petition for an election filed by the Union contemporaneous
with its recognition demands as further described infra
194 NLRB No. 63
GLOMAC PLASTICS 407
formed only on the first, or day, shift, while the molding
machine operations are performed on all three shifts.3
At the time pertinent to this case, Respondent's
managerial officials appear to consist of Daniel J.
Mackessy, president, and Andrew Sidor, plant superintend-
ent. In addition, the evidence makes passing reference to a
foreman named Donaldson. Then there are "group leaders"
of the assembly and molding machine operators, consisting,
so far as this record shows, of Joanne Bombard, group
leader of the first-shift assembly workers; Frederick
Dashnaw, group leader of the second-shift molding
machine operators; and John Marinelli, group leader of the
third-shift molding machine operators. At issue in the case
is the question whether these group leaders were supervisors
within the Act's definition of that term.
The Union's_ Organizational and Representational
Activity
In early April 1970, two representatives of the Union,
Sherman and Lamb, undertook a union representation
drive among Respondent's employees. Their initial efforts
consisted of distributing, to employees entering and leaving
the plant, union flyers4 the bottom portions of which,
containing spaces for the name, address, etc., of employees,
could be torn off and when filled out be returned to the
union representatives by interested employees. Group
Leader Dashnaw, who favored the Union's representation-
al objective, and with whom Union Representatives
Sherman and Lamb met at Dashnaw's home during this
period,5 circulated an indeterminate number of these flyers
(apparently the one in evidence as G.C. Exh. 28) to
employees in the plant and after getting the employees to
fill out and sign them, returned them to Sherman and Lamb
outside the plant. After receiving the names, addresses, etc.,
of a considerable number of employees in this fashion,
Sherman and Lamb then sought to obtain employee
signatures to union cards by which the signing employee
accepted membership in the Union and designated it his
bargaining representative. To accomplish this, they ob-
tained some signatures through their own efforts (via calls
at employees' homes), but a far greater number of
signatures were obtained by sympathetic employees to
whom Sherman and Lamb gave blank cards with the
request that they obtain employee signatures, among whom
was Group Leader Dashnaw. On one occasion, which I find
was about mid-April, Dashnaw, who had come in early that
morning to assist in starting up the molding machines,
obtained the signatures of at least 25 employees working on
3 The day shift is from 7 a.m. to 3.30 p.m.; the afternoon shift from
3.30 to 11 p.m.; and the night shift from 11 p.m. until morning.
4 See G.C Exhs. 26, 28, and 29.
5 While the fact that Sherman and Lamb met with Dashnaw at his
home one evening during the organizational period was brought out at the
hearing, strangely enough neither counsel for the General Counsel or for
Respondent took advantage of this disclosure to examine Dashnaw as to
what transpired at this early meeting between ban and the union
representatives.
6 Some of the employees whom Marinelli solicited told him they had
already signed cards, as some of them had at the behest of Dashnaw.
7 Among the many gaps in the evidence on significant factual points is
one with respect to from whom Marinelli obtained the cards and to whom
he returned them But Union Representative Lamb admitted to having had
a talk with Marinelli at a time which I find would have been during this
the day shift to such cards, which that morning he had
obtained from and returned to Sherman and Lamb, and on
other occasions Dashnaw successfully solicited employees
on other shifts. For his part, Marinelli distributed the union
designation cards to employees on his third shift, about six
of whom signed.6 According to Marinelli, he told the
employees he solicited that the Union was outside and
wanted to get in; one of the employees he solicited testified,
as I find, that Marinelli, in handing him the card, told him
that "We're going to try and form a union," or something to
the effect that "Here are the cards for the union people to
sign Up." 7 While the record does not establish similar
solicitation on the Union's behalf on the part of Group
Leader Joanne Bombard, the record establishes that she
filled out the returned portion of one of the flyers and also
signed a union designation card.
By these means, Sherman and Lamb possessed some 40-
odd signed cards by April 15 8 on which date they sent to
Respondent a registered letter asserting the Union's claim
of majority representation, offering to submit signed
authorization cards supporting their majority claim, and
requesting recognition and collective-bargaining negotia-
tions.
On April 17, Sherman and Lamb called on Daniel J.
