Hedison Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 18, 1982

260 N.L.R.B. 1037 (N.L.R.B. 1982)

HEDISON MANUFACTURING CO.
Hedison Manufacturing Co. and Rhode Island
Workers Union Local 76, Service Employees In-
ternational Union, AFL-CIO. Cases I-CA-
15206, 1-CA-15489, and I-CA-16163
March 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 21, 1981, Administrative Law Judge
George F. Mclnerny issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an exception and a brief in support
thereof and in support of the Administrative Law
Judge's Decision. Subsequently, Respondent and
the Charging Party Union (hereinafter referred to
as the Union) filed a joint motion to modify the
recommended Orders of the Administrative Law
Judges in this case and in Case 1-CA-16694, etc.'
The General Counsel filed a response to that
motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge as modified herein. The Board has consid-
ered the joint motion to modify the Administrative
Law Judge's recommended Order, and the General
Counsel's response thereto indicating that he does
not oppose the motion, and has decided to grant
the motion and to adopt the Administrative Law
Judge's recommended Order as modified herein.
I. The Administrative Law Judge found, inter
alia, that Respondent unilaterally and discrimina-
torily laid off employees, in violation of Section
8(a)(5) and (3) of the Act. We agree, for the rea-
sons set forth by the Administrative Law Judge,
that Respondent unilaterally laid off employees in
violation of Section 8(a)(5) of the Act. Contrary to
the Administrative Law Judge, however, we do
not find that Respondent discriminatorily laid off
employees in violation of Section 8(a)(3) of the
Act, and we therefore do not affirm the Adminis-
trative Law Judge's conclusion that it did. The lay-
offs in question were neither alleged in the com-
plaint nor litigated at the hearing as being discri-
minatorily motivated. The General Counsel's post-
hearing brief to the Administrative Law Judge
does not contend that the layoffs were discrimina-
'260 NLRB 590 (1982).
260 NLRB No. 137
torily motivated. Thus, the issue of discriminatory
motive in regard to the instant layoffs was not
before the Administrative Law Judge and his sub-
sequent findings in this regard are therefore set
aside. 2
2. The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(l) of the Act
by publishing in the newspaper and posting on the
bulletin board the notice to present and former em-
ployees set out in section III,B,3, footnote 14, of
the Administrative Law Judge's Decision. We dis-
agree, and, for the reasons set out below, we con-
clude that Respondent has violated Section 8(a)(1)
of the Act as alleged in this regard.
In concluding that Respondent did not act un-
lawfully when, via newspaper ads and bulletin
board notices, it asked employees who were inter-
viewed by, or gave statements to, the Board to
identify themselves to Respondent, the Administra-
tive Law Judge relied principally on (1) the fact
that Respondent did not confront employees on a
personal, face-to-face basis in making its request,
and (2) an absence of record evidence that employ-
ees in fact were coerced, or felt coerced, by Re-
spondent's request.
A written request that employees who have co-
operated in Board investigations into an employer's
allegedly unlawful activity identify themselves to
their employer, like such a request made in person,
is coercive. And this is particularly so where, as in
this case, the purpose of the request is not stated,
and assurances against reprisal are not given.3 Such
requests tend to imply to employees that the em-
ployer is seeking to find out who gave statements
to the Board, and to create fear that the employer
may retaliate against employees who gave such
statements. In the context of this case, and particu-
larly in light of the numerous and serious unfair
labor practices committed by Respondent, which
warranted the issuance of a bargaining order in He-
dison Manufacturing Company, 249 NLRB 791
(1980), the absence of any assurances against repri-
sals for employees who identify themselves to Re-
spondent as having cooperated in the Board's in-
vestigation adds to the coerciveness of Respond-
ent's newspaper ads and bulletin board notices. 4
The likely impact would be to inhibit the willing-
ness of employees to cooperate in Board-conducted
investigations.
