Hedison Mfg. Co.

National Labor Relations Board - Board Decisions

May 27, 1980

249 N.L.R.B. 791 (N.L.R.B. 1980)

HEDISON MANUFACTURING COMPANY 791
Hedison Manufacturing Company and Rhode Island
Workers Union Local 76, Service Employees In-
ternational Union, AFL-CIO.' Cases I-CA-
14050, 1-CA-14085, 1-CA-14086, 1-CA-
14273, I-CA-14274, -CA-14600, and I-RC-
15542
May 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 18, 1979, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, both the Respond-
ent and the General Counsel filed exceptions and
supporting briefs, and the General Counsel filed a
brief in response to Respondent's exceptions and a
brief in support of the Administrative Law Judge's
Decision.
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, 2 and conclusions 3 of the Administrative Law
Judge and to adopt his recommended Order,
except as modified herein.
I. At an earlier stage of Case -RC-15542, the
Board adopted, inter alia, the recommendation of
the Regional Director for Region 1 to overrule the
' The General Counsel's unopposed motion that the name of the
Charging Party/Petitioner be corrected to read as captioned herein is
hereby granted.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wal Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge's find-
ings, rulings, and interpretation of the evidence show bias and prejudice
on his part against Respondent. We find Respondent's allegations of bias
and prejudice to be totally without merit, Upon our full consideration of
the record and the Administrative Law Judge's Decision, we perceive no
evidence that he prejudged the case or demonstrated any bias against Re-
spondent in his analysis or discussion of the evidence.
In pars. 4 and 5, sec. III, E, 5, of his Decision, the Administrative Law
Judge inadvertently refers to the companywide seniority dates of employ-
ees Barbeau and Herron as being in 1976; the record establishes that Bar-
beau's companywide seniority date is August 29. 1977, and Herron's is
August 25, 1977.
3 The Administrative Law Judge inadvertently failed to include in his
Conclusions of Law several violations of Sec. 8(a)(1) of the Act, which
he found and we affirm. In this same regard, we note that, while the Ad-
ministrative Law Judge found that Respondent violated Sec. 8(aXS) of
the Act by unilaterally imposing new conditions on the possible transfer
to other departments of employees scheduled for layoff from the press
department on June 2, he inadvertently failed to include provisions relat-
ing to this finding in his Conclusions of Law. Accordingly, we will
modify his Conclusions of Law to reflect these provisions herein.
249 NLRB No. 96
challenges to the ballots cast by floorladies Evelyn
Di Carlo and Alice Cote in that case, 4 on the
grounds that they are employees rather than super-
visors within the meaning of the Act. 5 In the in-
stant unfair labor practice proceeding, however,
the General Counsel has sought to have the em-
ployee status of Di Carlo and Cote relitigated. The
Administrative Law Judge found that, since Di
Carlo is expressly alleged in the complaint to be a
supervisor, and is further alleged to have engaged
in unlawful conduct in violation of Section 8(a)(3)
and (1) of the Act in her supervisory capacity, her
status could be relitigated; 6 he further found, on
the basis of the record evidence as to her duties
and responsibilities, that she is a supervisor within
the meaning of Section 2(11) of the Act. We agree
with those findings.
The Administrative Law Judge also found, how-
ever, that he was prohibited by Section 102.67(f) of
the Board's Rules and Regulations, Series 8, as
amended, from permitting the relitigation of Cote's
status. In his exceptions, the General Counsel con-
tends that the Board should make a new determina-
tion as to Cote's status because she performs essen-
tially the same duties as Di Carlo. Inasmuch as
Cote was not alleged to have engaged in any unfair
labor practices and her status does not affect the
unit finding of majority support for the Union, we
find it unnecessary to make a determination of
Cote's status. Accordingly, we find it unnecessary
I The election was conducted on March 3. 178. pursuant to a Stipula-
tion for Certification Upon Consent Election The tally was 121 for the
Petitioner, 131 against, with 14 challenged ballots, a sufficient number to
affect the results of the election Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the election
In his Report on Objections and Challenges, the Regional Director
recommended that certain objections be overruled and that others be
consolidated for hearing with the unfair labor practice proceeding herein
He also recommended that certain of the challenges, including those to
the ballots of Di Carlo and Cote. be overruled and that those ballots be
opened and counted. In a decision not reported in the Board's volumes,
the Board adopted those recommendations (no exceptions were filed to
the recommendations concerning Di Carlo and Cote). Those ballots for
which challenges were overruled were thereafter opened and counted,
and a revised tally of ballots was issued, leaving unchanged the ultimate
result of the election and making it unnecessary to resolve the challenges
to other ballots, inasmuch as the number of still-unresolved challenged
ballots was insufficient to affect the results of the election.
With respect to the objections sent to hearing in the instant proceed-
ing, we adopt the Administrative Law Judge's recommendation that Ob-
jections 2, 3, 6, and 7 be sustained, as they are coextensive with certain
unfair labor practices found to have been engaged in by Respondent in
the instant case, and that the election therefore be set aside. In the ab-
sence of exceptions thereto, we adopt, pro forma, the Administrative Law
Judge's recommendation that Objection 4 be overruled. We do not adopt
his recommendation to sustain Objection 1, for reasons set forth infra at
fn. 22.
a The job classification "leadpersons-floorladies" is expressly included
in the appropriate bargaining unit stipulated to by the parties in the repre-
sentation proceeding.
6 Amalgamated Clothing Workers of America Sagamore Shirt Co. I v.
N.L.R.B., 365 F.2d 898, 902-905 (D C. Cir. 1966); Serv-U-Stores Inc., 234
NLRB 1143 (1978); Farm Fans, Inc., 174 NLRB 723 (1969); Stanley Air
Too.,, Division of the Stanley Works, 171 NLRB 388 (1968)
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to consider the General Counsel's assertion that a
new determination of Cote's status would be con-
sistent with the Board's decision in Serv-U-Stores,
Inc., supra.
2. We have adopted the Administrative Law
Judge's finding that Respondent violated Section
8(a)(5) of the Act by unilaterally formulating and
implementing new terms and conditions for the
transfer to other departments of employees selected
for layoff.7 In addition, contrary to the Administra-
tive Law Judge, we find that Respondent also vio-
lated Section 8(a)(3) and (1) of the Act by impos-
ing such conditions on transfers by pressroom em-
ployees selected for layoff on June 2, 1978.8
The record shows that Respondent offered the
pressroom department employees selected for
layoff an opportunity to transfer to either the sol-
dering or epoxy department in lieu of layoff. Such
an offer of alternative employment was consistent
with Respondent's past practice. However, Re-
spondent for the first time imposed the following
conditions on this offer: (1) transferees would for-
feit their press department seniority and acquire
new seniority in the department to which they
transferred, dating from the date of transfer; (2)
transferees would be treated as newly hired em-
ployees in their new departments, with a starting
wage commensurate to such status, which would
mean a wage reduction for some transferees; and
(3) the transfers would be permanent, and transfer-
ees would be ineligible for recall to the press de-
partment when work again became available there-
in.
The press department employees selected for
layoff chose to accept layoff apparently in the hope
of eventually being recalled to the press depart-
ment. They recognized that the conditions imposed
by Respondent would have permanently barred
anyone who accepted a transfer from returning to
the press department. 9
The General Counsel contends that the Respond-
ent imposed these conditions in an effort to break
up the press department because it was a strong-
hold of union support and a center of concerted ac-
See fn. 3, supro.
e We note that there is no allegation that the layoff itself was discri-
minatorily motivated.
g In this regard, Daniel Carr, a leader in the Union's organizational
campaign, and a press department employee who, because of his senior-
ity, was not affected by the June 2 layoff, testified that during the morn-
ing break on that date, the press department employees gathered to dis-
cuss the just-anltounced layoff and transfer conditions. According to
Carr, all those selected for layoff elected to take the layoff, rather than
be scattered among other departments in the plant. Thus:
Everybody was going to take the layoff, rather than be dispersed.
We didn't want to be . .. broken up. We thought we had a real
good solid department and nobody wanted to go to other depart-
ments . . . They wanted to get back to the press department so
bad.
tivity. Thus, the General Counsel pointed out that
Respondent had in the past usually attempted to
transfer employees rather than lay them off for
lack of work, but it had never before imposed such
conditions on transfer,
Respondent's vice president, O'Brien, conceded
that "It was generally acknowledged in the plant
to everyone that the press department was heavily
in favor of the Union."1 0 Indeed, within hours of
the start of the Union's public campaign on Janu-
ary 10, 1978,'1 the record reveals that Respond-
ent's vice president, Danserau, advised Chairman
of the Board Hedison that employees from the
press department and the central stores department
were the principal instigators of the considerable
union organizational and campaign activity being
conducted throughout the plant that morning.
Thus, and in agreement with the Administrative
Law Judge, we find that 3 days later on January
13, Respondent discriminatorily laid off 21 employ-
ees plantwide, 19 of whom were union supporters.
Twelve of the laid-off employees were union sup-
porters from the press department. The conduct
which the Administrative Law Judge found to be
unlawful, and which continued unabated during the
following 4 months, included interrogations, solici-
tation of employees to spy on the union activities
of their co-employees, threats of refusal to bargain
and plant closure, implementation of rules restrict-
ing union activity among the employees, threats of
discipline, promises of benefits, solicitation of
grievances, surveillance of union activity, and dis-
criminatory layoffs.
On May 12, 3 weeks before the press department
layoff, the press department again became the focus
of Respondent's attention. On that day, union ac-
tivist Daniel Carr and union supporter Claire Sher-
man, speaking for the press department employees,
complained to the department foreman about
unsafe working conditions and an unfair incentive
system. They demanded a meeting with Vice Presi-
dent O'Brien. On the following workday, May 15,
O'Brien met with the press department employees
as a group. The employees, many of whom spoke
out individually, reiterated the complaints voiced
by Carr and Sherman about safety and incentives.
According to Carr's uncontroverted testimony,
O'Brien claimed that, even though the press de-
partment was "strongly pro-Union" and he knew
that they were "all union supporters," he would
deal fairly with them. O'Brien agreed to provide
safety devices, review incentive rates, and permit
employees to request that jobs which they consid-
10 In fact, 20 of the 24 employees in the press department at the time
of the June 2 layoff had signed valid union authorization cards.
I All dates hereinafter are 1978, unless otherwise stated.
HEDISON MANUFACTURING COMPANY 793
ered to be dangerous be changed from piece rate to
day work, so as to avoid accidents stemming from
employees' efforts to work too speedily.
On May 17, 2 days later, the union organizing
committee distributed leaflets to the employees,
trumpeting their meeting with O'Brien in these
terms:
HEDISON UNION NEWS
HEDISON UNION ORGANIZING COMMITTEE
R.I. WORKERS UNION
PRESS WORKERS UNITE FOR
SAFETY, AGAINST INCENTIVE SYSTEM
The leaflet reported the substance of the May 15
meeting between O'Brien and the press department
employees, and listed the "concessions" wrought
from O'Brien in regard to safety devices, the incen-
tive system, and dangerous jobs. The leaflet closed
by stating that the success of the press department
at the May 15 meeting was the result of its unified
action and by reminding employees that "collective
action is the best way to get ahead."
Respondent concedes that it had knowledge of
this leaflet from the time of its distribution at the
plant on May 17. On June 2, 2 weeks later, Re-
spondent laid off 14 press department employees,
and imposed the alleged discriminatory transfer
conditions. Thus, Respondent's pervasive and un-
concealed union animus, as well as its special
awareness of the concerted union activity engaged
in by the press department employees, is well es-
tablished on the record before us. It is in these cir-
cumstances that we evaluate Respondent's asserted
reasons for imposing the allegedly discriminatory
transfer conditions.
O'Brien testified that the transfers would have to
be permanent because the workload projections for
the press department at the time of the layoff indi-
cated that it would be a "long time" before any of
those laid off could be recalled to the press depart-
ment. Thus, according to O'Brien, the employees
affected by the layoff could choose to go into
either the soldering or the epoxy departments to
learn new skills, and, "hopefully," remain in Re-
spondent's employ. In this context, Marilyn Jelli-
son, one of the laid-off employees, testified that, at
the time of the announcement of the layoff, the em-
ployees were told by Respondent officials that
"We would be given additional training in that
[soldering or epoxy] department and [Respondent]
wouldn't find it feasible to put us back in press
after spending that time on us." We find this expla-
nation of the permanent nature of these transfers
unconvincing. Initially, we note there is no indica-
tion in the record that the training required of new
employees in the epoxy or soldering departments is
any more extensive or costly than that required in
the press department. Thus, there is no record evi-
dence to justify, on such economic grounds, a re-
fusal to allow transferred employees to return to
the press department when such work again
became available. Moreover, three of the affected
employees-Leslie Barbeau, Carol Durand, and
Theresa Dolinski-had prior experience in the sol-
dering department. Thus, Respondent would not
have incurred any retraining expenses which might
have justified a refusal to permit the above-named
employees to return to the press department. Re-
spondent neither made exceptions to the permanent
nature of the transfers offered these three employ-
ees, nor did it offer an explanation for its failure to
make such exceptions. It thus becomes clear that
Respondent's imposition of such rules regarding
transfer as an alternative to layoff was not based on
economic considerations, but rather formed a part
of its unlawful strategy to combat the attempts of
its employees to engage in protected activity.
Respondent's explanation for reducing the wages
of some transferees is equally unconvincing. Thus,
O'Brien testified that the transferees were to be
treated as unskilled workers and were to receive
training in their new departments, with their initial
level of compensation to be based on their lack of
experience. O'Brien also testified that any subse-
quent wage increases received by the transferees
were to be dependent upon their demonstrated
ability to perform the new jobs. Respondent's as-
serted justification for reducing the wages of the
transferees, however, fails to explain the necessity
of reducing the wages of Barbeau, Durand, and
Dolinski. As previously discussed, these employees
had experience in the soldering department and did
not require any additional training. There was thus
no justification for paying them as newly hired
trainees; neither did Respondent offer any explana-
tion as to why it intended to treat Barbeau,
Durand, and Dolinski as inexperienced soldering
department employees.
Finally, Respondent's explanations for the impo-
sition of the transfer conditions on June 2 are fur-
ther undermined by its treatment of employees in
the casting department. On June 12, only 10 days
after imposing restrictive conditions on the transfer
of employees in the press department, Respondent
laid off four employees in the casting department.
Respondent offered the casting department em-
ployees transfers in lieu of layoff, but, unlike the
press department employees, it did not impose any
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the aforementioned restrictions on their trans-
fers. 12
Respondent contends that it was under no obli-
gation to offer transfers to the press department
employees, and that it could have laid off these em-
ployees without offering them alternative employ-
ment. Respondent misses the point. The record re-
flects, and as noted above, Respondent had, as a
past practice, offered departmental transfer as an
alternative to layoff. Moreover, the transfers had
always been offered free of any such conditions as
imposed here. We therefore find that the record
fully supports the General Counsel's contentions
that Respondent imposed restrictions on transfers
by press department employees in retaliation for
the support of the Union by those employees, and
because they engaged in protected concerted activ-
ity. In addition, and as fully discussed, the press de-
partment was an acknowledged stronghold of
union support, and Respondent's discriminatory
treatment of these employees was designed to un-
dermine and dissipate support for the Union. We
therefore find Respondent's asserted reasons for its
disparate treatment of the press department em-
ployees to be pretextual and advanced to conceal
Respondent's discriminatory motive. Accordingly,
we find that Respondent violated Section 8(a)(3)
and (1) of the Act by discriminatorily imposing
conditions on and thereby restricting the transfer of
the press department employees. 1 3
3. The Administrative Law Judge found, and we
agree, that the June 2 layoff in the press depart-
ment violated Section 8(a)(5) of the Act for the
reason that Respondent unilaterally arrived at and
implemented its layoff decision in derogation of its
obligation to bargain with the Union. Accordingly,
the Administrative Law Judge's recommended
Order requires that Respondent offer immediate
and full reinstatement to each of the laid-off em-
ployees, and make them whole for any loss of earn-
ings they may have suffered as a result of Respond-
ent's unilateral decision to lay them off. We agree.
However, the Administrative Law Judge has
also recommended that the ultimate determination
12 Indeed, one casting department employee accepted temporary trans-
fer to the soldering department, with no reduction in pay, because of her
prior experience therein-quite different from the treatment accorded
Barbeau. Durand. and Dolinski, who would have been required to accept
permanent transfer to the soldering department, with reduction in pay, in
spite of their previous experience therein.
13 In reaching this conclusion, we note that three of the press depart-
ment employees in question-Jane Lavoie, Marion Lymburner, and Mary
Kucharski-were not affirmatively shown to have been union supporters
Nevertheless, we find that they were, to borrow the words of the Ad-
ministrative Law' Judge, "caught in the web of their fellow employees'
union adherence . [and] were swallowed up in Respondent's desperate
and precipitous attempt to crush the Union." Thus, these three employees
were discriminated against just as much as if they, too, had been active
union supporters. Computed Time Corporation, 228 NLRB 1243 1977);
Howard Johnson Company, 209 NLRB 1122 (1974).
of the actual extent of any given employee's enti-
tlement to backpay arising from the June 2 layoff
should be conditioned upon a determination in the
compliance proceedings of the extent of the June 2
layoff if Respondent had given the Union the op-
portunity to bargain about the layoff. We disagree
and, therefore, do not adopt this aspect of the Ad-
ministrative Law Judge's recommended remedy.
While we agree with the Administrative Law
Judge that the press department employees were
laid off because of a lack of work in that depart-
ment, it is nevertheless clear that these employees
were effectively denied alternative available em-
ployment elsewhere in the plant. As set forth
above, we have found that Respondent placed dis-
criminatory restrictions on their transfers. Since the
press department employees were under no obliga-
tion to accept these unlawfully imposed restric-
tions, they were warranted in refusing to do so. It
was their refusal to accept the unlawful transfer
conditions, and their acceptance of layoff instead,
which ultimately caused their loss of employment
plantwide, not merely their loss of employment in
the press department. Thus, Respondent effectively
engaged in a discriminatory selection of the press
department employees for layoff. Accordingly, in
order effectively to remedy Respondent's discrimi-
nation, we find that the press department employ-
ees are entitled to reinstatement and backpay with-
out regard to any effect the June 2 layoff might
have had on them if the parties had bargained in
good faith about the layoff. 4
4. Based upon charges filed in Cases -CA-
14085 and 1-CA-14086, respectively, the amended
consolidated complaint alleges that on January 31
Respondent discharged central stores department
employees James Ferreira,' Glen Hutloff, Thomas
Lawton, and Russell Moison, in violation of Sec-
tion 8(a)(3) and (1) of the Act, and that on January
30 Respondent discharged Gary McKiernan, super-
visor of the central stores department, in violation
of Section 8(a)(1) of the Act. Respondent contends
that the aforementioned individuals were lawfully
'4 See Coated Products. Inc.. 237 NLRB 159 (1978), where the Board
found that the respondent, while engaged in the relocation of its plant,
was "determined to minimize the prounion segment of its workforce at
the new facility]" by terminating employees rather than offering them
transfers. The Board in that case ordered reinstatement and backpay, stat-
ing that "the issue of which discriminatees would have accepted transfer
offers should be resolved against Respondent inasmuch as Respondent,
by its unlawful conduct, prevented these employees from transferring."
Likewise, Respondent here, by discriminatorily imposing conditions on
the transfer of the press department employees, denied them the opportu-
nity to escape layoff, ad thereby unilaterally abandoned its own past
practice. Thus, Respondent cannot now claim that its discarded past
practice insulates it, in whole or in part, from liability
5 In his recommended Order and in his notice, the Administrative
Law Judge inadvertently referred to James Ferreira as Thomas Ferreira.
HEDISON MANUFACTURING COMPANY 795
discharged because they engaged in or condoned
an intentional work slowdown in their department.
In section III, D, I, of his Decision, the Admin-
istrative Law Judge found, on the facts and for the
reasons set out therein, that Respondent unlawfully
discharged employees Ferreira, Hutloff, Lawton,
and Moison solely because of their union activities,
and that Respondent's discharge of Supervisor
McKiernan was unlawful because it was an integral
part of Respondent's pattern of conduct aimed at
penalizing its employees for their union activities
and was part of Respondent's overall strategy for
ridding itself of the Union.
Respondent contends that these findings cannot
be sustained, because the Administrative Law
Judge denied Respondent due process by preclud-
ing it from presenting any evidence or testimony as
to the reasons for the central stores department dis-
charges. As set forth below, we find that the Ad-
ministrative Law Judge erred in precluding Re-
spondent from presenting any defense on this issue,
and we therefore do not adopt his findings in
regard to these discharges.
In support of the contention that the central
store discharges were unlawful, the General Coun-
sel sought to call Respondent's chairman, Harry D.
Hedison, as a witness. Although Hedison was prop-
erly served with a valid subpoena ad testificandum,
he refused to comply therewith. In view of Hedis-
on's refusal to comply with the subpena and testify,
the Administrative Law Judge precluded Respond-
ent from calling Hedison as a witness and from in-
troducing any evidence regarding the central stores
department discharges.6 In light of Respondent's
unjustified refusal to comply with General Coun-
sel's valid subpena of Hedison, we find that the
Administrative Law Judge's ruling, precluding He-
dison from testifying on Respondent's behalf-in-
cluding testifying about the allegedly unlawful dis-
charges in the central stores department-was fully
warranted.17 However, we do not affirm that part
of the Administrative Law Judge's ruling set out in
Appendix I of his Decision which also precluded
Respondent from calling witnesses other than He-
dison, or from introducing other evidence on its
behalf, in regard to the allegedly unlawful dis-
charges of the central stores department supervisor
and employees.
In support of his ruling precluding Respondent
from presenting any defense to the allegations in
question, the Administrative Law Judge cites
Bannon Mills, supra, and American Art Industries,
16 The Administrative Law Judge's ruling is summarized at fn 10 of
his Decision and set out in full in Appendix I of his Decision
"? Louisiana Cement Company, 241 NLRB No 83 (1979); see Bannon
Milk. Inc., 146 NLRB 611. 633-634 (1964).
Inc., 166 NLRB 943 (1967),' 8 wherein the respond-
ents had refused to comply with subpoenae duces
tecum of certain documents. The respondents in
those cases were then prohibited from presenting
documents or other evidence as to the matters
dealt with in the documents. Since the subpenaed
documents were the "best evidence" of the matters
to be proved by those documents, the refusals to
comply with the subpenas foreclosed the respond-
ents from presenting secondary, or less reliable,
evidence to prove the matter in issue.
Unlike the situations in Bannon Mills, supra, and
American Art Industries, Inc., supra, cited by the
Administrative Law Judge, the issue as to whether
the central stores department discharges were un-
lawful does not involve any underlying factual
question about the contents of documents or tape
recordings, but rather involves the issue of Re-
spondent's motivation for the discharges. In this
regard, Respondent's assertion that the employees'
discharges were precipitated by an intentional
work slowdown, and the supervisor's discharge
was precipitated by his failure to take appropriate
corrective action against such slowdown, must rest
upon the testimony of witnesses as to relevant
events. Thus, the "best evidence" rule involved in
Bannon Mills and American Art Industries is not ap-
plicable to the central stores department discharges
in question.
Accordingly, we find that the Administrative
Law Judge's ruling precluding all testimony and
evidence pertaining to the central stores depart-
ment discharges was, to the extent it went beyond
the exclusion of Hedison's testimony, prejudicial to
Respondent's right to defend itself against the alle-
gations of unlawful conduct in regard to those dis-
charges. Therefore, we shall sever Cases -CA-
14085 and 1-CA-14086 from the instant proceed-
ings, and remand these cases to the Administrative
iR The Administrative Law Judge also refers to the court's decision In
International Union. United Automobile. Aerospoce. and Agricultural Impl-
ment Workers of America [Gyrodyne Company of America] v. N.L.R.B..
459 F.2d 1329 (D.C. Cir. 1972). But the court's decision in Gyrodyne dealt
exclusively with the question of whether the Board could, without expla-
nation, properly decline to draw an adverse inference from a respondents
refusal to comply with the General Counsel's subpoena duce. tecum of
relevant documents. Thus, Gyrodyne dealt with an evidentiary and proce-
dural issue quite distinct from that in question here. and it is therefore
inapposite.
10 Indeed, following the Administrative Law Judge's ruling to pre-
clude Respondent from introducing any evidence in regard to these dis-
charges, Respondent made an offer of proof to the effect that Plant Su-
perintendent Marinelli was prepared to testify that he, not Hedison. made
the decision to discharge the supervisor and employees in question, be
cause of what he determined, on the basis of his own investigation, to be
an intentional work slowdown on the part of the employees, and the in-
competence of the supervisor in failing to correct it.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge for supplemental proceedings in ac-
cordance with our accompanying Order.2 0
5. Notwithstanding the as-yet-unresolved ques-
tion of whether Respondent unlawfully discharged
its central stores department supervisor and em-
ployees, we shall not hold in abeyance our Order
requiring Respondent to cease and desist from en-
gaging in the activity found to be unlawful and to
take the affirmative action to remedy such viola-
tions of the Act. Resolution of the remanded cases
will not affect our conclusion that the extensive
and pervasive unfair labor practices enaged in by
Respondent had a tendency to undermine the
Union's majority support,2 1 and to impede the
election process. 2 2 Thus, Respondent engaged in a
course of protracted unlawful conduct ranging
from the discriminatory layoff of 21 employees, the
unlawful imposition of conditions for transfer on 14
others, threats of reprisal, and acts of surveillance
and coercive interrogation directed at a substantial
number of employees. In these circumstances, re-
gardless of the outcome on the merits of the allega-
tions of unlawful conduct in connection with the
central stores department discharges, we find, for
the reasons set out in the Administrative Law
Judge's Decision, 2 3 that a bargaining order is war-
ranted as part of the remedy for the unfair labor
practices committed by this Respondent. 2 4
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
6 and 7:
"6. By imposing a new rule prohibiting employ-
ees from visiting their fellow employees in other
departments during morning, afternoon, and lunch
break periods and threatening employees with dis-
20 Member Truesdale agrees with his colleagues that the Administra-
tive Law Judge erred by precluding Respondent from introducing any
evidence regarding the discharges in the central stores division and hence
that Cases -CA-14085 and -CA-14086 must be remanded for supple-
mental proceedings. Given the current posture of this case, Member
Truesdale finds it unnecessary to comment at this time on the propriety
of the Administrative Law Judge's reliance on the so-called "integral
part" line of cases in connection with Supervisor Gary McKiernan's dis-
charge.
21 The ultimate outcome of the supplemental proceedings ordered
herein in regard to the discharge of the central stores department em-
ployees on January 31 will have no effect on our adoption of the Admin-
istrative Law Judge's finding that the Union enjoyed majority support
among the employees on January 12.
22 Since the Union's Objection I to the election conducted in Case I-
RC-15542 was based on the alleged illegality of the discharges of the
four central stores department employees, and inasmuch as we do not
make any findings on the merits of those allegations at this time, we do
not adopt the Administrative Law Judge's recommendation to sustain
that objection. We also do not find it necessary to remand that objection
to hearing or to pass upon it in light of our finding that the conduct, of
Respondent which we have found to be objectionable, is itself sufficient
to set aside that election.