Mackessy, Respondent's president, at his office in the
plant. On this occasion one or the other of the union
representatives asserted that they possessed representation
cards signed by a majority of the employees, referred to the
April 15 letter they had sent to Respondent, offered to
permit Mackessy to compare the cards (Mr. Sherman had a
bundle of cards in his hand during this meeting) with
Respondent's payroll list, and requested recognition. On
Mackessy's part, he informed them that the letter had not
been received,9 declined to undertake any examination or
check of the cards, and told the union representatives that
when their letter arrived he would see that they received a
reply from Respondent's attorneys.10 Likewise on April 17,
Mr. Lamb sent to the Board's Regional Office in Buffalo a
letter enclosing 44 of the signed cards and stating that a
petition for an election would promptly be filed by the
Union.
On the evening of Sunday, April 19, pursuant to a notice
Sherman and Lamb had distributed, they held a meeting
with some 30-35, more or less, of the employees at a local
motel. Group Leaders Dashnaw and Marinelli attended
this meeting at the invitation of the union representatives
and were present throughout.11 At this gathering, Sherman
reported concerning his and Lamb's meeting with Mr.
Mackessy on April 17 and proposed, and the employees
period, and Marinelli, along with Dashnaw, was invited by one or another
of the union representatives to attend the meeting of union sympathizers
held on the evening of April 19 (see infra) Under all the circumstances
disclosed by the record, I am certain and find, contrary to the testimony of
union representatives, that they must have become aware of Marinelli's
solicitations soon after they took place, if they had not requested them.
8 See G.C Exhs. 17(1), et seq.
9 The letter arrived at Respondent's plant later that afternoon, after this
meeting was concluded.
50 Other matters were referred to in the conversation between the union
representatives and Mackessy on this occasion but the significant
exchanges are those referred to in the text.
u According to Sherman, he had some conversation with Dashnaw on
this occasion concerning Dashnaw's eligibility to attend the meeting, i.e.,
concerning whether Dashnaw was a supervisor, and Dashnaw testified in
(Continued)
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present by a show of hands agreed, to assemble outside the
plant at 7 a.m. the next morning and to refrain from going
to work as, a means of substantiating the Union's majority
claim. Some 40-50 employees did so foregather, and while
outside the plant signed a document bearing the same
wording as the union cards described above.12 Thereafter,
with Mr. Lamb in the lead, at least a considerable portion
of the employees trooped into the plant to a reception area
near President Mackessy's office. When Mr. Mackessy
emerged from his office, Mr. Lamb told him the Union was
seeking recognition and, in the form of the employees
present, was presenting visible proof of its majority claim.
At the same time, as I find, the employees in attendance
created a noisy commotion by loudly chanting "We want
recognition," accompanied by some other outcries and
pounding on the walls. Mr. Mackessy told Mr. Lamb that
this was no way to proceed-that they should get their
respective attorneys together and meet like gentlemen, and
gave Lamb the name of Respondent's attorney, Mr.
Sullivan (of the firm representing Respondent at the
hearing), and reentered his office. He emerged again when
Mr. Sherman, who had somewhat belatedly followed the
group into the plant, knocked on his door and at this time
told the union representatives and employees to leave the
premises, which they soon did.13 The union representatives
then set up picket lines from among the striking employees,
which in greater or lesser degree were maintained for some
considerable but not precisely determinable period there-
after. Group Leader Dashnaw participated in the picketing
with the other picketing strikers during the morning of
April 20.14
On this same day, April 20, the Union filed an election
petition with the Board's Regional Office in Buffalo15 but
after initiating his investigation of this petition and certain
related steps, the Regional Director later suspended action
this connection that he was told (he did not state by whom) that he could
not belong to the union. But it is clear from Dashnaw's and other
testimony that he and Marinelli sat through the entire meeting.
12 Apparently, this document was never exhibited, or sought to be
exhibited, to Respondent
13 Mr. Mackessy called the local police to aid in evacuating the
employees from the plant, but by the time the police arrived the employees
had made their exit.
14 After testifying on his direct examination by Respondent's counsel
that he picketed for about a half day on April 20, Dashnaw, on cross-
examination by counsel for the General Counsel, stated that he was not
really picketing but went out to talk to the "girls" whereupon Sherman put
a picket sign on his back. But I am satisfied on the record as a whole that
Dashnaw so conducted himself on the picket line as to be supporting the
strikers and did not make known to the other striking pickets any contrary
version of his participation.