2 Indeed, in his response to the joint motion of Respondent and the
Union to modify the Administrative Law Judge's recommended Order,
the General Counsel concedes that the layoffs in this case were neither
alleged as, nor appropriately found to be, violations of Sec 8(aX3)
3 Cf Osco Drug. Inc., a wholly owned subsidiary of Jewel Food Compa-
nies, Inc., 237 NL.RB 231, 235-236 (1978) (explicit assurances of no ad-
verse action)
'See .artin 4 Gleason, Inc, 215 NLRB 340 (1974)
1037
I)ECISIONS ()OF NA I()NAL I.ABO()R REATIONS BOARD
With regard to the absence of evidence of actual
coercive effect of the notice on employees, the Ad-
ministrative Law Judge has simply applied the
wrong legal standard for evaluating the lawfulness
of conduct which is alleged to have coerced, re-
strained, or interfered with employees in the exer-
cise of the rights guaranteed them under the Act.
The correct inquiry is not whether an employee or
employees were actually. in Jfct, coerced or re-
strained, but rather whether the employer's con-
duct can reasonably be said to have a tendency to
interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights.5 We find that Re-
spondent's notice had such a tendency in this case.
Therefore, we conclude that Respondent has vio-
lated Section 8(a)(l) by requesting employees who
were interviewed by Board agents to identify
themselves.
3. In their joint motion to modify the recom-
mended Order of the Administrative Law Judge in
this case, Respondent and the Union assert that,
subsequent to the court's enforcement of the
Board's bargaining order in the earlier case involv-
ing these parties,6 they have engaged in collective
bargaining with respect to current wages, hours,
and working conditions as well as with respect to
Respondent's unilateral layoffs and changes in pro-
duction standards, incentive rates, and work hours
which the Administrative Law Judge found to be
unlawful in the instant case. Specifically, the Union
has retroactively agreed with Respondent as to the
economic necessity for and method of implementa-
tion of the layoffs in this case, and has further
agreed with Respondent that these layoffs were
based solely on economic factors, that they need
not be rescinded, and the laid-off employees need
not be reinstated. Additionally, the Union has
agreed with Respondent as to the appropriateness
and method of implementation of Respondent's
changes in incentive rates and work hours. More-
over, with respect to the changes in incentive rates,
Respondent and the Union do not believe that any
substantial financial detriment to unit employees re-
sulted from such changes.
Accordingly, Respondent and the Union jointly
move the Board to modify the Administrative Law
Judge's recommended Order by deleting para-
graphs 2(e) through (h) thereof. 7
See. e.g.. Producttion Stamping, Inc-. 239 N RBII 1183. 1193 (1979);
Ilaner IHosiery, Inc., 219 NLRH 338 (1975)
249 NLRB 791 (1980), enfd 643 F. 2d 32 (Ist Cir 1981).
Requiring Respondent to offer immediate arid full reinstatement to
laid-off employ)ees, to make them whole for ani loss of earnings they
may have suffered as a result of the layoffs, and also to, make Wshole any
employees for losses they may have suffered hecause of Respondent's
unilateral decisiln to change incentive rales, productioll standards. and
vkork hours.
In his response to the joint motion, the General
Counsel
. . does not oppose the parties' motion . . .
and agrees that, in light of the developments
recited in the Joint Motion, modification of the
recommended orders as jointly moved will
serve to effectuate the purposes and policies of
the Act, and will not detract from the appro-
priateness of the remedy in the circumstances
of these cases.
By their joint motion, Respondent and the Union
have, in effect, reached a settlement agreement in
resolution of most of the remedial matters in this
case. The General Counsel has, in effect, endorsed
that settlement agreement except for the 8(a)(l) al-
legation discussed above. Accordingly, we hereby
grant the joint motion of Respondent and the
Union.
The Administrative Law Judge's recommended
Order is modified in accordance with our findings
and conclusions set out above, and in accordance
with the joint motion of Respondent and the
Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hedison Manufacturing Co., Lincoln, Rhode
Island, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union.
(b) Unilaterally changing its incentive rates and
standards.
(c) Unilaterally changing its workweek.
(d) Laying off employees without bargaining
with the Union.
(e) Individually polling its employees concerning
the length of the workweek.
(f) Asking employees who were interviewed by,
or gave statements to, the National Labor Rela-
tions Board to identify themselves to Respondent.
