Pinter Bros., Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1977

227 N.L.R.B. 921 (N.L.R.B. 1977)

PINTER BROS. 921
Pinter Bros., Inc. and Truck Drivers Local Union No.
807, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Diane M. Lufker and Doris Bonadonna.
Cases 29-CA-4281, 29-CA-4554, -29-CA-4570,
29-RC-2888,29-CA-4594, and 29-CA-4601
January 12, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On April 30, 1976, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge properly found,
inter alia, that Respondent engaged in unlawful
conduct in violation of Section 8(a)(3) of the Act by
discharging employees Vera Barber and Beatrice
Pagliarulo on January 17, 1975,2 and by laying off
employees Jayne Healy and Deborah Gulbrandsen
on January 20. In addition, the Administrative- Law
Judge found that Respondent violated Section 8(a)(1)
of the Act when it refused to admit the four
employees to its premises for the purpose of voting in
the election held on March 26 .3 We agree with the
Administrative Law Judge that said conduct as well
as other conduct by Respondent "interfered with the
exercise of the free and untrammeled choice" in the
election, but Member Penello finds in agreement with
Member Walther that it is unnecessary to pass on the
Administrative Law Judge's 8(a)(1) fording as to it.4
The Administrative Law Judge found, without
exception from Respondent as to his manner of
computing majority status, that as of March 26 the
I Respondent excepts to the credibility findings made by the Admimstra-
tive Law Judge and contends that he was "not only biased but unfair and, at
times, intemperate ." It is the Board's- established policy not to overrule the
Administrative Law Judge's resolutions with respect to credibility unless the
clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Walt Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 All dates below refer to 1975.
3 As indicated by the Administrative Law Judge, the Union lost the
election with 14 employees voting for it and 18 against , and I employee
voting subject to challenge.
227 NLRB No. 123
Union had a majority of 20 adherents in the appropri-
ate unit of 39 employees. He reached this conclusion
by combining the 14 votes cast for the Union and the
authorization cards signed by employee Charlotte
Destefanis, whose ballot was challenged,5 and by 5
other employees who did not participate in the
election, namely, Santa Stansell and the discrimina-
tees referred to above. In the absence of an exception
thereto, we adopt the Administrative Law Judge's
holding as to the Union's majority status.
Contrary to our dissenting colleague, Respondent's
exception to the 8(a)(5) fording relies principally on
the argument, which was properly rejected by the
Administrative Law Judge, that "the evidence no-
where supports a conclusion that Respondent's
conduct was outrageous and pervasive." It is also
clear that Respondent's exception, rather than ques-
tioning the card-ballot formula itself, focuses directly
on the alleged impropriety of including in the
computation the card of employee Stansell which was
correctly found valid by the Administrative Law
Judge because she fully understood the import of her
act in signing it.s
However, assuming arguendo that Respondent did
except to the method of computing the Union's
majority, the dissent errs in invoking the Supreme
Court's decision in Gissel Packing7 for the proposi-
tion that majority status must be based exclusively on
cards or solely on ballots cast in a Board election but
not on a combination of both. Although the Court
dealt with the validity of cards as an alternative
means of determining a majority when "an employer
engages in conduct disruptive of the election pro-
cess,"8 it nowhere indicates that the selection of the
bargaining representative cannot be ascertained by
counting both cards and the ballots cast in favor of
the union.
The dissent defies all logic by leaping from the
Court's statement that cards may be "the most
effective-perhaps the only-way of assuring em-
ployee choice" to the unwarranted categorical con-
clusion that "only the cards" may be relied upon
when an employer engages in conduct which disrupts
an election. The sentence quoted by our colleague is
found in the section of the Court's opinion which
deals with the matter of the reliability of cards. But in
4 For reasons given by the Administrative Law Judge, Member Fanning
would adopt-this 8(axl) finding.
5 As indicated by the Administrative Law Judge, Destefanis' card was
valid because she was not a confidential employee and was therefore
properly in the unit
6 In this connection, it is significant that Respondent's briefin support of
its exceptions makes no reference whatever to the method of computation
but objects to the bargaining order solely on the ground that its conduct was
noncoercive and protected by the free speech provisions of the Act.
r N LRB v. Gissel Packing Co., Inc., 395 U S. 575 (1969).
8 395 US.at602.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another section which pertains to how a union can
establish a bargaining obligation, the Court made the
following statements which do not support the "only
the cards" approach of the dissent:
The most commonly traveled route for a union to
obtain recognition as the exclusive bargaining
representative of an unorganized group of em-
ployees is through the Board's election and
certification procedures under § 9(c) of the Act
; it is also, from the Board's point of view, the
preferred route. A union is not limited to a Board
election, however, for, in addition to § 9, the
present Act provides in § 8(a)(5) ... as did the
Wagner Act in § 8(5), that "[i]t shall be an unfair
labor practice for an employer ... to refuse to
bargain collectively with the representative of his
employees, subject to the provisions of section
9(a)." Since § 9(a), in both the Wagner Act and
the present Act, refers to the representatives as the
one "designated or selected" by a majority of the
employees without specifying precisely how that
representative is to be chosen, it was early
recognized that an employer had a duty to bargain
whenever the union representative presented
"convincing evidence of majority support." Al-
most from the' inception of the Act, then, it was
recognized that a union did not have to be
certified as the winner of a Board election to
invoke a bargaining obligation; it could establish
majority status by other means under the unfair
labor practice provision of § 8(a)(5)-by showing
convincing support, for instance, by a union-
called strike or strike vote, or . . . by possession of
cards ....9
The Court recognized that "secret elections are
generally the most satisfactory-indeed the pre-
ferred-method of ascertaining whether a union has
majority support." 10 Where, as here, a number of
employees vote for the union despite the employer's
outrageous and pervasive unfair labor practices, it
cannot reasonably be argued that their ballots should
not be accepted as an endorsement of the union. The
dissent does not challenge the Court's acceptance of
cards, which are "admittedly inferior to the election
process," as an adequate reflection of employee
sentiment. A fortiori, the votes for the Union are
eminently acceptable in view of the Court's statement
that the election process is of "acknowledged superi-
ority" to cards.
In sum, the dissent's position concerning the card-
ballot formula boils down to an untenable protest
against its novelty. Accordingly, as the cards and the
ballots for the Union constitute valid expressions of
employee sentiment, the Administrative -Law Judge
properly counted both in finding that the Union was
selected by a majority of Respondent's employees.
In view of the foregoing, we conclude in agreement
with the Administrative Law Judge, that a bargaining
order is warranted under the standards set forth by
the Supreme Court in Gissel Packing Co., Inc. We
further fmd that Respondent's bargaining obligation
began on March 26, the date when the Union
attained a majority and Respondent continued its
refusal to accede to the Union's demand of January
20 for recognition and bargaining.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pinter Bros., Inc., Deer Park, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
MEMBER WALTHER, dissenting in part:
I disagree with my colleagues' conclusion that
General Counsel has established that the Union ever
attained majority status in this proceeding, and
therefore I disagree with their further conclusion that
a bargaining order is warranted here. Accordingly, I
dissent.
My colleagues affirm the Administrative Law
Judge's finding that the Union attained majority
status on March 26, 1975-the date the Union lost
the election conducted herein. Despite this election
loss, the Administrative Law Judge found, on a most
unusual theory proposed by the General Counsel
which combines election votes and authorization
cards, that on the day it in fact lost the election the
Union nevertheless had 20 adherents in a unit of 39
employees. To reach the necessary majority figure of
20, the Administrative Law Judge first counted the 14
employees who voted for the Union at the election
(There were also 18 votes against the Union on that
day). Next, the Administrative Law Judge found that
prior to the election four employees who had signed
cards were discharged in violation of Section 8(a)(3)
of the Act. The Administrative Law Judge added
these four employees into the unit and counted their
cards also. Lastly, the Administrative Law - Judge
noted that two other employees (one who did not vote
in the election, and one who did but whose ballot was
challenged but then overruled by the Administrative
9 395 U.S at 596-597 10 395 U.S at602.
PINTER BROS.
Law Judge) had signed authorization cards before the
election. The Administrative Law Judge counted
both these employees' cards. Therefore, the Adminis-
trative Law Judge found the Union had attained
majority status on the election date by combining the
14 votes for the Union and 6 prior signed authoriza-
tion cards to reach a total of 20 adherents in a unit of
39 employees.
I note at the outset that while my disagreement with
the Administrative Law Judge's conclusion runs to
the fundamental theory on which General Counsel
has attempted to predicate majority, I also disagree
with my colleagues' adoption of the theory based on
their finding that Respondent filed no exception to
the Administrative Law Judge's use of it. Such a
conclusion is totally incorrect, for Respondent has
attempted before the Board to except to the General
Counsel's theory and the Administrative Law Judge's
conclusions based thereon. Thus, in its brief, Respon-
dent speaks of the "make-weight argument" on
majority urged by the General Counsel and, most
importantly, Respondent also argues there was a
"demonstrated nonunion majority" and cites to that
portion of the Administrative Law Judge's Decision
where he computed majority. In such circumstances,
I believe my colleagues will have a long road to hoe in
any future attempt to defend this highly unique
theory of computing majority on the grounds of
Respondent's supposed failure to except to the
Administrative Law Judge's findings based thereon.
However, as I have noted above, my primary
opposition to my colleagues' conclusions is bottomed
on my disagreement with the General Counsel's
theory, itself, whereby he attempts to establish
majority by -combining authorization cards with
employee votes in an, election which is ultimately set
aside. I am of the view that one simply cannot set
aside an election as was done here and thereafter still
count votes for the Union. If the election is set aside,
so too must the tally be-both for, as well as against,
the Union.
It seems reasonable to conclude here that however
many cards the Union had before the election it never
had a card majority, or else this intriguing theory
would not have been forthcoming, and the General
Counsel- would have relied on a traditional card-
based majority in seeking a bargaining order. It is
crystal clear the Union did not gain a majority in the
election. Thus, the Union never had a card majority
or an electoral majority. My- colleagues, however,
now construct another way of obtaining majority;
i.e., a card-election (invalid though it was) majority. I
11 N.L.RB v. Gissel Packing Co., Inc, 395 U.S 575,613-615 (1969).
12 395 U.S at 614 (emphasis supplied).
13 ALJD, III, E, par 5
14 The Supreme Court's decision in Gissel joined four separate proceed-
923
do not subscribe to such a theory which allows unions
which have never established a majority by either
cards or an election to secure a bargaining order and
thereby be forced upon the employees.
I note that in adopting the General Counsel's
theory the Administrative Law Judge found that
General Counsel was bringing the theory under the
second category of unfair labor practice situations
noted by the Supreme Court in Gissel,11 which
demanded in such second category establishment of
majority before a bargaining order could issue. The
Administrative Law Judge then noted that the Gissel
Court had approved : bargaining orders in such
situations "where there [was ] ... a showing that at
one point the union had a majority .... 191212 The
Administrative Law Judge then concluded, however,
without discussion, that, based on Gissel, there was
"no theoretical obstacle to proving that `at one point
the union had a majority' by combining votes in an
election and authorization cards signed earlier." 13
The Administrative Law Judge thereby greatly mis-
construed Gissel, which nowhere intimated such a
conclusion.
I note that, at the outset of its Gissel decision, the
Supreme Court stated, in describing three of the four
cases then before it,14 that "[i]n each case, the Union
waged an organizational campaign, obtained authori-
zation cards from a majority of employees in the
appropriate bargaining unit, and then, on the basis of
the cards, demanded recognition by the employer." 15
Then, in generally describing the Board's finding in
each case, the Supreme Court noted the Board had
found that "the Union had obtained valid authoriza-
tion cards from a majority of the employees in the
bargaining unit and was thus entitled to represent the
employees for collective bargaining purposes
16 And, finally, in indicating that a bargaining
obligation could arise by means other than a Board-
ordered election, the Gissel Court noted:
Almost from the inception of the Act . . . it was
recognized that a union did not have to be
certified as the winner of a Board election to
invoke a bargaining obligation; it could establish
majority status by other means under the unfair
labor practice provision of § 8(a)(5)-by showing
convincing support, for instance, by a union-
called strike or strike vote, or, as here, by
possession of cards signed by a majority of the
employees authorizing the union to represent them
for collective bargaining purposes.
mgs for decision. The proceeding not referred to in the quote below would
have also fallen under the facts noted in the quote.
15 395 U.S. at 580 (emphasis supplied).
16 395 U.S. at 583 (emphasis supplied , footnote omitted).
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have consistently accepted this interpreta-
tion of the Wagner Act and the present Act,
particularly as to the use of authorization cards. 17
In light of the above, then, I think it clear that the
Supreme Court's statement in Gissel, indicating the
appropriateness of a bargaining order in circumstanc-
es where there is sufficient showing of employer
misconduct, and where "at one point the union had a
majority" is not a license for the result reached here.
Rather, consistent with the above discussion, I think
it clear that a majority on cards must have been
proven here before a bargaining order may be
justified. Such was not demonstrated here and thus
no bargaining order is warranted.18
Further, I note two intriguing developments that
arise from the use of the General Counsel's theory.
First, I note that one of the card signers whose card is
counted did not vote in the election because she was
on vacation on the election date. I await the case
when, based on the theory my ' colleagues embrace,
the argument is made that majority has not been
established , in circumstances similar to those here ' 19
where a union received 10 votes in the election; there
were 9 votes against; and a 10th employee who did
not sign a card and opposed the union was on
vacation. Will the same majority hereafter fmd that
the employer can on such facts refuse to bargain? I
should hope not.
Next, I note my colleagues also count the card of
another employee who did vote in the election. Her
ballot was challenged, however. The Administrative
Law Judge overruled that challenge in order to
include her in the unit but then did not order that her
ballot, the last valid expression of her desires on
unionization , be counted . Rather, he counted her
card . If my colleagues insist that the election date is
to be the date on which majority was attained,-then I
submit that the employee's ballot, validly cast on the
election date, and not her earlier signed card would
be counted.
I wish to clearly state that I will continue, of course,
to find it appropriate, where the circumstances
warrant, to issue a bargaining order based on a card
majority, or a certification based on a majority vote.
But I will not issue a bargaining order based on the
patchwork theory offered here that establishes major-
ity in neither cards nor the vote but attempts to
combine both to form a majority, after setting aside
the election on which a part of the majority itself is
based. For, to do so runs contrary to the specific
charge of the Supreme Court in Gissel that "effectuat-
ing ascertainable employee free choice [in circum-
stances as here is ] as important a goal as deterring
employer misbehavior."20
For the foregoing reasons , I disagree with my
colleagues' issuance of a bargaining order here 21
17 U.S . at 596-597 (emphasis supplied, footnotes omitted).
18 In their decision , my colleagues attempt to answer my disagreement by
contending themselves , as the Administrative Law Judge did, that the
Supreme Court in Gissel "nowhere indicate [d] that the selection of the
bargaining representative cannot be ascertained by counting both cards and
the ballots cast in favor of the union ." My colleagues purport to support this
contention with various quotes from the Supreme Court's Gissel opinion, at
395 U.S. at 602, which note the superiority of the election process and the
inferiority, yet viability, of authorization cards. My colleagues mix these two
thoughts together to conclude that the card -ballot theory is valid . I would
simply note , however, that the most relevant sentence of the Gissel opinion,
at 395 U.S . at 602, runs directly counter to my colleagues' argument. The
sentence reads.
The acknowledged superiority of the election process, however, does not
mean that cards are thereby rendered totally invalid, for where an
employer engages in conduct disruptive of the election process, cards
may be` the most effective-perhaps the only-way of assuring employ-
ee choice.
I submit that this sentence , while it clearly indicates that cards may be looked
to where an election is set aside , also indicates that only the cards may be
looked to in such a circumstance . Thus, my colleagues are betrayed by that
very portion of the Gissel opinion upon which they attempt to build their
card-ballot theory's validity.
My colleagues assert that this analysis "defies all logic." In support of
their conclusion , my colleagues rely upon another quotation from Gissel
which, in actuality , only further supports my position. As the majority
correctly points out , the Supreme Court indicated that majority status need
not be established through a Board election but can be established through
other means such as "by showing convincing support , for instance, by a
union-called strike or strike vote, or. . by possession of cards .....(Em-
phasis supplied) I can only point out that the commonly accepted and until
now only definition of "or" is a particle "to connect words, phrases, or
clauses representing alternatives." The American College Dictionary, p. 851
(Random House, 1970). My colleagues ' own logic in this regard calls to mind
the observations of Joseph Wood Krutch, "Logic is the act of going wrong
with confidence."
19 I e., unfair labor practices which otherwise warrant setting aside an
election.
20 395 U.S . at 614.
In sum, my colleagues categorize my dissent as simply being a protest
against the "novelty" of the card-ballot theory . Far from this , my dissent is a
protest against my colleagues' deviation from the norms for issuing a
bargaining order and a protest against their reliance on a theory which, as I
have explained, is quite simply incorrect.
21 Instead, I would set aside the first election based on the unfair labor
practices the Administrative Law Judge found Respondent committed and
direct a second election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
PINTER BROS.
WE WILL NOT discharge or otherwise discrimi-
nate against any employees to discourage mem-
bership in Truck Drivers Local Union No. 807,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, or as a reprisal
against employees for testifying before the Board.
WE WILL NOT threaten employees or promise
benefits to employees in order to affect their
support for Truck Drivers Local Union No. 807,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT interfere with the right of pro-
spective voters to participate in a Board election,
should one be held in the future.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL NOT refuse to recognize and bargain
collectively in good faith, upon request, with
Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive bargaining representative of all the employees
in the appropriate unit described below with
respect to rates of pay, hours, and other terms and
conditions of employment.
WE WILL bargain, upon request, with Truck
Drivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive collective-bargaining representative of all
employees in the following unit:
All full-time and regular part-time office clerical
employees of Pinter Bros., Inc., employed at its
Carlls Path, Deer Park, New York, plant, exclu-
sive of drivers , helpers, warehousemen, mainte-
nance and confidential employees , guards, and all
supervisors as defined in Section 2(11) of the Act.
WE,WILL offer Vera Barber, Beatrice Pagliarulo,
Jayne Healy, Deborah Gulbrandsen, and Doris
Bonadonna immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, and WE WILL
compensate them with interest for any loss of pay
they may have suffered because we terminated
them.
