Phillips Medical Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 944 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Philips Medical Systems, Inc. and International
Brotherhood of Electrical Workers, Local Union
No. 3, AFL-CIO. Case 6-CA-10566
August 2, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On July 28, 1978, Administrative Law Judge Rob-
ert W. Leiner issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent sells and services diagnostic and thera-
peutic X-ray equipment which it installs in hospitals
and other medical facilities. Respondent's headquar-
ters are located in Shelton, Connecticut, but the focus
of this proceeding is upon its Pittsburgh, Pennsylva-
nia, sales and service outlet.
In August, November, and December 1976, Re-
spondent hired Tom Zakowski, Richard Wall, and
Joseph Scheuring, respectively, as servicemen trainees
to supplement the existing service technician force2 in
anticipation of three large installation projects ex-
pected to begin in early 1977. 3
On March II, the Union filed a representation pe-
tition for a unit of Respondent's Pittsburgh office ser-
vice technicians (including trainees) in Case 6-RC-
7787. Pursuant to that petition, an election was con-
ducted on April 11, which the Union won by a vote
of four to one. Thereafter, on April 19, Zakowski,
Wall, and Scheuring, the trainees, were laid off, as-
sertedly for lack of work. Zakowski was recalled on
June 13, and Wall and Scheuring on November 28.
Respondent excepts to the Administrative Law Judge's failure to order
the General Counsel to produce a typewritten document which Respondent
asserts contains a statement transcribed by the General Counsel from her
original notes wich were destroyed prior to the witness' appearance. We find
that the original notes (which were not signed) did not constitute a "state-
ment" as defined in Sec. 102.118(d) of the National Labor Relations Board
Rules and Regulations, Series 8, as amenlded; therefore, a forriori, the Gen-
eral Counsel's typewritten transcription of those notes does not constitute a
"statement" that must be produced under that section.
2 The existing service technician force was composed of Gordon Ulvi, ser-
vice manager, and Jack Armstrong and Thomas Ash, who were technicians.
5 All dates hereinafter referred to are 1977 unless otherwise indicated.
Only Wall chose not to return to Respondent's em-
ploy.
The Administrative Law Judge found that Respon-
dent engaged in various 8(a)(1) violations including
threats and interrogations concerning its employees'
union activities.4 The Administrative Law Judge fur-
ther found that Respondent violated Section 8(a)(3)
and (1) of the Act by laying off its three service train-
ees because of their membership in the Union and
because the Union was selected as the bargaining rep-
resentative of the service employees. In reaching his
result with respect to the layoffs, the Administrative
Law Judge rejected Respondent's economic defense
which was essentially that there was no further work
for the trainees to do, concluding that the asserted
reason was pretextual. Although we agree that Re-
spondent committed various 8(a)(1) violations, we
cannot, for reasons set forth below, accept his holding
that the layoffs were unlawful.
With respect to the matter here under consider-
ation, the record shows () that contrary to the con-
clusion of the Administrative Law Judge, the trainees
were substantially occupied from January through
March in training work on an installation job at the
Veterans Hospital in Oakland, Pennsylvania; (2) that
the three anticipated construction projects for which
the trainees had been hired were delayed due to un-
foreseen circumstances; (3) that there was, as the Ad-
ministrative Law Judge noted, no installation work
available for Respondent's Pittsburgh office from
April to June 13 when Zakowski was recalled in an-
ticipation of the startup of one of the delayed jobs; (4)
that between June 13 and late November there was
no installation work for more than one trainee (Za-
kowski);5 and (5) that the trainees were qualified to
perform only installation work as opposed to servic-
ing and repairing equipment already installed.
Further, it appears that, when Walter Maynard,
who was responsible for the decision to lay off the
trainees, took over as district manager of the Pitts-
burgh office in early April, he noticed that the train-
ees were without regular work. After confirming the
' The Administrative Law Judge also found that Respondent violated Sec.
8(aXI) by District Manager Maynard's allegedly soliciting grievances from
the employees prior to the election, What Maynard told the employees was
to take any problems they might have with respect to company benefits to
certain supervisors. This, we find, was not an unlawful solicitation of griev-
ances and was not an offer of anything new or of any benefit employees did
not already have. It was simply an instruction about whom to talk to con-
cerning present benefits. Unlike our dissenting colleague, we find nothing
wrong in an employer's informing its employees of their present benefits
during an election campaign. Accordingly, we find Respondent did not vio-
late Sec. 8(aXI) through this statement by Maynard.
I Respondent also introduced evidence showing that at times relevant it
did not have enough repair and service work to keep its two service techni-
cians employed full time. Thus, assuming contrary to the record that trainees
could do service and repair work, they, being least in seniority, would never-
theless have been laid off as there was no need for the services of more than
two servicemen.
243 NLRB No. 71
944
PHIIPS MEDICAL SYSTEMS. INC.
lack of work, he notified the Union of his intent to lay
off the trainees. However, he delayed the layoff for
several days at the Union's request and only after
statistics again confirmed the lack of work did he pro-
ceed with the layoffs. Finally, the evidence shows that
Maynard's compensation depended in part upon
profitability of the Pittsburgh office, and that he re-
called the trainees to work as soon as installation
work became available for them.
Thus, it appears from the foregoing that the fact of
the layoff is fully explicable in economic terms: i.e.,
there was no further work for the trainees. Its timing
shortly after the election is similarly explained: The
work ran out in early April; the new manager noticed
the lack of work at that time: and he laid off the
trainees once he verified the lack of work.6 There is,
consequently, no substantial basis for concluding that
the layoff was, as found by the Administrative Law
Judge, motivated at least in part by the Union's vic-
tory in the April I 11 election. Also, the facts that May-
nard consulted with the Union prior to the layoff and
that the trainees were offered reinstatement as soon as
installation work became available undermine sub-
stantially the further contention that the trainees'
union activities played a role in their layoff. In short,
in view of the substantial evidence showing that the
layoff of the trainees was for economic reasons, we
find, contrary to the Administrative Law Judge, that
the General Counsel has failed to show by a prepon-
derance of the evidence that the layoff of the trainees
was unlawful. We shall therefore dismiss the com-
plaint in that regard.7
I The Administrative Law Judge found that. inasmuch as all three of the
hospital installations were originally scheduled for installation in January,
February, and March, Respondent must have known prior to those dates
that the projects were delayed. From this he concluded that. as knowledge of
the delays must have predated the election, Respondent would have insti-
tuted the layoffs earlier than it did if they were strictly economically moti-
vated. This reasoning overlooks the undisputed evidence that there were a
series of several delays with the early hospital installations. and that until
early April Maynard was unaware that one of the jobs had been delayed
until June. The Administrative Law Judge, in support of his Decision, also
adverts to a comment by Supervisor Ulvi to employee Armstrong that the
reason for the layoff was to protect Respondent's operating costs against
anticipated union economic demands. However, Ulvi,. aside from collecting
some statistics concerning available work, played no role in the decision to
lay off the employees, insofar as the record indicates. Also it is not clear what
he meant by his statement, especially as it appears, insofar as the record
indicates, that the trainees' recall was related solely to the availability of
work for them and not to the state of negotiations with the Union. Finally. ;n
view of the substantial evidence of a wholly economic cause for the layoffs.
Ulvi's comment is, alone or in conjunction with other matters relied on by
the Administrative Law Judge, insufficient to support a finding of a iola-
tion.
7 Our dissenting colleague's attempt to support a conclusion that the lay-
offs were unlawful ultimately encounters an insurmountable barrier in the
fact that the servicemen trainees were laid off when there was no longer work
for them and immediately recalled when it became available. Nevertheless.
our colleague finds sinister motivation behind not only the layoffs, but also
the recalls which he concluded were motivated by a desire to mitigate "dam-
ages." But this conclusion seems rather farfetched. If. in offering reinstate-
ment, such was Respondent's purpose. it seems odd that the offers were
made 5 months apart, that the first was made before the charges were filed
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Phil-
ips Medical Systems, Inc., Pittsburgh, Pennsylvania,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating any employees about
their support for International Brotherhood of Elec-
trical Workers, Local Union No. 3, AFL-CIO, their
union membership, or their union activities.
(b) Threatening employees to impose a vindictive
supervisor over them or with more onerous working
conditions if the employees joined or assisted the
Union, engaged in union activities, or voted for the
Union to become their collective-bargaining repre-
sentative, or if the Union were chosen as their collec-
tive-bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its Pittsburgh, Pennsylvania. place of
business copies of the attached notice marked "Ap-
pendix. " s Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
that is, before Respondent had any reason to believe there would be "dam-
ages" and that the latter two were made some 2 months after the charges
were filed. Obviously. the offers bore no relationship to the filing of the
charges and therefore could not have been motivated by a desire to avoid
"damages." They did, however. relate to the availability of work. In any
event. an attempt to limit potential "damages" does not establish an unlaw-
ful motive, as our colleague suggests
No useful purpose can be served in specifically considering the other mat-
ters raised by the dissent; they, too, are based on conjecture and distortion of
the facts and are in substance disposed of by the text of our Decision set
forth above.
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 Pursuant to a Judgment
of the United States Court of Appeals ntircing an Order of the National
Labor Relations Board"
945
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS, dissenting:
I agree with my colleagues and the Administrative
Law Judge that Respondent violated Section 8(a)(l)
of the Act by coercively interrogating employees re-
garding their union activities and by threatening
them with more onerous working conditions in order
to dissuade them from supporting the Union. I can-
not, however, join their unwarranted reversal of the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(l) by soliciting grievances and
Section 8(a)(3) by laying off three of the five unit em-
ployees I week after the Union won a Board-con-
ducted election. Accordingly, I dissent.
The Administrative Law Judge credited employee
Zakowski's testimony that I week before the April II
election Pittsburgh District Manager Maynard called
Zakowski into his office and "explained to me the
company benefits and said if I had any problems, I
could go talk to [field and employee Relations Man-
ager] Wolfe." Noting that Respondent had no prior
practice of soliciting employee grievances, and that
there was no express negation of any promises to cor-
rect grievances, 9 the Administrative Law Judge con-
cluded that this statement constituted an unlawful so-
licitation of grievances. I agree.
Thus, I cannot accept my colleagues' contrary con-
clusion that Maynard's statement was simply "an in-
struction about whom to talk to concerning present
benefits." Maynard, not Zakowski, initiated this con-
versation, and Maynard, not Zakowski, brought up
the subject of company benefits. Further, in light of
the fact that Respondent never before had solicited
employee "problems," the contemporaneous back-
ground of Respondent's systematic interrogation of
employees about their union activities, °0 and, particu-
larly, a similar unlawful promise voiced to Zakowski's
wife on March 23," Maynard's unlawful message
cannot have been missed by Zakowski. As noted by
the Administrative Law Judge, that message clearly
was both a solicitation of "problems" and an implied
promise to remedy them. See, e.g., Hasa Chemical,
Inc., 235 NLRB 903 (1978).
I also cannot agree with my colleagues that Re-
spondent did not violate Section 8(a)(3) when it laid
91 adhere to my view, expressed in Uurco Incorporated, 216 NLRB I
(1974), that "no promises" rhetoric is not necessarily sufficient to negate the
implication that the solicitation of grievances constitutes an implied promise
to remedy them.
io Following the advent of union activity in March. Employee Relations
Manager Wolfe flew to Pittsburgh. During succeeding weeks, he entertained
employees at company expense at various local bars and restaurants. Ex-
pense vouchers indicate that the expenditures were to "discuss employee
relations." At these outings. Wolfe and Supervisor Ulvi interrogated employ-
ees regarding their union activities and sympathies.
1 Supervisor Ulvi told Mrs. Zakowski. after asking her about the Union
and her husband's involvement therein, that her husband "had a life-time
job with the Company."
off three of the five employees in the unit I week after
the Union won the April I I election. The Administra-
tive Law Judge found that Respondent's intense
union animus, combined with, among other things,
the timing of the layoff I week after the election, war-
rants the inference that Respondent laid off the three
employees in retaliation for the Union's victory. The
Administrative Law Judge concluded that Respon-
dent's proffered "economic defense, at best, was pre-
textual." He noted that the evidence submitted by
Respondent showed a lack of productive hours
among the three least senior employees as early as
January. Yet, Respondent chose to lay off the em-
ployees shortly after the election in April.
In its exceptions, Respondent asserts that the Ad-
ministrative Law Judge misinterpreted the record in
concluding that Respondent's productive hours statis-
tics show that in April the three employees had not
been occupied substantially since January. In fact,
Respondent claims, they were engaged in training at
an installation project during that period, and that
project terminated in early April. Thus, it argues, it
thereafter had no work for these employees to per-
form. Accepting Respondent's characterization of the
evidence, my colleagues conclude that Respondent
successfully established an economic justification for
the layoff and thus rebutted the General Counsel's
prima facie case.
Contrary to my colleagues, and in agreement with
the Administrative Law Judge, I believe that the ap-
parent lack of work after April was a pretext used to
mask Respondent's antiunion motivation. Thus, as-
suming, arguendo, that Respondent would have been
justified in laying off three employees in April due to
lack of work, the record nevertheless compels a find-
ing that this was not the real reason for Respondent's
actions. Respondent, not the General Counsel, cited
the employees' lack of productive hours during the
first quarter of 1977 as a reason for the layoff. And it
introduced the discredited testimony of Maynard that
he had visited the Pittsburgh office before assuming
the district manager's job in April and had observed
employees talking and reading magazines. Yet, now it
contends that productive hours is not an adequate
measure of how the employees' time was occupied
and that the employees were substantially occupied
after all during the first quarter of 1977.2 One cannot
ignore Respondent's shifting rationalizations in this
regard." Further, although there is no evidence in the
12 Additionally. as the Administrative Law Judge perceptively noted. Re-
sp(onden( introduced no evidence to support its contention that the Pitts-
burgh office was inefficient relative to its other offices.
1 It is well settled that, when an employer provides shifting or inconsistent
business reasons for its actions against an employee, an inference arises that
the real reason was unlawful. E.g.. Ra niond C. AMl( alorrft d/ba Mac( Cuf
fert s Irish Puh. 230 NLRB 49 (1977)
946
PHIll IPS MtlI)I('AI. SYSTEMS, IN('.
record establishing precisely when Respondent
learned that the projects for which the three employ-
ees originally were hired would be delayed, as noted
by the Administrative Law Judge, Respondent must
have known it befi>re the termination of the project
upon which they were then working. And yet, the first
suggestion that a layoff was contemplated occurred
on April 12, the day after the election, when Maynard
telephoned Respondent's main office and asked
whether he could lay off three employees. Respon-
dent's labor relations supervisors' 4 then set about
compiling statistics to justify the layoff, including the
apparently misleading productive hours statistics re-
ferred to previously. After some consultation with
union officials, Respondent laid off the three employ-
ees effective Tuesday, April 19. Significantly, despite
its evident knowledge of delays in the planned instal-
lation projects, Respondent sent Zakowski to a 3-
week training course only to recall him suddenly 2
weeks early after learning of the Union's victory. And
if there was any doubt regarding Respondent's moti-
vation, Supervisor Ulvi dispelled it by telling em-
ployee Armstrong shortly after the election that Re-
spondent was going to lay off Zakowski because it
anticipated excessive union wage demands and would
need to cut costs. 5 Moreover, I am not persuaded by
the fact that Respondent recalled Zakowski in June
and the two remaining employees in November. It is
noteworthy that the Union never acquiesced in Re-
spondent's decision to lay off the employees. Ulti-
mately, it filed the instant charge in September. Thus,
Respondent's actions in recalling the employees can
be explained as an attempt to mitigate its damages,
rather than evidence of a benign motivation.
In light of the foregoing, I cannot join my col-
leagues in finding that the April 19 layoff was "fully
explicable in economic terms." Indeed, despite some
disturbing recent suggestions to the contrary,16 it is
not, nor has it ever been, the law that, because an
event is capable of being explained by business con-
siderations, an inference of unlawful intent is neces-
14The Administrative Law Judge observed that Respondent's marketing
supervisors were not consulted regarding prospects for more work.
is I must disagree with my colleagues' conclusion that this statement is not
probative of Respondent's unlawful motivation. They assert that Ulvi played
little or no role in the decision to lay off the employees, aside from compiling
some of the statistics used to justify it. If his participation in Respondent's
attempt to build a case to justify the layoffs is not enough, in itself, to
warrant an inference that Ulvi was very much involved in Respondent's
labor relations decisions, I would note that most of Respondent's unfair
labor practices involved coercive threats and interrogation by Ulvi, often in
the presence of Wolfe. Moreover, it was Ulvi who, upon first learning of the
Union's petition in March, stated: "get the paperwork ready. I'm going to
fire a couple of sons-of-bitches." Finally, it was Ulvi who in November
attempted to persuade Armstrong to seek to decertify the Union. Addition-
ally, I am puzzled by my colleagues' suggestion of ambiguity in Ulvi's state-
ment that the layoffs were the result of anticipated union wage demands.
