Life Savers, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1257 (N.L.R.B. 1982)

LIFE SAVERS, INC.
Life Savers, Inc. and Retail, Wholesale, Department
Store Union, Food Division, RWDSU, AFL-
CIO. Case 2-CA-17758
September 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 14, 1982, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, both Respondent and
counsel for the General Counsel filed exceptions
and a supporting brief. Thereafter, Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
In determining that Respondent's letter of Janu-
ary 13, 1981, violated Section 8(a)(1) of the Act,
the Administrative Law Judge relied on an earlier
Board determination 3 which held that the state-
ments contained in the letter constituted interfer-
ence with the election. In so doing, the Administra-
tive Law Judge failed to specifically articulate his
reasons for finding a violation. It has long been
held that conduct violative of Section 8(a)(1) is, a
fortiori, conduct which interferes with the labora-
tory conditions of an election. Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962). The reverse situation
is not necessarily true, however, since Section
8(a)(l) must be read in conjunction with the provi-
sions of Section 8(c).
Despite the Administrative Law Judge's failure
to analyze the letter under an unfair labor practice
analysis, we agree with his conclusion that state-
ments in the letter violated Section 8(a)(l) of the
I Respondent and counsel for the General Counsel have 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 preponder-
ance 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 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing his findings.
2 The Administrative Law inadvertently Judge failed to include the
narrow injunctive language in his recommended Order. We will, there-
fore, modify his recommended Order to include this language.
s Case 2-RC-18893, not reported in bound volumes of Board Deci-
sions. On March 2, 1982, the Board, also in an unpublished Decision,
denied Respondent's motion for reconsideration.
264 NLRB No. 162
Act.4 In N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), the Supreme Court declared that
an employer is free to communicate to its employ-
ees its views concerning the consequences of
unionization "so long as the communications do
not contain a 'threat of reprisal of force or promise
of benefit,"' and so long as the prediction of the ef-
fects of unionization is based on objective facts. Id.
at 618. In the present case, Respondent has not
shown that its prediction was based on objective
facts. As such, the case is distinguishable from
Chrysler Airtemp South Carolina, Inc.,5 a case cited
by Respondent. Rather, the letter was a threat of
loss of employment and of adverse consequences to
employees if the Union were selected as the collec-
tive-bargaining representative. See Patsy Bee, Inc.,
249 NLRB 976 (1980), enforcement denied 654
F.2d 515 (8th Cir. 1981); Stride Rite Corp., 228
NLRB 224 (1977). We therefore agree with the
Administrative Law Judge's conclusion, albeit
under a different analytical framework, that the
letter constitutes a violation of Section 8(a)(1) of
the Act.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that the Respondent,
Life Savers, Inc., Port Chester, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
Add the following as paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act."
4 Respondent's contention that it was not "on notice" that certain por-
tions of the letter were not alleged to be violative of the Act is without
merit, since the amended complaint, dated June 21, 1981, alleges that,
"On or about January 13, 1981, Respondent, acting through Ray Sa-
marco, in a letter to its employees, threatened its employees with loss of
jobs. discharge and the closing of the facility, if they selected the Union
as their bargaining representative." (Emphasis supplied.) Thus, Respond-
ent was clearly on notice that the entire letter was alleged to be violative
of Sec. 8(aX I).
5 224 NLRB 427 (1976). In Chrysler, the employer was suffering from
massive economic losses and had closed over 40 percent of its businesses.
In response to steadily declining production requirements for its prod-
ucts, the employer made predictions to its employees that a union victory
could lead to adverse consequences. In light of the employer's severe
economic problems, the Board found its statements to be within the
"spectrum of reasonable prediction." No such set of facts exists in the
present case so as to justify the statements made in the January 13, 1981,
letter to employees.
I Member Jenkins, in accordance with his vote in the representation
case, would not find this violation.
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard by me in New York, New York, on No-
vember 4, 5, 6, and 9 and December 3, 1981. The charge
in this proceeding was filed by the Union on January 12,
1981. The complaint in this matter was issued by the Re-
gional Director of Region 2, on March 31, 1981, and was
later amended on June 2, 1981. In substance the amended
complaint made the following allegations:
(1) That on or about July 13, 1980, the Respondent, in
retaliation against the union activities of Patrick For-
lenzo, imposed more onerous working conditions on him
by requiring him to obtain permission before leaving his
work station.
(2) That on or about September 23, 1980, the Respond-
ent suspended Forlenzo for I day and thereafter on No-
vember 12, 1980, issued a written warning to him be-
cause of his activities and support for the Union.
(3) That on or about November 7, 1980, the Respond-
ent threatened its employee Randolf Nance with disci-
plinary action if he selected the Union as his bargaining
representative.
(4) That on or about November 12, 1980, the Respond-
ent issued a written warning to Randolf Nance because
of his activities and support for the Union.
(5) That on January 13, 1981, the Respondent, in a
letter to its employees threatened them with the loss of
jobs, discharge, and the closing of the plant if they se-
lected the Union as their bargaining representative.
(6) That on January 14, 1981, the Respondent threat-
ened its employees with the loss of jobs and discharge if
they selected the Union as their representative.
(7) That on January 15, 1981, the Respondent in-
formed its employees that it would be futile for them to
select the Union as their bargaining representative by
telling them that it would never negotiate or deal with
the Union.
Based on the entire record in this proceeding, includ-
ing my observation of the demeanor of the witnesses and
after consideration of the briefs filed, I make the follow-
ing:
FINDINGS OF FACT'
I. JURISDICTION
It is admitted that the Respondent is a Delaware cor-
poration having a place of business in Port Chester, New
York, where it is engaged in the manufacture of candy.