15 Two such petitions were actually filed, one by Sherman and Lamb,
and the second by another union official from a nearby union office. The
latter was the one accepted by the Regional Office in the representation
proceeding.
16 In the election proceeding on April 20 the Regional Director mailed
to Respondent a copy of the petition and a "NOTICE OF
ANTICIPATED HEARING" (see G C. Exh. 3), stating that unless the
parties agreed to waive a hearing and agree to a consent election he would
hold a formal hearing on the petition on May 5. Arrangements were made,
apparently under the aegis of the Regional Director, for a conference
among the parties respecting the possibility of a consent election, this
conference to be held at the office of Respondent's attorney, Mr Sullivan,
on April 23; and on April 23, Respondent, by its attorneys, entered its
appearance in the election proceeding and submitted to the Board's
Regional Office an employee and job classification list This conference
in the election proceeding as a result of the Union filing its
first charge in this matter on May 4.16 Likewise on April 20,
Respondent's attorneys sent Mr. Sherman a reply to the
union representatives' letter of April 15, stating that
Respondent did not intend to recognize the Union as the
employees' representative unless it was so certified by the
Board, expressing the view that a vote by secret ballot was
the appropriate way to ascertain the employees' true wishes,
and acknowledging a notice Mr. Sherman had given to
Respondent's attorneys that the Union was filing an
election petition (as it did on that date, see above).
On April 24, Respondent sent, apparently to all its
employees, a letter remonstrating against the strike and
further stating, inter alia: "Our plant will remain open for
business, and if you do not choose to come back to work,
new employees will be hired to take your place." 17
Apparently, thereafter (or after April 20), some of the initial
strikers returned to work, and during some uncertain
period, beginning about a week after the strike began,
Respondent hired some new employees. On April 24, and
again on May 6, the Union sent to Respondent letters
repeating the Union's claims to majority representation
and, in the case of the latter letter, a request for a
conference to discuss the recognition matter.18 Respondent
did not reply to these letters.19
On June 1, Union Representative Sherman sent to
Respondent President Mackessy a telegram expressing on
behalf of the strikers and the Union an unconditional offer
of the strikers to return to work, and on June 4 Sherman
repeated this offer by letter and requested a reply from
Respondent. In the interim, Respondent sent to Sherman a
letter, dated June 3, in which, responding to Sherman's
June 1 telegram, Respondent advised that it had no job
openings at that time.20
was not held, apparently because the Union declined to agree to a
condition proposed by Respondent's attorney, Mr. Sullivan; i.e.,
Respondent would agree to a consent election if the Union terminated the
strike and picketing. In connection with the picketing , on April 23,
Respondent filed suit in the New York Supreme Court seeking an
injunction to restrain alleged massive and other violent and threatening
picketing and strike activity on the part of union agents, as a result of
which the court later issued an order laying down certain rules to govern
the conduct of the picketing, from which order the union representatives
appealed. See Resp. Exhs. 1-3.
17 This letter further states that if the Union had been willing to call off
the strike, Respondent would have agreed to a consent election, but that in
view of the Union's position it would be necessary to have the May 5
hearing in the representation proceeding previously scheduled (see In. 16,
supra) by the Regional Director.
18 G.C. Exhs 6 and 7.
19 Because of doubts concerning the validity of the first set of union
cards, i.e., because of the solicitation of many of them by Group Leaders
Dashnaw and Marinelli and the possibility that these men were
supervisors, the union representatives solicited employee signatures to a
second set of cards beginning about April 23. Some 50 such cards
purportedly signed by employees during the period April 23-28 are in
evidence along with others undated and others bearing dates extending
from May 1970 to February 1971 See G.C. Exhs. 19(1), et seq However,
the employees purportedly signing these cards' during the April 23-28
period are in large part the same employees who signed the first set of
cards. These cards, as well as those first signed (G.C. Exhs. 17(1), et seq),
were admitted subject to any defects Respondent might demonstrate.
