Henlopen Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 17, 1978

235 N.L.R.B. 183 (N.L.R.B. 1978)

HENLOPEN MANUFACTURING CO.
Henlopen Manufacturing Co., Inc. and International
Industrial Production Employees Union and Local
917, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 29-CA-5218
March 17, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
TRUESDALE
On September 28, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in answer to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy,2 and to adopt his
recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Henlopen Manufacturing Co., Inc., Melville,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer immediate and full reinstatement to
Cecilia Caruona to her former position on the day
shift in the assembly department or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of pay
which she may have suffered by reason of Respon-
dent's discrimination against her by payment to her
of a sum of money equal to that which she normally
would have earned as wages from the date of the
discrimination to the date of Respondent's offer of
reinstatement, less her net earnings during such
period, with backpay to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
235 NLRB No. 33
289 (1950), with interest as set forth in Florida Steel
Corporation, 231 NLRB 651 (1977)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). we have carefully
examined the record and find no basis for reversing his findings.
Respondent urges the Board to overrule Oak Apparel, Inc., 218 NLRB
701 (1975). In that case, the Board held that employees who acted as paid
union organizers were "employees" within the meaning of Sec. 2(3) of the
Act and were thus entitled to the protection of the Act. We decline to
overrule Oak Apparel.
In secs. Ill, A and C of his Decision, the Administrative Law Judge
erroneously refers to Manny Garcia as Respondent's "Plant Foreman,"
although the record indicates that Garcia is Respondent's assembly
manager. This apparently inadvertent error is insufficient to affect the
results of our decision.
2 In the remedy section of his Decision, the Administrative Law Judge
erroneously referred to a fixed 7-percent interest rate and thereby failed to
apply properly the Board's "adjusted prime interest rate" formula, which
may vary in the manner prescribed in Florida Steel Corporation, 23! NLRB
651 (1977). See, generally, Isis Plumbing & Healing Co., 138 NLRB 716
(1962). For that reason, we have modified his remedy.
3 In his recommended remedy, the Administrative Law Judge provided
that Respondent reinstate Caruona to her former job on the day shift, but he
failed to include such specific language in his recommended Order.
Accordingly, we shall modify his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to participate, examine, and cross-examine
witnesses, it has been found that we have violated the
National Labor Relations Act in certain respects. We
have been ordered to post this notice and to comply
with its provisions.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because they engage
in any activity on behalf of International Industri-
al Production Employees Union and Local 917,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer Cecilia Caruona immediate and
full reinstatement to her former position on the
day shift in the assembly department or, if that
position no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority
or other rights and privileges; and WE WILL make
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her whole for any loss of benefits or wages which
she suffered as a result of our discrimination
against her, plus interest.
HENLOPEN
MANUFACTURING CO.,
INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard on May 2 and 3, 1977, in Brooklyn, New
York, based on a complaint which issued on December 30,
1976. The complaint alleges that Henlopen Manufacturing
Co., Inc.,' violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by soliciting grievances from
its employees in order to discourage interest in the
Charging Party Unions which were seeking to organize its
employees, by threatening employees with discharge, elimi-
nation of part-time work, and institution of a more onerous
production quota system if they supported the Unions, and
by promising and granting benefits, including a new work
incentive plan, in order to induce employees to refrain
from supporting the Unions. The complaint also alleges
that Respondent first transferred employee Cecilia Caruo-
na to a more onerous job and then discharged her because
of her union activities in violation of Section 8(a)(3) and (I)
of the Act. Respondent denied these allegations. The
General Counsel and Respondent filed briefs on or about
July 7, 1977.
Based upon the record and my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent is a New York corporation with its principal
office and place of business in Melville, New York, where it
is engaged in the manufacture, sale, and distribution of
plastic cases and brushes for cosmetics and related prod-
ucts. Respondent purchased materials valued in excess of
$50,000, of which more than $50,000 worth were delivered
to its plant directly from States other than New York. It
also sold products valued in excess of $50,000, over $50,000
of which were shipped directly to States other than New
York. Accordingly, Respondent is an employer engaged in
commerce within the meaning of the Act.