It also is conceded that annually the Respondent has
gross revenues in excess of $500,000 of which in excess
of $50,000 are derived from sales and shipments from
New York to States other than New York. It therefore is
concluded that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
I As a procedural matter, I shall now receive into evidence G.C. Exh.
22 which I inadvertently neglected to do at the hearing.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing and I find that Retail,
Wholesale, Department Store Union, Food Division,
RWDSU, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
From 1967 to 1973 certain employees of Lifesavers lo-
cated at the Port Chester plant were represented for col-
lective-bargaining purposes by Local 452, Candy & Con-
fectionary Workers Union. However, in 1973 a petition
for an election was filed with the National Labor Rela-
tions Board by another labor organization and after an
election, it was shown that a majority of the employees
did not desire union representation. Thereafter, between
1974 and 1981 there have been six NLRB elections at the
Port Chester plant in which the Respondent has each
time prevailed.2
The Union which is involved in the present case had
previously, in 1979, petitioned for an election (Case 2-
RC-18438), but had not obtained majority status in an
election held on November 2, 1979. The most recent
election at the Port Chester plant was held on January
16, 1981. This latest election came about pursuant to a
petition filed by the instant Union on November 21,
1980, in Case 2-RC-18893, and was conducted pursuant
to a Stipulation for Certification Upon Consent Election.
In this election, a majority of the voters voted against
the Union. However, after the election, the Union filed
Objections to the Election and on May 8, 1981, the Re-
gional Director for Region 2 recommended to the Board
that the election be set aside based on the contents of a
letter dated January 13, 1981, which was sent by the
Company to its employees. As this letter is also alleged
as being violative of Section 8(a)(l) in the present pro-
ceeding, its relevant portions will be set forth below. On
September 8, 1981, the Board adopted the Regional Di-
rector's recommendation and ordered that a second elec-
tion be held. Thereafter, the Respondent filed a motion
for reconsideration, and, on March 2, 1982, the Board
denied that motion.
B. The Incidents Involving Randolf Nance
Randolf Nance has been employed by the Respondent
for about 14 years and works as a maintenance mechanic
in the mint department which is located on the third
floor of the plant. At the time of the events herein,
Nance worked in conjunction with people who operated
Stokes' machines which are designed to punch the holes
in Lifesavers. Also, at the time, Ronald Moore was the
departmental manager and Perry Bryant, along with
Richard Bartlett, were the supervisors.
2 The Respondent does have two other plants in the United States
where the employees are represented by labor organizations. The plant in
Holland, Michigan, has, for the past 10 years, recognized another local of
the RWDSU. The plant in Canjoharie, New York, recognizes Local 679
of the Bakery and Confectionary Workers Union.
1258
LIFE SAVERS, INC.
The record indicates that Nance became involved in
the Union's most recent campaign in or about mid-Sep-
tember 1980. It was established that Nance engaged in a
variety of union activities including the distribution of
union leaflets at the plant and the solicitation of union
authorization cards. He, along with a number of other
employees, including the other alleged discriminatee,
Patrick Forlenzo, were members of an organizational
committee which exerted its efforts on behalf of the
Union.
There is, in fact, no dispute as to the Respondent's
knowledge of Nance and Forlenzo's union activities. Re-
spondent's management freely admits that they were
aware that these two employees, among others, were
active supporters of the Union.
Insofar as this case involves Randolf Nance, it relates
to an incident that commenced on Friday, November 7,
1980. On that morning, Nance, at or about 10 a.m., was
directed to install two or three punches on the No. 10
Stokes machine by Foreman Richard Bartlett.3 At that
time, Nance told Bartlett that he had to make a phone
call at 10:30 a.m. and the latter informed Nance that he
should make the phone call after he installed the
punches.
According to Nance, he removed the punches from
the machine, cleaned them off, and reinstalled them
before 10:30. He states, however, that after placing the
punches back in the machine, they were still too tight,
and as he had to make his call by 10:30, he asked the ma-
chine operator, Videlino Rivera, to help him out and to
finish the job. Nance states that he then went to make his
phone call and was seen by Bartlett.
According to the witnesses presented by the Compa-
ny, Nance was instructed to install the punches before
making his phone call and that he first asked machine
operator Alvin Blount to put them in. Blount refused be-
cause he was too busy. Nance thereupon asked Rivera to
put the punches in and Rivera consented to do so while
Nance went to make his phone call. While Rivera was
working on the punches (and leaving his own machines
unattended), Bartlett asked him where Nance was, and
was told by Rivera that Nance had gone upstairs to
make a call. According to Bartlett, when he went to find
Nance, he asked him why he had not first finished the
job, whereupon Nance replied that he had put in the
punches.
Following the above incident, Bartlett reported it to
Ronald Moore, who asked the former to write up a
report and make a recommendation. Bartlett, later that
day, made a recommendation that Nance be suspended
for disobeying his orders. Moore decided, based on
Nance's prior good record, that a suspension was not
warranted and proposed instead that Nance be given a
written warning. 4
3 The punches are rods which make the holes in the Lifesavers. At
times the punches get coated with sugar causing them to stick. When this
happens, the punches have to be removed, cleaned, and reinstalled in the
machine. As the machine operators are responsible for running a number
of these Stokes machines at the same time, the function of cleaning and
reinstalling the punches is delegated to the mechanic.