" See, e.g., Liberty Mutual Insurance Company v. N. L R B., 592 F.2d 595
(Ist Cir. 1979), particularly the concurnng opinion.
sarily negated, especially where, as here, the record
shows that those business considerations were not the
actual basis for the employer's actions. See, e.g., Ed-
ward . Budd Alanuficturing Compane v. N.l. R. B.,
138 F.2d 86 (3d Cir. 1943)."
7 Inasmuch as my colleagues have applied a clearlI erroneous standard In
judging Respondent's actions, i find it unnecessary to answer their ague
charge that I hase engaged in "conjecture and distortllnl I the filcts."
APPl'N D)IX
NO I (E To EMPI OYIES
P(S I 11) BY ORI)ER ()F TllE
NAII()ONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WEi VILL NOt coercively interrogate employ-
ees concerning their union support, membership,
or activities.
WE WIll. NOl threaten to impose a vindictive
supervisor or to impose more onerous working
conditions on our employees if they join or sup-
port the Union, engage in union activities, vote
for the Union to become their collective-bargain-
ing representative, or if the Union is chosen as
their collective-bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Section
7 of the Act.
PHILIPS MEDI(AL. SYSTEMS, INC.
DECISION
SIAIEMINI I- I HE CASI
ROBERI W. L INR, Administrative Law Judge: The
hearing in this case was held in Pittsburgh, Pennsylvania,
on 6 days between March 7 and 16, 1978. The complaint
and notice of hearing was issued on November 29, 1977,
and was based on an unfair labor practice charge filed Sep-
tember 14, 1977. Respondent's timely answer was filed
January 6, 1978. The principal issues litigated at the hear-
ing related to the alleged commission of independent unfair
labor practices by Respondent and the alleged unlawful
layoff of three of Respondent's employees.
Upon the entire record in this case,' including my obser-
vation of the witnesses and their demeanor, and with due
consideration of the helpful post-hearing briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation having its principal
office in Shelton, Connecticut, employing about 1,500 em-
I Errors in the transcript have been noted and corrected.
947
9I)4(CISIONS O()F NA lIONAI LABOR RI.AI IONS BOARI)
ployees, is engaged in the manufacture and nonretail sale of
medical and X-ray equipment. Respondent has maintained
a sales and service office in Pittsburgh, Pennsylvania, since
at least 1972, and in some 17 other locations throughout the
United States. uring the 12-month period preceding
March 1978 Respondent has received goods and materials
valued in excess of $50,000 from points located outside the
Commonwealth of Pennsylvania, including foreign coun-
tries which were used at its Pittsburgh. Pennsylvania, facil-
ity. The complaint alleges, Respondent admits, and I find,
that Respondent is now, and has been at all material times,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE I.AB()R OR(;ANIZAtI()N INVO)I.V:I)
The Complaint alleges, Respondent admits, and I find.
that International Brotherhood of Electrical Workers, Lo-
cal Union No. 3, AFL CIO, herein called the Union. is a
labor organization within the meaning of Section 2(5) of the
Act.
Ill. TlHE At.LE(it ) UNFAIR I.ABOR PRACTI(TSL
2
A. Background
While Respondent's main office and headquarter facili-
ties are in Shelton, Connecticut, it maintains branch sales
and service offices in 22 locations (G.C. Exh. 5)3 throughout
the country. Among those locations are those in the Metro-
politan New York area, and individual locations in Phila-
delphia and Pittsburgh, Pennsylvania. The Pittsburgh office
is the focus of the alleged unfair labor practices herein. Re-
spondent sells and services sophisticated diagnostic and
therapeutic X-ray equipment which it installs in hospitals
and other medical locations and which requires the services
of trained electrical technicians both for installing new
equipment and maintaining and servicing existing equip-
ment. Respondent's servicemen service only Respondent's
equipment.
At the Pittsburgh location, Respondent, prior to August
1976, employed two servicemen, two salesmen, a service
manager, and a district manager. In August 1976, Respon-
dent hired Thomas Zakowski; in November 1976, Respon-
dent hired Richard Wall; and in December 1976, Respon-
dent hired Joseph Scheuring, all as servicemen-trainees. Its
two service technicians at all material times were Jack Arm-
strong and Thomas Ash. Scheuring and Wall were hired
because of an anticipated large amount of new installation
work commencing in the first quarter of 1977. The distinc-
2 The complaint alleges, the answer admits, evidence adduced at the hear-
ing more fully showed, and I find, that at all material times, Gordon Ulvi,
Respondent's service manager in Pittsburgh; Kenneth Wolfe, Respondent's
manager, field and employee relations, Shelton, Connecticut; and Walter
Maynard, Respondent's district manager, Pittsburgh, were supervisors of
Respondent within the meaning of Sec. 2(11) of the Act, and its agents
within the meaning of the Act. Also found to be supervisors and agents of
Respondent were Bob Zeman, Respondent's district manager in Pittsburgh,
Pennsylvania, through April 3, 1977; Thomas Mangines. Respondent's vice
president, industrial relations; Phil Chiappe, vice president, marketing; and
W. Mentha, eastern zone manager, marketing.
Five of the district offices have sales functions only.
tion between "trainees" and "field service representatives"
(service technicians) is often indistinct although the func-
tional dividing line is the ability to perform work without
consistent direction or consultation. ven the most skilled
service technician, from time-to-time, meets installation and
maintenance problems for which he needs help. In Pitts-
burgh, however, it is clear that only servicemen Armstrong
and Ash were capable of independent work in the first
quarter in 1977. The trainees, Zakowski., Wall, and Scheu-
ring, were not capable of any independent work and, at
best, worked under the eyes and direction of Armstrong
and Ash.
The complaint, paragraph 6, as amended at the hearing.
alleges independent violations of Section 8(a( I ) of' the Act
commencing on or about March 14, 1977. in that (a) on
March 14, 1977. Respondent's Supervisor Ulvi informed
the employees that they would be discharged because of
their union activities; (b) on or about March 15, 1977, Re-
spondent, by its supervisors, Ulvi and Wolfe, unlawfully
interrogated employees concerning their union activities;
(c) at or about the same time, Respondent unlawfully solic-
ited employee grievances to dissuade them from engaging
in activities in support of the Union: (d) on or about March
29 and in or about the week before April II,. 1977, Respon-
dent, by its supervisors, Wolfe and Ulvi, unlawfully threat-
ened its employees with more onerous working conditions if
they' selected the Union as their collective-bargaining repre-
sentative; and (e) on or about January 31, 1978. Respon-
dent, by its supervisor, Walter Maynard. impliedly threat-
ened an employee to give him a bad evaluation to cause
him to refrain from testifying on behalf of the Union at the
Board proceeding.
The complaint also alleges and Respondent admits that
on or about April 19, 1977, Respondent laid off its em-
ployee Thomas Zakowski, for the period April 19 to June
13, 1977, at which time he was reinstated and recalled; and
on or about April 19, laid off its employees Richard Wall
and Joseph Scheuring (admitted by Respondent) who it
thereafter failed to recall or reinstate. At the hearing, the
uncontroverted facts showed, and the General Counsel did
not contest, that employees Scheuring and Wall were of-
fered reinstatement effective November 28, 1977. Scheuring
accepted reinstatement whereas Wall apparently failed to
accept reinstatement.
On March 11, 1977, prior to the above alleged unfair
labor practices, the Union filed a petition for certification in
a unit of Respondent's Pittsburgh, Pennsylvania, field ser-
vice technicians (including trainees) in Case 6-RC-7787.
Pursuant to that petition, a Board-conducted election was
held in Pittsburgh on April 11, 1977, with all five unit em-
ployees (Armstrong, Ash, Wall, Scheuring, and Zakowski)
voting, in which the tally of ballots showed that the Union
received four favorable votes and one vote cast against
union representation. The results of this election were
known on April I 11 and the Union was certified as the col-
lective-bargaining representative of Respondent's field ser-
vice technicians (servicemen and service-trainees) on April
19, 1977.
On May 4, 1977, the Union, in Case 2-RC- 17654, filed a
petition for a unit of employees employed in Respondent's
various branch offices in Respondent's "Eastern Zone"
948
PIIll.lPS Mll)l(Al SYS1IS I S IN(
(New York, New Jersey, Connecticut, Philadelphia, Pitts-
burgh, Alexandria, Virginia, and New Orleans. ouisiana.
That petition was dismissed on June 28. 1977. apparcntl?
on the basis, inter alia, of contract bar and certification bar.
Further, the Union was defeated in an election among Re-
spondent's service employees in Philadelphia. Pennsylva-
nia, in April, 1976. and was also decertified in a unit of
Respondent's employees in Arlington. Virginia, on Septem-
ber 2, 1977.
Lastly, the evidence shows that Respondent and the
Union maintain and enforce a collective-bargaining agree-
ment covering a unit of service technicians in Respondent's
branch offices in New York, New Jersey, and Connecticut,
This agreement, expiring October 1978, provides. inter alia,
that employees who would, in each such office, be ordinar-
ily subject to layoff for lack of work, be transferred to other
of the unit facilities if there be work availabhle. Thus, the
General Counsel does not contest that this agreement
(Resp. Exh. 10: Tr. 1157-5,% specifically provides for
"bumping" rights among employees in the covered facilities
in the event of layoff. No such bumping right exists in other
collective-bargaining agreements between the parties, i.e..
in the agreement covering Respondent's Arlington, Vir-
ginia, office (Resp. Exh. I I ).
At the hearing, on Respondent's motion. I dismissed so
much of the complaint, as amended, as alleged unfair labor
practices occurring on March 14. 1977, as alleged in para-
graph 6(a) of the Complaint (Ulvi's alleged threat of dis-
charge) on the grounds that the allegation was time-barred
under the terms of Section 10(b) of the Act. This defense
attached because the charge herein was not filed until Sep-
tember 14, 1977; i.e., more than 6 months after the alleged
event. In order to have the allegation legally sufficient un-
der the provisions of Section I0(b) of the Act, whatever the
provisions of the Board's rules relating to service of the
charge, the charge would have been required to hefiled no
later than September 13, 1977. Although the matter is not
free from doubt, I continue in that ruling.' Cf. Local 1264,
Laborers International Union of North America, (J. J. Dalton
and Owen Glover db/a D & G Construction Co.), 216
NLRB 40, 43 (1975); Luzerne Hide and Tallow Co., 89
NLRB 989, 1004 (1950).
Receipt of evidence of the alleged threat is nevertheless
permitted and appropriate in order to shed light on actions
taken by Respondent within the statutory period.
Finally, at the conclusion of the General Counsel's case-
in-chief, on Respondent's motion, I dismissed so much of
paragraph 6(d) of the complaint insofar as it alleged an
unfair labor practice by Respondent's supervisor, Kenneth
Wolfe, since his statements, whatever other retaliatory ele-
ment they might contain, failed to show that Wolfe threat-
ened employees with more onerous working conditions, as
alleged.
'The General Counsel requests (Br., p. 18, fn. 35) that I not so strictl)
construe this statute of limitations and make formal findings on the merits of
the allegation. No authority for such a power of dispensation was cited
Although language in Luzerne Hide and Tallow, supra. would appear to in-
clude 6 months from the day of the event within the 10(b) period for fiing
purposes, I believe it to be an oversight. Manifestly, September 14 is the first
day of the second 6-month period in the 12-month year and thus not within
the first 6-month penod commencing March 14.
1. IThe ;I'etlts ( ommell ill atch 1) -'
Respondent's chief supervisor in It- Pittshurgh Otlice up
to the end of March 1977 was l)istrict M;nlaecr Bob Ze-
manl.il. At that time, Zemlan. it native ol( ahlornria. as rans-
terred to Respondenl's San raincisco otfice. Although there
was testimony that Zenman was "promoted" to the San
Francisco office. the record indicates that it was a lateral
transfer to that office at Zeman's request. Ihere is. in any
case, no proof that Zemt;ln was transtferred s a denlotioln or
that the transfer and Zeman's replacement was rctribu-
tion fior. or otherwise connected with. emploxces in the
Pittsburgh ofiice engaging in protected activities. I he Pitts-
burgh office, on this record, was it protitable otfice under
Zeman's adminlistration.
Effective April 4. 1977. Zeman \was succeeded ;as district
manager hb Walter May nard. Ma\ nard. until April 4. 1977.
had been employed in Respondent's home office. hbeing irst
employed by Respondent in or about 197t) and had never
before been a district manager. lie first hecalre aware o
being considered for the district mana;ger'sjoh i Pi'tsburgh
in late January or earls Fehruary 1977. ie ccepted the ob
in early March 1977 and thereafter visited Pittshburgh in
early March to meet with District M;lnager Zerman. to at-
tempt to arrange a smooth transition to his on .idlminisir;a-
tion in the operation of the D)istrict. to see how the district
manager did things. and to observe the peration at the
office. The district manager is paid a small base salarv with
the bulk of his income paid on the overall prolitabhility of
the district office. This profitability is measured by illing
and bookings in the year plus the efficiency of the district
manager's administration. When Maynard first went to
Pittsburgh in March 1977 (although Respondent maintains
travel records, the dates of Maynard's visits were unspeci-
fied) he spoke to Zeman and Ulvi. reviewed the office rec-
ords and also observed the employees in the office. He testi-
fied he found employees sitting around the offttice doing
nothing, reading magazines. having coffee, and engaging in
bull-sessions.
Respondent's service employees memorialize their dails
time usage on timesheets and, on a weekly basis. submit
them showing the various categories, including time spent
in training, assisting in sales, installation, etc. These dails
timesheets, collected weekly by the service manager. are
then forwarded to the home office at the end of the month.
Within a period of 10 days to 2 weeks, the Shelton. Con-
necticut, home office, by virtue of IBM computer readout
sheets, distributes to the branch offices, including Pitts-
burgh (retaining copies of these records ftr the home of-
fice), records showing the servicemen's time utilization.
These record also show the total "productive hours" and
the percentage of total "productive hours" in comparison
with total hours worked. "Productive hours." its used b'
Respondent, generally indicates hours of work: (1) on
which Respondent can successfully bill its customers; (2)
under the sales warranty which accompanies the sale of
equipment: and (3) on installation of equipment. This data.
in this record. is often referred to as "Service Utilization
Reports." Respondent asserts that the trainees' time, spent
in a category denominated merely as "training." ordinaril5
does not represent "productive hours."
949
):( ISIO()NS ()1 NA ()NAI IO .At()R R.A I IONS B()ARI)
I. March 14. 1977
'Ie niail wIS dclivre in Rcspondent's Pi'ttsburgh licil-
ily (which serves as hadquartrles for both service and sales
personnel) some lile in the late morning on Monday,
March 14, 1977. Respondent's office clerk and secretary,
district administrator, Virginia Surmna, opened the mail and
testified that she was shocked when she opened one piece ol'
mail and found the Union's petition in Case 6 RC 7787.
She walked hack to supervisor Ullvi's office. fi)und him com-
ing out and handed him the petition, asking him what it
meant. Standing nearby was Respondent's most senior
Pittsburgh field service representative, Jack Armstrong.
Ulvi read the documents and, according to Surma, said: "It
looks like we have some people here that aren't very happy
working here." Surma said that at this point, Ulvi returned
to his office and she did not discuss the petition with him
during the day. Surma said that in addition to Armstrong
being there, a salesman, Barras, was present and perhaps a
service trainee, Richard Wall. Ulvi testified that at that
point he told Surma: "We have a couple of people that
don't appreciate working here." Ulvi said that his recollec-
tion of these events was vague but he recalled telling Surma
that the papers would have to be forwarded to Kenneth
Wolfe, Respondent's manager of field employee relations in
Shelton, Connecticut.
According to Armstrong, he saw Ulvi look at the petition
handed to him by Surma and state: "It must be a mistake."
In any event, the testimony is undisputed that Armstrong
and Ulvi then went to lunch at a nearby restaurant where
Ulvi told Armstrong, who, at that time, was not only a
business associate, but a friend of Ulvi's, that Ulvi had
thereafter to reach Kenneth Wolfe. They then returned to
Respondent's office from lunch. Armstrong testified that he
then saw Ulvi come out of his office between 2 and 3 p.m.
and tell secretary Surma to telephone Kenneth Wolfe. She
did so. Armstrong testified that at that time Ulvi told Sur-
ma: "Get the paperwork ready, I'm going to fire a couple of
sons-of-bitches." On cross-examination, Armstrong testified
that he was not sure what the words were preliminary to the
words "get the paperwork ready," but that he did hear the
words "get the paperwork ready." Ulvi specifically denied
that he told Surma to "get the paperwork ready, I'm going
to fire a couple of sons-of-bitches."
