Penn Color, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1982

261 N.L.R.B. 395 (N.L.R.B. 1982)

PENN COLOR, INC.
Penn Color, Inc. and Teamsters Union Local No.
115. Case 4-CA-10315
April 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
HUNTER
On June 4, 1981, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
I Respondent asserts that the Administrative Law Judge's resolutions
of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because an administrative law judge resolved im-
portant factual conflicts in favor of the General Counsel's witnesses. As
the Supreme Court stated in N.LR.B. v. Pittsburgh Steamship Co., 337
U.S. 656, 659 (1949), "[Tlotal rejection of an opposed view cannot of
itself impugn the integrity or competence of a trier of fact." Further-
more, it is the Board's established policy not to overrule an administra-
tive law judge's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
In the section of his Decision entitled "Majority Status," the Adminis-
trative Law Judge erroneously stated that 38, rather than 39, authoriza-
tion cards were received into evidence; that I of these cards was signed
by alleged Supervisor Steven Prebish, rather than by employee David
Prebish; that 25, rather than 27, of these cards were dated June 7, 1979;
and that 33, rather than 34, employees had signed cards by June 14, 1979.
He also referred to employee Freudenberger as "Freudenmerger." In the
section of his Decision entitled "Violations of Section 8(aXl)," the Ad-
ministrative Law Judge stated that employee King testified that Day-
Shift Foreman Horst talked to him regarding an antiunion petition being
circulated by Steven Prebish, rather than that Horst talked to employee
James Coons in the presence of King. These inadvertent errors are insuf-
ficient to affect our decision.
In adopting the Administrative Law Judge's finding that a majority of
employees in the appropriate bargaining unit signed valid authorization
cards, we find it unnecessary to pass on the validity of the authorization
card signed by employee Snyder.
The Administrative Law Judge referred, without citation, to the
Board's Decision in the representation proceeding involving these parties.
That Decision appears at 249 NLRB 1117 (1980).
' The Administrative Law Judge concluded that Respondent violated
Sec. 8(aXI) of the Act on June 8, 1979, by interrogating employees King
and Smith and by implicitly promising King a promotion if he refrained
from further union activities. Respondent has excepted to these conclu-
sions on the ground, inter alia, that the complaint alleged only one in-
stance of interrogation on June 8 and did not allege any promise of pro-
motion in exchange for refraining from union activities. We find this ex-
ception without merit. Although the complaint did not specifically allege
all these violations, the issues were fully litigated at the hearing and the
record fully supports the Administrative Law Judge's conclusions. Ac-
cordingly, we adopt the Administrative Law Judge's conclusions that this
261 NLRB No. 58
Judge, as modified herein, and to adopt his recom-
mended Order,3 as modified herein. 4
1. The Administrative Law Judge concluded that
Respondent violated Section 8(aX)(1) of the Act by
attempting to induce employees to sign an antiun-
ion petition and by promising improvements in
benefits and better pay as a reward for discontinu-
ing union activities. In so doing, he relied on his
finding that Steven Prebish, who he found was a
supervisor within the meaning of the Act, request-
ed employee Schock to sign an antiunion petition
and stated to Schock that when the "trouble" was
over the employees would receive improved bene-
fits and better pay. While we agree with the Ad-
ministrative Law Judge's conclusion, we do so
only for the following reasons.
Employee Schock, whom the Administrative
Law Judge credited, testified that about a week
after union activity began he had a conversation
with Prebish, whose supervisory status is in dis-
pute, and Wendig, an admitted supervisor. Accord-
ing to Schock, Prebish asked him, "Would you like
to sign a petition to get the [U]nion out?" When
Schock replied that if he signed the petition, the
employees who started the Union would be fired,
Prebish continued, "No, that's not the way it's
going to work. We'll get everybody to sign the pe-
tition and we'll get Mr. Putnam to sign a thing that
says you won't be fired and it will work out for all
of us, all of the trouble will be over with, and plus
we'll get better benefits and better pay and every-
thing." Schock testified further that Wendig then
conduct violated Sec. 8(aXl). Gerald G. Gogin d/b/a Gogin Trucking, 229
NLRB 529, fn. 2 (1977).
In adopting the Administrative Law Judge's conclusion that Respond-
ent violated Sec. 8(aX1) of the Act by soliciting grievances from employ-
ees, we find it unnecessary to rely on Hanes Hosiery. Inc., 219 NLRB 338
(1975), which did not involve such an issue.
I The Administrative Law Judge recommended a broad cease-and-
desist order. We have considered this case in light of the standards set
forth in Hickmon Foods Inc., 242 NLRB 1357 (1979), and have conclud-
ed that a broad order is appropriate.
' We agree with the Administrative Law Judge's recommendation that
Respondent be ordered to reinstate employee Moore with backpay. In so
doing, we reject Respondent's contention that Moore is not entitled to
reinstatement or backpay because, shortly after his termination, he stated
to Day-Shift Foreman Horst that "Dead men tell no tales." Moore's
statement, made in the heat of discharge and unaccompanied by any
threatening gestures, was ambiguous and at worst nothing more than a
rough remark by an employee under the stress of an unlawful discharge.
Accordingly, we find that Moore's remark is an insufficient basis for
denying him his right to reinstatement with backpay. See Asplundh Tree
Expert Company, 220 NLRB 352, fn. 2 (1975). However, we shall modify
the Administrative Law Judge's recommended reinstatement order to
conform to our usual order in such cases, and modify his recommended
make-whole order to provide for the method of computing backpay and
interest. We shall also modify the Administrative Law Judge's recom-
mended Order so as to require Respondent to expunge from employee
Moore's personnel records, or other files, any reference to his June 8,
1979, discharge.
Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him, "What seems to be your problem? What
do you want, better benefits, better insurance . . .
better wages or better working conditions, what?"
Contrary to the Administrative Law Judge's
finding, there is no evidence that Prebish was a su-
pervisor. Accordingly, a finding that Respondent
violated Section 8(aX)(1) cannot be based on Pre-
bish's remarks alone. However, Prebish made his
statements to Schock in the presence of admitted
Supervisor Wendig, who then made his own in-
quiry as to what Schock's "problem" was and what
improved benefits Schock wanted. In these circum-
stances, we find Wendig's remarks clearly consti-
tuted an attempt to persuade Schock to accede to
Prebish's request and amounted to ratification of
Prebish's remarks. Accordingly, we conclude that
Respondent thereby sought to induce Schock to
sign an antiunion petition and promised improve-
ments in benefits and better pay as a reward for
discontinuing union activity, and that Respondent
thereby violated Section 8(a)(l) of the Act. See In-
tertherm, Inc., 235 NLRB 693 (1978).
2. We adopt the Administrative Law Judge's
findings that Respondent violated Section 8(aX)(1) of
the Act by (1) threatening to relocate its plant be-
cause of the employees' union activities, (2) interro-
gating employees as to how many employees had
signed union authorization cards, (3) threatening to
discharge employees in retaliation for their proun-
ion activities, (4) promising promotions to employ-
ees to induce abandonment of union activities, (5)
threatening to utilize mistakes in work performance
as a pretext to discharge prounion employees, (6)
attempting to induce employees to sign antiunion
petitions, (7) promising improvements in benefits
and better pay as a reward for discontinuance of
union activities, (8) soliciting employee grievances
to induce abandonment of prounion activities, and
(9) granting substantial increases in insurance bene-
fits to restrain and coerce its employees in their
prounion activities. We additionally adopt the Ad-
ministrative Law Judge's findings that Respondent
violated Section 8(a)(3) and (1) of the Act by dis-
charging employee Moore. Finally, for the reasons
set forth below, we adopt the Administrative Law
Judge's conclusion that a bargaining order is war-
ranted in this case.
In N.LR.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), the Supreme Court approved our use of
bargaining orders as remedies in cases marked by
substantial employer misconduct which has the
"tendency to undermine [the Union's] majority
strength and impede the election processes." 5 The
s 395 U.S. at 614.