4 The Respondent has a progressive disciplinary procedure in which
discipline generally progresses from verbal warnings, to documented
On Monday, November 10, 1980, Nance was called to
a meeting regarding the events on November 7.5 Present
at the meeting were Moore, Bartlett, Rivera, and, for a
time, Blount. According to Nance, he attempted to ex-
plain what had happened on November 7 and said that
he had, in fact, put in the punches. (Of course, whether
or not Nance actually put in the punches is irrelevant as
he admittedly had not completed the job when he left to
make his phone call. Thus, his statement that he put in
the punches is somewhat disingenuous as it is obvious
that the intent of Bartlett's order was for Nance to finish
the job before making the phone call.) During this meet-
ing, Nance asserts that Moore said, "I know your kind of
people. .... You're nothing but troublemakers.... If I
catch you even sneezing loud, I'm going to write you
up." This was denied by both Bartlett and Moore. 6
Moreover, employees Blount and Rivera testified that
they did not hear Moore say anything like what was at-
tributed to Moore by Nance. (Blount, however, was only
present for a short time during the meeting.)
On November 12, Nance received a written warning
relating to the incident which occurred on November 7.
Thereafter, Nance filed a grievance, pursuant to the
Company's grievance-arbitration procedure. Ultimately
the grievance was heard by Arbitrator Ellen Buzbee,
who sustained Nance's grievance in a decision issued by
her on February 17, 1981. 7
In pertinent part, she stated:
Mr. Nance did not fully carry out his assigned job
or comply with regular procedures, but in the par-
ticular circumstances of the case-acknowledged by
both that (a) Mr. Nance had sought permission to
make a call at a particular time and (b) he made an
effort to have his job covered, indicated that he did
not act in a spirit of defiance or carelessness, but
perhaps acted unwisely under the pressure of time.
In consideration of Mr. Nance's apparent good em-
ployment record and in the circumstances of the
case, an oral rebuke, as was given on the morning
of November 7, is sufficient discipline for the infrac-
tion involved. The grievance is sustained; the disci-
plinary letter should be removed from Mr. Nance's
file.
C. The Warnings and Suspension of Patrick Forlenzo
Patrick Forlenzo has been employed by the Company
since 1972. Since 1974 he has been assigned to work in
the maintenance department as a maintenance mechanic.
verbal warnings, to written warnings, to suspensions, and finally to termi-
nations.
$ Although Nance placed this meeting as occurring on November 7,
the other participants at the meeting placed it on Monday, November 10.
As Nance had some difficulty remembering various items including dates,
it is concluded that the meeting was held on November 10.
s At the time of the hearing Moore no longer was employed by the
Respondent.
I The Respondent has, of its own accord, established a gnrievance-arbi-
tration procedure. Apparently it is one of the few business enterprises
which has created such a procedure independent of a collective-bargain-
ing agreement. Pursuant to the terms of the Arbitration Procedure Rules
promulgated by the Company, arbitrators are designated by the Amen-
can Arbitration Association and their awards are final and binding
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The manager of the maintenance department is Joseph
Orlando who is in overall charge of 40 to 60 employees.
At the time of the events herein, Allen Stasiak was one
of the mechanical maintenance supervisors and was in
charge of approximately 20 employees, including For-
lenzo. Also at the time of these events, Forlenzo, along
with about eight other mechanics was assigned to a par-
ticular department where he was responsible for keeping
the department's machinery in good working order.
As in the case of Nance, the Respondent was aware
that Forlenzo was an active union supporter, and in this
regard it appears that Forlenzo's active support for the
Union dates back to the first campaign by this Union in
1979.
In 1980, Forlenzo was transferred from one depart-
ment to another and on March 14, 1980, he filed a griev-
ance concerning his transfer. On March 19, 1980,8 For-
lenzo met with Robert Bishop, Respondent's personnel
manager to discuss his grievance and Nance was brought
along to the meeting by Forlenzo to act as a witness.
With respect to this meeting, Forlenzo testified that
Bishop told him; "If I would only get off my activities
and go along with the company's procedure, that I
would be numero uno. That I had more knowledge in
my pinky than any other mechanic." He also states that
Bishop made reference to past grievances filed by For-
lenzo in a disparaging manner and stated that Forlenzo
was "sick in the head." Although Forlenzo acknowl-
edges that no mention of the Union or his union activi-
ties was made by Bishop, he testified that he construed
Bishop's remarks as referring to his union activities.
Nance who was present at the meeting and who was
called as a witness by the General Counsel, was not
asked to and therefore did not corroborate Forlenzo's
testimony regarding what Bishop allegedly said.
With respect to the meeting described above, Bishop
testified that he told Forlenzo that if he (Forlenzo) spent
more effort at his job instead of suggesting that the com-
pany was out to get him, he would be a better mechanic.
In this respect, he testified that Forlenzo was obsessed
with and over involved himself with grievances.9 Subse-
quent to the meeting, Forlenzo's grievance was submit-
ted to arbitration where he asserted, inter alia, that he
was being discriminated against because of his union ac-
tivities. On June 30, 1980, Arbitrator Steven J. Gold-
smith issued an award denying Forlenzo's grievance. He
stated, inter alia, that:
Grievant alleges that as "a senior employee (he)
should not" have been "forced to leave the (Pine
8 During the preceding week, Forlenzo had testified on behalf of the
Union in a hearing on objections relative to the 1979 election.
I The General Counsel suggests that irrespective of their merits, the
past personal grievances filed by Forlenzo constituted protected concert-
ed activity within the meaning of Sec. 7 of the Act. However, as those
grievances were filed pursuant to a unilaterally established company
grievance procedure, and not pursuant to such a procedure established as
part of a collective-bargaining agreement, such grievances would not
constitute "concerted" action within the meaning of Sec. 7 of the Act.
Personal grievances filed under a collective-bargaining agreement are
concerted only because they are in furtherance of the enforcement of a
contract which itself is the result of concerted action. See B d M Exca-
vating, Inc., 155 NLRB 1152, 1154 (1965); Chas Ind. Co., 203 NLRB 476
(1973).
Brothers) Department." He also alleges, that by
transferring Grievant to Hard Candy, the Company,
among other things, is "harrassing and intimidating"
him because he is "union oriented," and/or "white
and of Italian descent." Grievant seeks to be re-
stored to Pine Brothers and to receive his $.50
training allowance for the time he has been trans-
ferred out.