Surma, who testified that she did not think she thereafter
discussed the petition with Ulvi that day, was not asked
whether a conversation between Ulvi and herself between 2
and 3 p.m. took place, and in any event, did not deny that
it did. Surma had been employed by Respondent (and its
predecessor) for 10 years. Neither salesman Barras nor sales
trainee Wall were called to testify at the hearing. At the
time of the hearing Wall was no longer employed by Re-
spondent.
On the basis of the entire record in the case, my observa-
tion of the witnesses, Ulvi's vague recollection, Surma's de-
votion to Respondent, on the basis of other evidence which
will be hereafter discussed, and on the relationship of the
witnesses' testimony to the underlying circumstances in the
case, I credit the testimony of Armstrong rather than the
denials of Surma and Ulvi. This resolution of credibility, as
above noted, takes into account the fact that Armstrong
and flvi are no longer on friendly terms: that Armstrong'
was chief implementer of' union activity armiong Respon-
dent's employees and that Ulvi and Surma, witnesses for
Respondent, have their own interests not consistent with
the Union or Armstrong's. Ulvi continues in Respondent's
employ as a supervisor; Surma continues in Respondent's
employ as a longtime clerk. On the other hand, it is noted
that Armstrong is not an alleged discriminatee, has no
mnonetary interest in the outcome, and, in fact, is testifying
as the chief witness against Respondent's interest while re-
maing an employee. (Georgia Rug Mill, 131 NI.RB 1304,
1305 (1961). Indeed, he was testifying against Respondent
in the presence of both its Pittsburgh supervisors, for whom
he works, and of' the vice president of industrial relations
Jl'om Mangines) and of manager of field employee rela-
tions, Kenneth Wolfe. I have also taken into account the
fact, which Respondent emphasizes (Br., p. 20) that Arm-
strong's testimony was unsure insofar as what he heard said
to Surma regarding "get the paperwork ready." His lack of
sureness apparently related to the exact words used prelimi-
nary to the words "get the paperwork ready" rather than
any doubt as to the expression itself.6 Contrary to Respon-
dent (Br. p. 29) the record does not demonstrate that Arm-
strong failed to tell union business agent (rowley of this
event, but only that he had no specific recollection of telling
him.
Even if UlJvi's version is credited ("we have a couple of
people that don't appreciate working here") there is a nec-
essary relationship between continued working for Respon-
dent and the receipt of the petition. The implication is that
the two are incompatible. That being the case, I would find,
even on Ulvi's version, that Ulvi unlawfully threatened to
discharge employees because of their union activity, in vio-
lation of Section 8(a)( I) of the Act. I conclude, in any event,
that, crediting Armstrong's version, Ulvi's remarks: "get
the paperwork ready, I'm going to fire a couple of sons-of-
bitches" constituted an unlawful threat within Section
Respondent, apart from the attacks on Armstrong's credibility based on
the record, prior Armstrong affidavits, and testimony inconsistent with other
witnesses. notes that Armstrong's demeanor on the stand was characterized
by "the classic signals of a lying witness": long pauses, down-cast head and
shifting gaze. Notwithstanding the existence of some of these elements at
times, I did note that Armstrong often was less than spontaneous. te mulled
over questions and often asked for clarification. I was confronted with the
problem of whether Armstrong's conduct, wiih the Armstrong-Ulvi relation-
ship a matter of undetnied antipathy, demonstrated scheming calculation, or
particular care. I concluded that his deliberateness did not demonstrate in-
credibility. On the other hand, supervisor Kenneth Wolfe's overly glib an-
swers, later in the hearing, on occasion, demonstrated clear lapses in his
credibility. I am not convinced that, given the best efforts of the trier of fact.
credibility determinations based principally on demeanor, clear cases apart.
represent much more than resolutions deus ex machina avoiding otherwise
exasperating credibility problems. The animus shown at the heanng, both
personal and statutory, of Armstrong, Wolfe. Ulvi and Maynard were palpa-
ble and I have tried to take this condition into account in the credibility
resolutions. Lastly I am fully aware that union animus is not unlawful.
Where Respondent asserts that Ulvi's remarks to Surma concerning "fir-
ing the sons-of-bitches," addressed to no one in particular, cannot constitute
an unlawful threat (Br., p. 26), no authonty for this proposition is cited. Such
language, so directed, is an unlawful threat under the Board rule. Such lan-
guage constitutes unlawful interference, restraint, or coercion within the pro-
hibition of Sec. 8(a I) of the Act. Rather than intent and effect, the issue is
whether such conduct may reasonably be said to interfere with the free
exercise of employees' Sec. 7 nghts. El Rancho Market. 235 NLRB 468
(1978).
95()
PHILIPS MEDICAL SYSTEMS, INC.
8(a)(1) of the Act. However, as above noted, no conclusion
of law or remedy is permitted because of the interposition
of Section 10(b) of the Act as a defense. I nevertheless find
the statement was made, and is evidence of union animus
on the part of Ulvi, an agent of Respondent.
2. March 15 and 16. 1977
In response to Ulvi's phone call to Kenneth Wolfe on
March 14. 1977. concerning the filing of the petition. Wolfe
(manager of field employee relations) flew to Pittsburgh on
the morning of March 15.
Wolfe had come to Pittsburgh earlier in the year. in mid-
January 1977, on a routine visit in order to get an update on
information pertaining to the Company's personnel in Pitts-
burgh, and, as he testified, to let the employees know that
there was someone at the corporate level to whom they
could inquire regarding their company benefits. However,
due to a snow storm in January 1977, he was unable to
meet with the employees and, because of a further expected
snow storm, he returned to Shelton with a plan to return
thereafter.
By virtue of Ulvi's phone call, he learned of the filing of
the petition and returned to Pittsburgh on March 15 and
remained there on March 16. When he arrived on March
15, he said he told Bob Zeman and Ulvi what they should
do and should not do after receiving the Union's petition.'
Wolfe admits meeting with four employees of Respondent,
except Armstrong, on the afternoon of March 15 and with
Armstrong on March 16.8 Although I credit Wolfe's testi-
mony that he would, in any case, have returned to Pitts-
burgh to inquire of employee personnel problems, I reject
his testimony that he would have returned on that date,
March 15, even without his knowledge of the filing of the
petition. Notwithstanding that he told employees on March
15 that he was in Pittsburgh as part of an ordinary annual
review, Wolfe's testimony at the hearing that he would have
in any case returned on March 15 as part of an ordinary
visit was contrary to his prior statement to the Board (Resp.
Exh. 9, para. 6, November 22, 1977) which relates that the
January snow storms caused him to reschedule his Pitts-
burgh visit to March 23-24 and March 29-31. I regard this
contradiction as substantial and adverse to Wolfe's credibil-
ity. He could have truthfully testified that he returned hast-
ily to the Pittsburgh area solely because of the filing of the
petition.
In the afternoon of March 15. Wolfe called four employ-
ees into a private office and spoke with each for about a
half-hour.
a. Joseph Scheuring
Scheuring, employed as a service trainee since December
27, 1976, testified that he "believed" he was called into
Wolfe did not detail what he told Zeman and Ulvi at that time
' Documents placed in evidence by Respondent (Resp. Exh. 6) show that
on March 16 Wolfe had lunch at a Holiday Inn near Pittsburgh with
Thomas Mangines (vice president of industrial relations). Pittsburgh District
Manager Bob Zeman. and Walter Maynard (incoming district manager in
Pittsburgh and Zeman's replacement). The subject of the luncheon was
"union organization." The matter was not further eplored at the hearing or
otherwise
Wolfe's office in the afternoon of March 14. 19777 and that
when Wolfe asked him how he liked the Company. Scheu-
ring answered that he liked it a lot. Wolfe then asked him if
he had any "problems." and Scheuring answered that he
had no problems. Wolfe then asked him if anyone else had
problems. and Scheuring answered that he did not know of
any problems of any other employees. Scheuring testified
that Wolfe then asked if he knew of anything about the
signing of cards on behalf of the Union, and that Scheuring
answered "no." Wolfe, according to Scheuring. then asked
if he knew if anyone else had signed cards. and Scheuring
answered that he did not know. Scheuring testified, and the
record demonstrates, that he never met Wolfe before.
b. The estimtons of Thoma.s Za(kosstki
Zakowski, hired by' Respondent as a service trainee on
August 23. 1976, and called by the G(eneral ounsel as its
witness, did not testify with regard to Wolfe questioning
him in the office in Pittsburgh. Pennsylsania.
c. The est.rimon of Jtac .4rn.troing
Although Armstrong admitted that his recollection of his
meeting on March 15. 1977. (actually March 16, according
to Wolfe's credited recollection) was refreshed onl, h a
conversation with his wife and that his September 26. 1977
sworn statement (Resp. Exh. 3) to the Board confuses this
March 16 conversation with Wolfe in Respondent's office
with a later conversation with Wolfe at a bar, Armstrong
nevertheless testified that he met alone with Wolfe in Re-
spondent's office in Pittsburgh, where Wolfe. whom Arm-
strong had met before, introduced himself as a representa-
tive of the Company from Shelton. Wolfe said that cards
had been filed and asked Armstrong if he had "an' prob-
lems." Armstrong told Wolfe that he previously had prob-
lems but had none at the present time.
d. The t.vlimolo v of Kenneth W1'olfi
Wolfe testified that in the office alone with each em-
ployee he introduced himself, told them of his long back-
ground in industrial relations, and that he was there be-
cause of the annual review anot because the petition was
filed. He also told them that the Company had someone
who had had their interests at heart. He had each employ-
ee's executed employment application in front of him and
testified that he told each employee of the Company's posi-
tion -that it was neither pro nor antiunion although it pre-
ferred not to deal with third parties. tie asked each em-
ployee if he had any problems with benefit plans, of their
aspirations in the Company, and told them of Respondent's
good wages and fair and equitable treatment of employees.
He asked them if they were aware of Respondent's pro-
grams relating to educational tuition and other benefits.
Wolfe specifically denied Scheuring's testimony that he
'i Wolle's estinion\ that he first met with the emploees oin Martch 15 i
clearls correct Scheuring's recoillection o the dte March 14 is crronciou
since Wolfe first learned of the petition n N .irch 14 and le, to 'ittshurrh
on the next d;la
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Scheuring whether he had signed a union card,
whether he knew of employees' signing cards, and asking
any employees if they had "other problems." He testified,
rather, that he told the employees that he heard all was well
in the Pittsburgh office, that he was surprised at the filing of
the petition, that the Respondent spent time and money
seeking an equitable relationship with employees, and that
it preferred dealing directly with employees without the in-
tervention of a labor organization.
Scheuring, who had never signed a card for the Union.
testified that he told union business representative Crowley
of his conversation with Wolfe one day after he was laid off,
i.e., on April 20. 1977. Crowley did not testify. Scheuring
testified that Jack Armstrong and Rich Wall was present
when he told Crowley of this coversation with Wolfe when
they were all in the Holiday Inn in Pittsburgh. Armstrong
did not corroborate this testimony. Wall was not called by
any party.
I do not credit Armstrong here regarding a general in-
quiry by Wolfe into his "problems" because of his admitted
confusion as to place, date, and sequence of events with
regard to Wolfe's inquiry in the private office. An inquiry
concerning "problems," without an express negation of the
inferred promise to correct grievances or problems, consti-
tutes an unlawful solicitation of grievances or complaints,
Reliance Electric Company, Madison Plant Mechanical Driv-
ers Division, 191 NLRB 44, enfd. 547 F.2d 503 (6th Cir.
1972); Hasa Chemical, Inc., 235 NLRB 903 (1978), particu-
larly where the employer, as here, had not previously main-
tained a practice of soliciting employee grievances or com-
plaints and adopted such course when a labor organization
engaged in organizational activity. The evidence surround-
ing Wolfe's January 1977 visit does not constitute, of
course, a "practice" of soliciting employee grievances or
complaints, especially since the visit was not addressed to
soliciting grievances, nor did it do so.
While I would ordinarily credit Scheuring, an apparently
guileless witness, presently employed by Respondent and
testifying directly against Respondent's interest in the pres-
ence of Respondent's supervisors, notwithstanding his
monetary interest in the outcome of the hearing, I do not
believe I can do so under the circumstances of his testi-
mony. His testimony demonstrated, not a lack of veracity
as such, but of an apparent confusion concerning events on
this point. As Respondent points out (Br., p. 106), contrary
to Scheuring's testimony, Scheuring's conversation with
Wolfe occurred before, not after, Wolfe went out drinking
with Ulvi, Armstrong, and Zakowski (see, infra); Wolfe did
not talk to Scheuring in the morning as Scheuring testified;
and Wolfe did not talk to Scheuring after Wolfe spoke to
Armstrong, but before. It also appears that Scheuring,
along with Armstrong and Zakowski, in jointly attempting
to recall the dates and sequence of events, arrived at a
jointly erroneous date of when they spoke to Wolfe. While
Wolfe may well have mentioned the filing of cards and the
petition, and, indeed, engaged in unlawful conduct else-
where, I am unable on this record to conclude that Scheu-
ring and Armstrong accurately recalled their conversations
with Wolfe in Respondent's office in the afternoon of
March 15. In addition, Scheuring testified that in April
1977, he told employees Armstrong and Wall, and union
agent Crowley. of this March conversation with Wolfe.
None of these latter three corroborated this assertion al-
though Armstrong testified and Crowley was present in the
hearing room. Lastly, if Wolfe was engaged in early unlaw-
ful interrogation concerning who signed union cards, it is
not entirely speculative to question why he did not ask
Armstrong or Zakowski the same questions which he alleg-
edly asked Scheuring.
I therefore conclude that insofar as events on March 15
are concerned, the General Counsel failed to prove unlaw-
ful interrogation on Respondent's premises as alleged in
paragraph 5(b) of the complaint. Insofar as there was also
litigated the assertion that Respondent engaged in an un-
lawful solicitation of grievances on Respondent's premises
on March 15 and 16 because of Wolfe's conduct, I find that
the General Counsel has similarly failed to prove, by a pre-
ponderance of the credible evidence, an unlawful solicita-
tion of grievances on March 15 at Respondent's premises.
3. March 23, 1977
a. The event.s at Doctor Jek)lll's bar"
Wolfe, on this record, did not remain in Pittsburgh after
March 16. He returned on March 23. Pursuant to Wolfe's
30 The complaint (para. 5(b) and (c)) alleges that Respondent, by its agents
Ulvi and Wolfe, on March 15, 1977, inter alia. at Doctor Jekyll's Restaurant
and the Living Room Lounge, in Pittsburgh, Pennsylvania. engaged in un-
lawful interrogation and solicitation of grievances. Armstrong places the
events as occurring on March 16 and Zakowski. who testified that he was not
sure of the date. as "around March 15." Ulvi places the events as occurring
on March 23 as does Wolfe. In light of the fact that Wolfe's travel vouchers
(compare Resp.'s Exhs. 6 and 7) for the periods ending March 19, and
March 26, 1977, respectively, show slight expenditure ($18.04) for entertain-
ment in the week ending March 19, and sizable expenditure ($260.55) for the
week ending March 26, I credit Wolfe and Ulvi's testimony regarding the
date of the events commencing at Doctor Jekyll's Bar and do not credit
Armstrong and Zakowski's contrary, vague recollections of the date of those
occurrences. A review of Wolfe's entertainment "expense detail" fails to
show Marybeth Zakowski present for supper at the Trolley Bar Restaurant
although it is uncontested that she was there. It shows her presence at the
Holiday Inn, but there is no testimony or other evidence regarding her pres-
ence there. Tom Zakowski testified he never met Wolfe before being intro-
duced to him at the VA Hospital before going to the Doctor Jekyll Bar and
did not testify with regard to being interviewed previously by Wolfe. Wolfe
credibly testified that on the afternoon of March 15, he interviewed four
employees (he interviewed Armstrong on March 16) for a half hour each and
specifically mentioned Zakowski. In short, I resolve the date of the occur-
rences commencing at Doctor Jekyll's Restaurant in favor of Respondent--
March 23, 1977. I1 do not, however, regard the difference in dates as substan-
tial or note that Respondent was in any way prejudiced by the variation,
To the extent. however, that Respondent relies on the similanty of incor-
rect recollections by Armstrong, Scheuring, and Zakowski regarding this
date, as creating a conspiracy to give false testimony, perhaps joined in by
the General Counsel, I conclude that there is insufficient evidence of any
such device notwithstanding that the employees who testified concerning
that date appear to have discussed the matter jointly rather than separately
and, in September 1977, while giving a statement to the Board, arrived at the
erroneous March 15 date as a matter of joint erroneous recollection. To be
sure it somewhat adversely affects their credibility. I am however, more
negatively impressed with poor and inconsistent recollections regarding the
sequence of events rather than the mere days or dates which historically are
the subjects of notoriously poor recollection. I note, in passing, that the
unfair labor practice charge herein was filed 6 months after the occurrence of
the events alleged in the complaint. In any event, I distinguish between lack
of recollection where none of the parties kept any record of the date of the
events, and occurrences where persons did keep a record of the date of the
events. The accuracy of some of Respondent's records of the presence of
952
PHILIPS MEDICAI. SYSTEMS. INC.
invitation at about 4 p.m. in the afternoon of Wednesday.,
March 23, 1977. Armstrong. Zakowski, Ulvi, and Wolfe, at
about 6:30 p.m. were present at a Pittsburgh bar known as
Doctor Jekyll's." Some time before 5 p.m., Ulvi and Wolfe
had traveled to a jobsite at the Veterans Administration
Hospital where Armstrong was working, assisted by
Zakowski. Wolfe and Ulvi asked them if they would like to
join them for some drinks. They agreed and Ulvi selected
the nearby Doctor Jekyll's bar as the rendevous. According
to Wolfe's testimony, they arrived at the bar at 6:30 p.m.
and he recalled the seating plan. Ulvi sat across the table
from Armstrong and Zakowski. with Wolfe at the end of
the table.