23 As noted above, we have not adopted the Administrative Law
Judge's finding that Respondent unlawfully discharged the central stores
department employees and supervisors.
24 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
cipline for violation of that rule; by imposing a
new rule prohibiting employees from posting
union-related or union literature on Respondent's
bulletin boards and threatening employees with dis-
cipline for violation of that rule; by granting a
week's wages to certain of Respondent's employees
for the week of February 6, 1978; by promising
employees advancement and other benefits and im-
provements in order to discourage their union ac-
tivities; by soliciting employees to adjust their
grievances for the purpose of dissuading employees
from joining, assisting, or supporting the Union; by
changing incentive rates and standards; by chang-
ing the method for determining the seniority of its
employees; by imposing new terms and conditions
on the transfer of employees selected for layoff; by
imposing new rules prohibiting the playing of
radios and the use of pay telephones during work-
ing hours-all without bargaining with the
Union-Respondent has engaged in and is engag-
ing in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the Act.
"7. By interrogating employees concerning their
union activities or the union activities of their
fellow employees; by asking them if they or their
fellow employees had signed union authorization
cards; by asking employees to spy on the union ac-
tivities of their fellow employees; by threatening
employees that Respondent would close if the
Union were successful in organizing Respondent's
employees; by threatening employees with dis-
charge for engaging in union activities; by disci-
plining an employee because he engaged in union
activities; by polling employees about their union
sympathies; by illegally surveilling the union activi-
ties of employees; by restricting employee access to
work areas in order to discourage union activities;
by threatening employees with the withholding of
wage increases from employees in order to discour-
age their union activities; by prohibiting employees
from posting notices on Respondent's bulletin
boards in order to discourage their union activities;
by soliciting employee grievances and complaints
and expressly or impliedly promising to take reme-
dial action and by promising any improvements in
terms and conditions of employment, all for the
purpose of dissuading employees from supporting a
union; by telling employees that Respondent would
never bargain or sign a contract with the Union,
Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act."
- - -
HEDISON MANUFACTURING COMPANY 797
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hedison Manufacturing Company, Lincoln, Rhode
Island, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(f):
"(f) Making or enforcing work rules restricting
employees from visiting plant areas during their
lunch hours or break periods or from posting no-
tices on Respondent's bulletin board or by chang-
ing the terms and conditions of employment to re-
strict employees from access to other areas of Re-
spondent's plant, in order to prevent employees
from engaging in union activities."
2. Substitute the following for paragraph 10(j):
"(j) Discouraging membership of its employees
in or support of the Union, or any other labor or-
ganization, by laying off any of its employees or
imposing conditions on their transfer or discrimi-
nating in any manner in respect to their hire and
tenure of employment or any term or condition of
employment, in violation of Section 8(a)(3) of the
Act."
3. Substitute the following for paragraph 2(d):
"(d) Offer to each employee laid off on January
13 and June 2, 1978, if it has not already done so,
immediate and full reinstatement to his or her
former position of employment or, if that position
no longer exists, to a substantially equivalent posi-
tion of employment without prejudice to his or her
seniority or other rights and privileges previously
enjoyed, and make each employee and Tracy Fitz-
patrick and Laycie Monteiro whole in the manner
provided in the section of the Administrative Law
Judge's Decision entitled 'The Remedy,' as modi-
fied by the Board's Decision and Order, for any
loss of wages and other benefits he or she may
have suffered from the date of his or her unlawful
layoff or discharge, as the case may be, until the
date of such offer of reinstatement."
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election in
Case -RC-15542 be, and it hereby is, set aside,
and that Case -RC-15542 be, and it hereby is, dis-
missed.
IT IS FURTHER ORDERED that Cases -CA-14085
and -CA-14086 be, and they hereby are, severed
from the instant proceeding; that the record in
regard to those cases be, and it hereby is, reopened;
and that the proceedings in regard to those cases
be, and they hereby are, remanded to Administra-
tive Law Judge Benjamin Schlesinger for the pur-
pose of permitting the Respondent to present testi-
mony and other evidence concerning the alleged
unlawful discharge of Supervisor Gary McKiernan
and employees James Ferreira, Glen Hutloff,
Thomas Lawton, and Russell Moison, except that
Respondent is not permitted to offer testimony
from its chairman, Harry D. Hedison, in regard to
these matters. General Counsel and the Charging
Party are permitted to cross-examine any of Re-
spondent's witnesses testifying pursuant to this
remand, and to offer such rebuttal evidence as is
relevant. Thereafter, the Administrative Law Judge
shall prepare and issue a Supplemental Decision
setting forth, where required, a resolution of the
credibility of witnesses who have so far testified on
behalf of the General Counsel and the Charging
Party as to the matters encompassed within the
scope of this remand, as well as of any witnesses
who testify in the supplemental proceedings or-
dered herein, and containing findings of fact, con-
clusions of law, and a recommended Order with
regard to the unfair labor practice allegations en-
compassed within the scope of the remand; i.e.,
paragraphs 8(n) and 10 of the amended consoli-
dated complaint. Following service of such Supple-
mental Decision on the parties, the provisions of
Section 102.46 of the Board's Rules and Regula-
tions, Series 8, as amended, shall be applicable.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 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.
WE WILL NOT question you about your
union membership, activities, or sympathies or
those of your fellow employees, and WE WILL
NOT poll you as to such membership, activities,
or sympathies.
WE WILL NOT try to frighten you from sup-
porting the Rhode Island Workers Union,
Local 76, Service Employees International
Union, AFL-CIO, or any other union, by
threatening or telling you that we will close
our plant, or never bargain or sign a contract
with a union if you choose a union to repre-
sent you.
A_
798 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
WE WILL NOT threaten you with discharge,
discipline, or with any other reprisals to dis-
courage you from joining or supporting a
union.
WE WILL NOT retaliate against our employ-
ees because they joined or assisted a union by
making their working conditions more undesir-
able, onerous, or arduous.
WE WIll. NOT ask other employees to spy
on you or otherwise keep your union activities
under surveillance to discourage you from en-
gaging in union activities.
WE WILL. NOT retaliate against you for, or
try to prevent you from, engaging in union ac-
tivities by making or enforcing work rules
which will restrict employees from visiting
plant areas during lunch hour or break periods
or using bulletin boards or by changing the
terms and conditions of employment to restrict
employees from access to other areas of our
plant.
WE WILL NOT inform our employees that
because of the union election petition no wage
increase may be granted, and WE WIll. NOT
withhold the grant of increases for that reason.
WE WILL NOT expressly or impliedly prom-
ise to give you improved benefits or better
working conditions or solicit or promise to
adjust your grievances for the purpose of dis-
couraging you from engaging in activities on
behalf of the Rhode Island Workers Union,
Local 76, Service Employees International
Union, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT discourage our employees
from being members of the above-named labor
organization or any labor organization, by
laying off our employees, selecting them for
layoff, by imposing conditions on their trans-
fer, or by refusing or delaying to recall them,
or by disciplining them or by otherwise dis-
criminating against employees with respect to
their hire, tenure, or terms and conditions of
their employment with our Company.
WE WILL NOT refuse to bargain with the
above-named Union as the exclusive repre-
sentative of all our employees in the following
bargaining unit:
All full-time and regular part-time produc-
tion and maintenance employees employed
by us at our 11 Wellington Road, Lincoln,
Rhode Island, and 116 Chestnut Street,
Providence, Rhode Island, facilities, includ-
ing leadpersons-floor ladies and plant cleri-
cal employees, but excluding all office cleri-
cal employees, technical employees, profes-
sional employees, salespersons, seasonal em-
ployees, guards, foremen, assistant foremen,
and all other supervisors as defined by the
Act.
WE WILL NOT unilaterally change the rates
of pay, wages, hours of employment, and
other terms and conditions of employment in-
cluding, but not limited to, layoffs, seniority
rights and policies relative to layoffs, payments
for days when the plant was closed because of
snow, incentive rates and standards of employ-
ees in the above-described bargaining unit, and
rules regarding your use of bulletin boards for
the posting of union-related or union leaflets
and your right to visit other plant areas during
lunch hour or break periods, to play your
radios, and to use the pay telephones without
first notifying and thereafter affording the
above-named Union as the exclusive bargain-
ing representative for our unit employees the
opportunity to bargain over said matters; with-
out prejudice, however, to any improved bene-
fits we have granted.
WE WILL NOT threaten you with discipline
for violations of our unilaterally imposed rules
and regulations.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations, to join the above-
named or any other labor organization, to bar-
gain collectively through representatives of
their own choosing, and to engage in concert-
ed activities for the purpose of mutual aid and
protection, as guaranteed in Section 7 of the
Act, or to refrain from any and all such activi-
ties. Employees are free to join the Union
without fear of reprisals for so doing.
WE WILI offer the following listed employ-
ees whom we discriminatorily laid off on Janu-
ary 13, 1978, full and immediate reinstatement
(unless we have already recalled them) to their
former jobs, or, if those no longer exist, to
substantially equivalent jobs without loss of se-
niority or other rights and privileges previous-
ly enjoyed; and WE WILL make each of them
whole for any backpay lost as a result of our
discrimination against them, with interest:
Daniel Bedard
Dan Carr
Mark Caya
Annette Chicoine
Ivory Clements
Thomas Lawton
Rachel Leduc
Cheryl Silva
Luba Green
Anthony Lopes
Maurice Kujawski
Sandra Rattie
Helen Dufresne
Katherine Bourque
HEDISON MANUFACTURING COMPANY 799
Deborah Marsella Helene Rondeau
Thomas Rattie Blanche Descy
Theresa Robertson Suzanne Lariviere
Susan Sherman
WE WILL (unless we have already done so)
offer the following listed employees whom we
unilaterally laid off from the press room on
June 2, 1978, and against whom we discrimina-
torily imposed conditions on their transfer, full
and immediate reinstatement to their former
jobs, or, if those no longer exist, to substantial-
ly equivalent jobs without loss of seniority or
other rights or privileges previously enjoyed;
and WE WILL make them whole for any back-
pay lost as a result of our unilateral decision to
lay them off, with interest:
Lisa Barbeau Theresa Gaulin
Leslie Barbeau Jane Lavoie
Theresa Dolinski Linda Archambault
Suzanne Lariviere Marilyn Jellison
Shirley Leonard Carol Durand
Annette Mary
Philopovich Kucharski
Marion Beverly Lafferriere
Lymburner
WE WILL make Tracy Fitzpatrick and
Laycie Monteiro whole for any backpay lost
by them as a result of our unlawful discrimina-
tion causing them to be laid off from the link-
ing department in March 1978, with interest.
WE WILL, upon request, recognize and bar-
gain collectively in good faith with the above-
named Union, the exclusive collective-bargain-
ing agent of all our employees in that unit
with respect to wages, hours, terms, and con-
ditions of employment, and all other matters
appropriate for collective bargaining; and, if
agreements are reached, WE WILL put them in
writing, if requested, and will sign that written
document. The collective-bargaining obliga-
tion which we undertake will be retroactive to
January 12, 1978.
If the Union requests that we do so, WE
WILL set aside the layoffs and changes of our
rules and practices, which we previously made
unilaterally; and WE WILL resume our policy
of permitting employees to play their radios,
to make telephone calls during working hours,
and to visit employees in other departments
during morning and afternoon break periods
and lunch break and WE WILL permit you to
post union-related or union notices on our bul-
letin boards.
WE WILL make all employees whole for any
loss of earnings they may have incurred as a
result of our unlawfully changing their incen-
tive rates since January 12, 1978, with interest.
HEDISON MANUFACTURING COMPA-
NY
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This consolidated unfair labor practice and representa-
tion proceeding was heard by me in Providence, Rhode
Island, during 18 days of hearing in August, September,
and October 1978.' The amended consolidated com-
plaint, dated August 9, 1978, as further amended during
the course of the hearing, alleges 362 independent viola-
tions by Hedison Manufacturing Company (Respondent)
of Section 8(a)(1) of the National Labor Relations Act,
as amended, including allegations of interrogation, poll-
ing of employees, surveillance, impression of surveil-
lance, requests to spy, promises and grant of benefits, so-
licitation of grievances, threats to withhold wage in-
creases, to close the plant, to discharge employees, and
to refuse to bargain with the Union, unilateral changes of
terms and conditions of employment, imposition of new
rules and more onerous working conditions, revocation
of assignments of employees, and restriction of employ-
ees' movements. In addition, the complaint alleges dis-
criminatory discharges and layoffs of 43 employees in
violation of Section 8(a)(3) and (5) and the discharge of
one supervisor in violation of Section 8(aX1). Finally, the
complaint alleges violations of Section 8(aX5) by reason
of the General Counsel's request for a retroactive,
Gissel3 bargaining order as appropriate relief-even if it
should be found that a majority of Respondent's employ-
ees never authorized the Charging Party, Rhode Island
Workers Union (herein called the Union), to represent
them as their exclusive bargaining representative. The
amended complaint was based on six charges filed by the
Union; one on January 16; two on January 31; two on
March 24 (one amended on April 26); and one on June 9.
In the representation case, the issues presented are,
with one exception, identical. Pursuant to a Stipulation
for Certification Upon Consent Election executed by Re-
spondent and the Union on January 24, and approved by
the Regional Director for Region 1 on January 26, an
election was conducted on March 3, the appropriate unit
(according to the amended consolidated complaint)
being:
All full-time and regular part-time production and
maintenance employees of Respondent employed at
its 11 Wellington Road, Lincoln, Rhode Island and
116 Chestnut Street, Providence, Rhode Island
facilities, including leadpersons-floor ladies and
I Unless otherwise indicated, all events herein occurred in 1978.
2 In his brief, the General Counsel withdrew par. 8j) of the amended
consolidated complaint.
3 NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
(X) I)ECISIONS ()F NATIONAI. LABOR RELATIONS BOARD
plant clerical employees, but excluding all office
clerical employees, technical employees, profession-
al employees, salespersons, seasonal employees,
guards, Foremen, Assistant Foremen, and all other
supervisors as defined in Section 2(11) of the Act.
The Union lost the election and filed timely objections
to certain conduct affecting the results of the election.
On April 27, the Regional Director for Region 1 issued
his Report on Objections and Challenged Ballots, recom-
mending that the following objections be consolidated
for hearing herein:
I. Discriminatory discharge of James Ferreira,
Glen Hutloff, Thomas Lawton, and Russell Moison,
all members of the bargaining unit on January 31,
1978.
2. Discriminatory layoff of several bargaining
unit members on or about January 13, 1978.
3. Promise of benefits to bargaining unit mem-
bers.
4. Surveillance of union activists.
6. Change in work rules to discourage union ac-
tivity.
7. (Number supplied) By these and other acts, the
above named employer [Respondent] has interfered
with, restrained, and coerced employees in the exer-
cise of the rights guaranteed in Sec. 7 of the Act.
All of the above objections are identical to or closely
related to conduct alleged in the consolidated complaint
as unfair labor practices, with the exception of allega-
tions of additional surveillance under Objection 4, to wit,
that supervisors were stationed in the corridors during
the election, immediately outside the voting area, as well
as evidence of an incident of an eligible voter being
driven by Respondent from the Lincoln, Rhode Island,
voting site to the Providence, Rhode Island, voting site.
Because neither Respondent nor the Union filed excep-
tions to the Regional Director's report and recommenda-
tions, on May 24, the Board adopted the recommenda-
tions made therein.
The Regional Director also overruled the challenges
to the ballots of certain individuals, including floorladies
Evelyn Di Carlo and Alice Cote, whom he found to be
employees under the Act, and recommended that their
ballots be opened and counted and a revised tally of bal-
lots be issued. The Board agreed with this recommenda-
tion. Subsequently, a revised tally of ballots was issued
showing that certain remaining challenged ballots were
not determinative of the results. Accordingly, no issue of
challenged ballots is before me.
However, the General Counsel alleges in his amended
consolidated complaint that both Di Carlo and Cote are
supervisors and, relying on Serv-U-Stores Inc., 234
NLRB 1143 (1978), urges that their status may be reliti-
gated. There, the Board permitted relitigation of the su-
pervisory status of store managers who had been found
to be employees in an earlier representation case, one of
whom in the subsequent unfair labor practice case was
alleged to be a supervisor for the purpose of establishing
a violation of Section 8(a)(1) and (3) of the Act. Because
the General Counsel sought a bargaining order, necessi-
tating that the unit be established with precision to deter-
mine whether the union had a majority, and notwith-
standing that other store managers were not alleged to
have engaged in 8(a)(1) conduct, the Board held that it
"would have been unrealistic to bar from relitigation the
supervisory status of the other store managers, particu-
larly in light of the assertion at the hearing by Respond-
ent's counsel that the duties of all the store managers
were 'essentially the same."' (234 NLRB at 1144).
Because Di Carlo is alleged to have participated in the
layoff of employees Tracy Fitzpatrick and Laycie Mon-
teiro in late March, her status may be relitigated. I will
accord the Regional Director's report only "'persuasive
relevance,' a kind of administrative comity." Amalgamat-
ed Clothing Workers of America [Sagamore Shirt Co.] v.
N.L.R.B., 365 F.2d 898, 905 (D.C. Cir. 1966).
There is no allegation that Cote engaged in any viola-
tion of the Act, although whether she is included in the
unit, like the store managers in Serv-U-Srores, may be
critical to the resolution of the General Counsel's request
for a bargaining order and thus the further allegations
that Respondent refused to bargain in violation of the
Act. However, unlike Serv-U-Stores, there was no con-
cession that the duties of all floorladies were essentially
the same, although there was some indication that the
duties of Di Carlo and Cote were similar. Because other
floorladies and leadpersons were found to be employees
and their status has not been attacked by the General
Counsel, I find that Serv-U-Stores does not authorize the
relitigation of Cote's status. Rather, Section 102.67(f) of
the Board's Rules prohibits the same, especially since the
General Counsel's request for a bargaining order raises
essentially the same issue of the scope and composition
of the appropriate unit which would not be relitigated in
a 8(a)(5) case based on certification in a representation
proceeding. Amalgamated Clothing Workers, supra at
902-905.
On the entire record in this case,4 including my obser-
vation of demeanor of the witnesses,5 and after due con-
sideration of the briefs submitted, I make the following:
FINDINGS O FACT
I. THE BUSINESS OF RESPONDE)NT
Respondent admits that it is, and has been at all times
material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Rhode
' Errors in the transcript are hereby nlted and corrected
1o extent that there is testimony which conflicts with my findings. I
credit the witnesses uponl whose testimony I rely In making these credi-
bility findings, I have fully reviewed the etlire record and carefully ob-
served the demeanor of all the witnesses I have also taken into consider-
altion the apparent interests of the witnesses: the inherelnt probabilities in
light of other events: corroboration or lack of i; and cinsistencies or i-
colsistencies within the testimoiloy of each Avitness and between the tesil-
mon)y of each and hat of other v itlesses with similar appareit nterests.
Tesimony in contradiclioln to that upon which my factual firndings are
based has been carefully considered but discredited. Where necessary
however I have set fiorth he precise r-easons fi r ily credibility resolu-
tions See, generally. N L.R B v Wlison Manufactrlrig (Compauny, t al.
3t9 U S. 40( 408 (1902)
HEDISON MANUFACTURING COMPANY 801
Island. Since July 1977, it has maintained its principal
office and place of business in Lincoln, Rhode Island,
where it has manufactured costume jewelry for sale and
distribution. Respondent further concedes that, in the
course and conduct of its business, it had caused large
quanitities of metals used by it in the manufacture of its
jewelry to be purchased and transported in interstate
commerce from and through various States of the United
States other than the State of Rhode Island. Respondent
annually receives from points directly outside the State
of Rhode Island goods having a value in excess of
$50,000 and ships goods valued in excess of $50,000 di-
rectly to points outside the State of Rhode Island. As a
result, Respondent concedes that it is, and had been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOt VED
The Union, as Respondent admits, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union Goes Public and Respondent
Counters-January 10-12
A secret campaign to organize Respondent's workers
began in late spring and early summer of 1977, slowly
building support and culminating with a meeting of ap-
proximately 42 union supporters held in Woonsocket,
Rhode Island, on Monday evening, January 9, 1978, at
which it was decided to openly seek employee support
the following morning. At that meeting were some of
the alleged discriminatees in this proceeding--Ferreira,
Hutloff, Lawton, Tracy Fitzpatrick, Cheryl Silva, There-
sa Robertson, Valerie LePere, June Lockhart, Dan Carr,
Michael Jalette, Annette Chicoine, Marc Caya, Donald
Cook, Susan Sherman, Deborah Marsella, Mary
Ackaway, Suzanne Lariviere, Ivory Clements, Lisa and
Leslie Barbeau, Anthony Lopes, and Linda Archam-
bault.
The following morning, January 10, the union cam-
paign went "public." Leafletters roamed the production
employees' parking lot, handing out leaflets and attempt-
ing to sign up employees as they arrived in their cars to
report for work; and other employees, including Sher-
man, handed out leaflets and authorization cards on the
free bus which brought employees from Providence to
Respondent's Lincoln facility. Quite naturally, the ap-
pearance of leafletters aroused, at the very least, the curi-
osity of Respondent's officials. Ray Dansereau, then vice
president in charge of manufacturing, 6 was advised about
7 a.m. by William Pollen, Respondent's security guard,
that Carr, Ferreira, Fitpatrick, LePere, and Joseph Pine
were in the parking lot handing out union leaflets, a
copy of which was given to Dansereau; and Dansereau
immediately went to the parking lot where he remained
for 10 minutes. Dansereau then returned to his office
until the expected arrival time of the free bus, when he
Dansereau as discharged on or about January 20 W'illiam H
O'Brien, Jr. became the new ice president of operaltiom on February 6
went back to the parking lot and watched the leafleting
continue for another 15 minutes.
At the same time, other employees were assigned to
leaflet and obtain authorization cards in the production
workers' cafeteria; while others were assigned to tape
leaflets to the walls, mirrors, and stalls of the bathrooms
and the walls of the halls and to post leaflets on Re-
spondent's bulletin boards. By 7:45 a.m., the employees
had returned to their places of work for the commence-
ment of the normal workday, but leafleting and attempts
to get authorization cards signed continued during the
morning break, lunch hour, and the afternoon break.
When the union campaign surfaced, it is apparent that
Respondent's officials were for the most part shocked
and surprised. Although there had been some rumors
within the past few weeks about some organizing activi-
ty, they seem to have been almost entirely disregarded.'
The open union solicitation on January 10 was, in one
witness' words, an "unusual" event; and management
sought to ascertain why it came about. Indeed, by Janu-
ary 19, when Respondent held a cocktail dinner meeting
of its supervisors, Respondent was still looking for the
causes of its employees' unrest, as well as the strength of
the Union in its various departments. On January 10,
Dansereau spoke with Harry D. (Hike) Hedison, Re-
spondent's chairman of the board, and isolated the press
and central stores departments as instigators of the
unrest. Robert H. Graham, Respondent's vice president
in charge of administration, admitted, only after several
appearances on the witness stand, that latter in the week
of January 9 he spoke to Carl Duke, foreman of the pick
room (also known as the finished goods stockroom),
Larry M. Graydon, foreman of the soldering department,
and Frank Siniscalchi, foreman of the carding and wrap-
ping departments, and possibly others, asking them to
give their estimates of union strength in their depart-
ments. Graham also admitted that foremen gave him esti-
mates of union strength throughout the election cam-
paign. There is also ample evidence of the fact that Re-
spondent's management had some knowledge of the
Woonsocket meeting and that Dansereau, Graham, Louis
Marinelli, Respondent's production manager, and Robert
Callahan, Respondent's personnel manager, discussed
who was present.
With this background, I find that, on January 10,
Graydon asked employee Marsella if she had signed a
union card or was involved with the Union and who else
was involved in the Union. Graydon also asked the same
questions of three other employees in the department.
Marsella told Graydon that he had no right to ask those
questions--that it was against the law to ask employees
about the Union and whether they signed cards.
After the lunch break on January 10, Robert Clements,
foreman of the press department, asked press department
employees Carr and Al Benoit how everything was
going with the Union. Carr shrugged his shoulders. Cle-
ments asked whether Carr thought that the Union would
get in. Carr again shrugged. Clements then said that, at
the last place he worked, union dues increased from $6
' On January 3. Giar McKier;nan. freman of the central stores de
partment, was told by Di Carlo that an organizing campaign was under-
way and that Hutloff and LePere were the leaders ,of it
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to $15 per month. Carr said nothing, and the one-sided
conversation ended.
Shortly before the end of the workday, Dansereau
asked to see Hutloff in Dansereau's office, where Dan-
sereau asked him what the people were so upset about.
Hutloff replied that asking him was illegal and that he
did not care to respond. Dansereau claimed that he did
not want to know what was going on; rather, he just
wanted to know what the people were so upset about.
Hutloff suggested that Dansereau read the leaflets that
were being distributed. Dansereau then asked whether
Hutloff thought the people were really upset. Upon Hut-
loffs failure to respond, Dansereau asked whether it was
a true statement that the people were really upset. Hut-
loff replied that Dansereau would find out one way or
another. Dansereau then said that that was all he wanted
to talk about. Dansereau testified that he did not recall
talking with Hutloff. Considering Dansereau's testimony
in its totality, and specifically noting that Dansereau's
recollections of events were vague and, in many re-
spects, contradictory of other Respondent's witnesses, I
discredit his denial.
I find that these three considerations (pars. 8(a), (b),
and (y) of the amended consolidated complaint) consti-
tuted illegal interrogation, Hanover House Industries, Inc.,
233 NLRB 164 (1977); and find that Graydon's request
of Marsella was a request for her to spy on her fellow
employees--all in violation of Section 8(a)(1) of the Act.
Carr's narration of his conversation with Clements was
not contested by Respondent and Dansereau's denial of
his conversation with Carr was vague and, at best, tenta-
tive. Further, I also find that, on the morning of the
same day, Graydon asked Marsella what she would do if
Respondent closed down. Marsella said that she did not
think that Respondent would close after "making all that
money." Garydon replied, "That's what I heard." Later,
LePere, who had been told by Marsella of Graydon's re-
marks, chastized Graydon, telling him that it was against
the law for him to be telling employees that the plant
would close if the Union got in. Graydon said that he
had the right to make such a statement, that this was the
United States. Graydon did not deny this conversation
with LePere, and I find that the threat of plant closing
was a blatant attempt to halt the union organizing cam-
paign at its inception, in violation of Section 8(a)(1) of
the Act. (Par. 8(c) of the amended consolidated com-
plaint.)
Leafleting, soliciting of cards, hanging of posters, and
electioneering continued on Wednesday, January 11,
with so much success that on the same day the Union
filed a petition for Certification of Representative with
Region I of the Board and made a formal written
demand upon Respondent for recognition, requesting
that bargaining commence immediately. The Union's
demand for recognition was received by Respondent on
Thursday, January 12; on the day after, Respondent de-
clined to recognize the Union "pending the outcome of
the representation petition [the Union] filed with the
NLRB."