WE WILL rescind our rule promulgated in
September 1975 forbidding employees to work
part time on days that they have medical appoint-
ments or arrive late for work , and WE WILL
compensate with interest Diane Lufker and any
925
other employees affected by such rule for any loss
of pay they may have suffered as a result of
application of such rule.
PINTER BROS., INC.
DECISION
STATEMENT OF THE CASE
BERNARD RIES , Administrative Law Judge : On June 4,
1975, the Regional Director for Region 29 issued a
complaint in Case 29-CA-4281, as amended on July 10 and
28. On June 20, 1975 , the Regional Director issued a report
on objections in Case 29-RC-2888 , pertaining to an
election held among Respondent's clerical employees on
March 26 , 1975, and ordered that certain issues raised by
Case 29-RC-2888 be consolidated for hearing with Case
29-CA-4281 . On October 29, 1975 , when the hearings in
the foregoing cases were nearing ' completion, the Acting
Regional Director for Region 29 issued a complaint in
Cases 29-CA-4554, 29-CA-4570, 29-CA-4594, and 29-
CA-4601 . By motion dated October 31, 1975 , counsel for
the General Counsel requested that the newly issued
complaint be consolidated for hearing with the pending
case , a motion which I granted over Respondent 's conten-
tion that the second complaint raised no issues in common
with and related to the complaint then being heard.
These cases were heard on July 28-30, August 18-21, and
November 18-19, 1975. The complaint in Case 29-CA-
4281 alleges that , on January 15 , 16, and 17, 1975,
Respondent unlawfully kept under surveillance the meeting
places and concerted activities of its clerical employees;
that, on January 17 and 20, Respondent unlawfully
interrogated its employees ; that, on January 17, Respon-
dent terminated employees Vera Barber and Beatrice
Pagliarulo and, on January 20, laid off employees Jayne
Healy and Deborah Gulbrandsen, because of their protect-
ed concerted activities ; that, since January 20, Respondent
has wrongfully refused to bargain collectively with Truck
Drivers Local Union No . 807 as the exclusive bargaining
representative of its office clerical - employees ; that on
March 18 and 24, 1975 , Respondent threatened its employ-
ees with loss of pension benefits, establishment of job
classifications, and other reprisals for supporting Local
807; and that, on March 26, 1975, Respondent unlawfully
refused to admit prospective voters to the polling place
during the conduct of a Board election.
In Case 29-RC-2888 , the tally of ballots in the election
held on March 26 , 1975, shows that 14 votes were cast for
Local 807, 18 were cast against Local 807, and 1 ballot was
challenged. The Union filed five objections to the election.
The Regional Director overruled two of the objections, and
referred the remaining three to me for resolution. The
pending objections relate to the refusal to admit prospective
voters to the polling place, letters sent to employees on
February 19, March 18, and March 24 , and statements
made at meetings of the employees held on March 24
(which conduct is also alleged to be violative of Sec . 8(a)(1)
in Case 29-CA-4281).
The complaint in Cases 29-CA-4554, 29-CA-4570, 29-
CA-4594, and 29-CA-4601 alleges that on August 21 and
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22, 1975, and other dates, Respondent's agents threatened
employees with reprisals because of their support for Local
807 and because the employees filed charges and gave
testimony in this proceeding; that Respondent, on August
21, subjected employee Diane Lufker to closer supervision
than she had previously been given, and on various dates in
September and October 1975 changed her working condi-
tions, thereby causing her a loss of employment, because
she filed charges and testified in this proceeding; and that
on September 5, 1975, Respondent discharged employee
Doris Bonadonna and refused to reinstate her because of
her activities on behalf of Local 807.
On or about February 6, 1975, briefs were received from
Respondent and the Charging Party. Upon the entire
record,' including my observation of the witnesses, and
after due consideration of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintains its place
of business at Carll's Path, in the town of Deer Park,
County of Suffolk, State of New York, where it engages in
intrastate and interstate trucking. During the year preced-
ing issuance of the first complaint, Respondent received
gross revenues in excess of $5 million, including revenues in
excess of $50,000 for services performed outside of the State
of New York. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Truck Drivers Local Union No. 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(3) by the
Discharge of Barber and Pagliarulo and the Layoff
of Healy and Gulbrandsen
Respondent is a large trucking company, having some
170 employees and a fleet of 200 trucks, headquartered in a
three-story building in Deer Park, Long Island. Its drivers,
platform men, and warehousemen have been represented
for more than 20 years by Local 807, the principal Charging
Party here; its office employees (numbering 39 in January
1975) have not previously been represented by a union. We
address here the question of whether clerical employees
Vera Barber, Beatrice Pagliarulo, Jayne Healy, and Debo-
rah Gulbrandsen were unlawfully released from employ-
ment for their efforts to secure representation by Local 807.
According to the credited testimony of Vera Barber, who
commenced employment with Respondent in March 1968,
around October or November 1974, Barber began discuss-
ing with several other office employees their common
grievances and the possibility of organizing collectively.
The discussions took place intermittently at lunch, dung
coffeebreaks, at the homes of employees, and during
working hours, and they continued into January, when two
of the employees were discharged and two laid off. Barber's
desk was located two desks away from that of Respondent's
controller, Charles Brown.
Around December 27, 1974, Respondent notified em-
ployees that, effective January 6, 1975, their hours were to
be changed. The employees discussed the matter with some
intensity during working hours.
On January 10, Respondent's majority stockholder and
chairman of the board of directors, Joseph Pinter, Sr.,
called a meeting of the office employees, at which, in the
presence of his son Robert, who is Respondent's president,
and other supervisory personnel, he said that it had come to
his attention that the group "felt harassed by the change in
hours." He then explained the business justification for the
change. Inter alia, he further stated, as Barber and four
other employees testified, that business was slowing down,
that he had already asked the drivers if they would accept a
4-day week, and that, "as far as the office is concerned he
doubted that business would get that bad but he would also
hope that we would go on a 4-day week rather than his
having to let the least senior employees go." 2
During the lunch period on January 10, about 13 of the
clericals lunched at a restaurant and decided to draw up a
list of grievances over the weekend to present to Robert
Pinter, and further determined that, if the grievances were
not resolved, they would then contact the Union.3
Upon their return from lunch, the employees conversed
in the lobby of Respondent's building. There they encoun-
tered Respondent's general manager, Richard Jacoby.
Jacoby told them that "the door is not locked" and they
could enter.
On Tuesday, January 14, Beatrice Pagliarulo, who had
been employed by Respondent since April 1969 and who
had participated in the prior union discussions, spoke with
Ted Spera, the Union's shop steward for Respondent's
drivers, about union representation. On the morning of
January 15, as arranged with Pagliarulo, Spera gave some
union authorization cards to Vera Barber. She and Pagliar-
ulo then spoke to some 17 other employees about meeting
for lunch at a nearby restaurant. At lunch, Barber and
Paliarulo told the girls that, as Spera had told Pagliarulo,
"all we had to do was sign [the cards ] and the union would
then be representing us and we were going to meet later on
that night." Barber, Pagliarulo, and most of the other girls
signed cards during lunch. That afternoon, Barber and
Pagliarulo were called in by Robert Pinter and chastised for
excessive use of company telephones for personal calls, as
more fully described infra. That evening, Spera met with a
number of employees at a bowling alley and discussed the
benefits the employees would receive from union represen-
tation.
i The transcript of proceedings is hereby corrected.
2 Robert Pinter conceded that his father stated at the meeting that
Respondent had never previously laid off employees for economic reasons,
and that "he mentioned that we looked at a four day week and we would, you
know, check it out." He further stated that his father had made some
reference to the drivers
3 No such list was submitted to management, however
PINTER BROS. 927
The foregoing is based on the testimony of a number of
witnesses ; the testimony of Respondent's witness Patricia
Ossenfort, an office employee, raised a question as to
whether the cards were in fact signed on January 15.
Ossenfort testified that it was on January 16, the day after
Robert Pinter had confronted-Barber and Pagliarulo with
the results of a telephone survey which showed that they
had been using the company phones for personal calls, that
the luncheon and the bowling alley meeting were held, and
the union cards (or some of them) signed.
According to Ossenfort, she did not work on Thursday,
January 16,4 and, around noon on that day Barber and
employee Charlotte Destefanis came to her home, asked
her to go to lunch (which she declined), displayed and
asked her to sign a "white card" for the Umon, and invited
her to attend a meeting at the bowling alley that evening.
She did attend the evening meeting; she named six other
employees as some of the ones who were present. Accord-
ing to Ossenfort, after -Spera came in, green authorization
cards were handed out to the employees, which they signed.
Ossenfort testified that Barber said to all the girls, "Re-date
these cards the fifteenth, not today's date, the sixteenth."
Ossenfort said that Barber gave as the reason for doing so
the fact that Pinter had spoken to her and Pagliarulo about
the phone surveys on the previous day and that he had told
them "he was going to go back, and, if [other phone
surveys ] were as bad as these, he was going to have to let
them go." The predating was necessary, Barber allegedly
told the group, because Barber "wanted the union to
protect her job." 5
Six of the General Counsel's witnesses testified, to the
contrary, that they signed cards at lunch on January 15
(alleged discriminatees Barber, Pagliarulo, Healy, and
Gulbrandsen, and employees Schulz and Destefanis).6
Although Ossenfort's testimony on cross-examination
shows that Respondent was made aware prior to the
hearing that Ossenfort was willing to testify as described
above, Respondent's cross-examination of the General
Counsel witnesses did not home in on the question of
whether they had in fact signed their cards on January 15-
the closest Respondent came to doing so was when it asked
employee Gulbrandsen about a strikeover in her prehearing
affidavit which might imply that she told the Board agent
that the cards had not been signed on January 15 .7
After Ossenfort -testified, however, Barber gave rebuttal
testimony that there had been only one bowling alley
4 Respondent's records substantiated this assertion
5 The implication apparently being either that Barber thought that the
signing of the union cards on the same day that she was confronted with the
phone survey would in some manner afford her legal protection, or, more
deviously, that- Barber sought to construct a situation in which the Board
would afford her relief, in the event of discharge, by the device of arranging
the chronology of events so as to make it appear that Pinter's criticism of
Barber and Pagharulo occurred only after a meeting at which the two had
secured cards for the Union.
6 Employee Lufker merely testified that she had signed a card, without
specifying the details.
7 Early in the hearing, Respondent had asked the General Counsel to
"represent" that the cards had actually been signed on January 15, but gave
no reason for so requesting. In a subsequent colloquy, Respondent asked to
see all of the cards in General Counsel's possession. I ruled that there was no
need to produce cards on which General Counsel was not relying to establish
majority status (General Counsel had announced a,theory of establishing the
Union's majority status, as a predicate for a bargaining order, by relying on
meeting, that it took place on Wednesday, January 15, that
she did not address the employees at the meeting, and that
she did not make a plea to Ossenfort or anyone else at that
meeting to back-date cards, in order to save Barber's job.
Barber did, however, volunteer that, after her termination
on January 20, she had asked employee Stansell to sign a
card in order to help Barber regain her job, as Stansell had
testified. Local 807 steward Ted Spera also testified in
rebuttal that the meeting at the bowling alley which he
attended in January had been held on Wednesday, January
15; it appeared to me, however, that Spera's testimony on
this point was more reconstruction than recollection.
Barber gave the appearance of being an honest witness,
but so did Ossenfort. Ossenfort's story is, seemingly, the
kind of testimony that an employee (at least one who is
acting independently) would not be likely to fabricate;
Ossenfort testified that her reason for coming forward was
that "I hadn't said anything all along and then I just
decided at one point that I was going to mention these pre-
dated cards."
In other respects, however, there is reason to question
Ossenfort's veracity. She testified that although at some
point prior to the hearing, she sent word of the alleged
predating to Joseph Pinter, Sr., through employee Clair
Don, he never discussed with her the nature of her
testimony. Furthermore, Ossenfort flatly stated that, on the
day before she testified, she met for the first time with
Respondent's counsel and had lunch with him and the two
Pinters, but that, while counsel asked her at that time to
draw up a written statement, he asked-her, prior to hearing,
no questions whatsoever or in any way discussed her
statement or her potential testimony. I find it wildly
improbable that counsel, having lunch with Respondent's
only ostensibly disinterested employee witness who would
testify to a matter which could, in part, impeach the
testimony of six of General Counsel's witnesses , would not
have taken the opportunity to discuss that testiniony.8
Testimony given later in the hearing on new complaint
allegations consolidated with the original ones also suggests
a rather closer relationship with the-Pinters than Ossenfort's
testimony implied. Employee Claire Don, who testified for
Respondent, mentioned that she had been at Ossenfort's
house on the evening of the day Ossenfort testified, and that
Joseph Pinter had called Ossenfort to tell her that Barber
had taken the stand to rebut Ossenfort's testimony. I
further note that other of Ossenfort's testimony on cross-
14 votes cast for the Umon in the March 26, 1675, election plus six cards
earlier signed by nonvoters). Respondent's counsel then asked, "Suppose the
cards [were] signed on the 16th and dated the 15th? Don't you think that is
relevant?" I replied, "Not if those cards were signed by people who later
voted in the election . I am talking in the context of Mr. Weinnch's theory."
At the time these cryptic references to erroneous dates occurred, my total
unfamihanty with the nature of the issues, as much later put into focus by
Ossenfort's testimony, gave me no reason to believe that a I-day variation in
the date upon which the cards were signed might develop into an arguably
material point.
s In this connection , I note also that Ossenfort mentioned that she did not
work for a half-day on January 28. I do not believe that she had an
independent recollection of this fact on August 20, the day on which ;she
testified. If she had no such recollection , it would mean that she had reviewed
Respondent's records prior to hearing or had been instructed to review her
own-in either event, such testimony militates against her assertion that she
had not discussed her prospective testimony with the Pinters or counsel prior
to the day she testified. -
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examination is unimpressive-e.g., she testified that she had
told Joseph Pinter "about the card signing as [I] described
it here today," but could not remember when; then said she
had "not really" discussed with him the subject matter of
her testimony "until yesterday when he asked me to come
to court"; and wound up saying that she had not "as of yet"
discussed the matter or her testimony with Pinter.
Also, a factor raising questions about the reliability of
Ossenfort's testimony is a clear record indication of
dissension between her and other prounion employees,
most particularly manifested in a conflict between Ossen-
fort and Doris Bonadonna, a supporter of the Union, which
resulted in Bonadonna refusing, after the March election, to
drive Ossenfort to and from work, as she had been doing.
As stated above, in addition to the alleged discriminatees,
two other employees-Destefanis and Schulz-testified
that they signed the card at lunch on January 15. They had
no more apparent benefit from perjuring themselves than
did Ossenfort, and I found them to be very credible
witnesses . I had the same reaction to the four alleged
discriminatees ,9 who willingly testified to other matters
which obviously favored Respondent' s case . All things
considered , I am inclined to credit the testimony that the
cards were passed out and signed at a luncheon on January
15.
Around the end of December or the first of January,
Robert Pinter had ordered from the telephone company a
survey of outgoing local calls made from the office; the
circumstances surrounding this action will be discussed
infra. On January 15, Robert Pinter received the phone
survey, consisting of all local telephone numbers to which
outgoing calls had been placed in the period November 12-
December 9. Pinter immediately set to work to determine
the identity of the persons who had made calls. By, the
afternoon of January 15, Pinter had established from the
survey that the employees who had apparently made the
most personal telephone calls were Vera Barber and
Beatrice Pagliarulo.10
Around 5 p.m. on January 15, Robert Pinter called Vera
Barber in, and, in the presence of Supervisors Richard
Jacoby and Charles Brown, showed her the phone survey,
and a summary of the survey, and asked her if she had
made the calls which he had marked on the survey as
probably emanating from her. He told her that she knew
that she was not supposed to make personal calls. Barber
testified that she said she was sorry, and offered to pay for
the calls."' According to Barber, Pinter said that this would
not be good enough. He told her that he had also requested
the telephone company to make a similar survey for
September, and October, and that after he received the
survey, he would decide what to do about her.12 He also
mentioned that he had told Charles Brown, her supervisor,
5 Gulbrandsen's testimony does not read well In person , however, she
conveyed a strong sense of honesty.
10 The relevant record, a handwritten summary drawn up by Pinter on
January 15 (Resp. Exh. 7), shows' that as of that time Pinter knew that
Pagliarulo had made 11 calls totaling 63 minutes and 52 seconds and Barber
had made 9 calls for a total of 37 minutes and 14 seconds. Dolores Fletcher,
another employee, had made, according to Pinter's summary, 6 calls totaling
20 minutes and 10 seconds . No other employee's calls were shown on Pinter's
summary.
11 Robert Pinter confirmed Barber's testimony in this regard.
12 Pinter testified that he had told Barber, "I am going to get September
that she was no longer to touch the telephone. Barber
testified, without contradiction, that, in her 7 years of
employment with Respondent, Brown had twice told her to
"take it easy on personal calls," the most recent occasion
being June 1974.
Pagliarulo was then called in by Robert Pinter, and a
similar- conversation 'ensued. Pagliarulo apologized for
using the phone, and also offered to pay for the calls; Pinter
recalled that she had apologized, but did not remember that
Pagliarulo had offered to pay. Pagliarulo also said to Pinter
that she "didn't see any point in him going back in the
survey, that he should warn you and look ahead to see if
you stopped." 13 When she left Pinter's office, Pagliarulo
was told by her supervisor, Catherine Turk, that she was
being removed from her job as an "on hand" clerk (which
involved using a telephone) and reassigned to a "floater"
position, because she could not be trusted with a telephone.
She went back to Pinter, protested the job change, and tried
to explain the length of some of the calls shown on the
survey. Pinter then brought up the matter of the earlier
change in hours, and Pagliarulo explained why the girls
were upset about it. The conversation closed with Pinter
refusing to rescind Pagliarulo's transfer. Pagliarulo had
never previously been warned about using the telephone for
personal purposes.
Dolores Fletcher, the other employee shown on Pinter's
summary, was not personally confronted that day.
On January 16, Office Manager Richard Jacoby had a
meeting with all office personnel. He told them that
Respondent was in the process of obtaining the telephone
surveys, that the personal calls were getting out of hand,
that two girls had been warned about the matter on the
preceding day, and that the company was going to start
checking on personal calls.
According to Barber, a group of the employees again
lunched at a restaurant on January 16.14 Barber testified
that Jacoby and Robert Pinter were observing them from a
window of the office building as they left from the parking
lot.