Armstrong testified that Wolfe said that the Union had
filed membership application cards concerning a competi-
tor, the Siemens Corporation; and that Armstrong's super-
visor and friend, Gordon Ulvi, said that, with regard to a
job in Texas in which Ulvi was interested, if the Union got
into Respondent's Pittsburgh facility, Armstrong would nei-
ther fill Ulvi's place if Ulvi went to Texas, nor would Arm-
strong be able to go with Ulvi to the Texas job. Armstrong
also testified that Ulvi said to him: "Jack, tell me, did you
file a card, that's all I want to know." Armstrong denied
signing the card, and it was at that point that Ulvi said that
there would be no opportunity to go to Texas if the Union
was voted into the shop nor would there by any opportuni-
ty for Armstrong moving up in the Company. At about this
time, according to Armstrong, Wolfe asked him: "What do
you think about a union?" Armstrong said he answered: "I
want nothing to do with the Union." He told Wolfe that he
thought that employees Richard Wall and Tom Ash had
problems and had probably filed cards. He also testified
that although on previous occasions Respondent had some-
times paid for part of the drinks, that was the first time the
Company paid for all the drinks.
Zakowski testified that at Doctor Jekyll's bar. Ulvi asked
him how he felt about the Union and Zakowski answered
that he did not know.'2
persons and the sequence of events on the evening of March 23 may have
been affected by the quantity of alcohol consumed.
I also note Respondent asserts (Br.., p. 180) that the Board agent inter-
viewed Zakowski. Armstrong. and Scheunng "jointly." The record. however,
shows that these employees may have been in each others presence when
each was interviewed by the Board agent taking investigatory statements.
but there is no showing in this :ecord that there was a group interview which
would be inconsistent with case handling instructions issued to the General
Counsel (GC Case Handling Manual 10058.3). Nowhere does Respondent
assert that even if there was a violation of instructions in the investigation of
the case in violation of the casehandling manual, there would be a violation
of Respondent's legal nghts. I agree. I do not mean to suggest that the Board
approves interviews by Board agents with witnesses other than in private
interrogation where circumstances permit. In any event. the use of the word
"jointly" to show an amalgam of testimony by these persons when giving
statements to the Board agents is not supported in the record notwithstand-
ing that these persons may have reached an erroneous joint recollection prior
to being interviewed by the Board agent.
" According to Wolfe's entertainment voucher, the cost of the evening was
posted to expenses to "discuss employee relations" (Resp Exh 7) Scheuring.
Wall. and Ash were the object of similar entertainment n the next night
2 I have already noted that Zakowski testified that he never met Wolfe
before being introduced to him at the Veterans Administration Hospital
before joining Wolfe, Armstrong, and lvi at Doctor Jekyll's. Respondent
rightly points out that Zakowski could not recall that he was interviewed by
Wolfe on March IS or that the interview took place before they visited
Doctor Jekyll's. This is a significant credibility lapse n my judgment Taken
Wolfe denies hearing Ulvi ask Armstrong if he had
signed a union card; denies hearing Ulvi sa; that there
wouldn't be an opportunity in Respondent for Armstrong if
the Union got in; denies hearing Ulvi mention the Union at
all; and asserts that only he, Wolfe. spoke of the Union at
Doctor Jekyll's. He further denies hearing Llvi mention
Texas; denies hearing Armstrong mention Texas: and de-
nies that he. Wolfe, asked Armstrong of his union activities
or what he thought about the Union. Lastly. he denies any
recollection of Armstrong telling him anything about union
activity or Armstrong speaking of other employees' "prob-
lems." With regard to Zakowski. Wolfe testified that he had
only social conversations with Zakowski and heard only
social conversations between Zakowski and Ulvi but noth-
ing regarding the Union.
Ulvi's recollection of the conversations at Doctor Jek ll's
confirmed Wolfe's testimony regarding how they met at the
Veterans Administration Hospital and Wolfe inviting Arm-
strong and Zakowski: and thereafter that the,, went to din-
ner on the evening of March 23. Ulvi testified that he and
Armstrong. at Doctor Jekyll's, talked about equipment
problems at the VA Hospital and other problems. including
the expected completion date of a job in early April 1977.
He recalled no other conversation with Armstrong but re-
called that Wolfe talked of Respondent's benefit policies.
He testified that he had no recollection of anything men-
tioned about Texas, about union cards, about opportunities
with the Company, or about the Union. Ulvi specifically
denied speaking to Armstrong about Armstrong's filing a
union card or what would happen if the Union came in.
telling Armstrong that Armstrong could not go to Texas
with him if a union were voted in, and hearing Wolfe say
anything to Armstrong regarding what Armstrong thought
of the Union or hearing Armstrong say anything of "prob-
lems" of employees Wall or Ash.
There was no dispute that there was quite a bit of noise
at Doctor Jekyll's on that evening.
At this point, Armstrong left the group. Zakowski had,
meanwhile, contacted his fiancee, Mary Beth. who then
joined them for dinner at a different restaurant.
b. Dinner at the Trolley Bar Restaurant in the Marriott
Motel
Zakowski testified without contradiction that aside from
two or three occasions when he had beer with Ulvi, he
together with the fact, as Respondent repeatedly observes. that the dating of
the occurrences rather that the misdating of the occurrences by Armstrong,
Scheuring. and Zakowski. demonstrate a lack of independent recollection.
Respondent urges that their testimony is generally not worth of behlef I do
not lightly reject this argument On the other hand. aside from the slippers
ground of observation of demeanor to determine credibility. I was impressed
with Zakowski's veracii in that he did not testify. as did Scheuring and
Armstrong. concerning any alleged unlawful conduct b Woille on March 15.
nor did he attempt to expand or embroider on Uilv's alleged question. n the
above text. concerning how he felt about the Union In ascertaining his
credibility. I also balance his testimony on the merits with Respondent's
interests and conduct Whelher his rediiliti in other ctntests is so under-
mined by the passage of time and the apparenll cooperatlve effort with
other General ('ounsel witnesses In arriving at dates oIf occurrences, above.
must be balanced against factors fatoring his recollection and his overall
credibility In view of the entire record and m observalion of Zakowski. the
underlying circumstances of the casv. and Respondent' witniesses. I credit
Zakovski's recollections In this matter
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded Ulvi as his supervisor and was not socially
friendly with him from the time he was first employed in
August 1976 until this event starting at Doctor Jekyll's.
This was the first time Respondent has paid for dinner and
drinks for him.
Wolfe had trouble recalling where he had dinner or
whether he had been at the Marriott Motel (Tr. 410). Mary
Beth Zakowski, while accurately indentifying the Trolley
Bar of the Marriott as their dining place, incorrectly testi-
fied that she danced with Ulvi there. Actually, it was at a
nightclub, later in the evening, called the Living Room, to
which the parties, except Armstrong, thereafter repaired."
c. At the Living Room. March 23, 1977
After spending time at the Trolley Bar in the Marriott
Motel, Ulvi, Wolfe. Zakowski. and Mary Beth Zakowski
went to the "Living Room" at about 10:30 p.m. and re-
mained there until midnight. As at Doctor Jekyll's and the
Trolley Bar, there was drinking.
Zakowski testified that Wolfe asked him, at the Living
Room. how he felt about the Union, thus asking him the
same question that Ulvi had asked him at Doctor Jekyll's
earlier that evening. Zakowski answered that he did not
know and that he'd have to look at the whole situation.
Wolfe also asked him who filed cards and told him that the
Respondent didn't need a union in the office. In response.
Zakowski told Wolfe that he would not "investigate my
fellow employees and tell you." At this point, Zakowski
said that Wolfe called him a "fucking coward." Thereafter,
Wolfe, according to Zakowski, "calmed down" and told
Zakowski that any information Zakowski could give Wolfe
would be appreciated.
Mary Beth Zakowski testified that she recalled only that
in the spring of 1977 at the Marriott Motel in Pittsburgh,
she was with Tom Zakowski, Gordon Ulvi, and Wolfe. She
said that Ulvi asked her to dance at the Marriott Hotel (it
was actually at the Living Room) and while they were
dancing, Ulvi asked her how much she knew of the Union,
how much Tom Zakowski knew of the Union and how
much Tom Zakowski was involved with the Union. She
said that Ulvi told her that Tom Zakowski "had a life-time
job with the Company." She also testified that when they
were at the Living Room nightclub for further drinks after
dinner, she heard Wolfe call Zakowski a "fucking coward."
Wolfe testified that he recalled seeing Ulvi dance with
Mary Beth Zakowski and that his conversation with Za-
kowski related only to Zakowski's marriage, how Zakowski
viewed his job, and Wolfe telling Zakowski of the Compa-
ny's position with regard to unions that Respondent did
not need a union and Respondent is fair and equitable in
dealing directly with its employees. He testified that they
I3Tom Zakowski testified without contradiction that he and his fiancee,
Mary Beth, did not have dinner at the Trolley Bar because they arrived toox
late. Resp. Exh. 7 entertainment expense detail) erroneously shows (a) Arm-
strong as a dinner guest at the rolley Bar where the evidence herein shoiws
he left the group at Doctor Jekyll's and (b) the absence of Mary Beth Zakow-
ski at the Trolley Bar. It also shows all parties as being entertained at a
Holiday Inn on March 23. No testimony concerning this stopover was ad-
duced. It might be added that March 23 a Wednesday. was a workday and
presumably preceded a urther workday.
left the Marriott Motel at about 10:30 p.m. and left the
"Living Room" at about midnight. Wolfe specifically de-
nies telling Zakowski that he was a "fucking coward" and
denies hearing anybody else make that remark to Zakow-
ski.
Gordon Ulvi testified that he spoke mostly with Mary
Beth Zakowski at the Living Room and recalls telling her.
while dancing with her, that Tom Zakowski was coming
along fairly nicely with the Company and would make a
good serviceman for Respondent. Ulvi testified that he had
no recollection of telling her that Zakowski had a life-time
job with the Company, and he specifically denied asking
her how much she or Zakowski knew of the Union. He
testified that there was a great deal of noise in the Living
Room but he specifically denied having heard Wolfe call
Zakowski a "fucking coward." Ulvi testified that although
he spent an hour at Dr. Jekyll's Bar, he testified he couldn't
recall what anybody said.
Although Wolfe's testimony on this point was fluid and
logical, I note that Ulvi's testimony showed either a lack of
recollection of events or of not hearing because of noise
levels. In view of the drinking that went on, starting at 6:30
and ending at midnight, as well as the fact that the wit-
nesses were testifying of events a full year ago, it is perhaps
not unreasonable to understand lack of complete recollec-
tion. It is also reasonable, however, to infer that this con-
tinuous drinking may have loosened tongues. I do not
credit Wolfe and Ulvi's testimony on this event. I was im-
pressed with and credit Zakowski's testimony and the testi-
mony of his wife. Neither was unlikely to forget Wolfe's
earthy rejoinder to Zakowski's refusal to supply the names
of the union card signers.'4 There was no denial by Ulvi of
having previously discussed with Armstrong, Ulvi's desire
to take a job in Texas and his willingness to take Armstrong
with him. Although some other of Armstrong's testimony
may have demonstrated some dramatic expansion of the
fact ("get the paperwork ready." with regard to Ulvi's
March 14 threat, supra, was not in his pretrial affidavit) I
see no reason, because of incorrect dates, Coral Gables Con-
valescent Home, Inc.. 234 NLRB 1198 (1978). to discredit
Armstrong's testimony in particular. Tom Zakowski, or
Mary Beth Zakowski's testimony in general, wih regard to
the events at Doctor Jekyll's Bar, the Marriott Motel or the
Living Room. On the contrary, their testimony, in conjunc-
tion with all the circumstances, impressed me. Thus, credit-
ing Armstrong, Tom Zakowski, and Mary Beth Zakowski.
and specifically discrediting Wolfe and Ulvi. I conclude
that Wolfe and Ulvi. as alleged in the complaint, unlawfully
and coercively interrogated its employees (and Mary Beth
Zakowski) regarding their union activities, and the activi-
ties of their fellow employees on behalf of the Union. both
at Doctor Jekyll's and at the Living Room in violation of
Section 8(a)(1) of the Act. While the dates testified to by the
General Counsel's witnesses were incorrect. I conclude that
interrogations on March 23 are within the scope of the alle-
I specifically reject Respondent's suggestion that since Wolfe was enter-
taining these employees in order to influence them in favor of Respondent's
positin against the Union. it was highly unlikely that he would so insult
Zakowski in front of. his fiancee U nder the peculiar, stressful, and heated
circumstances existing at Doctor Jekyll's and at the Living Riim. one's best
interest is not always actually served in the midst of controversy
954
P111 'PS NlFI)I('AlI SYSII MS. IN(
gations (correctly naming the placvx where the interrogation
occurred) that they occurred on March 15.
Respondent attacks Armstrong and Zakowski's credihil-
ity regarding the occurrences of March 23 at l)octor Je-
kyll's and the Living Room (Br.. . 126. cr veq. ). iler alita.
on the ground that Wolfe's whole mission that evening, to
pursuade employees to forsake the Union, would be incon-
sistent with both coercive interrogation and personal insult:
and, in addition, Zakowski's memory was poor. As I re-
marked earlier, whether the drinks or the uncooperativeness
of Zakowski in revealing the names of card signers short-
ened Wolfe's temper, I conclude that Wolfe called Zakow-
ski a "fucking coward" and that the cause of this remark
was derived from Zakowski's refusal to divulge the names
of the card signers.
Although not alleged in the Complaint, and contrary to
Ulvi's statement that he merely told Mary Beth Zakowski
that Tom Zakowski *was coming along fine as a serviceman.
I find that Ulvi, in telling Mary Beth Zakowski, after in-
quiring about Zakowski's union activities and sympathies.
that Tom Zakowski had a life-time job with Respondent.
made a promise of an unlawful benefit conditioned on Za-
kowski's thereafter not supporting the Union." The matter.
growing out of the same transaction as the unlawful interro-
gation, was fully litigated at the hearing and not the subject
of Respondent's objection (Resp. hr., p. 129). 711 l7irmken
Company, 236 NI.RB 757 (1978).
4. March 29, at the Samurai Restaurant
On the evening of March 29, 1977, all of Respondent's
service employees (Zakowski, Scheuring, Wall, Ash. and
Ash's girl friend) except Jack Armstrong, having been in-
vited by Wolfe as a group, attended a dinner at the Samurai
Restaurant. Zakowski testified that he had been invited
there by Supervisor Wolfe and had accepted immediately.',
According to Scheuring, he heard Wolfe ask trainee
Richard Wall, if Wall had signed a card for the Union and
Wall denied signing such a card. Wolfe, according to
Scheuring, then said: "I know you signed a card and I can
prove it just by going and looking at the cards." Wall told
Wolfe that there was no way he could see the cards.
Wolfe testified that he spoke of the Company's position
regarding unions (that Respondent is neither pro nor anti-
union but preferred not to have a union) and that Wall
mentioned that he was entitled to the wage rates of Respon-
dent's employees covered by Respondent's contract with
the Union in the New York area. Wolfe further testified
1 I find unconvincing Respondent's argument that since Ulvi was without
power to grant a life-time job, he did not utter the words to Mary Beth
Zakowski. I also find irrelevant the argument that Tom Zakowski was not
coerced because Ulvi spoke to his fiancee, Mary Beth, a nonemployee.
is Respondent, attacking Zakowski's credibility with regard to having been
called a "fucking coward" the week before, finds Zakowski's immediate ac-
ceptance of the March 29 dinner invitation to the Samurai Restaurant incon-
sistent with having been severely insulted by Wolfe in front of Zakowski's
fiancee only a few days before. This, according to Respondent, casts doubt
on Zakowski's credibility regarding the occurence of the insult (Resp. hr.. p
127). It may well be inconsistent, but then the relationship between employer
and employee, governing the acceptance of such an invitation from a high
official, in an organizing situation, is not necessarily an arms-tength social
transaction as Respondent's argument and observation presupposes.
that there was a legal method for his inding out who signed
cards. as he told Wall. beca;use he had seen an article in the
Wall Street Journal relating to the Freedom of lInformation
Act wherein an employer had access to the emplosees'
cards pursuant to an order of the F:ederal district court in
Philadelphia.