General Counsel contends that, by January 12, the
Union had gained the support of a majority of Respond-
ent's employees despite the continuing 8(a)(l) unfair
labor practices he alleges were engaged in by Respond-
ent on January 11 and 12. 1 agree, discussed infra, that
the Union attained majority support by January 12 but
do not agree with all of General Counsel's allegations in-
volving the conduct of those 2 days.
I find that, on January 11, Supervisor Duke ap-
proached employee Judith Allsup at her worktable in the
pick department, which he supervised, and said that he
had been asked to ask the employees how they felt about
the Union. Allsup said that she was indifferent. Duke
then wrote on a paper on his clipboard, which had col-
umns for "Yes," "No," and "?," a check mark under the
question mark. Duke had the same conversation with
employee Ernie Bourgeois and moved on to talk with
other employees. Duke's interrogation and polling of
Allsup and Bourgeois is patently in violation of Section
8(a)(1) of the Act. (Par. 8(d) of the amended consoli-
dated complaint.)
However, I do not find that Duke's polling of Allsup,
together with the overall interrogation of employees and
management's request of certain of its supervisors to as-
certain union strength in their departments, merits a find-
ing that Respondent "systematically polled employees."
Polling is violative of the Act, whether "systematic" or
sporadic; and I do not believe that there is anything to
be gained by the additional allegation (par. 8(ff) of the
amended consolidated complaint), which I find to be su-
perfluous. I find that Graham requested Duke, Graydon,
Siniscalchi, Howard Barrett, maintenance department
foreman, and Gary McKiernan, foreman of the central
stores department, to ascertain the strength of the Union
in their respective departments, and not for any valid
purpose, in accordance with Struksnes Construction Co.,
Inc., 148 NLRB 1368 (1964), as argued by Respondent.
Graham's request for an immediate reply promoted
Duke's actions and perhaps Graydon's. The other super-
visors merely estimated the Union's strength, without di-
rectly polling employees. My finding of illegal polling
and interrogation, and the relief which I will recom-
mend, will adequately remedy those violations; and a dis-
cussion of what constitutes "systematic polling" would
be academic. 1, therefore, dismiss paragraph 8(ff) of the
amended consolidated complaint. I also dismiss para-
graph 8(w) of the complaint, which alleges that, on Janu-
ary 12, Joseph Mastriano, foreman of the casting depart-
ment, created an impression of surveillance by stating
that he knew that employees Carr and Clements were
engaged in union activities. The record reveals that man-
agement was well aware that both Carr and Clements,
both of whom were laid off on the following day, were
union adherents. Neither Carr nor Clements concealed
his support. In these circumstances, I cannot assume
from Mastriano's statement that he was creating any im-
pression of having secretly obtained through surveillance
knowledge which was then common to anyone who kept
his eyes only partly open. Schrementi Bros., Inc., 179
NLRB 853 (1969).8
s The testimony of Ferreira also revealed that. during the same con-
versation, Mastriano engaged in interrogation of Ferreira's union activi-
ties and threatened that Respondent would not participate in collective
bargaining with the Union. However, these activities were not alleged in
Continued
HEDISON MANUFACTURING COMPANY 803
B. The Layoff of January 13
On the afternoon of Friday, January 13, Respondent
laid off 21 employees, effective as of the end of that
day.9 These included 12 employees from the press de-
partment, Carr, Clements, Robertson, Sherman, Silva,
Lopes, Lariviere, Daniel Bedard, Rachel Leduc, Thomas
Rattie, Luba Green, and Maurice Kujawski; 5 employees
from the soldering department, Chicoine, Marsella,
Sandra Rattie, Helen Dufresne, and Katherine Bourque;
and I each from the maintenance department, Caya; cen-
tral stores, Lawton; linking department, Helene Rondeau;
and stringing department, Blanche Descy.
The General Counsel argues that the layoff violated
Section 8(a)(3) and (1) because its sole motivation was
the employees' support of the Union. Among other con-
siderations, the General Counsel points to the fact that
only 2 of the 21 employees had neither actively attempt-
ed to organize Respondent's employees (Carr, Clements,
Lawton), nor attended the Woonsocket meeting of Janu-
ary 9 (Carr, Caya, Chicoine, Clements, Marsella, Robert-
son, Sherman, and Silva), nor executed union authoriza-
tion cards (all of the foregoing, together with Bedard,
Leduc, Thomas and Sandra Rattie, Green, Lopes, Ku-
jawski, Rondeau, Descy, and Lariviere). Respondent, on
the other hand, argues that the layoff was merely the
result of business considerations, to wit, the normal sea-
sonal decrease of manufacturing, and was not in any way
motivated by the union activity which had commenced
only 3 days before. For a multitude of reasons, I am per-
suaded that, but for the union organizing campaign, the
layoffs would never have occurred and that any business
motivation is wholly lacking.
1. The circumstances of the layoff
The testimony of the principal participants to the deci-
sion to lay off employees--Dansereau, Graham and Peter
Larson, Respondent's incentive systems supervisor and
the complaint, nor were they fully litigated (Mastriano did not testify),
and Respondent was not obliged to introduce evidence on matters not at
issue. Indeed, the General Counsel was more than meticulous in ensuring
that appropriate amendments were made both before and during the
course of the hearing. I do not deem that his unopposed motion, made at
the close of hearing, to conform the pleadings to the proof on "minor
matters," amended the allegation of par. 8(w) to include other 8(a)(1) vio-
lations.
9 Respondent, after having admitted in its answer and then stipulated
at the hearing that soldering department employee James Stemin was laid
off on January 13, moved on the last day of the hearing to amend its
answer, denying that Stemin was laid off on that day or any other day.
Because I had permitted numerous amendments of the complaint during
the course of the hearing, including General Counsel's additions to the
list of laid-off employees the same day that Respondent moved to amend
its answer, I granted Respondent's request, noting that I would review
the file to determine the weight to be given to Respondent's earlier ad-
mission and stipulation. Respondent's no-work termination list and the
payroll records for the week ending January 21 support Respondent's
contention that Stefflin's last day of employment was January 18. 1 am
convinced that Respondent's admission and stipulation were merely inad-
vertent errors. The General Counsel has not contended that he was pre-
judiced by Respondent's change of position; in fact, he was afforded the
opportunity to, but did not, submit an affidavit from Stemin regarding
the date and circumstances of the termination of his employment. At
some point, trials must end. I reject the General Counsel's suggestion in
his brief that I should refer this matter and the addition of other unnamed
laid-off employees to compliance proceedings. I, therefore, dismiss the
complaint as it requests relief for Stemin.
Hedison's son-in-law-was contradictory, unsupported,
and in some cases unbelievable and false. t' Graham testi-
fied that approximately 2 weeks before January 13, he
told Dansereau that he ought to check the work in proc-
ess, which seemed to be declining. A week later, he
asked Dansereau what he was doing about the work in
process, which was declining. Dansereau allegedly re-
plied that Graham should not worry, that Dansereau was
taking care of it. Graham testified that he had essentially
the same brief conversation the following week and that,
during all such conversations, he neither recommended a
layoff nor did he target any particular area for a layoff.
In contrast to Graham's recollection of these few brief
encounters, Dansereau detailed meetings with Graham
lasting a half hour or more, starting with approximately
2-3 weeks before the date of the layoff, at which they
looked at records of work in process and forecasts of
production and Graham concluded that Respondent em-
ployed too many employees at areas in the beginning of
the production cycle. The decision to lay off personnel
was made, according to Dansereau, by him in Graham's
presence, with a tentative date of January 13. Graham
denied that he was privy to the decision and testified
that he learned of the layoff only on January 12. Danser-
eau also testified, in contrast to Graham's denial, that he
kept Graham advised of how many and which employ-
ees Dansereau had selected and, in particular, how each
employee was selected.
Larson testified that Dansereau requested him to pre-
pare a list of the names of "low performers" but had dif-
ficulty recalling the precise nature or date of the request.
This is, at best, curious in light of Dansereau's testimony
that, about a week before the layoff, he went to each de-
partment and tried to figure out how many employees to
lay off, while still retaining an adequate work force. In
any event, Larson remembered that Dansereau was in a
hurry for the list, and Larson complied with the seeming
rush by preparing a list of about 25-30 employees by the
day after the request. Regarding the date that Dansereau
made the request, Larson testified at first that it was 3 or
4 days prior to the date of the layoff; later, he testified
that it was 2 or 3 days before; and, still later, he testified
that he believed that he had prepared the list for presen-
tation to Dansereau on January 12. According to that
to I granted during the hearing the General Counsel's motion, based
on Hedison's failure to comply with valid subpenas requiring him to
appear and testify, to bar Hedison from testifying about the January 13
layoff and six other general areas of unfair labor practices alleged in the
amended consolidated complaint-the discharges of the central stores de-
partment employees and their supervisor, McKiernan, the June 2 layoff.
the 8(a)(1) allegations in which Hedison was specifically named. the alle-
gations of wage increases and benefits alleged in par. 80) and (p). and the
allegations of (aXI) violations set forth in pars. 8(k), (), (o). (q). and (r)
of the amended consolidated complaint. In addition. I prohibited Re-
spondent from introducing any proof regarding the central stores depart
ment discharges. Because of the novelty and difficulty of the issues pre-
sented to me on this motion, I attach as "Appendix I a cop) of my oral
decision, which accurately reflects my comments during the course of
the hearing. The official transcript, at pp. 2283-92, is amended according-
ly. Further, I cite the following pages of the official transcript which
deals with this issue, should the matter be raised by Respondent in excep-
tions to this Decision, as Respondent assures that it will do: 41-50, 52, 84.
146, 153-154. 268-270, 296-299, 422-430, 605-607, 718, 722, 730-731, 794,
855, 1067-68. 1367-68, 1673, 1705-07, 1979-81. 276. 2085. 2253-83,
2292-04, 2392 93, 2934-36, and 300h-09.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony, Dansereau's request was made on January 11,
the day after the union campaign went public.
Despite the contention of Dansereau that he had, and
Larson that he would have, consulted with and informed
the foremen in the various departments to be affected by
the layoff, none of the foremen seems to have heard any
definite word about the layoff until January 13. Graydon
testified, contrary to Dansereau's assertion that he and
Graydon jointly picked the names of the employees to
be paid off, that he heard about the layoff only 2 days
before, but the only time he knew of the identity of the
persons to be laid off was on January 13. McKiernan and
Barrett both testified that they were consulted by Dan-
sereau on the afternoon of the layoff. Despite the fact
that Dansereau testified that he conferred with the press
department foreman, Robert Clements, Clements was ap-
parently unaware of who was going to be laid off on
January 13; and Respondent's witness Hamlon testified
that, on that day, no one had any indication that there
was to be a layoff. Even Personnel Manager Callahan
was first informed of the layoff in the presence of Larson
and Dansereau on the afternoon of January 13; he was
allegedly given lists of the persons to be laid off, which
lists were to be given to the supervisors in the affected
departments. Graydon testified he never saw such a list
and that he was informed orally by Callahan of the em-
ployees to be laid off.
I do not credit Dansereau, Graham, and Larson with
regard to the circumstances regarding the decision to lay
off employees and the timing thereof, in light of their
contradictory and conflicting testimony, which I find to
be unsupported by documentary evidence and patently
fabricated. Rather, the totality of the evidence supports a
conclusion that the decision to lay off employees was
discussed and made only the day of the layoff or the day
prior, but certainly after it became apparent that an orga-
nizing campaign was underway. Neither Larson nor
Graham mentioned the layoff to McKiernan during their
conversations on January 12; and Graydon testified that,
as of January 11, Dansereau had not made up his mind
whether he was going to schedule a layoff. Respondent's
timing of the final decision to lay off some of its employ-
ees, arrived at only after Respondent became aware of
the union organizing campaign, "strongly suggests swift
action to stamp out union activity" and was motivated
by Respondent's union animus. California Bake-N-Serve
Ltd., 227 NLRB 548 (1976).
2. Respondent's union animus
The record herein amply demonstrates Respondent's
union animus and a detailed recitation of the evidence, I
believe, is unnecessary. Suffice it to say, Hedison,
Graham, and Dansereau openly expressed their hostility
to the Union. Hedison, upon learning of the union cam-
paign on January 10, pithily noted, "Fuck them"; and it
was conceded that Respondent was opposed to unioniza-
tion. The unfair labor practices committed by Respond-
ent during the 3 days prior to the layoff, the later letters
sent by Respondent to its employees, and its agent's
statement on January 19 to its supervisors and certain
employees that Respondent would "crush the Union,"
are sufficient to support my finding of Respondent's
union animus.
3. The disproportionate number of union adherents
laid off
It is so highly improbable that Respondent could have
selected for layoff 21 employees, 19 of whom had signed
union authorization cards, among them 8 employees who
had attended the Woonsocket meeting, and only 2 em-
ployees who had not expressed any preference for the
Union, unless the presence of the Union was a motivat-
ing factor in the selection. When consideration is given
to the fact that, by January 12, the Union had obtained
authorization cards from barely more than 50 percent of
all the employees of Respondent, the probabilities that
the layoff was motivated by the union campaign become
even greater. As the Board said in Camco, Incorporated,
140 NLRB 361, 365 (1962), enfd. with modifications not
here material 340 F.2d 803 (5th Cir. 1965):
[T]he Respondent employs 95 employees in its ma-
chine and tooling departments; 16 of these employ-
ees attended a union meeting; and, of these, II em-
ployees, all of whom had attended the union meeting,
were terminated during February. The Respondent
contends in effect that it was by chance that all the
terminated employees attended the February 10
meeting. While it may be theoretically possible that
the Respondent should have fortuitously selected
for termination only those employees active in the
Union, commonsense and the laws of mathematical
probability indicate that such fortuity was highly
improbable.
Applying this principle, the selection of the great pro-
portion of union adherents was not mere coincidence but
is persausive that the probability is at least very high that
the layoffs were discriminatorily motivated. Certainly,
there is record evidence that Respondent knew by Janu-
ary 13 of the Union activities of Carr, Clements, Sher-
man, Marsella, Lawton, and Robertson.
4. The evidence of discriminatory motivation
Proof of discriminatory motivation is rarely overt;
rather, in most proceedings ultimate conclusions must
rely upon circumstantial evidence. Admittedly, the pre-
ceding subparagraph 3 results, at best, in a suspicion and
subparagraphs I and 2 are only circumstantial proof that
the layoff of the employees was caused by their activities
on behalf of the Union.
Here, however, there is affirmative proof of Respond-
ent's motivation. In the midafternoon of January 13, the
maintenance department foreman, Barrett, was called to
Dansereau's office at 3:30 p.m. and was told that employ-
ees Caya and Cook were to be laid off that afternoon.
Dansereau said that both had attended a meeting in
Woonsocket a few days before;' that Caya had been
handing out union paraphernalia throughout the shop; he
L Btoth Callahan and 'Pollun had become aware of certain employees
who attended the Woonlsocket meetling during the week I infer that they
rtported the lriln s of theec inldisviduals to tIlltir superiors
IIEDISON MANUFACTURING COMPANY X805
instructed Barrett to tell Caya he was being laid off be-
cause of lack of work and Cook because of his tardiness
and absenteeism. Barrett agreed that Caya was actually
the least senior in his department and that the layoff
would not hurt him because of his youth, that he could
always get a week's pay, and that his mother and father
could support him. But the layoff of Cook was unfair,
said Barrett, because Cook was in his middle or late for-
ties and lived alone in a rooming house. Besides, Barrett
said that Dansereau's reason would not hold up, because
Cook, who did not have a driver's license, rode to work
with Debra Jones and Joe Pine, and they were frequent-
ly late together.
Dansereau, noting that neither Jones nor Pine was
scheduled for a layoff, requested Callahan to bring in his
absentee and late records. Callahan verified that all three
employees were late together. Not knowing what to do,
Dansereau called for Graham. Graham pondered about
the situation, noting that, before Hedison left for vaca-
tion, he had said that Caya and Cook had to go. But,
said Graham, he would take full responsibility: only
Caya would be laid off; Cook should be warned. 2 As a
result, Caya was laid off, not because of lack of work,
Respondent's principal defense, but because Caya attend-
ed the union meeting at Woonsocket on January 9. It is
not unreasonable to infer that the layoff of the other 20
employees for "lack of work" was as discriminatory as
that of Caya. I also find that Cook was warned by Bar-
rett about his attendance and lateness solely because of
his attendance at the same union meeting, a violation of
Section 8(a)(1) of the Act. (Par. 8(gg) of the amended
consolidated complaint.)
Dansereau's conversation with McKiernan on January
13 is equally damaging. Dansereau called McKiernan to
his office in the afternoon and told him that, because of
lack of work, Respondent had to cut back in every de-
partment of the plant. When McKiernan advised Danser-
eau that there was no lack of work in the central stores
department, Dansereau replied that that did not matter;
that he was under orders to lay off people from every
department. The only inference that I can draw from
Dansereau's statement is that lack of work meant nothing
and served only a useful excuse to carry out orders that
had been given to him. I infer that those orders were to
rid Respondent of union sympathizers. Admittedly, Dan-
sereau gave McKiernan his choice of employees to be
laid off, but that choice was seemingly limited to
Lawton, Hutloff, and Ferreira, all union activities, and
not another employee whose position was secured by his
experience, qualifications, and seniority. No matter
whom McKiernan chose, Respondent's purpose would
have been served.
Further, I find a great significance that on January 19,
only 6 days after the layoff, Respondent recalled Bour-
que and Dufresne for temporary work in the stringing
department. They were the only employees laid off who
12 Dansereau testified that both Caya and Crk were laid off because
of lack of work. The evidence demonstrates. however, that Cook was not
laid off. Caya's functions were assigned to another employee, outside the
maintenance department. he foregoing repreenilts further support for
my finding that there as no lack of work in the maintenance depart-
ment.
had not authorized the Union to represent them or other-
wise participated in union activities. The only inference
that I can draw from this otherwise unexplained recall is
that Respondent learned that neither employee was a
union adherent, and the reason for the layoff-the union
activities of the employees-was not applicable to them.
I make that inference.
5. The hiring of new personnel after January 13
Logic compels the conclusion that, if, on January 13,
there was a lack of work at Respondent's factory, caus-
ing a legitimate layoff of some of Respondent's employ-
ees, Respondent's records would reflect that it ceased
employing new personnel. Dansereau testified: "They
wouldn't be hiring and laying off at the same time....
That would be adverse to what I would be doing."
However, Respondent's records demonstrate a pattern of
hiring both immediately before the layoff and after 21 of
Respondent's employees had lost their jobs.
Only I day prior to the layoff, when a firm determina-
tion had allegedly been made by Dansereau to lay off
employees in the press department, and the same day
that Graham testified he was advised of the layoff, Glen
Bruhn was hired in the press department. Immediately
after the layoff, employee Juanita Parker was transferred
to the press department. In the soldering department, be-
tween January I and April 24, no less than 23 new em-
ployees were hired, although some employees did not
remain employed for more than a day or two. One was
hired on January 4, three on January 5, and two on Jan-
uary 9, at the very time that Dansereau testified he was
committed to a layoff and Graham testified that he was
warning Dansereau that the payroll was too heavy.
Other new hires for the soldering department occurred
on January 26 (1), January 30 (2), January 31 (5), Febru-
ary 1 (5), February 2 (2), February 6 (1), and February
14 (1).
The history of new hires in the linking and stringing
departments was essentially the same: in linking, there
were new hires on January 5 (1), January 10 (1), January
12 (1), April 17 (1), April 18 (1), April 26 (1); in string-
ing, on January 3, (1), January 4 (2), January 5 (2), Janu-
ary 11 (1), January 17 (1), January 30 (1), January 31 (2),
February 1 (2), February 13 (1), February 14 (2), Febru-
ary 15 (1), February 16 (1), and February 20 (3), as well
as numerous new hires in late April and early May.'"
Further, Respondent often hired temporary help from
various employment agencies when it could not com-
plete its work with the complement of its employees. Al-
though most of the work was of the most unskilled vari-
ety, temporary employees were admittedly used in the
stringing and linking departments. Two temporaries also
worked in the soldering department, but they were sent,
testified Graydon, "by mistake." Payments made for the
temporary help were minimal from October to Decem-
' In making credibilily determinations herein, I note that Graham
signed a letter to the Regional Office setting forth Respondent's position
regarding the January 13 layoff Included in the letter was a list of em-
ployes neswly hired. which hears no resemblance to the true facts as re-
sealed at he hearing Graham's letter also mplies that Respondent was
aware hefire he layoff of the exact number of employees in the press
deparlnlent that needed to he laid off I fill that assertion toi he false
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 1977, amounting to a total of $869.14; the payments
swelled, however, to the sums of $5,171.66 and $8,450.18
for the months of January and February 1978, respec-
tively. Based upon the stipulation that each hour was
charged at the rate of $3.50, the January and February
totals amount to 1,478 and 2,414 hours of work, at the
same time that the layoffs were in effect. Further, Re-
spondent did not disband its night shift of part-time stu-
dent employees until about March 4, an indication that
there was no lack of work on January 13; some witnesses
also testified that numerous jobs had been contracted out
when they were capable of being performed on Re-
spondent's premises; and overtime continued to be
worked in various departments.
Moreover, the documentary evidence amply demon-
strates that, at the same time that the layoffs were alleg-
edly contemplated and after January 13, when the layoffs
took place, Respondent continuously advertised for new
employees for the same positions that had been vacated
by the 21 employees. Respondent argues that the adver-
tising was merely to stockpile names of possible prospec-
tive employees, once Respondent's business picked up.
Although there may be some truth in this assertion, as
shown by the large number of new hires in April, the
fact remains that, during January and February, there
were new and wholly unexplained hires, which is con-
sistent with the General Counsel's theory that the adver-
tisements were intended to be effective for immediate
hires, and not for the stockpiling of names.
6. The failure to recall the laid-off employees
Perhaps it is out of context to consider Respondent's
failure to recall the 21 employees who were laid off on
January 13 to ascertain whether that failure also consti-
tutes an unfair labor practice, prior to consideration of
Respondent's alleged business justification for the layoff
itself. However, the treatment of the laid-off employees
sheds some light on Respondent's motive.
First, I have already adverted to the recall of Bourque
and Dufresne on January 19 to report for "temporary
work available" in the stringing department. With a few
exceptions, however, no other employees were recalled
to work until April. One was Lariviere, who was re-
called to the press department during the week of Janu-
ary 29. A few days earlier, Carmen Bittner, the plant
nurse, asked Claire Sherman, the floorgirl in the press
department, whether Lariviere was a member of the
Union. Sherman said that Lariviere was too timid to get
involved (despite the fact that Lariviere had in fact
signed a union authorization card). Immediately thereaf-
ter, Lariviere was recalled to the job that Susan Sherman
had previously performed, that Sherman had been train-
ing Lariviere to do, and for which Lariviere had to con-
tinue to be trained. Sherman, who had been active in her
support of the Union, was not recalled to her old job. I
infer that Bittner was doing the bidding of Respondent in
obtaining information about Lariviere's union member-
ship and that she was recalled because of the information
Bittner obtained. For this very limited purpose, I hold
Bittner to be an agent of Respondent.
1 4
Other exceptions were Carr and Ivory Clements, al-
though O'Brien admitted that they were not actually re-
called to employment. Both repeatedly requested alter-
nate employment, indicating that they would take any
other job, even at a lesser rate of pay. Despite the fact
that there was other employment available, as shown by
Respondent's records of new hires, and that there was a
continuous need for employees in the epoxy department,
their requests were repeatedly rebuffed. In or about mid-
February, Production Manager Marinelli called a meet-
ing of employees to request that they work overtime be-
cause of the backlog of finished goods. LePere, who was
in attendance, suggested that the laid-off employees be
recalled. Marinelli stated that, if they wanted to return,
they might. As a result, Carr and Clements were rehired
in the carding department and commenced employment
on or about February 16, Carr at a rate of $2.75 per
hour, 75 cents less than he had been making.
6 On
March 6, the Monday after the election, both Carr and
Clements were laid off again. Robertson, like Carr and
Clements, attempted to obtain employment throughout
January and told Callahan that she would take any job in
any department. Unlike Bourque and Dufresne, Robert-
son was not recalled to work at that time.
Based on Respondent's records, many of the employ-
ees laid off on January 13 were recalled to work in
April, but some employees were not recalled to the same
jobs from which they had been laid off. On or about
April 26, Susan Sherman was recalled to work in the
stringing department, a job she had been transferred
from in November or December 1977, because of a per-
sonality conflict with her then supervisor. Callahan knew
of that conflict and that Sherman would not have ac-
cepted that position. As a result, the offer of reemploy-
ment was not made in good faith, and there was no
showing that Sherman's prior position was not available.
Her brother, Anthony Lopes, was offered a position on
May I at a pay rate lower than he had previously re-
ceived.
Both Carr and Ivory Clements were recalled to the
position of foot press operator, at lower wage rates.
Strangely, Carr was paid at the rate that Lopes had for-
4 am aware that Bittner was authorized to recommend transfer of
employees to other departments, but her recommendations were based
solely on reasons of health and not job performance. Based on the Gener-
al Counsel's theory, all nurses who have the power to recommend a
change of work are supervisors. I have been unable to find support for
this proposition. Further, there was testimony that Bittner hired an em-
ployee; but that hiring was only at most a ministerial job of accepting an
application for a vacancy and required, in the circumstances, no exercise
of independent judgment. On this basis, I find that indicia of her supervi-
sory status are, at best, most isolated.
t6 For the purpose of compliance with this Decision, or a backpay
proceeding, if necessary, it is appropriate to note that Carr, upon recall,
was initially paid 3.50 an hour, the same as his prior rate. I find that
payment of his old rate in the press department was merely an attempt to
embarrass him, because of his advocacy of the Union and because he had
represented to many employees that he was, upon recall, being paid at a
lower rate. When Carr complained about his higher rate of pay, Re-
spondent reduced it to 2.75 per hour and made appropriate adjustments
on Carr's next paycheck. I hold that, in these circumstances, Carr did not
waive the sum of 75 cents per hour, to which he would be entitled in the
event my Decision is adopted by the Board.
HEDISON MANUFACTURING COMPANY 807
merly been paid, but Respondent still took the position
that Lopes' wage rate was too high for the department.
These recalls were obviously not to the jobs from which
those employees were laid off; and, although some of the
offers of recall were accepted, the offers were not made
in good faith. Other employees-Caya, Chicoine, Mar-
sella, Sandra Rattie, Kujawski, Descy, and Rondeau-
were not recalled to work at any time.
Respondent argues that the reason for its failure to
recall employees was that its records were either "non-
existent" or "chaotic." I find that, if there was a lack of
care, it was intentional. Indeed, all of the higher level of-
ficers of Respondent concede that the January 13 layoff
was temporary and that the employees were subject to
recall. If that be accurate, there was at least a moral, if
not legal, obligation to maintain records whereby these
laid-off employees would have the opportunity to regain
their livelihoods. Yet, seemingly, there was no way to
tell who was laid off on January 13, even though
O'Brien claimed that, from February 6 forward, he and
Callahan used their best efforts to reconstruct a list of
the affected employees-a situation which resulted in
amendments during the course of the hearing, up to the
very last day, adding and deleting names to the January
13 list. No matter that employees were, in fact, recalled
in the interim. I conclude that Respondent had initially
no intention of recalling the employees. Indeed, Danser-
eau stated to Barrett that Respondent "wouldn't be
hiring [Caya] back. We'd just be laying him off." The
filing of the unfair labor practice protesting the layoffs
apparently caused Respondent to rethink its position and
act accordingly. '
7. The Respondent's justification for the layoff
Respondent's essential defense is that layoffs in the
jewelry industry are traditional, occurring after produc-
tion of its goods for spring and fall begins to decrease.
