Limpert Brothers, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 364 (N.L.R.B. 1985)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Limpert Brothers , Inc. and Local 56, AFL-CIO,
chartered by United Food and Commercial
Workers International Union , AFL-CIO=CLC.
Cases 4-CA-13030,-4-CA-13256, and 4-CA-
13357
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 16 March 1984 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions • and a supporting
brief, and the General Counsel and the Charging
Party each filed a brief in opposition to the Re-
spondent's exceptions to the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the.
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 only to the extent consistent with this
Decision and Order, and to adopt the recommend-
ed Order as'modified.3
ORDER
The National Labor Relations Board adopts the
recommended -Order of the adminstrative law
judge as modified below and orders that the Re-
spondent, Limpert Brothers, Inc., Vineland, New
Jersey, its officers, agents, successors, and assigns,
' Contrary to the judge, we do not find that the Respondent violated-
Sec 8(a)(3) of the Act on 17 June 1982 when General Manager Pearl
Giordano announced to the employees that, due to a lack of sales, there
would be a cutback to a 3- or 4-day workweek The record indicates that
the Respondent never instituted the announced cutback of hours Howev-
er, in agreement with the judge, we uphold his finding that the announce-
ment violated Sec 8 (a)(1) -
2 In agreeing with the judge that the Respondent violated Sec 8(a)(3)
and (1) when it discharged employees Raymond Fitzgibbon , Joseph De
Maio, and Margaret DiMatteo for refusing to cross the picket line, Chair-
man Dotson notes that none of the employees refused to cross the picket
line solely out of fear for his own personal safety , and are thus afforded
the same protection under the Act as the unfair labor practice pickets
Ashtabula Forge, 269 NLRB 774 (1984) (Chairman Dotson' s dissent)
s The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all -
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Through inadvertence , the judge omitted our normal injunctive lan-
guage from his Order We will insert that and , as we find that the.viola-
tions committed by the Respondent are of an egregious nature , we will
give a broad cease-and-desist order. See Hickman, Foods, 242 NLRB 1357
(1978)
Member Dennis agrees that a bargaining order is appropriate based on
her concurrence in Regency Manor Nursing Home, 275 NLRB 1261
(1985)
shall take the action set forth in the Order-as modi-
fied. .
1. Add the following paragraph as' paragraph
1(g).
"(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7--of the
Act."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection - -
To choose not to ' engage in any of these
protected concerted activities.
WE WILL NOT discharge or "otherwise discrimi-
nate against any of you for supporting Local 56,
AFL-CIO, : chartered by United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC, or any other union.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT threaten to close our, plant for
supporting Local 56,- AFL-CIO, chartered by-
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, or any other union. ,
WE WILL NOT in any other manner interfere
with, restrain, or coerce you -in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union
and- put in writing and sign any agreement reached .
on terms and conditions of employment for our
employees in the bargaining unit: -
All production, maintenance, shipping and lab-
oratory employees employed by Limpert
Brothers, Inc. at its Vineland, NJ facility, ex-
cluding all office clerical employees , salesmen,
guards and supervisors as defined in the Na-
tional Labor Relations Act.
276 NLRB No. 37
LIMPERT BROS 365
WE WILL offer Pauline .Pruitf, Laverne Jackson,
Donna Barriento , Carlos Gonzalez, Miguel Velez,
Carmen Rodriguez, Leonard Graff, Lewis Smith,
Sharon Parker, Gail Ocasio, John Mazzi, Susan
Johnson, Raymond Fitzgibbon, Joseph De Maio,
and Margaret DiMatteo immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
• and other benefits resulting from their discharge,
less any net interim earnings , plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charge and that their discharge will not be used
against them in any way.
LIMPERT BROTHERS, INC.
Margarita Navarro, Esq., William Slack, Esq., of Philadel-
phia , Pennsylvania , for the General Couonsel.
David F Girard-di Carlo, Esq., Frederick J. Bosch, Esq.,
of Philadelphia , Pennsylvania, for the Respondent.
Mary Crangle, Esq., Hilerly Klein, Esq., of Haddonfield,
. New Jersey, for the Charging Party.
On January 21, 1983, Respondent filed an answer de-
nying that it has engaged in any unfair labor practices as
set forth in the consolidated complaint.
A hearing'in-the above matter was held before me in
Vineland, New Jersey, on April 11-14, 1983, and in
Philadelphia, Pennsylvania, on July 6 and 27, 1983.
Briefs have been received from the General Counsel,
counsel for the Charging Party, and counsel for the Re-
spondent, respectively, which have been carefully con-
sidered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all material times, the Respondent has been a cor-
poration duly organized under, and existing by virtue of,
the laws of the State of New York. It is engaged in the
wholesale processing of fruits and flavors for the ice
cream business at its facility located in Vineland, New
Jersey. -
During the fiscal year ending October 31, 1981, Re-
spondent purchased materials in an excess of $50,000 di-
rectly from points outside the State of New Jersey.
The complaint alleges, the Respondent admits, and I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge.
Charges of unfair labor practices were filed on June 21,
October 8, and November 28, 1982, by United Food and
Commercial Workers Union, Local 56, AFL-CIO, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO-CLC (the Union), against Lim-
pert Brothers, Inc. (the Respondent). On behalf of the
General Counsel , the Regional Director for Region 4
issued a complaint in the first two cases on November
30, 1982 , and thereafter issued an order consolidating
those cases with a third case (4-CA-13357).
The consolidated complaint alleges that Respondent
solicited a statement from an employee concerning
whether the employee had been threatened by fellow
employee strikers ; that Respondent interrogated an em-
ployee about the identity of employees engaged in a
strike against the Respondent ; that Respondent threat-
ened to close its business if employees continued to sup-
port the Union , all in violation of Section 8(a)(1) of the
Act; and that Respondent reduced employees' hours of
work , terminated a substantial number of employees and
thereafter failed and refused to reinstate these employees,
including some employees who had offered to return to
work, because. all such employees supported the Union,
in violation of Section 8(a)(3) of the Act; and that Re-
spondent refused the Union's demand for recognition on
June 18-21, 1982, and became engaged in conduct de-
signed to undermine the Union's majority status, in viola-
tion of Section 8(a)(5) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Food and Commercial Workers Union,
Local 56, AFL-CIO , chartered by United Food and
Commercial Workers International , AFL-CIO-CLC is,
and has been at all times material herein , a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
For the past 30 years, Respondent has been engaged in
the business of processing fruits and manufacturing ice
cream flavors and toppings for ice cream enterprises at
its location in Vineland, New Jersey. Its ice cream prod-
uct is largely seasonal with peak demand for ice cream
occurring in late spring and summer . For most of its 30
years in operation, Respondent has enjoyed a profitable
business except for the year 1981 and the first part of
1982, when it commenced to suffer substantial losses in
profits.
During these proceedings the parties stipulated that
the following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the National Labor Relations Act:
All production , maintenance , shipping and laborato-
ry employees employed , by Limpert Brothers, Inc.
at its Vineland , NJ facility , excluding all office cler-
ical employees , salesman, guards and supervisors as
defined in the National Labor Relations Act.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties further stipulated that on the morning of
June 18, 1982, the following employees, their depart-
ment , and wages per hour as described below , were in-
cluded in the above-described appropriate unit:
Charles Adams, maintenance-$5.00
Donna Barriento , general labor-$3.60
Joseph DeMaio, general labor-$5.50
Vincent DiBiase, general labor-$4.00'
Michael DiMatteo, shipping-$4.75
Gerald. Giordano, general labor-$3.35
Lees Giordano, general labor-$3.35'
Carlos Gonzalez , general labor-$5.25
Leonard Graff, general labor-$4.25 .
Clotilde Irezarry , general labor-$3.45
Laverne Jackson , general labor-$3.35
Eliseo Jimenez , general labor-$4.50
Diane Johnson,. general labor-$3.35
Susan Johnson , general labor-$3.35
Charles Licaretz , general labor-$6.50
Richard Menz , shipping-$4.25 -
Robert Milana, general labor-$3.35
Gail Ocasio , general labor-$3.35
Joseph_Oliver, laboratory-$3.85
Sharon Parker, general labor-, $3.55
Wenceslao , Perez, general labor-$4.25
Pauline Pruitt, general labor-$3.75
Ronald Reed , shipping-$4.25
Jimmy Riggs, general labor-$4.00
Carmen Rodriguez , general labor-$3.35
Mervin Roman; general labor-$3.35
Wilberta Santiago, general labor-$3.62
Ron Shepherd general labor-$4.75
Lewis J. Smith , general labor-$3.50
Ronald Tobolski, general labor-$3.75
Miguel Velez, general labor-$3.35
The parties agreed not to include John Mazzi in the
appropriate unit because they are in dispute as to his
status as an employee versus a supervisor . Mazzi works
in maintenance at a rate of $6.25 an hour. The General
Counsel contends that Mazzi •is not a supervisor while
the Respondent contends he is a supervisor.'
B. The Organizing Effort of the Respondent's
Employees
A composite of the credited evidence that in response
to a telephone call from employees Pauline Pruitt and
Carlos Gonzalez on June 3, 1983, Michael Matway, busi-
ness representative of Local 56, met with Pruitt and
Gonzalez at the Best Western Motel in Vineland, New
Jersey . On June 16 , 1983, representative Matway and his
associate, Gene Christanti , met at the home of Pauline
Pruitt with the following employees: Pauline Pruitt,
Carlos Gonzalez ,. Carmen Rodriguez, Wenceslao Perez,
Eliseo Jimenez, John Mazzi, Laverne Jackson, Donna
Barriento , and Gail Ocasio . Union authorization cards
were distributed during the meeting by representative
Matway, who told the employees when he received a
' The facts set forth above are uncontroverted and are not in conflict
in this record
substantial majority of- signed cards, the cards would be
used to obtain recognition for Respondent, . and the
Union would simultaneously file apetition for a secret-
ballot election. Matway also said if he received signed
cards from a majority of the employees, he would with-
draw the petition..The following employees signed union
authorization cards for Local 56 on June 16, 1982:
Pauline Pruitt
Carlos Gonzalez
Wenceslao Perez
John Mazzi
Donna Barriento
Eliseo Jimenez
Laverne Jackson
Gail Ocasio
Some of the employees (Leonard Graff, Lewis Smith,
John Mazzi, Donna Barriento, Laverne Jackson , Pauline
Pruitt , and Ron Tobolsky) who attended the organizing
meeting and/or signed authorization cards on the
evening of June 16 , engaged in a union solicitation cam-
paign in the plant on the next morning and afternoon,
June 17. During the break and lunch periods on June 17,
except Clotilde Irezarry, the following employees signed
authorization cards on June 17, 1982: -
Wilberta Gantiago
Clotilde Irezarry -
Leonard Graff
Sue Johnson
Lewis Smith
Ronald Shepherd
Carmen Rodriguez
Sharon Parker
Robert Milana
Ron Tobolski
Ronald O. Reed •
The above list of signed cards represent 19 out of the
list of 31 employees to which the parties stipulated con-
stituted an appropriate unit on June 18, 1982 . However,
during and subsequent to the hearing , Respondent chal-
lenged either the authenticity of the signatures, or the
validity of the cards bearing the signatures of the follow-
ing employees: Ronald Shepherd, Miguel Velez, Clotilde
Iiezarry , Carmen Rodriguez , Gail Ocasio, Eliseo Jimen-
ez, Susan Johnson, and John Mazzi.
At the hearing herein, Respondent did not challenge
the authenticity of the authorization cards of employees
Donna Barriento, Carlos Gonzalez , Leonard Graff, Law-
rence Jackson , Eliseo Jimenez, John Mazzi, Robert
Milana, Sharon Parker , Wenceslao Perez , Pauline Pruitt,
Lewis Smith, and Miguel Velez. The language on the
card signed by each of the above-named employees is
printed in unambiguous English or Spanish , designating
the Union as the collective -bargaining representative of
the signer . Respondent did • not produce any, evidence
that such printed language was canceled or misrepresent-
ed to any signatory by a card solicitor, to the effect that
the printed language should be disregarded . In the ab-
sence of such evidence ,- the card is not , invalidated.