Court explained that, where the union had at one
time enjoyed majority support among the employ-
ees, the Board, in fashioning a remedy, can proper-
ly consider:
. . . the extensiveness of an employer's unfair
labor practices in terms of their past effect on
election conditions and the likelihood of their
recurrence in the future. If the Board finds
that the possibility of erasing the effects of
past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employ-
ee sentiment once expressed through cards
would, on balance, be better protected by a
bargaining order, then such an order should
issue ... .
Initially, we note that beginning June 8, 1979,
the day after card solicitation began, and continu-
ing through July 1, 1979, Respondent, as enumer-
ated above, engaged in numerous unfair labor prac-
tices which were plainly calculated to have an
impact on most, if not all, employees in the unit.
We find that this campaign of serious and extensive
unfair labor practices had the tendency to under-
mine the Union's majority strength and impede the
election process.7
We further find that the possibility of erasing the
effects of Respondent's unfair labor practices and
of insuring a fair election by the use of traditional
remedies is slight. Respondent's discharge of an
employee who was a leading union advocate be-
cause of his protected activity constitutes unlawful
activity long classified as misconduct going "to the
very heart of the Act,"" and is one of the most fla-
grant means by which an employer can seek to dis-
suade employees from selecting a bargaining repre-
sentative. 9 Furthermore, Respondent's threats of
plant closure are among the most effective means
for destroying employee support for a union and
making a fair election impossible for an extended
period.' 0 Additionally, Respondent's solicitation of
grievances, followed by the remedying of one of
the employees' principal grievances through the
granting of a substantial increase in insurance bene-
fits, will have a lingering effect, since employees
will be reminded of Respondent's action whenever
they receive insurance benefits and are likely to
communicate to any new employees the manner in
which the increased benefits were obtained. 1T
'Id at 614-615.
7 Chandler Motors, Inc., 236 NLRB 1565 (1978); Teledyne Dental Prod-
ucts Corp., 210 NLRB 435 (1974).
' See, e.g., N.LR.B. v. Entwistle MJ. Coa, 120 F.2d 532, 536 (4th Cir.
1941).
'Apple Tree Chevrolet Inc, 237 NLRB 867 (1978).
" N.LR.B. v. Gissel Packing Ca., Inc.., supra, 395 U.S. at 611, fn. 31;
United Services for the Handicapped, 251 NLRB 823 (1980).
" Chester Valley, Inc., 251 NLRB 1435, 1452 (1980).
396
PENN COLOR, INC.
Therefore, for all the above reasons, we conclude
that the employees' sentiment, once expressed
through authorization cards, would, on balance, be
better protected by our issuance of a bargaining
order than by traditional remedies.
The record shows that by June 7 the Union had
obtained 29 valid authorization cards from the 56
employees in the appropriate bargaining unit. Thus,
by June 7, the Union represented a majority of em-
ployees in the appropriate bargaining unit. As
noted above, Respondent embarked on its unlawful
course of conduct on June 8. We will therefore
order that Respondent bargain with the Union as
of June 8, 1979.12
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 1:
"1. Since June 7, 1979, the Union has represent-
ed a majority of the employees in the appropriate
bargaining unit described below, and since June 8,
1979, the Union has been the exclusive bargaining
representative of said employees within the mean-
ing of Section 9(a) of the Act. The appropriate bar-
gaining unit is:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, and truckdrivers employed by the Em-
ployer at its Doylestown, Pennsylvania, facili-
ty, but excluding all quality control and re-
search and development technicians, office
clerical employees, professional employees,
guards and supervisors as defined in the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Penn Color, Inc., Doyles-
town, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
" Beasley Energy, Inc., d/b/a Peaker Run Coal Company. Ohio Division
#1, 228 NLRB 93 (1977). Member Fanning would make the bargaining
order prospective in the absence of a timely demand and refusal to bar-
gain. See his concurrence in Becaley Energy. supra
The Administrative Law Judge found that Respondent violated Sec.
8(a)(X5) and (I) of the Act by refusing to recognize and bargain with the
Union on and after June 14, 1979. Respondent excepts on the grounds,
inter alia, that such a finding is barred by Sec. 10(b) of the Act. In view
of our finding that a bargaining order is warranted based on the viola-
tions of Sec. 8(aXI) and (3) found herein, we find it unnecessary to pass
on the Administrative Law Judge's finding of a violation of Sec. 8(aX5)
and (1).
(a) Discharging or in any other manner discrimi-
nating against its employees because of their union
or protected concerted activities.
(b) Threatening to relocate its plant because of
its employees' union activities.
(c) Interrogating employees as to how many em-
ployees had signed union authorization cards.
(d) Threatening to discharge employees in retali-
ation for their prounion activities.
(e) Promising promotions to employees to induce
abandonment of union activities.
(f) Threatening to utilize mistakes in work per-
formance as a pretext to discharge prounion em-
ployees.
(g) Attempting to induce employees to sign an-
tiunion petitions.
(h) Promising improvements in benefits and
better pay as a reward for employee discontinuance
of union activities.
(i) Soliciting employee grievances for the pur-
pose of inducing their abandonment of union activ-
ities.
(j) Granting substantial increases in insurance
benefits as an inducement for employees to discon-
tinue union activities.
(k) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Recognize and, upon request, bargain collec-
tively with Teamsters Union Local No. 115, as the
exclusive representative since June 8, 1979, of the
employees in the appropriate bargaining unit de-
scribed below, with regard to wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement. The appropriate
bargaining unit is:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, and truckdrivers employed by the Em-
ployer at its Doylestown, Pennsylvania, facili-
ty, but excluding all quality control and re-
search and development technicians, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Offer George Moore immediate and full rein-
statement to his former job or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed.
(c) Make whole George Moore for any loss of
earnings which he may have suffered by virtue of
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discrimination against him by paying an amount
equal to what he would have earned from the date
of discharge to the date when he is offered rein-
statement. Backpay shall be calculated in accord-
ance with F. W. Woolworth Company, 90 NLRB
289 (1950), plus interest as computed in Florida
Steel Corporation, 231 NLRB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(d) Expunge from George Moore's personnel
files, or other files, any reference to his June 8,
1979, discharge.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its Doylestown, Pennsylvania, plant
copies of the attached notice marked "Appen-
dix."'3 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being
duly signed by its representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
1' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with these rights. More specifically,
WE WILL NOT discharge or otherwise dis-
criminate against our employees because they
have engaged in concerted union activities.
WE WILL NOT threaten to relocate our plant
because of the employees' union activities.
WE WILL NOT interrogate our employees as
to how many employees have signed union au-
thorization cards.
WE WILL NOT threaten to discharge employ-
ees in retaliation for their prounion activities.
WE WILL NOT promise promotions to em-
ployees to induce abandonment of union activ-
ities.
WE WILL NOT threaten to utilize mistakes in
work performance as a pretext to discharge
prounion employees.
WE WILL NOT attempt to induce employees
to sign antiunion petitions.
WE WILL NOT promise improvements in
benefits and better pay as a reward for em-
ployees to discontinue their union activities.
WE WILL NOT solicit employee grievances
and thereby promise satisfaction of their de-
mands, in order to induce abandonment of cur-
rent union activities.
WE WILL NOT grant substantial increases in
insurance benefits as a means to restrain and
coerce our employees in their protected union
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them under
Section 7 of the Act.
WE WILL, upon request, recognize and bar-
gain collectively with Teamsters Local Union
No. 115 as the exclusive representative since
June 8, 1979, of the employees in the follow-
ing appropriate unit and, upon request,
embody in a signed agreement any understand-
ing reached. The appropriate bargaining unit
is:
All production and maintenance employees,
shipping and receiving employees, warehou-
semen, and truckdrivers employed by the
Employer at its Doylestown, Pennsylvania,
facility, but excluding all quality control and
research and development technicians, office
398
PENN COLOR, INC.
