Joseph Pollak Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 825 (N.L.R.B. 1977)

JOSEPH POLLAK CORP.
Joseph Pollak Corp. and Vivienne Shalom and Susan
Koff. Cases I-CA- 11828-1 and I CA- 11828-2
September 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELI O
On July 13, 1977, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this
proceeding. Thereafter. Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief.
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 conclusions2 of the Administrative Law
Judge, to modify his Remedy,3 and to adopt his
recommended Order, as modified herein.
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, Joseph Pollak Corp., Dorchester, Massachu-
setts, its officers, agents, successors, and assigns, shall
take the action set forth in said recommended Order,
as so modified:
I. Substitute the following for paragraph 2(a):
"(a) Offer Susan Koff reinstatement to her former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice
to her seniority or other rights previously enjoyed,
and make her whole for any loss of pay suffered by
reason of the discrimination against her, with
interest."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The 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
credibility 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.
2 We do not agree with the Respondent's assertion that the Administra-
tive Law Judge improperly placed upon Respondent the burden of proof.
Rather, the Administrative Law Judge's "Analysis and Conclusions" clearly
demonstrate that the General Counsel satisfied the burden of proof and his
statement that "The overwhelming weight of circumstantial evidence
compels a finding that no substantial evidence exists to support Respon-
232 NLRB No. 127
dent's contention that it did not know of Koffs involvement" merely
reflects his opinion that Respondent did not rebut the case established by
the General Counsel Indeed, the Administrative Law Judge concluded that
the evidence warrants a finding that Respondent had knowledge of
discriminatee Koff's leadership role in the organizing efforts of the Union.
i In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods pnor
to August 25. 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
United Electrical, Radio and Machine Workers
of America (UE), Local 262, or any other labor
organization, by discharging employees or other-
wise discriminating in any manner in respect to
their tenure of employment or any term or
condition of employment.
WE WILL NOT discourage concerted efforts or
membership in United Electrical, Radio and
Machine Workers of America (UE), Local 262, or
any other labor organization, by issuing a written
reprimand (warning) to employees or otherwise
discriminating in any manner in respect to their
tenure of employment or any term or condition of
employment.
WE WILL offer Susan Koff immediate and full
reinstatement to her former position or, if such
position no longer exists, to a substantially
equivalent one, without prejudice to the seniority
and other rights and the privileges enjoyed by her,
and WE WILL make her whole for any loss of pay
she may have suffered by reason of her discharge,
with interest.
WE WILL withdraw and rescind the written
reprimand (warning) issued to Vivienne Shalom
and expunge such reprimand, or other matters
relating thereto, from her records.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
and enjoyment of rights guaranteed them by
Section 7 of the National Labor Relations Act,
except to the extent that such rights might be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
All our employees are free to become, remain, or
refuse to become or remain members of United
Electrical, Radio and Machine Workers of America
(UE), Local 262, or any other labor organization,
except to the extent that such rights might be affected
by lawful agreements in accord with Section 8(a)(3)
of the Act.
JOSEPH POI I AK CORP.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
unfair labor practice charges filed on May 27, 1976, by
Susan G. Koff (Theberge) and Vivienne Shalom, respec-
tively, herein sometimes referred to as Charging Parties,
against Joseph Pollak Corp., herein called the Respondent,
a complaint was issued by the General Counsel of the
National Labor Relations Board on August 16, 1976. The
complaint, in substance, alleges that the Respondent
discharged an employee and issued a reprimand to another
employee, and that since such times it has failed and
refused to reinstate such employee and withdraw the
reprimand to the other employee, because said employees
engaged in protected activity in violation of Section 8(a)(3)
of the Act; and that such restraining and coercive conduct
by the Respondent was also violative of Section 8(a)( ) of
the Act.
The Respondent filed an answer on August 25, 1976,
denying that it has engaged in any unfair labor practices in
violation of the Act.
The hearing in the above matter was held before me at
Boston, Massachusetts, on January 10, I , and 12, 1977.
Briefs have been received from counsel for the General
Counsel and counsel for the Respondent, respectively,
which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation engaged in the manufacture, sale, and
distribution of automotive parts and related products at its
plant located at Dorchester, Massachusetts (known as the
Freeport Street Plant).
In the course and conduct of its business operations,
Respondent causes and continuously has caused, at all
times herein mentioned, large quantities of materials used
by it in the manufacture of automotive parts to be
purchased and transported in interstate commerce from
and through various States of the United States other than
the Commonwealth of Massachusetts, and causes and
continuously has caused, at all times herein mentioned,
substantial quantities of automotive parts to be sold and
transported from said plant in interstate commerce to
States of the United States other than the Commonwealth
of Massachusetts.
Annually, the total of such sales and purchases and
shipments of goods by the Respondent directly from and to
points outside the Commonwealth of Massachusetts
exceeds $50,000 in value.
The facts set forth above are undisputed and are not in conflict in the
record.
The complaint alleges, the Respondent admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that United Electrical, Radio and Machine Workers of
America (UE), Local 262, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Joseph Pollak Corp., the Respondent, is engaged in the
production and manufacture of electronic automotive
parts, trailer connectors, relays and aircraft switches for the
automotive, aircraft and communications industries. Re-
spondent employs approximately 170 employees at its
Boston plant, of which 16 work upstairs and 9 downstairs
in the relay department under the supervision of electron-
ic's foremen James (Jim) Malone and Paul Festa. Foreman
Malone's office is located upstairs. Most of Respondent's
employees are compensated either on an incentive or
nonincentive rate basis. Employees on nonincentive jobs
are paid a flat rate of $2.58 per hour, irrespective of how
many pieces they produce. Employees assigned to incentive
jobs are paid according to the number of pieces they
produce above the job's assigned rate, but each employee is
paid a minimum of $2.58 an hour regardless what he or she
produces. However, if an incentive job worker produces
more than the assigned rate on a particular job, he or she is
paid a percent of the base rate pay more per piece above
the assigned rate.
The Respondent has a discipline procedure which
involves counseling (talking to the worker) for not making
the rate. Thereafter, the employee may be given a written
warning, a second written warning, a third written warning,
possibly a fourth written warning, and thereafter terminat-
ed. An employee being disciplined under this procedure
may be issued one, two or three warnings, depending upon
the circumstances in the discretion of management.
B. The Concerted and Organizing Activities of
Susan Koff (Theberge)
Susan Koff (Theberge), herein known as Susan Koff, was
hired by the Respondent in September 1975 in the
connector's department for $2.41 an hour plus a piece rate
of $2.58. She first worked under the supervision of Ed
Forbes. Koff testified that her initial contact with the
Union occurred in November 1975 when Lois Kuglemass
of the United Electrical, Radio and Machine Workers of
America (herein called the Union) came to her home.