LIMPERT BROS.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). At
most, Respondent makes reference to the fact that Union
Representative Matway testified he saw Wenceslao sign
a card at the June 16 organizing meeting when, in fact,
Wenceslao Perez was not present at that meeting.
However, I was persuaded by the circumstances and
Matway's demeanor, that this misstatement by him was
an honest mistake of mental recall, ,as I believe he admit-
ted he was mistaken. I deem such a mistake quite possi-
ble and' probable of a witness trying to recall the identity
of all of the employees who were present at a meeting
held several months prior to this hearing. I' therefore find
that the cards of all of the above-named, employees are
valid, and should be counted in deterining majority
support for the Union on June 17-21, 1982. Since John
Mazzi testified without dispute that he solicited and wit-
iiessed Ronald Reed and Ronald Tobolski read and
signed their cards and returned it to him, which Maggie
turned in to Matway on June 17, both cards are valid
and should be counted in determining majority support
for, the Union.
The Authorization Card of Ron Shepherd
As the-record shows, all of the above signed cards are
"single purpose" union authorization cards, authorizing
the Union to represent the signatory thereof for purposes
of collective bargaining with the -Respondent. Counsel
for Respondent argues that Ron Shepherd's card is in-
valid because in June Shepherd had instructed card-solic-
itor John Mazzi not to submit his signed card to the
Union. However this is not necessarily an accurate ac-
count of what the evidence has established. Ron Shep-
herd did not appear and testify in this proceeding None-
theless, John Mazzi testified, and I credit his undisputed
testimony, that employee Ron Shepherd signed the union
card and returned it to him (Mazzi), requesting that
Mazzi not submit the card to the Union until he instruct-
ed him to do so. Mazzi testified he complied with Shep-
herd's instructions until-'Shepherd directed him to submit
the card to the Union in August or September, after
Shepherd was laid off.
It is particularly noted that Shepherd's card is dated
June 19, 1982. However, since Mazzi had not submitted,
or should not have submitted the card to the Union until
August or September, the Union did not legally have
Shepherd's card on June 18-21, when the Union de-
manded recognition by the Respondent. This conclusion
is consistent with the credited testimony of Mazzi. If, on
the contrary, Mazzi did in fact submit Shepherd's card to
the Union on June 19-21, he did so against the instruc-
tions and without the authorization of Shepherd. In
either event, Shepherd's card, although valid when sub-
mitted to the Union in August or September, was not
valid for purposes of tabulation on June 19-21, when the
Union made its demand to Respondent for recognition.
Consequently, Shepherd's card cannot be counted to de-
termine whether the Union represented a majority of Re-
spondent's employees on June 21, when Respondent re-
ceived the Union's demand for recognition (G.C. Exh.
3), because the Union did not, or should not have had,
Shepherd's card nor his authorization for the card at any
time in June 1982. Therefore, Shepherd's card will not
367
be counted in determining whether the Union represent-
ed a majority of Respondent's employees in June 1982.
The Authorization Card of Miguel Velez
The Respondent did not object to the admission in evi-
dence of Miguel Velez' authorization card (G.C. Exh. 2-
c), but now it argues in its brief that Velez' card should
be found invalid, allegedly because the General Counsel
did not produce evidence authenticating the signature or
the intent of the signatory. However, it is noted that
Union Representative Matway testified, without dispute,
that he received Velez' card along with 11 other signed
cards during an organizing meeting at Pauline Pruitt's
home on June 17. When Respondent's counsel was asked
did he have any objections to admission of the card in
evidence, counsel said, "No." The purpose of the single
purpose card is clearly printed on its face in Spanish.
Counsel for Respondent has not offered any evidence
even intimating that the signature on the card is not au-
thentic, or that the signer did not intend to sign it. Thus,
it may be reasonably inferred from the fact that the pur-
pose on the card is clearly printed on its face in Spanish;
that the name Miguel Velez, which appears on it, is a
Spanish name; that Respondent stipulated that a Miguel
Velez was in its employ on June 18, 1982; and that Re-
spondent, who must have in its personnel records or can-
celed checks the signature of Velez, did not offer any
such evidence to refute the genuineness of the signature,
or the lack of intent of the signer.
Thus, I conclude and find that the General Counsel
has sufficiently established the validity of Miguel Velez'
card, and his card should be counted in determining
whether a majority of Respondent's employees supported
the Union on June 18-21, 1982.
The Authorization Card of Gail Ocasio
The Respondent also contends that, although the Gen-
eral Counsel may have authenticated the card of Gail
Ocasio, the General Counsel has nevertheless failed to
establish the validity of Ocasio's card because Ocasio
was not called to testify about her intent to sign, and be-
cause her solicitor, Laverne Jackson's testimony shows
that Union Representative Matway's explanation for the
card to Ocasio and herself, misrepresented its purpose as
follows:
He [Matway] told us these cards was to see did we
have enough votes to establish-He said that if we
signed these cards that the benefits and all this here,
he told us that this card was not to say that we had
a union in there, it was to get enough votes in so
we could organize -to go to the head -men and see
would they okay, you know, the union be recog-
nized in there.
The most critical and strict reading of Jackson's
above-quoted testimony reveals that Matway told them
(Ocasio and Jackson) the signing of a card itself did not
mean they had a union. However, he told them if they
succeeded in getting enough cards signed (by a majority
of employees) Matway would approach management and
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand recognition . This construction of Jackson 's testi-
mony is not inconsistent with Matway 's testimony about
what he told the employees during the organizing meet-
ing on June 16. At that time, Matway testified he told
the employees if they obtained signed cards by a majori-
ty of the employees, he would seek recognition of man-
agement and simultaneously file a petition for a secret-
ballot election.
In'the instant case , the language on the card is clear
and unambiguous on its face . Nowhere in the above-
quoted language is it indicated that Matway deliberately
and clearly directed Ocasio or Jackson to disregard the
language on the card, or otherwise told them their card
would be used for no purpose other than to 'get an elec-
tion . In the absence of such or similar statements by
Matway , there is no evidence that Matway misrepresent-
ed the purpose of the card, or that Ocasio did not intend
to sign the card she did in fact sign . It is well established
that a solicitor of a card who testifies he or she wit-
nessed and identifies the signature of the signer is suffi-
cient to satisfy authentication and validity of the card.
Dresser Industries, 248 NLRB ,33 (1980). Under such cir-
cumstances , the signatory need not appear and testify.
Additionally, the reading of the above-quoted testimony
of Jackson does not substantiate Respondent 's contention
that Matway misrepresented the purpose of the caid.
Consequently , I conclude and find that Ocasio's card sat-
isfies the legal requirements for both authenticity and va-
lidity. Dresser Industries, supra; Keystone Pretzel Bakery,
242 NLRB 492 (1979).
The Authorization Card of Eliseo Jimenez
The Respondent did not object to the admissibility of
Eliseo Jimenez ' authorization card, but argues that it is
invalid because the card was filled in by his wife, at his
direction, and signed by, Jimenez himself; because Jimen-
ez said he did not read the card ; because the purpose of
the card was misstated to Jimenez by Carlos Gonzalez;
and because Jimenez never understood the purpose of
the card. However, Respondent 's arguments are not sub-
stantiated by the evidence of record. In Jimenez' testimo-
ny quoted in Respondent 's brief (pp. 116-117), Jimenez
was asked by counsel for Respondent . did Gonzalez. tell
him-the purpose of the card . Jimenez said , "Yes, he.said
it was to form a union .. .." Moreover, Jimenez testi-
fied that he went to the organizing meeting on June 16
with Gonzalez, because he (Jimenez) does not speak
English . The record contains Union , Respresentative
Matway 's clear and credited testimony ; of what he told
the employees was the purpose of the authorization cards
at the June 16 meeting. -
It may be reasonably inferred from Jimenez ' testimony
that Gonzalez , in whom Jimenez obviously had confi-
dence to translate from English to Spanish what union
representatives told the employees . Matway told the em-
ployees if a majority of employees signed cards, he
would approach management and demand ' recognition,
and simultaneously file a petition for a secret-ballot elec-
tion . I do not have any reason to believe that Gonzalez
did not explain the purpose of the cards to Jimenez as
Matway explained the purpose of the cards to the ^em-
ployees . Additionally , the purpose of the card is printed
in Spanish on Jimenez ' card and Jimenez is literate in
Spanish. The fact that the. card was filled in by Jimenez'
-wife at his direction is cleai evidence that Jimenez knew
and intended to sign the card with a full appreciation of
its significance . Since he is literate in Spanish it must be
presumed that he knew and understood the contents and
purpose of the card. Dresser Industries, 248 NLRB 33
(1980). Consequently , there is no reasonably established
basis for declaring Jimenez ' card invalid , and I find his
card valid for the purpose of determining whether, the
Union enjoyed majority support on June 17-21, 1982.
The Authorization Card of Susan Johnson
The Respondent argues - that the authorization card of
Susan Johnson must be deemed invalid because employee
Donna Barriento filled in the information on the card
without a showing that Johnson directed her to do so;
and that Johnson testified she only read the information
filled in . and did not testify she read the printed purpose
on the card . While some of Respondent 's recitation of
the facts are correct, it is particularly noted that the
record does not contain any evidence that Johnson did
not know the purpose of the card she signed . -In fact, the
evidence shows that she testified she signed the card be-
cause fellow employee Donna Barriento asked her to
sign a union authorization card. She assented and signed
a card . Johnson therefore knew the card was to get a
union in the plant . Although she may not have read the
stated purpose on the card , the evidence did not establish
that Barriento or anyone else ever told Johnson the card
was for the exclusive purpose of obtaining a union elec-
tion . The law is well settled as the Supreme Court stated
in NLRB v. Gissel Packing Co., 395 U.S. 575, 584 (1969),
approving Board law on determining the validity of au-
thorization cards , as enunciated in Cumberland Shoe
Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th
Cir. 1975), reaffirmed in Levi Strauss & Co., 172 NLRB
732 (1968):
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that the
signer authorizes the Union to' represent the em-
ployee for collective bargaining purposes and not to
seek an election), it will be counted unless it is
proved that ' the employee was told that the card
was to be used solely for the purpose of obtaining an
election.
In the instant case the evidence does not establish that
Barriento or any other union organizer or representative
told Johnson the single purpose authorization card was
to be used solely for the purpose of obtaining an elec-
tion . Keystone Pretzel Bakery, 242 NLRB 492 (1979). As
counsel for the Respondent concedes , Johnson, from all
outward appearance , is literate . In the absence of any
evidence to the contrary , Johnson is presumed to have
known and understood the contents and purpose of the
card which she signed . Johnson's card is therefore valid
and should be counted in determining whether a majori-
ty of the employees supported the Union on June 17-21,
1982.
LIMPERT BROS 369
The Authorization Card of Clotilde Irezarry
Counsel for the Respondent argues that the authoriza-
tion card of Clotilde Irezarry is invalid because union
card solicitor Eliseo Jimenez used coercive tactics in in-
ducing her to sign the card , and told her the card would
be used to secure a union representative election.
Irezarry , an elderly Hispanic woman with a limited
understanding of English and a fair reading and speaking
knowledge of Spanish , has been employed by Respond-
ent for 10 or I1 years, until she was laid off subject to
recall in November 1982 Pursuant to subpoena , she testi-
fied that she had refused to, sign a union authorization
card for Carlos Gonzalez on several occasions in June.
Eliseo Jimenez ,- also Hispanic , came to her house on June
17 as she was preparing to go out . She said he requested
her to sign an authorization card . She kept refusing to
sign the card but Jimenez kept insisting that she sign the
card . Without reading the card , Irezarry said she finally
signed the card to get rid of Jimenez.
On the contrary , Eliseo Jimenez, who also testified
pursuant to subpoena prior to Irezarry , acknowledged he
went to Irezarry 's house on behalf of the organizing em-
ployees to obtain her signature on a card . Jimenez is also
Hispanic and literate in Spanish but not in English. He
testified he took the card to Irezarry 's home because the
other employees did not know where she lived . When he
arrived , he said Irezarry asked for the card , he gave it to
her, and she signed it without any pressure from him.