On Friday, January 17, upon leaving work about 5:30-6
p.m., Vera Barber, Beatrice Pagliarulo, Charlotte Destefan-
is, and Joanne Berderane waited in the parking lot for night
shift employee Sinclair, with the purpose of ascertaining the
amount of union support among the night shift employees.
Barber encountered night employee Alberta Nash and
engaged her in innocuous conversation. Joseph Pinter, Sr.,
exited the building, got into his car, drove up to Barber and
Nash, asked them "How are my lovely night girls," and told
them to have a nice weekend. He then, however, started to
pull away, looked in his rear view mirror, made a U-turn,
parked his car, and reentered the building.15 The day-shift
and October and if they're as bad you're going to get your walking papers,"
and that when he then asked her how those months would compare, she "lust
shrugged her shoulders."
13 Porter testified that he asked Pagliarulo whether September and
October would reflect a worse experience, to which she replied, "Probably
worse." He then told her, "I am going to have to take everything into
consideration and think it over."
14 Pagliarulo only recalled eating lunch with "a few" girls that day.
15 During this period, the other three day employees, including Pagliaru-
lo, were sitting in Barber's car, about 20 feet to the right of Pmter's car
PINTER BROS. 929
employees encountered Sinclair entering the lot, and
shortly thereafter drove off.
Sinclair , a night-shift employee , testified that one night in
January, "on a Friday maybe," 16 she saw Barber, Pagliaru-
lo, and some other employees in the parking lot as she was
going to work . Inside the building , she saw Joseph Pinter.
As to her encounter with him, she testified : "... He had
been looking out and just asked me if anyone had
approached me and I looked and said not [sic] just the girls
said hello to me_" 17
That evening , about 6 : 30, Robert Pinter sent telegrams to
Barber and Pagliarulo at their homes , notifying them that
they had been terminated .18 Barber received a notice that
Western Union had attempted to deliver the telegram, but
did not actually see a copy for several days. She spoke with
Pagliarulo on Saturday, January 18 , however, and learned
that Pagliarulo had also received a telegram and, presum-
ably, learned as well of its contents . The two con, tacted and
met with Whitey Schneir , a union business agent, over the
weekend . They also called most of their fellow employees,
notified them of their discharges, and arranged to meet at a
diner early Monday morning . About 18 employees attend-
ed the meeting, at which Schneir informed them he would
meet with Pinter that morning . The employees then went to
work.
When Barber reported to the office , Joseph Pinter and
Jacoby approached her, and Pinter asked if she had
received the telegram. When she said she had not , he told
her that she had gotten "the pink slip." She asked for the
reason, and he said, "Business is slow." She asked, "Is that
all?"; Pinter replied, "That is all" 19 Just after Barber's
conversation , with Pinter, she began speaking with Schneir,
who had just made a bargaining demand to Pinter. Also
present were -Union Steward Spera, Jayne Healy, and
Deborah Gulbrandsen (the latter two were laid off that
morning, as discussed infra). Pinter came up and said to
Schneir, "These girls have been terminated and if you don't
mind, I don't want you holding any meetings on my private
property." 20 Schneir acquiesced.
Pagliarulo also spoke to Joseph Pinter when she arrived.
She asked him what the telegram was all about, and he said
that "business is slow , we no longer have any use for you."
When Pagliarulo then asked why the telegram stated- that
she had been fired for "violation of company policy,"
Pinter said that he did not know , and that she should ask
his son. Joseph Pinter denied that he had told Pagliarulo
that she had been let go because "business is slow," but
admitted that he told Pagliarulo, "Look, I don't know
what's in the telegram . If you want to know anything about
it, ask my son Bob." Asked at the hearing why he had
referred Pagliarulo to Robert, Joseph Pinter stated : "Since
Bob made the decision, I wanted-I didn't want any
conflicting stories."
Pagliarulo then spoke to Robert Pinter. He told her she
had been discharged because of her personal phone calls.
She stated that she thought he was waiting for the other
surveys, and "he said he didn't have to wait for anything."
Pagliarulo then asked why Joseph Pinter had just told her
she was discharged because business was slow , and Robert
Pinter said "regardless of the reason , you are fired, so get
off the premises."
The record is clear that no employee had ever been
discharged in the past for excessive use of the telephone; 21
that the customary procedure for discharging-an employee
was to notify him of the discharge shortly before quitting
time on Friday evening ; and that Joseph Pinter, Sr., could
recall no occasion in the 45-year history of the company in
which an employee had received notification of discharge
by telegram.
Among the participants in the discussions about unioni-
zation was Deborah Gulbrandsen. Gulbrandsen was hired
as a clerk-typist in August 1974, and performed assorted
duties. She signed a card-on January 15 and attended the
meeting at the bowling alley that evening. On Monday,
January 20, after leaving the meeting at the diner between
the employees and Schneir, she reported for work about
8:30 and found that her timecard was missing . Joseph
Pinter and Jacoby were standing near the timecard rack.
Pinter called her over and said that "work was slow and
16 On cross-examination, Sinclair stated that she "miagme[d]" that the
following Incident occurred on the night Barber and Pagharulo were
discharged, although she had earlier testified to uncertainty on the point.
17 Sinclair was a most reluctant witness for the General Counsel. An
affidavit she gave to a Board agent stated that Pinter had askedher "0 they
(Vera and Bea) had approached me about anything." At the hearing,
however, she denied that Pinter had mentioned the two names, and also
denied telling the Board agent that he had done so. She further asserted that
the Board agent had told her that the statement would be held "in
confidence" and that "no one was to see it," and that the agent kept
"pressuring" her despite her having told hun that she "didn't want to get
involved " Subsequently, however, when asked by Respondent's counsel to
reaffirm her testimony that she had been "pressured" by the Board agent, she
replied , "No, not well, he asked questions like you are asking and ,I
answered ." She further said that she did not read the affidavit "that close"
before she signed it, and that she signed only because "I thought it was my
business to sign it." -
While I received the affidavit in evidence , I conclude that, contrary to
General Counsel 's assertion at the hearing, I cannot consider it as indepen-
dent probative evidence that Pinter specifically mentioned Barber and
Pagliarulo to witness Sinclair. For one thing, people do not speak parentheti-
cally, and Pinter obviously did not ask her if "they (Vera and Bea)" had
approached her. Furthermore , an affidavit used in the manner described
against a hostile witness (I have no doubt, as I ruled at the hearing, that
Sinclair was hostile in fact to the General Counsel, at any rate, Rule 607 of
the Federal Rules of Evidence provides that "The credibility of a witness
Z may be attacked by any party, including the party calling hum") is hearsay
d ordinarily may only serve to impeach the testimony of the witness. Rule
801(d)(1)(A) provides that a prior inconsistent statement by a witness is to be
considered hearsay unless the statement "was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding , or in a deposition."
The affidavit thus constitutes hearsay, and I may only consider it for
purposes of impeachment of Sinclair. Because the affidavit was not intended
to impeach , but rather (from the General Counsel's point of view) to
improve, Sinclair's testimonial account of Pinter's statement, I shall therefore
disregard the affidavit altogether I find the testimony of Sinclair as given at
the hearing to be a concession that, about 6 p.m. on January 17, Joseph
Pinter was looking out of the office window and asked her "if any one had
approached" her.
18 The telegrams read, "Effective 17 Jan 1975 1730 hours we are
terminating your employment for violation of company policies brought to
your attention on 15 Jan 1975."
19 Employee Charlotte Destefanis was present . She testified that, after
mentioning "the old pink slip," Pinter, Sr., said, "We don't need you any
more." In his testimony, Pinter, Sr., at first could not recall whether Barber
asked why she was terminated. I doubt his subsequent testimony that he may
have told her "You violated company policy, or something like that,
something to that effect."
20 Pinter was not asked about this testimony by Barber.
21 Employee Schulz conceded, however, that Robert Pinter and Jacoby
had occasionally told the employees not to make personal calls "of long
duration."
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I wouldn't be needed any more," that she was "being
laid off." 22, She went into the lobby, saw Schneir and.Spera,
and was present when Joseph Punter told the group to-leave.
An employee named Helen McDermott had been hired
about a month after Gulbrandsen's hire in August 1974, at
the same salary. McDermott's work function was filing
bills, one of the jobs that Gulbrandsen had also performed.
An employee hired through Tempo, a temporary employ-
ment agency, whose work involved filing and pulling bills,
which Gulbrandsen had done, was still-employed when
Gulbrandsen was laid off.
Jayne Healy was hired by Respondent on October 16,
1972, as a file clerk. Her desk was located about 6 feet from
that of Robert Pinter. She signed a card on January 15 and
participated, in the union discussions with the other
employees, sometimes at her desk; she could not recall
whether Pinter was present at his desk when such- discus-
sions were held. Healy attended the early morning meeting
on January 20 and, when she arrived at work, .Pinter, Sr.,
told her that she had been laid off because " business was
slow." As of January 20, she was senior in employment to
five other employees who were not laid off: Sue Burner,
who pulled bills and typed statements in the billing
department; Rita Genato, a "floater"; Joanne Berderane,
who worked in the claims department; Rosalie Palasolo, an
interline department employee; and file clerk Helen
McDermott.23
Healy testified that on January 17 she had had sufficient
work to keep her occupied.- While employed, Healy had
been told by Supervisor Turk that she was "very accurate
and very fast." 24
The Union filed a petition for election on January 20,
1975. The election was held on March 26. Management
representatives of Respondent conducted two preelection
meetings , one for the day-shift clericals and one for the
night-shift employees, on March 24.
According to employee Destefanis, Joseph Pinter, Sr.,
referring to notes, told the employees that the company
offered good working conditions and pay; that many
companies in the industry were going out of business; that a
union could not guarantee jobs; that nobody likes anybody
coming in and telling them how to run their business; that
the unions only tell employees about the bad things;'that he
himself had wanted his drivers in the Union; and that the
company was always prepared to listen to grievances.
Pinter also referred to the two girls who had been fired,
saying that he had a survey showing the calls made by them
and that anyone was welcome , to see it. He stated that he
had been talking to a friend of his about these girls "causing
22 According to Pinter, Gulbrandsen asked, "Just like that9" and he
replied, "Just like that." He testified that he simply told the two that their
services were no longer required, and did not mention economic conditions.
He also testified that an unsuccessful effort to reach Gulbrandsen (and
Healy) at home had been made earlier that morning, in order to obviate their
coming to work.
23 While Robert Pinter testified that, as of January 20, Respondent had
"one or two girls" with less seniority than Healy and Gulbrandsen,
Respondent made no effort to contradict Healy's specific testimony by use of
its personnel records, and I accept Healy's testimony.
24 Turk did not testify
25 At the time of their termination , Pagliarulo was earning $190 and
Barber $195. Employee Schulz also testified that, at a meeting (although she
was unsure of its date), Pinter "mentioned that he couldn't understand why
Bea and Vera were unhappy with-at their jobs with the salaries that they
all this trouble, and he couldn't understand why these girls
who were making $190 and $195 a- week could be so
unhappy." 25
Pinter told the employees that, if the Union won, he had
to negotiate but did not have to reach agreement. An
employee asked what would happen if an agreement was
not reached, and Pinter said, "there could be layoffs and
men out of work." During the day-shift meeting, to the
question by employee Claire Don as to whether the night
girls could bump the day girls, Pinter answered that it could
be so.26 According to Destefanis, a question followed as to
whether day girls might not have to go on-the night shift,
and Pinter -agreed.. At that point, Destefanis testified,
Robert Pinter stated that if the Union was, elected, the
employees would be put into job classifications, and that if
new jobs opened up, present,employees could not qualify
for them because they would be locked into their classifica-
tions.27 Robert Pinter vaguely remembered a question
about "whether they could bump someone else if they knew
the job better or something like that," and he responded
that "as we have now, there will be job classifications."
Employee Sinclair testified, rather unwillingly, that at the
meeting of the night clerical employees Robert Pinter
displayed a union contract and said that it -contained a
clause giving full-time employees seniority over part-timers,
regardless of payroll seniority. A majority of the 13 night
employees work only part-time. Sinclair also grudgingly
and uncertainly testified that, during this meeting the
Pinters may have said'that "they might have to cut down on
the day operation."
. Joseph Pinter testified that, at these meetings, he gave a
speech which expanded on the notes given him by his
counsel. He extolled the benefits being afforded the
clericals. Among other things, he told them that "the
company must have some discipline in its office because, if
the office is not productive, the company cannot survive;
and if the company does not survive and keep costs under
control, jobs could be lost permanently." He also said that
if the Union made demands the company could not meet,
"there could be a strike; and, in a strike, you're bound to
lose business; and, in that respect, jobs can be lost
permanently." He also "may have referred to some [union-
ized companies] and with reference to the number of
drivers that they had to lay of '
Employee Diane Lufker testified that at some time after
Barber, Pagliarulo, Gulbrandsen, and Healy were terminat-
ed and prior to May 1`975 (when she gave a statement to the
Board), she was passing through Respondent's lunchroom
near a table occupied by General Manager Jacoby and
were making," and referred to them as "the instigators of a union."
Destefams, however, denied that Pinter specified by name the girls who had
been "causing trouble."
Pinter used notes prepared by counsel ; the notes are in evidence. One of
the suggested points reads "Explain how the Union propaganda began to
develop (make available the records of the two employees showing their
excessive telephone calls)." " It should be noted that, as of March 24, Barber
and Pagliarulo had not yet filed charges, as discussed infra.
26 Schulz corroborated the testimony-of Destefams on this point Pinter,
asked whether a question was raised about full-time employees bumping
part-time employees, said, "I heard something about that, but I didn't know
how to answer it, so I said I didn't know."
27 The company practice generally had been to train present employees
for new positions , except when the existing complement could not handle the
workload.
PINTER BROS. 931
Controller Charles Brown, and overheard Jacoby say to
Brown: "I told the old man not to fire those two girls, but
he said no, because he doesn't want the union in." Jacoby
testified that he never requested either of the Pinters not to
terminate any of the four employees involved here, and
denied making any such statement to Charles Brown.
Brown did not testify on this point. Charlotte Destefanis
testified that on one occasion of uncertain date, but at a
time before she signed her union card, Supervisor Turk
"asked me if I had any idea, if I had heard any girls talking
about a union, and I did not want to say anything to
Catherine, and I said no." Turk, although still in Respon-
dent's employ, did not testify at the hearing.
Robert Pinter and Joseph Pinter, Sr., explained at the
hearing the reasons for discharging Barber and Pagliarulo,
and laying off Gulbrandsen and Healy. -,
Robert Pinter testified that the downturn in the economy,
and in his business, hadled him, in the late summer of 1974,
to take a new look at Respondent's operations. As a result
of a consultant's recommendations (and the trend of the
economy), the platform force was reduced from 42 men to
31 as of August 1975; the reduction was not achieved by
termination, however, but by attrition. Management per-
sonnel engaged in "constant" meetings to analyze every
facet of the business- and attempted to carve off any
demonstrable fat. -
For several years, Respondent had been investigating the
possibility of installing a computer system and, about mid-
1974, leased one. It was put into operation on January 1,
1975. The result of the installation of the computer was to
reduce the amount of clerical work required to be done
manually.
Robert Pinter 'testified that his office had received
"constant -complaints" from outside callers that Respon-
dent's telephone lines were always busy.28 Accordingly,
around the end of December 1974 or the first part of
January 1975, he requested the telephone company to
conduct a-survey of Respondent's local phone lines; the
month chosen, at random, was November 1974. The survey
was received by Pinter on January 15; it shows, inter alia,
the date, duration, and telephone number called of all local
calls placed between November 12 and December 9.
Pinter instructed his secretary, Joan Barry, to underline
on the survey "all calls that are over 5 minutes," and then to
make up a summary of the phone numbers so underlined.
The phone company records, with Barry's underlining, and
her summary, are in evidence. With all due respect, I must
note that Barry did- a terrible job, so terrible that I am
suspicious of the- whole story. The exhibits show that . she
isolated 36 calls of over 5 minutes duration; my own review
of the survey shows at least 50 other calls exceeding 5
minutes, ranging up to 23 minutes in length, of which Barry
took no notice.
Pinter and Barry then checked the home phone number
of the employees from personnel records and identified
some of the calls shown on her summary. Other numbers,
such as those of business acquaintances, were familiar to
them. When unable to identify the numbers through their
own knowledge or resources, they placed calls to the
numbers. After going through this process (and being
unable to identify a number -of the over-5-minute calls),
Pinter perceived connections between the numbers called
and three nonsupervisory employees: Barber,- Pagliarulo,
and Delores Fletcher, secretary to the warehouse manager.
When this was done, Pinter then went backto the telephone
company printouts and made a list of all calls made to the
identified numbers , even though they were less than 5
minutes in length. His deductions showed that in the 1-
month period, 6 calls were made to.Fletcher's house, 9 calls
were made to Barber's house, and 11 calls were made to the
liquor store at which Pagliarulo's husband worked. He duly
recorded these calls on two pieces of paper, now in evidence
as Respondent's Exhibit 7.29
On the evening of January 15, Pinter summoned Barber
and Pagliarulo to his office. They admitted they had made
the calls. Pinter testified that he told Barber that he was also
going to get surveys for September and October "and if
they're as bad you're going to get your walking papers." He
says that he asked Barber how the September and October
surveys would compare to the one relating to November,
and she "just shrugged her shoulders." In a separate
meeting with Pagliarulo, he put the same question to her.
She "slyly said probably worse," and he told her "I'm going
to have to take everything into consideration and think it
over." 30 He also, as previously discussed, told Supervisor
Turk to change Pagliarulo's job so that she would not be
tempted by a telephone.
Pinter at first testified that he was "quite angry," but
"before I took further action or final action I wanted to
consult with my father." He did so, and, so Robert Pinter
testified, Pinter, Sr., said "[W]ell, let's wait until the end of
the week anyway before we do anything." He further
testified that, in the interim, he observed Pagliarulo and saw
that she was unhappy about her job change and was doing
very little work. He also had Joan Barry continue to check
out the-still unidentified numbers on the survey, and made
some more identifications, including some lengthy calls to
Pagliarulo's cousin, Pat Rogers. In testimony which was
struck as unresponsive to the question asked, but which
summarizes the thrust of Robert Pinter' s initial testimony,
Pinter stated, "As we continually went over and batted this
thing back and forth, of course, we would take- time when
we were looking to cut back personnel and that we felt we
didn't need these amount of people we had, so my
judgment was that as long as these people were abusing
phone privilege this would be good reason to terminate
them." -
28 Respondent had seven lines for local calls, and seven more for calls
from outside the Nassau-Suffolk area.