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL offer George Moore immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make George Moore whole for
any loss of earnings he may have suffered as a
result of our unlawful discrimination against
him, plus interest.
WE WILL expunge from George Moore's
personnel files, or other files, any reference to
his June 8, 1979, discharge.
PENN COLOR, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hear-
ing in this proceeding was held before me in Philadel-
phia, Pennsylvania, on January 19, 20, and 21, and on
February 2, 1981, on complaint of the General Counsel
against Penn Color, Inc., herein called the Respondent
or the Company. The complaint issued on August 25,
1980, upon a charge filed on July 5, 1979, by Teamsters
Union Local No. 115, herein called the Union. The
issues presented are: whether the Respondent unlawfully
refused to extend recognition to the Union on demand;
whether it unlawfully discharged a union leader; and
whether it committed a number of other violations of the
statute. Briefs were filed by the General Counsel and the
Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following: I
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Penn Color, Inc., a Pennsylvania corporation, is en-
gaged in the production of color concentrates at its Doy-
leston, Pennsylvania, facility. During the year preceding
issuance of the complaint it sold and shipped goods
valued in excess of S50,000 from this one location to
points outside the State of Pennsylvania. I find that the
Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Teamsters Union Local No. 115 is a labor
organization within the meaning of Section 2(5) of the
Act.
I A motion by the General Counsel to correct certain typographical
errors in the transcript, unopposed, is hereby granted.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The Respondent operates in two locations, one in
Doyleston, Pennsylvania, and the other in Flemington,
20 or 25 miles away. Among the approximately 56 pro-
duction and maintenance employees at Doyleston there
developed a move towards joining Teamsters Local 115
in June 1979. Within 3 days, by the morning of June 8,
29 of them had signed cards authorizing Local 115 to
bargain on their behalf. On June 13 the Union, in writ-
ing, formally demanded recognition as exclusive bargain-
ing agent of the Doyleston employees; the Respondent
ignored the request. On June 18, 3 days later, on June
18, the Union filed an election petition with the Board in
Case 4-RC-13742, calling for an election among that
same group of employees.
This case, an unfair labor practice proceeding, arose in
consequence of the Employer's reaction to the Union's
organizational campaign. On June 8, it summarily dis-
charged one of the principal activists in the solicitation
of signatures to union cards. On June 12, for the first
time, a newly hired contract personnel specialist started
meeting with successive groups of employees in the plant
and soliciting grievances from them to learn what dissat-
isfaction in working conditions had led to their prounion
resolve. One of the gripes articulated by the employees
was the inadequacy of their health benefits. On June 29,
the Company announced a number of substantial in-
creases in medical and hospitalization benefits in the in-
surance which covered all employees. The complaint
calls all of this conduct unfair labor practices, coercive
techniques to discourage and permanently kill off the
self-organizational activities. It also lists additional acts,
called violations of Section 8(a)(1) of the Act-interroga-
tion, threats, promises, etc.
Of greater significance, considering the case as a
whole, is the further allegation that by refusing to bar-
gain with the Union on request the Respondent violated
Section 8(aX5). In remedy the General Counsel asks that,
in view of the pervasive and outrageous nature of the
unfair labor practices committed, the Respondent must
be ordered, affirmatively, to bargain with the Union
now.
The Respondent denies the commission of any unfair
labor practices. It also advances a number of contentions
said to call for dismissal of the complaint, some as a
matter of law and others as a matter of fact. These argu-
ments will be considered below.
B. The Scope of the Unit Question
In 1976, another local of the Teamsters International,
Local 384, filed a petition with the Board for an election
in this same unit limited to the employees of the Re-
spondent at its Doyleston plant. After a regular hearing
the Regional Director issued a decision agreeing with
the Respondent's contrary contention that that unit was
inappropriate because it excluded the Flemington loca-
tion employees, finding that only a two-plant unit was
appropriate, and therefore dismissing the petition (Case
4-RC-12105). On July 27, 1976, the Board denied an
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeal by Local 384 for reversal of that Regional Direc-
tor's decision.
The Regional Director held a further hearing on the
June 1979 petition of the Charging Party here, Teamsters
Local 115, and again, on November 2, 1979, issued a de-
cision finding a unit limited to the Doyleston location in-
appropriate because it did not include the Flemington
employees. This time, on appeal by Local 115, the Board
reversed the holding of the Regional Director and on
June 6, 1980, issued its decision finding the Doyleston
single-location unit appropriate. The Board's then Direc-
tion of Election was never processed because of the al-
leged unfair labor practices committed by the Respond-
ent.
In this proceeding, herein, the Company argues that in
June 1979, with a Board decision in its hands holding the
Doyleston unit inappropriate, it had a right to refuse the
Union's demand that it bargain in that unit, and that
therefore the complaint allegation that it violated Section
8(a)(5) by its refusal must be dismissed. The position
completely misconceives Board law. It is but another
way of saying that because an employer has a right to
bring a dispute over the question concerning representa-
tion to the Board for resolution, it is free to commit
unfair labor practices. The question whether the unit re-
quested is or is not appropriate is completely irrelevant
to the question whether the employer has committed
unfair labor practices. Of course an employer may with-
hold recognition pending a Board decision as to the ap-
propriate unit. Indeed, it may withhold recognition with
impunity for a number of reasons-unit composition,
doubt of a majority, question as to reliability of signed
authorization cards, or just plain desire for a secret
Board-conducted election. All this, of course, only so
long as it does not use the intervening period to destroy
the union's established representative status, to so coerce
and intimidate the employees that a fair election becomes
impossible. Cf. N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969). And this is precisely what this com-
plaint alleges.
C. Majority Status
In its Decision and Direction of Election issued in
June 1980, the Board found the following unit appropri-
ate for collective-bargaining purposes:
All production and maintenance employees, ship-
ping and receiving employees, warehousemen, and
truckdrivers employed by the Employer at its Doy-
leston, Pennsylvania, facility, but excluding all qual-
ity control and research and development techni-
cians, office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
Accordingly, I find that same unit to be appropriate
for purposes of evaluating the complaint in the case at
bar.
On June 13, 1979, the Union sent its recognition
demand to the Company. The next day, June 14, is an
appropriate day to test the Union's majority. The parties
stipulated that on that day there were 56 employees at
work in the unit. The Union would exclude three of
these-Steven Prebish, Weston Ruch, and Jack Shaw.2
Thirty eight authorization cards were received in evi-
dence, all signed by employees in the 56 number total.
Of them all, two are dated June 6, 25 June 7, 4 June 8, 1
June 9, and I June 13. The remaining are all dated on
various dates between June 13 and September 24. This
last group includes Prebish, one of the men in dispute.
As to some of these cards in evidence, the employee
himself testified he signed it. As to others, the witnesses
who solicited the signature testified they personally saw
the signer of the card write his name on it. And as to a
few others, the testifying employee said he received the
signed card out of the employee's hands whom he knew
and whose signature was already on the card. Under es-
tablished Board law these are all good authorization
cards. Murcel Manufacturing Corp., 231 NLRB 623
(1977).
Counsel for the Respondent argues the cards were not
intended as outright authorization for immediate bargain-
ing, but only indication of an agreement to go to an elec-
tion. In support of this attack on the cards there is a
statement by each of five employees who signed-
Muick, Miller, Goydas, Pitkin, and Freudenmerger-that
when signing he was told by the solicitor that "there
would be an election." Another employee-Serrano-
said he was told "if I signed the card we can go to an
election . . . we were going to be in a union I mean-
election for a union." Another man, Snyder, recalled he
was told "that there would be an election . . . that didn't
mean nothing, except the election for a vote."