"She signed it because she wanted to, nobody pressured
"her." Although Jimenez did not explain what he meant
by "pressuring " Irezarry , neither did the counsel for Re-
spondent explain or address any evidence in the record
to support his charge that Jimenez used coercive tactics
against Irezarry to obtain her signature.
Counsel for Respondent also suggests , by cases cited in
support of his argument , that Irezarry was harassed into
signing the card . ` Although the record shows Irezarry
was approached several times by Gonzalez to sign a
card , which she refused to do , Jimenez approached her
at her home on one occasion , June 17. While I'm not
persuaded that the visit and any urging by Jimenez to
have Irezarry sign a card amounted to harassment, the
conflicting testimony of Irezarry and Jimenez raises a
crucial question of•credibility.
In addressing the question of credibility of the two
witnesses (Irezarry and Jiminez), it is first noted that
both witnesses are Hispanic , both speak , read , and under-
stand Spanish , and the authorization card which each (Ji-
menez and Irezarry) signed (G.C. Exhs. 2(p) and 2(n)),
respectively, is printed in Spanish . The clear and unam-
biguous wording on the card states that "I hereby au-
thonze the United Food & Commercial Workers Interna-
tional Union , AFL-CIO-CLC, or - its chartered' local
union(s) to represent me for the purpose of collective
bargaining."
In almost narrative fashion, Irezarry testified that, after
she refused to sign , Jimenez told her there would be no
trouble-no problems, that it did not mean anything. She
said she told Jimenez she did not want to get involved
and did not want to sign , that she was in a hurry" to go
out and Jimenez kept insisting that she sign . She said he
told her the only problem was the day of the election, at
which time she could vote in favor or against the Union,
or she did not have to vote at all. Without reading the
card , she said she signed the card to get rid of Jimenez.
Although Irezarry testified she did not read the card
before she 'signed it , but merely signed it to get rid of
Jimenez, the record shows that she also testified in re-
sponse to specific questions by the General Counsel as
follows:
Q. Did you know why Eliseo wanted you to sign
your card?
A. He didn 't say anything to me.
Q. That was not the question I asked. Do you
know why he wanted you to sign the card?
A. He wanted for me to sign the card because
they were collecting signatures in order to have a
union at our place of work , but I was not in agree-
ment with that.
Q. So at that time you signed this card , you knew
you were signing the card because they were trying
to get a union into the company
A. I knew that.
The latter testimony of Irezarry is in conflict with her
earlier testimony . as to what Jimenez said to her about
the card , further complicating her credibility . As I ob-
served the demeanor of Irezarry as she testified, I was
persuaded that she understood most of the questions pro-
pounded to her through an experienced Spanish-English
interpreter , better than the impression she attempted to
convey that she did not understand . This conclusion is
supported by the fact that Irezarry was testifying pursu-
ant to subpoena . Her demeanor clearly indicated she was
reluctant to testify by the lapse of time before she re-
sponded to questions , which I was persuaded was not
due to her lack of understanding the questions . I particu-
larly noted how she frequently looked in the direction of
Respondent 's representatives before she answered many
of the questions asked by the General Counsel , as well as
questions asked by the bench . I was further persuaded
that Irezarry was not being fully truthful by the fact that
she also remained employed by Respondent long after
the mass termination of employees in June, and also by
the fact that she was laid off, rather than terminated, in
November, with the expectation of being recalled by the
Respondent . Under these circumstances , I received the
distinct impression that Irezarry wanted - to be recalled to
work and did not want to give Respondent the impres-
sion that she supported the organizing effort of the
Union in any way. Moreover, the record evidence does
not show that Irezarry ever tried to rescind her authori-
zation card.
I credit Jimenez ' testimony because I -was persuaded
by his demeanor and the consistency with which he testi-
fied that his testimony was essentially truthful. Conspicu-
ously absent in the credited evidence is any language by
Jimenez which deliberately and clearly directed Irezarry
to disregard the Spanish language on her card reciting its
purpose, or that he otherwise assured Irezarry her card
would be used for no purpose other than to get an elec-
tion . In the absence of such misrepresentations, I find
Irezarry 's card to be a valid designation of the Union as
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her collective-bargaining representative. Her card should
be counted in determining majority support of the Union
on June 17-21, 1982. Keystone Pretzel Bakery, 242 NLRB
492, 494 (1979). Federal Alarm, 230 NLRB 518, 522
(1970), Levi Strauss Co., 732, 733 (1968), enfd. 441 F.2d
1027 (6th Cir. 1980).
The Authorization Card of Carmen Rodriguez
Respondent challenged the validity and authenticity of
the authorization card of Carmen Rodriguez because she
authorized a friend to fill it out and sign it on her behalf.
In this regard, Rodriguez testified she was given a card
(printed in Spanish) by Carlos Gonzalez, who told her it
was for the Union and requested her to fill it out and
return it to him. Rodriguez is Hispanic, and she testified
she read the card and took it with her when she went
home for lunch. While at home, she asked her friend,
Maria, to fill out the card and sign her (Rodriguez) name
on it. Maria read the card to her, filled it out, and signed
Rodriguez' name on it and returned it to Rodriguez who,
in turn, returned it to Gonzalez. Although Rodriguez
testified she understood why she wanted to. sign the
card, there was some language difficulty as she testified
through the assistance of a good English-Spanish inter-
preter. After several questions were asked which I did
not deem clarifying, I asked Rodriguez did she tell Maria
to sign the card because.she wanted the Union, and she
said, "Yes."
On cross-examination Rodriguez said she signed the
card because her fellow workers were signing a card.
She acknowledged she stated in her affidavit given to the
Board on June 24, 1982, that she had signed a card, with-
out explaining that her friend, Maria, had signed the card
on her behalf. When asked why did she neglect to so
inform the Board, she said she thought she would have a
problem if she -told the Board Maria had signed- the card
on her behalf. Presumably Rodriguez thought she could
not authorize another person to sign on her behalf,-espe-
cially if such fact -became known by a Board agent.
Since Rodriguez is a layperson, I was persuaded that her
,assumption and explanation were truthful, even though
erroneous, because an employee may authorize another
person to sign his or her name on an authorization card.
La Mousse, 'Inc., 259 NLRB 37, 42 fn. 10 (1981).
Although Rodriguez commenced to cry as she testified
about her having Maria sign a card on her behalf, and as
she explained the conflict in her testimony with the state-
ment in her affidavit, I was nonetheless persuaded by her
explanation and demeanor that she was telling the truth.
I also received the distinct impression that she was upset
that the conflict in her testimony with her statement in
her affidavit was revealed on examination , but not be-
cause she was not telling the truth. I was also satisfied
that Rodriguez understood the purpose of the card and
that she authorized Maria to sign her name on a card be-
cause she was in favor of the, Union. -
During the hearing Rodriguez in effect adopted, if not
ratified, Maria's signing of the -card on her behalf as it
was signed by Maria pursuant to Rodriguez' authoriza-
tion At no time thereafter did Rodriguez attempt to re-
scind her card. Under these circumstances, I find Rodri-
guez ' card valid for purposes of determining whether a
majority of Respondent's employees designated the
Union as their collective-bargaining representative on
Jude 17, 1982. La Mousse, Inc., supra; Standard Coosa-
Thatcher, 257 NLRB 304, 309 (1981), enfd. 691 F.2d 1133
(4th Cir. 1982).
The Supervisory Status of John Mazzi
Respondent argues that all of'the authorization cards
signed by employees at the June 26 meeting are invalid
because of the presence of John Mazzi whom Respondent
argues was a supervisor. In this regard, the evidence
shows that Mazzi was employed by Respondent from
June 1954 to June 1982. During his later years he
worked along with Charles Adams in the plant's mainte-
nance department as a maintenance mechanic-keeping
production machinery operational-and as a boiler engi-
neer for $6.25 per. hour. The majority of Mazzi's time
was spent maintaining the production machinery and
tending the plant's boiler, although he and Adams were
occasionally assisted by employees from other depart-
ments. The record is barren of any evidence that Mazzi
had authority or in fact exercised authority - to hire,
layoff, suspend, transfer, recall, promote, demote,
reward, discharge, or otherwise discipline employees, or
that he exercised independent judgment in performing
supervisory tasks. Nor did Respondent proffer any evi-
dence that Mazzi had or exercised such authority.
Gurabo Lace Mills, 249 NLRB 658 (1980); NLRB v. Se-
curity Guard Service, 384 F.2d 143, 149 (5th Cir. 1967).
Although Mazzi testified he occasionally assigned
work, he explained the limited circumstances 'under
which he made such assignments when employees were
assigned to assist Adams and himself. He acknowledged
employees sometimes expressed complaints or asked him
questions about the work, work problems, and employee
concerns, and he would answer their questions or ex-
press his opinion in response to their complaints. It was
not established by the evidence that Mazzi resolved any
employee grievances or monitored their work perform-
ance on behalf of management. In fact, the employees
were not assigned in his department and none of them
were permanently assigned to him for directions. As the
General Counsel argues, and I agree, it appears normal
that employees would consult with an employee whose
tenured seniority greatly exceeded their own. As the
General Counsel also points out, the Board has held that
a more experienced employee who answers questions for
junior employees and gives. them some advice on job
performance does not necessarily mean that he directs
their work. Also, where instructions and orders from a
senior employee involve only routine matters, such
senior employee is a nonsupervisory leadman . Salinas
Mfg. Corp., 211 NLRB 573, 574 (1974). Additionally,
where such experienced employee occasionally reassigns
work from one employee to another because of the in-
ability of junior employees to perform the work, the
Board has held that such employee is not a supervisor.
Vapor Corp., 242 NLRB 776, 780-783 (1979). ,
Based also on the foregoing evidence and legal author-
ity, I conclude and find that John Mazzi was not a super-
visor within the meaning of the -Act, but an employee
LIMPERT BROS.-
who also signed a union authorization card on June 16.
Respondent's argument is -not substantiated by the evi-
dence of record. Since Mazzi was an employee, his card,
as well as the employees who signed cards in his pres-
ence, should and will be counted in determining whether
the Union enjoyed majority. support of the employees on
June 18-21 when the Union made its request upon man-
agement for recognition.
,Based on the foregoing credited evidence, I also con-
clude and find that on June 3,. and more particularly,
June 16 and 17, 1982, Respondent's employees engaged
in an organizing campaign to unionize Respondent's
plant. I further conclude and find that the General Coun-
sel presented authorization cards signed by 20 of Re-
spondent's 32 employees. Respondent challenged 8 of the
20 signed cards for authenticity or validity. Notwith-
standing, having found the challenged authorization card
of Ron Shepherd invalid for purposes of determining the
Union's majority. status on June 17-21, I nevertheless
find valid the seven challenged authorization cards of
Miguel Velez, Gail Ocasio, Eliseo Jimenez , Susan John-
son, John Mazzi, Clotilde Irezarry, and Carmen Rodri-
quez . The Union therefore had validly signed authoriza-
tion cards from 19 of Respondent's 32 employees on
June 17-21, 1982. Consequently, since 19 signatures
(signed cards) constituted a majority, 3 more than half of
Respondent's 32 employees on June 17-21, I find that a
majority of Respondent's employees designated the
Union their collective-bargaining representative on June
17, 1982.
The Supervisory Status of Tony Mangine
Anthony Mangine was plant manager of Respondent
at all material times (February-September 13, 1982). Re-
spondent's president, Harold Limpert, testified that Man-
gine was responsible for plant' production, and that he
had the authority to hire and f re employees. President
Limpert's testimony is consistent with the testimony of
employees Robert Milana and Susan Johnson, who un-
disputedly testified that Mangine hired' them. With such
clear uncontroverted and probative evidence of supervi-
sory status of Mangine, the conclusion is inevitable that
Mangine 's function satisfies the requirements for supervi-
sory status set forth in Section 2(11) of the Act.'
C. Respondent's Knowledge of the Employees'
Organizing Activities and Its' Reactions'Thereto
Pauline Pritt undisputedly testified on cross-examina-
tion that on June 17, Michael DiMatteo, who had re-
fused to sign an authorization card, told her he went into
the office and told Managers Mangine and Giordano that
the employees were trying to organize a union.2
About 4 or 4:30 on the afternoon of June 17, the Com-
pany called a meeting of all employees which was held
in the cherry department. Present for the Company were
General Manager Pearl Giordano and Plant Manager
2 Not only is Pruitt 's testimony in this regard not disputed by Mangine,
but I was persuaded by her demeanor that she was testifying truthfully.