29 Pinter misstated the facts in saying that the exhibit shows nine calls
made to Barber's home number (884-4247), which is what the paper
indicates. In fact, a check of the basic record shows that one of the rune calls,
running 7 minutes and 25 seconds , was made to the number 333-4747.
Similarly, he errs in saying that the 11 calls shown on the exhibit under the
number 842-1122 (where Pagliarulo's husband worked) reflect calls made to
that number . In fact, the fourth call listed was made to Pagharulo's cousin at
582-6739. Pinter's testimony as to when he discovered the cousin connection
shifted quite a bit; at one point, he said he did not know that the number
belonged to Pagharulo's cousin on January 15, the day he' wrote up the
exhibit, but it appears in the middle of the list (and, at the same time, the list
does not contain other calls made to that number shown on Resp. Exh 1).
30 Pagharulo did not deny making such a statement ; she testified that she
"can't recall" having said this, but refused to say she was "sure" she had not
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The final decision was made, Pinter testified, at a meeting
with his father (and perhaps Jacoby) "on what we were
going to do" about 5:30-6 p.m. on Friday, January 17. At
that time, Robert Pinter pointed out that "we had to cut
back anyway" but the "main reason" for firing Barber and
Pagliarulo was the "excessive abuse of the phone calls
which I thought justified the actions." Pinter testified that,
in the past, General Manager Jacoby had handled such
personnel matters, but Jacoby "was in the process of getting
ready to retire and relinquishing some of these responsibili-
ties, so I sent the telegrams."
On cross-examination, however, Robert Pinter gave a
different version of when the final decision to terminate was
reached. There, he stated that he reached the conclusion on
January 15 that he "wanted to let them go right away," and
that on either that day or the morning of the following one,
his father, after reviewing the survey material, told him to
keep the girls on and "let them go at the end of the week." 31
He explained the use of the telegrams as being that "Mr.
Jacoby had handled most of this and before I realized that
[Barber and Pagliarulo ] had left, so-I was busy doing
something else." Since the record shows that Jacoby did not
go into semi-retirement until the following June, and since
Jacoby had, as Robert Pinter conceded, "definitely" been
consulted about the decision to terminate Barber and
Pagliarulo,32 there is no apparent explanation of why
Jacoby did not routinely handle the terminations, if, in fact,
the decision was made on January .15 or 16.33
Joseph Pinter, Sr., agreed with his son's first version and
contradicted the second one. The senior Pinter testified that
Robert showed him the telephone survey on January 15
and said, "We should fire the girls right then and there."
Pinter, Sr., told Robert, however, "Well, since we only have
two more days to the end of the week, why let's give it a
little thought and we can make a decision then." He further
testified that after meeting with his son about 5:30 p.m. on
January 17, and deciding to send telegrams to the two girls,
he left the office, got into his car, started to drive off, and
then returned. He had at least two reasons for returning-
one he could not recall, but the other was that he saw
Barber outside and he wanted to tell his son that "they"
were still out there if he wanted to call "them" in. Robert,
however, decided not to do so, but rather to go'ahead with
the plan of sending telegrams. Although Pinter, Sr., was the
one who subsequently told Gulbrandsen and Healy at the
timeclock on Monday morning that they were being laid
off, he chose not to tell Barber of her discharge, assertedly
already decided upon, because "I don't talk to people in the
parking lot on matters of that kind" and, alternatively,
because "I wanted to talk to my son first. He was the one
who was handling the situation from the beginning."
As to the layoff of Gulbrandsen and Healy, inconsisten-
cies also appeared in the testimony of Respondent's
witnesses. Robert Pinter testified that their layoff was the
31 Joseph Pinter testified that it was on January 15 that his son showed
him the material, and that he did not recall looking at it thereafter.
32 Pinter testified that he was "pretty sure" that Jacoby participated in the
discussion between the two Pinters on January 15 or 16 in which the decision
allegedly was reached to terminate Barber and Pagliarulo.
3 Robert Pinter also had a third version: "we s ke about it before, we
had made that decision, but we said we would definitely go over final on
Friday, and it was definitely affirmed"' Charging Party's brief refers to the
Friday meeting as the "final -final" meeting.
product of a "continuing" series of meetings which Respon-
dent's officials had been holding "since October, Novem-
ber, December." He said at first that he could not recall
whether the names of Gulbrandsen and Healy came up at
the late afternoon meeting of January 17,34 but that he gave
the matter of dispensable employees some thought over the
weekend:
So over the weekend I was thinking of-[Pinter Sr.] is
not too familiar with the general day-to-day running so
I was trying to think of what people were the least
productive and we figured that these people were the
least productive which they were because one, the job
was taken away and put in the dispatchers which
proved to be a very good move.
Robert Pinter further testified that on Monday morning,
January 20, he got together with his father and Jacoby, at
which time he and Jacoby "went over the different jobs the
people had" and decided that the jobs of Healy and
Gulbrandsen were the most unessential ; at that meeting, he
also, and contrarily, testified, no other possible candidates
for layoff were mentioned. Despite this self-proclaimed
thorough involvement in the decision-making process,
however, he conceded that he told a Board agent, and at the
hearing affirmed the truth of the statement, that Jacoby
would be the one who would really know the specific
reasons why the two girls were laid off.35
Although Robert Pinter gave the clear impression that his
deliberation during the weekend period about the matter
was confined to his own thought processes,36 Joseph Pinter,
Sr., testified that he and Robert, who lives with his father,
discussed the matter at home over the weekend. He stated
that Robert suggested that they lay off five or six girls; that
he disagreed; that he asked Robert which employees he
thought to be the least productive; and that Robert named
Gulbrandsen and Healy. He further stated that he and
Robert, over the weekend, "discussed and reached the
decision" to lay off the two employees. Contrary to
Robert's detailed testimony, described above, that he, his
father, and Jacoby had a discussion as to layoff possibilities
on Monday morning, Pinter, Sr., testified that he arrived at
the office about 7:15 or 7:30, and that when Jacoby came in
at 7:30, "I immediately" told him to call the two girls at
home to notify them' that they -need not come in. At a
subsequent point in his testimony, Pinter, Sr., reiterated
that the decision to lay off Healy and Gulbrandsen was
reached over the weekend.
Robert Pinter and his father both conceded that, since
the Respondent's formation in 1930, no employee had ever
been laid off for economic reasons . Robert Pinter further
admitted that "at least one" of the two laid-off employees
(he did not identify which one) could have performed the
work of employees who had less seniority but were not laid
off. The parties stipulated that the employee complement
34 Subsequently, however, Porter testified that he "thmk[s ] it was brought
out and we said well, we can always get together Monday and everybody
think about it over the weekend and basically that's what we did."
35 Jacoby did not testify on this point.
36 In answer to the question , "What day was the particular time you
determined you would lay off Deborah and Jayne?," he answered, "Well, my
father and I had a meeting Friday night and also Monday morning."
PINTER BROS. 933
remained constant at 35 employees from January 20 to
March 26, the date of the election; thereafter, there were
layoffs, although the record is unclear as to the number.
Robert Pinter did testify, however, that, to the best of his
knowledge, the layoff of employees after Healy and
Gulbrandsen was "in accordance with seniority."
Analysis and Concluding Findings as to Barber
and Pagliarulo
The evidence clearly supports General Counsel's conten-
tion that Barber and Pagliarulo were discharged for their
activities in support of the Union. This conclusion, I might
add, is solidly grounded on evidence and inferences which
make irrelevant the conflict in testimony, and the possible
radiating effect therefrom, between Respondent's witness
Ossenfort and six of General Counsel's witnesses as to the
date on which the cards were signed.
The issue of Respondent's knowledge of the union
activity was hotly contested at the hearing. The Pinters
claimed that they knew absolutely nothing about the onset
of union activity until Teamsters Representative Schneir
arrived at the company premises on the morning of January
20. There are, however, circumstantial reasons for imputing
such knowledge prior to the terminations.
Robert Pinter agreed that it was company policy to
maintain "close contact" with the employees; at one point,
Pinter demonstrated familiarity with the habits of the 39
employees by mentioning that Pagliarulo "very seldom ate"
in the company lunchroom and that four or five of the girls
"usually go around the corner some place." This suggests
that the departure of large groups of the girls for luncheon
meetings would attract attention. Respondent's officials
were sufficiently aware of the widespread dissatisfaction
among the employees about the change in hours as to
believe that a meeting on January 10 was in order to explain
the change. The record shows considerable discussion
around the office, among girls who worked in open spaces
along with supervisors, concerning their grievances and the
possibility of unionization. It is clear that Pinter, Sr.'s
secretary had a custom of reporting employee activities to
him; asked if this was not so, he replied, "Yes, and it should
be that way too." The record contains preelection letters to
employees in February and March which refer to Barber
and Pagliarulo as the instigators of the Union, even before
they had filed charges. Don conceded that, on the evening
of the election, Joseph Pinter told her that he was "hurt"
that employee Bonadonna had "turned on him." In this
setting, with a compact group of employees working in
large unpartitioned offices in close proximity to their
supervisors, it is not difficult to infer company knowledge
of union activity. N.L.R.B. v. Link-Belt Company, 311 U.S.
584, 602 (1941); N.L.R.B. v. Stark, 525 F.2d 422, 431, fn. 8
(C.A. 2, 1976); N.L.R.B. v. Ampex Corporation, 442 F.2d 82,
86 (C.A. 7, 1971); N.L.R.B. v. Lawson Printers, Inc., 408
F.2d 1004, 1005 (C.A. 6, 1969); N L.R.B. v. The Pembeck
Oil Corporation, 404 F.2d 105, 110 (C. A. 2,1968); N.L.R.B.
v. Dove Coal Company and Lark Coal Company, 369 F.2d
849, 851 (C.A. 4, 1966); Angwell Curtain Company, Inc. V.
N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951). There is,
furthermore, the undenied and credited testimony of
Destefanis that at some time before she signed a card,
Supervisor Turk asked if she "had heard any girls talking
about a union." 37
In addition, there is other evidence of Respondent's
knowledge of the union activity, either explicit in, or
inferable from, the evidence of Respondent's motivation, as
discussed below.
The most direct evidence of that motivation is the
testimony of Diane Lufker that she overheard Office
Manager Jacoby tell Controller Brown, "I told the old man
not to fire those two girls, but he said no, because he doesn't
want the union in." This is a rather remarkable statement to
overhear. However, I was observing Lufker closely as she
gave this testimony. She uttered the words with a sense of
conviction, and strongly conveyed the impression that she
was repeating exactly what she had heard. No evidence
appears on the record to indicate that Lufker had any
personal interest to serve by fabricating this occurrence,
and she undoubtedly was aware that such testimony would,
to say the least, bring her into Respondent's disfavor. If the
testimony had been created out of whole cloth, one might
think that the words "not to fire those two girls" could as
well have been expanded to something like "I told the old
man not to get rid of those four girls," so as to encompass
Healy and Gulbrandsen; Lufker's testimony was, as
indicated, more limited.
Jacoby's denial that he had engaged in such a conversa-
tion carried no similar ring of conviction. After careful
consideration of all her testimony, I have concluded that
Luther should be credited.38
Other evidence and inferences amply support Lutker's
direct evidence of Respondent's motivation in the discharge
of Barber and Pagliarulo. I should point out that while the
evidence is slender that Robert Pinter ordered the tele-
phone survey for the purpose of laying a foundation for
dischargmg anyone, his inability to name more than two of
the people who had "constantly" complained about receiv-
ing busy signals when calling Respondent (his mother and
"Sal" from Carolina Trucking) raises a serious question as
to why he would bother undertaking the telephone survey. I
note also that the notice of a change of hours which
provoked 'unrest among the employees, leading to the
January 10 meeting, was given on December 27; Robert
Pinter testified that he ordered the survey around the end of
December or the first part of January.
By the time Pinter received the survey and talked to
Barber and Pagliarulo, the employees had held their
luncheon meeting of January 10, at which they had
discussed the possibility of seeking representation, and their
January 15 meeting, at which cards were signed. When
Pinter confronted Barber and Pagliarulo on January 15
with the survey results, I think it fair to infer that he was
tacitly warning them that their jobs were in jeopardy if they
did not stop making waves. That Pinter did not intend, on
37 I would not, however, place any reliance on the equivocal testimony that he spoke to Porter, Sr., about the unionization of the office employees on
regarding Robert Pinter on one occasion allegedly crouching behind a car in January 18.
the parking lot, or the testimony concerning supervisors watching the 38 I note also that Lufker is not involved in the testimonial conflict
employees in the parking lot from the office, or the testimony of Ted Spera between Ossenfort and the other witnesses.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 15, to discharge the two is evidenced by his own
admission that he told them he would wait until receipt of
the September and October surveys before taking any
action. I fmd it peculiar, to say the least, that an employer
would, in normal circumstances , even think about discharg-
ing employees with tenure of nearly 7 years (Barber) and
nearly 6 years (Pagliarulo) for the "only reason" of having
made personal telephone calls amounting, in 1 month's
time, to a total of 37 minutes and 63 minutes, respectively.39
If otherwise satisfactory veteran and trained employees had
so erred in the past, it is likely that, in usual circumstances,
they would have simply been warned not to repeat their
transgressions40 The threat here that Respondent might
take some action in the future based on the September and
October surveys was, I believe, uttered only for the purpose
of bringing to a halt the perceived ongoing collective
activity by erecting a sword of Damocles over Barber and
Pagliarulo.41
The two were not deterred, however. On the evening of
January 17, they waited in the parking lot for the purpose of
enlisting the night-shift employees in the Union. That, I
believe, was what caused the sword to drop. That Pinter,
Sr., saw Barber and Pagliarulo out there is clear.42 The
testimony of General Counsel's reluctant witness, Sinclair,
that, probably on January 17, as she was entering the
building about 6 p.m., she saw Pinter, Sr., looking out the
window and was asked by him "if anyone had approached
me" 43 is strongly indicative of the fact that the girls were
the object of Pinter's surveillance and concern for their
activities. Just before this incident, I infer, Pinter, Sr., went
out to the parking lot, entered his car, drove up to Barber
and spoke to, her, and then pulled back into his parking
space and reentered the building.
While Pinter, Sr., testified that he did this because he
remembered that he had to do something and also to tell his
son that "they" were still outside, so as to obviate the need
for sending telegrams , it seems more likely that his reentry
was sparked by his having identified Barber and Pagliarulo
as being present in the parking lot. He then waited and
asked Sinclair about her being approached, Thereafter,
admittedly for the first time in the memory of both Pinters,
telegrams were sent to the two girls, discharging them for
"violation of company policies," an action contrary to
Robert Pinter's own testimony that he told the two that he
would await the results of the September and October
surveys and contrary to the company's 45-year policy of
39 When Pinter spoke to the two employees on January 15, he knew of
only these total amounts (Resp. Exh. 7) It subsequently developed that
Pagliarulo had made additional calls to a cousin, but the time at which Prater
traced this down is very unclear.
40 It is worth noting that while Robert Prater testified that Respondent's
"policy was no personal phone calls except in emergency," the preelection
letter of February 19, 1975, signed by him states, "[W]e recognize that
personal calls are made, and frankly we shut our eyes to this if the calls are
reasonable in number and in duration."
43 Employee Schulz credibly testified that about January 24 Robert
Pinter approached secretary Delores Fletcher and jokingly told her that she
had "nothing to worry about" with regard to her phone calls The January 15
investigation had' shown that Fletcher had made six calls, for a total of-20
minutes . The record also shows that Fletcher was one of the four employee
participants in a victory party held by the Pinters on the night of the election.
42 While he insisted at the hearing-that he saw only Barber, in other
testimony Pinter, Sr., slipped by recounting that he returned to the office to
tell his son that "they" were still on the premises if he wanted to call "them"
in.
orally notifying employees, shortly before closing time on
Friday, that they were to be discharged.
Robert Pinter gave two intertwined reasons for the
unprecedented use of telegrams .44 He said that termination
of an employee normally would have been handled by
Jacoby, but he was being phased out of his duties, and the
girls had left by the time Pinter thought about the matter.
This is either irrelevant or erroneous, depending on which
version of the decisionmaking process given by the Pinters
one chooses to believe. If, as Joseph Pinter stated, the
decision was not made until the end of the week, on Friday
evening, at a time when Barber and Pagiarulo had already
left, then the fact that Jacoby was no longer performing
such functions simply has nothing to do with the failure to
give oral notification. If, as Robert Pinter alternatively
testified, the decision was reached on Wednesday or
Thursday, "definitely" in consultation with Jacoby, there is
no apparent reason why Jacoby did not routinely handle
the terminations on Friday night, since the record is clear
that Jacoby continued to play an active role as office
manager until the following June.45
Even more peculiar is Robert Pinter's reaction to his
father's alleged suggestion , upon returning from the park-
ing lot, that since "they" were still on the premises , Robert
could call "them" in and discharge them, instead of sending
telegrams . It is difficult to understand why Robert would
have decided against oral notification of termination, the
traditional practice, and decided instead to forge ahead
with the telegrams (an unnecessary expense which may be
sharply contrasted with Pinter, Sr.'s, subsequent remonstra-
tion to Lufker about making two xerox copies of a
document when one would suffice, to be discussed infra.)
Equally inexplicable are the senior Pinter's dual reasons
for not personally informing Barber and Pagliarulo of their
decided-upon termination. The man who did not "talk to
people in the parking lot on matters of that kind"
admittedly had no compunctions about informing Barber,
Healy, and Gulbrandsen about their release at the time-
clock on Monday morning. The alternative reason-"I
'
'
wanted to talk to my son first. He was the one who was
handling the situation from the beginning"-makes no
sense : if father and son had just discussed the matter and
conclusively determined to send telegrams firing the girls,
why would Pinter, Sr., have need to further consult his son?
Much more likely an explanation is that, having definite-
ly ascertained the presence of the girls in the parking lot,
5 Pinter said be did not recall whether he spoke with Sinclair that
evening.
44 He testified on two occasions-
The reason I sent them, in the past Mr Jacoby had handled these
matters and he was in the process of getting ready to retire and
relinquishing some of these responsibilities, so I sent the telegrams.
Well, actually the reason for the telegrams was Mr. Jacoby had
handled most of this and before I realized that they had left, so-I was
busy doing something else.