Thereafter they were in frequent contact by telephone
discussing how to ascertain which employees might be
interested in organizing a union. Koff would furnish
representative Kuglemass with names, addresses, and
826
JOSEPH POLLAK CORP.
phone numbers of such employees she believed might be
interested, so that the union representative could visit
them.
Susan Koffs testimony further relates that she and 24
other employees in the relay department were laid off by
Foreman Ed Forbes just before Thanksgiving in 1975 for
lack of work. After her layoff she signed a union
authorization card in early December 1975. She was
recalled to work the second week in January 1976, by
Respondent's personnel officer, Joseph Ashbridge, and was
assigned to the relay department under the supervision of
Jim Malone. She received a raise in pay January 20, 1975.
While in the employ of the Respondent, Koff worked
about four jobs, which included leak testing, installing
filters, some painting, and packing screening plungers.
Since January, Koff protested to Supervisor Paul Festa
about working conditions in the shop. Her protest
consisted of complaints about not being paid for holidays.
She and another employee demanded more frequent
changes of wire strippers, she complained of pressure on
employees to work overtime, and she talked to other
employees about layoffs, the absence of a grievance
committee in the shop, no break periods even on piece
work, and other health hazards about which she and other
employees discussed calling in Occupational Safety and
Health Administration. Such hazards she described as
machines without safety guards, dipping parts into gaso-
line, and paint odors (vapors). Supervisor Paul Festa
acknowledged on cross-examination that it is possible Koff
complained to him (at the end of March) about a change or
speedup in the incentive rate, before she was transferred to
nonincentive work: and that Koff and other employees had
also complained about wages, hours, and working condi-
tions.
In early February Koff said she had a conversation with
Donald Bower in his shop during which time she asked him
about the Union; and that Bower said he wanted to learn
more about it and suggested they call a meeting. Thereaf-
ter, she arranged the first meeting which was held February
9 at the apartment of herself and Nancy Abramowski,
which she chaired. At that meeting they scheduled a
meeting for 2 weeks later. After the first meeting Koff said
Jim Malone was calling girls into his office contending that
girls who did not make the rate were costing the Company
too much money; and that if they did not make the rate,
Respondent would let them go. She explained to Foreman
Malone that she was on a new job and was beginning to
make the rate and that she did not foresee a problem.
However, she said she was moved around from job to job
and did not get the repetition of doing the job so as to
become good and fast in performing it.
Susan Koff further testified that she discussed the Union
with other employees particularly during the lunch hour in
the common lunch area, in the restrooms, and before and
after work. While discussions about the Union were carried
on during the lunch hour at their tables, Supervisor Paul
Festa was usually eating lunch in his visibly unenclosed
office approximately 15 feet away. Commencing in Febru-
ary, Koff said she organized, arranged, and hosted union
organizing meetings at her home by informing employees
of the date and place of the meetings, arranging rides for
the employees to and from the meetings, arranging for
babysitters, and urging employees to attend.
Koff said she did not receive another written warning
about her work and she contends without dispute she was
moved from job to job before she could learn one
adequately. She tried to urge the employees to attend the
February 23 meeting at her house, following the same
preparatory procedure she used in promoting the first
organizing meeting. At the March 3 meeting the employees
agreed to hold a party at the next union meeting in an
effort to get other employees to attend and increase their
organizing number. The party meeting was held March 13
at Koff's house. About 25 employees of diverse union-
management persuasions were invited. They had a very
lively pro and con discussion about the Union.
Koff hosted another meeting on March 18 when they
discussed piecework and compared their pay rates to pay
rates in another company which had a union contract. It
was at this juncture in her tenure of employment that she
protested to Festa about changing (speeding up) their
piecework rate. About 2 days thereafter, she was assigned
to a different job involving date stamping and leak testing.
When she asked why was she transferred, Festa said
because she would like it better.
On April 2, Koff and about four other employees came
back from lunch about 21 minutes late and Jim Malone
called them into his office and told them they held up the
production line and that he would be there watching next
Friday and if they were late again, they would be
terminated. However Koff said she had not seen nor had
she been given the written warning (G.C. Exh. 3) which
stated: "Returning late from lunch on Friday; failure to
make it back on time more than once. Girls have been
warned," which was not signed by her. During their late
lunch Koff said she and the employees were preparing
another union meeting for April 15 or June 14 at
Dorchester House. She invited the employees via her
aforedescribed procedure. In early April while working
opposite and talking to Jane Graham, Koff said she said,
"What we need here is a union," as Plant Manager George
Jacques walked by.
D. The Discharge of Susan Koff
Susan Koff continued to testify as follows:
Well, at 4:25 in the afternoon I remember Paul Festa
called me into his office. And he said, "Susan," he said,
"I told you to look busy when the bosses are watching."
He said, "George Jacques saw you today, and he said
your legs were crossed and you were drinking tea. And
he said, "She doesn't look busy."
And I said, "Paul, you mean to say that I'm fired
because George Jacques saw me, and my legs were
crossed and I was drinking tea?" And he said, "No. No.
No." He said, "Well," he said, "it's not just that. You're
slow."
And I said, "I'm slow? You know, can you give me
an example." I said, "I was almost doubling the rate on
what you said was my regular job right now," -which
is, you know, leak testing and date stamping.
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And he said, "Well," you know - he said, "Look.
Let me call Jim. Jim will explain much better than I
can." So I said, "No, Paul. I want to talk to you. I want
to hear it from you."
And then I said, you know, "What else was I slow
on? I was making over an hour a day on coils." And he
said, "Yeah and some of them were breaking, too."
And I said, "That's true. They were."
And I remember that at one point the machine I was
working on, there was this little kind of elastic band
thing inside. And the woman next to me had said, "You
know, your machine's not working very well."
And I said, "So that's the reason why? Because I was
breaking coils?" And then he said, "Well," he said,
"Well, you know, you have to work fast on nonincen-
tive jobs, too,"
And I said, "You mean like packing?" I said "Just
yesterday or just the other day you said to me, 'I've got
all this packing. It's got to be done, Susan. Can you do
it by 4:00 o'clock? It's really important.' And I said yes,
and I got that done, before 4:00 o'clock. I used to pack
all the time, and I did it fine."
And he said, "Well, I had to stand over you all the
time." And I just looked at him, and he said, "Look, let
me call Jim. Jim will explain it to you."
So Jim came down, and I said, "Jim, Paul told me
that I was fired because my legs were crossed and I was
drinking tea." And he said, "No, no, no. You weren't
fired. We never fire anybody here, unless they steal
something." He said, "No, you weren't fired. You were
just laid off."