Moreover, since her testimony in this regard is supported by-other cred-
ited testimony of what she said DsMatteo told her and I discredit Gior-
dano's denial that she knew about the employees union activity
371
Tony Mangine . A composite of the, essentially consistent
and undisputed testimony of the witnesses of both parties
established that Giordano told the employees, that "due
to lack of sales, there would be a cutback in the work-
week to a 4-day week, possibly a 3-day week, but she
would try to avoid any layoffs"; that the employees and
members of management at Limpert' Brothers were like
one family, and that she knew how difficult it was to
find a job, so there would be no layoffs. This was the
first time the employees had ever been notified about
such a reduction in work hours or, lack of sales, reflect-
ing financial problems. •
, On the same afternoon, June 17, truckdriver Joseph
DeMaio returned from making deliveries about 4:30 p.m.
while the' meeting with employees was in progress. After
the meeting he went to the office of Plant Manager
Tony Mangine to turn in his delivery receipts for the
day's work. He testified without dispute -that Mangine
asked him, "How come you didn't tell me?"- DeMaio
said he looked at Mangine and asked, "Tell you what?"
and, Mangine failing to respond, DeMaio walked out of
the office. Several minutes later DeMaio returned to
Mangine 's office. Mangine then said to him, the reason
for the 4-day workweek was because the employees
were organizing a union and the Company learned about
it and was reducing the workdays. Mangine asked him if
he wanted to sign a union card and he told Mangine he
had to give it some thought and would let him -know. a
About 11 or 11:30 a.m. on the next day, Friday, June
18, 1982, the Company called a meeting of all the em-
ployees. Present for the Company were: President
Howard Limpert, General Manager Pearl Giordano, and
Plant Manager Tony Mangine. According to a composite
of the essentially consistent -testimony of witnesses for
both parties, Limpert said, due to lack of sales and the
general state of the economy, he would have to lay off
some employees; that the Company was in debt and bank
creditors were on him Giordano and Mangine proceed-
ed to distribute the layoff notices and checks to employ-
ees. Since the payroll period ended on June 17, the em-
ployees were given an additional check for 4 hours on
June 18. Forklift operator Leonard Graff asked Limpert
were they being laid off or fired, but Limpert did not re-
spond. He repeated his question and Limpert said they
were terminated and he offered to show Graff the Com-
pany's debts but Graff declined the offer. Limpert then
went upstairs and got the Company's books, but Graff
would not look at them. Giordano also replied to inquir-
ing employee Pruitt about her employment status by in-
I credit DeMaio's testimony not only because I was persuaded by his
demeanor that he was testifying truthfully, but also because his account is
relatively consistent with his account of a similar conversation he had
with Respondent 's president-owner,' Harold Limpert, on June 19, and
also with the testimonial account of conversations John Mazzi and Pau-
line Pruitt held with Plant Manager Mangme at the Flea Market on June
19, infra, as well as with all of the credited evidence of record DeMaio's
testimony in this regard is also undisputed because Tony Mangine, who
has been replaced as plant manager by Tony Campanella, did not appear
and testify in this proceeding and no reasonable explanation was offered
for his nonappearance Respondent did not establish that it could not
produce the appearance of Mangme or, if not, why not Respondent has
not established that "the musing witness rule" is not applicable here
Avon Convalescent Center, 219 NLRB 1210 (1965)
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming her that they were' terminated. Donna Barriento,
Laverne Jackson, Carlos Gonzalez, Miguel Velez,
Carmen Rodriguez, Leonard Graff, Lewis'Smith, Sharon
Parker, and Gail Ocasio.
John Mazzi has been in Respondent's employ as a
maintenance mechanic and boiler engineer since June 19,
1954. He maintained the machines for production. He
signed a union authorization card on June 16 and distrib-
uted cards in the plant and -solicited signatures on June
17. Mazzi did not report to work on June 18 but called
in to advise he had a doctor's appointment. Giordano
told him she would inform his supervisor, Mangine.
When Mazzi returned home from the doctor - around
noon, Giordano called him' at home and advised that he
need not report to work. She asked him to remain home
because she and, Mangine would like to come to his
house to see him. When they arrived at his home, Gior-
dano informed Mazzi that the Company's accountants
had instructed the Company to cut the work force in
half and he happened to be one of those employees ter-
minated. She apologized for having to do this and gave
him his final check. This was the first time Mazzi said he
had been laid off in his 28 years with the Company. He
could recall only one period (December-, February) 6
years ago when a few people were laid off, but never
during the summer months.
Joseph DeMaio had been employed by the Respondent
under the supervision of Tony Mangine from 1976 to
September 1982. On Friday, June 18, Supervisor Man-
gine and General Manager Giordano told truckdriver
and part-time production worker, Joseph DeMaio, the
truck would not be going out because Respondent
needed him in the plant and the products would be de-
livered by carrier. Thereafter, DeMaio worked mostly in
the cherry department dumping and processing cherries,
which function was previously performed by employees
who were laid off. Four other ladies (Rita, Loria, Malyn,
and Jody, a part-time worker) from the clerical staff
joined DeMaio in performing the same work. A few
other employees, including Plant Manger Mangine, were
assigned to assist them. DeMaio had never seen these
employees work cherries before, although cherry-sorter
Donna Barriento testified that this did occur infrequent-
ly. -DeMaio further testified that on the day after the lay-
offs, Saturday, June 19, while in Limpert's office with
Mangine, the following conversation ensued:
Well, in the beginning Mr. Limpert asked me
how come I didn't know anything about the Union,
which is what he was talking about. And Tony
Mangine stood up and told him that I didn't know
anything about it because he had questioned me
about it already. And Mr. Limpert proceeded, to say
well, he would close his doors before he-brought a
union into his company, • for good. Mr. Limpert
denied he said he would close his doors before his
plant was unionized.4
* Again, I credit the testimony of DeMaio over that of management
because I was persuaded by his demeanor that he was telling the truth,
and because ' his testimony is consistent with his previous conversation
with Manager Mangine in the office on June 17, as well as the testimony
Also on Saturday, June 19, employee John Mazzi testi-
fied' that he saw Plant Manager Mangine at the Flea
Market where Mangine and Mazzi both worked. Mazzi
said he asked. Mangine why were they laid off and Man-
gine said; "To his knowledge management knew of the
union activity . . . and that was the reason they were,all
discharged." Mangine also said the Company was in bad
shape productionwise because the-work was accumulat-
ing and there was no one to produce, since most produc-
tion workers were laid off. Pauline Pruitt also saw and
talked with Mangine at the Flea Market on June 19, and
Mangine told her the same things he told Mazzi. Man-
gine did not appear or testify in this proceeding to admit
or deny these conversations.
General Manager Peal Giordano testified she first
learned about the employees' union organizing -activities
on June 18, when she received a . telephone call from
Western Union. The record shows that at 2:15 p.m. on
June 18, Western Union received an 'order for the trans-
mission of the following message (R. Exh. 24) from the
Union to Respondent:
THIS IS A CONFIRMATION COPY OF A TELEGRAM AD-
DRESSED TO YOU THIS OFFICE IS COUNSEL TO UFCW
LOCAL 56, IT HAS COME TO OUR ATTENTION THAT
YOU HAVE REDUCED THE WORK WEEK AND TERMI-
NATED A NUMBER OF EMPLOYEES AS A RESULT OF
THEIR UNION ACTIVITIES., PLEASE BE ADVISED THAT
THE FEDERAL LABOR LAWS PERMIT EMPLOYEES TO
ENGAGE IN UNION ACTIVITIES WITHOUT FEAR OF
REPRISAL OR RETALIATION. BE ASSURED THAT WE
WILL TAKE ALL STEPS NECESSARY TO INSURE YOUR
COMPLIANCE WITH THE LAW.5
In a letter dated June 18, 1982 (G.C. Exh. 3), mailed
on June 19 and received by Respondent Monday, June
21,.1982, the Union apprised Respondent that a majority
of its employees had designated the Union as their col-
lective-bargaining representative and the Union request-
ed recognition of Respondent and demanded negotia-
tions.
In a letter dated June 22, 1982 (G.C. Exh. 4), legal
counsel for the Respondent advised the Union-that Re-
spondent had - a good-faith doubt that the Union repre-
sented an informed and uncoerced majority of its em-
ployees in an appropriate collective-bargaining unit and,
for this reason, the Union's request for recognition and
demand was rejected. The letter also advised that the
Union's offer to establish proof of majority status was
declined and that a secret-ballot election conducted by
the Board was the best way to ascertain whether the
Union represented the majority of employees.
of Pauline Pruitt and John Mazzi 's conversation with Manager Mangine
in the office on June 17, as well as the testimony of Pauline Pruitt and
John Mazzi 's conversations with Mangine at the Flea Market on June 19,
infra, as well as with the credited evidence of Respondent's actions taken
on June 17 and 18 I was also persuaded by the demeanor of President
Limpert that his dental of the statements attributed to him by DeMaio
was not truthful.
5 I do not credit Giordano 's testimony in this regard because it con-
flicts with the overwhelming weight of the credited evidence to the con-
trary, that Respondent had knowledge of the organizing activity of its
employees on June 17. 11 -
LIMPERT BROS. 373
The 12 employees laid off on June 18 were Pauline
Pruitt, Laverne Jackson , Donna Barriento , Carlos Gon-
zalez , Miguel Velez , Carmen Rodriguez , Leonard Graff,
Lewis Smith , Sharon Parker , Gail Ocasio, John Mazzi,
and Susan Johnson , all of whom had signed a union au-
thorization card on June 16 or 17, 1982 . The terminations
reduced the Respondent 's work force from 32 to 20 pro-
duction and maintenance employees.
In response to an August newspaper advertisement for
a boilermaker, Raymond Fitzgibbon , a 65-year-old veteran
of 30 years in the Navy wrote a letter to the Respondent
expressing his interest in the position . He received a tele-
phone call from Limpert and was interviewed and hired
a week later by Limpert as a boiler operator . He worked
42, 48, 50, and 54 hours per week at a rate of $4.25 per
hour . Respondent hired Margaret DiMatteo on July 26
to work in the labeling department.
Based on the foregoing credited evidence , I find that
on June . 17 Michael DiMatteo , who refused to sign a au-
thorization card , told Pauline Pruitt he had told Manag-
ers Mangine and Giordano that the employees were
trying to organize a union ; that when Limpert asked
DeMaio on June 19 why he did not know about the
Union and Manager Mangine stood up and said , DeMaio
did not know anything about it because Mangine had al-
ready questioned DeMaio about it ; that it may reason-
ably be inferred from such acknowledgement by Man-
gine , that Mangine could only have been referring to his
June 17 inquiry of DeMaio about the organizing activi-
ties of the employees . Mangine 's voluntary response to
Limpert's question clearly demonstrates the latter con-
clusion , which is further supported by other unlawful
conduct of Respondent , infra.
I further conclude and find that , during the June 19
conversation with DeMaio, Limpert did , in fact, say he
would close his doors for good before he would allow
his plant to become unionized ; that the , latter statement
by Limpert demonstrated union animus , as well as a
threat , restraining and coercing employees in the exercise
of their protected Section 7 rights , in violation of Section
8(a)(1) of the Act . I also find on June 19 Mangine told
Mazzi and Pruitt they and other employees were laid off
because the Company learned about the employees'
union activities and that , when all of the statements by
Manager Mangine are considered , in conjunction with
the undenied statement of Michael DiMatteo to Pauline
Pruitt (that he told management about the employees' or-
ganizing activities), the fact of the small size of the plant
(32 employees), the precipitous layoff of employees on
June 18 , the evidence more - than amply demonstrates that
Respondent had knowledge of the employees ' organizing
activities on June 17 and 18, 1982.
Analysis and Conclusions
Respondent learned about the Union 's organizing ac-
tivities of its employees during the workday of June 17.