(g) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request of the Union, bargain collec-
tively with it as the exclusive representative of its
employees in the unit described below with respect
to wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
1).38X
HEDISON MANlIUFACIUt.RIN(} C()
embody such understanding in a written and signed
agreement. The appropriate unit is:
All full-time and regular part-time production
and maintenance employees employed by Re-
spondent at its 11 Wellington Road, Lincoln,
Rhode Island and 116 Chestnut Street, Provi-
dence, Rhode Island facilities, including lead
persons-floor ladies and plant clerical em-
ployees, but excluding all office clerical em-
ployees, salespersons, seasonal employees,
guards, Foremen, Assistant Foremen, and all
other Supervisors as defined in Section 2(11)
of the Act.
(b) Upon request by the Union, bargain collec-
tively with the Union concerning revisions in in-
centive rates and standards effected on and after
May 14, 1978, and upon request by the union re-
scind such changes.
(c) Upon request by the Union, bargain collec-
tively with the Union concerning the change in the
workweek which was effective on May 21, 1979,
and upon request by the union rescind such
changes.
(d) Upon request by the Union, bargain collec-
tively with the Union concerning the layoff an-
nounced on May 3, 1979, and any subsequent lay-
offs between that date and August 13, 1979.
(e) Post at its places of business in Lincoln and
Providence, Rhode Island, copies of the attached
notice marked "Appendix."8 Copies of said notice,
on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
' In the esent that this Order is enforced hb a Judgment of a U nited
States Court of Appeals, the words In the notice reading "Posted hb
Order of the National liahor Relations Boaird" shall read "Posted P'ursu-
ant to a Judgment of the United States Colurt of Appeals nforclig anl
Order of the Natiional I abor Rel;lation Board "
APPENDIX
No IICI TO ENPI oF. it:S
POS IAI) BY ORI)iR OF IHI .
NA I IONAI. LABOR RIL, I IONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WEI Wi.l NOT refuse to bargain collectively
with Rhode Island Workers Union, Local 76,
Service Employees International Union, AFL-
CIO.
WE Wll.n. NOT unilaterally change incentive
rates or standards or our workweek.
WE WI.I. NorT individually poll employees
concerning the length of the workweek.
WE WiL.I NOT lay off any employees with-
out consulting and bargaining with the Union
concerning such layoffs.
WE WILL NOT ask employees who were in-
terviewed by, or gave statements to, the Na-
tional Labor Relations Board to identify them-
selves to us.
WE WIILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
WE WILL, upon request, bargain with the
Union concerning the wages, hours, and other
conditions of employment of our employees.
WE WILL, upon request, bargain with the
Union concerning changes in incentive rates
and standards and about the workweek.
WE WILL., upon request, bargain with the
Union concerning the layoff announced on
May 4, 1979, and any subsequent layoffs be-
tween that date and August 13. 1979.
10)9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, if the Union requests, rescind
changes in incentive rates and standards and in
the workweek.
HEDISON MANUFACTURING CO.
DECISION
STAIEMENr OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge:
Based on a charge filed in Case l-CA-15206 on
November 14, 1978, by Rhode Island Workers Union,
Local 76, Service Employees International Union, AFL-
CIO,' herein called the Union,2 and amended on Decem-
ber 20, 1978, the Acting Regional Director for Region 1
of the National Labor Relations Board, herein called the
Board, issued a complaint on December 27, 1978, alleg-
ing that Hedison Manufacturing Co., herein called the
Company, or Respondent, had violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amend-
ed, 29 U.S.C. § 151, et seq. On January 4, 1979, Respond-
ent filed an answer to this complaint, denying the com-
mission of any unfair labor practices.
On January 18, 1979, the Union filed a charge in Case
l-CA-15489, and amended that charge on May 7 and 15,
1979. Based on this charge, as amended, the Regional
Director for Region I issued an amended complaint on
May 18, 1979, alleging further violations of Section
8(a)(1) of the Act. Respondent answered this complaint
on June 11, 1979, again denying the commission of any
unfair labor practices.