In anm event. Scheurine testilied that 'Wollte aiid that the
next Respondent office that voted in a union will he dealt
with "very firmly" by Respondent and that Respondent
would put its "ftiot down to make in example" so that no
other office woould consider having a union Wolfe ldenied
this testimony b Sheuring.
Scheuring further testified that Wolte then asked Wall
how much money Wall made and Wall answered that it
was $10.000 per year. It is admitted bh Wolfe that Wall
then asked him how much money Wolfe was making and
Wolfe told Wall that it was none of his business. According
to Scheuring (Wall did not testift in this proceeding) Wollfe
said to Wall: "To me. you are shit." Wall. according to
Scheuring, then angrily walked out.
Wolfe's version of the occurrence is that Wall got angr3
and left. hut notes that the conversation, having started
with Wolfe telling the employees of Respondent's philoso-
phy and Wall answering that he was entitled to the same
pay as that received b service technician trainees under the
collective-hargaining agreement covering Respondent's em-
ployees in the New York region. continued with Wolfe tell-
ing Wall that the Company was paying the correct wages in
each geographical area of the country and there was noth-
ing in the Pittsburgh area warranting the differential to the
extent of paying the Pittsburgh employees the wages in the
New York area. When Wall insisted that he should be paid
the same rate as those employees in New York. Wolfe told
him that other Local 3. IBE:W collective-bargaining agree-
ments do not contain the New York contract's wage struc-
ture. When Wall insisted that the Pittsburgh employees
were as good as those in New York and merited the same
pay scale, Wolfe replied that if the New York pay scale was
the only reason that Wall was considering joining the
Union, the New York scale was not going to be given to
Pittsburgh employees; that he. Wolfe, was going to negoti-
ate the agreement between Respondent and its Pittsburgh
employees: and he was not going to allow the setting of
such an example in the Pittsburgh office so that the Union
could organize Respondent's employees in other units.
Wolfe said that after employee Tom Ash sat down next to
Wall and said something to him, Wall's response was to get
up and say that Wolfe was "just trying to find out who
signed cards." Wolfe denies asking Wall if he signed the
card and denies telling Wall that the next district office
which voted in the Union would be dealt with severely and
that the Company "would put its foot down." Wolfe, how-
ever, admits the discussion with Wall involved their sala-
ries. He did ask Wall how much Wall was making and
admits that Wall said it was $10,000. Wolfe further admits
asking Wall whether Wall was familiar with the New York
area and telling him that Wall's wages were within the gen-
eral range of reasonable wages for the Pittsburgh area. Fi-
nally, Wolfe admits Wall asking how much Wolfe's salary
was and telling Wall that Wolfe's salary was none of Wall's
business. Wolfe denies telling Wall that he was "shit to
955
I)I('ISI()NS () NAII()ONA IAB()R RELAIIONS BOARI)
me." Wolfe testified that when Wall said Wolfe was trying
to find out who signed cards. Wolfe denied it and and told
Wall that there was a legal method for discovering who
signed the cards i he were interested but that he had no
interest in who signed the cards. Wall then said he refused
to listen to any more and stormed out.
Discussion and Conclusions
The Samurai Restaurant, March 29, 1977
Respondent urges that Scheuring's testimony be rejected
as incredible on several grounds. First, Respondent notes
(Br.. pp. 31 -33) that his direct and cross-examination are
mutually inconsistent and that such testimony is further in-
consistent with his September 26. 1977 pretrial affidavit
given to the Board (C.P. Exh. 2) and an April 20. 1977,
statement (C.P. Exh. IA) given to the Union one month
after the event. I have examined the statements. They are
sometimes inconsistent in the sense that there are variations
and even omissions in them, comparing one to the other.
Rather than detracting from Scheuring's credibility, how-
ever, these variations appear to me to support his credibil-
ity.l7 In particular, his April 20. 1977, statement distin-
guishes between, on the one hand, Respondent putting its
foot down, becoming very firm so as to make an example of
Pittsburgh so that no other office would fvor a union, and,
on the other hand, Wolfe acting as Respondent's negotiator
who would not permit Pittsburgh to receive a New York
level pay scale. This early distinction negatives Respon-
dent's argument that Scheuring was confusing the two ele-
ments. Scheuring insisted on the distinction in his testimony
at the hearing. Moreover, variations and omissions between
statements and testimony often reflects the aims and skills
of the investigator and are not necessarily of impeachable
character. International Union of Electrical, Radio and Ma-
chine Workers, Local 601, AFL CIO, (Westinghouse Elec-
tric Corporation), 180 NLRB 1062. 1066 (1970). In any
event, the variations and omissions here are not significant
except in the sense of bolstering Scheuring's credibility.
Second, Respondent would have an adverse inference
drawn from the failure of the General Counsel to call Wall
and Union Agent Crowley to corroborate Scheuring (brief.
p. 36), citing Golden State Bottling Co.. Inc., 414 U.S. 168,
173-174 (1973), and Davis Electrical Constructors, Inc., 216
NLRB 102, 108 (1975). Those cases are clearly distinguish-
able. In Davis Electrical Constructors, supra, an adverse in-
ference was drawn because the party (General Counsel)
had subpenaed an admittedly decisive witness and then re-
fused an opportunity to enforce the subpena. Here, there is
no showing that the General Counsel in any way suggested
that either Crowley or Wall's testimony was necessary to
the case. In Golden State Bottling, supra, an adverse infer-
ence was drawn in favor of the finding of "knowledge" of
the predecessor's unfair labor practices because a successor
(the respondent before the Board) professing a lack of
knowledge, failed to produce its own negotiators who dealt
1" Respondent inadvertently refers to Wall's statement to the Board as
Resp. Exh. 3. That document is Armstrong's pretnal statement.
with the offending predecessor. in both cases cited by Re-
spondent, the trier of fict correctly drew adverse inferences
where the party having an obligation to produce documents
or witnesses failed to do so. Here. (Crowley was not present
at the Samurai dinner and, while his testimony might he
admissible on the issue of corroboration of' Scheuring. the
failure to call him does not at all require an inference ad-
verse the General Counsel for failure to do so. Similarly.
through there was reason to believe Wall was available to
testil','l there was no showing of an underlying obligation
to call him. Whether trial tactics or ('rowley and Wall's
memory or cooperativeness or other reasons (including
oversight) intervened, they were not called. Surely, if after
hearing Scheuring's testimony, Respondent was confident
that Wall's testimony would not have supported Scheuring,
it could have called him. Whatever the desirability of
Wall's testimon, absent some underlying obligation for his
presence, there is no necessary adverse inference against
any party ifor ailing to call Wall or ('rowley. ('1:f. United
.4ulonohile Workers /G(vrodivne o.] v. ,I.. R.B., 459 .2d
1529 (D.C. ('ir. 1972).
F:or the above reasons, and because of the consistency of
Scheuring's testimony concerning the events at the Samurai
Restaurant with Zakowski's testimony with regard to
events. I week before, at Doctor Jekyll's and at the l.iving
Room, I see no reason to discredit Scheuring's testimony
and in fact credit his testimony concerning the events of
March 29 at the Samurai Restaurant.
Moreover, separately, I do not credit Wolfe's contrary
testimony. His somewhat fumigated version of the occur-
rence at the Samurai Restaurant admits that he stressed his
role as Respondent's negotiator which would mean that
New York level benefits would be be granted to the Pitts-
burgh unit, but denies that he said that Respondent would
put its foot down and deal severely so that no other office
would consider having a union. Such further Wolfe state-
ment appears as early as Sheuring's April 20 statement
(C.P. xh. IA) to ('rowley. Furthermore, whatever the
technical deficiencies of the April 20 statement,"9 it supports
Scheuring's testimony, contradicting Wolfe. that Wolfe told
Wall he was "shit." Here. as in the living Room incident,
supra. where Wolfe denied (and I found to the contrary)
calling Zakowski a "fucking coward," Wolfe's attempt to
make antiseptic, an otherwise reasonable loose-tongued"
heated exchange, is a discrediting element. In any event, I
credit Scheuring that Wolfe, in violation of Section 8(a)(1),
unlawfully interrogated Wall concerning the signing of a
union card, accused him of signing a card, and unlawfully
threatened that Respondent was going to "put its foot
down" and deal "very firmly" with the next office to vote in
'1 Respondent (Br.. p 371 inadvertently asserts that. referring to a meeting
of employees on March 6, 1978, the night before the hearing, at which Wall
was present, Armstrong said that "neither the case or anyone's testimon)
was discussed." Armstrong testified only that testimony was not discussed
19 Respondent points to the act (Resp. Br.. p. 38) that it was the joint
product of Wall and Scheuring and that Scheuring's original version no
longer exists.
10 The evidence was uncontradicted that Wolfe was drinking at the Samu-
rai Restaurant and Scheuring was dumping the Saki. which Wolfe poured
fi)r him, into his teacup. While there is no suggestiotl that Wolfe was drunk.
the abundance of alcohol may well have caused Wolfe to say more and
remember less than he desired.
956
P1111.IPS MEDICAIl SYSTEMS, IN('
a union so that no other office would consider voting in a
union. This conduct constituted unlawful interrogation on
the one hand and an unlawful threat of retaliation on the
other hand, both in violation of Section X(a)( I ) of the Act.
Fidelitr Telephone ('o., 236 NI.RB 166 (1978).
The complaint, as amnended at the hearing, alleges. iner
alia, that Wolfe's March 29 conduct at the Samurai Restau-
rant unlawfully threatened the employees with more oner-
ous working conditions. At the hearing, at the close of the
General Counsel's case, I dismissed so much of paragraph
5(d) as alleged that Wolfe's statements, slpra. constituted a
threat to employees of more onerous working conditions.
While Wolfe's statements clearly constitute a threat to re-
taliate. I rule and continue to rule that such a threat to
retaliate does not necessarily manifest (as the pleading
avers) a threat to impose more onerous working conditions.
Wolfe's statements fall far short of the threat to impose
more onerous working conditions.
Having credited Scheuring's testimony. I conclude that
Wolfe's March 29 statements at the Samurai Restaurant
were a threat of retaliation, an accusation of union card
signing, and manifested specific union animus.
5. Drinks at The Joshua Tree, April 4, 1977'
On or about April 4, 1977, 1 week before the April I
election, Ulvi and his wife, and Armstrong and his wife,
had drinks at a Pittsburgh restaurant known as the Joshua
Tree. In view of Ulvi's testimony which was entirely vague
as to the date of the incident. I credit Armstrong that it
occurred about I week before the April I I election. Indeed,
Ulvi testified that he recalled very little about the conversa-
tion at that time in the restaurant. He recalls that they re-
mained for an hour or two and were drinking, not dining.
Armstrong recalled that Ulvi told him at that time that
Ulvi would be ". . . very vindictive if a union were voted in
. .. if there is no vote of confidence": that when Ulvi left
Respondent and was replaced by another service manager.
Armstrong would not take his place; that Ulvi would "find
the meanest most vindictive individual to replace him, that
he could possibly find:" Ulvi specifically denies this conver-
sation. Moreover. Ulvi notes that Respondent's service
managers are selected by management in Shelton, Con-
necticut; that departing service managers do not select their
successors; and that he was never told that his recommen-
dation of a successor for the job would be given great
weight. This latter testimony requires the inference that
0l At the heanng, I permitted the General Counsel to amend par. 5(d) of
the complaint, at the close of the General Counsel's case, over Respondent's
objection, to include this incident. The testimony had been adduced on the
General Counsel's representation that it was being admitted only to show
animus and hostility and I permitted it over Respondent's objection (that the
testimony was tied to no specific allegation in the complaint). Respondent
urges it was prejudiced because, on the General Counsel's representation of
the function of the testimony, it chose not to cross-examine Armstrong's
testimony on the point (Resp. Br., p. 129). The short answer to this is that ()
Respondent neither thereafter requested to call Armstrong for further cross-
examination on the point, nor (2) cross-examined Armstrong on the point
when he again testified after the amendment, nor (3) requested an adjourn-
ment to further prepare its defense. Thus, the opportunity to examine Arm-
strong having presented itself, no prejudice to Respondent occurred.
LJlvi does have the power to recommend his successor at
least in part.
In view of LIlvi's testimony that he had nls a vague
recollection of what happened at the Joshua ree. I credit
Armstrong's version. particularly in view of the eidence
that Ulvi has a voice in the selection. he issue is what Ulvi
actually said and not whether supervisors are selected at
Shelton or the weight o Ulvi's recommendation in their
selection. Upon my observation otf the witnesses, and the
totality of events recounted above, and below. I do not
credit lvs i's denial.
Respondent correctly points (Resp. brieft; p. 133) to the
fact that the Joshua Tree incident occurred in early April.
1977, and that. in Armstrong's September 26. 1977. affida-
vit (Resp. Exh. 3) to the Board investigator. Armstrong
swore that after the March 23 incident at Doctor Jekyll's.
Ulvi "clammed up toward me because I tried to put across
the Union point of view to him .... 2: It this da3. t lvi and
I do not talk as friends." Although lvi was not seeking
information from Armstrong, Armstrong's statement might
require the conclusion that Ulvi, after March 23. would not
discuss anything about the Union with someone not his
friend. O()n the other hand, the evidence showvs that Ulvi and
Armstrong and their wives in fact did socialize at the
Joshua Tree apparently after March 23, 1977:?' and that
Ulvi and Armstrong were on speaking and drinking terms
as late as November 1977 when they spoke of union matters
at the Red Bull Inn. The facts thus defeat Respondent's
logic and Armstrong's own September 26 assessment of his
relationship with Ulvi.
Thus. as alleged in paragraph 6(d) of the complaint, as
amended at the hearing. I conclude that on or about April
7, 1977. Ulvi threatened Armstrong with the imposition of a
supervisor who would be mean and vindicriv. thus "a more
onerous working condition" if the Union were voted into
Respondent's bargaining unit. Such a threat of more oner-
ous working condition violates Section 8(a)( I of the Act as
alleged.
C. The Alleged Implied Bad Evaluation o J4 rmvLroXig on
Januar 31. 1978
Paragraph 6(e) of the complaint, added at the opening of
the hearing after prior notice. alleges that on or about Janu-
ary 31, 1978, Respondent. by Walter Maynard. violated
Section 8(aX I) of the Act by: "impliedly threatening to give
an employee bad evaluations after the hearing [in this in-
stant casel in order to dissuade employees from engaging in
[union activities) and from testifying at an NLRB hearing."
The evidence is uncontradicted that twice each year. at 6-
month intervals. Respondent regularly evaluates, in writing.
the work of its service technicians and trainees. The evalu-
ation is performed by the service supervisor. Gordon Ulvi,
and is then submitted to the district manager on a form
12 There is nothing at all inconsistent. as Respondent suggests (Br.. p. 133).
between Armstrong urging the Union's point of view at Dctor Jekyll's and.
at the same time. falsely advising (as Armstrong admitted) patently antl-
union supervisors that he did not want anything to do with the I nion
" Ulvi's vague recollection was that the Joshua Tree incident occurred In
March I have credited. supra, Armstrong's recollection that II occurred in
early April
957
I)I8('ISIONS ()OF NAII()NAI. LABOR R.A I()ONS BOARI)
provided hby Respondent for further conment and for fr-
warding to Respondent's home oflice. Among other things,
merit raises and upward changes of status in employment
are based on lavorable evaluations. Indeed, prior evalu-
ations of Armstrong by .ltvi were placed in the record and
demonstrated llvi's estimation of' Armstrong as nothing
short of a superlative and remarkable employee in terms of
attitude and aptitude. The evidence is also clear that the
time for Armstrong's September 1977 evaluation by lilvi
went by without the evaluation being made or discussed
with Armstrong and that some time in November 1977 Ilvi
executed a preliminary draft of this evaluation. The evalu-
ation was not submitted in November nor was it submitted
thereafter. Moreover, no subsequent semi-annual evalu-
ation of Armstrong has ever been made or forwarded to
Shelton.
On January 31, 1978, the new district manager, Walter
Maynard, called Armstrong into his office and said that
Ulvi had executed a derogatory evaluation which Maynard
did not want to send along to Shelton, Connecticut. Arm-
strong said that Maynard said he wanted to keep a "low
profile on it" and wanted to wait "until the near future
before [Maynard] made a decision on it." Maynard, accord-
ing to Armstrong, could not understand Ulvi's bad evalu-
ation and Maynard said that Armstrong was a good
worker.