And he said - you know, he really made that clear
to me. And then I said, "Well," you know, "why?" And
he said, "Well, you were too slow." And I said, "Well,
can you give me an example when I was too slow?"
And he said, "Well, the other day on that double heat
stake I had to show you how to do it fast." And I said,
"That was the first time I ever did the job. Paul showed
me how to do it. You showed me a better way. It was a
better way, and I started doing it that way."
I said, you know, "What else?" And he said, "Well,
you got two warnings, two written warnings." And I
said, "I only got one." You know, I had only seen, I
had only signed one written warning.
He said, "There's nothing we can do about it. It all
comes from the upstairs office." And he really stressed
that. He said, "I even remember a case of someone,
sometime, who was laid off. He was almost a foreman,
and it was something like this." And he made some
allusion to it, which I didn't understand what he was
saying that for.2
Fellow worker Mary Jones testified that in January 1976
while she was preparing to pertorm her work in connectors,
fellow employee Nicky Murch asked Plant Manager
2 Although Supervisor Festa's testimonial account differs from that of
Susan Koffs, it is particularly noted that he did not deny some of her
specific statements about the machine on which she worked was not
operating properly, and that on another occasion she was on a new job and
was shown how to perform it dillerently by Foreman Malone.
I credit Susan Kofl's testimonial account ofl her widespread and
unsecretive organizing activities conducted in and outside Respondent's
George Jacques if he had sent some kind of union salesman
around. Manager Jacques asked her if she was sure and she
said "yes." Manager Jacques left and returned 10 minutes
later and advised her should the union salesman come around
again not to sign union cards. Subsequently she observed the
Company's letter (G.C. Exh. 27) posted on the bulletin
board, which read as follows:
January 20, 1976
TO POLLAK EMPLOYEES:
As many of you know, in the past month or two
there has been an invasion of your privacy. Persons
unknown to us have obtained, through illegal means, a
great amount of information that is private and
confidential. Names, addresses, rates of pay, gross
wages, seniority lists of personnel, and other confiden-
tial information, appear to be known with accuracy by
persons outside the company.
We are upset and embarrassed that copies of these
records could be removed from our premises without
our knowledge.
Therefore, we are taking steps to keep these records
in a more secure area, with access to them limited to
only those employees who require the data in their
assigned work.
With these security precautions, it is unlikely that
this type of industrial espionage will occur again.
We hope this has not caused any of you undue worry
or unhappiness, and we regret that this type of problem
could have happened within our company.
If any employee has information that might help in
our investigation, we would appreciate your contacting
your foreman, Joe Ashbridge, George Jacques, or Doug
Grainger.
Norman B. Krim
General Manager
Also posted on the bulletin board 3 days later was
another letter (G.C. Exh. 28) which read as follows:
January 23, 1976
THE UNION SALES PITCH
During the last few days, a union salesperson has
been passing out literature and asking you to sign cards
authorizing these strangers to represent you.
What they want are your dues, initiation fees and
possible assessments. These union salespeople are paid
out of dues - this is their job - they are paid to sell
you -just as our salespeople are paid to sell a product.
It is our honest belief you would gain nothing by a
union here, except to find a place to deposit your dues.
Why pay for something you already have?
plant. I also credit Koff's complaints to management and fellow employees
about wages and working conditions in the plant because not only is her
testimony essentially undisputed but it is corroborated by Vivienne Shalom
and other employee witnesses. Her testimony regarding her concerted
activities is likewise corroborated by Vivienne Shalom, other employee
witnesses, and is practically acknowledged by supervisory witnesses for the
Respondent.
828
JOSEPH POLLAK CORP.
The one thing that some of our fellow employees
here don't realize is that once you sign one of these
cards you haven't much of a chance to get it back if you
change your mind. Lots of people want to be good
fellows and they let someone talk them into signing a
card. They are told, "It doesn't mean anything - you
can change your mind". But the honest fact is that
unions use these cards to try to prove that anyone who
signed a card has authorized a union to represent
them-and sometimes without an election. So don't
sign just to be an agreeable person, or because someone
is trying to pressure you!
Be careful when you put your name to anything. You
can be signing your name to a note - promising to pay
dues and possible assessments to a union for the rest of
your working days with our company. In addition, you
can be buying possible loss of pay in the event of a
strike, and the doubtful pleasure of walking picket
lines.
Douglas H. Grainger
Vice President/Manufacturing
Fellow employee Marilyn Broomstein testified that she
worked beside Koff occasionally and on occasion com-
plained to Supervisor Festa about having to do Koff's
work. She further testified that there were so many pro and
con discussions about the Union at lunch until she asked
Shalom not to discuss the matter any more at that time,
because some of them who were opposed to the Union did
not want to hear about it.
Koff denied she passed out union circulars before she
was terminated by the Respondent but she said Bowers did
pass out such circulars. Koff is 27 years of age and holds a
bachelor's degree from Cornell University and a master's
degree from Goddard, Cambridge.
Supervisor Paul Festa testified that after counseling and
orally warning Susan Koff he gave her her first and only
formal (written) warning (G.C. Exh. 2) on February II1,
1976, about not making the piece rate. He said the other
written warning (G.C. Exh. 3) was given Koff for returning
late from lunch. At the time he gave her the warnings,
Supervisor Festa said he did not know the employees were
talking union, although he did know the employees were
seeking to organize the shop. He said he first learned about
the organizing efforts of the employees when Respondent
posted its letters (G.C. Exhs. 27 and 28) heretofore
described.
Supervisor Festa said on April 13 he told Koff he had to
let her go because her work was unsatisfactory. He said she
thought George Jacques had something to do with it
because of the union talk. He tried to assure her she was
not correct. He watched Koff for a while on April 13 and
he brought Supervisors Malone and Jacques down to
watch her on three occasions that day. They observed her
sitting there with her legs crossed and looking away from
her table. He admitted he did not go to Koff to say anything
to her, except that he told her to pick up (speed up) you just
cannot sit here.
Festa further testified that on April 13 he told Koff to
pick up (speed up) the operation because she had girls to
feed the product and he advised her to stop wondering
around the plant. He said she continued to do these things
and he called Supervisor Malone and they watched Koff
daydreaming for a while and then he went to her and
discharged her. He said he did not know Koff was a union
adherent until he terminated her on April 13, at which time
Supervisor Festa said:
She thought that we were letting her go because she
was in this union drive. It had something to do with the
union. Now, I had known before that, you know, the
union was trying to get into our plant; but I did not
know who, you know, was involved in it. I had no way
of knowing.