On June 6, 1979, the Union filed still another charge in
Case l-CA-16163. Based on this charge, the said Re-
gional Director issued an order consolidating Cases 1-
CA-15206, 1-CA-15489, and 1-CA-16163, and a further
amended complaint on July 12, 1979. Thereafter, on July
26, 1979, Respondent filed an answer, continuing to deny
the commission of any unfair labor practices.
Pursuant to notice contained in the amended complaint
of July 12, 1979, a hearing was held before me 3 at which
time the complaint was further amended, and during
which all parties had the opportunity to present testimo-
ny and documentary evidence, to examine and cross-ex-
amine witnesses, and to argue orally. 4 Following the
close of the hearing Respondent and the General Coun-
sel submitted briefs, which have been carefully consid-
ered.
Upon the entire record in this case, I make the follow-
ing:
'The name of the Union appears as amended at the hearing.
2 This reference will also denote the Union's affiliation as L.ocal 76 of
the Service Employees International Union, AFL-CIO.
I Following the hearing, the General Counsel filed a motion to amend
the record by making certain corrections to the transcript. There was no
opposition to this motion, and its content comports with my memory of
what was actually said. The motion is granted.
4 During the hearing, the parties reached an informal settlement (J
Exh. I) of the issues in the amended complaint concerning warnings to
Daniel Carr. I approved the settlement, and these issues were not litigat-
ed Having received no notification that the settlement agreement has not
been complied with, I now dismiss the allegations contained in pars. 8(a)
and (b), 9(a) and (b), 10, 17, 18, and 20 of the amended complaint
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Hedison Manufacturing Co., Respondent herein, is a
Rhode Island corporation maintaining its principal office
and place of business in Lincoln, Rhode Island, where it
is engaged in the manufacture and sale of jewelry and re-
lated products. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint, as amended at the hearing, alleges, and
Respondent admitted at the hearing, and I find that
Rhode Island Workers Union, Local 76, Service Em-
ployees International Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
It. THE AI.I.EGED UNFAIR LABOR PRACTICES
A. Background
The issues in this case remaining after the settlement,
referred to above, depend, to some extent, for their reso-
lution upon the existence of an obligation on the part of
Respondent to bargain with the Union. That bargaining
obligation, in turn, arises out of the facts of a prior series
of charges and a petition for an election filed by the
Union's predecessor against the Company beginning in
January 1978 and consolidated into a single complaint by
the Regional Director for Region 1 on August 9, 1978.
This consolidated case was heard before Administrative
Law Judge Benjamin Schlesinger in August, September,
and October 1978, and resulted in a Decision by him
dated May 18, 1979, in which he found numerous and re-
peated violations of Section 8(a)(l) and (3) of the Act in-
volving an almost classic pattern of threats, interroga-
tion, promises of benefits, attempted espionage, and so-
licitations of grievances, together with decreases in in-
centive rates, increases in eligibility standards, discharges
and layoffs, all accompanied by, or caused by, manage-
ment's virulent hostility toward the Union and its adher-
ents. As a result of these findings Administrative Law
Judge Schlesinger, having found that the Union had ob-
tained valid authorization cards from a majority of Re-
spondent's employees, in an appropriate unit, as of Janu-
ary 12, 1978, recommended that an order issue requiring
Respondent to bargain with the Union.
At the hearing in this case there was considerable dis-
cussion on two issues, the first concerning the right of
the General Counsel to rely on the Administrative Law
Judge's findings in the prior case to establish the Compa-
ny's bargaining obligation; and the second, my duty to
make findings of fact and conclusions of law based on
those same findings.6
N.L. RB. v. Gissel Packing Co., Inc., 195 U.S 575 (1969)
6 In the end, however, the General Counsel moved that I defer my
consideration of this case until the Board had ruled on the exceptions in
Administrative Law Judge Schlesinger's case In view of the timing of
this decision, it almost goes without saying that that motion is granted.
1040
HEDISON MANUFACTURING CO.