Maynard testified that he told Armstrong that the evalu-
ation was overdue but no longer had any monetary effect
because of the advent of the Union and he wanted an op-
portunity to evaluate Armstrong since Ulvi was leaving the
office. Maynard denied saying anything about maintaining
a low profile.
Armstrong testified that the evaluation, ordinarily due in
September 1977. had been the subject of a conversation
between him and Ulvi at the Red Bull Inn restaurant in
November 1977. In that conversation, Ulvi told Armstrong
that he had not filled out the evaluation. Around Christmas
1977, while Armstrong, along with office clerical Surma,
were going through Armstrong's personnel jacket for pur-
poses of discovering whether Armstrong had authorized
certain deductions from his pay, Armstrong saw the Ulvi
evaluation in which Ulvi said that Armstrong was "dis-
loyal" to Respondent. Ulvi's evaluation notes a "complete
change in Jack's attitude and loyalty" (Resp. Exh. 16), and
recommends against promotion.
The General Counsel asserts that the necessary implica-
tion of Maynard's conversation is that Respondent was
threatening Armstrong with a bad evaluation to cause him
to refrain from testifying on behalf of the General Counsel
and in order to dissuade him from supporting the Union or
engaging in activities on its behalf.
The uncontradicted evidence is that Armstrong was, in-
deed, a remarkable employee not only regarding technical
skills but, in addition, on several occasions, he had worked
entirely without pay and performed services for Respon-
dent when he was not only working during regular hours
but on overtime. Indeed, Armstrong admits that subsequent
to the layoff of employee Tom Zakowski, whom he had
interviewed and recommended for hiring, infra, his attitude
changed whereby he was no longer working without pay
and would no longer demonstrate the same spirit of volun-
teerism he had previously demonstrated. lie did this be-
cause, he said. he regarded the layoff of Zakouski (and
Zakowski being removed from the training school in ('on-
necticut., ir), as being unfair and demonstrating Respon-
dIenl's bad aith.
Ulvi admitted that, consistent with his practice, he nei-
ther showed nor discussed the evaluation to Armstrong and
that Armstrong nmanif'ested a change in his attitude, first
noticed in April or May 1977. Llvi ,aid that Armstrong no
longer performed up to his I I) percent of capacity and no
longer reported lor work 1/2 hour early and began watch-
ing the clock. Finally, Ulvi testified that he told Armstrong
in May or June 1977 that he should revert to his old self but
there was no change.
Under the circumstances of this case, especially Arm-
strong's superlative qualifications and his excellent attitude
prior to the April II. 1977, union election, there would be
no reason why, if indeed Armstrong's attitude and perform-
ance did slacken off Ulvi did not adversely report on it and
send it along to Shelton. The reason that is most apparent is
that Respondent was seeking to avoid a bad report being
sent to Shelton because it wished to avoid further break-
down of relations with a superlative employee. Such an ex-
planation does not support the implication that one of the
reasons for avoiding further deterioration of relations with
such an employee was because of the union election and
Armstrong's union sympathies and, in addition. to have
Armstrong not testify on behalf of the Union. The basic
issue is whether the evidence shows that a substantial link
between what Maynard said and the delayed sbmission of
the evaluation contains an unlawful motive. I conclude that
the evidence in support of the General Counsel's position,
while perhaps somewhat suspicious, does not preponderate
in favor of the conclusion that Maynard was attempting to
blackmail Armstrong with the withdrawal of a bad recom-
mendation based upon Armstrong's discontinuing support
for the Union or with regard to his anticipated testimony.
While I regard such an inference as perfectly reasonable
under the circumstances of this case. I regard that inference
as not having been supported with sufficient proof. Arm-
strong admitted his changed attitude. Thus, the accuracy of
Respondent's evaluation of Armstrong is not in issue, only
the motive of Respondent's delay in forwarding the evalu-
ation. While I regard circumstantial evidence to be as con-
vincing as direct evidence, and while I do not regard May-
nard's failure to explicitly condition the sending along of
the evaluation on Armstrong refraining from Union or pro-
tected activities, I regard Respondent's conduct in this mat-
ter to be at least as consistent with the desire not to further
antagonize its best employee as with an attempt at such
blackmail. I therefore recommend that the complaint, inso-
far as it alleges, in paragraph 6(e), that Respondent im-
pliedly threatened to give Armstrong a bad evaluation be
dismissed as not proven.
It should be noted that the bad evaluation was already
executed by Ulvi some weeks before Maynard spoke to
Armstrong and there is nothing in this record to indicate
that Maynard's deliberation over the bad evaluation was a
secret message to have Armstrong withdraw his support for
the Union. While the use of the ominous word "disloyal" to
characterize Armstrong might be suggestive of Respon-
958
PHILIPS MEDICAL SYSTEMS. INC'.
dent's union animus, I have weighed such expressions along
with my observation of the witnesses and my analysis of the
circumstances in reaching the above result wherein I rec-
ommend dismissal of that paragraph of the complaint as
unproven.
D. The Alleged Solicilation of Emtlvn 'ee Grietances
Paragraph 5(c) of the complaint alleges that Respondent.
on or about March 15 and 16 at Doctor Jekyll's Restaurant,
by Supervisors Ulvi and Wolfe, supra, and at Respondent's
Pittsburgh facilities, by Supervisor Wolfe; and in or about
the beginning of April. by Supervisor Maynard at Respon-
dent's Pittsburgh facility, unlawfully solicited employee
grievances in order to dissuade them from engaging in ac-
tivities in support of the Union.
The solicitation of employee "problems" by Wolfe, on
March 16 in Respondent's office, has been dealt with above.
One week before the election of April II, Maynard called
Armstrong into his office and, with no one else present, told
him that the Respondent did not "need any problems in
Pittsburgh" and that it was unfortunate that he (Maynard)
could not put his ideas on running the branch into opera-
tion. Armstrong testified that Maynard said that his "hands
were tied." This phrase, "his hands were tied." contrary to
Armstrong's version on direct examination, was admittedly
not in his pretrial statement given to the Board. Even cred-
iting Armstrong, such statements by Maynard do not con-
stitute unlawful solicitation of grievances.
Zakowski testified that I week before the election, he was
called into Maynard's office where Maynard not only ex-
plained the Company's benefits to him but told him that if
he had any problems he could go to Wolfe with them.
Maynard denies calling employees into his office about a
week before the election and recalls no conversation with
Zakowski at that time regarding company benefits. May-
nard testified that he did recall speaking with Zakowski
about benefits after Zakowski got married in October 1977.
at which time Maynard told him that the Company's bene-
fits were listed in the Company's benefit manual and that if
Zakowski had any questions about them, that he could
come to see Maynard or Wolfe for the answers.
As I previously noted, there was no showing of a prior
practice of soliciting employee grievances or of any express
negation of correcting employee complaints. Rather, here,
Respondent. on or about April 4, 1 week before the elec-
tion, was inquiring into employee "problems" along with
recent overt, coercive interrogation concerning union card
signers and employee union sympathies.
I credit Zakowski that Maynard, about I week before the
election, and not in October 1977 told him to seek Wolfe's
help if he had any problems with company benefits. I do not
credit Maynard insofar as he testified that he told Zakowski
to seek Wolfe if he had any "questions" concerning com-
pany benefits.
I therefore recommend, on Zakowski's credited testi-
mony, that insofar as paragraph 6(c) alleges that Maynard,
in early April 1977. unlawfully solicited employee gries-
ances to dissuade employees from supporting the Union. it
be found to have been proven by a preponderance of the
credible evidence and that such conduct, as alleged. violates
Section 8X(a)( I) of the Act. Insotar as paragraph 6(c) of the
complaint alleges that Ulvi or Wolfe participated in the
solicitation of grievances, I recommend that the complaint
be dismissed since the allegation was supported by no
proof.
E. The l.avtofv Of Zao ki. all, and Schlurmlg on April
/9. I77
The complaint alleges that on or about April 19. 1977.
Respondent laid off Thomas Zakowski until on or about
June 13, 1977, when he was recalled to his former employ-
ment, and that on or about April 19. 1977. Respondent laid
off Richard \ 'all and Joseph Scheuring and failed to recall
them. In fact, immediately before the issuance of the com-
plaint, Wall and Scheuring, on or about November 28.
1977, had been recalled to their former positions of employ -
ment. The General Counsel does not contest that the' were
reemployed and reinstated as of that date.
Respondent conceded at the hearing that aside from the
three individuals allegedly unlawfully laid off in the instant
case, only eight other employees were ever laid off bh Re-
spondent: and these employees, employed in Respondent's
New York office. were laid off in February and March
1976. and were recalled thereafter in the period February
through July 1976. In all these instances, it was conceded
that the reason for the layoffs was insufficient work.24
Armstrong testified that in April 1977. shortl) after the
April II election, he had a conversation with Gordon lvi
in Respondent's office in the middle of the da. lvi told
him that Respondent was laying off Zakowski notwith-
standing that Zakowski was then attending Respondent's
school in Shelton, Connecticut, because the advent of the
Union would mean higher wages. and, considering the fixed
budget on which Respondent's district offices operate. Re-
spondent would keep the overhead cost down bs laying
employees off. This testimony is uncontradicted and I credit
it.25
z4 he evidence shows that the employees laid off at Respondent's New
York Office were. unlike the instant employees transferred or reassigned to
other offices In the New York area At he hearing, the General ('ounsel
adduced considerable proof with regard to the problem Ao wh, the emplos-
ees who were laid off out of the Pittsburgh office were not reassigned The
reassignment in New York of laid off employees, however, was effectuated
pursuant to the express terms of a provision in a collectise-hargaining agree
ment between Respondent and the Union (see "Background" above) The
evidence shows that Respondent does not transfer or reassign emplosees
with miidest technical skills regardless of their classification. Thus. the prool
adduced by the Genera! Counsel that Armstrong, on one *'casioiI. w hile tll
in the technical status of "trainee" was reassigned to Respondentl' New
Orleans office does not demonstrate that "trainees," rather than being laid
off, are transferred or reassigned on a temporar hbasis hb Respondent
Rather, the evidence demonstrates that Armstrong was a particular case In
that his technical skills were outstanding so that even as a "trainee" he ,iuld
be reassigned In any event. the (;eneral Counsel appears to have abandonied
that Issue by virtue of1' its omission in her post-trial brief.
25 Although llvl testified at great length and made mans specitic denims
ofl Armstrong's testimon). he ftailed to dens the above testimoni Respon-
dent here, as elsewhere, attacks Armstrong's testimon.n as incredible bec.iiuc.
iner li, Ao' Armstrong's alleged self-contlradliction and the inconsislencs of
testinmony between Armstrong and other of (General ('ounsel's witnesses
(Res\p Br. p 7X) A close reading oft the record. however, disclose, hat it is
iar Irom certain that tIvl had nl. one consersation with Arimstrong
wherein the la.olffs were discussed and where Scheuring wvas present l'hus.
( rlliipi..i'd
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In fact. Ulvi had scheduled Zakowski to commence the
"Basic I" course in Shelton on April 1 I for a succeeding 3-
week period.2 6 The "Basic I" course, held in Shelton, Con-
necticut, at the main office is for trainees and is 3 weeks in
length. Trainees attending such a course are paid their nor-
mal wages while attending the school along with compensa-
tion for their meals, hotel, and transportation costs. Zakow-
ski left for Shelton on April 1 I after the voting showed that
the Union had prevailed in the election. On April 18, Ulvi
communicated with Zakowski in Connecticut and told him
to return immediately to Pittsburgh after Zakowski had
been up there only I week. Ulvi testified that he made the
decision to send Zakowski up to the school, but did not
make the decision to recall him. That decision was relayed
to him on April 18 by Maynard. He testified that Maynard
made the decision and Ulvi did not recall why he did not
ask Maynard to let Zakowski finish the school term.
Ulvi testified that there was a large slowdown in activity
in the Pittsburgh office in the period January through July
1977, and recalled that he first heard of the layoffs, which
occurred on April 19, in the week preceding the layoff. i.e..
on Thursday or Friday. April 14 or 15. He testified that on
Thursday or Friday,2 April 14 or 15 (he thereafter said it
Scheuring spoke to Ulvi about the layoffs while working on a TV monitor.
Scheuring mentioned two conversations regarding the layoff. Armstrong's
testimony described only so much of Ulvi's statement which related to the
person (Zakowski) Armstrong was interested in: and this occurred while
Scheuring and Wall were unloading tools, not while either of them or both of
them were working on a TV monitor. Lastly, contrary to counsel's assertion
at the hearing, no one put words into Armstrong's mouth or mischaracter-
ized his testimony. The record plainly shows that Armstrong testified that
Ulvi said he could "understand Philip's reasoning for laying Zakowski off"
and not, as counsel argued, that Armstrong said that Ulvi had merely stated
he could "understand the Company's laying off Zakowski." Thus, contrary
to Respondent's argument (Resp. Br., p. 83), Armstrong's testimony, which I
credit, demonstrates that Ulvi was aware of Respondent's reasoning with
regard to the layoffs and was not merely "voicing his own appraisal of the
situation rather than stating a policy or intent of the Company." Mississippi
Tank Company, Inc., 194 NLRB 923, 925 (1972), relied on by counsel for
Respondent, is thus inapposite.
26 The date on which Ulvi first notified Zakowski of his future attendance
at the "Basic I" course does not appear in the record nor does the date when
Ulvi first decided that he would send Zakowski to Shelton.
7 His testimony is as follows:
Q. (General Counsel) When did you first hear about the layoff?
A. ... during the week of April the 11th.
JUDGE LEINER: April 11 is what day?
ULVI: That was on Monday, but that wasn't the day I heard it or
learned of it.
JUDGE LEINER: When did you first learn of an intent to lay them off,
what day?
ULVI: The 14th or 15th.
JUDGE LEINER: What happened on the I Ith?
UtLv: The I th was the election date.
MR. GARTNER: He didn't say anything happened on the I Ith, I really
must protest.
JUDGE LEINER: I thought that he said that he heard....
MR. GARTNER: He said it was the week of the I Ith.
JuDGE LEINER: And the election was when?
ULvi: The 11th.
JUDGE LEINER: Some time during that week. you say you heard of the
intent to lay them off?
Ul.vi: Yes.
JUDGE LEINER: When?
U.vi: The 14th and 15th, which was Thursday or Friday.
MR. GARTNER: From whom did you hear of this intent?
Ul.vi: Mr. Maynard . . . he asked me to inform him or let him know
exactly how many people I needed to operate the office, at the present.
with the present work load.
might have been as early as April 13), District Manager
Maynard asked him how many employees were necessary
to operate the office and he told Maynard that only two
servicemen were necessary. Maynard testified that he had
this conversation with Ulvi on April 12, 1977, on the same
day that he calculated that Respondent's Pittsburgh office
required only 1.3 employees for the performance of all
regular work (Resp. Exh. 18). Maynard said that he pre-
pared that document (Resp. Exh. 18) on the date which
appears on its face. April 12. 1977. immediately after which
he spoke with Ulvi, as service manager, who told him that
only two employees were necessary to perform the service
work of the office. Although Maynard testified that he
made several analyses of the utilization of employees in the
Pittsburgh office, his testimony in unclear as to how many
analyses he actually made and, more important, when he
made them.
Maynard. employed by Respondent in its Shelton office
for about 8 years, first became aware of being considered
for the district manager's position in Pittsburgh in late
January or early February 1977, accepted the job in early
March 1977, and came to Pittsburgh on several occasions in
March 1977 in order to visit the existing district manager to
determine "what the situation was" and to effectuate a
smooth transition between the regimes. He said that he
wanted to see how the old district manager did things and
to observe the operation of the office.
The district manager is paid a small salary and earns the
preponderance of his income based on the office's overall
"profitability." The "profitability" is a product of the busi-
ness performed in the office in terms of billings and book-
ings and also includes the element of' the district manager's
efficiency in handling variable costs, i.e., keeping expenses
down. After accepting the job, after which he visited the
office in the first week in March and again in the last 2
weeks in March 1977, Maynard testified that he found em-
ployees sitting around the office and doing nothing. He
also testified that he did not discuss2 9 this state of affairs
with the employees, the service manager, the district man-
ager, or report this to the home office in Shelton, Connecti-
cut. In view of' the evidence showing employees sitting
around for only a few minutes and in view of Maynard's
failure to immediately report or counteract what he consid-
ered to be poor employee utilization in the Pittsburgh office,
I regard his testimony with regard to the idleness of em-
ployees and his observations thereof as not only somewhat
exaggerated, but inconsistent with ordinary employee ac-
tivity in the Pittsburgh office, such as taking coffee breaks,
and from time to time, reading magazines and talking
among themselves.