In contrast to Robert Pinter's first given testimony above, see his father's
testimony that until May 31, Jacoby " still performed the same duties he had
done for the past 35 years."
45 Robert Pinter's testimony was less than consistent in other areas. An
example is his triple-shift testimony as to when he discovered that one of the
numbers shown on the telephone survey belonged to Pagharulo's cousin.
PINTER BROS. 935
apparently in the process of continuing to solicit for the
Union, Pinter, Sr., returned to the office and advised his son
that the warning of January 15 had had no appreciable
effect and that it looked as if the union effort was spreading
to the night shift. On the basis of that news, and without
further regard to the expected phone surveys of September
and October which he had admittedly earlier mentioned to
the girls as his predicate for any action,46 Robert Pinter
then sent the telegrams firing the trained and experienced
employees with nearly 6 and 7 years of seniority apiece.
My conclusion as to Respondent's motive is further
supported,- I believe,- by the early morning events of
January 20. Barber and Pagliarulo both testified that when
they separately encountered Pinter, Sr., he said that they
had been discharged because "business is slow." At this,
Pagliarulo pointed to the inconsistent text of the telegram,
referring to "violation of company policies." Pinter, Sr.,
then referred her to his son for an explanation.
The senior Pinter denied telling the girls that they were
released because business was slow. To Pagliarulo, he
testified, when she came in "quite disturbed," he said,
"Look, I don't know anything about it. I don't know what's
in the telegram. If you want to know anything about it, ask
my son Bob." The italicized portion of the foregoing
strongly suggests that, as she testified, Pagliarulo did in fact
make reference to the language of the telegram, and most
likely did so in the context of questioning an inconsistency
between that language and what Pinter, Sr., had just said to
her.47 -
Also striking was Pmter's testimonial explanation of why
he directed Pagliarulo to speak to his son. When questioned
about this at the hearing, he said, "Since Bob made the
decision, I wanted-I didn't want-any conflicting stories."
It is not clear why Pinter, Sr., would state that his son had
"made the decision," since, according to both son and
father, the latter had been consulted on either Wednesday
or Thursday, and then again on Friday, about the termina-
tion of the girls, and young Pinter noted at the hearing that
he would not take any action without consulting with his
father. The reference to not wanting "any conflicting
stories" raises justifiable suspicions. Prater, Sr., testified
that he had no doubts in his own mind as to why the girls
were discharged. In view of the asserted prior discussions
about the reason for releasing the girls, a desire to avoid
"conflicting stories" intimates that the reason for discharge
was not as clear as the Pinters' testimony would have it.
While the testimony of the Pinters more often that not
attributed the two discharges to the phone survey results,48
there seems to be lurking in the shadows a claim of partial
motivation based on economic conditions. The record
shows that there had been a decline in business, but the
46 Robert Pinter testified that when he spoke to Pagliarulo on January 20,
he said, "You told me that September and October would be worse so I felt
no reason to wait any longer before terminating you," and also said, "you are
unhappy in what you are doing" By Pinter's own testimony, however,
neither explanation would apply to Barber; he says she dust "shrugged her
shoulders" when asked about the prospect of the September and October
surveys, and he testified that he "didn't watch Vera at all" in the period
between January 15 and 17. -
47 On brief, counsel for Respondent quotes Emerson: "Consistency is the
hobgoblin of small minds." To be more precise, the quotation is "A foolish
consistency is the hobgoblin of little minds." Expecting an employer to recall
from Friday to Monday the reason for discharge of two longtime employees
does not seem "foolish "
Pinters made it plain that the sine qua non of the discharge
of Barber and Pagliarulo was the excessive use of the
company telephones. For the reasons discussed above, I
fmd that reason to be spurious, and I further find that the
evidence amply supports General Counsel's contention that
Barber -and Pagliarulo were discharged for engaging in
activities on behalf of the Teamsters, in violation of Section
8(a)(3) and (1) of the Act.
Analysis and Concluding Findings as to Healy and
Gulbrandsen
The General Counsel's evidence regarding Healy and
Gulbrandsen is not as cogent as that relating to Barber and
Pagliarulo, because there is no solid demonstration 'that
Healy and Gulbrandsen -played any role in the- union
campaign which would distinguish them from the other
employees who had signed cards or talked about the
Teamsters. Charlotte Destefanis and Joanne Berderane, not
Healy and Gulbrandsen, were with Barber and Pagliarulo
in the parking area on the evening of January 17. Lufker
testified that she heard Jacoby, after the fact, connect only
"those two girls" who were "fire[d ]" with the union effort.
Joseph Pinter referred in his March 24 speech (and in some
preelection letters, discussed infra) only to Barber and
Pagliarulo as the catalysts for the Union.
On the other hand, the circumstances surrounding the
layoff of these two employees strongly imply discriminatory
intent. I credit the employee testimony that at the January
10 meeting Joseph Pinter had mentioned the business
slowdown49 and had said that if things got bad enough,
which he doubted would occur, he would consider a 4-day
week rather'than letting the "least senior employees 'go."
Ten days later, on January 20, however, not only had the 4-
day week concept been discarded, but the two employees
were laid off out of seniority. Healy had, as of then, been
employed for over 2 years and was senior to five employees
beside Gulbrandsen (of those five, we know the date of hire
of McDermott only-according to Gulbrandsen, she was
hired in September 1974). Gulbrandsen was hired in August
1974, and was thus senior to McDermott. Of the possibly
five or six employees laid off since the March 26 election,50
Robert Pinter' testified that, "to the best-of my knowledge,"
they were laid off by seniority. He further testified that
,.most of those jobs were, you know, on an equal plane,"
and that "at least one of [Healy and Gulbrandsen]" could
have performed the work being done by those with less
seniority who remained employed on January 20 51
Taking into account the foregoing inconsistent regard for
seniority in a context of interchangeable j obs (including the
fact that newly hired employee McDermott was performing
48 At one point, Robert Pinter said that was the "main reason . . . and as
far as I am concerned the only reason."
49 Pinter testified, however, that business is traditionally slow in Decem-
ber and January.
50 The record is unclear on the precise figure
51 Healy was a file clerk. McDermott performed the same work function
which had previously been done by Healy; Gulbrandsen testified that she
had also done similar work. Robert Pinter did not say that Healy and
Gulbrandsen were chosen because their departure would realize the largest
cost saving, but rather said that they were the most expendable
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the very job once done by Healy); the undisputed testimo-
ny of Healy that her desk was located only 6 feet from that
of Robert Pinter and that she sometimes discussed the
Union at her desk; 52 the inconsistencies in, and contradic-
tions between, the testimony of Robert and Joseph Pinter
as to the circumstances leading to the layoff of the two
employees, as previously discussed, including the very
imprecise and unpersuasive testimony as to why these two
were chosen; 53 the Respondent's general union animus
displayed in the discharge of Barber and Pagliarulo; the
fact that since 1930 Respondent had not laid off an
employee for economic reasons; the fact that the 1974
reduction of the platform force was accomplished by
attrition rather than layoff; the significant factor of
timing ; 54 and the specific inference arising from the
peremptory manner in which Joseph Pinter ordered Busi-
ness Agent Schneir, Barber, Pagliarulo, Healy, and Gul-
brandsen off the premises on January 20, I believe that the
evidence establishes, that the layoffs of Healy and Gul-
brandsen were a product of discriminatory selection.
While Respondent had told the employees on January 10
that, although it was unlikely, there might be a retrench-
ment of some sort,, the precipitous layoff of the two on
January 20 just 10 days later, before the January operat-
ing figures had been calculated; out of seniority; without
warning; and exquisitely close to the terminations of
Barber and Pagliarulo-strongly suggests a discriminatory
motive. I have examined Respondent's records, offered to
show the economic need for a layoff (Resp. Exh. 10). A
comparison of the period May-December 1973 to the same
period in 1974 shows that the average monthly operating
ratio (expenses to revenue) for that period had risen
slightly, from .919 to.924.On the other hand, a comparison
of the months December and January 1973-74, to the same
months in 1974-75, which Robert Pinter testified was the
only meaningful basis for comparison, shows that the
operating ratios had actually improved in the latter months.
While Respondent would stress the total average rise, from
.902 to .934, for fiscal year 1974 to fiscal year 1975, the
latter figure is skewed by the sharp increases in the months
of February, March, and April, 1975-experience occurring
only after the layoff of the two employees.
In the given circumstances, and despite the absence of a
showing that Healy and Gulbrandsen were leaders of the
union movement, but taking into account Respondent's
undoubted knowledge of the activities of its employees, I
believe that the evidence preponderates in favor of, a
finding that they were laid off for prohibited reasons.
B. The Alleged Constructive Discharge of, and
Discriminatory Refusal To Rehire, Doris Bonadonna
During the hearing on the original complaint, the name
of Doris Bonadonna was mentioned as one of the group of
employees who had participated in the organizing activities.
Bonadonna first entered Respondent's employ on April 4,
1966; her employment terminated on September 5, 1975,
after 7 days of hearing had been held in this case, in the
circumstances described below.
Bonadonna worked in the accounting department, on the
second level of the building, under the supervision of
Controller Charles Brown. On Friday, August 15, before
Brown left for a week's vacation, he instructed Bonadonna
and his other employees as to the duties they were to
perform. Brown testified that he told Bonadonna that her
"main job" was to "help Doris Miller in learning her job"
and "she was to be free in case someone was out sick, or
[required] to appear in court."
Bonadonna testified that on Wednesday, August 20,
downstairs Supervisor Catherine Turk asked Bonadonna to
help out downstairs if she had the time. About 45 minutes
later, having completed her own work, Bonadonna went
downstairs and helped Turk until about 4:45. Turk then
asked her to help out the following day, but Bonadonna did
not work that day, due to illness.
On Friday, August 22, while engaged, in her normal
duties, Bonadonna was called into the office of Joseph
Pinter, Sr. Robert Pinter was also present. Both had been in
attendance at the hearing in this case on August 20.
According to Bonadonna, during the following conversa-
tion, Joseph Pinter spoke in a "very even tone" and Robert
Pinter spoke "sometimes a little higher pitched."
Bonadonna testified that Pinter, Sr., asked her what right
she had to work downstairs on August 20. She told him that
Turk had initiated the move, and Pinter, Sr., said he had
already asked Turk about the matter and had been told that
Bonadonna's trip downstairs had not been authorized by
her. Each Pinter then serially asked Bonadonna why she
had acted without permission, and Pinter, Sr., said she
should have inquired of the girls upstairs if they needed
help. Bonadonna replied that the computer was broken and
she did not think any help was needed upstairs.
Pinter, Sr., said that Doris Miller had a pile of work to do.
Bonadonna said that Miller was slow and that Brown had
known prior to going on vacation that Miller's work had
piled up. She said that if he had wanted Bonadonna to help
her perform her work he would have told her so, but
"Charlie probably figured that if I keep helping her she
would never be able to do the work." 55 Robert Pinter then
mentioned that Pat Ossenfort had been out on August 20
(at the hearing) and Bonadonna said that she had not
thought of performing Ossenfort's work.
Robert Pinter asked if she did not agree that her action
constituted "harassment" of management. Bonadonna said
that she did not, telling the Pinters that she might
understand their attitude if she had avoided working on the
day in question, but "I worked hard. And I'm a damn good
worker."
52 Although she could not say that Pinter had been present when the
discussions were held.
53 Robert Prater testified that much of Healy's work was being done by
the computer, but that fact clearly would have been realized before January
20. The decision to transfer Gulbrandsen's work to the dispatchers, who
would "do it much more efficiently," also seems to be an inexplicably sudden
insight.
54 Robert Pinter testified that management discussion of possible layoffs
had begun in November 1974. No action was taken until January 20, just
before the Union made its demand . "The abruptness of a discharge and its
tuning are persuasive evidence as to motivation ." N.LR.B v Montgomery
Ward & Co., Inc., 242 F.2d 497, 502 (C A. 2, 1957). Accord: NLRB. v.
Dorn's Transportation Company, Inc, 405 F.2d 706, 713 (C.A. 2, 1969).
55 Miller was still in the process of learning certain work formerly done by
Vera Barber
PINTER BROS. 937
Bonadonna began to cry because she was upset and
nervous. Pinter, Sr., told her that her work was not in
question and that Brown -had always told him that she was a
good worker. Pinter, Sr., then asked if he had ever spied on
her. She said that she did not know of any spying. He then
asked if he had spied on any of the other girls. When she
indicated that she did not understand, he asked if he had
ever stood in the hallway and spied on the girls. She said she
did not know. Porter, Sr., then inquired if he had ever
harassed her. She said yes. He asked "When?," and as she
was about to tell him, Robert said, "All you girls do is he.
You are all liars." He asked if she wanted to see A he
"Affidavits from the hearing" and. kept saying that he
wanted her to read the "affidavits," and she kept replying
that she knew nothing about it. He referred again to the
"lies" that were voiced at the hearing and said he was sure
her friends had told her about the hearing. She stated that
she had been told and then said "Do you want to know if I
signed a card for the union? I did" (adding the last phrase
before Pinter managed to say, as he did, that he did not
want to know).
Pinter then mentioned Linda Schulz being late, and that
he hadn't said anything about her lateness while "this was
going on" (except 1 day when he could not restrain
himself), but that the next time she was late he would fire
her. Pinter, Sr., then referred to the girls spending too much
time in the ladies room, and asked if she did not think this
constituted harassment, and this question was explored. At
some point, Robert Pinter said that the girls coming back
late from lunch constituted "harassment," and stated, "I
did not say anything, I was real nice while this whole thing
was going on. I have it all written down. Now that's over,
you just wait and see the changes with me." At another
point, Pinter, Sr., asked if Brown had asked her to do "any
filing in the kitchen" when she had the chance; Bonadonna
said that she did not understand the question.
The Pinters then inquired about an incident on the prior
day when Linda Schulz and Judy Basick had been in a
restaurant and had-walked out when Pat Ossenfort and
Claire Dorr had entered. Bonadonna pointed out that she
had been home sick the previous day, and Pinter said that
he had not asked why she was out. There was some
discussion about this attitude, with Robert telling her that
her friends were "liars." Pinter, Sr., then said that when
Brown returned on Monday, "this will all be straightened
out.,
Robert Pinter said , "We let ten girls go and if Charlie
doesn't have enough work to keep you busy upstairs, I
guess we don't need you , we can leta few more girls go." At
that point, Bonadonna stood up and said, "I quit. I'm sick.
I'll give you two weeks notice." Pinter, Sr., went to the door
and said, smiling, "If you're sure that's what you want,
that's fore with me." 56 Bonadonna went to her desk, then
returned to Pinter, Sr.'s office, said that she did not feel
good, and asked to go home. He approved the request. The
conversation lasted about 40 minutes, according to Bona-
donna.
The following workday, a Monday, she told Controller
Charles Brown that she had been upset and had not meant
to quit, and that she had prepared a letter to Pinter
retracting her statement. Brown said he would talk to
Pinter, Sr., and she should bring her letter to him later on.
Subsequently, she went to see the elder Pinter, said she did
not mean to quit, and handed him the letter. He read the
letter, returned it to her, and then said, "How would that
look if I took you back? It would look-after you told
everybody that you quit, it would look like I needed you."
She said that she understood, and left the office.
About August 30, she mailed the letter to Pinter. On
September 3, he called her into his office. Robert Pinter and
Pinter Sr.'s secretary were present. Pinter, Sr., said that they
had reviewed the letter and could not accept her retraction.
She terminated employment on September 5.
Bonadonna testified that she was "crying" and "very
upset" throughout the conversation. At the hearing, she was
plainly overwrought, and had to pause to compose herself
at a few points. Bonadonna is a noticeably nervous and
emotional person, and Respondent's witness Brown testi-
monially confirmed that impression. Bonadonna testified
that she sat at a desk in front of Robert Pinter for 2 years,
and that when she works, her "whole body is moving, I
work like a maniac"; she further testified that she was
certain that the Pinters were aware of her nature. On one
occasion, some 4 or 5 years prior to 1975, Robert Pinter had
called her into his office because of a disagreement between
her and Brown about performing a certain duty, and she
had become "very upset" on that occasion.
Joseph Pinter, Sr., testified that he had heard that
Bonadonna and Lufker had come to Turk on August 20,
told her there was no work to do in their office, and asked
Turk if she needed them downstairs. Accordingly, on
August 22, the next day that Bonadonna was available, he
called her in for a conversation which, he testified, lasted no
more than 15-20 minutes. He says that she admitted
coming to Turk and telling her there was no work upstairs,
and that she conceded that she had not asked any of the
upstairs girls if she could help them, saying that since the
computer was broken, they needed no help. He replied that
the breakdown in the computer ought to have created more
work. He told her that they were shorthanded upstairs
(particularly since Charles Brown was on vacation and Pat
Ossenfort at the hearing on August 20), and there was no
reason why she should have come down and said she had
no work to do.
Robert then mentioned something about having to look
at the matter from management's viewpoint, and Pinter, Sr.,
told her he thought he had treated the girls very well. He
asked if he had ever harassed her, and she replied that he
had done so once, but she did not wish to discuss the
occasion. Robert then talked about being harassed by the
employees, and bending over backward, on instruction of
counsel, not to chastise the girls for derelictions of duty. At
that point, Bonadonna "started to whimper a little bit and
she said, `rve had enough of this. I quit, I'm giving you two
weeks notice.' " Pinter, Sr., so he testified, quickly ascer-
tained the date upon which the 2 weeks' notice would be
effective by looking at a calendar, and then told her, "Don't
be hasty. You don't have to go to that extreme just because
56 Bonadonna's affidavit shows that she was uncertain how Pinter
phrased this. He may have said it was "okay" or "good."
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you're a little upset." Bonadonna said "no" and left the
office. As she walked in the hallway where his secretary was
located, Pinter, Sr., called out, "Are you sure, now, you
want to give us two weeks notice," and she said she was.
Pinter, Sr., testified that when Bonadonna sought to
rescind her resignation on the following Monday, he
thought it over, then called her in and said he could not
permit it, since she had told three other girls about the
resignation, and "I can't be placed in that position, taking
you back, because it would look as though you had
something on me , and I had to take you back."
I found Bonadonna's account of the conversation to be
more credible than the one given by Joseph Pinter.57 I base
this conclusion not only on the demeanor of the two
witnesses , but also on the likelihood of what occurred. I do
not believe, for example, -that at the end of the brief
conversation described by Pinter, Bonadonna would have
begun to "whimper a little bit" and immediately resign a
job she had held for 9-1/2 years; I feel certain that it would
have taken a steady barrage of haranguing to provoke such
a denouement.