Although most of the testimony indicated that, according
to the same traditional pattern, layoffs may normally be
expected somewhat later than January 13, a fact which I
find is of no little significance, I might be more receptive
to Respondent's claim had it presented clear and con-
vincing proof that there had been any decision motivated
solely by business considerations. To the contrary, I have
found that Respondent's case was muddled, confused,
and contradictory as to the making of a decision to
schedule a layoff and I have discredited it. It logically
follows that, if, as I have found, the layoff was the direct
result of the Union's campaign, the attempt to inject a
business justification is merely an afterthought and was
not a basis for the action taken on January 13.
In any event, Respondent never proved that there was
any business consideration for the layoff. Not the least of
the difficulties with Respondent's defense is the almost
total absence of records to support its position. Neither
the work-in-process tickets, which would have shown
the actual work being performed in the plant, nor the
work forecasts, which would have shown the work pro-
I" Respondent's records reveal that Green was recalled on April 26;
Thomas Rattie, on April 29; Silva, on April 26; and Bedard, on May 3. It
was stipulated that Robertson was recalled on April 4
jected for manufacture, were produced. t 7 All that was
introduced was a chart maintained by Graham contain-
ing, inter alia, weekly summaries of work in process,
inside and outside payroll, and shipments. This chart
shows that work in process was decreasing, although the
accuracy of the decrease is suspect because another doc-
ument submitted to the Region by Graham during the
course of investigation contains figures that are less than
those reflected on Graham's chart. As a result, it is im-
possible to determine which figures are accurate; and,
even if I were to assume that one set of figures ought to
be credited, that still does not prove that all the layoffs
were justified.
Indeed, all that appears in the record is that, when
work in process declines, the first department affected by
lack of work would be the press department which is at
the very beginning of the manufacturing process. How it
can be gleaned from the figures that other departments
would be similarly affected is left wholly unexplained, as
is the relationship of the amount of the decline to the
number of persons to be laid off. Certainly, the numbers
have no bearing upon the finished side of the manufac-
turing process, such as the stringing and linking depart-
ments, because the decline would impact, according to
Respondent, only the beginning of the process, not the
tail end. Further, the figures do not comfort Respond-
ent's cause in justifying the layoffs in the central stores
and maintenance departments, where there was no histo-
ry of layoffs at all.
Graham also attempted to support the layoff by rely-
ing on an alleged "danger signal" of a ratio of total labor
costs to total shipping. When the figure exceeds 35 per-
cent, a layoff is inevitable, if not immediate. Graham's
chart shows that the figure was 43 percent during the
week prior to the layoff; however, it also shows that the
figure had never dropped below the "danger signal"
prior to that week and since October 17, 1977. In fact, at
the time Graham allegedly first warned Dansereau in
late December 1977, the percentage had fallen for 6
weeks in a row. Thus, the "danger signal" theory not
only lends no support for the timing of the January 13
layoff but also gives further support for questioning Gra-
ham's credibility.
Nor do Graham's charts support his contention that
the layoff was warranted because payroll was too high.
It is true that the total factory payroll decreased in the
week after the layoff to S56,056 from $69,277, the prior
week. However, the payroll returned to $68,470 and
$69,601 the next 2 weeks; and did not show any drastic
reduction (except for the blizzard of February 6) until
the payroll week ending March 6--all of which clearly
belies the underlying justification for the layoff as ex-
pressed by Graham.
If the total amount of payroll was not the underlying
reason for the layoff, then the only justification which
remains is that certain departments of Respondent's plant
l7 Respondent's witnesses contended that these records were not actu-
ally retained for any lengthy period of time. Although that might have
reflected Respondent's practices, I find it unusual that, in light of the
Union's prompt filing (January 16) of an unfair labor practice charge
complaining that the layoff violated the Act, Respondent did not retain
these records if they supported its position.
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
did not have sufficient work to keep all the employees
busy. However, there is little to support Respondent's
claim, with the possible exception of the press depart-
ment. Foreman Don Fontaine testified that in mid-Janu-
ary there was a substantial amount of work in the central
routing department received from the press department.
Supervisor McKiernan credibly testified that the central
stores department was not suffering from any lack of
work; the employees in that department corroborated
that testimony. Indeed, just prior to the commencement
of the union campaign, McKiernan had been authorized
to hire two new employees for his department. Contrary
to Dansereau's contentions, the maintenance department
had ample work to do. The hours worked by that de-
partment did not decrease after Caya (whom I have
found was laid off because of his attendance at the
Woonsocket meeting) was laid off; rather, the hours in-
creased. Similarly, there was no reduction of hours
worked in the soldering, stringing, and linking depart-
ments, except for the week after the layoff, until the
week ending March It1. Fontaine testified that, in the
middle of January, there was a backlog of work to go to
the soldering department. I thus find that, as of January
13, there was little justification for the layoff in the press
department and none at all for the layoff in the central
stores, maintenance, stringing, linking, and soldering de-
partments.
Further, the selection of the employees for layoff com-
pels the conclusion that Respondent's defense cannot, in
substantial part, be believed. Both Dansereau and Larson
had hazy recollections as to how they selected the em-
ployees. According to them, the selection process was
based on some unclarified mixture of seniority, perform-
ance, and need; and even Respondent recognized that
there were some "inconsistencies and anomalies" in the
procedures it followed. The lists of the persons to be laid
off, allegedly prepared by Larson, have been "lost."
Larson identified one employee in the soldering depart-
ment, Maria Ramos, whom he thought he had recom-
mended for layoff; she was not laid off, Susan Sherman
was not on the list; she was laid off. Larson did not list
his rating of the employees, but believed that, since Dan-
sereau selected every person on the list, the ratings made
no difference.
There is no doubt that certain of the employees laid
off were "low performers" according to a document
which Larson said that he looked at when he made up
his list: but even Respondent's exhibit was flawed in the
sense that the document introduced was only one of the
documents Larson alleges that he examined. Even if
there were no discrepancies in Respondent's narration of
the events leading up to the layoff-and the discrepan-
cies were abundant-the disappearance of the original
lists and the withholding of the other documents alleged-
ly relied upon by Larson make Respondent's story most
suspect. For example, Larson admitted that Sherman was
a good worker and that her performances for certain
weeks was the highest in her departments; that Robert-
son also had weeks of high performance and that she
was never counseled by Larson, who customarily talked
with employees who were "below standard." Since
Larson admitted that Sherman was not on his list, that
he could not recall who was on his list, and that no ex-
planation was given by Respondent for the layoff of
either Sherman and Robertson, I find Respondent's over-
all explanation of its selection of employees most difficult
to comprehend.
There was ample evidence that Carr was a highly re-
spected employee of long standing, capable of perform-
ing almost every task in the press department, and, prior
to the union campaign, consistently elevated in responsi-
bilities and raised in pay. On two occasions in 1977, Carr
was offered the position of assistant foreman. Ivory Cle-
ments, too, was an entirely satisfactory performer. Their
layoffs left their supervisor, Bob Clements, without em-
ployees capable of setting up the forges and the air cam
press.i8 Because Carr was the most senior employee in
the department, it is obvious that seniority was not a
factor in his layoff. Indeed, the day before the election,
O'Brien stated to Fitzpatrick that he understood that
Carr was one of the original organizers of the Union.
In addition, Respondent, in justifying the later layoff
of June 2, discussed infra, noted the need to retain all
toolsetters.' 9 Apparently, that need was not felt on Janu-
ary 13. Finally, Carr testified that the custom in prior
layoffs was that, if he were not needed to perform tool-
setting work, he would return to operate the presses.
That custom was also disregarded. Respondent's princi-
pal witnesses testified that they made great efforts to
avoid laying off experienced employees in order to stabi-
lize the complement of their employees. Many of the
General Counsel's witnesses testified that Respondent
made a consistent effort to transfer employees to depart-
ments where there was work for them to do, rather than
lay them off. That practice was also disregarded on Jan-
uary 13.
Perhaps not recognizing that Bourque was recalled
only 6 days after the layoff, and in furtherance of its at-
tempt to justify its selection of employees, Respondent
concedes in its brief that she "was consistently below the
average of the [soldering] department." If she were truly
laid off because she was below average, there would
have been no need to recall her. However, the fact re-
mains that she was recalled to another department; and
almost all of the others, including most satisfactory
workers, were not. In these circumstances, there was no
justification for the layoff of any of the employees, par-
ticularly the pressroom employees, because there was
adequate substitute work for them to perform.
I find for all of the foregoing reasons that all of the
employees named in paragraph 9 of the complaint were
laid off in violation of Section 8(a)(3) and (I). Even
though Bourque and Dufresne were not shown to be
union adherents and they were offered reinstatement to
Is After the layoff. an ad'erislement u.as placed in the newspaper frr
that appeared to he Carr\s ih Whenl Carr answered the advertisement,
he vails told that it conitained an errrl that it should have provided for 3
years' experience Later, the ad'ertisement was changed; the ohb, howev-
er was Inexer filled.
Ily so holding. I have cnlsidered Santo Clerel o's testlimony that
Carr had i,,t served enlough time to become a fulls qualified Itoolstter
aId I ha,,e rejected it, in part, hecaule (?hetrel l was present i the press-
rooll for nlinimal anioults and had . ;ay tIo knll,"v of Carr's progress.
Clherclil cillceded that the lorcmna i Ihe pres, departmnlent wuld have
inore klliowslledge of Carr't capahilities I lhe firernma did not testif>
8(8
---
HEDISON MANUFACTURING COMPANY
temporary assignments in the stringing departments ef-
fective on January 13, nonetheless, the motivating factor
for the January 13 layoff was the assumption that they,
as well as their union colleagues, favored the Union.
They were merely swallowed up in Respondent's desper-
ate and precipitous attempt to crush the Union and were
discriminated just as much as if they, too, attended the
Woonsocket meeting, signed union authorization cards,
or distributed union leaflets, or solicited union cards.
Howard Johnson Company, 209 NLRB 1122 (1974); Com-
puted Time Corporation, 228 NLRB 1243 (1977).
C. The Aftermath of the January 13 Layoff' New
Rules and New 8(a)(l) Violations
Shortly after the layoff was announced to the affected
employees on January 13, a group of employees led by
Hutloff (Lawton, Clements, Carr, Fitzpatrick, LePere,
and Ferreira) complained bitterly to Dansereau and other
of Respondent's supervisors that the layoffs were dis-
criminatory against "our in-shop Union organizers" and
that they would not get away with that kind of illegal
activity. Lawton, Clements, and Carr, of course, were al-
ready laid off. Discharge awaited Hutloff and Ferreira at
the end of January, and a layoff awaited Fitzpatrick in
March. In the meantime, Respondent continued on its
course of flagrantly disregarding the provisions of the
Act.
There is no doubt that widespread efforts were made
to spread the union gospel through solicitation of em-
ployees in the parking lot and in the cafeteria; and there
is no allegation in the complaint that Respondent at-
tempted directly to hinder the solicitation. But Graham,
Dansereau, and Callahan were apparently upset with the
Union's leaflets being posted around Respondent's prem-
ises; although, prior to January 10, Respondent's four
bulletin boards 20 were used by employees, without any
permission, for notices pertaining to picnics, sports activ-
ities, requests for rides and carpools, birthday congratula-
tions, and death announcements. After January 10, the
bulletin boards became an issue.
During the morning of January 11, Graham and Calla-
han approached Hutloff, telling him that it was illegal to
be posting leaflets on the bulletin boards and in the bath-
rooms; that it was permissible to distribute leaflets on
nonworking time, at the noon hour, but not permissible
to post leaflets on the bulletin board; and that it was il-
legal for nonemployees to distribute leaflets in the park-
ing lot in the morning. Graham asked Hutloff whether
he would pass this word to the organizing committee.
Hutloff said that he would do his best, but since he was
not on the organizing committee, he could not guarantee
anything. Graham grinned, saying that he understood
and that Hutloff should do the best he could.
During the morning break on January 16, Ferreira,
seen by Foreman Robert Clements, posted union leaflets
on Respondent's bulletin boards. After lunch, Ferreira,
seen by Alan Lacroix, Respondent's chief expediter, put
up on the four bulletin boards additional leaflets concern-
ing the January 13 layoff. After returning to his work
20 A new bulletin board, apparently solely fr employee personal no-
tices, but not union notices. was put up after the election.
area, Ferreira was approached by Lacroix and Danser-
eau, who was holding some of the Union's literature
being passed out that morning. Waving the papers in
Ferreira's face, Dansereau asked whether these were the
leaflets he had put up on the bulletin boards. At first,
Ferreira said that he did not know whether it was those
particular leaflets he had put up, but he admitted that he
had put leaflets on the bulletin board. After being asked
the same question twice more by Dansereau, Ferreira fi-
nally said yes. Dansereau then announced that it was
against company policy to put up literature on the bulle-
tin boards without Respondent's permission. Ferreira said
that, for all the time he had worked there, he never had
seen a written policy to that effect, and that he had put
up a lot of notices, as had others. Dansereau answered
that, every time that happened, the employees had
broken company rules; and that, if Ferreira did it again,
he would be fired. Holding his ground, Ferreira said
that, until there was a written notice to the contrary, he
was going to continue to post notices on the bulletin
boards because Respondent's rule was discriminatory.
Shortly before or after this conversation, Graham, ac-
companied by Dansereau, told Hutloff that he thought
he had asked Hutloff about the posting of leaflets in the
bathrooms and on the bulletin boards. Hutloff said that
he had previously advised Graham that he had no con-
trol over the matter. Dansereau asked whether he could
not control these people, to which Hutloff said no. Then
Dansereau asked Hutloff if he knew who was on the or-
ganizing committee.2 ' Hutloff said, "No comment," di-
rectly to Graham, that, if he wanted the people to know,
the easiest way would be to put up an announcement.
Graham said that Respondent already had a notice
posted saying that employees could not deface company
property and that he guessed Hutloff was saying that he
could not help them. Hutloff agreed.
The notice, however, was different from what Graham
said it was. Posted for the first time on January 16, it
read: "NOTICE TO EMPLOYEES-No notices can be
put on bulletin board without approval of management.
THANK YOU." Obviously, the change in Respondent's
practice, there being no written rule in the past barring
employees' posting of notices, was intended solely and
21 The General Counsel contends, and I agree, that Dansereau's ques-
tion about the composition of the union organizing committee constituted
interrogation in violation of Sec. 8(aHI) of the Act (par. 8(i) of the
amended consolidated complaint). I do not agree that Graham's conver-
sation with Hutloff on January II constituted illegal surveillance The
General Counsel's theory is that the request that Hutloff carry Graham's
message to the union organizing committee conveyed Graham's knowl-
edge that Hutloff was on the committee. I am unable to infer from Gra-
ham's statement or his smile that he as imparting any knowledge to
Hutloff that Respondent had learned of Hutloff's involvement. Despite
Graham's denial, Respondent was obviously aware from the Union's leaf-
lets, some of which were directed to Respondent's supervisors, that there
was a union organizing committee. It was also aware that Hutloff was
engaged in leafleting. If rules were being disobeyed by the Union, Hut-
loff as well as other lealletters would have been the logical candidates for
Graham to talk to. Graham's smile at the end of the conversation is am-
biguous It could mean that Graham knew that Hutloff was on the com-
mittee It also could have meant that Graham knew that Hutloff would
probably do anything to stop the posting of notices on the bulletin
boards. In these circumstances, the General Counsel has failed to prose
its allegation of an impression of surveillance, and par (g) of the amend-
ed consolidated complaint is hereby dismissed
809
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusively to thwart the rights of employees to self-or-
ganization, protected by Section 7 of the Act.
Later attempts to obtain permission to post notices
were unavailing. On January 26, Ferreira asked Ray
Hebert, Respondent's general factory foreman, for per-
mission to put up literature on the bulletin board. Hebert
said that he would have to check "higher up" and would
get back to Ferreira. Approximately an hour later,
Hebert reported to Ferreira that he had talked with
Graham, who refused permission.
During the week before the election, LePere and Fitz-
patrick requested Callahan's permission to post a notice
on the bulletin boards publicizing a party for union sup-
porters. Callahan said that he had no power to grant the
request and would have to contact Graham. He later re-
ported that he was unable to reach Graham. He returned
with O'Brien who refused to permit the leaflet to be
posted. When LePere asked why, O'Brien said that, for
union-related or union material, they would have to ask
the National Labor Relations Board.
On or about June 8 or 9, Joe Pine and others distribut-
ed leaflets for a workers' outing to be held the following
Sunday. Pine had also put up posters on the bulletin
boards (including the new employees' board) but found
that they were taken off. After he had put up another
poster, Pollen asked Pine whether he had put up a leaflet
on the bulletin board. Pine said yes. Pollen said that he
could not post union literature on the board. Pine said
that the leaflet merely advertised a workers' outing and
said nothing about the Union. Pollen replied that Pine
would have to talk to O'Brien to see if the notice could
be left on the bulletin board. As a result Pine and Fitzpa-
trick went to O'Brien and asked him why they could not
post the notice. O'Brien said that he had to call Hedison.
Later O'Brien reported that Hedison would not let it be
posted-that otherwise he would go "ga ga."22
I conclude that there was never a restriction on the
use of the bulletin boards until the commencement of the
union campaign and that the prohibition of posting solely
union-related or union leaflets and notices constituted a
disparate, unwarranted, and unilateral imposition upon
the freedom of self-organization in violation of Section
8(a)(l) of the Act (par. 8(k) of the amended consolidated
complaint). Challenge Cook Brothers of Ohio, Inc., 153
NLRB 92 (1965), enfd. 374 F.2d 147 (1967). Further, I
find that Dansereau's questioning of Ferreira on January
13 constituted illegal interrogation (par. 8(h) of the
amended consolidated complaint).
Another new rule put into effect by Respondent in-
volved the right of employees to visit other employees
during lunch or break periods. LePere had often, per-
haps every other day, visited her friend Fitzpatrick in
the linking department. Floorlady Di Carlo had always
given LePere permission to speak to Fitzpatrick, often
noting that it was unnecessary to ask for her consent and
that she could talk to Fitzpatrick "whenever you want."
On January 16, LePere had just returned from the link-
ing department where she had asked Fitzpatrick about
22 In contrast, a newspaper advertisement paid for by employees
thanking Respondent for paying a full week's wages for the week of Feb-
ruary 6, when there was a blizzard (see infra), was permitted to be posted
in late February.
borrowing her car. Chief Expeditor Allen Lacroix
warned her not to go into other work areas during lunch
hour, under obvious pain of discipline.
The record fails to demonstrate that prior to this inci-
dent there was any written or oral rule in existence pro-
hibiting employees from visiting other departments
during lunch or break periods; and I note that, even if
there were a rule, both O'Brien and Dansereau stated
that the rule had not been enforced. Employee Alice Jef-
frey testified credibly that she had visited friends in other
departments during breaktime. There was also uncontro-
verted testimony, which I credit, that employees JoAnne
Anderson, Vicki Blair, and Jemma Ayers visited the link-
ing department regularly, during break periods, and
Ayers, during work.
Thus, the posting on February 14 of a written rule
prohibiting employees from going "into another depart-
ment during coffee or lunch breaks" was a unilateral de-
parture from Respondent's past practices and unsupport-
ed by a showing of business need; and the threat to
LePere, a known union advocate, who had just visited
Fitzpatrick, another known union advocate, was intend-
ed to discourage her union activities in violation of Sec-
tion 8(a)(1) of the Act (pars. 8(e) and (o) of the amended
consolidated complaint). In support of the latter finding,
I specifically note that, even after the February 14 notice
was posted, Di Carlo, whom Respondent claims is an
employee, visited Marie Silva in the wrapping depart-
ment. Both Di Carlo and Silva signed antiunion leaflets
and letters, as did Blair and Ayers.
There is no question that, when Mary Ackaway was
rehired in the sample room2 3 in March, she was not per-
mitted to leave that room, even to go to the plant cafete-
ria to purchase some flavored milk which was not availa-
ble in the office cafeteria. In the course of the perform-
ance of her duties during her earlier employment in the
sample room, she was required to go to the pick room
and the carding, receiving, linking, and gluing depart-
ments; upon her return to employment, she was not per-
mitted to leave the sample room. The only pay phone
was on the factory side; Ackaway was permitted only to
use Respondent's business phone in the sample room.
When, in order to perform her duties, Ackaway had to
obtain jewelry in the pick room or from the factory or
to obtain plastic bags, her supervisor, Jean Chin, would
ask other of the sample room's employees (whose duties
were the same) to get the necessary items. Before
Ackaway was laid off from the sample room in August
1978, Greg Wallace, named by Ackaway and Jean Chin
as the supervisor in the cost room, asked her whether
she wished to transfer into the pick room. Ackaway re-
plied that Respondent would not let her go to the pick
room. He registered his disgust, walked out, and re-
turned later, with hands thrown into the air, saying that
he did not believe the people in this place and that
Ackaway should forget the job.
General Counsel complains (par. 8(bb) of the amended
consolidated complaint) that Ackaway's virtual isolation
was for the purpose of discouraging her union activities.
23 The sample room is on the office side of Respondent's plant. The
employees there are not part of the appropriate unit agreed to by the
Union and Respondent.
HEDISON MANUFACTURING COMPANY 811
I agree. Ackaway was a union supporter prior to the
election, while she was still employed in the factory, at-
tended the Woonsocket meeting, talked with employees
in the factory cafeteria when the union campaign openly
commenced, wore a union button and carried a union
sign, and was seen by Hike and H. David Hedison, and
unabashedly expressed to Frank Williams, vice president
of marketing, that she still favored the Union at the time
she was rehired in the sample room. If there were re-
strictions on office employees visiting the production
areas, they were certainly not enforced upon Ackaway
at the time of her prior employment in the sample room.
No credible explanation for the specific limitation of her
movements upon her rehire was given by Respondent. I
conclude that Respondent's actions were taken solely to
prevent a known union adherent from proselytizing in
the production area of the plant, where the union cam-
paign was still active. That violates Section 8(a)(l) of the
Act.
During the week of January 16, when LePere reported
to work in the central routing department, the chairs
were missing. This might not have seemed overly unusu-
al and the cause for litigation, except that previously
LePere sat on a chair while she was doing her work.
Another employee, Peggy Shaw, told LePere that the
employees were not allowed to sit on chairs anymore.
LePere asked why, and Shaw replied that the employees
did not work fast enough sitting down. Nonetheless,
LePere sat down; and Karen Lovell, her supervisor,
came over and said that she could not sit anymore.
LePere said that she supposed the reason for the new
condition was because the employees did not work fast if
sitting; Lovell said yes. LePere said that, if Respondent
thought she was working slow sitting down, it should
see how slow she would be if she was not there, because
she had cramps, she could not stand all day, and she
would go home. Lovell relented and permitted LePere
to remain seated.
The following day, LePere again sat down; Lovell
came over to her and complained that she would get in
trouble if she allowed LePere to remain seated. LePere
then told Lovell that she had been told by Shaw that
Ron Renzi, then plant manager, said that it was all right
if the employees sat down while doing the paperwork
part of the job. Lovell pleaded ignorance and said that
she would check with Renzi; she returned saying that,
although Renzi had said it, he did not mean it and that
the employees had to stand up all the time.
The above testimony was uncontroverted, as was Le-
Pere's recollection that a day or two before Christmas
Day, 1977, Lovell complained that her feet hurt and that
she was glad that Respondent allowed chairs in the de-
partment because she was not sure that she could per-
form her job if she had to stand all day.
Respondent's defense is grounded upon Dansereau's
denial that the chairs were removed from the department
and that, if the chairs were there at some point of time,
they should not have been. Further, he alleged that at no
time were employees allowed to sit while doing their
work. I discredit his testimony as vague, conclusory, and
unsupported by fact. I find that the removal of the chairs
and the imposition of the new condition that employees
had to stand while working was a deliberate attempt to
make work more onerous and to discourage LePere's
union activities in violation of Section 8(a)(l) of the Act
(Par. I(v) of the amended consolidated complaint).
On January 19 Respondent held a dinner party at the
Chalet Restaurant in Providence. Invited to the affair
were all the principal supervisors and foremen of Re-
spondent and, in addition, floorladies Cote, Di Carlo, and
Florence Silva and employees Joe DeMarse, Michael
Lapp, and Isabel Calitri. Graham introduced the princi-
pal speaker, Martin Jacobsen, as Respondent's labor rela-
tions consultant; I find him to be Respondent's agent.
There is testimony that Graham said that Respondent
would crush the Union. Graham denied making that
statement, saying that it was Jacobsen, who, in addition,
spelled out for the audience some "dont's"-namely;
"don't promise benefits," "don't make threats," and
"don't speak about the Union unless an employee speaks
first."
During the discussion which followed, Graydon stated
that he was afraid that he had already broken the law by
threatening that Respondent would close. Jacobsen told
him not to worry about it-all a violation of the Act
meant was a little piece of paper. Jacobsen then turned
his attention to the causes of the union organizing drive,
asking the audience what the problems were in their de-
partments, so that the problems could be addressed in
campaign literature and captive audience speeches.
McKiernan was singled out for his comments about the
central stores department. Others talked about problems
of pay raises and incentive rates. Finally, near the end of
the meeting, Jacobsen asked that the persons in attend-
ance furnish the names of the employees whom they
thought would like a union at Respondent. Jacobsen
added that Hedison would never sign a contract (accord-
ing to Barnett) or bargain (according to McKiernan)
with the Union anyway.
I find that the interrogation, by soliciting grievances
from a group which includes employees (one of whom,
Alice Cote, stated that her girls were complaining about
piece rates), the request of them for names of union ad-
herents, and the threat not to sign a contract or bargain
are patent violations of Section 8(a)(1). In so finding, I
am cognizant of Respondent's contention in its brief that
the threat not sign a contract was merely a prediction
that Hike Hedison would not place his signature on a
union contract. Because Hike Hedison and Respondent
seem to most employees as synonomous, I find that con-
tention to lack merit. (Par. 8(m), (hh), and (ii) of the
amended consolidated complaint.)