II. LABOR ORGANIZATIONS
The Charging Parties herein, International Industrial
Production Employees Union (IPEU) and Local 917,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organi-
zations within the meaning of the Act.
During the heanng the complaint was amended to reflect the proper
name of Respondent as indicated above.
1II. THE UNFAIR LABOR PRACTICES
A. The Alleged Discriminatory Transfer and
Discharge of Caruona
1. The facts
Cecilia Caruona, a paid organizer for the IPEU, was
hired by Respondent about August 13, 1976, to work in its
assembly department. She was paid $50 per week by the
IPEU to organize employees. She began work at Respon-
dent's plant on Monday, August 16, and was permitted to
work part time, from 8:30 a.m. to I p.m., at her request.
She was paid $2.30 per hour. On August 17, she obtained a
signed authorization card from employee Fawn Russo at
the plant.2 She testified that, during her first week of
employment, she talked to employees before and after
work and during breaks about supporting the IPEU and
she circulated leaflets and cards to employees.
Caruona worked 4 days on the day shift in the assembly
department. Her production improved from 50 percent of
standard on Monday to 77 percent of standard on
Thursday. The average for new employees at this time was
58 percent of standard.
On Caruona's second day of employment, she noticed
Teamsters union organizers outside the plant. She reported
this activity to IPEU official Sam Zakman by phone and
asked him to come down to the plant. Zakman came and
met Caruona outside the plant and gave her some cards.
Caruona testified, as did Zakman, that Plant Foreman
Manny Garcia saw them at this time through a doorway.
Garcia denied observing Caruona and Zakman. Caruona
also testified that, on one occasion during her first week of
employment when she was soliciting employees in the
cafeteria, Respondent's president, Costa, saw her. Union
literature and cards were on a cafeteria table and she was
standing next to the table when Costa passed through the
cafeteria. Costa did not testify.
On Thursday, Caruona was 7 minutes late for work
because she had an accident. She did not punch in until 9
a.m. as instructed by Garcia. At or about noon, Garcia
asked Caruona if she would transfer to the molding
department, on a shift from 8:30 p.m. to I a.m. According
to Caruona, she agreed, but stated that since she had to go
back to school in September she would have to go back on
days at that time. The job in molding paid 70 cents per
hour more than the job in the assembly department.
Caruona worked 2 nights in the molding department and
was absent 3 nights; she began work in the molding
department on Friday at 8:30 p.m. No one else punched in
when she did or worked the same hours. Other employees
on the night shift began work about 2 hours earlier. She
reported to Elizabeth Von Lintig, the quality control
employee who also worked odd hours on the night shift.
Caruona was to work with Von Lintig and also work on
one of the molding machines. She spent about 2 hours
operating a molding machine the first night. She got sick
that night and did not work the next working night,
Monday, August 23. She apparently also hurt her hand
while working on the molding machine. Caruona next
2 This is based on the testimony of Russo. Caruona testified that she
engaged in no union activity until August 18.
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HENLOPEN MANUFACTURING CO.
worked on Tuesday, August 24. She operated a molding
machine and weighed and stacked boxes. That night she
wore a shirt with IPEU and "vote union" lettering on it.
Von Lintig mocked Caruona for wearing the shirt and the
employees observed the incident. On another occasion,
during this second week of her employment, Vice President
Maxwell Mutter saw Caruona passing out union literature
to Respondent's employees at the plant during the day.
Mutter testified that Caruona saw him on Thursday
night, August 26, and told him that she could not work that
night because she was sick and she wanted to get off the
night shift and go back to her day-shift job.
Mutter testified as follows:
Q. What did you tell her?
A. I told her that from what I understood that her
absentee record was pretty bad, that she wasn't paying
attention to her work, that she would have to either
shape up or ship out, so to speak.
I told her that I couldn't transfer her back to her
other previous shift because we just don't transfer back
and forth at the whim of employees. We have 200
employees and we don't just shift any time an employee
asks us to.
We had made a decision for her to help out in the
night shift at the Molding Department and she really
hadn't given it a chance, she had only been there two
nights. So I told her she stays there and gives it a
chance and buckles down to work and I will give her a
second chance to continue on that basis.