With respect to the first issue, it is clear that a prior
Board order would preclude further litigation here on
the issues of pervasive and egregious unfair labor prac-
tices, the Union's majority, and the obligation to bar-
gain. 7 In this case the General Counsel took the position
that, even though the Board had not yet ruled in the
case, he would refrain from putting into the record evi-
dence as to those issues, and that he would take his
chances that the Board's ruling would fill any eviden-
tiary gaps in this case, or, conversely, that the allegations
in this case would fall from lack of evidence.
The General Counsel's expectations were realized as
the Board issued its Decision and Order in the prior case
on May 27, 1980 (249 NLRB 791), affirming Administra-
tive Law Judge Schlesinger's in most particulars includ-
ing the bargaining order."
In respect to the second question, the fact that I am
not writing this decision before the Board's ruling in Ad-
ministrative Law Judge Schlesinger's case renders the
issue moot, although my reading of Delchamps, Inc., 234
NLRB 262 (1978), indicates that my decision to defer
consideration of this case until the Board reached its de-
cision in the prior case was correct.
In accordance with the law as expressed in Delchamps
and Lehigh Lumber, then, I take official notice of the
Board's decision in the prior case involving this Re-
spondent, and I find, based on that decision, that Re-
spondent, throughout the time covered by the events of
this case, had a duty to bargain with the Union concern-
ing changes in wages, hours, and conditions of employ-
ment which it has failed to satisfy in violation of Section
8(a)(5) of the Act. Further, I infer and find that Re-
spondent's actions in this case, as well as in the prior
case, were motivated by pervasive and unabated feelings
of animus and hostility toward the Union.9
B. Starement of Stipulated Facts
There are no disputes of fact in this case. At the
hearing, the parties entered into the following stipula-
tions relevant to the allegations of the amended com-
plaint.
1. Respondent has, on repeated occasions, modified
production standards and incentive bonus rates for em-
ployees who are paid on an incentive basis.
? Lehigh Lumber Company. Brown-Borhek Company. Ritter and Smith
Company. and the Lehigh VaIlley Lumbermen' ,4sociatoon. 238 NL RB 675
(1978)
m Two of the consolidated cases in the prior proceeding were severed
by the Board and remanded to the Administrative Law Judge for further
proceedings. Those cases are not relevant to the issues in the instant case.
9 The General Counsel sought to introduce two documents at the
hearing (G.C Exhs 7 and 8), which in his view tended to show the con-
tinuing interest on the part of the Union in the representation of Re-
spondent's employees and the unremitting hostility of Respondent to-
wards that interest I rejected those exhibits at the hearing and reaffirm
that ruling now These tokens are not necessary to establish Respondent's
hostility to the unionization of its emplosees since there is no evidence
whatsoever that its views have changed in any way since the first
hearing; since Administrative Law Judge Schlesinger's findings; or since
the Board's affirmation of those findings
This has occurred since January 12, 1978, 0 and contin-
ually until the present date. The departments affected by
these changes are the direct labor production
department, with the exception of plating, casting, and
special products. The direct labor production depart-
ments where rates and standards have changed are press,
all soldering departments, polishing department, stringing
and unstringing departments, machine and linking depart-
ments, the epoxy department, the carding department,
wrapping and gluing-mitering departments. t
Employees paid on an incentive basis receive a basic
hourly wage; beyond the basic hourly wage they re-
ceive, they are paid for coverage based on the incentive
rate for the particular job and the production standards.
This stipulation was amended by adding to it a further
stipulation that on an average basis employees in the pro-
duction departments in which employees receive incen-
tive pay receive between 20 and 25 percent of their pay
based on the incentive standards and rates.
2. On or about April 30, 1979, General Counsel's Ex-
hibit 312 (a questionnaire polling employees on a proposal
to shorten the workweek by lengthening the workday on
4 days, and working only one-half day on the fifth day)
was distributed by Respondent to all employees of Re-
spondent. All employees with the exception of Daniel
Carr returned the questionnaire included in this exhibit
to supervisory personnel.
On May 4, 1979, General Counsel's Exhibit 4'3 (an an-
nouncement by Respondent that the results of the ques-
tionnaire showed an overwhelming majority of employ-
ees in favor of the 4-1/2-day week, and announcing new
hours in conformity with the new workweek) was dis-
tributed by Respondent to all employees of Respondent.