Pinter's responses , on cross-examination were also
marked by evasiveness, inconsistencies, and inability to
recall. A notable example of the untrustworthiness of his
testimony was the variance in his descriptions of his efforts
to ascertain what the work situation had been on August 20.
Initially, he testified three times that, before he spoke with
Bonadonna on August 22, he had investigated the incident
by speaking to Catherine Turk, Claire Dorr, Doris Miller,
and his secretary. Later, however, he testified that he
"didn't speak to either one of the girls upstairs [Dorr and
Miller ] to ask them how much or what work they had . . . I
think there again my secretary gave me this third or fourth-
hand . . . the reason I didn't ask anyone was because I
wanted to wait until Charlie Brown came back Monday to
find out what his instructions were before he left for
vacation." 5s
I further concluded that the General Counsel has
satisfactorily established that Bonadonna was unlawfully
terminated. The reason advanced for calling down Bona-
donna on August 22 seems the slimmest kind of premise.
Bonadonna testified that Supervisor Turk asked her to help
out downstairs on August 20, and that she cooperatively
did so. While Pinter testified that Turk had told him that
Bonadonna, not Turk, had made the request, Turk,
although still in Respondent's employ at -the time of the
hearing, was not called as a corroborating witness.
Pinter, Sr.'s obvious failure to investigate the matter and
the extent of the upstairs need for Bonadonna at the time
Turk asked her to come down make Respondent 's motive
necessarily suspect. The record in fact appears to show that
there was little need for Bonadonna to assist in the work of
other employees. The computer was out of commission for
want of a missing file. While Claire Don's time may have
been occupied by having to deal with the IBM servicemen,
there is no firm evidence that Bonadonna could have
performed, on August 20, any of Don's work. Brown
further testified that he knew "for a fact" that "Claire
would not ask for help." It may have been that Doris Miller
had work to do, but Brown conceded that he had told
Bonadonna that , in teaching Miller her job, "she should
attempt to make sure that Doris Miller does the work'
herself for the most part, so she would learn the job." At
any rate, it is basically irrelevant whether Bonadonna could
have worked in the upstairs office on August 20, because, as
I find, Supervisor. Turk had requested her help down-
stairs,59 and her agreement to do so seems a perfectly
appropriate response.
So appropriate, in fact, that it is difficult to conceive a
legitimate reason for the confrontation with Bonadonna
then arranged by Respondent's president and its chairman
of the board. Having observed Bonadonna on the witness
stand, I am certain that Robert Pinter, who sat at a desk
near Bonadonna for 2 years, must have been aware that she
is a highly emotional, nervous, and hypertensive individual.
The same awareness must surely be attributed to Joseph
Pinter, whose testimony throughout showed an extremely
keen awareness of the dynamics of the office. Despite this
certain knowledge of her nature, and despite the fact, as
Bonadonna credibly testified, that she began breaking
down early in the conversation, the Pinters, instead of
merely criticizing her for what could, at worst, be described
as a mistake in judgment, continued' to hammer away at
Bonadonna about matters totally irrelevant to her purport-
edjudgmental error.
I think it most likely that they were playing on her fragile
nervous system in the hope of provoking her to do precisely
what she did-offer her resignation. At the point at which
she did so, according to Bonadonna, Pinter, Sr., went to the
door with a smile on his face, saying, "If you're sure that's
what you want, that's fine with me." Pinter's testimony
seems even more plainly to indicate that he had achieved
the desired result: he testified that as soon as she gave 2
weeks' notice, "I pulled out my calendar and I said that's
September so-and-so and she said yes." Only after settling
the termination date did Pinter inquire into Bonadonna's
certainty about her decision. This unseemly haste about
arranging Bonadonna's departure date convincingly sug-
gests that her termination was the object of the exercise to
begin with.
Motivation for Respondent 's desire to -rid itself of
Bonadonna is apparent in the record. The earlier hearings
had produced mention of her name as a participant in the
unionizing effort . Pinter also admitted that he had "seemed
to sense" "strained feelings" among the upstairs employees
after the election, at which time , he had heard , Bonadonna
had refused to drive Ossenfort to and from work as had
been her custom. That the Pinters harbored resentment
toward Bonadonna was disclosed by the telling testimony
of Respondent witness Claire Dorr. On cross-examination
she revealed that on the evening of the March 26 election
she had dinner with the two Pinters, Dolores Fletcher,
Dons Miller, and some others. Joseph Pinter stated on that
occasion that he was "very hurt by [Bonadonna's ] actions
... [t]hat she would turn on him like that." According to
57 Robert Pinter did not testify on this issue
58 On cross-examination, Pinter testified that he did talk to Brown on
Monday about the matter , and Brown told Pinter he had left instructions,
but "I didn't ask him what they were."
59 Pinter, Sr., conceded that downstairs employee Linda Casilh was not at
work at the time.
PINTER BROS.
Dorr, Pinter did not express similar disappointment in any
other employee.
Bonadonna's prounion activity as an animating force in
the whole affair is made the more obvious by the value of
Bonadonna's service and the circumstances surrounding
Respondent's refusal to take her back . As Brown testified,
Bonadonna was "an asset" to his department ; she was "a
very efficient worker" who "worked all the time"; she was
"familiar with all phases of the accounting department";
she was "always a very good worker"; and he had told the
senior Pinter "a number of times that she was a good
worker." The record shows that when Bonadonna left she
was replaced by a new employee . And yet, when Bonadon-
na attempted on Monday to -rescind her resignation,
Respondent refused to consider, rehiring this obviously
valuable and experienced employee of more than 9 years'
tenure and opted instead to hire a new employee, untested
as to work skills or attitude and unfamiliar with the
operation.
The reason given by Pinter, Sr., for refusing to allow her
to rescind her resignation , as Bonadonna credibly testified
on direct and cross, was that taking her back "would make
people think that I needed you." This seems to me a
nonsensical reason for jettisoning this valuable resource.
But even if I were to credit Pinter's version of his stated
reason for refusing-that he told Bonadonna that he could
not take her back because three other girls were aware that
she had resigned and "I can't be placed in that position,
taking you back, because it would look as though you had
something on me, and I had to take you back" 60 -I find
this reason at least as unconvincing . Permitting an employ-
ee to rescind her resignation and come crawling back would
hardly give rise to an impression of blackmail , and I cannot
believe that Pinter engaged in such a thought process. As
indicated , on cross-examination, Pinter referred to a second
reason about setting a bad "precedent" which -he had failed
to mention in his first account of the conversation on direct
examination.
In ordinary circumstances , would Respondent's presi-
dent and board chairman, with some 170 employees under
their control, have spent 40 minutes beleaguering a veteran
and esteemed employee , known to be easily moved to
distraction , simply because, at the request of a supervisor,
she had spent part of I day working diligently in the
downstairs office? I think that, in ordinary circumstances,
this never would have occurred , or, if it had, the discussion
would have been terminated when the employee became
emotionally upset . The circumstance which made this
situation extraordinary , and which kept the Pinters pressing
on after Bonadonna began crying was, I infer, Bonadonna's
known activities on behalf of the Union . I believe that the
Pinters accomplished what they intended-Bonadonna's
emotional surrender, in the form of her resignation. And for
the reasons discussed above , it is impossible to conclude
that the Respondent's refusal to reinstate this palpably
useful ° employee 'was anything but a further manifestation
60 On cross-examination , Pinter added a second reason, which had not
appeared in his first version of the conversation . "Besides, I also told her we
couldn't have everybody just quitting and coming back . It would set a
precedent, which I didn't intend to set."
61 The inordinate concern which Respondent exhibited about Bonadon-
na working downstairs is suggested by the testimony of Brown that , while on
939
of its -determination to effect her permanent separation
from the ,otheremployees 61
I conclude, accordingly, that the termination of Doris
Bonadonna , and, as alleged in the complaint, Respondent's
subsequent "fail[ure] and refus [al] to reinstate or offer to
reinstate" her, were both violative of Section 8(a)(3).
C. -The Alleged Discrimination Against Diane
Lufker
As previously discussed, at the August 18 hearing on the
original complaint , employee Diane Lufker gave damaging
testimony against Respondent . In the second complaint,
consolidated herein , the General Counsel charges that
Respondent thereafter retaliated against Lutker, as de-
scribed below.
L' The alleged harassment by Joseph Pinter, Sr.
Lufker, an upstairs employee , testified that on August 20,
because of the computer problem which slowed down the
flow of work to her, she approached downstairs Supervisor
Turk about 3 p.m. and offered to help her out. Turk
accepted the offer . The following morning, while Lufker
was making photocopies of a document for Supervisor
Hunt, Joseph Pinter, who appeared "very upset ," came to
the xerox machine , asked her what she was copying,
grabbed the document off the machine , told her she was
doing the job incorrectly , and showed her how to perform
the work.
About 30 minutes later, Pinter, Sr., came to Lufker's desk
and asked if the checks on her desk were all from the day's
mail. She told him that some of them had been collected by
the drivers the previous night . He then asked if she had any
other checks in her desk; when she said she did, he asked
why they had not been deposited . She explained that the
checks did not have "references," and she required infor-
mation about them from the computer, which had been
down. Pinter then asked what -she had done with the copy
of the document she had earlier made for Hunt, and she
gave it to Pinter.
That afternoon, having run out of work about 3 or 3:30
p.m., Lufker went downstairs and again asked Supervisor
Turk if she could be of assistance in her department. Turk
went to speak to Pinter. Pinter came out of his office,
inquired of Lufker as to whether she had asked the girls
upstairs if they had any work for her, asked why she was
not speaking to the girls, and said "if I did not like it here, I
knew where the door was." Before he returned to his office,
Lufker asked Pinter if she could help Turk if the upstairs
girls had nothing for her to do, and he said , "Of course."
Lufker returned to her office . She sought and received
about 15-20 minutes work from Doris Miller, and made
phone calls for Ossenfort for 20-25 minutes . Having
nothing further to do, she headed downstairs and encoun-
tered Pinter . He asked if the girls had given her any work
and was told that they had. He inquired why she had not
a camping vacation in the mountains during the week ofAugust 18-24, the
news of the computer problem had been brought to him by motorcycle
messenger. Despite the obvious importance of the lost accounts receivable
data, Brown testified that when, on Monday ,--"I walked in, I was expecting to
hear about that, but Bob Pinter had mentioned to me that Doris had left her
assignment or left the office to work downstairs "
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked them for work before; Lufker said that she really had
not thought they needed her help. Prater said, "Why didn't
you open your mouth? You always seem to open it at the
wrong time." She returned upstairs.
Lufker testified, without contradiction, that Pinter, Sr.,
had never evinced a direct interest in her work prior to
August 21, and that she had previously performed work for
Turk on "more than one" occasion. She further testified
that when she went to help Turk on August 20, all of her
accounts receivable were not posted, but that she could not
accomplish that work because of the condition of the
computer.
Joseph Pinter testified that the reason he talked to Lufker
at the xerox machine was because she was making a
photocopy of each side of a document which consisted of
two adding machine tapes stapled together. Pinter pointed
out that she could remove the staples and thus copy both
sides with a single picture-"That was an awful silly waste
of time and money."fie On cross-examination, he amplified
his reason for being upset at Lufker: "Well, there was
another reason . There's another xerox machine on the
second floor. She didn't have to come down to this floor to
do that job."63 Pinter said, on cross-examination, that he
did not recall any conversation with Lufker at her desk that
day concerning checks.
As to the afternoon conversation, Pinter substantially
corroborated Lufker's testimony, but, somewhat equivocal-
ly, denied having told Lufker that she had a "big mouth" at
times 64
Controller Charles Brown testified that, prior to leaving
for vacation, he told Lufker that she should do her accounts
receivable work as usual, and also "to start working with
Pat Ossenfort to get the hang of the job." As indicated,
Ossenfort had not been in the office on August 20.
The evidence establishes, to my satisfaction, that on
August 21, in the words of the complaint, Respondent
"subjected its employee Diane Lufker to closer supervision
than she previously had been given," primarily, I think,
because she testified adversely to Respondent on August
18. The testimony is uncontradicted that Joseph Pinter had
never previously criticized or inquired into Lufker's work;
for him to do so twice on August 21, particularly with
regard to the trivial xerox machine incident, and blurting
out during the day that she always seemed to open her
mouth "at the wrong time,"65 clearly indicates that his
intensified surveillance of her work was related to his anger
at the testimony given by Lufker on August 18. According-
ly, I find that by such conduct, Respondent violated
Section 8(a)(3), (4), and (1) of the Act. '
62 It would seem that removing the staples and then replacing them would
in fact consume more time and, hence, money.
63 There is no evidence regarding whether the upstairs machine was in use
at the time, and no testimony by Pinter that he asked Lufker about the
reason for using the downstairs machine.
64 The testimony reads:
A. No, I never said that.
Q. At any time?
A. Not to my knowledge
65 My observation of Joseph Pinter led me to believe that he is quite
capable of saying such things, despite any admonition that he should be
cautious and restrained.
2. The alleged discrimination with respect to
Respondent 's lateness and sick leave policies
The second complaint alleges that Respondent discrimi-
nated against Lufker because of her testimony against
Respondent in this hearing, by changing its sick leave and
lateness policy, resulting in a loss of work for her.
In August, Lufker began undergoing medical treatment.
She did not work on August 11, the day of her first
appointment, taking the entire day as sick leave (which was
unpaid).
During the last week in August, which would be after her
initial testimony in this proceeding, she had a second
appointment 66.On the morning of that appointment, she
told Charles Brown that she would be leaving about 2:30
p.m. for her 3 p.m. appointment. Shortly before she left,
Brown asked if she would be -visiting -the doctor for
subsequent treatments . She told him it was possible. He
replied that if she had to go again she would be required to
take the entire day off.
On the morning of September 9, Lufker called Brown
about 8:20 a.m. to tell her that she would not be able to
report at the starting time of 8:30, but would be in before 9
a.m. Brown said, "I don't think Mr. Pinter will let you work
today," and told her to call back in 5 minutes . She said that
she wanted to work, and that she would come in and see
what happened; Brown concurred.
When Lufker arrived at 8:45, her timecard was missing,
and Brown told her that she could not work that day
"because I was late, that my lateness and my absenteeism is
terrible." Brown said , "I can't let you work today because
you can't give me an 8-hour day"; he also said he "wasn't
just referring to me ; this applied to everyone in the office."
She then told him that she had a medical appointment the
following day at 1 p.m., and he said she must take that day
off also. Brown pointed out that "it's been very hard on me
especially since Doris Bonadonna is no longer with us."
Lufker asked why, in view of that, she could not work;
Brown replied, "[B]ecause you can't give me an 8-hour
day." She reported for work on the morning of September
10, but Brown would not let her work that day.
On September 22, she reported to Brown that she had
another appointment on September 24 at 1 p.m.; he told her
she could not work that day.67
On September 30, Lufker informed Brown that she had
scheduled another appointment for October 3 at 1 p.m.,
and asked if she could'work that day. He asked if she was
"filing charges," and she said she was . Brown stated that
they had been through this matter before and that she could
not work. Brown also said that he had examined her
records for 1973 and 1974; that they showed that she had
66 Lufker was at first unclear about this date. Respondent's attendance
record on Lufker is in evidence. An "A" is written in the block containing the
date August 11, presumably meaning that she was absent that day. An "A"
again appears on August 18, the day she testified. On August 28 and 29, two
more A's appear, accompanied by the numbers, respectively, "4.66" and
"5:12." They mean that she worked about 4-1/2 and 5 hours on those dates,
and support her testimony that her second appointment was "the last week in
August."
67 She did in fact work on September 24 because her appointment was
canceled.
PINTER BROS. 941
been absent at least once a month , and that no company
would allow so much absenteeism . Lufker pointed out, inter
alia, that other people had left during working hours to see
a doctor, and Brown said the only reason that practice had
been permitted was because the others would only tell him
about their appointment shortly before they were to go, and
that he could not very well "chain them to the chairs." On
several other occasions after October 3 , Lufker was not
allowed to work in the morning of the days on which she
had medical appointments.
In the past, Lufker testified, she had been permitted to
continue to work after having advised Brown, "usually" in
the morning, that she would have to leave later in the day
for a medical appointment . She further testified that, prior
to September 9, she had -reported late to the office on
occasion, but had been permitted to work and also to make
up the lost time by working during the lunch hour or after
her regular hours.
Charles Brown testified that, sometime between Septem-
ber 1-15 , Lufker was off part-time for 2 days in a row,68
and, although his testimony as to the timing is somewhat
unclear, he apparently thereafter asked her if her medical
treatments were going to continue . She said she hoped they
were over , but he said, "[R]egardless , you're going to have
to make some other arrangements because you can't have
any more half-days. I showed Mr . Pinter your absences and
you won't be allowed to work any more part days."
Thereafter, she called in on September 9 and said she
would arrive "in an hour," and he told her, pursuant to his
earlier refusal to let her work half-days, not to bother
coming in . In fact, Lufker arrived only about 15 minutes
late. He told her she could not work and that she also could
not work the following day, due to her doctor's appoint-
ment . Brown conceded that there was "a lot of work"
available for Lufker to perform on September 10. He also
testified that in the past Vera Barber had been allowed to
work despite having had "a course of medical treatments
that involved several visits to a doctor," although he
eventually spoke to her about making other arrangements,
which she apparently did.
In addition , Brown admitted that , prior to September,
other employees had been permitted to work despite ' having
arrived at work as late as 1 hour . He testified that in
September he reviewed the whole matter with the other girls
in his office "and told them there would be no more half-
days."
I credit Lufker, whose testimony was substantiated in
large part by Brown . Brown's statement to her during the
last week in August, shortly after she testified in this
proceeding, that she could no longer work on any day on
which she had scheduled medical appointments, was
carried into effect on September 10, October 3, and other
dates. The reason given was that she "can 't give me an 8-
hour day." The reason does not make much sense;
Respondent afforded no compensated sick leave for the
part-days on which Lufker was absent, and apparently
would have lost nothing by allowing Lufker to work part-
68 Brown was evidently refemng to the 2 part-time days on August 28 and
29.