20 Beginning about October 1, Respondent called back some of the
workers then remaining on strike
GLOMAC PLASTICS 409
A. The Alleged Refusal to Bargain
1. The appropriate unit
While Respondent's answer denies that the unit of
production and maintenance employees described in the
complaint is an appropriate one, it made no such claim in
responding to the Union's recognition demands referring to
such a unit. In any event, on the evidence and on the basis
of applicable Board decisions, I find that, as alleged in the
complaint, all production and maintenance employees,
including truckdrivers, employed by Respondent at the
Syracuse plant, excluding all office clerical employees,
professional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
2. The question of the Union's majority
The General Counsel contends that when the Union
made its recognition demands on April 17 and 20 it
possessed valid designation cards signed by a majority of
the then employees, that is, 44 out of 62. However, this
contention cannot be sustained for two reasons. First, on all
the evidence of record it cannot be found that the General
Counsel adequately established the authenticity of the
signatures on the majority of the cards in question.21
Second, the 25-30 cards which I have found were solicited
by Group Leaders Dashnaw and Marinelli are invalid
because, as' the General Counsel contends, they were
supervisors within the meaning of Section 2(11) of the Act,
as I find upon the evidence I will now review.
Some nine employees, including "group leaders" Bom-
bard, Dashnaw, and Marinelli, testified concerning the
activities, functions, duties, responsibilities, and authorities
of Dashnaw and Marinelli, and there is no direct conflict
on any significant matter in this body of testimony. Among
the many facts which it shows in relation to the question of
the supervisory status of Dashnaw and Marinelli are the
following: although perhaps officially denominated "group
leaders, company documents they had-occasion to sign 21
refer to them as a "foreman," and they were commonly so
referred to by the production employees; they attended
meetings with Respondent's managerial officials, Mr.
Mackessy and Mr. Sidor, to discuss production matters and
ways and means of coping with production problems; they
assigned the employees on their shifts to the machines they
should operate (depending upon the product to be molded),
21 Union Representative Sherman identified only seven of the cards as
ones the signatures on which he secured (one of which certainly and
another of which possibly was signed after April 20). As to the balance he
testified that they somehow came into his possession or that of Mr. Lamb.
Of the remaining cards, 13 show on their face that the signatures on them
were solicited, not by Sherman or Lamb, but by an employee named Mary
Preston, who, according to inscriptions on these cards, turned them in to
Lamb. Mary Preston was not called to attest to the signatures on these
cards. Some 20-odd others of the cards bear the initials of Mr. Lamb,
"D.L.," and most of these carry on the back an inscription to the effect
that the card was received from the signing employee in front of the plant,
and in this connection Lamb testified that cards so marked were received
by him from the purported signer. But evidence I have credited establishes
that Group Leaders Dashnaw and Marinelli solicited the signing employees
in about 25-30 instances and, in the case of Dashnaw, he himself turned in
the corresponding cards to Sherman or Lamb. (For example, while the card
and reassigned employees to other machines, or to
nonmachme work, when necessary due to production
changes or delays; they granted employees leave or time off
at least for short periods; they were the sole persons in
authority at the plant over their respective shifts of workers
during, in the case of Marinelli, the whole period (11
p.m. -7 a.m.) of his shift, in the case of Dashnaw, during
that portion of his shift after Plant Superintendent Sidor
had left the plant for the day (usually about 5 p.m.); they
had and exercised the authority at least to recommend that
disciplinary action be taken against employees for attend-
ance or work performance derelictions through the issuance
of "warning" slips; 22 after the strike, both Dashnaw and
Marinelli appealed to or requested striking employees to
return to work under circumstances indicating that they
were doing so on behalf of Respondent; and both exercised
the authority to prevent employees from using chairs in the
performance of their work. In the circumstances, Dashnaw
and Marinelli had and exercised authority requiring the use
of independent judgment to take or recommend action of
various types detailed in Section 2(11) of the Act and hence
were supervisors within the meaning of that provision.