D. The Discharges of the Central Stores Employees
and Supervisor; the Constructive Discharge of June
Lockhart; and Further Alleged 8(a)(1) Violations
1. The central stores department
The central stores department was essentially the dis-
tributor of unfinished jewelry during the initial operation
of Respondent's manufacturing process. It had control of
raw brass and gold, inventoried the same, and, pursuant
to work tickets filed with the department, forwarded
various pieces of raw material and other parts to the
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
press department, where it was formed in a press into a
piece of jewelry. When the press department finished
with the goods, they would be returned to central stores
for counting and further inventory. Other pieces of raw
metal would be forwarded by central stores to the cast-
ing department, where they would be melted and poured
into a mold, resulting in an unfinished piece of jewelry,
then to be returned to central stores for inventory and
counting. Similar merchandise would be received by cen-
tral stores from outside vendors and checked into inven-
tory. Eventually, when all of the pieces necessary for the
preparation of a finished piece of merchandise were re-
ceived, the various pieces required to fill out production
tickets were "laid out" and brought to the central rout-
ing department for distribution to the departments per-
forming the later stages of Respondent's manufacturing
process; to wit, the linking, tubbing, polishing, stone
picking, stringing, plating, and epoxy departments.
In early January, the central stores department was su-
pervised by McKiernan and was composed of five em-
ployees, three of whom (Ferriera, Hutloff, and Lawton)
were known union organizers. They were all general
stock clerks, as was Russell Moison; and the fifth em-
ployee, DeMarse, worked solely at processing precious
metals in the gold safe. Although in early January cen-
tral stores was somewhat behind in its work,2 4 on Thurs-
day, January 12, Dansereau decided to transfer Moison
to the boxing department for a few days. Dansereau
stated, over McKiernan's objections, that central stores
was not his priority, that he realized that work would
back up there, and that his use of Moison in the boxing
department was important in the circumstances. On the
day after, Friday, January 13, Lawton was laid off.
Because of Moison's transfer and Lawton's layoff, the
central stores department was left with McKiernan, as
supervisor, who was unable to do any physical work be-
cause of medical problems, and DeMarse, still in the
gold safe, Hutloff, and Ferriera. The small backlog
which existed on January 13 continued to grow as work
increased, and it seemingly became impossible to keep up
even with the same level of work with only two produc-
tion employees in the department. The delays and back-
log of work were exemplified by the fact that the shelf
used to store completed work was so full that work had
to be stored on the floor awaiting other items to com-
plete pieces and assortments of jewelry; that other em-
ployees came into the department from time to time to
do assorted tasks, many of them being unfamiliar with
the work so that the work had to be corrected; that
there was an increase of priority work, with expeditors
marking it with rush tags; and that, in desperation, re-
quests were made of central stores employees by Danser-
eau and Brian Stevenson of Respondent's production
control department to rush through the work without
doing the normally required paperwork.
24 In early January, a sixth employee, Mascio, was discharged Shortly
thereafter, McKiernan received permission to and did hire two more em-
ployees. They remained on the job, however, for only a few hours.
Whether the backlog in central stores was attributable to these facts is
not absolutely clear, but certainly an inference is warranlted that the de-
partment was understaffed when the union campaign began.
McKiernan testified that he complained on several oc-
casions to Dansereau and Hedison about the shortage of
employees in his department, to no avail. Hutloff and
Ferriera, feeling pressed, complained to McKiernan that
they could not physically handle the work that was re-
quired of them, even though they voluntarily agreed to
work overtime during this period. Strangely, Ray
Hebert, then general factory foreman, asked McKiernan
during mid-January if he knew of any experienced per-
sons who could help out in the department, and McKier-
nan gave him the names of Moison and Lawton. Within
a day or so, Marinelli asked the same question and fur-
ther asked what the problem was, to which McKiernan
replied that he had been telling him for a week that cen-
tral stores needed more help. Finally, Hedison came to
the central stores department and asked what the prob-
lem was and specifically noted that McKiernan should
get more help. The following day, January 24 or 25,
Moison was transferred back to central stores and, on the
same day, Callahan asked McKiernan if he had any way
of reaching Lawton. By letter dated January 26, Re-
spondent recalled Lawton, requesting that he report to
work the following Monday, January 30.
On that Monday, Hedison appeared in the department
and complained that employees were engaged in a slow-
down. Later that day, McKiernan was fired, allegedly
for incompetence and lack of leadership, although
McKiernan vehemently protested that Respondent had
not given him enough employees to adequately do the
job, and that it had become impossible to catch up that
soon because Lawton had just been recalled and Moison
was out sick that day. The following day, the remainder
of the central stores department (excluding DeMarse)
was fired.
I credit the testimony of McKiernan, Hutloff, and Fer-
riera that there was no slowdown in the central stores
department. The fact that they voluntarily worked over-
time is inconsistent with Respondent's position that they
were deliberately attempting to disrupt Respondent's op-
erations. I also credit their testimony that the backlog in
the department was caused, not as a result of their ac-
tions, but solely because Respondent drained the depart-
ment of adequate manpower. Hutloff, Ferriera, and
Lawton were active participants in the union organizing
activities; indeed, Lawton participated at a preelection
conference at the Board's Regional Office on January 24,
a week before he was discharged. It thus cannot be
argued that Respondent was not fully aware of the union
activities of these three individuals. I note also that
Moison had signed an authorization card for the Union.
Further, McKiernan had been specifically interrogated
by Hedison on January 10 as to the strength of the
Union in his department and, out of all of the supervisors
attending the meeting at the Chalet Restaurant on Janu-
ary 19, had been selected to explain the participation of
employees in his department in the union organizing ac-
tivities. The only person who was excluded from the dis-
charge was DeMarse, parenthetically the only person
who had not indicated support for the Union, and an em-
ployee who had been invited to the meeting at the
Chalet Restaurant.
HEDISON MANUFACTURING COMPANY 813
As a result of all the foregoing and because there is no
showing that there was any credible justification for the
discharges, I find that the discharge of the four employ-
ees was solely a result of their union activities.
The General Counsel alleges that the discharge of Su-
pervisor McKiernan violated Section 8(a)(l) of the Act
on two grounds: (1) that his discharge was an integral
part of a pattern of conduct aimed at penalizing employ-
ees for their union activities, relying on the timing of
McKiernan's discharge, the alleged admission of De-
Marse that McKiernan was fired because of his employ-
ees' protected activity, and the transparency of the
scheme by which the central stores department was ac-
cused of a slowdown after being starved of adequate
labor; and (2) that his discharge resulted from his failure
or refusal to oppose the Union in the manner and to the
extent desired by Respondent in its unlawful campaign
during the preceding 3 weeks.
It is quite accurate that the discharge of a supervisor
violates Section 8(a)(1) of the Act if motivated by the su-
pervisor's failure or refusal to engage in unfair labor
practices, the second ground relied on herein by General
Counsel. Harvey's Wagon Wheel, Inc., d/b/a Harvey's
Resort Hotel & Harvey's Inn, 236 NLRB 1670 (1978).
However, there is no record support for the proposition
that McKiernan failed or refused to engage in unfair
labor practices. He cooperated fully in answering man-
agement's questions as to how long the Union had been
organizing in his department. It is true that McKiernan
was asked to engage in surveillance; but he agreed to do
so, although he never pursued the matter. He was also
asked to tell his employees that Respondent's wages
were higher than other jewelry concerns, which he
agreed to do only upon being shown proof by Respond-
ent. Other than these incidents, the record is barren of
any requests made of him to violate the Act from Janu-
ary 12 to January 30.25 Accordingly, I find that McKier-
nan was not discharged for failing or refusing to engage
in unlawful conduct.
The discharge of a supervisor also violates Section
8(a)(1) if it "is an integral part of the unlawful etlort to
thwart employees' union activities," Buddies Super Mar-
kets, 223 NLRB 950 (1976),26 the first ground urged by
the General Counsel. In J. D. Lunsford Plumbing, Heat-
ing and Air Conditioning, Inc., 237 NLRB 128, 130
(1978), the Board stated:
Where the Board has applied the "integral part of
a pattern of conduct aimed at penalizing employees
for their union activities" exception, it has done so
in contexts where a nexus existed between the ac-
tions directed at the supervisors and the impact
upon employees, such that the supervisors had
served, in effect, as conduits for actions aimed ulti-
mately at intimidating or retaliating against employ-
ees. For example, the exception was applied where,
assuming supervisory status, the discharge had been
2s I do not hold hat Rspondeclts request (of McKiernan to rcprcsclt
to employc"s that Respondent's wage scale ;las high eithecr trulhfull r
not -was violtise of the Act
26 Enforcemen was denied ill an unpublishlcd decislon, 55) 2d 39
(5th Cir 1977) The principle st tted is still oatrdI law
designed to "discourage union activities in general
among the employees," Heck's Inc., 170 NLRB 178,
184, footnote 8 (1968), enfd. in part 418 F.2d 1177
(C.A.D.C. 1969); see also Fairview Nursing Home,
202 NLRB 318, 324, footnote 34 (1973), affd. with-
out published opinion 486 F.2d 1400 (C.A. 5, 1973),
rehearing en bane denied 491 F.2d 1272 (C.A. 5,
1974), cert. denied 419 U.S. 827 (1974), petition for
rehearing denied 419 U.S. 1060 (1974), and where
the employer's efforts to retaliate against employees
had been frustrated by the discharged supervisor's
refusal to cooperate in those efforts, Miami Coca
Cola Bottling Company doing business as Key West
Coca Cola Bottling Company, 140 NLRB 1359, 1361
(1963). Similarly, in Pioneer Drilling Co., Inc., 162
NLRB 918, 923 (1967), and in Krebs and King
Toyota, Inc., 197 NLRB 462 (1972), the supervisors'
terminations had been "a ploy to facilitate or cover
up the contemporaneous and subsequent unlawful
discharges of employees." Sibilios Golden Grill,
Inc., 227 NLRB 1688, footnote 3 (1977). In each of
these cases, the employer's immediate action(s)
against the supervisor(s) had as its ultimate object
the employees against whom the employer was re-
taliating or was attempting to intimidate. In sum,
the supervisors were mere vehicles for the employ-
ers' unlawful discrimination directed to the employ-
ees.
In Pioneer Drilling Co., Inc., supra, enfd. in pertinent
part 391 F.2d 961 (10th Cir. 1968), the discharge of su-
pervisory drillers was unlawful because it was used as a
pretext for discharging prounion employee drillers by
employing an industry custom that, when supervisory
drillers were terminated, their crews were also terminat-
ed.
McKiernan did not join the Union nor openly espouse
its cause. However, McKiernan obviously did not enthu-
siastically support Respondent in its aim to defeat or
"crush" the Union, following the advice of his attorney
brother to remain aloof from the labor struggle and not
to change his work habits. As a result, McKiernan op-
posed the layoff of Lawton on January 13, refused on
January 16 to promote Respondent's cause unless shown
proof that Respondent's wages and benefits were better
than nearby jewelry companies, repeated his neutrality to
Graham his neutrality on January 16, and openly solicit-
ed Respondent to bring back Lawton and Moison into
his central stores department. It is obvious that McKier-
nan did not ingratiate himself with top management.
McKiernan's narration of the events of January 30 is
telling. Until that day, McKiernan was never warned
about the quality of his work. Rather, he was praised for
it. In mid-December 1977, he received a wage increase,
from $225 to $240 per week. In late 1977 Hedison of-
fered him the position of foreman of the central routing
department. At a workmen's compensation hearing at the
end of 1977, McKiernan was praised by Alfred Bolduc,
Respondent's office manager, as the best worker he had
seen since he worked at Respondent, and that Hedison
considered him to be one of his top junior executives.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The events of January 30 represented a complete turn-
around. That afternoon, after having heard McKier-
nan's pleas during the preceding weeks for more man-
power, Hedison expressed his complete disappointment
with McKiernan and accused him of permitting Hutloff
to loaf. McKiernan insisted that Hutloff was working
and explained what he was doing. Hedison asked wheth-
er that was what McKiernan wanted America to come
to, to which McKiernan stated that he did not know
what Hedison was talking about. Finally, Hedison re-
marked that McKiernan would have to get up pretty
early in the morning to fool him. McKiernan said he was
not trying to fool anyone and that his department was
working up to its capabilities. Hedison repsonded that
that was "a bunch of bullshit." About an hour later,
Marinelli fired McKiernan on the ground that he "stunk"
as a supervisor, was incompetent, and lacked leadership
qualities. McKiernan's check was in Marinelli's drawer.
In parting, Marinelli stated that he and Respondent
would do everything in their power to ensure that
McKiernan never collected a penny of unemployment
compensation.
The precipitous termination of McKiernan, and Re-
spondent's complete change of attitude toward him, can
be attributed only to an attempt to set him up as a cover
for the discharge of the remainder of the central stores
department the following day. 27 Respondent had already
tested McKiernan's loyalty and found, to its chagrin, that
he was neutral. McKiernan was clearly offering no overt
help to Respondent's antiunion campaign; and, if he had
not been fired, and the employees in the central stores
department were fired, that would leave Respondent
with an unwilling supervisor in its midst who could
easily thwart the false defense of a slowdown which was
to be the justification for the discharges. Although
McKiernan had not joined the Union, the holding of
Donelson Packing Co., Inc., and Riegel Provision Company,
220 NLRB 1043 (1975), compels the conclusion tht
McKiernan's discharge was "closely tied" to the dis-
charge of the central stores department employees and
was an "important element in Respondent's total strategy
to rid itself of the Union." Accordingly, McKiernan's
"discharge was 'an integral part of a pattern of conduct
aimed at penalizing employees for their union activities,"'
and therefore violated Section 8(a)(l) of the Act. Pioneer
Drilling Co., Inc., 162 NLRB at 923.
In finding that Respondent violated Section 8(a)(1) of
the Act, I do not rely upon Ferreira's testimony that
then Supervisor DeMarse had stated that McKiernan
was fired because of his employees' protected activity.
First, I am not at all persuaded that DeMarse was a su-
pervisor, although he was selected for a very brief
period of time to replace McKiernan. The record shows
that DeMarse quickly turned down that job. I refuse to
bind Respondent for the statement of a person who
served as a supervisor only for a few hours and other-
wise was an employee in the bargaining unit. Second, I
discredit Ferriera's testimony that the statement was
made. Ferriera gave an investigatory affidavit to an
27 I have already found that there was no slowdown in the depart-
ment.
agent of Region I specifically relating to McKiernan's
termination and made no mention of DeMarse's state-
ment. I cannot believe that Ferriera would not have re-
called it at the time his affidavit was taken. Rather, Fer-
riera's addition of DeMarse's reaction was merely an
effort to bolster the chances of McKiernan's success; and
I discredit it.
2. The constructive discharge of June Lockhart
The General Counsel alleges that June Lockhart, first
employed in October 1977, was constructively dis-
charged by Respondent on February 3. There is no ques-
tion about Lockhart's union activities prior to January
10, nor her attendance at the Woonsocket meeting on
January 9, nor her leafleting and posting of notices in the
plant; and it is highly probable that Respondent knew of
her union adherence. I so hold. In addition to Respond-
ent's knowledge of her union activities, the General
Counsel relies on the following facts to support its com-
plaint that she was constructively discharged.
On January 31 she and employee Patricia Donovan
asked Don Fontaine, their new supervisor in the central
routing department, for a raise in pay. She complained
that it was bad enough that she was making the mini-
mum wage, which was the same as she had received in
her earlier job in the stone picking department; but stone
picking was not as involved as her work in central rout-
ing. She also complained that she felt that she was being
discriminated against because employee Steve Allen had
just been hired and was being paid more than she was,
despite the fact that he had no prior experience in the
jewelry industry. On the next day, Tuesday, Fontaine
transferred Lockhart to the plating department section of
central routing to weigh up the work that came out of
the plating department, sign it out, and bring it across
the hallway to the next department and put it on the
table. Lockhart stated that the job was different, because
she did not walk around the different departments as
much, that she was alone, and that there were not as
many people to talk to. In the principal section of central
routing, she had contact with the tubbing, stone picking,
soldering, press, linking, and central stores departments;
in the plating section, she had no contact except walking
through the stringing department to get to her work area
and the department across the hall.
She continued to work in the plating section on
Wednesday, February 1, when she found out that Dono-
van had obtained a raise. She confronted Fontaine as to
whether she got her raise; Fontaine said that it had been
rejected. She then went to Production Manager Marin-
elli, who commented that there were not going to be any
more raises in the central routing department and that
her wage rate would be reviewed in August. When
Lockhart mentioned that Donovan got a raise, Marinelli
stated that he considered her work harder and that she
was classified as working at a different department. As to
the raise which was granted to Kathy Duke, he said that
she had been employed for a couple of years and had not
had a raise for a while. He denied that he was discrimi-
HEDISON MANUFACTURING COMPANY 815
nating against Lockhart. Parenthetically, Lockhart
agreed that Kathy Duke was due her raise.28
During work on that day, Lockhart developed a skin
rash, a problem she had never had before. She went to
nurse Bittner to see if she could relieve the itching.
Bittner gave her a cream that was supposed to neutralize
the itching and gave her gloves to wear at work. Lock-
hart claims (denied by Bittner) that Bittner told her that
the rash was probably due from exposure to nickel in the
plating department. Lockhart returned to work, some-
what relieved from her ailment; soon, however, the itch-
ing became more severe and she complained to Fontaine
about it. However, she apparently worked the rest of the
day without further incident. On Thursday, Lockhart
was once again assigned to the plating area, despite her
complaints to Fontaine about her continuing rash. The
rash continued, and became more severe; and Lockhart
again went to the nurse who, testified Lockhart, gave di-
rections to Fontaine that she did not want Lockhart
working in the plating department anymore. Later, be-
cause the itching became even more intense, Lockhart
left work and went home.
On Friday, Lockhart returned to work in central rout-
ing and performed her old functions. However, Fontaine
told her that, as of the following Monday, he was trans-
ferring her to the carding department for health reasons
because she was still suffering from her rash and she
would be better off in the carding department where she
would not come in contact with nickel plate. Lockhart
further testified that she could not understand why she
was being transferred, because Ken Parillo had just been
employed in the central routing department during the
middle of that week and he was performing the same
functions as Lockhart was. Indeed, LePere was instruct-
ing him how to do different jobs, and Parillo constantly
asked Lockhart questions about the job. When she com-
plained to Fontaine about sending an experienced person
to the plating area (namely Lockhart) and keeping an in-
experienced employee in the principal portion of central
routing, Fontaine replied merely that he wanted to keep
Parillo in central routing. Lockhart completed her work
in central routing on Friday and failed to report to work
thereafter.
General Counsel claims that Lockhart was harassed
into leaving her employment because of the following:
(I) the threat to freeze her wages for at least 8 months;
(2) the removal of the chairs she had previously used in
most of her work duties; and (3) the transfer to the card-
ing department "away from her pro-union work-mates."
There is no doubt that all three events happened, but it is
difficult to relate them to the alleged constructive dis-
charge. Perhaps foremost, Lockhart admitted that she
28 Although pay raises were granted to Donovan and Duke, O'Brien
later refused to grant increases to employees Jalette and Shirley Miller on
the sole ground that the union campaign was pending O'Brien admitted
that the withholding of increases was in line with his instructions to var-
ious foremen that increases could not be granted. I find that the refilsal to
consider the grant of increases for this reason alone was not in accord
with Board law, GAF Corporation. 196 NLRB 538 (1972). and was in-
tended to create animosity towards the Union by suggesting that it was
the Union which was solely responsible for the withholding of increases,
in violation of Sec 8(aXI) of the Act (par. 8(v) of the amended consoli-
dated complaint).
later told Alfred Bolduc, Respondent's office manager,
that she had quit because she wanted a job closer to her
home. Eventually, she obtained a more easily accessible
job. In an attempt to rehabilitate her, the General Coun-
sel elicited testimony that she had lied to Bolduc to hide
what she said was the real reason for her quit, that Re-
spondent harassed her because of her union activities,
consistent with the theory now urged by the General
Counsel. 29
I do not believe her explanation, which she alleged she
confided to Fitzpatrick, Carr, and others. If it were accu-
rate, the probabilities are that the Union, which filed nu-
merous unfair labor practice charges on all kinds of ac-
tivities and seemed to have trained its organizing com-
mittee in a most sophisticated manner, would have filed
charges on Lockhart's behalf. However, the amendment
to the complaint alleging Lockhart's constructive dis-
charge came at a rather late date and almost as an after-
thought. I am persuaded that Lockhart's explanation to
Bolduc was truthful, and that her testimony at the hear-
ing was merely an attempt to tailor her own situation to
the theory of the General Counsel.3 0 I thus find that she
was not constructively discharged in violation of Section
8(a)(3) of the Act.
Furthermore, even without Lockhart's admission to
Bolduc, I have grave difficulties with the General Coun-
sel's theory. I have previously found that the removal of
the chairs in the central routing department was a viola-
tion of Section 8(a)(1) of the Act, but I am uncertain that
that violation played any specific role in Lockhart's deci-
sion. In fact, she was transferred to the plating area of
central routing where there is no evidence that chairs
were not permitted. Had she remained there, she could
have sat. Later, she was transferred to the carding de-
partment; she could have there, too.
Just as important, because the action of Respondent
was allegedly directed at Lockhart's union activities, I
am perplexed by the very theory of General Counsel as
it relates to Lockhart's transfer to the plating section of
the central routing department. That, I had understood,
was a more favorable assignment, so favorable that Gen-
eral Counsel alleged that it was an unfair labor practice
(par. 8(1) of the complaint) for Hedison to have revoked
LePere's assignment to the very same area on January 11
in order to discourage LePere from engaging in union
activities. 31 If that be so, and Lockhart had continued
28 Respondent vehemently objected to the attempt to elicit from Lock-
hart her motivation for making the statement to Bolduc. Because motiva-
tion constitutes a vital part of the General Counsel's case-that is, wheth-
er alleged discriminatory conduct caused an otherwise voluntary act--the
question posed was entirely relevant.
31 I find that Lockhart was not a wholly reliable witness. For example,
she testified that, late in the week of January 9, she carried a 3-4-inch
pile of union leaflets into a bathroom and was observed by Pollen, when
she came out, carrying about one-quarter of the leaflets My very rough
guess, would indicate that she posted some 400-500 leaflets in the bath-
room-a feat which I find is incredible.
31 Compare General Counsel's argument in his brief that in revoking
LePere's assignment to the plating area: "presumably, Hedison was con-
cerned about assigning a known, prominent union organizer to work on
the finished goods side of the plant, where the Union's support was
weaker than in the Press, Central Routing, Central Stores and Soldering
departments," (p.12) with the General Counsel's argument that Lockhart
was being discriminated against because, "Unlike her previous assignment
Continued
:
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there, there might not have been any issue for disposi-
tion. Of course, Lockhart did not remain there, but in-
stead sought the aid of nurse Bittner to relieve her rash.
That raises the next problem: Although I cannot dis-
pute that Lockhart was indeed suffering from intense
itching, I can find no record support for the theory that
the rash was caused by contact from nickel, other than
some surmise and conjecture. Respondent's witnesses
were unanimous in stating that Lockhart would not have
been in contact with nickel, as a hypoallergenic plating
(or derma plating) protected all jewelry-and no one
else seems to have suffered in the acute manner to which
Lockhart testified. Further, no one seems to support
Lockhart's testimony that her rash was so severe that it
spread all over her arms.
In any event, there is no doubt that Lockhart saw
nurse Bittner several times,3 2 as a result of which Bittner
finally recommended that Lockhart (so she told LePere)
be transferred back to central routing or to another de-
partment. Fontaine testified that he was told only to
transfer Lockhart to another department. Because trans-
fers were so common in Respondent's plant, as demon-
strated by the employment history of Lockhart alone, I
find nothing unusual about Fontaine's transfer of Lock-
hart in these circumstances. Clearly, she requested a
transfer from the plating area; that she may not have ob-
tained a transfer to the precise department she desired is
not a violation of the Act.
Finally, with respect to the denial to Lockhart of an
increase in pay, it should be noted that two other em-
ployees, Donovan and Duke, received raises. Donovan
was a known supporter of the Union, which offers little
help to the General Counsel's case that Lockhart was
denied a raise because she was a union adherent. Duke
had been employed for several years and was due a raise,
according to Lockhart's own admission, which comforts
the General Counsel little when compared with the fact
that Lockhart had been employed for only 3 months. As
to Lockhart's claim that she was being discriminated
against because newly hired employee Allen received
more than she did, I note that Allen was also a supporter
of the Union. I have more difficulty with Marinelli's
statement to her that she would not be considered for a
raise until August, but the record lacks any showing that
where she worked with l.ePere and had regular contact with he Press
and Central Stores departments, now l.ockhart worked largely on her
own, bringing work from Plating to Stringing, except for occasional trip,
back to Central Routing" (P. 35.)
The allegation involving LePere was that she had been assigned to the
plating section of central routing. Hedison, however, objected, stating
that he wanted Kathy Duke in that position, based upon her experience
As a result. LePere was reassigned to the main section of central rolitig.
I find it most difficult to follow the General Counsel's theor y of a violi-
tion of the Act, in light of the inconsistent positions which he has taken
It is true that LePleres union activities were well known before the
above-related incident, hut there must be more to an 8(a)( ) violatil
than that. I cannot tell whether Duke was more experienced than
LePere or vice versa; I do not evenl know whether this assigilment was a
promotion a demotion. or a lateral transfer. Further I am not aware of
why, even if Hedison had never before participated in a decision to per-
s.inally guide Lelere's employment, as argued by the £General Counsel,
his personal interienttion now violates the Act I thus find par 11 I of the
amended consolidated complaint to be totally without merit.
2 In so finding, I note that littner had little, if any, indepenldent rec 1d-
lection of any of these incidenrts aild generally discount her testill)oll
this was the motivating factor for her voluntary termina-
tion. She seemed more dissatisfied with the fact that she
did not receive an immediate raise.
The General Counsel contends that Marinelli's state-
ment that she would be considered for a raise in August
flew in the face or standard policies that rates would be
reviewed in March and that the wage rates of new em-
ployees would be reviewed after 30 days of employment.
These policies were testified to by O'Brien, who first
joined Respondent after Lockhart had left. A fair read-
ing of his testimony makes unclear whether he was testi-
fying to Respondent's policies over a period of time, or
the policies as established by him. Indeed, in earlier testi-
mony, he stated that there was no firm policy as to when
employees received a wage increase, and at the time of
his arrival there were no automatic increases for new
employees. He later changed his testimony. Be that as it
may, Lockhart apparently knew of neither policy and
the evidence does not otherwise sustain her reliance
upon the wage review policy argued by the General
Counsel. As a result, I dismiss paragraph 10(a) of the
amended consolidated complaint.
3. Further allegations of 8(a)(l) violations
On February 6, O'Brien called two meetings of all
foremen, assistant foremen, and floorladies; the first
meeting was principally for the foremen and a few assist-
ant foremen; the second, for the remainder of the assist-
ant foremen and the floorladies. Although there may
have been some discussion of the union election cam-
paign, O'Brien testified that the main thrust of his re-
marks was to discuss his philosophy of management-
that he had been successful in his manufacturing oper-
ations by having employees meet with him on a regular
basis so that he could keep the employees apprised of
what Respondent was doing and so that employees could
tell him what they wished he would do for them.
O'Brien admitted that he stated that, when legally possi-
ble, he would straighten out the problems. Further, he
suggested that they encourage the formation of an advi-
sory committee of employees. Such a suggestion, made
in the presence of employees, is clearly violative of em-
ployees' rights to self-organization, especially in light of
the representation issues then pending (par. 8(ee) of the
amended consolidated complaint).