69 While Lufker's record shows her, first appearance at this hearing as an
absence, Ossenfort's does not, since the copy of Ossenfort's record in
time on those days . It is evident that Lufker was needed, as
Brown admitted at the hearing . The rule forbidding any
work on days on which employees had medical appoint-
ments was obviously a new rule ; Respondent advanced no
sensible reason for promulgating it. I can only infer that
Respondent was piqued by Lufker 's testimony and created
this rule in order to penalize her , clearly a violation of
Section 8(a)(3), (4), and (1) of the Act.
I reach the- same conclusion with regard to the rule
announced on September 9, forbidding Lufker to work that
day because she arrived 15 minutes late. Lufker said that
Brown told her "I don't think Mr. Pinter will let you work
today"; Brown testified that, prior to September 9, and in
connection with her medical appointments , he told Lufker,
"I showed Mr. Pinter your absences and you won't be
allowed to work any more part days ." He did not clarify
why he had felt the urge to consult Pinter. The 1975
attendance record of Lufker indicates that prior to Septem-
ber 9 she had been absent on 12 days , 5_ full days , and 7 part
days . The only other such record in evidence pertains to
Ossenfort ; prior to August 20, she had been absent on 10
occasions , 7 of them being full days and 3 being part days 69
Prior to her August 18 testimony , Lufker had been absent
in 1975 for 5 part-days , without any sanction being
imposed.
As described, Brown conceded that, prior to September,
employees had not been precluded from working , despite
the lateness of their arrival for work . The refusal to allow
Lufker to work on September 9 when she arrived 15
minutes late borders on the absurd and is unexplained by
any testimony or evidence showing a rash of latenesses
which might have rationally provoked such a rule. I
conclude that the promulgation of the new rule primarily
constituted a reprisal against Lufker 's testimony in this
proceeding and was violative of Section 8(a)(4),(3 ), and (1)
of the Act.
D. The Alleged Violations of Section 8(a)(1)
1. The refusal to allow the -four alleged
discriminatees to vote
On the day of the March 26 election, Barber, Pagliarulo,
Gulbrandsen, and Healy came to Respondent's premises
during , voting hours for the purpose of voting . The gate
leading to the main building was closed. Robert Pinter
came out of the gate and told the women that they were on
private property and that they should leave . Barber said
that they had come to vote, but Pinter said he would not let
them in. Warren Mangan, attorney for Local 807, was
present; he asked Pinter if he recognized the four women,
and Pinter replied that he did . They left without voting.
Pinter testified that he refused to allow them to enter on
advice of counsel.
evidence is only current as of August 20, the day she testified. Thus,
Ossenfort, as of September 9, had been absent at least 8 full days and 3 part-
days.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that this refusal violated Section
8(a)(1).7°
The 8(a)(3) charges relating to the four employees were
not filed until March 31, 5.days after the election and 10
weeks after the terminations . 71 When the Respondent
furnished the Excelsior list to the Union , it excluded the
four ex-employees ; the Union raised no objection.
In Macon Textiles, Inc., 80 NLRB 1525, 1549-50 (1948),
the Board adopted the conclusion of a Trial Examiner who
held that a refusal by a representative of the employer to
admit prospective voters to the polling place within the
plant constituted a violation of Section 8(a)(1). In that case,
the Trial Examiner found that the two employees were
eligible to vote (the parties had been unable to agree upon
an eligibility list, and had decided instead that "all
questionable employees would be permitted to enter the
respondent's property in' order to vote "). In a subsequent
case, Neuhoff Brothers Packers, Inc., 154 NLRB 438 (1965),
enfd . 362 F.2d 611 (C.A. 5, 1966), the Board relied on
Macon Textiles, holding that "in excluding potential voters
from the - premises and not letting them cast challenged
ballots," the employer violated Section 8 (a)(1). The names
of the three , excluded employees did not appear on the
eligibility list; charges had been filed with respect to two of
them prior to the election . In deciding that the violation
also invalidated the election , the Regional Director had
additionally noted , with Board and court approval , the fact
that the "action was taken in the presence of other voters
and in an area clearly visible to employees on their way to
vote," 154 NLRB at 442 ; see also 36ZF .2d at 614.
In Ace Letter Service Co., 187 NLRB 581 (1970), although
not an unfair labor practice case , the Board announced a
strict standard for usurpation of the Board's authority to
conduct elections . There the names of the excluded
employees did not appear on the eligibility list, and the
Regional Director found no evidence that the employees
were in layoff status, as contended . The Board nonetheless
held that its challenge procedure "generally guarantees the
right to every individual who asserts other than a totally
frivolous claim to employee status to appear at the polls
and cast a ballot" and that "by usurping the Board's
authority to make that determination [of eligibility], [the
employer] interfered with our orderly election processes."
Subsequently, the Board set aside an election where an
employer excluded employees discharged some 5 months
prior to the election , and as to whom no charges were yet
pending on the day of the election, on he ground that the
Board agent (who had prevented the employees from
voting) had been told by counsel for the Union that charges
would be filed with respect to the employees . Alabaster
Lime Company, 190 NLRB 396 (1971).
70 The same conduct is also embraced within one of the objections to the
election.
7i The record is silent as to the reason for the delay. Respondent argues
that the failure to promptly file charges suggests that the employees did not
believe that their terminations were connected with their union activity It
appears that the Union had reasons of its own for withholding the charges,
since it was working closely with Barber and Pagharulo after their
discharge-the former attended and the latter testified at, the representation
hearing of February 10, and Barber was still soliciting cards after her
termination. It is obvious that, on March 26, the Union and the employees
were asserting their right to vote. It might be conjectured that the Union
withheld filing charges for fear of frightening other employees and thus
Macon Textiles, Inc., supra, appears to remain the law.
See Aldon, Inc., 201 NLRB 579, 586 (1973).72 Whether the
potential voters were in fact eligible to vote, or whether the
employer had some ground for believing that they were not,
seems beside the point.73 Subsequent resolution of such
questions favorable to the employer would not erase the
fact that the employer had taken into his own hands the
determination of who should be allowed to cast a ballot.
Allowing such usurpation could easily augur, in future
cases, anarchy at the polls and unnecessary interference
with the orderly and expeditious processing of Board
elections.
Accordingly, I conclude that Respondent's refusal to
allow the four former employees to enter its premises for
the purpose of casting ballots is violative of Section 8(a)(1).
2. The alleged surveillance by Robert Pinter and
- other management agents
Several employee witnesses testified that during the week
ending Janurary 19, while they were standing in the parking
lot at the end of the day shift, they detected Robert Pinter
"crouching" next to a sports car for a period of several
minutes, at a distance which might have enabled him to
overhear their conversation. The General Counsel charges
that, in so doing, Pinter was illegally surveilling the ,union
activities of employees.
Porter testified that on one occasion during this period he
noticed the brother of employee Santa Stansell sitting in a
sports car waiting for her. He and Stansell's brother are
acquaintances, and Pinter said he spoke awhile to the
brother, having to crouch down to maintain the conversa-
tion at eye level.
Stansell's brother did not testify. Pinter's account seems
plausible. I conclude that the testimony of General Coun-
sel's witnesses is'too indefinite and equivocal to support a
finding that the allegation of surveillance has been substan-
tiated.
I reach the same conclusion as to other generalized
testimony that 'various managers were seen standing at
office windows as the clerical employees were entering and
departing the office on , a few occasions. The record
establishes that it was not uncommon for supervisors to
gaze out the windows, and the fact that that they were
doing so while the collective activity was becoming more
pronounced does not, of itself, indicate that such conduct
constituted a violation of the statute.
Accordingly, I shall recommend dismissal of the surveil-
lance allegations of the complaint.
prejudicing the election. In Central Freight Lines, Inc., 222 NLRB 388 (1976),
the Board specifically refused to draw an adverse inference from the fact that
the charge was not filed until 3 weeks after the termination.
TZ There the Administrative Law Judge found a violation in the fact that
"Respondent arrogated to itself the right to determine their eligibility."
While he further stated, "Such action also intimidated other prospective
voters," he recites no evidence in support of that proposition, and I take his
remark to be conclusionary rather than literal.
73 In the present case, of course, the employees, being discrmunatees,
were eligible to vote. East Coast Equipment Corporation and Steco Sales, Inc.,
221 NLRB 618 (1975).
PINTER BROS. 943
3. - The allegations of unlawful interrogation
The complaint alleges that on or about January 17 and
20, 1975, Joseph Pinter, Sr., and Charles Brown unlawfully
interrogated- employees concerning their union activities.
-1 find no evidence indicating that Charles Brown engaged
in interrogation, in January 1975. The only evidence which
might be deemed interrogation by Pinter, Sr., is the
testimony of Sinclair that, on January 17, he asked her if
"anyone had 'approached" her in the parking lot. While I
have found this testimony relevant to Respondent's knowl-
edge and motive with respect to the terminations, I do not
see how it -could be -considered an interrogation, having
coercive impact, about Sinclair's union activities or those of
the otheremployees.
At the hearing, the complaint was amended to allege that,
on January 20,; Warehouse Supervisor Lee Brown engaged
in unlawful interrogation. Employee Linda Schulz testified
that; on the morning of January 20, Br` own'asked her if she
"had heard anything about a union." Schulz replied that
she had "heard something mentioned ` about a union."
Brown , whose supervisory status was stipulated, did not
testify.
While arguably a violation, I am inclined to conclude
that since the interrogation did not inquire into Schulz' own
sympathies or those of others, and consisted of only a single
question, it probably lacked coercive effect. Accord:
Whittaker Knitting Mills, Inc., Div. Whittaker Corp., 207
NLRB 1019, 1022, fn. 8(1973).
I shall, consequently, recommend dismissal of the inter-
rogation allegations of the complamt.74
4. The allegations of threats of loss of benifits
and other reprisals in March _1975
The complaint alleges that "[o]n or about March 18,
1975, March 24, Respondent by Joseph Pinter _Sr. and
Robert Pinter 1st [sic] agents threatened its employees with
loss of pension benefits [sic], establishment of job classifica-
tions, and other reprisals if they become [sic] or remained
members of the Union, and if they gave any. assistance or
support to it."
This, allegation is based on preelection letters sent by
Respondent to employees and upon speeches mae on
March 24, one to the day-shift-clericals and one to those on
the night shift. It should be noted that the complaint refers
only to the dates of-March 18 and 24; Respondent sent out
three preelection letters, under date of February 19 and
March 18 , and 24. In his report on objections, dated June
20, 1975, the Regional Director stated that the three letters,
relied on by-the Union as objectionable conduct, are also
included in the instant complaint "as violations of Section
8(a)(l) of the Act," and he accordmglyreferred them to me
for determination. As indicated, however, the February 19
letter is not specifically mentioned in the complaint. It is
nonetheless clear from the record and Respondent's brief
that Respondent understood the February 19 letter to be in
7' Employee Destefams credibly testified that Supervisor Catherine Turk
interrogated her about the Umon and Destefans ' own sentiments. The
complaint , however, does not allege any unlawful conduct by Turk; it was
not amended at the hearing after Destefams testified ; Turk did not testify;
and I cannot conclude that the issue was fully and consciously litigated.
issue as violative of Section 8(a)(1), and I consider that the
question of its legality is ripe for disposition.
- a. The -letters. The three-page letter of February 19,
signed by Robert Pinter, makes the'followingmajor points.
It tells employees that the `Union cannot promise' benefits
and they should not be "fooled into thinking that having a
Union guarantees you a job." It tells them that Respon-
dent's wages, benefits , and working conditions are as good
as any in the area. It says that despite the recession
Respondent has `tried to keep everyone working," and it
continues:
You know from your own experience that we have not
laid off office employees during slack periods.75 Pinter
Bros. thinks it owes an obligation to employees to give
them job security. No Union can do as well.'
The letter goes on to say that union organization frequently
results in strikes - and loss of wages , and that an employer
need only bargain in good faith;- without having to
surrender to union demands. Thereafter, the _ letter states
that if the Union "wants an election and makes economic
demands which the employer cannot meet, there is a strike,
or the employer finds ways to replace workers and reduce
the work- staff." The letter then discusses Respondent's past
and present willingness to settle grievances , and states that
"[i]f there have been grievances which have not been
settled; _ we will do our best to see that the reasons for
grievances will be eliminated."
The genesis of the organizational campaign is then
discussed. Saying-"We think we know what started it," the
letter goes on, "In every company , there are one or two
people who are disgruntled and-who-do not care, much
whether your job is safe or not." It discusses the reasonable-
ness of discharging employees who make excessive personal
calls. In the midst of this discussion , the letter states:
-You know very well that when costs begin to go up, a
Company can only survive by cutting costs. In a
trucking business, the cost of labor is the highest cost we
have . There is a rule that says labor costs for a local
trucking company cannot exceed 60¢ of each $1.00
revenue . Once you get above the 600 the company
begins to lose money and jobs are lost.
Toward the end of the letter, Respondent says:
There will be an election. You will be given all kinds of
promises . A handful of employees will be trying to
persuade you to vote for the Union. They won't tell you
about the dues, assessments and strikes ,-and the loss of
jobs.
They won't tell you that a Union can't force an
employer to pay more than the employer can afford to
pay; otherwise the employer is driven out of business
and jobs go down the drain!
75 In view of the abrupt departure of Healy and Gulbrandsenjust 4 weeks
earlier, it is difficult to imagine what the employees thought of this statement
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The two-page letter of March , 18 begins by telling
employees that , in the coming week , they "will have a
chance to -vote for your, future with Pinter ." A few sentences
later, the employees are instructed to "remember that your
future, your job and your family 's interests are involved in
the election." After comparing the Union's probability of
delivering on its promises to that of a New York politician
doing so, there is again some discussion of the two
discharged employees who "began to stir up trouble
because they had, no interest in your job . They don't care
about your family or your future."
The letter then refers to the employees ' pension plan as
the "best ... of any .trucking company" and states:
If the Union comes in, will your pension rights be lost?
Ask the people who are trying to force you into the
Union , what will happen to your pension rights? Don't
accept empty promises . Let them show you on paper the
Union wins the election.
After noting that the Union cannot guarantee the "steady
jobs" and "superior wages and working conditions" which
Respondent has "always been able to accomplish," the
letter asks employees if the Union has been able to' stop
unemployment (giving the current rates in New York and
New Jersey), tells employees to ask the Union "how many
of its members are out of work now ," further tells them to
ask "the people who are trying to force you into a union to
compare the stability of your jobs with the loss of jobs in
union plants," and finally asks them to inquire "how many
strikes there have been in the last two years and how many
jobs have been permanently lost because of strikes." In
closing, the letter points out:
I am sure each of you know that your best interests
must be determined by what is best for you and your
family . If you lose your job or there is a strike, the
Union officials continue to draw their salaries while you
are out of work.
And if you are out of work because of strike , you do not
get unemployment insurance benefits . Ask the Union to
tell you the truth about that.
The March 25 two -page letter purports to be a reply to a
union letter to employees , in which Respondent says the
employees should ask the Union "how many truckers have
gone out of business in the , last years because of the union
contracts" and how many drivers have, consequently, lost
pension and seniority rights; asserts that the Union has not
bargained ' a single contract which improves upon the
employees' present conditions of employment; argues that
no union can protect against layoffs; and states,
The Union says that Pinter Bros. will reach an agree-
ment if the Union wins. That is an empty promise. If the
Union wins , the law requires that we bargain in good
faith . It does not compel us to reach an agreement. If, in
good faith we do not reach an agreement , there will be a
strike and jobs will be lost.
The closing remarks include:
effect of the loss of your present pension rights if the
DON'T LET A FEW DISGRUNTLED EMPLOYEES SELL YOU
DOWN THE RIVER.
You have an obligation first to yourself and, your
-family. When you enter the voting booth, decide
whether you want to gamble on some future promises
against what has been solid performance by Pinter Bros.
since you have been working here.
In my view, the letters combine threats , an anticipatory
refusal to bargain, and promises of benefits in a manner
clearly calculated to restrain employees in the exercise of
their right to, choose union representation . They contain a
steady, persistent, drumbeat heralding ,-loss of jobs in the
event of unionization. On February 10, the employees were
told that "[n]o Union can do as well" as , Respondent in the
area of job security; they received the ambiguous and
sinister message that if the Union wins the election and
makes demands which Respondent cannot meet , "there is a
strike, or the employer finds ways to replace workers and
reduce the work staff' (emphasis supplied); they were told
that the employees who initiated the union campaign "do
not care much whether your job is safe or not"; they-were
cited to the fact that when labor costs rise above 60 cents of
$1 revenue, "the company begins to lose money and jobs
are lost"; they were informed that the Union would not tell
them "about the dues, assessments and strikes , and-the loss
of jobs"; and they were further notified, in a true non
sequitur that a union "can't force an employer to pay more
than the employer can afford to pay; otherwise the
employer is driven- out of business and jobs go down the
drain!" The March 18 letter picked up the theme that the
election would give the employees a chance "to vote for
your future with Pinter"; noted that "your future, your job
and your family's interests are involved in the election";
repeated the organizers "had no interest in your job" and
"don't care about your family or your future";-emphasized
a comparison between the loss of employment in organized
plants with "the stability of your job"; and ominously
referred to what would happen "if you lose your job or there
is a strike." (Emphasis supplied .) The March 25 letter hits
hard on the companies which have gone out of business
"because of the union contracts," notes that if agreement is
not reached , "there will be a strike and jobs will be lost,"
warns employees against being sold "down the river," and
cautions that selecting a union is a "gamble."
The repeated and wholesale references in all three letters
to loss of work are occasionally tempered by fleeting
mention of Respondent 's duty to bargain in good faith, but,
often, they are simply gratuitous (e.g., the March 18 letter,
as indicated, conjures up a situation in which job loss may
somehow result from other than a strike: "If you lose your
job or there is a strike . . ."). But the lipservice paid to the
duty to bargain in good faith is effectively canceled by the
overall tone of the letters as well as the specific threat in the
final letter: "The Union says that Pinter Bros . will reach an
agreement if the Union wins . That is an empty promise."
(Emphasis supplied .) No clearer manifestation of a fixed
determination not to reach agreement could be made.
Having read and understood this, the employees likely
would tend to disregard the first clause of a succeeding
sentence , and ponder only the final prediction as a certain
PINTER BROS.
consequence of voting for the Union: "If, in good faith we
do not reach an agreement, there will be a strike and jobs
will be lost."