Between 4 and 4:30 p .m. 'on that very afternoon Re-
spondent called a meeting of its maintenance and produc-
tion employees , and without any prior notice to the em-
ployees, for the first time announced that it was having
financial problems and would have to reduce the number
of workdays from 5 to 4 , or 4 to 3 a week , in order to
avoid layoffs. After the meeting Plant Manager Tony
Mangine asked employee Joseph DeMaio , "How come
you didn 't tell me" (referring to the Union ), and DeMaio
asked , "Tell you what?" and walked away . Several min-
utes later Mangine asked DeMaio did he "want to sign a
union card," and DeMaio said he did not know but he
would have to think about it. Since Mangine was plant
manager , he was a high ranking member of management
and his questions to DeMaio about his , as well as his
fellow employees ' union interests , tended to have a re-
straining and coercive effect on the exercise of employ-
ees' Section 7 rights, in violation of Section 8(a)(1) of the
Act.
Prior to noon on the next day, Friday, June 18, Re-
spondent called a meeting of the employees and an-
nounced the immediate and permanent layoff of 10 em-
ployees as a necessary reduction in its 32-employee work
force, occasioned by the loss of sales and adversely af-
fected credit of the company . Later that afternoon Re-
spondent laid off two more employees , allegedly for the
same reasons . All 12 of the employees laid off on June 18
had signed a union authorization card only 1 or 2 days
earlier (June 16 or 17 ). Respondent contends the layoffs
were based on economic considerations and, in some
cases, for cause . The Charging Party and the General
Counsel maintained that the layoffs were motivated by
the union activity of the employees and, therefore, were
discriminatory and in violation of Section 8(a)(1) and (3)
of the Act.
Preliminary to determining whether an employer has
discriminated against employees in violation of Section
8(a)(3) or (1) of the Act, the Board has held that the
General Counsel must first make a prima facie showing
sufficient to support the inference that the protected (or-
ganizing) activity of the employees was a "motivating
factor" in the employer 's decision to layoff or discharge
them . Having established such a showing , the burden
then shifts to the employer to demonstrate that the lay-
offs or discharges would have occurred whether or not
the employees were engaged in organizing or other pro-
tected conduct . Wright Line, 251 NLRB 1083, 1089
( 1980), enfd . 662 F.2d 899 (1st Cir . 1981).
A prima facie case is presented by the General Coun-
sel when the evidence shows: .
1. Employees were engaged in activity in support of a
union.
2. The employer knew of that activity.
3. The employer has manifested hostility towards the
employees for supporting the Union . Hillside Bus Corp.,
262 NLRB 1254 (1982); Kenco Plastics Co., 260 NLRB
1420 (1982). .
As previously found on the evidence under topic B,
Respondent's employees were engaged in a union orga-
nizing campaign on June 3 , 16, and 17, 1982.
Also, as previously found upon the evidence under
topic C, supra , knowledge of the employees organizing
activity was acquired by Respondent on June 17,. when
Michael DiMatteo told Managers Giordano and Mangine
on June 17 that the employees were organizing a union;
and that, on June 19, Plant Manager Mangine told em-
ployees Mazzi and Pruitt , Respondent, laid off the em-
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on June 18 because it learned prior to the layoff
that the employees were organizing a union Additional
ly knowledge of the employees organizing activity may
be reasonably inferred to Respondent from the relatively
small size of its plant having a work force of only 32
employees among whom a union card solicitation cam
paign was carried on by employees Pruitt Mazzi and
others on June 17 as well as from Manager Giordano s
characterization of the work force as a family In such a
setting the intimacy of the small number of employees
makes it difficult to conceive how any form of concerted
or group activity could be kept secret Self Cycle Distrib
utor Co 237 NLRB 75 81 (1978) Weise Plow Welding
Co, 123 NLRB 666, 668 (1959)
Both hostility for and knowledge of the employees or
ganizing activity may also be reasonably inferred to Re
spondent from the fact that all 12 of the employees laid
off on June 18 had signed a union authorization card on
June 16 or 17 To attribute their special selection for
layoff to coincidence would be an unrealistic stretch of
the imagination which common experience discredits
The court of appeals stated in NLRB v Midwest Hanger
Co 474 F 2d 1155 1158 (8th Cir 1973)
Of the 18 discharged employees all but one had
signed authorization cards This presented a telling
percentage of 95 percent discharge of union adher
ents while the percentage of union employees in the
plant as a whole was 70 percent This on its face
would indicate a discriminatory discharge violative
of the Act
Additional evidence of Respondents hostility or
animus for the organizing activity of its employees is
manifested by the precipitous nature of the layoffs in the
absence of any advance warning to the employees Here
the Respondent learned about the employees organizing
effort on June 17 Between 4 and 4 30 p in on that very
afternoon (June 17) Respondent called a meeting of the
employees and for the first time talked about reducing
the workdays to avoid layoffs On the next day June 18
Respondent proceeded to lay off the 12 employees It is
also particularly noted that the layoffs occurred during
the month of June the month in which Respondents ac
countant Capaldi said was the highest peak of the
spring summer seasonal business of the Respondent Such
layoffs normally do not occur during this busy season
spring and summer Under such circumstances I was
persuaded that Respondents layoff of the employees was
motivated by its hostility or ammus for the organ, mg
activities of the employees all of whom had signed
union authorization cards on June 16 or 17 Kenco Plas
tics Co supra Dutch Boy Inc 262 NLRB 4 5 (1982)
Bedford Farms Cooperative 259 NLRB 1226 1227 (1982)
Additional postdischarge evidence of Respondent s
animus also occurred on Saturday June 19 when
Howard Limpert president of Respondent interrogated
Joseph DeMaio about his and fellow employees union
interest and activities by asking him How come you
didn t know about the Union? DeMaio was spared
making a response to this question by the intervention of
Manager Mangme who told Limpert DeMaio did not
know anything about it because Mangine had already
asked DeMaio about it Limpert then stated he would
close his doors for good before he permitted unionization
of his plant
As president of Respondent Limpert is the highest
ranking managerial official of the Company Hence his
interrogation about the Union and his closing the plant
statement to an employee would tend to have a chilling
and apprehensive effect on the exercise of protected
rights of employees Since the plant closing statement
was not accompanied by objective facts supporting such
a result it was not a reasonable business prediction
Rather it was a threat of retaliation by Limpert for em
ployees engaging in organizing activity Such a threat
was based on coercion and therefore was not protected
as free speech under the first amendment Gissel Packing
Co 395 U S 575 618-619 Such threatening conduct on
the part of the Respondent (Limpert) constituted a viola
tion of Section 8(a)(1) of the Act See also General Elec
tric Co 246 NLRB 1103 1105 (1979) PB & S Chemi
cal Co 224 NLRB 1 2 (1976)
As the General Counsel argues in her brief Respond
ent s layoff of the organizing employees was so abrupt it
occurred on the day following the end of payroll period
necessitating the issuance of an extra paycheck to the
laid off employees Such hasty action by Respondent is
not indicative of a plan to lay off which had been con
templated several months and actually decided as early
as May 26 as the Respondent contends
In view of the foregoing findings reasons and author
ity I further find that the General Counsel has dis
charged its burden of establishing a prima facie case in
accordance with Board law Hillside Bus Corp supra
Kenco Plastics Co supra This the burden of going for
ward with the evidence now shifts to the Respondent to
establish that the 12 employees laid off on June 18 would
have been laid off at that time whether or not Respond
ent s employees were engaged in a campaign to organize
the Union
Respondents Economic Defense for Reducing its
Work Force on June 18
Respondent denies that its June 18 layoffs were related
to the organizing activities of its employees It contends
and presented evidence that the employees laid off on
June 18 were laid off for economic reasons and in a few
cases also for cause In support of its position Respond
ent established that its distinguished and highly qualified
and experienced certified public accountant Bernard W
Capaldi president of Capaldi Schalick & Reynolds a
certified public accounting firm has rendered accounting
and management services to Respondent since 1951 In
such capacity Capaldi prepares and furnishes semiannual
fiscal statements for the Respondent The Respondent s
fiscal year ends on October 31
In January 1981 Capaldi submitted to Respondents
president, Harold Limpert the financial report for the
fiscal year ending October 31 The report reflected a net
loss of $155 825 36 with an after tax loss of $95 975 72
Capaldi testified he followed up his report with a Janu
ary telephone call to Limpert during which time he ad
LIMPERT BROS.
wised that things were very, very serious, that Respond-
ent must reduce inventory, and he suggested they meet
after the tax season to review the situation. Capaldi ,takes
his annual vacation after the tax season ends on April 15.
In his January conversation with Limpert, he said he ad-
vised Limpert "that he had to reduce inventory, and the
only way he could reduce inventory, was to reduce pro-
duction, because productive labor goes into inventory. It
is part of inventory. The more productive labor you
have the more material you need ... . the more sugar is
used, the cherries are used, the more strawberries are
used." He further advised that Respondent stop produc-
ing, "limit production, keep selling , and that would in
turn reduce the inventory." Limpert asked were there
any alternatives and he said, except for increasing sales
and profits, which are not always possible. Limpert then
told him he would make a general analysis to determine
whether the Company should convert the plant to a par-
tial workweek of layoff employees.
In response to Capaldi's advice to Limpert, Pearl
Giordano, general manager of the Respondent since
1976, testified that she sent out a memo to supervisory
staff in March 1982 concerning production (R. Exh. 16).
She sent another memo to Plant Manager Mangine (R.
Exh. '17) and a memo to Capaldi (R. Exh. 18) concerning
efforts to reduce inventory. She identified Respondent's
Exhibit 19, a notice of late bills dated 2/9/82 and Re-
spondent's Exhibit 20, a notice of denial of further credit
for sugar. The latter documents were admitted to estab-
lish the delinquent manner in which Respondent was
paying its bills and how its credit was being affected.
When Capaldi returned from vacation he met with
Limpert, General Manager Giordano, and Plant Manager
Mangine on May 26, 1982. During the meeting, Capaldi
said he again advised the Company that it was mandato-
ry that his previous advice to the Company (including a
reduction in the work force) be implemented if the busi-
ness was to survive.. Capaldi followed up his advice to
Respondent in a letter dated June 8, 1982.
Limpert testified Respondent had a loss of $154,000
for the year ending October 31, 1982. Previously, Re-
spondent had a loss of $4000 one year and a loss of
$1000 another year. He decided to cut staff when he re-
ceived the letter of June 8, 1982, from his CPA, Capaldi.
He said he knew in late January from his conversation
with Capaldi that he had to reduce the work force as
Capaldi advised, but he thought that business would turn
around in early 1982 or in the spring of 1982. During the
meeting of May 26, 1982, Capaldi was very emphatic
that there ' had to be a reduction in force. After that
meeting he met with Giordano and Mangine and told
them to comply with the advice of Capaldi, including re-
ducing the work force.
Subsequently, General Manager Giordano testified she
and Mangine made the decision on June 3 or 4, 1982,
about who was going to be laid off. The employees were
not notified and actually laid off until June 18, because
she was instructed to get the inventory. down and gener-
ate some cash by getting out the orders on hand. She
said she laid off Donna Barriento, Laverne Jackson, Gail
Ocasio, Carlos Gonzalez, Carmen Rodriguez,- Lewis
Smith, Sharon Parker, Pauline Pruitt, and Lennie Graff
375
on June 18. In deciding who would be laid off she said
they considered (1) contribution to the Company, (2) at-
titude, (3) work habits, (4) attendance, (5) timeliness, (6)
use of profane language, and (7) most versatile and pro-
ductive. Giordano said, although she knew on June 17
there would be layoffs, she did not so advise the employ-
ees because Limpert was in New York, so she waited
until his return the next day, June 18.
Conclusions on Respondent's Defenses
It is particularly noted that Respondent's evidence
does not coincide with its business conduct, with respect
to the size and number of hours worked by its work
force. Respondent produced numerous documents re-
flecting its business operations in an effort to establish
that Respondent was sustaining significant losses in 1980,
late 1981, and early 1982, which it contends was its
reason for laying off 12 employees on June 18. Its
records do establish the losses about which President
Limpert and Calpaldi testified. The records also show
that before the June 18 layoffs, Respondent had 32 em-
ployees and that Respondent started hiring new employ-
ees a week later on June 27. By August 4, Respondent
had increased its work force to 30 employees, and by
August 7, to 36 employees. Moreover, since September
the work' force remained at 30 employees until Respond-
ent's normal and expected seasonal decline in business in
November.