The new schedule described in this exhibit was instituted
on May 21, 1979, by Respondent. The previous schedule
that was in effect before this memorandum was distribut-
ed required most full-time production and maintenance
employees to work between the hours of 7:45 a.m. and
4:15 p.m. Monday through Friday.
In each case both before and after the May 21 change
employees took 30 minutes of unpaid lunch time. Re-
spondent has not notified or bargained with the Union
regarding any matters at any time. Further, the effect of
the change described in General Counsel's Exhibits 3 and
4 (2 and 3) and implemented on May 21 was to reduce
the hours worked by the homemaker or mother shift
production and maintenance employees from five 6-hour
shifts per week to four 6-hour shifts per week, with no
change in hourly pay, but with an attendant decrease in
weekly pay.
The employees subject to this change, that is the em-
ployees of the mother shift or the homemaker shift, are
those listed in General Counsel's Exhibit 4.
In connection with this stipulation, William O'Brien,
Respondent's vice president of operations, and the sole
"' In this case I can consider and decide only upon matters which oc-
curred after May 14. 1978. a date 6 months before the filing of the origi-
nal charge in Case I CA-15206
'' This paragraph has been revised to conform with the transcript as
amended bs General Counsel's motion to amend
2 This should he GC Exh 2
" This should be G C Exh 3
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness in this proceeding, testified that he was familiar
with Respondent's personnel practices only since joining
Respondent in February 1978. O'Brien intimated that
there was not much support material on these practices
maintained by Respondent before he was hired, and that
prior to February 1978 personnel practices were "some-
what confused." O'Brien was not aware of any previous
practice of polling employees, but he did intimate that
there were some sort of inquiries made in 1977 when the
plant was moved from Providence to Lincoln.
3. The advertising shown on General Counsel's Exhib-
it 5'4 was placed by Respondent in the Providence
Journal and Providence Evening Bulletin and ran on De-
cember 28 and 29, 1978, and on January 3 and 4, 1979, in
those newspapers.
A copy of the ad was also placed on company bulletin
boards visible to employees for approximately a week, at
or about the time the ads were placed in the newspapers.
The two newspapers are publications of daily circulation
in the greater Providence area, including Lincoln, Rhode
Island. They are the two largest newspapers in the
Providence area.
No related notices or advertisements were otherwise
placed by Respondent in newspaper or communicated to
employees in the plant by bulletin board or other means.
4. On or about Friday, May 4, 1979, Respondent uni-
laterally instituted a layoff in various production and
maintenance departments, to be effective on Monday,
May 7, 1979. The employees subject to this involuntary
layoff are listed in General Counsel's Exhibits 6(a)
through (h).
These exhibits represent memoranda from William
O'Brien to Donald Dutcher, both supervisors of Re-
spondent, describing the employees and departments af-
fected by the layoff. T he late night shift employees listed
on General Counsel's Exhibit 6(b) were not assigned
consistently to any department. Rather, these employees
were utilized in production departments at various times
as the workload in the plant required--including all pro-
duction departments except plating, casting, press, pack-
age inventory, pick room, central stores, receiving and
shipping.
On one occasion night shift employees worked for 3
or 4 days in the press department under the supervision
of a day supervisor.
5. Any layoffs subsequent to May 4, if there are any
layoffs after May 4, would have been implemented by
4 G C Exh 5 is ai iewsspapcr advertisemenrl. neasuring about 3 x r
inches, bearing the following mnessage
"TO A ,I PRESENT OR FORMER
HEDISON MFG. CO EMPLOYEES
The management of Hedison Mfg. Co. believes that represeitta
t oves f the National l.ab~or Relations Board failed to make available
to the Compar), or to tile Court. evidence in their possession, tend
ing to establish as false certain unfair labor charges made against the
Company
If you were interviewed, and/or gave a written stateIenclt tii
NIRB agents at iani time during the last six months and :ere not
called to testif 5 during the recent trial, we would greatly apprtciate
your colntacting Mr Willianm ()'Brien at tiedison, or Mr. David F
SveeneL. Companr Allornesy at the box # belowg
Al.l RE'P IES WIl I 131 KEPT CONIIDE NIIAI
REPIY 1' tO B)X 10749
Respondent in the same manner as the May 4 layoff,
namely, without consultation with the Union.