The Respondent introduced in evidence records of
former discharges (G.C. Exhs. 29-33) which showed that
prior employees had been discharged for: (I) cannot make
the rate; (2) cannot make the rate; (3) cannot do the work;
(4) cannot do work; and (5) cannot do work. Finally,
Supervisor Festa said "no will" to do the work meant
"disoriented."
Joe Ashbridge, director of personnel, testified that on
April 12, 1976, Supervisor Festa came to him and advised
that Susan Koff was not willing to do the job on a day
rated basis because she sits there running the coils and
going in and out of the ladies room, doing about one-half
of a day's production. He said Koff did not seem to have
the will to do the job and in early February she was taken
off a day rated job because there were too many rejects He
said she was put on another job and was making the
incentive rate there. Her payroll record indicates that for
the week ending January 25 Koff was paid $94.21 for
incentive work; that for the week ending February I, she
was paid $64.12 for incentive work. See General Counsel's
Exhibits 6 g, h, i, j, k, I, and m, for several weeks ending
April 4, 1976. These data indicate makeup pay for
employees on incentive jobs who made less than the rate
they were suppose to make. Director Ashbridge said
Respondent uses the daily tickets to determine whether a
girl is making the rate. According to his interpretation of
the records he said Koff comes out 94 out of 97 on the
production list.
In reference to General Counsel's Exhibit 4 which
indicated "No will to do the job." Supervisor Malone
testified as follows:
Q. Could you please tell us what the words "no will
to do the job refer to?
A. Well, no effort to respond on the job. If she's on
the job she'd be, like I'd say, very lackadaisical; be just
doing so many. She'd be up and down, and back and
forth, in and out of the ladies room; constantly
drinking a cup of coffee, or having soup. And this is
going back for a time. And if she's on the job you've got
to get some type of volume out of her. And the volume
we were getting was not enough to keep the line going
A. (No response.)
Q. Falling down - your words that you used on
General Counsel's Exhibit 2 (showing document to
witness)?
A. (Nodding head.)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What do the words falling down on the job
mean to you?
A. To me?
Q. Yes?
A. It means that - well, that she's not making the
rates on the job. It's a fall down on the job, where she's
not averaging.
Q. Why didn't you use the same thing on the
termination form - General Counsel's 4?
A. No particular reason.
Q. Do these words - "No will to do the job" -
describe an attitude?
A. Well, no will to do the job, and the attitude -
like I say, it just don't seem like if you're on a day rated
job, she just doesn't care. She just didn't seem to care
about getting it done.
Supervisor Festa also said in General Counsel's Exhibit 2
(the written warning of February 11, 1976) he recommend-
ed Koff's discharge on April 12, 1976. However, Respon-
dent's piece rate records show that Koff made the rate and
did not make it by only $2.37, the makeup rate, but in 1
week when other employees did not make the makeup rate
($26.04-13 cents) and were not fired. Festa said his
decision was based in part upon these records and in part
upon her nonrated work record which lead him to conclude
that she was disoriented (daydreaming). He acknowledged
that the makeup records show Koff was improving and he
did not give her a warning about packing boxes on the
nonincentive work. There were no records to show how Koff
performed on the nonrated work. Supervisor Festa then
changed his testimony and said Koff was spoiling work 2
weeks after she returned in January, but after he talked to
her she said she would try harder. He continued to testify
as follows:
Q. What specific thing made you give up on April
12th, 1976, and decide to go to Malone and recommend
her discharge?
A. When I saw her sitting on a nonrated job,
working with one hand. She's on an operation of
assembling a washer and coil, which she's feeding two
girls work, in front of her; because I have an assembly
line operation, which one hand feeds the other, more or
less.
And she was putting this washer and coil together,
getting up, going down the back, getting a cup of
coffee, coming back, sitting down - at least four or
five times that day, getting up, and walking around,
wandering around; coming back, working slow. I never
seen anyone work that slow in my department.
Supervisor Malone said he discharged Koff for an
attitude, "no will to do the work." He discharged Susan
Koff and about 25 others in November because work was
slow in the connector department. When Koff was recalled
she was assigned to an hourly rate job because there was no
incentive rate work at that time. He said he noticed her
slow and improper performance on coils, which caused the
return of a lot of her work. He continued to testify as
follows:
A. Well, Paul Festa came to me on the problem
that was occurring. I talked with Paul on it. I watched
Susan on the job. And then we went and saw Mr.
Jacques, the plant superintendent; and discussed it.
And then it was decided that we - Susan would be
terminated the following day.
Q. As a matter of fact, Mr. Malone, were you at
one time a union member?
A. Yes, sir. I was.
With respect to Koff's discharge, Supervisor Jim Malone
testified that Supervisor Paul Festa had spoken to him
about Susan Koff in early January; that on April 12 he
came to him and said Susan Koff was not willing to do the
job (a day rate job) because she sits there running the coils,
going in and out of the ladies' room and doing about one-
half of a day's production. He said she did not seem to
have the will to do the job. In early February Koff was
taken off a rated job because there were too many rejects of
her work. Supervisor Malone acknowledged that Koff was
making the incentive rate.
Douglas Grainger, vice president in charge of manufac-
turing, testified from runoff sheets of production covering
150 employees, prepared 3 days before the hearing.
Foreman Jim Malone testified as follows:
Q. Who made the decision to discharge Susan
Koff?
A. It was brought to my attention by Paul Festa, to
me.
Q. What did you do, though?
A. And then I'd gone to my supervisor, my above
supervisor, George Jacques; and we discussed it.
Q. Who did you discuss the situation with?
A. With George Jacques, and myself, and Paul
Festa.
Q. When was this?
A. I'd say on the 12th.
Q. On the 12th of April?
A. (Nodding head.)
Q. And when Paul Festa came to you - who is
George Jacques?
A. He is the plant superintendent.
D. The Concerted and Union Activity of Vivienne
Shalom
Vivienne Shalom was employed by the Respondent in
October 1975 and remains in its employ to the present
time. She worked in the same relay department with Susan
Koff and heard her complain to Supervisor Festa about the
paint odors, pointing to the print on the jar which says
"Hazardous and should not be used without proper
ventilation"; that Koff and other employees complained
about getting dizzy if the windows were not opened; that
Koff also complained about the incentive rates as unfair
and hard to make, lack of periodic work breaks, good and
bad job assignments, and the lack of a decent place to eat
lunch.
Vivienne Shalom's testimony essentially corroborates
Susan Koff's testimony with respect to her organizing
activities both inside the plant as well as at the union
830
JOSEPH POLLAK CORP.
organizing meetings which she held in her home. In
February, Shalom was called into the office by Supervisor
Malone and advised that her fall down was high, that she
was losing money for the Company and Malone asked her
to try to improve. He also told her that if she felt any of the
rates were unfair to let him know. She advised him that she
was on a new job at that time and he said, "Well you seem
to be doing okay on it."