She said she still - she had gone to a doctor that
day, she mentioned she is going to go to him again and
she is going to find out if she was too sick to work and
she would let me know and she left.
The next day, August 27, according to Mutter, Caruona
came in again and said she was too sick to work. At this
point, Mutter fired her. According to Mutter, on the
following Friday she came in to pick up her check which
was dated August 28.
2. Analysis and conclusions
I reject the General Counsel's contention that Caruona's
transfer to the molding department was discriminatorily
motivated. The evidence does not preponderate in favor of
such a finding. First, although Caruona openly passed out
union cards and literature during her first week of
employment on the day shift in the assembly department,
3 I do not credit that portion of Caruona's testimony to the effect that she
was observed by management representatives, including President Costa,
passing out union literature during the first week of her employment. She
stated in her pretrial affidavit that, to the best of her knowledge, she was not
observed "by my foreman or a member of management when I handed out
cards in the cafeteria." She also stated that Costa "did walk through the
cafeteria while I was handing out cards, but he did not stop or seem to see
me."
I likewise do not credit the testimony of Caruona and Zakman that
Garcia observed them on one occasion during the first week of her
employment talking to employees and distributing literature. Their testimo-
ny conflicts as to exactly what happened. For example, Zakman testified
that Caruona rushed out of the plant towards him, requested union cards,
took them, and immediately went back into the plant; Caruona testified that
after she met Zakman she left and went home. I believe that their testimony
on this issue, that Garcia observed them during their union activity, was
there is no firm evidence of company knowledge of her
union activities before the transfer. Nor is it likely that a
paid union organizer would make her position known
during the first few days of her employments Secondly,
there is no significant evidence of union animus exhibited
by Respondent during the first week of Caruona's employ-
ment directed either to her or, generally, to other employ-
ees. Finally, according to Caruona's own testimony, which
I credit on this issue, she willingly and voluntarily accepted
Garcia's offer for a transfer to the molding department.
Indeed, acceptance of the offer meant 70 cents per hour
more for Caruona and apparently meant that Caruona was
assigned to train as a quality control employee under
Elizabeth Von Lintig, seemingly a more responsible and
challenging job. In short, I find that the General Counsel
has not proven that the transfer was effectuated for
discriminatory reasons.4
The General Counsel also asserts that the discharge of
Caruona after I week on the night shift in the molding
department was discriminatorily motivated. Respondent
counters that Caruona asked to transfer back to the day
shift, that Mutter declined the request and insisted that she
work the night shift, which she refused to do, and therefore
Mutter fired her. I find Respondent's conduct both in
refusing to transfer Caruona back to the day shift and in
thereafter discharging her was unlawfully motivated and
thus find that the discharge violated Section 8(aX3) and (1)
of the Act.
In contrast to the situation which existed prior to
Caruona's transfer to the molding department, it is conced-
ed that, during the second week of Caruona's employment,
Respondent did learn of her union activities and sympa-
thies. Indeed, in its brief, Respondent stated that it "does
not contend that Mutter lacked knowledge of [Caruona's]
union activities" when he refused to transfer Caruona back
to the day shift and terminated her. She wore a prounion
shirt to work and was observed by Mutter distributing
union literature during the day. It is also obvious that
Respondent was opposed to union organization and that
this became apparent after Caruona's transfer to the night
shift. Respondent expressed this view to employees at mass
meetings, the first of which was held by Mutter on August
25, during the second week of Caruona's employment. 5
I reject Garcia's testimony concerning Caruona's alleged
poor job performance on the day shift. Garcia testified that
he originally offered to transfer Caruona to the molding
department from the assembly department because he did
not think she would "make it in here." His complaints, he
self-serving and inaccurate. On the other hand, Garcia's testimony on this
issue was candid and firm. He denied that any such incident occurred.
I4 t is unusual that Caruona would be assigned an odd shift beginning
and ending at times different from that of the regular night shift. However,
the testimony is that Respondent wanted her to help out the quality control
employee, Von Lintig, and that this work schedule worked out satisfactorily
for Von Lintig who also worked odd hours. Moreover, this schedule
permitted Caruona to work the same number of hours she worked on the
day shift-a shorter workday which she herself had requested on the day
shift. In any event, although assignment to such an odd shift might raise
suspicions that this was motivated by discriminatory reasons, in the absence
of more specific evidence of unlawful motivation, I cannot conclude that
this evidence alone preponderates in favor of such a finding.