The letters could reasonably have been read by employ-
ees as indicating that Respondent intended to retaliate
against their job security in unnamed ways for selecting a
union; that Respondent had already determined that it
would not bargain in good faith, thereby making the act of
voting for the Union a futile one; and as a warning to the
employees that, by voting for the Union, they were
jeopardizing their "family and their future" because of the
inevitable strike which Respondent's conduct would inevit-
ably bring into being. As in General Automation Manufac-
turing Incorporated 167 NLRB 502,. 504 (1967), this
correspondence, relentlessly and pointlessly harping on loss
of work and the uncertainty ,for the employees' future
engendered by selection of a union, "was not an attempt to
influence the employees by reason, but was an appeal to
fear." A more selective threat is to be found in the reference
in the March 18 letter to the loss of pension rights. While
the language is initially somewhat coy, it ultimately conveys
the message to employees that a union victory will
inexorably result in a forfeiture of pension rights, with no
indication why this result would have to follow: "Let them
show you on paper the effect of the loss of your present
pension rights if the Union wins the election."
In N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617,
618, 620 (1969), the Supreme Court admonished that, to
avoid being considered threats, employer "predictions"
about the effect of unionization "must be carefully phrased
on the basis of objective fact to convey an employer's belief
as to demonstrably probable consequences beyond his con-
trol" (emphasis supplied); noted that the Board "must take
into account the economic dependence of the employees on
their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implica-
tions of the latter-that might be more readily dismissed by a
more disinterested ear"; and cautioned the employer that
he can easily make his views known without engaging in
brinkmanship, "when it becomes all too easy to `overstep
and tumble [over] the brink,' " by "avoiding conscious
overstatements he has reason to believe will mislead his
employees." Zim's Foodliner, Inc. v. N.L.R.B., 495 F.2d
1131, 1137 (C.A. 7, 1974), noted - that Gissel Packing Co.
imposes a "severe burden" on employers to justify the sort
of statements made here. I find, applying appropriate
standards, that the three letters contained threats of
retaliation-agamst employees and a pointed indication that
Respondent would refuse to bargain in good faith. Gilbert
International Inc., 213 NLRB 538 (1974).
I also ford that the following statement in the February 19
letter constituted an unlawful promise of benefits:
If there have been any grievances which have not been
settled, we will do our best to see that the reasons for
grievances will be eliminated.
The foregoing means nothing less than "if there is anything
you want which we have denied you up to this point, we will
945
give it to you if you will forego this union ." While
unspecific , it seems to me to be as clear a promise of
benefits as any employer preelection offer of described
benefits which the employees have not , until the union
reared its head , previously enjoyed . See Alberts, Inc., 213
NLRB 686, 690 (1974), where the Board found a violation
when the employer-asked an employee "if she had any
problems, asked her to submit her problems to him, and
stated that he was so advising all the other employees in the
store"; Plastic Composites Corp., 210 NLRB 728,731 ( 1974).
b. The March 24 speeches. The testimony as to the
speeches made to the day and night crews on March 24 has
been earlier set out . Generally, the speeches reinforced the
violative statements contained in the letters. Specifically, I
credit the testimony of employee Destefanis that, during the
day meeting , Robert Pinter stated that selection of the
Union would mean the establishment ofjob classifications
from which the employees could not escape . Under Gissel,
such a statement , absent a showing that this consequence is
"demonstrably probable," constitutes a threat of reprisal.
Tri-City Paving, Inc., 205 NLRB 174 (1973); Felsa Knitting
Mills, Inc., 208 NLRB 504, 508 (1974); Schwab Foods, Inc.,
d/b/a Scotts IGA Foodliner, 223 NLRB 394,395 (1976), and
cases cited. The testimony about night employees bumping
day employees , and day employees being required to work
nights, alluding to statements made by Joseph Pinter in
response to questions , does not seem sufficiently developed
to warrant fording a violation . I do not, moreover, believe
that the reluctant and equivocal testimony of employee
Sinclair as to the remarks made at the night meeting is an
adequate basis for finding a violation.
5. The allegations of threats in August 1975 and
thereafter
The second consolidated complaint alleges that "on or
about August 21 and 22, 1975, and on various other dates
presently unknown during the months of August through
October, 1975," Joseph Pinter, Sr., Robert Pinter, Charles
Brown, and "other agents and supervisors presently un-
known," unlawfully threatened employees.
With one exception, the evidence apparently compre-
hended by the complaint 76 does not, I think, constitute
violative conduct. I would not consider Robert Pinter's
statement to Bonadonna on August 21 that "All you girls
do is lie" to be unlawful. I view similarly his statement that
he had written down employee derelictions during the
pendency of the charges, couched as it was in his complaint
about employees taking advantage of the situation. I am of
like mind about Joseph Pinter's statement to Lufker on
August 20 that if she "did not like it here, [she ] knew where
the door was," since the context was Pinter's assertion that
she should work together with the other upstairs employees.
I also ford harmless Charles Brown's question to Lufker on
September 30 if she was "filing charges"; Lufker had
already filed charges on September 11 and 23.
I do find violative, however, Joseph Pinter's statement to
Lufker on August 21, "Why didn't you open your mouth?
You always seem to open it at the wrong time." The second
76 As indicated. General Counsel has filed no brief. -
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentence plainly implied displeasure with Lufker's testimo-
ny of August 18, and, I would think, would reasonably tend
to discourage an employee from engaging in like conduct in
the future.77 Accordingly, I conclude that, by the foregoing
statement, Respondent interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights.
In all other respects, I shall recommend that this allegation
be dismissed.
E. The Alleged Violation of Section 8(a)(5)
In alleging that Respondent violated Section 8(a)(5) by
refusing on and after January 20, 1975, to bargain with the
Union as requested by Union Representative Schneir,
General Counsel advances an unusual theory for establish-
ing the Union's majority status.78
Between the January 20 demand for recognition and
March 26, the ^ date of the election, the agreed-upon
bargaining unit remained constant at 35 active employees.
General Counsel would add to this group the 4 employees
terminated on January 17 and 20, arriving at a total
complement of 39 unit employees during this period. In
order to demonstrate a majority of 20 union supporters,
General Counsel would then take the 14 votes cast for the
Union on March 26, and add to them authorization cards
signed, prior to the election, by employees Charlotte
Destefanis, Santa Stansell, and the 4 discriminatees, thus
arriving at a total of 20 indications of support for the
Union, registered in one way or another by March 26.
Parenthetically, it seems to me that N.L.R.B. v. Gissel
Packing Co., supra, would permit the issuance of a bargain-
ing order remedy "without need of inquiry into majority
status on the basis of cards or otherwise, in `exceptional
cases' marked by `outrageous' and `pervasive' unfair labor
practices," 395 U.S. at 613, and cases cited at 614. See also
J.P. Stevens & Co. v. N.L.RB., 441 F.2d 514, 519 (C.A. 5,
1971): "First, even where a union has never demonstrated
majority support in an appropriate unit, the Board may
issue a bargaining order where the employer unfair labor
practices are so `outrageous' and `pervasive' that their
`coercive effects cannot be eliminated by the application of
traditional remedies , with the result that a fair and reliable
election cannot be had." This might be such a case.
As indicated, however, General- Counsel is making no
claim to a nonmajority bargaining order here, and, accord-
ingly, appears to be proceeding on the basis of the Gissel
approval of -the use of a bargaining order "in less extraordi-
nary cases marked by less pervasive practices." In such
cases, the Court stated, "The Board's authority to issue
such an order on a lesser showing of employer misconduct
is appropriate, we should reemphasize, where there is also a
showing that at one poini the union had a majority ...."
(395 U.S. at 614) (Emphasis supplied).
77 While the statement did-not inhibit Lufker, the test, of course, is its
reasonable tendency to do so. N.L R B. v. Illinois Tool Works, 153 F.2d 811,
814 (C A. 7, 1946)
78 The General Counsel took the position at the hearing that it was
predicting the 8(ax5)'violation only upon a finding of the Union's majority
representation of the employees.
79 Discnminatees are considered eligible members of the unit. East Coast
Equipment Corporation and Steco Sales, Inc, supra.
80 While it could be argued that Respondent's economic decline in
I see no theoretical obstacle to proving that "at one point
the union had a majority" by combining votes in an
election and authorization cards signed earlier. In Gissel,
the Court referred to the "acknowledged superiority of the
election process," but also recognized that "where an
employer engages in conduct disruptive of the election
process, cards may be the most effective-perhaps the
only-way of assuring employee choice." 395 US. at 602.
One would suppose that 14 election votes and 6 cards
constitute a more reliable indication of employee choice
than would 20 cards.
Accordingly, combining the 6 cards signed by the 4
discriminatees 79 and employees Destefanis and Stansell,
and adding them to the 14 votes cast in the March 26
election, would mean that the Union "at one point . . . had
a majority" in the 39-employee unit, Gissel Packing Co.,
supra, 395 U.S. at 614.80
The efficacy of the cards signed by Charlotte Destefanis
and Santa Stansell is, however, in dispute.
Respondent claims that Destefanis, who was secretary to
General Manager Jacoby, is a confidential employee; for
this reason, it challenged her ballot cast in the March 26
election, and the challenge has never been resolved.
However, after the preelection hearing on the petition in
which Respondent raised this same question, the Regional
Director held, in his Decision and Direction of Election,
dated February 28, 1975, that Destefanis was not a
confidential employee. Since Respondent never requested
the Board to review this determination, it would appear that
Section 102.67(f) of the Board's Rules and Regulations
precludes relitigation of the issue in this case, clearly a
"related subsequent unfair labor practice proceeding."
There are some -cases which have permitted relitigation of
employee status, Leonard Niederriter Company, Inc., 130
NLRB 113, 115, fn. 2 (1961), Southern Airways Company,
124 NLRB 749, fn. 2 (1959), but I consider them inapposite.
At any rate, without detailing the evidence, I think it clear
that Destefanis was not a confidential employee within the
contemplation of Board doctrine. Cf. West Chemical
-Products, Inc., 221 NLRB 250 (1975).81
As to Stansell, she testified that she signed a card at some
time prior to the election only because Barber persistently
urged her to do so; 82 that Stansell was opposed to the
Union; and that she signed the card only because Barber
persuaded her that doing so would help Barber secure
reinstatement. While I believed Stansell's testimony in this
respect, I think the record is clear that she was not misled
about the effect of signing the authorization card.
I would consider this card valid under the Court's
holding in Gissel Packing Co., supra. There, the Court
"reject[ed] any rule that requires a probe of an employee's
subjective motivationsi" and held that "employees should
be bound by the clear language of what they sign unless
February and March might have led to a legitimate layoff of one or more of
the employees who voted for the Union, but that no such layoff was made
because Respondent had already reduced its force by the termination of the
four employees, the short answer is that such speculation must be resolved
against the wrongdoer.
81 Furthermore, Destefams became an "on-hand clerk" in June 1975,
when Jacoby went into semiretirement. No one has replaced Jacoby as
general manager.
82 Stansell did not vote in the election because she was on vacation.
PINTER BROS. 947
that language is deliberately and clearly canceled by a
union adherent with words calculated to direct the signer to
disregard and forget the language above his signature." 395
U.S. at 607, 608. Stansell's resistance itself proves that she
very well understood what she was doing. I have no doubt
that cards are signed and ballots cast for a union contrary
to the personal wishes of employees and only to placate
insistent spouses , sweethearts, and friends; as long as the
signer or voter understands the import of his act, the
designation is valid.83 See Gissel Packing, supra, 395 U.S. at
603-604, on this question.
I conclude, therefore, that as of March 26, 1975, the
Union enjoyed majority status in the-clerical unit which
voted that day. In view of the unfair labor practices which I
have found here, including the discrimination practiced
against Barber, Pagliarulo, Healy, Gulbrandsen, Bonadon-
na, and Lutker, I have no doubt that a bargaining order is
warranted under the standards announced in Gissel Pack-
ing Co., supra.
F. The Objections to the Election
As discussed, the Regional Director has referred to me
for determination three of the five objections filed by the
Union alleging misconduct affecting the results of the
March 26, 1975, election.
With respect to Objection 3, I have found that Respon-
dent's refusal to admit Gulbrandsen, Healy, Barber, and
Pagliarulo to its premises during the polling hours on the
day of the election constituted a violation of Section 8(a)(1).
With-respect to Objections 4 and 5,1 have found that by its
three preelection letters to the employees and its first speech
of March 24, 1975, Respondent violated Section 8(a)(1).
Under prevailing precedent, "Conduct violative of Section
8(a)(I) is, a fortiori, conduct which interferes with the
exercise of the free and untrammeled choice in an election,"
Monroe Manufacturing Company, Inc., 200 NLRB 62, 63, fn.
3 (1972); Dal-Tex Optical Company, 137 NLRB 1782, 1786-
87 (1962). I therefore recommend that the election held on
March 26, 1975, be set aside. -
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Truckdrivers Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Vera Barber and Beatrice Pagliarulo
on January 17, 1975; by laying off Jayne Healy and
Deborah Gulbrandsen on January 20, 1975; and by
constructively discharging Doris Bonadonna on August 22,
1975, and thereafter refusing to reemploy her, Respondent
has violated Section 8(a)(3) and (1) of the Act.
4. By subjecting Diane Lufker to closer supervision
than she previously had been given, on August 21, 1975,
and by changing its lateness and sick leave policies in
September 1975 so as to provide Lufker with less employ-
ment than she previously had received, and normally would
have received, Respondent has violated Section $(a)(1), (3),
and (4) of the Act.
5. By the threats of reprisals, anticipatory refusal to
bargain, and promise of benefits contained in its letters of
February 19 and March 18 and- 24, -1975, and its speech of
March 24, 1975; by its refusal on March 26, 1975, to admit
prospective voters to the polling place; and by its criticism
of Diane Lufker on August 21; 1975, for having testified
before the Board, Respondent has violated Section 8(a)(1)
of the Act.
6. The appropriate unit for collective bargaining is:
All full time and regular part time office clerical
employees of Respondent, employed at its Carll's Path,
Deer Park, New York, plant, exclusive of drivers,
helpers, warehousemen, maintenance and confidential
employees, guards, and all supervisors as defined in
Section 2(11) of the Act.
By refusing, on and after March 26, 1975, to recognize
and bargain with Local Union No. 807, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive collective-bar-
gaining representative of Respondent's employees in the
unit described above, Respondent has violated Section
8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Except as set out above, Respondent has not violated
the Act in any other respect alleged in the complaints.
THE REMEDY
In order to remedy the unfair labor practices found
herein, I shall recommend that Respondent be required to
cease and desist therefrom and take certain affirmative
action.
I shall recommend that, upon request, Respondent
recognize and bargain collectively with the Union as the
exclusive representative of all its employees in the appropri-
ate unit with respect to rates of pay, hours, and other terms
and conditions of employment. I shall also recommend that
the election of March 26, 1975, be set aside.
Having found that the Respondent discriminatorily
discharged Vera Barber and Beatrice Pagliarulo on January
17, 1975, discriminatorily laid off Jayne Healy and Debo-
rah Gulbrandsen on January 20, 1975, and discriminatorily
caused the discharge of Doris Bonadonna on August 22,
1975, and thereafter discriminatorily refused to reemploy
her, I shall recommend that Respondent be ordered to offer
these employees immediate and full reinstatement, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered from the time of their terminations to the date
of the Respondent's offer of reinstatement. Their backpay
shall be computed in accordance with F W. Woolworth
Company, 90 NLRB 289 (1950), with interest computed as
prescribed in Isis Plumbing & Heating Company, 138 NLRB
83 Stansell's testimony that, at some point, Barber told her that the from the kind of representation that the Gissel Court held to be no basis for
purpose of signing was "[s ]o that the union could come in so that everybody
could vote and get a chance to vote the way they want" is indistinguishable
vitiating a card. See 395 U.S at 608, referring to fn. 5 at 584
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
716 (1962). Since it appears that Respondent promulgated
its rule forbidding employees to work part time on days on
which they have medical appointments or are late in
arriving at the office for the purpose of discriminating
against Diane Lufker, I shall recommend that Respondent
be required to rescind any such rule. I. shall further
recommend that Respondent reimburse Diane Lufker, and
any other employee affected by application of the rule, for
any loss of earnings occasioned by the enforcement of the
foregoing rule, with interest as prescribed in Isis Plumbing
& Heating Company, supra.
I shall also recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
shall issue the following recommended:
ORDER84
Pinter Bros., Inc., Town of Deer Park, County of Suffolk,
State of New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively in good
faith, upon request, with Truck Drivers Local Union No.
807, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of all the employees in the
appropriate unit set forth in paragraph 6 of the Conclusions
of Law herein with respect to rates of pay, hours, and other
terms and conditions of employment.
(b) Discharging or otherwise discriminating against
employees because of any activities on behalf of Local
Union No. 807, or any other labor organization.
(c) Threatening employees for assisting or supporting
Local Union No. 807, or any other labor organization,
promising benefits to employees for refusing to support
Local Union No. 807, or any other labor organization,
threatening to refuse to bargain with Local Union No. 807,
or any other labor organization, and refusing to allow
prospective voters to participate in a Board election.
(d) Discriminating against employees for giving testimo-
ny before the National Labor Relations Board.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or to
refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
84 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Offer to Vera Barber, Beatrice Pagliarulo, Jayne
Healy, Deborah Gulbrandsen, and Doris Bonadonna full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Make Diane Lufker and other employees whole for all
losses they may have incurred as a result of the promulga-
tion in September 1975 of Respondent's discriminatory rule
refusing to permit employees to work part-time on days on
which they have medical appointments or are late for work,
in the manner set forth in the section of this Decision
entitled "The Remedy."
(c) Rescind the discriminatory rule promulgated in
September 1975 prohibiting employees from working on
days on which they have medical appointments or are late
for work.
(d) Upon request, bargain collectively with Truckdrivers
Local Union No. 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of the employees in the
appropriate unit set forth above with respect to rates of pay,
hours, and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding
in a signed agreement.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payroll records, timecards,
personnel records and reports, and all other records
necessary, or appropriate, to analyze the amount of
backpay due.
(f) Post at its place of business in Deer Park, county of
Suffolk, State of New York, copies of the attached notice
marked "Appendix." S5 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being duly signed by Respondent's authorized representa-
tive, shall be posted 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT Is ALSO ORDERED that those portions of the complaints
found to be without merit are hereby dismissed.
IT IS FURTHER ORDERED that the election conducted in
Case 29-RC-2888, on March 26, 1975, be, and it hereby is,
set aside.
ss In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."