Board law is clear: in America we speak English, and
when employees sign a simple and clear statement desig-
nating a union as their "chosen representative," they
must be taken as meaning the import of that same lan-
guage. As the Supreme Court has agreed, it is only when
the later testimony convincingly proves the employee
was told the only reason for signing the card, despite
what is written on it, is to bring about an election, that
the card can be ignored in the majority count. Cumber-
land Shoe Corporation, 144 NLRB 1268 (1963); N.L.R.B.
v. Gissel Packing Co., supra. After the events, and after
the commission of coercive unfair labor practices by the
employer, testimony about prior thinking as to what the
card was for, or even testimony of talk about a possible
election one day, will not do to invalidate the card.
I find that by June 14, 1979, 33 employees, without
question included in the maximum count total of 56, had
signed valid authorization cards in favor of Local 115,
and that therefore the Union in fact represented a major-
ity in the appropriate bargaining unit.
D. A Pervasive Question of Credibility
In denying the unfair labor practices alleged, the Re-
spondent called a number of witnesses. Four of them ad-
dressed themselves to the major acts set out in the com-
plaint. These were Robert Polfus, plant manager, Wil-
liam Hirst and Charles Rybny, supervisor and technical
' In view of the adequate number of valid authorization cards placed in
evidence, the question as to the proper inclusion or exclusion of these
three men is an academic matter that can be ignored.
400
PENN COLOR, INC.
director, respectively, over the union ringleader who
was fired summarily, and Edgar Putnam, the president.
With the essential question underlying the unprecedented
things the Company did at that critical time being one of
motivation, the credibility of these witnesses really goes
to the heart of the Respondent's entire defense. If they
lied, so that the rational inference of illegal purpose be-
comes convincing-compare Shattuck Denn Mining Cor-
poration (Iron King Branch) v. N.LR.B., 362 F.2d 466
(9th Cir. 1966)-the Company's fixed determination to
see that no union ever comes into this plant appears ines-
capable.
1. On the evening of June 6, three employees-George
Moore, Jim Coons, and Thomas Schock-went to the
union hall and obtained a quantity of authorization cards.
The next day Moore distributed these cards to a number
of employees in the lunchroom on three occasions-
during the 9 a.m. break, during lunch at noon, and again
at the 2 o'clock break. He left union literature about on
the eating tables. There were always a number of other
employees there, and there was much talk about the
Union. The lunchroom is adjacent to an office where
two supervisors sit, with glass partitions between the two
rooms. A few employees signed cards there. Moore said
he saw Supervisor Wes Ruch sitting in that office then;
the supervisors spend 50 percent of their time there.
After 3 p.m., after checking out, Moore went to the em-
ployee parking lot across the street from the Respondent
and for the next hour or so solicited signatures both from
employees who checked out at the 3:15 shift and from
those who arrived for the start of the next shift at 4:15
p.m. He was assisted in this solicitation by several others
in the parking lot-Schock and Brad King among them.
Most of the cards received in evidence had been signed
by nightfall.
Immediately adjoining the open parking lot-separated
only by a broken hedge-is the home of Polfus, the plant
manager. Three employees testified-Moore, Schock,
and King-that Polfus was cutting his lawn that after-
noon on June 7 while the solicitation of cards was going
on. Moore said Polfus looked at him, and that he,
Moore, waved to the manager. Did Polfus see what was
going on? He was evasive in his testimony. He said he
usually mows his lawn "around 6:30," because his
"normal work hours. . . were ... until 6:00, 6:30 . ."
and that he only left the plant "around 5 o'clock . . .
maybe once or twice a year." In contrast, his prehearing
affidavit reads: "I usually work until at least 5.00 p.m."
Asked on cross-examination had he mowed his lawn that
day, he answered: "I don't recall ... I might have been.
I might have jumped a jet to China."
At 11:30 the next morning Joseph McLaughlin, a lead-
man, complained to Polfus that a "younger" leadman
was being paid more than he; there were only two lead-
men in the whole place. Polfus told him it was not true.
At 12 o'clock, while a large group of employees were
eating in the lunchroom, the manager walked in with a
printout of the entire employee complement showing
everybody's hourly rate of pay. He then let loose a blast
at all of them, with the witnesses' recollections varying
very little as to his words. From Moore's testimony:
"Mr. Polfus stormed into the lunchroom . . . he just
came storming in; he was upset he started cursing . . .
he wanted to know who was starting rumors and he
knew there was trouble going on and he was going to
get to the bottom of it. He said that no bad apples were
going spoil it for everybody and that when he found out
who they were, they were going to hit the tn road." By
McLaughlin: "He came in the lunchroom and he had a
printout with all the wages on it and he says: Do you
want to see what you make and what the rest of them
make? Look at it . . . He said there's a couple of rotten
apples that have spoiled the whole thing." By Schock:
". .. he started telling us about how there was a lot of
people in the plant, causing trouble and these guys were,
pardon the phrase, they were a 'bunch of f-king jer-
koffs,' and that they were rotten apples and "that they
were trying to ruin all the good workers in Penn Color'
. . . these people, if they were causing trouble, they
would go down the road .... " By Thomas Bastion: "I
heard him say that the positive people are the ones that
are going to stay and the weakies are going to be first to
go." By Brad King: "He said that, just because of a few
rotten apples, they're going to spoil it for us. And that
the weakies will go first." The manager's own version:
"I said . . . somebody was spreading rumors that Penn
Color was, you know, paying-being unfair to their em-
ployees and some rotten apple was going to spoil the
good morale of the company . .. I laid it on the table
and I invited everybody who was present to take a look
at the printout .... " "I said . . . somebody's spreading
rumors that there's unfair pay practices and it's a lie.
There's a couple of rotten apples going to spoil, you
know, the good attitude and morale of the Company."
"Q. Could you have referred to them as troublemakers,
also?" "A. It's possible but I don't recall."
Polfus' explanation at the hearing, that the sole provo-
cation for his such offensive and threatening outburst
that day was the fact that one man had complained
about his rate of pay compared with that of one other
man, greatly discredits the witness. How does one man,
who speaks a single phrase, become "rotten apples,"
"weakies," "trouble-makers," who "spoil . . . the good
. . . morale of the Company?" How did the plural get
into his language at all? There had been an earlier union
organizational campaign a few years before which had
failed; Polfus certainly knew group action meant union.
But single or plural, one man asking for equalized pay
could not conceivably justify such behavior by the top
management towards all those people in front of him.
His artful use of synonyms will not serve to becloud
what must have been his real message, especially in the
circumstances of the moment.
2. Within an hour of Polfus' tirade, about 1:15 p.m.,
Rybny, the technical director of the chemical testing de-
partment and over the 14 employees who work there,
called a meeting of the whole group. He had found cer-
tain solvent tanks dirtier than they should have been and
wanted to tell his employees to be more attentive to their
duties. As Rybny himself put it, he started the meeting
by "indicating . . . disappointment" to his employees.
Moore, who had heard of the complaint earlier in the
day, spoke up and admitted he had been responsible for
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inadequate cleaning job, and offered to clean it up.
Upon this single comment by the employee, Rybny dis-
charged Moore on the spot.
Again-credibility. Early that morning-Friday, June
8-Hirst, the immediate supervisor over Moore but
under Rybny, talked to Moore about his failure to follow
instructions and using the wrong pigment. As the two
talked-obviously not in angry terms-Hirst told Moore
that and this is from the supervisor's testimony:
-he had a great future with Penn Color . . . our
company was growing, we were getting more loca-
tions. .. all he had to do to succeed at Penn Color
was just perform properly. That he was in his first
year at college, he went to a 2-year college, that he
had finished that, he was going to be going back the
next year for further education. That with the open-
ing that could be in the Company, that he didn't
necessarily have to work in the QC lab, that he
could work, stay upstairs in our computer office. Or
maybe at some point that he could work in our
color computer office or you know, that there were
other opportunities, there were other positions in
the company which he could come to work at at a
future date.