It is clear from the record that the Company was
(and is) short of maintenance mechanics and that
Grievant was reassigned to Hard Candy because his
skills and experience . . . made him the only em-
ployee qualified to replace one of the two men who
had retired from the Hard Candy Department. The
Grievant has not shown that the reassignment was
made in violation of the Handbook or to harrass
Grievant. Also, there was no showing of anti-union
or ethnic discrimination against Mr. Forlenzo.
Contrary to the General Counsel's assertion that For-
lenzo was being discriminated against because of his
union activities, the Respondent contends that the var-
ious disciplinary actions taken against him were caused
by Forlenzo's habit of taking unauthorized breaks, over-
extending his lunch period, and being away from his as-
signed department without notice. In this connection, it
was shown that the Company has a policy of having a
35-minute lunchbreak and two 10-minute breaks, one in
the morning and one in the afternoon. It also was estab-
lished that insofar as the maintenance mechanics are con-
cerned, who are assigned to work in a particular depart-
ment, they are supposed to take their breaks at the same
time as the other departmental employees. However, as
opposed to such employees, the maintenance mechanics
are given more flexibility because there are times when
in repairing a machine they may work through lunch or
their breaks. In such cases, the maintenance supervisor
will authorize a break at a different time or authorize an
extended break for lunch. As a general rule, however, a
mechanic assigned to a particular department is supposed
to take his breaks with the department's employees so
that he will be available to fix and maintain the machines
when in operation. By the same token, Supervisor Allen
Stasiak credibly testified that it was the practice and
policy of the mechanics that when they had to leave
their departments for "any length of time" they were re-
quired to notify him of their absence so that he could ar-
range for coverage in the event that the department
needed a mechanic. t ° To this end, there are phones lo-
cated throughout the plant and a mechanic can either
call Stasiak directly, or, if he is not in his office, call the
switchboard operator who would then contact Stasiak
through a pocket page.
In February 1980 Stasiak, after a period of being an
acting supervisor, became a permanent supervisor in the
maintenance department. Prior to that time he was a
'o Based on the totality of the record and on demeanor grounds I have
concluded that Stasiak was a candid witness, whose testimony is worthy
of belief.
1260
LIFE SAVERS, INC.
rank-and-file maintenance mechanic in basically the same
position as Forlenzo. According to Stasiak, when he as-
sumed his supervisory duties he was aware, as a cowork-
er with Forlenzo, that the latter had a habit of overex-
tending his breaks. In this respect, Stasiak testified that
he spoke with Maintenance Manager Joseph Orlando
about how to deal with this problem,' and was told
that he should talk with Forlenzo about the problem and
to progressively give him verbal and then written warn-
ings if the problem did not abate. According to Stasiak,
during February and March 1980, he gave Forlenzo sev-
eral verbal warnings (which were not reduced to writ-
ing) for overextending breaks and being away from his
assigned area without first notifying him. He also testi-
fied that sometime in March 1980 he specifically remind-
ed various of the maintenance mechanics, such as Robin-
son, Lagana, DeAngelis, DeMayo, Drummond, Kapitko,
and Forlenzo, that they were required to notify him if
they were going to be away from their assigned depart-
ments for any length of time. Forlenzo, however, denies
that Stasiak gave him any verbal warnings prior to
March 27, 1980, and asserts that the first time Stasiak
mentioned anything about notification was in early Sep-
tember 1980. In the latter regard, Forlenzo claims that
the direction about notification was given exclusively to
him, although the General Counsel did not call any of
the other mechanics to rebut Stasiak's assertion that he
had reminded others of this procedure.
On March 27, 1980 (outside the 10(b) statute of limita-
tions period), Forlenzo was given a written warning
which stated:
Shortly after your starting time on Wednesday
March 25, you were observed on an unauthorized
break in the plant cafeteria.
This is not the first occasion on which you have
been observed taking an unauthorized break and I
must now reduce our position to writing so as to
impress upon you the necessity of conforming to
reasonable rules regarding break time.
Your break time is definite and you must confine
your breaks to these periods to avoid further disci-
pline.
In relation to the above-noted warning, Orlando testi-
fied that he was the one who saw Forlenzo in the cafete-
ria and that, when he notified Stasiak of his observation,
he was told that Forlenzo was not authorized to take a
break at that time. According to Orlando, he then sug-
gested that Forlenzo be given a written warning. When
the warning was issued to Forlenzo on March 27, For-
lenzo told Stasiak that James Allen, another mechanic,
was also in the cafeteria at the same time. After Allen's
supervisor, Fred Fied, was notified of Forlenzo's asser-
tion and learned that Allen was also on an unauthorized
break, Allen too was issued a written warning on April
1, 1980.12 According to Stasiak, after he issued the writ-
"' It is noted that from about January 1, 1978, through March 26,
1980, there were no written disciplinary notices in Forlenzo's file.
12 Although Stasiak recalled that he also gave a written warning to
Berrios, another mechanic, it appears that his recollection is mistaken as
the Company's files do not show a written warning to Bernos at that
ten warning to Forlenzo on March 27, the latter showed
improvement for a period of time. He testified, however,
that soon thereafter Forlenzo regressed, and that during
the summer months he gave Forlenzo about four to six
verbal warnings. As to these verbal warnings, Stasiak
was vague about the incidents to which they related. He
testified, "I don't remember exactly. It was quite a while
ago." Forlenzo, for his part, denies receiving any verbal
warnings during that period of time, although he does
concede that in July 1980, Orlando and Stasiak told him
that his work was not up to par. In his pretrial affidavit
Forlenzo stated that, prior to September 23, he had re-
ceived numerous disciplinary warnings.