Shalom further testified that in January, when Respon-
dent posted its letter about the Union, the employees were
also notified they would receive a raise which they
(Shalom, et al. ) received in February. Around the end of
March the employees had a discussion in the department
during the lunch period about the Teamsters strike, at
which time they discussed the pros and cons of unions. She
noted that the people who had good jobs at the plant
tended to oppose the Union while people who had bad jobs
tended to favor the Union.
Shalom said she was with Susan Koff when they returned
late from lunch in March and that she too received an oral
warning (G.C. Exh. 38) which read as follows: "Failure to
make it back on time more than once." She did not see the
warning nor did she receive a copy of it. Susan Koff was
discharged on April 13 and she (Shalom) talked to just
about all the employees in her department, telling them
how unfair she thought Koffs discharge was, and that she
believed it was based upon Koffs union activity. She and
some of the employees attended another union meeting on
April 14 or 15 when they discussed the discharge of Koff
and decided to go to Supervisor Malone and ask why she
was discharged and, at the same time, advise him of their
own union activity. Thereafter she, Nancy Abramowski,
Mary Beth Menniker, and Mary Jones went to see
Supervisor Malone and the following conversation ensued:
Well, Nancy asked him - she'd like to know why
Susan was fired. And Jim seemed kind of put off by
this, and said, you know, "Why are you asking me? Ask
personnel." And then I think it was Nancy who said,
"Well, we want to know if Susan was fired for union
activity." And he said, "No way. I was a union man
myself, you know. It wasn't because of that."
And then one of us, I don't remember who, said that,
"Well, we'd like to just state that we're all involved in
the union drive." And, you know, Jim said, "Fine,
that's your right," and stuff.
Upon their request, Supervisor Malone, asked Supervisor
George Jacques if they (employees) could meet with him
about Koff's discharge. Supervisor Malone reported to
them that Supervisor Jacques said, "He has no reason to
meet with you people."
Shalom said she and Koff then prepared a union leaflet
which she and other employees discussed and circulated
during the month of May.
E. Respondent's Disciplinary Warning to Vivienne
Shalom
On May 19, while in the lunchroom with others, Shalom
engaged in a discussion with Alma Fennell which Shalom
testifies was as follows:
Okay. Well, I - the very beginning of lunch I had
just walked out of the bathroom; and when I got to the
lunch table there was a discussion going on about
George Jacques, and what a nice man he was, and stuff
like that. And I said, "I have no respect for that man at
all. You know, he didn't even have the guts to meet
with our small group." And I was referring to the small
group who wanted to find out why Susan was fired.
I quess Alma kind of blew up at me, and said that.
well, "Maybe George couldn't meet with you, because,
you know, he could lose his job, you know, if he did
meet with you; and maybe you're willing to risk your
job, but George isn't." And I said that I felt that we had
the right to know why Susan was fired.
And it just kind of went back and forth a while, I
mean. Before I even mentioned or brought up the-word
union Alma said something like, "And don't push the
union down my throat." And I said, you know, "I
didn't - I wasn't trying to push the union down your
throat." And you know, it just sort of went back and
forth, arguing.
And I - at some point towards the end, I guess it
was almost the end of lunch, Paul Festa stepped in and
told us to break it up. And he asked me what had
happened, and I said, "Well, that's between Alma and
I." And then he - you know - asked us to get back to
our work areas.
On the following day (May 20) Shalom said she received
a warning slip (G.C. Exh. 39) from Jim Malone, which in
substance read:
We have received complaints from your fellow workers
about your harassing and argumentative tactics
towards them at lunch time. This was so out of hand
that your supervisor had to stop it on 5/19/76.
Continuation of this will lead to disciplinary action
including discharge.
Shalom continued to testify as follows:
Well, he showed me the warning slip, and he said
something like, "Is this the way that it was?" Or
something. "It says here that you were creating
disturbances," and stuff like that. I said, you know,
"This makes it seem like I initiated this argument, that I
created disturbances before; and that isn't true, you
know."
And he says, "Well, if you don't - 1 wasn't there, so
if you don't think it's true, then don't sign it." And I
said, "I won't." And then he said "I'll tell George
Jacques that you don't want to sign it."
Q. Did you talk to Malone again after that?
A. Yeah. He said that he told George Jacques that
I didn't want to sign it; and even though I still didn't
want to sign it, it still goes. And I said that I didn't
think that it was fair, you know. I was pretty upset by
this point. I was crying, and stuff. And he said, "Well,
you know, if you don't get along with these people, then
- you know - just don't eat with them."
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Malone then asked Shalom if she wanted to
talk with Joe Ashbridge and she agreed to do so. She
described her conversation with Ashbridge as follows:
Q. Who was present?
A. Well, myself and Joe Ashbridge. And there was
a secretary there, who seemed busy with something.
Q. What was said, by whom, as best you can
remember?
A. Well, I went down there, and, you know, Joe
Ashbridge asked me what I wanted. And I said that I
didn't think it was fair that just I got this warning; that
I didn't initiate this conversation, and that I certainly
wasn't any more responsible than the other person.
And that I really thought it was unfair, and that it really
made it seem like I initiated it and that I had created
disturbances before. And that I really thought that was
unfair and untrue.
And he said, "Well," you know, "I was told that you
initiated the conversation, and that you've created
disturbances before at lunchtime." And I asked him
who told him that, and he said "Paul Festa". And I said
that I didn't think that that was fair, and that it wasn't
true. And we just kind of went back and forth on that,
because I didn't think it was fair. I didn't think it was
true.
And he kept saying, "Well, that's what I've been
told." And at one point I remember he said, well, I
should be happy I was being given a warning, because
it was like salvage or something. He said I was being
saved, and I should be grateful that I was being saved,
or something.
A composite of the credited testimony of record
established that while discussing the discharge of Susan
Koff with other employees in the lunchroom on May 19,
Vivienne Shalom and Alma Fennell got into a heated
discussion which culminated in an argument because
Shalom called Jim Malone an "asshole." Their argument
became so loud until fellow employee Dottie Powers called
Supervisor Festa who came into the room at the end of the
argument and ordered both girls to go to their work
stations. Supervisors Festa and Malone gave Vivienne
Shalom the warning (G.C. Exh. 39) heretofore described. 3
The parties stipulated that no warning was given to Alma
Fennell although she was involved in the altercation with
Shalom.