As Moore recalled it, Hirst asked him "what my plans
were with the Company." Moore was then a college stu-
dent and answered he was "happy" working in the as-
signments he had. Hirst continued, now according to
Moore: ". . . that that was the reason they had hired me,
was to be prepped for the use of the computer . . . that
I would probably have to be sent to school and there
was a definite manager's position in it for me-in the
near future." Such friendly words from the immediate
supervisor-whichever version be accepted-are in com-
plete conflict with the supervisor's earlier story of the
employee's long and persistent record of disobedience
such as to put him, that very day, on the brink of dis-
charge. Was it also before Polfus came to work and in-
formed management of what he had seen on the parking
lot while cutting the lawn?
In the face of this testimony, the Respondent offered
evidence purportedly proving Moore had a very bad
record of offenses and disregard of orders, and that the
June 8 dirty solvent tank incident was simply what broke
the camel's back and dictated the discharge. The man-
agement witnesses said they never heard of the union ac-
tivity until Friday afternoon, after Moore was dismissed,
and that Monday morning, at 9 o'clock, they had the
labor lawyer, Laddon, in the company office, preparing
the defense to this case.
As witnesses now, both Hirst and Rybny listed, in
very precise detail as to both dates and events, no less
than eight offenses by Moore before June 8. Their testi-
mony is mutually corroborative in extraordinary preci-
sion. Asked to explain his incredible memory, Rybny
said: "Upon George Moore's termination, the week after
his termination, because of the circumstances involved,
we did go back into the files and compile these dates as a
matter of record." The General Counsel then placed into
evidence a typewritten one-page document bearing the
date of June 19, 1979; it lists nine dated offenses by
Moore starting February 2, 1979, and ending with the
June 8 solvent tank incident. Asked to explain the exhib-
it, Rybny answered: '"This particular document was com-
piled at the request of Mr. Laddon after speaking to him
the week after Mr. Moore's dismissal. He indicated we
should have all these things documented." "Q. Did he
tell you why to make it? The Witness: He indicated to
me that we should have events documented and I did
this also for this reason."
The oral testimony of both Hirst and Rybny followed
exactly, item by item, the details set out in the document
so prepared after the discharge. It was given in response
to continuously leading questions by company counsel
on direct examination. There can be no question but that
he was reading from the document as he lead the wit-
nesses on.
No meaningful purpose would be served by repeating
here the unending details of the two supervisors' recitals.
Moore recalled one criticism, on March 22. Other than
that, his testimony is he was never threatened with possi-
ble discharge for incompetence or continuing errors. As
stated, the question to be decided is one of motivation in
the discharge decision, and not exactly what happened in
each of a number of days in the past, or exactly how
dirty was this or that of the many tanks used regularly
for cleaning tools and chemical containers. Repetitive
testimony about precisely how the department operation
went on only beclouds the real issue of this case.
That both these supervisors gave a fabricated story of
Moore's past work performance is the clearest thing on
this record. As will appear, there are many reasons for
this conclusion. But the most direct of all-akin to what
has been called the death wound in any witness' story-
is the statement by Rybny at the hearing that the list of
offenses-prepared after the discharge to "document"
the anticipated defense one day to come-was based on
the company "files," because management had to "com-
pile these dates as a matter of record." There were no
company files pertaining to Moore! The Respondent does
have an established system of recording, in writing, de-
linquencies and warnings issued to its employees; they
are maintained in the employees' personnel files. A
number were produced as to other employees. In fact
one was even produced by the Company concerning
Moore. It is dated March 22. Moore recalled an incident
on or about that date, when he was in fact criticized. He
was not shown that entry, but that does not matter.
What is important, and effectively destroys the supervi-
sor's testimony, is that had there been any records, or
files, involving Moore they would have been brought to
the hearing. For the supervisor to say that the list now in
evidence reflects original contemporaneous files, is but
another way of offering self-serving documents, prepared
after the events, in substitution for records that were
never made. Company counsel did not himself attempt to
place that list into evidence, but the effect of the supervi-
sor's testimony is the same. The list was being read into
the record via the leading questions to each supervisor.
The attempted deception is so clear as to justify no fur-
ther comment.
402
PENN COLOR, INC.
There is more. According to Hirst, as early as March
5 Rybny threatened all the employees that any future
failure to keep the solvent tanks adequately clean would
bring on not only warnings but outright discharge. He
continued that the very next day Moore committed the
same sin again. He went on: on March 19 Moore left
things in the wrong place-"nothing had been put
away." "He hadn't followed procedures." Again on
March 21 the same thing and again nothing more than an
oral criticism of Moore, if the supervisor is to be be-
lieved at all. What this means-even were I to believe
his story of repeated warnings, which I do not-is that
Moore's performance, even after the March 5 reprimand,
was not so bad as to merit any kind of punishment. That
is, until the morning of June 8, after his very open and
continuing solicitation of union cards. Moore testified
that when Rybny fired him in instantaneous reaction to
what he said on June 8, Hirst voiced disagreement,
saying he would quit if Moore were really let go. While
Hirst denied having said that, he did admit, as set out
above, that earlier that very morning, even after telling
Moore he had made still another mistake, he talked of
the bright future Moore had with the Company. Would
a supervisor who thought so ill of one of his men-as
Hirst belabored at the hearing-have spoken so friendly
to him just hours before his discharge? And if there re-
mains any doubt about the falsity of the testimony of
both the supervisors, it is completely dispelled by the
fact that Moore was given a raise only a week before
June 8.
3. We come to the company president. Starting on
June 12, 5 days after the large percentage of employees
had signed union cards, Putnam had an outsider named
Larry Cozzens circulate about the plant speaking with
the employees in groups to solicit their grievances. Noth-
ing like this had ever happened before. Again, no need
for details. Six employees testified of how Cozzens asked
to discuss their "problems," their "grievances," their
"gripes," said he would be the "go between," to manage-
ment, write up their demands and pass them on to the
president to consider. In Cozzens' words, he asked the
employees for "their opinions on what was good and
bad." ". .. I would go out and, like I said . . . if they
had a problem, they would generally pipe up and bring it
to my attention." Among the things the employees com-
plained about were their personal problems with Man-
ager Polfus, and the insufficiency of the health insurance
benefits then in effect. On July 1, the Company made
substantial changes in the insurance benefits for all em-
ployees as follows:
. . . Increasing the maximum amount of major
medical expenses covered from one hundred thou-
sand dollars to one million dollars. Number 2. In-
creasing the amount reimbursed for in-hospital visits
by doctors from $5 per visit to $10 per visit.
Number 3. Increasing the amount reimbursed for
laboratory and X-ray work $100 to $200. Number 4.
Increasing the surgical RSV from $5 to $10.
Number 5. Adding a prescription drug program
providing for reimbursement of 100 percent of ex-
penses with a $1 deductible per prescription.
Number 6. Adding a short-term disability income
replacement plan providing for the receipt of 50
percent of weekly earnings up to a maximum of
$200 per week for a maximum of 26 weeks.
If ever a coherently related series of events and acts
proved the commission of unfair labor practices, this is
it. Immediately upon learning of his employees' union ac-
tivities, Putnam brings in a stranger to find out what it
was that caused them to do that. The man is told, as he
admitted, to bring back to management exactly what the
employees' demands are. He does that, and the president
then gives the employees one of the main improvements
in their conditions of employment to satisfy a gripe re-
ported.
To offset the inescapable inference that both the solici-
tation of grievances and the granting of increased health
benefits were strictly a reaction by management to put
an end to the union movement, Putnam testified that all
this had been decided before any union activities oc-
curred at all. He said he had been in touch with the Car-
roll Company-which furnishes the services of people
like Cozzens on a per diem basis-as far back as 1977,
when the Company had first offered its services. He
went on that throughout 1978 and early 1979 the Carroll
Company had kept calling him, sent him a brochure ex-
plaining "the advantages that they would keep unions
out." Putnam then said he decided on May 15 to use that
company's man to talk to the employees every Tuesday.