On September 3, 1980, Forlenzo received another
written warning. This warning, which is not alleged by
the General Counsel as being violative of the Act, stated:
Following the change of your scheduled starting
time, you were advised on several occasions of the
requirement that you complete the schedule as
posted. On September 2, without authorization or
notice, you left your job prior to the conclusion of
your shift.
At this time we are limiting discipline to this
strong disciplinary warning. You are also reminded
that any future repetition of this act by you will
leave us no alternative but to terminate your em-
ployment. 1 3
On September 23, 1980, Forlenzo received a I-day sus-
pension from Stasiak. The notice read:
On several occasions we have had to discuss with
you your overextending both breaks and lunch peri-
ods. These discussions were in an effort to make
you understand the reasonable rules governing con-
duct in the plant, but were to no avail.
On March 27, 1980, we were forced to document
our position advising you in that letter that further
discipline would result if you failed to correct the
problem.
You have continued to fail in this regard since
that warning and most recently on September 22,
1980, you took two morning breaks when only one
is permitted. One for duration of 15 minutes and a
second for 19 minutes. Additionally on that same
day, you overextended your lunch period by 15
minutes.
This continued failure to abide by the reasonable
rules established to govern your conduct as well as
the conduct of all employees of Life Savers, leaves
us no alternative but to suspend you for one day.
This suspension with no pay shall occur on Septem-
ber 23, 1980.
We trust that this exercise of more severe disci-
pline will make you realize that unless you correct
time. Berrios was given a documented verbal warning on October 2,
1980, for overextending his morning break.
13 In his testimony, Forlenzo at first denied receiving this warning.
Later, he acknowledged having had a discussion of the subject matter
contained in the warning with Bishop.
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this problem, additional discipline up to and includ-
ing discharge will be considered.
With respect to the suspension, Stasiak testified that on
the morning of September 22, 1980, he received two
calls from the department where Forlenzo was assigned
to work, each of which conveyed the message that a ma-
chine was down and that Forlenzo was not present.
Also, Orlando testified that when he and a group of
other supervisors were in the cafeteria at lunchtime he
noticed Forlenzo and Allen enter at or about 12:55 a.m.
and whereas Allen left at or about 1:30 p.m., Forlenzo
remained until about 1:40 p.m. According to Orlando
and Stasiak, when the former reported to the latter that
he had seen Forlenzo overstaying his lunch, Stasiak said
that Forlenzo had not been authorized to do so. They
testified that as a result of the lunch incident, coupled
with extended breaks earlier that morning and the con-
tinuing problem with Forlenzo, it was decided by them,
and approved by Bishop, that a I-day suspension was
necessary. Forlenzo, on the other hand, denies that he
overextended his morning break on September 22, al-
though he does state that during that morning he might
have gone down to the machine shop or the stockroom
to pick up some parts. Admittedly, he did so without
first notifying Stasiak. Forlenzo further denies that he
overstayed his lunchbreak and, although he asserts that
on that day he ate lunch with other mechanics, none of
them were called to corroborate Forlenzo's assertion.
Forlenzo also testified that when Stasiak told him that he
was being suspended for overextending his breaks and
lunch, his response to Stasiak was, "why just me." That
is, when told by Stasiak of the reason for his suspension,
Forlenzo did not deny the claim that he had overextend-
ed his breaks, but rather sought to deflect the reason by
asserting, in effect, that he was the only one being picked
on.
When Forlenzo was told by Stasiak of his suspension
on September 22, he demanded a written copy of the
action from Bishop because he thought that if he did not
show up for work the next day the company would take
further action against him unless he had some documen-
tation showing the reason for his absence. Bishop told
Forlenzo that the suspension had not yet been typed up
and that he responded to Forlenzo's demand by saying,
"that's the trouble with you, you never trust us." At that
point Bishop ordered Forlenzo out of his office. On Sep-
tember 23, Forlenzo appeared outside the premises but
was prevented from entering by the guards.
On November 12, 1980, Stasiak issued another warning
to Forlenzo which stated:
On September 23, 1980, you were given a one-
day suspension. The reason for this suspension was
your consistent abuse of Company rules by overex-
tending both your lunch and break periods.
Since the time of that suspension, we have seen
no significant attempt on your part to correct these
abuses. You continue to take longer lunches and
breaks than your fellow employees.
This letter is to document our conversation of
November 11, 1980, in which I told you that a con-
tinuation of such behavior would result in the next
step of our progressive disciplinary series, which
would be a three-day suspension without pay.
Please make every effort to limit your lunch and
break periods to the time allotted. We do not wish
to issue such discipline, but you will force us to if
you continue to abuse this work place rules.
As to this last warning, Stasiak testified that despite
the previous suspension on September 22, Forlenzo con-
tinued to have problems with respect to overextending
his breaks. He did not, however, cite any particular inci-
dent in this respect. Following this last warning, Stasiak
testified that Forlenzo improved to the point where he
no longer was a problem and that no further warnings
have been issued to him.
The Respondent asserts that overextension of breaks
and lunches was not unique to Forlenzo and that in the
past other people who did so without authorization have
received disciplinary actions. 14 According to the Re-
spondent, Forlenzo's nonadherence to company policy
was more protracted and aggravated so that in his case,
as opposed to other mechanics, he received a I-day sus-
pension after repeated warnings. As noted in footnote 14,
the Respondent introduced into evidence a number of
disciplinary actions issued to mechanics and other em-
ployees for overextending their breaks.