C. Analysis and Conclusions
1. Unilateral changes in incentive standards
Respondent's actions in modifying production stand-
ards and incentive bonus rates, from and after May 14,
1979, without consulting or bargaining with the Union,
constitute a clear violation of Section 8(a)(1) and (5) of
the Act. The duty to bargain about actions so intimately
bound up with the rights of the Union and of employees
is so plain as not to require further discussion.
2. The April 30 questionnaire
The stipulation on the April 30 polling of employees
did not treat either the business reasons for the proposed
change in hours, nor the question of whether the change
in hours really reflected the views of a majority of the
employees. Whatever the business reasons, S or whatever
the results of the poll may actually have been, such
direct dealing with employees is unlawful and a further
violation of Section 8(a)(l) and (5) of the Act. New York
Patient Aids Inc. d/b/a Guardian Ambulance Service and
American Medical Supplies, 228 NLRB 1127 (1977); Shen-
ango Steel Buildings, Inc., 231 NLRB 586 (1977).
3. The newspaper advertisement
Apart from the stipulation that Respondent caused an
advertisement to be published and posted on its bulletin
boards, there is no evidence on what, if any, responses
were made to the advertisement or posting, and what, if
any, impact the advertisement may have had upon em-
ployees.
The General Counsel argues, however, that the adver-
tisement and posting is inherently coercive in that it had
the natural effect of inhibiting the desire of employees to
cooperate with the Board's investigative processes, and
deterring others from so cooperating. Martin A. Gleason,
Inc., 215 NLRB 340 (1974). Other cases seem uniformly
to hold that it is a violation of law when an employer
requests copies of employee statements to the Board,
particularly in cases marked by widespread and serious
unfair labor practices. The Fourth Circuit's decision in
Robertshaw Controls Company, Lux Time Division v.
NVL.R.B., 483 F.2d 762 (1973), would undoubtedly have
been different if the background in that case approached
that of this case.
Further, I think it is reasonable to assume, and I do
infer that, despite the wording of the advertisement,
what Respondent really was asking for was the state-
ments its employees might have given to the Board. Re-
spondent made much in this hearing of its motion to pro-
duce these same statements in the prior case.
'" I canilnot say thal the annllounccd reason for the schedule change, or
desire to conlserse energy. was rnot a valid, "'cin a laudable, purprose, but
that is riot really material here
1 ()42
HEDISON MANUFACTURING CO.
Thus, if Respondent had gone directly to its employ-
ees, or to particular employees' and requested copies of
their statements, such requests would have been violative
of the Act. 17
However, this is not the way it was done here, and
none of the cases cited by the General Counsel, or con-
tained in the analysis in Robertshaw. touch upon the two
methods used by Respondent here. It seems to me that to
equate the placing of an advertisement in a daily newspa-
per of general circulation in the area, with a face-to-face
request, would unduly restrict an employer, even this
Respondent in the circumstances of this and the prior
case, in its right of free expression. In the absence of any
face-to-face requests, and of any evidence that employees
were, or perceived that they were coerced I do not find
that the newspaper advertisement constituted a violation
of the Act.
With respect to the posting of the same material on
plant bulletin boards, again in the absence of any evi-
dence of coercive effect, I cannot find this to be a viola-
tion of the Act A request of this type would appear to
me to have no more impact even on the limited number
of employees to whom it was addressed, than an appeal
for blood donors, or for contributions to the community
fund.
4. The layoffs
As with the changes in incentive standards, it is evi-
dent that any layoffs effected by Respondent without
consultation with the Union would violate Section
8(a)(1) and (5) of the Act. Thus, the layoff announced on
May 4, 1979, constituted a violation of the Act. The par-
ties further stipulated that all layoffs between that time
and the date of the hearing herein on August 13, 1979,
were implemented without consultation with the Union.
