Lafayette Radio Electronics Corp.

National Labor Relations Board - Board Decisions

Mar 18, 1975

216 N.L.R.B. 1135 (N.L.R.B. 1975)

LAFAYETTE RADIO ELECTRONICS CORPORATION 1135
Lafayette Radio Electronics Corporation and Local
431, International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Case 29-CA-3650
March 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On May 31, 1974, Administrative Law Judge Irving
Rogosin issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a limited exception and a supporting 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, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order 1 as modified
herein.
We affirm the Administrative Law Judge's finding
that employee John Conway was discharged in
violation of Section 8(a)(3) of the Act. Contrary to
our dissenting colleague, we conclude that the
Administrative Law Judge, based upon his credibility
resolutions and findings of fact, properly found that
Conway was discharged for discriminatory reasons.
As the Administrative Law Judge has carefully set
out his findings and conclusions, we need not fully
restate the facts and circumstances of this case.
However, in affirming the Administrative Law
Judge, we note particularly the following findings
that support his ultimate conclusion.
(1) Respondent was long aware of Conway's
drinking habits since Conway had admittedly taken
days off because of excessive drinking. Conway was
not warned that his drinking habits might precipitate
his discharge , and it was only after the commence-
ment of the union organizing campaign that Respon-
dent became sufficiently interested in Conway's
drinking habits to hire detectives to document
Conway's drinking. It was only after Conway
became the leading union advocate that Respondent
concluded that Conway should be discharged.
(2) The Administrative Law Judge found that
Conway, though he consumed some amount of
alcohol during lunch on November 23, 1973, was not
1 For the reasons stated by the majority in Steel-Fab, Inc., 212 NLRB
363 (1974), we do not adopt the Administrative Law Judge's finding that
Respondent violated Sec . 8(aX5) of the Act, but rather enter a bargaining
order as a remedy for the serious unfair labor practices committed by
intoxicated at the time of his discharge by Joseph St.
Arnauld, manager of the Easy Pay Department.
(3) Closely prior to the time of Conway's discharge,
he was rated, according to Respondent's own
formula for rating collectors, the top-ranked collec-
tor in Respondent's employ.
(4) Based on his credibility findings, the Adminis-
trative Law Judge found that St. Arnauld on
September 14, 1973, and again on the day of
Conway's discharge, accused Conway, the leading
union advocate, of starting and fomenting trouble
among the collectors. Such statements by St. Arnauld
clearly show Respondent was aware of and was
opposed to Conway's union activity.
While our dissenting colleague would find that
Conway's deficiencies, especially his drinking habits,
caused Conway's discharge, we conclude that the
Administrative Law Judge was correct in concluding
that Respondent's alleged reasons for discharging
Conway were pretextual. The fact that Respondent
had long been aware of Conway's drinking habits
and its inaction prior to the organizing campaign
show a condonation of Conway's drinking habits.
Based on the Administrative Law Judge's factual
findings, and in particular those factual findings set
out above, we find that substantial evidence in the
record fully supports the Administrative Law Judge's
ultimate conclusion that Conway was discharged in
violation of Section 8(a)(3) of the Act.
Finally, we find merit in the General Counsel's
limited exception that the Administrative Law Judge
erred in not ordering Respondent to cease and desist
from engaging in surveillance of the union activities
and other concerted activities of its employees.
Respondent took action to monitor Conway's noon-
day activities only after Conway led the union
organizing campaign. Having affirmed the Adminis-
trative Law Judge's conclusion that Respondent's
surveillance of employee Conway's noonday activi-
ties violated Section 8(a)(1) of the Act, we shall order
Respondent to cease and desist from any such
unlawful surveillance.
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 Respondent,
Lafayette Radio Electronics Corporation, Syosset,
New York, its officers, agents, successors, and
Respondent . We shall modify the Administrative Law Judge's recommend-
ed Order and notice accordingly. Member Fanning , for the reasons stated in
his dissent in Steel-Fab, would find the violation of Sec 8(a)(5) and base the
bargaining order on that section as well as Sec. 8(a)(l)
216 NLRB No. 167
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigns, shall take the action set forth in the said
recommended Order, as herein modified:
1. Substitute the following for paragraph 1(b) of
the Administrative Law Judge's recommended Or-
der:
"(b) Engaging in surveillance of the union activities
of its employees."
2. Add the following to the end of paragraph
2(b):
"The appropriate unit is:
"All employees on the payroll of Lafayette
Radio Electronics Corporation including messen-
gers, clerks, Syosset telephone adjustment clerks,
keypunch trainees, clerk typists, typists, multilith
machine operator, telephone operators, corre-
spondents, Syosset mail order adjustors, key-
punch operators, and all persons employed in the
New Hyde Park industrial department who were
members of the unit as of May 31, 1972,
excluding all employees employed in the book-
keeping, art and advertising, engineering and lab,
data processing, personnel, security, controllers,
industrial, timekeeping and service and import
departments of Lafayette Radio Electronics
Corporation and all employees employed in the
following job titles: accounts receivable billers,
bookkeepers, secretaries, service technicians, tes-
ters, carpenters, credit authorizers, collectors, all
executive personnel, all administrative personnel
except individuals currently members of Local
431, all supervisory personnel, all management
trainees, purchasers and merchandisers employed
by Respondent at its Syosset warehouse and store
and at its other facilities located at 17 Union
Square West, New York, New York; Engineers
Road, Vanderbilt Industrial Park, Hauppauge,
New York; and 92-35 Merrick Boulevard, Jamai-
ca, New York, and all employees employed by
subsidiary corporations of Respondent, but in-
cluding collectors and the credit authorizer in the
easy pay department at our Syosset, New York,
facility."
3. Substitute the attached notice for the Adminis-
.rative Law Judge's notice.
MEMBER KENNEDY, concurring in part and dissenting
in part:
While I- agree with my colleagues that Respondent
committed one violation of Section 8(a)(1) of the Act
when Supervisor Woodman told employee Slater
that unit employees would lose overtime work if the
Union won the scheduled Board election, I disagree
with their adoption of the Administrative Law
Judge's finding that Respondent engaged in surveil-
lance of union activities in violation of Section
8(a)(1) of the Act; that Conway was discharged in
violation of Section 8(a)(3) of the Act; and that a
bargaining order is an appropriate remedy. Accord-
ingly, I dissent.
John Conway was hired on November 28, 1972, as
a collector in Respondent's Easy Pay Department
and continued in its employ for slightly less than a
year until November 23, 1973, when he was dis-
charged. His duties consisted of handling delinquent
installment accounts by mail and telephone through-
out the United States.
When he was hired, Conway filled out an employ-
ment application and health questionnaire. Although
he had sustained a heart attack in January 1972, and
was subject to high blood pressure, Conway failed to
disclose these conditions at the time he was hired.
In January 1973, Supervisor Woodman learned
from Conway's timecard that he had been returning
late from his half-hour lunch period. When Wood-
man spoke to him about this, Conway revealed for
the first time that he had a cardiac condition and
asked Woodman to extend his lunch period to 45
minutes so that he could take his noonday meal in a
restaurant outside the company premises instead of
the Respondent's canteen which provided only
vending machine foods; Respondent granted Con-
way an additional 15 minutes for lunch without pay.
Thereafter, until the time of his discharge, Conway
had lunch regularly at the Paddock Inn, a bar and
grill, several blocks from the company premises.