The records further show that the amount of hours
worked during this period (September-November) corre-
lated with the increase in the work force. Correspond-
ingly, the payroll increase correlates with the increase
with the work force and hours worked. Within 2 months
after the layoffs of June 18, the records show that the
work force, payroll, and number .of hours worked by
production employees per week were essentially equal to
what they were prior to the June 18 layoffs, as shown in
the General Counsel's analysis (App. A,B,C, and E). In
its posthearing brief Respondent does not cite any analy-
sis of its record evidence which demonstrates how.Re-
spondent reduced its inventory by reducing its work
force, except for about 1 week. Thereafter, Respondent
commenced hiring production and maintenance employ-
ees without recalling any of the employees laid off on
June 18 or thereafter. Certainly Respondent did not im-
plement such a mass layoff of employees for one or a
few weeks to relieve its financial problems. In fact Re-
spondent's evidence of its contemplated layoff is largely
self-serving; since no one outside of management knew
anything about a possible layoff before June 17. Nor was
there any documentary evidence poststamped to verify
an earlier date.
Respondent's general manager , Giordano, testified that
the new employees hired between May 26 and June 18
were hired to facilitate the reduction in sales orders so
that the layoffs could be effectuated. However this expla-
nation is not reconcilable with the fact that Respondent
Mangine hired Robert Milana on June 3, Susan Johnson
on June 7, and Diane Johnson on June 14. When-Susan
Johnson was hired she was told by Respondent (Man-
gine) that she was hired as a full-time employee. I find it
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficult to conceive that an employer contemplating
multiple layoffs in the very near future would engage in
hiring employees on a full time basis after it had already
made a definite decision on May 26 and more definitely
on June 3 or 4 to make a substantial reduction in its
work force
It is noted that neither Milana nor employee Diane
Johnson who was hired on June 14 were terminated on
June 18 along with more senior employees all of whom
had signed a card for the Union These and other recent
hirees by Respondent certainly indicate that Respondent
was not preparing for such a huge layoff of employees
and Respondents layoff conduct in this regard is mcon
sistent with its theory of reducing the work force In
stead such conduct by the Respondent clearly shows
that Respondent did not definitely decide to reduce the
size of the work force until after it learned about the
Union s organizing campaign on June 17 The Respond
ent s conduct clearly demonstrates that the organization
al activity of its employees was the motivating cause for
its reduction in the work force on June 18 and not its
financial problems Wright Line supra NLRB v Trans
portation Management Corp 462 U S 393 (1983) Hence
it is clear that Respondents contended economic defense
is in large part a pretext contrived by the Respondent to
camouflage its otherwise unlawful termination of em
ployees in order to undermine efforts of employees to
unionize the plant
Respondents (Giordano) June 17 announcement to its
employees only a few hours after it learned of the em
ployees organizing activity that there would be a reduc
tion in the workweek from 5 to 4 or 4 to 3 days a week
was obviously motivated by the same reason for which
the Respondent terminated 12 employees on June 18 the
union organizing activity of its employees Respondent
having failed to discharge its burden of showing that the
reduction in work force or the particular employees laid
off would have occurred even in the absence of the em
ployees union organizing activity is found to have an
nounced such reduction in the workweek because its em
ployees were organzing the Union Such conduct by the
Respondent was also discriminatory and violative of Sec
tion 8(a)(1) and (3) of the Act Barnes & Noble Book
Stores 233 NLRB 1326 1337 (1977) Farmers Grain Ele
vator 226 NLRB 564 573 (1976)
John Mazzi Allegedly Terminated for Cause
During this proceeding Respondent contended it ter
minated John Mazzi because of his work attitude and be
cause cook Licaretz threatened to quit if Mazzi remained
in Respondents employ It is particularly noted howev
er that the reasons now advanced by Respondent for the
discharge of Mazzi are different from the reason both
Giordano and Mazzi testified Respondent gave him for
his termination on June 18 At that time the credited
evidence of record shows that Giordano told Mazzi that
the Company s accountant had advised the Company to
reduce the work force and Mazzi happened to be one of
the employees Respondent had to lay off With respect
to Head Cook Licaretz the uncontroverted evidence es
tablished that Mazzi and Licaretz occasionally got into
arguments over the past 8 or 9 months but the argu
ments became more frequent in about April 1982 The
extent to which Licaretz and Mazzi worked together oc
curred whenever Licaretz had the product ready to be
packed out and pulled away It was Mazzi s responsibil
ity to pull the product away when Licaretz advised him
the product was ready to be pulled away
According to the account of Licaretz the source of
the arguments frequently arose from Mazzi s failure to
timely pull out the product when Licaretz had it ready
and so advised Mazzi About Monday June 14 1982 an
argument arose out of the same set of circumstances be
tween Licaretz and Mazzi Since management personnel
were not present on that day Licaretz said he waited
until the next day Tuesday June 15 when he reported
the incident to Giordano He told Giordano he could
not tolerate it any longer it was too much too many ar
guments It was too hard to get the product out and we
were hurting for product and I couldn t keep the ball
rolling all by myself so I needed more cooperation and
that unless this was straightened out I had to leave be
cause I had ulcers and I couldn t make them any worse
He told her if the problem was not resolved he would
have to quit because his health could not endure it
In her testimony Giordano acknowledged that Licar
etz came to her on Tuesday June 15 and told her he
could not take it any longer that he was under a doc
tor s care and that he would have to quit However it is
noted that Giordano s version includes an ultimatum by
Licaretz that it would have to be either me or Mazzi
which Licaretz did not include in his testimony on direct
cross examination Consequently I do not credit Gior
dano that Licaretz gave her such an ultimatum I do not
credit Giordano s testimony in this regard for several
reasons Giordano s early testimony about the conflict
between John Mazzi an employee of nearly 28 years
and Charlie Licaretz an employee of 15 years said it
was due essentially to Mazzi s spending too much time in
the labeling department with Pauline Pruitt She further
stated that when employees needed Mazzi the men
would say Mazzi is in there mooning over Pruitt Gior
dano s explanation of her problem with Mazzi was some
what vague on direct and cross-examination On further
examination she stated Mazzi had an obstinate personals
ty which Mazzi acknowledged to her he had On March
27 1981 Giordano said she sent Mazzi home for I week
because of his attitude towards management and she sent
the following message to Mangine
Message I have dust sent John home for the last
time He has 1 week to think about his future with
Limpert Brothers He must change his attitude and
work habits as well as make an effort to get along
with his workers (R Exh 23)
Reply Please attach this to his payroll sheet
The evidence does not show that Mazzi was given a
copy of the above message
It is also noted that according to Giordano s testimo
ny Licaretz reported the incident of his altercation with
Mazzi on June 15 but she did not speak to Mazzi about
the incident any time before nor including the time she
visited Mazzi at his home and terminated his employ
LIMPERT BROS - 377
ment for the stated reason: "The- accountant has advised
the Company to reduce the work' force and you happen
to be one of those laid off." When Giordano was asked
by the bench if she held a conference with Mazzi and/or
Licaretz regarding the altercation reported to her by Li-
caretz, Giordano said, "No." Finally, on redirect exami-
nation Giordano testified that the primary cause of the
conflict between Licaretz and Mazzi was the result of a
--romantic involvement of Mazzi and Licaretz with Pau-
line Pruitt. Her testimony indicated Mazzi was in better
standing in the relationship with Pruitt than -Licaretz,
and that she had spoken with both Licaretz and Mazzi
about their involvement on prior occasions. The record
does not show that either Mazzi or Licaretz - was ever
given any warning or that Manager Giordano dealt with
the problem as though it was of any significant priority.
Although Giordano stated she had decided to lay off
Mazzi when she received Licaretz' report about. the inci-
dent on Tuesday, June 15, it is clear that the record does
not contain any evidence which indicates that Giordano
manifested any such intention. On the contrary, all of the
credited evidence of record clearly indicates that Gior-
dano terminated the employment of Mazzi because of his
and other employees' support for the Union. It is there-
fore obvious that Giordano now attaches exaggerated
significance to the long-time conflict between Mazzi and
Licaretz as a pretext to camouflage Respondent's unlaw-
ful discharge of him. It is particularly noted that Licaretz
only requested Giordano to resolve the problem. He did
not suggest how she should do it. However, if he did
give Giordano an ultimatum , it is strange Giordano did
not say anything to Mazzi about it between June 15 and
18. I am persuaded this latently advance reason for
Mazzi's layoff is pretextual. -
Respondent Also Contends It Laid Off Other
Employees for Cause
As a part of Respondent's defense of layoff for cause, .
Keith Steever, employed off and on by Respondent for-3
years, testified he was last hired to head the cherry de-
partment, but he left because he heard there were going
to be cuts and because he had personal problems with
Plant Manager Mangine. Nevertheless, -he stated that,
while serving as head of the cherry department, he noted
employees reporting to work late from January to June
1982. He said he discussed attendance 'and timeliness
with employees in group meetings and in - individual
meetings . In agroup meeting in May, he stated that he
spoke with - Laverne Jackson, Donna Barriento, and
Carmen Rodriguez (all three of whom signed a union
card) about coming in late practically every day, being
absent frequently, and causing a shortage in the working
crew. He met with General Manager Giordano in May
about the problem of attendance and timeliness, during
which time he also .spoke to her about the use of profane
language in- the plant. Thereafter, he told the employees
that all lateness, absences, and foul language had to -cease
or the Company would make some changes. He said he
spoke personally with Rodriguez about her attendance
.but he acknowledged he did not issue any written warn-
ings because the Company did not' have a policy on
warnings. Nor did he describe the specific nature of his
talk with Rodriguez.
It is particularly noted that Respondent did not issue
any written warnings to any of the employees about at-
tendance, timeliness , or use of profanity in the plant. In
fact, witness Steever acknowledged that attendance and
timeliness of the employees improved after he met and
spoke with the employees about the problem. Thereafter,
he said the use of profanity 'subsided. The evidence does
not establish that Respondent attributed any significant
priority to these problems until now. None of the em-
ployees laid off on June 18 were told at -the time of their
layoff that they were being laid off because of attend-
ance, untimeliness , or use of ' profanity. Instead,- they
were told they were being terminated because of sales
and financial losses sustained 'by Respondent. Hence, it is
again obvious that these largely self-serving and latently
advanced reasons by the Respondent for the layoff of 12
employees on June 18 are pretextual and do not mitigate
any of the substantial evidence that all 12 of the employ-
ees were, laid off because the employees were organizing
the Union.
Respondent Refused to Allow Fitzgibbon, DeMaio,
and DiMatteo to Return to Work Because They
Refused to Cross the Picket Line
Union Representative Matway contacted some of the
laid-off employees in early September and urged them to
picket Respondent for the June 18 termination of em-
ployees because they organized the Union. The picketing
commenced on September 20. Matway asked some of the
currently working employees to join them on the picket
line. The working employees did not join them but some
of them refused to cross the picket line. The terminated
employees picketing the Respondent were Jackson,
Pruitt, Ocasio, Barriento, and Mazzi. Joseph DeMaio
was one of the, employees who refused to cross the
picket line or join in the- picketing, but he stayed outside
the plant several hours every morning. On the first day
of the strike, Mangine had been replaced by Tony Cam-
panella as plant manager. Campanella called DeMaio to
his office and asked him if he was going to cross the
picket line and come to work. DeMaio told him he
would not cross the picket line but would return to work
as soon as the pickets left: Ten minutes later, Campanella
called DeMaio and asked -him for the keys to the truck.