D. Other Alleged 8(a)(1) Conduct
On January 13, 1981, the Respondent sent a letter to
its employees, which stated in pertinent part:
The secret ballot election on Friday, January 16,
will be the most crucial and important one ever
held in the Port Chester plant. The irresponsibility
and lack of fairness demonstrated by the so-called
union leaders through their poison pen letters is an
indication to me that this behavior will continue
should they succeed in the election. In my opinion,
if this group were successful it could lead to diffi-
culties and problems of such seriousness that the
continued effectiveness of our plant could be in
jeopardy and all of our jobs and livelihoods could
be affected. I am confident that the overwhelming
majority of our employees are too intelligent to be
fooled by the lies, distortions and dirty tactics that
14 The General Counsel introduced into evidence a number of time-
cards from mechanics showing that they took lunchbreaks in excess of 35
minutes and that they were not disciplined. However, there is no evi-
dence to show that these people had not been authorized to take longer
lunches. As noted above, it is not unusual for a mechanic, who on one
day has worked through his break, to be authorized to take extra time for
lunch.
Respondent, as part of its defense introduced into evidence a variety of
records showing that employees who overextended their breaks have
been disciplined. For example, one such record shows that an employee
Ronnie Gore was suspended for 3 days because of his late return from
lunch, plus his past disciplinary record. Another shows that employee,
Dorothy Montgomery was discharged on April 28, 1980, because she had
failed to punch out when going to lunch and had come back late. She too
had a substantial past disciplinary record.
1262
LIFE SAVERS, INC.
have been used over the past year and will vote
"NO" on January 16.
We know that the number of our employees who
want a union are only a small minority but we
know that this minority group will vote in this elec-
tion. So please, do not take it for granted that the
majority of our employees will vote to reject the
union and that your vote is not necessary. Your
vote of "NO" is extremely important to you, to the
future continuation of this Company, and to your
future ability to earn a decent livelihood and pro-
vide a dignified life for yourself and your family.
In addition to the above-noted written communication,
the Respondent held a series of "mini meetings" with its
various departments from about January 12 through 14,
1981, plus a large meeting with all its employees on Jan-
uary 15, 1981. (The election was held on January 16,
1981.) In connection with these meetings, the General
Counsel asserts that certain statements made by the Re-
spondent's agents at these meetings violated Section
8(a)(1) of the Act.
In relation to the mini meetings, the General Counsel
proffered the testimony of only one witness, Randolf
Nance, to support her allegation that Respondent threat-
ened employees with the loss of jobs if they selected the
Union to represent them. In this regard, Nance was I of
about 40 or 50 employees who attended a mini meeting
in the mint department on the third floor. After some
prompting by the General Counsel, Nance finally testi-
fied:
Q. Mr. Nance, at this mini meeting of the mint
department, after Mr. Samarco and you had the dis-
cussion about Mr. DeLibero
A. Yes.
Q. Were any remarks made about the effect of
the Union...
A. Yes. If the Union gets in that your job would
be jeopardized? I know he made that remark in
there.
Q. What do you recall him saying?
A. He said, if the Union gets in, that the employ-
ees at Lifesavers, your jobs would be jeopardized.
There would be a threat. And he said about the
plant . . . he made the statement about the plant in
Michigan. The plant in Michigan was working one
shift, and they were waiting for a phone call from
New York as to what to do.
In relation to the mini meetings, generally, and the
meeting in the mint department, specifically, Samarco
denied that he ever said anything to the effect that if the
Union were to get in the employees' jobs would be jeop-
ardized. Samarco's testimony was that he did in fact dis-
cuss layoffs but that he merely told employees that the
Company's business was seasonal, that layoffs were a
function of company sales and that a union therefore
could not guarantee against layoffs. He also testified that
to illustrate his point he made reference to the Compa-
ny's two unionized plants and told the employees that
there had recently been layoffs at those two facilities.'s
Samarco's testimony regarding his remarks at the mini
meeting, as opposed to Nance's uncorroborated asser-
tions, was essentially supported by the testimony of
Bishop, Moore, Blount, and Rivera.1 6
On January 15, 1981, a large meeting was held in the
company cafeteria and was attended by over 200 em-
ployees. At this meeting, after Samarco read from a pre-
pared text, he then entertained questions from the floor.
It is alleged by the General Counsel that Samarco said
that any bargaining would start from scratch or ground
zero and that, if the Union got in, the employees would
lose their present benefits. Also, although not alleged in
the complaint, the General Counsel asserts for the first
time in her brief that certain statements in the prepared
text are violative of the Act. In the latter respect, the
speech, in pertinent part, states as follows:
I have been with Life Savers for better than 43
years and in those four decades, I have never wit-
nessed anything more degrading and potentially
dangerous to our continued operations than the
filthy, smutty campaign organized and conducted
by this union and its organizing committee.... We
all know who is responsible even though they have
not had the courage to sign their names.'7 If there
was ever a time that the word irresponsible meant
anything, it is in this situation when I describe the
activities of these people. While most of us have
worked hard and conscientiously to do the best we
could to keep this Company going through very,
very difficult times, there is a small group among
us, that for whatever reasons, seem to be deter-
mined to destroy this Company. The union that
backs them denies that they have anything to do
with their poison pen letters, but we all know that
is absurd....
Such irresponsibility can only be viewed by you
as it has been by the management of this compa-
ny-extremely dangerous. The union's lack of
regard for your welfare in the filthy campaign they
have conducted, both within the plant and outside,
truly indicates the real reason they are here. Unions
including the Retail Workers Union, are suffering
membership losses. With those losses goes loss of
their income.... This union pretends to be inter-
ested in your welfare and that if elected, it will pre-
's Although Respondent's witnesses testified that Samarco's remarks
about layoffs came about in response to employee questions, it is fairly
obvious from the outline that was prepared prior to these meetings that
Samarco anticipated and prepared for questions about this subject.