I There is no allegation that anything in the August 25 speech violated
the Act.
185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified, were that she was inattentive to her work and was
spending too much time in the bathroom. He further
testified that, in his offer to transfer Caruona, he stated that
if she did not accept the offer she would be terminated.
Garcia's testimony on this issue is uncorroborated and I
believe that, in view of the other evidence in this case, it is
not reliable.
First, Caruona's work record in the assembly department
was acceptable, particularly for a new employee only 4
days on the job. Caruona was not absent during her
employment on the day shift and was late only once due to
a car accident. The production records indicate that her
productivity was good and improving-from 50 percent of
standard on Monday to 77 percent of standard on
Thursday. On Tuesday her production percentage was 57
percent when the collective percentage for "new girls" was
58 percent. On Thursday she produced more in less hours
than she did on Monday and Tuesday combined. This
evidence belies Garcia's testimony that Caruona could not
"make it."
Secondly, according to Garcia, the transfer to the
molding department represented a move to a more chal-
lenging and higher paying job. The testimony of both
Garcia and Caruona is that Garcia told Caruona that she
would find the job in molding more interesting, active, and
suited to her. Further, the testimony indicates, and Re-
spondent concedes in its brief, that "Caruona was assigned
to the molding department, not to be a machine operator
. . . but to be trained in quality control work." This is also
consistent with the testimony of Mutter that she was
transferred to "help out in the night shift" and of Von
Lintig that she had long requested help and Caruona was
assigned to her in response to this request. Thus the
transfer appears to have been the result of a better than
satisfactory performance by Caruona rather than an
unsatisfactory one.
Finally, in view of the above, I also find that there was
no ultimatum or threat of discharge in Garcia's original
offer of transfer to Caruona. 6
Not only did Garcia not threaten to discharge Caruona,
but he did not refer to any of the alleged complaints about
her performance which he specified in his testimony at the
time of the offer to transfer. If his motive in transferring
Caruona was dissatisfaction with her work, he surely would
have made that clear to her when he transferred her. Nor
did he discuss her actual production sheets during her first
week of employment with her. In short, from my observa-
tion of Garcia as a witness on this point, I am convinced
that he was straining to create the impression, after the
fact, that Caruona's performance was so poor that he
6 Garcia's testimony to the contrary is not credible. Garcia said he did
not talk to any of his superiors about her possible discharge or transfer
before making the offer to Caruona to transfer her to the night shift molding
department job. Moreover, in response to my direct question on this point,
Garcia was evasive, finally stating that he told Caruona he would "probably
have to terminate you." Caruona's testimony, on this point, was straightfor-
ward and candid. She accepted the transfer because she thought Garcia was
short of help. This is supported by testimony that Von Lintig, the quality
control employee, needed help and Caruona was assigned to her in order to
help her. And it is also supported by Mutter's testimony set forth above that
"we had made a decision for her to help out in the night shift at the Molding
Department...." It is inconceivable to me that, if Garcia seriously
threatened to fire her when he offered to transfer her to the
molding department.
In view of Caruona's acceptable work performance on
the day shift and the ease with which she was offered a
transfer to the night-shift job, Respondent's subsequent
refusal to transfer Caruona back to the day shift is
explainable only by reference to her union activities which
became known to Respondent during her second week of
employment. Thus, the refusal to transfer was discrimina-
torily motivated. Mutter himself admitted that Caruona
said she wanted to leave the night shift because she was
sick and allergic and had gone to a doctor. No evidence
was submitted to refute this representation by Caruona.