Conway was absent from work the day after the
Fourth of July, as well as on the day after Labor
Day, both times because of excessive drinking, as he
admittedly told Supervisor Woodman when he
telephoned that he would not be in. On September
14, 1973, St. Arnauld, manager of the Easy Pay
Department, sent for Conway and, in Woodman's
presence, reprimanded him for excessive absentee-
ism. St. Arnauld told Conway that, according to his
personnel file, he had been absent 14 times since the
first of the year. According to Woodman, collectors
were allowed 6 days of paid sick leave a year, and
absences due to illness in excess of that number were
without pay. Conway told St, Arnauld that all his
absences were for medical reasons, either because of
actual illness or appointments with the cardiac clinic,
and that he invariably notified Woodman in advance
of his medical appointments or telephoned him when
his absence was due to illness. St. Arnauld told
Conway that he could not tolerate such absenteeism
and cautioned him to curtail his absences in the
future.
Conway conceded that, during this meeting, St.
Arnauld asked him whether he drank, and that he
LAFAYETTE RADIO ELECTRONICS CORPORATION
replied (with a smile) that he did not .2
Conway was put under the surveillance of two
different professional investigators in the employ of
Lincoln Controls, Inc., an agency which Respondent
engaged on a monthly basis to investigate thefts,
pilferage, and other offenses. The surveillance was
conducted between November 16 and 23, 1973,
excluding November 22, Thanksgiving, when Re-
spondent's business was closed.
The investigators reported that they observed that
Conway consumed 5 - 5 - 4 - 3 and 5 drinks,
respectively, during his lunch period each workday
between November 16 and November 23. According
to the Administrative Law Judge, Conway admitted
"while he might have had one or two drinks, was
noncommittal as to whether he had had as many as
five" on the last day in question. On each occasion,
except for November 21,3 Conway drove to and from
lunch in his car. The investigators turned in their
reports to their superior and he reported the results
of the surveillance to Personnel Director Dornbaum
by telephone 5 minutes after Conway left the bar and
grill on November 23. Written reports were also
submitted to Dornbaum by Lincoln Controls, Inc.,
covering the surveillance on the days in question.
Personnel Director Dornbaum relayed to St.
Arnauld the oral report of the private investigator on
November 23. Before Conway could resume his
work, St. Arnauld summoned Conway and told him
that he had an unpleasant duty to perform. St.
Arnauld said that he understood that Conway had
been granted an additional 15 minutes for lunch
because he preferred not to eat on the company
premises , but it appeared that Conway was spending
his lunch period drinking. St. Arnauld said Conway
had five drinks of liquor at lunch that day, and three,
on November 21, and he said that he would have to
let him go . Conway denied this, but he admitted that
he might have had one or two drinks. However, he
was noncommittal about whether he had had as
many as five. Conway told St. Arnauld that he had
cleaned his dentures and used breath mints on his
return from lunch and asked Si. Arnauld whether he
had seen Conway take five drinks. St. Arnauld
admitted that he had not, but he said that it had been
so reported to him . When Conway asked St. Arnauld
7 Conway admitted that when he was hired, he was given a company
booklet which contained rules and regulations , the violation of which would
result in "appropriate disciplinary action." Among the rules was one
relating to drinking which reads as follows:
7. Bringing into the Company intoxicants, or narcotics, using
intoxicants or narcotics, having intoxicants or narcotics in one's
possession, or being under the influence of liquor or narcotics on the
Company's premises at any time. Liquor purchased for home
consumption must be retained in the original wrapper and properly
sealed until such package is t#en out of the Company.
3 On November 21 Business Agent Gilbert had gone to Respondent's
1137
whether he was being discharged because of his
union activity, the latter replied that that was not
what he said. Conway asked St. Arnauld whether he
claimed that Conway was incapable of doing his
work. St. Arnauld replied that he was not making
that contention, but he told Conway that he could
smell liquor on his breath.4 Conway suggested to St.
Arnauld that what he smelled were the mints.
The observation of Conway by the investigators
was simply to ascertain Conway's extended lunch
hour drinking habits, not his union activities, and
therefore there was no violation of the Act in doing
so. Conway had 14 absences from work from
January 1, 1973, until September 14, 1973, and
admitted that he was not able to work on the day
after the Fourth of July and the day after Labor Day
because he had been drinking too much. When St.
Arnauld asked him whether he drank, Conway
denied that he did. The surveillance was obviously
conducted simply to ascertain what the true facts
were concerning Conway's drinking.
While the investigators observed the meeting
between Conway and Business Agent Gilbert during
the course of their monitoring of Conway's lunch-
time drinking, there is no evidence that any surveil-
lance of union activities occurred, or that surveil-
lance of union activities was the purpose for their
observation of Conway at lunch. There is no showing
that the investigators monitored the conversation
between Conway and Gilbert, nor did they act to
give Conway and Gilbert the impression that they
were being surveilled concerning union business or
any other business. Indeed, as found by the Adminis-
trative Law Judge, the investigators believed Busi-
ness Agent Gilbert to be another employee.
There is simply no substantive evidence upon
which to predicate a finding of surveillance of union
activities in violation of the Act, and I therefore
would reverse this finding of a violation by the
Administrative Law Judge.
Furthermore, the evidence does not establish that
Conway was discharged because of his prior union
activities . It was Conway's drinking habits, which
were confirmed by the investigation, that caused
Respondent to discharge him. Certainly, Respondent
knew of his earlier absences from work and had
place of business in connection with matters relating to the election. After
concluding his business with management representatives, Gilbert met
Conway for lunch, and the two men walked to the Paddock Inn. Each
consumed several drinks of scotch whiskey and soda with their lunch. They
discussed the impending election and Conway 's role as union observer.
After lunch, Gilbert accompanied Conway to the parking lot and the plant
entrance.
4 St. Arnauld also testified that after Conway returned from lunch, he
saw him standing against the wall talking to Virginia Remsen, an office
worker supervisor, and he told her to send Conway to him. According to St.
Arnauld, when he later spoke to Remsen, she held her nose to indicate that
she had smelled liquor on Conway's breath.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimanded Conway for his bad record of absences
from work. The reprimand included two absences
which were admittedly due to Conway's excessive
drinking on two holidays. Conway was told on
September 14 that such absenteeism could not be
tolerated. Respondent did not condone Conway's
actions . Also, in that same conversation Respondent
asked Conway whether he drank. Conway, in
contrast to his previous admissions about excessive
drinking, said that he did not. Conway's smile does
not detract from his denial. It is understandable that
Respondent would seek to ascertain the true facts
from an investigation because it was apparent that
Conway's earlier admissions of excessive drinking
and his later denial that he drank were inherently
inconsistent.
Conway's earlier union activity cannot insulate
him from a lawful nondiscriminatory discharge. This
view has been expressed by the Board in Klate Holt
Company, 161 NLRB 1606, 1612 (1966), where the
Board stated:
Moreover , even if we were prepared to find that
Respondent was seeking an opportunity to
terminate Davis because of its annoyance with
the way in which he engaged in protected activity,
we would not , in this case, find that Respondent
discriminatorily discharged him. The mere fact
that an employer may desire to terminate an
employee because he engages in unwelcome concert-
ed activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an
employee provides an employer with a sufficient
cause for his dismissal by engaging in conduct for
which he would have been terminated in any event,
and the employer discharges him for that reason, the
circumstance that the employer welcomed the
opportunity to discharge does not make it discrimi-
natory and therefore unlawful. [Emphasis supplied.]