:8 On cross-examination. Maynard testified that he saw Wall doing noth-
ing for less than I hour; and Zakowski for 5 minutes; Scheuring "perhaps
less than an half an hour"; and then: "Exactly how man) hours did he
observe Mr. Zakowski doing nothing in March? ... A. I do not recall." The
evidence shows that there is no established coffee or "breaktime." that em-
ployees take coffee and read magazines and talk throughout the day.
29 Maynard also appeared to testily to the contrary:
From the time that I came there on the 4th of April and as a matter of
fact during a couple of visits prior to that I had seen a lot of people
sitting around and doing nothing and I proceeded to make a lot of
esaluations. I proceeded to inquire as to hv there seemed to , he , little
going on. . Emphasis supplied.)
960
PHILIPS MEDICAL SYSTEMS. INC.
The evidence, recapitulat
each service employee and
sheet to the service manag
them on a monthly basis to
cate how each employee's
week. Certain elements of
work performed for a custo
ranty is billable to the custo
pursuant to the sales warr
billable work, as "productiv
dent's definition. Similarly,
considered "productive" as
regard to the billing of custc
work is not itself billable t
time spent by the employees
"training." or on "standby
the definition "productive
April 12, 1977. was derived
out (Resp. Exh. 19) of the
period January through the
printouts, as above noted,
by the Pittsburgh district
timesheets.
Respondent's analysis (R.
"productive hours" for the
18, 1977, of the three emplo
Wall) laid off on April 19 s
1. J. Scheuring
(Resp. Exh. 20).
Total Prod. Hours
Percent Prod. Hours
2. T. Zakowski
(Resp. Exh. 21):
Total Prod. Hours
Percent Prod. Hours
3. R. Wall
(Resp. Exh. 22):
Total Prod. Hours
Percent Prod. Hours
11
* Zakcaski was at the Bas:
11-18 and laid off on
As above noted, whereas
suited with Ulvi on Tuesd
calculations (Resp. Exh. 18)
1.3 employees to run Resp
eration, Ulvi testified that
until Thursday or Friday, A
told Ulvi he was considerin
of a delay in installations a
shows that delays in install
three hospitals. and that the
the installation. There is ni
spondent learned of the de
delayed hospital installatior
installation in January. Feb
ed from above, also shows that on this record, Respondent must have known, prior to those
trainee submits a weekly time- individual dates, that the installations would not occur at
er. Gordon Ulvi. who submits those times and would. indeed, be delayed.
Shelton. These timesheets indi- Ulvi testified that the three trainees were laid off because
daily time was spent during the the anticipated increased workload failed to materialize.
the employee's time, such as that he first discovered that the workload was not going to
imer not pursuant to sales war- materialize in March 1977. and that the Pittsburgh office
)mer. However. work performed had been overstaffed since December 1976. 1 assume that
anty is considered, along with Ulvi's use of the word "overstaffed," in context, meant that
'e hours," according to Respon- Respondent had anticipated a great number of installations
the installation of machinery is commencing in the first quarter of 1977 and had hired at
well as certain office work with least two (Wall and Scheuring) of the three trainees in an-
)mers notwithstanding that such ticipation of that workload.
othe customer. However, other In any event, Maynard testified, and Vice President
s. such as being on holiday, or in Mangines and Kenneth Wolfe corroborated, that on April
status" is not included within 12, 1977, the day after the election. Maynard telephoned
hours." Maynard's analysis of from Pittsburgh and wanted to know whether he could lay
from Respondent's IBM print- off three employees for financial reasons." Maynard men-
servicemen's timesheets for the tioned in his call from Pittsburgh that he wanted to lay off
end of March 1977. The IBM three employees. but asked for suggestions in view of the
ire the result of the submission fact that Respondent had lost the election the day before.
office of its employees' weekly Mangines told him that he would first have to check the
Pittsburgh statistics on which the economic layoff was
esp. Exh. 20. 21. and 22) of the based and thereafter would have to check with outside
period January I through April counsel before permitting the layoff. Mangines checked the
iyees (Zakowski. Scheuring. and nationwide statistics on productivity of Respondent's ser-
hows: vicemen, in general, and also the Pittsburgh servicemen,
found that Pittsburgh servicemen were under-utilized and
thereafter also consulted with Respondent's counsel. There-
Jan. Feb. Mar. Apr. after, on April 14. he told the Union that he wanted a meet-
Ing.
4.0 4.5 2.5 9.5 On Frida,. April 15, Mangines and Wolfe met briefly
2. 2 1.9 6.3 6. 4 with Union Agent Crowley at Newark Airport and told
him that Respondent was anticipating laying off three ser-
7.00 117.00 57.0 9.0* vicemen in the Pittsburgh office for financial reasons. Crow-
52.6 49.2 31.8 6.6 ley told Mangines that if the layoff was for financial reasons
there was nothing he could do about it. Mangines contacted
19.00 8.5 10.0 20.0 the Union on the advice of counsel who told him he was
27.7 33.7 5.4 13.8 obligated to discuss the layoff with the Union. Crowley
ic I course April
cpril 19. asked for several days of delay before the layoff was to
occur and Mangines agreed. On Monday, April 18, Crow-
ley telephoned Mangines and said that the employees had
told him that they were busy. Mangines said that the statis-
Maynard testified that he con- tics showed that they were not busy. Crowley replied that
ay. April 12. after making the the statistics were in error and that employees' time was
) showing the necessity for only charged against wrong accounts. Wolfe checked the statis-
ondent's Pittsburgh service op- tics and thereafter called Crowley, confirming that the sta-
he did not speak to Maynard tistics showed that the employees were not busy. He told
.pril 14 or 15." Maynard said he Crowley that Respondent would proceed with the layoff.
ig laying off employees because Thus, on Friday, April 15, Mangines telephoned May-
and lack of work. The evidence nard in Pittsburgh. told him of having met with Wolfe and
ation of equipment occurred in Crowley, and having told Crowley of the impending layoff.
e hospitals caused the delays in Mangines instructed Maynard that the layoff was permit-
o showing, however, when Re- ted. but was to be delayed until April 18. On April 18,
lays. However, all three of the Maynard instructed Ulvi to lay off the employees the next
ns were originally scheduled for day. On Tuesday, April 19. the employees were laid off. On
bruary, and March 1977. Thus,
°The three trainees were laid off. according to Vice President Mangines,
because the records for the Pittsburgh office showed that the employees
failed to demonstrate sufficient productive hours.
1" Maynard testified that it was he who first raised the question of what the
reaction of the Union might be with regard to these laboffs: Wolfe's testi-
mon) appears to indicate that it was he. rather than Mabnard. who first
raised the question
961
j
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 18, Ulvi had called Zakowski in Connecticut and told
him to return at once. He did so.
On Monday, April 18, Scheuring and Wall were called
into Ulvi's office where Ulvi told them that they were being
laid off because of lack of work during the slow period.
Thereafter, because of the need for a single employee to
perform an installation in July at the Ohio Valley General
Hospital, Maynard told Ulvi to recall Zakowski, the most
senior man on layoff, on June 13, 1977. This was because
the Ohio Valley General Hospital installation was to be
installed at the end of June and Zakowski was recalled 2
weeks before the installation date in order to have him pre-
pare himself and his tools. However, it was thereafter
learned that the hospital installation would not be ready
until July. Rather than lay Zakowski off again, he was re-
tained until the actual time of installation.
After recalling Zakowski in June 1977, Respondent sent
letters in mid-November 1977 to Wall and Scheuring for
their return after Thanksgiving because two other installa-
tions (Blair Hospital and St. Francis Hospital), delayed
since the beginning of the year, were ready. Both had been
scheduled for installation originally in December 1977. The
record is uncontradicted that in the period April through
November 1977, there were no installations available to Re-
spondent out of its Pittsburgh office except for minor ad-
justments. The only installation that did occur was that of
the Ohio Valley General Hospital in which Tom Ash was
the installing technician, assisted by the newly recalled Za-
kowski. The job took about 13 to 14 weeks for completion.
The only exception to Respondent not having work in
the summer of 1977, aside from the Ohio Valley General
Hospital job was in August 1977. Ulvi and Ash worked for
about 2 weeks at an installation in Johnstown, Pennsylva-
nia, on an emergency basis due to a flood. In fact, Ulvi,
under instructions from Respondent, did not do installation
work of a technical nature capable of being done by unit
employees.
In addition, notwithstanding that Zakowski testified that
upon recall he worked overtime on two jobs, including re-
ceiving double time, he admitted that he was performing
these jobs on an emergency basis. He was told, upon recall,
that he was being recalled because work had picked up and
that the Ohio Valley General Hospital job was ready.
F. Jack Armstrong's Rebuttal Testimony
The General Counsel called Armstrong to rebut Respon-
dent's defenses that the layoffs were motivated by the above
economic considerations. He testified without contradiction
that in late April or early May 1977, at a contract negotia-
tion session with Respondent at the Holiday Inn in Green-
tree, Pennsylvania, (present were Kenneth Wolfe, May-
nard, and Union Agent Crowley) the reasons for Zakowski
being removed from the Basic I course in Shelton were dis-
cussed. Wolfe said that Zakowski had been removed from
the "Basic I" course because Respondent had no assurance
that Zakowski would return to work for the Respondent
after the schooling and didn't want to spend the money on
Zakowski and then have him work for someone else.
Ulvi had told Zakowski, on April 19, that he would be
recalled as soon as the workload permitted.
In addition, Armstrong testified, and Ulvi confirmed,
that on November 15. 1977, at Ulvi's invitation, they met
for about an hour in the evening at the Red Bull Inn, a
restaurant in Carnegie. Pennsylvania, outside of Pittsburgh.
near the Pittsburgh airport. A collective-bargaining session
of the previous day resulted in impasse. They at first dis-
cussed current work and whether Ulvi had completed Arm-
strong's evaluation. Ulvi said that he had not. They agreed
that they did not like the disharmony and loss of amicable
relations in the office. Ulvi then asked Armstrong to consult
the other servicemen in the Pittsburgh office and thereafter
go to Connecticut with him or alone, while Maynard was
on vacation, and, while in Connecticut. bypass Kenneth
Wolfe, and speak directly to Vice President Mangines with
the object of voting the Union out of Respondent's Pitts-
burgh office. In that conversation, Ulvi told Armstrong that
every corporation had to have a "scapegoat", that Ulvi was
Respondent's scapegoat in Pittsburgh. 2 that Ulvi felt that
he could "clear the air" and "eliminate the Union by a
vote", but that the Union could not be voted out until
April."
Ulvi admitted that his conversation with Armstrong in-
cluded a proposed future trip to Shelton: that the conversa-
tion lasted about a half hour and related to an opportunity
to "get this thing settled." but Ulvi denied saying what
would be settled. Ulvi testified that he and Armstrong were
two of the contract negotiators (Kenneth Wolfe thereafter
credibly testified that negotiations had reached impasse on
economic issues): that both he and Armstrong, at the Red
Bull Inn, agreed that they did not like the way things were
going in the Company: and both agreed that they preferred
prior peaceful times when all of them were working to-
gether. Ulvi told Armstrong to consult the other unit em-
32 Ulvl admitted telling Armstrong that Respondent was making him
IUlvi] the corporation's "scapegoat' but allegedly did not recall when he said
it or the circumstances surrounding its use. I discredit Ulvi's alleged lack of
recollection. credit Armstrong. find it was used in this particular conversa-
tion in the above text, and conclude that Ulvi was referring to being made
Respondent's scapegoat for the unionization of Respondent's Pittsburgh em-
plo)ees.
33 This "rebuttal" testimony was admitted over Respondent's objection on
the General Counsel's representation that it was discovered late in the trial,
i.e., the night before it was adduced Thereafter, the General Counsel stated
she was not sure that she had not heard of it pnor to that time and, in any
case, had destroyed notes of the interview of the night befo)re with Arm-
strong which produced this testimony. Respondent asserts that this testi-
mony was improper rebuttal and was prejudicial to the point of denial of due
process since the General Counsel's destruction of her notes made effective
cross-examination of Armstrong impossible. Respondent did not brief this
latter point. While at the hearing, I agreed that this evidence, constituting an
unfair labor practice, should have properly been adduced in the General
Counsel's case-in-chief, on reflection. it seems to me that it was proper rebut-
tal. The propriety of the rebuttal stems from the fact that the conduct oc-
curred well after the events which would constitute Respondent's economic
defense and could arguably indicate that the defense was pretextual because
of the continued, subsequent show of union animus. Moreover. while Re-
spondent moved to dismiss the complaint at the hearing, it did not do so on
the ground that the wrongful acts of the General Counsel required dismissal.
Whatever else the record suggests in the delicacy of the presentation of the
General Counsel's case, there is no indication of bad faith in this matter.
Especially in view of Ulvi's having, in substance, subsequently admitted
much of Armstrong's rebuttal testimony, I continue in my ruling in denying
Respondent's motion to dismiss, whether on the ground of improper rebuttal
or the prejudice resulting from the General Counsel's destruction of her
notes of pretrial conversation with Armstrong.
962
P'IIIII'S NIll )I(AI SYSI FIMS. IN(C
plocees and get their consensus olf opinion after which [ lIvi
and Armstrong wouldl visit Vice President loom Manglnes
in Shelton and "see it we could work soimething out." I Jlvi
asked Armstrong to call lvi's wile since Ilvit was going
out of town that night. Armstrong called I lvi's wife and
told her that the answer was "definitely no." At midnight of
the next day, Ulvi called Armstrong. to discover whether
Armstrong had spoken with his coemployees. Armstrong,
according to Ulvi. said that the consensus of the employees
was that they "didn't want to do anything other than what
they were doing."
Respondent urges that Armstrong's testimony is incredi-
ble since no reference to it appears in two prior affidavits to
the Board and. in any event, this conversation must be
viewed in the light of many negotiation sessions between
Respondent and the Union. These negotiations resulted in a
complete impasse on the Union's basic economic demands.
notwithstanding that all noneconomic issues had been
agreed upon. In substance. Respondent describes the Arm-
strong-Ulvi conversation as reflecting merely a private at-
tempt by llvi to settle the deadlocked contract negotiations
by going over the head of Maynard and Wolfe and dealing
directly with Vice President Mangines. I reject this argu-
ment.
Ulvi did not deny Armstrong's testimony regarding Uki
suggesting voting out the Union, or the April date on which
the voting out of the Union might first occur. In view of the
telephone calls by lilvi, including one at midnight, Ulvi
characterizing himself as a scapegoat, the existence of the
impasse. the admitted unhappiness felt by Armstrong and
Ulvi, and Ulvi requesting Armstrong to consult his fellow
employees, I credit Armstrong's version. lvi called Arm-
strong to discover the unit employees' desires while in Con-
necticut and thus while Ulvi was in contact with Respon-
dent's chief supervisors. Respondent never repudiated
Ulvi's action. Not only does Armstrong's testimony bear
directly on the truthfulness of the interposition of the eco-
nomic defense, but it manifests Respondent's continuing
union animus well after the recall of the three employees. In
this regard, I also respectfully differ with Respondent who
urges that what Ulvi may have done in November 1977 "is
not probative of anything which happened 6 months be-
fore" (Br., p. 178).
I do not, in any case, believe Ulvi's November 1977 acts
to be dispositive of the entire problem of the April 19. 1977,
layoffs. I view them merely as continuation of Respondent's
animus against the Union. I cannot help but note. however,
with regard to Respondent's argument that Ulvi was engag-
ing in a private act in going over his supervisor's head, that
Ulvi, one of Respondent's contract negotiators with the
Union, though apparently untrained in the law of labor
relations, should not only know that the unit employees
could not vote out the Union before the expiration of the
certification year (April 1978), but, as counsel for Respon-
dent accurately notes (Br., p. 173), should seek information
regarding future employee action to vote out the Union the
day immediately after impasse. Board cases are endless
wherein employee repudiation by decertification of their
union representative commences with their dissatisfaction
over bargaining impasse. What is remarkable here is that
Ulvi, on his way to corporate headquarters in Shelton, Con-
neliiut. should have intuitively ascertained the prcise mllo-
ment (i.e.. impasse) to initiate the progression for decertili-
cation. In fully crediting Armstrong's testilnmony and
rejecting Ulvi's tepid version, and, indeed, in crediting the
General C(ounsel's witnesses over Respondent's itncsses, I
cannot but observe that coincidences of' this kind under-
mine the credibility of Respondent's witnesses and its mo-
tives. To ignore such coincidences would be naive. I am not
required to be naive, Shattuck Penn ,iin ( rp.
'.I. R.B.. 362 F.2d 460 (9th ('ir. 1966).