Between them, Supervisors Dashnaw and Marinelli made
such a vital and extensive contribution to the success of the
Union's promotional and card signing activity, and in a
fashion which must have been widely known among the,
ordinary employees who signed up with or otherwise
supported the Union, that their manifested attitude and
activity vitiated all the bases upon which the Union's claim
to majority representation rest. Thus, in the earliest stages
of the Union's drive, Dashnaw circulated to employees in
the plant copies of the Union's campaign flyers and
obtained for the union representatives "tear" slips bearing
the names and addresses of employee he solicited for this
purpose; thereafter, in a way similarly manifesting their
support of the union cause, Dashnaw and Marinelli
solicited employee signatures to what must have been more
than a majority of the employees signing the first batch of
cards, thereby making their prounion feelings and wishes
known to other employees as well (other employees testified
that they were aware of Dashnaw's activities in this regard);
they were invited by the union representatives to attend and
did attend the union prestrike meeting of April 19 where, as
this record stands, their prounion position must have been
manifest to the ordinary employees in attendance; and
Dashnaw not only joined the strikers and carried a picket
sign during the morning of the first day of the strike but
also, after doing so, sojourned with other strikers to the
of Mary Gullen-G C. Exh. 17(l%-bears Lamb's initials and his
inscription on the back that he received it from the "employee," the truth is
that Dashnaw gave this card to Miss Gullen and took it from her after she
signed it.) In the circumstances, the signatures on these 22 cards cannot be
deemed authenticated by the General Counsel's evidence; i.e., the
testimony of Sherman and Lamb.
21 See G.C. Exhs. 20, 21, and 25.
22 Any employee who received three warning slips (see G.C. Exh. 20)
was subject to automatic discharge. Marinelli testified that his usual
practice was to consult Superintendent Sidor before such a slip was given
to the employees, but admitted that he sometimes issued them in Sidor's
absence Dashnaw could not recall ever having issued such a slip but there
is employee testimony that he did on one occasion . In any case, Dashnaw
admitted that he did report employee malfeasance to Sidor as a result of
which warning slips were issued and which, in some cases , he delivered to
the offending employee
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franklin Grill where the union representatives held a
meeting of some kind with the nonpicketing strikers. Such
open and widespread activity of supervisors, and particu-
larly of supervisors as intimately and familiarly associated
with the production workers as they were, cannot but have
a telling and pervasive influence upon the rank-and-file
workers, that is, for purposes of the Act, a "coercive"
influence and effect upon them. In the circumstances, the
first set of cards, the strike activity of the employees on
April 20, and those of the second batch of cards as can have
any relevance to this case (those signed in the days
following the strike, which in most instances were signed by
those signing the first batch and who also went on strike)
must all be held, as I find and conclude, to have been
infected by the coercive prounion activity and conduct of
Supervisors Dashnaw and Marinelli.23 In consequence,
none of these bases can be accepted as satisfactory proof
that the Union represented an uncoerced majority of the
unit employees at the times of its recognition demands.
3. Concluding Findings Respecting the Alleged
Violation of Section 8(a)(5)
Regardless of all else, Respondent did not refuse to
recognize or bargain with the Union in violation of Section
8(a)(5) of the Act because at the times of the Union's
demands the Union did not represent an uncoerced
majority of the unit employees.
There is thus no occasion to deal with the General
Counsel's contention that, by reason of the employee
support of the strike, Respondent had "knowledge" on
April 20 that the Union represented a majority of the
employees. But even if the Union could be said to have
represented an uncoerced majority on this date, it would
seem from the record I have that a considerable number of
the employees who went on strike on April 20 abandoned
the strike and returned to work not long thereafter, so that
in this regard, as in others, this case illustrates the pitfalls
surrounding the "knowledge" notion, a notion recently
discontenanced by the Board in Linden Lumber Division,
Summer & Co., 190 `NLRB No. 116. Moreover, I see no
justification for saddling an employer with presumed
"knowledge" that a union represents a majority of his
employees because they refrain from work for a short
period, since there are many reasons why employees may
join a strike movement for a few days, just as they may sign
representation cards, and still cast a negative vote in the
inviolable secrecy of the ballot box. Hence, I would reject
the "knowledge" theory in this case even if positive proof
that the strike participation was coerced were absent.
Assuming again that proof were lacking that the Union's
23 This supervisory infection was all the greater because "group leader"
Bombard signed a union card and participated in the strike. Upon the
evidence previously reviewed , which is as applicable in most respects to
Bombard as it is to Dashnaw and Marmelh, I find that Bombard was
likewise a supervisor within the meaning of the Act.