Festa further stated that when he entered the lunchroom
on April 19 he asked Shalom what was that all about and
she told him none of his business. He then asked Fennell
and Fennell gave her description of the incident as she
I3 credited the testimony of Vivienne Shalom with respect to her
organizing activities within and outside the plant from February 14 through
May 1977: and that she became a leading proponent of concerted and union
activity following the discharge of Susan Koff on April 13. because her
testimony is not only undisputed but essentially corroborated by Susan Koff
and other employee witnesses in this proceeding. I credit Shalom's version
of the altercation she had with fellow employee Alma Fennell on April 19
because her version is essentially consistent with the versions of Alma
Fennell and Supervisor Paul Festa. Shalom is 26 years of age and she has
completed 3 years of college. having attended the University of Wisconsin
and Simmons College. When the Respondent asked why she did not include
such information on her application, Shalom said she felt she would not
previously testified in this proceeding. He said he then gave
Shalom a warning note.
Based upon the foregoing credited evidence of record, I
conclude and find that Susan Koff was engaged in
widespread concerted and organizing union activity in and
outside the plant from late November 1975 through April
13, 1977, when she was discharged by the Respondent.
Fellow worker Mary Nickerson testified that she was
present on April 19 at lunch when Vivienne Shalom and
Alma Fennell were discussing Manager Jacques and
overheard Shalom say she had absolutely no respect for
Manager Jacques, because he did not have the guts to tell
them why Respondent discharged Susan Koff. Fennell and
others tried to tell Shalom that Supervisor Jacques' job was
on the line and the discussion got heated because some of
the employees think a lot of Supervisor Jacques. They then
engaged in an argument about Susan Koff's work and
some of them said Susan's work was not that great and
they did not want to work behind her. Nickerson said when
she worked behind Koff she had to talk to Koff about her
work. As Fennell started to leave, Shalom said Jacques was
an "ignorant asshole," and Fennell came back to the table
aggravated, with her hand on a cup, as Supervisor Paul
Festa entered the lunchroom at the behest of fellow
employee Dottie Powers. Nickerson said when she worked
with Koff the latter would go to the restroom and she
(Nickerson) would have to do Koffs work. She went on to
say that Koff went to the ladies' room every hour.4
A few days after Shalom received a warning from
Respondent for the altercation she had with Fennell, fellow
employee Vivian Allen said Supervisor Paul Festa asked
her, "was my friend in the bathroom harassing people
about the Union?" Allen said she asked Festa to whom was
he referring, and he said Shalom, and she said she did not
know. In response to questions by counsel, Allen said
Shalom never harassed her and she had never seen her
harassing anyone else. She acknowledged she did not sign a
union authorization card but admitted that she is a friend
of Koff and Shalom.
Based upon the foregoing credited evidence of record, I
conclude and find that Vivienne Shalom was engaged in
organizing activity within and outside the plant commenc-
ing in February; that she became an open and notorious
proponent for the Union and chief complainant about
Koffs discharge for union activity; and that Respondent
had knowledge of Shalom's activity on April 19, prior to
issuance of its warning to Shalom on or subsequent to that
date.
have been hired by the Respondent if she had disclosed the extent of her
education on her application.
4 I discredit Nickerson's testimony with respect to Koffs work perfor-
mance, not only because it appears to be unrealistic with respect to the
frequency with which a normal employee would go to the restroom, but
because I was also persuaded by her demeanor on the stand that she was
obviously unobjective in her testimony and tended to favor the position of
the Respondent. Moreover, on cross-examination she could not estimate
how many days she worked with Koff. The uncertainty of her testimony is
partially reflected on the record. I credit her account of the altercation
between Shalom and Fennell because it is essentially consistent with the
other credited testimonial accounts of record.
832
JOSEPH POLLAK CORP.
Analysis and Conclusions
It is well established by the credited evidence of record
that Susan Koff was engaged in widespread concerted and
union activity within and outside Respondent's plant from
January through April 13, 1976. Although the Respondent
denied having knowledge of Koffs organizing involve-
ment, it readily acknowledged that it knew about Koff's
concerted activity (complaints about wages and working
conditions) and the Union's organizing efforts among its
employees since January 1976.
With respect to Koff's organizing involvement, it is
particularly observed that during the months January
through April 13, 1976. the Respondent employed approxi-
mately 170 employees, 25 of whom worked in the relay
department where Susan Koff worked; that while Koff
discussed the Union during lunch periods in the relay
department, Supervisor Paul Festa ate lunch in his
unenclosed office only 15 feet away; that in January 1976
employee Nicky Murch asked plant manager George
Jacques in the presence of fellow employee Mary Jones,
whose testimony I credited, if he had sent a union salesman
to talk to the employees, and Manager Jacques asked her if
she was sure; that Manager Jacques thereafter advised
Murch not to sign a union authorization card; that
management (George Jacques) admitted that Supervisor
Malone received reports from employees about their union
activity; that on January 20 Respondent posted a letter
(G.C. Exh. 27) on its bulletin board which clearly inferred
that it was aware that its employees were being contacted
by telephone or home visit by union representatives; that
on January 23, Respondent posted a letter to its employees
which clearly demonstrated its opposition to unionization
of its plant; that on February 11, only 2 days after the first
union meeting on February 9, Respondent issued a written
warning to Koff and several other employees because they
did not make the assigned incentive rate on their jobs; that
after discussing the Union during lunch on April 2,
Respondent (Supervisor Jim Malone) issued Koff and four
other employees a verbal warning because they returned
from lunch 21 minutes late; and that in early April Koff
was discussing the Union with fellow employee Jane
Graham and just as she told Graham, "What we need here
is a union," Supervisor Jacques walked by them.
When the number (170) of the Respondent's employees,
and more particularly the number (25) of employees in its
relay department (among whom there was widespread
discussions about the Union initiated by Susan Koff) is
considered along with the fact that such discussions were
carried on daily during the lunch period only 15 feet away
from Supervisor Paul Festa, and that all of the heretofore
described actions were taken by Respondent within such
close proximity to the progressive union activity of Susan
Koff, knowledge of such activity is strongly inferred to
Respondent through its supervisory personnel (Paul Festa,
Jim Malone, and George Jacques) that Susan Koff was
spareheading the union organizing effort prior to her
discharge on April 13, 1976. The overwhelming weight of
circumstantial evidence compels a finding that no substan-
tial evidence exists to support Respondent's contention
that it did not know of Koffs involvement. Chauffeurs,
Teamsters and Helpers, Local 633 of New Hampshire,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America v.
N. L. R. B., 509 F.2d 490 (C.A.D.C., 1974).
I therefore conclude and find upon the foregoing
evidence and reasons that Respondent had knowledge of
Susan Koff's leadership role in the organizing efforts of the
Union. Combined with Susan Koffs union activity was her
constant complaints to management and fellow employees
about working conditions and the amount of the assigned
incentive rate, which complaints the Respondent acknowl-
edged it received. Moreover, in the mist of Koffs
complaints about the assigned rate and working conditions
she was assigned to several different jobs without any
complaints about her performance during her short
working tenure which certainly inhibited her attaining
maximum proficiency in performing any of them.