6S As noted above, Blount and Rivera were employees in the mint de-
partment
" During the campaign, a number of flyers were anonymously distrib-
uted. These flyers can fairly be described as crude and scandalous. Al-
though the Respondent, during the campaign, sought to attribute these
flyers to the Union and its supporters. no proof was offered as to who
was responsible for them. In any event, it is clear that these flyers were
seized upon by the Respondent and made a major aspect of its campaign
against the Union.
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vent layoffs and suspensions. This union pretends if
elected to be interested in your day to day life here
at the plant and will assure you that personnel prob-
lems will never occur .... This same union repre-
sents our employees at Holland, Michigan, where
layoffs and suspensions have occurred.
With respect to subject of bargaining, Samarco testi-
fied that he told the employees that:
We would bargain hard; and, if the union were to
be elected to represent them, naturally there would
have to be negotiations, during which time every-
thing that you're enjoying now in the form of bene-
fits or wages would be continuing until such time
that, hopefully, negotiations would be completed;
and, in negotiations, a give-and-take activity, and
it's only at the time that both parties, the union and
the company, sign a contract that you know what
you have gained or what you have lost.
Samarco's testimony, described above was basically cor-
roborated by Moore, Bishop, and Stasiak plus employees
Seneca, Watts, and Blount. Thus, for example, employee
John Watts testified that in response to some questions,
Samarco made the statements that he would bargain hard
with the Union and that the employees might lose some-
thing or might gain something depending upon whatever
was agreed on during negotiations. Watts states that Sa-
marco did not say that bargaining would start from zero
or ground zero and that he did not say that the employ-
ee would lose all their present benefits. Similarly, em-
ployee Alvin Blount testified that employees asked if the
Company would negotiate with the Union if it got in,
whereupon Samarco answered that if that was what the
people wanted, the Company would sit down and bar-
gain hard with them. He also testified that Samarco said
that the Company would negotiate in good faith and that
the result of bargaining could be less, or it could be
more, or it could be the same. Blount further testified
that he did not recall Samarco saying anything about
bargaining from zero or starting from zero. Based on the
totality of the record, including demeanor observations, I
shall credit Samarco's testimony as to what he said
during this meeting.
IV. CONCLUDED FINDINGS
As to the discipline imposed on Nance, it is concluded
that this was not motivated by antiunion considerations.
While it is true that Nance was actively engaged in
union activity, a fact known to the employer, this does
not serve to prove, of itself, that the Company's disci-
pline of him was motivated by retaliatory considerations.
Also I cannot credit Nance's testimony that at the meet-
ing on November 10, Moore accused him of being a
troublemaker and said that if he caught Nance sneezing
loud, he was going to write him up. In this respect
Nance's version of this meeting was without corrobora-
tion from the other employees who were present. Also,
as a general matter I felt that Nance's testimony tended
to be vague and confused.
There is no doubt that on the morning of November 7,
Nance was given an assignment by Bartlett and that, al-
though Bartlett granted Nance's request to make a phone
call, his clear intent was that Nance should finish the as-
signment before doing so. It also is clear that Nance did
not finish the job before leaving his post to make the
call. When Bartlett discovered that Nance had left the
job before completion, he recommended to Moore that
Nance be suspended. Moore, however, declined to
follow Bartlett's recommendation and instead decided to
impose a written warning, an action which hardly speaks
of discriminatory intent and which was not, in my opin-
ion, unreasonable in the circumstances.
In sum, it is my opinion that Respondent's discipline of
Nance, in the circumstances herein, was not motivated
because of his union activities. I therefore shall recom-
mend that this aspect of the complaint be dismissed. 1
I also do not believe that the disciplinary actions taken
against Forlenzo were motivated because of his union ac-
tivities. It is my opinion that Forlenzo did in fact have a
habit of overextending his breaks and of leaving his work
area without giving notice to his supervisor. In response
to this conduct, the evidence shows that Forlenzo first
received oral warnings, then a written warning on
March 27, a 1-day suspension on September 23, and an-
other written warning on November 12. Moreover, the
evidence discloses to me that other employees who en-
gaged in similar conduct have received disciplinary ac-
tions and in this respect I do not believe that the General
Counsel has adequately shown that Forlenzo was treated
in a disparate manner. Indeed, the efficacy of the Re-
spondent's actions are shown by the fact that after the
last written warning on November 12, Forlenzo's con-
duct, according to Stasiak, improved significantly and no
further discipline was meted out to him.
As to the General Counsel's contention that the Re-
spondent imposed a rule solely on Forlenzo that he
could not leave his work area without first notifying his
supervisor, the evidence in support of that contention is
unpersuasive. I have already noted above that I found
Stasiak to be a credible witness and he testified that this
notification procedure was a longstanding policy for the
mechanics and that he reminded them, along with For-
lenzo, of this policy in March 1980. Even Forlenzo con-
ceded that such a policy makes sense, although maintain-
ing that he alone was told of the rule. Further, it seems
evident that the rule was not meant to prevent either
Forlenzo or any other mechanic from leaving his work
area when necessary, but was simply designed to allow
the supervisor to know where his mechanics were and to
enable him to cover the area if the need arose.
"S It therefore is unnecessary for me to decide whether the arbitrator's
award regarding Nance's discipline should be deferred to under Spielberg
Manufacturing Company, 172 NLRB 1080 (1968). In this respect, I do not
think that this is an adequate vehicle to decide whether an arbitration
procedure established unilaterally by a company would meet the Spiel-
berg standards.
It is noted, nevertheless, that the arbitrator sustained Nance's grievance
on the merits and ordered the Respondent to remove the written warning
from Nance's file. To this extent, therefore, Nance's grievance was reme-
died, although the arbitrator did not determine whether the action was
discriminatorily motivated.
1264
LIFE SAVERS, INC.