In my view, the single 8(a)(1) statement does not
supply the evidence for establishing a discriminatory
motivation for the discharge of Conway . For over 30
years , this Respondent and the Union have been
engaged in collective bargaining . At the time of the
hearing in this case , they were parties to four
separate contracts covering office employees, sales
and warehouse employees, and employees at two
branch locations.
Since I would find that the General Counsel has
not established an 8(a)(3) violation, I would not, of
course , enter a bargaining order against Respondent
to remedy one 8(a)(1) violation.
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 Local
431, International Union of Electrical , Radio &
Machine Workers , AFL-CIO, or any other labor
organization of our employees by discriminating
in regard to their hire or tenure or terms and
conditions of employment because of their union
affiliation or other protected concerted activities
except to the extent authorized by the proviso of
Section 8(a)(3) of the Act, as amended.
WE WILL NOT engage in surveillance of the
union activities of our employees.
WE WILL NOT threaten our employees with loss
or reduction of overtime work or other reprisals
for engaging in union activities.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the right to
self-organization , to form labor organizations, to
join or assist Local 431, International Union of
Electrical , Radio & Machine Workers , AFL-CIO,
or any other labor organization , to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of mutual aid or protection , or to refrain
from any or all such activities except to the extent
that said right may be affected by an agreement
requiring membership in a labor organization, as
provided in the proviso to Section 8(a)(3) of the
Act, as amended.
WE WILL offer John J. Conway immediate and
full reinstatement to his former position or, if that
position is no longer available , to a substantially
equivalent position without prejudice to his
seniority and other rights and privileges, and
make him whole for any loss of earnings he may
have suffered by reason of the discrimination
against him with interest at 6 percent per annum.
WE WILL, upon request, bargain collectively
with Local 431 , International Union of Electrical,
Radio & Machine Workers , AFL-CIO, as the
exclusive representative of all our employees in
the bargaining unit described below with respect
to rates of pay, hours of employment, or other
conditions of employment . The appropriate bar-
gaining unit is:
All employees on the payroll of Lafayette
Radio Electronics Corporation including
messengers, clerks, Syosset telephone adjust-
ment clerks, keypunch trainees , clerk typists,
typists, multilith machine operator, tele-
LAFAYETTE RADIO ELECTRONICS CORPORATION 1139
phone operators, correspondents, Syosset
mail order adjustors, keypunch operators,
and all persons employed in the New Hyde
Park industrial department who were mem-
bers of the unit as of May 31, 1972,
excluding all employees employed in the
bookkeeping, art and advertising, engineer-
ing and lab, data processing, personnel,
security, controllers, industrial, timekeeping
and service and import departments of
Lafayette Radio Electronics Corporation
and all employees employed in the following
job titles: accounts receivable billers, book-
keepers, secretaries, service technicians, tes-
ters, carpenters, credit authorizers, collec-
tors, all executive personnel, all administra-
tive personnel except individuals currently
members of Local 431, all supervisory
personnel, all management trainees, pur-
chasers and merchandisers employed by
Respondent at its Syosset warehouse and
store and at its other facilities located at 17
Union Square West, New York, New York;
Engineers Road, Vanderbilt Industrial Park,
Hauppauge, New York; and 92-35 Merrick
Boulevard, Jamaica, New York, and all
employees employed by subsidiary corpora-
tions of Respondent, but including collectors
and the credit authorizer in the easy pay
department at our Syosset, New York,
facility.
All our employees are free to become and remain
or to refrain from becoming or remaining members
of the above-named labor organization or any other
labor organization.
LAFAYETTE RADIO
ELECTRONICS
CORPORATION
DECISION
STATEMENT OF THE CASE
IRvING ROGosiN, Administrative Law Judge: The
amended complaint, issued February 6, 1974, as further
amended at the hearing , herein called the complaint,
alleges that Respondent (1) since about August 31, 1973,
has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate
voting group despite the Union's status as majority
representative ; (2) on or about November 6, warned and
threatened employees with loss of overtime earnings if they
voted for the Union in a scheduled Board election; (3) on
or about November 21 and 23, 1973, and various other
dates during the months of October and November, kept
under surveillance the meeting places and activities of the
Union, its business representative, and its members, and
the concerted activities of its employees; and (4) on or
about November 23, 1973, discharged, and thereafter failed
and refused to reinstate, John Conway because of his
union or other protected concerted activities, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the
Act.' Respondent's answer generally admits the procedural
and jurisdictional allegations but denies the substantive
allegations of the complaint.
Pursuant to due notice, a pretrial conference was held
before Chief Administrative Law Judge Eugene G. Goslee,
on February 11, 1974, at Brooklyn, New York. Hearing
was held before me on February 26 to 28, inclusive, and on
March 1 and 4, 1974, at Brooklyn, New York. All parties
were represented by counsel, were afforded full opportuni-
ty to be heard, to examine and cross-examine witnesses, to
introduce oral and documentary evidence relevant and
material to the issues, to argue orally, and to file briefs and
proposed findings of fact and conclusions of law. Pursuant
to an extension, the parties were granted until April 15,
1974, to file briefs and proposed findings of fact and
conclusions of law. Briefs were timely filed by all the
parties, but no proposed findings of fact or conclusions of
law have been filed.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein,
Respondent has maintained its principal office and place
of business in the Town of Syosset, New York, referred to
as the Syosset warehouse and store, and various other retail
outlets in the State of New York, where it has been
engaged in the retail sale and distribution of electronic
equipment and related products.
During the year preceding issuance of the complaint, a
representative period of its annual operations, Respondent
derived gross revenues in excess of $500,000, and sold and
distributed from its Syosset warehouse and other stores,
products valued in excess of $500,000, of which in excess of
$50,000 were shipped from said places of business in
interstate commerce directly to States of the United States
other than the State in which it is located.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, at all times material
herein, Respondent has been an employer engaged in
1 Designations herein are as follows : The General Counsel, unless
otherwise stated or required by the context , his representative at the
hearing; Lafayette Radio Electronics Corporation, Respondent, the
Employer or the Company; Local 431, International Union of Electrical,
Radio & Machine Workers, AFL-CIO, the Charging Party or the Union;
the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S.C. 151 , et seq ), the Act; the National Labor Relations Board, the
Board. The charge was filed and served on November 26, 1973. Unless
otherwise indicated all events occurred in 1973.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 431, International Union of Electrical, Radio &
Machine Workers, AFL-CIO, the Union herein, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent and Union have been engaged in collective
bargaining for some 30 years. At the time of the hearing,
there were four separate collective-bargaining agreements
in existence between the parties; one , commonly referred
to as the Syosset office contract, covering office employees;
another, referred to as the Syosset plant contract, covering
sales and warehouse employees; and two others, covering
branches located at Paramus , New Jersey, and Scarsdale,
New York. The office contract, effective from June 1, 1972,
to May 31, 1975, expressly excludes the collectors and
credit authorizer involved in this proceeding.
B. The Organizational Campaign
Early in August John Conway, a collector in the Easy
Pay Department, communicated with Union Business
Representative Sidney Gilbert to obtain union representa-
tion for the collectors. Gilbert supplied Conway with
authorization and checkoff cards, through Chief Steward
Jean Lewis (nee Wells) of the office workers and, on
August 22, Conway procured the signatures of six of the
eight collectors to membership and dues checkoff authori-
zation cards, which he turned over to the chief steward,
who forwarded them to Gilbert.
On August 24 Gilbert wrote Respondent, demanding
recognition and requesting bargaining on behalf of the
collectors. A week later, on August 31, having received no
response , Gilbert telephoned Director of Personnel Charles
Dornbaum, asked him whether he had received the letter
and whether the Company was prepared to recognize the
Union on behalf of the collectors. Dornbaum replied that
the Company would not recognize the Union and advised
Gilbert to apply to the Labor Board if the Union intended
to represent that group of employees.