In the midst of Respondent's knowledge of the orga-
nizing activity of Susan Koff and its admitted strong
opposition to the organizing efforts of its employees, the
Respondent issued a warning to Susan Koff and several of
her fellow employees only 2 days after the first union
organizing meeting, purportedly because they did not make
the assigned rate on their jobs. In the same setting of Koff's
continued union activity, of which the Respondent was
fully aware, it issued a warning to Susan and four fellow
employees on April 2, because they returned from lunch 21
minutes late. This was the first time Koff had returned
from lunch late and was warned therefor.
On or about April 12 or 13, while Susan Koff continued
her organizing efforts and discussions about the Union at
her worktable during the lunch period, Supervisor Festa
called Supervisors Malone and Jacques to observe her
sitting with her legs crossed drinking tea. Supervisor Festa
admitted that he did not go to Koff and direct her to stop
sitting and proceed with her work, if in fact she was not
working, but rather, he walked up to her and without any
further warning said, "Susan, I told you to look busy when
the bosses are watching.... George Jacques saw you
today, and he said your legs were crossed and you were
drinking tea. And he said, she doesn't look busy." Koff
asked Festa was he advising her that she was fired just for
drinking tea and he said, "It's not just that. You're slow."
As Koff repeatedly asked Supervisor Festa for an explana-
tion, Festa continued to add new reasons to the reasons
that she was sitting with her legs crossed and was slow, and
finally, he suggested that they call Supervisor Jim Malone
to explain why she was laid off.
I find Supervisor Malone's explanation equally uncon-
vincing as being the real reason for Koff's discharge.
Malone told Koff she was not discharged but laid off, and
the Respondent's termination slip indicated the reason for
Koff's discharge was "No will to do the job." In its answer
to the complaint herein, Respondent said Koff was
terminated" among other reasons "because of her failure to
properly perform her work after many oral and some
written warnings and failure to properly report for work."
When I consider these latent, sundry, and expanding
reasons advanced by Respondent's managerial witnesses
(Festa, Malone, Jacques, and Personnel Director Ash-
bridge), in conjunction with their unconvincing demeanor
on the witness stand, I am unequivocally persuaded that
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were pretextual and were advanced by Respondent in
an effort to camouflage the real reason (concerted and
union activity) for Koffs discharge.5
An analysis of management's testimony with respect to
the work performance of Susan Koff clearly shows that
they (Respondent) were trying to build a case of work
incompetence against Koff to justify discharging her; that
is, although the Respondent ultimately contends that Koff
was slow and disoriented (a daydreamer) the records of her
incentive production, as analyzed by Respondent's own
vice president, Douglas Grainger, established that Koff
was making the assigned rate on incentive work. While
Koff's piecework production was not as high as most of the
employees on incentive jobs, she was not the lowest
producer. Koffs rate of performance would have to be
measured against the undenied fact that she was constantly
assigned from one job to another, without spending much
time on either, so as to gain a degree of proficiency which
might fairly represent a more accurate index of her
production potential. Likewise, a fair evaluation of Koffs
production record would also have to take into consider-
ation the fact that at times she was operating a machine
which the undisputed evidence established was not operat-
ing properly, and was causing several of the items of her
production to be rejected.
It is also noted that, in its efforts to build a case against
Koff upon which to predicate a discharge, the Respondent
precipitously issued to Koff and other employees a written
warning about their failure to make the assigned rate only 2
days after the employees held their first union meeting at
Koff's house, and that, on April 2, after the employees were
discussing the Union at a lunch hour from which they
returned 21 minutes late, Respondent issued to Koff,
Shalom, and two other employees, an oral warning for
returning late. Since this was the first such warning about
which Koff was ever advised, it is clear that Respondent
was also attempting to lay an evidentiary foundation to
support a discharge of Koff. I deem it extremely naive to
attribute to coincidence the timing of Respondent's
warning to Koff, Shalom, and other employees. In fact
common experience discredits it.
The fabrication of Respondent's grounds for discharging
Koff becomes more transparent when the record is read
showing how Respondent, during this proceeding, contin-
ued to expand on its reasons for discharging Koff, as
articulated by three or four top level managerial personnel,
only two of whom appear to have had direct contact with
or supervision over her. Consequently, when the record is
viewed in its entirety it is clear that the Respondent's
expanding, afterthought chain of reasons for discharging
Koff was a pretextual contrivance to conceal its real and
substantial reason (Koffs concerted and union activity) for
discharging her. Such a discharge was discriminatory and
violative of Section 8(a)(3) and (1) of the Act.
The credited evidence of record also established that
Vivienne Shalom attended and participated in the union
meetings held during February through May and that
subsequent to Susan Koffs discharge on April 13, she
became the chief union proponent and complainant about
5 Supervisor Festa was noticibly exaggerating in his testimony in an
effort to paint Koff as a slow, disoriented (daydreaming), incompetent
Koffs discharge in the plant. After a union meeting on
April 14 or 15, Shalom and a few other employees who
attended the meeting decided to contact Supervisor
Malone and advise him of their union involvement and ask
him why was Koff discharged. Malone denied Koff was
discharged for union activity and he advised them that
Supervisor George Jacques said he had no reason to meet
with them. Since Supervisor George Jacques refused to
meet and talk with them Shalom continued her discussions
about Koff's discharge during the lunch period on May 19,
when she became involved in a heated discussion with
Alma Fennell. During the discussion Fennell told Shalom
she was tired of hearing union talk day in and day out.
When Shalom said she had no respect for Manager Jacques
because he did not have guts to tell them why Koff was
discharged, Fennell interceded in the defense of Manager
Jacques, pointing out that his job was on the line. When
Shalom further vented her lack of respect for Jacques by
calling him an "ignorant asshole," the argument became so
loud and hostile that Supervisor Paul Festa was summoned
by employee Dottie Powers. When Shalom refused to
discuss the nature and substance of the argument with
Supervisor Festa, Festa then asked Fennell what the
argument was about and he evidently accepted Fennell's
account of the argument because he was thereafter
responsible for Shalom receiving the warning. The warning
in effect accused Shalom of using harassing and argumen-
tative tactics towards her fellow employees and warned
that continuation of such conduct would lead to disciplin-
ary action, including discharge.