With respect to the letter sent to employees on Janu-
ary 13, 1981, the Board has already held that the state-
ments contained therein constituted interference with the
election. (See the Board's Order of March 2, 1982, deny-
ing Respondent's motion for reconsideration.) For essen-
tially the same reasons, I conclude that the statements
made in this letter constituted a violation of Section
8(a)(1) of the Act.'9 In this respect, I construe the fol-
lowing statements to be threats of reprisal:
In my opinion, if this group were successful it
could lead to difficulties and problems of such seri-
ousness that the continued effectiveness of our plant
would be in jeopardy and all our jobs and liveli-
hoods could be affected.
Your vote of "NO" is extremely important to
you, to the future continuation of this company, and
to your future ability to earn a decent livelihood
and provide a dignified life for yourself and your
family.
The allegation relative to the mini meeting held in the
mint department is, however, another matter. The only
witness proferred by the General Counsel as to this
meeting was Nance, whose recollection was suspect and
whose testimony was not corroborated. Based on the
record as a whole, it is concluded that at this meeting
Samarco, in response to expected employee questions
about layoffs, told the employees, in substance, that lay-
offs were a function of sales, and that no union could
guarantee against such layoffs. I also conclude that Sa-
marco did not tell the employees that their selection of
the Union would jeopardize their jobs or that such selec-
tion would prompt the Company to retaliate against
them.
I shall also recommend dismissal of the complaint inso-
far as it relates to the meeting held on January 15, 1981.
Based on the credited testimony, it is clear to me that Sa-
marco read to the assembled employees a prepared
speech without adornment and without ad libbing. 20 It
also is evident that after that speech, various employees
asked questions including a question as to whether the
company would bargain with the Union if it won the
election. In response, Samarco said in substance, that the
Company would bargain hard and that as a result of ne-
gotiations, the employees might end up with greater,
lesser, or equal benefits as they currently enjoyed. More-
over, even if I were to credit the General Counsel's wit-
nesses to the extent that they assert that Samarco used
the words, "bargain from zero" or "from ground zero,"
19 N.LR.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Patsy Bee Inc.,
249 NLRB 976, 977 (1980).
20 As noted above, the General Counsel alleges for the first time in her
brief that based on the prepared speech, Respondent violated Sec. 8(aXl)
of the Act by disparaging the Union. As this was not alleged in the com-
plaint ano as no motion to amend the complaint was made during the
hearing, I do not feel it is appropriate to find a violation of the Act in
this respect. To the extent that this speech contains remarks which are
similar to those made in the January 13 letter, any additional findings
would be duplicative and would be remedied pursuant to the recom-
mended Order.
such a statement in the context of the entire speech and
Samarco's response to questions, would not violate the
Act. Thus, for example, in Plastronics Inc., 233 NLRB
155, 156 (1977), the Board stated:
Depending upon the surrounding circumstances,
an employer which indicates that collective bargain-
ing "begins from scratch" or "starts at zero" or
"starts with a blank page" may or may not be en-
gaging in objectionable conduct. Such statements
are objectionable when, in context, they effectively
threaten employees with the loss of existing benefits
and leave them with the impression that what they
may ultimately receive depends in large measure
upon what the Union can induce the employer to
restore. On the other hand, such statements are not
objectionable when additional communication to the
employees dispels any implication that wages
and/or benefits will be reduced during the course of
bargaining and establishes that any reduction in
wages or benefits will occur only as a result of the
normal give and take of collective bargaining. The
totality of all the circumstances must be viewed to
determine the effect of the statements on the em-
ployees.
As it is my opinion that the totality of Samarco's re-
marks regarding bargaining were to the effect that the
employer would in fact bargain if the Union were to win
the election, that it would bargain hard and that the ne-
gotiations process would be determinative as to the level
of benefits the employees would obtain, I do not view
Samarco's remarks as being violative of the Act.2
CONCLUSIONS OF LAW
1. Respondent Life Savers, Inc., is and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union involved herein is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the letter issued to its employees on January 13,
1981, Respondent threatened its employees with the loss
of jobs if they selected the Union as their collective-bar-
gaining representative.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Except to the extent as found above, the Respond-
ent has not violated the Act in any other manner.
't In my opinion, the General Counsel's reliance on Madison Kipp
Company, 240 NLRB 870(1979), and Interstate Engineering, 230 NLRB I
(1977), is misplaced. In Madison Kipp Company, the employer, in addition
to telling employees that it would bargain from scratch, also told them
that it intended to "bargain long" and gave as an example a company
which had bargained for 8 years without reaching agreement. Clearly the
meaning of the employer's statements in that case was not merely intend-
ed as a description of the bargaining process, but was meant to convey
the impression that it intended to frustrate and delay bargaining to the
extent that the selection of a union would be meaningless.
In Interstate Engineering the employer, in addition to advising employ-
ees that bargaining starts from scratch, told them that it would be the
sole judge of the type of contract it would accept and that, if the union
did not understand that, a strike would ensue which could lead to the
permanent closing of the plant.
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby make the following
recommended:
ORDER 2 2
The Respondent, Life Savers, Inc., Port Chester, New
York, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Threatening employees with the loss of employ-
ment if they select Retail, Wholesale, Department Store
Union, Food Division, RWDSU, AFL-CIO, or any
other labor organization, as their bargaining representa-
tive.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post at its Port Chester, New York, facility, copies
of the attached notice marked "Appendix." 23 Copies of
said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
21 In the event no exceptions are filed as provided by Sec. 102.45 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.
23 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(b) Notify the Regional Director for Region 2, in writ-
ing within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT threaten our employees with the
loss of employment if they select Retail, Wholesale,
Department Store Union, Food Division, RWDSU,
AFL-CIO or any other labor organization as their
collective-bargaining representative.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by
Section 7 of the Act.
LIFE SAVERS, INC.
1266