24 Bearing in mind that the Union filed an election petition and notified
Respondent's attorneys thereof, on April 20, and assuming as I must that a
competent investigation of the Union's charges disclosed the roles played
by Dashnaw and Marinelli (and Bombard) in the Union's representational
campaign, this case also illustrates the unwisdom of seeking a bargaining
order based on some untrustworthy "knowledge" theory (and particularly
when the Union to benefit by the bargaining order has itself solicited or
majority was coerced, the contention that Respondent
refused the Union's demands in violation of Section 8(a)(5)
must be rejected because at no time did Respondent engage
in an outright refusal of the Union's demands, On April 17
and 20, Mr. Mackessy did not reject the recognition
demands; rather, on both occasions he in effect postponed
any definite response by stating that they were matters for
his attorneys and others to deal with. Essentially the same
position was taken by Respondent's attorneys when they
notified the union representatives that Respondent would
not recognize the Union except as a result of the election
which the Union was itself then seeking. Respondent was
entitled to take this position without thereby finding itself
in the position of having made an refusal to bargain in
violation of Section 8(a)(5), whether on some "knowledge"
or similar legalistic theory.24
For all the foregoing reasons , the complaint's allegations
that Respondent reacted to the Union's demands in such a
way as to violate Section 8(a)(5) of the Act must be
dismissed and my recommended Order will so provide.
B. The Alleged Violations of Section 8(a)(3)
The complaint alleges that because of their union or
strike activities, Respondent refused to reinstate striking
employees following the Union's June requests for such
reinstatement, but at the hearing counsel for the General
Counsel stated that he predicated this charge of discrimina-
tory. nonreinstatement solely on the ground that the strike
was an unfair labor practice strike, meaning that the strike
was in protest of Respondent 's alleged refusal to bargain so
that after the requests for reinstatement were made
Respondent was obliged to reinstate the strikers, discharg-
ing any replacements hired after the strike began. In his
brief, counsel for the General Counsel advances no
argument in support of this contention. In any caF ., it is
sufficient to say, as I necessarily find on the facts previously
found, that the strike was not the result or in protest of any
violation on Respondent's part of Section 8(a)(5) of the Act,
or any other unfair labor practice.25
C. The Alleged Violations of Section 8(a)(1) of the
Act
The complaint charges that following the strike Respon-
dent provided its employees with benefits not existing prior
to the strike to induce them to refrain from becoming union
members or from supporting the Union; i.e., free lunches,
use of chairs or stools to sit at their work places, and
provision of cooling fans. As to the lunches, the credible
evidence establishes that only for a period of some weeks
following the initiation of the strike on April 20, and
accepted the assistance of employees whom the General Counsel likewise
charges are supervisors), when the truth of the Union 's majority claim
could soon have been clearly and definitively resolved by the secret
election sought by the Union, without all the delay, frustration, and
expense this proceeding has entailed . (In connection with his "knowledge"
argument, counsel for the General Counsel points to the fact that
Respondent did not file an election petition, but since the Union had there
obviously was no occasion for Respondent to do so.)
25 Moreover, there is no evidence that Respondent failed to reinstate
any strikers because of their union activity or because of their participation
in the strike, even if that were the issue presented.
GLOMAC PLASTICS 411
because of certain violent and intimidating activity taking
place during the picketing, Respondent made free lunches
available to interested employees so that, if they wished,
they did not need to leave the plant during the lunch hour.
This true state of facts, not referred to in the brief for the
General Counsel, cannot be erected into a violation of
Section 8(a)(1); hence this portion of the complaint must be
dismissed.
As to the matter of the chairs and fans, counsel for the
General Counsel refers only to the testimony of his sole
witness in this regard, Group Leader Bombard. But the
evidence adduced by Respondent, which is considerable
and persuasive, establishes to my satisfaction that there
were no changes in these respects after the strike. Since
these allegations of the complaint are not sustained by the
evidence, they must be dismissed.
The complaint further alleges that on an occasion at the
Franklin Grill 26 about April 24, Supervisor Dashnaw
threatened employees with loss of jobs because of union
membership or prounion activities. The evidence fails to
sustain this charge. On the basis of all the evidence, I find
that what happened was that, in the course of some
conversations which Dashnaw had with a number of the
strikers, extending over a period of hours, and in the course
of which some of the strikers were importuning Dashnaw to
join them in the strike, Dashnaw stated that he had gone
out on strike once (on April 20) but that he had a family to
feed and Sherman and Lamb were not going to feed them.