When boilerman Fitzgibbon reported to work on Sep-
tember 20, there was a picket line with signs which read
"unfair labor practices," bearing Local 56. Having previ-
ously been a member of a union while employed by
Amstar Corporation, and after talking to truckdriver
DeMaio who told Fitzgibbon the employees were on
strike because they were terminated for joining the
Union. Fitzgibbon said he refused to cross the picket line
and returned home about. 11:30 a.m. -
On that evening Fitzgibbon received a call from Lim-
pert who asked him why. he did not light the boilers be-
cause without steam the plant could not operate. Fitzgib-
bon testified he told Limpert he did not feel safe in there,
that he had a new truck in the parking lot and he wanted
it to be there when he came out, so he was not going to
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross the picket. line. Limpert suggested the Company
sent someone to bring him in and take him home eve-
nings, but Fitzgibbon said, "No way." He advised Lim-
pert he would return to work when the picket line was
down. On the next day, , Fitzgibbon' stood outside, the
plant but eventually decided to go in to get some person-
al belongings. When he went in, Mangine and Campan-
ella asked him to light the boilers because they had no
steam and he said, "No way."
Fitzgibbon went to the plant on the next morning and
stood outside. Limpert - approached him and, asked him
what was he doing and Fitzgibbon said he was just
watching things. Limpert told him to get out of there;
that he was disappointed in him for not crossing the
picket line, and that he thought Fitzgibbon was one of
the family. : -
Margaret DiMatteo did not -report to work September
20 and 21 because of the illness of her daughter. Howev-
er she informed management on September 23 and 24
that she would not cross the picket line. Manager Cam-
panella asked her why, and DiMatteo said, "I feared for
myself and my vehicle that I drove to work and he told
me they had a guard there. I don't know what kind."
She also said, "My father was a truckdriver . :. and I
had grown up respecting that."
On Monday, September 27, Fitzgibbon went to pick
up his paycheck between 4 and 4:30 p.m. About 5 p.m.
Limpert asked him to come into his office where Manag-
ers Mangine and Campanella were present. Fitzgibbon
said Limpert was raving and beating on the desk, telling
him he had a good chance to lose his engineering license
and that he never should have left the boilerhouse. Fitz-
gibbon said he reminded Limpert he had shut down the
boilers 30 hours before the strike; that he had not re-
turned to the plant, and that he had not walked out of
the boilerhouse. He said Limpert asked him why was he
refusing to cross the picket line, who was he talking to
on the picket line, and what were they talking about. He
told Limpert he did not want to come into the plant be-
cause he felt intimidated. Limpert asked.who told him
not to enter the plant -and Fitzgibbon told him, "No
one." However, in the. written statement (R. Exh. 7)
signed by Fitzgibbon, to which his testimony is contra-
dictory, he told Limpert -pickets surrounded him and
John Mazzi told him, "You're not going in there"; that
Union Representative Matway told him the same thing,
adding "that it was not advisable"; that he could lose his
$13,000 van, or it would not be there, or destroyed; and
.that he (Fitzgibbon) was completely, intimidated.
While I was not persuaded by the uncorroborated and
.-conflicting testimony-of Fitzgibbon with the statement he
signed (R. Exh. 7), as to whether or not he was actually
threatened by,the picketing persons , I was persuaded
that Fitzgibbon did make these statements to Limpert, as
the signed statement clearly indicates. Although Fitzgib-
bon denied he made some of the statements to Limpert
and stated he did not read the signed statement but
signed it to get .out of Limpert's office, I am not persuad-
ed by these denials and explanations of Fitzgibbon. On
the contrary, I received the distinct impression for the
demeanor and the contents of Fitzgibbon's testimony, as
opposed to his signed statement , that he was trying to
offer an acceptable justification to Limpert for not cross-
ing the picket line, on the one hand, while denying he
made such accusations against the pickets as he testified
in their presence, on the other. - -
Fitzgibbon further testified that, although Limpert was
hostile and yelling that the Union was Mafia and com-
munist controlled, he was also writing dunng the entire
conversation. Near the end of the conversation, Fitzgib-
bon said he asked Limpert what was his status, was-he
fired, and Limpert said, "You're not fired, we need you,
we'll call you"; and that Limpert said, "The same Union
people had tried to unionize his plant a•couple of years
ago" and he threw them out, that he defeated them then
and "he would defeat them now"; "that they never will
get into his plant because he would move out of town or
close it up." Limpert denied making these statements
however, and Manager Campanella testified that he
could not recall Limpert making the latter statements.6
Limpert asked Fitzgibbon to sign the statement he
(Limpert) had been writing during their conversation.
Fitzgibbon said he did not read it,. but glanced at -the
writing and signed it because after 2 hours in there he
was disgusted and wanted to get out. Limpert told him
he would get a copy but he never received a copy.7
Based on the foregoing credited evidence, I find that
Fitzgibbon-went to the paint on September 27 to pick up
his check. After waiting about 30 minutes he was or-
dered into'the office by President Limpert, where he was
questioned in a hostile manner by Limpert in the pres- •
ence of Plant Manager Campanella. Limpert questioned
Fitzgibbon about his reasons for refusing to cross the
picket line, and about what members on the picket line
were-talking about. Limpert also implied that Fitzgibbon
left the plant's boilers unattended for which his engineer-
6 I credit Fitzgibbon's testimony over Limpert's denial that he made
the statements attributed to him because I was persuaded by the demean-
or of both witnesses that Fitzgibbon, a relatively new employee, was tell-
ing the truth, while Limpert, in this regard, was not As a matter of logic
and reality, Limpert had every reason to be angry as Fitzgibbon de-
scribed him, because the terminated employees were picketing the plant,
his boiler engineer and some other nonpicketing employees were refusing
to cross the picket line, and the plant was without a boiler engineer
Under such frustrating circumstances, it is reasonable to believe that Lim-
pert, in anger, made the utterances attributed to him This is especially so
since these utterances are consistent with the fact that Respondent did in
fact defeat the current Union as well as another union during two union
elections in past years, and that Plant Manager Campanella, who was
present during the conversation, did not categorically deny that Limpert
made the subject statements, but simply said he could not recall him
making them. Moreover, Fitzgibbon's account is consistent with the cred-
ited testimony of DeMaio and the testimonial and circumstantial evidence
of Respondent's hostility or animus towards the Union and the organizing
employees, as previously found herein
Although Fitzgibbon testified he did not read, but just glanced at the
statement signed by himself, I do not credit his testimony in this regard
because as I observed him testify, I perceived him to be a literate, mtelli-
gent, and an experienced 30-year naval veteran The handwritten state-
ment is legibly written in large letters and is easy to read quickly It
would appear that a person with average reading ability could read it by
glancing at it in a few seconds. I ani-therefore persuaded by all of these
factors that Fitzgibbon read the statement , understood its contents, and
voluntarily signed it on Limpert's request because he was trying to have
Limpert believe he was not willingly refusing to cross the picket line in
support of the pickets, but at the same time Fitzgibbon was trying to stay
in good favor with Llmpert to preserve any opportunity which might
have existed for Respondent to call him to work.
LIMPERT BROS. _ 379
ing license could be revoked, and he threatened to defeat
the Union or close his plant before he would accept the
Union. Without offering any evidence, Limpert told
Fitzgibbon the Union was Mafia and communist con-
trolled. At no time during the hostile discussion did Lim-
pert ever assure Fitzgibbon against company reprisal for
answering or not answering his questions. Nor did Lim-
pert offer any objective economic evidence as a justifica-
tion for closing his plant if the Union came in.
Under the above circumstances, Fitzgibbon was inter-
rogated in a hostile manner' by the highest company
managerial officer in the presence of the' plant manager.
The questions were specific, rather than general, and
were designed to elicit information about the picketing
interest and union support of Fitzgibbon and his fellow
striking employees. I therefore find that such interroga-
tion was of a coercive and restraining character. Bourne
v. NLRB, 332 F.2d 47 (2d Cir.' 1964). I further find that
such interrogation by-President Limpert had a coercive
and restraining effect on the exercise of employees' Sec-
tion 7 rights, in violation of Section 8(a)(1) of the Act.
Crown Zellerbach Corp., 228 NLRB 224, 230 (1977). As-
suming President Limpert was legitimately concerned
about evidence of violence, or the threat of violence on
the picket line, I nevertheless find that Limpert did not
give Fitzgibbon any prerequisite safeguards (assurances,
etc.) before interrogating him. Certainly, there was no
evidence in the record of violence and there was-no ap-
parent reason for interrogating Fitzgibbon in such a hos-
tile manner. General Electric Co., 224 NLRB 1, 2 (1976);
Johnnie 's Poultry Co., 146 NLRB 770 (1964).
The picketing continued 1 week; When it ended Sep-
tember 27, DeMaio reported to work and Campanella
told him he (Campanella) would have to check with
Giordano and Limpert. 'After he checked with them
Campanella told DeMaio the Company had decided to
go with the other newly hired fellow.
On September 27, Margaret=DiMatteo learned that the
picketing had ended and telephoned Manager Campan-
ella on September 28 and asked him if Respondent
wanted her to return to work. Campanella informed her
that someone had been hired to replace her.
Neither Fitzgibbon, DiMatteo, nor DeMaio has ever
been recalled to work by the Respondent. During the
week of September 20, Horatio-Rivera was hired to re-
place Fitzgibbon and he commenced work on September
27. Also during the week of September •20, Ralph For-
cinito was hired to replace DeMaio and he commenced
work on September 29. No one has been hired to re-
placed DiMatteo.
It is well established by the foregoing credited evi-
dence that the Union (Pruitt, Jackson, Mazzi , Ocasio,
and Barriento) commenced picketing Respondent on
September 20 for discriminatorily laying off 12 employ-
ees on June 18 because they supported the Union. Such
unlawful layoffs constituted unfair labor practices. Since
the picketing employees picketed . Respondent with
picket signs to publish the unfair labor practice of the
Respondent, they became unfair labor practice strikers
because the strike was caused by Respondent's unfair
labor practices. Newton Corp., 258 NLRB 659, 663-664
(1981).
According to established Board law, employees who
refused to cross a picket line of their. fellow employees,
and who advised their employer. that they will not cross
the picket line, are deemed to enjoy the same status as
unfair practice strikers. They are entitled to reinstate-
ment with backpay on an unconditional offer to the em-
ployer to return to work. Bartenders Local 19, 240
NLRB -240, 248 (1979), enfd. 636 F.2d, 1227- (9th Cir.
1980). . -
However, counsel for Respondent argues that the law
draws a distinction between'- nonpicketing employees
who refuse to cross a picket line of their fellow employ-
ees based on fear; and employees who refuse to cross
such a' picket line as - a matter of principle. He cites
NLRB v. Union Carbide Corp., 440 F.2d 54, 56 (4th Cir.
1971), where the court reasoned that one who refuses to
cross a picket line by reason of physical fear does not, act
on principle, and he therefore contributes nothing to
mutual aid and protection in the collective-bargaining
process' and need not retain employment. See also South-
ern Greyhound Lines, 426 F.2d 1299 (5th Cir. 1970);
Coors Container Co., 238 NLRB 1312 (1978).
In the instant proceeding all three employees, Fitzgib-
bon, DeMaio, and DiMatteo, informed Respondent they
would not cross the picket line. Fitzgibbon told Respond-
ent he had seen many strikes and he knew Respondent
was sitting on "a powder keg . .. one little spark can set
it off"; that.he has seen strikes .get out of hand with cars
being turned over and people beaten; that he had a
$13,000 van truck outside and he wanted it to be there
when he went out; that he did not want his van to get
totaled and he personally did not want to get totaled;
that picketers told him he was "not going in there" "that
it was not advisable," and he was -intimidated.
Joseph DeMaio undeniably told Repsondent he was not
going to cross the picket line because it was dangerous in
his situation as a truckdriver, and he did not know what
they did to truckdrivers who drove across picket lines;
and that he had spoken to his father about it and he was
not crossing the picket line. -
Margaret DiMatteo did not report to work on Septem-
ber 20 and 21, 1982. However, on September 23, she in-
formed Respondent she was not going to cross the picket
line because she feared for herself and her vehicle which
she drove to work; and that her father was a truckdriver
and she has always respected that. -
Thus it is clear that each employee, Fitzgibbon,
DeMaio, and DiMatteo informed Respondent that the
reason he or- she would not cross the picket line was fear
for their personal safety. Fitzgibbon and DiMatteo also
expressed a fear of becoming victim to the unauthorized
use and vandalism of their vehicle. However, these su-
jective declarations of fear for crossing the picket line, in
the absence of any threatening or violent conduct by
participants in the picketing, are naked declarations with-
out any foundation in the record. Nevertheless, without
evaluating the validity of such stated fears,-it 'is particu-
larly noted that neither employee (Fitzgibbon, DeMaio,
or DiMatteo) ever indicated he or she was not support-
ing or sympathizing with the' picketing dischargees. In
fact DiMatteo's statement to Campanella that her father
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a truckdriver and she had grown up respecting that,
as well as Fitzgibbon and DeMaio appearing almost daily
at the plant near the picketers; certainly suggest they
were morally supportive of, or sympathetic with, the
protest of those picketing. Under these circumstances it
is both possible and probable that these three employees
purposefully told managment their refusal to cross the
picket line was based on fear, with hopes of leading man-
agement to believe they were not supportive of the strike
and thereby avoid antagonizing management against
their return to work.