I find, therefore, that the layoff of May 4, 1979, and
any layoffs between that time and August 13, 1979, vio-
lated Section 8(a)(1) and (5) of the Act. By its failure to
notify and bargain with the Union, Respondent made it
impossible for the Union to have protected the interests
of affected employees, possibly saving them loss of
income or jobs, but in any event cushioning the impact
of precipitous reassignment or layoff. This fact, coupled
with Respondent's demonstrated hostility to the Union
and its adherents, its practice of using layoffs as a
weapon in its campaign against the Union, and its failure
in this hearing to advance any business justification for
the May 4 or subsequent layoffs, constrains me to infer
and find that antiunion considerations played at least
some part in the decision to lay off employees on May 4,
and subsequently. This I find constitutes a violation of
Section 8(a)(3) of the Act. I'alley Iron & Steel Co., 224
NLRB 866 (1976).
it It could be inferred thi R esp idcril. hbecausc of tilt' Nxl c lsi in llitr-
rogation and atternp led espioiiage of itlllllc itllisie, r e' ilevd il the prior
casc. knew Who had I llkd to the Board. arid from it, ob',s'rsatlll, it{t the
hearing. kils thiilh of tho,c tellipl!,tses had iliot ictiflSd
'i This night "e oli hil. t beell io. il the a;til)sphere of tili' sca, es cii If
the slandards prescribed ill Johnic' Poulrn ( J . JIhr, tlih, Poulrrn (Co
SuccI or, 14,h Nl RB 77't ( 1`h4)hi had fben ol,icr ed
IV. THE REMEDY
Having found that Respondent has violated Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
Having found that Respondent is continuing to refuse
to bargain with the Union, I shall recommend that, upon
request, it commence bargaining concerning wages,
hours, and other terms and conditions of employment.
As I have found that Respondent unilaterally and un-
lawfully changed its incentive rates at times since May
14, 1978, 1 shall order that Respondent immediately bar-
gain with the Union about such incentive rates, and,
upon request by the Union, rescind all such changes. I
shall further recommend that Respondent make whole
any employees who may have suffered losses in income
because of incentive rate changes since May 14, 1978, by
the payment to them of sums of money equal to that
which they would have earned if the rates had not
changed, together with interest thereon.
As I have found that Respondent unilaterally and un-
lawfully changed the workweek on May 21, 1979, I shall
recommend that it bargain with the Union about the
workweek, and, upon request of the Union, rescind the
change in the workweek. I shall further recommend that
Respondent make whole any employees who lost wages
because of the change by the payment to them of sums
of money equivalent to such lost wages, together with
interest thereon.
Having found that Respondent unilaterally and unlaw-
fully laid off employees on May 4, 1979, and possibly on
other dates, I shall order that it bargain with the Union
about any layoffs, and that it offer immediate and full re-
instatement to all laid-off employees to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have suf-
fered as the result of Respondent's unlawful conduct
computed in the manner prescribed in F W: Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977). '
The General Counsel has asked that I recommend a
broad cease-and-desist order in this case. In view of the
findings in the prior case, and the continuation of similar
conduct in this case it appears clear that Respondent has
a proclivity to violate the Act and has engaged in such
egregious and widespread misconduct as to demonstrate
a general disregard for its employees' fundamental statu-
tory rights. Accordingly, I shall recommend a broad
cease-and-desist order as requested. Ilickmott Foiods. Inc.,
242 NLRB 1357 (1979).
CONCI USIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
Sete, geicra ills o I, Pli, tir, , & lIutating I . I ; NlI R [ l (7 1, 1t 2
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By unilaterally changing its incentive standards and
its workweek, Respondent has violated Section 8(a)(l)
and (5) of the Act.
4. By individually polling its employees concerning the
length of the workweek, Respondent has violated
Section 8(a)(l) and (5) of the Act.
5. By laying off its employees on May 4, 1979, and at
other dates thereafter, without consultation or bargaining
with the Union, Respondent has violated Section 8(a)(1),
(3), and (5) of the Act.
6. Respondent has not violated the Act in any other
manner on the record of this case.
[Recommended Order omitted from publication.]
1044