Respondent's insistence that Caruona stay on the night
shift or face discharge is likewise inexplicable because her
performance on the night shift was far worse than it was on
the day shift. She was absent 3 of the 5 days she was
assigned to the night shift, Von Lintig allegedly did not
want to work with her, and Respondent charged that she
could not handle the expensive molding machinery. Yet
Respondent insisted that she work this job. Finally,
whatever the reasons were for originally transferring
Caruona to the night shift, the job itself turned out to be
onerous and burdensome, despite the higher pay scale, and
hardly more challenging and interesting as Respondent
promised. Instead of training for quality control work or
utilizing her talents for more challenging work, Caruona
was subjected to a job which required substantial physical
exertion and which made her sick from the fumes. It does
not appear that Respondent really gave Caruona any
particular training as a quality control person, and I
specifically discredit the testimony of Von Lintig as to
Caruona's job performance on the night shift.7 Finally, by
the time of Caruona's request back to the day shift,
Respondent knew that she was a union adherent and
would be able on that job to reach more employees with
her union message on breaks and before and after work. I
therefore have no difficulty in concluding that Respondent
gave Caruona a Hobson's choice-either continue in an
onerous job or be fired-because of Respondent's recently
acquired knowledge of her union activities.
Consequently, I am convinced that, absent her union
activities, Caruona would have been permitted to return to
the day shift in lieu of being discharged. When Caruona
was discriminatorily denied an opportunity to return to the
day shift, she was effectively discharged. In short, Respon-
dent seized the opportunity to rid itself of Caruona and her
union activities by insisting that she work the night shift.
When she refused because of health reasons she was fired.
The Respondent's discriminatory denial of Caruona's
thought of discharging Caruona, he would not have done so on the spot, or,
at least have talked about the possibility with his superiors, particularly
since he characterized himself as a "tough, hard nosed guy."
7 Although she was not shown to have been a supervisor, Von Lintig's
testimony clearly was tailored to support Respondent's position that both
the transfer and the discharge were justified. Thus, she testified at great
length about her need for assistance in her quality control work, then, after
only working 2 days with Caruona-very little of it, if any, on quality
control-she waxed indignant about Caruona's incompetence and insisted
that she did not want Caruona's assistance. Her testimony was clearly
exaggerated and self-serving and I reject her testimony as wholly unreliable.
186
HENLOPEN MANUFACTURING CO.
transfer led inevitably to her discharge and, therefore,
tainted the discharge with the same illegality.
B. Alleged Threat To Eliminate its Part-Time Shift
After the discharge of Caruona, the Unions intensified
their organizational campaign and an election petition was
filed on September 29, 1976. In response to a union leaflet
which promised part-time employees hospitalization insur-
ance, Respondent, on October 11, 1976, circulated a leaflet
(G.C. Exh. 3) which the General Counsel alleges threat-
ened its employees with elimination of its part-time shift if
the Unions were successful in their organizational cam-
paign.
The letter stated that Vice President Mutter checked with
insurance companies and that medical coverage for Re-
spondent's part-time employees was not available or would
be prohibitively expensive. It then stated that if part-time
employees wished such coverage they should switch to full-
time employment. Commenting on the Unions' promises of
a "guarantee" of insurance coverage for part-timers,
Mutter stated that the cost would be so expensive that the
only "realistic" course would be to convert to a "complete-
ly full time" operation. The letter then commented on a
union promise that it could "guarantee" that Respondent
would keep the part-time operation by properly stating that
it could effectuate an economically motivated decision to
convert the part-time operation after bargaining. The letter
also stated that Respondent did not want to convert to a
full-time operation.
In connection with the part-time issue, the letter also
commented on the Unions' campaign statement that they
would waive initiation fees except for those hired after a
contract was signed. The letter stated that the part-time
staff had substantial turnover and that the payment of
initiation fees by part-time employees might be an impedi-
ment in attracting employees because they might not want
to pay an initiation fee to work part time. The letter
suggested that, if the requirement of an initiation fee
prevented the full staffing of the part-time shifts, they
might be abolished. The letter continued that Mutter was
not threatening or predicting that Respondent would
abolish part-time positions "if the Union comes in," but
was simply reciting "certain economic facts of life beyond
my control and beyond the Union's control."