He further stated that he hated to see the girls out in the
ram, that they were doing no good staying out, and only
they were being hurt. Mrs. Massimiami, a striker, picking
up the thread of who was being hurt, told Dashnaw that
while the girls were on strike the Company was "hurting";
i.e., would be unable to get out production (referring
apparently to the grills produced by the machines and later
processed for delivery on the assembly line). In refutation
of this argument, Dashnaw pointed out that Respondent
could replace the strikers and also, if it were prevented by
the strike from performing the assembly work, it could send
the grills processed on the assembly line to the Carver
Corporation, the customer, for assembly by it. I further find
that during this conversation or otherwise on this occasion,
Dashnaw did not tell any striker that Respondent would
discharge strikers for remaining on strike, or that they
would never get their jobs back. The statements Dashnaw
did make on this occasion obviously represented permissi-
ble opinions he expressed in response to opinions expressed
by strikers, and, in regard to replacement of strikers and
performance of assembly line work, represented merely
courses Respondent could lawfully pursue in response to
difficulties posed by the strike. Accordingly, this portion of
the complaint must be dismissed.27
The complaint further charges that during the strike
Marinelli threatened employees with discharge if they
joined or supported the Union. In connection with this
26 The record establishes that before and during the strike the relatively
nearby Franklin Grill was a place which employees of Respondent
customarily frequented, and which was used as an assembly point by
strikers during the strike
27 The complaint further charges that Dashnaw engaged in unlawful
interrogation on this occasion, but counsel for the General Counsel points
to no such specific evidence in his brief If counsel has in mind the
allegation, Miss Gullen, a striker, testified concerning an
occasion in the first or second week of the strike when she
was talking to Marinelli outside the plant. At his invitation,
they moved into the plant where, she testified, Marinelli
told her that if "we," meaning the strikers, did not return to
work "we" would never get "our" jobs back and that the
Union would never "get in"; and Mrs. Bliss, a striker,
testified that, in a conversation she had with Marinelli at
the front door of the plant during the strike, Marinelli asked
her when she was coming back to work, she replied when
the strike was settled, and he said that if this was what she
was waiting for she might as well forget it because the
Union would not "get in." Mrs. Bliss admitted that there
was more to this conversation but she could not recall the
rest of it.
Marinelli was not interrogated with specific reference to
Gullen's testimony. As to Bliss, he testified that he had
several conversations with her during the strike concerning
the Umon (meaning also, I infer, the strike) and that she
asked for his opinion and he told her he did not know if the
Union would get in or not. He denied telling her that she
would not get her job back, or that he made such a
statement to any striker.
My conclusion is that Marinelli's denials that he told
Bliss or any other striker that they would never get their
jobs back should be credited. Marinelli, who obviously was
on friendly terms with the production employees, and who
obviously was in sympathy with the union organizational
movement prior to the strike, had a good many conversa-
tions with strikers after the strike began, and particularly at
the Franklin Grill. Moreover, at the times of the
conversations with Gullen and Bliss, the employees had
received Respondent's letter of April 24 inviting them to
return to work but informing them replacements would be
hired if they chose to remain on strike, and in his testimony
concerning the conversation with Mrs. Bliss, Marinelli
made reference to this letter although not certain that it was
specifically mentioned in the conversation. In the circum-
stances, I am inclined to believe that the conversations
Marinelli had with Gullen and Bliss (neither of whom
related the totality of the exchanges between them and
Marinelli on these occasions) involved exchanges with
respect to the advisability of remaining on strike and the
possibility of replacement, that Marinelli expressed some
opinions on these subjects, and that the testimony of Gullen
and Bliss, while perhaps representing their subjective
feelings as to the import of something Marinelli said,
cannot be taken as accurate repetitions of his precise words.
Under all the circumstances, if Marinelli said anything to
the effect that the strikers' jobs were in jeopardy, I believe
what he referred to was the replacement possibility.