On March 1, O'Brien addressed a meeting of employ-
ees 3 3 and told them there had been mistakes in the
:': Uponl mtion of the General Counsel, I inliked the doctrine of
Bunrtion Mills. Inc.. 146 NLRB 611. 633-634 (1964). because of Respond-
ent's fililure to produce a duly subpenaed tape recording of the O'Brien
speech to the employees II so doing. I prohibited Rehpondcnt from in-
truoducinig the recording at any time and from calling its own witnesses to
testify about what ()'rien had said (See pp 4(17 411 414 415. 1244 54
136h-h7. 1723-36. 198X7- 9 2647-52, and 3213 17 of the official trail-
script I) he parties have moved that I take notice of a certain court pro-
ceeding brought im the D)istrict Court for the District f Rhode Island.
captioned "Hledison Manufacturing Company v. Robert S. Fuchs Re-
gional )ircctor National l.abor Relations Board " Civil Action N 78
0498. i which Respondent sought a protecltive rder against my ruling
declaring salid the (elicial Counscl's ubpoenu ducs teiurn aid requiring
the pro(ductirlon of the tape recording I grant the motion and note that
Resporidel's request was denlied and the coniplailt was dismissed by the
district court oii ()clbhcr It). 1978; that Respondent mnoved the court to
C(ontinued
HEDISON MANUFACTURING COMPANY 817
past-otherwise, the situation would not have been bad.
Hedison admitted his mistakes, he said; and, although he
could not make any promises, he wanted the employees
to look at his record. That record included putting
women in authority and his meeting regularly with em-
ployees.
I view these remarks as implied promises of benefits to
correct the past mistakes admitted by Hedison, despite
O'Brien's disclaimer that he could not make promises.
Otherwise, his reference to the paFt mistakes is a non se-
quitur. The admission of mistakes promises that actions
are going to be taken. See Raley's Inc., 236 NLRB 971
(1978). Further, the open-door policy announced by him,
which was first raised at the February 6 meetings, im-
plies a promise to entertain grievances to correct the past
mistakes. Finally, his statement that he had promoted
women to higher positions of authority in his prior man-
agement position cannot be taken in vacuo, but clearly
implies a promise to promote Respondent's women em-
ployees, who until then had achieved positions no higher
than floorladies. For these reasons, the February 6 and
March I speeches violated Section 8(a)(1) of the Act
(par. 8(x), (dd), and (ee) of the amended consolidated
complaint). In light of Respondent's extensive unfair
labor practices committed throughout the campaign,
Uarco, Incorporated, 216 NLRB 1 (1974), cited by Re-
spondent, is not controlling.
For similar reasons, and because of the continuing
unfair labor practices, O'Brien's letter after the election
also violated Section 8(a)(1) of the Act. On March 20,
while objections to the election were pending, O'Brien
wrote:
I recognize the feeling of many employees in the
plant that the Hedison management has been given
"another chance" to make our company an even
better place to work. I take this as a personal chal-
lenge and commitment. We all recognize that every
company has room for improvement. With the com-
plete support of Dave and Hike Hedison and with
your cooperation, I feel confident that I can make
these improvements.
I invite every employee to come forward with
any suggestions that will help to make Hedison a
better place to work.
I want and need your help and my office door
will always be open to discuss any suggestion, prob-
lem or complaint you might have.
The letter is merely a continuation of Respondent's
promises of benefits (or, at least, improvements) and of
Respondent's solicitation of employees' grievances. The
letter implicitly promises to resolve the grievances by
stressing "improvements" and "better place to work."
Because the letter is merely a carryover of Respondent's
earlier and similar illegal conduct, it also impedes the
employees' rights to self-organization, in violation of
Section 8(a)(l) of the Act (par. 8(aa) of the amended
consolidated complaint).
amend and reconsider its order on October 19, 1978, and that the court
denied and dismissed Respondent's motion on November 20, 1978.
On Monday, February 6, the "Great Blizzard" began.
So heavy and fast falling was the snow that, despite the
fact that Respondent's plant closed early, some 50 to 60
employees (including some from temporary agencies)
were unable to leave that day and were imprisoned by
the snow for the rest of the week. Just as those employ-
ees were unable to leave the plant, no one was able to
report for work at Respondent's premises and other
places of work throughout the entire State of Rhode
Island. The loss of workers' livelihoods prompted the
Governor to request that the President of the United
States declare a state of emergency for the State and that
Federal unemployment benefits be extended to all em-
ployees whose firms did not compensate them. The Gov-
ernor also urged that private industry in the State pay
their workers for the week's loss of wages.
It is conceded that Respondent paid all of its regular
full-time employees for work actually performed on
Monday, February 6, and for all other hours lost during
the week because of the snowstorm. The issue is whether
Respondent, as it argues, was genuinely motivated to
"do good" because of the emergency, or whether Re-
spondent was attempting to buy the election, as suggest-
ed by General Counsel, who has the burden of proving a
violation.
He supports his position on three grounds. First, there
is no showing that Respondent ever compensated its em-
ployees for snow days. However, it is clear that no
snowstorm ever hit Rhode Island with such ferocity, that
at no time were numerous employees snowbound in Re-
spondent's plant, and that this was a unique event.
Second, the General Counsel alleges that the payment
for the snow days occurred only 2 weeks prior to the
election and that Respondent's president, H. David He-
dison, commented, in reply to an employee's expression
of appreciation, that he hoped the people in the factory
remembered this when they voted in the election. In the
circumstances, the timing of the payment is not a factor
in determining whether the payment was malevolently
motivated. The storm closed the Respondent's plant for
the week of February 6, the decision to pay the employ-
ees was made the following week, and there is no show-
ing that payment was delayed for the purposes of influ-
encing votes. Even if the payment had been made short-
ly before the day it was made, I cannot say that a pay-
ment 2-1/2 weeks before the election would have been
any the less effective for the purpose of influencing votes
than the payment made only 2 weeks before. I find that
the timing of the payment was solely the result of the
time of the snowstorm and the time when the decision
was made. The comment of H. David Hedison is not, as
the General Counsel argues, necessarily indicative of Re-
spondent's intention to influence the election at the time
the decision was made to make the payment. Rather, it
indicates that, once having made the decision, at least
one of Respondent's management sought to show that
Respondent did not always act against the interests of
the employees. In any event, I view this conversation as
isolated and not representative of an illegal motive.
Third, General Counsel argues that Respondent's moti-
vation could not be humanitarian because no payments
were made to the "night shift workers, many of whom
_
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are temporary student employees, and ineligible to vote
in the election." The record does not directly support
this statement; but, assuming arguendo that it is true, it is
equally important that some night-shift employees were
eligible to vote. By not paying them, Respondent ran the
risk of antagonizing them, the antithesis of what the
General Counsel alleges that Respondent was attempting
to accomplish.
For these reasons, I find that Respondent did not vio-
late Section 8(a)(l) of the Act by paying wages for the
week of February 6 (par. 8(p) of the amended consoli-
dated complaint).
On February 27, LePere was in the carding depart-
ment and saw Hedison leading a television crew to
Cindy Chausse, one of the union antagonists. As one of
the crewmembers passed LePere's work area, LePere
asked him if he wanted to know why the employees
were trying to organize a union. While still talking, He-
dison walked over and asked LePere to repeat what she
had told the crewmember. LePere refused, and Hedison
complained that she was talking on his time and that was
not fair. When LePere refused to respond, Hedison said:
"If you want to stay here you better play fair."
The General Counsel alleges that this incident consti-
tutes an illegal interrogation and threat. I agree. Because
of Hedison's failure to testify, and in the context of these
facts, I infer that he heard all or part of LePere's conver-
sation which was directed at the employees' organizing
activities, he interrogated LePere about that conversa-
tion, and he threatened her with termination if she con-
tinued to discuss the Union. The record indicates no rule
against talking on the job, and Hedison's remarks clearly
imposed a new rule prohibiting discussion of union activ-
ities. His interrogation of LePere was thus clearly coer-
cive, in violation of Section 8(a)(1) of the Act (par. 8(q)
and (r) of the amended consolidated complaint).
During the week of the election, which took place on
Friday, March 3, and particularly March 1 and 2, Secu-
rity Guard Pollen stood immediately outside the door of
the plant cafeteria, leaning against the fence, and peering
into the cafeteria, during all of the break periods. Ac-
cording to Fitzpatrick, he never had done this before.
Respondent's defense was that Pollen's attendance was
necessary because of disputes which had arisen between
the pro- and antiunion groups of employees. The proof
does not persuade me that a threat of altercation was im-
mediate or that it required Pollen's intensive surveillance
during all the break periods.3 4
34 Because Pollen was Respondent's security guard and was responsi-
ble for insuring the peace, safety, and security of the plant, Pollen was
acting as Respondent's agent. Respondent is charged with two other vio-
lations of the Act by reason of Pollen's conduct. During the few days
prior to the election, Jalette claimed that Pollen repeatedly threatened
him with termination from employment ("I can't wait to escort you out
of here"). Pollen testified that Jalette pointed to a "yes" button that he
was wearing and said that he supposed that Pollen would now escort him
out of the plant; to which Pollen replied that he would do so any time
Jalette wanted him to. Jalette also testified that, in or about late March or
early April, Pollen questioned him about an unfair labor practice that had
been filed by the Union over the prior incident. Pollen testified that the
charge was untrue, particularly because he had no authority to fire
anyone and that Jalette agreed with him: however, Jalette testified that
he did admit that the unfair labor practice charge lacked merit.
Under established law, attempts to organize on an em-
ployer's premises are not wholly protected from the em-
ployer's scrutiny. As the Board stated in Porta Systems
Corporation, 238 NLRB No. 21 (1978), "[u]nion repre-
sentatives who choose to engage in their union activities
at the Employer's premises should have no cause to
complain that management observes them" See also
Milco, Inc., et al., 159 NLRB 812, 814 (1966), enfd. 388
F.2d 133 (2d Cir. 1968); Dumas, Inc. d/b/a Sterling Man-
ufacturing Company, 169 NLRB 892, fn. 1 (1968); Chem-
tronics, Inc., 236 NLRB 178 (1978). However, in ITT
Automotive Electrical Products Division, 231 NLRB 878
(1977), the Board held that there was no unlawful sur-
veillance when the observation was limited to a brief in-
spection at the outset of the handbilling to ascertain the
legality of the employees' activity. As a consequence, the
rule permitting surveillance does not give employer carte
blanche. See Ace Manufacturing Co., Inc., Division of A-T-
O, Inc., 235 NLRB 1023 (1978). On that basis, Pollen's
presence at the cafeteria on March 1 and 2 was more
than a brief inspection, and I am not persuaded that he
was there for justifiable business reasons. Respondent's
supervisors testified without contradiction that they reg-
ularly ate in the plant cafeteria. Clearly, their presence
would assure that altercations, if any, would speedily be
prevented. Pollen's watchful eye, I am convinced, was
not fixed on fights or threats of fights. Rather, he was
specifically directed by Marinelli (who did not testify) to
be there to thwart free discussion during the critical days
prior to the election. I thus find that Respondent violated
Section 8(a)(1) of the Act (par. 8(s) of the amended con-
solidated complaint).3 5
In support of paragraph 8(z) of the complaint, Mainte-
nance Department Supervisor Barrett testified that, 2
days before the election, he attended a meeting of the de-
partment heads, at which O'Brien told them that the
election campaign was right down to the wire and that
the supervisors should return to their departments and
talk to a few employees at a time about how much better
Respondent would be without the Union. O'Brien added
that caution should be thrown to the wind, that viola-
tions at that time did not mean anything, and that Re-
spondent could suffer with as many violations as they
could get. As a result, Barrett testified that he returned
to the maintenance department and told employees Ja-
lette, Cook, Norman Nault, and Steven Maziasz that, if
the Union got in, Hedison would not sign a contract,
they could go on strike, and they would lose their jobs.
Although O'Brien did not deny the instructions as re-
lated by Barrett, I nonetheless do not believe Barrett's
No matter whom I believe, and I am inclined to believe Pollen, if only
because Jalette seemed to me to be most hesitant and faltering in his testi-
mony, I do not find that Pollen's statements to Jalette could, in any sense,
be considered within the scope of his authority-that of a security guard
to insure that thefts were prevented and rules were obeyed and to report
on unusual events. Accordingly, I find that his statements, even if be-
lieved, are not binding on Respondent; and I dismiss pars. 8(t) and (jj) of
the amended consolidated complaint.
3s For similar reasons, I find that Respondent also violated Sec. 8(aXI)
of the Act by Dansereau's attendance in the cafeteria on January 16
during both break periods and lunch hour. However, under Porta Sys-
tems, supra, I do not find that Dansereau's surveillance of the leafletters
in the parking lot on March 10 violated the Act (par. 8(f) of the amended
consolidated complaint).
HEDISON MANUFACTURING COMPANY 819
testimony. Both Nault and Maziasz testified that Barrett
was on vacation on those days, and, it seems to me, it
was then incumbent upon the General Counsel to rebut
this very damaging testimony. The General Counsel did
not do so. Furthermore, I am not persuaded that Bar-
rett's testimony was at all realistic, given the fact that no
other activity as heinous as Barrett related was testified
to by anyone else, including Jalette, who did not cor-
roborate Barrett's testimony. Finally, because Barrett had
already reported to Graham that the Union's support in
the department was minimal, it seems very strange that
O'Brien would target the maintenance department for
the kind of threats to which Barrett testified. I dismiss
paragraph 8(z) of the amended consolidated complaint.
E. Respondent's Refusal To Bargain; the Layoff in the
Linking Department,; Further Rule Changes, and the
Layoff in the Press Department
1. The Respondent's refusal to bargain
I have previously found that, on January 11, the Union
demanded that Respondent recognize and bargain with it
as the exclusive bargaining agent of Respondent's pro-
duction and maintenance employees and that, on January
13, Respondent refused to do so and has continued to
refuse to do so. Because I find that the Union represent-
ed a majority of Respondent's employees on both Janu-
ary 12 and 21, the latter being used since the Union's
demand for recognition was a continuing demand, and
because I also find that the unfair labor practices com-
mitted by Respondent were so serious as to warrant the
issuance of a bargaining order, retroactive to the date
Respondent commenced upon its course of illegal con-
duct, a number of unfair labor practices already found
under Section 8(a)(l) and (3) and an allegation dismissed
under Section 8(a)(l) are unfair labor practices under
Section 8(a)(5).
a. The Union's majority
In order to prove the Union's majority status, the Gen-
eral Counsel introduced Respondent's Excelsior 6 list
which was stipulated to be all the members of the appro-
priate unit with the exception of certain individual em-
ployees whose names were circled thereon. In addition,
during the course of the hearing, stipulations were en-
tered into by the parties deleting the names of various
employees, adding the names of others, and setting forth
the dates when employees were hired or terminated em-
ployment and the dates when authorization cards were
signed or should be credited as having been signed. As a
result of all of the stipulations, the vast majority of the
appropriate unit was stipulated, as well as the vast major-
ity of the authorization cards.37 There remains for reso-
a6 Excelsior Underwear Inc., 156 NLRB 1236 (1966).
37 In accordance with the parties' stipulations, I have excluded from
the unit the following employees who terminated their employment on or
before January II: Dave A Akerly, Gracinda L. Brito, Diana L. Dutrem-
ble, Donna L. Gilbert, Dawn E. Graton, Debra L. Jones, Lillian M.
Leonard, Ann Marie Lescarbeau, Colleen A. MacKenzie, Robert P
Masse, Donna M. Pedro, Shirley Ross, James P. Rossi, James V. Scow-
craft, Judith L. Shaw, Lorraine D. Spoor, Linda L. Tetrault, Robert T
Truesdale, Jo Anne C. Tutt, and Theresa M. Walter, I note that in the
transcript the parties stipulated that Akerly was "hired" on January 4,
lution, however, the status of certain employees, one of
whom is alleged by the General Counsel to be a supervi-
sor, and whether particular cards should be counted. As
to these individuals, I make the following findings and
conclusions:
I include as a member of the appropriate unit Shoushan
Andriasian, whose name appears in Respondent's payroll
records for the weeks ending January 21 and 28, with no
indication that he was paid for those weeks. The General
Counsel contends that he should be excluded from the
unit, noting that: "Respondent offered no evidence as to
this individual's identity or his inclusion in the bargaining
unit." In the posture of this proceeding, particularly the
framing of issues as to the inclusion or noninclusion
within the unit of the "circled" names on the Excelsior
list, the burden was on the General Counsel to prove the
Union's majority status and to come forth with evidence
that the circled employees were not within the unit. The
General Counsel proved, admittedly by stipulation, that
many of the employees had been terminated by Respond-
ent prior to January 10. I see no reason to shift to Re-
spondent the burden of proving the employment status of
Andriasian. It may well be that Andriasian was not em-
ployed by Respondent during the critical period; howev-
er, on the present state of the record, I cannot exclude
him from the appropriate unit.
The General Counsel, on its own, raised an issue of
the validity of the card of Phyllis Ballou, who signed an
authorization card on November 25, 1977, but later re-
quested Fitzpatrick to return it. Respondent has taken no
position on this matter. Fitzpatrick notified Ballou that
she should call the union office if she wished to have her
card returned. Ballou took no action; I cannot find any
effective revocation in these circumstances, and therefore
credit her card.
The General Counsel objects to the inclusion in the
appropriate unit of Alice A. Beausoleil, Linda G. Beauso-
leil, Glenn R. Bruhn, Blanche Coccoli, Gloria T Horton,
Sandra A. Moreau, and Robert K. Wagner because they
were new employees hired to replace the employees laid
off on January 13. He argues that it would be inequitable
and contrary to Board law to expand the size of the unit
by including replacements for unlawfully laid-off union
1978. My notes indicate that he was "fired" on that day, a fact confirmed
by G.C. Exhs. 6(c) and 23. I correct the record accordingly.
I have also credited the authorization cards of Robert Plante and
Cheryl Enright, who, the same exhibits and G.C. Exh. 24 demonstrate,
terminated their employment after January 12 and before January 21.
There appear to be a number of individuals on the Excelsior list whose
status was not stipulated by the parties and whose names were circled on
the appropriate exhibit. I have no reason to doubt, from my examination
of the record, that they were employees of Respondent during the criti-
cal period. I therefore include them in my computations of the Union's
interest. I have also given credit for cards which were dated in January,
but with the wrong year (1977), which are not stale and, in any event.
should have been dated "1978" but for the oft-repeated error of people to
use the old year even after January I. In this connection, I note that the
union campaign did not commence until late spring of 1977. Finally, I
have taken into account the stipulations at pp. 825-830 of the official
transcript.
Finally, I include in the unit Alice Cote, who was alleged by the Gen-
eral Counsel to be a supervisor. I have previously found, supra, that I
may not review the Regional Director's finding that she is an employee. I
also exclude James Stemin as a member of the appropriate unit as of Jan-
uary 21, see fn. 9, supra.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adherents, citing Independent Sprinkler & Fire Protection
Co., 220 NLRB 941 (1975), enfd. 95 LRRM 2064 (5th
Cir. 1977). Under no circumstances may I include Coc-
coli, Horton, and Moreau. Because they were hired on
or about January 16, and their employment lasted only
day, they were never employed on either of the critical
dates involved herein. However, since I have found that
the decision to lay off employees was finalized no earlier
than January 12, that being the first date of employment
of Bruhn and Alice and Linda Beausoleil, I find that
they were not replacements of those laid off but were
new employees whose status was not tainted by the Jan-
uary 13 layoff. Wagner started in the epoxy department
on January 18. Because no one from the epoxy depart-
ment was laid off on January 13, I find that Wagner was
not a replacement for an 8(a)(3) discriminatee. Further, I
note that during the course of the hearing the General
Counsel objected to the inclusion of Frances Tall and
Gail Kelley. No objection was posed in the General
Counsel's brief, an omission which I assume to be by in-
advertence. However, because Kelley was also employed
in the epoxy department and Tall was employed in the
carding and boxing department, where there was no
layoff, I do not find that they were replacements and I
include them in the appropriate unit.
Respondent refused to stipulate that Grace Clifton
signed a card, since the signature on it was, in Hedison's
opinion, undecipherable. Joseph Pine solicited this card
in the factory cafeteria. He called Clifton to his table,
where he was sitting with Fitzpatrick, and told Clifton
he would like her to sign a card; Clifton agreed. Fitzpa-
trick asked her whether she knew what the union card
was all about. Clifton said she did; to which Pine asked
her whether she knew that both he and Fitzpatrick were
adherents of the Union. When Clifton answered that she
did, Pine gave her a card. Clifton had trouble filling it
out. Because the lunch break was ending, Pine gave Clif-
ton another card, asked her to sign it at the bottom, and
asked her permission, which she gave, for him to fill out
the rest of the card. Pine soon found that he did not
have sufficient information to fill out the card, so he
gave Clifton yet a third card to fill out. Later, when Pine
asked for the return of the third card, Clifton said that
she gave it to her supervisor.
Pine's reluctance in turning in the second card was
that it did not look right, but he finally turned it in at a
later date. (On the back of the card, there is a notation:
"Joe turned in 2/26.") Pine positively identified the card
as being signed by Clifton, and testified that it was
signed before the first snowfall, which the parties have
stipulated commenced on the evening of January 19 and
continued throughout January 20. The testimony of the
solicitor is sufficient to authenticate the card. Since there
has been no showing of any facts which otherwise
impugn the integrity of the card, I will deem it a valid
authorization as of January 19.
The General Counsel objects to the inclusion within
the appropriate unit of Evelyn Di Carlo, the floorlady in
the linking department, in which, in January 1978, there
were eight employees to whom she assigned work and
saw to it that they were performing correctly. She
earned $3.80 per hour, whereas the other employees
earned from $2.65 to $3 per hour. Di Carlo punched a
timeclock, was paid for overtime, and worked side by
side with the employees in the linking department. Sinis-
calchi, Di Carlo's supervisor, assigned work to her each
day and there was additional work on a shelf behind her
work area which was ticketed with dates for the comple-
tion of the work. Di Carlo assigned work in order, to
each employee as she would finish her previous job. The
only variance was, when there was a rush order, Di
Carlo made sure to give the job to a fast employee.
Di Carlo gave permission for employees to be excused
to go to the nurse or to make a phone call. If an employ-
ee thought that there was a mistake on a timecard and
that the employee's pay was inaccurate, the employee
consulted with Di Carlo, who in turn raised the matter
with Bolduc and asked him to investigate. Employees
who were sick telephoned and reported to Di Carlo,
who made reports to the plant nurse. Di Carlo spoke to
employees if they were not doing work properly and
told them to go faster. If she spoke to an employee sev-
eral times, without success, she reported the matter to
Siniscalchi; and Di Carlo could take an employee off one
job and put her on another.
The issue of Di Carlo's status is by no means clear cut.
However, she testified that she was a very "lenient boss"
and permitted the employees to do "almost anything" as
long as they got their work out. It was she who was
asked to bring the linking department employees to the
captive audience speech of March 2. It was she who re-
ported that her department was overloaded with work
and requested more employees. It was she who became
furious when two new employeees were hired at an
hourly rate higher than that being paid to employees
Fitzpatrick and Barbara Forget and who insisted that she
would go as high as she needed to, including Graham, in
order to obtain increases for her more senior employees.
These increases were granted a week later. It was she
who, on or about February 1, brought to the attention of
Gary Avedesian, the foreman of the linking department,
the bad attendance of three employees, with the com-
ment that their performance was not good. They were
terminated. It was she who gave permission for LePere
to talk with Fitzpatrick; and it was she, according to
Dansereau, who was supposed to stop employees from
visiting her department. It was she who in February
made Forget move from one machine to another so that
Fitzpatrick would not talk to Forget about the union
campaign-talk which Di Carlo said she would not tol-
erate. Finally, it was Di Carlo who laid off Fitzpatrick
and Monteiro in late March, discussed infra.
For all these reasons, I find that Di Carlo is a supervi-
sor.3 8
The General Counsel contends that Ruth Gannites was
not an employee of Respondent on either of the critical
dates at issue. Bolduc, Respondent's office manager, testi-
fied that the payroll department prepared weekly a pay-
roll form for Automatic Data Processing (ADP), which
'8 In so finding, I have considered the Regional Director's report and
recommendations finding Di Carlo to be an employee. However, the evi-
dence before me persuades me that Di Carlo exercised sufficient indicia
of supervisory authority and exercise of independent judgment that I will
not accord administrative comity to his report
HEDISON MANUFACTURING COMPANY 821
processed and computerized payroll forms and pay-
checks. Because of the constant changes of the composi-
tion of the employees, either because of terminations,
quits, layoffs, or leave of absences, or hires of new em-
ployees, the weekly form submitted by ADP was man-
ually changed by the payroll department to reflect cur-
rent payroll. Although it was not the function of the
payroll department to terminate or lay off personnel, it
was obviously its function to keep proper and up-to-date
records, if only to appease Hedison's dislike for the print-
ing of extra timecards for employees who did not report
to work because they had ceased being employees.
Accordingly, the payroll department considered an
employee as terminated only when so advised of the em-
ployee's status. Thus, as a customary practice, if there
had been no work for an employer for 2 or 3 weeks, the
bookkeeper prepared a list of these employees and for-
warded it to the personnel manager to ascertain why the
employees had not worked. Presumably, the personnel
manager would then advise the payroll department the
status of the employees. On the other hand, there were
occasions when the supervisor would mark "quit" on the
employee's timecard, at which time the payroll depart-
ment automatically entered the appropriate notation on
the ADP forms and the employee's name was removed
from the next weekly payroll report.
There is no question that the word "terminated" was
inserted next to Gannites' name on the ADP forms for
the payroll week ending January 21. Further, Gannites
did not work from the week ending December 3, 1977,
to the week ending February 6, 1978, when she worked
6-1/4 hours. Bolduc attempted to explain that, when she
was marked "terminated," that indication was inserted
for payroll records only and was not meant to indicate
that in fact Gannites had permanently severed her em-
ployment. However, the ADP records also show the no-
tation of "no pay" next to an employee's name when the
payroll department desired to indicate that the employee
did not work that particular week.
In light of Bolduc's testimony that the word "terminat-
ed" is inserted only when the payroll department is so
advised and that "no pay" could have easily been written
if no advice had been received, I conclude that Gannites
had been terminated and that she was not a member of
the appropriate unit on either of the critical dates. In so
deciding, I am aware that Gannites' personnel folder
does not indicate that she was terminated. I have also
considered Respondent's argument that Gannites was on
sick leave, but I find that it is unsupported by any evi-
dence.
Whereas Gannites' personnel file is silent, there is no
question that the personnel file of Joyce Green is marked
"quit" next to her initial employment noted as "from II/
2/77 to 12/30/77." Those notations, on the first line of
the exhibit, indicate that she was terminated from em-
ployment at that time. The file also shows, on the third
and fourth lines of her employment history, that Green
was rehired on May 24 and voluntarily quit on June 23.
Between those listings on her file, under her employment
history, is a line, otherwise not completed, listing her
rate of pay on January I as $2.65 per hour, that seems to
indicate that Green had some interim employment be-
tween November to December 1977 and May to June
1978.