I)iscussion and ('onclusions relating to the April 19
I.ayoffs
Respondent's economic defense supporting the laotffs is
based primarily on two elements: the first is that the three
trainees. hired respectively in August. November, and l)e-
cember 1976, because of an anticipated heas Insta;lllation
program in early 1977. were not performing prodluctiel in
the Pittsburgh office because there was no work Ior them.
due to the fact that the 1977 installations had been post-
poned until the summer of 1977. and secondl. Respon-
dent's records of the "productive hours" in the Pittsburgh
office, compared to other offices, showed that the trainees
were not being productive and that under the circumstances
of the then existing workload, only two service employees
were necessary to operate the service function of' the Pitts-
burgh otlice. Further. Respondent points to the facts that
(I1) the employees were laid off and recalled in (Irder ofl
seniority, (2) there were no replacements hired or unit \work
perlormed by supervisors which could have been perfiOrmied
by these trainees, and (3) that the recalls coincided with the
necessity of rescheduled installation work. In urther sup-
port of the Respondent's alleged benign motive in the la\-
offs, it points to the fact that it not only consulted counsel
before the layoffs. but consulted the Union. Thus its actions
were consistent with a laoff for lack of work L 'niti En-
gines, Inc., 222 NLRB 50 (1976).
Respondent points to the fact that the hospitals in which
the installation of Respondent's equipment were to take
place notified Respondent that there would be delays in the
readiness of the hospitals to accept the installations. More-
over, Respondent introduced records defining and illustrat-
ing the fact that the three trainees in question were not
performing productively to justify their retention in em-
ployment. In fact, the records indicate, according to Re-
spondent, that the employees were engaged in what was
called "training," an expression, according to Respondent.
demonstrating that they were not doing anything produc-
tive, but were sitting around for the most part and reading
magazines. In addition. Vice President Mangines testified
that he checked not only the production records in Pitts-
burgh, but the production records and work records in
other of Respondent's offices and found the Pittsburgh of-
fice among the lowest in the country in terms of productive
work. Moreover, as Maynard testified, his direct observa-
tion of the trainees showed that they were sitting around
and reading magazines and not out in the field working on
installations or engaged in other activities which would re-
sult in customer billing or at least in "productive" work.
I. I regard the evidence submitted to show the lack of
D4(ECISIONS OF NATIONAL LABOR RELATIONS BOARD
production hours and productive work by the three train-
ees, as a reason supporting the layoffs. to be inconclusive.
Assuming, arguendo, that the trainees became idle in and
about the first quarter of 1977, their idleness is clearly not
the dispositive element in this area of Respondent's defense.
The crucial issue is not the diminished number of produc-
tive employee hours in a given period but when the unpro-
ductive condition started and how long it continued. (a)
Except for Zakowski (Resp. Exh. 21), the records (set forth
above) of the trainees, Wall and Scheuring (Resp. Exh. 20
and 22) show low productivity starting in January and Feb-
ruary, and in Zakowski's case, in March 1977. Moreover,
Wall's productive hours increased between February and
March and doubled between March and April. Scheuring's
productive hours decreased I hour in April, but the per-
centage of his productive hours increased slightly. (b) Fur-
thermore, the evidence shows that the "productive" time of
trainees was, at best, an inexact measure of their employ-
ment. As Ulvi testified, trainees are able to perform only
the most modest tasks and, even then, under the direct and
continued supervision of experienced servicemen. Thus, a
comparison of trainee "productive" hours, as defined by
Respondent to other productive hours is not probative, nor
in my judgment, on this record, an accurate description or
measure of the trainee's utilization. I am not substituting
my judgment for Respondent's, Grand Auto, Inc., 236
NLRB 877 (1978), but merely echoing Ulvi's judgment con-
cerning the utilization of trainees. (c) In any event. Ulvi
testified that he and District Managers Bob Zeeman and
Walter Maynard all received copies of the monthly IBM
printouts from Shelton which showed the inadequate utili-
zation of employees; that he and District Managers Zee-
man and Maynard worked closely together: and that he
knew, 2 3 months before Maynard asked him in April, that
only two servicemen were necessary to do the work and
that Respondent's Pittsburgh office was overstaffed since
December 1976.
2. The records in Respondent's other district offices were
not submitted either to show comparable statistics which
resulted in layoff-reassignment in New York or to show the
disparity in "productive hours" between Pittsburgh and the
other district offices which caused no layoffs in those other
offices. These records were allegedly checked by Mangines
before permitting Maynard to execute the recommended
layoff. The failure to submit such records gives rise to an
inference that they would not have supported Mangines'
testimony. Zapex Corporation, 235 NLRB 1236 (1978).
Even the absence of a subpena is immaterial since it is pre-
sumed that evidence within Respondent's control which
would strengthen its defense would be introduced, Interna-
tional Union, United Automobile Workers [Gyrodyne Corp.
of America] v. N.L.R.B., 459 F.2d 1329 (D.C. Cir. 1972).
3. No evidence was adduced by Respondent concerning
when the hospitals actually informed Respondent that in-
stallations, otherwise to be affected in the first and second
quarters of 1977. were to be postponed. It would seem that
if these hospital-induced postponements of installation oc-
curred immediately preceding the layoffs, such notifications
at such times would be substantial evidence that Respon-
dent's motivation was based on lack of anticipated work in
the second quarter of 1977. On the other hand, if notifica-
tions of postponement occurred in January. February, or
even up to mid-March 1977, the Respondent's action in
laying off the three trainees in mid-April would require fur-
ther explanation since the employees would have been held
in employment for substantial periods of time even aifter
notification by these hospitals of the delay in the installa-
tion dates. In any event, the dates of notification of the
delays in installation by the hospitals were not produced by
Respondent, and, therefore, the evidence supporting Re-
spondent's contention that the layoffs were due in large part
to hospital-induced delays in installation is not at all con-
vincing since the dispositive element is when the notifica-
tions were received and not merely the fact that the dates of
installation were delayed.
4. In view of Maynard's (and Wolfe's) continued testi-
mony concerning their direct observation of the idleness of
the trainees in March 1977, I note that both of them denied
either reporting such conditions to the home office, taking
action against those conditions or even making a memoran-
dum of it. I also note that there is no evidence that District
Manager Zeman ever commented on it, or notified the main
office of that condition. Further. Maynard's cross-examina-
tion wherein he severely limited his direct testimony con-
cerning how much he saw of idleness amounted almost to
repudiation of the matter which was the subiect of extensive
Respondent reliance.
5. Faced with lack of present work and with impending
installation delays. Respondent knowingly, on April II
(with records for the period July through March showing
poor trainee utilization and little current installation work
since February or March 1977) sent trainee Zakowski to the
"Basic I" course in Shelton for 3 weeks. Such a precon-
ceived act, entailing substantial expenses, would not seem
to be undertaken as a matter of whim. The same poor eco-
nomic conditions existed before Zakowski was sent and
even on the day he was sent. The question then becomes.
what occurred after he was sent to Shelton that caused his
abrupt return? No evidence of intervening economic
change was adduced. As the General Counsel points out,
Wolfe's explanation that Zakowski was recalled because he
had had so little time with the Company (a condition which
obviously existed before sending him out in the first place)
and because he might never return to Respondent if re-
called (no such speculative condition was imposed upon
Armstrong or, on this record, on anyone else sent to Shel-
ton) is incredible and not consistent with the reasons ad-
vanced by Maynard: that Zakowski was recalled because of
economics and "fairness"4 to the other employees. Such
inconsistent and unconvincing reasons by supervisors who
played prominent roles in the layoffs tend to support the
General Counsel's allegation of unlawful discrimination.
Paramount Metal & Finishing Co., 225 NLRB 464 (1976).
6. In executing the layoff, Maynard consulted only with
labor relations supervisors (Mangines and Wolfe) and never
analyzed the economic problems supporting this alleged
economic layoff with his marketing supervisors (Mentha
and Schiappe).
i Why it would be "unfair" to retain the most senior trainee, Zakowski,
already in the Basic I course, and lay off the junior trainees. Wall and
Scheuring. was never explained.
964
PHIL.IPS MEI)l('AI. SYSI1EMS INC.
7. Quite apart from any proof adduced by the General
Counsel. contrary to Respondent's repeated denials of
union animus at the hearing and in its brief (Resp. Br.. p.
85), Respondent. in substance, accused the Union of inflict-
ing bodily harm on its employees and accused Armstrong.
the most fervent union advocate, of threatening employee
Ash and his family.
8. Maynard. as above noted, testified he saw idle em-
ployees during March whenever he visited the Pittsburgh
office and made several studies of the underutilization. com-
mencing no later than his official taking of office on April 4.
Vice President Mangines was in the Pittsburgh office on
April I I when the votes were counted in the Board-con-
ducted election. Maynard's income was based in large part
on office efficiency, as he testified, and he had seen idle
employees on his visits and had already prepared studies of
poor employee utilization. On April I. the vice president
of the Company was present in the Pittsburgh office and
Maynard's failure to consult him about laying off idle em-
ployees at that time casts a pall over Maynard's testimony
that he only decided to lay off employees the following day
(April 12) and that the Union's election success played no
part in his decision to lay them off."
9. In the face of Respondent's failure to rid itself of idle
employees during February and March 1977. notwithstand-
ing that Respondent had both statistical and direct knowl-
edge of the trainees sitting around and not performing
"productive work," and admitted knowing of the delay in
hospital installations no later than March, but perhaps
knowing of the delay even earlier than that, there is failure
to adequately explain why the initiation of the layoff oc-
curred on the day after the election results were known.'1
The sole evidence in support of this coincidental timing is
Maynard's testimony that he made up the statistical study
of employee functions determining that only 1.3 employees
were necessary, on April 12 and consulted Ulvi on the same
day. The evidence shows that the underlying economic
facts were known to Ulvi and Maynard for some weeks
prior to April 12. Weighing further against this coincidence
are Respondent's independent violations of Section 8(at(1)
and its repeated, undenied statements to employees of not
wanting the Union in Respondent's Pittsburgh office. Lastly
there is, contemporaneous with the layoffs. Armstrong's un-
denied and credited testimony that Ulvi told him that Re-
spondent's reason for the layoff was to protect its operating
costs against anticipated union economic demands.
In view of this evidence, I need not rely heavily, much
less dispositively, on the evidence adduced by the General
" Maynard testified he first noticed the idleness of employees in his March
visits to Pittsburgh. He lunched with Vice President Mangines in Pittsburgh
on March 16. He did not request permission to lay off employees at this time.
He did not even mention idleness of employees, on this record, to Mangines
at this time.
Y Reapondent asserts (Br., p. 47) that the timing of Maynard's request
(April 12) for the layoffs was coincidental with his formal induction as dis-
trict manager (April 4) rather than with the union election (April II). It
further asserts that it was coincidental that Maynard first became aware of
the "economic considerations" on April 12. a day after the election. Evi-
dently aware of the otherwise embarassing timing coincidences, Respondent,
rhetorically asks (Br., p. 47): "IWould Respondent'sl posture have been bet-
ter if Maynard had acted in the first weeks after he became district manager,
before the election, or two weeks, a month, two months after?"
C('ounsel in rebuttal (Armstrong's testimony) concerning
Respondent's November 15. 1977. design to decerti the
Union. It is another element undermining Respondent's
economic defense, which I find under all the circumstances.
to constitute a mere pretext to cover its unlawful motiva-
tion.
Conclusions
I find and conclude that Respondent engaged in unfair
labor practices in March and April before the Board-con-
ducted election of April I 11 and at all material times, includ-
ing November 15. 1977, manifested a desire, both b lawful
and unlawful means, to prevent the Union from represent-
ing its Pittsburgh employees. I also conclude that Respon-
dent's economic defense. at best, was pretextual. For, as-
suming that there was underutilization of employees and
delay in equipment installation, these economic conditions
long pre-existed the layoffs and were known to Respondent
and even to Maynard well before April 12 when Maynard
allegedly first became aware of the poor utilization in Pitts-
burgh, and, first requested the layoff. Thus, the timing of
the decision to lay of the three trainees coming immediately
after the Union's success in the election is a critical element.
When taken together with the above pretextual economic
defense. and measured with contemporaneous, serious. in-
dependent unfair labor practices directed particularly
against the employees being represented by the Union, I
find that a preponderance of the credible evidence militates
in favor of a conclusion that the layoffs were motivated, in
large measure. if not exclusively, by the fact that the Union
won the election. I conclude on the basis of the longstand-
ing economic conditions in the Pittsburgh office. that but
for the Union's winning of the election. the employees
would not have been laid off and Respondent would have,
as it did in the period commencing February 1977. toler-
ated the economic slowdown, it' any.
Respondent's citation of L'nited Engines. Inc., 222 NLRB
50 (1976). supports, rather than detracts from this conclu-
sion. There, unlike here, the employer lost a major business
account. This element strongly supported the Board's con-
clusion that the layoff, in the midst of independent unfair
labor practices. had an economic motivation. Here, the un-
derutilization of the trainees existed as early as February
1977 and Ulvi knew of the postponement of the hospital
installations (which appeared to have been scheduled for
January and February 1977) no later than March 1977. The
intervening event between such pre-existing economic ele-
ments and Maynard's April 12 decision to lay off the three
trainees allegedly for economic conditions, on this record,
consists solely of the April I Board-conducted election. I
conclude that Respondent laid off the three trainees be-
cause of the Union's success in the April II election and
that such motivation for the layoff violates Section 8(a)(3)
of the Act.
Respondent points to the fact that it recalled Zakowski in
June and recalled Wall and Scheuring in November as evi-
dence that its motivation in the April layoff was not unlaw-
ful. On the other hand, Respondent. faced with the neces-
sity of effectuating the July installation at the Ohio Valley
General Hospital, was obliged to recall its employees. The
I) t I(,\N ) NAI()IONAI lABOI()R RK.I.AIIONS 3()ARI)
use of, other IepC!;l'ccil('n .C'viClenenlC or1' nlo()tll personlel
on obvious noncinergency insall;ations would ha;ve heeii
further evidence ol ulilwl'tul motivation of the la oil' in the
first place. In any event, when it is once made lo appear
Irom the primary ilcts. as here, that the employer has vio-
lated the Act, the Board and courts may not inquire into its
motivation. N. I. R. B v. Indulvlrial ('ololn Mill, 208 F.2d 87.
91 (4th ('ir. 1962). Ilcre, the selection of' the trainecs fior
layoff, of course, did not necessarily depend on their par-
ticular union activities. Respondent acted in retribution for
the Union's victory on April I I and consistent with Wolfe's
threat to make an example of the Pittsburgh office. What
motivated Respondent to not further discriminate against
the three trainees is a question not before me.
IV. III RIMI-I)Y
Having fiund that Respondent violated Section 8(a)( l)
and (3) of the Act, in unlawfully and coercively interrogat-
ing its employees concerning their activities on behalf of the
Union, by threatening them with more onerous working
conditions if they selected the Union, in unlawfully solicit-
ing their grievances, and in unlawfully laying off three of its
employees I shall recommend that it cease and desist there-
from and take certain affirmative action to remedy the un-
fair labor practices and effectuate the policies of' the Act.
Respondent. having reinstated Scheuring. Wall, and Za-
kowski, to their former jobs or substantially equivalent po-
sitions. I shall recommend only that Respondent make each
of them whole fr any loss of earnings each may have suf-
iered as a result of the discrimination, with backpay and
interest computed in the m;anner proscribed in / II. 'oro/-
nworl (pl/,ln!, 9() NRB 289 (195()) and Ilrrfdlt Sic/
(' rroralion1, 231 N LRB 117 (1977)," anti post an appropri-
alte notice to employeces.
(C()NI iUSI()NS ()I LA
I. Respondent is engaged in commerce and the Union is
a labor organization, both within the meaning of the Act.
2. By laying off Tom Zakowski, Richard Wall, and
Joseph Scheuring because of' their union membership and
activities and because of the Union's selection as their
statutory bargaining agent to represent them, Respondent
has discriminated in regard to their hire and tenure of em-
ployment, thereby engaging in unfair labor practices within
the meaning of Section 8(a)13) and (I) of the Act.
3. By engaging in coercive interrogation of its employees.
unlawfully soliciting their grievances, and threatening them
with more onerous working conditions. all because these
employees have sought to have the Union represent Ihemrn
Respondent has engaged. and is engaging. in untair labor
practices within the meaning of Section 8(a)( I of the Act.
4. The (ieneral Counsel has not proved by a preponder-
ance ofl' the evidence that Respondent engaged in any viola-
tions of the Act other than those specifically foulnd herein.
[Recommended Order omitted from publicalion.ll
" See. generall . Pihin & ,lating ( , 13 N RH 716 ( 19I62)
s Ithere being n evidence Ihall unallr lhabor prltilt ce tcllurrCd her hall
in Pittshurgh. I den)y he ('haiging P'arlyrs requel that the ioicc he psted
in Respondent's ,ffices outside oii Ihttshurgh