In any event, while the Court of Appeals for the
Fourth Circuit has recognized a distinction between a re-
fusal based on fear, and a refusal based on principle, the
Board has not recognized this distinction enunciated by
the court in Union Carbide Corp., supra. On the contrary,
as the-administrative law judge stated in Congoleum In-
dustries, 197 NLRB 534, 547 (1972), and adopted by the
Board:
However, contrary to the court's holding in Union
Carbide, the Board's decisions regard an employee's
motive. for honoring a 'picket line as irrelevant.
Thus, in Cooper Thermometer, supra, the Board said
at 504:
... the focal point of inquiry in 'determining
whether [an employee's]- refusal to cross the
picket line to perform' production work was a
protected activity must of course be the nature of
the activity itself rather than the employee's mo-
tives for engaging in the activity.
Also see Overnight Transportation Co., 212 NLRB 515,
516 fn. 6 (19.74), where the Board said:-
Our action in adopting the Administrative Law
Judge's Decision as modified herein should not be
construed as endorsing his observations with respect
to the views on concerted activities expressed by
the Court' of Appeals for the Fourth Circuit in
N.L.R.B. v. Union Carbide Corporation,.440 F.2d 54,
56 (C.A. 4, 1971), cert. denied 404 U.S. 826 (1971).
'Thus, I am bound to apply established Board prece-
dent where the Board or the Supreme Courthas' not
held otherwise.
Accordingly, Fitzgibbon, DeMaio, and DiMatteo
having communicated to management their refusal to
cross the picket line of their unfair labor practice striking
fellow employees,. they were engaged in concerted activ-
ity protected by ' the Act. Bartenders Local 19, supra.
Moreover, the uncontroverted evidence shows that the
picketing ended on September 27. Fitzgibbon went- to
the plant on that afternoon to pick up- his paycheck.
While there 'during a heated discussion with manage-
ment, he asked Limpert was he fired and-the latter said,
"No, you are not fired, that the Company will call you
when needed." Since Fitzgibbon did not tell Respondent
he would return to work when the picketing ended, Re-
spondent knew that Fitzgibbon was waiting for Respond-
ent to allow him to work. Under these circumstances, it
is clear that Fitzgibbon's offer to return to -work was
conditioned only upon cessation of the picketing, which
occurred before he entered Limpert's office on Septem-
ber 27. Thus, Fitzgibbon's inquiry about his employment
status was a• reasonable way of renewing his offer to
return to work, as well is making a legitimate inquiry,
considering the hostile and coercive climate of the meet-
ing with Limpert.
It is well established by the evidence that DeMaio and
Fitzgibbon unconditionally offered to return to work on
September 27- when the 'picketing ended. On .the next
day, September 28, 1982, DiMatteo unconditionally of-
fered to return to work. Plant Manager Campanella in-
formed DeMaio and DiMatteo they had been replaced
by Respondent. Since Fitzgibbon, DeMaio, and DiMat-
teo's refusal to cross the picket line was protected activi-
ty, Respondent's refusal to allow them to return-to work
was a discriminatory discharge of them, in violation of
Section 8(a)(3) and (1) of the Act. Newton Corp., supra;
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th.Cir. 1969). Consequently, Fitzgibbon, DeMaio; and
DiMatteo are entitled to reinstatement with backpay.
Bartenders Local 19, supra. -
Finally I conclude and find that Respondent's refusal
to recognize the Union after the Union obtained the sup-
port-of a majority of its employees on June 17 and so
notified Respondent to that effect on June 18 and 21,
1982, Respondent simultaneously engaged in conduct to
undermine or likely to undermine, the Union's majority
status and make a fair election impossible. Such conduct
by Respondent constituted a refusal to bargain in good
faith, in violation of Section 8(a)(5)' of the Act. Occiden-
tal Paper Corp., 227 NLRB 719, 722 (1977).
It having been found that Respondent, while having -
knowledge of the Union organizing activities of its em-
ployees on June 17, 1982, nevertheless engaged in re-
straining conduct and coercive .interrogation of its em-
ployees on June 17 and 19, threatened an employee. on
June 19 with closure of its plant before it would accept
unionization of its plant; coercively interrogated an em-
ployee on September 27 about his reasons for refusing to
cross the picket line, and threatened him with closing its
plant before it would permit unionization of its plant, in=-
violation. of Section 8(a)(1) of the Act; that Respondent
on June 17 discriminatorily announced the immediate re-
duction in the number of days 'worked per week; and
that on June 18 discriminatorily laid off 12 of, its employ-
ees, all because its employees engaged in union activities
on June 3, 16, and 17, discharged three other employees
'because they engaged in other protected activities (refus-
al to cross the picket line) on September 20 through 27,
'1982; and that since June 18-21, 1982, Respondent has
failed and refused to recognize the Union as the duly
designated collective-bargaining representative of its em-
ployees, in violation of Section 8(a)(5) of the Act, the
recommended Order will provide that Respondent cease
and desist from engaging in such unlawful conduct, and
that it take certain affirmative action to effectuate the
policies of the Act.
LIMPERT BROS. .
Bargaining Order
Finally the question is presented-as to whether the es-
tablished unfair labor practices committed by the Re-
spondent during the organizing activities of its employees
were of such consequential magnitude as to interfere
with the election processes by dissipating the Union's
majority status and precluding the holding of a fair elec-
tion. In answering this question, it is first noted that it is
clearly established by the evidence of record that 19, and
at a later date 20, of the 26 employees in the stipulation
of employees who would constitute an appropriate unit
for collective bargaining , signed a single purpose authori-
zation card designating United Food and Commercial
Workers Union, Local 56, AFL-CIO, chartered by
United Food and Commercial Workers International
Union, AFL-CIO-CLC as their collective-bargaining
agent . The Respondent has not presented any evidence
showing that it had -independent knowledge that the
Union lacked. a majority status either before or subse-
quent to its commission of the unfair labor 'practices
herein found.
In view of the foregoing findings, I further conclude
and find that Respondent's aforedescribed''unlawful con-
duct constituted the commission of independent,. substan-
tial, and pervasive unfair labor practices disruptive ' of
election conditions or processes, which prevent a free
election and cause the dissipation of the Union's majori-
ty, warranting the issuance of a collective-bargaining
order. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969),
and Steel-Fab, Inc., 212 NLRB 363 (1974); Ohio New
Parts, 267 NLRB 420 (1983).
I also conclude and find that Respondent' s June 18,
1982 mass layoff of 12 of its 32 employees who had
signed union authorization cards, and its subsequent dis-
charge of three employees for refusing to cross the
unfair labor practice picket line is a particularly egre-
gious violation sufficient to support a bargaining order.
Edmund Homes, 255 NLRB 809, 816 (1981); Marietta
Contracting, 251 NLRB 177, 183 (1980).
CONCLUSIONS OF LAW
1. By discriminatorily laying off (discharging) Pauline
Pruitt, Laverne Jackson, Donnal Barriento, Carlos Gon-
zalez , Miguel Velez, Carmen Rodriquez, Leonard Graff,
Lewis Smith, Sharon Parker, Gail Ocasio, John Mazzi,
and Susan Johnson on June 18, 1982, because they sup-
ported the Union, the Respondent engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) of the Act.
2. By discriminatorily announcing and reducing the
number of days worked per week on June 17, 1982, be-
cause the employees were supporting the Union, Re-
spondent engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and (1) of
the Act.
3. By discriminatorily discharging employees Ray-
mond Fitzgibbon, Joseph DeMaio, and Margaret DiMat-
teo, by refusing to allow them to return to work upon
their unconditional offer to return to work, because they
refused to cross the picket line, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
381
4. By coercively interrogating an employee.on June 17
and 19 , 1982, about his union interest and activities, Re-
spondent violated Section 8(a)(1) of the Act.
5. By threatening employees on June 19 and Septem-
ber 27, 1982, with closure of its plant because employees
supported the Union, Respondent- 'violated Section
8(a)(1) of the Act.
6. By coercively interrogating employees about their
reason for refusing to cross the picket line, Respondent
violated Section 8(a)(1) of'the Act.
7.: By refusing to recognize and bargain with the
Union since June 21, 1982, while engaging in a series of
pervasive unfair labor practices which undermined and
tended' to undermine the Union's majority status and
impede the election process, Respondent violated Section
8(a)(5) and (1) of•the Act.
8. A bargaining order is necessary to remedy the Re- -
spondent's unfair labor practices.
REMEDY
Having found that Respondent has engaged in unfair
labor,' practices warranting a remedial order, 'I shall rec-
ommend that it cease and desist from engaging in such
conduct; and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
The. Respondent having discriminatorily laid off (dis-
charged) Pauline Pruitt, Laverne Jackson, ' Donna Bar-
riento, Carlos Gonzalez, Miguel Velez, Carmen Rodri-
guez, Leonard Graff, Lewis Smith, Sharon Parker,' Gail
Ocasio', John Mazzi, and Susan Johnson; and having also
discriminatorily discharged Raymond Fitzgibbon, Joseph
DeMaio, and Margaret DiMatteo by refusing to allow
them to return to work when they offered to return to
work, Respondent must offer, them reinstatement and
make them whole for any loss of earnings and other ben-
efits, computed on a quarterly basis from the date of
their discharge or the date of a proper offer of reinstate-
ment , less earnings , as prescribed in F.' W Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in Flori-
da Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Limpert Brothers, Inc., Vineland,
New Jersey, its officers, agents , successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Local 56, AFL-CIO, char-
tered by United Food and Commercial Workers Interna-
tional Union, AFL-CIO-CLC or any other Union.
8 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and, Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discharging or otherwise discriminating against
employees because they refuse to cross a union picket
line of fellow employees
(c) Coercively interrogating employees about their
union interest or activities
(d) Threatening employees with plant closure because
they support a union
(e) Coercively interrogating employees about their
reason for refusing to cross a picket line
(f) Failing and refusing to recognize and bargain with
Local 56 AFL-CIO-CLC chartered by United Food
and Commercial Workers International Union AFL-
CIO-CLC as the exclusive representative of employees
in the appropriate unit
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain with Local 56 AFL-CIO
chartered by United Food and Commercial Workers
International Union AFL-CIO-CLC as the exclusive
collective bargaining representative of the employees in
the following appropriate unit concerning terms and con
ditions of employment and if an understanding is
reached embody the understanding in a signed agree
ment
All production maintenance shipping and laborato
ry employees employed by Lampert Borthers Inc
at its Vineland NJ facility excluding all office cler
ical employees salesmen guards and supervisors as
defined in the National Labor Relations Act
(b) Offer Pauline Pruitt Laverne Jackson Donna Bar
nento Carlos Gonzalez Miguel Velez Carmen Rodn
guez Leonard Graff Lewis Smith Sharon Parker Gail
Ocasio John Mazzi Susan Johnson Raymond Fitzgib
bon, Joseph DeMaio and Margaret DiMatteo immediate
and full reinstatement to their former jobs or if those
jobs no longer exist to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges previously enjoyed and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination again st them in the manner
set forth in the remedy section of this decision
(c) Remove from company files any reference to the
unlawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way
(d) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at Limpert Brothers Inc plant in Vineland
New Jersey copies of the attached notice marked Ap
pendix 9 Copies of the notice on forms provided by the
Regional Director for Region 4 after being signed by
the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al
tered defaced or covered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis
missed insofar as it alleges violations of the Act not spe
cifically found
If 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board