June 12 was a Tuesday. Cozzens said that on an earlier
assignment of his from the Carroll Company he had
gone to an employer that "went into a union campaign."
While Cozzens did not himself directly raise the question
of the Union while speaking to the employees here, he
did say they raised the subject and that he then "gave
them the benefit of my experience." Cozzens also testi-
fied he first arrived at the Respondent's place of business
on June 7, when he met only with the supervisors. Very
damaging to Putnam's testimony is Cozzens' further testi-
mony that on June 7 there was no talk about his meeting
with employees, that he was told to do that only on June
12.
Q. ... What day of the week was it that you
met with the employees?
A. Tuesday.
Q. The 12th?
A. Yes.
Q. When you came back there that day, were
you informed that a union campaign was in prog-
ress?
A. No.
Q. The Union campaign was not mentioned to
you?
A. No.3 Ed Putnam asked me to talk to all of the
employees . . . .
' President Putnam, testifying after Cozzens, gave a straight lie to his
own man:
Q. Now, I'd like to turn your attention to Tuesday, the 12th of
June. When did you first see Mr. Cozzens on that day?
A... In the morning some time, early in the morning.
Continued
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Had you already been scheduled to talk to all
of the employees that day?
A. No, I hadn't been.
Q. So, the first time that you were told that you
were going to talk to all employees on that day,
was when you arrived at the plant that day?
A. That's correct.
Cozzens was called as a witness by the Respondent.
What more direct proof could there be that Putnam hit
on the idea of soliciting grievances only after the union
organizational campaign started?
His attempted explanation of the grant of increased
health benefits suffers from like weaknesses. According
to him, changes in the Company's group insurance
policy was an old story, the Company having desired for
many months, as far back as January 1979, to improve
the coverage. He pointed to a change in maternity bene-
fits announced on April 29 as supporting proof of the de-
fense. It then developed that that change had been man-
dated by changes in Federal law. The Respondent placed
into evidence two letters dated during May received
from different brokers offering certain forms of health in-
creases at certain prices. During June, after the union
movement had surfaced, the Company dealt instead with
its own broker, and made a deal with him to accept his
offer instead. The changes it announced on July 1 were
modifications made in the Company's long-existing group
policy with that broker. The expiration date of the
policy was June 1. If in fact the Company was interested
in comparing what other companies had to offer with
what its own broker suggested, why did it have to wait
until after its policy expired? The normal time for chang-
ing insurance terms is when the existing policy expires.
Except, of course, when special circumstances arise that
precipitate quick action for other reasons. I am not at all
sure that the two letters on a broker's stationery dated in
May 1979 were in truth written at that time. But given
the sequence of events-union activity followed by man-
agement investigation as to its causes, Cozzens' report to
Putnam that increased benefits of this kind were exactly
one of the employees' major grievances, and then the
surprise changes in the Company's already renewed
policy-Putnam's antiunion motivation is absolutely
clear. He was not telling the truth at the hearing.
A final tidbit about Putnam's credibility. A former em-
ployee named Robert Chambers-testifying for the Gen-
eral Counsel-spoke of coercive antiunion statements
made by certain supervisors during June 1979, called vio-
lations of Section 8(a)(l) of the Act in the complaint. In
very extended cross-examination it was then brought out
that the witness was questioned by company representa-
tives on December 6, 1979, and signed a statement, in the
presence of and witnessed by Kevin Putnam, the presi-
dent's son and then plant manager, having replaced
Polfus, and by June Parenteau, the personnel director;
Q. Okay. And what was your discussion with him?
A. I told him that we had belief that there was a union organiza-
tional attempt and reviewed with him what [he] could and couldn't
do, and they couldn't promise anyone anything and not to interro-
gate or threaten or whatever and he indicated to me that he under-
stood all that. I believe he even talked to-Mr. Laddon was there
that day.
that written statement was partially consistent with his
direct testimony at the hearing. He signed another state-
ment, also received in evidence, on January 31, 1980; it is
a more comprehensive one and was also witnessed by
Kevin Putnam and Parenteau. This one gives the lie, in
chapter and verse, to every item in the statement he had
signed the month before and to his later testimony
against the Company. All the unfair labor practices he
talked about at the hearing as having happened, never
happened at all, according to that statement. Chambers'
testimony continued that he volunteered to give this
statement to the Company because he was fearful of
losing his job, what with the threats he had heard and
the pending unfair labor practice proceeding, where he
might have to testify. At the hearing, of course, he insist-
ed all these statements made in January 1980 were out-
right lies.
On October 24, 1980, Chambers was discharged for
having falsified his timecard. He said it had been a mis-
take, and offered to return the money, but the Company
would have none of that. Chambers knew he would col-
lect no unemployment insurance benefits after such con-
duct, and therefore, as he continued to testify, he went
to the Company to make an offer: If they would "falsify
the reasons" for his discharge, and not say he was justly
fired, in return he would give testimony at this hearing
favorable to the Respondent. He made the proposal to
Kevin Putnam, who told him to come to see his father.
When Chambers did that, there was talking between him
and the president. Just what went on between the two
that day is not possible to state with precision. Chambers
vacillated, changed his versions of this or that, so that he
cannot be believed no matter how his story be viewed.
But two facts are clear, because Putnam himself clearly
admitted them. (1) Chambers made the offer to the presi-
dent to be a pro-company witness at the hearing then
scheduled to take place 2 months later. (2) Putnam of-
fered to give him $100 a week in cash for the next 4
weeks, which he did do. Chambers found work soon and
never applied for unemployment benefits. And, as al-
ready stated, contrary to his January 1980 signed state-
ment, then gave testimony favorable to the General
Counsel.
Insofar as his testimony on direct examination in this
proceeding on the subject of coercive threats is con-
cerned, I do not believe a word out of Chambers' mouth.
His total testimony establishes only one thing, and it is
that he is an absolute liar. But as the story ended, it also
persuasively proved once again that Putnam cannot be
believed either. He fired Chambers for being a thief, and
even refused the man's offer to return the money, despite
the man's plea that he needed the job badly. Would a
rational man, in such a frame of mind, then make a $400
gift-out of pity, as Putnam said-to that same thief?
When offering the money Putnam told Chambers it was
not "connected with the Company whatsoever," and
even had the man add his signature to a self-serving doc-
ument the president made and signed-to himselfl-
saying the $400 was given in the name of charity only. I
do not know what went on between these two people
that day, but that Putnam's explanation-later both in
404
PENN COLOR, INC.
oral testimony and in written self-serving contemporane-
ous writing-discredits him in this case, is a fact of life.
E. Violations of Section 8(a)(1)
With all the foregoing being the realities as to the
credibility of the Respondent's principal witnesses, and
considering the totality of the record as well as the de-
meanor of all the witnesses, I credit the following testi-
mony by a number of employees against the denials, in
certain instances, by the supervisors they quoted.
John Smith testified that during the afternoon on June
8, after Moore had been discharged during the lunch
period, Manager Polfus:
. . .told me there was a lot of trouble going on in
the plant, a lot of guys causing trouble and that last
time we had trouble, it was really bad, and that if
the union tries to get in, he would relocate or sell
down south .... He asked me how many guys
have been signing cards, about 15, and I said no, we
have more than the majority of the plant . . . he
said I was a good worker and I had a future at the
plant.
I find that by Polfus' statement that if the union move-
ment prevailed the Company would relocate the plant
somewhere else, and by his interrogation as to how
many employees had signed union cards, the Respondent
violated Section 8(a)(l) of the Act. Seal Trucking Limit-
ed, 237 NLRB 1091 (1978).
Brad King testified that early in the morning of June
8, Polfus called him aside for a personal talk:
He said that we had messed up on your backpay.
You're due for a raise and you didn't get it . . . he
said that, he's going to give me my backpay at
times and a half .... Then he said . . . he had
heard rumors going around the plant about a Union.