Consequently, on September 6, the Union filed a petition
for unit clarification, covering the collectors in the Easy
Pay Department. (Case 29-UC-5 1.) On September 11, and
again on September 14, the Regional Office scheduled an
informal conference on the UC petition for September 24.2
Gilbert designated Conway to attend the conference,
notified Personnel Director Dornbaum that Conway would
act as employee representative of the collectors and
arranged to have Conway excused that day. This was later
confirmed by Conway with his supervisors , Dennis R.
Woodman and Joseph St. Arnauld, and Conway attended
the conference on September 24.
At the conference, the Union withdrew its UC petition
and filed a representation petition (Case 29-RC-2447)
seeking a unit of "All Collectors in the Easy Pay
Department." At the formal hearing on this petition, held
on October 12, the Union amended its petition to include,
with the unit of eight collectors, the credit authorizer.
On November 2 the Regional Director issued his
Decision and Direction of Election in Case 29-RC-2447,
finding that the collectors and credit authorizer, though not
constituting an appropriate unit, did constitute an appro-
priate voting group and directed that an election be held
amon& the collectors and credit authorizer to determine
whether they wished to be included with the existing unit
of office employees covered by the "Syosset Office
Contract."
No request for review of the Regional Director's
Decision and Direction of Election was taken, and an
election was held on November 27. With the filing of the
unfair labor practice charge in the instant proceeding, on
November 26, 1973, alleging violations of Section 8(a)(1),
(3), and (5), the ballots cast in the election held on
November 27 were impounded, and on January 21, 1974, a
complaint was issued against Respondent, alleging viola-
tions of Section 8(axl) and (3). On February 6, 1974, the
amended complaint, alleging violations of Section 8(a)(1),
(3), and (5), issued . The Regional Director granted the
petitioner 's request to withdraw the petition in Case 29-
RC-2447, vacated the Decision and Direction of Election
and nullified the election.
C: Interference, Restraint, and Coercion
1. Threat of loss of overtime
On or about November 6, sonic 3 weeks before the
scheduled election, Herbert Slater, a collector, questioned
Dennis R. Woodman, collection manager of the Easy Pay
Department, in the presence of Richard Fiore, a senior
collector and Woodman's assistant, about what changes
might occur if the Union were selected to represent the
collectors. Woodman admittedly told the men that if the
Union wpn the election the Company would apply the
same policy for collectors which was in effect for its
unionized employees of having a supervisor present
whenever the collectors worked overtime. In that case,
Woodman stated, a supervisor would be required to be
present when one or more collectors worked overtime, and
since he, or whichever supervisor was assigned, could
perform the work which would otherwise have been
performed by the collectors, the services of collectors
would not be required for overtime work. Slater subse-
quently related Woodman 's statement to other collectors.
Contrary to Woodman's statement that, under the union
contract, a supervisor was required to be present whenever
a union employee worked overtime, neither of the union
contracts contained such a provision. Moreover, witnesses
for the General Counsel, including Business Representa-
tive Gilbert, who administered the office workers' contract
on behalf of the Union, consistently testified that collectors
had customarily worked overtime prior to the election
2 The second letter changed the time of day for the conference.
LAFAYETTE RADIO ELECTRONICS CORPORATION 1141
Without supervision. Moreover, if, as Respondent main-
tained, a supervisor was required to be present, as a matter
of company policy, whenever a union employee worked
overtime , there was no showing that the Union or the
employees had ever been apprised of such policy. If,
indeed, such policy existed, it was apparently observed in
the breach , since the record discloses that employees in the
Easy Pay, as well as other departments, frequently worked
overtime without supervision.
Conceivably, Woodman may have assumed that be-
cause, under the office workers' contract, supervisors were
permitted to perform unit work, the results which he
predicted would inevitably occur. If so, this would only
compound the mischief caused by his statement because it
underscored the likelihood of overtime work being
preempted by supervisors. Woodman's statement, more-
over, can hardly be discounted as a prediction of the
possible consequences of unionization based on business
exigencies . The statement constituted, and was reasonably
construed, as a direct threat that if the Union won the
election, the collectors would be deprived of overtime
work. Nor is the effect of Woodman' s statement mitigated
by the fact that Slater, the collector, initiated the inquiry
which occasioned the statement.
Under the circumstances , it is not surprising that Slater
related Woodman's statement to other collectors, a result
which Woodman should reasonably have anticipated.
It is , therefore, found that by Woodman's statement to
Slater and Fiore regarding the change in overtime work, if
the Union were selected as bargaining agent , Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in the Act, within the
meaning of Section 8(axl).
2. Surveillance
It is conceded that Respondent maintained surveillance
over Conway between November 16 and 23 by utilizing the
services of a private investigative agency.
The only issue is whether in engaging in this surveillance
Respondent was motivated by legitimate reasons or by
considerations proscribed by the Act. This issue is so
closely related to the circumstances surrounding Conway's
discharge that resolution is best deferred until a determina-
tion of that issue.
D. Discrimination in Regard To Hire and Tenure
of Employment
1. Conway's employment history with Respondent
John J. Conway was hired on about November 28, 1972,
as a collector in Respondent 's Easy Pay Department and
continued in its employ until November 23, 19731 when he
was discharged under circumstances presently related. His
duties consisted of handling delinquent installment ac-
counts by mail and telephone throughout the United
States.
When he was hired, Conway filled out an employment
application and health questionnaire . Although he had
sustained a heart attack in January 1972, and was subject
to high blood pressure, Conway failed to disclose these
conditions on the questionnaire.
Several months later, in January, Supervisor Woodman
discovered from Conway's timecard that he had been
returning late from his half-hour lunch period. When
Woodman spoke to him about this, Conway revealed for
the first time that he had a cardiac condition and asked
Woodman to extend his lunch period to 45 minutes so that
he could take his noonday meal in a restaurant outside the
company premises instead of the canteen, which provided
only vending machine foods. Woodman asked Conway
why he had failed to disclose his heart condition in the
health questionnaire. Conway said he considered it
unnecessary because he was feeling well at the time. No
disciplinary action was taken against Conway, and
Respondent concedes that it condoned this dereliction and
does not rely on this as a ground for Conway's discharge.
After Conway furnished Woodman with a medical
certificate confirming his heart condition, Woodman
agreed to take up Conway's request with the personnel
department. Several days later, Woodman told Conway
that Personnel Director Dornbaum had denied Conway's
request but had agreed to leave the decision to Woodman.
Woodman thereupon granted Conway an additional 15
minutes for lunch without pay. Thereafter, until the time of
his discharge, Conway had lunch regularly at the Paddock
Inn, a bar and grill, several blocks from the company
premises on the opposite side of the turnpike.
According to Conway, he was told when he was hired
that he would receive a review in 6 months to consider
whether he was entitled to a raise . Consequently, in July or
August, he asked Woodman for a raise. Woodman said he
would think about it. About 10 days later, Conway asked
him whether he had reached a decision. Woodman refused
him a raise, with the comment that he did not like
Conway's attitude. When Conway asked him to be more
specific, Woodman refused to discuss it further. Conway
asked Woodman to arrange an interview with Woodman's
superior, Joseph T. St. Arnauld, manager of the Easy Pay
Department, whose office was adjacent to Woodman's,
and the interview was arranged in a matter of minutes.