It is particularly noted that the testimonial accounts of
Shalom's concerted effort to ascertain an explanation for
Koff's discharge are practically free from conflict. Thus,
the question presented for determination is whether
Vivienne Shalom was issued the warning from Respondent
on May 20 on account of her concerted and/or union
activities, or because she was creating unprotected dissen-
tion among Respondent's employees, or because she was
insubordinate to management. A review of the evidence in
this regard renders obvious the fact that the record does
not show that Vivienne Shalom was involved in, or
responsible for, any prior altercation among employees;
that prior to the lunchtime argument on May 19, Respon-
dent had not received any complaints from its employees
about Shalom harassing them; that Respondent's knowl-
edge of the nature of the lunchtime argument of May 19
was obtained only after Supervisor Festa took the initiative
to inquire about it, and then only from one party, Alma
Fennell, who was openly opposed to the Union and
supportive of Supervisor George Jacques; and that Re-
spondent relied solely on Fennell's account of the nature
and cause of the argument, and precipitously issued the
heretofore described warning only to Vivienne Shalom.
Since the argument of May 19 arose out of efforts on the
part of Vivienne Shalom, acting in concert with four fellow
employees, on behalf of a discharged employee (Susan
Koff), the discussions (argument) were unquestionably
protected concerted activity under the Act. The evidence
does not pose a question as to whether the Respondent
worker, while I observed Koff to be an extremely alert, intelligent, and
bright witness as one might expect by her extensive education.
834
JOSEPH POLLAK CORP.
knew about the concerted efforts of Shalom because
Supervisor Festa was involved in their initial concern (the
reason for Koff's discharge) and it was Festa who
ascertained that the lunch period argument on May 19 was
a result of the same inquiry.
Likewise, the evidence is clear that Alma Fennell was
opposed to the concerted as well as the organizing efforts
of Vivienne Shalom, and she articulated her opposition to
Supervisor Festa on his inquiry about the argument.
Consequently, Respondent's characterization of Shalom's
activity as "harassing and argumentative tactics towards
employees at lunch time" could only have had reference to
Shalom's protected concerted and organizing activity. This
interpretation is further supported by the testimony of
Vivian Allen, who testified that a few days after the
warning was issued to Shalom, Supervisor Paul Festa asked
her if her friend (Shalom) was in the bathroom harassing
people about the Union. I credited the testimony of Vivian
Allen because I was persuaded by her demeanor that she
was testifying truthfully, even though she acknowledged
she is a friend of Koff and Shalom.
Considering in isolation the above-described concerted
and organizing activity of Shalom which evolved into a
hostile lunch period argument with Alma Fennell on May
19, I nevertheless find it difficult to conceive that
Respondent's issuance of the warning to Vivienne Shalom
was disassociated from her concerted and organizing
activity. Certainly, when all of the evidence of the
Respondent's antiunion, discriminatory, and unlawful
conduct against Susan Koff is considered along with the
concerted and organizing activity of Vivienne Shalom, the
conclusion is inevitable that the Respondent issued a
warning to Shalom because she did engage in such
concerted and organizing activities.
I find no merit in Respondent's contention that the
warning was issued to Shalom because she caused
dissension among its employees and was insubordinate to
management. While I credit the testimony of Mary
Nickerson that Vivienne Shalom referred to Supervisor
George Jacques as an "ignorant asshole," it is particularly
noted that this reference was not uttered to Supervisor
Jacques who did not even overhear the characterization.
Therefore, N.L.R.B. v. Polynesian Arts, Inc., 209 F.2d. 846
(C.A. 6, 1954), and Farmers Co-operative Company v.
N.L.R.B., 208 F.2d 296 (C.A. 8, 1953), respectively, cited
by the counsel for the Respondent, are not applicable to
the facts herein. For the foregoing reasons I conclude and
find that Respondent's warning issued to Vivienne Shalom
on May 20 was substantially motivated by her concerted
and organizing activity on May 19, and prior thereto; that
the issuance of such warning was discriminatory and
violative of Section 8(a)(3); and that both violations
constitute a violation of Section 8(a)(l) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
6 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.
Respondent described in section 1, above, have a close,
intimate, and substantial relation 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.
V. THE REMEDY
It having been found that Respondent interfered with,
restrained, and coerced employees Susan Koff and Vivi-
enne Shalom in the exercise of their Section 7 protected
rights in violation of Section 8(a)(1) of the Act, and that it
discharged Susan Koff and issued a written warning to
Vivienne Shalom in violation of Section 8(aX3) of the Act,
the recommended Order will provide that Respondent
offer Susan Koff reinstatement to her job as of April 13,
1976, and make her whole for loss of earnings within the
meaning and in accord with the Board's decision in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 139 NLRB 716 (1962), except as
specifically modified by the wording of such recommended
Order; and that it withdraw the written reprimand
(warning) issued to Vivienne Shalom on May 20, 1976.
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCLUSIONS OF LAW
I. Joseph Pollak Corp., the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Electrical, Radio and Machine Workers of
America (UE), Local 262, is and has been at all times
material herein, a labor organization within the meaning of
the Act.
3. By discharging Susan Koff, the Respondent discrimi-
nated with respect to employees' hire and tenure of
employment in violation of Section 8(a)(3) and (1) of the
Act.
4. By issuing a written reprimand (warning) to Vivienne
Shalom and thereafter failing and refusing to withdraw the
same, the Respondent discriminated with respect to
employees' hire and tenure of employment in violation of
Section 8(a)(3) and (1) of the Act.
5. By these acts described in paragraphs 3 and 4 above,
the Respondent interfered with, restrained, and coerced its
employees in the exercise of rights protected by Section 7,
in violation of Section 8(a)(1) of the Act.
Upon the foregoing findings of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 6
Respondent, Joseph Pollak Corp., Dorchester, Massa-
chusetts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating in regard to tenure of employment of
employees by discharging them, and thereby discouraging
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.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees from engaging in concerted activities and
seeking membership in the Union or other labor organiza-
tion.
(b) Discriminating in regard to tenure of employment of
employees by issuing a written reprimand to such employ-
ees, thereby discouraging employees from engaging in
concerted activity and seeking membership in the Union or
other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policy of the Act:
(a) Offer Susan Koff reinstatement to her position or, if
such position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
previously enjoyed, and make her whole for any loss of pay
suffered by reason of the discrimination against her with
interest at the rate of 6 percent, in the manner described in
the section entitled "The Remedy."
(b) Withdraw and rescind the written reprimand (warn-
ing) issued to Vivienne Shalom and expunge such repri-
mand, or other matters relating thereto, from her records.
7 In the event the Board's Order is enforced by a Judgment of the 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
(c) 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 amount of backpay due under the
terms of this recommended Order.
(d) Post at Respondent's plant located at Dorchester,
Massachusetts, copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms provided by
the Regional Director for Region I, 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 conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
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 dismissed
insofar as it alleges violations of the Act not herein found.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
836