He said that, the rubber workers had tried to get a
"union" in that Car-Tex and they failed. He said
that, the vote was a 120 to 30. And he said, Brad
just think, think about those 30. That would leave a
bad taste in the company's mouth. And when it
comes time for yearly raises, the company will say
f- them. Then, he said, do I know who the trouble
makers were, and I had told him no. And he says,
that the guys had taken a petition up the last time
for a union and he got rid of them. He said that, if I
find out who the trouble makers are, I'm going to
get rid of them. He said that, for me to hang around
with the bosses and the supervisors and the people
who have good influence in the company and don't
hang around with the bad influence.... He said
. . .that I'll probably be in line for a supervisor's
job if I keep up the good work.
Polfus talked to this employee again the following
Monday, still according to King:
. . .he said, that this f-ing union means my job
and if you're going to f- me, I'm going to f- you.
And then he said, I want underneath the BP
scraped, the BP cleaned out. I want the BP loaded
and dumped, I want all the drums that's in here out-
side. I want the three roll mill cleaned . . . I want
this job perfect. If it's not done perfect, you're not
doing your job . . . I'm tired of you guys f-ing
over me, the last time a guy got a union in, I got
rid of them. .... And that he don't have to fire me
for the Union, he can fire me for not doing my job.
And then he said, how is your buddy, George
Moore doing, I heard that he got fired for not
cleaning the tank.
Polfus denied having mentioned the Union or union
activities to any of the employees, or having voiced
threats in any manner. He said he first learned about the
Union's presence on Friday afternoon, after one of the
leaders had been fired. I do not credit his denials. The
only coherent explanation of his continuing diatribe in
mid-day on June 8-about "troublemakers," "weakies,"
"rotten-apples"-has to be that he knew what went on
near his home the day before. He was talking about un-
ioneers when using those words. The unending cross-ex-
amination of the three or four employees who did all the
soliciting of union cards in the parking lot, aimed at
proving none of them were there at all, was meaningless.
They did not recall it having been raining. A Depart-
ment of Commerce report showing there was light rain
in Philadelphia-30 miles away from this plant-does not
prove the contrary. The witnesses did not recall just
how many feet away they were from this employee or
that when obtaining this or that signature. They were
vague as to whether it was 3, 4, or 2 minutes before or
after 4 o'clock or 4:30 when one or another employee
signed. A year and a half after the events, irrelevant de-
tails such as these mean nothing.
When Polfus told the assembled employees on June 8
that the bad apples, or weakies, however he variously
phrased it, were troublemakers and were going to "hit
the road," or "go down the road," or "be first to go," he
was talking about the prounion employees, and he was
threatening to discharge them because they were trying
to bring the Union into the plant. I find his conduct then
was a very direct violation of Section 8(a)(1). I also find
that: (1) by his statement to Smith that the Company
would relocate before having to deal with a union; (2) by
his questioning of employees as to how many had signed
union cards; (3) by his statement to King that he would
get rid of employees who favored the Union; (4) by his
implicit promise of promotion to King if he refrained
from continuing the union activity; (5) by his statement
to King that management would utilize any mistakes in
work a man might commit as a pretext to fire the union-
eers; and (6) by his simultaneous indication to King that
in fact Moore had been discharged exactly via that tech-
nique, the Respondent violated Section 8(aX1) in every
instance.
King also testified that during the week of June 11, on
Wednesday or Thursday, Supervisor Horst talked to
him: "Dave Horst said that Steve Prebish had a petition
and that all he needed was four or five people to sign the
petition and they could go send it to the Teamsters and
they won't be able to represent the Company." This was
in keeping with the plant manager's earlier advice and
invitation to other employees; I do not accept Horst's de-
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nials. I find that by Supervisor Horst's statement to the
employee that the Company desired the signature of his
and other employees to an antiunion petition, the Re-
spondent violated Section 8(a)(l) of the Act.
Thomas Schock testified that about a week after the
card signing started, Supervisor Steve Prebish asked him
". . . would you like to sign a petition to get the union
card?" When Schock asked whether the card signers
might not then be fired, Prebish continued: ". . . no,
that's not the way it's going to work. We'll get every-
body to sign the petition and we'll get Mr. Putnam to
sign a thing that says you won't be fired and it will work
out for all of us, all of the trouble will be over with, and
plus we'll get better benefits and better pay and every-
thing." I find that by Prebish's request that the employee
sign an antiunion petition, and by his statement that
when the "trouble"-a synonym for "union"-was ended
and that the employees would be rewarded with im-
proved benefits and better pay, the Respondent violated
Section 8(a)(1). Big John Super Stores, Inc., 232 NLRB
134 (1977).
I find that by soliciting the employees' grievances
through Cozzens, beginning on June 12 and continuing a
number of Tuesdays thereafter, the Respondent violated
Section 8(a)(l). As the Board has said: ". . . there is a
compelling inference that he is implicitly promising to
correct those inequities he discovers as a result of his in-
quiries and likewise urging on his employees that the
combined program of inquiry and correction will make
union representation unnecessary." Reliance Electric
Company, Madison Plant Mechanical Drives Division, 191
NLRB 44, 46 (1971); Hanes Hosiery, Inc., 219 NLRB 338
(1975). This finding is further supported by the testimony
of employee Schock, which I credit. Plant Manager
Polfus told him during the first day of such grievance so-
licitation by Cozzens:
. . .they had brought in a new person, Larry Coz-
zens into the plant and that he was, you know,
brought specifically there to bridge the gap between
the labor and the employees, that they had realized
that they hadn't had time to do this before, but now
that all this trouble had erupted, that they were
going to try to bridge the gap between the relations
between the workers and the Company .... He
also said that . . . he had dealt with unions before
.... People that try to bring unions into the com-
pany .... He said that he had beaten these people
all the time they had gotten into a plant.
I also find that by the surprise, to the employees, grant
of substantial increases in health insurance benefits on
July 1, 1979, the Respondent violated Section 8(a)(1).
Litton Dental Products, Division of Litton Industrial Prod-
ucts Inc., 221 NLRB 700 (1975); Pedro's Inc., Pedro's Res-
taurant, 246 NLRB 567 (1979). Even assuming the Com-
pany had given some thought before June 7-the day of
the union activity-to the idea of changing its insurance
policy, it remains a fact that the decision to do so came
after knowledge of the union campaign and after the ex-
pressions of resentment about it all voiced by its supervi-
sors. Cf. Arrow Elastic Corporation, 230 NLRB 110
(1977). It will be recalled that this business of better
health benefits was one of the major gripes which the
grievance solicitor Cozzens had drawn from the employ-
ees shortly before the advantages were announced. Two
other demands by the employees were mentioned in the
record-pension and personal problems with the plant
manager. Polfus, that manager, was transferred out of
this plant, and sent to Chicago, on July 9.
I find that the Respondent discharged Moore in retali-
ation for his union activities and thereby violated Section
8(a)(3) of the Act. Its knowledge of his union activities is
clear in the light of the plant manager's outburst in the
lunchroom after seeing the solicitation outside his house
the night before. And the manager's threat, only an hour
before Moore's discharge, ties right in with the dismissal.
Moore had successfully solicited 14 of the cards already
signed.
Moore made mistakes, as he admitted. But others made
the same mistakes, as both laboratory supervisors also
admitted. It was for this very reason-that all the em-
ployees neglected the cleaning chores-that a schedule
had to be posted rotating the cleaning duties among the
entire complement. I do not believe the two supervisors'
extended story about Moore's special incompetence. As
already stated, it was a fabricated story.