According to Conway, St. Arnauld told him that he would
like to give him a raise but that Woodman did not approve,
and he would have to abide by Woodman's decision. When
Conway threatened to resign, St. Arnauld suggested that
Conway reconsider and told him that he would do so, as
well, and would grant him a raise when he deserved it. St.
Arnauld admitted at the hearing that he would have been
reluctant to accept Conway's resignation at that time or at
any time thereafter until September.
Conway was absent from work the day after the Fourth
of July, as well as on the day after Labor Day, both times
because of excessive drinking, as he admittedly told
Woodman when he telephoned that he would not be in. On
September 14 St. Arnauld sent for Conway and, in
Woodman's presence, reprimanded him for excessive
absenteeism. St. Arnauld told Conway that, according to
his personnel file, he had been absent 14 times since the
first of the year. According to Woodman, collectors were
allowed 6 days of paid sick leave a year, and absences due
to illness in excess of that number were permitted without
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay. Conway told St. Arnauld that all his absences were for
medical reasons , either because of actual illness or
appointments with the cardiac clinic and that he invariably
notified Woodman in advance of his medical appointments
or telephoned him when his absence was due to illness. St.
Arnauld told Conway that he could not tolerate such
absenteeism and cautioned him to curtail his absences in
the future.
During this discussion , according to Conway, St.
Arnauld asked him why he was "starting trouble" with his
collectors . Conway denied that he was starting trouble and
stated that the collectors wanted union representation.
Conway asked St . Arnauld whether he was "picking on
[him] because of [his] union activities," and the latter
replied , "I didn't say that." Neither St. Arnauld nor
Woodman specifically denied the remarks imputed to St.
Arnauld by Conway, and his testimony in this regard
stands uncontradicted.3
Conway conceded that, during this meeting, St. Arnauld
asked him whether he drank , and that he replied with a
smile, that he did not, apparently leaving St. Arnauld to
draw his own conclusions . Conway also mentioned, in
discussing his cardiac condition , that his physician had
advised him to take an occasional day off when he felt
tired . Conway asked St . Arnauld whether the personnel
department had notified him that he was to be excused 1
day the following week to attend an informal conference at
the Regional Office of the Board . St. Arnauld said that he
had not been aware of it. St . Arnauld also took occasion
during this conversation to criticize Conway in regard to
his failure to adhere to company policy regarding the use
of collection form letters instead of letters which he
prepared himself.4 According to Woodman, he had also
criticized Conway in April, May, and June for leaving his
desk to obtain files, which he should have asked his
secretary to do, and spending too much time talking to
other collectors while doing so. There was no rule or
company policy against collectors conferring with one
another, and Woodman apparently made no effort to
ascertain whether Conway 's discussions with other collec-
tors were work-related.
After St. Arnauld's discussion with Conway on Septem-
ber 14 regarding his absenteeism , Conway took an
unauthorized coffeebreak, bringing his coffee to his desk,
in violation of company rules, according to St. Arnauld.
When St. Arnauld sent for Conway and chided him,
Conway told him that he had upset him so badly that he
needed some coffee . Conway apologized, however, said it
would not happen again, and returned the coffee.
2. Events culminating in Conway's discharge
On November 21 Business Agent Gilbert went to
Respondent's place of business in connection with matters
relating to the election . After concluding his business with
3 Although Conway admittedly faded to mention this in his pretrial
affidavit, in view of St. Arnauld's and Woodman's failure to deny the
statement, Conway's testimony is credited.
4 Long before Conway had been hired, Respondent had been the subject
of an investigation by the Federal Trade Commission (FTC) because of
alleged improper methods of collection, and it is probable that Respondent
was concerned that in writing his own letters, Conway might run afoul of
management representatives , Gilbert met Conway for
lunch , and the two men walked to the Paddock Inn. Both
men lunched on beef stew , and each consumed two drinks
of Johnnie Walker scotch whisky and soda with their
lunch . They discussed the impending election and Con-
way's role as union observer . After lunch, Gilbert accom-
panied Conway to the parking lot and the plant entrance.
Unbeknownst to either of these men , Conway had been
kept under surveillance by two different professional
investigators in the employ of Lincoln Controls , Inc., an
agency which Respondent engaged on a monthly basis to
investigate thefts, pilferage, and similar offenses. The
surveillance was conducted between November 16 and 23,
excluding November 22, Thanksgiving, when Respondent's
business was closed.
According to these investigators , they observed that
during lunch, Conway consumed five drinks on Friday,
November 16; the same number on Monday, November
19; four drinks the following day; three , the next , while in
the company of Gilbert, whom the investigator took to be
an employee ; and five drinks on November 23, in each
instance with soda or water and ice. On each occasion,
except for his lunch date with Gilbert, Conway drove to
and from lunch in his car . The investigators turned in their
reports ' to their superior and , on the last day, the operative
reported the results of his surveillance to Personnel
Director Dornbaum by telephone 5 minutes after Conway
left the bar and grill . Written reports were also submitted
to Dornbaum by Lincoln Controls, Inc., covering the
surveillance on the days in question.
According to Conway, he had only two drinks of scotch
and soda during lunch on the date in question . He drove
back to work in his car and arrived on time . After clocking
in, he first went to his desk, but left almost immediately for
the restroom, where he cleaned his dentures. He then
bought some Lifesavers from the vending machine and put
two mints in his mouth.
Dornbaum had, in the meantime, telephoned St. Ar-
nauld to relay the report of the private investigator . Before
Conway could resume his work, St. Arnauld sent for him.5
When Conway arrived, St. Arnauld told him that he had
an unpleasant duty to perform. St. Arnauld said that he
understood that Conway had been granted an additional
15 minutes for lunch because he preferred not to eat in the
company cafeteria , but it appeared that Conway was
spending his lunch period drinking . St. Arnauld then
charged Conway with having had five drinks of liquor at
lunch that day, and three on November 21, and said that
he would have to let him go. Conway denied St . Arnauld's
charge and, while admitting that he might have had one or
two drinks, was noncommittal about whether he had had
as many as five. Conway told St. Arnauld that he had
cleaned his dentures and used breath mints on his return
from lunch and asked St. Arnauld whether he had seen him
take five drinks. St. Arnauld admitted that he had not but
that agency's policies.
5 St. Amauld testified that after Conway returned from lunch, he saw
him standing against the wall talking to Virginia Remsen, an office worker
supervisor, and told her to send Conway to him. According to St . Arnauld,
when he later spoke to Remsen she held her nose to indicate that she had
smelled liquor on Conway's breath.
LAFAYETTE RADIO ELECTRONICS CORPORATION
said that it had been so reported to him . When Conway
asked St . Arnauld whether he was being discharged
because of his union activity , the latter replied that that
was not what he said . Conway asked St . Amauld whether
he claimed that Conway was incapable of doing his work.
St. Arnauld replied that he was not making that claim but
told Conway that he could smell liquor on his breath.
Conway suggested to St . Arnauld that what he smelled
were the mints.
Conway testified that, during this discussion, St. Arnauld
accused him of fomenting trouble regarding the collectors
and criticized Conway for some collection letters he had
written to customers . Finally, Conway left and walked to
his desk, a distance of some 20 feet , and after relating to
the collectors what had occurred, removed his personal
belongings and left. Apart from the odor of liquor on
Conway's breath and his flushed appearance, St. Arnauld
testified to no extraordinary or erratic behavior on
Conway's part.