That interim employment was confirmed by Bolduc,
read from other ADP forms ("Employee Earnings
Record to Date") listing on each page an employee's
year to date weekly pay-with one important discrepan-
cy. The records, as testified to by Bolduc, showed that
Green worked continuously during the payroll records
from the week ending November 5 through December
17, 1977. Bolduc also stated that she worked I day
during the week ending January 7 and did not work
during the week ending January 14. Apparently, she re-
turned to work the week ending January 21, when she
worked 5-1/4 hours, and she worked an additional 17-1/
2 hours during the week ending January 28, "for a total
of 22-3/4 hours during the first quarter of that year,"
Bolduc testified.
The total hours for the first quarter of 1978, as so re-
capitulated, being the total of the hours recorded in the
last 2 weeks of January 1978, leave no room for any
other work in the quarter; and I specifically discount
Bolduc's testimony that Green worked I day in the first
week of that month for the reason that the ADP records
do not record work by days, but only hours. If Green
did not work during the first week of January, and I so
find, then she would not have worked for Respondent
for 4 weeks ending with the week ending January 14
when "terminated" was written on the payroll authoriza-
tion sheet next to her name. The 4-week hiatus was in
line with Bolduc's testimony as to the mechanics of
checking with supervisors before notifying ADP to
remove a name from the payroll authorization sheet.
Further, Green's names is inserted in handwriting on the
payroll sheet for the week ending January 21, demon-
strating that her name had been removed by the payroll
department. Finally, the notation of Green's increased
pay from $2.60 to $2.65 on January I may be reconciled
as merely an indication that the hourly rate for the work
performed in late January was to be paid at that rate.
Since Green worked only 5-1/4 hours during the week
ending January 21, she was not during that week a regu-
lar, part-time employee, but was probably employed only
for a portion of I day; and I do not include her in com-
puting the majority status of the Union on either of the
critical dates.
The employment records of Lucy Joseph show that she
was steadily employed by Respondent from at least late
November 1977 through the end of the first quarter of
1978, with the exception of the week ending January 14.
On the payroll authorization sheet for that week, there
is, like Green, the notation "terminated." Based on this
record entry, the General Counsel argues that Joseph
should be excluded from the computation of majority
status at least for January 12 and 13. Although not
wholly free from doubt, I agree. There is nothing to sup-
port Bolduc's "assumption" that the entry was erroneous
and that the payroll department deviated from its policy
of writing "terminated" when informed to do so. Fur-
ther, I note that Joseph worked only 8 hours during the
week ending January 7, far less than the hours she had
worked weekly during December 1977; and it is not im-
probable that she terminated her employment during that
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week. Accordingly, because there is no proof to rebut
Respondent's own documents and entries, I find that
Lucy Joseph was not a member of the appropriate unit
on January 12.
LePere testified that she lost the authorization card of
Mary L. Kucharski. Kuscharski, LePere testified, had
signed it on January 11 or 12 and gave it back to
LePere, who had also given her a card to obtain from
her daughter, who was then sick at home. Kucharski re-
turned the signed card of her daughter within a day or 2
days. Since Linda Kucharski's card is dated January 12,
the General Counsel argues, from this evidence, that
Mary Kucharski's card must have been signed on Janu-
ary 11 and that this constitutes sufficient proof that her
authorization should be included for the purpose of de-
termining whether the Union represented a majority
during the critical dates of January 12 and 21, citing
Hedstrom Company, 223 NLRB 1409 (1976), enfd. in part
558 F.2d 1137 (3d Cir. 1977).
I hold that the General Counsel's proof is insufficient.
Without Kucharski's testimony, and with the loss of Ku-
charski's card, LePere's testimony amounts to no more
than unsupported hearsay of what Kucharski may have
intended. Hedstrom Company supra (authorized proof of
a lost card by the signer, mutually corroborated by the
solicitor). Without the testimony of the signer, the Gen-
eral Counsel's proof falls short.
For similar reasons, I do not credit the cards of either
Jane Lavoie or Marjorie Scanlon. It is axiomatic that,
where the General Counsel seeks to support the relief of
a bargaining order, the General Counsel has the duty to
prove that the Union obtained a majority in an appropri-
ate unit during a period when the employer committed
unfair labor practices which might impair the Union's
hope of ever reaching that majority again. The General
Counsel has failed to prove that Lavoie and Scanlon val-
idly designated the Union as their bargaining representa-
tive. The union authorization cards are in the following
form:
AUTHORIZATION CARD
FOR BETTER WORKING CONDITIONS AND
JOB SECURITY
Under the laws of the United States Government
employees have a legal right to organize and bar-
gain with their employer on wages and other condi-
tions of employment.
Name
Address
City----Phone--Zip--
Employer---- Job Title----
Wage ---- Soc. Security No----
Hours------Week -----
I designate and authorize the Rhode Island Workers
Union to act as my collective bargaining representa-
tive with my employer.
Date--Signature (written)- -----
ALL NAMES KEPT CONFIDENTIAL
Both Lavoie and Scanlon signed the card where
"Name" appears, but did not sign at the line "Signature
(written)" at the bottom of the card, under the authoriza-
tion and designation of the Union. Without more, I am
unable to find that either employee gave anything more
than certain information to the Union, and did not give
their authorization. The General Counsel argues that, be-
cause Scanlon attended at least one union meeting prior
to January 10, she must have designated the Union as
her collective-bargaining representative. Although it may
be true that attendance at a union meeting may show an
interest in the Union, that does not prove that she was
persuaded to take the final step of formally designating
the Union.
Finally, the General Counsel argues that, pursuant to
an agreement made at the hearing, counsel for Respond-
ent spot checked Scanlon's card for its authenticity and
validity and individually interviewed Scanlon; as a result,
the General Counsel argues, the burden of going forward
with proof that Scanlon did not intend to designate the
Union shifted to Respondent. I know of no legal authori-
ty for this proposition and reject it. Indeed, on the basis
of the record herein, the issue of the validity of the card
was specifically acknowledged by the General Counsel
as unresolved. The General Counsel did elicit proof that
Lavoie's card was signed in the ladies' room under cir-
cumstances where she specifically indicated her intent to
authorize the Union to act as her collective-bargaining
agent. I regard that testimony as unsupported hearsay.
Without the testimony from the signer of the authoriza-
tion card, in these circumstances, I hold that the signer's
intent cannot be proved by only the solicitor's testimony.
The General Counsel contends that Doreen A. Lemen-
ager was not a regular part-time employee of Respondent
during the critical period. Respondent maintained two
regular part-time shifts: (1) a mother's shift, 5 days a
week, normally from 9 a.m. to 3 p.m. and, depending on
the individual, from 5-1/2 to 6 hours a day or 27-1/2 to
30 hours a week; and (2) a night shift, 4 days a week,
normally from 6 to 10 p.m., working a maximum of 16
hours a week. However, most of the employees on the
latter shift are high school students and work each week
in sequence only for 2 to 3 days, or 8 to 12 hours per
week. Ms. Lemenager's work records showed that she
was employed for the following hours during the follow-
ing weeks: 12 hours, week ending December 31, 1977; 4
hours, week ending January 7, 1978; 17-3/4 hours, week
ending February 18, 1978; 14 hours, week ending Febru-
ary 25, 1978; 7-1/4 hours, week ending March 4, 1978.
Her records indicate that she was rehired by Respondent
on May 1, 1978, and her first employment was the week
ending May 6. I conclude that she was not a regular
part-time employee. At best, her employment was spo-
radic and irregular. As of the critical period, I do not
consider that she was a regular employee of Respondent
for the purpose of computing whether the Union repre-
sented a majority to warrant a Gissel bargaining order.
By reason of the foregoing, I annex as "Appendix II"
[omitted from publication] a list of all the employees
who were in the appropriate bargaining unit on January
HEDISON MANUFACTURING COMPANY 823
12 and 21, the two dates relied upon by General Coun-
sel, incorporating my findings of the validity of the au-
thorization cards and of the inclusion of the employees in
the unit. I conclude that, as of January 12, 191 employ-
ees of 375 employed by Respondent authorized the
Union to represent them as their exclusive bargaining
agent. Further, as of January 21, I conclude that 195 em-
ployees of 364 employed by Respondent authorized the
Union to represent them as their exclusive bargaining
agent.
b. The need for a bargaining order
It does not require extensive argument to support a
Gissel bargaining order as the appropriate relief herein.
Respondent commenced its illegal campaign against the
Union as soon as the Union publicly showed its interest
in representing Respondent's employees. At first, it inter-
rogated, threatened, and polled employees. Then, it pre-
cipitously laid off 21 employees, all union supporters
with two exceptions, and those two persons who were
caught in the web of their fellow employees' union ad-
herence were speedily recalled. The layoffs were fol-
lowed in rapid succession by new rules limiting the
rights of employees to publicize freely, by leaflets and
word of mouth, by limiting workers' rights to access to
their fellow workers, by imposing new conditions of
work, by promising benefits and threatening to crush the
Union, and ultimately by discharging union adherents
solely because they dared to seek to organize themselves.
Faced with the Union's demand for recognition and bar-
gaining, Respondent steadfastly refused to give the
Union any attention, insisting upon making up its own
rules as it went along, changing its layoff policy not once
but twice, discussed infra, disdaining bargaining about
such changes, and insisting upon the wholesale flouting
of the Act.
With the multitude of unfair labor practices existing
herein, including the layoff and discharge of its employ-
ees and the refusal to bargain with the Union, Respond-
ent has committed separate violations which go to the
very heart of the Act. Of equal importance, many of the
separate violations, and certainly the violations in their
totality, are of such gravity that it is impossible to allay
their effects by the normal cease-and-desist order, the re-
quirement to make the employees whole for their loss of
pay, and the direction of a new election. In these circum-
stances, no fair election can be held. Rather, the union
authorization cards are a fair test of the employees' de-
sires, and a bargaining order is appropriate. Although
Respondent embarked on a clear course of unlawful con-
duct on January 10, the Union attained a majority status
only on January 12, and a bargaining order shall issue as
of January 12. Donelson Packing Co., Inc., supra.
2. A reconsideration of miscellaneous 8(a)(1)
allegations
Because Respondent's bargaining obligation com-
menced on January 12, Respondent was, on and after
that date, obliged to recognize and bargain with the
Union on all matters affecting the wages, hours, and
other terms and conditions of employment of its employ-
ees and was not legally empowered to change unilateral-
ly any terms and conditions of employment. I have held,
supra, that Respondent unilaterally changed its rules re-
garding employees' visitation to other work areas and
employees' use of bulletin boards, took away chairs in
the central routing department, solicited grievances and
the formation of an employee advisory committee, and
threatened never to bargain with or sign a contract with
the Union-all for the purpose of dissuading employees'
support of the Union in violation of Section 8(a)(l) of
the Act. Because Respondent committed these acts when
it was obliged to bargain with the Union as the sole and
exclusive representative of Respondent's employees, I
find that Respondent also violated Section 8(a)(5) and (1)
of the Act (pars. 8(e), (k), (o), (bb), (cc), (dd), (ee), (hh),
and (ii); 20(a); 22(a) of the amended consolidated com-
plaint). 3 9
Further, although I found that the grant of one week's
wages to all employees for the week of February 6 did
not constitute an independent violation of Section 8(a)(1)
of the Act under the theory espoused by the General
Counsel, I find that Respondent unilaterally granted the
benefit without consultation and bargaining with the
Union in violation of Section 8(a)(5) and (1) of the Act
[paragraph 8(p) of the amended consolidated complaint].
Clearly, the change of terms and conditions of employ-
ment, even for the better, is a subject of bargaining.
3. The layoff in the linking department
On March 7 Lou Marinelli, the supervisor of the link-
ing department, announced at a meeting of his employees
that work was slow and that he was scheduling a layoff
which would be staggered between two groups, the first
of which was laid off for 3 days, from March 8-10. Fitz-
patrick, Laycie Monteiro, and Maria Dorquilone were in
the second group and were laid off for 5 days, from
March 13-17. During the following week commencing
March 20, no employees were laid off.
However, on Friday, March 24, Di Carlo announced
that the department was going to have another layoff
and announced to Fitzpatrick that it was her turn. She
and Monteiro, who was the only employee who had
signed a union authorization card, were laid off from
March 27-31. As a result, Fitzpatrick, who testified that
she had more seniority in the department, and Monteiro
were laid off a total of 10 days, whereas the other em-
ployees in the department were laid off for only 3 days.
The General Counsel alleges that that discrepancy was
due to the support of both Fitzpatrick and Monteiro for
the Union. Respondent offers little factual defense, con-
tending that a layoff was justified; that Respondent could
not have known that Fitzpatrick and Monteiro were the
only employees who supported the Union; that these two
employees were treated no differently from any other
employee in the department; and that it is "inconceiv-
able" that, if Respondent had desired to discriminate, it
would have laid off any other employees.
3 I do not find that Respondent's refusal to permit Ackaway access to
other parts of the plant-a change of the conditions of her employment-
violates Sec. 8(a)(5), because her job in the sample room is not within the
unit as agreed by the parties. Thus, Respondent had no duty to bargain
about that change.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts remain that Fitzpatrick was a known union
adherent and that she and Monteiro were treated dispa-
rately. In these circumstances, the disparate treatment of
these two employees was the very antithesis to a stag-
gered layoff, which is normally intended to equalize the
effect of declining work upon the employees in the de-
partment. Respondent's conduct may have been more
understandable if the layoff had lasted only until March
17, despite the fact that some employees would have
borne a little more of the adverse impact than others.
But "stagger" means "to alternate," and I find no expla-
nation for Di Carlo's selection of the Fitzpatrick group,
which had more recently been laid off, rather than the
first group which had lost fewer days of employment.
Because of Respondent's failure to explain its actions, I
am constrained to find that the staggering was distinctly
weighed against Fitzpatrick, a known union adherent,
and that Monteiro, the only other union supporter in the
department, either known or unknown to Respondent,
was discriminated against with her. I find that Respond-
ent violated Section 8(a)(3) and (1) of the Act (par. 9(a)
of the amended consolidated complaint).
Furthermore, Respondent failed to bargain with the
Union either about the decision to lay off employees in
the linking department or about the effects of that deci-
sion. It may well have been that bargaining may have
forestalled a layoff, or may have resulted in temporary
transfers of employees to other departments, or at the
very least may have spread the loss of work evenly
among all the employees in the department. Instead, Re-
spondent decided, willy-nilly, to proceed with a different
form of layoff from that which it utilized on January 13,
albeit perhaps with the intent of curing some of the infir-
mities of the January 13 layoff. Unilateral decisions, of
course, are not what the Act is all about. The Act en-
courages bilateral discussions, full collective bargaining,
give and take, and the mutual and amicable adjustment
of all issues which affect employees' wages and hours,
and other terms and conditions of employment.
Respondent, however, never gave collective bargain-
ing a chance to operate. As a consequence, I must find
that Respondent also violated Section 8(a)(5) and (1) of
the Act by unilaterally laying off the linking department
employees in March. For the same reasons, Respondent
committed the same violations of the Act in its unilateral
layoffs of January 13.
4. Later changes of rules, practices, and incentive
rates
Two later rule changes are attacked by the General
Counsel. One involved the prohibition of the use of
radios by Carr and Ivory Clements in July. Their super-
visor, Robert Clements, said that O'Brien had said that
the radios were unsafe because a person could trip over
their cords and that they were too loud. Carr claimed
that they were not unsafe because the cords were placed
along the air pipes on the floor in the press department
and that, in any event, no one walks there. As to their
loudness, Carr noted that Respondent had a sound
system piping music throughout the plant and that the
radios in central stores, about 30-35 feet away, could
clearly be heard on many days. The other rule, promul-
gated on or about August 8, prohibited the use of the
pay telephones at any time except the morning and after-
noon breaks and lunch room. Previously, employees
made calls during working hours, although they prob-
ably were required to ask for permission. Di Carlo testi-
fied that she would be asked for permission to make tele-
phone calls; and O'Brien stated that one of the reasons
for enacting the written rule (without any positive state-
ment that there had been an old oral rule-"I'm sure
there must have been one") was that the telephone was
being used without permission.
Although it is obvious that both Carr and Clements
were union adherents, the evidence is insufficient to sup-
port the finding that they were selected because of their
union activities. The record does not reveal whether
there were many players of radios in the press depart-
ment, thus indicating disparate selection of them, or
whether the users of radios in central stores were union
adherents. Further, although I impute to Respondent
knowledge of the purpose of Carr's telephone call that it
was related to the appearance of Assistant Foreman
Moreau as a witness in this proceeding, because Moreau
asked Carr to place the call, I am not persuaded that the
purpose of the rule change was to hinder Carr's union
activities. However, I do find that Respondent had a
duty to bargain about any changes of past practices and I
am convinced that there was a practice to use pay tele-
phones and to play radios. Accordingly, the unilateral
change of those past practices constituted a violation of
Section 8(a)(5) and (1) of the Act (par. 8(cc) of the
amended consolidated complaint).
In the linking department, as well as other departments
of Respondent's factory, workers were paid on the in-
centive basis. A certain standard was set for the produc-
tion of various items. If an employee exceeded those
standards, incentive wages would be paid. Fitzpatrick
credibly testified that the standards underwent many
changes during the end of April or the beginning of May
and that the quotas had been raised so that it made it
more difficult for employees to earn incentive wages.
Peter Larson admitted that he changed incentive rates in
the linking department in early 1978 and that, upon
taking new timestudies, rates were changed to correct
errors and that standards were regularly updated, de-
pending upon the experience in the department and on
the particular job. Since the raising and the lowering of
standards directly affected the earnings of the involved
employees, Respondent had the duty and obligation to
bargain with the Union about such changes and violated
Section 8(a)(5) of the Act by failing to bargain with the
Union (par. 20(c) of the amended consolidated com-
plaint).
5. The June 2 layoff
On June 2, Respondent laid off from the press depart-
ment Lisa Barbeau, Leslie Barbeau, Theresa Dolinski,
Suzanne Lariviere, Shirley Leonard, Annette Philopo-
vich, Beverly Lafferiere, Theresa Gaulin, Jane Lavoie,
Linda Archambault, Marilyn Jellison, Carol Durand,
HEDISON MANUFACTURING COMPANY 825
Mary Kucharski, and Marion Lymburner.4 0 The General
Counsel alleges that this layoff was in violation of Sec-
tion 8(a)(5) of the Act because Respondent selected these
individuals by their departmental seniority, instead of
their company seniority which had been customarily
(albeit often breached) used as a guide. Further, the Gen-
eral Counsel alleges that the above-named employees
were required to forfeit their seniority and recall rights
and to accept lower wages as conditions to transferring
and avoiding layoff and, because the employees refused
to accept these conditions, Respondent laid them off.
There is no factual issue raised by Respondent that the
employees were offered transfer to the soldering depart-
ment (both bench and oven soldering) and to the epoxy
department, and that the results of the transfer would be:
1. The employees would be assigned new departmental
seniority in the department to which they transferred.
2. The employees would lose their seniority in the
press department and would not be recalled to the press
department once it picked up work.
3. The employees would be treated as new employees
in the departments to which they transferred, at a rate
commensurate thereto, so that many of the employees
would be required to take a pay reduction.
The General Counsel further alleges that the condi-
tions imposed upon these employees were in violation of
Section 8(a)(5) because they had never been imposed
before and should have been bargained about with the
Union, and in violation of Section 8(a)(3) and (1) of the
Act because they constituted an attempt to break up an
admittedly, strongly union-oriented department and to
discourage concerted activities protected under Section
7. The latter allegation arises from the fact that, several
weeks before, the press department employees bitterly
complained to O'Brien about accidents caused by the
lack of safety guards on the press machines and the
speedup of operations resulting from the incentive
system instituted in the department. 41
I do not find that the June 2 layoff had anything but a
peripheral relationship to the conditions of the offer of
transfer. Rather than accepting the complaint's allegation
that Respondent "did lay off these employees because
they refused to accept these conditions" (par. 14(a)), I
believe Respondent's witnesses and find that Respondent
laid off these employees because there was no work in
the press department. I note that the General Counsel
40 On June 2, Kucharski was on an extended sick leave, and Archam-
bault and Lymburner were both disabled and receiving orkmen's com-
pensation benefits. However, it is obvious that when, if ever, they recov-
ered from their illness or disability, there would have been no jobs availa-
ble to them as a result of the layoff
41 In his brief. the General Counsel contends for the first time that the
meeting with O'Brien constituted "direct negotiations with employees at
a time when the Union had established its representative status" in viola-
lion of Sec. 8(a)(5 ) of the Act. Although the matter was fully litigated-
indeed, there seems to be no dispute about the meeting and its contents-
and thus ripe for disposition, I find that, in the circumstances herein, the
meeting did not violate the Act. The General Counsel contended, oer
and over again, that the press department was strongly union-oriented
and that, in fact, one of the reasons for the layoff and the conditions im-
posed was to break up that department Attending the meeting was Carr.
who had previously been identified as among the union leaders The em-
ployees urgently requested the meeting and made no reques for the pres-
ence of their union representatives I cannot fault O'Brien for dealing
with them immediately to resolve their complaints
has not questioned that there was no work, despite the
fact that he subpenaed many of Respondent's records,
presumably in an effort to prove otherwise. Further, the
proof elicited does not demonstrate that the layoff was
the result of the department's support for the Union or
its concerted activities.
That Respondent utilized department rather than com-
panywide seniority in selecting employees for layoff
made no practical difference. The only employees con-
ceivably affected were Norbert Moreau, an assistant
foreman who had less seniority but was nonetheless a su-
pervisor (even though his name was included on the se-
niority list), and Leslie Barbeau, whose companywide se-
niority dated from August 29, 1976, but whose depart-
ment seniority was computed to commence on May 5,
1978.
The General Counsel argues that, if Barbeau had been
given her companywide seniority, she would not have
been laid off. O'Brien, however, credibly testified that he
intended a layoff of all press department employees who
had less seniority than Daniel Herron, a tool setter,
whose seniority was dated from August 25, 1976. 1 find
that the General Counsel has failed to prove by a pre-
ponderance of the credible evidence that the department-
al seniority affected the decision to lay off Leslie Bar-
beau.
However, for other reasons, I find that Respondent
violated Section 8(a)(5) of the Act by laying off the press
department workers. By unilaterally imposing a layoff
which affected the rights of 14 individuals to gainful em-
ployment, Respondent acted in utter derogation of its
duty and obligation to bargain with the Union. In Well-
man Industries, Inc., 222 NLRB 204, 206 (1976), the
Board stated:
In the prior Wellman case [211 NLRB 639
(1974)], among the Respondent's actions which the
Board found violative of Section 8(a)(1) and (5) of
the Act was its unilateral laying off of employees. It
follows that the Respondent's similar action in the
instant case is equally violative. The same must be
found as to the unilateral transfers, reductions in
pay or classification, and the changes in the on-call
and the shift rotation systems. All involved terms
and conditions of employment of employees in the
bargaining unit, on which the Union was entitled to
be consulted prior to their institution. N.L.R.B. v.
Benne Katz, etc. d/b/a Williamsburg Steel Products,
Inc., 369 U.S. 736 (1962); Cloverleaf Cold Storage
Co., 160 NLRB 1484 (1966); Chevron Oil Co., 168
NLRB 574 (1967); Legato Industries, Inc., 194
NLRB 999 (1972); Capital Electric Power Association,
171 NLRB 262 (1968); Southwestern Pipe, Inc. v.
N.L.R.B., 444 F.2d 340 (C.A. 5, 1971).
The basic defense interposed by the Respondent
as to those actions is that they were economically
or operationally motivated, and taken in good faith.
Such a defense does not excuse unilateral action on
matters within the authority of the bargaining repre-
sentative. Economic or operative motivations do
not excuse unfair labor practices. The authority,
duties, and prerogatives of a bargaining representa-
-
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive are dictated by the statute, and they are not
subject to diminution or modification because of an
employer's good faith or economic necessity. 5 In
any event, the economic or operational factors did
not require the Respondent to ignore the Board's
certification and make the changes unilaterally.
That choice the Respondent made voluntarily on its
own initiative.
As the court of appeals said in the case of N.L.R.B. v. Star
Publishing Co., 97 F.2d 465, 470 (C.A. 8, 1938):
The respondent further contends that it was necessary to
make the transfer, and thus engage in the unfair labor practice,
because its business would otherwise be disrupted, and there-
fore, under all the facts, the transfer was excusable. We think,
however, the act is controlling. The act prohibits unfair labor
practices in all cases. It permits no immunity because the em-
ployer may think that the exigencies of the moment require in-
fraction of the statute. In fact, nothing in the statute permits or
justifies its violation by the employer.
Similarly, here, Respondent totally ignored the
Union's demand for recognition and bargaining and, on
its own initiative, unilaterally determined that a layoff
was necessary, imposed the layoff based on new princi-
ples of seniority, and unilaterally offered a way for em-
ployees to escape from the loss of total employment-all
without bargaining with the Union. No matter whether
there was work in the press department or not, Respond-
ent has violated Section 8(a)(5) of the Act. In addition,
the recall of employees from the layoff constitutes a fur-
ther violation of Section 8(a)(5) with respect to Leslie
Barbeau. The unilateral change of seniority from the date
of her commencement of employment to the date that
she transferred into the press department caused her to
be placed at the bottom of the seniority list, rather than
at the top. This resulted, at the time of the hearing, in
the recall of employees Jellison on August 28 and Lisa
Barbeau, on September 5, rather than Leslie Barbeau,
who should have been, but was not, recalled first.
IV. THE OBJECTIONS TO THE ELECTION
I have found that, between the date of the filing of the
petition for and the date of the election, Respondent
committed serious unfair labor practices which consti-
tute, in part, the objections filed by the Union, quoted
supra. Each of the unfair labor practices falling within
that period constitute conduct affecting the election.
In addition to those allegations, there was referred for
hearing in the instant proceeding the additional allega-
tion of the Union, in support of Objection 4, that there
were "incidents wherein supervisors were stationed in
the corridors during the election, immediately outside
the voting area, as well as evidence of an incident
wherein an eligible voter was driven by the employer
[Respondent] from the Lincoln, Rhode Island voting site
to the Providence, Rhode Island voting site." There was
no testimony offered regarding the driving incident.
In support of the other objectionable conduct, Fitzpa-
trick testified that she was an observer for the Union in
the March 3 election and specifically functioned as a
runner to bring employees to the factory cafeteria, which
was the polling place, from various departments, accom-
panied by an observer designated by Respondent and an
agent of the Board. During the course of the voting in
the factory cafeteria from 1:15 to 4:20 p.m., she testified
that she saw Hedison once, about 30 feet from the cafe-
teria in the finished goods corridor, standing and looking
around. She was unclear whether she was leading a
group to the voting place or away from the voting place
back to their department. My examination of the blue-
prints of the premises convinces me that, even if Hedison
were standing in the corridor, Fitzpatrick would not
have seen him for more than the time it took her to walk
approximately 30 feet. The encounter was, at best, brief
and isolated.