Accordingly, I find the evidence insufficient to sustain the
count of the complaint that Marinelli threatened employees
with discharge because of their union membership or
testimony of Mrs. Massimiame that, during her conversation with
Dashnaw, he several times asked her what the Umon had done for her,
such a rhetorical question was a perfectly legitimate one in view of the
argumentative character of the debate which took place on this occasion
concerning the advisability of the strikers remaining on strike . Hence, this
allegation must be dismissed.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sympathies, and will recommend that these allegations of
the complaint be dismissed.
In relation to a further allegation of the complaint that
Marinelli offered employees wage increases in order to
induce them not to join or support the Union, the General
Counsel adduced the testimony of one Mrs. Geddes. Mrs.
Geddes, hired in March, was laid off about April 2 but told
to call back. After one call to Sidor on April 15, she called
and talked on April20 with Mr. Mackessy who asked her to
come in immediately. She did so, but when she reached the
plant encountered the striking employees and joined the
ranks of the strikers. Two days later she received a call from
someone, she believed Marinelli, who told her that if she
came to work she would be paid $1.95 per hour. She
rejected this offer, telling Marinelli she would stay with "the
girls." Her previous rate was $1.65, plus 10 cents bonus for
work on her then third shift. There is no evidence that
Respondent was then following any pattern of offering or
paying returning strikers increased pay if they would
abandon the Union or the strike, nor is there any proof that
$1.95 was not the rate in effect for the type of job
Respondent had in mind for Mrs. Geddes. In the
circumstances, I am unable to treat this evidence as
sustaining the complaint's allegation that Respondent,
through Marinelli, offered employees higher wages to wean
them away from the Union or the strike, and my
recommended Order will provide for dismissal of this
allegation.
Finally, the complaint alleges that Respondent discrimi-
nated against the, or certain of the, strikers by denying
them vacation pay. The only evidence of Respondent's
vacation policy is that of President Mackessy, who testified
that employees employed prior to May 30 of any year were,
if they continued to be employed or worked for 12 months
thereafter, were entitled to 1 week's paid vacation when
Respondent shut down for vacation purposes, which in
1970 occurred for about a week in August. About,June 24,
Mrs. LaRock, a striker, whose term of service had begun
prior to May 30, 1969, had a conversation with President
Mackessy, with other strikers present, in which she inquired
about "vacation pay" and Mackessy replied that the
strikers were no longer employed there and he did not see
that they deserved vacation pay.
Counsel for the General Counsel cites N.LR.B. v. Great
Dane Trailers, Inc., 388 U.S. 26, as supporting his
contention that Mackessy's anticipatory denial of a week's
vacation, or the equivalent in pay, constituted unlawful
discrimination against the strikers by reason of their having
gone on strike. But in Great Dane Trailers the decisive fact
was that the rights of the strikers to vacation pay had
accrued before they went on strike, so that denying such
employees their accrued rights ( unless they abandoned the
strike by a certain date) necessarily constituted discrimina-
tion as between them and the employees who had not
struck or who had returned to work, and violated the
statute as destructive of the rights of employees to strike
regardless of the absence or proof, of a specific antiunion
motivation. In this case, however, the rights of the strikers
had not accrued at the time, April 20, when they went on
strike, since Mackessy's definition of eligible employees
appears to include only employees who had been at work
for a full 12 months succeeding May 30, 1969. Whereas
there was a contractual provision in the Great Dane case
defining the rights of employees in this connection (under
which the vacation rights had accrued at the time of the
strike), in this case we have only Mackessy's testimony,
and, as I have found, according to him employees had to be
at work for 12 consecutive months from the May 30 starting
date to be eligible. In short, striking employees were no
more entitled to the vacation benefits if the 12 months'
period included a period of being on strike, any more than
the employees were entitled to their regular work pay while
on strike. In the circumstances, Great Dane Trailers is not in
point and this count of the complaint should be dismissed.
The General Counsel's Request for a Bargaining
Order
On the assumption that his claims of violation of Section
8(a)(3) and (1) were made out by the proof, counsel for the
General Counsel requests issuance of a bargaining order on
the principles enunciated by the Supreme Court in the
Gissel case, 395 U.S. 575 . But since these violations have not
been established, there is no basis for issuance of a
bargaining order.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
Upon the foregoing findings and conclusions and the
entire record in the case, I hereby issue, pursuant to Section
10(c) of the Act, the following recommended:
ORDER
The complaint herein is hereby dismissed in its entirety.