Conway reported his discharge to Business Representa-
tive Gilbert, who communicated with Personnel Manager
Dornbaum in an effort to obtain Conway's reinstatement
with backpay. Dornbaum told Gilbert that Conway had
been discharged because he had been drunk , and, while
conceding that he did not see Conway on the day of his
discharge, told Gilbert that it had been reported to him
that Conway had been drinking. Conway received his final
paycheck by mail several days later.
St. Arnauld never categorically told Conway on the
day of his discharge that he believed him to be drunk. St.
Arnauld acknowledged that a statement in his notes that
Conway had been staggering was erroneous and that he
had only used the word figuratively . Any opinion St.
Arnauld may have formed that Conway was under the
influence of liquor when he returned from lunch on the day
of his discharge was obviously based on the report that
Conway had consumed five drinks at lunch , coupled with
St. Arnauld's claim that he detected odor on Conway's
breath and observed that his countenance was flushed.
Assuming there was an odor of alcohol on Conway's
breath when he returned from lunch , this alone would be
insufficient to establish that he was under the influence of
liquor . Even one or two drinks could have left telltale
traces of drinking despite any measures Conway might
have taken to neutralize its effect . The question of whether
Conway was. under the influence of liquor after consuming
two drinks , as he claimed , or five, as was reported to St.
Arnauld , could well depend on the degree of Conway's
tolerance of liquor . He, himself, testified that he had, on
social occasions , consumed five drinks without any effect
on his faculties. According to him, he would not feel the
effects of his drinking until after eight drinks. It is
conceded that Conway routinely took two drinks with his
lunch and , on occasions when he worked overtime at night,
one drink with his evening meal . Woodman himself,
according to Conway, observed him drinking one evening
at the Paddock Inn. Whether Conway was acting on
s The rule reads as follows:
7. Bringing into the Company intoxicants, or narcotics, using
intoxicants or narcotics [sic] having intoxicants or narcotics in one's
1143
medical advice in connection with his drinking is irrele-
vant. The issue is whether Conway was, in fact, under the
influence of liquor when he was discharged, and, if so,
whether that was the real reason for his discharge.
Conway conceded that, when he was hired, he was given
a company booklet, entitled, "Welcome to Lafayette." This
booklet contained Rules and Regulations, violation of
which would result in "appropriate disciplinary action."
Among the rules was one relating to drinking.6
The fact that Conway may not have read the booklet in
its entirety, and may not have been aware of the contents
of the rules with regard to drinking, did not relieve him of
the duty to obey the rule. Conway admitted that he was
aware that it was against company policy to be under the
influence of liquor on company premises. Moreover, the
Company would have been entitled to discipline an
employee under the influence of liquor while at work even
in the absence of any rule or policy. Literally construed,
however, the rule could be applied to employees "using
intoxicants" even where such use did not result in the
employee's being under the influence of liquor, since the
rule is stated in the disjunctive. It must, however, be
assumed that the rule was aimed at prohibiting employees
from being under the influence of liquor while on company
premises.
The preponderance of the credible evidence indicates
that Conway was not under the influence of liquor, in the
generally accepted sense, when he returned from lunch.
Considering the wide variety of sobriety tests, including
blood tests, frequently necessary to determine whether a
person is actually under the influence of liquor, St.
Arnauld's conclusion regarding Conway fell short by any
reasonable standard . This is not to suggest that St. Arnauld
was required to ask Conway to undergo a sobriety test
before deciding to discharge him if he genuinely believed
him to be under the influence of liquor, but all St. Arnauld
relied on was the report that Conway had had five drinks,
that his breath smelled of liquor and that his face was
flushed. It may be noted, in passing, that if Conway
actually consumed five drinks, he would almost have had
to gulp them in rapid succession, while eating his lunch,
considering that he was allowed only 45 minutes, in which
he would have had to drive back and forth in traffic and
park his car. In any event, whether he consumed two
drinks or five, the objective evidence establishes that he
was able to drive his car without incident and that he
arrived at the company premises in full control of his
faculties, manifesting no evidence of intoxication or of
being under the influence of liquor. Neither on this or on
any other occasion when he was observed by the private
investigators was he seen walking or driving in an erratic
manner or exhibiting any other symptoms , such as a glassy
stare, thick speech, wobbly or unsteady gait, usually
associated, with being under the influence of liquor.
Perhaps this may be attributable to Conway's high
tolerance of liquor, but it negates the likelihood that he was
under the influence that day. Woodman's testimony that a
possession, or being under the influence of liquor or narcotics on the
Company's premises at any time. Liquor purchased for home
consumption must be retained in the original wrapper and properly
sealed until such package is taken out of the Company.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security guard had reported to him that Conway had
difficulty walking when he returned from lunch one day
and that Woodman had observed that Conway was more
boisterous and talkative with his fellow employees when he
returned from lunch, is no basis for a finding that Conway
was under the influence of liquor on the day of his
discharge.
St. Arnauld conceded that he relied entirely on
Dornbaum's report that Conway had had five drinks that
day and that he would not have discharged him then if he
were not intoxicated. Yet the only basis for his conclusion,
apart from Dornbaum's report, was the odor of liquor on
Conway's breath and his flushed appearance.
The record clearly establishes that Woodman, Conway's
immediate superior, was aware, as early as April, not only
on the basis of what Conway told him, but also from the
detection of the odor of liquor on Conway's breath on
various occasions when he returned from lunch, that
Conway had been drinking on his lunch period. Both
Woodman and St. Arnauld knew on September 14 that
Conway had been absent the day after July 4, and again,
he day after Labor Day, because he had admittedly been
Innking heavily on those weekends. Though questioned
about his dunking, which Conway jokingly denied, St.
Strnauld did not warn him about the consequences of his
:ontinued drinking. Instead, St. Arnauld focused on
;onway's absenteeism.
Although Woodman testified that Conway's behavior
leteriorated during the last 2 months of his employment
Lnd that he spoke to him three or four times about his
)oisterous behavior and excessive talking to employees
vhen he returned from lunch, it was not until early in
vovember, according to Woodman, that he recommended
o St. Amauld that Conway be terminated. Yet, during this
!-month period, Conway had been rated by Respondent as
Yo. 1 in collections among his fellow collectors. St.
'irnauld, however, testified that he had already decided, on
3ctober 15, to discharge Conway but did not recommend
in investigation to the personnel department until early
vovember, when he requested Dornbaum to secure
;vidence which would justify Conway's discharge. The fact
.hat St. Arnauld was on vacation during part of this time
foes not explain why he delayed this investigation until
November. If St. Arnauld were as concerned about
Conway's drinking as he claimed , he could have directed
Woodman, his assistant, to act in his absence . It should be
noted that Respondent had earlier been under investiga-
tion by the Federal Trade Commission in connection with
form letters which Respondent had been sending its
customers . Although concerned that, because of his
drinking, Conway might embarrass the Company by
sending out collection letters which might be disapproved
by the FTC, St. Arnauld testified that he was unwilling to
take action against Conway without "solid proof," and that
was the reason he initiated the surveillance against
Conway.
The record leaves no doubt as to the extent of Conway's
activities . He had spearheaded the organization of the
collectors, secured their signed authorization and checkoff
cards, and participated in the Regional Office preelection
conference, all with the actual knowledge of Respondent's
supervisory personnel. Woodman admitted that he had
learned from Fiore, a collector and his assistant, of the
union activity among the collectors, and Conway's distri-
bution of union cards. St. Amauld learned, at least as early
as September 14, that Conway had been selected to attend
the preelection conference at the Regional Office as
representative of the collectors. It goes without saying, of
course, that the mere fact that Conway was an active
proponent of the organizational activity did not insulate
him against discharge for reasons unconnected with his
union activity, but, in determining Respondent's real
motivation for Conway's discharge, his role in the
unionization of the employees is certainly a crucial factor.