The General Counsel in his brief makes a conclusionary
assertion that the letter does not state objective consider-
ations in support of its statements about the elimination of
part-time employment. I disagree. The letter was in
response to union promises and "guarantees" and stated
demonstrable or possible consequences of the Unions'
positions in an objective manner. The allegations could be
assessed as economic arguments and they were not phrased
nor could they be interpreted as threats in reprisal for
union activities. Mutter confirmed, on the witness stand,
his investigation of insurance charges and the argument on
initiation fees was a reasonable economic argument to
which the Unions could respond and which employees
could easily evaluate and accept or reject. There was no
misrepresentation in Mutter's remarks and the economic
consequences were not tied to union support or success,
but rather to union campaign statements. And the state-
ments were not made in the context of other unlawful
threats. Accordingly, the General Counsel has not proven
by a preponderance of the evidence that the letter threat-
ened reprisals within Respondent's control to effectuate if
the Unions obtained bargaining rights or if employees
supported the Unions.
C. Alleged Solicitation and Adjustment of
Grievances
In reliance upon the testimony of employee Fawn Russo,
the General Counsel also alleges that Respondent solicited
grievances from Russo, implied their resolution, and
thereafter remedied her grievances, all in order to discour-
age union activities.
Fawn Fusso testified that, on one occasion in September,
Plant Foreman Manny Garcia approached her and asked
what Respondent was doing "that made me need a union,
that I felt I needed a union." She responded that she
objected to standing in line for checks and to being treated
"rudely" during Hurricane Belle. She also suggested the
need for an employee bulletin board, a signup sheet for
those who wanted to work in the molding department, and
overdue raises including her own. She also stated that
signatures of employees should not be required on sugges-
tions dropped in the suggestion box. Russo testified that
"every single" suggestion of hers to Garcia "was put into
effect."
Garcia confirmed that he had a conversation with Russo
about the Union but testified that he made a comment
after overhearing another employee say that she had
missed a union meeting. Garcia stated that the employee
had not missed much because he did not believe that
unions did much for employees and that Respondent's
plant was a good place to work. Russo then injected herself
into the conversation saying the employees needed a union
for several reasons including the "rude" treatment during
Hurricane Belle and not getting time off to cash checks
"like unions give us," and her own overdue raise. Garcia
did not mention that she raised a signup sheet or bulletin
board, and he denied soliciting grievances or promising
their resolution.
Russo testified that, shortly after her conversation with
Garcia, paychecks were brought to employees at their work
stations. Mutter confirmed this change but testified that he
instituted the change in response to an employee complaint
which had come to him through the suggestion box.
Garcia testified that he checked on Russo's raise and
found that it was overdue because such raises are automat-
ic and Russo's group had not received its raise. Russo
received her raise, along with the rest of her group, within a
week or two after Garcia checked on it, because that was
the time all the raises were paid.
Russo's testimony on cross-examination makes clear that
bulletin boards were not made available to employees as
she had suggested in her direct testimony.
With respect to the institution of a signup system, the
evidence shows that Respondent had a longstanding policy
of temporarily shifting employees from the assembly
department to the molding department. This was changed
when Respondent posted a notice providing for a volun-
tary signup system. This was done within a day or two after
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russo herself had been temporarily assigned to the mold-
ing department and had difficulty with the supervisor and
one of the expensive machines in that department. Respon-
dent's witnesses testified that the Russo incident precipitat-
ed this change in policy. Russo confirmed that the incident
took place and indeed conceded that the signup sheet "was
put up because I left." I view all the evidence as
establishing that the change was instituted because of
Russo's bad work experience as a mandatory transfer to
the molding department.
To the extent that there are testimonial conflicts on this
issue, I credit Garcia and discredit Russo. Russo did not
impress me as a candid or truthful witness. She was a paid
union organizer trainee during her employment-a fact
which was not revealed until her cross-examination, and
she exhibited her bias against Respondent in her testimony
and in her demeanor. She exaggerated the notion that all
her suggestions were put into effect. Her testimony clearly
shows that bulletin boards were not made available to
employees generally and she conceded that the suggestion
box changes were not implemented. Her testimony about
the molding department signup sheet was also exaggerated.
She at first implied that this change was implemented by
Garcia as a result of her suggestion, but it is clear that it
came about as a result of her having difficulties in her own
work in the molding department. A further example of
Russo's exaggerated testimony was that she readily res-
ponded to a question on cross-examination that another
one of her "grievances" was insurance for part-time
employees. Finally, Russo was imprecise on dates, unclear
and ambiguous on specifics in most of her testimony, and
exhibited a demeanor which was compatible with Garcia's
testimony that she injected herself into the conversation
and suggested reasons why a union was needed. Accord-
ingly, I credit Garcia's version of the conversation.