When Moore volunteered it was he who had left the
tanks dirty, Rybny's reaction, according to Moore, was
"how do you like working here," and when the employ-
ee answered he enjoyed it, the supervisor said, "You
don't act like it . . . you're dismissed." Rybny's version
is that he told Moore "he didn't really like his employ-
ment . . . and that he would be dismissed from labora-
tory activities." He then added he also said "he could
perhaps be employable somewhere else in the corpora-
tion." Angry as he said he was over the "unusable" and
"contaminated" condition of the laboratory, the last
thing Rybny would do at such a moment was offer the
man another job with the same company. Indeed he
could not bring himself to admit outright at the hearing
that he had really fired the man. But the fact is Moore
was discharged that day. Rybny had never before fired
anyone in the course of his employment here, despite his
protracted story of one employee after another failing to
keep the tanks clean. And when Moore came back a few
days later hoping to get some kind of work because he
needed it, the manager refused him; among his stated
reasons was a company policy against rehiring a dis-
chargee.
All three of the management witnesses were giving
false testimony. As the Court stated in Shattuck Denn
Mining, supra at 470:
If he [the trial examiner] finds that the stated motive
for a discharge is false, he certainly can infer that
there is another motive. More than that, he can
infer that the motive is one that the employer de-
sires to conceal-an unlawful motive-at least
where . . . the surrounding facts tend to reinforce
that inference.
'Compare: Galar Industries Incorporated, 235 NLRB 28 (1978).
406
PENN COLOR. INC.
This is exactly such a case. Considering the record in its
entirety there can be no question but that the Respond-
ent would never have dismissed Moore so summarily
merely because of the not unusual condition of the sol-
vent tanks that morning. See Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980).
I find that by its refusal to bargain with the Union on
June 14, 1979, and thereafter the Respondent violated
Section 8(a)(5) of the Act. When Edward Gray, the
Union's lawyer, visited President Putnam on June 13 and
handed him a written bargaining demand on behalf of
"your production and maintenance employees," he in-
tended the Doyleston plant employees only, not includ-
ing the Flemington location employees of the Company.
There can be no question but that Putnam well knew
that. In fact all he told the union agent, after refusing to
look at the authorized cards offered for his inspection,
was that he was expecting the demand and that his
lawyer would decide. With the unfair labor practices
that were being committed during that very period, the
conclusion of unlawful refusal to bargain is compelled.
Thomas Schock
The unfair labor practices detailed above were of sub-
stance, significant restraint and coercion upon the em-
ployees' prounion resolve. Things like permanent sub-
stantial increases in benefits, discharge of a union ring-
leader, threats of further retaliation, and inducement of
the employees to put their names to antiunion petitions
go to the heart of the protection which this statute as-
sures working people. They are of the kind which the
Supreme Court, in its Gissel decision, referred to as out-
rageous or pervasive.
Some times there will be listed in the General Coun-
sel's complaint further minutiae, which are questionable
and meaningless incidents at best. One such, in this case,
involves an employee named Thomas Schock, who vol-
untarily quit the Company on July 26, 1979, the day
after transferring, at his own request, it would appear,
from Doyleston to Flemington. He had already received
a job offer elsewhere when this happened.
The complaint says the Company transferred this man
from one location to another because of his union activi-
ties, and thereby violated Section 8(a)(3). The facts-and
they are largely revealed by Schock's own testimony-
simply do not support the basic assertion of involuntary
transfer. On Friday, July 20, 1979, Schock was told to
paint the walls of one of the rooms in the plant. At break
time, with his brush still wet, he painted the number 115
(the identifying number of the Union Local of the
moment) on the wall still to be painted. Charles Wendig,
his supervisor, did not like that and asked Kevin Putnam,
then plant manager: "Can't he be fired for destroying
company property?" Putnam was not "upset" and just
told Schock to paint ovet those numbers. Wendig repeat-
ed he thought the man ought to be fired. That evening
Schock took off for a weekend at the seashore; he did
not return to work until the following Wednesday morn-
ing. He admitted at the hearing that his failure to call in
and report his absence either Monday or Tuesday was a
direct violation of plant rules. When called to the office
to explain his dereliction, and after Putnam told him "we
have enough to fire you right now," Schock said: "I
guess it will be better if you just fired me." But Putnam
responded, still according to Schock: "We don't want to
fire you right now." Again Wendig spoke of the employ-
ee's prior poor performance and repeated he deserved to
be fired in part because of the wall painting incident. But
Putnam held firm to the position that he did not intend
to discharge the man.
At this point, there is a conflict in testimony between
Schock and Kevin Putnam. Schock said he was later
called to the office again. Now Schock quoted President
Putnam as saying that while they were not going to fire
him "they felt it would be to my benefit if I went to
Flemington." Schock did that but quit the next day. As
Kevin Putnam recalled it, it was Schock who "asked me
about transferring into production." Putnam continued
that later both he and his father talked to Schock, when
the employee "said . . . his performance, he knew, was
low, was below standard. He also admitted to having a
poor attitude and, again, he thought that a change in job
position would help. My father at that time mentioned
that there was maintenance work to be done up in Flem-
ington, and asked him if he had any interests in that. He
said that he did have interest and he would like to make
that transfer." The president's version of this talk is con-
sistent with that of his son.
I find that it was Schock himself who first suggested
some kind of change in his job. On cross-examination he
admitted telling Kevin Putnam he had a negative attitude
towards the Company. This after relating how he had 3
months earlier been suspended in disciplinary action be-
cause of another offense at work. Schock also admitted
that he "suggested that a change in job position might
help your [my] attitude," and that he "should move to
production." He ended with the manager saying the only
available job was maintenance at Flemington, and, "I
said, okay, I'll go over, I'll try it."
When Supervisor Wendig asked the manager, in the
employee's presence, why he could not be fired for de-
facing company property, he was expressing an antiunion
attitude and obliquely threatening Schock with reprisal
for that reason. The idea that Schock was defacing com-
pany property was pure fantasy in the circumstances. It
was at best still another instance of a supervisor in this
plant, during that critical period, intimidating the em-
ployees to coerce them into abandoning their prounion
resolve. But it does not mean the direct testimony can
therefore be ignored. In the light of Schock's total testi-
mony, clearly it was he who asked for a change in as-
signment and who voluntarily accepted the only opening
the Company had to offer. To say the Company trans-
ferred him is a meaningless play on words. I make no
finding of illegality with respect to Schock's change of
job or departure from the Company.
THE REMEDY
The Respondent must, of course, be ordered to cease
and desist from again committing the unfair labor prac-
tices of which it has been found responsible. Affirmative-
ly, it must be ordered to bargain with the Union in good
faith on request now. It must also be ordered to offer
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore reinstatement to his old position with full back-
pay, and to post the appropriate notices. In the circum-
stances of the total case, the restraining order must be
that the Respondent not hereafter violate the statute in
any other manner whatever.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of Respondent described in section I, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By refusing to recognize the Union, on demand, as
the exclusive bargaining agent of employees in the ap-
propriate bargaining unit, the Respondent has violated
and is violating Section 8(a)(5) of the Act. The appropri-
ate bargaining unit is:
All production and maintenance employees, ship-
ping and receiving employees, warehousemen, and
truck-drivers employed by the Employer at its
Doyleston, Pennsylvania, facility, but excluding all
quality control and research and development tech-
nicians, office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
2. By discharging George Moore for engaging in pro-
tected union activity, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
3. By the foregoing conduct, and by (I) threatening to
relocate its plant because of the employees' union activi-
ties; (2) interrogating employees as to how many em-
ployees had signed union authorization cards; (3) threat-
ening to discharge employees in retaliation for their
prounion activities; (4) promising promotion to employ-
ees to induce abandonment of union activities; (5) threat-
ening to utilize mistakes in work performance as a pre-
text to discharge prounion employees; (6) attempting to
induce employees to sign antiunion petitions; (7) promis-
ing improvements in benefits and better pay as a reward
for discontinuance of union activities; (8) soliciting em-
ployee grievances to induce abandonment of prounion
activities; and (9) granting substantial increases in insur-
ance benefits to restrain and coerce its employees in their
prounion activities, the Respondent has violated and is
violating Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
408