That Respondent was opposed to the unionization of its
collectors, for whatever reason, is evident from Conway's
uncontradicted testimony that St. Arnauld asked him on
September 14, and again on November 23, at the time of
his discharge, why he was starting trouble with the
collectors. These queries, coupled with Woodman's state-
ment to Slater and Fiore, regarding the loss of overtime in
the event the collectors designated the Union as their
bargaining agent, impel the conclusion that Respondent
was opposed to the unionization of its collectors and
furnish evidence of discriminatory motivation with respect
to Conway's discharge.
In sum, the record establishes that Respondent, through
Woodman and St. Arnauld, had been aware of Conway's
drinking habits long before it decided on his discharge. It
had admittedly been dissatisfied with his absenteeism and
had been critical of collection letters he had written
customers. It was aware that he had made deliberate
misstatements in his medical questionnaire. When he
threatened to resign because he had been refused a wage
increase , St. Arnauld prevailed on him to reconsider.
Although aware of Conway's drinking habits, it at no time
warned him that he might risk discharge. Respondent was
willing to overlook all these derelictions, any one of which
would have afforded ample grounds for discharge, until it
discovered that he was actively engaged in organizing the
collectors. Then, realizing that it might be hard pressed to
justify its condonation of Conway's past conduct, it
initiated the surveillance by which it sought to obtain
"hard proof" sufficient to justify his discharge. Under-
standably, Respondent was confronted with a dilemma
when it sought to discharge an employee who had played
such an active role in the unionization of the collectors.
The timing of the discharge, less than a week before the
election , was certain to raise questions as to Respondent's
motivation, particularly in view of its condonation of the
employee's past misconduct. But this was a dilemma of
Respondent's own making. Its effort to obtain justification
for the discharge by resorting to surveillance of Conway's
noontime activities indicates the measure of Respondent's
desperation in seeking to legitimatize its discriminatory
conduct.
It is , therefore, found, on the basis of the foregoing, and
upon the entire record, that, Respondent discharged
Conway on November 23, 1973,' and thereafter failed and
refused to reinstate him, in whole or substantial part,
because of his protected union activity and that it resorted
to his drinking and the claim that he had been under the
LAFAYETTE RADIO ELECTRONICS CORPORATION 1145
influence of liquor while at work as a pretext for
eliminating Conway as the most active union advocate. By
such conduct, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.7
In view of the foregoing findings , it is further found that,
by engaging in surveillance of Conway's noonday activities
for the purpose of establishing a pretext for his discharge,
and, incidentally , to observe the persons with whom he
conversed , for the evident purpose of ascertaining whether
Conway was discussing unionization with the employees,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
E. The Refusal To Bargain
1. The appropriate unit; majority representation
The complaint alleges, Respondent 's answer admits, and
it is hereby found , as stipulated at the hearing, that the
following described unit is, and at all times material herein
has been , an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All employees on the payroll of Lafayette Radio
Electronics Corporation including messengers , clerks,
Syosset Telephone Adjustment clerks , Key Punch
Trainees , clerk typists, typists, Multilith Machine
Operator, Telephone Operators , Correspondents, Syos-
set Mail Order Adjustors , Key Punch Operators, and
all persons employed in the New Hyde Park Industrial
Department who were members of the unit as of May
31, 1972, excluding all employees employed in the
Bookkeeping, Art and Advertising , Engineering and
Lab, Data Processing , Personnel, Security, Controllers,
Industrial, Timekeeping and Service and Import
Departments of Lafayette Radio Electronics Corpora-
tion and all employees employed in the following job
titles Accounts Receivable Billers, Bookkeepers , Secre-
taries, Service Technicians , Testers , Carpenters , Credit
Authorizers, Collectors, All Executive Personnel, All
Administrative Personnel except individuals currently
members of Local 431 , All Supervisory Personnel, All
Management Trainees, Purchasers and Merchandisers
employed by Respondent at its Syosset warehouse and
store and at its other facilities located at 17 Union
Square West, New York, New York, Engineers Road,
Vanderbilt Industrial Park, Hauppauge, New York,
and 92-35 Merrick Boulevard , Jamaica , New York,
and all employees employed by subsidiary corporations
of Respondent.
The complaint further alleges , but Respondent's answer
denies, that, as found by the Regional Director in the
Decision and Direction of Election (Case 29-CA-2447),
the collectors and credit authorizer , employed by Respon-
dent at its Syosset warehouse and store, constitute an
appropriate voting group , and that all the employees in the
unit described above , together with the collectors and
credit authorizer , constitute an appropriate unit for the
7 See Edward G. Budd Manufacturing Co. v. N.LRB, 138 F.2d 86, 90.91
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
In his Decision and Direction of Election, issued
November 2, 1973, the Regional Director held that the
existing Syosset contract constituted no bar to the
proceeding inasmuch as collectors had been expressly
excluded from the appropriate unit, the Union had not
expressly agreed to refrain from seeking representation of
those employees, and no such agreement would be inferred
from the mere exclusion of such employees or any alleged
understanding of the parties during contract negotiations.
The Regional Director further found that the collectors
and credit authorizer do not constitute a separate appropri-
ate unit, although, because of their community of interest
with all other office employees in the Easy Pay Depart-
ment, they constitute an appropriate voting group. He,
therefore, directed an election among that group to
determine whether they wished to be included with the
existing unit of office employees for purposes of collective
bargaining . Although the original demand for recognition
did not include the one credit authorizer, the petition was
amended during the course of the representation hearing to
include that job classification. No request for review was
taken from the Regional Director' s Decision and Direction
of Election. The record in the present proceeding, as well
as the transcript in the representation proceeding, intro-
duced in evidence by stipulation of the parties, fully
supports a determination that the collectors and credit
authorizer constitute an appropriate voting group for the
purposes of collective bargaining.
The record further establishes that on August 22, 1973,
six of the nine employees in the appropriate voting group
designated the Union as their representative for the
purposes of collective bargaining by signing valid union
authorization and checkoff cards . It is, therefore, found
that, at all times since August 22, 1973, the Union has
represented a majority of the employees in the appropriate
voting group.
2. The demand for recognition and refusal to
bargain
On August 24, 1973, the Union made a written demand
upon Respondent for recognition and bargaining on behalf
of the employees in the appropriate voting group. On about
August 31, 1973, Respondent refused, and has since
continued to refuse, to recognize and bargain collectively
with the Union as the exclusive representative of Respon-
dent's employees in the appropriate voting group.
It is undisputed that the Union, pursuant to its status as
exclusive representative of the employees in the unit
covered by the Syosset office contract, currently in force,
represents a majority of the employees in the appropriate
unit covered by said contract, and has since August 22,
1973, represented a majority of the employees in the
appropriate unit comprised of the Syosset office unit, as
well as the appropriate voting group of collectors and
credit authorizer.