I also accept Respondent's reasons for instituting the
changes that it did. The testimony of Garcia and Mutter
was reasonable and uncontroverted on this issue. Accord-
ingly, the General Counsel has not shown by a preponder-
ance of the credited testimony that Respondent solicited
grievances, implied that they would be implemented, or
actually implemented them in order to discourage union
activity.
D. Alleged Threats To Institute More Onerous
Working Conditions
The General Counsel also contends that in a speech, in
September or October 1976, Garcia threatened to institute
a more onerous production quota system in the assembly
department in order to discourage union activities. The
only evidence offered to support this contention is the
testimony of Russo that Garcia said, in the course of his
speech, which she placed as 2 weeks after her earlier
conversation with Garcia, that Respondent would start
keeping a "little black book" just "like a union had" in
which he would make entries when an employee failed to
meet his quota. Three such entries would lead to dismissal,
and bonuses would be granted if employees produced over
their quota. According to Russo, this was different from
the system in effect at the time.
Garcia denied he said anything about a "little black
book" and he stated that the speech referred to by Russo
was a speech he gave to assembly department employees in
October 1976 which he read word for word. A copy of the
speech was identified by Garcia and introduced into
evidence. The speech dealt primarily with the equalization
of bonuses for exceeding quotas. On cross-examination,
Russo said that the document reflected what Garcia said
although she could not remember parts of the speech and
believed that Garcia said more. There was no reference to a
"little black book" in the speech.
Garcia also candidly testified as to another conversation
which he had with Russo about unions. In response to
Russo's statement that employees had no job security,
Garcia said that, in his experience as a supervisor in union
shops, he was able to discharge employees for cause and
the Unions could not do anything. He also said that in a
union shop an employee doing bad work would be brought
to him and "written down," that after three such instances
"you are out of a job" and that this was his present
practice. There was nothing unlawful about these remarks
and General Counsel has not urged there was.
In view of Russo's testimony on this issue, I believe she
may have confused this latter conversation with Garcia's
speech. In any event, as I have indicated above, Russo did
not impress me as a reliable witness. I had the same
impression when I considered her testimony on this issue.
Garcia was straightforward and credible on this issue.
Accordingly, I do not credit Russo's testimony and,
without her testimony, the General Counsel has failed to
sustain his burden of proving that Respondent promised an
improved bonus system or threatened more onerous pro-
duction quotas in violation of the Act.
CONCLUSIONS OF LAW
1. By discriminatorily refusing to transfer Caruona
back to her day-shift job and by discharging her, Respon-
dent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
2. The Respondent has not otherwise violated the Act.
THE REMEDY
I shall recommend that Respondent be required to cease
and desist from its unlawful conduct and take certain
affirmative action which is necessary to effectuate the
policies of the Act. I shall also recommend that Respon-
dent be required to offer employee Caruona immediate,
full, and unconditional reinstatement to her former job on
the day shift or, if this job no longer exists, to a
substantially equivalent job, without prejudice to her
seniority or other rights and privileges and make her whole
for any loss of earnings suffered by reason of such
discrimination, by paying her a sum of money equal to that
she would have earned from the date of the discrimination
against her to the date of the Respondent's offer to
reinstate her as aforesaid, less her net earnings during that
period with interest at the rate of 7 percent per annum in
accordance with applicable Board law.
188
HENLOPEN MANUFACTURING CO.
Upon the foregoing findings of fact, conclusions of law,
the entire record and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 8
The Respondent, Henlopen Manufacturing Co., Inc.,
Melville, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because they engage in activity on behalf of any
labor organization.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer immediate reinstatement to Cecilia Caruona to
her former position of employment in accordance with the
provisions set forth in The Remedy section above.
(b) Post at its facility in Brooklyn, New York, copies of
the attached notice marked "Appendix."9 Copies of said
a 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.
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
reciept thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay, if any, due
under the terms of this recommended Order.
IT IS ALSO ORDERED that the complaint is dismissed
insofar as it alleges unfair labor practices not found herein.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
189