On another occasion she stated that she was in the
wrapping and packaging department and looked out to
finished goods corridor where Marinelli, Graham, Calla-
han, and Bittner were standing. This was about 90 feet
away from the polling place. Fitzpatrick testified that she
said to the Board agent that every big boss in the place
was standing there and that he had to do something
about it.
I am convinced that she confused this incident with
the prior incident, as to which O'Brien testified that
there was one occasion that afternoon, at approximately
2:30 or 3 p.m., he and Hedison were conversing outside
O'Brien's office in the central routing department. Short-
ly thereafter, the Board agent rushed over and asked
them to get out of there and stay out of sight. They had
been there for approximately 2 to 3 minutes and no one
was passing through the corridor on the way to the poll-
ing place. When told by the Board agent to leave, they
did so. I do not believe that the presence of O'Brien and
Hedison for a brief period of time, before leaving pursu-
ant to the Board agent's instructions, and the grouping of
three supervisors in a corridor 90 feet away from the
polling place for an indeterminate period of time consti-
tute conduct affecting the results of the election. I there-
fore overrule this portion of Objection 4.
Despite my findings of objectionable conduct, because
I have recommended that a bargaining order issue, I rec-
ommend that the election be set aside, that Case I-RC-
15542 be dismissed, and that all proceedings in connec-
tion therewith be vacated.4 2
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Rhode Island Workers Union is a labor organization
within the meaning of Section 2(5) of the Act.
4 The Ideal Electric and Manufacruring Company, 134 NLRB 1275
{1hl); rading Port. Inc., 219 NLRB 298 (1975).
- ------
HEDISON MANUFACTURING COMPANY 827
3. All full-time and regular part-time production and
maintenance employees of Respondent employed at its
11 Wellington Road, Lincoln, Rhode Island, and 116
Chestnut Street, Providence, Rhode Island, facilities, in-
cluding leadpersons-floorladies and plant clerical employ-
ees, but excluding all office clerical employees, technical
employees, professional employees, salespersons, seasonal
employees, guards, foremen, assistant foremen, and all
other supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 8(c) of the
Act.
4. On or about January 12, 1978, and at all material
times thereafter, the Union represented a majority of em-
ployees in the appropriate unit, and has been the exclu-
sive representative of said employees for the purpose of
collective bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing to bargain with the Union since January
12, 1978, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(aX5) and (1) and 2(6) and (7) of
the Act.
6. By imposing a new rule prohibiting employees from
visiting their fellow employees in other departments
during morning, afternoon, and lunch break periods and
threatening employees with discipline for violation of
that rule; by imposing a new rule prohibiting employees
from posting union-related or union literature on Re-
spondent's bulletin boards and threatening employees
with discipline for violation of that rule; by granting a
week's wages to certain of Respondent's employees for
the week of February 6, 1978; by promising employees
advancement and other benefits and improvements in
order to discourage their union activities; by soliciting
employees to adjust their grievances for the purpose of
dissuading employees from joining, assisting, or support-
ing the Union; by changing incentive rates and standards;
by changing the method for determining the seniority of
its employees; by imposing new rules prohibiting the
playing of radios and the use of pay telephones during
working hours-all without bargaining with the Union-
Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning
of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.
7. By interrogating employees concerning their union
activities or the union activities of their fellow employ-
ees; by asking them if they or their fellow employees had
signed union authorization cards; by asking employees to
spy on the union activities of their fellow employees; by
threatening employees that Respondent would close if
the Union were successful in organizing Respondent's
employees; by threatening employees with discharge for
engaging in union activities; by disciplining an employee
because he engaged in union activities; by polling em-
ployees about their union sympathies; by illegally sur-
veilling the union activities of employees; by discharging
Supervisor Gary McKiernan as a cover for penalizing
employees for their union activities; by restricting em-
ployee access to work areas in order to discourage union
activities; by threatening employees with the withholding
of wage increases from employees in order to discourage
their union activities; by telling their employees that Re-
spondent would never bargain or sign a contract with
the Union, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
8. By discharging James Ferreira, Glen Hutloff,
Thomas Lawton, and Russel Moison on January 31,
1978, and thereafter by refusing to reinstate them, for en-
gaging in union activities and for joining and assisting
the Union, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
9. By unilaterally laying off Daniel Bedard, Dan Carr,
Mark Caya, Annette Chicoine, Ivory Clements, Thomas
Lawton, Rachel Leduc, Deborah Marsella, Thomas
Rattie, Theresa Robertson, Susan Sherman, Chery L.
Silva, Luba Green, Anthony Lopes, Maurice Kujawski,
Sandra Rattie, Helen Dufresne, Katherine Bourque,
Helen Rondeau, Blanche Descy, and Suzanne Lariviere
on January 13, 1978, and Tracey Fitzpatrick and Laycie
Monteiro in March 1978, and thereafter refusing to rein-
state certain of them, without bargaining with the Union
about the decisions to lay off employees and the effects
thereof, and for engaging in union activities and for join-
ing and assisting the Union, Respondent has engaged in
and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(5), (3), and (1)
and 2(6) and (7) of the Act.
10. By unilaterally laying off, without bargaining with
the Union about the decision to lay off and its effects,
Lisa Barbeau, Leslie Barbeau, Theresa Dolinski, Suzzane
Lariviere, Shirley Leonard, Annette Philopovich, Bever-
ly Lafferiere, Theresa Gaulin, Jane Lavioe, Linda Ar-
chambault, Marilyn Jellison, Carol Durand, Mary Ku-
charski, and Marion Lymburner, on June 2, 1978, and
thereafter refusing to reinstate many of them, and specifi-
cally refusing to reinstate Leslie Barbeau on August 28,
1978, and thereafter, without bargaining with the Union,
Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning
of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.
Ii. Respondent has not violated the Act in any other
manner which warrants a remedial order.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take appropri-
ate affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent, on January 13, 1978,
laid off Daniel Bedard, Dan Carr, Mark Caya, Annette
Chicoine, Ivory Clements, Thomas Lawton, Rachel
Leduc, Deborah Marsella, Thomas Rattie, Theresa Rob-
ertson, Susan Sherman, Cheryl Silva, Luba Green, An-
thony Lopes, Maurice Kujawski, Sandra Rattie, Helen
Dufresne, Katherine Bourque, Helene Rondeau, Blanche
Descy, and Suzanne Lariviere; that Respondent, on Jan-
uary 30, 1978, discharged Gary McKiernan; that Re-
spondent, on January 31, 1978, discharged James Fer-
reira, Glen Hutloff, Thomas Lawton, and Russell
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moison; and that Respondent on June 2, 1978, laid off
Lisa Barbeau, Leslie Barbeau, Theresa Dolinski, Suzanne
Lariviere, Shirley Leonard, Annette Philopovich, Bever-
ly Lafferriere, Theresa Gaulin, Jane Lovoie, Linda Ar-
chambault, Marilyn Jellison, Carol Durand, Mary Ku-
charski, and Marion Lymburner--all in violation of the
Act--I shall recommend that Respondent be ordered to
offer immediate and full reinstatement to each of them, if
it has not already done so, 43 to their former positions or,
if no longer available, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges; and make each of them and Tracey Fitz-
patrick and Laycie Monteiro4 4 whole for any loss of
earnings or any monetary loss that they may have suf-
fered from the date of the discharge or layoff, as the case
may be, as a result of Respondent's unlawful conduct,
less interim earnings, if any. The amount of backpay
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), together with in-
terest thereon as computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).45
As indicated above, having found that a Gissel order is
warranted, I shall recommend that Respondent cease and
desist from refusing to bargain with the Union, retroac-
tive to January 12, 1978, and, upon request of the Union,
bargain with it and, if an understanding is reached,
embody such understanding in a signed agreement. I
shall also recommend that Respondent cease and desist
from laying off or offering terms and conditions for
avoiding layoff or making changes of terms and condi-
tions of employment of employees in the bargaining unit,
including changing the method for determining seniority
of its employees without bargaining with the Union
about the matter. In addition, I shall recommend that, if
requested by the Union to do so, Respondent rescind the
unilateral layoffs, any changes to the incentive rates and
standards, and the new rules regarding posting of notices
on bulletin boards, visitation to other departments during
lunch and break periods, the playing of radios, and the
use of pay telephones during working hours.
It is possible that Respondent's violation of unilaterally
laying off employees on June 2 resulted in no loss of em-
ployment or earnings to employees; if it did, the employ-
ees are entitled to compensation therefor, and effectu-
ation of the policies of the Act requires it. Because I
have found that there was a lack of work in the press
department on June 2, it is unclear whether any or all
the employees affected by Respondent's unilateral ac-
tions are consequently and ipso facto entitled to full re-
muneration. Although Respondent's policy was to trans-
fer employees temporarily to other departments when
work was "slow," the record does not make clear
whether that policy kept employees completely insulated
from a layoff at a later date. Some employees, like Ivory
Clements, were laid off from 4-6 weeks, according to
4 Fredemanl's Caicasieu Locks Shipyard, Inc., 206 NLRB 399 (1973)
44 Fitzpatrick and Monteiro were reinstated to their former positions
after the week of March 27; therefore, no order requiring their reinstate-
ment is necessary.
45 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
In light of 14' Carter Maxw'ell, d/b/a Pioneer Concrete Ci., 241 NL.RB
No. 31 (1979), the General Counsel's motion to increase the interest rate
is denied.
Carr. Furthermore, if Respondent had bargained with
the Union, the parties may very well have reached an
agreement that there would be no layoff at all, or that
other employees would have been selected for layoff, or
that only some of the employees would have been laid
off. It may well be that, if there had been bargaining, a
course which Respondent wholly rejected, or if Re-
spondent's past practices justified a transfer, the employ-
ees would have been permitted to transfer to the epoxy
or soldering departments without any of the conditions
which Respondent unilaterally imposed, as was the case
with two of the casting department employees laid off on
or about June 12.
To set forth at this stage the result of such negotiations
and the past practices of Respondent is premature.
Rather, the questions of whether any particular employ-
ee would have been laid off, but for the unfair labor
practice, and for what period of time, and entitled to re-
imbursement and, if so, in what amount, are questions to
be resolved in a compliance proceeding, if the parties are
unable to reach an agreement on such issues. Ramos Iron
Works, Inc. and Rasol Engineering, 234 NLRB 896
(1978); Wellman Industries, Inc., 222 NLRB 204, 208
(1976); Cloverleaf Cold Storage Co., 160 NLRB 1484,
1493-95 (1966). Notwithstanding the above, it is clear
that the unilateral imposition of department, rather than
plant, seniority resulted in Respondent's failure to recall
Leslie Barbeau on August 28, 1978, and I recommend
that she be made whole for all lost wages and benefits
from that date on, in addition to such other backpay she
may be entitled to.
It is clear that the layoff of Fitzpatrick and Monteiro
commencing on March 27, 1978, made them lose a full
week's wages. They must be made whole for the same.
Whether they are entitled to further backpay is a matter
which is best left to the complaince stage of this pro-
ceeding.
Because Respondent has unilaterally decreased incen-
tive rates and increased incentive standards since January
12, 1978, it is most likely that many employees have lost
incentive pay as a result. I shall recommend that those
employees be made whole for their losses.
Because of the character of the unfair labor practices
found herein, the recommended Order provides that the
Respondent cease and desist from in any other manner
interfering with, restraining and coercing employees in
the exercise of their rights guaranteed by Section 7 of
the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 4 6
The Respondent, Hedison Manufacturing Co., Lincoln,
Rhode Island, its officers, agents, successors, and assigns,
shall:
4" In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the Natioilal Labhor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations, be adopted hy the Board and
Con in ued
HEDISON MANUFACTURING COMPANY 829
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning
their union membership, activities, or sympathies, or
those of their fellow employees and polling employees as
to such membership, activities, or sympathies.
(b) Unlawfully representing to employees that Re-
spondent would close its plant and never bargain or sign
a contract with the Rhode Island Workers Union.
(c) Threatening employees with discharge, discipline,
or any other reprisals or unlawfully promising benefits to
discourage them from joining or supporting a union.
(d) Retaliating against employees because they joined
or assisted a union by making their working conditions
more undesirable, onerous, or burdensome.
(e) Asking employees to spy on the union activities of
other employees or otherwise engaging in surveillance of
union activities.
(f) Making or discriminatorily enforcing work rules re-
stricting employees from visiting plant areas during the
lunch hours or break periods or from posting notices on
Respondent's bulletin board or by changing the terms
and conditions of employment to restrict employees from
access to other areas of Respondent's plant, in order to
prevent employees from engaging in union activities.
(g) Informing employees that, because of the election
petition filed by the Union, no wage increases will be
granted.
(h) Soliciting employee grievances and complaints and
promising, either expressly or impliedly, to take remedial
action.
(i) Promising any improvements in terms and condi-
tions of employment to discourage employee adherence
to the Rhode Island Workers Union.
(j) Discouraging membership of its employees in or
support of the Union, or any other labor organization, by
discharging or laying off any of its employees or discrim-
inating in any manner in respect to their hire and tenure
of employment or any term or condition of employment,
in violation of Section 8(a)(3) of the Act.
(k) Refusing to bargain collectively with Rhode Island
Workers Union as the exclusive representative of Re-
spondent's employees in the appropriate unit described
below, with respect to wages, hours, and other terms and
conditions of employment.
(I) Laying off employees, or changing incentive rates
and standards, without first bargaining with the Union
about the decision and its effects.
(m) Taking any other action affecting the wages,
hours, or terms and conditions of employment of em-
ployees in the appropriate bargaining unit without first
notifying and consulting the Union.
(n) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join the
Rhode Island Workers Union, or any other labor organi-
zation, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities
for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all
such activities.
become its findings. conclusions, and Order, and all objections hereto
shall be deemed waived for all purposes
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request of the Union, bargain collectively
with it as the exclusive representative of Respondent's
employees in the unit described below with respect to
wages, and other terms and conditions of employment,
and, if an understanding is reached, embody such under-
standing in a signed agreement:
All full-time and regular part-time production
and maintenance employees of Respondent em-
ployed at its 11 Wellington Road, Lincoln, Rhode
Island and 116 Chestnut Street, Providence, Rhode
Island facilities, including leadpersons-floor ladies
and plant clerical employees, but excluding all
office clerical employees, technical employees, pro-
fessional employees, salespersons, seasonal employ-
ees, guards, Foremen, Assistant Foremen, and all
other supervisors as defined in Section 2(11) of the
Act.
(b) Upon request of the Union, rescind the layoffs of
January 13 and June 2, 1978, and unilateral changes of
Respondent's rules and practices and incentive rates and
standards; resume its policy of permitting employees to
play their radios, to make telephone calls during working
hours, and to visit employees in other departments
during morning and afternoon break; permit its employ-
ees to post union-related or union notices on its bulletin
boards; and permit its employees, who customarily per-
form their jobs in several areas of Respondent's plant,
access to such areas.
(c) Upon request by the Union, bargain collectively
with the Union with respect to the decision to lay off
employees; bargain collectively with the Union with re-
spect to the effects of such layoff; and, if an understand-
ing is reached thereon, reduce to writing and sign any
agreement reached as the result of such bargaining.
(d) Offer to each employee laid off on January 13 and
June 2, 1978, if it had not already done so, and Gary
McKiernan, Thomas Ferriera, Glen Hutloff, Thomas
Lawton, and Russell Moison, immediate and full rein-
statement to his or her former job or, if that job no
longer exists, to a substantially equivalent job, without
prejudice to his or her seniority or other rights and privi-
leges, and make each employee and Tracy Fitzpatrick
and Laycie Monteiro whole in the manner provided
above in the section entitled "The Remedy" for any loss
of pay he or she may have suffered from the date of his
or her unlawful layoff or discharge, as the case may be,
until the date of such offer of reinstatement.
(e) Make whole any employee for any loss he or she
may have suffered since January 12, 1978, because of Re-
spondent's unilateral decisions to decrease incentive rates
or increase incentive standards.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Post at Respondent's places of business at Lincoln,
Rhode Island, and Providence, Rhode Island, copies of
the attached notice marked "Appendix IIl." 47 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(h) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found herein.
47 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
APPENDIX I
RULING ON GENERAL COUNSEL'S
MOTION TO EXCLUDE WITNESS FROM
TESTIFYING
I have previously ruled the subpoena ad testificandum,
which was served on Harry D. Hedison on August 23,
1978, was an effective and valid subpena, notwithstand-
ing Respondent's sole contention that it was a nullity by
reason of its being returnable on Monday, August 28,
1978, the day when this hearing was originally scheduled
to commence. The record will show that, because of set-
tlement negotiations which took place all that day, this
hearing did not open until Tuesday. I feel no need to re-
iterate my prior ruling, except to note, should the instant
ruling become the subject of further legal proceedings,
that the subpena was and continues to be valid, unless
withdrawn by counsel for the General Counsel, quashed
by me or the National Labor Relations Board, or re-
leased by me after due and proper compliance. None of
these events has occurred.
Further, the record will show that Respondent's coun-
sel, Mr. Sweeney, expressly represented in open court on
August 29, 1978, that Mr. Hedison would appear and tes-
tify in this proceeding on August 30, 1978. On August
30, 1978, Mr. Sweeney altered his position, notifying all
parties that Mr. Hedison would not comply with the sub-
pena, based solely, if my recollection is correct, that he
would not subject Mr. Hedison to the kinds of questions
that Mr. Graham was then being asked and that Mr.
Sweeney would produce Mr. Hedison only on Respond-
ent's direct case. I am persuaded that the failure to
comply with the subpena was not due to any inability or
accident, but was willful, conscious, and intentional.
Counsel for the General Counsel, as may have been
anticipated, now renews his motion to exclude Mr. He-
dison from testifying in this proceeding by reason of his
earlier failure to appear and to comply with the subpoena
ad testificandum, dated August 23, 1978, as well as the
two subpeonas duces tecum, dated August 15, 1978, and
August 22, 1978, as to which two motions to quash and
revoke were filed, but not on the grounds that valid
service had not been made.
All parties will recall that I ruled earlier in this pro-
ceeding that a similar motion made by counsel for Gen-
eral Counsel was premature in that Mr. Hedison had not
appeared to testify, and there was no valid reason why I
should have excluded him from testifying at that point in
the hearing. That branch of the instant motion is prob-
ably still premature, but in the interest of the expedition
of this proceeding, so that all parties will be advised as
to my ruling and rationale therefore, in the event that
any party seeks to obtain the Board's special permission
to appeal immediately, General Counsel's motion is ripe,
in my opinion, for disposition.
I have previously noted that the question of the exclu-
sion of a witness who has failed to comply with a subpoe-
na ad testificandum presents a question of first impres-
sion. Contrary to counsel for General Counsel's position,
I do not believe that P.S.C. Resources, Inc., 231 NLRB
233, is dispositive. There, in a similar factual setting, the
Administrative Law Judge failed to rule, and the Board
found that that failure to rule was an error. However,
the Board denied General Counsel's motion to strike the
testimony for reasons which are set forth in the footnote
in that opinion.
Although there appears to be no case directly on
point, the parties have made reference to a line of deci-
sions of the Naitonal Labor Relations Board, some ap-
proved by Circuit Courts of Appeal, relating to Re-
spondent's refusal to produce documents and records
pursuant to subpoena duces tecum duly served by the
General Counsel. Those decisions, as well as others,
have been helpful in reaching a resolution of the instnat
motion.
In Bannon Mills, Inc., 146 NLRB 611, the respondent
refused to produce material and relevant records pursu-
ant to subpenas served upon it. The General Counsel
proceeded to prove his case by presenting secondary evi-
dence. Thereafter, the respondent on its direct case
sought to introduce the subpenaed but unproduced rec-
ords, together with secondary evidence of other matters
provable by said records. The Board held that the Trial
Examiner properly excluded the records and the second-
ary evidence. Bannon Mills has been consistently fol-
lowed by the Board.
In American Art Industries, Inc., 166 NLRB 943, re-
manded on other grounds 415 F.2d 1223 (5th Cir. 1969),
the court upheld the Trial Examiner's rejection of re-
spondent's secondary evidence after respondent had re-
fused to produce the primary evidence which had been
subpenaed, noting that, "It would have been inequitable
to allow the Company to contradict [the General Coun-
sel's secondary evidence] with more secondary evidence
while the Company, at all times, had [the conclusive rec-
ords] in its possession and refused to produce them. In
order to maintain the integrity of the hearing process,
the Trial Examiner had, under the circumstances, little
---
HEDISON MANUFACTURING COMPANY 831
choice but to refuse [the Respondent's secondary evi-
dence]." See also N.L.R.B. v. C.H. Sprague & Son Co.,
428 F.2d 938, 942 (Ist Cir. 1970).
Thus, under Board law, a party's failure to produce
subpenaed documents results in (a) proof by secondary
evidence of the facts which might have been proved by
the withheld documents and (b) exclusion of the docu-
ments when finally offered by the subpoenaed party and
exclusion of secondary evidence. See also 4 Wigmore
Evidence § 1210 (2) (Chadburn rev. 1972).
I find no reason why this rule should not apply with
equal force to a party whose principal executive officer
fails to comply with a subpoena ad testificandum. To hold
otherwise would clearly be destructive to the integrity of
this hearing process. It would encourage an adverse wit-
ness, duly subpenaed, to appear during the course of a
hearing at his own pleasure, without proper excuse or
justification, thus making a mockery of the General
Counsel's right to proceed with the presentation of his
evidence in the manner in which he sees fit, and flouting
with impunity the valid subpena processes duly granted
by Congress to the National Labor Relations Board
under Section 11(1) of the National Labor Relations Act.
The potential prejudice to the effectuation of the Act
is self-evident. Mr. Hedison, concededly the chief officer
of the Respondent and a participant in many of the
events alleged in the complaint as violative of the Act,
was called as a witness on the first day of this hearing.
He refused to appear at that time. Now, some twelve
trial days later, Respondent commences to proceed on its
case on the very allegations which General Counsel had
stated that he intended to elicit testimony from Mr. He-
dison. In the meantime, all of the testimony has been
elicited in support of the particular allegations of the
complaint. By so proceeding, there is an open invitation
to Respondent to "'construct defenses which would
permit violations to go unremedied."' New England
Medical Center Hospital v. N.L.R.B., 548 F.2d 377, 382
(C.A. 1, 1976), quoting Title Guarantee Co. v. N.L.R.B.,
534 F.2d 484, 491 (2nd Cir. 1976), cert. denied 429 U.S.
834 (1976).
That is the very conduct criticized by the Supreme
Court in justifying its refusal to grant a party-respondent
access to witnesses' statements under the Freedom of In-
formation Act. N.L.R.B. v. Robbins Tire and Rubber Co.,
sl. op. 77-011, page 27 (June 15, 1978).
The Respondent argues that Section 11(2) of the Act
and the pertinent Rules and Regulations of the National
Labor Relations Baord provide that subpenas may be en-
forced solely and exclusively in the United States Dis-
trict Court, and that no relief for noncompliance may be
granted by the Board or one of its Administrative Law
Judges. Bannon Mills, however, demonstrates that the
Board has the right, if not the obligation, to protect duly
issued subpenas by the imposition of appropriate reme-
dies. Indeed, the application of adverse inferences from
the failure of a party to produce relevant evidence
within his control should not be conditioned upon re-
quiring either the opposing counsel or the General Coun-
sel "to utilize the cumbersome and time-consuming" pro-
cedure for enforcement of the subpena. International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America [Gynodyne Company] v.
N.L.R.B., 459 F.2d 1329 (C.A.D.C., 1972). The Supreme
Court in its Robbins Tire decision, at 23-24, was acutely
aware that this Agency is charged with the duty of ef-
fectively investigating and prosecuting violations of the
Act, and that the potential for delay is contrary to the
purposes of the Act.
As a consequence, I do not believe it was incumbent
upon General Counsel to seek to enforce his subpena in a
Federal district court. That would lead only to delay,
however short, but possibly substantial, which should not
be countenanced in a representation case, see Tropicana
Products, Inc., 122 NLRB 121, 123, and City and county
Electric, Inc., 191 NLRB 167, or in an unfair labor prac-
tice case, see Robbins Tire.
Here, this proceeding is a consolidated representation
and unfair labor practice proceeding. In the latter, the
General Counsel requests that a bargaining order be
issued, clearly a matter which involves the same rights of
collective bargaining which a representation proceeding
is intended to resolve without delay. Further, the com-
plaint alleges numerous violations of Section 8(a)(3),
there being approximately two dozen individuals who
have been permanently severed from employment, and
whose rights are entitled it speedy adjudication.
The General Counsel requests that I preclude Re-
spondent from adducing any proof in defense of the alle-
gations of that portion of paragraph 10 dealing with the
alleged discriminatory discharges which occurred on
January 31, 1978, and of paragraph 8(n), the discharge of
Mr. McKeirnan on January 30, 1978.
I have given consideration to whether such relief
should be limited to proof of Mr. Hedison's participation
in the alleged violations, but believe that justice would
not be served by so limiting the relief sought. Mr. He-
dison refused to appear and testify pursuant to a duly
issued and served subpena. I infer, to paraphrase the lan-
guage of the UAW case, 459 F.2d 1329, at 1338, that all
other things being equal, Mr. Hedison would of his own
volition introduce the strongest evidence available to
prove Respondent's case. If evidence within his knowl-
edge would in fact strengthen his case, he could be ex-
pected to introduce it even if he were not subpenaed.
Conversely, if such evidence were not introduced, it may
be inferred that the evidence is unfavorable to him and
to Respondent.
The subpena strengthens the force of this inference.
Mr. Hedison insisted on withholding evidence even in
the face of a subpena requiring him to testify. It could
hardly be doubted that he had some good reason for his
refusal. Human experience indicates that the most likely
reason for his refusal is that his testimony would be unfa-
vorable to the cause of the Respondent and would sup-
port the General Counsel's case.
Mr. Hedison's failure to testify and his suppression of
unfavorable evidence must, as a most probable result,
have weakened General Counsel's case. To permit Re-
spondent to now elicit only the proof which may be fa-
vorable to Respondent, while withholding less favorable
and likely damaging testimony, is patently inequitable
and prejudicial, and should not be countenanced. I there-
832 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
fore grant this portion of General Counsel's motion in its
entirety.
I deny, however, General Counsel's motion to strike
that portion of Respondent's answer which denies para-
graphs 8(n) and 10, and the related paragraphs which
allege that the conduct set forth in paragraphs 8(n) and
10 are unfair labor practices. I note, parenthetically, that
Respondent has admitted the facts set forth in paragraph
10 of the amended complaint. The granting of the
motion to strike is tantamount to a default judgment. I
am not prepared to grant such extraordinary relief but
shall consider the record in its entirety to ascertain
whether the allegations are supported by substantial evi-
dence, applying any inferences which I deem proper in
the circumstances.
Because of these rulings, it should be obvious that I
intend to exclude Mr. Hedison as a witness in this pro-
ceeding, when and if he is called to testify. Respondent
has taken a calculated risk when Mr. Hedison refused to
appear in defiance of the subpoena ad testificandum. I
will limit my ruling, however, only to those seven areas
about which Mr. Steiglitz indicated he wished to ques-
tion the witness.