It is , therefore, found that, by refusing to recognize and
bargain with the Union, as exclusive representative of the
(C.A. 3), cert. demed 321 U.S. 773.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectors and credit authorizer , Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
It has been previously found that, on about November 6,
1973, Respondent , through an admitted supervisor, threat-
ened employees with loss or reduction of overtime earnings
if they voted for the union , engaged in unlawful surveil-
lance of an employee and, thereafter , on November 23,
1973, discharged Conway, the principal union advocate, in
violation of Section 8(aX3) of the Act. In view of the small
number of employees in the voting group and the nature of
the unfair labor practices in which Respondent has
engaged, the effects of its unlawful conduct cannot be
eradicated, nor can a fair election be ensured by the use of
traditional remedies . It is, therefore, found that the wishes
of the employees as expressed through their authorization
cards is a more reliable measure of their desires than a
holding of an election .8
Although Gissel and subsequent decisions have involved
employees in an appropriate unit rather than those in a
voting group seeking to ally themselves with an existing
appropriate unit , there appears to be no cogent reason for
adopting a different policy here.
the offer of reinstatement . It has also been found that the
coercive effects of Respondent 's unfair labor practices
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be held. It is, therefore, found that the employees'
signed union authorizations are a more reliable measure of
the employees' desire for representation . By refusing the
Union's bargaining request and engaging in the aforesaid
unfair labor practices , Respondent violated Section 8(a)(5)
of the Act, and it is found that a bargaining order is
necessary to protect the majority selection of the Union
and otherwise to remedy the unfair labor practices in
which Respondent has engaged.9
In view of the nature of Respondent's unfair labor
practices , including the discriminatory discharge of an
employee to discourage membership in a labor organiza-
tion, it will further be recommended to protect the rights of
employees generally that Respondent be required to cease
and desist from in any manner interfering with , restraining
or coercing employees in the exercise of rights guaranteed
in the Act.io
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above , have a close,
intimate, and substantial 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
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(l), (3),
and (5), it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent discharged John J.
Conway on November 23, 1973, and thereafter failed and
refused to reinstate him because he had engaged in
protected union activities , to discourage membership in a
labor organization in violation of Section 8(a)(3) and (1) of
the Act. It will, therefore , be recommended that Respon-
dent cease and desist from such unfair labor practices and
offer said employee immediate and full reinstatement to his
former position or, if that position is not available, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him
whole for any loss of pay he may have suffered as a result
of the discrimination against him , with backpay computed
on a quarterly basis, plus interest at 6 percent per annum,
as prescribed in F. W. Woohvorth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of the discrimination to the date of
CONCLUSIONS OF LAW
1. Respondent, Lafayette Radio Electronics Corpora-
tion, is, and at all times material herein has been, an
employer engaged in commerce , and in an industry
affecting commerce , within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 431, International Union of Electrical, Radio
& Machine Workers, AFL-CIO, the Union herein , is, and
at all times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging John J. Conway on November 23,
1973, and thereafter failing and refusing to reinstate him
because of his protected union activity, thereby discrimi-
nating in regard to his hire and tenure of employment, to
discourage membership in a labor organization, and
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. All employees on the payroll of Lafayette Radio
Electronics Corporation including messengers, clerks,
Syosset Telephone Adjustment clerks , Key Punch Train-
ees, clerk typists , typists, Multilith Machine Operator,
Telephone Operators, Correspondents , Syosset Mail Order
Adjustors, Key Punch Operators , and all persons employed
in the New Hyde Park Industrial Department who were
members of the unit as of May 31, 1972, excluding all
employees employed in the Bookkeeping , Art and Adver-
tising, Engineering and Lab, Data Processing, Personnel,
Security, Controllers, Industrial, Timekeeping and Service
and Import Departments of Lafayette Radio Electronics
Corporation and all employees employed in the following
job titles Accounts Receivable Billers, Bookkeepers,
Secretaries, Service Technicians, Testers, Carpenters,
8 See N.LR.B v. Gissel Packing Company, Inc., 395 U.S. 575 (1969). N.LRB. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A 4, 1941);
8 See T V. Systems, Inc., 206 NLRB 841 (1973). May Department Stores Company v. N.LR.B., 326 U.S. 376 (1945);
10 N L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941); Bethlehem Steel Co. v. N.LR.B., 120 F.2d 641(C.A.D.C, 1941).
LAFAYETTE RADIO ELECTRONICS CORPORATION 1147
Credit Authorizers, Collectors, All Executive Personnel,
All Administrative Personnel except individuals currently
members of Local 431, All Supervisory Personnel, All
Management Trainees , Purchasers and Merchandisers
employed by Respondent at its Syosset warehouse and
store and at its other facilities located at 17 Union Square
West, New York, New York, Engineers Road, Vanderbilt
Industrial Park , Hauppauge , New York, and 92-35
Merrick Boulevard, Jamaica, New York, and all employees
employed by subsidiary corporations of Respondent, but
including collectors and credit authorizer in the Easy Pay
Department at Respondent 's Syosset, New York, facility,
and excluding all other employees , guards and supervisors,
as defined in the Act, constitute, and at all times material
herein have constituted , a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
5. Local 431, International Union of Electrical, Radio
& Machine Workers, AFL-CIO, the Union herein, was, on,
August 22, 1973, and at all times material thereafter has
been , the exclusive representative of all the collectors and
credit authorizer in the Easy Pay Department at Respon-
dent's Syosset, New York, facility, but excluding all other
employees, guards and supervisors , as defined in the Act,
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
6. By refusing, on August 31, 1973, and at all times
thereafter , to bargain collectively with Local 431, Interna-
tional Union of Electrical, Radio & Machine Workers,
AFL-CIO, the Union herein, as the exclusive representa-
tive of Respondent's collectors and credit authorizer, in the
Easy Pay Department at Respondent 's Syosset , New York,
facility, but excluding all other employees , guards and
supervisors , as defined in the Act, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(aX5) of the Act.
7. By interfering with, restraining, and coercing its
employees in the manner found herein , in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(ax 1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act,. I hereby issue the
following recommended:
ORDER 11
Respondent , Lafayette Radio Electronics Corporation,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 431, International
Union of Electrical, Radio & Machine Workers, AFL-
ii 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.
CIO, or in any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees,
or in any manner discriminating in regard to the hire or
tenure or terms and conditions of employment of any of its
employees because of their union affiliation or activities.
(b) Refusing to bargain collectively with Local 431,
International Union of Electrical , Radio & Machine
Workers, AFL-CIO, as the exclusive representative of all
its collectors and credit authorizer in the Easy Pay
Department at Respondent's Syosset , New York, facility,
as part of the appropriate unit of office employees.
(c) Threatening employees with loss or reduction of
overtime work or other reprisals for engaging in union
activities.
(d) In any manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations , to join, or assist
Local 431 , International Union of Electrical , Radio &
Machine Workers , AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other protected concerted
activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7, or to
refrain from any and all such activities , except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(aX3) of the Act, as
amended.
2. Take the following affirmative action , which, it is
found, will effectuate the policies of the Act:
(a) Offer John J. Conway immediate and full reinstate-
ment to his former position or, if that position is no longer
available, to a substantially equivalent position , without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Upon request , bargain collectively with Local 431,
International Union of Electrical , Radio & Machine
Workers, AFL-CIO, as the exclusive representative of all
its collectors and credit authorizer in the Easy Pay
Department at Respondent's Syosset, New York, facility,
as part of the appropriate unit of office employees.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this recommended Order.
(d) Post at its place of business at Syosset, New York,
copies of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by, the Regional
Director for Region 29, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
12 In the event that the Board 's 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."
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for 60 consecutive days thereafter , in (e) Notify the Regional Director for Region 29, in
conspicuous places, including all places where notices to writing, within 20 days from the date of this Order, what
employees are customarily posted . Reasonable steps shall steps Respondent has taken to comply therewith.
be taken by Respondent to ensure that said notices are not
altered , defaced, or covered by other material.